Conflicting medical evidence? Why a clear diagnosis of consequential worker injury is essential.

In the recent case of Grant v Dateline Imports Pty Ltd [2022] NSWPICPD 3, the President of the Personal Injury Commission (PIC) confirmed that a clear diagnosis supporting an alleged consequential condition would aid in discharging the worker’s onus of proving an entitlement to lump sum benefits pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).

Background:

On 31 July 2015, the worker was injured in the course of his employment as a storeman. When he was required to lift a heavy box, the box fell onto his right (non-dominant) hand and pinned it down. Liability for the injury was accepted by the insurer.
 
The worker subsequently alleged a consequential condition in the form of pain in his left arm due to favouring his right arm following the injury. He also alleged that he had developed a complex regional pain syndrome (CRPS). Proceedings were commenced, with the worker claiming lump sum entitlements pursuant to s 66 of the 1987 Act in respect of the permanent impairment of his right arm, left arm and CRPS. The respondent disputed the alleged left arm condition and CRPS.

First Instance:

The matter was listed for arbitration and allocated to a Principal Member of the PIC. When considering the issue of whether the worker had suffered from a condition in the left arm because of favouring the right arm, the Principal Member observed the necessity for specific evidence as to what tasks comprised the overuse as the condition alleged was with respect to the worker’s dominant arm. The Principal Member also noted the need for medical expert evidence, which makes a diagnosis as to what condition had developed as a result of overuse. She found that the worker’s medical evidence was lacking in these ways.

Accordingly, the Principal Member did not accept that the worker suffered a consequential condition in his left arm because of the initial injury. The issue of whether the worker had a treatable diagnosis for CPRS for the right arm was referred for assessment by a Medical Assessor.

Appeal:

The worker raised the following grounds of appeal:

1. The Member erred in finding as a matter of law that a “diagnosis” was needed to determine if a consequential condition had occurred; and

2. The Member erred in law in determining that the worker’s consequential condition in the left hand bore a higher burden of proof because it was his dominant arm. The appeal failed on both grounds.
 
The Presidential Member rejected the worker’s argument that the presence of symptoms, rather than a diagnosis, was sufficient in a determination that a consequential condition resulted from a work-related injury. She observed that in the context of there being substantial evidence that there was another cause for the symptoms in the worker’s left arm (being CRPS in the right arm and emerging with pain in the left arm), a diagnosis which might lead to the identification of the cause of the left arm condition was significantly relevant.

Further, the Presidential Member rejected the submission that the Principal Member erred in requiring specific evidence as to what tasks comprised the overuse of the worker’s dominant left arm, and that this set a higher standard of proof than was required. The Presidential Member confirmed the relevance of the worker’s left-hand dominance, as individuals generally place more reliance on their dominant arm to do more tasks. In this context, the Presidential Member believed it was not unusual to look for evidence of additional tasks undertaken.

The Presidential Member was of the view that the Principal Member did not place a higher burden on the worker because he was left arm dominant. Rather, the Principal Member concluded on the available evidence and medical opinions that the worker’s case was not made out.

Summary:

  • This decision highlights the need for a clear diagnosis of consequential condition particularly in cases where there is conflicting medical evidence as to the cause of the alleged consequential condition. 
  • It also highlights the relevance of workers’ dominant arm when dealing with work-related arm injuries.
Post by Hicksons Partner, Naomi Tancred, and Graduate, Carla Blackman.

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