Extract from Queensland Government Industrial Gazette s7

[Extract from Queensland Government Industrial Gazette, dated 21 September 2007, Vol. 186, No. 7, pages 530-537]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal

Wally de Waal AND Q-COMP (WC/2007/17)

DEPUTY PRESIDENT SWAN 11 September 2007

DECISION

Mr de Waal has appealed to the Commission against a decision of Q-COMP dated 7 February 2007.

The appeal is pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).

The review of the insurer's decision, dated 15 September 2007, was conducted by Q-COMP on 7 February 2007.

In that decision, Q-COMP determined that:

"I am satisfied that there is sufficient evidence to support the insurer's decision that the Claimant has not suffered an injury within section 32 of the Act. My decision is therefore to confirm the insurer's decision. I advise that the claim is therefore one for rejection.".

A brief background to Mr de Waal's claim is as follows:

 Mr de Waal lacerated his right hand when he was working as a steel fabricator on 4 August 2004.  Two separate applications have been lodged by Mr de Waal with regard to this injury.  The injury occurred when Mr de Waal was lifting metal sheets as part of his work duties.  Mr de Waal cut the palm of his right hand and he required 5 stitches.  The first claim for the laceration of the palm of Mr de Waal's right hand was accepted by the insurer.  That injury was described as "a laceration to the palm of your client's dominant right hand treated by suturing" by the Prescribed Disfigurement Tribunal. That decision occurred on 28 February 2006 and Mr de Waal was determined to have sustained a prescribed disfigurement amounting to 1% permanent impairment.  Mr de Waal says that the work-related event which occurred on 4 August 2004 also resulted in the loss of power to his right hand. The insurer investigated this claim and it is this claim which has been refused. The insurer says that Mr de Waal has not sustained an injury pursuant to s. 32 of the Act.  Q-COMP states that Mr de Waal's claim for nerve damage (or loss of power) had not previously been the subject of any claim.  Since notification of the claim, there have been 2 separate medical specialist reports from orthopaedic surgeons. One orthopaedic specialist, Dr Millroy says that there is no nerve damage and the other orthopaedic specialist, Dr Pentis says there is. This is in effect the issue in contention before this Commission.  After a period of approximately one year and three-quarters, a notice of claim for common law damages was served on WorkCover.

Counsel for Q-COMP claims that the nerve damage/loss of power, as identified by Mr de Waal, is a consequence of the laceration he sustained and not a separate injury.

Brief background relating to appellant

Mr de Waal is a 42 year old man. Mr de Waal works as a fabricator. Twenty-three years ago, Mr de Waal suffered an injury from a motorcycle accident and had broken his right wrist. Mr de Waal states that any pain suffered from that accident lasted for approximately 10-12 months and since then it has been completely resolved.

Evidence of Mr de Waal

Mr de Waal's evidence is that on 4 August 2004, while working as a fabricator, he was cutting lengths of metal to make flyscreens on a mitre saw. The length of the aluminium pieces varied but the width and depth generally would be around 15 mm by 10 mm.

The area in which Mr de Waal worked was very cramped and, late in the day, as he was finishing his work, a piece of metal got caught between the rollers and the desk. The section where the mitre was cut lacerated the palm of Mr de Waal's hand to a depth of about 1 cm.

Mr de Waal went to the nearest medical centre and his hand was stitched. Those stitches became undone about one week later and Mr de Waal had to have them re-stitched. Approximately 3 weeks later Mr de Waal returned to work. Eventually Mr de Waal left this employer and found similar work elsewhere.

Against that background, Mr de Waal says that he began to feel a loss of power to his right hand some months after the 2 accident.

In the intervening period, Mr de Waal, who is right hand dominant, favoured his left hand over his right hand. In describing the loss of power upon resumption of use of the right hand, Mr de Waal stated:

"Well, I can't lift things as I used to. If I have to have a firm - like, in my job - I'm a fabricator. So in my job I use my hands quite a bit. ... when I use a drill, like, for a period of time, then my hands starts to - to get very sore and I can't hold it anymore. And it's a certain - with certain jobs, too. If I have to stretch my hand for - if I have to use my hand strenuously then I - I can't do it. I have to have breaks.". [Transcript, p. 11, 12.]

This loss of power in his hand was caused by a variety of activities - e.g. if he uses a drill and if he does a lot of writing (which is a requirement of his work because of measurements which have to be taken and recorded). Mr de Waal also experienced the loss of power doing non-work activities such as fishing and using a bat when playing games with his children and lifting.

Mr de Waal has had certain exercises to do for the purpose of lessening this sensation, however, the feeling abates for a period of time and then returns especially when he is gripping something.

Counsel for Q-COMP questioned Mr de Waal if medical practitioners had asked him if he suffered from carpal tunnel syndrome. Mr de Waal stated that he had not heard mention of that symptom before. In describing the sensation he felt in this hand, Mr de Waal said his hand did not feel numb, but rather he felt sharp pains and "tingly" feelings. [Transcript, p. 16.]

Mr de Waal was questioned by Counsel for Q-COMP as to whether he had complained to Dr Millroy about "having a feeling of pins and needles or anything of that nature in your palm" [Transcript, p. 20] and Mr de Waal affirmed that this occurred.

Mr de Waal confirmed that he experienced a loss of power and pain almost simultaneously. [Transcript, p. 21.]

Note: It should be stated that the Q-COMP review decision was made without the benefit of the reports of Dr Millroy and Dr Pentis.

Evidence of Dr Roger Carlisle

Dr Carlisle is a General Practitioner who examined Mr de Waal around 5 October 2006. Dr Carlisle produced a report from this examination to WorkCover.

Dr Carlisle stated that he had not examined Mr de Waal for any symptoms of nerve damage nor did he note any symptoms of nerve damage at that time.

In cross-examination by Counsel for Mr de Waal, Dr Carlisle believed that any loss of power to Mr de Waal's hand would not have been caused by the laceration he had suffered on 4 August 2004. This question was followed by:

"... could a stabbing to the palm of the hand by that piece of metal that goes in about one centimetre, could that result in damage that would cause a loss of palm or pain to the hand?". [Transcript, p. 25.]

In responding, Dr Carlisle said that an injury to the nerve tissue could occur as a consequence of the puncture to the hand, and a loss of power could follow, rather than from the laceration. Dr Carlisle stated that the loss of power to Mr de Waal's hand could have been caused by the puncture to the hand or from the injuries previously received in the motorcycle accident.

Questioning further, Counsel for Mr de Waal said:

"But, given that Mr de Waal has reported no loss of power over that intervening 23 year period, you would have to agree, would you not, that it's more likely than not that the motorcycle accident did not cause this loss of power?". [Transcript, p. 26.]

Dr Carlisle's response was:

"If the loss of power is objectively proven, I - I - I think [that is] probably a reasonable comment.". [Transcript, p. 26.]

Evidence of Dr Peter Millroy

Dr Millroy is an orthopaedic surgeon who specialises in surgery of the hand and upper limb and microsurgery. Dr Millroy has worked in this specialty for some 40 years. As part of his work, Dr Millroy has performed many hand operations and has repaired nerve damage under the thenar eminence (which is described as the body of muscle on the 3 palm of the hand beneath the thumb). 4

Dr Millroy examined Mr de Waal on 16 November 2006 and produced a report. In that report, Dr Millroy stated:

"There is slight disuse wasting of the muscles of the right thenar eminence compared to the left and he is right handed. This can cause slight loss of strength and probably earlier fatigue of these muscles. There has been recent improvement. In my opinion if Mr. De Waal does specific strengthening exercises for the thenar eminence muscles improvement is likely in muscle bulk and power after which it is likely that his symptoms will be less and will probably resolve.". [Exhibit 16.]

Dr Millroy had noted, during the course of his examination of Mr de Waal, that there had been a full range of movement in the right hand. In saying this, Dr Millroy said that if there had been significant damage to the median motor nerve, then there would have been evidence of greater muscle wasting and loss of movement in the hand.

When questioned about Mr de Waal's claim to have experienced an intermittent loss of power to the hand, Dr Millroy believed that were the median motor nerve to have been damaged, then the loss of power would be constant. Dr Millroy stated that the median motor nerve, which supplies the muscles of the thenar eminence, is situated some 7 mm under the surface of those muscles. The nerves directly under the skin are cutaneous nerves and are sensory in nature. When Dr Millroy examined Mr de Waal he had not noted any tenderness on the skin in the relevant part of his hand. Dr Millroy further stated that had there been any damage to the cutaneous or deeper motor nerves that would have occurred because of the laceration.

In all, Dr Millroy believed that any muscle wasting would be "pretty slight and may cause slight loss of power.". [Transcript, p. 31.] Having had the evidence given by Mr de Waal put before him with regard to the activities which caused the pain and loss of power, Dr Millroy said that the description given did not change his opinion. Dr Millroy said there would only be the slightest chance that Mr de Waal suffered damage to the median motor nerve of the thenar eminence.

Dr Millroy also stated that he did not think that the intermittent loss of power described by Mr de Waal would be related to the laceration.

During cross-examination from Counsel for Mr de Waal, Dr Millroy stated that had Mr de Waal suffered the damage of which he complains then "if there was nerve damage it would be a permanent thing and not just related to the times he describes it.". [Transcript, p. 35.]

There was some debate around how Mr de Waal had described his condition and in response to the following question posed by Counsel for Mr de Waal:

"Yes, but to be fair to - well, he can only describe what he is experiencing when something - when he uses his hands. So he says 'Well, it's permanent as in it's still there. It's there all the time, but I only experience the pain and loss of power when I'm required to grip something', and it's the gripping motion that he has described throughout his evidence. So that's consistent with the damage you've described, correct?". [Transcript, p. 35.]

Dr Millroy responded:

"Well, it's a possibility.". [Transcript, p. 35.]

Upon being asked whether he thought it was more likely that the puncture caused the loss of power rather than the motorcycle accident, Dr Millroy "probably" agreed. [Transcript, p. 35.]

In response to cross-examination relating to Dr Pentis' report, the following exchange occurred:

"MR KITCHIN: The doctor noted that there was some sensory oddness over the palm in the region of the metacarpal second and third?

DR MILLROY: Heads, yeah.

MR KITCHIN: Heads, I'm sorry, second and third. What are you able to say with reference to that comment in terms of this man's injury?

DR MILLROY: Well, that territory described by Dr Pentis is in the distal palm over the - down towards the end of the palm, where it joins the fingers, and it's over the index and middle finger metacarpal heads. They're the boney knobs at that level, and, umm, that territory is supplied by the sensory branches of the main median nerve.

MR KITCHIN: Yes?

DR MILLROY: Which come through the carpal tunnel and then start to become superficial after that. 5

MR KITCHIN: Yes?

DR MILLROY: Distal to where the - oh, distal and beyond where the motor branch of the median nerve takes off from the main median nerve.

MR KITCHIN: Would you expect symptoms as described to Dr Pentis from Mr de Waal's laceration?

DR MILLROY: No.". [Transcript, p. 31.]

Evidence of Dr John Pentis

Dr Pentis is an orthopaedic surgeon who has practiced his speciality for some 25 years. Two reports have been completed by Dr Pentis (14 March 2007 [Exhibit 17] and 17 July 2007 [Exhibit 18]).

It was from the report of 14 March 2007 that Counsel for Q-COMP first examined Dr Pentis.

In that report, Dr Pentis stated:

"It is more than likely that he has scarred in the region of the innervation of the thenar muscle to the thumb and this will be a long term problem.". [Exhibit 17.]

From that, Dr Pentis stated that had loss of power to the hand ensued, then it would have been the result of the laceration.

In his second report, Dr Pentis stated, inter alia, that:

"I believe that the gentleman does have signs of wasting of the musculature and even though the sensory signs are subjective. More than likely from the laceration that he has caused damage to the muscle and possibly the inervation.

Again with specific noting of the fact that he had had a laceration it is more than likely that he has damaged the thenar muscles.

It is not likely that loss of power to the thenar musculature, thumb that is, is due to an old fracture of the radius ulnar.". [Exhibit 18.]

Dr Pentis said that when he had examined Mr de Waal, from what could be viewed, it looked as though there was a 10% to 20% wastage. He then stated:

"Testing for sensory loss and power it's really subjective, because you're asking the patient.". [Transcript, p. 40.]

Under cross-examination from Counsel for Q-COMP, and specifically a question which encapsulated the general thrust of the cross-examination, i.e.:

"... Given those symptoms that I've described to you as per Mr de Waal's evidence, and given the oddness and given also that you suggest an EMG and perhaps even surgery, is it fair to say that you simply can't say, on the balance of probabilities, that he did, in fact, damage that enervation.". [Transcript, p. 42.]

Dr Pentis responded:

"Well, you can't say with a hundred per cent, but if there is a cause for it, that would be it.". [Transcript, p. 42.]

Dr Pentis stated that, even with the benefit of an EMG, it may still be hard to "specifically pinpoint where the problem is.". [Transcript, p. 42.]

In re-examination, the following evidence was given:

"MR SPRY [Counsel for the appellant]: Yes. Now, in his evidence, Mr de Waal described, yes, he's been - he's been cut on the palm, but he described the way that happened as a jabbing wound that went through, obviously, the skin of his palm and travelled through his - travelled through the muscle. He thought it went in about a centimetre, given the length of the aluminium he was dealing with and he thought it went into the mus - into the hand by about a centimetre? 6

DR PENTIS: Yes. Well, that - if it went in a centimetre, that's a fair distance and it could get the motor branch scarring around that but also extend into the carpal tunnel and cause some bleeding in the region around the tendons and some scarring.

MR SPRY: And - and does - now that you - now, given that evidence, does that assist you in your - in forming a view as to the likely cause of the loss of power or the symptoms suffered by Mr de Waal?

DR PENTIS: Well, if that happened and it went in the centimetre, the chances are that it has damaged around the nerve.". [Transcript, p. 43.]

Dr Pentis re-affirmed that the only way one would know for certain was to "open it up and have a look.". [Transcript, p. 43.]

In his final submissions, Counsel for Q-COMP stated:

 It was only an assumption on Mr de Waal's part that the mitre saw had penetrated his hand by a centimetre.  Mr de Waal's evidence was that he did not experience loss of power continually and that he had given examples of when such power loss and pain would occur.  Dr Millroy had stated that had Mr de Waal damaged the nerve "the loss of power would be constant and my submission is it's a significant lack of symptomatology in that regard which makes it less likely that it's a damage to the nerve.". [Transcript, p. 45.]  Dr Pentis' evidence had showed that there could have been damage to the deeper underlying median motor nerve but that could also be caused by carpal tunnel producing the same symptoms. Further, Dr Pentis had said that one could not be sure until an EMG was performed.  The Commission should be more influenced by the evidence of Dr Millroy because of his hand surgery expertise. Dr Pentis had never repaired a median motor nerve although he had seen this while performing/observing other procedures in that region of the hand.  Q-COMP believed that both medical specialists had agreed that if there was nerve damage causing pain and loss of power, then this would not constitute a separate injury, but rather it would be a symptom of the laceration.  In all, the claims of Mr de Waal had been covered by the accepted claim of the laceration to the palm of the hand for which he had been paid benefits. It is contended that this [new] claim arose solely because of a parallel common law damages claim.

Counsel for Mr de Waal, in his final submissions, stated:

 There had been no challenge to Mr de Waal's credibility.  Mr de Waal stated that he had suffered the symptoms described in his evidence some months after he had suffered the laceration to his hand.  Contrary to what was asserted by Q-COMP, there was only one laceration - one incident (i.e. the stabbing of the hand with the mitre saw). However, there is a separate injury to which this claim relates.  This separate injury arose out of the one incident and relates to the pain and loss of power experienced in the right hand.  Mr de Waal would be more than aware of the size of the item which lacerated his hand and the depth to which that puncture penetrated. His work involved the observation and taking of measurements.  The injury suffered could not have been caused by the motorcycle accident some 23 years prior as Mr de Waal had never experienced any pain or loss of power since the time of the injury. Whatever pain had occurred at that time had dissipated some short time thereafter.  "Even if it was something to do with the motor cycle accident then it's been aggravated by the incident on the 4th of August. So you either have a injury caused by the stabbing to the palm or you have a separate injury which is the aggravation caused - that arose out of and associated with the motor cycle accident, but either way you have separate injuries. Whichever way you look at it there is a separate injury.". [Mr Spry, Counsel for Mr de Waal, Transcript, p. 48.]  Neither medical specialist thought that there could be any other cause for the injury to Mr de Waal's hand. Both medical specialists say it was either a jabbing to the muscle or an aggravation from the motorcycle accident.

Conclusion

As previously stated, the issues in contention relate to the evidence given by Dr Millroy and Dr Pentis where Dr Millroy's contention is that there is no nerve damage evident in Mr de Waal's right hand and Dr Pentis' contention that more than likely there is such damage. 7

All medical practitioners giving evidence in this case have practised medicine for a long period of time. In the case of Dr Carlisle, 33 years; Dr Millroy, 40 years and Dr Pentis, over 25 years.

While Dr Millroy, an orthopaedic surgeon, has specialised in microsurgery of the hand and upper limb for many years, Dr Pentis, also an orthopaedic surgeon, was more than familiar with procedures in the region of the hand.

Dr Carlisle's evidence conformed more with Dr Pentis' evidence, than it did with Dr Millroy's evidence.

Mr de Waal impressed as a straight-forward and honest witness. I accept the fact that as a lay person he may not have described his condition in sophisticated or medical terminology but, nonetheless, I found his evidence to be compelling. He was clear in the manner in which he described the pain he suffered. I have also accepted that his account of the injury, and dimensions relating to the laceration and penetration of his hand are accurate. The type of work he has performed for many years requires detailed knowledge of measurements. He is more than competent, in my view, to accurately gauge such things. I accept that Mr de Waal suffers the pain and loss of power so described by him. Within that general context, I accept the views expressed by Dr Pentis when he states that:

"Testing for sensory loss and power it's really subjective, because you're asking the patient.". [Transcript, p. 40.]

It is acknowledged that Dr Pentis said that one could never be 100% sure that nerve damage had occurred but, were there to be a cause for the symptoms experienced by Mr de Waal, then that cause would be nerve damage.

I have formed the view that while there was one incident which occurred, there were 2 injuries as a result. The first injury has previously been dealt with. The second injury relates to nerve damage which has occurred to Mr de Waal as a consequence of the stabbing/puncture to his right hand.

For the laceration/cut to the right hand, Mr de Waal has already been paid 2 weeks compensation. [Transcript, p. 17.] I accept that a second injury has occurred out of the incident of 4 August 2004. That injury is described as damage to the median motor nerve in his right hand, the symptoms of which are pain and loss of power to his right hand.

I have accepted the evidence of both Dr Carlisle and Dr Pentis when they say that as a consequence of Mr de Waal not experiencing any residual pain in his right hand after some 23 years after his motorcycle accident, it is more than probable that the pain and loss of power experienced by Mr de Waal in his right hand would more relate to the puncture/stabbing of his hand at the time of the accident. Further, both doctors say that an injury to the nerve tissue could occur as a consequence of the puncture to the hand. I accept Dr Pentis' evidence where he states that if Mr de Waal's hand was penetrated by up to 1 cm "the chances are that it is damaged around the nerve".

Dr Millroy's evidence, especially under cross-examination from Counsel for Mr de Waal, also was that he "probably agreed" that the pain and loss of control experienced by Mr de Waal was not caused by the prior motorcycle accident.

Dr Millroy had stated that Mr de Waal would have been expected to have suffered consistent pain had he severed a nerve. During cross-examination Counsel for Mr de Waal described that the pain and loss of power Mr de Waal suffered in his hands as "permanent" in the sense that the pain was always there when he used his hands. Dr Millroy responded by saying "well it's a possibility" to the question that Mr de Waal's description of his pain and loss of power to his hands was consistent with the type of damage so described by Dr Millroy.

The onus is on Mr de Waal to show facts that entitle him to compensation. In this case, I accept that Mr de Waal has discharged that onus on the balance of probabilities.

In all, the evidence more than falls in Mr de Waal's favour. I set aside the Q-COMP decision dated 7 February 2007 and substitute this decision. The decision is that Mr de Waal has sustained an injury pursuant to s. 32 of the Act.

Order accordingly.

D.A. SWAN, Deputy President. Appearances: Mr M. Spry, Counsel, instructed by Ms J. Czajkowski of Keith Scott & Hearing Details: Associates, for the appellant. 2007 20 July Mr A.S. Kitchin, Counsel, instructed by Ms B. Wadley of Q-COMP, for the respondent. Released: 11 September 2007

Government Printer, Queensland The State of Queensland 2007.