Welch v Modderkolk

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Welch v Modderkolk [2024] NSWPIC 333
APPLICANT:	Kylie Welch
RESPONDENT:	Rutger & Mary A & Rodger D & Peter M Modderkolk
MEMBER:	Catherine McDonald
DATE OF DECISION:	25 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Worker suffered an accepted injury to her left elbow and involving her ulnar nerve when she was pinned between a cow and a metal pole; dispute as to whether she also suffered an injury to her cervical spine and left shoulder, not initially recorded by her general practitioner; Mason v Demasi; Davis v Council of the City of Wagga Wagga; Nominal Defendant v Clancy; Held – all claims remitted to the President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. I remit the matter to the President for referral to a Medical Assessor to assess the applicant’s permanent impairment: Body systems: left upper extremity (elbow, shoulder and ulnar nerve); cervical spine, and TEMSKI scarring. Date of injury: 9 April 2015 Method of assessment: whole person impairment. 2. The documents to be sent to the Medical Assessor are: a. Application to Resolve a Dispute; b. Reply; c. MRI scan report of the left shoulder dated 14 July 2015, and d. this Certificate of Determination.

STATEMENT OF REASONS

BACKGROUND

Kylie Welch was employed as a farm hand on a dairy farm operated by R & MA and RD & PM Modderkolk (the Modderkolks). She suffered an injury on 9 April 2015 when she was crushed between a cow and a metal pole. The Modderkolks agree that Ms Welch’s left elbow was injured. Ms Welsch also says that she suffered an injury to, and/or consequential condition in her left shoulder and cervical spine, both of which are disputed by the Modderkolks.
Ms Welch claims permanent impairment compensation.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The parties attended a conciliation conference and arbitration hearing on 28 May 2024 when Mr Gaitanis of counsel, instructed by Mr Quinn, appeared for Ms Welch and Mr B Jones of counsel, instructed by Mr Lott, appeared for the Modderkolks.
An issue as to admissibility of medical reports arose at the preliminary conference on 24 April 2024. The parties agreed at the conciliation conference that all reports should be admitted, subject to weight. The Modderkolks consented to Ms Welch relying on an MRI scan report in respect of her left shoulder dated 14 July 2015 which was omitted from the documents filed.
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 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 they have had sufficient opportunity to explore settlement of the dispute and that they have been unable to reach an agreed resolution.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply, and
(c)    MRI scan report dated 14 July 2015, provided during the conciliation conference.
There was no oral evidence.
Ms Welch said in her statement dated 3 August 2023 that on 9 April 2015 she was milking cows with a new co-worker named Remi, whose behaviour she found erratic. Ms Welch and Remi were preparing to milk the last 19 cows for the morning. It was agreed that Ms Welch would get the cows into the run and put the chain in place behind them, and that Remi would pull the grain feed down for the cows, descend from the run and start cupping them. When the cows were in place, Ms Welch went to secure the chain so they could not escape from the run. She noticed that Remi had descended from the run and started cupping the cows before she had the chain in place. When the last of the cows was in place, Ms Welch reached for the restraining chain, and as she was about to lock it into position, the cows moved sideways along the run and the cow nearest to her, pinned her left arm between its rump and a metal pole. She called out, but the radio was playing too loud for Remi to hear her. Her arm was trapped for somewhere between three to five minutes before Remi came to assist her. She said that she felt immediate pain in her left elbow and shoulder. She continued working until the end of the shift and drove home. Her left arm was pink and blotchy, and she felt pain in her left elbow and shoulder and into her neck.
Ms Welch was absent from work for six days as part of her usual work cycle. She returned to work, but her left arm was worse, and she ceased working on 2 May 2015.
Ms Welch said that she saw her general practitioner, Dr Chabbou, who ordered some scans of her left arm and told her that he would investigate treatment for her left shoulder and neck in time. Ms Welch said that she found difficult to communicate with Dr Chabbou, who was condescending and sometimes dismissive. She said that he failed to record her initial complaints about her left shoulder and neck.
After requesting scans of Ms Welch’s elbow in April and May 2015, Dr Chabbou referred her to Dr Patel. He also ordered an MRI scan of her left shoulder and cervical spine in July 2015 in response to her complaints of tingling extending from her neck through her left shoulder to her fingers. She saw Dr Patel on 14 July 2015, who ordered nerve conduction studies, and she underwent surgery on 10 August 2015 and was placed in a cast from her left thumb almost to her arm pit. She complained about her left shoulder and neck to Dr Chabbou in December 2015 and from that time, he noted those conditions.
Some time later, Ms Welch and her family began to see Dr Abeid, whom she found more engaged and responsive. Ms Welch said that her family life was difficult at the time of the injury, and she separated from the father of her children in 2016. Three of her four children have special needs, and she was required to undertake domestic tasks while wearing a cast following surgery.
In 2016 Ms Welch saw Dr Milliken for a vocational assessment at the request of the Modderkolks’ insurer. In her statement she did not describe any further treatment until 2020, when she underwent some further investigations of her shoulder and cervical spine. She was referred to Dr Critchley and to Dr Lo. Dr Lo recommended a left C6 nerve sheath injection which was declined by the insurer.
Ms Welch also said that she suffered a consequential condition in her right arm but does not make a claim for compensation in respect of it. She underwent a right carpal tunnel release performed by Dr Critchley on 21 February 2019, through the public hospital system.
The Modderkolks relied on a statement from Ms Welch dated 2 June 2015 obtained by an investigator. She said that her left arm was crushed between the cow and the pole and that she called out for help but no one could hear her over the loud music. She pulled her arm out from between the pole and the cow and the weight of the whole 19 cows was on her arm. She finished her shift and tried to go to the doctor that day but was unable to get an appointment. Ms Welch said that she had constant pain, numbness and pins and needles and that her hand was always cold. She was waiting for the results of a bone scan and MRI. Her descriptions of the injury and the pain in that statement are in respect of her arm rather than her elbow.

Investigations and treatment

On 1 April 2015, before the injury, Dr Chabbou noted that Ms Welch had a painful left elbow for a few days which was worse on milking. On 10 April 2015, he obtained a history of the crush injury on the previous day, and the fact that she had a swollen and tender elbow. He referred Ms Welch for an X-ray. Ms Welch saw Dr Chabbou in respect of her left elbow and for some non-work related issues throughout April and May, relating to pre-existing stress issues and panic attacks, for which she was taking medication. On 25 May 2015, Dr Chabbou recorded that her hand was getting numb and the pain also radiating to the left shoulder. The pain was aggravated on moving the elbow and on not using it at all.
Ms Welch underwent an ultrasound of her left forearm on 10 April 2015 and the clinical notes recorded that she was swollen and tender over the medial aspect of the elbow. She underwent an ultrasound of the left elbow on 20 May 2015 which was reported as not showing any soft tissue abnormality. A bone scan was undertaken on 22 May 2015 because of a clinical history of persisting pain when an X-ray was normal. There was no evidence of an elbow fracture. An MRI scan on 20 May 2015 showed:
“Mild nonspecific soft tissue oedema overlying the medial humeral epicondyle. Mild ulnar nerve neuritis. No intra-articular structural derangement detected.”
On 25 May 2015 Dr Chabbou recorded:
“still having pain in the left elbow and even the pain interferes with her sleep and luck to sleep 4-5 hours at night .she said that her left hand is getting numb too .also her arm and hand feels weak when it come to squeezing. patient said constant niggle pain all time. her hand swells and subsides. the pain also radiates to the left shoulder and hand. pain aggravated on moving the elbow and not using it at all.” [sic]
Dr Chabbou referred Ms Welch to Mr Mercer.
Ms Welch saw Mr Mercer, physiotherapist, who reported on 17 June 2015 and said that she sustained a crush injury to her left elbow/upper arm when her arm was trapped between a steel fence post and a cow. He noted that she had variable symptoms in her upper limb, which he considered were consistent with a diagnosis of chronic regional pain syndrome.
On 18 June 2015 Dr Chabbou noted that Ms Welch had pain in the elbow, radiating to her upper arm, but he said her “ADLs have not been affected greatly”.
Dr Chabbou’s note for 9 July 2015 shows that the history was taken by a medical student and it is longer than his own notes. It reads:
“Ongoing pain and loss of movement in left arm following crush injury 3 months ago. Pain is always present, and she occasionally experiences pins and needles extending from elbow to fingers. Patient has difficulty with any form of movement.
Panadeine forte is only mildly effective.
Patient is not sleeping well as a consequence of the injury.
Examination: Upper limp neuro: decreased power in all left arm movements. Nil sensation loss.
Treatment/Plan: Palexia SR 50mg Sustained release tablets 1 (28, RNil)
Focus Radiology: MRI left shoulder and neck - ongoing pain and tingling in the left upper and forearm.”
The report of an MRI scan taken on 13 July 2015 is addressed to Dr Chabbou. The clinical history was ongoing pain and tingling in the left upper arm and forearm. Dr McKenzie, radiologist, said that no focal disc protrusion or nerve root compression was detected. On the following day, an MRI scan of Ms Welch’s left shoulder was undertaken and the same clinical history was noted. Dr McKenzie said it showed mild supraspinatus tendinitis, but that no superimposed full or partial thickness, rotator cuff tendon tear was detected.
On 14 July 2015 Ms Welch saw Dr Patel, orthopaedic surgeon. He diagnosed left ulnar nerve compression neuropathy and left elbow common flexor origin and medial ulnar collateral ligament tear. He requested EMG nerve conduction studies and said that she was likely to require nerve relieves and anterior transposition with “MUCL stabilisation”. He said that an MRI scan showed oedema in the region of the ulnar nerve with additional signal change in the region of the median ulnar collateral ligament and common flexor origin suggestive of an injury there.
On the basis of the subsequent nerve conduction studies which, he said, confirmed traumatic compressive neuropathy of the ulnar nerve, Dr Patel recommended surgery which was undertaken on 10 August 2015. His diagnosis at the time was left elbow cubital tunnel syndrome with ulnar nerve compression neuropathy.
On 25 August 2015 Dr Patel removed the elbow immobilisation back slab and said that there was no neurological deficit in the upper extremity.
In December 2015 Dr Chabbou noted that Ms Welch complained of swelling in the left elbow and stiffness, as well as pain in the left side of her neck and a stiff shoulder. She was seeing a physiotherapist twice a week, but felt she had no strength in her left hand. Dr Chabbou recorded that Ms Welch had pain in her neck on several subsequent consultations.
Ms Welch was referred by the insurer to Dr Milliken for an injury management consultation on 3 February 2016. Dr Milliken noted the history and investigations, including some documents about return to work attempts, which do not form part of the evidence of the file. Dr Milliken said Ms Welch had been left with a fixed flexion, deformity and severe pain relating to use of her elbow. Her current problems at the time of that consultation with pain in the lower to middle left neck, which had been aggravated by a work trial in December 2015. She suffered loss of sensation in the fourth and fifth fingers of her left arm. He said that Ms Welch has suffered a serious injury to her left arm involving her elbow and shoulder with evidence of nerve compression involvement, and that despite surgery, she still had evidence of nerve damage. He considered that the management of the condition was complicated and would appear to be regional pain syndrome. He considered that it would be appropriate to refer her for pain management treatment, and that return to work as a dairy assistant was not viable.
Despite Dr Milliken’s recommendation, Ms Welch did not see Dr Todhunter, a pain medicine specialist, until September 2016. He noted that she had very marked swelling of the elbow and upper arm, discolouration, temperature change with coldness pressure and tactile allodynia. He diagnosed complex regional pain syndrome type 1. He recommended trial of St Jude burst spinal cord stimulation. He provided the details about the proposed treatment in a report to Ms Welch’s solicitors dated 19 September 2016 and said that the treatment would involve placement of epidural electrodes in the cervical spine or neck area. That treatment did not take place.
In April 2018, Ms Welch saw Dr Critchley, orthopaedic surgeon, who noted that she had a crush injury to her left arm, which was treated with an ulnar nerve transposition. Nerve conduction studies showing moderate degree of carpal tunnel syndrome, but her symptoms did not fit that diagnosis. A close reading of his report shows that the symptoms were in Ms Welch’s right arm and subsequent reports confirm that a right carpal tunnel release was undertaken on 21 February 2019. Dr Critchley also undertook decompression of the right ulnar nerve on 16 May 2019.
On 19 March 2020, Dr Critchley said that Ms Welch had done well following the right ulnar nerve decompression. She had a mild recurrence of symptoms, but her main problem was in the left shoulder. He said most of her symptoms were located in the upper shoulder in the range of the trapezius muscle and pain radiating into the upper arm. The pain increased if she turned her neck towards the affected shoulder, and this manoeuvre produced pain in her neck also. He said they were no significant symptoms in her left hand. On examination, he noted the range of motion of her cervical spine was reduced, particularly when turning to the left and she suffered pain in the shoulder radiating to her upper arm. The range of motion of the shoulder was only marginally reduced but she was tender over the shoulder joint itself and over the trapezius. Dr Critchley noted that Ms Welch was to undergo an MRI scan of the shoulder, which he did not think would show significant pathology and he considered an MRI scan of her cervical spine was appropriate. He also queried chronic regional pain syndrome. The same day he said to the insurer:
“As you see from my letter my assessment is that she combination of cervical spine problems and a chronic regional pain syndrome rather that an issue with the shoulder itself. I understand that she is on the verge of having shoulder MRI and I think it would be appropriate also for her to have an MRI of her cervical spine.” [sic]
Writing to the insurer on 11 June 2020, Dr Critchley said:
“She has had an MRI of both her shoulder and her neck and I enclose copies of these reports. The lesion in the shoulder I do not think is too significant. The lesion as noted in her cervical spine, ie. The C6 neuroforaminal entrapment on the left side fits well with her clinical presentation of pain radiating down the arm when she moves her neck associated with tingling in the thumb.
I examined her today but could elicit no hard physical signs, but I think that she requires a neurosurgical consultation.”
The MRI scan report in respect of the left shoulder showed a partial tear of the supraspinatus tendon and subacromial and subdeltoid bursitis. The MRI scan of the cervical spine showed left neural foraminal stenosis at C5-6 with likely impingement of the left exiting C6 nerve root.
Dr Critchley referred Ms Welch to Dr Lo, whom she saw via telehealth on 22 September 2020. Dr Lo said:
“Back in 2015, she was working on a cattle farm when she was struck by a large cow. She suffered a neck and left arm injury. She underwent left ulnar neurolysis as that was causing a lot of trouble with her left medial hand. After surgery, this did not really improve. In fact, if anything, the pain in her neck, shoulder and arm worsened with time. She is now left with difficulty raising her left arm and cannot wear jumpers as she cannot get her arm in the sleeve appropriately I
The MRI scan that you were kind enough to arrange does show a focal left-sided C5/6 disc bulge compressing the exiting left C6 nerve root. I believe her arm symptoms may be related to the C6 radiculopathy and a way to treat and diagnose this is a nerve sheath injection of steroids under CT guidance. In terms of her medial hand, however, the ongoing pain may be a recurrence of her left ulnar nerve entrapment. Therefore, a nerve conduction study/EMG will be necessary for her elbow.”
On 10 November 2020 Dr Lo wrote to Dr Critchley and said:
“She is still in a very bad way with left-sided C6 radiculopathy. The nerve conduction study did not reveal any compressive pathology at the elbow and I do believe that most of her symptoms are coming from her neck. She would be benefitted by a nerve sheath injection of steroids under CT guidance into the left C6 nerve root.”

Medico-legal reports

Ms Welch has seen Dr Patrick on number of occasions since 2016 at the request of her solicitors. In his first report dated 13 April 2016. Dr Patrick described the circumstances of the injury and noted it was “quite frightening”. He said that in addition to the crush injury to her left elbow, it appears that Ms Welch suffered a wrenching injury to her elbow and shoulder. Her left shoulder was forced into a position of abduction with extension and internal rotation and she sustained a significant cervicobrachial strain with ongoing dysmetria and muscle guarding. He recorded that Ms Welch had pain at the shoulder, elbow and neck at the time of the injury. On that occasion, Dr Patrick did not see evidence of cervical radiculopathy but said that Ms Welch had a significant diminution in the range of active motion in both her left shoulder and her left elbow.
Dr Patrick saw Ms Welch again and reported on 22 March 2017, 16 May 2018, 17 December 2020 and 21 March 2024. In his report dated 17 December 2020 he diagnosed cervical radiculopathy arising largely from the left sided C6 nerve root. Comparing his assessment to that of Dr Panjratan, discussed below, Dr Patrick said that Ms Welch had never had a full range of active motion of her cervical spine at any of his examinations.
In his report dated 21 March 2024 Dr Patrick set out the reasoning for an alternative, or additional position that she suffered consequential conditions in her left shoulder and cervical spine, which he said is supported by Dr Critchley’s comments on the MRI scan of June 2020, Dr Chabbou’s notes where he recorded unbearable and frustrating pain and her difficult domestic situation as well as the report of Dr Milliken.

Ms Welch’s solicitors also qualified Dr Kwong, rheumatologist, who reported on 14 February 2022. Dr Kwong recorded that Ms Welch complained of neck pain, shoulder pain, and left arm pain. He summarised her treatment briefly, noting that Dr Lo had diagnosed left C6 radiculopathy. Dr Kwong said that Ms Welch suffered left-sided neck pain, which radiated to her left elbow, in a pulling sensation. He noted left shoulder and left elbow pain. He set out his findings on examination, including a restricted range of motion of the cervical spine, left shoulder and left elbow. Dr Kwong diagnosed:
“a.     Post traumatic left ulnar neuropathy at the elbow level-status post neurolysis and transposition surgery.
b.     Left elbow common flexor origin tear and left medial ulnar collateral ligament tear-status post surgical with severe elbow contracture.
c.     Left shoulder-post traumatic subacromial bursitis-complicated by frozen shoulder.
d.     Left C6 radiculopathy and cervical strain.
e.     Right carpal tunnel syndrome-status post surgery with resolution of her symptoms.
f.      Right ulnar neuropathy at the elbow level-status post surgery with resolution of symptoms.”
Dr Kwong considered that Ms Welch has suffered injury to her left elbow, left shoulder and neck on 9 April 2015. Her initial pain was most severe in her left elbow. Dr Kwong assessed permanent impairment in respect of Ms Welch’s cervical spine, left shoulder, left elbow, left ulnar neuropathy and scarring.
In a further report dated 28 October 2023, Dr Kwong addressed a request to consider whether the conditions in Ms Welch’s left shoulder and cervical spine were injuries or consequential conditions. He said:
“She was pinned between a cow’s rump and a metal pole on 9 April 2015. She had to pull her left arm to free herself. As a result, she jerked her shoulder and neck. She developed neck, left shoulder and left elbow pain. Her left elbow was very painful and swollen and the initial focus was on her left elbow problem. She had neck and shoulder pain from the accident. She had MRI of her cervical spine and left shoulder on 13 July 2015. She underwent surgery for her left elbow problem. Her left arm was in a sling for a period of time. As a result of her left elbow surgery and the fact that her left arm was in a sling, she had to adjust her household tasks and use her arms in a different way which further aggravated left shoulder and her neck problem.”
Dr Panjratan, orthopaedic surgeon, saw Ms Welch for the first time on 26 May 2016, at the request of the Modderkolks’ insurer. Dr Panjratan noted that the injury was to Ms Welch’s left elbow, but he examined the whole of her left arm, and, in respect of her left shoulder, said that at the time of the injury “she was forced backwards with the shoulder tilting to the side straining the left side of the neck”. He noted that Ms Welch’s cervical spine movements were normal but that she had significant pain when bending and turning towards the left. He considered the investigations in July 2015 of Ms Welch’s left shoulder and cervical spine. When responding to questions about his opinion, Dr Panjratan did not specify the injury to which he referred. However, when assessing permanent impairment, he said that Ms Welch did not qualify for any impairment of the cervical spine, because there was no muscle spasm, guarding or restricted movements and no primary injury. He did, however, assess permanent impairment in respect of her left shoulder, noting that she suffered 8% upper extremity impairment (UEI) in respect of the left shoulder, 1% in respect to the left elbow and 2% in respect of the ulnar nerve transposition, which resulted in 11% UEI, or 7% whole person impairment (WPI).
Dr Panjratan saw Ms Welch again on 25 October 2016. He recorded that she suffered pain in her elbow, shoulder and neck, and that she held her neck flexed. He said there was “a hodge podge of symptoms without any anatomic basis” but he considered that she was still suffering from the work related incident, and its aftereffects. Dr Panjratan considered that Ms Welch was unlikely to return to any work.
On 28 November 2016, Dr Panjratan responded to a series of questions from the insurer. The insurer told him that the neck and shoulder were not included in the diagnosis of the injury on 9 April 2015 and asked for his opinion in respect of liability. Dr Panjratan said that the cervical spine and shoulder were examined as a routine part of the examination, and he did not believe the condition related to the original injury. He did not provide any explanation for that statement. Based solely on the injury to her elbow, Dr Panjratan considered that Ms Welch would be fit for some employment.
Dr Panjratan reported again on 21 November 2017. He noted that Ms Welch was then suffering pain in her right elbow. In respect of the onset of those symptoms, he recorded:
“She thinks she mentioned that Dr Michael Chabbou but cannot recall when and whether or not he documented. Her partner said that Dr Michael Chabbou would make brief entries but not long notes of consultations.
She consulted a different doctor as Dr Michael Chabbou would not do anything about that.”
The report mostly concerned the complaint with respect to Ms Welch’s elbows and Dr Panjratan said that Ms Welch may have a predilection to ulnar paraesthesia because it developed on the left side after the stated injury. He did not consider that any problem in her right arm was related to the injury.
Dr Panjratan’s final report is dated 10 December 2019. He recorded that Ms Welch had declined the spinal column stimulator recommended by Dr Todhunter. He said that Ms Welch had an injury to her left elbow when it was squashed, and that she continues to suffer from ulnar paraesthesia. She had a fixed flexion deformity of the elbow, and she also complained of left shoulder and neck pain. She had a normal range of motion in her neck. He assessed permanent impairment only in respect of Ms Welch’s left elbow because he was not asked to assess any other body part.
The insurer asked Dr Haig, orthopaedic surgeon, to assess Ms Welch because Dr Panjratan had retired and he reported on 13 May 2021. He described the injury, and the treatment that Ms Welch underwent, and, when discussing her current status, said that she reported that her neck becomes stiff, and she described a pulling sensation from the neck to the top of her left shoulder. She also complained of a constant ache in her shoulder, which travelled down the medial aspect of her arm.
Dr Haig considered that Ms Welch’s compliance during the examination was poor, and there were inconsistencies on examination, such as apparent weakness of grip, which he could not account for. He noted inconsistencies between Ms Welch’s claim that she was unable to forward flex her shoulder, but that Dr Patrick said she was able to flex to 80°. Dr Haig believed that Ms Welch’s pain was of neuropathic origin, as a result of the injury to the ulnar nerve which had not improved. He said there were features of her presentation consistent with chronic regional pain syndrome, but there were insufficient examination findings to make that diagnosis on the day of his examination. Dr Haig did not consider that Ms Welch suffered an injury to her cervical spine or her left shoulder, because the MRI scans performed shortly afterwards were normal. His diagnosis as a result of the injury was post-traumatic causalgia involving the left ulnar nerve and he assessed 10% WPI.

Decision notices

Documents in the ARD reveal that Ms Welch’s weekly compensation ceased in late 2019, because she had been paid weekly benefits for 216 weeks and her permanent impairment had been assessed at less than 20%.
The insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) confirming that the injury to Ms Welch’s left elbow/arm was accepted but Dr Haig considered she had not suffered a consequential condition in her right arm, and that she had not suffered injury to her cervical spine or left shoulder. His assessment of permanent impairment was 10%, and therefore no permanent impairment compensation was payable.
The insurer issued a further s 78 notice on 8 August 2022 referring to the report of Dr Kwong but declining the claim on the basis of Dr Haig’s report.

SUBMISSIONS

Counsels’ submissions were recorded and a summary appears below.
Mr Gaitanis took me through the evidence in the order in which it appears in the ARD. He said that Dr Patrick and Dr Kwong accepted that there was an injury to Ms Welch’s left shoulder and cervical spine on 9 April 2015 and that Dr Kwong considered that there was also a consequential condition in the latter areas. Mr Gaitanis said that Ms Welch’s left shoulder and neck were examined in July 2015 and that those investigations could have taken place earlier, if Dr Chabbou had listened to Ms Welch’s complaints. He said that there was contemporaneous evidence of the injury to her neck and left shoulder and records in the reports of Dr Patel, Dr Milliken, Dr Todhunter and Dr Critchley.
Turning to the general practitioner’s notes, Mr Gaitanis said that the reference to pain radiating to Ms Welch’s left shoulder was his interpretation and not necessarily what Ms Welch reported. Mr Gaitanis referred me generally to the authorities concerning use of clinical notes, returning to that subject in reply. He stressed that there was reasonably contemporaneous reporting of the pain in Ms Welch’s neck and left shoulder.
Mr Gaitanis said that Dr Panjratan’s opinion was different to that of Dr Haig. Dr Panjratan said there was no exaggeration on examination and provided some support for Ms Welch’s case. He summarised the reports of Dr Patrick and Dr Kwong, noting that the latter considered that Ms Welch also suffered a consequential condition as a result of her left arm being in a sling.
Mr Jones said that the Modderkolks’ argument was that Ms Welch had suffered an injury to her left elbow and then suffered referred pain in her arm to the forearm and above the elbow, but there was no injury to her left shoulder, nor any consequential condition in respect of her left shoulder or cervical spine. He said there was a complete absence of symptoms, referable to the cervical spine in the period immediately after injury to the left elbow. Any investigations were made in an attempt to understand the reason for the pain and the radiation of the pain and were not necessarily obtained for diagnosing any injury in the left shoulder or cervical spine. The second point about the contemporaneous imaging is that as Dr Haddock said no injury was disclosed. He said there was no explanation in the medical evidence for the subsequent deterioration and a number of doctors said that Ms Welch’s symptoms were confusing.
Mr Jones said if Ms Welch’s statement was accepted, it would mean that, despite her general practitioner examining her and being told of symptoms, they were dismissed out of hand and that it beggars belief that a doctor who was informed of an injury would wait weeks before undertaking investigations. Mr Jones noted that the injury report completed by the employer was consistent with the early complaints as was the statement signed on 2 June 2015. He said that history was different to that provided later when the claims process was initiated.
Mr Jones took me to the entry in the general practitioner’s notes for 1 April 2015 which cast doubt on Ms Welch’s claim that she had no relevant problems before the injury. Mr Jones took me through the notes in detail and said that the general practitioner identified the source of the pain at Ms Welch’s elbow and said that it was radiating to the shoulder. He said there was no reference to the neck in the first month following the injury, he said there was a continuing theme of reports of radio pain radiating to the shoulder which favours the conclusion that there was no injury to the shoulder but referred pain to the shoulder. While investigations were ordered in July 2015, they were in the context of ongoing pain following the injury and of the doctor attempting to ascertain what the symptoms radiating from the elbow were. He said they were not indicative of any other cause. He noted that the initial radiology showed mild supraspinatus tendinitis, which no one suggests was caused solely by the incident that is relevant, because later a tear is diagnosed. He said it was difficult to understand how that could occur when at the same time, as Ms Welch said that she overcompensated using her right arm.
From late 2015, Mr Jones said, investigations, commenced in respect of chronic regional pain syndrome and that, rather than there being a specific injury, there was widespread pain for which there was no clear understood cause. He said there were minimal references in the reports of Dr Patel and Dr Todhunter to the neck and left shoulder conditions. While Dr Critchley did identify a problem in Ms Welch’s left shoulder and neck, he was unaware of the history, and he stopped short of attributing those problems to the “cow crushing incident”. Dr Lo merely accepted that the conditions were related.
Turning to Dr Haig’s report, Mr Jones noted that Dr Haig was provided with a wealth of documents which he had considered. He noted difficulties assessing Ms Welch and inconsistencies. Critically, Dr Haig did not consider that she had suffered an injury to her cervical spine or left shoulder. Mr Jones also took me to Dr Panjratan’s reports, who he said accepted that the injury Ms Welch suffered was to her left elbow.
Mr Jones said that Dr Patrick’s report was infected by his understanding of the situation from the outset, when he described the mechanism of the injury, because there was no support for a forced injury to the left shoulder in the other material. He said, in summary, that Dr Patrick’s opinion, simply falls away, being based on false premise, and that Dr Kwong committed the same error.
In reply, Mr Gaitanis said that it was merely Mr Jones’ interpretation that Dr Haig and Dr Panjratan said that the shoulder and neck issues were related to radiating pain. It would have been open for them to say that but they did not. Mr Gaitanis said that the submission that the investigations were only undertaken in July 2015 to understand the radiating pain was mere speculation. He also said that it was inappropriate to look only at the 2015 radiology in a vacuum and that it had to be reviewed in context.
In respect of the early reports of injury, Mr Gaitanis said that the report of injury was merely a document that someone from the insurer reported recorded, and it was likely the investigator had limited themselves to asking Ms Welch questions only about her left elbow. He said it was irrelevant that Ms Welch had complained of pain in her elbow a few days before the incident because there was no dispute that she had suffered a significant crush injury to her elbow on 9 April 2015.
With respect to the general practitioner’s notes, Mr Gaitanis referred me to the decision of the President in White v Marist Youth Care Limited[1] at [42] (White) and said that there should be a cautious approach to use of the notes of a general practitioner who was not cross examined.
[1] [2023] NSWPICPD 41.
I asked counsel to specifically consider the terms of the referral to the Medical Assessor. They agreed that it should be in respect of the left upper extremity (elbow) and the ulnar nerve. The dispute lay in whether there should be a referral in respect of the shoulder and cervical spine.

FINDINGS AND REASONS

Ms Welch’s statement to the investigator dated 2 June 2015 is important because it is the first detailed description by Ms Welch of what occurred. Throughout the statement, she referred to her arm being stuck, not only her elbow. Her description of the weight of the line of cows on her arm as she tried to pull it out is graphic. Even without expert medical knowledge, it can be envisaged that more than just her elbow would be trapped and that a wrenching movement of her whole arm and neck would be required to free it.
On the day after the injury, Ms Welch saw Dr Chabbou, whom she had seen just over a week before for a painful elbow. Dr Chabbou’s note is short and he recorded a swollen, tender elbow and referred Ms Welch for an X-ray. His subsequent notes are also short and the first reference to Ms Welch’s shoulder is on 25 May 2015. On that day he referred Ms Welch to Mr Mercer. Dr Chabbou’s own short notes contrast with the more detailed note made by a medical student who saw Ms Welch with Dr Chabbou in July 2015.
The initial notification of injury was made on 21 May 2015, probably by Ms Welch’s employer. There is no evidence about how the notice was given and whether the description was provided by the employer or formulated by the insurer. At that time, treatment was focused on Ms Welch’s elbow.
The physiotherapist Mr Mercer who recorded that her left elbow and upper arm were trapped between the pole and the cow. The symptoms he recorded are more detailed than those recorded by Dr Chabbou.
The passage to which Mr Gaitanis referred me in reply is from the Court of Appeal decision in Mason v Demasi.[2] In White the President said:
[2] [2009] NSWCA 277.
“The Member was taken to and referred to the decision in Demasi. Basten JA found as follows in relation to the care to be taken with respect to reviewing medical records and how they ought to be approached in an evidentiary sense:
‘First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a)the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b)the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c)the record did not identify any questions which may have elucidated replies;
(d)the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e)a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.’”^’
Other appellate cases confirm those principles. In Davis v Council of the City of Wagga Wagga[3] the Court said that “experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury.” In Nominal Defendant v Clancy[4] Santow JA said:
“While clinical notes, …, may in common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive … clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document. It is fair to say a report to another doctor [or a medico-legal report] is likely to have been written with more deliberate consideration than rough notes.”
[3] [2004] NSWCA 34.
[4] [2007] NSWCA 349 at [54]-[55].
Ms Welch’s complaint about her difficulty communicating with Dr Chabbou was made well before her 2023 statement. In 2017 Dr Panjratan recorded a comment to that effect from Ms Welch’s partner, who attended the examination with her. Taking that statement into account with the previous complaint of elbow pain and the intercurrent stress-related issues for which Ms Welch sought treatment, I can more readily accept that Dr Chabbou did not record all of Ms Welch’s complaints initially. Mr Jones said it beggars belief that a doctor would not record or treat all symptoms but experience in this jurisdiction confirms that is sometimes the case.

I accept that Ms Welch told Dr Chabbou about that the pain in her neck and shoulder at an early point in her treatment. The injury to her elbow and her ulnar nerve were clearly significant in the minds of those treating her and was the injury most amenable to surgical treatment in the hope of a good result which has, unfortunately, not occurred. Dr Chabbou recorded the complaints with respect to Ms Welch’s left shoulder and neck within weeks of the injury and ordered investigations within three months.
Even if Ms Welch had not made early complaints about her neck and left shoulder, that would not have prevented a finding that she suffered an injury to her left shoulder and cervical spine, based on the medical evidence. The fact that Dr Chabbou formed a view that pain was radiating to Ms Welch’s shoulder does not prevent me from preferring the evidence of the specialists who have examined her and who have specifically considered the mechanism of injury.
The mechanism of the injury when Ms Welch pulled her trapped arm free is consistent with the description in Dr Patrick’s first report of her shoulder being forced into abduction with extension and internal rotation. Inevitably given the relative sizes of a cow and a woman described as 165cm tall, more than just Ms Welch’s elbow would have been trapped.
The same description of the injury was also accepted by Dr Kwong who said that Ms Welch had to pull her left arm to free herself, jerking her shoulder and neck. He considered that Ms Welch aggravated those injuries performing housework when her arm was in a sling. His report does not support a finding that Ms Welch only suffered a consequential condition in her left shoulder and neck but does support the conclusion that she suffered an injury.
Importantly, based on his consultation and examination in May 2016, Dr Panjratan accepted that the mechanism of injury was such as to cause injury to Ms Welch’s left shoulder and neck – being forced backwards with the shoulder tilting to the side straining the left side of her neck. He accepted that she suffered an injury to her cervical spine, which did not qualify for any impairment. He assessed permanent impairment of her left shoulder. Dr Panjratan resiled from that opinion in his second report when he was informed by the insurer that the relevant injury was Ms Welch’s elbow only.
Dr Haig’s opinion that there was no injury to Ms Welch’s neck and left shoulder because there were no findings on contemporaneous MRI scans is not persuasive. He did not provide reasoning to explain that statement and did not consider whether there was an injury not observed on that radiology. He made a statement rather than providing reasons for his opinion.
In his last report, Dr Patrick provided an “alternative or additional position” that Ms Welch suffered consequential conditions in her left shoulder and cervical spine, essentially based on Dr Critchley’s diagnosis of cervical radiculopathy. He did not provide any reason why those reports led him to the alternative conclusion, rather than confirming his finding that she suffered injury to her cervical spine.
Leaving aside Dr Patrick’s further opinion, I find, based on the substantive reports of Dr Patrick and Dr Kwong and the first report of Dr Panjratan, that Ms Welch suffered a strain injury to her left shoulder as well as an injury to her left elbow and ulnar nerve on 9 April 2015. Based on the reports of Drs Patrick and Kwong, I find that she suffered an injury to her cervical spine.
The parties agreed that the referral to a Medical Assessor should encompass the left elbow and ulnar nerve. Though there is a dispute as to whether the surgical scarring Ms Welch has is amenable to assessment, the assessment of any impairment is a matter for the Medical Assessor and it should be included in the referral.
For those reasons, I make these orders:
(a)    I remit the matter to the President for referral to a Medical Assessor to assess the applicant’s permanent impairment:
Body systems:                   left upper extremity (elbow, ulnar nerve and shoulder);
cervical spine, and
TEMSKI scarring.
Date of injury:  9 April 2015.
Method of assessment:     WPI.
(b)    The documents to be sent to the Medical Assessor are:
(i)ARD;
(ii)Reply;
(iii)MRI scan report of the left shoulder dated 14 July 2015, and
(iv)this Certificate of Determination.

[2024] NSWPIC 333

25 June 2024