Aqil v Baron Forge (NSW) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Aqil v Baron Forge (NSW) Pty Ltd [2022] NSWPIC 20
APPLICANT:	Mosawi Aqil
RESPONDENT:	Baron Forge (NSW) Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	14 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for injury to the cervical, thoracic and lumbar areas of the spine; cervical spine injury disputed; whether applicant suffered incomplete partial cord lesion; whether nature of pathology relevant; Held- nature of pathology a live issue; Inghams Enterprises Pty Limited v Belokoski applied; applicant expert opinion unsatisfactory on several grounds and in conflict with other expert opinions; award respondent for claim for injury to cervical spine; matter remitted for assessment of thoracic and lumbar injuries.
DETERMINATIONS MADE:	1. There will be an award for the respondent for the claim for injury to the cervical spine. 2. I remit the remaining claims to the President for referral to a Medical Assessor for a whole person assessment on the following bases: (a) Date of injury: 28 October 2016 (b) Matters for assessment: thoracic spine, and lumbar spine (c) Evidence: Application to Resolve a Dispute and attached documents, and Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

Mr Mosawi Aqil, the applicant, brings an action against Baron Forge (NSW) Pty Ltd, the respondent, for lump sum compensation in respect of injuries claimed to have been caused on 28 October 2016.
A dispute notice issued on 1 February 2021 and an Application to Resolve a Dispute (ARD) and Reply were duly issued.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) did the applicant injure his cervical spine?

PROCEDURE BEFORE THE COMMISSION

The matter was heard by teleconference conciliation and arbitration on 10 November 2021. The applicant was represented by Mr Jarryd Malouf of counsel instructed by Messrs Ayoub Lawyers. The respondent was represented by Mr Paul Stockley of counsel instructed by
Mr Christopher Michael from Messrs Moray & Agnew lawyers. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral Evidence

No application was made in relation to oral evidence.

FINDINGS AND REASONS

Mr Aqil was born in 1989 in Iran. He emigrated to New Zealand and obtained citizenship there in 2010 and then moved to Australia in 2016.
He commenced employment with the respondent that same year and on 28 October 2016 suffered the injurious event which has led to these proceedings.
The claim is for lump sum compensation for injury occasioned to the thoracic spine, the cervical spine and lumbar spine.
The issue for determination is whether Mr Aqil suffered injury to his cervical spine at the time of his injury, the claims for injury to the thoracic and lumbar areas of the spine having been accepted.

Applicant statement

In his statement of 24 September 2021[1] Mr Aqil stated that he was employed as a machine operator. His duties included, in addition to operating machinery, the manual handling of bench tops and other customised slabs. These included lifting Caesarstone and marble countertops weighing up to 100 kg. For countertops above that weight, heavy machinery was available such as a forklift or a crane.
[1] ARD page 1.
On 28 October 2016 Mr Aqil said that he was carrying a Caesarstone benchtop weighing between 50 – 60 kg from outside the factory with a colleague. Both employees were carrying the benchtop on their shoulders. As he carried the benchtop, Mr Aqil said that he experienced “immediate and severe back pain and chest pain. The pain in my back radiated up to my neck”.
He laid on the ground for about 40 minutes in pain and because of the seriousness of his condition, drove himself to Liverpool Hospital for treatment. The Liverpool Hospital notes are before me.
He attended his general practitioner at All Care Mediclinic and was prescribed medication for his symptoms.
He said that, presumably as time went on, he felt like his upper back pain was not improving but gradually worsening, with any movement such as bending or twisting, as well as coughing and sneezing.
He said the mid back pain not only radiated to his neck and caused him intense pain, but also radiated down to his lower back.
He said that on one occasion he experienced a severe onset of back pain that resulted in breathing difficulties and he was conveyed by ambulance to Liverpool Hospital. Those notes are also before me, and indicate the date of 8 November 2016.
Mr Aqil underwent physiotherapy and hydrotherapy. He said at [19]:
“19. My neck pain and discomfort worsened and I began to have numbness and spasm
like pain in my right shoulder. The neck pain caused me to have headaches.”
Mr Aqil was examined by his general practitioner and an x-ray was taken of the cervical spine. Mr Aqil said that his general practitioner “became increasingly concerned with the pain down the right buttock and leg and his back” and an MRI scan was taken of the lumbar spine.
Physiotherapy did not provide any long-term relief, Mr Aqil stated. There would be some alleviation of the neck and back pain for some three to four hours after each session but then he had to resort to medication.
He said that after persisting pain and discomfort, he was referred to Neurologist Dr Paul Teychenné. Dr Teychenné’s reports are before me, the earliest of which was dated 20 February 2017. Dr Teychenné did not advise the date of his first consultation but I assume that it was around that date[2].
[2] Reply page 66.
Mr Aqil said that he underwent tests with Dr Teychenné and after six months of treatment, he was told by Dr Teychenné that he had sustained a cervical spinal cord injury. He was referred to a chiropractor who treated Mr Aqil for apparent weakness in the right arm and right leg and Mr Aqil also began to notice pain and numbness in his left leg.
He was assessed by the insurer’s medical assessor Dr Papatheodorakis.
[3] ARD page 174.
Dr Papatheodorakis’s report was lodged dated 19 July 2017[3]. Dr Papatheodorakis was retained as an Occupational Medicine and Injury Management Consultant and reported in his capacity as an injury management consultant.
Mr Aqil said that Dr Papatheodorakis suggested that he consult a psychologist due to depressive symptoms becoming apparent.
Mr Aqil described his ongoing symptoms. He returned to work on light duties for a while and he obtained employment with Fedex, DHL and SMP Security, which all involved freight and passenger screening. He worked those roles for about six to nine months. He also tried work as an Uber driver for about three months.
He said he continues to suffer neck and back pain and continues to be treated by his GP and medication. He also continues to do home exercises as instructed by his physiotherapist.

DISPUTE NOTICE

The s 78 notice denied liability in respect of injury to the cervical spine on the following basis:[4]
“In relation to the allegation of injury to the cervical spine, you attended the Liverpool Hospital on 28 October 2016 complaining of upper back pain and of symptoms radiating to the neck. Complaints thereafter related to the thoracic and lumbar regions. On 12 December 2016 you complained of right shoulder pain and on examination there was a full range of motion and no tenderness in relation to the cervical spine. It was not until February 2017 that symptoms specific to the cervical region were noted. On that basis, we do not consider there is causal relationship between your cervical spine symptoms and the injury on 23 November 2020. We rely on the reports of Dr Wallace dated 3 March 2017 and 7 December 2020.”

CONTEMPORANEOUS MATERIAL

[4] ARD page 9.

Liverpool Hospital

As indicated, the clinical notes from Liverpool Hospital were lodged. The complaints made by Mr Aqil at the hospital on 28 October 2016 were variously recorded as follows:
“●     Spine thoracic xr – flow sheet print request[5]
[5] ARD page 66.
·        Central back pain after lifting heavy object at work OA nil motor sensory deficits. Ambulant despite pain. Nil pins and needles – final report[6]
[6] ARD page 68.
·        Lifting heavy stone at work developed sudden onset of back pain – thoracic region. Xray thoracic spine taken – thoracic xr[7]
[7] ARD page 69.
·        HOPC: 27 year old male presents with acute onset of thoracic/back pain post injury at work today. Hx : workplace injury at 12:45pm approximately today.
Lifting <50kg weight box with a work-mate.
Sudden onset of upper back pain, pain did not go away.
He asked another workmate to take the box from him
Sat down for 20-25minutes, and new back pain still not
gone away.
Patient states cannot straighten up, and now pain radiating to neck.- case history notes.[8]
·        PT presents with central back pain after lifting heavy object at work. OA nil motor sensory deficits. Ambulant despite pain. Nil pins and needles. Triage record[9]
·        Handwritten note 12:45pm
Upper back
Neck
650kg
20-25 minutes → cannot straighten up
Few seconds
Comes and goes
No tingling → triage notes[10]”
[8] ARD page 72.
[9] ARD page 78.
[10] ARD page 79.

All Care Mediclinic

The clinical notes from All Care Mediclinic were lodged[11]. The entry dated 29 October 2016 by Dr Nashmi stated (as written):
“lifting a 50 kg stone with another person, jarrd his upper back, caused sever pain, lied on floor, then went to liverpool hospital when he had thoracic spine Xrays. Showed no injury and given pain killers”
[11] ARD page 81.
The note also added that the reason for the visit was “upper back strain” and that he was “tender along the [post] thoracic spine”.
Mr Aqil continued to consult his general practitioners on the following dates:
·        29 October 2016;
·        31 October 2016;
·        2 November 2016;
·        4 November 2016;
·        9 November 2016;
·        10 November 2016;
·        21 November 2016;
·        24 November 2016;
·        27 November 2016;
·        4 December 2016, and
·        7 December 2016.
These consultations were concerned with what was recorded as either thoracic back pain or lumbar back pain.
On 12 December 2016 Dr Rassam recorded complaints of right shoulder pain and numbness to the right upper limb: extensor forearm and fingers.
The cervical spine was then examined and Dr Rassam noted “full ROM, nil tenderness”. A cervical spine x-ray was then requested.
The result of that x-ray was given to Mr Aqil on 20 December 2016 during a case conference with “Tania”, whom I presume to be the case manager, where a complaint of pain in the right scapular area was noted. On 2 December 2016, Mr Aqil’s case manager, Ms Tracey Turner had sent a facsimile to Dr Rassam, and it may be that “Tania” was in fact “Tracey”.
The cervical x-ray apparently took place on 13 December 2016. The result was recorded by Dr Papatheodorakis on 19 July 2017 in the following terms:[12]
• X-ray cervical spine (13.12.16): Cervical discs of normal height, cervical vertebra define normally; normal alignment cervical spine, facet joint. define normally, intervertebral foramina not narrowed, no cervical rib.
[12] ARD page 176.
Dr Teychenné on 28 August 2021 also noted the x-ray of 13 December 2016 as showing “Normal alignment of the cervical spine with normal definition of the cervical disc spaces and vertebrae”.[13]
[13] ARD page 40.
As indicated, Ms Turner on 2 December 2016 faxed an enquiry addressed to Dr Rassam. This was answered in handwriting, and returned to Ms Turner on 22 December 2016, judging from the facsimile entry at the top of the page.
Ms Turner noted that Mr Aqil notified the insurer of an upper back injury and Dr Rassan was asked to give a provisional diagnosis. A response was given in unidentified handwriting as what was agreed at the hearing to read:[14]
“Possible: incomplet cord lesion.
He had radiological investigation, MRI”
[14] ARD page 170.
There was no corresponding entry within the clinical notes.
On 13 January 2017 Mr Aqil was seen by Dr Dawood Haddad at the medical centre for the first time, when Dr Haddad noted that the applicant was complaining about upper back and lower back numbness. Dr Haddad wrote that lumbar pain and thoracic back pain were the reasons for the visit.
On 19 January 2017 Dr Haddad noted that the applicant attended in order to get a further medical certificate, but he also recorded:[15]
“2. Bilateral neck pain and tail bone
Pain Still upper back”

[15] ARD page 88.

Again, the “reason for visit” was noted to be lumbar and thoracic back pain.
Mr Aqil continued to consult the medical practice usually in relation to his WorkCover claim and the reasons for each visit were mentioned as being the lumbar back pain until 6 June 2017. On that date a complaint about headaches was noted but Mr Aqil did not wait to be assessed, and left.
At some time in late February 2017, Mr Aqil was referred to Dr Teychenné .
On 19 June 2017 the first mention of an “incomplet cord lesion” appeared in the clinical notes and again the reason for the visit was said to be “lumbar back pain”.
On 7 July 2017 Dr Haddad noted the reason for the visit was again the lumbar thoracic back pain but then added “incomplet cord lesion”.

Dr Teychenné

Dr Paul Teychenné , whose letterhead was not attached to the reports lodged in the ARD, gave three reports it would seem. I note that the index simply said that there were two reports from Dr Teychenné , both of the same date of 28 August 2021, one at page 37 and the other at page 151, one a copy of the other. In fact two further reports dated 28 February 2017[16] and 23 March 2017,[17] were found amidst the other documentation attached to the ARD, in addition to the aforesaid twice-lodged report of 28 August 2021[18]. Even so, the applicant did not make available all the reports, as the reply contained further reports dated 20 February 2017,[19] 23 February 2017,[20] 27 February 2017,[21] 24 March 2017,[22] 16 April 2017[23] and 6 June 2017.[24]
[16] ARD page 157.
[17] ARD page 155.
[18] ARD page 37.
[19] Reply page 66.
[20] Reply page 64.
[21] Reply page 62.
[22] Reply page 56.
[23] Reply page 52.
[24] Reply page 50.

Report dated 20 February 2017

This was the first report given by Dr Teychenné , and was addressed to Dr Haddad.
On examination Dr Teychenné noted that Mr Aqil was quite sensitive to pain and temperature sensation over the left and right posterior torso, being “suspersensitivity” to cold sensation, and to pinprick sensation “all over the posterior torso”.
Dr Teychenné described grades of muscle weakness in various muscles and carried out an EMG Nerve Conduction Study. Dr Teychenné gave the results, in terms of “nerve motor latency” and “nerve motor conduction velocity”. He found that the motor conduction velocities were “normal”, the motor unit action potentials were “normal”. He said:[25]
“I did not find any evidence of motor nerve root compression on this test.”
[25] Reply page 67.
Dr Teychenné then carried out a Somatosensory Response within the upper limbs. He said:
“The latencies were symmetrical. Conduction through the thoracic outlet, cervical nerve roots and posterior somatosensory pathways was normal. Central conduction time was normal. I did not find any evidence of a focal posterior spinal lesion on Somatosensory testing.”
Dr Teychenné noted scans of the lumbar spine. As indicated above, he also saw the x-ray of the cervical spine (presumably that of 13 December 2016) and said:
“An x-ray of the cervical spine did not show any major abnormality.”
Dr Teychenné concluded:[26]
“He has clinical evidence of an incomplete cervical cord lesion. I will do further neurophysiologic assessment to assess spinal cord and peripheral nerve function.”
[26] Reply page 68.

Report dated 23 February 2017

Dr Teychenné examined Mr Aqil three days after his first report. On this occasion he carried out a Somatosensory Response test within the lower limbs, after noting the variety of grades of muscle weaknesses within various muscles, and after noting complaints by Mr Aqil of pain in the right suprascapular region extending into the posterior right chest, and occasionally into the left chest. The test results again were “normal”. Dr Teychenné repeated that Mr Aqil had “clinical evidence of an incomplete cervical cord lesion”.[27]
[27] Reply page 65

Report dated 27 February 2017

Dr Teychenné issued his third report for the week to Dr Haddad. On this occasion
Dr Teychenné took a history of the subject incident, saying:
“[Mr Aqil] stated that he lifted a benchtop on the 28th October 2016 and subsequently he noted the symptoms.”
It is not clear whether Mr Aqil attended this consultation, or whether Dr Teychenné adopted the practice of repeating his original findings on examination. The findings on examination remained similar in each report, which I will detail shortly. On this occasion Dr Teychenné found:[28]
“The findings in right and left APB muscle were consistent with a bilateral carpal tunnel syndrome. The findings in the right and left supraspinatus muscles were consistent with an incomplete cord lesion. I will investigate further.”
[28] Replay page 63

Report dated 28 February 2017

Again, Dr Teychenné did not indicate whether Mr Aqil attended on this date. It seems possible, in view of the complaints noted:
“Pain over the right posterior chest, extending into the right paracervical region and across the right suprascapular region down into the dorsal aspect of the right arm down into the right elbow but the pain can then extend down the dorsal aspect of the right lower arm into all fingers but mainly into the right third finger. The pain occurs in the right hand if he needs to use for instance a mobile phone with the right hand.”

Dr Teychenné also described symptoms in the lower lumbar spine which radiated into the lower limbs.
Dr Teychenné gave his examination results in a manner which by now had become standard. He employed the methodology of grading weakness in each muscle. He noted, for instance, “grade 4/5 weakness in the left and right supraspinatus muscle, deltoid muscle, infraspinatus muscle, APB muscle as well as the dorsi flexion of the fingers of the left and right hand”. He found other grades of weakness in other muscles. He did not explain his technique for such evaluation, nor to what degree he was dependant on the complaints from the applicant, if at all.
Dr Teychenné then referred to “EMG muscle sampling”, noting “decrease in recruitment pattern” and “motor unit action potential” in various muscles, including those described as “EDB” muscles and others such as the gastrocnemius muscles.
Dr Teychenné then said[29]
“[Mr Aqil] has clinical evidence of a bilateral incomplete cervical cord lesion and this may lead to reduction in recruitment pattern within the lower limbs though he may also have a bilateral LS/Sl radiculopathy based on EMG muscle sampling findings.
I will do further EMG muscle sampling within the upper and lower limbs to assess spinal cord and peripheral nerve function.
He will require a full MRI scan of the spinal cord from the cervical to the lumbar spine.”
[29] ARD page 158

Report dated 23 March 2017

Dr Teychenné’s next report was dated 23 March 2017. He noted complaints of sharp pain and muscle spasm over the left and right posterior torso extending over the left and right scapular on the right side up into the right side of the neck and across the right subscapular region.

He noted complaints of pain down the dorsolateral aspect of the right arm into all fingers of the right hand, relevantly. Examination again yielded grade 4 to 5 weakness in the left supraspinatus deltoid and infraspinatus muscles. He found a range of weaknesses in a number of other respects.
He again spoke about the EMG muscle sampling and recruitment patterns, amplitudes and contractions in reference to various muscles. His conclusion was:[30]
“These findings were consistent with involvement of the left and right C7 to T1 spinal segment in the absence of any definite evidence clinically on neurophysiologic testing of ulnar nerve compression.
I will do further EMG muscle sampling to assess spinal cord and peripheral nerve function. He has clinical evidence of an incomplete cervical cord lesion.”
[30] ARD page 156.

Report dated 24 March 2017

Again, Dr Teychenné did not indicate whether Mr Aqil attended when this report was issued the following day. The report followed the usual pattern, and recounted complaints in the present tense, so that it appears that Mr Aqil was in attendance. On this occasion additional complaints were noted of a sharp pain behind the eyes and forehead, “hot eyes” and severe headaches. Examination results were given in the terms of graded muscle weakness and muscle sampling.

Reports dated 16 April 2017 and 6 June 2017

There is little point in analysing these reports. In recording Mr Aqil’s complaints
Dr Teychenné noted that the initial pain following the subject incident concerned the thoracic spine. This was followed six weeks later by “weakness” in the right arm and leg, with pain continuing in the spinal area T4-T6. Neck stiffness was noted.
Dr Teychenné reported in similar terms on his examination findings. He spoke of similar grade weaknesses in various muscles (including those in the toes).

Report dated 28 August 2021

Dr Teychenné last report was dated 28 August 2021. Dr Teychenné reviewed his earlier reports and noted:[31]
“A nerve conduction study within the upper limbs indicated a bilateral carpal tunnel syndrome, however his clinical symptoms were consistent with a spinal cord lesion rather than a carpal tunnel syndrome.”
[31] ARD page 38.
In dealing with the complaints made by Mr Aqil, at page 39, he noted:
“…. The episodes of numbness in the right leg would last 2 – 3 minutes. [Mr Aqil] had also however noted numbness down the lateral aspect of the right arm and the right suprascapular region down the dorsal right arm into the middle 3 fingers of the right hand. He noted weakness in the right arm and the right leg. It was apparent from this description that his clinical symptoms extended from the cervical spine down. His upper motor neuron weakness in the upper limbs and intrinsic hand muscle weakness in the lower limbs indicated involvement of the cervical spine.”
Dr Teychenné also made the following observation, at page 40:
“A CT scan of the cervical scan on the 9th November 2016 had shown mild posterior bulging at the LS/S1 disc with hypertrophy of the ligamenta flava at L4/5 resulting in mild to moderate constriction of the thecal sac.”
Dr Teychenné conceded that neither the x-ray of the cervical spine of 13 December 2016 nor an undated MRI scan of the cervical spine showed any abnormality. He said:[32]
“An MRI scan of the cervical spine did not show any macroscopic change within the spinal cord. This finding is not unusual in the younger patient who experiences a clinical situation consistent with an incomplete cervical cord lesion. In my experience only 15% of macroscopic MRI scans of the spinal cord are positive in regard to T2 hyperintensity. The higher proportion have evidence of spinal stenosis or disc prolapses abutting on the cord. In the younger patient however the cervical cord macroscopically may appear to be normal and quite frequently there is not any evidence of central canal or cord compromise such as disc osteophytes abutting on the cord.”
[32] ARD page 40.
Dr Teychenné said:[33]
“The diagnosis of an incomplete cervical cord lesion is causally related to the workplace accident on the 28th October 2016. Based on my experience of assessing numerous patients with clinical evidence of a cervical spinal cord injury it is not uncommon to find in the younger patients that cervical cord injuries may arise as a result of heavy lifting. I have one patient who developed a severe tetraparesis as a result of heavy lifting and pushing and I have quite a number of patients who have evidence of clinical incomplete cord lesions occurring as a result of heavy lifting. Generally in the younger patient the MRI scans do not show macroscopic pathology. The pathology is microscopic and simply not seen on macroscopic MRI scan of the cervical spine.”
[33] ARD page 40.

Dr Herald

Dr Jonathan Herald, Orthopaedic Surgeon, was retained as Mr Aqil’s medico-legal expert. He reported on 15 September 2020[34]. Dr Herald took a consistent history of the injury and the attendance to Liverpool Hospital where he was investigated and sent home diagnosed with an upper back strain.
[34] ARD page 31.
He noted that there were originally no neurological symptoms and the pain was predominantly focussed into the back and radiated to the chest. He said:
“Over the subsequent few weeks he continued treatment under the care of his GP. Originally there were no neurological symptoms and his pain was predominantly focused into the back and radiated to his chest. Over the subsequent few months however he started developing neck pain and lower back pain with numbness and tingling radiating down his legs and numbness and tingling radiating to his arms. His GP continued to manage him and eventually referred him to a psychologist as he was having a lot of anxiety and depression by the whole situation. He was referred to Dr Teychenne and was initially thought to have a partial cord syndrome as he had unusual neurological symptoms but eventually he was diagnosed as having a pain syndrome. MRI scans showed L4/5 disc prolapses of his lower back and MRI scans of his neck showed no neural compression and a minor incidental extraforaminal nerve sleeve cyst around the C5/6 level. He was eventually referred to Neurosurgeon Dr Sanki who suggested some pain management and gave him approximately three cortisone injections which gave him at best temporary relief.”
I note that the only reports before me from Dr Sanki are those dated 23 January 2017 and 21 November 2019 – both of which pertained to imaging studies of the lumbar spine.[35]
[35] ARD pages 150 and 178.
Dr Herald noted the investigations which included an MRI of the cervical spine dated 5 November 2018, the result of which was “no significantly abnormality”.
His assessment was:[36]
“Whiplash injury to the cervical spine with non-verifiable radicular complaints to both shoulder blades.
Thoracic spine injury with non-verifiable radicular complaints radiating into the chest and lumbar spine with non-verifiable radicular complaints radiating into both buttocks.”
[36] ARD page 33.
On the same page, when asked for confirmation as to a causal nexus between the accidents and the injuries, Dr Herald said:
“His injuries to his thoracic spine were directly due to the injury he sustained on 20 October 2016 whilst at work for Baron Forge. Secondary to this he developed secondary neck pain and back pain and non-verifiable radicular complaints to his upper limbs and lower limbs.
He may also have some post-traumatic depression however I am not a psychiatrist and have not assessed his psychological status.”

Dr Raymond Wallace

Dr Raymond Wallace, Orthopaedic Surgeon, was retained as the medico-legal expert on behalf of the respondent. He supplied two reports dated 3 March 2017 and 7 December 2020. [37]
[37] ARD pages 22 and 13 respectively.
In his report of 3 March 2017 Dr Wallace took a consistent history of the subject incident. He noted that the applicant complained of sustaining pain in his upper back at the time of lifting the benchtop, and that this was later located at the thoracic-lumbar area of the spine.
In this report Dr Wallace did not take any history of any complaint about the cervical spine, neither did he examine the cervical spine. He noted that an x-ray of 13 December 2016 showed no abnormality. His diagnosis was of a musculoligamentous strain to the lumbar spine, and the aggravation of pre-existing degenerative disease at L4/5. Dr Wallace thought that Mr Aqil was able to work doing part-time light duties.
In his second report of 7 December 2020 Dr Wallace repeated the history of the injury. He noted that Mr Aqil had been reviewed by Dr Teychenné who had conducted a series of investigations. Dr Wallace noted that Mr Aqil did not recall when her cervical spinal symptoms commenced. Dr Wallace noted the subsequent work history by the applicant but that he was now unemployed. Mr Aqil had apparently undergone recent right knee surgery as at examination he was using a Canadian crutch.
Dr Wallace noted that there was no medical evidence of any significant cervical spinal pathology and that the applicant had been reviewed by his GP on multiple occasions but did not mention any symptoms in the cervical spine until some six weeks after the injury.
Dr Wallace noted that an MRI of the cervical spine of 5 November 2018 showed no abnormality. He concluded that there was no objective evidence that Mr Aqil suffered injury to his cervical spine at the time of the subject incident.

Dr G Papatheodorakis

Dr Paptheodorakis, Occupational Medicine and Injury Management Consultant, reported to the insurer on 19 July 2017.[38] Dr Papatheodorakis took a consistent history that whilst lifting a heavy benchtop Mr Aqil felt “sharp upper back pain”, as a result of which he reported to Liverpool Hospital.
[38] ARD page 174.
Dr Papatheodorakis noted that Dr Teychenné had diagnosed an incomplete cord lesion, and noted the applicant’s statement that of the several occasions he attended Dr Teychenné there had been no benefit to his symptoms. Dr Papatheodorakis noted that at the time he assessed him, Mr Aqil had been back at work doing suitable duties.
Dr Papatheodorakis noted a complaint of generalised tenderness extending from the base of the neck down towards both outer shoulders and down towards the para thoracic spinal regions, when examining Mr Aqil. Dr Papatheodorakis diagnosed a cervico-thoracic and lumbosacral soft tissue injury, and excluded any suggestion that there had been any significant cord or nerve root involvement. Mr Aqil’s presentation was consistent with a non-specific chronic (mechanical) cervico - thoracic and lumbar back pain.
Dr Papatheodorakis reported that he telephoned Dr Haddad, with whom he discussed the case at length. Dr Haddad was in agreement that there was no cord/impingement in
Mr Aqil’s neck, and discussed his future management.

SUBMISSIONS

Mr Stockley submitted that Dr Wallace’s opinion could be accepted. There was no complaint of any neck symptoms recorded in his first report of 3 March 2017 and when he reassessed the applicant on 7 December 2020, clearly being asked to investigate the claim that the cervical spine had also been injured, he found no evidence that any injury had occurred to the neck.
The history taken of the subject incident, Mr Stockley submitted, was consistent. It was common ground that the mechanism of the incident on 28 October 2016 involved static forces. The applicant did not stumble or fall or twist – he simply took a significant weight as he and his colleague attempted to lift the heavy benchtop. Although Mr Aqil could not remember when he first experienced neck symptoms there was a contemporary record at the Liverpool Hospital on 28 October 2016 that pain was radiating to the neck. Mr Stockley observed that such a complaint was a different phenomenon to a neck injury which consisted of pain radiating from the neck.
Mr Stockley referred to the contemporaneous notes from Liverpool Hospital dated 8 November 2016 that showed an admission where the applicant had been unable to mobilise due to severe thoracic back pain. Although the hospital notes from 28 October 2016 contained a handwritten note referring to the neck under the apparent heading “upper back” it would appear that the entry was concerned with the allegation of pain radiating upwards from the thoracic spine.
Mr Stockley referred to entries in the All Care clinical notes. The initial complaints noted between 28 October 2016 and 2 November 2016 were concerned with the upper back, or the thoracic back. The entry on 2 November 2016 that the neck was “non-tender” in the context of complaints of worsening upper back pain did not assist the applicant, as presumably it was examined in the light of the worsening condition of the upper back. He noted that the entry on 12 December 2016, which recorded complaints of right shoulder pain and numbness in the right upper limb, nonetheless showed that on examination of the cervical spine there was a full range of movement, and no tenderness complained of.
The next entry in the notes that mentioned the neck was that of 19 January 2017 which noted “bilateral neck pain and tailbone”, which Mr Stockley said could be discounted as there was no explanation for such a bizarre entry - particularly where the pain was identified as coming from the upper back, and the reason for the visit was said to be in respect of the lumbar and thoracic areas of the spine.
Mr Stockley noted that as of mid June 2017 Dr Teychenné’s opinion of an incomplete cord lesion was noted. Also that as of July 2017, Mr Aqil was placed on pain management. From October 2017 the notes were concerned with Dr Teychenné’s opinion about a cord lesion.
With regard to the medicolegal case presented by the applicant, Mr Stockley submitted that the report of Dr Herald did not embrace the diagnosis by Dr Teychenné , but rather suggested that the applicant’s neck symptoms had been caused by a “whiplash” type injury. Mr Stockley submitted that such an opinion could be discounted as there was no suggestion in the evidence of any mechanical forces that could have caused that type of injury. Dr Herald also suggested the subject injury was to the thoracic spine but that a secondary neck pain developed. Mr Stockley observed that there had been no claim that the neck pain was secondary although, he said, the pleadings were “delightfully vague”.
Mr Stockley submitted that the onus was on the applicant to place cogent evidence before the Commission as to what the claim was. He submitted that Dr Herald’s opinion did not satisfy that requirement, and so the alternative basis for Mr Aqil’s claim for injury to the cervical spine had to be the opinion of Dr Teychenné.
Mr Stockley asked rhetorically what Dr Teychenné’s opinions meant. Dr Teychenné’s approach was confusing, and his findings were not explained. Mr Stockley referred to one of Dr Teychenné’s opinions that there was an incomplete cervical cord lesion which might lead to lower limb pathology, although there might also be a bilateral L5/S1 radiculopathy. It seemed, Mr Stockley submitted, that there was some correlation between pathology in the lumbar spine and an incomplete cervical cord lesion condition. This opinion, and others like it, Mr Stockley submitted were given in the context where no neurological deficit or abnormality was found on any of the imaging that was taken of the cervical spine.
Dr Teychenné did not explain how the cord lesion was causally related to the circumstances of the injury. Mr Stockley submitted that the nature of the pathological change caused by the mechanism of injury had not been identified. He submitted that Dr Teychenné’s reports were incomprehensible, that Dr Teychenné made no attempt to explain causation, and that
Dr Teychenné’s opinion did not satisfy the applicant’s onus of proof.
Mr Stockley submitted that the contemporaneous evidence showed a man who had an onset of symptoms that did not involve the neck. There was no trauma identified to the neck in the mechanism of injury, and the constellation of symptoms introduced by Dr Teychenné were not apparent prior to Dr Teychenné’s involvement with the case, neither were they the subject of any objective contemporaneous evidence.

Mr Malouf

Mr Malouf submitted that Mr Aqil had given a consistent history that his neck pain had radiated up from his thoracic spine. Mr Malouf submitted that the report of
Dr Papatheodorakis was important. He submitted that the many references within the clinical notes and elsewhere to the “upper back” did not necessarily exclude the neck.
Mr Malouf referred to the occasions in the clinical notes when the upper back was mentioned. He also submitted that there was some corroboration available for the suggestion that there had been an incomplete cord lesion, in the document that had been returned to
Ms Turner apparently on 22 December 2016 – before the involvement of Dr Teychenné.
Mr Malouf conceded that there had been no MRI scan, as had been represented by the author of the handwriting on the document.
I would not be assisted by Dr Wallace’s reports, Mr Malouf submitted as he had taken a wrong history.
Mr Malouf sought to support the opinion of Dr Teychenné, and disputed Mr Stockley’s submission that the mechanics of the injury were not associated with any suggestion of injury to the neck. Mr Malouf relied upon the observations by Dr Teychenné regarding his younger patients.
Mr Malouf submitted that there were four doctors who supported Mr Aqil’s claim that he had injured his neck. He submitted that whilst no precise pathology had been agreed as to the cause of Mr Aqil’s symptoms, nonetheless Drs Herald, Teychenné, Papatheodorakis and Haddad all supported that there had been some involvement of the neck, whether it be in the nature of a soft tissue injury, or a partial cord lesion.
Dr Wallace on the other hand was a lone voice, Mr Malouf argued. I would not accept
Dr Wallace’s report because he did not have a history of the complaint at Liverpool Hospital about symptoms in Mr Aqil’s neck. The first record in the clinical notes was after a period of six weeks which is not a great deal of time in the circumstances.
Mr Malouf submitted that it was not necessary to give a precise definition of the pathology involved in the injury, referring me to Inghams Enterprises Pty LimitedvBelokoski.[39]
[39] [2017] NSWWCCPD 15 (Belokoski).

Mr Stockley

Mr Stockley in reply submitted that the need to identify the pathology depended on the circumstances of the case. There were a number of discrepancies as to whether the neck constituted the upper back, and whether the direction of the radiation either came from the upper back into the neck, or from the neck into the upper back. These were matters that required some resolution within the Commission.
The circumstances of the injury were that, whilst Mr Aqil was lifting a heavy benchtop he experienced the onset of upper back and torso symptoms, Mr Stockley said. That was the premise for Dr Teychenné’s opinion that there had been a partial cord lesion, and no attempt to been made to relate the actual circumstances of the injury to that opinion. Mr Stockley argued that the applicant had not made any attempt to explain the causal relationship between the identified injury and the injurious event.
Mr Stockley submitted that no pathology had been identified in the usual diagnostic enquiry by way of imaging scans, Dr Teychenné himself agreeing that they were normal. I would not accept, Mr Stockley argued, Dr Teychenné’s reasoning that nonetheless the partial cord lesion was present because such diagnostic enquiry did not always demonstrate pathology.
Further, Mr Stockley argued that at no stage had Dr Teychenné identified the precise level in the cervical spine with a partial lesion was located. The medical evidence was unsatisfactory, and no effort had been made to distinguish between the diffuse neck symptoms on triage at Liverpool Hospital and those the medical evidence later identified.

In order for the applicant to succeed, Mr Stockley argued, the pathology of the injury had to be established. He submitted that Dr Wallace was more careful in his analysis of the clinical history, notwithstanding that he did not note the complaint at Liverpool Hospital. Mr Malouf’s reliance on the opinion of Dr Papatheodorakis Mr Stockley submitted was misplaced as he had not been asked to identify the injury, but had been retained the purposes of injury management.

Discussion

I am grateful for the considered submissions made by Mr Malouf on behalf of Mr Aqil. He has raised every argument possible in a thorough examination of the evidence. However,
I am unpersuaded that his advocacy has shown that the evidence rises to the standard of the balance of probabilities required for Mr Aqil to succeed in his claim for injury to the cervical spine.
Dr Teychenné’s opinion may be shortly dealt with. His opinion that the injury had caused a partial cord lesion in the cervical spine was expressed primarily in a number of reports between 20 February 2017 and 6 June 2017.
Although Mr Malouf submitted that four doctors had supported the concept that the incident of 28 October 2016 caused injury to the cervical spine, he did concede that there was no unanimity as to the pathology involved. However, there was unanimous agreement between three of those four medical practitioners that the diagnosis of a partial cord lesion could be discounted, which view was also adopted by Dr Wallace.
In his report of 15 September 2020, Dr Herald referred to Dr Teychenné’s opinion in the past tense, noting that the eventual diagnosis was of a pain syndrome. Dr Herald’s opinion that the cause had been a “whiplash injury” I did not find convincing, as he did not explain how the mechanics of the injury (carrying a heavy weight on the shoulder) had involved the sort of motion usually associated with a whiplash, such as a motor vehicle accident. Moreover,
Dr Herald appeared to contradict himself when he described the onset of neck pain as being “secondary” to his thoracic injury, and being in the nature of a pain syndrome.
Dr Papatheodorakis, whom Mr Malouf included in his list of four doctors, was perhaps the most positive of the expert medical opinions, describing on 19 July 2017 a “non-specific chronic (mechanical) cervico – thoracic and lumbar back pain”. However the expertise of
Dr Papatheodorakis pertained to injury management, and his diagnosis appeared to be related to the complaints made by Mr Aqil during the examination. The concern of
Dr Papatheodorakis was as to Mr Aqil’s management, and in the face of the unanimous opinions of all medical practitioners (including Dr Teychenné) that the investigations of the cervical spine were normal, a diagnosis of a non-specific chronic pain does not satisfy me that there was any pathological change in Mr Aqil’s cervical spine sufficient to establish injury.
The third doctor relied on by Mr Malouf was the GP, Dr Haddad. I note that Dr Haddad did not attend the applicant until 13 January 2017, and that all the 11 attendances which I have listed above, up to 12 December 2016 were recorded in the clinical notes of the medical centre as being concerned with either the thoracic or lumbar areas of the spine.
The x-ray of the cervical spine, which occurred on 13 December 2016, followed an attendance the day before, in respect of which the then treating GP, Dr Rassam, noted a complaint of symptomatology in the right upper limb. I note further that Dr Rassam indicated that he had in fact examined the cervical spine and found no tenderness complained of, and a full range of motion.
I bear in mind that the contents of clinical notes must be approached with some caution, considering the busy clinical situation under which they are made. [40] However, the fact that Dr Rassam specifically examined the cervical spine and had it x-rayed the following day suggests that the symptoms described in the right upper extremity raised a concern that there might have been some radicular involvement of the cervical spine. Once the x-ray showed no abnormality, the cervical spine does not appear to have attracted any attention until an MRI was taken on 5 November 2018, which appears to have been taken at the behest of Dr Teychenné, and which again showed no abnormality.
[40] See Qannadian Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50, and cases therein referred to.
As indicated, Dr Haddad appears to have taken over Mr Aqil’s treatment from 13 January 2017. Dr Hadad made no specific mention of the cervical spine in the clinical notes of All Care MediClinic, noting that the reason for each appointment was either the lumbar spine, the thoracic spine, or both. The entry “Bilateral neck pain and tailbone” of 19 January 2017 does not have any probative significance in that context. Its meaning is difficult to comprehend, but it does illustrate that Dr Hadad was aware of the anatomical difference between the “upper back” and the “neck” as, on the next line of the entry Dr Hadad spoke of the upper back.
I accordingly reject Mr Malouf’s submission that I could infer that the term “neck” or, for that matter “cervical spine” were synonymous with the term “upper back”.
I am also unable to accept Mr Malouf’s submission that the appearance in the clinical notes of the expression “incomplet cord lesion” supported the claim that Mr Aqil had suffered an incomplete cord lesion to his cervical spine. That expression did not occur within the clinical notes until 19 June 2017 and 7 July 2017, as I indicated when discussing the evidence. If any inference were available to be drawn from that entry, it would be that the cord lesion occurred within the lumbar spine, as that area was nominated by Dr Hadad as the reason for the visit on that date. It is more likely that the entry was simply a repetition of Dr Teychenné’s diagnosis, which by then had been the subject of eight reports from Dr Teychenné.
However, Mr Malouf relied on the handwritten response to Ms Turner, Mr Aqil’s claims manager, in the facsimile dated 22 December 2016 which suggested a possible incomplete cord lesion. It was significant, Mr Malouf submitted, that this provisional diagnosis occurred at a time before Mr Aqil had been referred to Dr Teychenné.
Whilst I agree that the words “incomplet cord lesion” appear in that handwritten two-line response, I also note that the author alleged that Mr Aqil had undergone an MRI. There is no evidence of any MRI having been taken before January 2017, and that related to the lumbar spine. Moreover, the author was replying to the comment that Mr Aqil had injured his “upper back”. Further, the location of the alleged cord lesion was not identified. I have strong reservations about the probative value of that document.
The best conclusion I can reach about the contents of the clinical notes is that they were concerned mainly with thoracic and lumbar back pain issues. In any event, I accept the report of Dr Papatheodorakis which recorded that he had contacted Dr Hadad and that
Dr Hadad had agreed that there was no cord lesion in Mr Aqil’s cervical spine.
I find Dr Wallace’s opinion to be commensurate with the probabilities in this case regarding any involvement of the cervical spine. He took no history of any complaints from Mr Aqil at their first consultation of 3 March 2017 and in the face of the normal x-ray result of 13 December 2016 conducted no examination. In his second report of 7 December 2020, having been made aware of the opinion of Dr Teychenné, Dr Wallace noted the normal results of the MRI scan of 5 November 2018 and concluded that there was no objective support.
Notwithstanding the lack of support for a diagnosis of a cord lesion, incomplete or not,
Dr Teychenné persisted in his opinion in his report of 28 August 2021. I note that a period of over four years had elapsed since Dr Teychenné’s last report and I found, with respect, that Dr Teychenné was more concerned with advocacy than with scientific precision in continuing to assert the presence of an incomplete cervical cord lesion. It is also relevant to comment on the methodology used by Dr Teychenné.
Dr Teychenné’s method of diagnosis involved the use of extremely technical language entirely dependent upon his interpretation of his examination. It is impossible to tell with any accuracy whether the technical matters to which he referred, such as amplitude, motor unit, “APB muscle” “EDB” muscle, “gastrocnemius” muscle and muscle grade degree weaknesses (even down to the terminal phalanx of the right fifth finger) were consistent with the presence of a cervical cord lesion or for that matter, why they were consistent in the involvement of the left and right C7 toT1 spinal segment. Dr Teychenné thought that some of his findings were consistent with a bilateral carpal tunnel syndrome, but that others were consistent with the incomplete cord lesion. Why that was so, was not explained.
The resort to the use of technical terms which are unintelligible without a degree in neuroscience, does not fulfill the obligation of an expert to explain the basis of his opinion. It is one thing to set out the conclusions reached as a result of a scientific enquiry, it is entirely another thing to do so with any explanation as to why the conclusion had been reached.
I also have some reservations as to how accurate Dr Teychenné’s conclusions were. I have referred to his interpretation of what he called a CT of the “cervical scan” in which he described pathology at L5/S1. Such an elementary error does not engender confidence that the attention to detail was of an appropriate standard. This is particularly so as
Dr Teychenné’s expert view that Mr Aqil had sustained a cord lesion was a serious and potentially alarming diagnosis. Although Mr Malouf submitted that Dr Teychenné had made a mistake, a mistake of this magnitude is difficult to explain when a diagnosis of such significance is being made.
Further, Dr Teychenné’s description of the injurious event did not occur until he issued his third report in the one week to Dr Hadad, and the history that “he lifted a benchtop… and subsequently… noted the symptoms” was hardly a satisfactory description to describe the mechanical forces responsible for the alleged partial cord lesion.
I reject the explanation by Dr Teychenné that it was not uncommon to find in younger patients that cervical cord injuries “may arise” as a result of heavy lifting. I accept Mr Stockley’s submission in relation to this explanation by Dr Teychenné for his conclusion. Each case is different, each case has different mechanical forces that work in the cause of the injury and a bland statement that a specialist had other cases, without more, is highly unsatisfactory. Moreover, it extends credulity to be asked to accept that although the investigations are normal, at a microscopical level they might not be normal. Such is speculation of an irresponsible and quite damaging nature.
Finally, in Belokoski, Snell DP referred to a submission that the arbitrator had failed to determine the nature of the injury. At [222] he said:
“222…. the Commission (in the bifurcated system) has jurisdiction to determine whether a worker suffered injury, and the nature of the injury. The extent to which it is necessary or desirable, to make specific findings, about the pathology which constitutes a found injury, will depend on the circumstances and evidence in the particular case. In Kempsey Shire Council v Kirkman[2010] NSWWCCPD 104 one of the grounds of appeal was that an arbitrator had erred in “failing to determine the nature of the injury”. Roche DP at [82] dealt with this ground saying:
‘The Council has advanced no submissions or authority in support of this alleged error. Though it will often be preferable, it is not essential, as a matter of law, that the Commission determines the precise nature of the injury received by a worker. What is required is a finding that the worker received an injury arising out of, or in the course of, his or her employment, and that employment was a substantial contributing factor to that injury’.”
In the circumstances of the present case, the precise pathology of the alleged injury was very much a live issue. The evidence suggested different causes, as I have just discussed, and the nature of the injury was a relevant and debated issue.
Mr Malouf submitted that Dr Wallace’s opinion should be discounted because Dr Wallace did not take the history that the hospital notes on 28 October 2016 did record complaints about Mr Aqil’s neck. I do not regard that omission as being of such moment.
The lack of any complaint regarding the cervical spine in the clinical notes of All Care Mediclinic tends to confirm that the hospital record accurately reported the principal complaint as being of injury to the thoracic spine. X-rays were taken of that spinal area, and the hospital notes at various times noted complaints relating to “thoracic”, or “upper back”, or “central back pain”. The neck was mentioned on two occasions – one describing “pain radiating to the neck”, and the other simply mentioning the neck in the handwritten nursing notes.
Whilst the mentions of the neck may well have been of forensic value had there been evidence of continuing investigation and management of a cervical spine condition, no such evidence was before me. As indicated, the x-ray of the cervical spine on 13 December 2016 followed complaints of symptoms in the right upper extremity.
For the above reasons, there will be an award in favour of the respondent for the claim for injury to the cervical spine.

SUMMARY

There will be an award for the respondent for the claim for injury to the cervical spine.

I remit the remaining claims to the President for referral to a Medical Assessor for a whole person assessment on the following bases:
(a)    Date of injury:                   28 October 2016
(b)    Matters for assessment:     thoracic spine, and
lumbar spine
(c)    Evidence:  ARD and attached documents, and
Reply and attached documents.

[2022] NSWPIC 20

14 January 2022