Murphy and Comcare (Compensation)

Case [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…

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Details
AGLC
Murphy and Comcare (Compensation) [2016] AATA 744
Case
[2016] AATA 744
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Murphy against a decision by Comcare to deny his claim for compensation. Mr Murphy had a long history of employment involving repetitive wrist movements, which led to the development of ganglions in both his left and right wrists. Comcare had previously accepted liability for aggravation of a ganglion in his left wrist and a new injury to his right wrist, but denied his subsequent claim for right carpal tunnel syndrome and degeneration of the scapho-lunate ligament. The Tribunal was required to determine the nature of Mr Murphy's conditions, their causal relationship to his employment, and whether Comcare's denial of his claim was justified.

The central legal issues before the Tribunal were whether Mr Murphy's right carpal tunnel syndrome was a new injury unrelated to his accepted conditions, and whether the degeneration of his scapho-lunate ligament was a compensable injury. The Tribunal had to consider the medical evidence presented, including opinions from orthopaedic surgeons and a specialist physician, to ascertain the cause and extent of Mr Murphy's ongoing wrist pain and dysfunction. This involved resolving conflicting medical opinions and clarifying the sequence and nature of previous surgical interventions.

The Tribunal's reasoning focused on meticulously dissecting the medical history and evidence. It noted significant misinformation and typographical errors that had complicated the case. The Tribunal accepted that Mr Murphy's left wrist ganglion surgery in 1999 was curative. However, it found that the subsequent issues with his right wrist, including the development and recurrence of a ganglion, were distinct from the left wrist condition. Crucially, the Tribunal found that the right carpal tunnel syndrome diagnosed by Dr Reiter was a new condition unrelated to the accepted ganglion issues. Regarding the scapho-lunate ligament degeneration, the Tribunal found that while it was present, it was considered age-related and not a work-related injury that impacted Mr Murphy's ability to work.

The Tribunal affirmed Comcare's decision to deny the claim for right carpal tunnel syndrome and scapho-lunate ligament degeneration. It concluded that these conditions were not causally related to Mr Murphy's employment in a manner that attracted compensation under the relevant legislation.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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.

Evidence

Evidence Before The Court

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 TRIBUNALMr Mark Murphy 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 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. 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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Seit contended that all three decisions should be affirmed.TRIBUNAL’S DELIBERATIONS 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. 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. 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.