Murphy and Comcare (Compensation)

[2016] AATA 744

Murphy and Comcare (Compensation) [2016] AATA 744 (26 September 2016)

Division	GENERAL DIVISION
File Numbers	2014/6552, 2016/3224 & 2016/1588
Re	Mark Murphy
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	26 September 2016
Place	Melbourne

The Tribunal sets aside all three decisions and substitutes its decision that Mr Murphy’s work-caused condition of right wrist ganglion and the complications arising from the treatment of the ganglion continue to attract liability under s 14 and s 16 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The Tribunal remits the decision in relation to compensation for incapacity as provided in s 19 of the SRC Act to the Respondent for reconsideration.

........................................................................

Miss E A Shanahan, Member

COMPENSATION – accepted liability for ganglion of the right wrist – multiple recurrences following surgical excision of the ganglion – five operations in total – neuropathic pain syndrome following surgery – alternative diagnosis of carpal tunnel syndrome – evidence of treating surgeon decisive – continuing liability – all decisions under review set aside. 

Legislation

Safety, Rehabilitation and Compensation Act 1988

Cases

Comcare v Lofts (2013) FCA 1197

REASONS FOR DECISION

Miss E A Shanahan, Member

26 September 2016

1. On 24 October 2005 Mr Murphy lodged a claim for compensation for a right wrist ganglion. On 2 December 2005 Comcare accepted liability for the injury in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).  Thereafter, Mr Murphy continued to be compensated for medical treatment of the ganglion.  On 17 July 2014 Comcare made a decision denying ongoing liability for medical treatment.  Mr Murphy requested a reconsideration of this decision and on 20 November 2014 Comcare affirmed the decision (the first reviewable decision).  Mr Murphy lodged an application for review of the decision with the Administrative Appeals Tribunal on 18 December 2014. 

2. On 30 September 2014 Mr Murphy lodged a claim for compensation for neuropathic pain syndrome in his right hand and wrist, as a complication of his accepted condition of ganglion of the right wrist.  This claim was denied. Mr Murphy requested a reconsideration of the decision.  On 24 February 2016 the review officer affirmed the decision on the basis that Comcare was not satisfied that the neuropathic pain syndrome was significantly contributed to by the accepted condition of aggravation of ganglion (right) (the second reviewable decision). 

3. On 28 April 2016 a review officer rejected Mr Murphy’s claim for right carpal tunnel syndrome and degenerative tissue volar scapho-lunate ligament (the third reviewable decision (File No: 2016/3224).

4. On 2 December 2005 Comcare accepted liability for what was termed an aggravation of ganglion (right) following receipt of the report of the treating hand surgeon Mr Anthony Berger.  Between 2005 and 2013 Mr Murphy underwent five surgical procedures on his right wrist, the last being performed on 30 April 2013.

5. Mr Murphy lodged his applications for review of the three Comcare decisions within the time frame allowed and all three applications have been heard in the course of this hearing. 

6. Mr Murphy was represented by Mr Mark Carey of counsel, instructed by Slater and Gordon Solicitors. Mr Roy Seit of counsel appeared for Comcare. The Tribunal was provided with three sets of T-documents in accordance with s 37 of the Administrative Appeals Tribunal Act 1975, and the Applicant tendered three exhibits, a list of which is appended to this decision.

7. At the commencement of the hearing the parties addressed the question of the Tribunal’s jurisdiction in these three matters, the query having been raised in Comcare’s Statement of Facts and Contentions. Mr Carey and Mr Seit agreed that the Tribunal had jurisdiction to hear all matters including liability under s 14, medical treatment expenses under s 16 and weekly payments of compensation under s 19.

8. Mr Murphy, Mr Anthony Berger, Dr Anthony Muir and Dr Loretta Reiter gave evidence before the Tribunal. Dr Reiter gave her evidence by telephone. 

   BACKGROUND TO THE APPLICATIONS

9. Mr Murphy commenced work with Note Printing Australia (NPA), a branch of the Reserve Bank of Australia, in October 1979.  He ceased employment with NPA on 7 June 2006.  Mr Murphy commenced a second job with Mutual Cleaning and Maintenance Pty Ltd (Mutual Cleaning) in approximately 1988.  He continued to work in his second job with Mutual Cleaning until he was made redundant in May 2012.  While he began with Mutual Cleaning as a cleaner, he had undertaken further study and by 1996 had become an Occupational, Health and Safety Manager and had obtained Quality Assurance certification.  Thereafter, his work with Mutual Cleaning was not of a physical nature.  Mr Murphy had informed NPA of his employment with Mutual Cleaning.  Prior to the termination of his employment with NPA Mr Murphy had worked 35 hours per fortnight with Mutual Cleaning. After he ceased work with NPA he worked 40 hours per week with Mutual Cleaning until his redundancy. 

10. The nature of Mr Murphy’s work with NPA was the subject of his evidence before the Tribunal and was detailed in various medical reports.  There appears to be no dispute that the work involved repetitive wrist movement. He was required to fan out sheets of paper in order to separate them and allow for drying once printed in Australian currency. Once dry he restacked them.  The sheets of notes are quite large measuring 600 by 700 millimetres and were fed into a printing machine in groups of up to 250 sheets.  After division and printing, the sheets were required to be knocked down, that is forcefully impacted on a desk-top in order to align the sheets.  Prior to 1988 these sheets were made of paper and thereafter of plastic.  Over 27 years Mr Murphy performed these repetitive tasks which involved twisting his arms and wrists, with 20 minute rests every two hours.  The repetitive nature of his work was not challenged.

11. Mr Murphy developed a ganglion in his left wrist in the late 1980s. On 15 March 1999 he completed a Comcare claim form for what was described as ganglion – left wrist aggravation.  The development of this ganglion was associated with sharp pain in the left wrist.  Comcare accepted liability for left wrist aggravation of ganglion as being causally related to his work with a date of injury of 17 February 1998. Mr Murphy underwent resection of the ganglion of his left wrist by Mr A Berger in September 1999.  Mr Murphy subsequently returned to work, initially with fewer repetitive physical duties. On 22 September 2000 his claim in relation to the left wrist ganglion was closed as inactive. 

12. There has been considerable confusion arising from faults in communication between Mr Berger’s consulting rooms, the hospital where Mr Murphy’s 2005 operation was conducted and post-operative letters written to Dr Sleigh, the NPA physician, and the treating general practitioner.  As a result of this confusion, Mr Murphy was until recently under the misapprehension that the operation in 1999 had been on his right wrist. It is now clear that it had been on his left wrist and Comcare’s Statement of Facts and Contentions confirmed that the operation of 1999 was on the left wrist, the lesion being a dorsal ganglion of the wrist. The operation performed in 2005 was for a new injury - a ganglion of the right wrist.  Comcare accepted liability on 2 December 2005 for what was termed aggravation of ganglion (right) with the date of injury being 12 October 2005.  The actual operation (once the liability was accepted) took place on 2 February 2006.

13. A return to work plan was completed on 23 March 2006. Mr Murphy was to work normal hours but he was only to handle cut notes not whole sheets, was to transport pallets using a trolley and was not to perform  knocking-up duties.  Mr Murphy was to be reviewed at regular intervals by Dr Tim Hwang, who took over from Dr Sleigh as the NPA physician.

14. Mr Murphy ceased employment with NPA on 7 June 2006.  He has given evidence that he resigned for personal reasons.  Following his resignation from NPA, he gradually increased his hours of work with Mutual Cleaning until he reached 40 hours per week.  His duties were those of Occupational, Health and Safety Manager.  The duties include visual inspections of cleaning sites and workers involved, keyboard work for about 30 minutes per day and very occasional mopping and vacuuming amounting to one hour per week.

15. In 2010 Mutual Cleaning was taken over by a company whose headquarters were in Sydney. Senior staff members were advised that their employment would be terminated in approximately two years’ time.  Mr Murphy was made redundant by Mutual Cleaning in February 2012, at which time he had no problems with his right wrist.  In September 2012 when he was at home doing more in the way of gardening, household chores and car cleaning he noted a recurrence of his right wrist ganglion. 

16. In the years between 2006 and September 2012 Mr Murphy underwent surgical excision of what is now described as a recurrent ganglion on 29 November 2007, 10 October 2008 and 8 October 2009.  The most recent operation was on 30 April 2013.  The operation of 30 April 2013 differed from all previous surgery in that it was performed arthroscopically and the wrist joint was approached from the dorsal surface of the wrist. All the previous operations were done from the volar aspect (or what the layman would consider the front surface of the wrist). 

17. Mr Berger in his evidence before the Tribunal agreed that the arthroscopic approach allowed for far greater magnification of the wrist joint and ligaments and it was his opinion that all earlier surgical procedures had been incomplete resections of the ganglion until the operation of April 2013.

18. Following the April 2013 operation and over a period of some weeks to months, Mr Murphy developed persistent pain in his right thenar eminence and the volar surface of his wrist. This did not become manifest immediately after the surgery as his arm was in a sling and he was taking analgesics on a regular basis.  His wrist was also immobilised with a volar slab.  It was only after he ceased taking the analgesics that he noted the level of pain and when he reported this to Mr Berger he was referred to Dr Muir, a pain management consultant.

19. Dr Muir made a diagnosis of a neuropathic pain disorder and initially started treating Mr Murphy with the medication Topiramate.  In his oral evidence Mr Murphy said that his pain is only present when he actively uses his right wrist or if he rolls over onto it while in bed.  However, there is localised numbness in the region of the scars that is constant.

20. Mr Murphy has been receiving treatment for depression associated with his right wrist pain, having been prescribed an anti-depressant medication by his general practitioner Dr Leow.

21. Since being made redundant in 2012 Mr Murphy has received Newstart Allowance payments and has recently set up an occupational health and safety business, Mark Murphy Consulting. He is now providing consulting services although he has only four clients to date, three of whom have agreed to pay $2,600.00, which represents payment of $50.00 per week over a year likened to a retainer.  To date Mr Murphy has not informed Centrelink of his recently established business but he said he had arranged a meeting to discuss this with Centrelink authorities.  Mr Murphy detailed the impact that his right wrist neuropathic pain disorder has had on his life and his activities. He is no longer able to participate in sports, bicycle riding (as he cannot firmly hold the handle bars), golf, tennis etc. Mr Murphy admitted to having a degree of ambidextrous ability but is essentially right hand dominant.

22. Currently Mr Murphy is not receiving any specific treatment. He takes Panadol for the pain a couple of times a week and uses a wrist support or splint which he has purchased over the counter at a chemist.  He showed the Tribunal his wrist support. 

23. It would appear that Comcare’s decision of 20 November 2014 denying any present liability for medical treatment for Mr Murphy’s right wrist arose from the opinion of Dr David MacIntosh, orthopaedic surgeon, who in summary determined that Mr Murphy’s condition is recurrent ganglia of the right wrist.  There is no evidence of a ganglion at present. 

24. In April 2014 Dr Andrew Muir, pain consultant, made a diagnosis of neuropathic pain syndrome, affecting Mr Murphy’s distal forearm and wrist secondary to the surgical treatment of the ganglion.  The occupational physician Dr Rowe, who saw Mr Murphy in April 2015, made a diagnosis of mild tenosynovitis or De Quervain’s tendonitis of the right wrist in addition to a chronic pain syndrome secondary to the multiple surgical procedures.  Dr Rowe attributed Mr Murphy’s condition to his work over a period of time without differentiating between the various duties Mr Murphy had undertaken.  Dr Rowe did however assign an 11 per cent whole person impairment rating based on the right wrist examination findings, with an additional 1 per cent for scarring.

25. At Comcare’s request Mr Murphy was seen and assessed by Dr Loretta Reiter on 10 March 2016.  Dr Reiter made a diagnosis of right carpal tunnel syndrome unrelated to previous ganglions or ganglion surgery.  Dr Reiter excluded a chronic pain syndrome and attributed any scapho-lunate ligament degeneration to Mr Murphy’s age.  She opined that the degeneration of this ligament did not affect Mr Murphy’s ability to work and therefore any comments on permanent impairment were not attracted or were irrelevant.  It would appear that following assessment by Dr Reiter, Mr Murphy lodged his claim with Comcare for compensation for right carpal tunnel syndrome.  The claim also included degeneration of the scapho-lunate ligament in the right wrist.  His claim was denied.

    EVIDENCE BEFORE THE TRIBUNAL

    Mr Mark Murphy

26. Mr Murphy’s oral evidence before the Tribunal has been summarised under BACKGROUND TO THE APPLICATION.     Additionally, Mr Murphy said that the plastic currency note paper was provided in large reams and weighed up to 25 kilograms but the reams were broken down into smaller bundles for the printing.  Mr Murphy also corrected his previous misapprehensions regarding the sequence of surgery to his left and right wrists.  This correction was based on some of the evidence lodged more recently with the Tribunal and the clarification by Mr Berger of typographical errors in his report in 1999.

    Mr Anthony Berger – Orthopaedic Surgeon

27. Mr Berger is an orthopaedic surgeon specialising in hand and upper limb surgery. He first operated on Mr Murphy in 1999, this operation being on the left wrist for a dorsally placed ganglion. The surgery resulted in complete resolution of the ganglion.  Mr Berger has operated on Mr Murphy’s right wrist on five occasions and has provided both Mr Murphy’s treating doctors and Comcare with the reports of all operations and his opinions. 

28. Mr Berger’s last report dated 12 February 2014 summarises Mr Murphy’s current status.  Most importantly, in this report Mr Berger expresses his opinion that Mr Murphy has had multiple recurrences which are not new separate injuries but relate to the original ligamentous injury which has failed to heal and has not been corrected surgically.  As a result of the multiple procedures, scarring has occurred in the volar aspect of the wrist and this contributed to wrist pain and restricted movement.  Hence, Mr Berger referred Mr Murphy to Dr Muir for pain management as further surgery was not indicated.

29. Mr Berger gave evidence to the Tribunal but as he had not seen Mr Murphy since early 2014 and in the interim Dr Rowe had made a diagnosis of De Quervain’s tendonitis and Dr Reiter had diagnosed carpal tunnel syndrome, it was arranged that Mr Berger examine Mr Murphy prior to giving evidence.  As a result of that examination Mr Berger said that he had localised the pain to the volar aspect of the right wrist, in particular in relation to the scar tissue consequent upon four operations and also to the thenar eminence (base of thumb).  In his examination he noted that the pain experienced by Mr Murphy was aggravated by flexion and extension of the wrist which might explain the history given by Mr Murphy that the pain woke him during the night. 

30. Mr Berger reported his examination findings including the negative findings.  He noted reduced sensation over the thenar eminence and a partially positive Tinel test although the pain elicited by pressure in the region of the median nerve did not extend to the fingers. He found no evidence of tenderness or any positive tests suggestive of De Quervain’s tendonitis.  As a result of this examination, Mr Berger stated that in his opinion Mr Murphy’s chronic pain related to transection of the palmar branch of the median cutaneous nerve, the lateral division of which supplies the thenar eminence and part of the volar surface of the wrist joint.  Based on his physical examination of Mr Murphy, Mr Berger excluded De Quervain’s tendonitis and carpal tunnel syndrome.

31. Mr Berger confirmed his diagnosis of ganglion associated with degeneration in the ligaments of the wrist that could be due to either the aging process or repetitive strain.  Mr Berger agreed that in his operative reports he had not identified degeneration of the scapho-lunate ligament until the operation performed in 2009.  He said that when he explored the wrist joint he found the ganglion was intimately related to this ligament.  While it was possible that this could have been a new occurrence, (to his credit) Mr Berger concluded that he had missed the ligamentous deterioration between 2006 and 2009. He confirmed that in his opinion the operations prior to April 2013 had not fully resected the ganglion. As a result, the so called aggravations of the ganglion were in fact recurrences of the incompletely excised original ganglion.  In response to a question from the Tribunal, Mr Berger said that in the April 2013 procedure, done arthroscopically, the arthroscope provided a greater magnification than that obtained with the human eye and additionally in this operation the surgical approach was from the dorsum of the wrist, avoiding all the previous operative scars and in fact deep to the scapho-lunate ligament.  There has been no recurrence of the ganglion in the nearly three and a half years since the surgery.

    Dr Andrew Muir – Consultant in Pain Management

32. Dr Muir saw Mr Murphy on referral from Mr Berger and provided a report dated 2 April 2014.  Dr Muir recorded Mr Murphy’s right wrist and thenar eminence pain with dysaesthesia of the lateral border of his right wrist. These symptoms were aggravated by activity and applying a powerful grip.  On examination, an area of abnormal sensation over the distal end of the radius to the base of the thumb was detected. Dr Muir made a diagnosis of neuropathic pain syndrome arising from the ganglion and its treatment. 

33. Dr Muir prescribed Topiramate which was to be increased gradually to a total of four tablets per day over four weeks and also advised that Mr Murphy was potentially a good candidate for a pain management program. In his evidence before the Tribunal, Dr Muir opined that the syndrome arose from damage to a cutaneous nerve in the course of surgical procedures. He considered there were no signs or symptoms consistent with carpal tunnel syndrome. He would have recommended that Mr Murphy undergo a trial of Gabapentin and perhaps tricyclic anti-depressants; and given the history of depression, cognitive behaviour therapy was indicated.  Under cross- examination he elaborated on the nerve damage concept to include surgical damage, damage to the blood supply of the nerve or involvement of the nerve in scarring. 

1. Dr Muir stated that his current treatment would be a trial of various pharmaceuticals commencing with the use of local lignocaine patches applied to the wrist. 

   Dr Loretta Reiter – Rheumatologist

2. Dr Reiter is a rheumatologist from New South Wales who gave her evidence by telephone.  She had seen Mr Murphy on 10 March 2016.  As a result of the history she obtained and her examination of Mr Murphy, she made a diagnosis of right carpal tunnel syndrome and stated that such a diagnosis did not require that the radiation of pain from the median nerve entrapped beneath the flexor retinaculum go to the tips of the thumb, index and middle finger.  Dr Reiter was of the opinion that if Mr Murphy’s right wrist and hand pain was due to a cutaneous nerve lesion it would be constant and not fluctuate in severity.  Dr Reiter said that her examination had revealed diminished sensation in the distribution of the median nerve.  She regarded degeneration of the scapho-lunate ligament to be age-related and not caused by repetitive work. 

3. Under cross-examination by Mr Carey, Dr Reiter agreed that she was wrong in stating that Mr Murphy’s pain had completely abated. She should have said that his pain was of a different character and that she could not exclude surgical injury as a possible cause.  Dr Reiter had some difficulty recalling all the aspects of her report as she did not have the file with her at the time she gave evidence.  When informed of Mr Berger’s examination findings on the day before Dr Reiter gave evidence, she agreed that those findings were not compatible with the diagnosis of carpal tunnel syndrome.  She did not agree with Mr Berger’s conclusion that the recurrent ganglia had resulted from incomplete resection in the first instance.  When it was pointed out that she had not addressed Mr Murphy’s work history, Dr Reiter stated that she had not taken a work history and therefore she would defer to the opinion of someone who had.  However, Dr Reiter did not believe that the knocking down process, which Mr Murphy identified as the major contributor to his condition, was of sufficient force to cause damage to a ligament or joint in the wrist.

   DOCUMENTARY EVIDENCE

4. The majority of the documentary evidence in terms of reports of expert medical opinion has been summarised under BACKGROUND TO THE APPLICATION.  However, the various radiological investigations undertaken throughout the course of Mr Murphy’s treatment are relevant as are letters forwarded to Comcare by the treating surgeon Mr Berger.

   Relevant Imaging

5. On 25 May 2006 an ultrasound of Mr Murphy’s right wrist was conducted at the request of Dr Hwang.  This revealed a 10 x 6 x 10 millimetre cyst, described as lying between the radial artery laterally and the tendon of the flexi-carpi radialis medially, leading to a radiological diagnosis of a ganglion.

6. Following the recurrence of Mr Murphy’s large volar wrist ganglion, an MRI (magnetic resonance imaging) of the wrist was performed and this showed a large recurrence of the ganglion that appeared to be arising from the scapho-trapezial joint. In August 2009 a further MRI was performed; again confirming what Mr Berger considered to be a recurrent volar wrist ganglion.  In September 2010 following further surgery another MRI scan showed no abnormality.

7. When Mr Murphy returned on 8 October 2012 with pain in his wrist and localised tenderness an ultrasound confirmed a persisting ganglion, and further surgery was undertaken. 

   Mr Berger’s correspondence with Comcare

8. In his letters to Comcare dated 11 June 2008, 18 June 2008, 20 August 2009 and 9 November 2012 Mr Berger described the clinical findings in the right wrist as being a recurrence of the original right sided volar wrist ganglion. In his request for acceptance of liability of 9 November 2012.  Mr Berger stated:

   ... Each time the ganglion recurs he has deteriorating pain that limits his daily activities and ability to work.  I am seeking approval for arthroscopic assessment of the wrist in order to determine the exact origin of this ganglion followed by the excision of the ganglion. ...

   RELEVANT LEGISLATION

9. Section 5A of the SRC Act defines an injury as follows:

   5A  Definition of injury

   (1)In this Act:

   injury means:

   (a)a disease suffered by an employee; or

   (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

   (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

   (2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

   (a)a reasonable appraisal of the employee’s performance;

   (b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

   (c)a reasonable suspension action in respect of the employee’s employment;

   (d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

   (e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

   (f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

   Section 5 B defines disease:

   5B  Definition of disease

   (1)       In this Act:

   disease means:

   (a)an ailment suffered by an employee; or

   (b)an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee

   (2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

   (a)the duration of the employment;

   (b)the nature of, and particular tasks involved in, the employment;

   (c)any predisposition of the employee to the ailment or aggravation;

   (d)any activities of the employee not related to the employment;

   (e)any other matters affecting the employee’s health.

   This subsection does not limit the matters that may be taken into account.

   (3)In this Act:

   significant degree means a degree that is substantially more than material.

10. Liability for an injury is accepted in accordance with s 14, which says:

    14  Compensation for injuries

    (1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

    (2)Compensation is not payable in respect of an injury that is intentionally self inflicted.

    (3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

    Pursuant to the acceptance of liability, s 16 provides for compensation in respect to medical expenses and s 19 for the payment of compensation in the form of weekly payments where injury has resulted in incapacity.

    SUBMISSIONS

    Mr Carey

11. Mr Carey and Mr Seit agreed that the Tribunal had jurisdiction to hear all three claims and to make a decision in accordance with the SRC Act, in particular s 14, s 16 and s 19; and did not challenge the 2005 determination accepting liability for aggravation of ganglion (right) and as Mr Murphy had lodged an application for a review of the denial of liability for neuropathic pain in order to obviate such a challenge, the Tribunal did not need to consider this matter further.

12. Mr Carey submitted the evidence of Mr Berger, that the right wrist volar ganglion was first diagnosed in 2005 and had resulted from or been contributed to by the nature of Mr Murphy’s repetitive work activities with NPA should be accepted as providing the causal link between the presence of a ganglion and Mr Murphy’s employment.  In addition, he noted that Mr Berger had clearly explained that the surgical procedures of 2008, 2009 and 2013 and the original procedure in early 2006 had not resulted in a complete resection of the ganglion until the arthroscopy of 2013.  Mr Berger had also given evidence that the repeated surgical explorations had resulted in damage to the palmar cutaneous branch of the median nerve resulting in a neuropathic pain syndrome requiring pain management (2016/1588).

13. In relation to the claim for the neuropathic disorder the costs already incurred were limited to two consultations - one in 2014 and one in 2015 - and the provision of two prescriptions for the medication Topiramate.  Mr Carey contended that as Dr Reiter had not taken a work history from Mr Murphy and had in her oral evidence deferred to the opinions of the treating doctors, her conclusions should be disregarded.  Mr Carey also submitted that given Mr Berger’s findings when he examined Mr Murphy on the second day of the hearing it was clear that there were no clinical signs compatible with the diagnosis of carpal tunnel syndrome as diagnosed by Dr Reiter; or of De Quervain’s tendonitis as diagnosed by the occupational physician Dr Rowe. 

14. Mr Carey noted that it had been Mr Berger’s opinion and that of Dr Muir (the pain management physician) that the clinical signs in the right wrist were those of a neuropathic disorder involving the palmar cutaneous branch of the median nerve.

15. Mr Carey submitted that when Mr Murphy resigned from NPA in mid-2006 he had not yet recovered from the surgical resection of the right wrist volar ganglion of 2 February 2006.  This was supported by the return to work program limiting Mr Murphy’s activities as of 23 June 2006.  He said that subsequent investigations have revealed the recurrence of the ganglion within three months of the surgical procedure.

16. Mr Carey submitted that the evidence before the Tribunal with respect to the neuropathic pain disorder was that it was treatable but that it would require time for the trial of various modalities of treatment and then a reassessment.  Mr Murphy’s capacity for employment related to his neuropathic pain from which he continued to suffer.  He had not been employed since the redundancy of May 2012 consequent upon Mutual Cleanings’ change of ownership and it is only recently that Mr Murphy has attempted some retraining and re‑employment. 

17. Mr Carey submitted that Mr Murphy was entitled to medical payments for the treatment of his neuropathic pain disorder under s 16 of the SRC Act, weekly compensation payments in accordance with s 19 of the SRC Act, and should be awarded the cost of the proceedings of his application as per s 67 of the SRC Act.

    Mr Seit

18. Mr Seit opened his submissions by agreeing that the Tribunal had jurisdiction to consider all three matters.   He submitted that the reviewable decisions made in relation to the second and third claims were correct on the basis that the original ganglion operated on in 2006 and subsequent ganglia were different ganglions; and not as Mr Berger had stated the same ganglion which had never been completely resected until 2013.  Mr Seit contended that Mr Murphy’s continuing neuropathic pain in the right wrist could well be secondary to surgical injury arising from the operation performed by Mr Berger on 30 April 2013. 

19. Mr Seit submitted that there was no evidence, particularly intra-operative evidence, of ligament degeneration involving the scapho-lunate ligament before the procedure of 2009.  As Mr Murphy had ceased employment with NPA in 2006 before assuming full time duties with Mutual Cleaning, there was no evidence of continuing repetitive type work as Mr Murphy now worked full time as a quality assessor and occupational health and safety advisor.  As Mr Murphy had been made redundant in May 2012 and he did not develop a recurrence of or a new ganglion of his right wrist until October 2012 having had no surgery in the intervening three years, Mr Seit submitted there was no ongoing work-related injury at the date of cessation of work, which had occurred for reasons other than incapacity.

20. Mr Seit contended that all three decisions should be affirmed.

    TRIBUNAL’S DELIBERATIONS

21. Mr Murphy’s claim has been beset by misinformation. Some of this has been due simply to typographical errors, for which he is not responsible; but some of which he has in his ignorance perpetuated. 

22. The Tribunal believes this misinformation has been corrected in the course of evidence; with one exception.  In summary, the medical conditions and surgical interventions are:

    ·the diagnosis of a ganglion on the dorsum (back) of Mr Murphy’s left wrist in 1998 (not his right wrist);

    ·surgical excision of the left dorsal ganglion in 1999 - which was curative and uncomplicated;

    ·in 2005 Mr Murphy developed a volar (front) aspect ganglion of his right wrist with associated pain and tenderness;

    ·In February 2006 this ganglion was resected by Mr A Berger via a volar approach (front of wrist).  Comcare accepted liability  for what has been termed aggravation of ganglia (right), although the available evidence indicates this was a totally new and different lesion unrelated anatomically to the earlier left dorsal wrist ganglion;

    ·the right wrist ganglion recurred within three months of surgery as confirmed by an ultrasound on 25 May 2006;

    ·the ganglion (right wrist) recurred in 2007/8, the recurrence being verified by an MRI which suggested the ganglion arose from the scapho-trapezial joint;

    ·the letter from Mr Berger dated 18 June 2008 is incorrect where it says there had been two recurrences already;

    ·a repeat surgical resection via a volar surgical approach,  took place on 10 October 2008;

    ·a further symptomatic recurrence confirmed by an MRI on 20 August 2009 was treated surgically on 8 October 2009;

    ·a further recurrence was notified on 9 November 2012 with a request for acceptance of liability for arthroscopy of the right wrist and excision of the ganglion;

    ·On 30 April 2013 arthroscopy was performed on Mr Murphy’s right wrist.  In contrast to all previous operations the surgical approach was via the dorsum of the wrist and the arthroscope was introduced into the joint through the posterior ligaments not the scapho-lunate ligament.  The magnification provided by the instrument and the approach through normal tissue resulted in the ganglion being identified as arising from the wrist joint capsule via a large hole in the capsule with the ganglion being on the volar aspect of the joint.  The scapho-lunate ligament was described in the operation report as being a little attenuated (thinned) but intact.  The ganglion was excised and the joint capsule from which it originated, with the adjacent synovium lining of the joint, was resected and the area cauterised.

    ·There has not been any recurrence of the ganglion to date. However, Mr Murphy has had continuing pain, swelling and some stiffness of his right wrist joint. 

23. Mr Berger’s reports have at times been conflicting.  In his report dated 22 August 2013 he attributed Mr Murphy’s recurrent ganglion to degenerate changes in the radio-scapho-capitate ligament. In the 2010 operative report the defect was said to be in the scapho-lunate ligament. And in 2013 the scapho-lunate was described as a little thinned but intact. 

24. In his evidence before the Tribunal Mr Berger made it quite clear that he believed that the ganglion diagnosed in 2005 in Mr Murphy’s right wrist had recurred from 2006 up until 2013 because it was not until 2013 that it had been completely excised. 

25. Mr Murphy’s residual pain has been attributed to surgical damage to the palmar branch of the median cutaneous nerve of the forearm injured either directly or by subsequent fibrosis following the four ganglion resections of 2006, 2007, 2008 and 2009, all performed through an anterior volar incision.

26. Dr Muir is of the same opinion as Mr Berger; and Dr Reiter has deferred to the opinion of Mr Berger based on his examination of Mr Murphy conducted on 28 July 2016.

27. Thus, based purely on the expert evidence before the Tribunal, the right volar ganglion diagnosed in 2005 was a new work-related injury, the surgical treatment of which has been incomplete in terms of total resection. It has not recurred to date following resection in 2013. As a result of repeated surgical procedures, Mr Murphy has developed a right wrist neuropathic pain syndrome secondary to direct trauma or post- surgical fibrosis. 

28. Comcare did not call Dr David MacIntosh to give evidence but the Tribunal has noted his report (T29) wherein he says that the wrist joint ganglion may be caused or aggravated by heavy or repetitive activities.  Dr MacIntosh was under the misapprehension that Mr Murphy’s right wrist ganglion was first diagnosed and operated on in 1999 and that the 2005 so called aggravation was a recurrence.  In his assessment of 6 November 2013 Dr MacIntosh, while acknowledging Mr Murphy’s persistent symptoms, found a normal range of movement of the right wrist and considered Mr Murphy fit for full time work provided he avoided heavy or repetitive activities using his right wrist.

29. The cause of ganglia of the wrist is not known, as was opined by all experts.  The Tribunal Member, who collects medical texts, notes this is the same opinion as that expounded in the 1960 textbook by Adams entitled Outline of Orthopaedics (Publisher Churchill Livingstone) (3^rd Edition 1960) including that they are a degenerative process of tendon sheaths and/or joint capsules sited more commonly on the dorsum than the volar surface of the wrist and will recur unless completely excised. 

30. The Tribunal decides that Mr Murphy’s right volar wrist ganglion diagnosed in 2005 arose out of his employment with Note Printing Australia and has recurred as a result of incomplete resection to at least April 2013. The Tribunal also decides that Mr Murphy’s continuing wrist pain, diagnosed as a neuropathic disorder, arises from the multiple surgical procedures and is a direct sequelae of the original injury.

31. Comcare’s liability under s 14 of the SRC Act continues. Mr Murphy is entitled to medical treatment under s 16. With respect to Mr Murphy’s level of incapacity and any compensation attracted by s 19 of the SRC Act, the Tribunal remits this particular determination to Comcare for reconsideration in light of the possibility that treatment as outlined by Dr Muir may lead to the resumption of full time work and also in light of Mr Murphy’s evidence that he has, as recently as of June/July 2016, established an occupational health and safety consultancy that would not entail heavy or repetitive work.

32. Comcare is to pay the costs of the proceedings in accordance with s 67 of the SRC Act.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

........................[sgd]....................................

Associate

Dated   26 September 2016

Date of hearing	27 – 28 July 2016
Counsel for the Applicant	Mr Mark Carey
Solicitors for the Applicant	Slater and Gordon Lawyers
Counsel for the Respondent	Mr Roy Seit

APPENDIX - EXHIBITS

APPLICANT

A01Statement of Evidence Mr Mark Murphy dated 11 September 2015.

A02Further Statement of Evidence Mr Mark Murphy dated 21 January 2016.

A03Return to Work Plan – Mr Mark Murphy, dated 23 March 2006 unsigned.