Ranasinghe and Australian Postal Corporation
[2004] AATA 843
•12 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 843
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V03/677
GENERAL ADMINISTRATIVE DIVISION ) Re STANLEY RANASINGHE Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member
Miss E.A. Shanahan, Member
Mr C Ermert, MemberDate12 August 2004
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED that the applicant:
(i) suffered the aggravation of pre-existing osteoarthritis of his right wrist together with chronic regional pain syndrome (“the injuries”);
(ii) the injuries arose out of or in the course of the employment;
(iii) the effects of the injuries are continuing; and
(iv) the applicant is entitled to compensation pursuant to the provisions of the Safety Rehabilitation and Compensation Act 1988.
(Sgd) J Handley
Senior Member
COMPENSATION – applicant experienced right wrist pain at work – whether effects of injury are continuing or whether effect by employment was temporary – decision set aside – findings made of diagnosis and of entitlement to compensation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
12 August 2004 Mr J Handley, Senior Member
Miss E.A. Shanahan, Member
Mr C Ermert, Member1. Mr Ranasinghe has been an applicant in proceedings previously lodged in this Tribunal (V2002/327) which are related to the current application and which may be briefly summarised as follows.
2. In October 2001 Mr Ranasinghe claimed for right wrist injury arising out of an incident in his employment with Australian Postal Corporation (“the respondent”) on 27 September 2001. The injury was alleged to be associated with lifting and throwing an “express post” bag. The report of injury completed by the employer’s representative recorded the bag as weighing 15.2 kilograms (T3 p7). The claim was initially denied at primary determination and upon reviewable decision. Proceedings were issued in this Tribunal and eventually they were resolved between the parties on 24 January 2003 where the decision to deny liability was varied and the respondent accepted liability to pay reasonable medical costs associated with “one guanethidine block” being a form of treatment. The respondent also accepted liability to pay compensation for any incapacity arising out of that treatment.
3. Mr Ranasinghe eventually resumed employment and on 14 March 2003 the claims manager of the respondent wrote to him (T23 p57) referring to his claim for “temporary aggravation of pre-existing changes in the right wrist”. A claim form describing the injury in those terms is not within the T-documents. Nonetheless the respondent decided to have Mr Ranasinghe examined by Mr J Buntine and following receipt of his report it was decided (T27 p61) to cease liability from 7 April 2003. Specifically the determination (T27 p62) records “the effects of any employment contribution have ceased on and from 7 April 2003”. That decision was affirmed upon reconsideration on 28 May 2003 (T30 p66-68). It is that decision which Mr Ranasinghe reviews by these proceedings.
4. The application was heard before the Tribunal on 15 April and 6 May 2004. Mr Carey appeared on behalf of Mr Ranasinghe and Mr Coyle appeared on behalf of the respondent. Mr Ranasinghe gave evidence on the first day of hearing together with Dr Mortimer. Doctors Pullen, McCarthy, Buntine and Jensen gave evidence on the second day of hearing. A number of documents were received into evidence and will be referred to in these reasons.
5. In his opening, Mr Carey submitted that the issues for determination would be whether the applicant suffers a work related injury, whether the effects of the injury continue beyond April 2003 and a description or diagnosis of the injury itself. It followed, on his submissions, that subject to any finding that the effects of injury continue beyond 7 April 2003, a finding will also need to be made as to whether Mr Ranasinghe has suffered incapacity and whether he is entitled to reasonable medical and like expenses for treatment of the injury.
6. Mr Carey advised that in 2003 Mr Ranasinghe was working at the respondent’s mail processing facility at Dandenong. He was attempting to sort mail using his left hand only. Mr Ranasinghe was directed by the employer to leave the workplace and to take sick leave. An industrial dispute arose and following a hearing before the Industrial Relations Commission (“IRC”) Mr Ranasinghe was directed to resume his previous employment. It was submitted that the IRC found that the respondent had not followed its own procedures with respect to standing down employees who have suffered work related injury.
7. On 26 November 2003 the respondent again directed Mr Ranasinghe to leave the workplace and to take sick leave. Another appeal was issued at the IRC but on that occasion it was decided that there had been compliance by the respondent with its own procedures and, it was submitted, there was a finding that the employer had not been harsh or unreasonable in its decision of 26 November 2003.
8. Subsequent to Mr Ranasinghe being stood down he received sick leave for a short period of time but upon its expiry he thereafter received social security payments.
9. Mr Carey submitted that it was conceded that the applicant did have a pre-existing arthritic type injury in his right wrist but there had not been any manifestation of it prior to September 2001. It was submitted that at that date the injury became symptomatic, that the effects of the injury have continued and that it may be properly described as a reflex sympathetic dystrophy. Having regard to the nature of the treatment for that condition and the decision under review in these proceedings it was contended that Mr Ranasinghe has not had treatment for the injury and he continues to suffer pain.
Stanley Ranasinghe
10. Mr Ranasinghe was born in Sri Lanka on 14 June 1943. He was educated to the equivalent of Higher School Certificate and then commenced training as a police officer. He left that employment and obtained work as a clerk with Air Ceylon until 1971 when he migrated to Australia. He has resided in Melbourne since his arrival in Australia.
11. Prior to Australia Post Mr Ranasinghe was employed as a clerk with a travel agency, with a department store and with the motor registration branch in Melbourne. He was also employed as a taxi driver. Mr Ranasinghe commenced employment with the respondent in May 1996.
12. In either 1986 or 1987 Mr Ranasinghe suffered a left thumb injury when playing cricket. It was described as a dislocation which required surgery. Mr Ranasinghe said that the pain in his left thumb and hand eventually settled and he returned to work. In the mid-1990’s he suffered further pain in his left hand after he had commenced work with the respondent. Mr Ranasinghe was adamant that he had not previously suffered any right wrist or hand pain prior to his employment with the respondent. Despite the presence of left wrist and hand pain he worked and described the pain as “bearable”.
13. Mr Ranasinghe said he initially commenced employment with the respondent at the Melbourne City Mail Centre in Spencer Street. It was then a part time position working four hours per day receiving, despatching and sorting mail. The work was described as being manual only, without the assistance of machinery. Overtime was frequently available and eventually he became a full time mail officer and acting team leader. Mr Ranasinghe said that restrictions were not placed upon the weight of mail bags lifted but eventually a 16 kilogram limit was imposed. Despite this Mr Ranasinghe said that the mail bags frequently weighed more than 20 kilograms.
14. After he commenced employment at the Dandenong Mail Centre, Mr Ranasinghe said that he had “no difficulty” performing his work. He said that he is naturally right handed and used his hands without difficulty driving a motor car, gardening at home or other work around his home. He played cricket socially on three occasions per month and is a member of the Sri Lankan Social Club. The team is known as “Stanley’s Team” of which he was the captain and a batsman. He did not bowl. The games were “one day” games only using a modified tennis ball. Mr Ranasinghe said that his right hand did not cause him any difficulty playing cricket.
15. In 2000 he suffered a “heart attack”. He underwent angioplasty and again in 2002. He has not played cricket since that time. He continues to consume medication with respect to his coronary illness and whilst he was placed on light duties for about three weeks after the angioplasty in 2000 he resumed work without restrictions.
16. On 27 September 2001 Mr Ranasinghe said that he was sorting “express post” mail which he had been undertaking for about 18 months. He said he weighed and tied a mail bag and attempted to throw it into a mail bin but in so doing he twisted his right wrist. He said that he reported it and also recalled that the right wrist was painful. The weight of the bag was reported to be 15.2 kilograms. Despite the presence of pain he continued to work for a number of days and eventually he was referred to a doctor appointed by the respondent. Mr Ranasinghe could not recall the name of that doctor. He was issued with a certificate to work using his left hand only. Mr Ranasinghe said that his shift manager advised him that if he was unable to work using his right hand then he should not be at work and was directed to leave the workplace. Mr Ranasinghe then attended Dr Mortimer who performed an ultrasound examination and a certificate of incapacity for two months was issued. Mr Ranasinghe said that his right wrist and hand was then painful, that his hand was sweating and he had a “lightning” type pain which struck him every five minutes for approximately two minutes in duration. He said these symptoms continue to the present time. He said that the pain also extends to the back of his right wrist. On occasions the colour of his hand becomes blue.
17. Mr Ranasinghe recalls that he was referred to Mr Hoy who described the injury as affecting a “sympathetic nerve” but Mr Ranasinghe could not be precise about this. He recalled that Mr Hoy wrote to the respondent recommending a form of treatment but after he was referred to Dr Billett (at the request of the respondent) liability for the treatment was denied. Mr Ranasinghe recalled that he was asked by the respondent to obtain a second opinion and Dr Mortimer then referred him to Mr Pullen who apparently agreed with the proposed treatment recommended by Mr Hoy and wrote a letter to the respondent in these terms. He said that the respondent continued to deny liability and proceedings were eventually issued in the Administrative Appeals Tribunal (“the AAT”) but were resolved.
18. Mr Ranasinghe said that the respondent then referred him to Dr Soloman in Rowville who suggested that he should return to work and use his right hand otherwise it would become “stiff”. He returned to work on restricted duties at four hours per day sorting mail only. Employment at this duration continued throughout most of 2002. Following the acceptance by the respondent of liability for the guanethidine block, Dr McCarthy (to whom Mr Ranasinghe was referred by Mr Pullen) performed that procedure on 24 February 2003. Mr Ranasinghe said that he was relieved of pain but for a few hours only. Dr McCarthy apparently recommended that further guanethidine blocks be performed but liability was denied by the respondent. Mr Ranasinghe continued to work at four hours per day but after he was referred to Dr Buntine for medico-legal assessment the respondent decided to cease its liability in April 2003. Mr Ranasinghe said that he then attempted to work full time because he could not meet day to day expenses on a salary of four hours per day (prior to this time Mr Ranasinghe had been having his wages supplemented with compensation payments). Mr Ranasinghe then said that he urged Dr Mortimer to provide certificates of his ability to work full time so that he might receive a full time salary. He then worked using his left hand only on a machine known as a “spectrum” which permitted him to feed mail using his left hand only. He was later directed to cease work which gave rise to the industrial proceedings (refer earlier). The matter proceeded to the IRC on two occasions and Mr Ranasinghe has not worked since 27 November 2003. Mr Ranasinghe said that his coronary illness and his left wrist did not interfere with his capacity to work.
19. Since November 2003 Mr Ranasinghe said that he continues to suffer right hand and wrist pain. He drives a motor vehicle with automatic steering. He is unable to perform gardening at home or other maintenance. He has a contractor cut his lawns. He attempts some cleaning work around his home but does so in the presence of right wrist pain.
20. Mr Ranasinghe said that he would prefer to return to work and undertake the light duties that he was performing prior to November 2003.
21. In cross-examination Mr Ranasinghe said that prior to September 2001 he had been pain free in his right wrist and hand. He said that he had suffered left wrist pain for three or four years prior to September 2001 and described it as “tolerable”. He was not consuming any pain killing medication. He agreed that he injured his left thumb playing cricket in the mid-1980’s which resulted in surgery. This provided pain relief for some years but the pain eventually returned. He also agreed that he has suffered left hand swelling and when the pain became “bad” he consumed some aspirin.
22. At the present time Mr Ranasinghe said that he has pain at the base of his right thumb. He also has pain extending from his fingers and thumb to the back of his right hand and into his wrist. He said that he suffers “lightning” type pain which occurs every five minutes and then for about two minutes in duration.
23. Mr Ranasinghe said that he sought treatment from Dr Mortimer who he described as “an Australia Post doctor”. He said that he did not want the respondent to be “suspicious” if he attended a “Sri Lankan” doctor.
24. Since November 2003 Mr Ranasinghe said that he has avoided any stress upon his right wrist, he does not undertake any lifting or forceful movements and has ceased gardening. He said that there has been no improvement in his right wrist.
Dr Douglas Mortimer
25. Dr Mortimer has treated Mr Ranasinghe for his right wrist and hand injury since first presentation on 5 October 2001. His treatment notes together with duplicate reports to and from other doctors and copies of certificates were received into evidence.
26. Dr Mortimer acknowledged that an entry on 19 October 2001 records “right hand was strained in 1984 and operated on in 1990”.
27. When Dr Mortimer was advised that the applicant had said in evidence in these proceedings that he had previously suffered left hand injury which resulted in surgery, Dr Mortimer said that he “must have been mistaken”. He said that he has subsequently spoken to Mr Ranasinghe about any prior injuries and explained that he probably recorded the right hand as been “strained in 1984” because he was “concentrating on the right hand” in treatment. He was also of the belief that there may have been language difficulties between him and Mr Ranasinghe.
28. Dr Mortimer said that he regarded a direct relationship existing between the right wrist injury and the employment. But for the entry against 19 October 2001 which he acknowledged was incorrect he said that he had not ever obtained any history from Mr Ranasinghe of prior right hand or wrist injury. He said that he had referred Mr Ranasinghe to Mr Hoy and to Mr Pullen and he relied on the opinions that those doctors had expressed. He also agreed that he had provided certificates from time to time restricting the weights to be lifted and advising against repetition at work. He regarded Mr Ranasinghe as being well motivated and a person who prefers to work.
29. In cross-examination Dr Mortimer said that he first consulted Mr Ranasinghe on 5 October 2001. He said he is aware that Mr Ranasinghe suffers coronary illness but he has not treated it or any other illness.
30. Dr Mortimer was then taken through his notes which he said were a record of his observations and the complaints give to him by Mr Ranasinghe.
31. On 5 October 2001 he recorded that Mr Ranasinghe’s right wrist was painful on extension and flexion following a twisting of his right hand ten days previously. On 8 October 2001 he agreed that his notes recorded “improving – give it a few more days rest. I think it is an exacerbation of OA”. Dr Mortimer said that he held the opinions expressed at 8 October 2001 because of the clinical presentation to him but in the absence of X-rays.
32. At 19 November 2001 (despite four presentations subsequent to 8 October 2001) Dr Mortimer agreed that there were no entries of any complaints to him by Mr Ranasinghe and an entry against 10 December 2001 of swelling was the first occasion that complaint had been recorded. Dr Mortimer said that he was “embarrassed” because his notes were obviously not detailed and he recalled that there had been complaints made to him, (by Mr Ranasinghe) prior to 10 December 2001 of the right hand being swollen.
33. For the remainder of 2001 and prior to 4 March 2002 Dr Mortimer said that he received complaints from Mr Ranasinghe of right wrist and hand symptoms. On 4 March 2002 he recorded “Thumb root generally tender, flexion limited, he will not use it to pick things up”. When it was brought to Dr Mortimer’s attention that 4 March 2002 was the first occasion that any complaint associated with the right thumb had been recorded he said “I can’t make any positive comment on that”.
34. Thereafter there were some references to the applicant’s right thumb in the treatment notes but when pressed on this issue Dr Mortimer said that the “thumb” was in fact a reference to the “joint of the thumb where it meets the wrist”.
35. The notes for the remainder of 2002 contain references to increased pain, some swelling and specific references to limited use (for example 11 November 2002 the words “can’t spread butter” appear). There are references also in the notes to referrals by Dr Mortimer to physiotherapists and to specialists.
36. The notes of 2003 continue to refer to swelling, pain and weakness. At January 2004 Dr Mortimer recorded that Mr Ranasinghe attended with tenderness on the right side of his wrist with movement of his hand and wrist limited by pain. A similar entry appears at 9 March 2004 together with a notation of the previous administration of a guanethidine block. On 13 March 2004, being two days prior to the first day of hearing, Dr Mortimer recorded that the whole of the right wrist was tender with limitation upon active and passive movements of his thumb.
37. Dr Mortimer agreed with a suggestion put to him by Mr Croyle that the complaints by Mr Ranasinghe commencing in March 2002 of thumb pain were confined to the base of the right thumb as it meets the right hand.
38. Dr Mortimer said that on each occasion that Mr Ranasinghe consulted with him he observed and examined his wrist, hand and fingers. He found swelling on occasions and where restrictions of movement were apparent he made a reference to it in his notes. He said that he initially referred him to Mr Hoy however Mr Ranasinghe became dissatisfied with his treatment and eventually he was referred to Mr Pullen.
39. Dr Mortimer was then taken to a certificate and a letter that he wrote on 19 October 2001 referring Mr Ranasinghe to Mr Hoy. Those documents contained a reference by him to a “scapho-lunate abnormality”. Dr Mortimer said that this abnormality was contained in the report of a radiologist to whom he had referred Mr Ranasinghe for X-rays. He said that it was not an opinion that he formed and he had relied on the comments of the radiologist. Additionally he said that in so far as other specialists had expressed opinions he would not dispute them.
40. On occasions Dr Mortimer has referred to pain in the “lateral aspect of the right wrist” and on other occasions to the “root of right thumb” he said that in effect he was referring to the same region of the lower right arm. He noted that his records describe a “wrist injury” in 2001 but a “thumb” injury in 2002. He said that having regard to his earlier explanation he did not intend to imply or record the applicant as suffering from two separate or distinct conditions.
Second Day Of Hearing
41. On the second day evidence was heard from Drs Pullen and McCarthy who have treated Mr Ranasinghe together with Dr Buntine and Mr Jensen who have examined at the request of the respondent
MEDICAL EVIDENCE
mr christopher pullen
42. Mr Pullen, orthopaedic surgeon, saw Mr Ranasinghe at the request of Dr Mortimer on 25 February 2002. His reports of 5 July 2002, 6 August 2003 and 27 February 2004 were received into evidence (Exhibits E, F and G respectively).
43. Mr Pullen had made a diagnosis of right scapho-lunate advanced collapse (“SLAC”). He explained this was a degenerative arthritic condition of the joint between the scaphoid and lunate bones of the wrist which takes in the order of ten years to develop. While SLAC may be asymptomatic initially, it eventually leads to pain on movement, stiffness and minor swelling of the joint. It was Mr Pullen’s understanding that Mr Ranasinghe had been pain free in the right wrist prior to the injury at work on 27 September 2001. In his opinion the work injury had precipitated pain in the osteoarthritic right wrist and this pain had triggered the development of reflex sympathetic dystrophy (“RSD”) or in alternative nomenclature a chronic regional pain syndrome (“CRPS”).
44. In answer to Mr Carey’s question as to what were the principle symptoms of RSD, Mr Pullen described them to be severe burning pain, colour changes in the hand or skin, stiffness of the fingers and trophic changes in the skin. Some symptoms could be present or absent on different occasions. Mr Pullen had noted that Mr Ranasinghe had reported severe pain and pain on light touch and he had observed clawing and stiffness of the fingers, pallor of the hand and “a very sweaty palm” (transcript p38, line 25). Mr Pullen did not recall having seen colour changes in Mr Ranasinghe’s hand.
45. Mr Pullen agreed he had referred the applicant to Dr Tim McCarthy for a guanethidine block, a procedure that blocks sympathetic nerve conduction. While he was not expert in the area of such blocks he understood that the earlier the treatment was given, the more likely it was to be beneficial.
46. Mr Pullen said that it was difficult to assess how much of Mr Ranasinghe’s symptomatology was due to RSD and how much, if any, related to the osteoarthritis of the right wrist given the overriding symptoms of RSD. He had found no evidence of a carpal tunnel syndrome. Surgery was not indicated in Mr Ranasinghe’s treatment regime as it could make the RSD symptoms worse and would not help the arthritic wrist.
47. In cross-examination by Mr Croyle, Mr Pullen explained that CRPS was the more recent nomenclature of what had previously been called RSD. He denied not having experience in this condition despite having been in consultant orthopaedic practice for only two years when he first saw Mr Ranasinghe. Mr Pullen agreed that he had not seen any of the required signs of RSD or CRPS and his diagnosis had been based on the symptoms related, all of which were subjective. When asked to comment on Dr Mortimer’s notes which did not report any signs of RSD, Mr Pullen indicated that the recording of such signs would depend upon the thoroughness of the examination.
48. Mr Croyle cross-examined with respect to all the signs of RSD or CRPS. Mr Pullen had noted sweatiness of both palms but where he had referred only to the right palm he assumed the sweatiness was unilateral.
49. Mr Croyle pointed out that Mr Pullen, in his letter of referral to Dr McCarthy, had reported a “bluish hue to the dorsal aspect of his hand” (transcript p48, line 8). Mr Pullen had not recollected this observation in his earlier evidence.
50. Mr Pullen agreed that Mr Ranasinghe’s SLAC and general wrist arthritis were unrelated to the work injury. He was aware that Mr Ranasinghe had suffered traumatic dislocation of his left thumb in 1987 which had required surgical reduction. He disagreed with Mr Croyle’s contention that the exact diagnosis was uncertain. In his opinion Mr Ranasinghe suffered from CRPS and arthritis in his wrist.
51. In re-examination Mr Carey sought clarification of Mr Pullen’s written report to Dr Mortimer (Exhibit D) where he stated that the work injury had exacerbated Mr Ranasinghe’s right wrist pain given that his earlier evidence was that the right wrist had been pain free prior to the work injury. Mr Pullen confirmed there was no history of pre-injury right wrist pain and his use of the term exacerbation had been incorrect.
mr john buntine
52. Mr Buntine identified himself as a plastic surgeon specialising in hand surgery since 1962. He had seen Mr Ranasinghe on 18 February 2003 at the respondent’s request providing a written report dated 27 February 2003 (T-docs 22) and another dated 8 December 2003 (Exhibit 1).
53. Mr Buntine said that he had found Mr Ranasinghe’s presentation, particularly the manner in which he held his right hand, as most unnatural. He had obtained a history of pain in both wrists but more severe on the right than on the left. On examination he noted that both palms were equally sweaty and the left wrist joint more swollen than the right. He regarded Mr Ranasinghe as exaggerating his condition in order to gain compensation. Having outlined the signs and symptoms of RSD Mr Buntine opined that Mr Ranasinghe did not have RSD as no signs of the condition were present. He did however have evidence of osteoarthritis of the wrists more pronounced on the left than the right.
54. Mr Carey contended that Mr Buntine had taken a scanty history of Mr Ranasinghe’s work injury. Mr Buntine stated that he had taken “a sufficient history” (transcript p76, line 6) given that he believed Mr Ranasinghe was giving a “very unreliable history” (transcript p76, line 17). Mr Buntine said that he preferred to rely on what he observed and Mr Ranasinghe had no signs of RSD. He disagreed with Mr Pullen’s diagnosis and opined that Mr Pullen was inexperienced and not a hand surgeon. This he felt was supported by Mr Pullen having referred Mr Ranasinghe to Mr G Hoy for an opinion. Mr Carey pointed out that Mr Hoy had seen Mr Ranasinghe prior to his referral to Mr Pullen and that Mr Hoy had also diagnosed RSD. Mr Buntine reiterated that Mr Ranasinghe did not have any signs of RSD when he saw him on 18 February 2003 and he remained confident his diagnosis was correct in light of his superior experience. In terms of treatment, Mr Buntine advised that the evidence for therapeutic benefit of guanethidine blocks was not particularly strong and stellate ganglion blocks were of arguable benefit. Mr Buntine accepted that Mr Ranasinghe had bilateral osteoarthritis of the wrists.
55. After lengthy cross-examination regarding the history given by Mr Ranasinghe, Mr Buntine on being asked if Mr Ranasinghe was a liar replied “Well, I do believe he’s a liar” (transcript p87, line 25).
56. The Tribunal questioned Mr Buntine regarding the absence of any reference in his reports (and in his evidence before the Tribunal) to Mr Ranasinghe’s traumatic dislocation of the left thumb in 1987. Mr Buntine said that he had concentrated on the right wrist but agreed that the traumatic injury to the left thumb would have contributed to the development of osteoarthritis and might explain his findings that the left wrist showed more pathological change than the right. Mr Buntine was asked if he had noted the surgical scar on the left wrist and replied that he thought that he had noted but had not recorded it.
dr tim mcCarthy (by telephone)
57. Dr McCarthy identified himself as an anaesthetist in practice since 1982 with a major interest in pain control. He had provided a written report dated 16 March 2004 (Exhibit H). He had seen Mr Ranasinghe on 29 January 2003 at the request of Mr Pullen and for the purpose of performing a guanethidine block for the previously diagnosed condition of RSD. In February 2004 he performed a right stellate ganglion block.
58. In cross-examination Dr McCarthy said that Mr Ranasinghe’s symptomatology was suggestive but not diagnostic of a CRPS. Dr McCarthy regarded his treatment role as the provision of a guanethidine block based on Mr Pullen and Mr Hoy’s diagnoses. He was unable to make a definitive diagnosis of CRPS. He pointed out that physical signs could vary from day to day and that most patients referred to him came from orthopaedic surgeons reluctant to operate in the presence of a diagnosis of RSD or CRPS.
59. Dr McCarthy said that Mr Ranasinghe had experienced a limited “but clear cut episode of CRPS after dislocating his thumb in 1987” (transcript p106, line 6-8) and revealed there was scientific evidence to support the proposition that there was “probably a genetic predisposition to CRPS” (transcript p107, lines 4-5). Mr Ranasinghe had identified his current symptoms to be very similar to those occurring after the thumb dislocation.
60. Dr McCarthy explained the inter-relationship of the various pain syndromes and the sympathetic nervous system delineated in a chapter from Bonica (‘Testbook of Pain’: Bonica, Wall and Melzack 1994 ISBN 044304757X) and based on the classification found it more likely that Mr Ranasinghe was suffering from CRPS. In response to a question from the Tribunal, Dr McCarthy advised that 10‑20% of patients with CRPS treated with stellate ganglion block, two years post injury, would have a positive response compared with 60% treated within two months of injury.
mr damien jensen
61. Mr Jensen provided a report to the respondent dated 2 February 2004 (Exhibit 2) having seen Mr Ranasinghe on 30 January 2004. Mr Jensen had not detected any signs of RSD on examining Mr Ranasinghe. He explained that RSD was now known as Chronic Regional Pain Syndrome which he described as a condition of mysterious origin. In his opinion the role of the sympathetic nervous system was as yet not fully elucidated. Mr Jensen found no evidence of carpal tunnel syndrome (“CTS”) in his examination of Mr Ranasinghe.
62. Mr Jensen diagnosed CRPS and rejected the diagnosis of RSD. He did not believe the CRPS had resulted from the work injury of 27 September 2001. However Mr Ranasinghe’s current symptomatology would prevent him from performing his full duties. Mr Jensen differentiated between CRPS and Complex Regional Pain Syndrome. The latter condition, Complex Regional Pain Syndrome, was not considered to be of psychological origin and in his opinion was a neuropathic type of pain.
mr derek billet
63. Mr Billet is a consultant orthopaedic surgeon. He provided a report to the respondent dated 13 December 2001 (T-docs p25-32) having seen Mr Ranasinghe on that day. He diagnosed osteoarthritis of both wrist joints and SLAC in the right wrist. In his opinion the work injury had aggravated the pre-existing degenerative change in the right scapho-lunate joint and that this aggravation would be temporary and resolve in a few weeks (T11). Mr Billett did not give evidence at the hearing.
conclusion and reasons for decision
64. In its primary determination (affirmed upon reconsideration) the respondent decided that it was no longer liable to pay compensation to Mr Ranasinghe from 7 April 2003 for the “condition” of “temporary aggravation of pre-existing changes in right wrist” sustained on 27 September 2001.
65. During the hearing there was discussion between us and counsel for both parties concerning the language used in the decision under review. Mr Croyle submitted that we should make a finding as to diagnosis, whether that diagnosed injury was related to employment and if it was, whether the effects of it were continuing (transcript page 64). Mr Carey was of the view that we were not required to make a diagnosis but rather that we should find whether there was an injury and whether that injury gives rise to an entitlement to compensation for incapacity and or medical treatment (transcript pages 66-67).
66. We have concluded, having regard to the decision under review that we have no alternative but to make a finding as to diagnosis. Unless such a finding is made we are of the view that it would not be possible to make any decision as to whether there is any connection between that diagnosed injury and employment and consequently whether the effects of it have continued beyond 7 April 2003. We would also add that having regard to the opinions expressed by the medical witnesses in this application, that we must make a finding of fact as to the injury.
67. Dr Mortimer recorded in his notes on 8 October 2001 that the applicant suffered an “exacerbation of osteoarthritis”. At January 2004 he noted that the applicant continued to have tenderness on the right side of his wrist with movement of his hand and wrist limited by pain. He made a similar notation in his notes on 13 March 2004 being two days prior to the first day of hearing. Dr Mortimer was challenged in cross-examination concerning an opinion he expressed in October 2001 of a “scapho-lunate abnormality”. Dr Mortimer said that reference to this condition was found in a report of a radiologist and he then relied on that opinion.
68. Mr Pullen made a diagnosis of “right scapho-lunate advanced collapse” (“SLAC”) which he said is a degenerative arthritic condition between the scaphoid and lunate bones of the wrist. In turn that condition precipitated the development of reflex sympathetic dystrophy (“RSD”) now commonly referred to as chronic regional pain syndrome (“CRPS”). He said that the arthritic changes present in the applicant’s right wrist pre-existed the episode at work on 27 September 2001. Mr Pullen corrected a comment that he made in his report of the condition of the right wrist being exacerbated by employment. Mr Pullen acknowledged that he did not have any history of pre-existing right wrist pain but when asked to describe how the events at work in September 2001 had an affect upon the pre-existing arthritis Mr Pullen said (transcript page 57):
I would see him as having a wrist that was compromised, you know, structurally compromised because of the arthritis; that the incident at work caused some pain in his wrist which obviously, because he’s got a wrist that is arthritic, perhaps something more minor than your average person with a normal wrist would find painful, and that this was the trigger that started him to get his chronic regional pain syndrome
69. Mr Pullen was of the view that the diagnosis of RSD as a consequence of osteoarthritic right wrist pain was warranted by the presence of symptoms of burning type pain, colour changes, stiffness of the fingers and trophic changes of the skin. He also noted some clawing and stiffness of the fingers and a sweaty palm.
70. Dr McCarthy suggested that the applicant had symptoms of RSD (or CRPS) however he was not prepared to make a definitive diagnosis. He said that Mr Ranasinghe was – as were a number of other patients – referred to him by orthopaedic surgeons who were reluctant to operate in the presence of a diagnosis of RSD. It was his experience however that the physical signs in patients with RSD could vary from day to day.
71. Mr Jensen said that the “modern term” adopted by the International Association for the Study of Pain for the condition previously described as RSD is the condition of complex regional pain syndrome. He said that the acronym for the latter condition is CRPS, not chronic regional pain syndrome (refer evidence of Mr Pullen). Mr Jensen said that complex regional pain syndrome is the condition which exists when the sympathetic nervous system is involved and either produces or has an effect upon pain. He said that RSD is no longer used because it has a focus on the cause of an injury or condition rather than the relationship of that condition to the sympathetic nervous system. He was of the opinion that the applicant did experience pain which is more appropriately described as a chronic regional pain syndrome. It was his opinion that the applicant did not suffer from complex regional pain syndrome (transcript page 117).
72. It was Mr Jensen’s opinion that the applicant sprained his right wrist “and did something to the osteoarthrosis that was there and the pain persisted. That seemed a reasonable scenario to me”. By reference to the ongoing symptoms as described by Mr Ranasinghe, Mr Jensen was of the opinion that the persisting pain was related to the episode at work in September 2001. In cross-examination Mr Jensen modified that opinion and when reaffirming his view that the applicant suffered chronic regional pain syndrome, he said that “it could be” the result of the work incident in September 2001. When further pressed on this issue he said that if other persons had expressed an opinion on the balance of probabilities that the applicant suffered from “prolonged pain which he relates to an incident at work in 2001” Mr Jensen said that he would be prepared to accept that opinion. He said that if he were to accept that the injury had produced pain to a degree which would cause disability he said (transcript page 121):
as a pain neurosurgeon that “if people tell me they have pain generally speaking I say “Yes I accept that you have pain” because it is a purely subjective experience incapable of meaning for measurement and people if they have pain they have pain. Pain is what hurts.
73. In answer to some questions from Miss Shanahan, Mr Jensen said that complex regional pain syndrome was referrable to a “direct injury to a named nerve” whereas the condition of chronic regional pain syndrome did not involve a direct injury to a named nerve. He said that chronic pain syndrome “is simply a very bland description of chronic pain affecting a particular part of the body”, it amounted to a “diagnosis of exclusion” and “everything else that isn’t neuropathic will fit into chronic regional pain syndrome. It’s simply descriptive and for want of a better more exact description, we call it that”.
74. The evidence of Mr Buntine was disappointing. As the past President of the Australian Hand Surgery Society which he described as “pre-eminent in hand surgery in Australia” we would have expected him to have obtained a thorough history from Mr Ranasinghe and would have expressed his opinion upon the relationship between employment and injury having regard to his expertise. Unfortunately his history was very deficient, he regarded Mr Ranasinghe as a liar, he was content to denigrate the opinions and expertise of Mr Pullen and in response to a proposition by Mr Carey he said “you don’t know what you are talking about, right?”.
75. When Mr Buntine was asked to describe the history given to him of the event at work in September 2001 he said that he was “more interested in the condition at the time I examined him but he did say that he did some sort of turning twisting action and he hurt his wrist” (transcript p75). Later he said that he accepted that the incident at work caused pain in the right wrist but it did not cause any disability. When he referred later to the presence of osteoarthritic changes in both wrists, the left more so than the right, he said, “the matter in point is whether some little minor twisting sort of thing had – is responsible still for a worse condition of the right wrist” (transcript page 85).
76. Mr Buntine said that the applicant had “quite significant osteoarthritic changes in both wrists” more severe on the left. He agreed that Mr Ranasinghe “has a disability that causes incapacity for work” but said that the disability was not caused by work. In addition to osteoarthrosis of both wrists he said there was presence of osteoarthrosis in the right little finger and some other finger joints. Mr Buntine however would not accept the applicant’s evidence that he did not have right wrist symptoms prior to September 2001. He said “you see one of the problems is that we only have his word that he was not having symptoms before this incident at work. I am quite sure that he had minor symptoms and I do not believe that his condition has changed very much”. Later he said “I am quite sure that he is not truthful” and later referred to him as “as man to be pitied” (transcript pages 86-87).
77. Mr Buntine said that the applicant exaggerated his symptoms and whilst he was prepared to accept that the incident of September 2001 “had an effect at the time” he was of the view “that effect is well past” (transcript page 74).
78. In answer to some questions from us Mr Buntine said that if he were to accept that the applicant did not have symptoms prior to September 2001 in his right wrist his opinion would remain unchanged. He said that in those circumstances there would be “no symptoms now”.
79. Whilst it would appear that Mr Buntine had an incomplete history with respect to the applicant’s left wrist injury he acknowledged that a traumatic dislocation of the first metacarpal joint 10 years ago requiring open reduction may have contributed to the signs of osteoarthrosis of the left wrist. He agreed that this may be an alternative explanation for the presence of osteoarthrosis in the left wrist and which may explain it being worse than the right.
80. With respect to the condition of RSD Mr Buntine said that at the time of his consultation it did not exist. He acknowledged that Mr Hoy had previously made that diagnosis but said that it may have been present at the time of his consultation.
81. We are satisfied having observed the applicant give his evidence and being subjected to cross-examination that he is a witness of truth. Despite the opinion held of him by Mr Buntine we do not believe that he is a liar. We are also of the view that he is a person of modest or humble personality who did not seek to exaggerate or embellish his evidence.
82. We are satisfied and find as a fact that prior to September 2001 the applicant had previously suffered a left wrist injury which had resulted in surgery and which was responsible in part for the presence of osteoarthrosis in that wrist. At September 2001 we are satisfied that there was the presence of osteoarthrosis in the right wrist but it was not symptomatic. Prior to September 2001 the applicant had been engaged in the sorting and processing of express mail involving the lifting of mail bags. On 27 September 2001 the applicant attempted to throw a mail bag weighing 15.2kgs and in so doing twisted his right wrist and felt immediate pain. A weight of 15.2kgs is considerable and is in our view responsible for the presence then of symptoms.
83. Thereafter Mr Ranasinghe has had persisting pain together with “lightning” type pain being a sensation of severe pain appearing every five minutes for a duration of about two minutes. Additionally the applicant has had symptoms of discolouration, sweating palms and sensation to touch. The persisting presence of right wrist pain was responsible for the diagnosis made by Mr Pullen of chronic regional pain syndrome, a diagnosis also made by Mr Jensen which we find as a fact exists.
84. Because we accept Mr Ranasinghe to be a witness of truth we also accept that the pain which has persisted is related to the episode at work in September 2001 and the subsequent chronic regional pain syndrome. We note that both Mr Pullen and Mr Jensen were prepared to accept the applicant’s symptoms on face value and we see no reason to depart from the opinions that they hold.
85. In the circumstances the decision under review should be set aside and in substitution for it we have decided that the applicant suffers from the aggravation of pre-existing osteoarthrosis of his right wrist together with chronic regional pain syndrome. We are satisfied that the effects of those injuries have not ceased and the respondent is liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988.
86. The respondent is also liable for the costs of the applicant to be taxed in default of agreement.
I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr J Handley, Senior Member
Miss E.A. Shanahan, Member
Mr C Ermert, MemberSigned: Grace Carney
Personal AssistantDate/s of Hearing 15 April and 6 May 2004
Date of Decision 12 August 2004
Counsel for the Applicant Mr M Carey
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Mr M Croyle
Solicitor for the Respondent Australian Government Solicitor
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