Tafaese v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2013] NZACC 181 ACR 632/12 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN ANDREW TAFAESE Appellant AND ENSATI CORPORATION Respondent Hearing: 22 April 2013 Appearances: M Bagnall for Mr Tafaese B Tomkins for the Corporation Judgment: 26 June 2013 JUDGMENT OF JUDGE RODERICK JOYCE QC Reason for appeal [1] On 3 December 2008 Mr Tafaese suffered an accident at work when a piece of metal cut his right hand in the web between his fourth and fifth fingers. The Corporation gave him cover on account this accidental personal injury. [2] On 14 October 2011 Mr Tafaese (through his GP) made a claim for mental injury arising out of a pain disorder but on 8 December 2011 Wellnz (accredited by ACC) advised him that cover for a Somatoform Pain Disorder was not approved. [3] Mr Tafaese subsequently sought a review of this determination which was initially convened on 2 July 2012. The hearing was concluded on 31 August 2012 and the reviewer's decision issued on 27 September last year, [4] That decision dismissed the application for review on the basis that the Somatoform Pain Disorder did not arise as a result of the covered injury. It is from that decision that Mr Tafaese has subsequently appealed. Background [5] I note the following; On 3 December 2008 Mr Tafaese injured his right hand at work the injury particularly involving laceration in the fourth web space and thereabouts. On 5 March 2009 Mr Robert Rowan, orthopaedic and hand surgeon, reported that the laceration was well healed and he could not find any anatomical reason why Mr Tafaese was apparently unable to oppose the thumb and little finger. At that point Mr Tafaese was complaining of pain radiating up his arm of which Mr Rowan made this comment; He has a problem similar to Complex Regional Pain Syndrome with some pain but also loss of normal functional use of the fingers. By August 2009 Mr Rowan had reported that the hand had improved a lot and could now be used much more freely, but Mr Tafaese was complaining of shoulder pain at night of which Mr Rowan now said: It is likely the degree of subacromial impingement (is) causing his symptoms On 24 September 2009 Mr David Hartshorn, specialist occupational physician, noted (in what to every appearance is a very careful report) that an ultrasound scan had identified some bursal thickening in the shoulder but no other abnormality, although Mr Tafaese was describing persistent pain throughout the right upper quadrant - pain that was centred about the web space between the little and ring fingers of the right hand from where it radiated into the posterior aspect of the right arm up to and into the shoulder in its posterior aspect and the upper back. Dr Hartshorn's impression was that, given Mr Tafaese had developed persisting pain following a relatively minor injury, the best immediate explanation for that, given the pattern of symptoms, was a centrally mediated pain disorder. Although he did allow the possibility that cervical spine pathology was an explanation for the more proximal symptoms, there did not seem to him to be a particularly strong case for that. Speaking of the pain disorder (and in terms ever so frequently heard or read in this Court) he said: Whilst the precise pathogenesis and causation of this type of pain disorder is incompletely understood it is generally accepted that should the condition arise as a result of a specific and identifiable injury that the pain disorder is seen as a complication of the original injury. He did however consider that there should be a plain x-ray of the base of the right thumb and wrist to exclude other pathology as contributing the functional difficulties in the right hand - the still persisting problem of opposing the seemingly affected digits in an ordinary way. Dr Hartshorn wrote again on 3 November 2009 after seeing x-rays. From those had been identified mild to moderate degenerative changes at the right thumb which, he said, might well be a significant contributing factor to the limitation of thumb opposition experienced by Mr Tafaese. He went on to say that when he took this together with the biologically implausible idea that an injury to the web space over the ulnar part of the hand could result in limitation of thumb opposition, the problem most likely related to the degree of degenerative change noted on the x-ray, but with some contribution from the illness and injury beliefs of Mr Tafaese. But, considered Dr Hartshorn, that did not go to explain the more widespread pain experienced by Mr Tafaese which was likely to represent a post-traumatic centrally mediated pain disorder. It appears that Mr Tafaese had been referred to the Hutt Valley DHB Pain Clinic, that in September 2009 or thereabouts, for a doctor with the Unit reported on 18 November 2009 that Mr Tafaese seemed significantly better then than had been so two months before and that the plan was to cut down on medications he had been taking for pain relief and thus the facilitation of sleep. The same doctor reported again on 16 December 2009 in terms including that it was his belief that the majority of Mr Tafaese's problems arose from a neurogenic type pain problem affecting the whole of his right upper limb. By 23 June 2010 an IMA had been arranged. Dr Blair Christian, specialist in occupational and environmental medicine, then reported in terms including this: There has been concern about a possible Complex Regional Pain Syndrome affecting the right hand and also possibly the shoulder, This would appear to have been more in evidence early on, with actually there being now very little objective evidence for a Complex Regional Pain Syndrome ... if there was an initial Complex Regional Pain Syndrome affecting the hand this has certainly very much improved if not resolved. Turning to the thumb opposition programme he then wrote: It is highly likely that there is osteoarthritis of the right thumb relating to that difficulty of the right thumb opposing the little and ring fingers, as this does not have an otherwise plausible relation to the minor laceration between the little and ring fingers'. And then turning to the shoulder, this: I am not convinced that the shoulder problem is related to a complex Regional Pain Syndrome secondary to the right hand injury. To my mind the shoulder problem does appear to be more likely a local musculoskeletal condition, and on the basis of the The degree of symmetry with Dr Hartshorn's views will be noted. ultrasound would seem to be related to subacromial bursitis. I note that even before an ultrasound was undertaken Mr Rowan felt that the shoulder symptoms were likely related to subacromial impingement. If correct then this would not be clearly related to the initial hand laceration injury. In light of the possibility that communication difficulties (an interpreter being required with Mr Tafaese) had led to an underestimation of pain issues he did however say that a Complex Regional Pain Syndrome remained a differential diagnosis. His recommendation nevertheless was for a referral back to an orthopaedic surgeon as a steroid injection to the subacromial bursal region would potentially be very useful in terms of relief of pain and identification of the source of the problem. On 7 December 2010 Mr Tafaese was seen by Mr Peter Welsh, orthopaedic surgeon, in the company of a Samoan speaking interpreter and the indications are that Mr Welsh had been supplied with a comprehensive dossier of reports and materials prior to the appointment. Mr Welsh arranged for further x-rays - these of the cervical spine - which he reported as showing a significant cervical osteoarthritis through the spine from C3/4 to C6/7. He summarised his views in this way: The diagnosis of the current right shoulder girdle and arm complaint is one of referred pain from the cervical spine associated with cervical osteoarthritis. There is not seen to be a problem within the shoulder itself for range of movement is satisfactory and there is no cuff dysfunction. There is not seen to be any relationship whatsoever between the injury incurred, a laceration to the right hand, and the current pain complaint relating to the referred pain from the neck, It is seen that the original injury for which he was treated has healed completely without complication or other injury problems. His hand manipulative difficulty appears to have a functional aspect. It was obviously this report that led to Mr Tafaese being advised on 17 January 2011 that: From the medical information obtained it has been established your ongoing symptoms in your right shoulder are not a result of the injury for which you have cover. Mr Welsh, orthopaedic surgeon, reviewed you on 7 December 201 1 to clarify the cause of your right shoulder pain. Mr Welsh determined that the pain in your shoulder is referred pain from your cervical spine associated with cervical osteoarthritis and is not linked to the aceration you sustained on 3 December 2008, It was upon this basis that Mr Tafaese was advised that further entitlements had been cancelled, weekly compensation included, with effect from 17 February 2011. Then on 14 October 2011 a further claim was submitted on behalf of Mr Tafaese. This was for somatoform pain on the right side, On 25 October 2011 Mr Nigel Willis, orthopaedic surgeon, reported to John Miller Law concerning Mr Tafaese's attendance on him with an interpreter that day. Judging by Mr Willis's "document list" he had been provided with a very comprehensive dossier of pre-existing medical and associated materials, Particularly significant elements of his report of the examination included that; Casual examination throughout the course of the history taking indicated that he appeared to be sitting in the chair with some discomfort, frequently stretching his neck and upper back to improve his comfort level. I observed that he used his right hand freely for all activities, however. It was interesting to note that he used it in a manner that added emphasis to what he is saying, i.e. he used it to gesticulate and there did not appear to be any discomfort or weakness with these manoeuvres, I observed that he was quite comfortable extending the wrist, moving the fingers, making a full fist and abducting and adducting the digits and there did not appear to be any restriction or loss of function. I also observed key grip and pinch grip and he was able to lean comfortably on the right shoulder. ... And later: ... examining the wrist, passively there was a full range of movement. There was also a full range of passive movement of all digits. When asked to perform specific testing of the wrist extensors, flexors, grip strength and opposition, he demonstrated considerable inconsistency. This dysfunction did not reflect the observations made earlier; for example, when asked to grip two fingers into the palm of the hand, he would grip with the thumb and index finger and leave the middle, ring and little fingers to flail. It was only after repeated encouragement that he would perform these manoeuvres and he did not perform them to the same degree that was observed earlier ... Turning to the imaging he noted that x-rays of the hand revealed early osteoarthritis of the CMC joint of the thumb and x-rays of the neck showed significant osteoarthritis changes at all levels, but principally at the level of C5, Co and C7 with disc space loss, osteophytes and facet changes. Ultrasound indicated a degree of subacromial bursal inflammation, but with the rotator cuff being intact. Under the heading "assessment" Mr Willis wrote: I believe this gentleman has sustained a laceration of the fourth web space without neurological deficit ... it would appear that he has perhaps developed a low-grade form of pain syndrome as assessed by some of my orthopaedic colleagues, although there is no evidence of pain syndrome present today, There is a significant functional component to his hand problem, i.e. there is an inconsistent pattern of movement when observed casually and under direct instruction. There are findings consistent with rotator cuff impingement as well as those consistent with significant cervical spine degenerative disc I believe this gentleman's neck and shoulder problems are not at all related to his hand problem. The hand problem is functional in nature and there is no obvious pathological process present that would account for the lack of function that he both complains of and demonstrates. The combination of problems renders him incapable of working at present, however. Responding, obviously, to specific questions that had been put to him he finally wrote that the diagnosis is of: 1. Functional disability of the right hand, possibly due to low- grade pain syndrome; 2. Low-grade rotator cuff impingement syndrome; 3. Cervical spondylosis; 4. The cause of the hand function problem is a direct consequence of his injury, but it is not based on any pathological process. The right shoulder problem and right neck problem could only have been present prior to the injury; 5. The functional loss of use of the right hand is a direct consequence of the accident; however, the other upper limb problems cannot be associated with the accident; 6. Related non-injury conditions include cervical spine degenerative disease and right rotator cuff disease 7. I believe the significant contributing problem to this gentleman's presentation is in fact his cervical spine and rotator cuff problem. I think if he could separate these from his hand problem in his own mind, significant improvements would be achieved. He also requires significant retraining of the upper limb, probably using high-end occupational therapy input and from people experienced in this type of hand dysfunction. 8. I do agree with Mr Welsh that there does not seem to be any relationship between the injury and the pain that is referring from the neck. The reason for this is that there was never any neurological damage at the time of the indexed injury, There were significant degenerative changes seen in the neck and also changes seen within the shoulder. It may be worth considering formal assessment of the neck and rotator cuff problems together with management; however, because these are not part of the original injury complex, this obviously poses issues with respect to who would fund these investigations and any treatment that might be recommended. On 8 December 2011 Mr Tafaese was advised that his most recent (mental injury) claim had been declined because: On review of the information relating to your claim, including clinical notes from your GP from October to December 2011, a clear link between the accident and the injury cannot be established. By definition, somatoform disorders are not accompanied by physical findings or a medical illness that explains symptoms. There was also no clinical evidence from your GP or pain specialist to confirm the presence of a pain syndrome. As you may recall, orthopaedic surgeon, Mr Peter Welsh, noted that there is no evidence of a pain syndrome, and hat the pain you are experiencing is as a result of degeneration to your neck. This cannot be considered as related to the injury to your hand. On 11 June 2012 Mr Tafaese (once again accompanied by an interpreter) was seen on the reference of John Miller Law by Dr Gil Newburn, neuropsychiatrist for the purposes of the provision of a report on account the then upcoming review hearing. Dr Newburn acknowledged the presence of subacromial bursitis, mild osteoarthritis in the right first MCP and CMP joints and osteoarthritis of the cervical spine, but his primary diagnosis was of: 1. Major depressive episode. 2. Pain disorder associated with both psychological factors and a general medical condition. 3. Undifferentiated somatoform disorder. He said that prior to the accident Mr Tafaese: ... had a long history of .. work in New Zealand without any evidence of abnormal response to injuring events, avoidance of responsibilities, or indeed of anything that has predisposed him to abnormal behaviour, nor the use of symptoms sustained from injury or illness to avoid his vocational responsibilities. Dr Newburn was inclined to discount the idea that osteoarthritis was responsible for the problems of digital flexibility and wondered whether such might arise from some as yet undiagnosed physiological anatomical process, or as a reflection of an undifferentiated somatoform disorder either associated or not with the injuring event. Turning to the right upper limb problems - the pain in that locality - he said he would presume that there needed to be some evidence of specific radicular symptoms and he was not aware that this had been demonstrated. He noted that Mr Tafaese did not present with the characteristic autonomic nervous system changes often seen with chronic regional pain syndrome, but yet he saw the possibility of altered central nervous system processing of the nociceptive stimulus as the most likely explanation for enduring pain symptoms that were a post accident manifestation. He thought it possible that Mr Tafaese did suffer from an undifferentiated somatoform disorder of his right hand (the apparent inability to oppose his thumb with fourth and fifth fingers) but said that it was equally possible that altered modulation of neural signals to his brain from the hand influenced his experience of this event and were a major factor in altered function that might track back to the original injury. He accepted that there were also psychological factors at work which was why his diagnosis of pain disorder was one associated with both those and a general medical condition. He went on to note that (as the Court is well aware) depression is a very common consequence of pain disorders and that given his and the family history it was highly probable that this had occurred as a consequence of the pain disorder. He sought to summarise his position by saying that: Mr Tafaese presented with a laceration to his right hand in December 2008. There was no prior evidence of any abnormality, medically, surgically or psychiatrically. There is no evidence of abnormal psychological reaction to any injuring event, and his work history was one of reliability and sustained effort. Following the injuring event he developed significant symptoms which have endured to the present, and are aggravated by stress, tension and depression, which is now present consistently. The probable explanation of his symptoms relates to altered central modulation of pain signals, with secondary changes arising from this, and a possible alteration in experience therefore of other what would normally be minor issues. His symptoms arise entirely from the original injuring event, and there was no evidence for any other factor to explain them. Mr Welsh commented on Dr Newburn's report in a letter of 12 July 2012 saying: I recognise that an original file review on the [" April 2010 rendered without having seen Mr Tafaese left me with the impression that he was troubled by a chronic regional pain syndrome subsequent to laceration injury encountered on 3'd December 2008 in the course of his work at AE Tilley Limited Personal review and clinical examination on the 7" December 2010 served to totally dispel this impression. There was seen excellent recovery of hand function, no feature of hand lysfunction or neuropathic pain reaction, Complaint at that time vas associated with referred pain from the cervical spine to the shoulder region and upper arm, Dr Newburn in (his) recent review notes the pain radiating from the shoulder down to the upper back - a clear pattern of pain referral from the cervical spine, This is not radicular pain from direct nerve compression. This is not neuritis. This is referred pain associated with cervical spondylosis particularly on the right side well demonstrated in the xrays of 7" December 2010. Or Newburn - in paragraph 5 page 5 - demonstrated no clear difference in colour between the right and left hands or arm. Paragraph 3 page 8 "Mr Tafaese does not present with the characteristic autonomic nervous system changes seen with a chronic regional pain syndrome", There was not demonstrated at the time of review as there had not been also when seen by myself, indication of neuropathic pain disorder, Therefore to speculate in the absence of stigmata such (as) the possibility of central neural sensitisation as potentiating ongoing problem in the presence of a clearly established organic process to explain his continuing pain experience is implausible. [6] John Miller Law referred these observations to Dr Newburn who, responding on 29 January 2013, wrote in terms that in his view: Mr Welsh did not appear to him to have worked with a history focused on the onset of the pain and thus appeared to pay attention simply to that in the right shoulder and its possible relationship to the cervical osteoarthritis. He recognised (as, he said, he had too) that Mr Welsh had not observed any significant autonomic nervous system changes but that simply meant that the particular type of chronic regional pain syndrome, one referred to as reflex sympathetic dystrophy, was absent. That had quite a different pattern from increased central nervous system representation of the nociceptive stimulus pain associated with which was more likely to be related to exacerbation in the presence of other psychological factors and might also sensitise the individual to an increased pain experience in the presence of other nociceptive stimuli. Thus "there is a dynamic interaction between the original injury, the nervous system response to that injury, and the subsequent nervous system responses to other processes"; and Addressing the central nervous system responses to stimuli, and the relationship between these responses and emotional, cognitive, behavioural and social factors remained areas of expertise for the psychiatric/neuropsychiatrist. It was possible that Mr Tafaese had cervical osteoarthritis that caused him symptoms but this had to be viewed against a background of an earlier injuring event which had caused enduring symptoms and potentially, if osteoarthritis ones were present, exacerbated those. Case for Mr Tafaese [7] Ms Bagnall submitted that the Corporation had failed in its investigative role under ss 54 and 56 of the Act to facilitate a psychiatric assessment for Mr Tafaese in order properly to assess his condition. It was in any event her submission that, in the form of Dr Newburn's report, there was an Axis I mental injury diagnosis entirely injury related and which currently affected Mr Tafaese significantly - thus the Corporation's decision to decline cover for a mental injury was wrong and should be quashed. [8] Elaborating upon her submissions she noted or said that; Mental injury was defined in s 27 as meaning "a clinically significant behavioural, cognitive, or psychological dysfunction" and Brookers' commentary at AC 27.02A proposed that: In order to be "clinically significant" it is necessary in evidence to use reports from people of a suitably qualified nature e.g. psychiatrists or psychologists to diagnose the mental injury. The psychological nature of the report can be used as a tool to establish the mental injury as arising from a physical injury as seen in section 26(c). Before making its decision the Corporation had sought no such evidence, determining the absence of a work related mental injury without first seeking advice from the proper quarters, Counsel particularly criticised the Corporation for apparently ignoring: That as early as March 2009 Mr Rowan noted a problem similar to a Complex Regional Pain Syndrome. In September 2009 Dr Hartshorn had said that the ongoing incapacity was due to a centrally mediated pain disorder linked to the hand injury. In December 2009 Dr Berry had said that the majority of Mr Tafaese's problems were due to a neurogenic type pain affecting the whole of his right upper limb. In June 2010 Dr Christian was prepared to recognise that a Complex Regional Pain Syndrome was at least a differential diagnosis - and subsequently a subacromial shoulder injection, which he thought might rule out the possibility of a link between the injury and the shoulder pain, was carried out with no improvement in pain. In October 2011 Dr Willis said that Mr Tafaese might have developed a low-grade pain syndrome. Dr Newburn's opinions were then rehearsed including the diagnosis of a major depressive episode and the rationale for that - indeed his views (as they related to his diagnostic spectrum) were examined at length. [9] In the end Ms Bagnall submitted that: Mr Tafaese needs treatment and rehabilitation to help him cope with the mental injuries he has suffered as a result of his injury. Instead of being forced to fight with ACC, who have not properly investigated his claim, he should be focusing on overcoming his injuries and rehabilitating. It is submitted that the ACC decision should be quashed and substituted with a decision to cover Mr Tafaese for his concerned diagnoses of Axis I Pain Disorder and Depression. Case for Corporation [10] The Corporation, through Mr Tompkins, contested the assertion that it had not adequately investigated the claim and argued that Mr Tafaese was not entitled to cover for a mental injury because: [a] In terms of the best expert opinions available to the Court he was not in fact suffering from a mental injury; and [b] The pain he experienced was wholly or substantially caused by a gradual process deterioration that was not covered. [1 1] Mr Tompkins identified the contest, in terms of the expert evidence, as being one where Dr Newburn concluded that there was a Pain Disorder caused by the injury whereas the other specialists, generally speaking, were either equivocal or concluded that the pain was due to pre-existing degenerative changes. [12] He particularly submitted that: Dr Newburn had proceeded on the flawed assumption that "there is no evidence for any other factor to explain [the appellant's pain responses to stimuli]". Flawed because both orthopaedic surgeons had opined that degenerative changes in the cervical spine and shoulder were an available and probable cause of the pain and degenerative joint pain symptomology was not something upon which Dr Newburn was qualified to advise; anyway Dr Newburn's opinion was "legally flawed" because he eliminated alternative explanations for the pain (some of which were not within his field of expertise) and then concluded that because the pain began following the injury, and no other obvious explanation was left, a Pain Syndrome must be the cause'; and ~ This was tantamount simply to equating a temporal correlation to causation; and Dr Newburn's reasoning was medically flawed; this insofar as, incorrectly, he said there was no other factor to explain the pain responses when Messi's Welsh and Willis had plainly and convincingly provided evidence to the contrary. [13] The Corporation also placed reliance on the earlier opinions of Mr Rowan and Dis Hartshorn and Berry, Counsel noted that, following the first objective investigation in the form of x-ray, Mr Rowan had changed his initial opinion. And to the extent that Dis Hartshorn and Berry might have been equivocal in their opinions, those had been overtaken by the better informed and closely reasoned opinions of the orthopaedic surgeons. [14] Mr Tompkins accepted that orthopaedic surgeons were not experts in the field of pain syndromes, but that was not the point. The issue on appeal was the link, if any, between the pain and the injury and the two orthopaedic surgeons were qualified to give expert views as to both the presence of degenerative changes and the symptoms of them in the form of pain. [IS] All Dr Newburn did was to suggest an alternative source for that - one which, ipon examination, did not carry the weight that should be given the orthopaedic point of view. [16] That led to these consequences: [a] The orthopaedic evidence convincingly undermined the diagnosis of a mental injury by providing an alternative, and rationally preferable, explanation for the pain. [b] In light of that evidence, the mental injury diagnosis was recognisably as neither conclusive nor convincing; and [c] It was demonstrable that any significant pain was caused by pre-existing degenerative change rather than by personal injury; so that [d] Cover was excluded by s 26(2). [17] That the injuring event was temporally correlated to the pain's emergence (might even have been the "trigger" for the underlying degenerative condition to become symptomatic) was not enough to gain Mr Tafaese cover . [18] Mr Tompkins did not seek to put in doubt the presence of the major depressive episode - his submissions simply was that that was attributable to the shoulder and back pain which in turn, on the weight of the best medical evidence on appeal, was of degenerative origin. Discussion [19] I propose to begin, as it were, at the end by referring to the evidence of Dr Newburn. It will be recalled that he diagnosed a major depressive episode; pain disorder associated with both psychological factors and a general medical condition; and an undifferentiated somatoform disorder. [20] I immediately observe that upon a complete and careful reading of Dr Newburn's report I am left with the clear impression that, to a degree that is "There were no pain symptoms b rehand, the symptoms followed a specific injuring stimulus, and they have endured in similar manner since" MacDonald y ARCIC [2002] NZAR 970 HC; Hill v ARCIC (189/98); Cochrane v ACC [2005] NZAR 193 (HC) significant for the purposes of this case, it is unduly burdened with speculative observations. [21] Beyond those general comments, I note that he did accept that Mr Tafaese had not presented with characteristic autonomic nervous system changes of the kind often seen with chronic regional pain syndromes. He then speculated (and I count that to be the right word) about possibilities of altered central nervous system processing being a sufficient explanation for enduring pain syndromes. [22! As has also been noted, he also raised as possible an undifferentiated somatoform disorder of the right hand, but then as equally possible that altered modulation of neural signals to his brain from the hand could be an influencing element that might track back to the original injury. [23] All in all, I did not find his identification of a causal nexus between the index injury and pain disorder problems at all persuasive even be that, upon the history he took, this was the first time after many years in the work force that Mr Tafaese had reacted in an out of the ordinary way. [24] To my mind Mr Welsh's measured commentary on Dr Newburn's report is instructive and persuasive. And it will be remembered that, at the start, he himself had thought that there might have been a chronic regional pain syndrome attributable to the accident. [25] That was the impression he had after reviewing the records originally put before him but, following personal review and indeed clinical examination, he completely departed from that idea - indeed said that that review and examination had served totally to dispel his original impression. (26] More particularly he said that there had been excellent recovery of hand function - there was no feature of hand dysfunction or neuropathic pain reaction; the real pain complaint at the time of his examination was associated with referral from the cervical spine to the shoulder region and upper arm. [27] Dealing here with Dr Newburn's note of pain radiating from the shoulder down to the upper back, he (Mr Welsh) indeed spoke of this as a clear pattern of pain referral from the cervical spine. It was not radicular pain from direct nerve compression. (Dr Newburn had at one point touched lightly on radicular pain issues). It was not neuritis, it was, said Mr Welsh: Referred pain associated with cervical spondylosis particularly on the right side well demonstrated in the x-rays of 7 December 2010. 28] Mr Welsh also picked up Dr Newburn's concession that Mr Tafaese had not presented with the characteristic autonomic system changes seen with a chronic regional pain syndrome, then commenting that that had likewise been the case when he himself had seen Mr Tafaese, [29] Thus in forthright terms he said: Therefore to speculate in the absence of stigmata such (as) the possibility of central neural sensitisation as potentiating ongoing problem in the presence of a clearly established organic process to explain his continuing pain experience is implausible. (30] I remain conscious in all this that Dr Newburn was in turn given the opportunity to comment on Mr Welsh's review of his report and I have not overlooked what he said when he wrote on 29 January 2013 - see my summary at [6] above. [31] But nothing in that causes me to think other than that in, this rather unusual case, it is Mr Welsh who, in significant measure, comes up with an explanation for and of Mr Tafaese's problems that is far more persuasive than, and I mean no disrespect, the distinctly more nebulous commentary of Dr Newburn. [32] I add that in reaching my conclusions on this appeal I have of course considered the other medical evidence and have thus remained conscious of earlier suggestions of the presence of a pain disorder of some kind that might be related to the index injury. [33] However, in my consideration and when carefully read, none of those reports can be read as clearly supporting such an outcome and it has been Mr Welsh who has supplied, with clarity, a mechanism in fact explaining the predominating pain complaints. [34] The Hutt Valley DHB Pain Clinic certainly saw pain problems but their doctor's emphasis was on right upper limb affectation which of course is the pain problem explained, as I have now said more than once, in persuasive (but non injury by accident) fashion by Mr Welsh, [35] Moreover by June 2010 when Dr Christian, specialist in occupational and environmental medicine, saw Mr Tafaese (in circumstances where he was well aware of the concern about a possible complex regional pain syndrome affecting the right arm and/or shoulder) he wrote: This would appear to have been more in evidence early on, with actually there being now very little objective evidence for a complex regional pain syndrome ... If there was an initial complex regional pain syndrome affecting the hand this has certainly very much improved if not resolved And it was of course his view as regards the right thumb problem that the highly likely explanation was in fact osteoarthritis. [36] For completeness I add that when he spoke of the shoulder problem per se he did so in terms that he was not convinced that it related to a complex regional pain syndrome secondary to the right hand injury. Rather, so it seemed to him, did it appear to be a local musculoskeletal condition, he then touching upon matters orthopaedic and, of course, orthopaedics is Mr Welsh's chosen field of practice. [37] Coming back once more to Mr Welsh's original report I rehearse what he then said once more which was that; The diagnosis of the current right shoulder girdle and arm complaint is one of referred pain from the cervical spine associated with cervical osteoarthritis, There it is not seen to be a problem within the shoulder itself for range of movement is satisfactory and there is no cuff dysfunction. There does not seem to be a relationship whatsoever between the injury incurred, a laceration to the right hand, and the current pain complaint relating to the referred pain from the neck It is seen that the original injury for which he was treated has healed completely without complication or other injury problem. His hand manipulative difficulty appears to have a functional aspect. [38] All in all, then, it is abundantly clear to me that the Corporation's determination of 8 December 201 1 to deny cover for a somatoform pain disorder was correct as, indeed, the reviewer had subsequently held. Result [39] The appeal is dismissed. Roderick Joyce QC District Court Judge