Hanna v Aus Inventive Design Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hanna v Aus Inventive Design Pty Ltd [2021] NSWPIC 210
APPLICANT:	Laoun Hanna
RESPONDENT:	Aus Inventive Design Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	25 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for compensation pursuant to section 60 for proposed dental treatment; undisputed bilateral carpal tunnel injury found by AMS to have resulted in 74% WPI; whether consequential dental condition due to being unable to maintain adequate oral hygiene and xerostomia induced by anti-depressant medication; significant pre-existing dental condition; extensive surveillance suggesting greater ability to use upper limbs than claimed; Held- Commission satisfied that applicant sustained a consequential dental condition; Murphy v Allity Management Services Pty Ltd and Taxis Combined Services (Victoria) Pty Ltd v Schokman applied; proposed treatment reasonably necessary as a result of injury.
DETERMINATIONS MADE:	1. The dental treatment proposed by Dr Rex Liu is reasonably necessary as a result of the work injury.
ORDERS MADE	1. The respondent to pay the costs of and incidental the treatment proposed by Dr Liu in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Laoun Hanna (the applicant) was employed by Aus Inventive Design Pty Ltd (the respondent) as a welder. As a result of the nature and conditions of his employment with the respondent on and prior to 5 September 2012, the applicant sustained an injury in the nature of carpal tunnel syndrome to his left and right upper extremities.
In previous proceedings before the former Workers Compensation Commission, Approved Medical Specialist (AMS), Dr David Crocker assessed the applicant as having 74% whole person impairment (WPI) as a result of the injury to his upper extremities.

In 2015, the applicant sought compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for dental treatment said to be reasonably necessary as a result of the injury.

Liability for a consequential dental condition was disputed by the respondent’s insurer in a notice issued pursuant to former s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 13 November 2015. The applicant sought review of that notice on 22 October 2020.
The present proceedings were commenced by an Application to Resolve a Dispute lodged in the Commission on 17 March 2021.
On 7 April 2021, the respondent’s solicitors wrote to the applicant advising that the decision to dispute liability in respect of the alleged dental condition was maintained.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 17 May 2021. The applicant was represented by Mr Craig Tanner of counsel, instructed by Ms Emily Delaney. The respondent was represented by Mr Stephen Harris, a legal practitioner.
During the conciliation conference, leave was granted to the applicant to amend the Application to Resolve a Dispute to discontinue a claim for incurred s 60 expenses as well as a claim for compensation in respect of a disputed cervical spine injury.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a) whether the applicant has sustained a consequential dental condition as a result of the injury to his upper extremities, and
(b) whether dental treatment proposed by Dr Rex Liu is reasonably necessary as a result of the injury.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents;

(c) surveillance footage attached to an Application to Admit Late Documents lodged by the respondent on 7 May 2021, and

(d) pages three and four of the attachments to an Application to Admit Late Documents lodged by the applicant on 10 May 2021.

Neither party applied to adduce oral evidence or cross examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 16 December 2015 and 17 February 2021.
In his first statement, the applicant said he was employed by the respondent as a welder from 2008 until September 2012 when his employment was terminated. The applicant was required to perform repetitive duties involving a lot of heavy lifting. The applicant used his hands a lot and had to apply a lot of strength to his tasks.
On or about 1 October 2009, the applicant started to experience pain, numbness and swelling in both hands. The applicant was having difficulty performing his job and other everyday tasks.
Following a referral to Dr M Dowla for nerve conduction studies, the applicant was diagnosed with severe bilateral carpal tunnel syndrome.
The applicant underwent right carpal tunnel release surgery performed by Dr Eddy Dona on 15 April 2010. Although this improved the numbness in his right hand the applicant began to develop swelling and a different kind of burning pain.
The applicant underwent left carpal tunnel release performed by Dr Dona in December 2010. The applicant continued to have problems of pain and swelling in his right hand, arm and wrist.
Following an MRI of the right wrist on 4 February 2011, the applicant underwent ultrasound guided injection to the right wrist joint. This did not improve the applicant’s condition and he continued to experience pain and swelling in both hands.
Pain specialist, Dr Robert Adler, recommended hand exercises, ketamine gel and Lyrica for pain relief.
The applicant underwent further surgery to the right wrist by Dr Dona and further cortisone injections in 2012.
As a result of his injuries, the applicant became quite depressed and was referred to a psychiatrist, Dr Tanveer Ahmad. The applicant was prescribed with Lexapro and Seroquel.
The applicant stated:
“Following each of the surgical procedures to my hands, I was unable to use my hands for an extended period of time. This effected my ability to perform my grooming and washing, including brushing my teeth was an extremely difficult task and I would avoid doing so, in order to avoid increased pain in my hands. I was unable to grab and hold a toothbrush.
I grew increasingly agitated and was stressed about my lack of capabilities. I started smoking more.
I am on a lot of medications including the Seroquel and Lexapro which have the side effect of giving me a dry mouth. I believe this has caused my dental problems. I have now had to have two of my teeth removed as a result. I find myself being quite embarrassed about the appearance of my teeth. I am also unable to eat properly.”
The applicant said he experienced constant burning pain in both hands especially the left hand. The applicant also experienced continuous weakness in both hands. The applicant could not do anything repetitive or which required strength in his hands and found it difficult to make a closed fist. Any repetitive or prolonged use of his hands caused the applicant extreme pain and discomfort.
In his supplementary statement of 17 February 2021, the applicant elaborated on his dental condition:
“I have experienced numbness and weakness in my hands and upper extremities for many years now. This has made it difficult for me to grip my toothbrush and floss my teeth. I avoid brushing my teeth where possible and even when I do, I am only able to perform the task in a reduced capacity. I find it painful to grip the toothbrush and perform a repetitive movement. I also do not have the fine motor skills required to grip the floss and floss my teeth. I am unable to use an electric toothbrush as this sends vibrations into my arms which is very uncomfortable. I have tried to compensate for this by using mouthwash and my wife opens the cap of the mouthwash for me as I do not have the strength in my hands to perform that task. My reduced ability to clean my teeth has meant my dental hygiene has deteriorated and accelerated the decay of my teeth.
I am also required to take analgesic and anti-depressant medication which my treating dental surgeon, Dr Naim, believes has had a negative effect on my dental health. I have previously undergone the removal of my right upper central incisor and Dr Naim has now suggested I am a candidate for implant reconstruction of my missing central incisors. I have been referred to a specialist prosthodontist to undergo this treatment.”

Medical evidence

On 13 October 2009, neurologist, Dr M Dowla prepared a report for the applicant’s general practitioner, Dr Toby Taleb Nasr. Dr Dowla took a history of three months of intermittent paraesthesia and numbness in both hands. Nerve conduction studies showed a strong electric clinical correlation for carpal tunnel syndrome bilaterally.
There are in evidence multiple reports from hand, plastic and reconstructive surgeon Dr Eddy Dona. Dr Dona first reviewed the applicant on 18 January 2010 for bilateral severe carpal tunnel syndrome. Dr Dona documented the surgical treatment provided and ongoing symptoms.
On 25 May 2010, Dr Dona noted that following the right carpal tunnel surgery, the applicant had ongoing wound discomfort and reduced grip strength. The applicant was having trouble undertaking heavy manual handling and was unable to recommence his welding job.
On 15 June 2010, Dr Dona noted that the applicant was suffering from intermittent swelling and reduced grip strength. On 13 July 2010, Dr Dona reported that the applicant’s pain and grip strength were improving week by week.

On 10 August 2010, it was noted that the applicant was making very slow progress. The applicant remained with reduced grip strength and intermittent swelling.
On 21 September 2010, Dr Dona reported that the applicant was making some positive progress. The applicant was not experiencing any swelling and had returned to work for up to 4 hours per week. The applicant’s grip strength was improving although the left hand was still problematic.

On 9 November 2010, Dr Dona noted that the right hand carpal tunnel issues had resolved, however, the applicant was now complaining of pain involving the base of his hypothenar eminence. A cortisone injection was arranged. The applicant’s left carpal tunnel was now causing the applicant increasing concern. Arrangements were made for the applicant to undergo decompression of the left side on 17 December 2010.
On 8 February 2011, Dr Dona noted that the applicant had undergone MRI of his right wrist which demonstrated some mild synovitis of his pisotriquetral joint. Dr Dona recommended a further ultrasound guided cortisone injection into this.
On 22 March 2011, Dr Dona reported that the applicant still had swelling and reduced grip but these were improving. Of greater concern were the problems along the ulnar aspect of the applicant’s right hand at the base of his hypothenar eminence. Given the extremely slow progress and ongoing issues, Dr Dona referred the applicant to Dr Simon Chan for a second opinion.
The applicant’s general practitioner, Dr Nasr responded to a questionnaire from the insurer dated 2 September 2011 indicating that the applicant’s current symptoms included ongoing pain, weakness and swelling in both wrists/hands.
On 29 September 2011, Dr Dona reported that the applicant described intermittent swelling, pain, burning sensations and sweating in his hand that was becoming extremely distressing. Dr Dona felt the applicant had developed a complex regional pain syndrome (CRPS). The applicant was referred to pain management specialist, Dr Robert Adler.
In a report to Dr Dona, dated 9 December 2011, Dr Adler noted the injury and described the following symptoms:
“He does have a problem with bilateral hand pain and swelling. The right hand is visibly swollen, with a negligible active wrist movement, stiffened fingers and limited power and pinch grip. There are similar symptoms in the left hand, with the pain in the left hand, he feels, worse than the right. There is stabbing pain in his left hand occurring with any movement of the forearm and wrist. There is cold pain aggravation, a pink discoloration of the hands, and he has noted excessive sweating of the fingers.”
Dr Adler found the applicant did have CRPS features in both hands although swelling was more marked on the right hand. Dr Adler recommended treatment including topical ketamine five times a day and Lyrica.
Dr Dona noted on 24 January 2012 that the applicant had commenced treatment as initiated by Dr Adler but the applicant was describing increasing numbness in his fingers. The applicant was dropping things including his coffee cup and cigarettes.
Dr Dowla reviewed the applicant on 24 February 2012. The applicant reported pain and swelling in both hands. Nerve conduction studies showed significant improvements and Dr Dowla could not find any neurophysiological cause of the applicant’s symptoms.
In response to a questionnaire from the insurer dated 9 March 2012, Dr Nasr indicated that the applicant was experiencing daily pain, weakness, swelling and paraesthesia in both hands. The applicant was continuing topical and oral treatment for CRPS.
On 26 October 2012, Dr Dona reported that the applicant continued to experience pain isolated at his right PT joint. Arrangements were made to proceed with surgery. On 6 November 2012, Dr Dona reported that the applicant had been doing well since his surgery.

In a medicolegal report for the applicant, dated 10 July 2013, consultant physician and rheumatologist, Dr Terry Kwong, noted that the applicant’s current complaints included:
“Constant burning pain in both hands, especially in the left. Intermittent swelling and discolouration in both hands. He reports that any minor light touch or the use of his hands results in severe electrical shock in both forearms and hands. Intermittent sweating in both hands. Weakness in both hands.”
Dr Kwong noted that the applicant had given a clear and consistent history and he did not have the impression of exaggeration. Dr Kwong diagnosed CRPS post carpal tunnel surgeries.
Dr Adler also prepared a report to Dr Dona on 10 July 2013. The applicant had persisting hyperalgesia and swelling of the fingers. The applicant’s right hand was described as having functioning grips but poor endurance for grip. Dr Adler said the applicant had “late stage CRPS” which was “mild” although for a welder it was a major occupational disability. Dr Adler recommended that the applicant recommence topical ketamine and biphosphenate.
The materials indicate that the applicant was subsequently referred to a different pain medicine specialist, Dr Henry Lam. On 27 November 2013, Dr Lam wrote to Dr Nasr noting a history of chronic persistent pain:
“The pain is described as a constant pain with paroxysmal attacks. The characteristics of the pain are described as electrical, shooting, hot, burning, paraesthesia, numbness, dull, aching and there is a history of swelling, hyperhydrosis, stiffness cramping and discolouration. Pain spread from his wrist up to his arm, he describes allodynia, hyperalgesia and dysaesthesia.
Pain seems to be better when he rests, taking medication, hot showers and walking.
Pain seems to be exacerbated by lifting, carrying things, using his arms, washing car, cold weather and when the arm is in dependant position.”
Dr Lam diagnosed CRPS type I. Dr Lam described the applicant as:
“a genuine patient with a limited understanding of his pain condition with excessive reliance on passive approaches.”
Consultant rheumatologist, Dr Loretta Reiter prepared a report for the respondent on 1 April 2014. Dr Reiter took a history of the injury and subsequent treatment that was consistent with the other evidence before me. The applicant reported pain affecting the whole of his left and right hands equally radiating at his elbows. The pain was described as a burning, cold sensation with an electric component which increased with intensity when using his hands. Following an examination, Dr Reiter formed the opinion that the applicant did not meet the diagnostic criteria for CRPS in the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA 5). Dr Reiter considered the applicant had chronic non-specific pain affecting his forearms and hands.
On 8 June 2014, Dr Nasr wrote a letter of referral to dentist, Dr Cheivi Sathiakumar, providing the following background:
“Mr Hanna has a current workcover claim due to bilateral carpal tunnel syndrome. As a complication of the necessary surgery he has unfortunately developed complex regional pain syndrome affecting both hands. The debilitating effect of this has resulted in depression and a mood disorder, for which he sees a psychiatrist. Dr Tanveer Ahmed. As part of his treatment. Dr Ahmed has prescribed the antidepressant Lexapro and the antipsychotic Seroquel to Mr Hanna. Common side effects of these medications include dry mouth amongst other things. This can obviously impact on dental health.”
On 10 July 2014 surgeon Dr Ronald Thomson provided an injury management consultation report to the insurer. During Dr Thomson’s examination, the applicant was said to have “affected to have no use of any meaningful consequence of both hands whatsoever”:
“He said they are global pain and swelling of both hands, stiffness of both hands, a statement that he "can't use them for anything", he indicates that they are completely devoid of any power / strength and he refers to "electric shocks" and indicated that they occur at the volar forearms. He effectively claims that both his hands are totally useless for any meaningful Activities of Daily Living at all and when asked how he coped, he said his wife did everything including dressing and undressing him and I put it to him on that basis that he was claiming that his wife was effectively his hands because he had no use in any meaningful sense of the word of those parts at all and to which he agreed.”
Upon examination, Dr Thomson noted:

“The worker generally had an anxious / worried look on his face throughout and held his hands in an attitude of total disuse with the fingers held constantly part flexed and before the physical examination and as already noted, he staggered over to his driver and held his arms upright with his useless hands so that the driver literally removed and later replaced all of his upper garments.
In the face of that conduct, this worker was hugely muscular in all of both upper limbs and including muscle bulk of both of his hands.”

Dr Thomson said it was inconceivable that the applicant could neither flex nor extend the digits of both hands as alleged in the face of the huge forearm muscle bulk plainly evident. Dr Thomson diagnosed:
“Miscellaneous collection of symptoms alleged of unknown aetiology and for which no physically diagnosable cause/s could be found.”
On 24 July 2014, Dr Nasr prepared a report to the insurer in which he confirmed that the applicant was given a diagnosis of CRPS treated with “extremely potent medication”. The applicant developed secondary depression as a result of complications and poor clinical progress. Dr Nasr stated:
“He is reliant on a cocktail of medications that has caused him to gain weight, lose concentration and motivation, impair his sleep, impact on his oral health, impair his sexual function, impede his general function and still he struggles with pain.”
With regard to the applicant’s ability to use his hands, Dr Nasr described a conversation that he had with Dr Thomson:
“I advised Dr Thomson that Mr Hanna can do things but he usually pays the price and has severe pain and swelling for some time afterwards. He is limited in repetitive use of the hands. He asked if I have ever seen any physical evidence of problems in his hands to which I stated that on a number of occasions his hands and forearms have been swollen, red, and clammy. He regularly complained of electric shock pains in his hands and forearms. On one occasion even his psychiatrist rang me to tell me he was concerned about the appearance of Mr Hanna's hands and even contemplated admitting him to hospital.”

Dr Thomson prepared a supplementary report for the insurer on 1 September 2014 after reviewing video surveillance of the applicant on 25 February 7 and 19 March 2014. Dr Thomson gave the opinion:
“The claims of this worker when he saw me at the very outset were fundamentally unbelievable from any medical viewpoint on rational clinical grounds and his conduct at the physical examination was probably all the more so.
The films viewed confirm that noted and it is plain that they confirm that he was telling me outright lies when he saw me and effectively perpetrating a fraud.”
On 26 September 2014 an occupational therapist from Rehabilitation Services provided a functional review of surveillance footage captured in February, March and July 2014. The report noted:
“However during the entire surveillance footage Mr Hanna was observed to use both upper limbs during completion of functional tasks without hesitation or restriction. He was noted to have almost full range of movement in both his upper limbs. He was observed have full movement and ability to grip, both fine motor and gross motor gripping in both hands as well as perform in-hand manipulation in both hands. Mr Hanna was also observed to lift and carry 2kg, weight bear on his left upper limb, perform pushing and pulling of up to 5kg with both upper limbs and performed sustained gripping of an umbrella, fuel nozzle, car keys and mobile phone. Mr Hanna was also observed to ambulate during the footage with a free arm swing in both upper limbs. All of the tasks observed during the surveillance footage were noted to be without restriction and pain behaviours.”
On 3 February 2015, Dr Nasr referred the applicant to oral and maxillofacial surgeon, Dr Anthony Naim.
Dr Naim prepared a report for Dr Nasr on 1 May 2015. Dr Naim took a history of the injury, the development of CRPS and secondary depression. Dr Naim noted that the applicant had been prescribed Seroquel and Lexapro which had contributed to xerostomia. Dr Naim said:
“The main concern from the patient's point of view is that he believes that because of the multiple surgeries for his carpal tunnel syndrome and now his chronic pain and neuropathic symptoms in this arms his oral hygiene has diminished as he is unable to brush his teeth and he believes the dry mouth or Xerostomia caused from the anti-depressant medications have caused worsening of his dental state.”
Dr Naim noted an undated report from the applicant’s dentist, Dr Sathiakumar, outlining events going back to 9 July 2010. Dr Naim also noted a background of chronic hypertension and smoking six cigarettes a day for the last 20 years. Dr Naim performed an examination and gave the following opinion:
“Based on the history and other correspondence as stated certainly there appears to be a negative effect on the patient's dental health based on the Xerostomia that may have been caused from the anti-depressive medications, Seroquel and Lexapro. This may have resulted in deterioration of his dental status however you would likely see more evidence of decay in response to dry mouth. The patient appears to have had areas of advanced periodontitis which appears to have occurred particularly in the sites of 11 and 21 which have caused the loss of these teeth. Having not seen the patient previously in the presence of these teeth it is difficult to ascertain the accurate cause of these teeth loss however based on the letter from the dentist it appears that periodontitis was the most likely cause.
This certainly may have been exacerbated, not so much from Xerostomia, however from the inability to carry out good oral hygiene practises such as brushing and flossing. This has been exacerbated by the inability to use his hands and fingers to carry out adequate oral hygiene techniques. However in view of the patient's smoking history certainly there is a link between smoking and periodontitis and therefore it is difficult to ascertain the cause of his periodontitis particularly for 11 and 21 whether that be the lack of oral hygiene or inability to carry this out or the smoking that has exacerbated his periodontitis. Either way I believe the patient has been somewhat compromised from his dental hygiene point of view particularly the inability to brush his teeth and floss adequately which has resulted in advancement of his periodontitis.”
An undated report from Dr S Sathiamkumar states that the applicant was initially seen on 9 July 2010. On that occasion, Dr Sathiakumar noted:
“Generalised Periontitis with generalised bone loss along with short root in Tooth number 21; No presence of mobility in any of the teeth.

Mr Hanna had extensive dental work done in the past including multiple post and crown in his country many years earlier.”
At a series of appointments in July and early August 2010, Dr Sathiakumar, performed sub gingival scale and clean and gave oral hygiene instructions focused on brushing and flossing techniques. The applicant attended further check ups for scale and clean in July 2011 and April 2012.
On 5 November 2012, the applicant noted tooth number 21 had become mobile a week earlier. The applicant was given treatment options but did not return for treatment until 28 January 2014 when tooth number 21 was severely immobile with severe bone loss around the tooth.
The applicant was given treatment options but wanted to think about it. On 20 August 2014, the applicant presented with missing teeth numbers 21 and 11. The applicant stated that they had fallen out a few months earlier.
On 9 July 2015, Dr Reiter prepared a supplementary report for the insurer after reviewing surveillance footage in which she gave the opinion:
“The surveiIIance content is definitely not consistent with my assessment of function. When I questioned Mr Hanna about his activities of daily living, he reported that due to the pain in his hands he could not even do-up his shoe laces or his belt, which is why his wife had to sometimes do it for him. This is out of keeping with on surveillance DVD where he was able to hold and use a mobile phone his right hand. This is also inconsistent with him claiming he is not able to do any of the cleaning around the house and it is all done by his wife due to the condition of his hands.
In addition when I examined him, he was not able to passively make a full range of movement in his fingers, such that he could not do a full extension or make a full fist, again out of keeping with what was observed on the DVD, where he was observed to hold and use a mobile phone his right hand, as well as hold an umbrella in his right hand, which he obtained from the boot of his car.”
On 29 July 2015, Dr Lam reported to Dr Nasr:
“On examination Mr Hannan's forearms were very sensitive and power 4+/5 secondary' to pain. Mr Hannan states he has been dropping things more frequently. Due to Mr Hannan's chronic pain condition in both arms following his work related injury he is unable to brush his teeth resulting in poor dentition.”

In a further report for the respondent dated 8 March 2016, Dr Reiter gave the opinion that the applicant did not suffer CRPS. Given the applicant’s ability to function on the surveillance video, Dr Reiter expressed the view that the applicant was not functionally impaired and that there was an element of embellishment by the applicant when he presented in the consultation room compared with the surveillance video.
Dr Reiter said the only symptoms that the applicant presented with which could indicate CRPS were the inability to make a full fist and reduced sensation. Dr Reiter observed that on the surveillance videotapes the applicant could make a full fist as he could clasp an umbrella. The symptom of reduced sensation was easily feigned.
Dr Reiter prepared a further report responding to the surveillance footage and maintaining her previously expressed opinion on 31 March 2016.
Dr David Millons prepared a report for the respondent on 24 July 2018. After taking a history of injury and subsequent treatment that was consistent with the other evidence, performing an examination and noting the surveillance material, Dr Millons gave the opinion:
“The overall impression is that there is a mixture of the organic and the non-organic, the organic being carpal tunnel problems which seem to have been successfully treated and problems with the pisiform triquetral joint which appears to have been successfully treated by removal of the pisiform. He claims to have problems with ongoing symptoms with pain, swelling, stiffness, sweating, changing of colour and so on.
Symptoms seem to be well entrenched in his mind now and I cannot see an early resolution of the problem.
I do note that surveillance four years ago did demonstrate him to perhaps be more active than the clinical picture at the time.
Considering the degree of impairment which Mr Hanna appears to have, a period of repeat surveillance might not be unreasonable to see if there is any difference between his appearance before me and the way he goes about his activities of daily living.”
In a further report, dated 24 September 2018, Dr Millons commented in detail on the surveillance material and gave the opinion:
“A review of the surveillance activities that I saw and the reports of activities that I could not see would suggest that Mr Hanna was able to use his hands normally and the activities demonstrated would not be consistent with someone who had chronic regional pain syndrome notwithstanding the fact that it had been reported to be the case by at least three doctors that Mr Hanna had seen.”

The applicant’s psychiatrist, Dr Tanveer Ahmed prepared a report on 29 April 2021 in which he stated:

“Mr Hanna has been my patient for several years. He suffered a work related injury, has associated pain and has been heavily medicated throughout. He has required psychiatric input from myself regarding a chronic depressive illness given he has lost his work identity and his sense as a provider for the family. There has also been considerable financial strain.
Unfortunately a by-product of his problems have been significant tooth decay. While an aspect of this may be medications that inhibit saliva production, particularly pain medications, it is not my role to argue whether the work injury was a direct cause.
There is no question that his dental problems have contributed greatly to a decline in his quality of life. He often cannot eat comfortably. He suffers significant pain not always controlled by the medication. It causes him great distress on top of his broader decline in function and inability to work.”

Surveillance materials

The respondent relies upon a surveillance/activity report prepared by LKA Group Pty Ltd dated 2 July 2013. The report deals with a period of 36.5 hours of investigation performed between 11 June 2013 and 27 June 2013. The applicant was reported to have been seen driving on a number of occasions.
A further surveillance/activity report was prepared on 27 March 2014 in relation to 26.5 hours of investigation over four days between 24 February 2014 and 19 March 2014. The applicant was reported to be seen performing the following activities:
“•      Drive and alight from a vehicle;
•      Attend two medical appointments;
•      Hold and use a mobile phone in his right hand;
•      Sit for an extended period of time; and
•      Walk a long distance.”
A surveillance report was prepared by Verifact on 24 July 2014 following a further period of 20 hours of surveillance conducted on 14 and 17 July 2014. During this period, the applicant was observed performing the following:

“•     Using both hands equally whilst displaying no signs of discomfort and/or restriction.
•      Able to drive a motor vehicle.
•      Seen using an ATM.
•      Carrying items in his hands.”

During this period, the applicant was observed, amongst other things to drive, hold keys in his left hand, smoke a cigarette, retrieve a jacket from his vehicle, open and close car doors, use an ATM and refuel his vehicle.
All States Investigations performed surveillance of the applicant for the insurer between 24 November 2014 and 13 December 2014 during which the applicant was observed walking a short distance, purchasing and carrying bags of Lebanese bread and driving alone.
Further surveillance was performed between 21 July 2015 on 27 July 2015. The applicant was observed driving, drinking coffee, smoking, carrying objects and using a mobile phone. The applicant was also observed opening, closing and loading items into the boot of his car and carrying and operating a remote control toy car and carrying a small toolbox.
All States Investigations conducted another 20 hours of surveillance between 20 January 2016 and 28 January 2016. During this period, the applicant was observed driving, refuelling his vehicle and smoking.
Footage from the various periods of surveillance is also before the Commission and has been viewed.

Medical Assessment Certificate

A Medical Assessment Certificate (MAC) was issued by AMS, Dr David Crocker on 6 June 2016.
Dr Crocker took a history of the injury and subsequent treatment that was consistent with the applicant’s statement. It was noted that the applicant had been reviewed by pain consultant, Dr Henry Lam. The applicant’s doctors had considered that he was presenting with CRPS (type I). Dr Lam recommended that the applicant take part in a multidisciplinary pain management program in which the strong oral analgesic agent Physeptone (methadone) was prescribed. The applicant was also prescribed Zaldiar.
The applicant reported variable ongoing pain affecting the forearms, wrists and hands bilaterally. The applicant had heightened sensation and discomfort in these regions. The hands felt hot and cold at different times, experienced variable swelling and increased sweating affecting the palms of both hands.
The applicant reported that his wife occasionally assisted him with respect to dressing/undressing. The applicant required assistance in relation to shoes and some help with shaving.
Dr Crocker reviewed various medical reports including materials prepared after inspecting DVD surveillance material. With regard to the surveillance material, Dr Crocker commented:
“With respect to the surveillance material, I have noted the photographic and written documentation relating to this. Activities of the type listed by Dr Kwong have been noted. I consider that these were of a non-physically demanding type and that these images and findings do not refute the diagnoses that have been listed earlier in this Certificate. My clinical findings also relate to the present time with some delay having been the case since these earlier observations. I also consider that the extent to which oral medication is taken when individuals are observed have bearing upon aspects such as functional capacity.”
Following examination, Dr Crocker made a diagnosis as follows:
“It is evident that Mr Hanna had been diagnosed with bilateral carpal tunnel syndrome with severe changes consistent with this on neurophysiological studies. Surgical decompression had been performed bilaterally. It is evident that post-surgical improvement became apparent on further neurological studies. The surgeon also had considered that further surgery was required with the additional procedure of left pisiformectomy having been performed. The clinical presentation became subsequently more diffuse with other features reported. A diagnosis of complex regional pain syndrome (CRPS) type 1 has been made by multiple medical specialists.”
Dr Crocker made an assessment of 50% WPI of the right upper extremity and 47% WPI of the left upper extremity. Combined with an assessment for sleep apnoea, this resulted in a combined value of 74% WPI.

Dr Liu

Dental surgeon, Dr Rex Liu has prepared a report dated 21 June 2020 which notes:
“Mr Hanna presented on the May 2020 for assessment and quote to complete his dental implant treatment and to treat he failing upper left bridge. 4 upper implants were placed in Lebanon in 2018. 4 x temptorary crowns failing and abutments loose. 14 implant failing with 65-70% crestal bone loss. Splinted crowns on 24/25 failing. Remaining root structure questionable prognosis.”
Dr Liu prepared a provisional treatment plan which included the following:
“Stop smoking
Oral hygiene instructions.
Scale and Clean
New temporary crowns 11 and 21 to improve soft tissue condition
Final abutments and crowns on 11 and 21
Remove failing 14 implant
Allow 2 months healing
3 unit VMK bridge
Remove 24 tooth
Assess 23 remaining tooth
Allow 2 months healing
3 unit VMK bridge
Approx 3x restorations”

Dr Liu quoted $14,850 for the dental work excluding the three restorations.

Dr Argryou

The applicant relies on a medicolegal report prepared by dental surgeon Dr Marios Argryou, dated 27 August 2020.
Dr Argryou took a history of the applicant experiencing numbness and weakness in both of his hands which resulted in him being unable to maintain adequate oral hygiene measures including brushing his teeth. This led to a subsequent deterioration of the applicant’s teeth and tooth decay. Dr Argryou also noted that the applicant was on analgesic and antidepressant medication which his regular dentist, Dr Naim believed had a negative effect on his dental health. The applicant reported that he suffered from pain on a daily basis and was unable to brush his teeth, write with a pen or ride a bike.
Dr Argryou took a dental history of the applicant having most teeth restored in Lebanon prior to the year 2000. The applicant was required to have teeth extracted, had damaged multiple teeth and crowns which had fallen out as a result of decay. In 2018, the applicant went back to Lebanon to place implant abutments but was not able to return to place permanent dental crowns due to Covid 19.
Dr Argryou performed an examination and gave an opinion as follows:
“Mr Hanna has very poor oral health, which includes moderate periodontitis and has suffered extensive tooth decay. This can be attributed to a number of factors, including his diet, smoking and his inability to brush his teeth due to his condition. He also has limited assistance from others, thus making it very difficult for him to maintain his oral hygiene.
…
I am unable to comment as to whether Mr Hanna's employment with Aus Inventive Design was a substantial contributing factor to Mr Hanna's dental injury. I am aware that the repetitive nature of his job and operation of heavy machinery may have led to his resulting bilateral carpel tunnel syndrome. As a result of this condition and his inability to correct this problem after multiple surgeries, I do know that he will not be able to properly take care of his teeth due to Mr Hanna not being able to grip a toothbrush. He has suffered significant damage since being diagnosed with bilateral carpel tunnel syndrome and bilateral complex regional pain, including tooth loss. Antidepressant medication has caused dry mouth and exacerbated negative changes in his gingival health. He will need to see a periodontist to stabilize his periodontal condition, and have continued to support to sustain a high level of oral hygiene.”
With regard to the treatment proposed, Dr Argryou said:
“I believe Mr Hanna will require dental treatment. He will need to stabilize the mouth by fixing all existing dental treatment that has failed. This is root 24 to be extracted and 23 crown to be replaced. The optimal treatment for the edentulous spaces would be implant reconstruction. He has already had implant abutments place in 11, 21, 14 and 15. These teeth need to be restored as soon as possible. He would benefit from implants also placed in 24, 26, 45 and 47. Whether or not this is a necessity I cannot either confirm or deny. The most important decisive factor would be his having a successful treatment and maintenance. This involves Mr Hanna to have a stable periodontal condition, maintained by some combined form of hygiene maintenance by himself and by a periodontal specialist. Also bone must be adequate for implants to succeed, as he may need bone grafting. He will also need to have controlled diabetes, BP and quit smoking to attain a most successful treatment outcome.”

Dr Bowler

The respondent relies on medicolegal reports prepared by oral and maxillofacial surgeon, Dr Michael Bowler, dated 18 August 2015, 20 August 2015 and 22 February 2016.
In his first report, Dr Bowler took a history of the injury and subsequent treatment that was consistent with the other evidence. Following an examination, Dr Bowler gave the opinion:
“l believe it is reasonable to suggest that much of Mr Hanna's current dental status
and the loss of his two teeth is likely to be the result of chronic periodontal disease. I believe it is reasonable to assume that during the period of time he was treated for
his carpal tunnel injury together with his apparent current disability would make it
difficult for him to maintain a satisfactory standard of hygiene, however I would see
this as an accentuating factor rather than a primary factor resulting in the loss of his
teeth.
…
In my opinion, the primary cause of his current condition is chronic periodontal disease modified by his drug induced xerostomia and his inability to maintain a high standard of oral hygiene due to his apparent carpal tunnel injury.”
Dr Bowler expressed the view that “on the balance of probability it was highly likely” that the applicant would be experiencing his current dental issues irrespective of the workplace injury and medication.
With regard to dental treatment, Dr Bowler expressed the opinion:
“Ideally Mr Hanna requires a temporary partial denture whilst he undergoes periodontal treatment and ceases his habit of smoking. Having read the reports it does appear that there is some doubt as to just how much of a disability Mr Hanna has in respect to his carpal tunnel injury and he may in fact have more function than it would seem and may be able to maintain a better standard of hygiene with suitable tuition through a periodontist or a dental hygienist. If he ceases smoking and improves his periodontal status I would estimate this would take of the order of six to twelve months following which he may be suitable for dental implants which require approximately six months to integrate.”
In his first supplementary report, Dr Bowler was asked to respond to surveillance footage and asked whether the applicant would be able to maintain a satisfactory standard of hygiene. Dr Bowler responded:
“The surveillance documentation was extremely revealing and also rather disappointing. I note with interest that in particular on the day of his consultation with me in Sydney, namely Friday 27 July, 2015, he was observed seemingly quite able to use both hands satisfactorily.
When Mr Hanna presented I noted that he was seemingly unable to use either hand at all. I did not mention this in the report of 18 August as I felt it was somewhat outside of my field. Mr Hanna seemed to require significant assistance from the Lebanese interpreter who attended with him, to remove his jacket and at one stage to open the doors to allow him to use the lavatory at Medicins Legale. I was left with the impression that he was completely unable to use his hands at all. With this disability in mind, I commented that it would make it difficult to maintain a satisfactory standard of hygiene.
Having read the surveillance documentation it would appear that, rather sadly, Mr Hanna has attempted to defraud GIO Workers Compensation with a contrived disability relating to his carpal tunnel surgery.
I think there is little doubt that Mr Hanna would be as able to maintain a satisfactory standard of hygiene as would any other fully capable patient. The major problem for him is his poor oral hygiene and his smoking habit.”
In his report of 22 February 2016, Dr Bowler was asked to comment on additional surveillance footage and responded that the opinion set out in his report of 20 August 2015 had been significantly reinforced. Dr Bowler said the applicant appeared to be able to use both hands quite competently and would be perfectly capable of maintaining a satisfactory standard of oral hygiene.
Dr Bowler said:
“Mr Hanna alleged at his initial interview with me on 24/7/15 that he had been unable to maintain a good standard of oral hygiene due to significant difficulties using his hands following his carpal tunnel surgery. I think this is most unlikely to be the case and, in my opinion, having viewed the surveillance video footage, I think it is far more likely that the loss of Mr Hanna's teeth is attributable to his very poor oral hygiene and his history of heavy smoking (which is also borne out by the video footage). Mr Hanna would not be a candidate for dental implants due to his oral hygiene issues and his heavy smoking. The failure rate in such patients is unacceptably high. I would reinforce my earlier comments that on the balance of probability, l think it is highly likely Mr Hanna would be experiencing his current dental issues irrespective of the work place injury, his medication and his alleged disability with his hands.”

Applicant’s submissions

Mr Tanner noted that the applicant had undisputed bilateral carpal tunnel injuries and had undergone surgeries on both sides. As a result of the injury to his upper extremities the applicant was unable to attend to appropriate dental hygiene and the condition of his teeth had deteriorated. The applicant sought compensation for the costs of treatment for that condition.
Mr Tanner observed that there was no dispute that the applicant’s dental condition required significant attention. The respondent’s stance was based upon surveillance material from 2014 and 2015. Mr Tanner submitted that the surveillance material was of no assistance in determining whether the applicant had neglected his dental hygiene prior to or after the surveillance.
It was observed that the applicant had been assessed by an AMS as having 74% WPI to his upper extremities as a result of the injury. Mr Tanner described this as a “severe” impairment and “almost unheard of”. The assessment was made in the knowledge of the surveillance.
Mr Tanner referred me to the opinion given by the respondent’s expert, Dr Bowler that the period in which the applicant was treated for his carpal tunnel injury and his apparent current disability would have made it difficult for him to maintain a satisfactory standard of hygiene. Dr Bowler described this as “an accentuating factor” rather than a primary factor in the loss of the applicant’s teeth. Mr Tanner observed, however, that the applicant was only required to establish a “material contribution” from the injury
Although Dr Bowler considered the primary cause of the applicant’s current condition was the chronic periodontal disease, this was said to be modified by the drug induced xerostomia and inability to maintain a high standard of oral hygiene due to the carpal tunnel injury. Mr Tanner noted that the applicant’s injury was not in dispute and submitted that the opinion given by Dr Bowler established with absolute clarity that there was a work connection to the applicant’s dental health.
It was noted that Dr Bowler had changed his opinion based on the video evidence presented to him. Mr Tanner submitted, however, that it was not possible to say upon viewing that video whether the applicant was able to brush his teeth.
Mr Tanner referred to the evidence of the treatment the applicant underwent for his carpal tunnel injury as set out above. Dr Dona’s reports indicated that the applicant had developed CRPS and reported increasing numbness in his fingers resulting in him dropping things including his coffee cup and cigarettes. Mr Tanner submitted that if the applicant was having difficulty with that kind of passive activity it would explain the difficulty the applicant had in brushing his teeth. Mr Tanner noted that these symptoms had been reported to Dr Dona prior to any surveillance material.
Mr Tanner referred me to the evidence from Dr Adler and his diagnosis of CRPS features in both hands in 2011. This evidence confirmed that the applicant would be avoiding use of his hands and was dated more than two years prior to the surveillance.
Mr Tanner also referred me to the evidence from Dr Nasr describing the applicant’s experience of pain, weakness and swelling. As the applicant’s general practitioner, Dr Nasr would have seen the applicant regularly and been in a position to gauge the applicant’s symptoms. The applicant was prescribed Panadeine Forte, topical ketamine and Lyrica to address his pain. Mr Tanner noted that there was no countervailing evidence regarding the applicant’s condition during this period.
It was noted that the applicant was referred to another pain management specialist, Dr Lam in November 2013. Dr Lam’s involvement preceded the surveillance. Dr Lam described the applicant experiencing constant pain, paraesthesia, swelling, hyperhidrosis and stiffness. The applicant’s pain seemed to be better with rest and exacerbated by lifting, carrying things and using his arms. Mr Tanner described this evidence as consistent with the applicant’s claim that the vigorous activity of brushing his teeth exacerbated his symptoms.
Mr Tanner referred to the report of Dr Lam dated 29 July 2015 which referred to the applicant being unable to brush his teeth, resulting in poor dentition. Mr Tanner described this as a contemporaneous history of the applicant being unable to brush his teeth. It was submitted that none of the activities shown in video surveillance were the same kind of manual activity as brushing teeth. Although at different times the applicant was seen using his hands in passive activities, that did not discount the applicant’s actual experience of pain as accepted by the AMS.
Mr Tanner observed that Dr Naim had given an opinion that the medical management of the applicant’s mood disorder and depression had consisted of Seroquel and Lexapro which may have had the effect of dry mouth contributing to a poor dental state. The applicant had also reported to Dr Naim that his oral hygiene had diminished due to the multiple surgeries for his carpal tunnel syndrome and chronic pain symptoms.
Mr Tanner submitted that this constituted evidence of the applicant being unable to brush his teeth due to his symptoms. Mr Tanner noted that there was no evidence to the contrary. Although there may have been a contribution from the applicant smoking, having regard to the authority in Murphy v Allity Management Services Pty Ltd[1], Mr Tanner submitted that the Commission need only be satisfied that the injury had materially contributed to the applicant’s poor dental condition.
[1] [2015] NSWWCCPD 49 at [57].
Mr Tanner noted the medicolegal report from Dr Kwong described even minor light touch causing severe electrical shock in the forearms and hands. The applicant had weakness in both hands and intermittent sweating. Dr Kwong thought the applicant had given a clear and consistent history and did not form the impression that the applicant was exaggerating.
Mr Tanner contrasted the opinion given by Dr Kwong with that given by Dr Bowler after being provided with the surveillance material. Mr Tanner submitted that Dr Bowler appeared to take the view that there was nothing wrong with the applicant’s upper extremities but was not qualified to give such an opinion. Although the applicant was seen using his hands to use his mobile phone and drink coffee, those activities did not involve the same vigorous manual activity or require the same grip strength as brushing teeth. Mr Tanner observed that Dr Bowler’s reports were provided prior to the AMS assessment.
Mr Tanner submitted that the applicant had provided uncontested contemporaneous evidence to his treating practitioners that he had stopped brushing his teeth due to the injury. The history of smoking did not detract from the contribution from pain, weakness in grip and dry mouth. Dr Bowler was not a surgeon, neurologist, or pain management specialist and was not qualified to offer any view as to whether the applicant’s pain prevented him from brushing his teeth.
Mr Tanner submitted that Dr Reiter’s opinion was inconsistent with the subsequent MAC and the evidence of the applicant’s treating practitioners. The MAC issued by Dr Crocker was presumed to be conclusively correct as to the degree of permanent impairment resulting from the injury.
Mr Tanner noted the more recent involvement of Dr Millons who in his first report noted difficulty making a fist and grip problems. The applicant was unable to control a pen because of weakness. Mr Tanner submitted that this was a clear record of the applicant’s hands being incapacitated. As a matter of common sense if the applicant was unable to grip a pen he would be unable to grip and use a toothbrush.
Mr Tanner submitted that the respondent’s case rested on a limited window of surveillance. The respondent’s evidence did not address the period before or after the surveillance conducted. Although Dr Millons initially formed the impression of severe incapacity he did suggest a further period of surveillance. No further surveillance was conducted. Dr Millons’ original opinion was consistent with the evidence of the applicant’s treating practitioners and the AMS.
Mr Tanner submitted that it was not necessary for the applicant to have a current diagnosis of CRPS in order to succeed in the current proceedings.
Mr Tanner also referred me to the medicolegal opinion of Dr Argryou.
It was submitted that the dental treatment proposed by Dr Liu was reasonably necessary as a result of the injury. All of the practitioners accepted that the applicant had a poor dental state. It was appropriate that that condition be remedied. The applicant sought an order that the dental treatment as quoted by Dr Liu was reasonably necessary as a result of the work injury.

Respondent’s submissions

Mr Harris submitted that the MAC was only binding in respect of the degree of permanent impairment for the purposes of s 66 of the 1987 Act. The MAC was of no binding effect in relation to the functional activities the applicant was able to perform. The evidence disclosed a significant credibility issue and no evidence had been provided by the applicant as to when the damage to teeth for which dental treatment was sought actually occurred.
Mr Harris referred to the undated report of Dr Sathiakumar which revealed that the applicant had undergone extensive dental work many years earlier. The applicant had significant long-standing dental damage in respect of which no comment was provided by the applicant’s doctors.

Mr Harris submitted that the applicant’s treating practitioners had provided subjective assessments of the applicant’s complaints. Although the respondent’s doctors also initially accepted the applicant’s complaints, upon review of the surveillance material those opinions were significantly revised. The respondent’s doctors had gone into detail as to why they revised their opinions.

Mr Harris noted that Dr Lam’s examination of 29 July 2015 was inconsistent with what was shown on surveillance two days earlier. None of the applicant’s doctors had viewed the surveillance material.

Dr Millons was said to have provided a detailed summary of the surveillance footage. The footage suggested to Dr Millons that the applicant was able to use his hands normally. Although the AMS found the applicant did have CRPS inconsistently with the view of Dr Millons after reviewing surveillance footage, the MAC was not binding for the purposes of these proceedings.

Mr Harris observed that the applicant was shown using his hands and arms normally on surveillance activities performed in 2013, 2014, 2015 and 2016. It could be inferred from the surveillance that it reflected the applicant’s ability to use his hands both before and after the period of surveillance.

Mr Harris submitted that an alternative explanation for the applicant’s oral hygiene problems was found in the opinion of Dr Naim, in the applicant’s smoking habit.
Mr Harris submitted that the respondent did not just rely on surveillance material but also the opinions of its doctors, all of whom came back with strong opinions after viewing the surveillance material.

Mr Harris referred to the reports of Dr Thomson who considered the applicant’s claims had been fundamentally unbelievable from a medical viewpoint at the very outset. The surveillance films confirmed that and Dr Thomson had considered that the applicant was telling outright lies at his first examination. Dr Reiter found surveillance inconsistent with her original assessment of function. Dr Bowler related to the need for treatment to the applicant’s pre-existing periodontal disease and history of heavy smoking.

Mr Harris submitted that the best evidence was given by those doctors who had examined the applicant and viewed the surveillance film.

Having regard to the totality of the evidence, the applicant failed to discharge his onus and there should be an award for the respondent.

Applicant’s submissions in reply

Mr Tanner submitted that the MAC was conclusively presumed to be correct with regard to the degree of permanent impairment in any proceedings. Mr Tanner submitted that it was ludicrous to suggest that person with 74% WPI was perfectly well.

Mr Tanner submitted that the long-standing dental damage was irrelevant. Regardless of the applicant’s dental condition prior to 2009, the relevant question was whether there had been a deterioration in the applicant’s dental condition as a result of his inability to use a toothbrush. The respondent’s own medicolegal expert had accepted there was such an aggravation.

Mr Tanner submitted that there was no evidence of an ability to engage sufficient grip strength to brush the applicant’s teeth. Dr Bowler was not qualified to comment on orthopaedic matters.

Mr Tanner submitted that the Commission would have little difficulty accepting that a worker with 50% WPI of his right upper extremity would have difficulty wielding a toothbrush. The applicant’s own evidence was compatible with the AMS assessment.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act.
Section 60 of the 1987 Act relevantly provides:
“(1)    If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c) any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
There is no dispute that the applicant sustained an “injury” to his upper extremities. What requires determination in these proceedings is whether the applicant has sustained a consequential dental condition, and whether the treatment proposed by Dr Liu is reasonably necessary, as a result of the injury.

It is not necessary for the applicant to establish that the dental condition is in itself an ‘injury’ pursuant to s 4 of the 1987 Act. Deputy President Roche in Moon v Conmah[2] observed at [45]-[46]:

“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”

[2] [2009] NSWWCCPD 134.

In Bouchmouni v Bakhos Matta t/as Western Red Services[3], Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[3] [2013] NSWWCCPD 4.

A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[4], where Kirby P said at [461] (Sheller and Powell JJA agreeing):

“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[4] (1994) 10 NSWCCR 796 at [810].

His Honour said at [463]-[464]:

“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”

It is clear on the evidence before me that the applicant has a significant dental condition requiring treatment.
There is no contemporaneous evidence before me as to the applicant’s dental condition prior to the injury to the applicant’s upper extremities. The applicant’s evidence is that he began to experience symptoms in his upper extremities in around October 2009.
The first evidence as to the applicant’s dental condition appears in the undated report prepared by the applicant’s dentist, Dr Sathiakumar, who indicated that he initially saw the applicant on 9 July 2010. Dr Sathiakumar indicated that on that occasion, the applicant presented with generalised periodontitis and bone loss. There was no mobility in any of the teeth but the applicant had undergone extensive dental work in the past including, multiple post and crowns done in Lebanon many years earlier. This evidence indicates that the applicant’s dental condition was poor prior to the workplace injury.
A number of causes for the applicant’s poor dental condition are indicated on the evidence including a significant and long standing smoking habit.
It is well established in the case law that a compensable condition and need for treatment can arise from multiple causes. In Murphy v Allity Management Services Pty Ltd Roche DP stated[5]:
“…That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
[5] [2015] NSWWCCPD 49 at [57].
In Taxis Combined Services (Victoria) Pty Ltd v Schokman[6] the worker suffered extensive facial injuries in an assault at work which ultimately resulted in the loss of his four upper central incisors. At the time, the worker had pre-existing periodontal disease that was not related to the assault. The applicant was treated with a bridge supported by two implants. A number of years later the applicant was noted to have bone loss around the left side implant, which represented “early implantitis”, and which required treatment. After a referral to an Approved Medical Specialist for a non-binding opinion, an arbitrator found that the work injury contributed “in a material and real way to the present condition, and therefore the need for treatment.” In confirming the arbitrator’s determination Roche DP commented:

“The Arbitrator was correct to observe that the presence of a pre-existing condition did not mean that the need for treatment did not “result from” the injury in the sense discussed in Kooragang. The appellant’s submissions have ignored the fundamental principle that employers must take workers as they find them (Spigelman CJ (Bryson AJA agreeing) in State Transit Authority (NSW) v Chemler[2007] NSWCA 249 at [40]; [2007] NSWCA 249; 5 DDCR 286).
Thus, the fact that Mr Schokman had pre-existing periodontitis and poor oral hygiene, which may have been factors in him developing peri-implantitis, does not mean that the proposed treatment of the peri-implantitis is not as a result of the injury.
…
It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). More importantly, the injury does not have to be the only, or even a substantial, cause of the need for the proposed treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. As the section states, and the Arbitrator acknowledged (at [55] and other places), Mr Schokman only has to establish that the proposed treatment is reasonably necessary “as a result of” the injury. On the evidence called from Dr Roessler, he easily met that test.”

[6] [2014] NSWWCCPD 18 at [54].

The applicant claims that the work injury has made a material contribution to his dental condition and current need for treatment in several ways. First, the applicant claims that due to his carpal tunnel injury, subsequent surgeries and consequential CRPS he was unable to grip and use a toothbrush and dental floss in order to maintain adequate dental hygiene. Second, the applicant claims that he sustained a secondary psychological condition for which he was prescribed medication. The medication had the side effect of causing dry mouth or xerostomia. The applicant additionally claims his smoking increased due to the stress of his situation.
The applicant’s claim that he was unable to maintain adequate oral hygiene due to the injury to his upper extremities is challenged by the respondent on the basis of extensive surveillance material obtained over a period between June 2013 and January 2016. The respondent additionally relies on medicolegal opinions as to the effects of the applicant’s injury in light of the surveillance material.
The medical evidence set out above confirms that following the diagnosis of carpal tunnel syndrome in late 2009, the applicant underwent surgery to the right limb in early 2010. Dr Dona’s reports show that the applicant continued with symptoms such as wound discomfort, swelling and reduced grip strength for several months, although by September 2010 he was able to return to work for 4 hours per week. In November 2010, Dr Dona said the right carpal tunnel symptoms had resolved but the applicant was experiencing pain at the base of the hypothenar eminence. The left carpal tunnel symptoms were also becoming increasingly problematic.
The left carpal tunnel surgery was performed in December 2010. Symptoms on the right, however, continued to be reported throughout 2011. In September 2011, Dr Dona felt the applicant had developed CRPS and referred the applicant to pain specialist Dr Adler. Dr Adler described the applicant’s symptoms in December 2011 as including swelling, negligible active wrist movement, stiffened fingers and limited power and pinch grip. The applicant reported a stabbing pain in his left hand occurring with any movement of the forearm and wrist. Dr Adler confirmed the CRPS diagnosis.
In January 2012, the applicant described dropping things including his coffee cup and cigarettes in the context of increased numbness in the fingers. In March 2012, the applicant’s general practitioner Dr Nasr reported that the applicant had daily pain, weakness, swelling and paraesthesia in both hands.
By October 2012, Dr Dona reported that the applicant’s pain was isolated at his right pisotriquetral joint and proceeded to perform a second surgery on the right.
Up until this point, the medical evidence is consistent with the applicant’s claim that he was unable to use his hands for extended periods of time following each of the surgical procedures. The evidence is also consistent with the applicant’s claim that brushing his teeth was an extremely difficult task and he would avoid doing it in order to avoid increased pain in his hands.
The evidence also indicates that the applicant began to consult with psychiatrist Dr Tanveer Ahmed during this period.
There is no evidence which would contradict the applicant’s claims as to his condition during this period.
In the same period, the applicant was continuing to see Dr Sathiakumar. According to Dr Sathiakumar’s evidence, at a consultation on 5 November 2012 the applicant reported that tooth number 21 had become mobile a week earlier. Although the applicant was given treatment options on this occasion he did not return for treatment until 28 January 2014. By this time tooth number 21 was severely mobile with severe bone loss around the tooth. This evidence suggests a significant deterioration in the applicant’s dental condition since Dr Sathiakumar’s first consultation with the applicant in July 2010. As noted, on that occasion there was no mobility in any teeth although there was generalised bone loss and a short root in tooth number 21.
The first surveillance of the applicant occurred in June 2013. On that occasion, the applicant was reported to have been observed driving short distances. This activity appears inconsistent with the complaints recorded in a medicolegal report dated 10 July 2013 prepared by Dr Kwong. Dr Kwong recorded that the applicant had reported that any minor light touch or use of his hands resulted in severe electrical shock in both forearms and hands.
The surveillance is more consistent with the report of Dr Adler of the same date which described functioning grips albeit poor endurance for grip. Dr Adler described the applicant’s CRPS as “late stage” and “mild” but recommended that the applicant continue treatment with topical ketamine and biphosphenate.
It is noted that the applicant requested referral to a different pain medicine specialist not long after Dr Adler’s report, apparently due to dissatisfaction with discrepancies in the report. Dr Lam saw the applicant in November 2013 on which occasion the applicant reported ongoing symptoms including pain, swelling, sweating, stiffness and cramping. Dr Lam agreed with the diagnosis of CRPS and described the applicant as a genuine patient.
In early 2014, Dr Reiter saw the applicant. Dr Reiter said the applicant did not meet the criteria for CRPS but presented with chronic non-specific pain affecting his hands and forearms. In the weeks before Dr Reiter’s report, the applicant had been observed driving, holding an umbrella and holding and using a mobile phone. Between 14 and 17 July 2014, the applicant was again observed carrying items in his hands, driving, holding keys, opening and closing car doors, and holding a nozzle to refuel his car with petrol.
The activities shown on the surveillance material during this period are very difficult to reconcile with the applicant’s presentation at the examination by Dr Thomson only a couple of days earlier on 10 July 2014. At that examination, the applicant claimed that he could not use his hands for anything and they were completely devoid of any power/strength. Dr Thomson said it was “inconceivable that the applicant could neither flex nor extend the digits of both hands as alleged in the face of the huge forearm muscle bulk plainly evident”.
Dr Nasr responded to Dr Thomson’s report saying he advised Dr Thomson that the applicant could do things but usually had severe pain and swelling for some time afterwards. The applicant was said to be limited in repetitive use of the hands. Dr Nasr’s advice to Dr Thomson suggests that applicant remained symptomatic and some restriction in the use of his hands but is inconsistent with what the applicant himself had reported and demonstrated to Dr Thomson.
After reviewing the surveillance films, Dr Thomson formed the view that the applicant had been telling lies when he saw him and effectively perpetrating a fraud. Dr Reiter expressed a similar view observing that at her examination, the applicant was not able to passively make a full range of movement in his fingers, such that he could not do a full extension or make a full fist. This was said to be inconsistent with the footage which showed the applicant holding and using a mobile phone his right hand, as well as holding an umbrella in his right hand.
Dr Bowler saw the applicant during a period of surveillance conducted in July 2015 in which the applicant was seen using his hands whilst driving, drinking coffee, smoking, carrying objects and using a mobile phone. The applicant was also observed opening, closing and loading items into the boot of his car and carrying and operating a remote control toy car and carrying a small toolbox. Dr Bowler said in a subsequent report that the applicant had presented himself at the first consultation as seemingly unable to use either hand at all. The applicant had required significant assistance to remove his jacket and open doors to use the lavatory. Dr Bowler also formed the view that the applicant had attempted to defraud the insurer by contriving disability.
A MAC was issued by Dr Crocker in June 2016, several months after the last period of surveillance in January 2016. Dr Crocker was aware of the surveillance material and said he had noted photographic and written documentation related to this. Dr Crocker noted that the activities shown were not physically demanding, there had been a passage of time since the surveillance and that the applicant’s medication would have a bearing on his function. I accept that the assessment of permanent impairment made by Dr Crocker on the basis of his examination of the applicant in June 2016 was unusually and significantly high at 74% WPI.
Section 326 of the 1998 Act provides:
“(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned—

(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
On this basis, I accept that the MAC is conclusive evidence as to the degree of permanent impairment in the applicant’s upper extremities on and from the date of the certificate. The outcome of these proceedings does not turn on the degree of permanent impairment. The MAC does, however, form part of the evidence I am obliged to consider.
Having weighed the evidence, I have formed the view that from the time the injury was diagnosed until approximately mid 2013, the applicant experienced significant symptoms and restrictions in his hands which would be likely to have had a material impact on the applicant’s ability to maintain adequate oral hygiene.
From mid-2013 until early 2016 I am not satisfied that the applicant presented a complete and honest account of his functional capabilities and symptoms to the medicolegal experts who examined him. Whilst I am satisfied that the applicant developed CRPS following his surgeries and at times had genuine symptoms of the kind described to the experts, I am not satisfied that they were being experienced to the degree which was represented at the expert examinations, having regard to the functional capabilities shown on the surveillance video during the same periods.
Whilst I would not infer from the surveillance material that the applicant had normal or symptom-free use of his hands during the periods of observation, I do accept that the applicant exaggerated the extent of his current symptoms and disabilities during the medicolegal examinations by Dr Reiter, Dr Thomson and Dr Bowler.
The findings above are not inconsistent with the findings of the AMS Dr Crocker in June 2016. They do, however, cast doubt over the credibility of the applicant’s other evidence and the histories and symptoms reported to the other practitioners involved in the applicant’s case.
Dr Naim saw the applicant in early 2015. Dr Naim expressed the view that the applicant’s dental hygiene had been compromised by the inability to use his hands and fingers to carry out adequate oral hygiene techniques. Dr Naim accepted that this would have resulted in advancement of the applicant’s periodontitis.
It is of note that Dr Naim also took a history of the applicant being prescribed anti depressive medications. Dr Naim said that xerostomia caused by the medications may have resulted in deterioration of the applicant’s dental status however he would have expected to see more evidence of decay in response to dry mouth.
A similar view was expressed by Dr Bowler in his first report prior to seeing the surveillance materials. Dr Bowler found that the applicant’s apparent current disability would make it difficult for him to maintain a satisfactory standard of hygiene. Dr Bowler thought this would be an accentuating factor in the loss of his teeth. Dr Bowler said the primary cause of the applicant’s current dental condition was chronic periodontal disease modified by his drug induced xerostomia and his inability to maintain a high standard of oral hygiene due to his apparent carpal tunnel injury.
As noted above, Dr Bowler reversed that opinion in his supplementary reports. Dr Bowler ultimately formed the view that it was most unlikely that the applicant was unable to maintain good oral hygiene due to limited use of his hands. Dr Bowler said it was far more likely that the loss of the applicant’s teeth was attributable to his very poor oral hygiene and his history of heavy smoking. Dr Bowler thought it was highly likely that the applicant would be experiencing his current dental issues irrespective of the workplace injury, his medication and his alleged disability with his hands.

Dr Argryou’s opinion is consistent with that expressed by Dr Naim and initially expressed by Dr Bowler. Dr Argryou accepted that the applicant was not able to properly take care of his teeth due to not being able to grip a toothbrush. Dr Bowler considered the applicant has suffered significant damage since being diagnosed with bilateral carpel tunnel syndrome and bilateral complex regional pain, including tooth loss. The antidepressant medication had caused dry mouth and exacerbated negative changes in his gingival health.
Neither Dr Naim nor Dr Argryou were, however, provided with the surveillance material prior to giving their opinions. This raises serious questions around the adequacy of the factual foundation on which their opinions were given.
The history recorded by an expert does not have to correspond with complete precision to the proposition on which the opinion is based. It is a question of fact whether the case supported is sufficiently like the one under consideration to render the opinion of the expert of any value. It is a question of whether the material put to the expert represents a “fair climate” for the opinions they expressed[7].
[7] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85.
I am not satisfied that Dr Naim and Dr Argryou were given completely accurate history of the applicant’s functional capabilities following the workplace injury. I do, however, accept that the applicant’s symptoms and restrictions were largely as described at least during the period from late 2009 to mid 2013. In the period that followed, I have found that the applicant had a greater ability to use his hands than what was represented. That is not to say that the applicant did not continue with symptoms and some restrictions. In June 2016, Dr Crocker, with the knowledge of the surveillance material found 50% WPI of the right upper extremity and 47% WPI of the left upper extremity.
In his first statement, the applicant described avoiding brushing his teeth and flossing so as not exacerbate his pain and other symptoms. Whether or not he was functionally capable of holding a toothbrush and using it to brush his teeth, I am prepared to accept that the applicant avoided it for the reasons stated. This view is consistent with the evidence from Dr Nasr, Dr Lim and Dr Crocker in the period after mid-2013.
In all the circumstances, I accept that Dr Naim and Dr Argryou had a sufficiently complete history for the acceptance of their opinions. Weighing against their opinions are the revised opinions of Dr Bowler, Dr Thomsen, Dr Reiter and Dr Millons. None of these doctors have, however, addressed whether the applicant may have experienced the symptoms and restrictions he described prior to the period of surveillance. They have also not allowed for the possibility of ongoing symptoms of some degree albeit with greater functional abilities than had been represented.
The evidence of the applicant’s use of anti-depressant medication causing dry mouth, secondary psychological symptoms and the applicant’s own evidence that he increased his smoking due to the stress of his condition is not challenged.
Dr Naim and Dr Argryou do not suggest that the work injury is a substantial contributing factor to the applicant’s dental condition. The applicant appears to have been in very poor oral health prior to the injury with pre-existing periodontitis and bone loss. It has been suggested that non-work related factors such as smoking, diet, previous poor oral hygiene and the pre-existing periodontitis would have played a significant if not primary role in the current need for treatment.
As indicated above, however, the authorities only require the work injury to have made a material contribution to the current condition and need for treatment. I accept the opinions of Dr Naim and Dr Argryou that the work injury has, by compromising his ability to maintain adequate oral hygiene at least from late 2009 to mid 2013 and through the effects of his anti-depressant medication, exacerbated the applicant’s pre-existing dental condition. In this manner, I accept that the work injury has brought forward the need for the dental treatment now proposed.
No submissions were made at hearing that the treatment proposed by Dr Liu was not reasonably necessary. To the extent that an opinion of this nature was expressed by Dr Bowler in light of the applicant’s smoking habit and oral hygiene issues, I note that the plan proposed by Dr Liu includes that the applicant stop smoking and be given oral hygiene instructions. On this basis, and having regard to the considerations set out in Diab v NRMA Ltd[8] and Rose v Health Commission (NSW)[9], I am satisfied that the treatment proposed is reasonably necessary.
[8] [2014] NSWWCCPD 72.
[9] [1986] NSWCC 2; (1986) 2 NSWCCR 32.
For all of the reasons set out above, I am satisfied that the applicant sustained a consequential dental condition and that the treatment proposed by Dr Liu is reasonably necessary as a result of the work injury pursuant to s 60 of the 1987 Act.
There will be an order for the respondent to pay the costs of and incidental to the treatment plan proposed by Dr Liu in accordance with s 60 of the 1987 Act.

[2021] NSWPIC 210

25 June 2021