Walsh v Programmed Skilled Workforce
[2022] NSWPIC 374
•12 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Walsh v Programmed Skilled Workforce [2022] NSWPIC 374 |
| APPLICANT: | Timothy Walsh |
| RESPONDENT: | Programmed Skilled Workforce |
| MEMBER: | Michael McGrowdie |
| DATE OF DECISION: | 12 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for lump sum workers compensation; the worker claimed consequential injury to the left wrist as a result of favouring his right wrist which was injured at work; the worker claimed an aggravation of underlying arthritis in the left wrist; the respondent did not accept aggravation; Held – the applicant did suffer a consequential injury to the left wrist and an assessment of the right and left upper extremities was referred to a Medical Assessor to assess permanent impairment. |
| DETERMINATIONS MADE: | 1 That as a result of injury on 10 April 2016 to his right wrist, the applicant developed a consequential condition to the left wrist by way of aggravation of underlying arthritis. 2 The matter is remitted to the President to refer the matter to a Medical Assessor to assess any whole person impairment of the applicant’s right upper extremity (wrist) and the left upper extremity (wrist) as a result of injury on 10 April 2016. 3 The documents to be furnished to the Medical Assessor are: (a) the ARD (b) the Reply (3) any late documents already filed, and (d) a copy of this determination and reasons. |
STATEMENT OF REASONS
The applicant, Timothy Walsh, born in 1966, brings a claim for lump sum compensation for the right upper extremity (wrist) and a consequential condition of the left upper extremity as a result of injury on 10 April 2016.
INTRODUCTION
On 10 April 2016 the applicant was working in a mine removing a rock from a shute when another rock fell on a metal bar he was holding and using, causing his right wrist to twist. As a result, he suffered 2016injury to his right wrist, necessitating surgery by way of a fusion on 15 September 2016.
The applicant asserts that he favoured his right arm and that this led to him developing symptoms in his left arm.
As a child the applicant suffered a cut on his left arm and this appears to have led to a cubital tunnel syndrome in that arm which probably requires surgical release. The applicant coincidentally suffers from carpal tunnel syndrome of both arms not said to be related to the injury.
What is alleged by the applicant is that he aggravated pre-existing degenerative arthritis in his right wrist by favouring his injured right arm and developed symptoms in his left wrist and hand.
He has an assessment of permanent impairment of both upper extremities as a result of injury on 10 April 2016. The respondent accepts permanent impairment of the right upper extremity.
ISSUES
The central issue in this matter is whether the applicant developed a consequential condition of the left upper extremity as a result of the injury to the right wrist on 10 April 2016.
DISCUSSION
The applicant, in his statement dated 25 November 2021, has said that he had pain in his left wrist as early as May 2016 and well before the surgery to his right wrist.
There was a consultation with Dr Thong, Pain Management Physician, who reported on 28 April 2017. Subsequent to the primary injury date, the applicant engaged in work of various kinds for various periods of a lighter nature, including cleaning duties.
Dr Thong reported that:-
“Functionally Tim uses his left hand for heavy tasks…”
In a later report by Dr Thong dated 1 February 2018 he noted that the applicant was suffering from overuse of his left hand.
Dr Kwa, the applicant’s Orthopaedic Surgeon, reported on 4 May 2018 that he was suffering pain in his left wrist due to overloading. He noted that emerging carpal tunnel syndrome had become evident but was not the cause of the pain complained of by the applicant but which could be due to increasing load. He referred the applicant for x-ray.
The respondent arranged for the applicant to see medico-legal consultant, Dr Kapilla, who expressed the opinion in his report dated 9 August 2019 that, on the balance of probability, the applicant had sustained a consequential injury to his left hand, noting underlying arthritis.
Dr Killey, General Practitioner, reported on 25 February 2019 that the applicant had performed suitable duties at various times since the accident, mostly using his left hand with pain.
Dr Negus, Orthopaedic Surgeon, in a report to the applicant’s solicitors dated 30 June 2020, states that the applicant has suffered a consequential injury with generalised tenderness to his left wrist and restriction of movement and weakness. Also, Dr Negus, noted thickening of the left elbow which was consistent with cubital tunnel syndrome. He also noted trigger fingers of the right hand unrelated to the injury.
Permanent impairment of the applicant’s right upper extremity assessed by Dr Negus to be 31% and of the left upper extremity and to be 13%, giving a combined tables assessment of 40% as a result of the injury on 10 April 2016.
The respondent engaged a medico-legal consultant, Professor Cumming. Professor Cumming produced a number of reports.
In his report of 7 May 2020, he noted the development of triggering of the index and middle fingers of the applicant’s right hand as well as numbness in the tips of the fingers of the left hand with pain and numbness up to the elbow. Professor Cumming did not think that matters were related to the subject injury. He considered that it was, however, possible to allocate some symptoms of overload during the period of immobility due to his right wrist injury.
Professor Cumming has assessed 18% whole person impairment for the right upper extremity and 2% for scarring, a combined total of 20%. He assessed nil for the left.
On 14 March 2022, Professor Cumming provided a supplementary report in which he indicates that even on the assumption that the Applicant suffered a consequential injury to the left upper extremity there was 0% whole person impairment.
It is my view that the applicant may have symptoms of cubital tunnel syndrome on the left side and possibly, carpal tunnel syndrome in both upper extremities.
The applicant however, developed pain in the left wrist by favouring his right arm. Even after the surgery for the right wrist the applicant continued to have significant symptoms in his right wrist and to favour his right arm.
CONCLUSION
On balance I consider that the applicant suffered a consequential condition to his left wrist/hand by way of an aggravation of an underlying arthritis and that it is likely that the effects of this continue.
The applicant may have developed multiple conditions affecting the left upper extremity including carpal tunnel syndrome and/or cubital tunnel syndrome but that these are unrelated to the injury on 10 April 2016.
DETERMINATION
That as a result of injury on 10 April 2016 to his right wrist, the applicant developed a consequential condition to the left wrist by way of aggravation of underlying arthritis.
The matter is remitted to the President to refer the matter to a Medical Assessor to assess any whole person impairment of the applicant’s right upper extremity (wrist) and the left upper extremity (wrist) as a result of injury on 10 April 2016.
The documents to be furnished to the Medical Assessor are: (a) the ARD (b) the Reply (3) any late documents already filed, and (d) a copy of this determination and reasons.
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