Herlihen and Military Rehabilitation and Compensation Commission
[2005] AATA 463
•23 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 463
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/795
GENERAL ADMINISTRATIVE DIVISION ) Re EDWARD HERLIHEN Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date23 May 2005
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
COMPENSATION – claim for ganglion on wrist – claim for carpal tunnel syndrome – ganglion removed in 1994 – applicant does not currently have a ganglion, nor carpal tunnel syndrome – neither condition would be due to service in any case – decision to deny liability affirmed
REASONS FOR DECISION
Deputy President Don Muller 1. Edward Herlihen, the Applicant, is seeking a review of determinations that:
(a)Although the Respondent accepted liability from August 1992 for the formation of a ganglion on Mr. Herlihen’s right wrist, and the subsequent surgical removal of the ganglion on 13 April 1994, liability ceased as from 13 April 1994; and
(b)The respondent is not liable for Mr. Herlihen’s carpal tunnel syndrome in his right wrist.
2. The only issue before the Tribunal is whether the Respondent is currently liable for Mr. Herlihen’s right wrist ganglion and for his right wrist carpal tunnel syndrome. Any questions relating to compensation for permanent impairment are not before the Tribunal.
3. At the hearing on 7 December 2004 Mr. Herlihen was represented by Mr. D. Honchin of Counsel, instructed by Purcell Taylor Lawyers and the Respondent was represented by Mr. C. Clark of Counsel, instructed by Sparke Helmore.
4. The Tribunal had before it the following documentary evidence:
Exhibit 1 – T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2 – Statement of Mr. Herlihen dated 12 January 2004
Exhibit 3 – Supplementary statement of Mr. Herlihen dated 30 April 2004
Exhibit 4 – Supplementary statement of Mr. Herlihen dated 19 November 2004
Exhibit 5 – Report of Dr. Watson dated 17 March 2004
Exhibit 6 – Report of Dr. Stanley-Clarke dated 7 April 2004
Exhibit 7 – Report of Dr. Cameron dated 19 July 2004
Exhibit 8 – Report of Dr. Cameron dated 6 September 2004.
5. At the hearing the following witnesses gave oral evidence and were cross-examined:
(a)Mr. Herlihen
(b)Dr. Roger Watson, Consultant in Rehabilitation Medicine
(c)Dr. John Cameron, Consultant Neurologist, and
(d)Dr. Derek Stanley-Clarke, Consultant orthopaedic surgeon
6. The material relating to Mr. Herlihen’s background is not in dispute and the Tribunal finds that:
·Mr. Herlihen was born on 20 June 1965.
·After leaving school he worked mostly as a plant operator for about ten to twelve years.
·He joined the Australian Army on 29 January 1991, at the age of 25.
·He was a rifleman in the infantry corps.
·His Army training involved extensive use of SLR and Steyr rifles, 5.56 M249 Minimi machine guns and the 7.62 mm MAG58 General Purpose Machine Gun.
·For three months between late 1992 and early 1993 he was posted to Malaysia with a rifle company.
·In 1994 he was posted to the UN Peace Keeping forces in Rwanda for six months.
·He was discharged on 29 November 1995
·He joined the Army Reserve on 10 December 1995 and served until he was discharged on 24 September 1999.
·Since leaving the Australian Army in December 1995, he has had the following occupations.
oJanuary 1996 to May 1996 he was employed as a Security Guard/Emergency Services Officer by Port Hedland Security, his duties included mobile and static patrols, gatehouse duties and alarm call response.
oMay 1996 to August 1996 Australian Defence Force (Army Reserve) as a patrolman involved in coastal surveillance, desert recognisance, public relations with pastoral producers, water testing of inland water systems, upkeep and maintenance of vehicles and equipment, general duties including concreting and lawn maintenance.
oSeptember 1996 to October 1996 MSA Security and Guards employed him as an Emergency Services Officer. His duties included mobile and static patrols, gatehouse duties, alarm call response, and communication with the public.
oNovember 1996 to October 1997, he was employed on a contract with Boral Building Services working with scaffolding and operating forklifts. He was also on a contract with CSR Readymix as a plant operator and worked on the operation and maintenance of crushers. He was also contracted to Vac-Tech Pty Ltd as a labourer and vacuum loader.
oDuring the same period he also worked on shutdowns with various companies, including AAB Engineering, Simon Carves (Mechanical and Electrical).
oFrom October 1997 to April 1998 he was employed as a trades assistant and member of the emergency response team. His duties included assisting tradespeople, grinding, welding, pipefitting.
oHe was employed by Sun Metals from October 1998 to June 1999 as a trades assistant/labourer. He worked on the car dumper and on stockpiles.
oFrom June 1999 to July 2001 he was employed by Skilled Engineering and subcontracted to Boral Asphalt as a plant operator.
Mr. Herlihen has not worked since July 2001. He receives a pension. He has been assessed as being totally and permanently incapacitated for work due to other service related conditions
7. It is Mr. Herlihen’s contention that the constant firing of machine guns and rifles during his Army training sessions in 1992, 93 and 94 either caused, or contributed to in a material degree, his right wrist problems of ganglion and carpal tunnel syndrome.
8. Mr. Herlihen gave evidence to the following effect:
·He does not know when he first noticed a lump on his right wrist but he first reported it to the Army medical staff on 18 August 1992. It may have first appeared in May or June 1992.
·From August 1992 to April 1994, he “had a bad wrist”.
·The ganglion was removed during day surgery on 13 April 1994.
·After the surgery the pain in his wrist had gone but his wrist still “felt a little tight with a little restriction in movement”. He was on “medical restriction” for four weeks and then on light duties for about six weeks.
·In about 1995 a small lump re-appeared on the same spot as the removed ganglion. It produced pain and restricted wrist movement. He rubbed it with “tiger balm” to relieve the stiffness. He took Panadol for the pain.
·In 1999 or 2000 he had a fall at work, he broke his fall by putting out his right hand. As his hand hit the ground he heard a loud “cracking sound”. He noticed a day later that the lump had gone and the tenderness had gone. He still had some restricted movement.
·The lump has not re-appeared on his wrist but he has noticed that if he does any extensive work involving his wrist, the top of his wrist, in the area of the removed ganglion, becomes sensitive to touch and the wrist joint throbs and causes discomfort and pain.
·He has also noticed some numbness and a feeling of “pins and needles” in his wrist.
9. One of the difficulties associated with determining whether Mr. Herlihen’s wrist problems are causally related to his Army service is that he really has nothing wrong with his wrist. There is no ganglion and it is extremely doubtful if he has carpal tunnel syndrome. His claim is really about assessing liability in advance in case the ganglion should flare up again, or in case he does in fact develop carpal tunnel syndrome.
10. The medical reports illustrate the point:
DR. WARREN TODD, orthopaedic surgeon, reported on 5 April 2000:
Physical Examination: There is a dorsal scar with subcutaneous thickening over the wrist. There is a full range of motion. There is no evidence of instability and no crepitus. Phalen’s test is negative.
Xray Report: Plain xrays of the wrist are normal. I organized an EMG of the hand which is borderline with no unequivocal confirmation of carpal tunnel syndrome.
In order to make sure that nothing was being missed here, I also organized a Bone Scan which again shows no increased uptake in the wrist.
DR. ROGER WATSON completed a report on 15 April 2003, in which he seemed to say that he found no injury or disease in Mr. Herlihen’s wrist, but that if there was any condition it would have been attributable to repetitive micro trauma. He said:
“The failure of neurophysiological testing to show a definite carpal tunnel picture is not unexpected in such a mild case. The absence of strongly positive findings does not exclude low grade median nerve dysfunction.
I am confident that if he returned to heavy physical work that there would be a gradual deterioration in both the wrist joint with its dorsal ganglion and the median nerve compression at the anterior aspect of the wrist joint.
Assessment of the degree of permanent impairment under the appropriate Tables 9.1 and 9.4 show no quantifiable impairment.
In summary however I believe that on the grounds of probability both wrist region related conditions are attributable to the repetitive micro trauma of his service as a machine gunner.”
11. Dr. Watson gave oral evidence to the following effect:
·He specialises mainly in pain problems associated with the spine and the joints.
·Mr. Herlihen’s complaints about his wrist are consistent with carpal tunnel syndrome.
·The literature on the causes of carpal tunnel syndrome is divided between those who believe that multiple micro trauma is a cause and those who do not. He believes that multiple micro trauma can be a cause.
·He initially thought that there was a connection between the ganglion and carpal tunnel syndrome but on reflection would only go as far as saying that they could have been due to the same cause.
·He believes that both the ganglion and the carpal tunnel syndrome could have been caused by the use of a machine gun.
12. Dr. John Cameron examined Mr. Herlihen on 16 July 2004. He provided reports dated 19 July 2004 and 6 September 2004. He also gave oral evidence. His written reports contain the following passages.
“Mr Herlihen was a solidly-built man. There was no evidence of wasting or weakness in his hands or upper limbs or over his shoulder girdle. He had normal strength in all muscle groups in his hands and upper limbs. He had normal reflexes. He had a full range of neck and shoulder movements. I could not palpate any abnormalities any cervical or supraclavicular regions. Both hands sweated normally. He had a glove-like impaired sensation to light touch and pain involving both palmar and dorsal aspects of the hand and all digits to the wrist. The ulnar nerve was mildly tender at the right elbow. Carpal tunnel compression produced no symptoms in his hands. There were no reflex changes. There were no long tract signs.
I performed conduction studies on both hands and upper limbs and the results are enclosed. These studies demonstrated very mild median disturbances at both wrists and a mild ulnar disturbance at the left elbow.
The ulnar study at the right elbow was normal.
It would appear Mr Herlihen has developed very mild bilateral carpal tunnel syndrome since his discharge from the ARA. It would also appear he probably has very mild ulnar nerve irritation at both elbows causing some sensory symptoms also from both hands
There were no objective findings on today’s examination to support bilateral carpal tunnel syndrome nor ulnar nerve disturbance.
This man’s bilateral carpal tunnel syndrome is due to constitutional factors namely he has small anatomical carpal tunnels. It is conceivable that some of his work as a construction labourer following his discharge from the ARA may have contributed to a mild degree to the subsequent development of bilateral carpal tunnel syndrome and ulnar irritation at the elbows.
I do not believe there is any evidence presented to suggest that this man’s ongoing enlistment in the Army Reserves until September 1999 would have contributed to his bilateral carpal tunnel syndrome and possible nerve entrapment.
As stated in my report dated 19 July 2004, I stated that this man’s bilateral carpal tunnel syndrome was due to constitutional factors. There may have been some contribution to his developing bilateral carpal tunnel syndrome and ulnar disturbance (at the left elbow) caused by his work at a construction site and mining activities at the time. It appears this working activity was quite manually intense and heavy and if anything were to aggravate his pre-existing carpal tunnel syndrome, it would have been this type of activity and not his work in the Army Reserves.”
13. During his oral evidence Dr. Cameron made the following further points:
·80% of his patients came from the general population but he sees a “moderate” number of service personnel.
·He examines about 200 service personnel per year.
·He averages about eight tests per day.
·Bilateral carpal tunnel indicates that it is constitutional in origin. If there is symmetrical disturbance then it is safe to say it is due to constitutional factors. People are usually one hand dominant.
·Severe trauma can compress the nerve and cause carpal tunnel syndrome. For example, a broken wrist.
·Carpal tunnel syndrome does not arise out of low grade trauma – studies show that there is no link. Carpal tunnel has nothing to do with repetitive work.
·The ganglion on the back of the wrist did not have anything to do with carpal tunnel.
14. Dr. Stanley-Clarke examined Mr. Herlihen on 24 March 2004. He provided a report dated 7 April 2004 in which he said:
“There was no evidence of any wasting with specific reference to his thenar muscles innervated by the medial nerve and also to his intrinsics innervated by the ulnar nerve.
There was a small barely visible well-healed scar over the dorsal radial aspect of his wrist within a wrist crease. There was no swelling.
His pectoral girdle had a full range of movement.
His elbow joint had a full range of movement.
His ulnar nerve was palpable behind the medial epicondyle and was not sensitive.
He had full pronation and supination.
To clinical examination he had no restriction in flexion or extension of his wrist and no restriction in the range of radial deviation or on the deviation of his wrist joint.
He had no restriction in the range of movement of his fingers, such that he had a full and normal grip measured at 5. He had normal pinch key grip and normal latch key grip.
He had normal finger abduction and normal finger adduction, all measured at power grading 5.
His Tinel’s and Phalen’s signs at the wrist were negative.
INVESTIGATIONS:
Nerve Conduction Study (15 January 2000): The comment was, ‘A borderline normal study’. There was no evidence of definitive right carpal tunnel syndrome.
SUMMARY AND ASSESSMENT:
Mr Herlihen developed a ganglion in the early 1990s which necessitated excision. This ganglion occurred in the classical site on the dorsal radial aspect of his wrist. He was warned at excision that it could recur and it did some years later. Following trauma it burst and has not re-appeared since. This is a fairly normal, natural history of a ganglion.
There is no statistical relationship between ganglions and work occupations. Ganglions occur at any age but most commonly in young females spontaneously. There is little doubt, however, that a ganglion, once present, can be aggravated and become symptomatic painfully with repetitive wrist activity.
Mr Herlihen has also, in my opinion, symptoms clinically suggestive of a right carpal tunnel syndrome. Once again, there is no statistical relationship between work occupation and the development of this condition and can occur in the labouring or non-labouring individuals. However, repetitive forceful use of the wrist can aggravate the condition.
Mr Herlihen’s condition is mild and affecting the sensory component of the median nerve mainly. There is some confusing clinical information in that the little finger also goes numb. This is not innervated by the median nerve and is innervated by the ulnar nerve which does not traverse the carpal tunnel.
He does give some symptomatology of some aching discomfort in relation to the medial aspect of his right elbow and there may be a suggestion of him developing a degree of ulnar neuritis.
The nerve conduction studies do not confirm a carpal tunnel syndrome. However, based on the history, especially the nightly awakening, and if this occurred on a regular basis with disturbance, I would advise surgical decompression.
There is no relationship between the ganglion and the symptoms of his carpal tunnel syndrome. The ganglion and its subsequent excision has not resulted in any permanent impairment. In terms of his claimed loss of dexterity, this is as a consequence of his carpal tunnel syndrome. Although I was unable to determine any objective pathology, his symptomatology, in my opinion, is consistent and fairly classical of that of a carpal tunnel syndrome and this would give rise to some loss of dexterity specifically in relation to his thumb.”
15. During his oral evidence Dr Stanley-Clarke made the following further points:
· The aetiology of a ganglion is unknown. He sees it mainly in teenage girls. Work does not cause it but may irritate it.
· There is no nexus between this ganglion and carpal tunnel.
· He did not accept the repetitive micro trauma theory about the cause of carpal tunnel syndrome. He said it was due to pressure on the nerves running through the carpal tunnel, caused by a relatively narrow carpal tunnel. It is usually brought on by excess fluids in the carpal tunnel or by the ageing process. It only affects the middle finger, index finger and thumb. It does not affect the little finger or outer half of the ring finger.
· As far as the operation of a machine gun being the cause of carpal tunnel syndrome, he has never seen it, or heard of it, but he agreed that it could aggravate an existing carpal tunnel.
· As far as causation is concerned there is no link between types of work and carpal tunnel syndrome.
16. Although there was some dispute between the expert medical witnesses as to the possible causes of ganglions and carpal tunnel syndrome, they were in agreement on the following matters:
(a)Mr. Herlihen does not currently have a ganglion on his right wrist.
(b)There is no evidence of wasting or weakness in Mr. Herlihen’s hands or upper limbs.
(c)There is no objective finding to support a diagnosis of carpal tunnel syndrome nor of ulnar nerve disturbance.
17. The diagnosis of possible carpal tunnel syndrome has come about as a result of Mr. Herlihen describing a set of symptoms which suggest that he may suffer from carpal tunnel syndrome. Dr. Cameron actually diagnosed carpal tunnel syndrome in both of his hands on this basis.
18. As to the cause of ganglions and carpal tunnel syndrome I prefer the opinions of Dr. Cameron, who performs a large number of conduction studies (tests) each year as part of his medical practice and Dr. Stanley-Clarke who operates on wrists and has had the opportunity to observe such physiological features as nerves running through the carpal tunnel and swelling associated with the syndrome.
19. Consequently, I find that:
(a)Mr. Herlihen does not have a ganglion.
(b)Mr. Herlihen does not have carpal tunnel syndrome.
(c)If Mr. Herlihen’s ganglion should appear again in the future it will not be due to his past Army service.
(d)If Mr. Herlihen does eventually develop carpal tunnel syndrome it will not be due to his past Army service.
20. The decisions to reject claims for compensation for ganglion and carpal tunnel syndrome of the right wrist are affirmed.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 7 December 2004
Date of Decision 23 May 2005
Counsel for the Applicant Mr. D. Honchin
Solicitor for the Applicant Purcell Taylor
Counsel for the Respondent Mr. C. Clark
Solicitor for the Respondent Sparke Helmore
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