Pisani and Comcare [1997] AATA 822 (2 June 1997)

Last Updated: 12 January 2009

Administrative
Appeals
Tribunal

DECISION AND REASONS FOR DECISION NO 11916

ADMINISTRATIVE APPEALS TRIBUNAL )
) No N95/1842
GENERAL ADMINISTRATIVE DIVISION )

Re PAUL PISANI
Applicant

And COMCARE AUSTRALIA
Respondent

DECISION

Tribunal Dr John Campbell, Member

Date 2 June 1997

Place Sydney

Decision The Decision under review is set aside

..............(signed)....................
Dr J.D. Campbell
Member

CATCHWORDS

Compensation - pre-existing injury, right thumb

Aggravation

Permanent impairment

Safety Rehabilitation and Compensation Act 1988, ss 4, 14, 17, 24, 27

CASES: Comcare v Tiscay [1992] FCA 468; (1992) 16 AAR 241

Reid v Comcare (1996) 10649A. Application Numbers A93/77 and A95/77

Thiele v Commonwealth (1990) 22 FLR 342

REASONS FOR DECISION

2 June 1997 J D Campbell, Member

1. The applicant, Paul Charles Pisani, seeks a review of the decision by a delegate of Comcare dated 22 November 1995 which affirmed a decision taken by a delegate of Comcare dated 20 October 1995, which determined that liability for tenosynovitis right thumb ceased as of 27 October 1995.
2. The Tribunal had before it the following documents:

Description	Date	Name
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975		T1 to T17
Report of Dr Evans	2 May 1996	A1
Report of Dr Richard Honner	19 July 1996	A2
Report of Dr Richard Honner	10 September 1996	A3
Report of Dr Kenneth Hume	29 January 1996	A4
Report of Dr N McGill	27 February 1996	R1
Report of Dr N McGill	28 August 1996	R2
Report of Dr B Connolly	17 July 1996	R3
Report of Dr B Connolly	23 August 1996	R4
Report of Dr B Connolly	9 September 1996	R5
Report of Dr B Connolly	27 September 1996	R6

3. Oral evidence was heard by the Tribunal from:

The applicant - Paul Charles Pisani

Dr Richard Evans

Dr Neil McGill

4. The applicant was represented by Mr Tudehope of Counsel. The respondent was represented by Mr Johnson of Counsel.

LEGISLATION

5. The applicant is seeking compensation pursuant to sub-sections 4, 14, 17, 24 and 27 of the Safety Rehabilitation and Compensation Act 1988.

APPLICANT’S EVIDENCE

6. The applicant, born 9 March 1964, indicated that upon leaving school, he undertook a motor mechanic apprenticeship and thereafter worked as a motor mechanic for ten years, prior to commencing work at Lady Davidson Hospital in June 1992. The applicant stated that at about the age of one year he had tripped and his right hand went through a window, causing a laceration to his right wrist. Surgical repair was undertaken, and subsequently the applicant has been left with a limitation of movement of the right index finger (unable to touch base of index finger with tip of right of index finger) and a limitation of movement of the right thumb (difficulty in the adduction movement of the right thumb). Further, the applicant indicated that the only other residual symptom is pain and this occurs only when there is direct trauma to where the right wrist was lacerated. The applicant indicated that prior to working at Lady Davidson, he was not restricted in his work as a motor mechanic; in undertaking domestic duties or in playing sport, although the applicant did admit to difficulty in grabbing something which is very fine and might be a bit heavy. In such situations, the applicant indicated that he tended to use his left hand.
7. At Lady Davidson Hospital, the applicant indicated that he was employed as a food services officer, initially in the kitchen, where he served on the food line, which involved cleaning and scaping plates and loading the dishwasher when the plates were returned. Other duties included cleaning and hosing the floor. Shortly after commencing the applicant indicated he was transferred to a ward area, where duties included setting up, serving and cleaning up. The applicant stated that he remained in these duties for about a year.
8. His next duty area was in the main kitchen scullery, where he stated the duties involved cleaning pots and pans with steel wool, a steel scraper or a brush, an activity he performed with mainly his right hand. The applicant indicated that the length of the shift was eleven and a half hours, with work activity for nine and a half hours, five days a week.
9. At the end of the second week, the applicant indicated that he noticed swelling in the joint of his right thumb, and that pain accompanied the swelling; and that as a result of this he completed an accident report. The applicant indicated that he was relieved of the scrubbing duties for two weeks and then on return to the original duties he noticed his thumb was starting to lock up, “. . and it never seemed to be freeing all the time”. As a consequence, the applicant was referred to the rehabilitation officer at Mt Wilga, who gave him a splint to wear while scrubbing. The applicant indicated the splint was of limited assistance, and next he was referred to Dr Honner, a hand surgeon, who suggested physiotherapy for a month. The applicant stated that the physiotherapy seemed initially to help, but the locking up and episodic pain remained. Referrals to Dr Hume by his general practitioner and reassessment by Dr Honner resulted in the applicant being placed on restricted duties (scrubbing duties for no more than two hours per day). The applicant indicated that the restricted duties regime was of assistance and his thumb tended to lock up less and pain was felt once a week or once a fortnight, with the weather affecting it as well. In demonstrating the locking movement, the applicant indicated that the locking up occurs “. . where the joint is and I have to actually move it to free it up again”. The applicant indicated that the locking occurred five to ten times a day; that it occurs when he gets out of bed and moves his arms; that downward pressure on the tip of the thumb “aggravates the joint and sometimes it locks up my thumb and sometimes it gives me pain”. The applicant indicated that he was careful in undertaking kitchen cleaning duties and he tends to use his left hand more.

CROSS EXAMINATION

10. In response to questions the applicant indicated that he had loss of movement of right thumb and right index finger of about fifty per cent as a result of the childhood accident; that at the time of writing his accident report the only complaint was of clicking in his right thumb, the pain and swelling having resolved; the accident report form having been completed a year and two weeks after the incident. In response to further questioning, the applicant indicated that he had some swelling and pain of the right thumb in the interphalangeal joint in March 1993; that from March 1993 until 29 March 1994, the applicant stated that he did not experience any pain and that the only problem was locking up; that the intermittent clicking remained in the right thumb and that he was concerned that more than two hours duty scrubbing pans could cause discomfort. In further response, the applicant stated that the pain has been intermittent, and comes and goes once a week or once a fortnight, and that the pain is not necessarily associated with any particular activity.
11. The applicant indicated that he was able to manage his present regime of duties effectively; that he had not lost any money as a consequence of the difficulties with his right thumb; that he had taken no medication for or sought attention for his right thumb from doctors in the last twelve months, apart from medico-legal specialists.

MEDICAL EVIDENCE

12. The applicant was seen by Dr A.K. Saha (a general practitioner) on 4 January 1994 complaining that he had suffered pain in his right thumb, as a result of the constant scrubbing of pots and pans. A diagnosis of tenosynovitis was made (T3). It is to be noted that the onset of symptomatology was in March 1993.
13. As a result of a referral by Dr Saha, the applicant was seen by Dr Honner, a hand and upper limb surgeon on 27 April 1995. Dr Honner records (T9) that:

“Recently he had noticed pain and locking in the right thumb and when I examined him, this pain and crepitus was arising in the distal joint of the thumb, presumably due to some joint irregularity”.

Dr Honner further records:

“His ‘locking’ on clinical examination, is not due to the flexor tendon catching in the mouth of the flexor sheath . . .”.

Dr Honner prescribed physiotherapy and normal duties with a further review. At a subsequent review in late May 1995, it would appear that Dr Honner imposed a restriction of not more than two hours of pot scrubbing per day to be undertaken by the applicant (T10).

14. In a subsequent review of the applicant on 11 July 1996, Dr Honner noted that the applicant:

“ . . still suffers intermittent locking in the distal joint of his right thumb and that it is worse in cold weather. He gets pain in the distal joint of the right thumb on prolonged heavy use”.

On examination Dr Honner reports:

“. . on vigorous and frequent flexion he gets a painful crepitus in the distal joint of the right thumb at times.

Dr Honner concludes that the diagnosis:

“. . is intra-articular damage to the distal joint of the right thumb which appears to have been caused by prolonged scrubbing of pots and pans . . . . and in my opinion has no relation whatsoever to the previous laceration in the distal forearm which occurred as a child”.

Dr Honner concludes that the applicant does have a permanent impairment, namely a loss of function in the distal joint of the right thumb and that his assessment under table 9.3 of the guide to the assessment of the degree of permanent impairment is 3 per cent of the whole person (Exhibits A2 and A3).

15. Dr Richard Evans, a physician specialising in bone metabolism, examined the applicant on 2 May 1996 and described the applicant’s symptoms as triggering together with intermittent pain in the region of the interphalangeal joint of the thumb. Dr Evans further describes a history of frequent minor “triggering of the right thumb in partial flexion”, up to twelve times per day. Dr Evans notes that the applicant:

“. . can normally straighten the thumb himself by a more forceful extension movement, but sometimes the triggering is tighter and then he has to use his left hand to straighten the thumb. Sometimes when he straightens the thumb he can experience pain in the interphalangeal joint of the thumb”.

16. Dr Evans opines that as a result of the scrubbing and scouring of pots:

“. . .he developed damage to the flexor tendon sheath of the right thumb . . . and discomfort in the region of the interphalangeal joint was most likely resulting from tenosynovitis of the flexor tendon at the site, rather than from damage from the interphalangeal joint”. (Exhibit A1)

17. In oral evidence, Dr Evans detailed a history of the injury, and interpreted the failure to be able to straighten the right thumb after flexion as triggering of the thumb. Dr Evans confirmed a history of the right thumb jamming about twelve times each day which he was able to correct by forcing the thumb itself or using the other hand to straighten the right thumb. Dr Evans confirmed his opinion that there had been damage probably to the flexor tendon sheath of the right thumb, causing tendonitis, discomfort and triggering, the latter the result of a tendon moving through a constricted tendon sheath. This, Dr Evans states, has resulted in the applicant considering that he has a significant but disabling problem. Nevertheless, in Dr Evan’s opinion, the applicant was fit for work, but with the restriction that he should not be required to be doing work which required him to press the right thumb hard for long periods against things such as pots.
18. In assessing the percentage impairment, Dr Evans concluded that the appropriate table was table 9.4 under the assessment guide to permanent impairment and that the appropriate percentage impairment was 10 per cent as the applicant clearly had difficulty with digital dexterity.
19. Further, Dr Evans also concluded that the applicant had difficulty grasping and holding. In cross-examination Dr Evans stated the significant issue was the triggering, and the episodic nature of any pain was no great surprise; further, that stress scouring pots for long periods was most likely the precipitating cause, which may have occurred on top of a vulnerable tendon; and finally as to whether the clicking comes from the interphalangeal joint or from the flexor tendon sheath is difficult to tell.
20. Dr McGill, a rheumatologist, saw the applicant on 17 October 1995 and in his report notes the applicant’s complaints as:

“His right thumb IP joint became swollen and the swelling then settled. He initially had pain in the thumb IP joint but the pain also subsequently settled. He has continued to have intermittent clicking and ‘locking’ of the thumb IP joint. His symptoms are variable and generally mild. . . . he notices intermittent clicking when bending the IP joint of his right thumb. Sometimes he has discomfort in the same joint”. (T12)

21. In subsequent reports on further consultations, Dr McGill reports:

“. . .that the minor clicking of the IP joint of the right thumb may represent minor joint irregularity . . . and is not associated with any radiological change. In terms of assessment under table 9.1 of the assessment guide the degree of permanent impairment is less than 10 per cent whole person impairment”. (Exhibit R1)

22. In oral evidence Dr McGill confirmed his opinion that the clicking was likely to be coming from the interphalangeal joint, because of some minor irregularity in the joint. Further, Dr McGill stated that the applicant clearly has impairment of flexor tendon function to the right thumb and right index finger, as evidenced by his restrictive active movements but full passive movements, and further that this is a result of impairment of tendon function down at the wrist at the site of his old injury, very likely resulting from tethering between the sheath and the tendon.
23. In considering the nature of the work activities, Dr McGill confirmed his opinion that it was unlikely that such activities would have had any permanent effect on his right thumb or any structure in his right hand; further that this unlikelihood extended to some minor change in the interphalangeal joint.
24. In assessing the degree of permanent impairment Dr McGill stated that the applicant had a whole person impairment of less than 10 per cent under table 9.1 of the assessment guide to the degree of permanent impairment and under table 9.4 the impairment was assessed as zero, as Dr McGill concluded that the applicant had no difficult with digital dexterity.
25. In cross-examination Dr McGill agreed that the work activities associated with scouring and cleaning of pots may cause irritation of the flexor tendon sheath. Nevertheless, Dr McGill was definite, whilst noting that triggering is where the digit gets caught in a flexed position, as in a trigger, and you have to click it out, in stating that the applicant’s symptoms did not fit this definition. Yet when the symptoms were further amplified to include using his other hand to actually straighten the thumb, Dr McGill agreed that this is a form of triggering and that it is possible that this may have been caused by some damage to the tendon sheath, but for triggering to occur damage to the tendon has to be proximal to the joint that is triggering.
26. Dr McGill also opines that at the time of scouring and cleaning the pots it is very likely that he suffered discomfort due to an aggravation of a pre-existing condition, which to Dr McGill’s assessment related to the interphalangeal joint, and further that he could not find any evidence from history the applicant provided or from the examination that his work produced any permanent change with the tendon or the tendon sheath. Further, Dr McGill identified locking as when a joint gets stuck and locks due to a joint problem; that clicking in the joint in this case was now permanent and that the nature of the duties in the scullery was unlikely to cause damage to the interphalangeal joint; that it is:

“. .quite possible that his work activities could have played a significant role in the production of that minor cartilage abnormality”.

27. The applicant was also subject to medical examination from Dr B Connolly, a hand surgeon, who reported on 27 July 1996:

“He had no problems however until he worked in the scullery and the constant repeated pressure of his thumb in scrubbing gave him some synovitis of the interphalangeal joint of his right thumb causing him pain and recurring swelling and a type of locking of his thumb”. (Exhibit R3).

Dr Connolly also made an assessment of 5 per cent permanent impairment of the applicant’s right thumb. (Exhibit R6).

28. Dr Kenneth Hume, an orthopaedic surgeon, in a statement dated 8 December 1995 considered the applicant to have suffered an exacerbation to a pre-existing disability as a consequence of the heavy work cleaning pots and pans. (T16).

CONSIDERATION AND FINDINGS

29. The applicant has consistently detailed a history of pain and swelling in the interphalangeal joint of the right thumb following a few weeks of scrubbing pots and pans in the scullery in March 1993. The applicant further detailed amelioration of such symptoms upon relief from the scullery duty on a full time basis. The applicant states that symptoms of pain occur in his interphalangeal joint of his right thumb if he works for more than two hours scrubbing pots and pans; that the pain is noticeable in cold weather; that the right thumb locks up to twelve times a day, which he can relieve by either extending his thumb or alternatively using his left hand to free the “locking”; that there is an associated “clicking”. Further, the applicant relates a story of a childhood accident, where at the age of one, he lacerated his right wrist, causing some damage to tendons; that this was surgically repaired, but as a result of this accident, there was and is a loss of movement to the right thumb and index finger.
30. In examining the medical evidence given, it is evident that the medical assessment falls into two distinct opinion lines. The first, as opined by Dr Evans, is that the applicant is experiencing triggering, as a result of an injury to the tendon sheath to the right thumb directly as a result of the scouring duties in the scullery in March 1993. This injury in March 1993 caused tenosynovitis of the tendon sheath, with resultant catching of the tendon in the damaged sheath causing the triggering.
31. It is noted that Dr Saha, a general practitioner, on 4 January 1994, considered that the applicant was suffering from tenosynovitis and subsequently referred him to Dr Honner for opinion and treatment.
32. Dr Honner, Dr McGill and Dr Connolly all opine that the clicking, locking and pain is centred around and to do with the interphalangeal joint of the right thumb. They consider that there may have been damage to the intra-articular cartilage of the interphalangeal joint of the right thumb and that this is causing the symptomatology. In particular, Dr McGill is of the opinion that there is no “triggering”, because by definition for triggering to occur there has to be damage to the tendon sheath, which interferes with free movement of the tendon, and that this damage must be proximal to the triggering joint; that in the applicant’s situation, the pain, swelling and locking or clicking are all associated with the terminal interphalangeal joint of the right thumb.
33. In considering all the evidence, both from the applicant and from the medical consultants, the Tribunal finds that the applicant did suffer an injury as a result of his work activities in the scullery and that on the weight of evidence this injury is concerned with the interphalangeal joint of the right thumb. In so finding, the Tribunal accepts the opinion of Dr Honner, the treating hand specialist and the opinions of Dr McGill (Rheumatologist) and Dr Connolly (Hand Surgeon). The Tribunal notes the opinion of Dr Evans, but concludes that the history and symptomatology described by the applicant relates the injury to the interphalangeal joint of the right thumb, and further, there is no demonstrable evidence of injury to the tendon sheath proximal to the interphalangeal joint.
34. In finding that an injury has occurred as a result of his work activities in the scullery and that this injury is concerned with the interphalangeal joint of his right thumb, the Tribunal is placing weight on the history as described by the applicant and the medical opinions proffered. It is noted that Dr McGill considers that at best the work activities may possibly have caused damage to the intra-articular cartilage of the interphalangeal joint of the right thumb, while Dr Honner and Dr Connolly consider that there is intra-articular damage as a consequence of the work activities.
35. Further, despite some variable opinion from Dr Connolly, there is significant medical opinion that the applicant has a permanent impairment centred upon the interphalangeal joint of the right thumb and that symptomatology can be exacerbated by prolonged (more than two hours) pressure on the right thumb occurring in such activities as scouring pots and pans. The Tribunal accepted that the applicant has a permanent impairment involving the interphalangeal joint of the right thumb.
36. In assessing the degree of permanent impairment, the Tribunal has considered the opinions rendered by Doctors Connolly, Honner, Evans and McGill and arguments put by Counsel. The Tribunal notes the difficulty that all the doctors appear to have had in relating the impairment to an appropriate table and then at arriving at a percentage in an appropriate table. Further, the Tribunal is mindful of the applicant’s evidence as to the number of times (five-twelve) per day that the joint locks and also when it occurs, and what the applicant may be doing. It also notes the contrary opinions of Dr Evans and Dr McGill as to the issue of difficulty with digital dexterity. In this regard, it is again noted that the applicant’s evidence is particular in relation to this ability to undertake his current activities, and further, it is noted that the applicant’s main complaints were to do with clicking, locking and pain in the interphalangeal joint of the right thumb, as opposed to issues of digital dexterity which were beyond what he already experienced as a result of the childhood accident. In concluding, it would be the Tribunal’s finding that the applicant’s case for difficulty with digital dexterity, associated with the specific injury as opposed to the affects of the childhood injury remains inconclusive.
37. In assessing the degree of permanent impairment, the Tribunal is mindful that the earlier finding by the Tribunal that the permanent impairment is arising as a consequence of an injury to the interphalangeal joint of the right thumb concludes that the appropriate table to be used for assessment is table 9.1, for as detailed in the introduction to table 9.1:

“These tables are intended to be used to assess impairment arising from specific joint lesions or amputations. Where the joints function normally, but the use of the limb is restricted for other reasons . . . table 9.4 or 9.5 are to be used”.

38. Consideration has been given to both the reasoning in Comcare v Tiscay and Reid v Comcare and both would support the decision to use 9.1 as impairments involving ankylosis of any joints of thumb indicate matters pertaining to thumb joint impairments have been considered to fall within the ambit of table 9.1 As such, there does not exist in this case an option for the Tribunal to exercise choice between tables 9.1, 9.3 and 9.4.
39. In assessing under table 9.1, the Tribunal concludes that the assessment for permanent impairment is zero, as the applicant’s impairment does not fall within a particular percentage level and there is a direct indication in the table that the first level involving joints of the thumb is when there is ankylosis. The applicant does not suffer from this incapacity and hence his assessment under table 9.1 must be zero per cent whole body impairment.

DECISION

40. The decision under review is set aside and the Tribunal substitutes the following decision:

• That the applicant has suffered an injury to the interphalangeal joint of the right thumb as a result of work activities in the scullery.
• That the applicant’s permanent impairment is assessed as zero per cent whole person impairment when assessed under table 9.1 of the Guide to the Assessment of the Degree of Permanent Impairment.
• That the applicant is entitled to payment of medical expenses where the expenses arise out of matters associated with the injury.
• That the applicant is not incapacitated for work.
  

I certify that this and the thirteen preceding pages are a true copy of the decision and reasons for decision herein of John Campbell, Member

Signed: Karin Shepherd .....................................................................................

Assistant

Date/s of Hearing 29 and 30 January 1997

Date of Decision 2 June 1997

Counsel for the Applicant Mr Tudehope

Solicitor for Applicant McClellands

Counsel for the Respondent Mr Johnson

Solicitor for the Respondent Office of the Australian Government Solicitor