Barrett v D.M O'Brien & M.J O'Brien & T.M O'Brien t/as P J O'Brien & Co

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Barrett v D.M O'Brien & M.J O'Brien & T.M O'Brien t/as P J O'Brien & Co [2023] NSWPIC 176
APPLICANT:	Rodger Barrett
RESPONDENT:	DM O’Brien and MJ O’Brien t/as PJ O’Brien and Co
Member:	Cameron Burge
DATE OF DECISION:	21 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Permanent impairment and weekly compensation claim; injuries to right shoulder, cervical spine, thoracic spine and lumbar spine accepted; applicant also claims for disputed injury to cortico-spinal tract; respondent argues no injury to cortico-spinal tract; contest between medicolegal experts on presence or otherwise of contested injury; Held – the applicant suffered injury to the cortico-spinal tract; the applicant’s Independent Medical Examiner (IME) provided detailed reasoning as to why the symptoms exhibited by the applicant on examination by a range of medical practitioners, including the respondent’s own IME, were consistent with the contested injury; on balance, the views of the applicant’s IME are preferred, and the accepted symptoms complained of by the applicant to both medicolegal experts and other practitioners form a reasonable basis for establishing on the balance of probabilities the presence of a cortico-spinal cord injury; permanent impairment claim remitted to the President of the Personal Injury Commission for referral to a Medical Assessor to determine the degree of impairment arising from all of the claimed injuries; claim for weekly benefits adjourned for further preliminary conference upon the issuing of any Medical Assessment Certificate.
determinations made:	1. The applicant suffered an injury to his right upper extremity (shoulder), cervical spine, lumbar spine and thoracic spine in the course of his employment with the respondent on 10 November 2017. 2. Additionally, the applicant suffered an injury to his cortico-spinal tract in the course of his employment with the respondent in the incident referred to in [1] above. 3. The claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from the following: (a) Date of injury: 10 November 2017 (b) Body systems referred: Right upper extremity (shoulder); cervical spine; thoracic spine; lumbar spine; the spine (AMA 5 Guidelines page 396, Table 15.6B, page 396, Table 15.6C and page 397, Table 15.6D) (c) Method of assessment: whole person impairment 4. The injury to the cortico-spinal tract (referred to as “the spine” in [3] above) is to be assessed by a neurologist. 5. The documents to be referred to the Medical Assessor to assist with their determination are to in include the following: (a) This Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments; (c) Reply and attachments, and (d) respondent’s Application to Admit Late Documents dated 9 February 2023 and attachments. 6. The claims for weekly compensation and payment of medical and treatment expenses are adjourned for further preliminary conference to a date after the issuing of the Medical Assessment Certificate.

STATEMENT OF REASONS

BACKGROUND

On 10 November 2017, Rodger Barrett (the applicant) was loading a truck with chemicals in the course of his employment with DM O’Brien and MJ O’Brien t/as PJ O’Brien and Co (the respondent) when the side gate of the truck gave way, causing him to fall to the ground, suffering injury.
There is no issue the applicant suffered injury to his cervical, thoracic and lumbar spines in the fall, along with eight fractured ribs, a punctured lung, ruptured right shoulder bursa and a gash to his head.
The applicant claims weekly benefits and permanent impairment compensation with respect to injuries to his right upper extremity (shoulder) and injuries to his cervical, thoracic and lumbar spines. Those injuries are accepted and will be the subject of referral to a Medical Assessor. It is agreed the claim for weekly benefits will be adjourned until after the issuing of any Medical Assessment Certificate (MAC).
Additionally, the applicant claims to have suffered an injury to his cortico-spinal tract, as diagnosed by his Independent Medical Examiner (IME), Dr Teychenne. That injury is disputed by the respondent. In the event the applicant succeeds on that claimed injury, the parties agree any assessment of that injury would need to be made by a neurologist as an injury to “the spine” with reference to Tables 15.6B, 15.6C and 15.6D at pages 396 and 397 of the American Medical Association Guides to the Evaluation of Permanent Impairment 5^th Edition (AMA5).

ISSUES

The parties agree the only issue in dispute is whether the applicant suffered injury to his cortico-spinal tract. In the event the applicant succeeds in establishing this injury, it will form part of the referral a Medical Assessor. If there is an award for the respondent on the alleged injury, the applicant will nonetheless be referred for medical assessment in relation to the accepted injuries.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a hearing by way of video conferencing platform on 20 February 2023. At the hearing, the applicant was represented by Mr Trainor of counsel instructed by Ms Reid. The respondent was represented by Mr McMahon of counsel instructed by Ms Casey. The respondent’s insurer representative, Mr Eckert was also in attendance.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents, and
(c)    respondent’s Application to Admit Late Documents (AALD) dated 9 February 2023 and attached documents.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered an injury to his cortico-spinal tract

The applicant has the onus of proving he has suffered an injury to his cortico-spinal tract as claimed. The authorities make it clear that an injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act) consists not only of an injurious event but also a “sudden or identifiable pathological change”: see for example Castro v State Transit Authority (NSW) [2000] NSWCC 12.
In this matter, there is a prima-facie simple contest between the opinions of the Independent Medical Examiners (IMEs) for each party. On the one hand, the applicant’s IME, neurologist Dr Teychenne has found the presence of a cortico-spinal tract injury whereas the respondent’s IME, neurosurgeon Dr Bentivoglio disputes that finding, but accepts there are rateable impairments to each of the right shoulder, cervical spine, thoracic spine and lumbar spine.
For the applicant, Mr Trainor submitted the fall suffered was plainly very serious and from a height of approximately two metres onto a hard concrete floor. He referred to the report of the applicant’s general practitioner (GP), Dr Ridge to the Rehabilitation Unit at Dudley Private Hospital dated 21 February 2018, in which it was noted the applicant suffered both a haemothorax and pneumothorax in the fall, and that a bone scan taken on 22 December 2017 disclosed the applicant suffered 12 separate rib fractures in the fall, a fractured right T6 transverse process, right scapula and an injury to the sacro-coccygeal junction.
The applicant’s uncontested description of his fall is contained in his statement:
“On 10 November 2017, I was loading a truck with a shuttle of chemicals. I was working alone. Each shuttle holds 1000 Litres. I was doing this with a Hiab (which is a small crane on the back of the truck). I was standing on the back of the truck positioning the shuttles by hand. I leant on the side gate on the truck tray and the gate let go. I fell to the ground, landing on my right hand side, predominantly on my right hand shoulder, although my memory of the incident is limited. I then rang my boss who came to the scene and I was attended to and taken to the hospital by car.
I noticed after the fall that the pin had been taken out of the side gate on the truck and replaced by a bit of wire. I believe that this is the reason that the side gate gave away.”
The Dubbo Base Hospital Discharge Summary records the following history:
“Mr Barrett presented to Dubbo Base following a fall from 2 meters with posterior right 3-5 rib fractures associated with a traumatic pneumothorax and small haemothorax. No other injuries were identified on tertiary survey. A chest tube was inserted with total reinflation of the collapsed lung.”
The applicant’s IME, Dr Teychenne commented on the fall and its sequelae as follows:
“When I assessed Mr Barrett, I noted that he had fallen 2 m. He remembered going down forward and realising he would land on his face. He tried to turn and got halfway around. He apparently hit the front of his head on the side of the drum. He had a gash over the centre of the forehead and it was highly likely that he sustained an acute hyperextension of the head and neck at the moment of impact. When he got up, he thought he was okay. He tried to light a cigarette. He could not suck in on the cigarette, which probably related to the rib fractures and pneumothorax but as he walked back from the truck his legs became rubbery, wobbly like jelly. They were weak. When his boss arrived he could not lift his legs into the car. This history was quite consistent with spinal shock. That is an acute impact on the cervical spinal cord which was quite likely to occur as a result of the fall onto the front of his head or forehead in the presence of underlying degenerative cervical spondylosis. In such situations, any acute traumatic hyperextension of the head and neck can result in acute impact on the cervical spinal cord and result in spinal shock as described by Mr Barrett. In my experience, patients who sustain spinal shock after a fall such as sustained by Mr Barrett are quite likely to develop an incomplete central cervical cord lesion which on my assessment Mr Barrett was consistent with his neuropathic pain and clinical examination. That is I considered Mr Barrett had sustained an incomplete cervical cord lesion as a result of the fall on 10 November 2017. Such an injury would be quite consistent with the generalised symptoms that had been described by his treating physicians and orthopaedic surgeons and consistent with the description of pain that I obtained from Mr Barrett.”
The respondent’s IME Dr Bentivoglio recorded the following history of the fall:
“He described a work injury on 10 November 2017 when he fell from his truck, approximately a height of 2-2.5m. At that time, he was by himself. This resulted in him sustaining an injury. He struck his head but was not knocked out. He sustained a laceration to his head. He injured his right shoulder and fractured his right scapula. He had multiple fractured ribs, both in the front and the back, causing a flail chest. He injured his neck. He had a fracture of the right T6 transverse process and there was also a fracture of his sacrococcygeal junction...
He was initially taken to Walgett by car and then he was transferred to Dubbo Base Hospital by air ambulance where he spent 6-8 days.
As a consequence of the fractured ribs, he had a right pneumothorax and required a chest drain and after 6-8 days he was sent home to Orange.”
In his first report, Dr Teychenne recorded the progressive onset of symptoms after the fall. They included a feeling of rubbery legs in the immediate aftermath, sharp pain in the neck which extended through the chest and back with sharp pain over the lumbar spine and also in the right shoulder. Dr Teychenne continued:
“A month after the injury he began to notice a heavy dead pain extending into the left and right paralumbar region. At that stage he stated he could be standing up and then all of a sudden his legs would collapse and buckle under him. His legs would give way with excruciating pain over the left and right paralumbar region at intensity 9 /10. This was a dull heavy pain.
Two months after the injury he also noted pain extending from the left and right paralumbar region into the left and right buttock and down the back of the left and right thigh to the left and right knee and into the left and right calf. This pain would last
5-15 minutes. It was a heavy dull pain at intensity 9/10 which could then persist for up to 5-15 minutes at intensity 2/10.
Two months after the injury after finishing rehab he stated that he was walking normally but then about 2 years ago he noted a deterioration in his walking. He noted that he was struggling to walk down hills. He had sharp pain at intensity 9/10 in both knees. His knees were giving way when he walked down a hill or down stairs. He found it too painful to walk. He had noted at that time that he was getting slower in his walking and for the past 2 years he has been gradually slowing up in his walking. His steps were becoming smaller. He found it harder to move his knees. His knees would lock. He was stiff in the knees. He had heavy tight legs. His muscles would swell. He had swelling and pain in the knees. He stated that subsequently he had episodes of his legs collapsing. He would need to sit down. He stated the weak legs and pain would last
5-10 minutes.
He states that the pain over the anterior and posterior torso has been persistent. On a good day the pain is less than 3/10. This can occur about 3 times a month. Otherwise it is a knife stabbing pain or it may be burning over the right upper posterior and anterior chest down to around T5…
Three years ago he began to notice some bladder urgency but he had not had any incontinence. He did not have any bowel urgency nor any bowel incontinence. He stated that if he retained urine for too long he would then feel that he could have urgency and incontinence.
Two months after the injury he began to notice sharp headaches extending from the neck over the top of the head to the left and right forehead and into the eyes at intensity 9/10. He did not experience any nausea, vomiting, photophobia or phonophobia.
Four years ago he began to notice vertigo. He felt he would spin if he stood up too quickly. He would notice spinning lasting about 4 minutes. He had noted weakness in the right arm and right leg subsequent to the injury. He had trouble holding soap in the right hand. He would drop the soap. He was clumsy in the right hand. He could spend minutes trying to pick up soap within the shower. He had noticed this loss of dexterity and weakness in the right hand over the past 18 months.
He stated the pain within the axilla could be a burning or a knife like pain under the right arm. He stated the pain into the right posterior and anterior upper chest felt like pain within the bones. He described a knife stabbing pain over the right suprascapular region.”
Having set out the history and symptoms in his first report, Dr Teychenne provided a further report dated 18 July 2021 in which he set out the various observations, examinations and findings of other doctors who had examined the applicant. Given the manner in which Dr Teychenne compiled his reports, the documents dated 28 April 2021 and 18 July 2021 are essentially one report. Having reiterated his findings on examination from April 2021 and having summarised in the July 2021 report the various histories and findings on examination of the other practitioners, Dr Teychenne stated:
“This history [that of the applicant as to the mechanism of the fall] was quite consistent with spinal shock. That is an acute impact on the cervical spinal cord which was quite likely to occur as a result of the fall onto the front of his head or forehead in the presence of underlying degenerative cervical spondylosis. In such situations any acute traumatic hyperextension of the head and neck can result in acute impact on the cervical spinal cord and result in spinal shock such as described by Mr Barrett. In my experience patients who sustain spinal shock after a fall such as sustained by Mr Barrett are quite likely to develop an incomplete central cervical cord lesion which on my assessment of Mr Barrett was consistent with his neuropathic pain and clinical examination. That is I considered Mr Barrett had sustained an incomplete cervical cord lesion as a result of the fall on the 10th November 2017. Such an injury would be quite consistent with the generalised symptoms that had been described by his treating physicians and orthopaedic surgeons and consistent with the description of pain that I
obtained from Mr Barrett…
The distribution of pain including the right posterior upper torso, right anterior upper torso, right axilla, central vertebral column down to T7 and in the sacrum over the lumbar spine associated with the rubbery legs which he noted at the scene of the accident was quite consistent with neuropathic pain from an incomplete central cervical cord lesion. This was associated with spinal shock resulting in acute weakness in the
legs…
This history in my experience was quite consistent based on his previous history of higher spinal pain with an incomplete central cervical cord lesion which was showing evidence of progression. I have a number of patients with more marked incomplete central cervical cord lesions who do show evidence of progression. Mr Barrett was experiencing pain in his anterior chest with strenuous activity which was quite consistent with an incomplete central cervical cord lesion…
It was apparent in my description that Mr Barrett's difficulty getting up was due to spinal shock and acute weakness in the legs. He was unstable and had difficulty breathing. He had very severe pain and was transferred to Dubbo Hospital where he was put in a cervical brace and given high levels of analgesic medication…
When I assessed Mr Barrett on the 28th April 2021 I noted that 2 months after the injury Mr Barrett began to have sharp headaches extending from the neck over the top of the head to the left and right forehead and into the eyes. This was consistent with cervicogenic headaches. Mr Barrett began to experience vertigo. This was a spinning sensation. Mr Barrett had noted weakness in right arm and right leg subsequent to the injury. He was clumsy in the right hand. He had noted loss of dexterity and weakness in the right hand over the 18 months prior to seeing me. The pain within the axilla could be burning or knife like. The pain into the right anterior and posterior upper chest felt like pain in the bones. He had a knife stabbing pain over the right suprascapular region. This history was quite consistent with an incomplete central cervical cord lesion producing neuropathic pain as well as loss of dexterity in the right hand. Cervicogenic headaches and vertigo are not uncommon in patients who sustain incomplete central cervical cord lesions.
At the time of my assessment I found that Mr Barrett had bilateral imbalance. He was completely off balance. When formally testing balance his legs were collapsing when testing balance. When he squatted he had some leg collapse at the bottom of the squat and he felt he went forward. He swayed markedly to the left and right falling to the left and right on heel to toe walk. He had a wide based stilted gait. He was dragging both legs through. He was slow with small steps and he was stooped. He was slow standing up from a chair without pushing up. When squatting he had sharp pain within the muscles of the upper thighs down to the knees. He had upper motor neurone weakness in the upper limbs with tremor elicited when testing power within the proximal muscles of the upper limbs…
His clinical findings were quite consistent with an incomplete central cervical cord lesion which in my experience results in upper motor neurone weakness in the upper limbs, intrinsic hand muscle weakness and myelopathic weakness as well as a decrease in finger dexterity as noted when testing finger dexterity in Mr Barrett. He had slowness in right finger dexterity, right rapid alternating movements and grip count as well as finger to nose testing compared to the left side. The tremor in both hands when testing finger dexterity in either hand was quite consistent with an incomplete central cervical cord lesion and the decrease in finger dexterity as well as in rapid alternating
movements in the right hand was quite consistent with an incomplete central cervical cord lesion as described by The American Neurosurgeon (Schneider J Neurosurg Psychiatry, 1958, 21, 216).
Mr Barrett exhibited marked imbalance and gait disturbance with a tendency for his legs to collapse in squatting associated with slowness in gait, small stepped gait, dragging of the feet and slowness when standing up from a chair. All of this was quite consistent with an incomplete central cervical cord lesion and fairly typical in my experience of a patient who sustained a moderately severe incomplete central cervical cord lesion.
I considered that the condition found on examination was due to the injuries sustained in the accident on the 10th November 2017. The patient had pre-existing cervical spondylosis which put him at risk of sustaining an incomplete central cervical cord lesion as a result of the type of fall described by the patient. I suspect that the patient when he hit the ground probably had acute extension of his head and neck which can result in an incomplete central cervical cord lesion.”

The respondent’s IME, Dr Bentivoglio, provided a report dated 22 March 2022. In that report, Dr Bentivoglio accepted the applicant suffered rateable impairments to his lumbar, thoracic and cervical spines; however, he disputed any injury to the cortico-spinal tract.
In so finding, Dr Bentivoglio had the benefit of Dr Teychenne’s reports dated 28 April 2021 and 18 July 2021. Dr Bentivoglio suggested Dr Teychenne’s findings were of such a nature that one would expect them to be demonstrated on MRI, however, such post-injury investigations of the applicant did not reveal them. An MRI undertaken on 21 January 2022 revealed the following findings:
“The cerebellar tonsils are normally located. There are long-standing compression fractures of T4 through to T9 with intravertebral disc herniations. T8 is associated with up to 20% loss of vertebral body height. There are Schmorl's nodes at T8-9 with endplate oedema and disc dehydration from T5 through to T10.
There is fusion across the left C3-4 facet joint and T1 and T2 hyperintense changes across the right C5-6 facet joint may relate to the presence of marginating haemangiomas. Minimal anterior subluxation at C5-6 and C6-7.
Disc dehydration throughout the lumbar spine also with a Schmorl's node inferiorly at L4.
C2-3: No significant disc lesion.
C3-4: No significant disc lesion or neural impingement.
C4-5: Bilateral facet joint arthropathy. Foraminal narrowing on the left and CS root impingement. No
cord compression.
C5-6: Bilateral facet joint arthropathy. Subluxation and pseudodisc bulge without cord nor nerve root compression.
C6-7: Similar changes without significant cord compression.
C7-T1: No disc lesion or neural impingement.
L 1-2: Minimal disc bulge. No neural impingement.
L2-3: Facet joint arthropathy. No disc lesion or neural impingement.
L3-4: Mild facet joint arthropathy. Low-grade disc bulge. No neural impingement.
L4-5: Facet joint arthropathy. Low-grade disc bulge. Mild thecal sac flattening. No root
compression.
L5-S1: Minimal disc bulge. No neural impingement.
There is no intrinsic cord signal. There is no cord oedema nor myomalacia and no syrinx formation.
No features of arachnoiditis.
CONCLUSION:
1. Cervical, thoracic and lumbar spondylosls with spondylolisthesis at CS-6 and C6-7.
2. Multiple thoracic compression fractures with intravertebral disc herniations and endplate oedema at TB-9.
3. Fused left C2-3 facet joint.
4. No significant cord nor nerve root compression.”
Dr Bentivoglio also stated his examination of the applicant in March 2022 showed no evidence of long-tract signs and the applicant’s two-point discrimination was normal in his hands. Dr Bentivoglio described the applicant’s symptoms at the time of examination as follows:
“His current symptoms are upper cervical neck pain radiating down into his thoracolumbar spine and he rates that as 6-9/10. There is no arm pain.
He has persistent right chest wall pain from the multiple fractures of his ribs. He has numbness around the chest wall at the T5/6 level indicating a radicular radiation from
his chest wall fractures.
There was no numbness of his hands, but he did have some tingling in both hands affecting all his fingers which was only intermittent.
He also complained of right and left-sided thoracic pain which radiated down into both legs, right side equalling left. He maintains that his legs can collapse because of the pain, and he also has some numbness on the sole of his foot which could well be related to the alcohol intake that he has. There is no leg numbness.
He gets occasional headaches which radiate into both occipital regions from his cervical spine.
From the point of view of his bladder function, he feels he has incomplete emptying but no incontinence. He does have some urge incontinence and nocturia x 2 at night.
His bowels are normal. He says he cannot achieve an erection at all.”
Dr Bentivoglio summarised the applicant’s complaints as follows:
“He has upper cervical neck pain radiating down into his thoracolumbar region, he has no arm pain, he has persistent right chest wall pain with radicular pain on the right side of the chest. There is no numbness of his hands, but he gets tingling in his fingers which is intermittent. He gets thoracic pain going into both legs as well as lumbar back pain.”
When asked to address the possibility of cortico-spinal tract injury, Dr Bentivoglio said:
“I do not believe he suffered an injury to his corticospinal tract. When I examined him, I could find no evidence of weakness. His reflexes are symmetrical and normal, the tone was normal, he had downgoing plantar responses. I was not able to find any evidence of corticospinal dysfunction when I examined him…
I would point out that Dr Teychenne’s findings also indicate posterior column dysfunction, corticospinal tract dysfunction, spinothalamic tract dysfunction on both sides of his cord. One would expect that having such an extensive effect on his spinal cord some changes on the MRI scan would be seen. This was not the case, so I do not believe he has evidence of a significant spinal cord or spinothalamic tract injury.”
In his latest report dated 19 September 2022, Dr Teychenne addressed a number of matters raised by Dr Bentivoglio which the latter said contra-indicated the presence of a cortico-spinal tract injury. The matters raised by Dr Bentivoglio and Dr Teychenne’s responses are important given the contest of opinions over the alleged injury and may be broadly paraphrased as follows.
Dr Teychenne noted Dr Bentivoglio’s findings of persistent right chest wall pain which Dr Bentivoglio considered were as a result of old rib fractures. Dr Teychenne stated that symptomology was also consistent with an incomplete central cord injury, as were Dr Bentivoglio accepted findings of tingling in both of the applicant’s hands.
Dr Teychenne also considered the symptoms of left-sided thoracic spine pain radiating into both legs and described them as consistent with a cortico-spinal cord injury as well as alcohol intake, to which Dr Bentivoglio had attributed them. Likewise, Dr Bentivoglio’s findings of cervicogenic headaches radiating to the bilateral occiputs, incomplete bladder emptying, urge incontinence and inability to achieve an erection were. According to Dr Teychenne, also consistent with cortico-spinal cord injury, despite Dr Bentivoglio having indicated they were caused by underlying diabetes.
Dr Bentivoglio found the applicant had a broad-based gait and, consistent with Dr Teychenne’s findings, found mild heel-to-toe ataxia. Dr Teychenne reiterated these findings were also consistent with an incomplete cervical cord injury.
Likewise, Dr Teychenne addressed Dr Bentivoglio’s findings of a reduction of neck motion and slow hand function. Even though Dr Bentivoglio found the applicant’s hand power was normal, Dr Teychenne noted weakness in the hands caused by an incomplete cervical spine cord injury are often limited to specific muscles, leading to findings on examination of normal grip and flexion.
Regarding Dr Bentivoglio’s views that the lack of cortico-spinal cord pathology demonstrated on MRI was a matter determinative of the absence of a cortico-spinal tract injury, Dr Teychenne said:
“I can understand Dr Bentivoglio’s concern that the spinal cord did not appear to show any macroscopic damage, the point is that the MRI scan can only show macroscopic damage. It cannot show microscopic damage unless the microscopic is so extensive that it causes macroscopic changes on MRI scan. In my experience having assessed 150 patients with incomplete central cervical cord lesions, only four of these patients showed evidence of T2 hyperintensity. A high percentage showed evidence of disc bulging or disc osteophyte changes sometimes impinging on and narrowing of the spinal canal which only indicated the potential for cervical cord injury rather than compression of the cord. Cord flattening did occur in a percentage of patients (less than 15%) which indicated some potential cervical cord compression. The particular patient that Dr Bentivoglio also examined who had quite extensive findings consistent with tetraparesis did not have any evidence of macroscopic spinal cord [T2] except for some possible spinal cord atrophy which was not reported by the neuroradiologist.
There had been a number of reports of patients with spinal cord injury not showing evidence of macroscopic MRI scan change. In an abstract in the journal Trauma and Acute Care Surgery in March 2013, volume 74, page 845-848, it was reported that in 15 patients with spinal cord trauma, eight patients did not show any spinal abnormalities visible on MRI scan. This is consistent with my experience. It is apparent that MRI scans are simply not sensitive enough to pick up microscopic spinal cord damage unless such damage is extensive enough to cause evidence of macroscopic oedema or T2 neuronal damage.”
There was a discrepancy in the findings on examination between Dr Bentivoglio and Dr Teychenne. The former did not find upper motor neuron weakness in the upper limbs and also did not find myelopathic weakness in the lower limbs as Dr Teychenne had. However, Dr Bentivoglio did find evidence of increased tone, and Dr Teychenne noted:
“This is not unusual in central incomplete lesions which may present with a flaccid picture rather than a spastic picture. Spasticity is not a common finding in central incomplete cord syndromes though patients may describe tightness and spasm in localised area of the torso and legs. They do not, however, present a picture of a more complete tetraplegia with marked spasticity and hyperreflexia. The picture in central incomplete cervical cord lesions tends to be more one of a flaccid presentation, particularly in those who show evidence of progression subsequent to the injury. This progression may occur over some years and is more marked in the more severe tetraparetic patients with incomplete central cervical cord lesions.”
In his final report dated 12 December 2022, Dr Bentivoglio maintained his opinion that there was no cortico-spinal tract injury notwithstanding Dr Teychenne’s diagnosis. He reiterated there was no evidence of cortico-spinal tract injury arising out of or in the course of the applicant’s employment, especially in the light of normal MRI findings.
On balance, I find Dr Teychenne’s explanations for the symptoms exhibited by the applicant and referred to by Dr Bentivoglio as persuasive. Dr Bentivoglio maintained his view regarding the applicant’s diagnosis and an absence of cortico-spinal cord injury; however, despite being given the opportunity to address the thorough explanations put forward by Dr Teychenne for each of the symptoms previously noted by him, Dr Bentivoglio declined to do so other than simply restating his initial position.
Additionally, although Dr Bentivoglio noted the applicant’s significant multilevel degenerative disc disease which had been aggravated by the injury at issue, his report does not, in my view, adequately explain the problems with the applicant’s higher-level neurological functions such as bladder control, sexual dysfunction and ataxia. Dr Bentivoglio’s initial report sought to put various symptoms suffered by the applicant down to a range of causes such as alcohol intake, diabetes and degenerative changes. However, the volume of findings on examination in the upper and lower limbs together with the neurological symptoms persuade me on the balance of probabilities of the presence of a cortico-spinal cord injury.
Dr Bentivoglio was also of the view that had the applicant suffered a cortico-spinal cord injury, the condition would not be deteriorating over time as the symptoms seemed to be, but rather signs of the injury would have been present from the date of injury and gradually have gotten better.
Dr Teychenne, however, noted this is not necessarily the case, and cited cases where findings caused by central cord injury may lead to extension of the lesion and worsening symptoms, citing medical literature to support his contention. In Dr Bentivoglio’s later report, that contention also remained substantively uncontested.
On balance, I prefer Dr Teychenne’s detailed explanations for the presence of the very symptoms noted by Dr Bentivoglio (and for the absence of findings on MRI) who, when faced with the thorough alternative explanations, did not substantively engage with them or address the alternative propositions in his later reports.
Whilst I have no difficulty accepting Mr McMahon’s submission that there is no objective radiological finding of a cortico-spinal cord injury, in my view, Dr Teychenne adequately explains why such an injury may not be demonstrated even on MRI. That explanation, coupled with the detailed and consistent explanations of the applicant’s symptoms being related to the alleged cortico-spinal cord injury persuades me on the balance of probabilities of the existence of such an injury.
Mr McMahon criticised Dr Teychenne’s history of the injury, noting the applicant’s own evidence as to the precise mechanism of the fall was scant. I note, however, the very nature and extent of the applicant’s injuries clearly demonstrate, as Mr McMahon appropriately conceded, that the fall was a very serious one.
Mr McMahon referred to Dr Teychenne’s reliance on the applicant stating he was wobbly-legged post-fall but noted there was no record of that complaint in the Emergency Department notes. Whilst that may well be the case, the authorities make it very clear that care must be taken in relying on the histories recorded by treating practitioners, for the reasons set out by Basten JA in Mason v Demasi & Anor [2009] NSWCA 227.
In any event, Dr Teychenne does record a history recorded by Dr Kirychenko on 4 December 2019 in which the applicant noted he twisted his body to try to protect his head as he fell but could not avoid striking it on the chemical drums. Dr Kirychenko then recorded the applicant having back, right shoulder and arm pain and pain radiating into his legs and having trouble getting up.
Moreover, the respondent’s IME Dr Bentivoglio, who had the benefit of both Dr Teychenne’s first report and the detailed symptoms complained of by the applicant at his own examination, was asked whether the complaints made by the applicant were a reasonable and direct result of the injury and replied:
“Undoubtedly, his current and progressive symptoms are related to the persistent incapacity caused by the work injury that he had on 10 November 2017.”
In other words, Dr Bentivoglio made no suggestion the applicant was an unreliable historian or that he was in any way exaggerating or manifesting symptoms inconsistent with the injurious event.
Mr McMahon submitted there was no support for Dr Teychenne’s finding of a cortico-spinal cord injury from any treating practitioners. He submitted that when a comparison is made between the clinical account Dr Teychenne relies on compared with contemporaneous accounts, there must be concerns as to what findings in the applicant’s history can be made to support Dr Teychenne’s diagnosis.
With respect, the fact Dr Teychenne took a detailed history as to the mechanism of the applicant’s fall is not something for which he should be criticised.
Moreover, it is apparent the respondent’s own IME Dr Bentivoglio made a number of findings on examination which Dr Teychenne describes as being consistent with his diagnosis of incomplete cortico-spinal cord injury, and that when these findings of Dr Bentivoglio were expressly put to Dr Teychenne, he explained in detail that they are consistent with such an injury.
In my opinion, Dr Teychenne appropriately took into consideration Dr Bentivoglio’s findings on examination and provided a cogent explanation for them being caused by a cortico-spinal cord injury. By contrast, Dr Bentivoglio did not substantively engage with Dr Teychenne’s explanations other than to briefly restate that he maintained his initial position.
The respondent’s earlier IME, Dr Bosanquet and the applicant’s earlier IME, Dr Negus both provided reports. Mr McMahon submitted their findings did not align with those of Dr Teychenne. However, neither of those doctors had the benefit of Dr Teychenne’s reports, which were obtained after their own had been provided.
Moreover, although Dr Negus did not report neurological symptoms, Dr Bosanquet did note symptoms consistent with those found by Dr Teychenne and Dr Bentivoglio, such as chest pain and numbness, numbness in the right axilla, numbness in the fingertips and restricted range of motion in the neck. As already noted, these are symptoms which Dr Teychenne has explained as being consistent with a cortico-spinal cord injury.
It should also be noted that many of the symptoms and complaints recorded by Dr Teychenne on examination were also sighted by Dr Bentivoglio. Certainly, there were some discrepancies as is often the case in the context of medicolegal examinations, however, the respondent’s IME made no suggestion the applicant’s complaints in relation to matters such as numbness in his fingers and legs, bladder incontinence and urgency and loss of sexual function were anything other than genuine and appropriate.
On balance, I am satisfied that the evidence establishes the presence of symptoms on examination by both Dr Teychenne and Dr Bentivoglio which are consistent with the presence of a cortico-spinal cord injury. I find those proven symptoms form a reasonable basis for satisfying me on the balance of probabilities of the presence of such an injury, given the cogent explanations by Dr Teychenne of the applicant’s symptoms, which were not only exhibited to him, but many of which were described and recorded by the respondent’s IME, Dr Bentivoglio.
The fact the applicant’s symptoms appear to have developed and worsened over time is not, in my opinion, fatal to his claim of cortico-spinal cord injury, particularly when the respondent’s own IME records the presence of these symptoms on examination, and Dr Teychenne then explained such a worsening of symptoms as not inconsistent with the presence of a cortico-spinal cord injury.
On balance, I am satisfied the applicant suffered a cortico-spinal cord injury in the course of his employment with the respondent in the injurious fall on 10 November 2017.
Accordingly, the permanent impairment claim will be remitted to the President for referral to a Medical Assessor to determine not only the permanent impairment arising from the accepted injuries listed on page 1 of the Certificate of Determination, but also in relation to the cortico-spinal cord.

Claim for weekly benefits

The parties agree that the claim for weekly compensation will be adjourned for a further preliminary conference upon the issuing of any Medical Assessment Certificate. Although permanent impairment and incapacity are plainly different concepts, the Commission has held that in a contested matter such as the current proceedings where there are claims for both weekly and permanent impairment compensation, the preferred course of action where a Member has found an s 4 injury is to refer the matter for medical assessment of the whole person impairment before final orders are made: see Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2023] NSWPIC 176

21 April 2023