Sandra Cozzi v The Australian Institute of Refrigeration, Air Conditioning and Heating (WorkCover)
[2015] VMC 29
•14 SEPTEMBER 2015
IN THE MAGISTRATES’ COURT
OF VICTORIA
WORKCOVER DIVISION E14324551
BETWEEN:
SANDRA COZZI Plaintiff
-and-
THE AUSTRALIAN INSTITUTE OF REFRIGERTAION, AIR CONDITIONING AND HEATING Defendant
MAGISTRATE: GINNANE
WHERE HEARD: MELBOURNE
DATE OF DECISION: 14 SEPTEMBER 2015
CASE MAY BE CITED AS: SANDRA COZZI v THE AUSTRALIAN INSTITUTE OF REFRIGERTAION, AIR CONDITIONING AND HEATING
MEDIUM NEUTRAL CITATION: [2015] VMC 29
Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 –rejected claim– aggravation of left carpometacarpal boss and ganglion and left thumb carpometacarpal joint arthritis – post surgical chronic regional pain syndrome type 1 to left arm and hand – causation – whether pain may constitute an aggravation or exacerbation of a pre existing injury
REASONS FOR DECISION
APPEARANCES:Counsel Solicitor
For the Plaintiff Mr Ajzensztat Zaparas Lawyers
For the Defendant Mr McDonald Russell Kennedy
HIS HONOUR:
Introduction
This proceeding came on for hearing before me on 19 May 2015. The plaintiff was represented by Mr Ajenstat of counsel instructed by Zaparas Lawyers and the defendant was represented by Mr McDonald of counsel instructed by Russell Kennedy Lawyers. It was agreed by the parties that the case falls to be decided in accordance with the Workplace Injury Rehabilitation and Compensation Act 2013 (the “WIRCA”). The controversy calls for a decision about the correctness or not of a decision to reject payment of weekly payments of compensation and medical and like expenses to the plaintiff by the defendant’s authorised agent. However, the determination of that question is predicated on the resolution of a number of other controversies along the road.
Background
On 26 September 2014 the plaintiff submitted a claim seeking weekly payments and medical and like expenses. By notice dated 24 October 2014 the defendant’s authorised agent under the legislation rejected the plaintiff’s claim for weekly payments and medical and like expenses on the basis that she did not sustain injury arising out of or in the course of her employment (Ex D2).
At the commencement of the proceeding the plaintiff sought leave to file in Court an Amended Statement of Claim. Leave was not opposed by the defendant. Leave was granted. The amended pleading was limited to the addition by way of the particulars of injury subjoined to paragraph 4 of the pleading the following:
Chronic regional pain syndrome type I
As a result of the amendment, the particulars of injury pleaded by the plaintiff are:
Injury to the left hand, including the left thumb;
Injury to the left wrist;
Injury to left arm; ganglion formation in the left wrist;
Tenosynovitis;
Exostoses;
Subluxation of the carpometacarpal joint of the left thumb with associated pain and crepitus;
Pain and tenderness around the left thumb, left hand and left arm;
Pain and limitation of movement of the left thumb, left hand and left arm; Anxiety;
Stress; and
Depression
There was no evidence led to support a finding that the plaintiff’s injuries included anxiety, stress and /or depression. The case concentrated on the condition of the plaintiff’s left hand, thumb and wrist.
The plaintiff’s case was opened by Mr Ajenstat on the basis that throughout the course of the plaintiff’s employment and due to the repetitive and strenuous nature of her work duties that required the use of her left arm and left hand she suffered compensable injury.
The plaintiff and the course of her employment
The plaintiff is 41 years of age having been born on 16 July 1974. She is married. When she was of the tender age of three, she suffered a significant injury resulting in the loss by way of amputation of the fingers of her right hand and a good proportion of her right thumb to the knuckle. Despite this traumatic incident and commendably the plaintiff got on with her life and after completing her education she embarked on a successful career including undertaking work in administration with various employees prior to commencing with the defendant. The type of employment undertaken by the plaintiff prior to commencing with the defendant was similar in type to the work she performed with the defendant. The plaintiff explained that she undertook an administrative traineeship with VECCI and remained employed with it for a few years. She moved on to an organisation referred to as “Tradegate”, a not-for-profit organisation. She then was employed with “Creative Access”, a software company, and again performed administration work for approximately 3 years before being made redundant. She obtained employment with “Centro” in Oakleigh performing administration work for a period of about 5 years.
The plaintiff commenced employment with the defendant in July 2005. She was employed on a full time basis initially performing the duties of a receptionist but she progressed with the employer and ultimately held the position of Administration Coordinator.
The plaintiff testified about the manner and extent to which she performed data entry work in her employment. She said that 80% of her day was spent typing a variety of work such as emails, entering membership details as part of mail outs to members, copying, cutting and pasting invoices and maintaining membership lists. She said that despite her impediment with her right hand she was productive. This was about to change.
2012/2103
10. The plaintiff said that that in the latter part of 2012 she noticed a lump on her hand. Initially there was no pain associated with it and she went on about her work. She described the lump and pointed to it in her evidence. It was agreed as between counsel that it was centred approximately 2 cm from the junction of the plaintiff’s wrist.
11. The plaintiff said that about 2 months after noticing the lump she felt a throbbing sensation at its site and that it came on gradually.
12. In March 2013 the plaintiff attended on Dr Shirzada, who at that time was the plaintiff’s treating doctor. She was referred for ultrasound of the left wrist which was performed on 21 March 2013. The findings were “a lump on the dorsal aspect of the left wrist located at the 2nd carpometacarpal articulation. The appearances are non-specific with no evidence of a ganglion. Appearances could be those of mild arthritis or slight tendinosis of the extensor carpi-radialis” (Ex P22).
13. In the middle of April 2013 the plaintiff took two weeks off work because of pain. Dr Shirzada issued the plaintiff with an ordinary medical certificate (Ex P1) for the period of 11 April 2013 to 19 April 2013. The plaintiff said that the pain subsided during this period off work. Further medical certificates were issued by Dr Shirzada who remained the plaintiff’s treating doctor until September 2014.
14. On 24 May 2013 by way of referral from Dr Shirzada the plaintiff was seen by Dr Laska, a Rheumatologist. The plaintiff did not produce any report from Dr Laska. Dr Laska requested the plaintiff undergo an MRI. A report of the results (Ex P 23) identified a partial tear of the ligament between the scaphoid and the lunate and an associated ganglion. Reference was also made to extensor compartment tenosynovitis.
15. The plaintiff was next referred to Mr Berger, a hand and upper limb surgeon, who saw the plaintiff for the first time on 22 July 2013 for assessment and management of her left hand. He noticed a bony swelling on the dorsal aspect of the 2nd carpometacarpal joint and pain and stressing was reported in the 1st carpometacarpal joint. He noted the presence of a carpometacarpal boss with reactive degenerative changes and a small ganglion by reference to the earlier MRI. He discussed treatment options with the plaintiff and on 2 September 2013 he proceeded with a carpometacarpal boss procedure. The plaintiff was off work for 3 weeks. The plaintiff paid for her surgery. She had no medical insurance to cover the procedure and at that point in time she had not made any claim for compensable injury or medical expenses under the Act. She estimated the costs of the surgery to be approximately $2,200.
16. The plaintiff returned to full-time work with the defendant. She described her condition as “good” for a time until about November 2013 when she spoke with Marina Gutkin (the defendant’s Finance Manager) and told her she was experiencing problems. The plaintiff described the condition of her hand at that time as “red, inflamed and swollen”. The plaintiff continued working up until the Christmas break. The defendant was closed for a 2 week Christmas break. The plaintiff said that over the Christmas holidays, her level of pain decreased.
17. The plaintiff returned to work in January 2014 performing her normal suite of full-time working hours and duties. The plaintiff characterised the level of her pain she was encountering as escalated since the Christmas break.
18. On 23 January 2014, which was about 4 months after the surgery, she attended on Mr Berger. He reported on examination that there was tenderness over the carpometacarpal joint of the thumb with painful crepitus and some mild subluxion of the carpometacarpal joint with pain on reducing this subluxation. He noted tenderness around the ulnar aspect of the wrist over the hook of the hamate. He assessed the plaintiff as “having ongoing discomfort from her carpometacarpal joint arthritis”.
19. Mr Berger’s report dated 17 November 2014 (Ex P11) however noted that when the plaintiff was seen by him on 23 January 2014, she said that she “noticed continued pain around the carpometacarpal joint of the thumb and to some extent over the site of the previous surgery. She noted ongoing weakness and increased pain on any activities”.
20. The plaintiff’s account in her evidence of her condition post operatively was that she still experienced pain but the nature of it changed and it was now traversing across the hand and up her arm into her shoulder. Mr Berger’s report does not give such an account of pain.
21. In cross examination, counsel for the defendant pressed the plaintiff to explain why it was that although she had complained in evidence in chief of three areas of pain she had not mentioned her shoulder pain to any of her treating specialists. The plaintiff said she was absolutely certain she had mentioned the shoulder pain to Mr Berger.
22. Mr Berger referred the plaintiff to Mr Pertel, as person described as “a hand therapist”. The plaintiff saw Mr Pertel in January 2014. He organised a hard splint for her to wear. The plaintiff said she wore it for about 6 weeks but she found it was causing restrictions to her circulation and she stopped wearing it in about February 2014. In any event, she said that it had not relieved her pain.
23. In about May 2014 some discussions occurred between the plaintiff and her employer. Specifically on 2 May 2014 a conversation was had about a reduction in the plaintiff’s workload. Changes were effected with the result that the plaintiff’s data entry workload was reduced from about 80% of her daily work activity to 40%, the amount of this reduction equating to about the same level it had been when she commenced employment with the defendant in the position of a receptionist in July 2005. The plaintiff said that she was performing additional functions including assistant to the CEO and that this involved some typing, although this work was included in the 40 % estimate just mentioned. The plaintiff said that despite this alteration to work duties, her symptoms of pain remained the same. She said she felt the need to take a week off work because of the extent of her pain. The plaintiff said her symptoms subsided ‘a bit’ whilst she was not working, therefore mirroring how she responded over the Christmas break.
24. On 4 June 2014 a further meeting was convened between the plaintiff and the employer. She said she was told by the CEO that her medical expenses would be paid to cover any gap not covered by Medicare.
25. On 24 June 2014 the plaintiff attended on Mr Christopher Coombs, a plastic surgeon for the purposes of obtaining a second opinion. Mr Coombs in a report dated 12 December 2014 wrote:
She presented complaining of pain around the base of her left thumb. She had previously seen Mr Tony Berger who removed a mass over the base of her second metacarpal which I assume was a metacarpal boss. Her pain on presentation was more at the base of her left thumb which she stated was related to overuse of her hand at work.
26. Mr Coombs noted on examination tenderness around the base of the thumb, particularly on the volar aspect. She had obvious subluxation of the left CMC joint of the thumb[1]. He diagnosed CMC joint thumb left and subluxation with associated pain. He reported that the plaintiff is very reliant on her left hand due to her childhood injury and that repetitive clerical tasks will place a lot of stress on her thumb CMC joint on her left side. He went on to say that thumb CMC joint subluxation is extremely common in the general population, in particular, women. He reported that as thumb CMC joint subluxation is so common in the female population, “it is likely that she was going to develop this anyway particularly if there is a family history of this in her parents.” He went on to report that he did not believe her work caused it. He went further and said that it is “completely feasible that her clerical duties have aggravated her thumb discomfort.” I note that there is no evidence of any family history of the type referred to by Mr Coombs.
[1] CMC Joint means the carpometacarpal joint
27. On 25 June 2014 a rehabilitation service provider conducted an assessment of the workplace. Some recommendations were implemented including the purchase by the defendant, and use by the plaintiff, of a 3-D mouse. The plaintiff said the mouse made no difference to her experience of pain.
28. On 18 August 2014 another meeting was held at work. The plaintiff said she told the defendant that her pain was still ongoing and she might need to contemplate resigning. She said she was told her that the defendant did not want her to resign.
29. On 26 August 2014 the plaintiff saw Mr Berger again because she said she was experiencing pain to her thumb region. His examination confirmed tenderness over the CMC joint of the thumb with pain on stressing the joint and some mild subluxation of the CMC joint. He reported that the “pain was continuing to be aggravated by work and home activities”
30. On 4 September 2014 the plaintiff saw Mr Tham, a hand surgeon on referral from Mr Berger. In a report dated 4 September 2014 (Ex P14) he noted that the plaintiff had reported “increasing pain at the base of her left thumb for the last 12 months without any traumatic history. Her symptoms are slowly worsening and noted daily with daily activities or with gripping type activities. Clinically there was a dorsally subluxed left thumb trapeziometacarpal joint which was tender and irritable with occasional crepitus. Her CT scan shows 40% subluxed CMC joint without any clear evidence of degenerative arthritis or loose bodies. …. I feel that the crepitus is of significant concern, and associated with subluxation, will inevitably lead to progressive arthritis of the trapezium metacarpal joint.” Mr Tham recommended a reduction of the CMC joint and stabilisation by a ligament reconstruction. The plaintiff has not had the surgery and remains on a waiting list at St Vincent’s Hospital.
31. On 10 September 2014 a further meeting was held at work between the plaintiff and Marina Gutkin. The plaintiff said she told her employer that she was concerned about herself and she “couldn’t cope”. She raised the spectre of workers’ compensation recourse indicating that she was uncertain about her rights and entitlements.
32. On 15 September 2014 the plaintiff ceased work because she said, the pain she was experiencing in the areas of the hand, thumb and forearm to shoulder was “unbearable”.
33. The plaintiff ceased as a patient under the care of Dr Shizada and on 17 September 2014 she came under the care of Dr Gouris. A short time later, on 26 September 2014 she made a claim for a work related injury claim (Ex P3). The plaintiff specified the area of injury as her “left arm and hand”.
34. The plaintiff has not worked since September 2014. She said she has not applied for any work since September 2014. She sees Dr Gouris every three weeks. She is on medication.
35. The plaintiff says she labours under restrictions that impinge on her ability to discharge her everyday household duties and that this imposition has increased over time. She made specific reference to limitations with vacuuming. She also said that her writing has been impeded and her ability to cook has been reduced.
36. The plaintiff was cross-examined. The plaintiff was asked about the extent of her current pain in cross examination. She said the pain has subsided. She said “my pain is only moderate now”.
37. She acknowledged that she had not been prescribed pain medication until she commenced attending Dr Gouris. Prior to this, she had self-managed her pain by means of over-the-counter medications such as Panadol.
38. No report was provided from Dr Shirzada. This omission meant that during the period of pain the plaintiff said she experienced and culminated with her no longer being able to perform her employment, no report from her treating doctor was before the court. Dr Gouris furnished a written report but he came onto the scene after the plaintiff had ceased her employment with the defendant. I have already recorded the absence of a report from Dr Laska. The defendant submitted that I should draw an adverse inference in accordance with the principle distilled in Jones v Dunkel (1959) 101 CLR 298. The effect in law of the principles expressed in this authority and others since, is where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to her, then, although the Court may not treat as evidence what it may think by way of speculation that person would have said if called as witness, nevertheless it is open to infer that the person’s evidence would not have helped that party’s case. If such an inference is drawn then that inference may properly be taken into account against the party in question for two purposes, namely: in deciding whether to accept any particular evidence, which has in fact been given, whether for or against that party, and relates to a matter with respect to which the person not called as a witness could have spoken; and in deciding whether to draw inferences of fact, which are open on evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken.
39. I am not satisfied that a Jones v Dunkel inference arises. The contention that an adverse inference should be drawn by the absence of a report from Dr Shirzada and Dr Laska (the provision of a report being the mechanism for the provision of evidence in chief from those from whom medical evidence is adduced) is that a report from either could have gone to the question of the plaintiff’s work and its causative effect on her conditions. Accepting the correctness of this submission for present purposes, in any event the evidence of Mr Berger and Mr Tham is that to a greater or lesser extent the plaintiff’s work has been a contributor. To make good the submission that an inference should be drawn, is to presuppose that either Dr Laska, a rheumatologist and Dr Shirzada, a general practitioner would have been able to report on, as opposed to express an opinion about, matters on which the plaintiff has otherwise adduced evidence, and evidence by way of medical reports which the defendant submits do not at any rate support the plaintiff’s case by way of work causation.
40. In any event it was by way of referral from Dr Laska that the plaintiff came under the care of Mr Berger and Mr Berger has provided a number of reports.
A record of the further medical evidence
41. Dr Gouras is in general practice and continues to treat the plaintiff. He furnished the plaintiff’s solicitors with a written report dated 3 December 2014 (Ex P15). His report was the subject of criticism by counsel for the defendant because of a diagnosis of tenosynovitis, a condition not the subject of diagnosis by any other practitioner, and also because it lacked disclosure of relevant reports and radiology by others who had seen and treated the plaintiff. In addition it was said that his inclusion of an account of pain by the plaintiff radiating up to her forearm sits alone among the medical reports and histories recorded by other medicos. This criticism must be assessed in light of the plaintiff’s sworn evidence that she believed she had given such an account of pain of this type to Mr Berger. The absence of an account in a medical report is one thing but it must be balanced against the sworn evidence of a plaintiff. I found the plaintiff to be an impressive and credible historian. In any event, the history detailed in the report of Dr Gouras is not, on my reading of it, lacking in reference to relevant medical treatment and history. His opinion included that the plaintiff suffered from a ganglion formation in her left wrist, tenosynovitis, aggravated local degenerative condition, soft tissue injuries in her whole left-hand and having become depressed as a result of her injuries. Furthermore he expressed the opinion that the plaintiff is unfit for her pre-injury employment and unfit for alternative duties. He also wrote that it may become necessary for arthroscopy of her left thumb joint. He thought the plaintiff’s prognosis was “guarded”.
42. Dr Snyman is an Occupational and Environmental Physician. He undertook a clinical assessment of the plaintiff for the defendant insurer on 20 October 2014 and he produced a report of that date (Ex D3). He described the plaintiff’s history as follows:
Ms Cossie is a 40-year-old office worker who does office type activities including typing, photocopying, writing emails, organising travel schedules, issuing receipts and invoices and generally taking care of myriad of activities as found in a modern office. When aged three years she lost the second half of the thumb and all of the fingers in an unfortunate accident at her parents’ pizza shop. She has grown up without the use of a normal right-hand but demonstrated still being able to lift light items by using some pinching action between the stump of the thumb and what is left of the pad of the hand.
The left-hand is now the issue of concern.
CURRENT COMPLAINTS, SYMPTOMS AND FUNCTIONING
Compared to before she went off work, her routine has very much changed. For example, she is to get up at 5 am, start work at 7 am, work the whole day and go to bed around 8.30/9 pm. Now she gets up at around 9 am, goes to bed at 10 at night, and spends the day reading, working with her iPad, going for a walk. She can again take care of her activities of daily living, but there was a time when she had to request to mother to come and help her with her ablutions. She did not use the left hand which is the hand she uses for personal grooming…. She has also stopped or cooking, washing and cleaning. Her mum helps with some of the cooking otherwise her husband does all other tasks. She has never been into the gardening, and has never mowed lawns. She can still drive the vehicle, an automatic. She has no restrictions as regards sitting, standing or walking.
TREATMENT AND MEDICATION
She is currently taking tramadol 50 mg nocte and meloxicam 15 mg one with food daily. She does not recall ever having been prescribed Lyrica.
LIMITATIONS ON ACTIVITIES
Mr Cozzi has now given up work and has noticed a slight improvement in the level of discomfort. However, the pain is not settled. She can again perform all her activities of daily grooming, but is still restricted as regards any tasks of substance around the home. She is to do far more now finds that she can do extremely little.
LEFT HAND
As regards the left hand, this showed an about 3cm long transverse scar over the dorsal aspect of the wrist over the second carpometacarpal joint region. I note that the operation of 02.09.2014, described: Large exostosis removed exposing the second and third carpometacarpal joint and fibrous union between the capitate and trapezoid. Bone excised down to normal joint.
Ms Cozzi pointed out that she felt the left hand seemed redder, and also reported that sometimes it feels swollen. We contrasted capillary filling time bilaterally, and doing today’s testing capillary filling times seemed equal between the right-hand and the left-hand. However, Ms Cozzi did report that the whole thenar eminence region, stretching around the thumb and onto the dorsum of the hand going up the radial aspect of the left forearm towards the shoulder, felt warm and burning, fluctuating in severity at times.
Sometime she even uses ice packs to try and cool off the really hot burning sensation she gets over especially the dorsal aspect of the left-hand (radial aspect). No specific hyperaesthesia reported on stroking the hand. However even slight gripping Ms Cozzi reported as painful. In spite of the pain she tried to demonstrate a range of movement of the left thumb, and showed good flexion, extension, abduction and opposition. She could reach across to the base of the first phalanx of the little finger with the pulp of the thumb and opposition could cover from 0 cm to at least 7 cm.
Right-hand
The right-hand showed amputation of the distal phalanx through what appears to be the interphalangeal joint. The second metacarpal seemed to still be mostly present, with what felt like an amputation through the neck of this metacarpal. As regards the third, fourth and fifth metacarpals, these were progressively shorter with what seemed like healed and otherwise unremarkable healing. Skin cover good. Observing how Ms Cozzi was using what was left of her right hand, she appeared to be doing incredibly well, even picking things up with a pincer movement of what remained of the thumb and the second metacarpal regions.
Wrist movement seem normal with flexion 60degrees, extension 60 degrees and normal radial and ulnar deviation of 20 degrees and 30 degrees respectively.
Elbow movements equal and normal with 140 degrees flexion, straight arm extension and 80 degrees pronation and supination…
Shoulder contours looked normal with normal looking sternoclavicular joints and non-tender acromioclavicular joints.
The worker’s injury as a regional pain syndrome seems to have developed subsequent to the surgery on the dorsum of the left-hand, which was for a ganglion and bony exostoses.
43. Dr Snyman thought the existence of the ganglion was too remote in terms of cause to enable him to go further and attribute to it an association by way of work causation. Therefore, he wrote, in the absence of the existence of sufficient evidence to propose a cause for its presentation, it opened the possibility that other factors may be involved. He expressed the opinion that on the assumption that work did not cause the ganglion, then even if the plaintiff stopped work, it may not prevent a recurrence or deterioration. He noted that he had no information to conclude that the ganglion was caused by work or that the worker’s employment remained a cause. He did not venture to suggest what this information might comprise.
44.In relation to the identified condition of chronic regional pain syndrome (CRPS), he thought it may have been triggered or aggravated by the surgery on the dorsum of the left-hand. He said that although the plaintiff’s employment, or indeed any activity involving the left hand, increased her pain levels, he did not consider the regional pain syndrome to be a complication of the plaintiff’s duties as an office worker.
45. As to the plaintiff’s capacity, Dr Snyman reported that the plaintiff did not currently have a capacity for her pre-injury duties, as she is presently disabled by being unable to use her left hand, which is a dominant hand and on which she is reliant for nearly everything.
46. In conclusion Dr Snyman expressed the opinion that the plaintiff presented with what he regarded as a CRPS subsequent to and/or consequent on surgery for ganglion. He said that whilst the ganglion may have started to become painful, he did not know and it was possible that pain syndrome somehow had already started when the ganglion was felt and was deemed to be responsible. Investigations had also confirmed exostoses which were likely to have been pre-existing. Some hand abnormality existed which would have been long-standing and then in late 2012 the plaintiff’s left-hand started getting sore, which he thought might have been the start of the regional pain syndrome.
47. Mr Charles Flanc is a vascular and general surgeon who examined the plaintiff at the request of her solicitors on 28 January 2015 for the stated purpose of assessing her injuries to the left hand. He furnished a report dated 2 February 2015 (Ex P 18). He made a number of observations pertinent to diagnosis. In relation to the injuries to the plaintiff’s left-hand he referred to the history her treatment for a painful protrusion on the back of her left wrist in September 2013. He pointed to the report of operation from Mr Berger of the excision of the bony protrusion and to the apparent removal of ganglions on each side. He pointed out that in the plaintiff’s case the ganglia connected with one of the intercarpal joints. He reported that the plaintiff’s symptoms “in that area resolved following surgery”.
48. Mr Flanc said that it is likely that the plaintiff’s condition was significantly aggravated by the repetitive use of her left-hand which in fact was greater than for a person without the plaintiff’s disability stemming from the severe injuries to her right hand as a child.
49. Mr Flanc also reported on the condition of pain to the base of the left thumb that was noted by the plaintiff as developing at about the end of 2013. He said that the maximum area of pain and tenderness was in the region of the carpometacarpal joint of the left thumb raising the question of possible arthritis of the inter-carpal joints in that area. He went on to say, however, that it appeared that the CT scan of the plaintiff’s arm did not show any arthritic changes. He was of the view that an exact diagnosis of the plaintiff’s painful left thumb was uncertain. He noted that Mr Berger had referred the plaintiff to Mr Tham for a second opinion and both Mr Tham and Berger advised the plaintiff to undergo a reconstructive operation involving her extensor tendons.
50. Mr Flanc also directed attention to the possibility of CRPS. He said that the plaintiff’s clinical examination revealed a slight increase in the depth of colour of her left hand, a slight decrease in temperature compared to the right-hand and slight sweating when compared to the dryness of the right hand. He said that when considered in combination with the account of the plaintiff’s pain that at times radiated across the whole hand and up to the forearm, he considered that the plaintiff might be developing some degree of chronic pain syndrome, and specifically a subgroup of the pain syndrome known as “complex regional pain syndrome type I”(CRPS Type 1) a condition he reported that could result in sensitisation of pain pathways resulting in pain which is greater in severity and extent than that expected from the physical injury alone from “type I chronic pain syndrome”. He reported as well of the presence of physical changes related to overactivity of the autonomic nervous system which can result in changes in colour, temperature and sweating of the extremity as he observed had occurred to a minor extent in the plaintiff.
51. As to the plaintiff’s fitness to work, Mr Flanc said that the plaintiff would not be able to return to her preinjury duties and it would probably be wise to avoid any work involving repetitive or heavy use of her left upper extremity. He considered that from a theoretical standpoint, the plaintiff would have a capacity to perform part-time light office type duties such as filing or photocopying although she would need to avoid lifting any heavy files. He believed that the plaintiff’s prognosis was guarded.
52. Mr Flanc provided a supplementary report dated 4 May 2015 to the plaintiff’s solicitors (Ex P19) in which, inter alia, he noted the opinion of Mr Berger that the underlying conditions, namely the bony boss over the 2nd metacarpophalangeal joint and the subluxation of the carpometacarpal joint of the left thumb and subsequent arthritis were pathological in nature and not related to the plaintiff’s employment. Furthermore, he recorded that it had been considered that the overuse of the plaintiff’s left-hand because of the severe injuries to her right hand as a child were aggravating factors in the sense that she became symptomatic.
53. As to whether the contribution made by the plaintiff’s employment was significant, Mr Flanc referred to the discussion on the point made by Mr Berger who considered that although the plaintiff’s work had made some contribution to her disability, it was unlikely to be significant.
54. Mr Flanc wrote that the initial onset of symptoms related to the bony boss on the back of the plaintiff’s hand involved a significant degree of aggravation by her work because she developed ganglia, that he described as “degenerative cysts with a mucoid content usually connecting with a tendon sheath or a joint” and, that in the plaintiff’s case, “the ganglia connected with one of the intercarpal joints”. Mr Flanc said he considered the nature of the plaintiff’s work which he believed was more constant and more intensive than she would have had at home and that in his view, it seemed likely that the nature of the plaintiff’s work from 2005 onwards could have been a significant contributing factor to the development of her symptoms even though there were other contributing factors and noting that the underlying pathological process was considered by the hand surgeons as being unrelated to her work.
55. The defendant was critical of Mr Flanc. Mr McDonald argued that his opinion about the surgery of September 2013 was predicated on a false premise that because the operation was performed at St Vincent’s private hospital “that this injury was considered compensable by the insurers” which was factually wrong. I would not read down the clinical analysis by Mr Flanc because of that mistake.
56. Dr Peter Blombery is a consultant physician in vascular disease. He saw the plaintiff on 1 May 2015. He provided report to the plaintiff’s solicitors dated 11 May 2015 (Ex P 21). In relation to the plaintiff’s current status he reported that when seen by him her pain was a little less severe in her left hand because she was no longer working. The pain identified was in the carpometacarpal joint area of the thumb as well as the in the metacarpophalangeal joint area and was present all the time and she rated her pain as 8 on a scale of 1 to 10. The plaintiff described a burning feeling in the hand. She said the pain kept awake at night. There was also a ganglion on the dorsum of the wrist. The left hand swelled and became hot and bruised and her left hand also sweated excessively compared the right-hand. The pain was essentially stable.
57. In Mr Blombery’s opinion, the plaintiff had sustained a severe injury to the right-hand at the age of three and thereafter effectively depended almost entirely for all manual tasks by use of her left hand. The painful lump on the dorsum of the left wrist and a ganglion which had developed had become increasingly symptomatic in 2012. The surgery to trim the excessive bone and excise the ganglion in September 2013 provided initial respite although the plaintiff said there was a fairly quick recurrence of pain around the carpometacarpal joint.
58. The plaintiff had also noted some changes in temperature, colour and sweating of the left-hand compared to the right-hand and this was primarily since the surgery in September 2013. Mr Blombery said that “[t]his combination of features of ongoing pain together with autonomic disturbances is diagnostic of complex regional pain syndrome type I, or as it used to be known, reflex sympathetic dystrophy”.
59. Mr Blombery said that the work the plaintiff was doing, particularly, keyboard work using her left hand over a period of 9 years would have been sufficient to have made a very significant contribution to the pain in the left hand caused by the boss and ganglion, and that as to the development of the CRPS Type 1, he thought it principally a complication from the surgery that was performed in September 2013 for symptoms which were aggravated by work, and he assessed the plaintiff’s employment as a significant contributing factor to it as well.
60. Thus Mr Blombery’s opinion is different from Mr Berger who by his reports dated 17 November 2014 and 15 January 2015 expressed the opinion that work performed by the plaintiff had aggravated her symptoms but was not the cause of them.
61. As regards the contention that CRPS Type I is primarily something arising from other than a complication of the surgery performed on 2 September 2013, Mr Blombery reported that because the surgery was performed for symptoms which were themselves aggravated by work, that the plaintiff’s employment was a significant contributing factor to the development of it. He thought the plaintiff’s prognosis for recovery was moderate and that the plaintiff will be left in the long term with a significant disability.
62. Mr Kossman is an orthopaedic surgeon. He examined the plaintiff at the request of her solicitors on 17 September 2014 and prepared a report dated 24 March 2015 (Ex P20). He detailed a history provided by the plaintiff together with a history of her medical interventions and radiology. He made a diagnosis of:
·Severe right hand injury in childhood with loss of all fingers including the thumb but with some remaining functionality of the right hand
·Ganglion dorsal at the left wrist
·Aggravation of osteoarthritic changes affecting the first carpometacarpal joint.
63. Mr Kossmann reported that the plaintiff began to suffer from pain in her left hand around the end of 2012/2013. He expressed the opinion that the plaintiff has no work capacity and there is a possibility that she may never return to any employment. Furthermore, in his opinion, the plaintiff’s condition is work-related and her employment has been a contributing factor. He wrote that although the plaintiff may have been suffering from some osteoarthritic changes in her left wrist due to the fact that she uses her left wrist much more compared with other people in her age group, as a result of having lost all of the fingers of the right-handed at 3 years of age, his belief is that the plaintiff has suffered from a combination of both that acute injury, as well as an aggravation, acceleration, exacerbation and deterioration of pre-existing degenerative changes within her left wrist. He attributed the degenerative changes to overuse to the left wrist throughout her childhood and youth, which then became apparent due to aggravation during the course of her employment. He expressed the opinion, therefore, that the plaintiff presented with a mixed picture of an acute injury as well as an aggravation, acceleration, exacerbation and deterioration of pre-existing degenerative changes around her left wrist.
The contentious distillation – pain - symptom or injury
64. Section 40 of the WIRCA provides that there is no entitlement to compensation in respect of the following injuries unless the worker's employment was a significant contributing factor to the injury—
(a)a heart attack injury or stroke injury to which subsection (2) does not apply;
(b)a disease contracted by a worker in the course of the worker's employment (whether at, or away from, the place of employment);
(c)a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease.
65. What separates out the circumstances of this case from some others is the argument about “injury”. The defendant submits that the appropriate conclusion to reach is that the plaintiff’s condition altered such that what became operative and inhibiting was pain that manifested itself at the lower base of the thumb and not the problems that had been associated with the back of her wrist and reared its head in the latter part of 2012 and culminated with surgery in September 2013. Mr McDonald submitted that the manifestation of the change is evident in the report of Mr Tham dated 4 September 2014 (Ex P14) in which he recorded that there had been increased pain at the base of the left thumb over the last 12 months without any traumatic event. In addition, the defendant referred to the opinions expressed by Mr Berger in his report dated 17 November 2014 (Ex P11) that the plaintiff presented with organic pathology in the left thumb and that she requires arthroscopy or a reconstruction and that the CT scan findings and examination findings are consistent “with early degenerative change in the carpometacarpal joint despite the repot changes” and that the plaintiff’s pain was merely a manifestation of subluxation and arthritic cartilage damage and not CRPS. Mr McDonald submitted that the nature of the appellation accorded by way of “syndrome” is apt to apply in the absence of pathology to account for symptom presentation. Mr Berger’s opinion is that whereas the plaintiff’s work may have aggravated symptoms of pain her work not the cause of the underlying pathology.
66. In my judgment, Mr Berger‘s report is not as emphatic as the defendant might have it. Work is not diminished as a factor in the onset of the plaintiff’s pain according to Mr Berger but the level or extent of its contribution has and also work is excluded as having caused any altered pathology. Mr Berger wrote that:
Ms Cozzi presented with pain and tenderness around a 2nd carpometacarpal joint boss with a secondary ganglion and pain around the carpometacarpal joint of the left thumb due to subluxation an early arthritic cartilage damage. Both of these conditions have been aggravated by the amputation of the right hand with constant repetitive activity being the main contributor to both of these problems. This has occurred both during work and recreational and home activities. No specific injury is occurred and I believe that whilst work would have contributed to some of the condition I do not believe it has been significant.
I believe work may have aggravated symptoms of her problem but would not have caused the underlying pathology or pathological process.
67. From the defendant’s perspective it is put that the plaintiff’s pathology was due to her acute right hand injury as a child which through the overuse and dependency on the left hand both from work and everyday activity developed an arthritic condition and associated ganglia which was the subject of surgery, the preponderance of which suggests settled well, and that the development of the pain in the base of the thumb is not causally connected with the plaintiff’s work. Of course, the defendant must take the plaintiff as it finds her. This means that the plaintiff due to her critical injury when aged 3 years was more susceptible to the development of conditions in life and in work of the type she performed than someone not employed in like work but without her injury. There is the reference in the medical evidence to the plaintiff being susceptible to ganglia for non-work related reasons based on her gender and age and family relatedness but even if this is true (and I leave to one side the question of the lack of empirical evidence about the matter) in any event such a predisposition would not of itself exclude the possibility of other factors such as the data entry work amounting to a contributing factor and potentially “a significant contributing factor” to the aggravation or exacerbation of the pathology of that condition.
68. The defendant argued that the plaintiff’s presentation with pain to the base of the left thumb is not a compensable work injury because the evidence fails to identify a causal connection between the pain and the plaintiff’s work, there being no pathological change, and this being the case, then the plaintiff’s work cannot amount to a factor let alone a significant contributing factor to her present state. Mr Berger has identified the two identified conditions as causing aggravation by way of the plaintiff’s pain but not that they have caused aggravation by way of a change in pathology. Does this therefore disentitle the plaintiff from success?
69. I am satisfied and find that when employed by the defendant and in late 2012 the plaintiff noticed a lump and sometime later she felt a throbbing sensation at the site of the lump and experienced pain in her wrist that came on gradually and that that in the first quarter of 2013 the pain was “getting a bit unbearable” and “noticeably when at work” and the plaintiff had two weeks off work during which time the pain subsided.
70. I find that Dr Shirzada suspected a ganglion and possibly arthritis.
71. I find that as dorsal ganglion was subsequently confirmed by MRI and a bony spur was removed in addition to ganglia by Mr Berger and following on from surgery and whilst absent from work the plaintiff’s condition settled.
72. I find that on return to employment the plaintiff developed pain at the base of the left thumb spreading to her wrist and up the forearm. The pain encompassed the surgical site. I accept the plaintiff’s evidence that she made a complaint of such a nature to Mr Berger. Mr Berger thought the plaintiff’s arthritis had been exacerbated by activity but that her work was not a cause of the pathology.
73. I find that there is sufficient medical evidence that post surgery the plaintiff’s pain can be characterised as CRPS Type 1 and that her pain affected her use of her left arm and hand. In my view of the evidence, there is a more than sufficient connection between the surgical site and the post-surgical pain. Dr Blombery has reported (Ex P21) the diagnosis of CRPS as a complication of the plaintiff’s surgery. He reported by way of his opinion, “that the work that she was doing, particularly keyboard data entry, would have been sufficient to have made a very significant contribution to the pain in the left hand caused by the boss and ganglion. This also applies to the recurrent subluxation that is occurring for which she is now awaiting surgery. It is therefore my opinion that employment was a significant contributing factor to her current condition.”
74. As regards CRPS Type I, Dr Blombery wrote, “it is my opinion that it is primarily a complication of the surgery which was performed on 2 September 2013. Since that surgery was performed for symptoms which were aggravated by work, it is my opinion that employment was a significant contributing factor also to the development of complex regional pain syndrome type I.”
75. Unlike Dr Blombery, Dr Snyman in a report dated 20 October 2014 (Ex D3) only made a temporal as opposed to a causative connection between the conditions that warranted surgery and the development of CRPS Type 1. He expressed himself as follows:
The worker’s injury or medical condition, as a regional pain syndrome, seems to have developed subsequent to the surgery on the dorsum of the left hand (which was for a ganglion and bony exostoses). Note: I do not consider ganglia or bony exostoses to be scientifically and plausibly linked to activities of an office worker…. As such, we have a diagnosis of a ganglion, but cannot assert causation. There also has been reported a small dorsal bony carpal exostoses (carpometacarpal “boss”). Therefore, in the absence of having sufficient evidence to propose a cause for the presentation here, it does open the possibility of with other factors may be involved, and hence management as from simple ganglion may not necessarily follow. Assuming work did not cause the ganglion, then even stopping work may not prevent a recurrence or deterioration. Hence, I have no information to conclude that the ganglion was caused by work, nor the worker’s employment is still a cause”.
76. The observations made in his report about the insufficiency of evidence to attribute ganglion of the hand and wrist to work because of the existence of a combination of risk factors, such as force and repetition, force and posture, vibration, highly repetitive work alone or in combination with other factors, forceful work, awkward postures, keyboard activities, cold environment, length of employment, age, body mass index, gender, biopsychosocial factors, diabetes, or dominant hand may be relevant matters for evidence in another case on another date. However, in the context of the evidence in this proceeding, the defendant did not lead any positive evidence relevant to the circumstances of this plaintiff, or that the nature of her employment should be ameliorated by the variables just referred to, in order to permit me to elevate the body of writing referred to as probative evidence that the plaintiff’s employment activities could not constitute a significant contributing factor, which, after all, is a legal precept and not a medical term. In light of my finding of a causative connection between the plaintiff’s work and her surgery in 2013 and my finding about the proximate nature of the area in which the plaintiff was subject to pain following surgery, on the balance of probabilities, I am satisfied that both the condition that led to surgery and the subsequent pain spreading to the forearm satisfies a diagnosis of CRPS Type I, and thus the injuries meet the test of amounting to an aggravation or exacerbation of a pre-existing degenerative arthritic condition.
77. Injury in its extended statutory meaning is defined to include –…a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.” I am satisfied that I can exclude the plaintiff suffering injury by way of a “recurrence” or “acceleration” of her pre-existing injury. There is no evidence to support a finding that the plaintiff’s work has hastened her arthritic condition. There is therefore an absence of evidence that the plaintiff’s employment has manifested itself in either of those ways based on her pathology. There has however been complaint of an increase in pain. The Macquarie Dictionary, 6th Edition, defines the noun, “aggravation” to mean, “an increase of intensity or severity of anything, the act of making worse”. The verb “exacerbation” is more apt to apply to an increase by way of irritation of anything. Therefore, can the plaintiff’s increase in pain amount to an aggravation or an exacerbation of her arthritic condition?
78. In Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 Windeyer J said of the words, “recurrence, aggravation or acceleration of a pre-existing disease” at p 593:
““Aggravation” means, I think, that an existing disease has been made worse, not that it is simply become worse. “Acceleration” I have previously said and venture to repeat “probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached-its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli.”
79. Counsel for the plaintiff plotted a course arising from a number of decisions in order to make good the submission that there can be “aggravation” of a previously existing injury by activity which increases or precipitates pain (see: Kitto J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at p 634 and Commonwealth of Australia v Beattie (1981) 35 ALR 369, in particular, at 377-8 per Evatt & Sheppard JJ). I note too, in Beattie’s case that their Honours held that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place and that whether it does or not in an particular case, is a question of fact.
80. For the foregoing reasons and based on relevant authority I am satisfied and find that the pain experienced by the plaintiff constitutes an aggravation of her pre-existing injury.
81. The requirement that the plaintiff establish that his “injury” “arise out” of her employment will be satisfied in law if her employment is shown to have been a significant contributing factor to injury. It is not necessary that the plaintiff establish that the employment was either the sole or the dominant cause.
Significant contributing factor
82. The words “contributing factor” recognises that an injury may be caused by more than one factor. The inclusion of “significant” means that where there is more than one factor involved and one of them is the worker's employment then its importance needs to be assessed in order to determine if it is “a” significant contributing factor or not. There may be also more than one factor which is significant and of course one factor may be more significant than another but this does not diminish the question whether employment is a significant contributing factor to the causation of injury. It may be of lesser significance than another but nonetheless satisfy the description of “significant”.
83. In Meddis v. Victorian WorkCover Authority (County Court, judgment 24 April 1996) Judge Rendit, said this:
I consider a broad meaning can only be given to the words “significant contributing factor” as the facts of each case must be looked at in the light of its own circumstances and an assessment made factually whether the employment was a significant contributing factor to the happening of the injury. In this regard, I consider it means more than de minimis but less than a major or a dominant factor. Indeed, one can have several significant contributing factors which are unrelated but which play their part in the occurrence of the injury. I consider that it is basically a question of fact”.
84. In Allman v. Major Finance and Engineering Pty Ltd (County Court, judgment 14 March 1997) Judge Strong described ‘significant’ as meaning ‘of considerable amount of effect’.
85. In terms of the factors identified, where relevant, that have contributed to a particular injury it would be a wrong approach to adopt in giving effect to this part of the Act that the paragraphs in question are only relevant where circumstances fitting them were present; in which case those facts would be put in the balance against the worker. The law directs me to be aware that the absence of facts falling within any of the sub-paragraphs may tell in favour of there having been a significant employment contribution to injury in a particular case.
86. The nature of employment is a matter that must be considered and is something I have already addressed. I have detailed the evidence identifying the nature of the employment duties undertaken by the plaintiff with the defendant.
87. In applying reasoning to the facts of the case, I have kept in mind that because of the plaintiff’s childhood injury she was more susceptible to injury than others without that disability. The only other material to address such matters was the references made by Dr Snyman about the prevalence of certain associations as risk factors for ganglion and of Dr Coombs references to prevalence. There was no probative evidence led on these matters by the defendant and they have not impacted my decision. The plaintiff’s length of employment for the period July 2005 to September 2014 was substantial. I have of course kept in mind the question of probable development of the injury occurring if the employment had not taken place. The plaintiff came to employment with a degenerative condition and, therefore, the pertinent question is the extent to which, if at all, the degenerative condition was aggravated and or exacerbated by the employment. Although the plaintiff’s evidence is that her pain has reduced and did subside during periods that she did not work, she said however that it increased on a return to her repetitive duties. Thus the aggravation was not a temporary or momentary thing. The point was explained in Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at p 179 to 180:
I think it is plain that pain of itself may not be sufficient to constitute an injury, where it is a symptom of an underlying condition or disease. Pain experienced, which is not a manifestation of some pathological change in the underlying condition or disease, will just be a manifestation of the presence of the condition or disease, so that if the activity which produced the pain is ceased and the pain subsides, nothing more has occurred in the experiencing of temporary pain.
But if the pain intensifies and the symptomology of the pre-existing condition gets worse then one does not have a case of pain quickly subsiding with rest on the symptomology returning to the level it was before the pain intensifying activity was undertaken.
88. There was no evidence of the life style of the worker or her activities of the worker outside the workplace of such a nature or extent to suggest they had impact as significant contributing factors.
89. I am satisfied that there is a sufficient connection disclosed in the medical evidence to conclude on the balance of probabilities that the work performed in the discharge of the plaintiff’s employment with the defendant caused an aggravation or exacerbation of pain and that this may be said to amount to an aggravation or exacerbation of injuries to her left arm and hand.
90. The plaintiff is entitled to a declaration that the decision to reject payment of compensation for weekly payments and medical and like expenses is contrary to law and to be set aside.
91. The evidence of the plaintiff’s capacity is overwhelmingly to the effect that she is incapacitated for her pre-injury duties. Sensibly in terms of the plaintiff’s account of her condition and the medical material, she was not challenged about her capacity. There was no evidence and no submissions made to suggest the existence of alternative suitable employment.
92. I order and direct that the parties file a minute of order within 7 days to give effect to my decision.
93. I grant liberty to apply.
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