O'Donnell v State of NSW (Illawarra Shoalhaven Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	O'Donnell v State of NSW (Illawarra Shoalhaven Local Health District) [2022] NSWPIC 494
APPLICANT:	Matthew O'Donnell
RESPONDENT:	State of NSW (Illawarra Shoalhaven Local Health District)
Member:	John Wynyard
DATE OF DECISION:	5 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments and section 60 of the Workers Compensation Act 1987 (1987 Act) expenses arising out of injury to left elbow and ankle whilst an AIN; whether Chronic Regional Pain Syndrome (CRPS) like symptoms resulting from pre-disposition following simple sprain injuries had broken the causal chain; whether employment substantial contributing factor; Held – the applicant’s pre-disposition to CRPS like symptoms was not a relevant matter as to causation as an employer took a worker as it found him/her; State Transit Authority v Fritzi Chemmler applied; employment accordingly a substantial contributing factor; award applicant to limit of section 37 entitlement.
determinations made:	1. The applicant has suffered injuries to his left elbow and left arm as pleaded. 2. The injuries to the left elbow have not resulted in any incapacity, but the injury to the left ankle on 29 March 2019 has caused Mr O’Donnell to have no current capacity. 3. The entitlement period for payment of weekly compensation has expired, and for the reasons given above, payment of weekly compensation is to be paid to the date the entitlement pursuant to s 37 expires. The wages schedule filed by the applicant was unreliable as to the dates, although I accept that the pre-injury average weekly earnings is $1,034.30.
orders made:	1. The respondent will pay the s 60 expenses incurred with regard to the injuries to the left elbow and the left ankle upon production of accounts, receipts and/or HIC Notice of Charge. 2. There is an award for the respondent in respect of the claim for weekly payments as a result of injuries to the left elbow on 28 January 2017 and a deemed date of 8 December 2017. 3. The parties will file short minutes of order within seven days in compliance with these findings as to weekly compensation.

STATEMENT OF REASONS

BACKGROUND

The applicant, Daniel O’Donnell, seeks weekly payments of compensation and s 60 expenses from the respondent, State of NSW (Illawarra Shoalhaven Local Health District).
The Application to Resolve a Dispute (ARD) claimed that Mr O’Donnell injured his left elbow on two occasions, 28 January 2017 and a deemed date of 8 December 2017. There was a further claim for injury to the left ankle on 29 March 2019.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Did the applicant sustain an injury?
(b)    If so, was employment a substantial contributing factor to the injury?
(c)    If so, does the applicant have any current work capacity?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSSION (the Commission)

The parties attended an arbitration hearing on 4 May 2022. The applicant was represented by Mr Bruce McManamey of counsel instructed by Messrs RMB lawyers. Mr Ross Hanrahan of counsel appeared for the respondent instructed by Messrs Bartier Perry, lawyers. 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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    WorkCover certificates emailed at the hearing;
(d)    injury notification of 29 March 2019 emailed at the hearing;
(e)    written submissions of the applicant;
(f)    written submissions of the respondent, and
(g)    written submissions in response.

Oral evidence

The respondent was granted leave to cross examine the applicant.

FINDINGS AND REASONS

Applicant’s statement - 28 January 2022

Mr O’Donnell was born in 1990. He was employed by the respondent as an Assistant in Nursing by the respondent at the Port Kembla Hospital in 2010, commencing as a casual but becoming permanent six months later. At the time of his first injury, 28 January 2017, he was working in rehab.
A patient weighing “approximately 216kg” was being moved by the applicant and two others up in a bed, using slide sheets. Mr O’Donnell immediately felt shooting pain from the left elbow into his arm. His general practitioner (GP) put him off work for “a couple of weeks” and he returned to work on light duties, which had increased to full duties by August 2017. He continued working full duties until December 2017.
On 8 December 2017 Mr O’Donnell and a wardsman were lifting a 125kg patient’s immobile left leg in a sling when:
“Suddenly I got pain in my left arm and elbow.”
Mr O’Donnell was off work for about a month and returned on light duties. From the end of January 2018 he was working eight hours a day, four days per week, with lifting restrictions. However in March 2018 he began suffering symptoms of muscle spasms in his left hand and arm, which caused such pain that his left hand would claw and his elbow “retracts into my body and locks.” These symptoms were random and happened at any time.
Mr O’Donnell sought medical attention and was advised by his neurologist Dr McGrath that he suffered Chronic Regional Pain Syndrome (CRPS). Mr O’Donnell was off work again for a week or so, and was certified fit for light duties, of which none were available. Liability was admitted and payments made until 7 June 2018, after which time Mr O’Donnell took his annual leave.
On 27 August 2018 the applicant returned to work on light duties at Shellharbour Hospital, working in the medical ward. On 29 March 2019 Mr O’Donnell slipped when showering a patient, injuring his ankle. He was taken to the staff room and recorded the incident electronically. He again took time off and was due to return to work on 2 April 2019. He thought he had a sprained ankle, but on 2 April 2019, after limping and in increasing pain, he fell and hit the ground at home. He said:
“Since that time I have fallen frequently. My leg just gives way underneath me.”
Mr O’Donnell sought medical assistance from his GP Dr Le on 5 April 2019. His first advice was that the applicant had suffered a sprain, but Mr O’Donnell noted the onset of more severe symptoms. His entire foot was changing colour and became hypersensitive. He underwent an MRI scan on 29 April 2019 and was reviewed by a pain specialist Dr Murray on 30 May 2019. By this time he was falling four to five times a day, and had concussed himself twice by hitting his head as he fell. Mr O’Donnell has not worked since 29 May 2019. He had a further MRI scan of his left hip which he had hurt in another fall. He had physiotherapy from 30 July 2019, and commenced hydrotherapy on 6 August 2019. He also came under the care of an exercise physiologist on 23 January 2020, although that treatment was suspended for a while due to the pandemic.
Mr O’Donnell said that he understood one of the reasons for the insurer’s denial of liability was that he did not make a claim until 29 April 2019 on a background of having given a history of falling in the shower. At the time he electronically made the claim, Mr O’Donnell had been falling four to five times per day and there was further confusion because of his earlier claim for his elbow. He said that he became aware that the insurer did not know whether this was a new injury or the recurrence of the CRPS he had experienced with the elbow injury. When he became aware of this confusion, Mr O’Donnell lodged a new claim for his ankle in late August 2019.
As at the date of his statement on 28 January 2022, Mr O’Donnell uses a walker all the time. He was admitted to Wollongong Hospital in June 2020 to treat aseptic meningitis which he had acquired secondary to a Privigen infusion which had been administered by “the Neurologist” to treat his CRPS. Since then he has suffered “frequent and constant” headaches which varied in intensity and in relation to the most serious (“ice pick attacks”), Mr O’Donnell passes out. He was treated for this condition by Botox injections by Dr McGrath, which did not help the headaches, although they initially assisted the clawing of the left hand. He was then administered Emgality injections, which assisted with the headaches. Mr O’Donnell said that his right hand was now affected, as it swells, changes colour and temperature and gives him frequent “neuropathic” pain. It had also started to spasm and claw in the last months.
Mr O’Donnell said that he experiences a lot of his left ankle pain from the outer aspect of the ankle, where there is also intermittent swelling and colour change. This spreads up to his left mid-calf, and he also experienced pain behind the left knee travelling to the foot. Mr O’Donnell was also experiencing symptoms in his right leg that were similar to his left leg. The pain was a “neuropathic” stabbing and burning pain which started in the outer aspect of the right ankle and spread to the foot. Mr O’Donnell said:
“It has not progressed up the leg.”
Mr O’Donnell said that he was quite disabled and unable to partake in his pre-injury activities. He lived with his parents, who assisted in his care, and he was receiving Centrelink payments.

Cross-examination

18.Mr Hanrahan was granted leave, as indicated, to cross-examine the applicant. Mr Hanrahan referred accurately to the effect of the oral evidence in his submissions, and accordingly it is not necessary to relate the detail.

Medical evidence

Dr John Ditton, anaesthetist and consultant physician in pain medicine, was retained by the insurer. He supplied two reports dated 15 October 2021 and 13 November 2021.[1] He took an accurate history consistent with Mr O’Donnell’s statement and concluded in his first report:[2]
“Mr O’Donnell did not have adequate signs to satisfy the Workers Compensation Guide or Budapest criteria for a diagnosis of Complex Regional Pain Syndrome at the time of his consultation with me. However, he did have some indications of autonomic instability. Signs consistent with CRPS have been reported by other assessors.
Mr O’Donnell’s initial injury to his left arm indicated a traction injury most probably involving the radial nerve at the elbow. Subsequent symptoms and signs have been suggestive of CRPS type II but there have been atypical features. In relation to the nerve injury, the claimed level of numbness is not consistent with the results of nerve conduction studies. The reported distribution of pain and sensory loss is to some extent specific to the median nerve anteriorly and the radial nerve posteriorly, but the same digital involvement anteriorly and posteriorly is not consistent with the classical anatomical descriptions. The sensory loss distal from the elbow that appears to be maximal in the distribution of the ulna nerve does not match this diagnosis. I note that symptoms and signs in CRPS are commonly observed outside the distribution of the injured nerve(s) but in those cases the margins of the sensory dysfunction are usually less specific than have been reported in this case.
In relation to the ankle injury there is no indication or reason for nerve damage. The persistent symptoms are again somewhat localised to the site of injury. In addition, a sudden intermittent complete numbness and loss of function in the foot is not typical of CRPS, whereas the feeling of the foot giving way is not uncommon in association with chronic pain.
I note that Mr O’Donnell has had persistent inflammatory responses with or without local oedema following infections and also apparently in response to a number of medications. This could be indicative of a dysregulation of his inflammatory mediators.
Neural inflammation is also involved in the maintenance of chronic pain and
particularly neuropathic pain. It is reasonable that Mr O’Donnell’s persistent symptoms are due to a traction injury to the radial nerve and a soft tissue injury in the region of the lateral malleolus. The persistent pain and hypersensitivity in each region is being maintained due to a failure of inflammatory mediators to regulate the inflammatory response to the initial injury.
Mr O’Donnell has reasonable psychometric parameters but it is my opinion that psychological factors and pain beliefs are also contributing to his level of disability.”
[1] Reply pp 8 and 19
[2] Reply pp15-16
Dr Ditton advised further:[3]
“Mr O’Donnell attributes his ankle symptoms to a fall that occurred at work on 28 March 2019. I have no indication of any other cause of these symptoms. On this basis, it is reasonable to accept that Mr O’Donnell’s employment was the substantial contributing factor to this condition.
I note my explanation under “diagnosis” above of the probable mechanism involved.”
[3] Reply p 16.
Dr Ditton then answered questions from the insurer.[4]
[4] Reply p 16.
“Please confirm both the diagnosis for the left elbow and left ankle? Are these 2 injuries causally linked?
The criteria for a diagnosis of Complex Regional Pain Syndrome (CRPS) are not currently satisfied. However, the development of CRPS is a complex interaction that is associated with neurological, psychological and inflammatory processes.
Mr O’Donnell has neuropathic pain in the left arm with some autonomic instability that has followed a traction injury most probably involving the radial nerve at the left elbow.
The mechanism that is causing the maintenance of the pain could reasonably be a dysregulation of his inflammatory modulators.
It is my opinion that CRPS in the left elbow is not a cause of the ankle symptoms.
However, the same predisposition to develop CRPS or a related condition in response to a nerve traction injury at the elbow could be the cause of the excessive response to the soft tissue injury of the ankle.
Can Chronic pain syndrome progress from the left elbow to the left ankle?
Some clinicians believe that CRPS can spread from one limb to another. However, in this case it is more likely that Mr O’Donnell has a propensity to respond to trauma in a way that causes him to develop neuropathic pain.
Current medical opinion relating to CRPS suggests that there is an inflammatory process in the nervous system, associated with the release of cytokines and other proinflammatory substances that occurs in response to trauma that is part of the cause of the persisting pain. It is possible that Mr O’Donnell has a genetic tendency to respond to trauma in this way. Opioid medication has been shown to also release proinflammatory cytokines in the nervous system. Opioids have a capacity to cause or aggravate this type of pain….
What is your medical opinion on Mr O’Donnell’s current fitness for work?
Fitness to work correlates poorly with medical evidence of injury.
Mr O’Donnell’s current presentation indicates that he does not currently have a capacity to work.”
In his second report, Dr Ditton was invited to clarify his opinion. He said:[5]
“Mr O’Donnell complains of persistent pain in his ankle and does show some minor signs of autonomic dysfunction relating to skin colour and temperature change. These observations support his claim of persistent pain.
The IASP [International Association for the Study of Pain] has suggested that a condition where there is persistent pain but without diagnostic criteria for CRPS should be recognized. Pain transmission through the central nervous system is associated with the release of pro-inflammatory substances (eg cytokines and substance P). There appear to be some people who have a failure of the mediators that turn off the inflammatory response to these substances. This results in the development of persistent hyperalgesia. It is my opinion that this type of mechanism could be responsible for Mr O’Donnell’s persisting pain.”
[5] Reply p 20.
Mr O’Donnell retained Dr Tim Ho, pain medicine and rehabilitation medicine physician, who issued two reports dated 9 December 2020 and 10 June 2021.[6]
[6] ARD pp 362 and 372.
In his first comprehensive report, Dr Ho made the following diagnosis:[7]
“1. Chronic neuropathic left upper extremity and left lower extremity pain, secondary to probable CRPS (I note that Mr O’ Donnell does not satisfy the WorkCover criteria for CRPS based on the limited assessment today, and some components of the examination cannot be completed due to the telehealth setting. Please see above under ‘Examination’).
2. Cortical augmentation with adjustment disorder, catastrophisation, and poor self-efficacy.
In my opinion, the above diagnoses are triggered and caused by the injuries, and further perpetuated by adjustment disorder, catastrophisation, and poor self-efficacy…
Capacity for work – Mr O’Donnell’ disability with work is consistent with the above diagnoses. In my opinion, Mr O’Donnell’s physical and work capacity may still improve with further intensive multidisciplinary pain management program. I opine that Mr O’ Donnell’s chronic pain syndrome has also significantly compromised his competitiveness for employment in the current labour market. I further opine that it is unlikely that Mr O’ Donnell would be able to return to his premorbid work.”
[7] ARD p 369
In his supplementary report, Dr Ho repeated his diagnoses. He said:[8]
[8] ARD p 375
“I note that there was no premorbid history of chronic pain prior to the index events. In my opinion, the above diagnoses are triggered and caused by the index events, and perpetuated by adjustment disorder, catastrophisation and poor self-efficacy and I further opine that Mr O’Donnell’s disability is causally related to the index events (see previous report dated 9 December 2020).”

The applicant also relied on an opinion from Dr Sheikh M Habib, consultant in orthopaedics and trauma, who supplied a report dated 10 April 2020. He said:[9]

“Diagnosis:
1. Post traumatic/traction injury, Complex Regional Pain Syndrome of the left arm/hand.
2. Post traumatic left fool / ankle Complex Regional Pain Syndrome…
Causation / Attributability:
His employment with Illawarra Shoalhaven Health District is the substantial/ main contributor to his current conditions.
Fitness for Employment:
ln his current condition and slate of health he is not fit for work including his pre-injury employment as assistant nurse. The long term prognosis for fitness for employment is uncertain but considered favourable.”
[9] ARD p 361

Dispute Notices

There were three dispute notices issued by the insurer.[10] The first related to the claim for the left ankle, the second confirmed the denial for the left ankle, and the third notice issued after Mr O’Donnell had made a fresh claim for the left ankle, for the reasons he outlined in his statement, and related to both the left ankle and the left elbow.
[10] ARD pp 15, 23 and 33.
The reasons given in each notice betrayed some confusion as to the import of Dr Ditton’s comprehensive reports. Perhaps the most illuminating example was in the following statement in the second dispute notice, that of 16 July 2020:[11]
“We prefer the evidence of Dr Ditton on diagnosis and his opinion that you do not have CRPS. This is because of Dr Ditton’s speciality as an Anaesthetist and Consultant Physician in Pain Medicine, and noting the absence of any sufficient investigations into your claimed CRPS condition.”
[11] ARD p 26
Each notice relied upon the statement by Dr Ditton and (in the third notice) Dr Ho that CRPS had not been established in accordance with the Workcover Guidelines for CRPS, nor indeed with the Budapest criteria. The notices disputed that any injury had occurred, or if it had, that employment was neither a substantial nor the main contributing factor to it. The notice claimed that Dr Ditton had not been able to provide a “conclusive diagnosis” but that the applicant had displayed behaviour that was “inconsistent with diagnosis.”

No issue was raised as to the fact that Dr Ditton had not been advised of an earlier 2014 left ankle injury. The first dispute notice alleged that the left ankle injury “appeared to relate” to a fall in the shower reported to the GP on 10 July 2019, as the claim was made on 29 August 2019.

SUBMISSIONS

Mr McManamey

Both parties filed written submissions, as indicated. Mr McManamey submitted that the primary issue was whether Mr O’Donnell had suffered an injury to his left ankle. If he had, it was argued, then an award in his favour would have to follow, as Dr Ditton found that Mr O’Donnell had no current work capacity.
Mr McManamey submitted that although the applicant had asked for production of the electronic report of injury Mr O’Donnell lodged in the staff room following his injury on 29 April 2019, it had not been produced. A report by the acting NUM (nurse unit manager) identified as D Lal, was an ex post facto report, as Ms Lal had not been the interim NUM until July 2019. Even so, Mr McManamey argued, it confirmed that Mr O’Donnell’s left ankle gave way whilst washing a patient, which was consistent with the applicant’s account.
Mr McManamey referred to the certification issued by Dr Le, on 23 August 2019, and the consistent history contained therein of the injury to the left ankle. Mr McManamey referred to the opinions of Dr Murray, Dr Habib and Dr Ho, who all confirmed a diagnosis of CRPS. Although the applicant had been seen by Dr Keller in 2018, no complaint had been made about the left ankle, Mr McManamey said. Moreover, the clinical notes showed that the 2014 injury to the left ankle had resolved by September 2014.
Mr McManamey submitted that there had clearly been an injury to the left ankle on 29 March 2019. Whilst it was thought to be a mere sprain, it soon transpired that another condition had developed, which was identified as being a CRPS, or something closely resembling such a syndrome. The fact that Mr O’Donnell had a pre-disposition to CRPS was irrelevant to the occurrence of the injury. Mr O’Donnell had no current capacity to work.

Mr Hanrahan

Mr Harahan repeated some oral submissions he made prior to the conclusion of proceedings on 4 May 2022. He referred to the dispute notice of 2 December 2019 and its assertion that Mr O’Donnell’s employment was not a substantial contributing factor to the left ankle injury. Mr Hanrahan referred to the 2014 injury, noting that neither Dr Ditton nor any other medical practitioner had been given that history. Thus, Mr Hanrahan said, the opinions of the medical practitioners that supported the applicant were not given in a climate that was fair to the respondent.
Mr Hanrahan claimed that there was no record of the applicant’s fall in the shower on 29 March 2019 or of his “landing on the floor five minutes later.” Nor, as I understood Mr Hanrahan, was there any record of the applicant’s need for a wheelchair at the time.
Mr Hanrahan also submitted that the primary issue was whether the applicant had suffered an injury that day. He noted that Dr Ditton had found that the applicant had no current work capacity.
Mr Hanrahan then considered the issues he had raised in cross-examination. He conceded that the report of injury by D Lal, the acting registered nurse, must have post-dated the injury as she did not become such until July 2019. Mr Hanrahan referred to his cross-examination as to the events of 29 March 2019, without further considering it.
Mr Hanrahan then made submissions regarding the January 2014 incident when Mr O’Donnell rolled his left ankle whilst stepping off a curb. He referred to the clinical notes that recorded his subsequent difficulties up until September 2014. Mr Hanrahan said:
“It does appear that he was required to do extensive walking in the course of his employment but such likely causal circumstances weren’t pleaded in this application.”
Mr Hanrahan submitted that some abnormalities had been detected on an MRI scan of 10 July 2014 which showed the applicant’s “pre-existing complex anatomy” in the left ankle. Mr Hanrahan noted that Mr O’Donnell had been cleared to return to normal duties “at that time.” Mr Hanrahan conceded that Mr O’Donnell’s oral evidence that he had no further symptoms and did not wear a brace, was “not inconsistent” with the clinical notes.
Mr Hanrahan then outlined the treatment history following Mr O’Donnell’s injury of 29 March 2019, and the recorded onset of the CRPS condition, which had already affected the left elbow and which was “somehow complicating or causing symptoms in some unexplained fashion to the left ankle as well.”
Although Dr Ditton had confirmed that the applicant’s employment had been a substantial contributing factor to the injury, Mr Hanrahan argued that it was “certainly” not the main contributing factor, in view of the applicant’s “significant pre-disposition” to develop CRPS. It was submitted that Dr Ditton said in his supplementary report that the “main reason” was the applicant’s constitutional condition. The respondent had not been able to consider the possibility that “the early history was in any way relevant.”
There was no clear history of the events which allegedly happened in March 2019, Mr Hanrahan said. It caused nothing more than an initial soft tissue injury which had now been complicated by the development of symptoms, the main cause of which was Mr O’Donnell’s pre-existing condition which made the applicant susceptible to CRPS. “The causal effect of the incident when the ankle gave way is limited on the basis of this causation,” Mr Hanrahan said.
Mr Hanrahan submitted that there should be an award for the respondent in any event for the claim regarding the left elbow. Whilst the applicant may have been injured in that respect, there was no evidence that the present incapacity concerned the elbow.
Mr Hanrahan lastly submitted that it may be inappropriate for weekly payments to be ordered beyond the second entitlement period. Any consideration of entitlement pursuant to s 38(2) of the Workers Compensation Act 1987 (the 1987 Act) was to be conducted by the insurer. There were “thorny problems” in that regard.

Mr McManamey in reply

Mr McManamey submitted that it was unclear as to how the respondent’s expert had been compromised by not knowing about the 2014 injury. The respondent had the relevant clinical notes, and indeed cross-examined the applicant on their content. No explanation had been forthcoming as to why those notes had not been drawn to Dr Ditton’s attention and in the absence of such an explanation the inference was available that any further opinion from Dr Ditton would not assist the respondent.
Notwithstanding, Mr McManamey questioned why a condition that had last been treated in September 2014 had any relevance to the frank incident of March 2019 in any event. The applicant’s oral evidence in cross-examination had been conceded to be not inconsistent with the clinical records in that regard, and no further symptoms were recorded after September 2014.
Mr McManamey noted that submissions had been made about employment being “the main contributing factor” in a case that was based on a personal injury pursuant to the definition in s 4 of the 1987 Act. Further, he argued that the applicant’s pre-disposition to CRPS was not an element of the actual soft tissue injury to the left ankle that the respondent conceded had in fact occurred. The current total incapacity was thus related as the causal chain had not been broken, I understood Mr McManamey to submit, as the applicant’s pre-disposition to CRPS was not unrelated to the workplace injury.
Mr McManamey submitted that the appropriate course would be to make orders for the payment of weekly compensation until the expiry of the entitlement period, with no order thereafter.
If the view is taken that there is no jurisdiction with respect to s 38 then the appropriate course is to make orders for the payment of compensation for the first 130 weeks with no order thereafter.

Discussion

Section 4 of the 1987 Act provides relevantly:
“‘injury’ --
(a) means personal injury arising out of or in the course of employment,
(b) includes a-
‘disease injury’, which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, …”

51. Section 9A of the 1987 Act provides relevantly:

“(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note : In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4.”

Although three injuries were claimed in the ARD form, it is the third injury of 29 March 2019 to the left ankle that is claimed to have caused the applicant’s current incapacity. Whilst that injury itself was relatively innocuous Mr O’Donnell has developed atypical and unusual symptoms in the left ankle area.
There was some unanimity amongst the medical specialists in the case. I was not addressed on any inconsistencies between the reports in the histories taken. Mr O’Donnell’s history to every medical practitioner was consistent with his statement as to the onset of CRPS in the left elbow and other symptoms in the left ankle, following the sustaining of sprain type injuries. Indeed, Dr Ditton, the insurer’s expert, gave the most cogent explanation as to the features of this unusual case. His opinion included a detailed look at the development of CRPS in the left elbow, and the cause of the left ankle problem.
Whilst Dr Ditton found no CRPS in the left ankle, he said, to repeat:
“It is reasonable that Mr O’Donnell’s persistent symptoms are due to a traction injury to the radial nerve and a soft tissue injury in the region of the lateral malleolus. The persistent pain and hypersensitivity in each region is being maintained due to a failure of inflammatory mediators to regulate the inflammatory response to the initial injury.
Mr O’Donnell has reasonable psychometric parameters but it is my opinion that psychological factors and pain beliefs are also contributing to his level of disability.”
Dr Ditton advised that employment had been “the substantial factor” to Mr O’Donnell’s condition. He allowed that some clinicians believed that the condition of CRPS can spread from one limb to another, but advised that it was more likely that the injury was caused by a propensity to respond to trauma by developing neuropathic pain, which I note in passing was the description given by Mr O’Donnell himself for his symptoms. In considering the current medical opinion regarding CRPS, Dr Ditton posited the possibility that Mr O’Donnell might have a genetic tendency regarding an inflammatory process in the nervous system
In his second report, Dr Ditton noted continuing complaints of persistent pain, and he did note some minor signs of autonomic dysfunction relating to skin colour and temperature. He supported Mr O’Donnell’s claim of persistent pain as a result of his observations. Again Dr Ditton referred to an academic publication which explained the science of the transmission of pain through the nervous system, but which did not satisfy the markers for CRPS. That type of mechanism, Dr Ditton said, could be responsible for the applicant’s condition.
The applicant’s expert, Dr Ho, also found Mr O’Donnell’s case to be a diagnostic puzzle. He described a chronic neuropathy in both injuries, advising that it was secondary to probable CRPS, whilst also noting that the formal criteria were not satisfied. He also found an element of psychological involvement.
The insurer’s denial had been based on the three Dispute Notices referred to above. The grounds of the denial were difficult to follow. In the light of Dr Ditton’s opinion, it could not be said, as was alleged, that he had been unable to provide “a conclusive diagnosis”. It was difficult to comprehend the insurer’s later statement that the applicant’s behaviour was “inconsistent with diagnosis”. Moreover, the claim that employment had not been a substantial contributing factor to the injury was also difficult to understand when the insurer’s own medical expert had advised that it was - or at least it was “the substantial contributing factor”.
The best interpretation of the declinature was that Mr O’Donnell’s pre-disposition was a factor that was a substantial contributing factor. There are some problems with that view also.
The applicant suffered a personal injury as described in s 4(a) when he injured his left ankle on 29 March 2019. The mechanism was that he slipped whilst washing a patient. In cross-examination Mr Hanrahan made as much as he could of the fact that Mr O’Donnell slipped twice in that procedure, and needed a wheelchair to be moved after the second slip when he injured his ankle. Mr Hanrahan submitted that the lack of record as to these details would so affect the applicant’s case that I would not be able to accept that Mr O’Donnell had met his onus.
That submission must be rejected. In the first place, Mr O’Donnell said that he made an electronic report whilst he was in the staff room on 29 March 2019, but such report has not been produced and, more significantly, no explanation for the insurer’s failure to do so has been forthcoming when the report was sought by the applicant. I accept Mr McManamey’s submission that such a request was made.
Secondly, Mr Hanrahan’s submission would require me to have some doubts about Mr O’Donnell’s credit. I followed Mr Hanrahan’s cross-examination with some interest and found Mr O’Donnell to be an impressive witness. He answered questions willingly, and made full and intelligent answers to the questions asked of him. It is of some relevance that Mr Hanrahan could only suggest that the lack of record should dissuade me from accepting Mr O’Donnell’s evidence, whilst conceding that the report of injury that the respondent did produce from NUM Lal was written at a later time in July 2019. In any event the content of that report – that the left ankle gave way while washing a patient - was not inconsistent with Mr O’Donnell’s account.
Mr Hanrahan also submitted that there was a causal problem even if it were accepted that the injury had occurred, as it caused only a soft tissue injury. In one way, Mr Hanrahan echoed the medical problem described by the medical experts when he submitted that the left elbow CRPS condition had “somehow” complicated or caused symptoms “in some unexplained way” to the left ankle. As indicated, the cause of the injury was in fact explained by Dr Ditton, but that explanation appears to have escaped the respondent’s notice.
Mr Hanrahan’s cross-examination thus fixed on the event recorded in the clinical notes that Mr O’Donnell had rolled his ankle on a curb in 2014. His cross-examination was designed, as I understood it, to establish some link between that event and the appearance some five years later of the condition that developed in Mr O’Donnell’s left ankle following what was thought to be a simple soft tissue injury.
Again, in his submissions Mr Hanrahan conceded that Mr O’Donnell’s answers in cross-examination were “not inconsistent” with the clinical notes of the time, which indicated that the applicant’s problems resolved by September 2014. Mr Hanrahan suggested, as indicated, that it appeared that Mr O’Donnell was required to do extensive walking in the course of his employment in 2014. This was a “likely causal circumstance” that had not been pleaded in his present case, he said, thus confirming the relevance of the 2014 injury to the applicant’s present condition, and enabling him to submit that the failure by the applicant to admit to the 2014 injury compromised the medical evidence, again to the extent that he had failed to satisfy his onus.
There is in fact no suggestion that extensive walking was a relevant causal circumstance at all, with respect. The mechanism of injury required a soft tissue injury, as was explained by Dr Ditton. Accordingly, although Mr Hanrahan said all that could be said in attempting to find some link between the applicant’s condition in 2019 and a resolved ankle injury in 2014, I reject his submission. There is also Mr McManamey’s point that the respondent itself was possessed of the clinical notes and could have obtained a further report from Dr Ditton if it thought the prior injury was relevant.
Thus I am satisfied that the applicant suffered a personal injury when he injured his ankle on 29 March 2019. Accordingly, s 9A is the applicable section and the disentitling provision is concerned with “a substantial contributing factor.” This is not a disease case as defined in s 4(b)(i) or (ii), so the more stringent test of “the main contributing factor” is not applicable, although it appeared that Dr Ditton thought it was in fact ‘the” contributing factor in any event.
Both counsel made submissions about the causal factors in somewhat opaque terms. Mr Hanrahan submitted that the “main cause” of the applicant’s condition was the development of symptoms caused by his pre-existing condition which made him susceptible to CRPS. Mr McManamey submitted that Mr O’Donnell did not have a “pre-existing condition,” but rather a pre-disposition, a distinction which I accept, as Dr Ditton explained it in his first report. Mr McManamey submitted that although the actual left ankle injury did not contain an element of CRPS, Mr O’Donnell’s pre-disposition had not broken the causal chain.
Further, Mr McManamey argued, as I understood him, that the applicant’s pre-disposition to CRPS was not an element of the actual soft tissue injury to the left ankle that the respondent conceded had in fact occurred, but that the current total incapacity was related as the causal chain had not been broken, I understood Mr McManamey to submit, as the applicant’s pre-disposition to CRPS was not unrelated to the workplace injury.
I take it that Mr McManamey was referring to the talem qualem rule in making that submission. As described by Spigelman CJ in an unrelated matter, State Transit Authority v Fritzi Chemmler [2007] NSWCA 249 at [40], the rule – that employers take their employees as they find them - applies in this jurisdiction as it does in negligence.
Dr Ditton’s opinions I found to be well argued and researched. Whilst he discounted any involvement of CRPS in his first report, he nonetheless accepted that Mr O’Donnell had suffered a genuine injury which involved a traction injury to the radial nerve and a soft tissue injury to the malleolus, which by virtue of a failure of inflammatory regulators to regulate the inflammatory response, had caused the persistent pain and hypersensitivity.
In his second report, having found signs and symptoms of CRPS itself, Dr Ditton maintained his opinion that although the formal criteria in the guidelines were not satisfied, he confirmed that Mr O’Donnell’s condition was genuine and concerned with the involvement of a faulty nervous system regarding the transmission of pain. I accept that this underlying vulnerability was a pre-disposition which might have never been revealed but for the subject injury, and accordingly the talem qualem rule applies.
I was unable to comprehend why the two injuries to the left elbow had been included in this claim. Weekly compensation is sought from 30 May 2019, and relates to the incapacity caused by the left ankle injury. I was not addressed as to the relevance of the left elbow injury, but it may be that it was thought there was some connection between the CRPS in that area, which was agreed by all medical practitioners, and the left ankle. I will make a general order for s 60 expenses in regard to both injuries, but the evidence regarding incapacity relates only to the left ankle injury, and there will be an award for the respondent in that regard.

As noted by counsel, the claim is for a continuing award, but the entitlement period of 130 weeks has expired. It was suggested that I simply make orders until that date but no order thereafter so that, presumably, the insurer can implement the terms of s 38 itself. I think that is the appropriate course in this case.

DECISION

I find that the applicant has suffered injuries to his left elbow and left arm as pleaded.
The injuries to the left elbow have not resulted in any incapacity, but I find that the injury to the left ankle on 29 March 2019 has caused Mr O’Donnell to have no current capacity.
The entitlement period for payment of weekly compensation has expired, and for the reasons given above, I will order payment of weekly compensation to the date the entitlement pursuant to s 37 expires. The wages schedule filed by the applicant was unreliable as to the dates, although I accept that the PIAWE is $1,034.30.
Accordingly:
(a) The respondent will pay the s 60 expenses incurred with regard to the injuries to the left elbow and the left ankle upon production of accounts, receipts and/or HIC Notice of Charge.
(b) There is an award for the respondent in respect of the claim for weekly payments as a result of injuries to the left elbow on 28 January 2017 and a deemed date of 8 December 2017

(c) The parties will file short minutes of order in compliance with these findings as to weekly compensation.

[2022] NSWPIC 494

5 September 2022