Karnavas v Home Care Services of NSW [2001] NSWCC 25

Compensation Court of New South Wales

CITATION : Karnavas v Home Care Services of NSW [2001] NSWCC 25 Sylvia Karnavas PARTIES : v Home Care Services of New South Wales MATTER NUMBER(S) : 418 of 2000 JUDGMENT OF: Neilson J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 14 March 2001 EX TEMPORE JUDGMENT DATE : 03/14/2001

FOR APPLICANT: Mr M Ward instructed by Xenos Jordan appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr I Todd instructed by P W Turk & Associates appeared for the respondent.

JUDGMENT: 1. Mrs Sylvia Karnavas of Engadine claims weekly payments of compensation for partial incapacity from 5 May 1998 to date and continuing. She also claims a lump sum under s 66 for 25 per cent loss of efficient use of the left arm at or above the elbow and a consequential lump sum for pain and suffering pursuant to s 67. 2. The applicant started working for the respondent in 1989 providing home care to members of the community in the St George area. She was then a resident of San Souci. The applicant worked 49 hours per fortnight - that is 24 and-a-half hours on average per week. Her job involved all that one would expect of a person employed by the Home Care Service of New South Wales. She would attend upon clients of the Service and provide personal care to those clients as well as doing housework for them including ironing, vacuuming, dusting, mopping, cleaning of other floors and the scrubbing of tiles in bathrooms and the general maintenance of bathrooms. She would also talk to the clients and sometimes do other activities for them such as shopping and putting away the shopping for them. 3. On 6 March 1997 it was drawn to Mrs Karnavas's attention by a client that she had a swelling on the dorsum of her left wrist. About a week later that swelling became painful and on 14 March 1997 the applicant attended upon Dr Tsamoglou, a general practitioner at Kogarah. Dr Tsamoglou diagnosed a ganglion and referred the applicant on to Dr Wayne Viglione, an orthopaedic surgeon at Kogarah. Initially Dr Viglione sought to inject the ganglion in order to disperse it - but that procedure was unsuccessful. He then thought that the ganglion ought be excised and proceeded to excision on 14 April 1997. 4. In a report of 22 April 1997, post-surgery, Dr Viglione advised that as well as finding the ganglion which was fairly well-contained arising from the scapho-lunate ligament, which ganglion he excised completely, he also found extensor synovitis involving the 2nd and 3rd dorsal compartments of the applicant's wrist with free fluid within those compartments and some synovial hypertrophy. Those compartments were released at the same time by which I infer the doctor meant that he drained the fluid and loosened up the extensor tendons. Post-surgery, Dr Viglione referred the applicant to a hand therapist for, essentially, physiotherapy. 5. The respondent has submitted that the ganglion was not a work-caused or work-aggravated condition and that the employment was not a substantial contributing factor to the pathology which was found. I reject both of those submissions. The applicant has been seen by a large number of practitioners who have commented about the applicant's condition. Dr Viglione by inference supports a causal relationship between the ganglion and the work that the applicant performed. He clearly wrote to the respondent's insurer commenting on the applicant's condition and compensation payments were in fact made to the applicant until 4 May 1998 - that is for over a period of one year. Subsequent to seeing Dr Viglione, the applicant was also treated by Professor Cummings, also an orthopaedic surgeon who, again, by inference, supports a causal inference. Then the applicant came under the care of Dr Grahame Mahoney who clearly believed the condition was either work-caused or substantially aggravated by her working activity. 6. A number of doctors have seen the applicant for the respondent. They include Dr Alan Skapinker, a general practitioner, Dr Kenneth Hume, an orthopaedic surgeon, Dr Kirychenko, a GIO medical officer with a specialty in rehabilitation, Dr William Walker, a plastic and reconstruction surgeon and Dr John McKessar, a hand specialist. Whilst a number of those practitioners say that the applicant's condition could be related to her work, none of them actively advocate the opposite. The only practitioner to advocate the opposite is Dr Ross Whittiker, a consultant rheumatologist. Amongst the conference (if I may use that collective noun) of medical practitioners involved in this case, Dr Whittiker is the only person who really advocates the lack of a causal relationship between the development of the applicant's ganglion and her work. Dr Mahoney gave oral evidence and pointed out that a ganglion is essentially a herniation of tissue arising from a joint. As I understand his evidence, his position is that the ganglion can either be triggered off or made worse by the repetitive or heavy work. 7. Common sense indicates that if there is, for example, some herniation of tissue, repeatedly placing pressure on that tissue causes it to grow and move and expand to the stage at which it becomes painful. Here Dr Mahoney explained that the ganglion as it grew would displace tendons and that would cause pain - which is exactly what appears to have happened in this case. The respondent submitted that the applicant's work was not "heavy". The respondent's position is essentially to gauge the arduousness of work objectively - rather than subjectively. What is 'arduous' for a middle-aged lady may not be arduous for a shearer or a bricklayer's labourer. I accept that work such as cleaning three bathrooms every day of the week as well as doing her own bathroom weekly would be relatively heavy for a middle-aged lady such as the applicant. 8. I am persuaded on the balance of probabilities that the development of the applicant's ganglion, whilst it may not have been caused by her work, was substantially aggravated by the nature of the work that the applicant performed for the respondent. The evidence does not disclose when the applicant stopped working but by inference it probably was on or about 14 March 1997 when the applicant first had cause to attend upon with Dr Tsamoglou. The respondent has also submitted that the synovitis, which has clearly been visualised at operation by Dr Viglione, was not caused by the ganglion - but, rather, by a tendency to the development of gout diagnosed by Dr Mahoney in February 1988, for which he prescribed Zyloprim. I reject that submission as well. 9. No medical practitioner has come to that view. The finding of the tendency to gout may have been quite incidental. If the synovitis was caused by gout, one would expect that other joints in the applicant's body would have been affected by that condition. The idea that extensor synovitis in the area of the ganglion was merely fortuitous, and caused by gout rather than the ganglion, is so improbable that I am unable to accept the respondent's submission. However, I do accept that the tendency to gout probably has caused the condition of synovitis to be prolonged as Dr Mahoney said in his oral evidence before me. The case is not straightforward in that the applicant has since the operation complained of symptoms which are not completely explicable by the development and excision of the ganglion and the synovitis on the extensor tendons, consequent upon the ganglion. 10. As early as 4 April 1997 Dr Viglione thought that the applicant's symptoms were "rather more disabling than a scapho-lunate ganglion usually is." On 17 June 1997 Dr Viglione commented that the applicant complained of diffuse swelling in her hand and wrist and of a chronic, almost constant, pain over the ulna aspect of her hand as far as little and ring fingers associated with some paraethesiae. The applicant told Dr Viglione that that altered sensation had been present for about a week and a half prior to 17 June 1997. At that time, on physical examination, Dr Viglione thought the applicant was voluntarily limiting her grip strength. He also thought there was not as much swelling as the applicant would have him believe. However, he did find symptoms of an ulnarneuritis. Subsequent examinations establish that the applicant did have some ulnarneuritis - but localised in the hand and not arising from the elbow. 11. To me that indicates that the ulna nerve may have been affected by the synovitis and although no medical practitioner comments either way, I infer that the ulna neuritis was a consequence of the synovitis in the applicant's extensor tendons. However, it is important to note that by 17 June 1997 the applicant's complaints were not viewed by Dr Viglione as quite consistent with the pathology found. 12. A bone scan was carried out on 8 July 1997 at the St George Hospital at the request of Dr Viglione. The delayed images of that scan revealed mildly increased tracer up-take in the left proximal carpal row typical of a mild degree of "post-surgical synovitis". However, it is clear that the synovitis was established at the time of the surgery and was not merely a surgical complication but rather a complication of the ganglion as it grew through the extensor tendons on the back of the applicant's left wrist. 13. On 15 July 1997 Dr Viglione commented the applicant's pain was diffuse. He noted the pain ran from the dorso radial aspect of the wrist into the forearm extensor mass and into the anterior and lateral part of the upper arm. Whilst the doctor does not say so, such a finding is not consistent with a synovitis of the extensor tendons arising from the impingement at the wrist. On physical examination Dr Viglione found no swelling and no discreet tenderness At that time he diagnosed a "chronic pain syndrome" which he said was "of sorts" and then referred the applicant to a pain clinic. However, there is no evidence adduced from the pain clinic. A 'chronic pain syndrome' is the modern euphemism for the inexplicable. 14. On 25 July 1997 the applicant saw Dr Alan Skapinker, a general practitioner, who was advising the respondent. Under the heading "Present Complaints", Dr Skapinker has this history: Mrs Karnavas remains off work. She continues to complain of severe pain at her left wrist which now extends up the arm to the level of the shoulder. She states that her arm feels "paralysed". The whole arm is painful. She claims that she is unable to use her left hand and arm for normal daily activities such as washing herself, dressing and cutting up her food. She is unable to do any of her heavy housework (she is helped by her cousin). 15. On physical examination Dr Skapinker noted that the applicant kept her left arm hanging down beside her and did not move it whilst walking or talking. The doctor's findings on examination do not reveal any objective signs of organic disability. Dr Skapinker expressed the view that there was a significant amount of functional overlay and exaggeration. He thought that the applicant appeared to have convinced herself that she would no longer be able to use her left arm. He predicted that the applicant would not respond to treatment at the pain clinic. Whether the applicant attended the pain clinic, or not, I do not know - but clearly, if she did, there was no positive response. As far as Dr Skapinker was concerned, at that time, the applicant was fit for suitable duties which did not involve strenuous and repetitive activities using the left upper limb. 16. On 12 August 1997 the applicant was seen by Dr Viglione. 12 August 1997 is the date of the doctor's report and either the applicant saw the doctor on that day or shortly prior thereto. The applicant complained to Dr Viglione of a new pain arising from the base of the left thumb at its back. She also complained of stiffness in the shoulder. Dr Viglione noted the applicant tended to voluntarily restrict movement of her left shoulder. The doctor said "a lot of the pain is dysfunctional". That is not a felicitous way of expressing the doctor's idea but the inference I draw is that the doctor thought the applicant was suffering from a condition which could not be explained merely by the pathology which he had visualised at surgery. Dr Viglione, in the same report, said that the applicant told him that she was unable to drive a car and he thought that she was pre-empting any decision about returning to work, having a negative and pessimistic outlook. 17. On 18 August 1997 the applicant was assessed by Ms Kerym Cunningham, a physiotherapist for Occusaf Pty Ltd, an accredited rehabilitation provider. Ms Cunningham noted that the applicant's performance of the required task was guarded and exaggerated as far as movements of the left arm and hand were concerned. In her conclusions Ms Cunningham stated that the applicant was "observed to be highly protective of her left arm and wrist and she reported pain with all tasks that involve use of the left arm/hand". Ms Cunningham thought that there was a "psychological component" to the applicant's presentation. It is to be noted that she also noted other "pain behaviours" including the applicant's sitting and standing tolerance for which activities ought not be affected by some pain in the left upper limb. 18. However, it must be recorded that the physiotherapist found some slight swelling of the left wrist and fingers with some discolouration of skin of the left hand and only slight muscle wasting of the forearm and intrinsic muscles of the hand. Those are objective signs of organic disability. Compared with the applicant's presentation to Dr Skapinker on 25 July 1997, to Dr Viglione on 12 August 1997 and to Ms Cunningham on 18 August 1997, must be activities recorded on film taken of the applicant on 12 August 1997. That film has not been displayed to me, for which act I am very grateful to both counsel. Mr Todd for the respondent did not seek to show it to me and Mr Ward for the applicant did not object to the tender of material which summarises the film. The film was recorded by a number of medical practitioners to be extremely long and extremely boring. That causes me to express my thanks to counsel. 19. What the film taken on 12 August 1997 shows is the applicant gripping on the lid of a large plastic rubbish bin using her left hand as she went through the rubbish in the bin. Later the applicant is observed in front of her home holding her left hand across her chest - probably in some 'Napoleonic' fashion. Later the applicant is seen leaving the house but no longer adopting the 'Napoleonic' stance. However, she was wearing a support bandage on the left hand. However, she did also carry in her left hand a packet of cigarettes. The applicant was then clearly followed to a licensed establishment where she played a poker machine. Dr Whittiker sums up the film thus: She is then noted to be seated at a poker machine and she used both hands whilst going through her handbag (on her lap) to retrieve a cigarette and uses both hands on the poker machine. However, most of the buttons on the machine being used were on the right-hand side and hence it was more convenient to use the right hand. However, whilst drinking from a glass and smoking a cigarette she was able to use the upper left, mainly the forearm and hand on push buttons for sustained periods. After a ridiculously long period of review of Mrs Karnavas doing the same rudimentary activities at the poker machine, the video thankfully ceased. 20. The same film has been reviewed by Dr John McKessar. He thought the film showed the applicant to use her left hand freely and taken with other film which he saw - on which I will comment in due course - Dr McKessar formed the view that the restricted range of movements which the applicant had when he saw her on 22 January 1999 was not in accord with the applicant's capacity. In other words what the doctor saw on the film was inconsistent with his findings on clinical examination. Initially Dr McKessar thought the applicant had some loss of efficient use of her left arm at or below the elbow in the order of 18 per cent - but the film clearly caused him to resile from that opinion. 21. The inference to be drawn is that the applicant when observed by the investigator and as shown in the film taken on 12 August 1997 is using her left hand fairly normally - and that is in complete contradistinction to the complaints the applicant made to Dr Skapinker, Dr Viglione and Ms Cunningham around about that time. On 23 September 1997 the applicant was seen by Dr Kenneth Hume, an orthopaedic surgeon, for the respondent. Dr Hume obtained a history from the applicant that she was "ambidextrous". That raises another issue in this case. 22. The applicant told me essentially that she was ambidextrous and that she used to write with her left hand but now writes with her right hand. When I look at the histories recorded by doctors, for example, the applicant initially told Dr Skapinker that she was right-handed, she then went on to tell doctors that she was ambidextrous and more recently she has told a doctor that she is left-handed. The film which I myself have seen indicates the applicant is in fact right-handed. She is a smoker and smokes using her right-hand normally and for all intents and purposes uses her right hand as right-hand dominant person normally would. I accept that the applicant told Dr Skapinker the truth and that she is right-handed and more recently she has sought to mislead everyone by saying that she was otherwise. 23. When the applicant was seen by Dr Hume she told him that she was unable to manage her own housework and she could not drive her car very far. She presented to the doctor with a support on her left wrist. When the support was removed he noticed some swelling of the fingers and wrist. Nevertheless he found it difficult to explain the restriction of movements in the applicant's left wrist and left shoulder on any organic basis. He did note that when the applicant was in the consultation room she made very little effort to use her left hand. However, Dr Hume saw the film and noted that the behaviour when she was under observation was inconsistent with her presentation to him. He thought the applicant was fit to return to her pre-injury duties and thought that the applicant's 'then' condition was inconsistent with the after-effects of the removal of the ganglion. 24. In a supplementary opinion the doctor said that he did find swelling but thought that the swelling could be related to the use of the left hand wrist support. He thought that the applicant's condition was influenced by factors "other than orthopaedic ones". He thought that there could be a "voluntary component" to the condition. That is a suggestion by the doctor essentially of "malingering" - but put in polite terms. He thought that the applicant was fit for her pre-injury duties. 25. The applicant obviously lost faith in Dr Viglione because he advised her that she was fit to return to work. The applicant sought a second opinion and that was provided by Dr William Cumming, an associate professor of orthopaedic surgery at the University of New South Wales. Dr Cumming appears to have seen the applicant on or about 30 October 1997 and subsequently on 19 November 1997. In between those two dates, Dr Cumming arranged for the applicant to have a further bone scan. In November 1997 the applicant related her pain to the superolateral aspect of her arm above the elbow - which of course is not consistent with residual extensor synovitis at the wrist. On that day Dr Cumming noted that the applicant was unable to pinch or grip, unable to undo a paper clip and was able to lift a very light object but not a small heavy piece of stone. 26. Professor Cumming accepted that the technatium scan and x-ray appearances were consistent with the residual synovitis in the region of the wrist. He went on to say this: The degree of physical problem does not explain the pain more proximally nor the severity of her symptoms or the inability to grip or pinch which today appeared to be a matter of withholding power, although pain may be a factor. 27. Again, in euphemistic terms Dr Cumming expressed the view that the applicant ought return to work. He said that "encouragement - it is vital". Because of the suggestion of a psychological component the respondent arranged for the applicant to be seen by a psychiatrist, Dr Robert Kaplan. Dr Kaplan saw the applicant on 18 December 1997. He noted the applicant made "a reluctant return to work" having attempted light duties on several occasions without success. At the time the doctor saw her the applicant was off work for two weeks. 28. Under the heading "Current Status", Dr Kaplan has this history: Mrs Karnavas complains of severe and persistent pain in the dorsum of her hand and left wrist. This is largely unremitting but can be made worse by activity. She describes it as being "like a knife cutting into her". An associated feature of the problem is the weakness of the left arm and wrist which makes it difficult for her to hold, lift up or squeeze objects. However, this problem has been responding to treatment and she concedes that her arm is generally stronger. She also has pain in her forearm and upper arm. This pain is of a different nature, but more difficult to describe. Associated with this are more dystrophic symptoms such as changes in temperature and numbness. Mrs Karnavas sleeps well but recalls waking up on several occasions with some "icy sensation in her arms". 29. Dr Kaplan attempted physical examination and noted that the applicant did not appear to be "intimidated or in discomfort by the situation". He noted the applicant kept her left arm in a fixed posture next to her side for most of the interview. Dr Kaplan made this assessment: The medical reports therefore provide no medical evidence of any organic basis for her problem. From the psychiatric point of view, there are only two diagnostic possibilities. One is that she is suffering from a hysterical condition, formally known as a Conversion Disorder. Such a condition is traditionally associated with a loss of neurological function and pain may be present but it tends to be a second or minor part disorder. Conversion Disorders are also associated with a psychological precipitant of particular meaning to the patient involved. It should be noted that a Conversion Disorder is considered to be a rare condition nowadays. The alternative diagnosis is that of malingering. In psychiatric terms, malingering is the deliberate exaggeration and production of symptoms with associated behaviour and treatment seeking, to achieve a deliberate conscious goal, usually financial recompense or exemption from obligation. In looking at the illness behaviour where conscious and unconscious factors and motivations often blur and melt into each other, exaggeration or emphasis of disability or illness for short periods of time does not in itself constitute malingering and may be (to the patient) an appropriate way of getting help and attention in a medical setting. The diagnosis of malingering, which is a serious one, should only therefore be made when there is quite convincing evidence of deliberate deception. In assessing this, I am struck by the comments of Professor Cumming on viewing the video that was taken of Mrs Karnavas. If the assessment of the video is accurate, then on the balance of probabilities I would concur that Mrs Karnavas is malingering. I certainly find very little evidence to support the diagnosis of Conversion Disorder which would exclude this. It is common ground between the parties that Professor Cumming has not seen the video that has been exposed to the applicant and the reference by Dr Kaplan to Professor Cumming is in fact a reference to Dr Kenneth Hume. 30. Film has been shown to me of the applicant's activities on 28 November 1997 and also on 29 November 1997. At that time the applicant was moving house from San Souci to Kogarah. In May of 1998 she moved from Kogarah to Engadine. The film does show the applicant wearing a bandage over the lower part of the forearm and at times it covered the wrist. However, it also shows the applicant using her left hand quite normally and without any inhibition. Accepting that the applicant is dominantly right-handed, it shows the applicant using her left hand quite normally. 31. On 28 November 1997 she gesticulated with her left hand in a very natural manner. She used her left hand to close the boot of her car - again, in a very normal fashion. She also used her left hand to drive. The evidence suggests the applicant had a steering knob fixed to her car. Steering knobs are used by persons with only one hand. The applicant clearly reversed and turned at the same time and used the hand-over-hand method of turning the steering wheel without any suggestion of a problem in the left upper limb. 32. On 29 November 1997 a pantechnicon removalist truck was parked in front of the applicant's house and clearly it was day on which the major items were being moved from the applicant's Sans Souci home in order to enable her and her family to move the Kogarah. The applicant carries a number of drawers using both hands without any problem. The applicant also carried either a double bed or queen bed mattress with the assistance of another person. The applicant walked at the front of the mattress grasping it with both hands. Her behaviour appeared to be quite normal. The applicant saw the film and it was then put to the applicant that she carried the mattress using both hands which the applicant denied using her left hand to carry the mattress. The inference I believe that she wished me to draw was she was only resting her left hand on the mattress. I am able to accept the applicant in that regard. 33. The film also shows the applicant carrying a couple of pillows in her left hand with bedding material under her left arm and other matter in her right arm. She carries them from the front of her house onto the street and to her car parked in front of an adjoining property on the same side of the street. The film also suggests that the applicant was carrying a bed base in the hallway of a house after carrying the mattress. It appeared to me that the applicant was performing with the bed base exactly the same job that she performed with the mattress. The film also shows the applicant sitting at the front of her home in the company of a young male person having a cigarette, waiting for the return of the pantechnicon truck or another vehicle in order to continue carrying out the move. 34. The film shows the applicant using her left hand to scratch her left shin and to scratch her right arm and then to scratch her left foot. It shows the applicant using her left hand quite normally. That activity is to be contrasted with the applicant's presentation to doctors where she held either her left arm in her lap or hanging down by the side of the body inert. When I look at the description of film taken in August 1997 as set out by Dr Whittiker and the film of the applicant exposed and displayed to me on 28 and 29 November 1997 I see the applicant using her left-hand quite normally and quite inconsistent with her presentation to the medical practitioners. 35. The applicant's response to the film was not at all reliable. For example, I need only again mention her denial of using her left arm to carry the mattress, when she clearly did. The applicant prior to the film's being displayed was cross-examined about her histories to doctors. The applicant would not accept that which was recorded by a large number of medical practitioners. The cross-examiner, Mr Todd, sought to carry out the traditional "gate-closing" procedure - tying the applicant down to the histories that she had given to doctors. It is to be noted that this case was specially fixed for three days and therefore one would have been alive to the possibility of the case being lengthy and of there perhaps being film of the applicant's activities. The applicant was at pains in being cross-examined to down-play or deny outright the severity of symptomatology of which she complained to doctors. I did not form a favourable impression of the applicant at all. I am unable to accept the applicant as an accurate or reliable or honest witness. 36. That leads me directly to accept the diagnosis of Dr Kaplan that the applicant was in fact malingering. Dr Hume thought the film showed the applicant behaving quite normally. The film which I have seen clearly indicates the applicant behaving quite normally. There is no medical evidence of a Conversion Disorder - certainly Dr Kaplan could find "very little evidence" to support that diagnosis. On the balance of probabilities, I accept that the applicant has been consciously exaggerating the symptoms for some reason - whether it be for financial gain, whether it be in order to avoid having to work, whether it be to stay at home in order to care for her husband, I do not know. However, I am persuaded that the applicant has been malingering. The question then becomes whether the applicant has merely been inventing symptoms or exaggerating them. 37. On 7 January 1998 the applicant came under the care of Dr Mahoney. The first investigation Dr Mahoney arranged was an ultrasound of the left distal forearm and wrist. That revealed no abnormality. No ganglion was found and there was no evidence of acute or chronic tendonitis and according to the radiologist all extensor and flexor tendons appeared to move smoothly. That would belie the diagnosis of continuing extensor synovitis. 38. On 28 January 1998 the applicant was seen by Dr Kirychenko for the respondent. Dr Kirychenko appears to have been impressed by radiological investigations. X-rays performed of the applicant's hand and wrist on 4 July 1997 showed there was some osteopaenia, an osteoporosis - but a more recent examination on 16 January 1998 showed those conditions to have resolved. Dr Kirychenko thought the applicant's condition was improving and he expected it to resolve completely. At that time the applicant was undergoing a attempt to return her to work. 39. According to the history obtained by Dr McKessar the applicant underwent a rehabilitation program between 8 December 1997 and 2 February 1998. The applicant clearly believed that the restricted duties provided to her were beyond her capacity. She cited as an example having to clean vegetables and, in particular, pumpkin. However, it is to be recalled that this was not being done for any commercial purpose. This was the applicant preparing food for a client of the Home Care service in the client's own home - therefore, the equivalent to just preparing vegetables for a normal family meal, if not a meal for one person. To suggest that preparing vegetables for a normal family meal was arduous or involved too much stress on the non-dominant limb is not something that I can accept. 40. Dr Mahoney arranged for the applicant to undergo an MRI scan after seeing her on 24 April 1998. The MRI scan was performed on 5 May 1998. That showed some increased signal near the attachment of the triangular fibro-cartilage to the ulnarfovea which the radiologist commented presumably indicated some low grade inflammatory change. The MRI also suggested minor swelling of the extensor carpi ulnaris tendon at the level of the styloid process of the ulna, thought to indicate some low-grade tendonitis. The MRI scan is objective evidence of some persisting extensor synovitis of the extensor carpi ulnaris. 41. I have another series of medical reports commencing early in 1999. The first is from Dr John Burvale, a psychiatrist, retained by the respondent. Dr Burvale under the heading, "Illness Belief" said this: Miss Karnavas, when asked, said she believed she had reflex sympathetic dystrophy and said she had read all the books on it. She said her general practitioner, and an occupational therapist also believed she had reflex sympathetic dystrophy. She said that she liked to work and had very much enjoyed her home-care work looking after other people, but due to her hand, would not be able to work again. 42. The applicant has told doctors from time to time that she is suffering from a discolouration in her left upper limb saying that at various times red, white or blue, 'blue' being otherwise described as being purple. The only medical practitioner to find any form of discolouration was in fact the physiotherapist, Ms Kerym Cunningham when she saw the applicant on 6 August 1997. However, no-one since that time has found any discolouration or any other trophic change indicative of reflex sympathetic dystrophy or as is also termed Raynaud's syndrome. 43. Dr Mahoney offered that diagnosis based merely on the applicant's complaints to him and not on any findings on clinical examination. Clearly by early 1999 the applicant had been reading up on the condition and one could then expect that she might be able to tell practitioners of the symptoms of it - although none of the practitioners found it. Radiological investigations in 1997 exclude reflex sympathetic dystrophy as a diagnosis. I am not persuaded on the balance of probabilities that the applicant ever had reflex sympathetic dystrophy - the significance of the history recorded by Dr Burvale that the applicant had been 'learning up' about the condition which might explain why she could tell doctors about it. 44. On physical examination Dr Burvale noted that the applicant exhibited illness behaviour at the start of interview, walking with her arm down then sitting, groaning, sighing and indicating pain in general. It was noted the applicant's daughter had to pack the applicant's arm. That presentation from Dr Burvale is to be contrasted with the film taken in 1997 which showed the applicant behaving quite normally. I have no hesitation in finding that the applicant feigned her presentation to Dr Burvale. However, Dr Burvale did note that the applicant's left hand was a little swollen - he thought in keeping with walking with her hand down and with disuse. On my view of it, the applicant does not keep her hand down and was using it normally and therefore the suggestion of disuse cannot be accepted. It appears therefore that there was some swelling at that time which in my view is consistent with some persisting extensor synovitis. 45. Dr Burvale did not think that the applicant was suffering from any defined psychiatric disorder. He went on to say this: The question of conscious and unconscious factors is always difficult to resolve and Dr Kaplan in his report has tended to address these issues, and I agree with the comments he made. However, I have not had the benefit of seeing the video in question, but if a video has indeed been obtained which shows Mrs Karnavas using her left wrist normally, then she is malingering. 46. Well, I have seen the video, and it does show the applicant using her left wrist normally and I have no hesitation in finding that she was malingering. However, the finding of some swelling by Dr Burvale is consistent with some minor ongoing problem. 47. Shortly thereafter on 22 January 1999 the applicant was seen by Dr John McKessar. On clinical testing Dr McKessar thought that the applicant had minor sensory disturbance in the ulnar nerve distribution in the hand both on the dorsum and the palmar surface of the little and ring fingers. As I have said earlier there was a finding of ulnar neuritis made shortly after operation by Dr Viglione and one could accept that some irritation of the ulnar nerve caused by persisting synovitis. It appears to me that the ulnar neuritis in minor degree was persisting when the applicant saw Dr McKessar on 22 January 1999. 48. Dr McKessar thought the applicant had had a form of dystrophy response to the surgery but he thought that the majority of that response was now over and done with and thought that the applicant ought gradually re-gain hand function. Of course the applicant had re-gained a substantial amount of hand function well prior to that time as is shown in the film. Dr McKessar, in a subsequent report, comments upon the observations and clearly - although putting it in polite terms, pointed out in his view that the applicant had attempted to "gull" him on examination. However, it is clear that there was some distinct ulnar neuritis when the applicant saw McKessar. 49. On 10 April 2000 the applicant was seen by Dr Ross Whittiker, consultant rheumatologist. In my view Dr Whittiker's findings on examination are crucial. Before going to those findings I should point out the history that the applicant gave Dr Whittiker. In the report Dr Whittiker says this: I asked Mrs Karnavas what she does with her left hand and she stated to me "I try to use it .... practically nothing". She will occasionally use the left upper limb in cooking or in hanging out washing (she now manages small amounts of clothes). 50. Clearly the history which the applicant gave to Dr Whittiker is quite inconsistent with the normal use displayed in the film in 1997. When the doctor sought to physically examine the applicant she held her left upper limb in her lap and did not use her wrist in pushing back on the couch - although that is to be contrasted with what I saw myself in a film taken on 28 and 29 November 1997. 51. Dr Whittiker's findings on examination of the upper limbs and shoulder girdles were these: The shoulder girdles and elbows were unremarkable. There were multiple scratches noted on both forearms and Mrs Karnavas informed me that she frequently scratched herself. There was an equal amount of callous formation noted on both hands, there was no muscle wasting of the left hand and she had longer finger nails in both hands with equal amounts of dirt under all of the fingernails. There was a well-healed scar over the dorsal aspect of the left wrist. Signs that the left wrist were inconsistent with significant variations noted throughout the examination. There was initially a great deal of tenderness reported over the dorsal aspect of the wrist. However, distracted, this tenderness did not appear to be present. Similarly, on flexing the wrist, there was reporting of a lot of dorsal pain and restriction in movement. However, when the wrist was flexed whilst assessing elbow flexion, there was no restriction nor any report of pain. I consider the left wrist had a full range of movement, there was no synovitis and there were no features of reflex sympathetic dystrophy either in acute or chronic phase. There was some tenderness over several metacarpophalangeal joints that moved fully and there was no synovitis and indeed this tenderness did not appear to be present later in the examination. In summary, I could find no abnormality in the left wrist or hand. There was certainly no evidence of inflammatory joint disease. If Mrs Karnavas has had some synovitis documented on previous bone scan or MRI scan, it must be minor and I would be surprised if such a small amount of synovitis would be causing such a great amount of pain and disability. Dr Whittiker summed up that he could find no evidence of any ongoing pathology in the left wrist or hand. 52. The other medical evidence since that time of course are the findings of Dr Mahoney. However I have closely read Dr Mahoney's reports and they display no objective evidence of any continuing organic disability. The doctor's findings on examination do not represent any objective evidence of persisting synovitis. Because of the findings Dr Burvale and Dr McKessar in 1999 I am persuaded that there was still some minor persisting synovitis in the left hand and some persisting on the right. However, when the applicant was seen by Dr Whittiker on 10 April 2000 there were no objective signs of organic disability. Dr Whittiker clearly sought to establish whether there was any synovitis and could find no evidence of it. 53. As I said, I accept that the applicant's ganglion did cause an extensor synovitis and perhaps an ulnar neuritis in her left wrist. However, such condition appears to have gone by 10 April 2000. I accept that between 4 May 1998 to which date weekly payments of compensation were made and 9 April 2000 the applicant had some minor persisting extensor synovitis and ulnar neuritis in her left upper limb. I am not persuaded that any pathology remained from 10 April 2000 of some synovitis of the left wrist and ulnar neuritis. 54. I accept the applicant did have partial incapacity for work and in particular that she should not be performing activities such as cleaning bathrooms on average three times a day. I accept therefore that the applicant was partially incapacitated during that period. The question is what work objectively could the applicant have done during that period. 55. The applicant herself has looked for no work and does not believe she could do any work at all. Clearly enough I am able to accept her in that regard. Objectively, the applicant could do work that did not require repeated, forceful, repetitive work using her left upper limb. There is no reason why the applicant could not work as a shop assistant in for example a clothing shop or as a sandwich hand at a sandwich shop. She only used to work for the respondent for 24 and-a-half hours on average per week and there is no reason objectively why she could not work as a shop assistant, a sandwich-hand or indeed as a receptionist at a club during that period of the minor affliction that she objectively had during the period of partial incapacity. 56. I accept that the applicant had during the period the ability to sell her labour at the rate of $10 per hour and her ability to earn during the period of partial incapacity was $245 per week The probable weekly earnings but for injury have been at all material times $263 per week. The mathematical difference is $18 per week. Such is the award that I propose to announce during the period of the applicant's partial incapacity. Consistent with my finding that the applicant had completely recovered by 10 April 2000 I am not satisfied on the balance of probabilities that the applicant has any permanent loss of efficient use of her left arm either at or above the elbow or below the elbow or in the hand. 57. I have enquired of the representatives of the parties whether any further reasons for judgment are required. I am told that none is so required. 58. For those reasons I make an award for the applicant: For $18 per week from 5 May 1998 to 9 April 2000 pursuant to s 40. 59. I order the respondent to pay the applicant's hospital, medical and like expenses pursuant to s 60 during that period for treatment of her left arm below the elbow only. 60. I order the respondent to pay the applicant's costs. 61. In relation to the applicant's claim under s 66 and s 67: I make an award for the respondent. 62. I certify an additional conference, $200. Mr M Ward instructed by Xenos Jordan appeared for the applicant. Mr I Todd instructed by P W Turk & Associates appeared for the respondent.