Youssef and Telstra Corporation Limited [2000] AATA 1039 (27 November 2000)

Last Updated: 5 December 2000

DECISION AND REASONS FOR DECISION [2000] AATA 1039

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1889

GENERAL ADMINISTRATIVE DIVISION )

Re Sohair YOUSSEF

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr P D Lynch, Member

Date 27 November 2000

Place Sydney

Decision The Tribunal : 1. Sets aside the decision under review; and 2. Remits the matter to the Respondent with the Direction that, pursuant to s14(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), on and from 23 April 1996, the Respondent continues to be liable to pay compensation in accordance with the Act; and

3. Orders that the Respondent pay the Applicant's costs of these proceedings pursuant to s67 of the Act as set out in the Tribunal's General Practice Direction and in accordance with paragraphs 81 to 84 of these Reasons for Decision.

..............................................

M T Lewis

Presiding Member

CATCHWORDS

WORKERS COMPENSATION - whether fracture of right fifth metacarpal - whether applicant continue to suffer effects of work-related injury - credibility of applicant

Safety, Rehabilitation and Compensation Act 1988 ss4,14

REASONS FOR DECISION

27 November 2000 Mrs M T Lewis, Senior Member Dr P D Lynch, Member

1. This is a review of a reconsideration determination of an officer of GIO Australia dated 30 September 1998, which affirmed an earlier determination dated 23 April 1996 that Telstra Corporation Limited ("the Respondent") is no longer liable to pay compensation in respect of a claim made by Sohair Youssef ("the Applicant").

2. The Tribunal had before it documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documentary evidence was tendered on behalf of the Applicant:

* Report of Dr I J Isaacs, hand surgeon, dated 31 May 1999 (exhibit A);

* Reports of Dr G G Mahony, dated 18 November 1998, 24 November 1998 and 25 November 1998 (exhibit B); and

* MRI report of 31 October 1998 (exhibit C).

The following documentary evidence was tendered on behalf of the Respondent:

* Letters from the Respondent to Professor B Connolly dated 24 February 2000 and 29 February 2000 (exhibit 1);

* Two reports of Professor B Connelly, hand surgeon, both dated 10 November 1999 (exhibit 2);

* Two reports of Professor B Connelly, hand surgeon, both dated 29 February 2000 (exhibit 3);

* Clinical notes and other selected documents produced by Dr S Kyrillos (exhibit 4); and

* Selected documents from documents produced under summons from Prince Henry Hospital (exhibit 5).

3. The Applicant gave oral evidence at the hearing, as did Nancy Verchin, Kathy Lau, Steven Lane and Dr Mahony on behalf of the Applicant. Dr Kyrllios gave telephone evidence on behalf of the Applicant. Professor Connolly gave oral evidence, called by the Respondent.

background

4. On 23 December 1994 the Applicant injured her wrist when she fell on her way home from work after alighting from a bus. She was treated in hospital on the same day and an application for compensation was made. Liability to pay compensation was accepted by the Respondent. The Respondent ceased liability in respect of the injury with effect from 23 April 1996.

5. The only issue before the Tribunal is whether the Applicant continues to suffer the effects of the injury sustained in 1994 and related medical expenses. There is no issue in respect of the Applicant's left arm, permanent impairment, or weekly compensation payments.

applicant's evidence

6. The Applicant was born on 29 December 1955. She had an accident that involved her right wrist when aged 7 or 8 years. She had fallen with her right hand underneath her. She was taken to a friend nearby who was a doctor. She said he examined her hand and considered that there was no fracture. She did not receive any further medical attention for it and recalled that the following day she was "fine". She could not recall any problems with her right wrist or hand following that incident.

7. The Applicant commenced employment with the Respondent as an accounting machinist in September 1978. In 1994 she was employed as a billing and credit consultant. This involved answering telephone inquiries, using the computer system, and following up outstanding accounts. During her employment with the Respondent prior to 23 December 1994 the Applicant said she did not have any difficulties with her right hand or wrist.

8. On Friday 23 December 1994 the Applicant had an accident on her way home from work. She fell on the footpath after alighting from a bus. She was then taken to Prince Henry Hospital where she had X-rays taken of her right hand and wrist. A splint was then put on her right hand and she was told to keep it on until 29 December 1994 when she was to see a surgeon at Prince of Wales Hospital.

9. When she saw the surgeon she said he told her that it was not necessary to insert a pin in her hand and instead a plaster cast was applied. Her hand was in plaster for around six weeks and she did not work during that period. When the plaster was removed she said she was still experiencing a lot of pain, which she identified as being at the ulna border of her right wrist. She said she could not move her hand and was told movement would take a few weeks.

10. The Applicant returned to work in February 1995, as soon as the plaster was removed. She said that her hand was sore, and about a week after she got back to work she started strapping her wrist for support. She did this on her own initiative and without medical advice. She could not use the keyboard so she used a pen to punch in the numbers. When eventually her hand became a little bit better she stopped using a pen on the keyboard.

11. The Applicant saw her general practitioner, Dr Kyrillos, after that time for unrelated medical problems which she said were "much more important" to her than anything else. After she had returned to work for three months she underwent surgery for those problems.

12. The Applicant consulted Dr Kryllios on 1 November 1995 for pain in her left thumb. She continued to complain of left thumb pain for the following month. The Applicant went to Prince Henry Hospital on 17 January 1996 in relation to her thumb. She provided a history that three months earlier she woke with left thumb pain and since then she had intermittent pain that varied with the weather. She also complained that she had difficulty holding objects. She attended Prince Henry Hospital again on 22 January 1996. She made no complaint about her right wrist on either of these occasions. She said that as she was referred for physiotherapy for her left thumb she did not think they needed to know about her right wrist.

13. The Applicant attended Prince Henry Hospital again on 22 March 1996 in relation to her left thumb. She said that on 18 April 1996 she told the doctor at Prince Henry Hospital that she had some pain in her left thumb as well as her right thumb and she "may" have said in both her hands. However, she could not recall if she said that she had problems with her right wrist. In late April 1996 the Applicant consulted Dr Kyrillos in relation to pain in her right thumb and Dr Kyrillos again referred her to the Prince Henry Hospital for treatment in respect of that.

14. In cross-examination the Applicant said that 11 June 1996 was not the first occasion on which she had told Dr Kyrillos about her fall in December 1994.

15. The Applicant said she had her right wrist strapped at the time she saw her doctor and she commented informally to her doctor that her wrist was "sore and need to be strapped for support". She said she strapped her wrist approximately three or four times a week. She did not strap it everyday because someone told her that it was not good to strap it all the time. She said she continued to experience pain in her hand and wrist throughout 1995. She indicated that the pain was mainly in the central dorsum of the wrist.

16. The Applicant said that when she first started to strap her wrist at work in 1995 people asked her what was wrong and she told them that her hand was very sore. When asked if she has continued to complain from 1995 to the present time she said -

"When they see me and they ask me I say I am in pain and sometime I am in so much pain that I'm nearly in tears when they ask."

17. The Applicant alleged that she responded to the letter from the Respondent dated 21 March 1996 (T12) in which she was asked whether she was still having problems arising from the December 1994 injury. She said that she telephoned in reply to that letter and advised that she continued to experience discomfort in her hand, but noted that she did not receive any treatment for it.

18. The Applicant continued to have problems with her wrist, which had worsened since 1995 and became worse still in 1997. On 30 January 1997 the Applicant consulted Dr Kyrillos because of muscular spasms in her right arm. Dr Kyrillos referred her for an x-ray and consultation with Dr Myers. The Applicant told Dr Myers that she had broken her wrist in the fall in December 1994. She recalled that she told him that after her 1994 injury she was able to return to work but with some intermittent discomfort in her hand relating to weakness of grip and that she noticed this particularly when opening jars. She advised Dr Myers that the consultation was in relation to a compensation claim regarding the fall in December 1994. She agreed that she told him that she had pain in both her arms, but she could not recall whether she told him that this had developed over the six months prior to the consultation. She also had some clicking in her wrist, which she understood he was able to observe during his examination

19. The Applicant was then referred for consultation with Dr Mahony on 1 September 1998. She said she told him that since returning to work after the plaster was removed she had not had any other treatment in relation to her right wrist. However, she had been treated extensively over the period January 1996 to January 1997 in relation to her thumbs and hands. An MRI scan was requested by Dr Mahony. She said he has suggested she have an operation to her wrist.

20. In cross-examination the Applicant rejected the suggestion that she did not suffer an injury to her right wrist in her fall in December 1994, and that her problems did not in fact commence until January 1998. She said that she had pain that worsened in 1998.

21. The Applicant saw Dr Isaacs at the request of her solicitor in May 1999. She also told Dr Isaacs that she fractured her wrist in the fall in December 1994. She did not recall telling Dr Isaacs that she was able to return to her normal duties and do all of her household tasks without discomfort. She said she was experiencing discomfort but was able to do light duties and her housework. She could not recall telling Dr Isaacs that she began to get pain in her right wrist about 12 months following the accident but added "maybe I did". She said she experienced pain and discomfort as soon as the plaster was removed. The Applicant agreed that by the time she saw Dr Isaacs she knew that the Respondent had refused to pay for further treatment. She was aware that the reason for this was Dr Myers' belief that her current problems were related to her fall as a child and not the 1994 fall.

22. The Applicant said she took three days off work in December 1999 because she was in tears as a result of the pain in her right wrist. She said she consulted her local doctor and submitted a medical certificate in relation to this time off work, but she did not claim compensation. During her sick leave she had physiotherapy, which she has continued for at least one day per week since 1999.

Nancy Marie Janine Verchin

23. Ms Verchin is employed by the Respondent. She has known the Applicant since 1996. In 1996 she did not work near the Applicant, but saw her approximately once a month. In 1997 she worked on the same team as the Applicant, and saw her every day. She noticed that in 1997 the Applicant had a bandage around her wrist almost every day. She continued to work near the Applicant until some time in 1998 when the Applicant went to work in a different team. Despite the relocation of the Applicant's work Ms Verchin has continued to see her each day and she has observed that the Applicant still bandages her wrist. She said that the Applicant has complained to her about her wrist since 1997.

24. Ms Verchin observed that the Applicant could not type properly and was tearful once or twice a week. She observed that the Applicant wore the bandage on her wrist more often than previously and that her face expressed her suffering.

Kathy Lau

25. Ms Lau has been employed by the Respondent for ten years. She first met the Applicant when they worked in the same team in 1993, where she saw her everyday. Ms Law said she did not observe that the Applicant had any problems with her wrist in 1993 and was able to perform her duties without complaint.

26. Ms Lau was aware that the Applicant had an accident at the end of 1994. After the Applicant returned to work in 1995, Ms Lau was still in the same team as the Applicant and noticed that her right arm was "strapped up" almost every day.

27. From the latter part of 1995 until the beginning of 1996 Ms Lau worked in another location and did not see the Applicant during that time. When Ms Lau returned in 1996 she was in the same general location as the Applicant and saw her every day. She observed that the Applicant was still strapping her wrist a few times a week. She observed this until the Applicant moved to Liverpool Street (which appears to be about 1997). She said that from 1995 until the Applicant moved she often complained about her wrist.

Stephen Evan Lane

28. Mr Lane has been employed by the Respondent since 1990. At the end of 1993 or in early 1994 the Applicant joined the same team as Mr Lane and they became "pretty close". During 1993 and 1994 Mr Lane worked next to the Applicant and did not observe that she had any problems with her right wrist. He continued to work in the same position next to the Applicant in 1995 and noticed that she "always" wore a bandage on her right hand.

29. Mr Lane travelled overseas between April and August 1995, and then returned to his previous position. He was positioned about "three desks" away from the Applicant. He saw her every day and said that she was "continually wearing a bandage". In February 1996 a new structure was introduced but he continued to see the Applicant nearly every day and noted that she was still bandaging her wrist. Mr Lane said that in 1996 the Applicant appeared to be having trouble with her right wrist. He deduced this "from the look of pain on her face" and discussions with her. From 1997 Mr Lane has continued to see the Applicant but they work on different floors. He said that he sees her two or three times per week and observes that she still bandages her right wrist.

medical evidence

30. Dr Myers, orthopaedic surgeon, provided a report to Dr Kyrillos dated 28 April 1998 (T16), noting that the "major reason" for the consultation was that she was seeking compensation. He noted that the Applicant had a fall on 23 December 1994 in which she suffered a fracture to the base of the right fifth metacarpal, for which original X-rays were not available. He noted that she was treated in a cast for 6 weeks and the fracture united. He recorded a history that over the previous six months or so the Applicant had developed bilateral dorsal forearm pain. She also had some clicking of the dorsoulnar aspect of the wrist and noted increased grip strength weakness.

31. Dr Myers noted that x-rays on 15 March 1998 revealed -

... an old chip fracture on the tip of the ulnar styloid. There is also some irregularity on the ulnar side of the base of the 5^th metacarpal. The allignment of the 5^th carpometacarpal joint appears normal and there is no radiological evidence of post-traumatic osteoarthritis. There was a slight increase in the scapholunate gap on the right but no signs of inter-closed segmental instabilities.

32. Dr Myers noted on examination that -

there was no swelling or deformity in the right hand. There was tenderness diffusely in the wrist and hand. The maximum area of tenderness is over the dorsal aspect of the radioscaphoid and radiolunate articulation. There is also tenderness over the base of the 5t^h metacarpal with some minor crepitus on ballottment of the 5the carpometacarpal joint. There was pain in ballotting the index and middle carpometacarpal joints but no crepitus. The Watson's test of scapholunate instability revealed a click bilaterally which was painful bilaterally. There was also diffuse tenderness in the dorsal compartment of the forearm and around the lateral side of the elbow. The maximum area of tenderness was distal to lateral epicondyle over the radial tunnel. There was slight discomfort on resisted supination. There was also diffuse pain in the dorsum of the forearm with resisted wrist and finger extension. The pain with resisted finger extension was not localised to the lateral epicondyle. There was no irritability in the shoulder or cervical spine. The wrist and finger range of movement was full. The grip strength was 22 kg on the right compared with 30 kg on the left. There was no neurovascular or tendon dysfunction in the hand or wrist.

33. Dr Myers noted that the Applicant had some clinical signs of post-traumatic osteoarthritis in the 5^th carpometacarpal joint, that could be attributed to her injury in 1994. He also said -

The subsequent symptoms in the dorsal forearm and wrist are unrelated to her work injury and more likely to be as a result of her injury at the age of 8 and/or complications of diabetes. In particular she has some signs of radial tunnel syndrome. She also has some signs of pain amplification.

34. Dr Myers noted that the Applicant had sustained a fracture of the right wrist at the age of eight, and he considered it likely from x-rays that she has a fibrous union of an ulnar styloid fracture from that time associated with a distal radial fracture which is united. He stated -

Over the last six months or so she had developed bilateral dorsal forearm pain. She has also developed some clicking on the dorsoulnar aspect of the wrist and has noted increased grip strength weakness.

35. The Applicant was then referred by Dr Kyrillos to Dr Mahony, orthopaedic surgeon, and he reported on 2 September 1998 (T22). Dr Mahony understood that x-rays taken following the injury on 23 December 1998 showed a fracture of the right ulna styloid and a fracture of the base of the right fifth metacarpal. He noted that -

A splint was applied and about 5 days later the left wrist and hand area were immobilised in plaster. The plaster was retained for 5-6 weeks. She was off work for about 6 months and continued her work as a credit manager. She has not lost further time from work and has not had other treatment.

...

She has pain in the right wrist, it radiates to the right elbow. The radiating pain to the elbow has been present for a few months, recently she has noticed pain in the right shoulder. She has occasional pins and needles of her right hand. She has some pain in the left low forearm She did not complain of any neck symptoms.

....

Examination of the right wrist

There was the complaint of tenderness on palpating the dorsal aspect of the ulna carpal joint and there did appear to be some instability of the inferior radial ulna joint. Right wrist movements appeared restricted in extremes of dorsi and palmar flexion, remaining movements were within normal limits. ...

Xrays of the right wrist

Dated 1.11.95 - There has been a fracture of the ulna styloid and there is a separated fragment. The fracture of the base of the fifth metacarpal appears to have united.

Further xrays

Dated 15.3.98 - Confirmed the presence of an ununited fracture of the ulna styloid. Fracture of the fifth metacarpal has united in good position.

Opinion

Mrs Youssef has sustained a fracture of the distal aspect of the ulna styloid and also appears to have sustained a fracture of the base of the right fifth metacarpal. She also has some instability of the inferior radial ulna joint and the possibility of an injury to the triangular fibro-cartilage could not be excluded.

It is consistent that the ... fall she described could have produced such lesions.

She also has symptoms referable to a generalised strain of the left dorsal distal forearm musculo-tentinous area which could be associated with use of the left arm in order to protect the right arm.

36. An MRI scan of the Applicant's right hand was performed on 31 October 1998 that was reported as follows (exhibit C) -

... The triangular fibrocartilage appears to be torn from the ulnar styloid attachment. The radial attachment is intact. Fluid is noted extending into the inferior radio-ulnar joint with a distended recess. No associated fracture of the base of the ulnar styloid process is seen. The tear extends vertically in the sagittal plane just short of the tip of the ulnar styloid process.

The radio-lunate joint shows some thinning of the cartilage on the lunate side. This is associated with slightly irregular cortex. The scapho-lunate ligament appears to be intact. The luno-triquetral ligament is probably intact but not well demonstrated.

The ulnar collateral ligament appears to be a little thickened. There also appears to be some thickening of the dorsal capsule over the ulnar side.

The carpal bones appear to be intact. The carpal tunnel structures are normal and the median nerve is normal in thickness. The ECU tendon is seen within the groove and appears to be normal.

Conclusion: There is a tear in the triangular fibrocartilage at the ulnar styloid attachment site with fluid distending into the inferior radio-ulnar joint. The carpal bones appear to be intact. There also appears to be early degenerative joint disease involving the radio-lunate joint.

37. Dr Mahony then provided a report dated 24 November 1998 (exhibit B) presumably in respect of the Applicant's compensation claim, noting the results of the MRI report and stating that he did not agree with Dr Myers' opinion.

38. Dr Mahony attended the hearing at the request of the Applicant's Counsel to give evidence to the Tribunal regarding the accuracy of MRI scans. He considered the MRI to be a very reliable test and said that was supported by the literature. In his experience it has been accurate. He was aware of criticisms made regarding MRI's, but was not aware of any literature that could support such criticisms. He acknowledged that it is often said that MRI scans show both false positives and false negatives, but no study has been undertaken to prove that hypothesis.

39. Dr Mahony disagreed with the opinion of Professor Connolly that a tear of the cartilage of the wrist might occur during the course of normal day to day activities. He said that diabetics did not usually suffer from arthritic joints as a complication of diabetes, although they are prone to other problems. He considered that an injury to the triangular fibro cartilage would not occur in a diabetic without some other cause. He also considered that day to day activities would not produce an injury to the triangular fibre cartilage.

40. Dr I J Isaacs, hand surgeon, provided a report dated 31 May 1999 (exhibit A) on behalf of the Applicant for the purposes of these proceedings. Dr Isaacs was not provided with the history of the Applicant's wrist injury when aged eight years. He recorded a history that after she resumed her normal duties her discomfort settled quickly and she was able to do her work and her household tasks without any discomfort. He noted that some twelve months after the injury she started to experience pain in the ulnar side of the right wrist radiating to her forearm, aggravated by using computers at work and associated with loss of strength in her hand. Dr Isaacs interpreted the X-rays as follows -

Mrs Youssef had with her x-rays of her right wrist taken on 1^st January 1995 which showed a sclerotic ossicle distal to the ulnar styloid. There was no irregularity of the carpo-metacarpal joint of the little finger. Further x-rays of 15^th March 1998 showed no change in this appearance. A bone scan study of 1^st September 1998 showed increased uptake of the right ulnar styloid and the distal radio ulnar joint. There was no evidence of any carpo-metacarpal joint problem.

41. Dr Isaacs opined -

I believe this woman sustained an injury to the triangular fibro cartilaginous complex of her right wrist in her initial fall in 1994. The x-rays taken in 1995 show a very old sclerotic ulnar styloid non union which, I agree, is most likely related to a childhood injury but in the normal course of events one would expect a young person to have recovered from this and not go on to have persistent problems from a tear of the triangular fibro cartilaginous complex.

There is twelve month period where she was relatively free of symptoms and this is difficult to explain but at this presentation now the signs are all of a significant lesion of the triangular cartilaginous complex with no evidence that there has been any specific injury to the carpo-metacarpal joint of the right little finger.

...

42. Professor Connolly has provided four reports to the Tribunal (exhibits 2 and 3). He was initially of the opinion that the Applicant had sustained an injury to the right distal radioulna joint as a result of the fall on 23 December 1994. He considered it was significant that Dr Myers did not find swelling or deformity, but rather diffuse tenderness over the wrist and hand. [However, as noted (supra), Dr Myers did report "swelling deformity of the right hand"]. Professor Connolly said that the finding of diffuse tenderness made it difficult to localise to one problem, and he anticipated that Dr Myers had experienced similar difficulties in trying to come to a specific diagnosis.

43. From the information available from the report of Dr Mahony, Professor Connolly believed that because the Applicant had six months off work and then continued her work as a credit manager, losing no further time from work and having no other treatment, she had not had a "major problem".

44. Professor Connolly noted that Dr Mahony's findings that there was instability of the inferior radial ulna joint might or might not be a normal finding. However, he said that finding was not consistent with the Applicant having no other treatment and having lost no time from work.

45. Professor Connolly obtained a history from the Applicant on 10 November 1999 that -

she had a persistent soreness of her right hand and also the left shoulder and that she had lost dexterity in her right hand and had a weakness and pain, and the pain stopped her sleeping. She took tablets daily for pain but she stayed at work.

Professor Connolly reported on his examination in the following terms -

This lady is of short stature and ... fairly obese, weighing 78 kilograms and that's relevant because different people, different constitutions, different ages, different sexes get different conditions in life.

...

She complained of tenderness when I pressed her right distal ulnar and distal radio-ulnar joint. There was no crepitus and there was a full range of movement of her forearm which meant movement of that particular joint ....She had sixty degrees of flexion and of extension and normal deviation and she had normal movements of her fingers and thumb.... She had tenderness to deep pressure over the fifth meta-carpal joint which is a little beyond where the distal radio-ulnar joint is ... she had a grip strength of 20 kilograms on both right and left hands... she had some signs suggesting that she had a mild carpel tunnel syndrome on the right hand. ... normal sensation and circulation in her right hand.

46. Based on the history obtained from the Applicant and the material that was available to him, Professor Connolly opined that the fall on 23 December 1994 had caused an injury to the distal radioulnar joint. However, after considering the clinical notes of Dr Kryillos and Prince Henry Hospital at a later point, Professor Connolly noted that the first mention of right wrist pain in Dr Kyrillos' notes was in February 1998. He then opined that it was unlikely that there was a significant wrist problem because the Applicant saw Dr Kyrillos on numerous occasions without it being mentioned.

47. In his report of 29 February 2000 (exhibit 3) Professor Connolly noted that any distal radioulnar joint problem might be the result of an earlier fracture sustained in her childhood. In his oral evidence he noted that there was some functional overlay in the Applicant's presentation in relation to complaints of pain in both arms and both shoulders. Although she complained of tenderness on pressure he found a full range of wrist movement. He noted that her complaint of tenderness of pressure was a subjective finding which was not consistent with any significant injury to the right distal radioulnar joint. He also considered it significant that the Applicant had made no complaint about her wrist to Dr Kryllios in 1995 or 1996.

48. Professor Connolly opined that it was possible that the fall sustained by the Applicant when she was about eight years old and the associated fracture could have caused a tear of the cartilage; however, it was unlikely. He opined that it was possible for such a fracture to occur and for a child not to complain about it. He said it is often a minor fracture in a child and one that is often missed. However he considered it improbable that if the Applicant had no problems between the age of eight and 1998 when she complained of wrist pain, that her childhood injuries caused her current problems.

49. In his oral evidence Professor Connolly opined that (transcript p51-52) -

Ladies of this age and this body build with diabetes can have complaints in hands and arms which are part of life and daily routine ... she may have had a sprain ...There's been a discrepancy between the various findings of various people and doctors and notes and hospitals ... my summation of the situation is that ... she fell ... she had a soft tissue injury. I think the fractured ulna styloid is old, as Dr Isaac stated. She could have sprained the wrist joint in some way. There's been diffuse tenderness and the only positive finding, objective positive finding, is an MRI scan which shows a partial tear of the triangular disc. But the MRI's are not always ... there are false negatives and false positives and if she had an MRI of the other wrist it is possible that there was a partial tear. So the MRI must be taken into context. If there is a full range of movement and normal deviation then I don't think there is a serious problem with that joint. Now many people of this age and body build and ... diabetes is one of those general medical conditions which makes one prone to muscular skeletal problems and I think if there had been a significant injury to that joint and that disc, then there would have been complaints and treatments much earlier than has been recorded.

50. Professor Connolly opined it was unlikely that there was a nexus between the Applicant's fall in 1994 and her present problems, and therefore she has not reasonably required any medical treatment as a result of the fall beyond April 1996.

51. Professor Connolly noted that Dr Rassiar, Prince Henry Hospital, in his report dated 23 December 1994, found no tenderness over the distal ulnar, but recorded tenderness at the fifth metacarpal base, some 2 or 3 cm. from the distal ulnar. Dr Rassiar recorded a "displaced transverse fracture of the base of the fifth metacarpal" and good range of movement. However, Professor Connolly noted that it would be unlikely that there was a significant injury to the distal radial ulnar on those signs.

52. Despite the abovementioned evidence of Professor Connolly, he then made a series of concessions to the Tribunal in his oral evidence. He conceded that the Applicant could have had a partial tear or sprain of the wrist from her fall in 1994. However, he said that most people do not have full movement with a torn cartilage, but would have a "click". It should be regarded as a "very minor injury".

53. Professor Connolly conceded that the Applicant may have experienced some pain in her wrist, although he did not consider it was necessarily attributable to a tear in the cartilage. Apart from noting the inaccuracy of MRI's, he said (transcript p55) -

There's been an absence of finding of a crepitus or clicking, an absence of impaired deviation or rotation. This ligament enables you to rotate your wrist fully and forearm fully and if you have a torn cartilage, difficult to do that. And the findings have mostly been that she hasn't had impaired deviation or rotation. .... If you have a torn cartilage you should have some loss of movement.

54. Professor Connolly noted that "the wear and tear of ordinary daily life of housework and other activities" could cause this result in a woman of 44 years. The fact that she bandages her wrist did not change his opinion as "she's right hand dominant, she does use her wrist for everything else". However, he agreed that if she has favoured her wrist throughout the period 1994 to 2000 it is less likely that an injury has occurred as part of life's normal course and more likely that the injury occurred as a result of her fall in 1994. Professor Connolly said (transcript p60) -

... it could be that this lady has some wrist arthritis. The bone scan indicated mild degenerative disease of the right radius carpal joint, the wrist joint, and over the head of this process. That's enough to cause pain sufficient to strap your wrist and see the doctor. That can happen without an injury.

However he conceded that the 1994 fall could be a contributing factor to the Applicant's present problems. As to the relationship between the degenerative disease in her wrist and the fall in 1994, he opined that it would have had some effect, but not a major effect. He also believed the "effect of the fall should have now stopped" and the osteoarthritis in the wrist was related to wear and tear rather than the fall.

55. Professor Connolly's clarification of his opinion in response to questions from the Tribunal appeared to constitute a significant modification of the evidence he had given previously. In summary, he agreed that the Applicant's diabetes was mild but that it could cause a predisposition to problems arising from the 1994 injury that she would not otherwise have had. He agreed that if there had been a healed fracture there should have been some radiological sign of that, even without displacement. He agreed that the 1994 injury showed no radiological evidence of fracture but it was treated like a fracture. He considered it was easy to misjudge a small projection at the fifth metacarpal as a fracture. Indeed, he said that it was unlikely that the Applicant suffered a "significant fracture that results in the problem thereafter and it may not have been a fracture". He noted that despite the X-ray appearances showing a step at the base of the metacarpal, there was no residual crepitus and "that seems to have recovered anyway". He agreed that in the light of the history of the Applicant's fall in 1994 it was reasonable to assume that her symptoms following the fall were related to that injury. He agreed that contusion to the cartilage was notorious for causing protracted symptoms. However, he considered the effect of the 1994 fall should have stopped by now. Also, he did not think the osteoarthritis visible on bone scan was related to the fall, but rather it arose from wear and tear. He considered that the loose fragment of bone near the ulnastyloid shown in the 1995 X-ray was unlikely to be related to the 1994 incident.

56. Dr Kyrillos, is the Applicant's general medical practitioner. She was aware that the Applicant had an accident involving her right wrist and said that the Applicant had complained to her about pain in her wrist since about 1995, when she consulted her about other medical problems. She observed that most of the time when the Applicant attended her practice she had a bandage on her right wrist.

57. Dr Kyrllios explained the absence of any reference in her clinical notes to the Applicant experiencing difficulties with her right wrist between 12 September 1995 to 31 January 1998. She said it was because the Applicant did not want any action taken regarding her right wrist. Dr Kyrllios considered that the Applicant had "a very high tolerance of pain". She also said that it was not her practice to record each and every complaint made by a patient. She noted that the Applicant had complained to her on various occasions about pain in her left arm, and she referred her to Prince Henry Hospital for treatment in relation to that pain.

58. Dr Kyrllios considered that what the Applicant raised in the course of a consultation was her choice and Dr Kyrllios "would not intrude on her privacy". She said she would have made a record of the Applicant's complaints if the Applicant had suggested it, but when the Applicant had attended the surgery wearing a bandage on her wrist she did not consider that had to be recorded when the consultation was for other reasons. She said she did not refer the Applicant for treatment in respect of her right wrist because the Applicant did not ask her to do this.

59. In relation to a diagnosis of the Applicant's right wrist condition, Dr Kryllios said she considered the issue in 1998.After having had an x-ray taken, she considered there was a fracture of the wrist, the Applicant had "a bit of difficulty" using the wrist, and there was "a bit of early arthritis and displacement" resulting. She did not examine the Applicant's wrist prior to 1998.

60. Dr Kryllios was not "quite sure" about the fracture of the Applicant's wrist when she was a child but she opined that the fracture in 1994 was the cause of her arthritis in her right wrist.

61. In light of Dr Mahony's report regarding a fracture of the base of the right metacarpal and a tear of the triangular cartilage, Dr Kryllios said that sometimes when there is a fracture, there can also be a tear in the cartilage of the joint, fluid can get in and this causes pain.

62. Clinical notes from Prince Henry Hospital (exhibit 5) includes an x-ray report of the right hand taken on 23 December 1994 that stated "there is no fracture or dislocation seen". However, in a letter written by Dr Rassiar, Prince Henry Hospital, dated 23 December 1994, the results of x-rays were recorded as follows -

Displaced, transverse # base of 5^th R metacarpal. 4mm thick disc of bone appears displaced 4mm medially. Articular surface seems intact.

Dr Rassiar also recorded a history of "# of R wrist as a child".

consideration of evidence, submissions, and findings

63. The central issue in this matter is whether the Applicant is credible. It was submitted for the Applicant that she and her workmates were credible witnesses. Her workmates confirmed that the Applicant did not experience any difficulties with her right wrist prior to 1995, and thereafter she had a bandage on her wrist and complained of pain. It is submitted that the Applicant also complained to Dr Kyrillos about pain in her right wrist since 1995, but not prior to that time.

64. It was submitted for the Respondent that the Applicant was not a credible witness. She gave evidence that she was told at the hospital that she suffered a fractured wrist in her fall, but this is not reflected in the hospital records. She also gave evidence that she told Dr Myers and Dr Isaacs what she was told at the hospital, but there is no record of this in either of those doctors' reports

65. The Tribunal is reasonably satisfied, on the basis of the Applicant's evidence and the clinical notes from Prince Henry Hospital, that the Applicant was told that she suffered a fractured wrist as a result of the 1994 fall. It appears that although the radiologist did not consider there was evidence of a fracture, Dr Rassiar was clearly of the view that there was a fracture. It is reasonable to expect that was the information communicated to the Applicant. Dr Myers recorded a history that the Applicant sustained a fracture of the base of her right 5^th metacarpal (T16). Dr Isaacs (exhibit A) recorded a similar history. Dr Kyrillos explained in her evidence that she had been aware of the Applicant's injury to her right wrist even though that had not been the focus of her consultations for some time and nothing had been recorded in her clinical notes.

66. It was submitted for the Respondent that the Tribunal should have some difficulty accepting Dr Kyrillos' evidence. The Applicant gave evidence that she told Dr Kyrillos about her wrist problems from the start. However, despite the fact that Dr Kyrillos gave evidence to this effect, her clinical notes do not support this. It was submitted that an experienced medical practitioner who was treating the Applicant for hand, arm and thumb problems would make a note of a wrist problem, especially as Dr Kyrillos noted that the Applicant almost always wore a bandage on her right wrist. She was referred for treatment in relation to her left thumb, but on the evidence of Dr Kyrillos the Applicant's wrist was not examined until January 1998. One could infer that this was the first time any significant complaint was made or any examination undertaken in relation to the right wrist. It was submitted that the Tribunal should have regard to the fact that the Applicant had about 102 separate attendances either upon Dr Kyrillios or the Prince Henry Hospital, yet there is no reference to a right wrist problem until January 1998.

67. The Tribunal takes a different view of Dr Kyrillos's evidence. Some criticism may be made of her taking such a passive approach to the Applicant's apparently ongoing problem with her right wrist. However, on the basis of Dr Kyrillos's evidence, the Tribunal is unable to accept the Respondent's submissions that the absence of her clinical records until 1998 in respect of the right wrist, is some indication of there being no evidence of such a problem. Indeed, it seems likely that the Applicant's motivation to initiate a consultation about her right wrist in 1998, arose from a decision to pursue her entitlement to compensation. It seems possible that after failing to get support for her case from Dr Myers, the Applicant then sought consultation with Dr Mahoney. On the basis of Dr Mahoney's report she then sought reconsideration of the earlier decision to cease liability in respect of the right wrist condition. Although the Applicant has obviously not acted in her best interests in not pursuing her compensation entitlement in a timely manner, her failure to do so, and her failure to seek medical treatment for the condition, should not be over-interpreted as evidence against the existence of any ongoing pathology arising from the 1994 fall. Moreover, Dr Kyrillos' omissions should not be visited upon the Applicant.

68. Although it is curious that Dr Rassiar and Dr Myers have also recorded a history that the Applicant fractured her right wrist when she was about eight years old. Yet the Applicant's evidence is that she fell on her wrist, a neighbour who was a doctor considered she did not need treatment, and by the next day she was "fine", there is no evidence that she had any residual problem following that fall. Hence, even if she did sustain a fracture, the Tribunal finds that she had no further problem with her right wrist until the injury she sustained on 23 December 1994.

69. The Tribunal gives some weight to the fact that the Applicant's evidence is corroborated by three of her workmates who, variously, have been in a position to observe her before and after her fall. There has been no allegation of collusion with these witnesses. The Tribunal finds that the Applicant is credible. Nonetheless, the Tribunal also finds that she is not a careful historian, causing her to provide histories to various doctors at various times that differ to some degree. However the Tribunal is not reasonably satisfied that that has been done with intent to misrepresent.

70. There is conflict of medical opinion as to whether the Applicant ever sustained a fracture as a result of the 1994 fall, although the Tribunal finds that the injury was treated as a fracture, and therefore it was a significant injury. It is not clear whether the evidence of an old fracture relates to the 1994 incident or the fall when she was aged eight years. In any event, the pathology now causing the problem is not from a fracture, but from a triangular fibro cartilaginous tear, demonstrated on an MRI scan, with fluid distending the inferior radio-ulnar joint.

71. The Tribunal finds that the Applicant has had chronic symptoms of pain and discomfort in her right wrist. The onset of these symptoms is somewhat unclear. On the Applicant's evidence she has had the symptoms at least since the plaster was removed from her wrist in February 1995. However, on the history she gave to Dr Isaacs the symptoms developed some twelve months after the injury and on the history she gave to Dr Myers they developed about October 1997.

72. The Tribunal notes from the Prince Henry Hospital clinical notes (exhibit 5) that from January 1996 the Applicant has had pain in her left hand and some months later it also developed in her right hand - that is, both thumbs and both forearms. She attended Prince Henry Hospital regularly throughout 1996 for those problems, but at no time did she complain about pain in her right wrist. The significance of this history is that there was obviously some distinct and separate condition occurring in both her upper limbs, more extensive anatomically than the condition in her right wrist., That might help to explain the conflicting history she has given regarding her right wrist condition insofar as the other conditions also related to her upper limbs. The history that the Applicant provided to Dr Myers that over the previous six months or so she developed bilateral dorsal forearm pain, is irrelevant to the claim in respect of the Applicant's right wrist.

73. Giving consideration to Dr Myers' report, he does give some support to the Applicant's case insofar as she has some clinical signs of post-traumatic osteoarthritis in the 5^th carpometacarpal joint, that could be attributed to her injury in 1994. However, the evidence of osteoarthritis as such is quite equivocal. Dr Myers associates the symptoms in the dorsal forearm and wrist to be more likely to have arisen from the injury at the age of eight and/or complications of her diabetes. It is not clear how he came to that conclusion, and the Tribunal gives little weight to it. The Tribunal accepts the submission for the Applicant that the MRI scan had not been performed at the time of Dr Myers' report and so he has not had the benefit of it in formulating his opinion.

74. The Tribunal finds that although MRI scans have a reputation for providing false positives and false negatives at times, in respect of this matter the MRI provides confirmation of the clinical findings and the x-ray evidence. The Tribunal prefers the opinion of Dr Mahony, that the Applicant had a tear of the triangular fibro cartilage arising from the 1994 accident. This was confirmed by the MRI report. This leaves open whether the Applicant actually sustained a fracture of the 5^th right metacarpal and allows for the possibility that such a fracture did not arise from the fall.

75. The Tribunal notes the differing submissions of the parties in respect of Professor Connolly's evidence. The Tribunal notes that he based his opinion on the fact that the Applicant made no complaint to Dr Kryllios between 1995 and 1997. Having found as we have in respect of Dr Kryllios's role in this matter, the Tribunal cannot accept Professor Connolly's assumptions. Moreover, as a result of the way in which Professor Connolly presented his evidence and the change in his opinions and the concessions he made from time to time, the Tribunal finds his evidence rather confusing and unhelpful. His opinion appears to be based on generalisations without taking much account of the particular facts relevant to this Applicant. Therefore, we give little weight to his opinion.

76. It was submitted for the Respondent that Dr Mahony is the only person who supports the Applicant's assertion that she fractured her ulna styloid process in the fall in December 1994. Dr Mahony's support is given on two bases: firstly, on the basis of what the Applicant told him of the X ray findings; and secondly, his view that a fracture of the distal ulnar process would not have occurred at a young age. The Tribunal does not accept the part of Dr Mahony's opinion that relies on the existence of a fracture. As stated already, the Tribunal is prepared to leave open its finding as to whether the Applicant actually suffered a fracture of her wrist, but if she did, then the fracture itself has not left her with a residual problem. While noting above that the Tribunal relied on an aspect of the opinion of Dr Mahony, we hasten to add that we found Dr Mahony to be inappropriately rigid and dogmatic in giving his evidence on issues that the Tribunal does not consider to be clearcut. This is a matter where, at the end of the day, the Tribunal has used its own expertise to consider the whole of the evidence and form its conclusion on the basis of that evidence. In so doing, we note that the outcome is consistent with that reached by Dr Mahony in respect of the triangular cartilage tear, although it is by no means accepting Dr Mahony's evidence in its entirety.

77. In summary, the Tribunal finds that the Applicant suffered an injury to her right wrist on 23 December 1994, and that she continues to suffer pain and discomfort arising from that injury. There is no evidence that this condition causes her to be unable to perform her pre-injury work. She has apparently made no claim for incapacity for work arising from that condition since the Respondent ceased liability in respect of the condition with effect on and from 23 April 1996.

78. The Tribunal is reasonably satisfied that the Applicant's condition meets the definition of "injury" found in s4 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"), and that on and from 23 April 1996 the Respondent continues to be liable to pay compensation in accordance with the Act pursuant to s14(1) of the Act.

costs

79. In respect of the Applicant's costs in relation to these proceedings, it was submitted for the Respondent that in the event that the Tribunal finds in her favour she should not be awarded the cost of attendance of Dr Mahony at the Tribunal. It was submitted that Dr Mahony was specifically called to give his opinion as to the accuracy of the MRI scan and the associated diagnosis. It was submitted that that was a matter conceded by the Respondent prior to Dr Mahony giving his evidence.

80. The Tribunal notes that the Respondent argued during the course of the hearing that Dr Mahony was not required by them to give oral evidence. It was also argued by Counsel for the Applicant that because Professor Connolly's oral evidence was that MRI tests were unreliable, the Applicant had the right to call Dr Mahony to give evidence in reply to that evidence. The Tribunal would agree with the submission for the Applicant on that issue, and notes that it was helpful to hear Dr Mahony's evidence on that issue. Moreover, the Tribunal notes that the weight it gave to Dr Mahony's evidence overall was reduced because of the way in which he gave that evidence. His oral evidence has certainly been used in coming to the Tribunal's overall position on this difficult and somewhat borderline matter.

81. Therefore, the Tribunal considers that the cost of bringing Dr Mahony to give oral evidence should be included in the award of costs to the Applicant.

82. As the Tribunal's decision is in favour of the Applicant, and noting the submissions of the parties in respect of costs, pursuant to 67 of the Act the Tribunal will order that the costs incurred by the Applicant in respect of these proceedings be paid by the Respondent as set out in the Tribunal's General Practice Direction.

I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member and Dr P D Lynch, Member

Signed: .....................................................................................

Associate

Date/s of Hearing 12, 13 July 2000

Date of Decision 28 November 2000

Counsel for the Applicant Mr A J Tudehope

Solicitor for the Applicant White Barnes

Counsel for the Respondent Mr B Kelly

Solicitor for the Respondent Sparke Helmore