Penny v State of New South Wales (Western NSW Local Health District) - [2021] NSWPIC 72

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Penny v State of New South Wales (Western NSW Local Health District) [2021] NSWPIC 72
APPLICANT:	Dayle Louise Penny
RESPONDENT:	State of New South Wales (Western NSW Local Health District)
MEMBER:	Mr Michael Perry
DATE OF DECISION:	12 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for costs of proposed surgery to flexor carpi radialis (FCR) tendon under section 60 of the Workers Compensation Act 1987 (the 1987 act); medical issue as to diagnosis of FCR tendinitis or underlying osteoarthritic condition; issue also as to whether proposed surgery was reasonably necessary; Held- proposed surgery was reasonably necessary and as a result of work-related injury; respondent ordered to pay applicants claimed costs of the proposed surgery pursuant to section 60(5) of the 1987 Act.
DETERMINATIONS MADE:	1. That on 21 June 2019, the applicant suffered an injury to her right wrist, in the nature of flexor carpi radialis tendonitis, in the course of her employment with the respondent. 2. That the proposed surgery to the applicant’s right wrist, namely decompression of her right flexor carpi radialis tendon, is reasonably necessary as a result of the injury in paragraph 1 above. 3. The respondent is to pay the applicant’s costs of the proposed surgery referred to in paragraph 2 above, in the sum of $4,063.85, pursuant to s 60 (5) of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Dayle Penny (the applicant) suffered an injury about her right wrist area (the injury) in the course of her employment as a registered nurse with the State of New South Wales (the respondent) on 21 June 2019 at the Eugowra Memorial MPS (the Nursing Home). She has since caused an Application to Resolve a Dispute (ARD) to be filed.
The ARD claims $4,063.85 for medical and related expenses under s 60 of the Workers Compensation Act1987 (the 1987 Act) for the cost of surgery, to decompress her right flexor carpi radialis (FCR) tendon, proposed by the orthopaedic surgeon Dr Samuel Kwa (Dr Kwa).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation conference and arbitration hearing on 12 October 2020. Josh Beran of counsel, instructed by Michael Evans, solicitor, appeared for the applicant. Greg Young of counsel, instructed by Melissa McDonald, solicitor, appeared for the respondent. Ms Danyelle Allen, from the respondent’s insurer (QBE), also attended.
During my subsequent consideration, I concluded that justice required that I request an assessment of the two issues noted in paragraph 7 as a general medical dispute pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The parties were given notice of such proposed course and neither objected to it. The request for that assessment was made on 12 November 2020. The assessment was undertaken by Medical Assessor Dr Rob Kuru (the Assessor) on 5 March 2021 who provided a Medical Assessment Certificate (MAC) on 17 March 2021.
The matter was then listed for a further teleconference on 29 March 2021 when Michael Evans, solicitor, appeared for the applicant and Jenne Tzavaras, solicitor, appeared for the respondent. Each solicitor noted receipt of the MAC and asked for an opportunity to provide, and soon thereafter did provide, short written submissions dealing with the MAC.
I used my best endeavours in attempting to bring the parties to a settlement, acceptable to each, during the conciliation phases. I am satisfied they had sufficient opportunity to explore settlement and were unable to reach one. I am also satisfied they understand the nature of the application and legal implications of any assertion made in the evidence.

ISSUES FOR DETERMINATION

There are two issues as follows: firstly, what is the diagnosis of the injury; secondly, whether the proposed surgery is reasonably necessary treatment, including the question of what is the reasonably necessary treatment, for the purposes of s 60 of the 1987 act.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and taken into account in making this determination:

(a) The ARD;

(b) Reply;

(c) Medical report from Dr Kwa dated 4 May 2020. This was put into evidence by the respondent during the arbitration with no objection from the applicant, and

(d) The MAC dated 17 March 2021.

The respondent also sought to have admitted a report of 23 June 2020 from Professor William J Cumming AM, orthopaedic surgeon (Prof Cumming) into evidence. Applicant’s counsel objected on two bases: firstly; it had not been disclosed in the notice issued under s 78 of the 1998 Act - in breach of s 73 of the 1998 Act and cl 41 of the then Workers Compensation Regulations 2016. Mr Beran also argued the June report was only served on the day of the arbitration, in breach of a direction on 18 September 2020 that any further document sought to be relied on should be lodged and served by 5 October 2020. There were three other reports of Prof Cumming in the Reply, dated 25 October 2019, 30 October 2019 and 23 July 2020.
Mr Young said he sought to put the 23 June 2020 report in evidence for completeness, that its content was neutral in terms of its forensic advantage to each side, and he would not make a submission it was adverse to the applicant’s case. After considering the report for the purposes of its admissibility into evidence, I found that Mr Young’s statements were proper and accurate, but rejected the report on the basis that it was served outside the time allowed by my 18 September 2020, direction, because its content was forensically neutral anyway, and because there was no essential inconsistency between Prof Cumming’s 23 June 2020 report and his other reports.
Mr Beran made a submission that I should draw a “Hancock” (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11) inference against the respondent – that the absence of Prof Cumming’s 23 June 2020 report weakened the opinions in his 23 July 2020 report because the opinions in the latter report were based on the history taken in his 23 June 2020 Telehealth assessment. Mr Beran did not identify any passages in either report to support this submission.
Mr Young submitted that the opinions in the 23 July 2020 report were “self-contained” - based upon material and assumptions contained in that report. Consistent with this submission, I note that the only matters relating to the Telehealth assessment that appear to have been reported or relied upon by Prof Cumming in his 23 July 2020 report, are that
Dr Kwa had not seen the applicant “now for more than six months” and that the applicant was “wearing a splint” and continued to take analgesics. Otherwise, Prof Cumming’s opinion in his 23 July 2020 report appears to have been based upon additional analysis of documents otherwise in evidence. I found that I would not draw any adverse inference against the respondent’s case because the 23 June report (which the respondent attempted to put into evidence) was not in evidence.

Applicant’s statement 21 August 2020

On 21 June 2019, while the applicant was assisting a patient, the patient grabbed her right wrist very firmly and twisted it. She found it difficult to get the patient to release her grip and had to prise her fingers off. She felt immediate pain, but continued to work. There was no one else to take her place if she stopped. About an hour later, she needed to perform a similar task to assist the same patient and the “same thing happened again …”.
The applicant had a dull burning discomfort with no strength in her wrist and found it very difficult to attend to her regular duties. She stopped work on 29 June 2019 because of ongoing pain. She continued to have problems carrying out various activities, and had regular strong pain in the wrist “which gets worse if I have to use it and when I am resting at night … aches with pain and is very uncomfortable … weak and stiff and … often use my left hand to support my right wrist”. She lives on a rural property in central west NSW “which requires a lot of work both inside and outside”. She was unable to properly work around the property since her injury. It also adversely affected her ability to ride horses which is “one of my great passions in life”.
The applicant saw Dr Gurung, General Practitioner, who referred her for an MRI scan and to Dr Kwa. After the applicant underwent the MRI scan, she saw Dr Kwa on 6 August 2019. He organised for an injection to the applicant’s right wrist on 24 September 2019. Her symptoms disappeared for about two weeks, then returned.
The applicant saw Dr Kwa again on 10 December 2019. There was discussion about the option of another injection or “the more permanent solution” of surgery “for decompression of the FCR tendon”. She does “want … the surgery because I no longer want to deal with the pain and inconvenience that the injury to my wrist is causing me”. She was scheduled to have another injection on 14 August 2020 but stated “I don’t really want to do it because it hurts so much and the relief is only temporary but I have decided to do it because the insurance company wants me to”.
The applicant also started physiotherapy on her wrist attending once a week for about three to four weeks but then stopped “because it was hurting too much both at the time and made things worse later on”. She took Ibuprofen, Paracetamol and magnesium for her wrist pain. She had also tried Naprosyn 500 and Panadeine Forte but these also made her feel nauseated. She needs to use a wrist guard at home for outside duties and also tape her wrist for support.

Dr Samuel Kwa, orthopaedic surgeon – hand, elbow, shoulder

Dr Kwa reported on 6 August 2019 that he examined the applicant 5 August 2019 and noted:
“… a demented patient grabbed her wrist and twisted it quite hard … had pain … gradually increasing … denies any previous problems … no paraesthesia or numbness to suggest carpal tunnel syndrome … has had a splint but … no corticosteroid injections … feels … a constant burning sensation over the volar radial aspect of the wrist with some swelling … movements in flexion, extension and radial and ulnar deviation are painful …”
Dr Kwa’s examination showed “localised swelling and tenderness over the scaphoid tubercle and the FCR tendon”. He noted plain x-rays and ultrasounds reported no abnormalities:
“but I do note … ultrasound did not look at … FCR tendon, only the extensor tendons in the carpal tunnel … MRI … reported a small perforation of the TFC but this is on the opposite side of the wrist to where she is experiencing her symptoms … did not report any abnormality of the tendons on the radial side … did report some oedema in the distal scaphoid … consistent with where she is experiencing her pain …”
Dr Kwa opined that the applicant presented with volar wrist pain which was possibly related to the distal scaphoid, suggesting that there may be a bruise of the bone in that location. However, he noted that the location of the swelling was also suggestive of FCR tendonitis and “I have therefore referred her for a trial injection of the FCR tendon sheath”.
The “trial injection” occurred on 24 September 2019. Dr Kwa reviewed the applicant on 10 December 2019 and reported that the “… injection for her FCR tendon … gave her excellent relief of pain for two weeks … pain has returned … is still over the FCR tendon at the wrist … no pain dorsally or in the anatomical snuff box”. He also noted a recent MRI showing “ … some minor synovitis in the carpus and minor degenerative change in the first CMC and STT joint … although not reported I (did) see some minor fluid around the FCR tendon …”
Dr Kwa then opined that the applicant continued to have symptoms of FCR tendonitis, and that this diagnosis was: “supported by the temporary relief from the cortisone injection …” He then stated that he could trial another injection but :
“… this may also be temporary … more permanent solution would be decompression of the FCR tendon … explained to her the operation … its risks, benefits, complications … she would like to proceed with the surgery rather than trialling further injections and this is very reasonable and will do so when insurance approval is forthcoming ….”
Dr Kwa’s 4 May 2020 report was requested by QBE who had provided “the report from Prof Cumming”. By that time Prof Cummings had prepared two reports, of 25 and 30 October 2019. It is not clear which of those reports Dr Kwa is referring to, or whether the reference to a single report was an error. Dr Kwa’s report does refer to QBE’s “request for information”. If that was by letter, it does not appear in the evidence. Otherwise Dr Kwa only states that he took the time to read Prof Cummings’ report, and had not seen the applicant:
“…for close to 5 months… Therefore cannot make a comment on her current situation… have not administered a second course of cortisone injection nor have I arranged a technetium scan as I have not reviewed this would be inappropriate for me to order tests or management investigations without further review…”

Dr Gregg Burrow, orthopaedic surgeon examination and forensic report 31 January 2020

Dr Burrow took a history of the applicant continuing to experience “marked volar scaphoid sided wrist pain at 8/10 … worse with activity and resting at night, associated with weakness and stiffness in the wrist … not had it before or on the other side …” He also noted the ultrasound of the right wrist being reported as “unremarkable” and that the MRI scan was reported as showing “a TFCC tear with ‘some signal change in the distal scaphoid but no definite fracture’”.
Dr Burrow also noted Dr Kwa found on examination “tenderness over the right wrist volar aspect of the tip of the scaphoid and diagnosed …(FCR)… tendinosis and organised an injection which gave her complete relief for about 2 weeks, only for the pain to recur”. He also noted that the applicant told him that she had a second MRI scan privately funded in December 2019 which was reviewed by Dr Kwa which apparently showed synovitis about the carpus and minor degenerative changes around the thumb CMC and STT joints which helped him recommend surgery.
Dr Burrow concurred with Dr Kwa’s diagnosis of FCR tendinosis. He could “find no clinical evidence of a specific injury to the triangular fibrocartilage (TFC) as there was no ulnar sided pain or tenderness …”. He agreed with Dr Kwa’s opinion as to the proposed surgery.

Professor Cumming - examination 24 October 2019 and forensic reports

Prof Cummings examined the applicant and reported on 24 October 2019. He examined the applicant approximately a month after the 24 September 2019 FCR injection, noting:
“… she states … she was very concerned that she needed to wait 6 weeks before the injection was given … condition however has now plateaued out and … she has ongoing pain on the volar aspect of her wrist to which she can point with one finger and which appears to be sited just proximal to the volar crease …”
On examination, Prof Cumming noted the “positive findings are that on her digits, particularly the little finger, there was a significant deviation with a Heberden’s node on the adjacent fingers … she stated … her mother has severe arthritis”. He also noted that the applicant’s tenderness in her wrist was localised between the FCR tendon and the palmaris longus tendon, just proximal to the transverse wrist crease, and that:
“ …producing contraction of the FCR by wrist flexion and radial deviation confirmed … a little tenderness in the (FCR) tendon but that it bypassed the area of tenderness and she stated that when the FCR was pressed on this was the pain … was therefore of the opinion … pain was more deeply placed … she stated … at one point there was … swelling there …”
Prof Cumming then opined “although this has been a frank injury … could be … osteoarthritic changes in her carpal row that the injury therefore has been caused to remain symptomatic over a long period of time … MRI study does not reveal any condition which ordinarily would not have settled … osteoarthritis … may be a factor in … her ongoing symptomatology …”
Prof Cumming stated he had high regard for Dr Kwa as a hand and wrist surgeon and “from memory his statements were related to the possibility of scapholunate stress and a possibility of FCR tendinosis” (Prof Cumming was then unable to find Dr Kwa’s report). Prof Cumming could not find the applicant had significant FCR tendinosis at that time but agreed there was “proximal carpal row stress”. He thought a technetium scan could assist in the diagnosis.
Prof Cumming then noted that:
“the question of whether there is a disease in addition such as osteoarthritis … requires … review … on a technetium scan although an MRI study has not revealed any significant osteoarthritic changes … therefore I consider … this is to be regarded as a frank injury and employment being the main contributing factor until the matter is considered otherwise …”
As to a specific question from the respondent’s solicitor about whether the applicant required further treatment, Dr Cumming stated that “this will depend upon the findings of Dr Kwa and I believe that he will need to see her again and give further opinion”.
Prof Cumming reported further on 30 October 2019 noting he was then in receipt of the report of Dr Kwa, had re-read it and “was interested to see the investigations carried out by Dr Kwa, and his provisional diagnosis as this problem in this patient was difficult to diagnose”. Prof Cumming noted that Dr Kwa :
“appeared to believe … it was in the superficial structures that is the musculotendinous structures in the region of the wrist, but my impression was that it was probably deeper and probably involving the proximal carpal row … examining Ms Penny, I believe … she had a compression stress to the proximal row of the carpus probably in the region of the sky fell in eight articulation … as her problems are ongoing and her symptoms significant and have recurred … Dr Kwa may wish to consider further investigations to clarify … ongoing diagnosis … suggest … technetium scan of her carpus may help localise the lesion …”
Prof Cumming’s 23 July 2020 report was the subject of detailed submissions by both counsel and I have recorded those submissions in a more fulsome way than usual given there is a dispute about diagnosis. This makes it unnecessary to provide that summary here. Suffice to say I have carefully considered this report.

Assessor Dr Rob Kuru, examination 5 March 2021 and MAC 17 March 2021

Each party understood that the referral of this general medical dispute would not produce a MAC which was conclusive within the meaning of s 326 of the 1998 Act – but that it would still be evidence to be taken into account and weighed with all other evidence in the case.
The Assessor had the benefit all documents in the ARD, Reply and the report of Dr Kwa of 4 May 2020. He noted the issues in dispute as formulated in par 7 above. His summary of the history is reasonably consistent with the evidence otherwise.
The assessor noted the applicant’s present symptoms involve continuing pain on the volar aspect of her wrist at the base of the thumb metacarpal if she picks up her nursing bag. When doing community nursing she is unable to hold the weight of the bag due to pain in her wrist. At home she has difficulty picking up a pot or a saddle. He also noted that the applicant was currently working part-time doing community nursing and was able to manage her wrist pain with this – and was hoping to increase her hours. She is also significantly restricted working around her property, but with some splitting or taping she is able to “push through” her symptoms.
On examination, the assessor noted tenderness over the radial volar wrist – in particular the FCR tendon “although she was tender a little medial to this. He also noted the MRI of the right wrist on 30 July 2019 as being “rather non - specific”, noting a degenerative tear of the triangular fibrocartilage. He also has thought “there was demonstrated minor degenerative change and some FCR tenosynovitis”. He assessed the 30 December 2019 MRI of the right wrist as showing similar findings.

In relation to the diagnosis, the assessor opined that “clinically … FCR tendinitis, although… not exactly clear on the imaging findings are subtle… most likely diagnosis … (FCR) tendinitis… possible that the injury represents an aggravation of underlying arthritis in the wrist or indeed, a combination of both”. In relation whether the surgery was reasonably necessary from a medical and surgical point of view the Assessor opined:
“… recommended surgery is reasonably necessary although I do have some concerns … may not be helpful given the subtlety of the changes seen on imaging… has ongoing significant pain in the right wrist, which she is currently able to manage. Surgical exploration of the (FCR)… would be reasonably necessary from a medical and surgical point of view should she become unable to manage her symptoms…”.

Oral Submissions for the applicant on 12 October 2020

The applicant stated that the FCR cortisone injection had a very good effect for about two weeks. The applicant symptoms almost disappeared and that when she returned to see
Dr Kwa on 10 December 2019 her symptoms had reappeared and Dr Kwa offered a further injection or the alternative of surgery to decompress the FCR. The applicant then stated that she wanted the surgery, she did not want the pain and inconvenience of any other treatment. She then stated that she was scheduled to undergo further injections; but she did not want that; she knew the relief would only be temporary and she wanted the “permanent fix”. He then stated that she was on a range of medications. The surgery proposed by Dr Kwa “would be expected to ameliorate them” (ARD 2-3).
Importantly, when Dr Kwa re-examined the applicant on 10 December 2019, he had a further MRI scan, and did see minor fluid around the FCR tendon, even though the radiologist did not reported that. Dr Kwa then noted that another injection could be tried, but that would only be a temporary measure, with the proposed surgery being the more permanent solution.
Dr Burrow is an experienced expert. He examined the applicant and noted ongoing pain and weakness. He also noted the findings and history taken by Dr Kwa and that the cortisone injection gave the applicant temporary relief. He concurred with Dr Kwa. The treating doctor and the forensic expert both support the proposed surgery, strongly pointing to the applicant having proved his case. Dr Burrow also did not find any evidence of TFC injury.

Prof Cumming last “touched” the applicant on 24 October 2019. His subsequent examination on 23 June 2020 was a “telehealth assessment”. There was a limitation with this as he was not able to conduct a physical examination of the applicant’s wrist, hand and or fingers. He also examined the applicant only approximately three weeks after her cortisone injection.
Prof Cumming is “preoccupied” with what he believes to be excessive osteoarthritic changes in the applicant’s hand and wrist. He says those changes were in the carpal row and that this “may” be the cause of her pain.
Prof Cumming expressed a high regard for Dr Kwa. He also noted that the MRI does not show any significant osteoarthritic changes. This contradicted his earlier opinion that such changes could be the explanation for the pain. As a result, his opinion should be given less weight than those of either Dr Kwa and or Dr Burrow.
The report of 23 July 2020 from Prof Cumming notes a further (December 2019) MRI report provided to him, but without the images. This puts his opinion at a disadvantage when compared to Dr Kwa’s report, who inspected each MRI and each set of films. After doing so, Dr Kwa was able to see the fluid around the tendon for himself.
Prof Cumming is still unable to be sure in his opinion – referring to the need to still confirm whether or not the problem is with the FCR tendon or not. He is also unsure whether or not the MRI consultant reviewed both sets of studies. Dr Kwa did review both sets of studies.
Nevertheless, Prof Cumming summarised the findings by the MRI consultant as confirming the presence of degenerative changes in the carpus which was the area of concern the doctor was mentioning in his earlier reports. He also notes as significant that the July 2019 MRI report referred to minor tenosynovitis around the extensor and flexor tendons whereas the second report in December 2019 reported those tendons as normal. He said this reinforced his previous statement that the flexor tenosynovitis of the FCR tendon is a soft tissue problem and with a period of rest, as has occurred in her case, it is likely to subside in comparison to an underlying osteoarthritis condition which could be progressive. The problem with this analysis is that the MRI did not show significant osteoarthritis, but did show inflammation of the tendon. Prof Cumming has therefore based his opinion on an incorrect assumption. In this regard, Dr Kwa has had the benefit of a more recent examination, with the benefit of both MRI reports and films.
In terms of the factors discussed in Rose v Health Commission (NSW) [1986] NSWCC 2; (1986) 2 NSWCCR 32 (Rose) and Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab), no alternative treatment is proposed. The technetium scan is not treatment.

Oral Submissions for the Respondent on 12 October 2021

The applicant has not discharged the onus of proof she carries. The examination by Dr Kwa on 10 December 2019 is crucial to the applicant’s case. The applicant stated that she was scheduled to have another cortisone injection on 14 August 2020. There is no evidence as to whether this occurred; and if it did, what was the result of it. Even more important is the question of what the treating surgeon would now think, in late 2020, about the diagnosis or whether the surgery was reasonably necessary – in circumstances where his last examination and analysis was in December 2019.
Dr Kwa’s report of 4 May 2020 shows that after reading Prof Cumming’s report, he could only state that he had not seen the applicant since December 2019 and could not comment on her current situation. He also noted he had not administered a second cortisone injection, nor had he arranged a technetium scan as he had not reviewed the applicant.
There was no evidence Dr Kwa had seen the applicant in the last 10 months. This is critical “when we can see between the two MRI scans that objectively symptoms have improved and clinically there is improvement as well”. In his August 2019 report, Dr Kwa noted the MRI reported some oedema in the distal scaphoid as well as localised swelling and tenderness over the scaphoid tubercle and FCR tendon. His opinion at this stage is that it is only “possible” that the applicant’s volar wrist pain “may” be related to the distal scaphoid. In his December 2019 report, Dr Kwa notes that the MRI does not report any abnormality around the FCR tendon. Then, although he did see some fluid around the FCR tendon, it is important that this is “minor”. If it was assumed that in fact a second cortisone injection did occur in or about August 2019, it would be important for Dr Kwa to know what the clinical response to that further procedure, in the light of likely clinical improvement between August and December 2019, before finally deciding whether it was reasonably necessary to proceed with the proposed FCR decompression surgery 10 months later.
Dr Kwa’s opinion in December 2019 is based on the clinical examination and the impact of the cortisone injection. To some extent it is based on the MRI’s as well, although neither
Dr Kwa or Prof Cumming find any significant radiological abnormality.
In these circumstances, there is too much doubt about the diagnosis and as to whether the surgery proposed in December 2019 is reasonably necessary in October 2020.
Dr Burrow’s report is deficient. It does not identify the issues, and really only says that the proposed surgery is reasonably necessary if Dr Kwa says so. Like Prof Cumming, Dr Burrow has a high regard for Dr Kwa. His report goes no further than to simply agree with Dr Kwa.
The respondent accepts that the only physical examination carried out by Prof Cummings was on 24 October 2019, but it was a thorough clinical and physical examination. This can be seen by noting his record of the clinical examination (final par ARD 12 – 13, pars 1-3). He noted a Heberden’s node and took a history that the applicant’s mother had severe arthritis. He also noted that the applicant’s wrist tenderness was localised between the FCR tendon and the palmaris longus tendon (PLT). He stated that producing contraction of the FCR:
“…by wrist flexion and radial deviation confirmed… a little tenderness in the (FCR) tendon but… It bypassed the area of tenderness and she stated that when the FCR was pressed on this was the pain… I was therefore of the opinion that her pain was more deeply placed and she stated that at one point there was a swelling there…”
Prof Cumming’s above reference to a swelling means the carpus. He then noted the 30 July 2019 MRI and comments that there is minor synovitis of the FCR tendon. He then opines that the applicant’s hands show very significant osteoarthritic changes in excess of her age and she has a strong family history of osteoarthritis; and therefore it could be that the injury is in the nature of osteoarthritic changes in the carpal row.
Prof Cumming’s 30 October 2019 report is mainly relevant because he was “now in receipt of the report by Dr Kwa”. This must refer to Dr Kwa’s 6 August 2019 report. He did not have the benefit of that when he reported on 25 October 2019. Nevertheless Prof Cumming adheres to his earlier opinion and noted that as the applicant’s problems were ongoing, and her symptoms are significant, Dr Kwa may wish to consider further investigations to clarify the ongoing diagnosis. He suggested a local, high-quality technetium scan of the carpus.
For his 23 July 2020 report, Prof Cumming had a further MRI report of 10 December 2019. This report contained findings which confirmed, for Prof Cumming, “the presence of degenerative changes with an inflammatory synovitis response in the carpus which is the area of concern… I have mentioned in my previous reports…” There was also a second finding of significance to Prof Cumming, i.e. the July 2019 MRI report showed minor tenosynovitis in the extensor and flexor tendons but in the December 2019 MRI report, the extensor and flexor tendons were reported as normal. This shows the clinical improvement in FCR tendon by December 2019.
Prof Cumming then concluded that the diagnosis was clear; there were underlying degenerative changes with an inflammatory response. He again suggested a technetium scan would assist to give an idea of the activity of the osteoarthritic change. The whole purpose of this was to avoid two operations instead of one. This is the Rose point. The respondent is also willing to pay for the proposed scan.
Prof Cumming goes on to respectfully point out that he had significant confidence in the ability of Dr Kwa to resolve the problem clinically but had not seen the applicant for more than six months and so has not had that advantage to this time. In response to the question as to whether the proposed surgery was reasonably necessary, Prof Cumming stated that “… I consider … decompression of the FCR tendon is not necessarily the appropriate treatment at this time … alternative is… technetium scan and clinical examination and consider surgery for the underlying pathology …potential effectiveness would be to avoid two operative procedures instead of one…”
It may be that the proposed surgery will be appropriate at some time in the future. But on the evidence as the applicant has chosen to have it put before the Commission now, she has not discharged the onus of proof that the surgery is reasonably necessary now, given the alternative diagnosis of Prof Cumming together with Dr Kwa having said that he cannot comment on this, not having examined the applicant since December 2019.
The 4 May 2020 report of Dr Kwa should be read as saying that he was unable to come to a considered opinion about questions put to him by QBE until he sees the applicant again.

Oral Submissions in Reply for applicant on 12 October 2021

As to the delay regarding the applicant not seeing Dr Kwa for some months, surgery was requested on 10 December 2019, but the respondent did not determine liability until 12 May 2020. The applicant should not be required to revisit Dr Kwa on the basis that there has been a six month lapse since she last saw him simply because it took the respondent six months to determine liability: and when he had already made the recommendation for the surgery and the applicant had decided to go ahead with that advice.
The respondent’s submission about “minor tendinopathy” is incorrect. The July 2019 MRI refers to “minor synovitis”. This was the same finding made by Dr Kwa when he looked at the second MRI scan. Dr Kwa did see minor fluid around the tendon. That is mild tenosynovitis. Dr Kwa is saying that the second MRI confirms the first MRI in this respect; and the results of the diagnostic injection finally confirmed it. The difference between Dr Kwa and
Prof Cumming is that Dr Kwa has seen the confirming minor fluid around the FCR tendon.
Dr Kwa’s opinion should be accepted in preference to Prof Cumming’s opinion for that reason too. The respondent is saying that in order to discharge the onus of proof the applicant has to submit to a diagnostic procedure dictated by the respondent.

Written submissions for the applicant on the MAC

While there was a degree of imprecision in each of the answers provided in the MAC, the diagnosis found by the assessor was right FCR tendinitis. As to whether the proposed surgery was reasonably necessary, the concerns expressed by the assessor about whether the surgery “may not be helpful given the subtlety of the changes seen on imaging” should be disregarded “as the efficacy of any medical procedure is uncertain and is in any event not the subject of this dispute”.
In relation to the Assessor’s comment that surgery of the FCR would be reasonably necessary “should she become unable to manage her symptoms” it is unclear what is meant by an inability to “manage” the symptoms. Also, the applicant statement, and the symptoms reported and recorded in the MAC show that the applicant “regularly faces a decision as to carry on her preinjury duties… and suffer increased pain… On the evidence the pain is ever present, it is the degree that varies… or refrain from those activities…”. The applicant has maintained these proceedings because she does not wish to “manage” the current situation any longer and wishes to have the recommended procedure carried out.

Written submissions for the respondent on the MAC

The diagnosis of right FCR tendinitis is not exactly clear and the imaging findings are subtle. Without being able to categorically diagnose the condition causing the applicant’s ongoing symptoms, it cannot be said with any certainty whether employment is causative of a condition requiring surgery or that the proposed surgery is reasonably necessary.
Regard should be had to the decision in Bartolo v Western Sydney Area Health Service (1997) NSWCCR 233 (Bartolo) and Diab.
The assessor’s opinion about diagnosis is far from conclusive. He confirmed that the diagnosis is not exactly clear and the imaging findings are subtle. So, the potential effectiveness of the treatment is an issue. The proposed treatment is not reasonably necessary because the assessor is of the view that the applicant may not derive any benefit from the proposed procedure and it should only be considered when she gets to the point that she cannot manage her symptoms. The applicant has not met the necessary onus to prove her case.

FINDINGS AND REASONS

The first issue – the diagnosis

This is a pure medical question. For this reason, and given the keenly fought contest, I thought it in the interests of justice that the referral of the general dispute be made. Before that referral, I had already leaned towards a persuasion by the medical evidence from
Dr Kwa and Dr Burrows in relation to diagnosis. Dr Kwa had the opportunity of examining the applicant on 6 August 2019 and 10 December 2019. He acknowledged that the first MRI reported a small perforation of the TFC, but noted that “this is on the opposite side of the wrist to where she is experiencing her symptoms … did not report any abnormality of the tendons on the radial site”. Dr Kwa also took into account the applicant’s volar wrist pain being “possibly related to the distal scaphoid, suggesting … a bruise of the bone in that location”. However, he also noted the location of the swelling was also suggestive of the FCT tendonitis. Without coming to a diagnosis at that stage, he referred the applicant for a trial injection of the FCR tendon sheath.
When Dr Kwa reviewed the applicant on 10 December 2019, he noted the history that the said trial injection gave her excellent relief from pain for two weeks; with the pain then returning – still over the FCR tendon at the wrist – and with no pain dorsally or in the snuff box. Importantly, he also then noted the recent MRI (10 December 2019). He had the benefit of both seeing the film and report. He noted that the report referred to some minor synovitis in the carpus and minor degenerative changes in the first CMC and STT joint but again, importantly, stated that “although not reported I… (did) see some minor fluid around the FCR tendon …” Only then did Dr Kwa provide his opinion about diagnosis – and stated that the applicant continued to have symptoms of FCR tendonitis, which diagnosis was supported by the temporary relief from the cortisone injection. Dr Kwa’s diagnosis was further informed by him seeing minor fluid around the FCR tendon on the 10 December 2019 MRI.
Dr Burrow agreed with Dr Kwa on diagnosis. He also had the benefit of examining the applicant – on 31 January 2020. His clinical findings were essentially the same as Dr Kwa.
Prof Cumming was concerned since his examination of the applicant on 24 October 2019, that it was not “in the superficial structures that is the musculotendinous structures in the region of the wrist” that needed attention but rather the problem “was probably deeper … involving the proximal carpal row”. Prof Cumming thought that the applicant “had a compression stress to the proximal row of her carpus” and that a local, high quality technetium scan of her carpus was the appropriate treatment, at least at first instance.
Prof Cumming recommended that his report be sent to Dr Kwa. That did occur and Dr Kwa did respond as noted in para 23 above. The decision to refer the issues for assessment as a general medical dispute was also influenced by the applicant’s apparent forensic decision to obtain an up to date report because Prof Cumming had an opportunity, in his report of 23 July 2020, to answer the report of Dr Kwa of 10 December 2019. However, as submitted for the applicant, it is likely that Prof Cumming did not have access to the MRI images when he conducted such analysis. He only had the “second MRI report dated 10 December 2019 in which the report states there is first CMC and STT joint degenerative changes with synovitis … also states that the extensor and flexor tendons appear normal”. Dr Kwa did view such images and agreed there was some synovitis in the carpus and minor degenerative changes in the first CMC and STT joints. But he also went on to report that he saw minor fluid around the FCR tendons – although that was not part of the MRI report by the radiologist. In my opinion, this is a significant factor pointing towards the diagnosis of Drs Kwa and Burrow, and the Assessor, being the most likely diagnosis.
Also, Prof Cumming (on 23 July 2020) does not really deal with Dr Kwa’s findings in this respect. He does confirm his previous statement that the flexor tenosynovitis of the FCR tendon “…is a soft tissue problem and with a period of rest, as has occurred in her case, it is likely to subside in comparison to an underlying osteoarthritis condition which could, as is likely to be the basis of probability, progressive”. Prof Cumming goes on to say that the significance of this is that if the osteoarthritis aspect of his diagnosis was “symptomatic and causing part or all of her problem then surgery to the (FCR) would not relieve her condition”. This opinion is also less persuasive to me than those of Drs Kwa and Burrows (and the Assessor) because the applicants FCR symptoms have not subsided, having regard to the clinical examination and history taken by the Assessor in the MAC.

I also do not take Prof Cumming to be denying at least the possibility that the diagnosis of
Dr Kwa is correct. Rather, he is saying that FCR tendinitis may be a diagnosis, but the osteoarthritis is as well, and the latter is the main problem that needed to be addressed.
Prof Cumming’s view was that the technetium scan should be employed to identify the pathology.
Prof Cumming has stated that he has significance confidence in the ability of Dr Kwa to resolve this problem clinically. In the result, Prof Cumming’s opinion was that “therefore, at this point in time, … the decompression of the FCR tendon is not necessarily the appropriate treatment at this time … the alternative is to perform a technetium scan …”
In the MAC, the assessor, after considering all of the relevant information, found that the most likely diagnosis was right FCR tendonitis. He did consider the possibility that the injury also represents an aggravation of underlying arthritis or indeed a combination of both that arthritis and the FCR tendonitis, again, the most likely diagnosis was the FCR tendonitis.
Accordingly, for these reasons, the weight of the medical evidence is in favour of, and I am persuaded that, the most probable diagnosis is right wrist FCR tendonitis, and I so find.

The second issue – is the proposed surgery reasonably necessary?

My above finding in relation to diagnosis does not necessarily mean the proposed surgery is reasonably necessary - if only because Prof Cumming has not ruled out the existence of FCR tendonitis. His opinion is that technetium scan should be undertaken and then “consider surgery for the underlying pathology”. He considers that underlying condition to be the osteoarthritis which “is usually treated by excision of the trapezium with or without tendon transfers”. He says he is unable to provide any more detail regarding the relative cost but that the potential effectiveness would be to avoid two operative procedures instead of one.

There is no adequate evidence about the relative cost of the technetium scan and the proposed surgery. I could speculate it is likely that the latter would be significantly more expensive than the former, but I am not able to speculate. The respondent says the technetium scan has the potential to avoid two operative procedures instead of one.

In my opinion, the balance of the evidence is comfortably in favour of a finding that the proposed surgery is reasonably necessary within the meaning of s 60 of the 1987 Act.
Dr Kwa has considered (10 December 2019 report) the “risks, benefits, complications and rehabilitation” of the proposed surgery and explained this, and the nature of the operation, to the applicant. This included consideration by both Dr Kwa and the applicant about trialling further injections. However, the applicant said she would rather proceed with the surgery.
Dr Kwa noted that the proposed surgery was a more permanent solution and that the trial injections may have only been temporary.

Dr Kwa thought the applicant’s decision about opting for the surgery was “very reasonable”. I appreciate that Dr Kwa later wrote, on 4 May 2020, that he could not comment on the applicant’s current situation because he had not seen her for some time, and it would be inappropriate for him to order tests or management investigations without further review. But I do not infer from this comment that his view was changed from the opinion he expressed on 10 December 2019. There usually must be some significant gap in time between when a doctor recommends surgery and when the surgery actually commences; and the doctor will satisfy him or herself that it is still appropriate, at time of surgery, to proceed.

Dr Burrows’ evidence also strongly points towards the proposed surgery being both reasonably necessary and also as a result of the injury. He opines that “the prognosis is guarded at this stage with no surgical intervention” and that “the expectation is that surgery will give her a good outcome as she has had a good response to the intervention about the tendon … your client has been recommended surgery by her treating surgeon. I agree. She needs no other treatment currently. She should proceed with the surgery”.
Prof Cumming was asked a specific question, which he recorded in his 23 July 2020 report as to whether the proposed surgery was reasonably necessary as a result of the injury. He commenced answering this by noting that “there is still some doubt in the circumstances and nobody has examined this woman recently to confirm whether there is FCR tenderness or whether the tenderness is deeper in”. This was part of the reason why I thought it was in the interests of justice to refer the matter for a general medical dispute. On 5 March 2021, the Assessor did examine the applicant and found tenderness over her radial volar wrist “over the (FCR) tendon although she was tender a little medial to this”. Again, from a clinical point of view, the Assessor thought the most likely diagnosis was the right FCR tendonitis – despite the exact lack of clarity and the subtlety of the imaging findings. Prof Cumming stated, essentially on the basis of the report of the MRI scan of December suggesting the:
“improbability that the tendinopathy has subsided and the ongoing pain is more probably from deeper structures … therefore at this point in time, based on this information only, I consider that the decompression of the FCR tendon is not necessarily the appropriate treatment at this time. The alternative is to perform a technetium scan and clinical examination and consider surgery for the underlying pathology …” (emphasis added).
In Diab, Deputy President Roche noted (at [86]):
“…[d]epending on the circumstances, a range of different treatments may qualify as “reasonably necessary” and a worker only has to establish that the treatment claimed is one of those treatments”.
At the very least, the applicant has established that the proposed surgery is “one of those treatments”. I find the proposed surgery to the applicant’s… is reasonably necessary having regard to all of the relevant factors set out in Rose v Health Commission (NSW) [1986] NSWCC2; (1986) 2 NSWCCR 32 and also Bartolo.
The Assessor addressed the question of whether the proposed surgery was reasonably necessary from a medical and surgical point of view by stating that the applicant had ongoing significant pain in the wrist “which she is currently able to manage” and that the proposed surgery “would be reasonably necessary from a medical and surgical point of view should she become unable to manage her symptoms”. However, it is not clear as to what the Assessor means when he refers to the applicant’s ongoing significant pain “which she is currently able to manage”.
The only part of the report where a similar matter was discussed was a note of the applicant being “able to manage her wrist pain” while “currently working part time doing community nursing”. But he went on to state that “she is hoping to increase her working hours until she is coping doing this”. I am not totally clear what this means either but it appears to imply that the applicant was not coping well presently with such work – but was able to manage that pain. I agree with the written submissions for Mr Evans in relation to the evidence clearly showing that the applicant does have significant ongoing problems involving pain in her right wrist and that it does significantly affect her activities of daily living. Also, I am not persuaded by this aspect of the MAC because of the lack of clarity about the meaning of the comment about the applicant currently able to manage her pain, e.g. it appears possible the Assessor may have been referring only to the applicant’s ability to manage the pain at work. If so, such opinion is not persuasive because it does not take into account the applicant’s ability to manage her pain with all other, apart from work, aspects of her daily living. But even if the MAC may be said to be capable of taking all those other aspects into account, It is my view that the whole of the evidence shows it is more likely that the applicant is not adequately managing her pain. I accept her evidence implies this and I accept her evidence generally.
In my opinion, the proposed surgery is both reasonably necessary and as a result of the injury. In terms of whether it is reasonably necessary in particular, again, I bear in mind the principle that the proposed treatment may qualify as reasonably necessary, and the applicant only has to establish that, the proposed surgery claimed is one of the potential alternatives. On this basis as well, I am actually persuaded that the proposed surgery is at least one treatment that qualifies as reasonably necessary – and at this time. The balance and weight of the evidence makes it more likely that is so; particularly having regard to the evidence of the applicant, Dr Kwa and Dr Burrow which I accept unreservedly for the reasons given.

SUMMARY

I find that the proposed surgery to the applicant’s right FCR tendon is reasonably necessary as a result of the injury.

The respondent is to pay the reasonable costs of the applicant’s proposed surgery on his right FCR tendon pursuant to s 60 of the 1987 Act.

Michael Perry
MEMBER

12 April 2021