Kemp v Cater Care Australia Operations Pty Ltd
[2023] NSWPIC 256
•1 June 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Kemp v Cater Care Australia Operations Pty Ltd [2023] NSWPIC 256 |
| APPLICANT: | Elizabeth Kemp |
| RESPONDENT: | Cater Care Australia Operations Pty Ltd |
| Member: | Karen Garner |
| DATE OF DECISION: | 1 June 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; disputed claim in relation to chronic regional post-electric pain disorder; Held – applied Elsworthy v Forgacs Engineering Pty Ltd that whether there is a diagnosis of chronic regional post-electric pain disorder (affecting the left upper extremity, cervical spine, ear, nose, throat and related structures and nervous system) is a matter for a Medical Assessor (MA); matter remitted to the President of the Personal Injury Commission for referral to a MA. |
| determinations made: | |
The Commission determines:
The applicant has experienced chronic pain in her upper left limb, left shoulder, left side of the neck, face and upper back.
The applicant’s pain is the result of the accepted work injury on 23 September 2014.
The issue of whether the applicant has a chronic regional post-electric pain disorder in the left upper limb, left shoulder, left sided neck, face and upper back is a matter for assessment by a Medical Assessor.
The Commission orders:
The permanent impairment claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:
Body part/s systems: left upper extremity; cervical spine;
ear; nose; throat and related structures, and nervous system (all consequential conditions (chronic pain) due to incident on 23 September 2014).
Date of injury: 23 September 2014.
The documents to be referred to the Medical Assessor are to include those attached to the:
a. the Application to Resolve a Dispute;
b. Reply to Application to Resolve a Dispute;
c. applicant’s Application to Admit Late Documents dated 17 February 2023, and
d. insurer’s Application to Admit Late Documents dated 29 March 2023.
STATEMENT OF REASONS
BACKGROUND
Elizabeth Kemp (the applicant) is aged 55 years and was employed by Cater Care Australia Operations Pty Ltd (the respondent) as a catering assistant.
On 23 September 2014, the applicant was electrocuted when she went to use a kitchen appliance during the course of her employment.
By letter dated 15 January 2021, the applicant claimed permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) of $92,950 for 42% whole person impairment (WPI) in respect of the electrocution injury on 23 September 2014. The applicant relied on reports of A/Prof Champion, electrocution injury and pain specialist, and A/Prof Jonathan Phillips, psychiatrist.
By notice dated 24 May 2021 issued pursuant to s 78 of the 1987 Act, the respondent’s insurer (insurer) disputed the applicant’s claim. The notice stated that the insurer accepted minor electrocution, tinnitus, hyperacusis and dizziness with no hearing loss. The insurer disputed complex regional pain syndrome, chronic regional pain syndrome, post electrical injury disorder, chronic post-traumatic (electrical injury) regional pain syndrome and Tourette syndrome. The insurer relied on ss 4(a), 9A, 4(b)(i), 4(b)(ii) and 66(1) of the 1987 Act. The insurer relied on reports of Dr Ross Mellick and on previous dispute notices which had been issued.
By Application to Resolve a Dispute (ARD) dated 23 November 2022, the applicant initiated proceedings in the Personal Injury Commission (Commission). The ARD stated that the applicant sought permanent impairment compensation in the sum of $92,950 for 42% WPI in respect of injury on 23 September 2024 to the body systems: left upper extremity; cervical spine; ear, nose, throat and related structures; chronic pain; and nervous system. The ARD described the injury as:
“1. Chronic regional post-electric pain disorder in the left upper limb, left shoulder girdle, left sided neck, face and upper back with somatosensory test features implying central sensitisation;
2. Pervasive hypersensitivity symptoms including such sensation as enhanced sounds (hyperacusis);
3. Psychiatric injury with post-traumatic stress symptoms, meeting all 8 DSM-V criteria for post-traumatic stress disorder (PTSD); &
4. Complex movement disorders including restless legs syndrome, involuntary movements of head and neck, involuntary vocal reactions diagnosed as Tourettes Syndrome.”
The insurer responded by Reply to ARD dated 20 December 2022.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
A conciliation and arbitration hearing was held on 2 March 2023. Mr Dewashish Adhikary, counsel, appeared for the applicant, instructed by Ms Samantha Moon of Acorn Lawyers, with the applicant. Mr Tom Grimes, counsel, appeared for the respondent, instructed by
Ms Laura Risti of Hicksons Lawyers, with Mr Neil Bennett of the insurer.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 IN DISPUTE
Following a conference, the Commission issued directions on 17 January 2023. Leave was granted to amend the ARD to the effect that the only system claimed is “chronic pain”.
As noted in the submissions below, the applicant now seeks to re-plead injuries or consequential conditions to the “upper left limb, left shoulder, left side of the neck, face and upper back”.
The respondent submits that the applicant should be estopped from pleading injuries or consequential conditions to the “upper left limb, left shoulder, left side of the neck, face and upper back”, which are disputed by the respondent on the basis of the medical evidence.
I do not accept the respondent’s submission in that regard.
Having regard to A/Prof Champion’s opinions, including that which was annexed to the letter of demand dated 15 January 2021, the relevant body parts which are affected by the chronic regional post-electric trauma pain disorder has been made clear to the respondent for a number of years. The respondent has disputed the diagnosis of chronic regional post-electric trauma pain disorder and has relied on Dr Mellick’s evidence in that regard.
As I noted below, Arbitrator Egan in Elsworthy v Forgacs Engineering Pty Ltd [1] (Elsworthy) stated that a referral to a Medical Assessor in relation to a chronic pain condition should be with as much particularity as possible, having regard to the particular limbs affected, rather than simply the ‘whole body’.[2] That was also the approach taken by Senior Member Bamber in Grant v Dateline Imports Pty Ltd,[3] (Grant). It seems obvious that pain must be experienced in a part of the body and that the affected body part should be specified. The particular issues which I am required to determine can only be determined in the context of the affected body parts.
[1] [2017] NSWWCC 64, Amended Certificate of Determination, particularly pp [153], [166] – [167].
[2] Elsworthy, [171], [173].
[3] [2021] NSWPIC 83 (16 April 2021).
For these reasons, I do not consider that the respondent is prejudiced by the applicant pleading injury or consequential condition in respect of the “upper left limb, left shoulder, left side of the neck, face and upper back”. Further, I consider that it is necessary, in the interests of justice, that it does so because it will permit the “particularity” to which Arbitrator Egan in Elsworthy referred.
On that basis, the following issues remain in dispute:
(a) whether the applicant sustained the alleged injuries or consequential condition of chronic regional post-electric pain disorder in the left upper limb, left shoulder girdle, left sided neck, face and upper back arising out of an electrical shock incident at work on 23 September 2014;
(b) whether the applicant sustained permanent impairment as a result of the alleged injuries or consequential condition, and
(c) the extent and quantification of the applicant’s entitlement to permanent impairment lump sum compensation pursuant to s 66 of the 1987 Act.
EVIDENCE
Documentary evidence
The respondent sought leave to admit into evidence, documents which were attached to the insurer’s Application to Admit Late Documents (AALD) dated 29 March 2023, in particular, Dr Mellick’s supplementary report dated 27 March 2023. The respondent submitted that it should be admitted into evidence on the basis that it was obtained to respond to the applicant’s AALD dated 17 February 2023 and, further, the respondent will be prejudiced without its admission.
The applicant opposed admission of the supplementary report of Dr Mellick dated
27 March 2023 into evidence. The applicant submitted that the respondent has not demonstrated that it will suffer prejudice if it is not admitted, particularly as no actual reliance has been placed on the report by the respondent. The applicant submitted that the supplementary report of Dr Mellick was obtained regardless, and not in response to statements to the effect that the applicant intended to obtain a further report from
A/Prof Champion.I have considered the parties submissions, the objects of the Commission under ss 3 and 42 of the Personal Injury Commission Act 2020, the requirements of Rule 67(4) of the Personal Injury Commission Rules, paragraphs 26 and 28 of Procedural Direction PIC 3 and the prejudice that would result from granting or refusing leave to admit the attachments to the Insurer’s AALD dated 29 March 2023 and attachments. I note that the supplementary report of Dr Mellick dated 27 March 2023 addresses issues which were addressed by
A/Prof Champion in his supplementary report dated 3 February 2023, specifically the relevance and effect of the applicant’s prior history which was recorded in the clinical records of the Shellharbour Village Medical Practice. The applicant has had an opportunity to make submissions in relation to the report by its written submissions in reply. I am satisfied that the report is relevant to determination of the issues in dispute and that its admission would not prejudice the timely resolution of the matter. Having regard to these matters, I am satisfied that it is in the interests of justice that the supplementary report of Dr Mellick dated
27 March 2023 is admitted into evidence and I direct accordingly.Accordingly, the following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attachments;
(b) Reply to ARD and attachments;
(c) worker’s AALD dated 17 February 2023 and attachments, and
(d) insurer’s AALD dated 29 March 2023 and attachments.
Oral evidence
No oral evidence was given and there was no application for leave to cross-examine.
Applicant
The applicant gave evidence by way of a statement dated 5 October 2022.
The applicant described the electrocution incident at work on 23 September 2014. She stated that she was assisting the chef using a stick blender to puree meals for residents. When she reached out to turn the blender off at the plug, she touched exposed wires, which she was unaware of, with her left hand, which sent a shock through her body. She felt disorientated and dizzy but was able to finish the rest of her shift. That afternoon she felt tired and that night she was stuttering and stammering, which was unusual.
In the following days, she felt weakness and tightness on the left side of her body. The left side of her face and head was aching and her ears slowly developed a ringing noise. Over the following weeks, her condition became progressively worse. She began to notice a severe aching feeling through the left side of her neck and head which radiated out into her shoulder and she had numbness at the left side of her face.
The applicant first presented to a general practitioner regarding her injuries. referred by the respondent, on 26 September 2014. She first attended her usual treating general practitioner, Dr Shabina Nisha, on 3 October 2014. She consulted an ear, nose and throat specialist regarding tinnitus. She was also suffering from involuntary jerks through her head and neck.
In 2014, the focus of her treatment was primarily tinnitus, but her other conditions were also worsening. She experienced a constant pain through the left side of her head, which was much worse than a normal headache. She had sporadic tics as well. By 2013, the applicant’s symptoms had not improved and she had pain in her neck and left arm as well. In 2014, her tinnitus worsened and she continued having falls at work, including a fall when she landed on and injured her left shoulder. Throughout 2015, the applicant experienced involuntary shouts and grunts and her treating doctors began considering a diagnosis of Tourette’s Syndrome. In 2015 and 2016, she continued to experience poor concentration, dizziness and loss of balance and her tremors and tics became quite severe. A brain scan in November 2016 showed no abnormality and a CT scan showed small vessel changes but no signs of dementia.
Due to the tics and involuntary movements, the pain in the applicant’s neck and shoulders became much worse and she commenced seeing physiotherapist Belinda Tamlin in
April 2016 and other specialists.The applicant’s symptoms worsened throughout 2017 and the pain in the left side of her face became more substantial. Possible diagnoses of multiple sclerosis and a psychological movement disorder were investigated and ruled out.
In 2018, the applicant had ongoing symptoms of tinnitus, hyperacusis, dizziness, significant pain through her left shoulder, Tourettes’ and nerve pain. She had spasms throughout her body at night which caused her injury at times. She had ongoing dizziness and disorientation and headaches so severe that she presented to hospital on a number of occasions. A diagnosis of functional neurological disorder triggered by the electrical injury was investigated and ruled out.
In October 2018, A/Prof David Champion assessed the applicant and referred her to a multidisciplinary pain management program and for assessment of her involuntary movements.
Throughout 2019 and 2020, the applicant continued to suffer from tinnitus, fatigue, general weakness, facial numbness, poor concentration and memory, poor balance and nerve pain. She was regularly injuring herself through falling. The applicant continued to be treated by physiotherapist, Ms Tamlin for muscle pain caused by her Tourette’s.
In 2020, A/Prof Jonathon Phillips diagnosed the applicant with Tourette’s syndrome.
The applicant’s condition has remained constant since about 2020 with ongoing symptoms including nerve pain, Tourette’s and tinnitus. She has received various treatment including from her general practitioner, physiotherapist and neurologist.
The applicant continues to experience debilitating nerve pain which radiates through her left arm, and up into her left shoulder and the left side of her head. Tourette’s tics also cause constant muscle soreness.
Following the electrocution, the applicant continued to work for about four months. As her symptoms worsened, she was forced to reduce her capacity. In about September 2016, she ceased work entirely and she has not had capacity to work since. Prior to her injury, she had “no medical conditions of note” and she was healthy and active.
Investigation report
An investigation report prepared by Maurice J Kerrigan and Associates Investigations dated 12 August 2015[4] included statements made and investigations conducted in respect of the work electrical injury on 23 September 2014.
[4] ARD, page 505.
Treating medical evidence
A/Prof Jonathan Phillips, consultant psychiatrist
In a report dated 26 October 2020, A/Prof Phillips noted that the applicant described pain in the left side of her head and involving her left shoulder girdle in the weeks and months following the work incident on 23 September 2014. He noted that she reported enduring symptoms which included an almost constant headache mainly on the left and constant pain (including the left side of her body).[5] He considered that the applicant may have a “post-electric shock injury pain disturbance, with allodynia/hyperalgesia”.[6]
Dr Brian Williams, ear, nose and throat surgeon
[5] ARD, page 359.
[6] ARD, page 340.
In a report dated 30 June 2015, Dr Williams diagnosed tinnitus, hyperacusis and dizziness following the electrocution injury at work on 23 September 2014.[7]
[7] ARD, page 364.
In a report dated 2 June 2016, Dr Williams noted that the applicant had left facial pain and headaches in addition to other symptoms following the electrocution injury on
23 September 2014.[8][8] ARD, page 365.
In a report dated 23 March 2022, Dr Williams stated that the applicant complained of left ear pain in 2015 when he first consulted her in relation to her injury. He stated that audiogram showed normal hearing levels bilaterally and no other abnormality was identified on examination.[9]
Dr Chris Andrews, senior lecturer in medicine
[9] ARD, page 367.
In a report dated 6 September 2016, Dr Andrews stated that there was little of note in the applicant’s past history. Dr Andrews noted the development of symptoms including pain subsequent to the electric shock injury on 23 September 2016. Dr Andrews opined that the electric shock is both temporally and mechanistically connected with the injury and current disabilities.
A/Prof Stephen Tisch, consultant neurologist
In a report dated 27 August 2019, A/Prof Tisch noted the history of injury and various symptoms which the applicant had experienced since that time.
Dr Robert McGrath, neurologist
Dr McGrath provided various reports between 5 December 2014 and 3 November 2015 which noted the history of injury and various symptoms which the applicant had experienced since that time. He did not note any relevant pathology.
Dr Victor Fung, consultant neurologist and neurophysiologist
Dr Fung provided various reports between 18 July 2017 and 15 May 2018 which noted the history of injury and various symptoms which the applicant had experienced since that time which included “head pain”.[10]
Dr Jayesh Parikh, consultant neurologist
[10] ARD, page 394.
Dr Parikh provided various reports between 15 November 2016 and 5 February 2018 which noted the history of injury and various symptoms which the applicant had experienced since that time, which included “head pain”.[11]
[11] ARD, page 401.
Clinical records
Shellharbour Village Medical Practice
Clinical records of the Shellharbour Village Medical Practice recorded the applicant’s various consultations since about November 2012. It included reference to:
(a) chronic back pain on 21 January 2013;[12]
(b) headache on 20 February 2013;[13]
(c) pain in the left arm on 10 July 2013;[14]
(d) body aches, joint pains, swollen face due to suspected tick bite on 20 January 2014;[15]
(e) aches and pain in muscles and joints on 19 March 2014;[16]
(f) pain in left elbow on 1 September 2014, and
(g) subsequent records of Dr Nisha, referred to below.
Dr Shabina Nisha, general practitioner
[12] Reply, page 42.
[13] Reply, page 43.
[14] Reply, page 45.
[15] Reply, page 48.
[16] Reply, page 49.
Clinical records of Dr Nisha recorded that on 17 October 2014, the applicant reported an electrocution injury at work on 23 September 2014 through her left arm. The applicant reported pain in the shoulder girdle, left arm and back which was worsening. She also reported tightness in her neck and shoulder down to her left elbow.[17]
[17] ARD, page 404.
Dr Nisha recorded various subsequent reports by the applicant of various symptoms, which included pain.[18]
St Joseph’s Hospital
[18] ARD, page 408, 411, 421, 423, 425, 427, 431, 432, 436,
Clinical records of St Joseph’s Hospital recorded the applicant’s admission and treatment in May 2018 following a fall due to dizziness caused by the injury at work on 23 September 2014.
Independent medical evidence
Dr Ross Mellick, neurologist
Dr Mellick provided independent medical evidence at the request of the insurer.
In his report dated 2 February 2015, Dr Mellick noted that applicant’s history of symptoms, which included aching in the left arm, following the workplace incident on 23 September 2014. He noted that the applicant stated that she was worried about abnormalities in her neck. Dr Mellick found no indication of any identifiable organic disorder and believed there were no physical consequences of the electric shock injury. He stated that “there are symptoms but no evidence of a work related physical injury”. He stated that the applicant’s presentation “is consistent with the ‘claimed injury’. However, there is no neurological basis for the existing symptoms”.[19]
[19] Reply, pages 21 – 26.
In his report dated 4 December 2019, Dr Mellick noted that, since his last report, the applicant has developed shouting and tic-like movements and continued to experience aching in the entire left upper extremity, constant dizziness and tinnitus. Dr Mellick noted that the neurological examination was entirely normal other than Tourette’s abnormalities.
Dr Mellick stated that the applicant’s presentation did not correspond to a complex regional pain syndrome and there was no evidence of an organically based neurological disorder related to a brain injury or any other neurological disorder aetiolically connected to the electric shock. Dr Mellick found no evidence or an organically based post traumatic abnormality apart from Tourette syndrome.[20][20] Reply, pages 35 – 38.
In his supplementary report dated 27 March 2023, Dr Mellick stated that additional evidence provided regarding the history injury, which was different to that originally reported by the applicant, did not cause him to alter his prior opinion. He stated that his updated assessment is that the applicant “is not suffering a clinical condition of a physical nature caused by the injury in the form of an electrical shock and which allows an assessable whole person impairment ‘in respect to the chronic pain’”.[21]
A/Prof David Champion
[21] AALD by insurer dated 29 March 2023, page 6.
A/Prof Champion provided independent medical evidence at the request of the applicant.
In his initial report dated 31 October 2018, A/Prof Champion noted the applicant’s history of chronic pain and other symptoms which developed since the workplace incident on
23 September 2014. On examination, he noted that she has low-pressure pain threshold particularly in her left upper limb, more so proximally, left shoulder girdle, left side of the neck, head and upper back.[22] A/Prof Champion diagnosed a chronic regional post-electrical trauma pain disorder in the left upper limb, left shoulder girdle, left side of the neck, face and upper back which he believed was a consequence of the severe nociceptive stimulus of the initial shock and augmented by the impaired sleep and by the post-traumatic stress symptoms.[23][22] ARD, page 314.
[23] ARD, page 317.
In his report dated 25 November 2019, A/Prof Champion noted that the applicant reported ongoing pain at the left side of her face, neck, shoulder girdle and arm, aggravated by her involuntary movements, mainly associated with vocal tics.[24] On examination, he noted pain responses to static and dynamic touch stimuli most of all in the symptomatic region of the left side of her head, neck, shoulder girdle and left arm.[25] A/Prof Champion stated that the applicant’s condition had remained much the same in respect of her chronic pain disorder. He diagnosed a secondary post-traumatic (electrical) musculoskeletal chronic pain syndrome mainly in the region of left side of the head and face, left side of the neck, left shoulder and arm also left upper back with wider spread pain and clinical evidence of disordered somatosensory processing in the central nervous system.[26]
[24] ARD, page 324.
[25] ARD, page 325.
[26] ARD, page 325.
In his subsequent report dated 4 September 2020, A/Prof Champion stated that the applicant’s ongoing pain symptoms were best explained by a diagnosis of “chronic post-traumatic (electrical injury) regional pain syndromes (ICD-11 pain terminology) verified by responses to stimulus-response somatosensory testing”[27] and was a consequence of the electrical shock at work on 23 September 2014.[28]
[27] ARD, page 331.
[28] ARD, page 332.
In his report dated 29 December 2020, A/Prof Champion stated that the applicant has continuing pain and “has a chronic regional pain syndrome (not meeting criteria for complex regional pain syndrome)” which was a consequence of the electrical injury on
23 September 2014.[29][29] ARD, page 336.
In his report dated 22 June 2021, A/Prof Champion confirmed his earlier diagnosis.[30]
[30] ARD, page 339.
In his supplementary report dated 3 February 2023, A/Prof Champion, noted the applicant’s history of pain conditions prior to the work incident on 23 September 2014 which were disclosed in clinical records of Shellharbour Village Medical Practice. A/Prof Champion stated that the clinical records did not disclose any alternative explanation for the applicant’s chronic regional post-electric trauma pain disorder. He stated that, rather, it provided additional explanatory information for the applicant’s current chronic pain-related disability, including pre-electric shock vulnerability and the importance of dizziness which influenced injury-provoked multiple secondary chronic pain disorders and added chronicity-influencing factors such as impaired sleep, anxiety and dizziness. A/Prof Champion acknowledged that “there were conditions which were not directly or indirectly consequent on the electric shock, while emphasising the fundamentally important role of the electric shock in her overall biopsychosocial predicament”.[31]
[31] AALD by worker dated 17 March 2023, pages 2 - 4.
The evidence included a copy of a journal article by A/Prof Champion and others, published in 2022, in relation to electrical injury, which was referred to in his reports.
Dr Kenneth Howison, ear, nose and throat specialist
Dr Howison provided an independent medical opinion at the request of the insurer.
In a report dated 3 June 2016, Dr Howison stated a diagnosis of tinnitus caused by the electrical shock injury at work on 23 September 2014.[32]
[32] ARD, page 344.
In a report dated 4 December 2019, Dr Howison stated that the applicant had persisting problems of tinnitus as a result of the electrocution but no other hearing abnormality.[33]
Dr Lorraine Jones, consultant in rehabilitation medicine
[33] Reply, pages 30 – 32.
Dr Jones provided an independent medical opinion at the request of the applicant.
In a report dated 5 November 2016, Dr Jones noted the history of injury reported by the applicant and the development of symptoms which included spasms. Dr Jones noted that the spasms were occurring daily and getting worse and the applicant’s muscles felt sore.
Dr Jones noted that the applicant gets pain up her left arm, numbness on the left side of her face and neck pain in addition to other symptoms. On examination, Dr Jones noted that the applicant had marked jerking of her neck, legs and body. Dr Jones stated that the electrical shock had precipitated tinnitus which was present and ongoing. Dr Jones was unable to determine the cause of the spasms.[34]
Dr Joseph Scoppa, ear nose and throat physician
[34] ARD, page 352.
Dr Scoppa provided an independent medical opinion at the request of the applicant.
In a report dated 13 November 2016, Dr Scoppa stated that on examination there was no abnormality identified in respect of the applicant’s ears, nose and throat and facial nerve function was clinically normal bilaterally.[35]
[35] ARD, page 354.
SUBMISSIONS
The following written submissions were received by the Commission:
(a) applicant’s submissions dated 13 April 2023;
(b) respondent’s submissions dated 27 April 2023, and
(c) applicant’s submissions in reply dated 1 May 2023.
The written submissions were lengthy. I will not recount them in detail. I thank counsel for their submissions in this matter, which have been considered in full.
In summary, the applicant submitted:
(a) there is no dispute that the applicant sustained an electric shock injury on
23 September 2014;(b) the only dispute is whether the applicant sustained a chronic regional post-electric trauma pain disorder, or syndrome, as diagnosed by A/Prof Champion (noting that in his report dated 29 December 2020, A/Prof Champion indicated that the disorder has also been labelled “in current ICD-11 pain terminology” as a syndrome);
(c) the chronic regional post-electric trauma pain disorder has been experienced by the applicant in the upper left limb, left shoulder, left side of the neck, face and upper back (relevant body parts);
(d) pursuant to Elsworthy,[36] the question of whether the applicant sustained a chronic regional post-electric trauma pain disorder, is a medical dispute and ought to be referred to a Medical Assessor for determination, rather than being determined by me;
[36] [2017] NSWWCC 64, Amended Certificate of Determination, particularly pp [153], [166] – [167].
(e) the respondent ought not be allowed to dispute the relevant body parts as being so impaired as a result of the incident on 23 September 2014 because the respondent has not previously notified a dispute in respect of consequential condition or injury to the relevant body parts and it ought to be estopped from now doing so;
(f) in the alternative, I ought to be satisfied, on the balance of probabilities, that the relevant body parts were so impaired as a result of the incident on 23 September 2014 and that the applicant sustained such consequential condition, or in the alternative, injuries;
(g) the matter ought to be remitted to the President for referral to a Medical Assessor for resolution of the medical disputes:
(i)whether the applicant suffers from a chronic regional post-electric trauma pain disorder, specifically relevant to the left upper extremity, cervical spine, ear nose, throat and related structures, nervous system, and
(ii)the degree of the applicant’s whole person impairment;
(h) there was confusion at the preliminary conference, given the respondent’s mistaken view of the matter and apparent ignorance of Elsworthy, pertaining to the body parts themselves as being subject of the referral to the Medical Assessor, which led to alteration of the ARD to remove reference to the relevant body parts, which should not have occurred. Having regard to A/Prof Champion’s opinions, including that which was annexed to the letter of demand dated
15 January 2021, the relevant body parts which are affected by the chronic regional post-electric trauma pain disorder has been made clear to the respondent for a number of years;(i) making the referral to the Medical Assessor in the manner identified in Elsworthy does not cause the respondent any inconvenience, as this was not only how the matter ought to have always proceeded, it is the correct manner in which to proceed, nor cause any delay to the matter. Such referral is also consistent with Mifsud v Pitador Excavations Pty Limited t/as JD Concrete Pty Ltd (Mifsud);[37]
(j) a Medical Assessor’s assessment ought to not be limited by the terms of any referral and ought to be guided by the dispute raised by the respondent, that is whether the disorder exists;
(k) the referral ought to be in the following terms:
(i)Date of injury: 23 September 2014, and
(ii)Body parts: Left upper extremity; cervical spine; ear; nose, throat and related structures; nervous system (all consequential conditions (chronic pain) due to incident on 23 September 2014).[38]
[37] [2022] NSWSC 1010.
[38] The applicant submitted that, if a determination is made that the applicant sustained injury, then the words in the brackets ought to be removed.
In summary, the respondent submitted:
(a) the applicant is estopped, by virtue of their agreement at the preliminary conference to amend the ARD (as noted in the direction dated 18 January 2023), from alleging any injury and/or consequential condition except “chronic pain”;
(b) the extent of the applicant’s injuries or consequential conditions pleaded or diagnosed in the matter is unclear having regard to the medical evidence;
(c) Dr Mellick did not consider that there was any other neurological or other organically determined disorder causing impairment (other than Tourette syndrome, which he did not consider to be a consequence of the electric shock);
(d) the respondent disputed in the dispute notices that the applicant sustained primary injuries and/or consequential conditions and that “there was any other neurological or other organically determined disorder”, specifically a complex regional pain syndrome or chronic regional pain syndrome, post electrical injury disorder, chronic post-traumatic (electrical injury) regional pain syndrome or Tourette syndrome, as a result of the electric shock incident on 23 September 2014. The respondent also disputed that the applicant sustained any permanent impairment as a result of her injury on 23 September 2014 and disputed that she has any entitlement to permanent impairment compensation pursuant to s 66(1) of the 1987 Act;
(e) in the Reply to ARD, the respondent disputed that the applicant has sustained any such disorder as a result of the electric shock incident on 23 September 2014;
(f) the dispute notices and Reply to ARD leaves no doubt that he respondent disputes all primary injuries and consequential conditions arising from the electric shock incident on 23 September 2014, except:
(i)minor electrocution;
(ii)tinnitus (with no hearing loss), and
(iii)hyperacusis and dizziness (associated with the tinnitus);
(g) the respondent notes that the applicant relies on the reports of A/Prof Champion in respect of her lump sum claim, which noted an assessment of 42% WPI for injuries allegedly sustained to her upper extremity (sensory deficit and pain), which is presently disputed. The applicant has now particularised a claim for 42% WPI in respect of the applicant’s cervical spine, left upper extremity, ear, nose and throat related structures, chronic pain and nervous system, and therefore additionally disputes any such claim on that basis;
(h) the existence of previously non-disclosed pre-existing conditions, noted in
A/Prof Champion’s report dated 3 February 2023, should give rise to a finding that the applicant’s evidence lacks credibility and should be given little weight;(i) the applicant should be estopped from pleading injuries or consequential conditions to the “upper left limb, left shoulder, left side of the neck, face and upper back”, which are disputed by the respondent on the basis of the medical evidence;
(j) even if the applicant’s interpretation of Elsworthy is correct (which is not conceded), the respondent disputes that chronic regional post-electric trauma pain disorder can be referred as a consequential condition to a Medical Assessor due to the following:
(i)the ARD (as amended by the direction dated 18 January 2023) no longer pleads any primary injuries;
(ii)the current pleadings are confined to allegations of “chronic pain”;
(iii)the respondent disputes the applicant suffers an injury of “chronic pain”;
(iv)the respondent disputes that chronic regional post-electric trauma pain disorder is a consequential condition of the “chronic pain”;
(v)if the Commission determines that the applicant does plead primary injuries in the amended ARD, the respondent disputes liability for those injuries based on the medical evidence;
(k) the respondent disputes that the applicant’s evidence supports a prima facie diagnosis of chronic regional post-electric trauma pain disorder on the basis of;
(i)A/Prof Champion’s report dated 25 November 2019 stated “Mrs Kemp does not obviously meet criteria for impairment for which I have accreditation musculoskeletal injury”;
(ii)A/Prof Champion’s supplementary report dated 29 December 2020 stated
“I next referred to AMA V, Chapter 18 and note an illustrative list of associated pain syndromes was provided, and the list included complex regional pain syndrome... Mrs Kemp has a chronic regional pain syndrome (not meeting criteria for complex regional pain syndrome)...” (their emphasis);(l) there can be no finding of chronic regional pain syndrome as a primary injury or consequential injury if not assessed by A/Prof Champion or any other doctor;
(m) Dr Mellick’s supplementary report dated 27 March 2023, filed by way of the insurer’s AALD dated 29 March 2023, should be admitted into evidence on the basis that:
(i)it was obtained to respond to the applicant’s AALD dated 17 February 2023, and
(ii)the respondent will be prejudiced without its admission;
(n) on that basis, the Commission should:
(i)find that the applicant is bound by the amendments to the ARD;
(ii)make an award for the respondent in respect of the non-pleaded injuries to the upper left limb, left shoulder, left side of the neck, face and upper back;
(iii)make an award for the respondent in respect of chronic regional pain syndrome, and
(iv)not refer the matter to a Medical Assessor due to the awards for the respondent.
In summary, the applicant submitted in reply:
(a) the respondent’s submissions with respect to an estoppel by conduct are not correct legally and factually and ought to be rejected in their entirety. Further, the respondent will not suffer any detriment if the amendments are allowed;
(b) the respondent’s submissions in relation to the dispute notices are not based on applicable case law, irrelevant, flawed and ought to be rejected. The respondent has not complied with the requirements of ss 78 and 79 of the 1998 Act, as well as Harding and Arduca;
(c) the applicable law is that impairment, injury and causation for a consequential condition can have multiple causes (Calman v Commissioner of Police [1999] HCA 60; (1999) 73 ALJR 1609, and Cluff v Dorahy Bros. (Wholesale) Pty Ltd [1979] 2 NSWLR 435). In other words, the presence of any other condition is irrelevant so long as there was a material contribution to the injury or consequential condition sustained in the course of/ as a result of the applicant’s employment with the respondent (see Murphy v Ality Management Services Pty Ltd [2015] NSWWCCPD 49). What the investigations demonstrate is not a reason for the respondent not to have complied with ss 78 and 79 of the Workplace Injury Management and Workers Compensation Act 1998;
(d) the respondent has not placed in dispute whether the specific relevant body parts were injuries and/or consequential conditions and the respondent ought not to be permitted to raise these matters as being in dispute;
(e) the respondent’s submissions in relation to the credibility of the applicant’s evidence are misconceived and ought to be rejected as a whole. The respondent did not cross-examine the applicant. The applicant did not deny prior issues in her statement, but merely contextualised her prior issues by stating that they were not “of note” and making it clear that they did not prevent her from performing various activities. Further, the submissions ought to be rejected because they are irrelevant as the evidence of A/Prof Champion clearly demonstrates that the applicant’s pre-injury issues have been considered. This means that there is no flaw or hole in the applicant’s evidence and the medical evidence which she relies upon has been provided under a fair climate (Paric v John Holland (Constructions) Pty Ltd[39] and Paric v John Holland (Constructions) Pty Ltd[40]);
(f) the respondent’s submissions in relation to injuries to the “upper left limb, left shoulder, left side of the neck, face and upper back” are misconceived and should be rejected;
(g) the Commission, as presently constituted, does not have jurisdiction to determine diagnosis for the present condition and the respondent’s submissions in relation to Elsworthy should be rejected, and
(h) the supplementary report of Dr Mellick dated 27 March 2023 should not be admitted into evidence because the respondent has not demonstrated that it will suffer prejudice if it is not admitted and, further, no actual reliance has been placed on the report by the respondent. The supplementary report of Dr Mellick was obtained regardless, and not in response to statements to the effect that the applicant intended to obtain a further report from A/Prof Champion.
FINDINGS AND REASONS
[39] [1984] 2 NSWLR 505.
[40] [1985] HCA 58.
Approach to determination of a claim in relation to a chronic regional pain syndrome
In Ellsworthy, Arbitrator Egan of the Workers Compensation Commission considered the appropriate approach pursuant to the 1998 Act (as it then was) for determination of a claim for permanent impairment compensation in relation to a chronic regional pain syndrome which was consequential upon an accepted physical injury.
In particular, Arbitrator Egan considered what is required to determine “liability” in the case of chronic regional pain syndrome.[41] Arbitrator Egan stated that the approach in relation to chronic regional pain syndrome “is different from many other conditions referred to an AMS”.[42] At [166], Arbitrator Egan stated:
“166. Accordingly, while it is clear from Bindah, Bishop, and Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79, that the Commission must determine liability before a matter may be referred to an AMS for impairment, if the condition referred for assessment is CPRS, once it is so referred the AMS is bound to diagnose the existence of the condition by application of the prescriptive definition in cl 17.5 and Table 17-1 [of the NSW Workers compensation Guidelines for the Evaluation of Permanent Impairment, 4th Edition]. This is so regardless of any determination of the Commission. Additionally, that diagnosis by the AMS must be made on the day of assessment applying Chapter 17, and the AMS is not concerned with, or at least not bound by, whether it may have been diagnosable in the past. If the Commission was required, in determining liability, to make a finding of the existence or otherwise of CRPS specifically, and di so find, the AMS is bound to re-determine the diagnosis before any impairment may be assessed.”
(words in square brackets have been added)
[41] Ellsworthy, [2017] NSWWCC 64, [146] – [174].
[42] Elsworthy, [167].
From [170] – [173], Arbitrator Egan stated:
“170. Accordingly, I conclude that I do not have jurisdiction to determine the existence or otherwise of CRPS1 and a finding made by me would not bind the AMS in any event.
171. However, I also consider it would be inappropriate to simply refer the matter to the AMS for assessment of impairment at large. Determination of ‘liability’ must have some role to play. On the basis of the above authorities, and the specific role laid out for the AMS by them, and the particular nature of Chapter 17 of the Guidelines, I conclude that the issue requiring determination is whether the applicant suffers pain in any of the specified limbs, and, if so, whether it is as a result of the accepted injury to the left wrist. This is consistent with cl 1.6(d) of the Guidelines regarding the particularity of the referral to the AMS, and consistent with the direction to the AMS to “Rate the extremity impairment resulting from loss of motion of each individual joint involved”, and any “sensory deficits and pain” involved.
172. It is apparent from the above that I have rejected the submission of Ms Goodman that I am required to make a finding of the current existence of CRPS in the applicant...
173. As is also apparent however, I accept Ms Goodman’s submission that to refer the matter to an AMS for assessment of the body at large would not be appropriate. I consider the directions within cl 1.6(d) of the Guidelines (which are clearly applicable to the registrar because they refer to the actions of the referral rather than the medical assessment itself) require the referral to be with as much particularity as is reasonably possible. In that regard, therefore, I consider the AMS’s attention should be directed to particular limbs rather than simply the ‘whole body’.
174. This is the approach I intend to take.”
Further, Arbitrator Egan noted in Elsworthy[43]that:
“184. As I have found that it is not necessary to find the actual presence of CRPS in any one or more limb, the various opinions as to whether sufficient symptoms and signs exists to satisfy various criteria are only relevant at to the symptoms or signs, not the conclusions regarding diagnosis. For example, Dr O’Sullivan’s views that he ‘could find no evidence really to substantiate the precise diagnosis of Complex Regional Pain Syndrome in [the applicant] when I assessed him today’, is a matter for an AMS. The existence of symptoms and signs, however, are relevant for findings of whether or not a consequential condition exists in the upper or lower extremity claimed.”
[43] Elsworthy, [184].
In Grant,[44] Senior Member Bamber adopted that approach taken by Arbitrator Egan in Elsworthy. Whilst that decision Grant was the subject of appeal, no issue was taken with that approach adopted by Senior Member Bamber.[45]
[44] [2021] NSWPIC 83 (16 April 2021).
[45] Grant v Dateline Imports Pty Ltd [2022] NSWPICPD 3 (24 January 2022).
With respect, I consider that the approach adopted by Arbitrator Egan in Elsworthy and Senior Member Bamber in Grant are correct and I intend to take the same approach. That approach is that the issue of whether there is a diagnosis of chronic regional pain syndrome should be made by a Medical Assessor, provided I am satisfied, and make a determination, firstly, that the applicant suffers pain in any of the relevant body parts and also, secondly, that it is a result of the accepted work injury.
I note that Arbitrator Egan in Elsworthy stated that any referral to the Medical Assessor should be with as much particularity as possible, having regard to the particular limbs affected, rather than simply the ‘whole body’.
Relevant legal principles
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[46] (Kooragang), where Kirby P (as his Honour then was) stated:
“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.”[47]
[46] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[47] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated 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.”
Deputy President Roche’s decision in Kumar v Royal Comfort Bedding Pty Ltd[48] is authority for the proposition that Kooragang is the test to determine if a consequential condition arises from a work injury. As Kirby P (as he was then) stated in Kooragang, an injury can set in train a series of events.
[48] [2012] NSWWCCPD 8, Kumar.
Although the High Court in Comcare v Martin[49] raised some concerns about the common-sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common-sense approach still has place in the application of the legislation to the present case.
[49] [2016] HCA 43, [42].
In relation to the onus of proof, for the Commission to be satisfied, on the balance of probabilities, of the existence of a fact, I “must feel an actual persuasion of the existence of that fact”.[50]
[50] Department of Education & Training v Ireland [2008] NSWWCCPD 134, President Keating at [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
Consideration of the evidence
I note the respondent’s submissions in relation to the applicant’s credit, on the basis that the applicant did not disclose in her statement, relevant prior medical history which was recorded in the clinical records of the Shellharbour Village Medical Practice.
I do not find that the applicant’s evidence as a whole lacks credibility. The applicant’s evidence is largely consistent with the other evidence. Further, I consider that the applicant’s statement to the effect that she had no “medical condition of note” is not necessarily dishonest or misleading. There is no evidence that the applicant experienced ongoing symptoms or significant disability as a result of any prior condition. There is no evidence that the applicant received any significant treatment for any prior condition. The applicant’s evidence to the effect that she was active prior to the event on 23 September 2014, has not been challenged. There was no application for leave to cross-examine the applicant. In any event, to the extent that I have accepted the applicant’s evidence, I have done so on the basis of a consideration of the evidence as a whole.
I am satisfied that the medical evidence generally, and particularly the evidence of
A/Prof Champion, corroborates the applicant’s evidence that she has experienced chronic pain in her upper left limb, left shoulder, left side of the neck, face and upper back which developed since the work incident on 23 September 2014.The insurer has accepted that the applicant suffered minor electrocution, tinnitus, hyperacusis and dizziness with no hearing loss caused by electrocution injury in the course of her work with the respondent on 23 September 2014.
There is no compelling evidence of any other significant cause of the applicant’s pain.
Dr Mellick did not identify any organic cause for the applicant’s chronic pain symptoms. He stated that the applicant’s presentation “is consistent with the ‘claimed injury’. However, there is no neurological basis for the existing symptoms”.[51]
[51] Reply, pages 21 – 26.
I find the evidence of A/Prof Champion particularly compelling because I consider that it provides a reasoned and logical explanation for the applicant’s symptoms. His reports were comprehensive and I consider that he has taken a thorough and informed approach to consideration of the applicant’s symptoms. He is an experienced specialist with a particular interest in electrocution injury. I prefer and accept his evidence to the extent that it evidences that the applicant experienced pain symptoms and that they were caused by the electrocution injury at work on 23 September 2014.
Having regard to the evidence as a whole, I feel a real sense of persuasion and I find that:
(a) the applicant has experienced chronic pain in her upper left limb, left shoulder, left side of the neck, face and upper back, and
(b) the pain is the result of the accepted work injury on 23 September 2014.
The issue of whether the applicant has a rateable chronic regional post-electric pain disorder in the left upper limb, left shoulder, left sided neck, face and upper back is a matter for assessment by a Medical Assessor.
Accordingly, the permanent impairment claim is to be remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:
Body part/s systems: left upper extremity; cervical spine;
ear; nose; throat and related structures, and nervous system (all consequential conditions (chronic pain) due to incident on 23 September 2014).
Date of injury: 23 September 2014.
The documents to be referred to the Medical Assessor are to include those attached to the:
(a) ARD;
(b) Reply to ARD;
(c) applicant’s AALD dated 17 February 2023, and
(d) insurer’s AALD dated 29 March 2023.
SUMMARY
I find that:
(a) the applicant has experienced chronic pain in her upper left limb, left shoulder, left side of the neck, face and upper back;
(b) the applicant’s pain is the result of the accepted work injury on 23 September 2014, and
(c) the issue of whether the applicant has a chronic regional post-electric pain disorder in the left upper limb, left shoulder, left sided neck, face and upper back is a matter for assessment by a Medical Assessor.
The permanent impairment claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:
Body part/s systems: left upper extremity; cervical spine;
ear; nose; throat and related structures, and nervous system (all consequential conditions (chronic pain) due to incident on 23 September 2014).
Date of injury: 23 September 2014.
The documents to be referred to the Medical Assessor are to include those attached to the:
(a) ARD;
(b) Reply to ARD;
(c) applicant’s AALD dated 17 February 2023, and
(d) insurer’s AALD dated 29 March 2023.
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