Hawatt v Pro Earthworx Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Hawatt v Pro Earthworx Pty Ltd [2023] NSWPIC 262
APPLICANT:	Rodney Hawatt
RESPONDENT:	Pro Earthworx Pty Ltd
Member:	John Isaksen
DATE OF DECISION:	6 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; order sought by worker for the respondent to meet cost of left carpal tunnel release; respondent disputes that proposed surgery is reasonably necessary as a result of work injury; reference to Murphy v Allity Management Services P/L as to whether injury materially contributes to the need for surgery; Held – proposed surgery is reasonably necessary as a result of work injury; order made pursuant to section 60(5).
determinations made:	The Commission determines: 1. The left carpal tunnel release and neurolysis proposed by Prof Deva is reasonably necessary as a result of the injury sustained by the applicant on 21 November 2018. The Commission orders: 2. Pursuant to s 60 (5) and s 61 (4A) of the Workers Compensation Act 1987, the respondent is to pay for the costs of the left carpal tunnel release and neurolysis proposed by Prof Deva, and reasonable expenses related to that surgery.

STATEMENT OF REASONS

BACKGROUND

Rodney Hawatt, the applicant in these proceedings, sustained an injury to his left wrist on 21 November 2018 while employed with the respondent, Pro Earthworx Pty Ltd.
Mr Hawatt has undergone two operations on his left wrist, the cost of both procedures having been met be the respondent. Those operations were both performed by Prof Deva as follows:
(a) an excision of a recurrent volar wrist ganglion, release of the Guyons canal and neurolysis of the left ulnar nerve on 1 August 2019, and
(b) exploration of the left wrist, excision of multiple chondromas and stabilisation of the left wrist on 5 February 2020.
Prof Deva has now recommended that Mr Hawatt undergo a left carpal tunnel release and neurolysis.
The respondent disputes that the proposed surgery is reasonably necessary as a result of the injury sustained by the applicant.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the left carpal tunnel release and neurolysis proposed by Prof Deva is reasonably necessary as a result of the injury sustained by the applicant on 21 November 2018 (s 60 of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 11 May 2023. 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.
Mr Tanner appeared for the applicant, instructed by Mr Haider. Mr Grimes appeared for the respondent, instructed by Mr Scott Murray.
The respondent objected to a report of Prof Deva dated 30 March 2023 being admitted as a late document. Submissions on this issue were made by counsel for both parties and reasons were recorded as to why I allowed that report into evidence.
However, to ensure procedural fairness I made directions at the conclusion of the hearing on 11 May 2023 as follows:
1.     The respondent is to file and serve any further report from Dr Rimmer in response to the report from Prof Deva dated 30 March 2023, as well as any further submissions in response to the further report from Dr Rimmer, by 25 May 2023.
2.     The applicant is to file and serve any submissions in reply to the respondent’s submissions by 1 June 2023.
3.     Liberty to apply by either party in respect of any issue which arises from these directions.
4.     A decision will be delivered after 1 June 2023.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    the Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 31 March 2023;
(d)    a bundle of correspondence between the lawyers for the applicant and respondent from 29 March 2023 to 5 May 2023 relied upon by the respondent;
(e)    a profile of Dr Rimmer printed from the internet and relied upon by the applicant, and
(f)    Application to Admit Late Documents filed by the respondent on 30 May 2023.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant.

The applicant’s evidence

Mr Hawatt has provided a statement dated 14 February 2023.
Mr Hawatt states that he owns the respondent and is employed by the respondent as a director. He states that his duties involve operating an excavator and managing the excavation and earth moving team.
Mr Hawatt states that in or around January 2016 he began to experience pain in the left wrist area, which was shooting up his forearm. He states that he underwent surgery to remove a ganglion, and that his symptoms resolved and he did not have any time off work.
Mr Hawatt states that on 21 November 2018 while in the course of his employment at a job site at Rockdale the posterior of his left wrist was struck by a garbage truck which was collecting residential bins and he felt immediate pain in the left wrist and left shoulder.
Mr Hawatt confirms that he has undergone two operations to his left wrist which have been performed by Prof Deva, being on 1 August 2019 and 5 February 2020. Mr Hawatt states that in the year following the second bout of surgery he began to develop a lump on the side of his little finger and “began to experience an increase in symptoms of my left carpal tunnel and numbness in my wrist.” He states that he also began to find it difficult to open and close his left wrist, which made it hard to grip items with his left hand.
Mr Hawatt states that the insurer of the respondent ceased the payment of weekly benefits of compensation in February 2022. He states that he returned to work driving a tipper truck for three days a week. He states that he ceased work in late November 2022 because driving even for short periods was aggravating his left wrist. He states that he undertakes self-managed therapy and home-based exercises, but this only provides him with temporary relief.
Mr Hawatt states that he wants to undergo the surgery proposed by Prof Deva because he lives in constant pain and agony with his left wrist.

The medical evidence

The clinical notes from Campsie Medical and Dental Centre are in evidence and begin with an entry on 20 February 2013.
There is an entry made by Dr Khuu on 14 January 2016 of: “pain of the left wrist area shooting up the forearm for 2 days.”
There is an ultrasound report of the left wrist dated 15 January 2016 which reports a giant cell tumour.
There is a referral from Dr Khuu to Dr Leonard Kuo dated 20 January 2016 which refers to Mr Hawatt presenting “with left wrist has giant cell tumour for 2 weeks.”
There is an entry made by Dr Yan on 14 March 2017 of:
“L wrist ganglion - operated by Dr Wang (hand surgeon) last year still has ongoing lump and pain in L wrist”
The next entry in the clinical notes from Campsie Medical and Dental Centre is on 26 November 2018 and there is a record of Mr Hawatt having pain in the left wrist “after being bit by a garbage truck.” The entry also refers to Mr Hawatt having seen “Dr Chan at Canterbury re some small lesions (probably ganglions)”.

There is an entry made by Dr Cheung on 9 July 2019 which includes the following:
“For work cover: patient got angry because he did not wants me to state he has had a pre-existing condition to his L injured wrist, namely multiple cystic lesions shown on MRI report.”
A MRI scan report dated 18 February 2019 includes the following in the ‘Conclusion’:
“Extensive multiloculated cystic lesion surrounding the dorsal and to a larger extent the volar aspect of the wrist…. Whilst highly unusual in terms of extent, this is favoured to represent widespread ganglion formation.
There are features of compression of the ulnar nerve within the Guyon canal with resultant neurogenic oedema of the interosseous muscles and to a lesser extent the hypothenar muscles.”
A nerve conduction study report dated 18 August 2020 concludes that there is neurophysiological evidence of:
(a) moderate bilateral median nerve entrapment at the wrist, consistent with carpal tunnel syndrome, and
(b) a left ulnar neuropathy of an indeterminate level.
Dr Lai, general plastic and reconstructive surgeon, has provided a report at the request of Mr Hawatt’s lawyers dated 13 September 2022. The examination was conducted by video link.
Dr Lai records that Mr Hawatt has never had any previous injuries or operations. Dr Lai does refer to the ultrasound of the left wrist taken in 2016, although he places that report in June of that year and not January.
Dr Lai records that Mr Hawatt started to develop a lump on the dorsal ulnar side of his right wrist and an increase in symptoms of left carpal tunnel syndrome in the 12 months which followed the second operation in February 2020.
Dr Lai writes that his examination of Mr Hawatt was conducted via video link. He records that left wrist active motions were restricted compared to the right wrist and that Mr Hawatt indicated the thumb, index and middle fingers of the left hand, as well as the radial side of the left palm, was numb in sensation in comparison to the contralateral side.
Dr Lai opines that Mr Hawatt has left carpal tunnel syndrome which is causally related to his work injury. The reasons provided by Dr Lai for this opinion are:
“(i) it is well documented that carpal tunnel syndrome can occur after any trauma (including surgery) to the upper limb;
(ii) it is well documented that your client has suffered an injury to his left wrist dorsum with subsequent surgery. Your clients symptoms of left carpal tunnel syndrome developed following the initial surgery.”
Prof Deva has provided a report at the request of Mr Hawatt’s lawyers dated 30 March 2023.
Prof Deva writes that Mr Hawatt presented to him in August 2019 with a severe left ulnar nerve palsy and history of a wrist injury from blunt trauma. He confirms that he performed two surgical procedures in August 2019 and February 2020.
Prof Deva writes that he saw Mr Hawatt again on 28 March 2023 and found that Mr Hawatt had good and pain free range of movement of the left wrist. Prof Deva writes that Mr Hawatt continues to suffer paresthesia both in ulnar and median nerve distribution. Prof Deva refers to nerve conduction results performed in August 2020 which documents bilateral moderate carpal tunnel compression and left ulnar neuropathy consistent with his patient’s injury.
Prof Deva opines:
“I agree with Dr Lai that the development of carpal tunnel compression on the left side is causally related to his injury and subsequent surgery. This is a common consequence of both trauma and post surgery. His ulnar nerve compression, developing after his injury and now well treated, is further evidence that his injury caused compressive neuropathy.”
Prof Deva writes that the proposed left carpal tunnel release is an accepted and appropriate treatment for carpal tunnel compression. He states that splinting and steroid injections are alternative treatment, but do not work well in post traumatic compression. Prof Deva writes that Mr Hawatt’s disease is progressing and that further delay risks permanent damage to his median nerve.
Dr Rimmer has provided reports at the request of the respondent dated 10 March 2021, 19 November 2021 and 11 May 2023.
In his report dated 10 March 2021, Dr Rimmer writes that Mr Hawatt denied a previous history of injury to the left wrist. Dr Rimmer does not provide an opinion on the cause of any left carpal tunnel syndrome without Mr Hawatt undergoing x-rays of both wrists.
The second report from Dr Rimmer dated 19 November 2021 is provided after he has viewed X-rays of both wrists dated 20 October 2021 and a MRI scan of the left wrist dated 18 October 2021. Dr Rimmer writes that the X-ray of the left wrist showed deformity of the distal radius and distal ulna. He writes that the MRI scan of the left wrist showed marked synovitis involving the distal radioulnar joint and mid carpal joint, consistent with an inflammatory arthropathy which is not work-related.
Dr Rimmer opines that the clinical diagnosis of the work injury is “at most” a soft tissue injury to the left wrist. Dr Rimmer writes:
“… employment has no relationship with the suggested carpal tunnel syndrome. The most common cause is that it is idiopathic, which is the case here, as confirmed by the fact that the nerve conduction studies stated there was right carpal tunnel syndrome of equal severity.”
Dr Rimmer also opines that the gross deformity of Mr Hawatt’s left wrist is due to a pre-existing condition of multiple chondromas and inflammatory arthropathy, both of which are completely non-work related and have no relationship to the events of 21 November 2018.
Dr Rimmer considers that the only treatment for Mr Hawatt is a home based exercise program for the left hand and wrist.
The final report from Dr Rimmer dated 11 May 2023 is provided after Dr Rimmer has had the opportunity of considering the report from Prof Deva dated 30 March 2023.
Dr Rimmer reiterates his previous opinion that striking the dorsal aspect of the left wrist does not cause bilateral carpal tunnel syndrome. He also reiterates that the overwhelming cause of carpal tunnel syndrome in the majority of individuals is that it is idiopathic, and he believes that “without question” that is the case with Mr Hawatt.

A summary of submissions

Mr Tanner for the applicant submits that Prof Deva in his capacity as treating specialist is in the best position to provide an opinion on the causal relationship between Mr Hawatt’s condition and his work injury and the subsequent need for surgery. Mr Tanner submits that Prof Deva offers his opinion with specific expertise in hand surgery in response to specific pathology which he is required to treat.
Mr Tanner submits that the preponderance of expert evidence which has specific knowledge and experience in hand surgery (being Prof Deva and Dr Lai) supports the claim made
by Mr Hawatt. This expert evidence should be preferred over the opinion provided by Dr Rimmer, who does not have expertise in hand surgery.
Mr Tanner also compares the thorough details set out by Dr Lai in his report compared to the superficial details and bold assertions set out in the reports from Dr Rimmer.
Mr Grimes for the respondent submits that the applicant cannot succeed because the expert opinion which the applicant relies upon has not been provided in a fair climate. Neither Prof Deva or Dr Lai acknowledge in their reports that Mr Hawatt had previous problems with his left wrist which led to surgery in 2016 and which was still causing him pain in March 2017.
Mr Grimes submits that Mr Hawatt had a significant pre-existing condition in his left wrist which continued to be symptomatic in March 2017, yet neither Prof Deva or Dr Lai consider whether the need for the carpal tunnel release could be as a result of that pre-existing condition rather than as a result of the work injury because they have not been appraised of Mr Hawatt’s medical history.
Mr Grimes also submits that neither Prof Deva or Dr Lai have considered why the nerve conduction studies have identified the right wrist as also having median nerve entrapment, but there was no injury sustained to the right wrist on 21 November 2018.
Mr Tanner in reply submits that it is well recognised that there can be multiple causes for a medical condition, and it is only necessary for the worker to establish that the work injury is a cause for the need for medical treatment for the cost of that treatment to be met by the respondent.

FINDINGS AND REASONS

Prof Deva did not see Mr Hawatt until some nine months after Mr Hawatt sustained the injury to his left upper limb. The injury occurred in November 2018 and Dr Deva writes that Mr Hawatt presented to him in August 2019. However, Prof Deva has monitored Mr Hawatt’s condition since August 2019 and has performed two operations on Mr Hawatt’s left wrist in August 2019 and February 2020.
It is Prof Deva’s opinion that the development of carpal tunnel compression is a common consequence of both trauma and subsequent surgery.
I agree with the submission made by Mr Tanner that Prof Deva in his role as treating specialist is in the best position to provide an opinion on the causal relationship between Mr Hawatt’s condition and his work injury and the subsequent need for surgery.
I consider that considerable weight should be given to the opinion of Prof Deva because of the responsibility that he has in making a diagnosis of the conditions which Mr Hawatt presents with, assessing the cause of those conditions, and then determining what is the best treatment in response to those conditions.
I prefer and accept the opinion provided by Prof Deva in his role as treating specialist that Mr Hawatt’s left carpal tunnel compression is as a result of his work injury and subsequent surgery. My preference for that opinion is reinforced by a similar opinion which is provided by Dr Lai.
I prefer the opinions of Prof Deva and Dr Lai over the opinion provided by Dr Rimmer. Firstly, Dr Rimmer’s opinion must be discounted due to the dismissive attitude he has regarding Mr Hawatt’s injury when he opines that it is “at most” a soft tissue injury to the left wrist. This is despite there being findings on a MRI scan report of compression of the ulnar nerve within the Guyon canal and the need for Mr Hawatt to undergo two operations to treat symptoms in the left wrist.
Secondly, Dr Rimmer does not engage in a consideration of whether the injury on 21 November 2018, or the subsequent surgery which Mr Hawatt underwent, could have contributed to the left carpal tunnel compression, despite Mr Hawatt having significant symptoms in the left wrist following the work injury and the left wrist remaining symptomatic following two operations. Instead, Dr Rimmer merely regards the cause of the left carpal tunnel compression to be idiopathic.
In my view, Prof Deva and Dr Lai bring a practical analysis to the particular problems complained of by Mr Hawatt as opposed to the more general opinion from Dr Rimmer that the overwhelming cause of carpal tunnel syndrome in a majority of individuals is that it is idiopathic.
The conclusion reached by Dr Rimmer that the cause of the left carpal tunnel compression is idiopathic is at least partly based upon the findings of the nerve conduction studies taken in August 2020 which Dr Rimmer considers identifies right carpal tunnel as being of equal severity to the left.
However, Dr Rimmer recorded that Mr Hawatt said that his right wrist was asymptomatic when an examination was conducted in February 2021. Dr Rimmer did not record any abnormalities on examination of the right wrist, whereas he found numbness to light touch in the left thumb.
Dr Lai did not have the benefit of a physical examination of Mr Hawatt but he did record from his observations by video link that Mr Hawatt’s left wrist active motions were restricted compared to the right wrist and that Mr Hawatt indicated the thumb, index and middle fingers of the left hand, as well as the radial side of the left palm, were numb in sensation in comparison to the contralateral side.
Although neither Prof Deva or Dr Lai address the discrepancy in symptoms between the left and right wrists, I accept that the complaints recorded by Dr Lai and Dr Rimmer and the findings on examination made by those two experts of symptoms only in the left wrist support the conclusion reached by Prof Deva and Dr Lai that the left carpal tunnel compression is a consequence of the work injury and subsequent surgery because the left wrist was rendered symptomatic following the work injury and remained symptomatic following two operations.

The respondent also argues that the opinions of Prof Deva and Dr Lai should not be accepted because those opinions have not been provided in a fair climate. In particular, it is submitted that those experts have not considered whether the need for the carpal tunnel release could be as a result of a pre-existing condition affecting the left wrist rather than as a result of the work injury because those experts have not been appraised of Mr Hawatt’s past medical history.
I could not locate any reference in any of the material from Prof Deva of Mr Hawatt having previous problems with his left wrist.
Dr Lai records that Mr Hawatt never had any previous injuries. However, Dr Lai does record details of an ultrasound report of the left wrist dated 15 June 2016, which I accept is reference to the ultrasound report dated 15 January 2016. It is therefore reasonable to conclude that Dr Lai was at the very least appraised of some problems that Mr Hawatt had been having with his left wrist prior to the incident on 21 November 2018.
Mr Hawatt states that he began to experience pain in the left wrist area in January 2016 and had a ganglion removed from his left wrist, although he does not state when that operation occurred or who performed the surgery. However, the clinical notes from Campsie Medical and Dental Centre do not record any further attendances by Mr Hawatt for treatment for his left wrist until the work injury except for an attendance on 14 March 2017 for “ongoing lump and pain in L wrist.”
There is therefore a period of almost three years between the time when Mr Hawatt had an operation to his left wrist and his work injury, and a period of some 20 months between an isolated attendance with a general practitioner in March 2017 for pain in the left wrist and the work injury. Mr Hawatt continued to work in excavation work during those periods of times.
Mr Hawatt then sustained an injury to his left wrist on 21 November 2018 which was serious enough to warrant two operations and which has significantly restricted his capacity to undertake manual work.

71. In Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy), DP Roche said at [57]-[58]:

“…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 common sense 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).”

When the lack of any treatment required for the left wrist for a period of almost three years prior to the work injury (with the exception of one attendance upon a general practitioner some 20 months before the work injury) and Mr Hawatt’s ability to continue to work over that period is then compared to the consequences of the work injury which included two operations and a significantly restricted capacity to undertake manual work, along with the preference I have given to the clinical judgment and opinion of Mr Hawatt’s treating specialist, I am satisfied that the work injury has materially contributed to the need for the surgery proposed by Prof Deva.
Prof Deva states that left carpal tunnel release is an accepted and appropriate treatment for carpal tunnel compression. He acknowledges that splinting and steroid injections as suggested by Dr Rimmer are alternative treatments. However, Prof Deva expresses his concern that the disease that Mr Hawatt is suffering is progressing and that further delay risks permanent damage to the median nerve.
A central principle of the decision of Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC 2; NSWCCR 32 (Rose) is that: “Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.”
A similar statement was made by Neilson CCJ in Chen v Sivieng, an unreported decision in 1996, but which is referred to in the Mills practice [WCA 60.5], that medical or related treatment is reasonably necessary if it maintains the worker’s health or slow or prevents its deterioration.
Prof Deva in his role as Mr Hawatt’s treating specialist for almost four years now is in the best position to opine as to whether the proposed surgery is reasonably necessary, and I prefer and accept the opinion he provides that the proposed surgery is appropriate. He has explained the rationale for surgery and his opinion meets the test set out in Rose and Chen v Sivieng that the proposed treatment aims to alleviate the effects of the work injury and prevent further deterioration. I accept that the proposed surgery is within the “usual armoury of treatments” referred to by Burke CCJ in Rose for the treatment of carpal tunnel compression.
That there are alternative treatments available does not preclude Mr Hawatt seeking to have the respondent meet the cost of the surgery proposed by Prof Deva. Campbell CJ said in Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; NSWCCR 204 (Margaroff) at 208C that the “essential question remains whether the treatment was reasonably necessary.” I am satisfied that Prof Deva has properly explained the need for surgery and that his explanation properly meets the “essential question” that the surgery which he proposes is reasonably necessary.
There will be an order that the respondent is to pay for the costs of the left carpal tunnel release and neurolysis proposed by Prof Deva, and the reasonable expenses associated with that surgery.

[2023] NSWPIC 262

6 June 2023