Sarant v Thomar Pty Ltd [2001] NSWCC 2 (23 February 2001)

Last Updated: 5 September 2001

NEW SOUTH WALES COMPENSATION COURT

CITATION: Sarant v Thomar Pty Ltd [2001] NSWCC 2


PARTIES:
Maria L Sarant
Thomar Pty Ltd T/As Mayfair Nursing Home


CASE NUMBER: 3094 of 2000 of 2001.00


CATCH WORDS: Statutes & Delegated Legislation


LEGISLATION CITED:


CORAM: Campbell CJ

DATES OF HEARING: 22/2/01-23/2/01

EX TEMPORE DATE: 23/02/2001


LEGAL REPRESENTATIVES

FOR APPLICANT: Mr A Johnson instructed by James A Moustacas & Co
FOR RESPONDENT: Mr M H Best instructed by P W Turk & Associates


JUDGMENT:

1. The applicant in this matter claims lump sums under the Workers Compensation Acts in respect of an injury to her right wrist which occurred on 4 June 1995 arising out of and in the course of her employment with the respondent. Mr Johnson of counsel appeared for the applicant. Mr Best of counsel for the respondent. Counsels’ addresses have been recorded and it is therefore unnecessary for me to refer to each submission merely to ensure that it is noted.

2. The applicant is a 29 year old student at UTS, where she is studying for a degree in nursing. She had in fact been engaged in nursing activities since being at school working, first as a nurse's aide, then at St Vincent's as an enrolled nurse trainee and thereafter at two hospitals as an enrolled nurse. For the last year and part of this year, she has been at the university whilst doing some small amount of contract nursing work.

3. The applicant was an impressive witness and is obviously very hardworking and dedicated to the nursing profession. On 4 June 1995, she was helping to move a patient, using a draw sheet, when she suffered some sort of injury to the wrist. As to that there is no contest, although the doctors have difficulty in determining its precise nature. The applicant was under the treatment of her local doctor, Dr Gazal who referred her to Dr Best and to Dr Myers. She was paid compensation whilst she was off work. Initially she had a period off which was partly a holiday, that is she took time off. The applicant has returned to work and continued to work in the hospitals in the roles I have described until she took up her university studies.

4. Whilst I accept her evidence that she had made much more use of her left hand and has worked at lighter type of work than she performed with the respondent, where geriatric and similar care was a large part of the work, it is nonetheless clear, and she concedes, that her work has involved a good deal of heavy work in relation to the use of the right arm.

5. The applicant complained of continuing pain in the wrist, at times leading to a feeling of tightness in the upper arm extending into her neck, and if she does not have chiropractic treatment at that point to, as she put it, adjust her neck, the pain descends to the back of her right shoulder. The difficulty in the case is that by the far the preponderance of the medical evidence can find nothing to explain the applicant's continuing symptoms, especially in regard to the neck. Numerous tests have been undertaken but they have all proved to be normal.

6. Dr Best to whom Dr Gazal referred the applicant, although I suspect the first treatment was given by Dr Orchard, carried out a total of four iontophoresis treatments. He reported on 19 January that the deep ache involving her right wrist and forearm had disappeared and she now had a localised pain in the palmar aspect of the right wrist centrally. He thought that she would continue to improve with that treatment, physiotherapy and adherence to an exercise programme.

7. Dr Myers, who saw the applicant in February 1986, could find little to observe. He said there was a diffuse tenderness in the volar aspect of the forearm and wrist which at times, he thought, appeared to be disproportionate. It was his view that historically the applicant had suffered a traction injury to the flexor tendons to the fingers. He said he could not explain why she had such severe and permanent pain in the forearm and wrist. He could not think of any alternative therapy and that no surgical procedure would improve the symptoms.

8. Dr Cusi, who saw the applicant in June 1998, did find on examination a slight wasting of the hypothenar eminence of the right hand which is the tender area, a loss of grip strength in the right hand and there was a loss of strength of little finger abduction. A good range of movement of the wrist was found and there was slight tenderness on compression of the carpal tunnel. He noted a general tightness around the paravertebral muscles and a slight trapezius tightness on the right. He thought that the applicant had suffered a traction injury to the flexor aspect of the wrist three years ago and had made considerable improvement, but there was residual pain about the hypothenar eminence which was made worse with increased activities. He did not consider there were further tests that could define the pathology. He thought postural training might help. The applicant needed to increase the strength of both flexors and extensors of wrists and fingers and he said that he had explained to the applicant that the fact that she had pain in those movements was not necessarily an indication of harm and that she needs to overload the various muscle groups in order to increase her strength. It is, I think, notable that Dr Cusi's opinions all relate to the wrist and adjacent areas.

9. The high point of the applicant's medical case comes from Dr Mahony, a qualified doctor, who examined her on 7 October 1999. His report stands in a number of respects quite apart from those of all other doctors. He thought that there was a possibility of an injury to the triangular fibrocartilage of the wrist, which was consistent with what the action she described at the time she felt the pain. He was of the view that she had added symptoms referable to a cervical strain and thought that they were associated with an altered posture, being indirectly related to the right wrist condition. The doctor then assessed 5 per cent permanent impairment of the neck and a 20 per cent permanent loss of the efficient use of the right limb at or above the elbow.

10. Dr Maxwell, also a qualified doctor, examined the applicant in December 2000. That doctor had a different theory as to the problem in the wrist. He said the only reasonable diagnosis would be repetitive strain injury to the right wrist and hand. The applicant's application for determination does refer to the nature and conditions of her employment. It would be notorious that the type of work that she was doing could cause repetitive type strain injuries in some circumstances. But none of the other material seems to support a case put on that basis, and indeed the applicant's own account traces her difficulties to the event of the using the draw sheet.

11. Dr Maxwell noted that the applicant had neck trouble starting six months after the strain and he said he could not relate it to the right hand. He also said that in any case he found no objective abnormality in the neck. He assessed the loss of the use of the right arm, as he put it, below the wrist by which I think he must have meant to be below the elbow, of 15 per cent.

12. The applicant has found that she has had some relief in treatment from Mr Cohen, a chiropractor. Mr Cohen has reported that she has a weakness of deep wrist muscles as well as the long extensor muscles, and noted that she has a further cervical spine dysfunction, upper thoracic intersegmental joint fixations which is related to the long duration of her problem. That is a proposition that is not supported by the medical evidence in the case and indeed is contradicted by a good deal of it. It is clear from Mr Cohen's report that a good deal of his treatment relates to treatment of the neck and thoracic spine.

13. The applicant was examined by Drs Glen, Bornstein and McKessar for the respondent. Except for the possible exception of Dr Bornstein, I think it is fair to say that the respondent's doctors were obviously impressed with the applicant's genuineness but puzzled as to how to explain the problem. I should perhaps mention that the applicant had undergone some Feldenkrais treatment on referral from Dr Gazal. I note from his notes that she had requested it, but there is a report of Ms Heberlein, the physiotherapist who administered that treatment of 15 March 1996, that the applicant had done extremely well, had no more shoulder and spine pain and knows how to manage the pain in her wrist. She did not think she would need any further treatment.

14. Dr Glen first saw the applicant on 10 June 1997. He found only tenderness to palpation over the anterior aspect of the forearm and over the wrist, particularly over the medial side of the wrist joint and the dorsum of the carpus. He did not have the x-rays but he did have a report of an x-ray that the wrist was normal and indeed there is no suggestion in the reports that that is otherwise than so. He said he could find no organic basis for the claimant's symptoms. He did accept that they related to the initial work injury. He did not at that time think any further medical or rehabilitation treatment was required but noted that the applicant thought chiropractic treatment helpful and considered it reasonable to continue that for one or two months. He did not at that time think that there was any permanent impairment of neck, right arm or wrist. Dr Glen examined the applicant again on 12 April 1999. He was still of the view that he could not arrive at a definite diagnosis. He thought that the claimant did have an injury to her wrist in 1995 which was probably a traumatic synovitis. He could find no organic basis for the continuing symptomatology. However, he continued to take the view that with her very definite history of the acute onset of pain, it seems reasonable to consider that her present symptoms are work-related.

15. He said the claimant has no abnormality to be found on physical examination. However, her symptoms have continued for a period of some four years since the initial injury. He believed they will probably continue into the foreseeable future and that it may seem reasonable purely on the basis of her symptoms to accept that she has a 5 per cent permanent loss of efficient use of the right arm at or above the elbow, this assessment to include any possible loss of efficient use of the right arm below the elbow and the right hand.

16. Dr Bornstein examined the applicant for the respondent's insurer on 18 January 2000. The doctor said he could find no objective sign of disability. He did say she presents however as a reasonable person and the history suggests a traction injury to the long tendons to the hand. He at that time suggested that there should be a bone scan. He thought the applicant fit for work. He did not consider that there would be any assessable loss of use of the upper limb. Having seen a bone scan and nerve conduction study, both shown as normal, the doctor said in his report of 16 June 2000:

In the circumstances this lady clearly does not have a traction injury to the wrist. She clearly does not have a nerve conduction problem and therefore she does not have carpal tunnel syndrome. One would have expected the traction lesion to have led to some reaction in the bone scan. The fact that she does not have any reaction at all is indicative of the fact that there is no significant organic lesion. The lady is fit for work. I found no assessable impairment of the function of the neck and no loss of use of the upper limb.

17. Dr McKessar examined the applicant on 14 September 2000. That doctor, apart from some tenderness over the basal area of the hypothenar eminence and very definite tenderness over the pisotriquetral joint, found nothing of any significance. He said:

This patient has some bizarre symptomatology which does not really suggest writer's cramp or any other dystonic feature. The original wrist pain came on after a strong pulling action when she was attempting to manipulate a heavy elderly patient and I can accept that she did have some form of soft tissue injury to her wrist, but there is certainly nothing that can be pinpointed as representing any ligamentous instability, nothing suggesting any peripheral nerve compression syndrome and although she later went on to develop some neck symptoms I cannot see how those in any way relate to this injury or to the nature of her former work. In my opinion, she is fit to continue her nursing course to work as a nurse.

...I don't believe she has any permanent impairment of her neck, I don't find that this patient has any permanent loss of efficient use of her right arm at or above the elbow. On the basis of her symptoms and some reduced grip strength I would assess this patient as having a minor but permanent loss of efficient use of her right arm below the level of the elbow of the order of approximately 5%.

18. If the case was to be decided purely on my assessment of the applicant's evidence, then one would be inclined to adopt the approach of Drs McKessar and Glen but at a substantially higher figure of assessment. However, it is the task of the Court to deal with the matter on the whole of the evidence and also to remember that it is the applicant who bears the onus.

19. Dealing first with the right arm, Mr Best very properly did not try to persuade me that it would be appropriate not to make an award for the 5 per cent suggested by Dr McKessar. He submitted that the correct Table item was below the elbow and that that was the appropriate assessment.

20. Dr Glen on the other hand, whilst having the same assessment, spoke of the arm at or above the elbow, and the language he uses makes it clear that that was not some oversight, but was a considered opinion. In my view, the opinion of Dr Mahony can be set to one side if for no other reason that the activities in which the applicant is engaged clearly excludes an assessment of the degree of which the doctor spoke, even allowing for the care that she takes and the pain that she suffers.

21. Dr Maxwell's assessment is based upon a theory of causation which is supported by none of the other doctors.

22. It seems to me that the correct table item is the whole of the arm. It is not an easy decision to reach because of what Dr McKessar has to say. However, both Dr McKessar and Dr Glen proceed on the basis that they accept the applicant's complaints of symptoms. Those symptoms are stretched into at least the upper arm. Taking into account the principles discussed in Department of Public Works v Morrow (1982) NSWCCR 8, it seems to me that it is appropriate for me to make an award on the basis of the arm at or above the elbow. Taking account of the applicant's evidence, and bearing in mind Dr Cusi's view that there was some wasting of the thenar eminence, I think the proper view for me to take is that the applicant has established that, more probably than not, she has suffered a 10 per cent permanent loss of the efficient use of the right arm at or above the elbow. Those matters persuade me that Dr Glen's and Dr McKessar's assessments are on the conservative side.

23. There is, I consider, no proper basis upon which I could find that the applicant has suffered any permanent impairment of the neck. The overwhelming weight of the evidence is against such a proposition, and it is also to be borne in mind that the applicant has continued to engage, at times, in quite heavy work. The onset of the pain in the neck at a later time may possibly have been the result of some separate problem to the neck or thoracic spine. Indeed, those are the areas which, it is clear, form much of the focus of Mr Cohen's treatment, although earlier on, particularly, he treated the wrist itself. I do not propose to make an award in respect of the neck.

24. The award I shall make under s 66 does not cross the threshold under s 67(2) and there will be no award under s 67. I shall make a general award under s 60. However, there was a specific issue debated and dealt with which is whether the applicant's expenses for Mr Cohen's treatment, since payment of those expenses ceased some time in 1999, should be met by the respondent. In other words, are they reasonable medical treatment for the injury which I have found? I think it may be accepted from the view, in particular of Dr Glen, that the chiropractic treatment was reasonable treatment for some period after 1997, but I am not satisfied on the evidence before me that as from the cessation of payment, the treatment was occasioned by the injury.

25. Mr Johnson did argue that quite without there being a separate injury to the neck, if in fact the applicant's injured wrist made her arm and neck sore and treatment to the neck assisted, then it would be recoverable. As a proposition I think that is a sound one, but the medical evidence does not really support a basis for concluding that, at least for some considerable time, the treatment has been other than for the neck. Primarily that seems to be the position from what Mr Cohen says as to the treatment that he gives. Indeed, the applicant herself referred to the relieving matter being an adjustment, which I take it from the material, refers to the neck and perhaps the thoracic spine. Those matters may be related to some other circumstance. In any event, the material before me does not persuade me that, more probably than not, they are related to the original injury and can properly be described as reasonable treatment thereof. Accordingly, I do not intend, in making a general order under s 60, to include chiropractic treatment beyond the stage to which it has in fact already been paid for.

26. For those shortly stated reasons, I find:
a) That the applicant suffered injury to her right wrist on 4 June 1995 arising out of and in the course of her employment with the respondent.
b) As a result of the said injury, the applicant has suffered 10 per cent permanent loss of the efficient use of the right arm at or above the elbow.

27. I make an award for the applicant:
a) Under s 66 in the sum of $8,000 in respect of 10 per cent permanent loss of the efficient use of the right arm at or above the elbow.
b) Medical expenses, s 60
c) Respondent to pay the applicant's costs.
Mr A R Johnson instructed by James A Moustacas & Co appeared for the applicant
Mr M H Best instructed by P. W. Turk & Associates appeared for the respondent