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Accident Compensation Cases

IHC v Accident Compensation Corporation (DC, 20/08/10)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
This appeal concerns two separate decisions made by the appellant's claims managers relating to claims for cover made by the second respondent in her capacity as an employee of the appellant. 
[2]
The first decision is that made on 15 June 2007 by Wellnz Limited revoking the grant of cover to the appellant for a left arm injury claimed to have been suffered on 3 November 2006, and for which cover had been granted on 14 December 2006. 
[3]
The second decision was the decision of Wellnz Limited dated 8 January 2009, when it declined to grant cover to the second respondent for a left upper arm/shoulder injury claimed to have been suffered by her in the course of her employment on or about 19 October 2006. 
[4]
As will become clearer, the second respondent made a claim for a left shoulder/upper arm injury when medical reports were obtained consequent upon her original claim for cover which indicated that the second respondent's real injury problems had likely arisen before the event of 3 November 2006, which brought a claim for left arm contusion, and which was most likely not the injury or the event for which the second respondent was experiencing ongoing left shoulder and upper arm problems. 
[5]
In addition to the substantive issues raised by those two decisions, it is the case that the appellant lodged its appeal from the review decision 14 days out of time and counsel for the second respondent is opposing the granting of leave to extend time for filing that notice of appeal. Counsel for the first respondent indicates that the first respondent will abide the decision of the Court. 
[6]
The question of whether to grant leave to extend time for the filing of an appeal, in the final analysis, usually comes down to a consideration of whether there is merit in the appeal such as leave should be granted. In those circumstances I propose to defer further consideration on the application to grant leave until the substantive issues in the appeal have been examined and where the Court is in a better position to identify where the merits may lie. 
[7]
The background facts relevant to the issues in this appeal may be stated as follows: 
At the material time the appellant was aged 54 years and employed as a Community Support Worker by IHC (NZ) Inc. in Palmerston North, and had been so employed for some six years, although she had only been engaged in her current duties at IHC's Cook Street Day Base for some two months. 
Adult clients with high needs, many of whom are wheel-chair dependant are brought to the Day Base where they are looked after and take part in activities which would include outings by wheel-chair and under the control of the Community Support workers, such as Mrs Cotter. 
On 2 occasions in October 2006, namely on the 12th and 19th, Mrs Cotter was wheeling a wheelchair patient on an outing which included wheeling on an uneven surface. 
On 19 October, in particular, Mrs Cotter was wheeling a patient on a farm visit on uneven ground which involved pushing the wheelchair through gravel and in the course of which she began to experience pain in her left arm and shoulder. 
Mrs Cotter did complete two IHC Injury/Incident Report forms detailing the circumstances of those two occasions. 
Mrs Cotter consulted her GP, Dr J Morton, on 24 October. His note made at the time stated: 
“started new job; much heavy work; drives a van; ++ physical work w IHC; some pain in L forearm; wheelchairs are very heavy. 
d: tennis elbow L 
a: work related 
p: she will discuss with her case manger; meds ”
A follow-up note from Dr Morton was provided to the employer dated 2 November 2006. In addition to advising the nature of her injury, his note requested that Mrs Cotter be transferred to a less physically stressful environment. 
On 3 November 2006, Mrs Cotter was engaged in caring for a client when that person struck her on her left arm causing her pain and which prevented her from being able to lift clients, which were normally part of her duties. 
Mrs Cotter consulted Dr Morton about her sore arm on 6 November 2006 and it was at that time that a claim for cover was lodged. The description given was “struck on arm by a resident, unintentional, arm muscles sore, unable to lift clients.” The injury was described as tender arm muscles, the diagnosis being “contusion left upper limb”
By decision dated 14 December 2006, Catalyst Risk Management, the then injury management providers for IHC, advised Mrs Cotter that she had been granted cover for that work-related personal injury. 
Although Mrs Cotter had been granted cover for her left arm bruising, it was the ongoing pain in her left shoulder area which was the major problem and this fact was identified by her GP, Dr Morton who, together with the physiotherapist, referred her to Dr Mike Cleary, Occupational and Musculoskeletal Medicine specialist. 
Dr Cleary had “three sessions” with Mrs Cotter in December 2006 and January and February 2007 and he obtained an ultrasound scan of her left shoulder, but could not accurately identify what the problem was. 
In February 2007 Dr Cleary referred Mrs Cotter to Chris Williams, Orthopaedic Surgeon, and for the purposes of his assessment of her an MRI scan of her cervical spine was obtained. 
Mr Williams reported to Dr Cleary on 28 March 2007, and in essence his advice was that he couldn't identify any condition as being the cause of her left shoulder problems. 
Dr Cleary had further attendances on Mrs Cotter in April 2007 and reported to Wellnz who had now taken over management of IHC Accident Compensation claims. 
As a consequence of reports provided by Dr Cleary, Wellnz Limited issued its decision of 15 June 2007 revoking the cover which had been granted to the appellant by CRM on 14 December 2006 for upper arm contusion. The reasoning given for its decision was as follows: 
“As you are aware Wellnz has taken over the management of your claim from CRM. Part of our involvement was to refer you to a specialist for assessment and opinion on your symptoms. Accordingly we have a report from Dr Cleary that identifies you have a regional pain syndrome but this is not related to your claim for cover. In fact the specialist opinion is that you did not suffer an injury on 3/11/06 but rather exacerbated your pain syndrome. 
Unfortunately this means that your claim was incorrectly accepted for cover by CRM on 14/12/06 for a contusion. For cover to be established there must be evidence of a discreet physical injury; as your diagnosis is a regional pain syndrome and is not caused by a physical injury your claim cannot be accepted and must therefore be revoked. ”
Mrs Cotter sought a review of that decision and it is the case that there were false starts in that review procedure, and indeed it was not until 18 February 2009 that a review hearing took place. 
By the time of that review hearing a number of further medical reports had been obtained including reports from Lissa Judd, Occupational Medicine Specialist, Dr David Hartshorne, Specialist Occupational Physician, and Dr Cleary. All these reports will be considered in detail later in this decision. 
By separate application lodged on 9 December 2008, Mrs Cotter had sought cover for her injured left shoulder and forearm said to have been injured in an accident on 19 October 2006, whilst she was pushing an IHC client in a wheelchair around the farm. 
That claim for cover was considered by Wellnz and in a decision dated 8 January 2009, it advised that cover was declined, the reasoning given in that decision letter was as follows: 
“For a claim to be acceptable it must first be established that a physical injury has been suffered. The medical information on file gives a diagnosis of a pain disorder. For pain or discomfort to meet the criteria set out in the IPRC Act 2001, pain must be based upon a physical injury. The medical information on file does not provide evidence of a physical injury. This certainly does not imply that such pain is not real or that it does not warrant medical intervention or treatment. 
As there is no evidence of a personal injury I regret to advise you that your claim has been declined for cover on behalf of your employer, IHC New Zealand Inc. ”
Mrs Cotter lodged an application for review in respect of that decision as well, and it was the case that both applications for review came on for hearing on 18 February 2009 before Reviewer, Mr P Barker. Mrs Cotter was represented by Mr Thompson at that review hearing. 
At that hearing all the medical reports were presented. 
In his decision dated 9 March 2009, the Reviewer acknowledged that there were two decisions which were the subject of review, and he considered that now that the further claim for injury arising from the 19 October 2006 incident was before him, both matters could be considered and determined under the review relating to the revocation of cover for the 3 November injury. Further comment on that review decision may be made later in this decision, but the determination made by the Reviewer was as follows: 
“Weighing all of the evidence I find that, on the balance or probabilities, Mrs Cotter did sustain a physical injury in the accident of 19 October 2006. Further, I find that the pain syndrome has developed from that physical injury. On this basis I find that I must quash IHC's decision. ”
It was that decision which IHC, through Wellnz, sought to appeal to this Court and that Notice of Appeal, dated 17 April 2009, was shown as being received by the Appeals Registry on 20 April 2009, being fourteen days after the expiry of the statutory appeal period. 
[8]
As noted from the background facts, the respective starting dates from which the decisions in issue must be considered, were firstly, 19 October 2006 in relation to the left shoulder injury, and 3 November 2006 for the left arm contusion injury. From the various medical reports which have been obtained on those respective injuries, it is clearly the case that the shoulder injury of 19 October was the more serious and longer lasting. 
[9]
I propose to consider the medical evidence in chronological order as it pertains to that first accident and its aftermath. 
[10]
Mrs Cotter first consulted her GP, Dr Morton on 24 October 2006 in relation to that shoulder injury claimed to have been suffered by reason of her having to push a heavy wheelchair through uneven gravel ground, and the action of so pushing that wheelchair is claimed to have caused the left shoulder injury. 
[11]
The fact of this incident is further confirmed by Dr Morton's letter of 2 November 2006 to IHC in which he stated, inter alia — 
“Jenny has presented with pain in her L arm and shoulder; she is also tender in the L elbow. 
This is a problem related to her heavy physical load at work. 
Medicine and physiotherapy will not really help in any permanent way. 
The definitive management is a change in her work load. 
May I suggest a transfer to a less physically stressful environment? ”
[12]
The next event was Mrs Cotter consulting Dr Morton on 6 November in relation to an incident which took place on 3 November 2006. The claim for cover form which was completed on that day stated: “Struck on arm by a resident, unintentional, arm muscles sore, unable to lift patients.” The diagnosis was contusion left upper limb. The comment given by Dr Morton was that Mrs Cotter had tender arm muscles and she was directed to physiotherapy for treatment. 
[13]
Mrs Cotter was referred to Mr I Buchan, Physiotherapist, and he provided a report to Dr Morton dated 22 November 2006. His report stated, inter alia, as follows: 
“On subjective assessment Ms Cotter was describing symptoms of shoulder/upper arm pain (non-dermatomal) and pins and needles into the left hand, and also some resolving swelling on the left hand and forearm. Pain was reproduced on shoulder movements and Cx rotation. The thoracic outlet syndrome tests were negative (Adson's/Allen's). 
I have treated Ms Cotter with shoulder girdle elevation exs, some gentle thoracic mobilisations and general postural exs. 
Generally Ms Cotter is improving; the pins and needles have been abolished and the swelling in the hand has resolved. On palpation, however, she remains very tender over medial border of clavicle and into 1st rib on L side (which appears to be depressed). 
I wonder whether you feel Ms Cotter may benefit from an orthopaedic review and/or further investigations if her symptoms do not resolve in the near future. 
I wonder whether you feel Mr Cotter may benefit from an orthopaedic review and/or further investigations if her symptoms do not resolve in the near future. ”
[14]
In a letter dated 11 December 2006, Dr Morton further advised of the two incidents and in which he stated, inter alia — 
“I wish to make it clear that although she did sustain an injury when struck by a patient, her major problem relates to the problem of pushing a fully laden wheelchair through gravel. ”
[15]
Dr Morton then made comment about the working conditions and its hazards and he stated - 
“In Jenny's case the hazard was the increased resistance to movement of a wheelchair. ”
[16]
Mrs Cotter was referred to Dr Cleary, Occupational and Musculoskeletal Medicine Specialist, and his noting of the history identified the injury from pushing the wheelchair only. He examined her on 21 December 2006 and his note of her then circumstances was as follows: 
“She reports significant swelling which affects her left hand and even now she is unable to wear rings and at times has to take her watch off because of a band of tightness at the lower forearm. She has had no colour change, but the arm can feel like a dead weight and in the last week she has had burning pain when using the left arm and has felt pain in the left clavicular area. 
She scores the present pain around the collarbone and the shoulder area a VAS of 5/10, an improvement from the 10/10 originally felt. 
Down the arm she would rate it 5/10 and in the forearm 5/10. 
The pain feels deep especially n the shoulder, almost as if there is a heavy weight dragging it down. 
The pain descriptors vary from stinging and burning to the heavier pain felt in the shoulder. ”
[17]
Dr Cleary indicated that he was seeking an ultrasound scan and an x-ray, but his tentative diagnoses were either cervical radicular pain or a rotator cuff problem. 
[18]
Dr Cleary reported again on 18 January 2007 when he again saw Mrs Cotter and he also had the ultrasound and x-ray reports. He identified that those reports showed changes within the supraspinatus tendon and also subacromial impingement. He gave a recommendation for treatment but also suggested that an MRI scan of her cervical spine be obtained. 
[19]
Dr Cleary again saw the appellant on 1 February, consequent upon deterioration in her left shoulder condition, where she was experiencing pain, but he advised that he found it difficult to make sense of the clinical picture. It was at this point that Dr Cleary determined to refer Mrs Cotter on to Mr Chris Williams, Orthopaedic Surgeon, for consideration. 
[20]
A further ultrasound scan on 13 February 2007 identified a partial tear of the supraspinatus, but otherwise the rotator cuff was intact. 
[21]
Mr Williams saw Mrs Cotter on 28 March 2007 by which time the MRI Scan had been obtained. That scan showed the cervical spine as being normal. In his report to Dr Cleary, Mr Williams stated, inter alia as follows - 
“Jenny presents with a diffuse left shoulder girdle and upper limb myositits for fibromyalgia type condition this morning. There were no localising features, and nothing to suggest surgery could be targeted at any specific area. Most importantly, despite the ultrasound scan report of a small partial thickness rotator cuff tendon tear, Jenny does not present this morning as someone with predominant rotator cuff impingement findings. 
I have gone over my clinical exam and the scan results with Jenny this morning. I have reassured her that at this stage I cannot identify any surgical interventions which would assist her. I have explained that in my opinion she has a diffuse myalgic type process, and her best ongoing management remains conservative. ”
[22]
The next medical report is that of Dr Cleary dated 23 April 2007 to Wellnz. Dr Cleary gave as the diagnosis as follows: 
“The diagnosis that best fits her symptoms and signs is that Jenny has a regional pain syndrome/pain modulation disorder affecting her left shoulder and left arm and hand. ”
[23]
Dr Cleary had been asked by Wellnz whether there was evidence of a physical injury and his response to that was as follows: 
“There is indirect evidence of a physical injury, i.e. A sub-acromial bursitis with impingement, as judged by the clinical signs on the examinations of the 21st December 2006 and the follow-up on the 18th of January 2007. 
The US on the 3rd of January was reported as ‘Impression: Subacromial Bursitis with impingement and a partial intra-substance supraspinatus tear and she was injected with steroid. 
The significance of the intrasubstance tear is difficult to judge, as at her age, in asymptomatic individuals, partial tears are not uncommon, and so we do not know if this is an incidental fining. 
The following US on the 13th of February, reported that the ‘ … subacromial bursal thickening is less marked than previously’
This change in the status of the bursa was not reflected in her symptom complex because in all likelihood the regional pain syndrome/pain modulation disorder was the predominant condition. ”
[24]
Dr Cleary went on to state: 
“In my opinion her current disability and impaired function is due entirely to a regional pain syndrome/pain modulation disorder. 
As I understand it a secondary pain syndrome is one that follows a noxious stimuli, and in this case the history contains a precipitating work task that had the potential to cause tissue injury. It may be clearer from the GP and physio notes if this was the case. 
She had an unusually physical work task that day and following this had the onset of marked pain in her left upper limb and selling of her left hand. 
We have indirect evidence of a physical injury as discussed in my answer to the question above. ”
[25]
In answer to the question “What is the likely cause of the original injury?” he stated: 
“The likely cause was the vigorous, sustained (2 hours) forceful pushing of a wheelchair over an uneven path with the impediment of gravel and jarring of her left arm. 
Jenny tells me that CRM did investigate this incident, and as with the original medical and physio notes I would be interested in this. ”
[26]
In a letter of 3 May 2007 to Wellnz, Dr Cleary was talking of the injury of 3 November 2006, and when referring to his report of 23 April 2007, he stated: 
“The abovementioned documents indicate that she had symptoms prior to the DOI that I am working on. 
There is no injury diagnosis provided in these documents that would help support a secondary pain syndrome, which means that it remains speculative if a physical injury preceded the development of her pain syndrome. ”
[27]
It is to be noted that it was as a consequence of those letters of 23 April and 3 May 2007 that Wellnz issued its decision of 15 June 2007 revoking cover for the claimed injury suffered on 3 November 2006, it being contended that no physical injury was suffered on that date. 
[28]
The next specialist to consider Mrs Cotter's situation was Dr Lissa Judd, Occupational Medicine Specialist, who examined her in September 2007, and in her report of 20 September 2007, she identifies the diagnoses made by Dr Cleary and she went on to state as follows: 
“Jennifer said that the burning quality of the pain and the painful sensation with lightly touching the skin on this limb turned up when she was having physiotherapy. Although Dr Cleary doesn't mention it in his report, one gets the feeling from his description of symptoms and clinical findings that the beginnings of the complex regional pain syndrome may have been present at this time. 
So I would conclude that the rotator cuff disease was present prior to the complex regional pain syndrome. Since a tear in rotator cuff fibres may be precipitated by a fall or lifting a heavy object, and since the symptoms in the left upper limb began abruptly after a period of quite forceful activity (in a person who had no prior history of pain in the shoulder), it is reasonable to assume that the rotator cuff tear was caused by the forceful activity of pushing a heavy wheelchair along a gravel path and repeatedly having to lift the weighty client who kept sliding forward. Complex regional pain syndrome may be precipitated by a variety of injuries, including rotator cuff injuries, and I believe that in this case the complex regional pain syndrome followed on from the rotator cuff injury. ”
[29]
Wellnz sought further advice from Dr Cleary prior to the review hearing and he provided a report of 25 October 2007 and for which he had Dr Judd's report and also a report from Dr Morton for reference. Dr Cleary stated that there was agreement that Mrs Cotter's persisting pain was due to a regional pain syndrome. He then went on to state: 
“There is a history of unaccustomed loading of the left arm, not once but twice in October 2006 due to the fact that the left side of a client's wheelchair made it hard to push on that side and more force was needed with Jenny's left upper limb. 
On the second occasion, the sloping, uneven and gravelled pathway aggravated her left upper limb that was still sore from a week earlier, and additionally it was further aggravated by the forceful lifting needed to repeatedly repositioning the 60-70 kg client in the wheelchair. 
The already sore left arm (and susceptible central nervous system) being exposed to these significant forces was further injured. 
The noxious barrage from this second event has resulted in the rapid development of the diffuse pain and swelling associated with a regional pain syndrome and obscured any specific area as a precipitating injury and has made it impossible to say with any certainty where the main impact of the soft tissue injury was. 
There is in my opinion a plausible work related mechanism of injury to the soft tissues of the left upper limb, and in the context of a past history of a pain syndrome (in a different anatomical site) this soft tissue injury has resulted in a regional pain syndrome affecting the left upper limb. ”
[30]
Dr Cleary also identified that there had been confusion over histories and dates involving various areas of Mrs Cotter's left upper limb, and he went on to state: 
“In hindsight, with the various imaging results and the persisting pain and the difficulty fitting her symptoms and signs, this history is consistent with the rapid onset of a complex regional pain syndrome/pain modulation disorder affecting that left upper limb. 
A pain modulation disorder was a diagnosis made by me when I saw her at the Musculoskeletal Clinic at Palmerston North on the 12th September 2006, but this was in a different anatomical area, which is why I considered that this was an unrelated i.e. a different area and it had essentially resolved when I saw her in December 2006. 
This history is important because does indicate a predisposition or susceptibility on her part to pain modulation disorders, so it is relevant in the present context. ”
[31]
The next report is that of Dr David Hartshorne, Specialist Occupational Physician, who examined Mrs Cotter on 28 January 2008. Dr Hartshorne was requested to provide an assessment for Wellnz, and he was provided with all the relevant medical reports for reference. It was in this report that Dr Hartshorne made a distinction between what he referred to as problems with the distal part of the forearm as distinct from those symptoms in the proximal left upper quadrant. He noted that Mrs Cotter became aware of the more proximal left upper arm quadrant symptoms during a farm visit when she was involved in pushing a wheelchair over rough and difficult terrain. Dr Hartshorne's assessment of the history was that Mrs Cotter's case was a highly complex issue. He then went on to state as follows: 
“In Jenny's particular situation it is possible that her more proximal left shoulder and left upper limb symptoms were caused by the onset of the intrasubstance tear or development of subacromial bursitis with impingement. This type of presentation in isolation could be compatible with a forceful activity such as pushing a manual wheelchair over rough and uneven terrain. In this context there could be a reasonable argument put forward that there was a specific forceful event or at least a series of forceful events on this particular day which precipitated the subacromial and rotator cuff pathology. 
There is however a problem with the above analysis. It is very apparent that the first symptoms in the left upper quadrant were in fact those of more distal pain, swelling and paraesthesia affecting the left hand, wrist and distal forearm. It has been suggested in some of the medical documentation that this initial presentation represented a tennis elbow. Against this is the fact that the symptoms described by Jenny are very atypical for a tennis elbow in that she had no discomfort about the elbow itself until such time as the area was examined. Her pain symptoms were very much related to the hand, wrist and distal forearm. Additionally swelling and paraesthesia in the hand is not a common feature of tennis elbow. As such it is quite possible, and in my view probable that the more distal left hand symptoms of pain, paraesthesia and swelling were the first manifestations of a spontaneously evolving centrally mediated pain disorder. 
If one accepts that the more distal symptoms that predated the proximal symptoms were indeed those of an evolving centrally mediated pain disorder it renders the interpretation of the more proximal symptoms somewhat different. Jenny describes the spread of pain more proximally during her farm visit which would be consistent with the type of evolving and generalising pain often seen in centrally mediated pain disorders. In this context one could then more readily conclude that the more proximal symptoms merely represented an extension of the centrally mediated pain disorder and the subsequent relatively non-specific radiologic findings within the left shoulder were co-incidental findings. 
Thus on the balance of probabilities and based on the history and examination at today's assessment and review of the documentation I believe that it is most likely that the more distal symptoms represented the evolution of a spontaneously evolving centrally mediated pain disorder which then became more diffuse over time to involve the entire left upper quadrant. I do not believe that there was a specific traumatic incident or injury that acted to trigger the centrally mediated pain disorder. I believe the more distal symptoms represent the initial stages of the pain disorder and that any subsequent worsening of the symptoms and spread more proximally represented deterioration in the pain disorder itself rather than the presence of a further specific injury or abnormality. ”
[32]
The next report is a further report from Dr Judd, who was requested to comment on Dr Hartshorne's report. Dr Judd reviewed the early medical reports from Dr Morton and the physiotherapist and she then commented: 
“So it seems to me that there are two areas of symptoms: the hand (which has swollen with two separate wheelchair-pushing incidents, the first one being pretty minor), and the shoulder pain which appeared with the second wheelchair-pushing incident (on the 19th). Because shoulder pain tends to radiate down the arm, it is not difficult to imagine how the whole upper limb would feel sore if both the shoulder and the hand were affected (and this is in fact what Ms Cotter described). 
It was particularly noticeable that Jenny complained that from this point she couldn't lift her arm up to hang the washing out, and other tasks which required raising the arm up or reaching forward (like making the bed) suddenly became difficult. These are the sort of symptoms one would associate with a rotator cuff problem. Even Mr Cleary (21/12/06) notes that she has mid arc pain in the left shoulder, amongst all the other findings (many of which suggest a pain syndrome). This mid arc pain indicates that her rotator cuff was not in fact asymptomatic. One would have thought that if her shoulder pain was merely part of a more widespread pain syndrome, that should would have had pain throughout the range of motion, or at the extremes of motion, rather than the mid arc pain typical of a rotator cuff problem. It seems to me that even at Dr Cleary's examination (when the features of a complex regional pain syndrome have begun) that elements of a I [sic]missing words do not think that the trivial hand swelling which occurred in the wheelchair-pushing incident the week prior to October 19th indicates that a complex regional pain syndrome has begun. Plenty of people have minor swelling on the hand following a tenosynovitis or other minor soft tissue injury. Most people with hand swelling do not have a complex regional pain syndrome. Just because a complex regional pain syndrome developed later (by the latter part of December) does not mean that the hand swelling in early October was part of that problem. If the hand swelling in early October was not part of the complex regional pain syndrome, then the shoulder injury (the rotator cuff problem), which started after the October 19th incident (with the wheelchair-pushing along the gravel) preceded the complex regional pain syndrome (the symptoms of which seemed to develop while she was having physiotherapy — that's when the pain changed its quality and became burning in nature). 
Because of the meagre nature of the clinical notes at the time, it is impossible to say what those early hand symptoms might be due to — but as I mentioned, there are other plausible and probable causes such as tendonitis. ”
[33]
Doctor Hartshorne was invited to comment on Dr Judd's report of 16 May 2008 by Wellnz and he did so by letter dated 6 June 2008. He noted that it was unsurprising that a variety of interpretations can be drawn from the information available at this time, he stating: 
“Overall, it becomes very difficult to provide firm conclusions in this case and, as such, the conclusions fall very much into the area of likelihoods or balances of probabilities rather than a high degree of confidence. ”
He went on to state: 
“Thus, the interpretation of the situation relies very much upon the analysis of the initial symptoms; Dr Judd favours the interpretation that the more distal symptoms and proximal symptoms represent different clinical entities which just happened to occur around the same time. On this basis, it is assumed that the changes of a fairly non-specific nature within the left shoulder have been the cause of the subsequently evolving centrally mediated pain disorder. 
In my view, I believe, it is more likely that the left upper limb and left shoulder symptoms represent a single and unifying presentation rather than assuming that two completely separate entities occurred almost simultaneously, which is clinically much less likely and less probable. 
Overall, therefore, I still favour the view that the symptoms are more likely to represent a spontaneously evolving centrally mediated pain disorder, rather than the onset of two separate and discreet musculoskeletal entities with a secondary pain disorder arising subsequent to this. In having this view, however, I acknowledge that there is a significant uncertainty primarily based around the poor quality of the information received. ”
[34]
Mr Sharpe, Counsel for the Appellant submitted that CRM's decision of 14th December 2006 to grant cover to the Appellant for an injury said to have been sustained on 3rd November 2006, was a decision made in error. He submitted that it was a decision made before any proper medical evidence had been introduced. He submitted that once the reports of Dr Cleary had been considered, it was clear that no injury had been sustained on the 3rd November 2006 that it was appropriate to invoke s 65 of the Act and revoke that decision granting cover. 

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