Skip to Content, Skip to Navigation

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Accident Compensation Cases

Cable v Accident Compensation Corporation (DC, 23/01/10)

Judgment Text

J Cadenhead Judge
Application for Leave to Appeal 
The appellant seeks leave to appeal to the High Court from the judgment of Beattie DCJ issued on 1 May 2008 (Decision No. 97/2008). 
The respondent opposes the application on the basis that the ground raised is not a question of law nor sufficiently arguable to warrant an appeal to the High Court. 
I heard orally, as well as receiving written submissions from both counsel in this application. 
Pursuant to s 162(1) of the Injury Prevention, Rehabilitation, & and Compensation Act 2001 (“the 2001 Act”), the appellant is only entitled to leave to appeal to the High Court on questions of law. The principles relevant to the exercise of the discretion were discussed in O'Neill (Decision No. 250/2008). I held in that case inter alia: 
The Courts have emphasised that for leave to be granted: 
The issue must arise squarely from ‘the decision’ challenged: e.g. Jackson v ACC unreported, HC Auckland, Priestly J, 14 February 2002, AP404-96-01; Kenyon v ACC [2002] NZAR 385Has Cases Citing which are not known to be negative[Green] . Leave cannot for instance properly be granted in respect of obiter comment in a judgment: Albert v ARCIC unreported, France J, HC Wellington, AP287/01, 15 October 2002
The contended point of law must be ‘capable of bona fide and serious argument’ to qualify for the grant of leave: e.g., Impact Manufacturing unreported, Doogue J, HC Wellington, AP266/00, 6 July 2001
Care must be taken to avoid allowing issues of fact to be dressed up as questions of law; appeals on the former being proscribed: e.g. Northland Co-operative Dairy Co Ltd v Rapana [1999] 1 ERNZ 361, 363 (CA)Has Litigation History which is not known to be negative[Blue] 
Where an appeal is limited to questions of law, a mixed question of law and fact is a matter of law: CIR v Walker [1963] NZLR 339Has Cases Citing which are not known to be negative[Green] , 354; 
A decision-maker's treatment of facts can amount to an error of law. There will be an error of law where there is no evidence to support the decision, the evidence is inconsistent with, and contradictory of, the decision, or the true and only reasonable conclusion on the evidence contradicts the decision: Edwards v Bairstow [1995] 3 All ER 48, 57; 
Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law: Commissioner of Inland Revenue v Walker [1963] NZLR 339, 353-354 (CA)Has Cases Citing which are not known to be negative[Green] ; Edwards v Bairstow [1995] 3 All ER 48, 57. 
Even if the qualifying criteria are made out, the Court has an extensive discretion in the grant or refusal of leave so as to ensure proper use of scarce judicial resources. Leave is not to be granted as a matter of course. One factor in the grant of leave is the wider importance of any contended point of law: e.g. Jackson and Kenyon above. ”
Only serious and arguable questions of law, then, are permitted to go on appeal to the High Court. 
District Court Judgment 
The issue is the appellant's entitlement to cover for a work related gradual process injury. There were two issues before the District Court; being whether the appellant's diagnosis of non-specific arm pain (“NSAP”) was precipitated by a physical injury, and if not whether the condition, NSAP, was in itself a personal injury (physical injury). 
The Court considered the medical evidence in some detail in respect of the first issue and determined that there was no preceding tenosynovitis or carpal tunnel syndrome that led to the NSAP. In his decision His Honour said: 
“This appeal turns on whether the appellant can, on the balance of probabilities, establish that he suffered a discrete physical injury consequent upon his sustained computer work down to December 2004. The two medical specialists are in agreement that the current diagnosis is that of non-specific arm pain, and the issue is whether that condition is a consequence of a physical injury or not. 
The medical evidence which bears upon this issue is as follows: 
Clinical Notes of Dr J Wilcox dated 22 February 2005 
The clinical notes recorded that the appellant then had “neck and shoulder girdle pain at times, mild”. Under the heading “Nurse/Attention” it was recorded that the appellant had “right forearm pain and medial neuropathy from CAD'”. It was further noted that the appellant had “Inj/musc + tendon/forearm level … — Right” and “Carpel Tunnel Syndrome … — Right.” 
Medical Practitioner Cover Questionnaire dated 15 March 2005 of Dr Wilcox. 
Under the heading “Injury” he stated: “Injury of muscle and tendon and forearm level and Carpel Tunnel Syndrome — Right”. He gave as the diagnosis “Tenoysynovitis R dominant upper limb”. He noted the symptoms of injury as described by the patient as “chronic forearm pain, plus neck/shoulder pain”. In answer to the question, “What were the examination findings to support the diagnosis?”, he stated: “Focal tenderness though minimal.” 
Report from Dr G Emrys dated 27 April 2005 to ACC. 
In the “History” Dr Emrys noted: “He does not recall any swelling or redness affecting the right hand. He felt that the forearm was however some what firm and he tended to self-massage the area.” Dr Emrys conducted an examination and then stated, inter alia, as follows: 
“Mr Cable presents with a history of right hand and forearm discomfort in association with his work tasks as a CAD operator. The history and pattern of symptoms described today is consistent with that of a work related upper limb discomfort disorder. The history is not consistent with that of a tenosynovitis. No clear indication of carpal tunnel syndrome has been identified today. 
I was unable to identify a specific inflammatory condition today. John's work as a CAD operator involves repetitive fine movements using the computer mouse and this appears to have resulted in him developing a discomfort disorder affecting his right arm. ””’
Letter from Dr Emrys dated 1 June 2005 to ACC Case Manager. 
“I diagnosed Mr Cable as having a work related discomfort disorder affecting his right hand and forearm in association with his work tasks as a CAD operator. I did not identify any preceding or ongoing evidence of musculoskeletal inflammation or nerve entrapment disorder. 
In my opinion Mr Cable was not suffering from a pain syndrome but a discomfort disorder short of injury. This disorder affecting his upper limbs when performing repetitive hand tasks would be similar to an individual's whose job involved standing, developing an episode of sore feet. There is clearly an association with the work tasks but this does not cause injury. … No preceding musculoskeletal injury could be determined. ””’
Report dated 29 July 2005 from Dr Wilcox to Dispute Resolution Services. 
Prior to the review hearing the Reviewer requested Dr Wilcox to provide a report. In his report he stated, inter alia, as follows: 
“We saw Mr Cable some 5 months ago with a significant and reasonably severe presentation of classical upper limb girdle regional tenosynovitis due mainly to over-use and neuro-muscular microfatigue. 
In this case Mr Cable was involved in an increasingly heavy workload in his own business and this involved long hours of CAD design work to keep up with work output demands. The pain was severe in the neck and shoulder region radiating down also into the forearm and also into the wrist and hand. He was also getting evidence of carpal tunnel symptoms (median nerve compression syndrome) as a component of the neurogenic fatigue. ””’
Further report from Dr Wilcox to Mr R M Carter, Reviewer, dated 21 August 2005. 
Dr Wilcox was asked to comment on matters contained in Dr Emrys' reports of 27 April and 1 June. He stated, inter alia, as follows: 
“Mr Cable's claim was dated from approximately December 2004. I saw him in February 2005 some two months after his symptoms had been most severe. The symptoms had at that time become significantly intrusive into his busy CAD-based marine design business. At that stage (Feb 2005) he had already reviewed his work environment and working hours because of the persistent nature of his problems. Neither Mr Cable nor myself were aware at that stage that, due to changes in ACC regulations, to enable a successful claim for a Gradual Process Injury there must be proof of injury. 
Despite that (and not knowing of this new requirement) my notes at the time did comment on an area of slight residual swelling and tenderness as might have been expected after a self-directed and ergonomically sensible reduction in workload over several weeks … Thus by the time of a further clinical assessment on 27th April — some 2 months later again — there would not have been expected to have been much in the way of physical ‘evidence’ of injury — such as persisting tenosynovitis with swelling, local inflammation or crepitus. 
While Dr Emrys initial report clearly agreed that Mr Cable's problems with persistent dominant upper limb pain/chronic regional pain was in some way related to his work, I cannot agree that it was a form of simple fatigue or discomfort as suggested in the initial report. I have probably assessed and successfully managed probably more than 250 similar cases as this, albeit many less severe, over the last 2 decades and have only rarely would have considered the problem to be one of simple muscle fatigue or ‘discomfort’. Fatigue by definition is self-limiting and reversible with rest. Chronic regional pain syndromes are related to neuropathic and neuro-muscular pathologies which are not fully understood and may regress over weeks but certainly not hours or days. They may also be associated with significant nerve swelling, nerve sheath swelling, tendon swelling and tendon sheath swelling in many cases. ””’
Letter from Dr Emrys dated 30 August 2005 to Case Manager, ACC. 
The two letters from Dr Wilcox to the Reviewer were referred to Dr Emrys for comment. His letter stated as follows: 
“Thank you for your letter dated 25.08.2005 in which you included 2 letters from Dr J B Wilcox, general practitioner, dated 29.07.2005 and 21.08.2005. I note that Dr Wilcox diagnosed ‘a significant and reasonably severe presentation of classical upper limb girdle regional tenosynovitis due mainly to over-use and neuro-muscular microfatigue’. Dr Wilcox appears to indicate that this is the specific injury that Mr Cable was suffering from. 
I personally have difficulty interpreting the phraseology that he has used. Tenosynovitis is an inflammatory condition that involves a synovial covered tendon. I am unable to foresee how this could be a regional condition. 
Dr Wilcox refers to neuro-muscular microfatigue. This could imply micro changes associated with injury. Many physiological, biochemical and micro-pathological changes have been postulated in association with OOS or RSI type conditions. In considering discrete injury I believe it is required to determine which structure is involved and then confirmation of a specific diagnosis involving the structure is the minimum required to consider an injury event. I do not find neuro-muscular micro-fatigue consistent with injury but this may be the clinical explanation of Mr Cable's symptoms in the form of a work related muscular discomfort. ””’
Report from Dr David Black dated 28 March 2006 to Mr Schmidt. 
Dr Black was provided with all the reports referred to above and the Review decision of Mr Carter. As a comment on the review decision he stated: 
“Surprisingly, there is no mention in this decision of Dr Emrys' diagnosis of carpal tunnel syndrome. ””
Further down he went on to state: 
“It is clear to me that the underlying diagnosis here was, as identified by Dr Emrys, carpal tunnel syndrome, but this was never pursued with ACC. Mr Cable is still getting some symptoms, which indicate that there may have been permanent nerve damage and therefore it is important that he proceed to nerve conduction studies at this stage. The indication for MRI of the wrists is not so compelling but plane x-rays of the carpal tunnel views are appropriate as is a plane radiograph of the neck. 
With regard to the questions in your letter, which the Court will require guidance on, I have reinterpreted these questions in the light of the diagnosis of carpal tunnel syndrome. In my opinion, the onset of carpal tunnel syndrome occurring as it did after a period of intense work, does constitute an injury which, in ACC parlance would be referred to as gradual process from a medical point of view. I can't find anything in Mr Cable's non-work activities which are relevant, but the morphology of his wrists is likely to be a predisposing factor as it always is with this condition. However, the elevated risk caused by this type of work is much more than double, therefore the contribution to causation from work has to be regarded as at least substantial. In my experience and professional opinion, people undertaking CAD work are at much greater risk of symptomatic carpal tunnel syndrome than people undertaking tasks which do not require repetitious use with static loading of their wrists. ””
Dr Black arranged for some nerve conduction studies in relation to the carpal tunnel syndrome and those studies were negative. 
Letter from Dr Emrys to Mr Tui dated 30 June 2006. 
Consequent upon Dr Black's report Mr Tui posed two questions. Dr Emrys' responded as follows: 
Is there any clinical evidence available to suggest Mr Cable has, or had CTS? 
The evidence to date is of a history of symptoms the differential diagnosis of which would include the condition of Carpal Tunnel Syndrome. This condition is frequently present in the form of intermittent symptoms aggravated by certain hand activities, often involving forceful or sustained grip. The nerve conduction studies have not confirmed a ‘physiological’ case of CTS, but as mentioned by Dr Black this does not exclude that symptoms are present intermittently. This result does however confirm that the presence of CTS has not been proven. 
You have provided an explanation in your earlier reports to ACC to what is a discomfort disorder. The primary issue in this appeal will be whether Mr Cable has suffered a physical injury. In terms of whether a discomfort disorder is a physical injury is there anything further you can provide that may assist with the issue? 
In my opinion a discomfort disorder falls short of a discreet [sic] injury. A specific pathological injury would need to be identified by a combination of history, clinical findings and appropriate investigations. Where the collection of these findings falls short of confirming a specific diagnosis then something less than an injury is being described. ””’
Report from Dr Black dated 25 August 2006 to Mr Schmidt 
Dr Black reviewed the history of this matter and in relation to Dr Emrys' first report of 27 April 2005, he noted: 
“Dr Emrys provided a summary diagnosis to his letter as Carpal Tunnel Syndrome and thought that the problem which he described in more broad terms (correctly) was definitely work related. ””
Dr Black went on to state: 
“When I first saw him I considered it was important to establish whether there had been any permanent damage to the median nerves. A nerve conduction study has shown that there was not. The forearm nerves are all intact. That is good news for Mr Cable, but it does not exclude or alter the likelihood of carpal tunnel syndrome as having existed when Dr Wilcox saw him at the end of 2004. From the history, I am sure that this was the case. 
With regard to the mechanism of injury, it seems to me quite straightforward. Intensive overuse of forearm muscles, particularly those concerned with movement of the hand, both in maintaining static posture and fine movements required using a computer mouse have caused tenosynovitis. That is, as has been described elsewhere in the file, inflammation of the synovium lining the sheaths of tendons as they pass through parts of the forearm. One part where this occurs is in the carpal tunnel and it is this inflammation resulting from tenosyovitis which can be a cause of carpal tunnel syndrome. Carpal tunnel can also be of congenital or hereditary origin if the carpal tunnel is too small for normal content. That is clearly not the case with Mr Cable, as when the source of inflammation is removed the pressure on the median nerve in the tunnel resolves and the pressure has not been sustained enough to cause permanent nerve damage which is often seen. However, the distress caused to the forearm nerves has been sufficient to cause permanent changes which are now manifest as altered sensation and discomfort which persists. 
Dr Emrys calls this a ‘discomfort disorder’, I am less happy with that term as it is not a diagnosis which exists in the International Classification of Diseases (ICD), nor can i find any substantial reference to it in the medical literature. More relevant is the well accepted and often seen phenomenon of non-specific arm pain (NSAP) which classically arises from disturbances to the nerves which cause spill over to effects on the autonomic (automatic) nervous system which controls blood vessel calibre and other non-voluntary infrastructure functions. It is significant that Mr Cable describes his right arm being less tolerant to cold than the left and slightly numb. ACC appear to have a problem accepting the claim because there is no visible sign of injury. However, none would be expected in the case of non-specific arm pain, nonetheless the mechanism of this is well described and the work by Greening et al [1] from the United Kingdom has proven sentinel in this regard. 
In my opinion, Mr Cable clearly has a problem with his right arm which arose from work, with no significant contribution from any other factor. In that regard my opinion appears identical to Dr Emrys. The ongoing condition is one which has been well described although is given various names. The description of the condition which Dr Wilcox covers in his letters is the same condition and I find nothing that I disagree with in Dr Wilcox's letters and in particular I accept that as a General Practitioner, he would have treated hundreds of conditions like this, caused by over-use at work. 
In summary, my view and understanding of the sequence of events and pathology concurs entirely with those of Dr Wilcox and Dr Emrys and I have no doubt that this is a case of NSAP and it is entirely due to work. ””’
Letter from Dr Wilcox dated 14 February 2008 to Mr Schmidt. 
This letter was response to a question asked by Mr Schmidt. Mr Schmidt had posed the question as follows: 
“At the time of the review hearing, you provided the Reviewer with a report dated 21 August 2005. At paragraph four of the report you note that ‘ … my notes at the time did comment on an area of slight residual swelling and tenderness … ’. I have also attached a copy of your earlier report to ACC dated 18 April 2005, which includes notes for 22 February 2005 when Mr Cable first consulted you for his arm pain. Those notes record ‘right forearm pain and medial neuropathy from CAD designing’ and a diagnosis of muscle and tendon injury at forearm level and carpal tunnel syndrome. I cannot, however, find a reference to swelling and tenderness. 
As you will be aware, establishing that Mr Cable suffered a physical injury is crucial in this case. Swelling and tenderness would be evidence of this. Accordingly, the purpose of this letter is to seek further information about that initial consultation. 
Are you able to provide verification of the reference to ‘swelling and tenderness’ in your report of 21 August 2005? 
In particular, are there any notes (handwritten or typed) in addition to notes set out in your report of 18 April 2005? ””
It was to those questions that Dr Wilcox responded on 14 February as follows: 
“It is noted that despite reference to my notes having on record ‘swelling and tenderness’ that as you say this may not strictly be the case but that my report to ACC in their requested report dated 15th March 2005 (copy encl) did specifically describe this. There was no reference in the ACC report ‘to my notes’ and my description was based on an EXTREMELY clear recollection of the presentation of Mr Cable at the consultation just 1-2 weeks or so prior and the case was very clear in my mind because of the very lear nature his classical overuse syndrome. 
Because of the nature of 15 minute complex community-based consultations and the minimal payments provided by ACC for consultations (approx 60% of a normal consultation fee) then unfortunately in real life sometimes notes are abbreviated or indeed amputated. I recall being quite delighted at the time of the request by ACC that I was in fact able to put in my clear recollection of the description of his presentation even if that might have varied with my actual records. ””’
His Honour then went on and said: 
“The foregoing represents the written medical evidence. The further medical evidence from Drs Black and Emrys respectively arise from written briefs and cross-examination on those briefs. I propose to identify the salient features from the evidence of each. 
Evidence of Dr Black 
The mechanism of injury was the intensive overuse of forearm muscles required using a computer mouse and which has caused tenosynovitis. 
The injury is the inflammation of the synovium lining of the sheaths of the tendons as they pass through parts of the forearm. 
One area where this often occurs from overuse is in the carpal tunnel and it is this inflammation resulting in tenosynovitis which can cause carpal tunnel syndrome. 
When the source of the inflammation is removed, pressure on the median nerve in the tunnel resolves. 
In Mr Cable's case the pressure has not been sustained enough to cause permanent nerve damage. However, the distress caused to the forearm nerves has been sufficient to cause permanent changes elsewhere in the nervous system which are now manifest as altered sensation and discomfort. 
In the opinion of Dr Black Mr Cable did have carpal tunnel syndrome, which became symptomatic after a period of intense work. 
In Mr Cable's case, the damage to the carpal tunnel has caused a secondary injury to precipitate, that of non-specific arm pain (NSAP). 
NSAP classically arises from disturbances to the nerves with spill-over effects to the autonomic nervous system which controls blood vessel calibre and other non-voluntary infrastructure functions. 
In this case Dr Black believed NSAP to be secondary to carpal tunnel syndrome due to tenosynovitis caused by sustained periods of overwork. 
It is much less likely that the NSAP developed without pre-disposing injury. 
Overuse caused tendon swelling which is a physical injury, tendon swelling caused pain, the pain was transmitted by the sensory nervous system and confused it as sometimes happens and that is the pain syndrome. 
The beginning of the condition was a physical injury, a form of tendonitis. 
When he examined the appellant Dr Black found no evidence of tynosynovitis or carpal tunnel syndrome. The conclusion that there was tenosynovitis and carpal tunnel syndrome is based entirely on Dr Wilcox's diagnosis. 
Dr Black accepts that Dr Wilcox did not describe any symptoms of tenosynovitis but he accepts his diagnosis. 
The tendons which would have been involved in the tenosynovitis would have been the flexor tendons of the fingers. This is a different condition than carpal tunnel. 
It is correct that Dr Wilcox did not identify the tendon involved. 
It is correct that we do not know the mechanism by which non-specific arm pain arises. 
In answer to questions from the Court, Dr Black stated that he assumed that there was tendon swelling causing pain when the appellant saw Dr Wilcox. 
If there was carpal tunnel syndrome, then it was unlikely there was any cause other than tendon swelling. 
It would have been the flexor tendons that would have been inflamed. There was an effect on the median nerve. 
Evidence of Dr Emrys 
In order for a patient to be properly diagnosed with tenosynovitis, the medical practitioner must, on clinical examination, identify signs of pain from palpating over a specific tendon, pain on resisting movement of the tendon in question, a weakness in the function of that tendon, possibly crepitus and possibly swelling. Tenosynovitis is tendon specific. 
At no point have the clinical criteria of recorded symptoms been referred to that constitute the diagnosis of tenosynovitis. 
Without this essential clinical evidence there are a series of assumptions only. 
When Dr Emrys examined the appellant in April 2005, he found no clinical signs of tenosynovitis, nor was he convinced that the history obtained was consistent with this condition. 
The symptoms the appellant was complaining of at the time of his assessment were essentially the same as the symptoms complained of when seen by Dr Wilcox two months earlier. As such Dr Emrys would have expected that had the appellant been correctly diagnosed with tenosynovitis in February 2005, he would have found some signs of this condition at the time of his assessment. He did not. 
Dr Emrys agreed that there have been symptoms consistent with a degree of carpal tunnel syndrome. However, these resolved without the need for treatment. The appellant's symptoms did not reach a pathological carpal tunnel syndrome. 
Dr Emrys agreed with Dr Black's use of the term non-specific arm pain (NSAP) as this term has generally had the definition of pain in the arm in the absence of a specific diagnosis or pathology. 
Dr Emrys' use of the phrase ‘discomfort disorder’ is a narrative or descriptive term only. The condition cannot be explained by any particular pathology. 
Dr Emrys did not believe that the findings of Dr Wilcox in February/March 2005 supported any diagnosis of tenosynovitis. Whilst there were symptoms of carpal tunnel syndrome, these were only mild and were not sufficient to be injurious. This is demonstrated by the fact that clinical tests for carpal tunnel syndrome in April 2005 were negative, as were the results of nerve conduction studies in 2006. 
Non-specific arm pain is not a physical injury. It is no more a physical injury than a primary pain syndrome. 
Dr Emrys agreed with Dr Black's description of NSAP as being a nerve system dysfunction. 
Commonly an acute injury does not precede the onset of NSAP. What you have is an accumulative increase in discomfort through the repetitive nature of the activity which builds up to cause some sort of misinterpretation through the central nervous system and then, as Dr Black talked about, through a feedback loop system which results in an inability to continue to format function due to the build-up of pain. That is a discomfort disorder which occurs with any type of repetitive activity and more frequently than not one cannot identify a discrete preceding injury event. ”
His Honour then went on and made his decision as follows: 
The appellant sought cover for tenosynovitis for right upper limb, and it was stated that the symptoms of that condition was chronic forearm pain. These were the words used by the appellant's GP, Dr Wilcox. The appellant had consulted Dr Wilcox because of the enduring pain he was experiencing in his right hand and forearm and it seems he had been so for some two months or more before seeing Dr Wilcox. 
Some two months later the appellant is seen and examined by an Occupational Medicine Specialist, Dr Emrys. Dr Emrys noted in the history that the symptoms which the appellant had been experiencing in December and which caused him to cease work then were those that he continued to experience when he saw Dr Wilcox. It was those same symptoms which he was displaying and complaining of when he saw Dr Emrys. 
I find it is significant from an evidential point of view that the appellant was seen by a specialist occupational physician within a comparatively short time of him commencing to experience the symptoms he was complaining of and that those same symptoms were still persisting at the time of that specialist examination. 
It was Dr Emrys' opinion that the history and pattern of symptoms which the appellant described that day was consistent with that of a work-related upper limb discomfort disorder. He went on to state that the history was not consistent with tenosynovitis and he further noted that no clear indication of carpal tunnel syndrome could be identified. Being more specific, Dr Emrys said that he could not identify a specific inflammatory condition. 
In a follow-up report, but which was a report which related back to his examination of the appellant on 27 April 2005, he specifically stated that he did not find any preceding or ongoing evidence of musculoskeletal inflammation or nerve entrapment disorder. 
Dr Wilcox's report of 29 July 2005, elaborated on his medical notes when he stated that the pain was severe in neck and shoulder down into the forearm, wrist and hand. He then went on to state that the appellant was also getting evidence of carpal tunnel symptoms as a component of the neurogenic fatigue. 
It is the case, however, that tests were carried out which proved negative of the medical condition known as carpal tunnel syndrome, which is median nerve entrapment. Dr Emrys explained that the symptoms would have been transitory. His words were that the symptoms did not reach that of a pathological carpal tunnel syndrome. 
I mention this because it is the case that Dr Black, at least in his reports, states that Dr Emrys had diagnosed carpal tunnel syndrome, and Dr Black proceeded from that basic premise to assert that the pain condition was a progression of that. 
In his first report of 28 March 2006, he makes the statement: ‘It is clear to me that the underlying diagnosis here was, as identified by Dr Emrys, carpal tunnel syndrome … ’. He went on to suggest that some of the symptoms might indicate that there had been permanent nerve damage. 
In his later report of 25 August 2006, Dr Black again refers to Dr Emrys' diagnosis of carpal tunnel syndrome. It is from that that he expands to say that he accepts Dr Wilcox's diagnosis of tenosynovitis, but that it became carpal tunnel syndrome and which then became non-specific arm pain, which was the diagnosis given by him as being the medical condition when he first examined the appellant in March 2006. 
From the reports of Dr Black and from his evidence given at the hearing, he makes it clear that he accepted the diagnosis of Dr Wilcox of the appellant having tenosynovitis, even though that diagnosis was totally without qualification or reasoning, and indeed, did not even identify which tendon or tendons were involved. In cross-examination, Dr Black assumed that it must have been the flexor tendons. 
This is a case where I find Dr Black has been prepared to rely on the clinical notes made by Dr Wilcox, which he has relied on to a greater degree than the findings of Dr Emrys. Dr Black accepted that the condition of tenosynovitis had been diagnosed in February and March 2005, even though a month later, in April, Dr Emrys could find no evidence of it being present or ever having been present. 
As I set out in the evidence, Dr Wilcox was asked to expand on a comment he had made of an area of slight residual swelling and tenderness, when in fact his medical notes had made no mention of that at all. His response, as given a year later from the date the events took place, was that he had an extremely clear recollection of the presentation of the appellant and the case was very clear in his mind because of it being a classical case of overuse syndrome. 
The other side of the coin must be considered and that is the reference made in Dr Emrys' report of the narrative given to him by the appellant about what the symptoms were and what he was experiencing. That narrative stated as follows: 
‘He complained of an ache across the palm with some tingling and numbness over the palm spreading to the distal flexor aspect of the right forearm. Symptoms may be absent first thing and then commence during the day and initially resolved over night or over the weekend but later became more continuous. He noted that his grip became weak and when playing squash socially he was losing hold of the racquet more frequently. He does not recall any swelling or redness affecting the right hand. He felt that the forearm was however somewhat firm and he tended to self massage the area. Symptoms were not worse after sleeping. Extended driving could make his right hand and forearm ache more. ’”

From Accident Compensation Cases

Table of Contents