Lynch v Access Hire New South Wales Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lynch v Access Hire New South Wales Pty Ltd [2022] NSWPIC 161
APPLICANT:	Natalie Lynch
RESPONDENT:	Access Hire New South Wales Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	13 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Lump sum claim arising out of motor vehicle accident; liability for wrist accepted, but denied for left elbow and ulnar peripheral nerve; whether the assertion of injuries in statement sufficient to overcome the lack of contemporaneous evidence over a period of three years; whether findings by medico-legal expert without contemporaneous support adequate to establish claimed injuries and/or consequential conditions; Held- many contemporaneous records and claim forms did not mention the disputed claims in circumstances where lesser injuries such as bruising had been noted; applicant attempt to link subsequent complaints to the accident speculative; medicolegal expert unconvincing and lacking in causative explanation; applicant's statement compromised by passage of time and possibility of reconstruction, although no question raised as to her integrity; claims rejected; accepted injury not assessed as reaching the threshold; award respondent.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant did not suffer injury to her left elbow or ulnar peripheral nerve as a result of her accident on 18 June 2018. 2. The applicant did not suffer a consequential condition to her left elbow or ulnar peripheral nerve arising out of her accident on 18 June 2018. 3. The applicant accordingly does not meet the threshold for referral to a Medical Assessor. The Commission determines: 1. There is an award in favour of the respondent.

STATEMENT OF REASONS

BACKGROUND

Natalie Lynch, the applicant, bring an application for lump sum compensation pursuant to
s 66 of the Workers Compensation Act 1987 (1987 Act) in respect of injuries to the left upper extremity and the skin which were alleged to have occurred as part of an injury complex caused by a motor vehicle accident.
Dispute notices were issued and proceedings were subsequently commenced.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) did the applicant injure her left elbow?
(b) did the applicant injure her left ulnar peripheral nerve?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was heard by way of telephone conciliation and arbitration on 15 March 2022. The applicant was represented by Mr Ross Goodridge instructed by Mr James Kospetos of Firths the Compensation Lawyers. The respondent was represented by Ms Nicole Compton instructed by Mr Nathan Byers from Turks Legal. Mr Tom Bradfield was also on the call for some of the time.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents.

Oral Evidence

No application was made in respect of oral evidence.

FINDINGS AND REASONS

Mrs Lynch described her injuries in her statement of 26 November 2021. She was involved in a motor vehicle accident on 25 June 2018 when another vehicle pulled out of a street colliding forcibly with the front side of her vehicle, the force of the impact being such as to push the applicant’s vehicle head-on onto a pole on the median strip. She said[1]:
“4. I was in a state of shock and felt significant pain in my face, my left upper extremity (including my left wrist, and elbow), my right upper extremity (in particular my right elbow), my cervical spine, my chest, my left lower extremity, and my right lower extremity. I felt that my jaw could not close properly post impact. My vehicle was a total write-off due to the significant damage it sustained.”
[1] ARD p 1.
Mrs Lynch was taken to Nepean Hospital where it was discovered that she had an acute fracture through the distal left radius with dorsal angulation at the fracture site and partial impaction. Her wrist was placed into a backslab and a CT scan on 27 June 2018 revealed the extent of the damage done by the fracture. On 9 July 2018 she underwent an open reduction and anterioral fixation procedure on her left distal radius at Westmead Private Hospital under the care of Dr Sunner.
She attended physiotherapy at Precision Physio following the surgery.
She said at [13]:[2]
“My primary focus was improving my strength and movement in my left wrist given the surgery I had undergone. My left wrist injury was the main concern for my doctors and me as although this was not the only injury, it was the most significant injury that
[2] ARD p 2.
I sustained in the accident.”
Mrs Lynch described the extensive treatment that she received throughout 2019. She underwent a number of investigations including x-ray of the left wrist on 15 August 2018, a bone scan on 5 March 2019, an ultrasound of the left wrist on 7 March 2019 and she finally came to surgery again with Dr Sunner on 25 March 2019 to remove the plate and screws in her left wrist.
She said that she continued to have pain, swelling and discomfort in the left wrist after that. She said at [22]:[3]
“22. …… I continued to experience pain in my left arm, and in particular my left elbow which I had injured in my accident.”
[3] ARD p 3.
She stated that her solicitors arranged for her to be seen by Dr WGD Patrick whom she saw on 18 February 2021. She states that Dr Patrick assessed her left elbow and found that there was joint medio-lateral instability in the elbow. She said:[4]
“Prior to this appointment although I was aware that I had pain in my left upper extremity; including my hand, wrist and elbow, the treatment I was receiving was focussed on my significant wrist injury and resulting surgeries and post-surgery treatment to that part of my arm. Although I made mention of my elbow symptoms,
[4] ARD p 3 [26].
I was not referred for specific treatment to my left elbow. As a result, I continue to have ongoing pain symptoms and weakness in my left elbow to date.”
Mrs Lynch’s application disclosed that she has brought proceedings in the Personal Injury Commission Motor Accident Division but there appears to be no determination at the time of filing the present application.
A Worker’s Injury Claim Form was completed on 2 July 2018[5]. The injuries were described as “left wrist fracture, abrasions, bruising, neck and L lower abdomen” and an auto incident notification form was also completed on 2 July 2018, describing the injuries as “broken left wrist, abrasions right arm, bruising abdomen and right clavicle”.[6]
[5] ARD p 6.
[6] ARD p 11.
Medical records from the Ambulance Service were obtained dated 25 June 2018[7]. The case description included a description of the accident itself and noted that Mrs Lynch said that the car pulled into her lane in front of her from a side road and left her nowhere to go, she had a small glancing impact with the car and verged right, running head-on into a power pole. Moderate damage noted to the front of the vehicle, airbags deployed, power lines were down, fire and police on the scene.
[7] ARD p 48.
The injuries complained of were:
“Pain to the left wrist, right forearm and nose. PT stated airbag hit her in face. Obvious deformity to the left wrist, minimal movement of left fingers. Unable to feel radial pulse on left arm but hand warm and good. Refill.”
She saw Dr Pavitar S Sunner, orthopaedic surgeon, for the first time on 27 June 2018. He noted Mrs Lynch’s estimate of her speed at the time of the accident as being between 50 – 60 kph. He found that there was a significant bruise over the right forearm and that her left distal radius and ulnar had been fractured. This injury had been treated and a CT scan had been organised because there was also a suspicion of the scaphoid fracture.
He said:[8]
“On review today her fingers are quite swollen. She was complaining of some numbness in the index finger and thumb. She does not think it is getting any worse but at the same time she also does not think it is getting any better either.”
[8] ARD p 64.
On 4 July 2018 Dr Sunner reported that repeat x-rays showed a volar displacement and volar angulation of the distal radius fracture with some shortening of the distal radius.[9] Surgery was recommended, and she was placed in a full plaster cast. Dr Sunner, in explaining the risks of surgery said that it could involve:
“…recurrence of her carpal tunnel syndrome that she had with the injury…”
[9] ARD p 67.
On 18 July 2018 Dr Sunner noted the surgery on 9 July 2018.[10] He stated that a referral was given for Mrs Lynch to see a physiotherapist to have a below cast applied.
[10] ARD p 72.
He advised her to come and see him when the cast was off in about four weeks’ time. He said:
“In the meantime I have asked her to keep the hand, elbow and the shoulder moving.”
On 15 August Dr Sunner reported that the cast was removed. Ms Lynch’s range of motion was very limited “as expected” and some pain was complained of in the forearm region. A further referral was given for physiotherapy “to get the hand and wrist moving”.[11]
[11] ARD p 74.

Dispute notice

On 22 July 2021 the insurer issued a dispute notice indicating that liability for the injury to Mrs Lynch’s left wrist was accepted but that the present application was declined. The notice referred to the medico-legal report of Dr W G D Patrick of 24 March 2021 but indicated that it preferred the opinion of Dr John Bosanquet of 3 June 2021.

Dr W G D Patrick

Dr Patrick is a general vascular and trauma surgeon who he reported to Mrs Lynch’s solicitors on 24 March 2021[12]. He took a consistent history of the circumstances of the motor vehicle accident and subsequent surgical treatment by Dr Sunner.
[12] ARD p 38.
Dr Patrick listed 11 separate current symptoms. The second symptom was described as follows:
“She is also aware of ongoing pain and discomfort about the left elbow region also. This has been present to some extent since the accident.”
The third symptom was described as:[13]
“She is aware of some sensory changes at the left arm. This seems to be related to ulnar nerve above the mid-forearm and with intermittent discomfort particularly at times if any pressure is applied. This seems to be more in sensory ulnar nerve distribution.”
[13] ARD p 40.
On examination Dr Patrick said:[14]
“There is a readily demonstrated joint medio-lateral instability at the left elbow (probably ‘ulnohumeral’:rather than ‘entire elbow’). There is a positive upper body sway test readily demonstrated.”
[14] ARD p 41.
He said:[15]
“She does appear to have a definite ulnar neuropathy (sensory, above mid-forearm) and this is assessable.”
[15] ARD p 41.
Dr Patrick’s diagnosis was that Mrs Lynch had:
“readily demonstrated excessive passive· medio-lateral instability/joint media-lateral instability of mild degree (less than 10 degrees). She also has readily demonstrated ulnar neuropathy (sensory/arising above mid forearm) and this is assessable.” [16]
[16] ARD p 41.

Dr Bosanquet

Dr John Bosanquet, orthopaedic surgeon reported to the insurer on 16 June 2021. He took a consistent history of the circumstances of the accident and the treatment history for her left wrist.
In describing her current symptoms, Mrs Lynch complained of pain in the left wrist, it was constant and it caused difficulty in her returning to ballroom dancing.
Dr Bosanquet noted further complaints that she used both hands to type and there was an ache late in the afternoon on the left hand side. He also noted[17]:
“She has had some intermittent paraesthesia in the median three fingers.”
[17] Reply p 3.
Dr Bosanquet noted seven investigations in the form of x-rays, CT scans, ultrasound and bone scans on the left wrist and distal radius.
Specific questions were asked by the insurer of Dr Bosanquet and the following questions and answers appeared:[18]
[18] Reply P 6.
“c. What physical symptoms does the worker report in relation to each body part? When and in what circumstances did these symptoms first appear, please make particular reference to the elbow.
The only part injured was her left wrist and I have listed her symptoms under Current Symptoms. The symptoms occurred with the motor vehicle accident. There is no history of injury or symptoms related to her left elbow.
d. I refer to the clinical records from Precision Physio indicating on or about September 2018 that the worker fell in a hole over the weekend and banged her elbow on the ground. Please enquire:
i. Which elbow did she injure?
ii. What date did the injury occur (if known)?
iii. How did the injury occur?
iv. Was this the first time she experienced pain in her elbow?
There was no injury of which I am aware to her left elbow.”
Dr Bosanquet was asked:[19]
“4. Please provide your diagnosis of any injuries/conditions affecting the worker’s left upper extremity, including the wrist, elbow and peripheral nerve, and surgical scarring.
The injury has been a closed fracture of her distal radius, initially treated by a closed reduction. As it was unstable an open reduction was performed two weeks later with insertion of a plate that has been subsequently removed. She has full movement in her elbow. There is no evidence of any peripheral nerve involvement. Surgical scarring is standard scarring for the procedure carried out.”
[19] Reply p 7.
Dr Bosanquet was asked further to comment on Dr Patrick’s opinion. Dr Bosanquet noted the examination findings by Dr Patrick but said that when he examined the applicant there were no symptoms referrable to her elbow. He said:[20]
“There was no evidence of instability and she had a full range of movement. It is my opinion that Natalie Lynch’s left elbow was not injured at the time of the MVA. She has no complaints in the elbow, so it is my opinion her elbow is not part of this claim.”
[20] Reply p 7.
Dr Bosanquet was invited to comment further on Dr Patrick’s report. He noted Dr Patrick’s treatment recommendations as being excessive in some respects. As to Dr Patrick’s assessment of whole person impairment of 14% including the peripheral nerve and the elbow, Dr Bosanquet said:[21]
“…… As she has a full range of movement without instability this figure is not required.”
[21] Reply p 9.

SUBMISSIONS

Mr Goodridge’s submissions were concise and fairly put. He acknowledge that there is no support for any injury to the left elbow or the peripheral nerve and said that the contents of Mrs Lynch’s statement was the high point of the case. He referred to the injury description in the various contemporaneous forms which are extracted above. He conceded that there were no relevant entries that assisted Mrs Lynch until Dr Sunner’s report of 27 June 2018 when swelling in the fingers was noted and complaints of numbness in the index finger and the thumb was also recorded.
I was also referred to Dr Sunner’s report of 18 July 2018[22] in which he asked Mrs Lynch to keep the hand, elbow and shoulder moving. This was at a time that the backslab had been applied and Mr Goodridge quite fairly said that there were two interpretations available with regard to that entry. One was that it indicated that there was an elbow problem but had not hitherto been commented on, the other that it was incidental to general mobility following the surgery, as the respondent might submit.
[22] ARD p 32.
Mr Goodridge submitted that Dr Patrick did examine the elbow and found the pathology described as being probably an ulno-humeral instability, rather than the entire elbow.
He submitted that Dr Patrick supplied the evidence regarding the left elbow injury. He did not say anything about the pleadings in the ARD, but alleged that the left elbow injury became consequential.
With regard to the ulnar neuropathy, Mr Goodridge referred to Dr Patrick’s acceptance that Mrs Lynch did have a definite sensory, above mid-forearm, neuropathy. He said that opinion tendered to be confirmed by Dr Sunner when he noted on 27 June 2018 that Mrs Lynch’s fingers were quite swollen, and that she was complaining of numbness in the index finger and thumb.
Mr Goodridge submitted that this evidence needed to be balanced against the respondent’s case that consisted of the report of Dr Bosanquet. Mr Goodridge argued that Dr Bosanquet, in describing the history of the injury and the current symptoms, made no reference to any complaint by Mrs Lynch’s problems with the nerve or fingers. However Mr Goodridge said there was some support for Mrs Lynch’s case in that Dr Bosanquet too recorded complaints of some intermittent paraesthesia in the median three fingers.
Mr Goodridge submitted that Dr Bosanquet’s later comment that there was no evidence of peripheral nerve involvement appeared to ignore his own clinical finding.

Respondent’s submissions

Ms Compton firstly referred to Mrs Lynch’s statement that although she was aware that she had pain in her left upper extremity including her elbow, she was focussed more on her significant wrist injury.
Ms Compton submitted that it had not been suggested that the injury was consequential but that it occurred at the time of the motor vehicle accident. (I note in passing that the ARD form pleaded the claim for the left elbow as both caused by the motor vehicle itself, and was a consequential condition).
As predicted by Mr Goodridge, Ms Compton took me to the various claim forms that were contemporaneously filled out. They were specific and thorough, naming such injuries as abrasions in the right arm and bruising to the right abdomen and bruising on the right low leg.
Ms Compton submitted that the bruising complaints were of a lower order of significance to the fractured left wrist. Mrs Lynch’s failure to mention the left elbow must be seen from that perspective, and it followed that it was unlikely that, if the left elbow symptoms had been constant, Mrs Lynch would not have mentioned them at some stage.
The first consultation with the applicant’s general practitioner was recorded on 4 July 2018[23] and the injuries noted were:
[23] ARD p 113.
“head/C spine OK
Now sore upper nose
Right forearm abrasion/bruising
Healing
….
Bruisings chest about seatbelt area
Bruisings lower abdomen
Bruisings right lower leg
….
Upper nose mild tenderness.”
The details of all those complaints, Ms Compton said, were consistent with the notion that Mrs Lynch was careful to complain about any related condition she was then suffering. It accordingly raised some doubts about the accuracy of her statement.
Ms Compton stated that Dr Patrick had not considered any of this material, and only recorded complaints regarding the left elbow and ulnar neuropathy, which did not appear in any contemporaneous account. Ms Compton submitted I would therefore not be able to accept Dr Patrick’s opinion.
She submitted that Dr Bosanquet’s finding that there was no recorded complaint about the left arm/elbow, nor any abnormality detected when he examined Mrs Lynch, was confirmatory that no injury had happened.
On the balance of the evidence, I would not be persuaded that there was any pathological change, Ms Compton submitted. Dr Patrick had only seen her on the one occasion and
I would not accept his opinion.
So far as the peripheral nerve claim was concerned, the only reference and support for that claim again came from Dr Patrick who noted that the neuropathy related to sensory changes above the mid forearm.
Ms Compton submitted that numbness did not constitute an ulnar neuropathy, and
Mr Goodridge’s reliance on comments about Mrs Lynch’s sensory problems in the fingers did not sustain Dr Patrick’s opinion. It was not credible that no other health professional had noted ulnar neuropathy.

Ms Compton noted that an ultrasound was carried out after Mrs Lynch complained about her carpal tunnel syndrome and had the ulnar neuropathy been present then, particularly when Mrs Lynch was seeing specialists throughout her treatment, she would have complained.
Ms Compton submitted that Dr Patrick’s opinion “stood alone”.
Ms Compton submitted that if I were to find that either the left elbow or ulnar neuropathy injuries had not been established, the matter could not be referred, as the claim would not then reach the threshold.

Mr Goodrich

In reply, Mr Goodridge said that he would not accept that proposition.
He then returned to Dr Bosanquet’s reporting of Mrs Lynch’s intermittent paraesthesia in the medium three fingers but stated that Dr Bosanquet neither took a history of its onset nor did he explain the source of those symptoms.

DISCUSSION

I was greatly assisted by Mr Goodridge’s submissions as he stated Mrs Lynch’s case in a realistic and helpful manner. I am however unable to accede to his submissions.
The detail with which Mrs Lynch’s injuries were described contemporaneously went beyond the main focus of her fractured wrist. As is not unusual, Mrs Lynch’s symptoms and complaints were recorded in considerable detail in the contemporaneous records to which
I have referred. The difficulty facing the applicant’s claim, as was acknowledged by
Mr Goodridge, was that there had never been any complaint about symptomatology in the left elbow nor specifically about any involvement of the ulnar nerve.
The case accordingly depends upon an acceptance of Mrs Lynch’s evidence given in her statement of 26 November 2021. It is relevant that Mrs Lynch was then attempting to accurately recall the events of and subsequent to the traumatic circumstances of her motor vehicle accident on 25 June 2018. Whilst she stated that she did injure her left elbow in the accident, and that she continued to experience pain in her left arm, including her wrist and her elbow, about which she complained, there is no corroboration for these statements.
I have no doubt that Mrs Lynch was attempting to assist the Commission by being as honest and responsible about her recall as she could be. It is however not unknown for witnesses, particularly those that have an interest in the subject they are describing, to innocently reconstruct their memory of relevant events, and I fear that is what has occurred in this case.
Mr Goodridge suggested that there was some support for her statement in the observations of Dr Sunner when he noted that Mrs Lynch’s fingers were quite swollen and she was complaining of numbness in the index finger and thumb. However this was recorded when she was first seen by Dr Sunner, and prior to the surgery of 9 July 2018. Whilst in his report of 18 July 2018 Dr Sunner encouraged Mrs Lynch to keep the hand, elbow and shoulder moving, it was clear from the context that this was because she was in a full cast, and not related to any specific elbow problem or involvement of the ulnar nerve. Moreover Dr Sunner also noted that she had suffered a carpal tunnel syndrome as a result of the injury and it is possible that the numbness had been caused by that condition. Accordingly to make a connection between that observation and Mrs Lynch’s ulnar nerve neuropathy would amount to no more than speculation.
Similarly, Mr Goodridge’s submission that an inference could be drawn from Dr Bosanquet’s comment in his report of 16 June 2021 that Mrs Lynch complained about intermittent paraesthesia in the median three fingers is also no more than speculation. Dr Bosanquet did not make any connection between that complaint and any ulnar nerve condition, and indeed found that Mrs Lynch had a full range of movement without instability in the elbow. Moreover, a complaint made of paraesthesia in the median three fingers in June 2021 does not have any connection with the accident in June 2018 without some evidence as to when it began. Further, there is no evidence that suggests a pathological link between that complaint and an ulnar nerve neuropathy in any event.
I had many reservations about Dr Patrick’s opinion. Firstly, as was submitted by
[24] ARD p 10.
Ms Compton, he only saw the applicant on the one occasion, and his diagnoses of left elbow and ulna nerve injury was not otherwise made by the treating surgeon, Dr Sunner, nor did they appear within the clinical notes. Secondly, although he had the auto incident notification report[24], Dr Patrick did not comment on the absence of any complaint about the left elbow, which a medico-legal expert might be expected to consider.
Thirdly, the left elbow was first mentioned when Dr Patrick was discussing the “present symptoms”. His history that the left elbow symptoms had been present “to some extent” since the accident, was no helpful in supporting Mrs Lynch’s statement.
Fourthly, in mentioning the ulnar neuropathy, Dr Patrick took no history of when that arose and its relationship to the motor vehicle accident.
Fifthly, whilst Dr Patrick found that there was a “readily demonstrated” joint mediolateral instability of the left elbow, and a “readily demonstrated” excessive passive instability, he made no attempt to explain its cause, or its relationship to the motor vehicle accident itself.
The highest that I can put Dr Patrick’s opinion is that on 24 March 2021, those symptoms may have been present. However, I am far from persuaded that they are related to the motor accident some three years before.
For the above reasons there is an award in favour of the respondent in relation to the claims for injury to the left elbow, and the ulnar nerve – either as injuries per se, or as consequential conditions. This ruling has the effect of making the respondent liable for the accepted injury to the left wrist only.
Dr Patrick assessed a total whole person impairment (WPI) for the alleged injuries to the wrist, elbow and peripheral nerve of 15% WPI, without in his Table differentiating between the three injuries.[25] I presume this was the basis of Mr Goodridge’s denial that the rejection of the applicant’s claims defeated her entitlement to have her claim for lump sum payment referred to an Medical Assessor. However Dr Patrick’s worksheet provided the assessment for each individual component, and it is clear that Mrs Lynch is only entitled to a finding of 11% upper extremity impairment, which pursuant to Table 16-3 of AMA5 converts to 7% WPI.[26]
[25] ARD p 45.
[26] AMA5 p 439.
Regrettably, that assessment does not exceed the threshold mandated by s 66(1) of the 1987 Act.
There is accordingly an award for the respondent.

[2022] NSWPIC 161

13 April 2022