Clarke v City of Ryde

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Clarke v City of Ryde [2023] NSWPIC 418
APPLICANT:	Simon Clarke
RESPONDENT:	City of Ryde
Member:	Michael Wright
DATE OF DECISION:	17 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Lump sum compensation claim for accepted lumbar spine, scarring, cardiovascular, and disputed cervical and thoracic spines; possibility of injury; EMI (Australia) Ltd v Bes and Kooragang Cement Pty Ltd v Bates considered; nature of injury/pathology found; Bindah v Carter Holt Harvey Wood Products Australia Pty Limited considered; Held – found cervical and thoracic spine injury sustained as result of pleaded injury; matter referred to Medical Assessor.
determinations made:	The Commission determines: 1. Pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act), the applicant suffered injury to his cervical spine and thoracic spine as a result of injury on 15 December 2016. Pursuant to s 9A of the 1987 Act, employment was a substantial contributing factor to the injuries to the cervical spine and thoracic spine as a result of injury on 15 December 2016. 2. Matter remitted to the President for referral to a Medical Assessor (MA) pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment as follows: a. Date of injury: 15 December 2016 – personal. b. Body systems/parts: i. Lumbar spine ii. Cervical spine iii. Thoracic spine iv. Cardiovascular system v. TEMSKI/scarring c. Method of Assessment: Whole person impairment 3. The documents to be reviewed by the MA are: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents; c. Application to Admit Late Documents dated 4 May 2022, and attached documents, and d. Application to Admit Late Documents dated 9 May 2022, and attached documents.

STATEMENT OF REASONS

BACKGROUND

This is an application by Mr Simon Clarke (the applicant) for lump sum compensation in respect of injury sustained in the course of his employment with the City of Ryde (the respondent) on 15 December 2016. The claim for lump sum compensation was in respect of the lumbar spine, thoracic spine, cervical spine, TEMSKI/scarring and the cardiovascular system.
The respondent did not dispute that the applicant on 15 December 2016 sustained injury to his lumbar spine, cardiovascular system and TEMSKI scarring.
By way of dispute notices attached to the documents referred to below, the respondent disputed that the applicant sustained injury to his thoracic spine and cervical spine as a result of injury on 15 December 2016.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This was a matter that had been remitted to me following the successful appeal to a Presidential member by the respondent in this matter, the outcome of which is reported at City of Ryde v Clarke [2023] NSWPICPD 22.
At the arbitration of this matter on 30 June 2023, the applicant was represented by Mr Morgan of counsel, instructed by Mr Bell, solicitor, and the respondent by Mr Saul, instructed by Mr Kemp, solicitor. Both parties relied upon their respective submissions made in the previous arbitration of this matter on 10 May 2022. A copy of the transcript of the arbitration hearing on that day was provided to me by the parties to assist me in that regard. Both parties made further oral submissions at the hearing on 30 June 2023.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (Application) and attached documents;
(b)    Reply and attached documents,
(c)    Application to Admit Late Documents dated 4 May 2022 and attached documents, and
(d)    Application to Admit Late Documents dated 9 May 2022 and attached documents.

Oral evidence

There was no oral evidence.

Evidence

The applicant’s statement

The applicant provided a statement dated 23 February 2022.
The applicant stated that on 15 December 2016 he was concreting a path when it started to rain. He stated that, with an apprentice, he moved over temporary fencing so that they could put up a tarp. The applicant stated that he was lifting and carrying base plates and on about the 12th lift he heard a loud popping sound in his back and he began to experience significant back pain and felt numbness in his upper and lower limbs. The applicant stated that he recalled falling to the ground as a result and he was having difficulty moving his legs.
The applicant stated that he was taken to the Ryde Hospital by the apprentice. The applicant said that on the same day at the hospital he filled out a workers compensation claim form. He said that he completed that form with the assistance of persons employed by his employer.
The applicant said that on discharge from the hospital he was prescribed medications, including Endone, and was referred for physiotherapy.
He said that he attended his local doctor, Dr Tran, on 16 December 2016 and was prescribed analgesics and referred for physiotherapy as well as radiological investigations. He said that the following day he was prescribed Endone and oxycontin.
The applicant stated that on 23 December 2016 he was referred to Dr Jane Frith for nerve conduction studies in relation to the numbers that he felt in his legs and arms. He stated that he saw Dr Frith in late January 2017.
The applicant said that on 3 February 2017 he was referred by Dr Tran for physiotherapy of his neck and back and a WorkCover medical certificate was issued. He said that he first consulted mr Stephen Howard, physiotherapist, on 15 February 2017. The applicant also said that Dr Tran referred him for an MRI all the cervical and thoracic spine, which he underwent on 6 February 2017. The applicant said that are you arrange for a review report of that MRI at a later time by Dr Michael Houang, radiologist. The applicant stated that he was then referred again to Dr Frith for more nerve conduction studies, which he underwent on 21 February 2017.
The applicant stated that following the injury he was unable to return to any work until about March 2017, when he returned to work on restricted duties.
He said that on 25 March 2017 Dr Tran referred him to Dr Coughlan in relation to his ongoing back pain.
The applicant stated that on 25 May 2017 he suffered more pain up and down his back as well as he is neck after shovelling eight tonnes of soil off the rear of a truck, although the increase in pain returned to the state that it had been in prior to the shovelling. He said that he consulted Dr Tran and was referred two Dr Jonathan Ball.
The applicant said that on 4 July 2017 Dr Coughlan performed a CT guided sacral epidural block, which did not help and he continued to experience significant back and neck pain.
The applicant stated that on 19 September 2017 he underwent a CT guided L5/S1 epidural block. He said that it was still experiencing severe back and neck pain in the pain and numbness would radiate to his legs and arms. He stated that on for October 2017 he underwent a lumbar discogram.
The applicant stated that on 15 March 2018 underwent L4/L5 disc replacement surgery by Dr Coughlan at the Prince of Wales Hospital. He stated that after the surgery he continued to experience pain and numbness in his lower back radiating to both his legs and he continued to have neck pain and numbness in his arms. The applicant stated that Dr Coughlan referred him to a pain specialist, Dr Khor. He said that he was thereafter admitted to the Lady Davidson Hospital for post surgery rehabilitation and he remained in that hospital for five weeks.
The applicant stated that on 14 June 2018 he consulted Dr Coughlan for review and Dr Coughlan recommended an MRI scan of the neck and thoracic spine.
The applicant said that on 24 September 2018 he consulted Dr Granot, neurologist. He said that on 13 November 2018 he had a ketamine infusion procedure under the supervision of Dr Khor, but this was of no benefit as he continued to experience acute pain in his legs and back, abnormality in gait and numbness in his arms. He said that he saw Dr Granot again on 23 January 2019 in relation to his walking difficulties and an EMG and new nerve conduction studies were ordered. The applicant said that Dr Tran referred him in February 2019 to Dr Mark Davies, neurosurgeon, for another opinion regarding his chronic pain problems.
The applicant stated that he continues to experience severe back and neck pain daily and the numbness and altered sensation in his arms and legs continues.

Claim form

Attached to the Application was a copy of an "Employee Claim Form", that was signed by the applicant and dated 15 December 2016. In response to a question as to how the injury occurred, it was recorded that ”lifting base plate for tempory [sic] fencing on jobsite. Heard a loud popping sound, I screamed out in pain [and] fell to the ground”. In response to a question as to the injury or disease suffered it was recorded that “lumbar disc prolapse" and the body parts affected we recorded as "both arms [and] both legs inclusive of back".

Ryde Hospital

Attached to the Application were a discharge summary and notes of the Ryde Hospital regarding an admission and discharge to and from the Ryde Hospital of the applicant on 15 December 2016.
It recorded the present complaint as "lower back pain". The history of present illness was recorded as "States onset while at work… lifting a heavy object from the ground… Heard a ‘pop’, and felt leg numbness which resolved quickly… Was able to walk to the car and present to ED…” Examination noted "mild midline tenderness around L5 – S1", and “moving both legs side to side, but states unable to actively raise legs, also came walking into ED… sensations intact… reflexes – knee, ankle – intact bilaterally… neurovascularly intact". Under "progress", it was recorded "Workers compensation form filled out". The principal diagnosis was recorded as "low back pain”.

Dr Tran

The applicant’s treating General Practitioner (GP), Dr Tran, provided clinical notes and treating reports and documents.
In a referral letter to Dr Frith dated 23 December 2016, Dr Tran noted the presenting problem as "Nerve conduction studies? Pinch nerve”. Another referral letter from Dr Tran to Dr Frith dated 31 January 2017 was in the same terms.
In a referral letter for physiotherapy dated 3 February 2017, Dr Tran noted the presenting problem as "WC physio neck and back MM wasting”.
In a referral letter to Dr Frith dated 10 February 2017, Dr Tran noted the presenting problem as “for nerve conduction studies numbness in leg and arm". In a referral letter to Dr Joffe dated 10 February 2017, Dr Tran noted the presenting problem as "RV for numbness in arms and legs”.
In a referral letter to Dr Coughlan go to 25 March 2017, Dr Tran noted the presenting problem as “RV for back pain not getting better".
Dr Tran provided a report to the workers compensation insurer dated 26 June 2018. However, neither party placed reliance upon this report as there were no particular submissions about this particular report, other than the general submission that the records of Dr Tran did not assist the applicant.
Dr Tran also provided clinical notes. There was no specific reference in submissions to particular clinical entries, other than the general submission that there were no contemporaneous clinical entries that identified cervical spine or thoracic spine symptoms. This was not disputed by the applicant in submissions.
The first entry in these clinical notes was on 17 December 2016 by Dr Tran. It noted the issue of a WorkCover certificate of capacity and prescriptions for medication, but did not record a history of injury nor did it record symptoms or physical examination. Endone and Oxycontin was prescribed.
The next entry was on 19 December 2016, when Dr Tran noted referral for an MRI “low back sciatica... review check low back pain”.
Clinical entries for 23 December 2016 and 28 December 2016 by Dr Tran referred to the “back” and on 28 December 2016 noted “can't bend over sitting for 10 min goes numb and change position stiff back...” Endone was prescribed.
In a clinical note dated 4 January 2017, Dr Tran did not refer to any part of the body coma noted “not getting pain”, and prescribed endone, oxycontin and Valium.
In a clinical note dated 10 January 2017, Dr Tran noted “review for low back pain”.
Clinical entries on 12 January 2017 and 13 January 2017 did not refer to particular body parts. The latter entry recorded prescriptions for endone, oxycontin and Valium. In a clinical entry dated 20 January 2017, Dr Tran noted “review since back still same pain but getting bitter very slow...” Valium was ceased and prescriptions were provided for endone, oxycontin and ativan.
In a clinical entry dated 27 January 2017, Dr Tran noted “slow gait... difficulty getting off chair... Trying to get off oxy by Sunday... Getting more depressed being in bed six weeks”. A prescription for endone was issued.
In a clinical entry dated 3 February 2017 , Dr Tran noted “review nerve studies - philtre pop when was heavy lifting fell to the ground and also numbness both lower arm... Long discussion need full MRI” and “diagnostic imaging requested... MRI spine - cervical, MRI spawn- thoracic...? Numbness below both elbow and both knees”. Endone was prescribed.
Clinical entries in March 2017 did not refer to specific body parts or symptoms Until 25 March 2017, when Dr Tran noted “REVIEW STILL SORE INT HWBACK HAS BEEN DOING LIFTING REGARL TO BACK PSEICLAI…”

Radiology and imaging reports

In an MRI lumbar spine report dated 22 December 2016, Dr Keith noted the clinical information as "lower back pain and sciatica". The report concluded that "there are degenerative changes at the L4/5 and L5/S1 level" and "At the L5/S1 level, there is a large annular tear".

45. In an MRI cervical and thoracic spine report dated 6 February 2017, Dr Perry noted history of "numbness". Findings noted “…in the cervical spine, sagittal alignment is satisfactory. The vertebral body heights are normal. Signal within the marrow space is normal… There is no focal disc herniation. There is no canal or foraminal stenosis…” The report noted “in the thoracic spine, sagittal alignment is satisfactory. The vertebral body heights are normal. No significant bone abnormality is demonstrated. There is no focal disc herniation. There is no canal or foraminal stenosis.” The report concluded that there was "no significant structural abnormality”.

In a CT cervical and thoracic spine report dated 7 June 2018, Dr Cho noted that no clinical notes were given. In respect of the cervical spine, Dr Cho found:
“…There is normal alignment of the cervical spine. There is minor vertebral body height loss of C6 however no definite fracture line or bony retropulsion is seen and this may be due to old compression fracture…
…At C4/5, there is left uncovertebral joint hypertrophy causing mild to moderate left foraminal narrowing. No canal narrowing is seen.
At C5/6, there is bilateral uncovertebral joint hypertrophy causing mild-moderate bilateral foraminal narrowing, slightly greater in degree on the left. There is no significant canal narrowing.
At C6/7, there is suggestion of right paracentral/foraminal disc protrusion and mild left uncovertebral joint hypertrophy, There is moderate right and mild left foraminal narrowing. There is no significant canal narrowing…”
In respect of the thoracic spine, Dr Cho found:
“…There is normal alignment of the thoracic spine. The vertebral body heights are maintained. There are minor degenerative changes with disc space loss, however, no significant canal or foraminal narrowing is seen at any level. No overt facet joint arthropathy is seen…”
Dr Cho commented that there were “mild degenerative changes in the cervical spine” and “mild – moderate foraminal narrowing at C5/66 bilaterally and at C6/C7 on the right”. Dr Cho also commented that “no significant degenerative change is seen in the thoracic spine".
In an MRI full spine report dated 11 July 2018, Dr Sach noted a normal appearance in the cervical region and a normal appearance in the thoracic region.
The reports of Dr Houang and Dr Korbel will be dealt with below.

Dr Frith

Dr Frith, neurophysiologist, provided reports dated 31 January 2017 and 21 February 2017.
In her report dated 31 January 2017, Dr Frith noted a history that:
"15/12/16 after lifting heavy plates he heard a ‘pop’, screamed with pain and fell to the ground on his knees. Immediately feel numbness from the elbows down and from the hips down. MRI lumbar spine is reported to show a large annular tear at L5/S1 level. He continues to have sensory symptoms in the arms and legs with left sciatic pain".
Dr Frith concluded that nerve conduction studies of the lower limbs were within normal limits. Dr Frith also concluded that "as Mr Clark continues to have symptoms in the upper limbs as well as lower limbs MRI of whole spine is recommended to exclude cord compression or syrinx in the cervical spine".
In her report dated 21 February 2017, Dr Frith noted history of:
"15/12/16 work related injury. EMG and NCS of the lower limbs on 31/1/17. MRI of cervical and thoracic spine on 6/2/17 – no significant structural abnormality. Sensory symptoms in the upper and lower limbs continue. In the upper limbs he complains of numbness of the extensor surface of the medial forearm and onto the hypothenar eminence bilaterally. There is no neck pain.”
Dr Frith concluded that "there is no evidence on these EMG and nerve conduction studies to support a diagnosis of cervical spondylosis with C6/7 radiculopathy, median nerve entrapment at the wrist lesions of the medial or lateral antebrachial cutaneous nerves".

Mr Howard

Mr Howard, physiotherapist, provided reports including a report dated 15 February 2017.
Mr Howard noted a history that the applicant:
"presented on 13/2/17 complaining of continuous low back pain… resulting from a work related injury on 15/12/16… he then screamed and fell to the ground due to pain in the lumbar spine… currently, he experiences low back pain and lateral shank and foot numbness bilaterally. He also complained of a three week history of continuous bilateral postero-medial numbness. You cannot recall doing anything to bring this on. Both the low back pain and forearm numbness aggravated when sitting."
Mr Howard noted that on review on 15 February 2017 the low back pain was reported to be slightly better and the numbness in the forearms remained the same. On examination on 15 February 2017, Mr Howard noted that:
"Cervical flexion was normal, extension produced pain at the base of the cervical spine on the right, lateral flexion to the left was tight, lateral flexion to the right was normal, and rotation was tight in both directions. On upper limit neurological testing, power it was normal, numbness was reported on the postero-medial forearms and fifth finger bilaterally, and reflexes were normal… on palpation, increased cervical spine tension was noted (R>L) and the cervical facet joints were stiff and tender (R>L). The thoracic spine was also stiff.”
Mr Howard noted that he:
"… commenced treatment of the cervical spine consisting of cervical facet joint mobilisations, massage of the thoracic and cervical spines, thoracic spine mobilisations and an exercise program consisting of chin retractions, a thoracic cage stretch and a median nerve stretch".
Mr Howard also noted that "following treatment… cervical spine movements were much the same…although the reason for the forearm numbness is not clear, I think it would be worthwhile continuing to treat the cervical spine to see if it responds".

Dr Coughlan

Dr Coughlan, neurologist, provided a number of treating reports which I have considered, including the following which were referred to in submissions.
In his initial training report dated 17 June 2017, Dr Coughlan noted a history that the applicant:
"…injured himself on the 15 December 2016 when he was lifting templates full of concrete. On about the 12th lift he felt a loud pop and fell to the ground. He had very significant lower back pain and described numbness in his upper and lower limbs for a period of time. This slowly settled."
Dr Coughlan stated:
“He does have a significant annular tear at L5/S1 and a disrupted posterior annulus at L4/5. He finds sitting quite hard and certainly on MRI he has the hall marks of discogenic pain. He also has significant thoracic kyphosis radiologically. Clinically his straight leg raises are negative and his reflexes are equal and symmetrical. He does not have any motor or sensory deficit.”
Subsequent reports of Dr Coughlan dated 7 September 2017 add 23 October 2017 outlined investigations and treatment with respect to the lumbar spine and without reference to the thoracic spine or upper limb complaints or symptoms.
Dr Coughlan performed an anterior fusion and L4/5 disc replacement procedure on the applicant on 15 March 2018, as indicated by his operation notes of the same date and the operation report of Dr Lennox dated 15 March 2018.
In his report of 16 April 2018, Dr Coughlan stated:
“There are some inconsistencies in his clinical examination in that his walking is very good and he has good movement of extensor hallucis longus, tibialis anterior and his hip flexors. Individually when testing these muscle groups, however he seems to be very weak, more weak than one would expect looking at his gait. For this reason I have suggested we do an MRI of his cervical spine and his brain just to make sure there are no other issues affecting his neuraxis, for the sake of thoroughness.”
Dr Coughlan also observed:
“He is on a myriad of medication and he may be having some interaction with the medications so I have suggested reviewing him with his MRI scan in three weeks time and at the same time I have also asked Dr Khor, the pain specialist to have a look at all his medications… and in the interim will request authorisation from the insurer for him to undergo an MRI scan of his brain, cervical spine and thoracic spine just to make sure there no other concomitant issues that could affect his gait.”
In his report dated 23 April 2018, Dr Coughlan stated:
“As per my letter of 16 April 2018, I am concerned that on testing Mr Clarke's muscle groups, he seems to be very weak. For this reason, I recommended MRI of his cervical spine, thoracic spine and brain to rule out other issues which could be affecting his central nervous system.”
Dr Coughlan also stated:
“As advised, it is important to investigate his weakness thoroughly and MRI of his brain, cervical spine and thoracic spine will aid in diagnosis of disease or injury. MRI is magnetic resonance imaging and does not use x-rays or other radiation, hence it is the imaging modality of choice when frequent imaging is required for diagnosis or therapy… In summary, I am concerned that Mr Clarke has ongoing weakness which I believe has to be investigated…”
In his report dated 14 June 2018, Dr Coughlan stated:
“l have recommended he have an MRI scan of his cervical spine as well as his thoracic spine…I am concerned regarding his abnormal gait and this is certainly not consistent with the recent surgery that he underwent. He describes weakness in his hip flexors and quaDriceps muscle group and his gait is very abnormal.There may be an underlying supratentorial component, but l am duty bound to ensure that there is no significant pathology higher up involving the cervicothoracic spine. For this reason I have encouraged him to go through with the MRI scan.”
In his report dated 15 November 2018, Dr Coughlan noted a "completely normal" MRI scan of the brain, and a normal appearance of the cervical spine and of the thoracic region. Dr Coughlan also recorded that he
“contacted Dr Jane Frith's rooms to review the Nerve Conduction Studies which were done last year in January. At that point in time he was complaining of numbness from the elbows down and from the hips down. The MRI spine confirmed the annular tear. In terms of timing at that stage he was complaining of the same sensory symptoms. I note the NCS were normal… and the needle EMG support a diagnosis of lumbar spondylosis with left L4/5/S1 radiculopathy”.
Dr Coughlan observed that "certainly on clinical examination there do seem to be major inconsistencies in terms of his leg strength as well as his clinical presentation of his gait. I will contact Dr Ron Granot and Dr Khor to discuss his case in more detail.” In an addendum to the same report Dr Coughlan noted that:
"I have discussed his case with Dr Khor. I am concerned that despite genuine clinical issues he may have significant functional overlay. I have suggested he be assessed and reviewed by a psychiatrist and I have discussed the case with Dr Granot and asked for a review with Dr Granot given his very atypical gait and the inconsistencies with his strength and clinical examination".
In a report dated 17 November 2018, Dr Coughlan noted that the applicant continued "to describe significant pain in the arms and legs". Dr Coughlan stated that "these do not respect any specific dermatome and he describes his symptoms as the same as experienced immediately after the accident". Dr Coughlan observed that:
"In his cervical spine he only has very mild wedging in the mid axial cervical spine but… discussed the option of a multisystem MRI, particularly looking at his cervical spine. I will discuss this with Dr Khor and Dr Granot. His previous MRI scans done were normal".
As I understood it, this report was not specifically referred to in submissions.

Dr Granot

Dr Granot, neurologist and neurophysiologist, dated 24 September 2018, 23 January 2019 and 8 August 2021.
In his report dated 24 September 2018, Dr Granot noted a history that:
"On 15 December 2016, whilst lifting a heavy concrete base plate, he tells me of hearing a series of ‘pops’ (presumably in his back) and fell to the ground. He was unable to speak, filled his whole body number, and is told that he was pale. Since, he has low lumbar back pain… he felt a sense of detachment from his legs, which he feels is still persisting now (at least to an extent). He also felt at the time and still feels numbness from the elbows and knees distally, over the medial for arm and hand and lateral leg and foot. He also describes right lower cervical neck pain… despite all the medications, he still rates the back pain 8/10; neck pain 6–7/10".
Dr Granot noted investigations to date including "MRI cervical spine incl foraminal views; MRI thoracic spine; no significant structural abnormality. RG: crush of C6 evident (not acute); 6/02/2017”.
Dr Granot also noted this investigation:
“MRI brain; MRI Cervical spine incl foraminal views; MRI Lumbosacral spine; MRI Thoracic spine; - No focal abnormality could be seen intracranially…Vertebral column: Metal artefact noted at the level of the recent surgery presumably at L4/5. This reduces detail in this region. No underlying abnormality could be identified however. RG: C6 crush fracture noted; 11/07/2018”.
On examination, Dr Granot noted:
“He had a wide based gait, with difficulty standing on heels or toes, but not definite footDrop. He was able to stand for prolonged periods unassisted. His static power was variable and poor on the whole, apart from distal hand power, which was normal. Lower limbs barely demonstrated 3/5 power, but he was able to arise with only minimal use of the hands and stood unassisted throughout the consultation and whilst waiting. Reflexes were normal, plantars downgoing. Vibration was lost or minimal seemingly throughout his limbs, but felt well centrally, including xiphisternum. He had reduced pinprick acrally - to the deltoid in the upper limbs and to mid thoracic territory centrally”.
In respect of back and neck pain, Dr Granot observed that "there is uncertainty as to the origin of the pain. The C6 crush is long standing and I would presume [ the ] back is facetogenic after all”.
In his report dated 23 January 2019, Dr Granot, in respect of walking difficulty, stated that:
"I will chase the previous nerve conductions and EMG and would like to repeat those… especially EMG of his legs standing, to see if there is more activation then he voluntarily shows. I can find no clear cut aetiology for the weakness pain synDrome otherwise at this stage.”
In his report to the applicant’s solicitors dated 8 August 2021, Dr Granot reviewed a number of documents, including his own reports, the reports of Dr Coughlan and the reports of Dr Frith, as well as MRI, CT and x-ray reports. Dr Granot noted the history of injury on 15 December 2016 and that the applicant
“subsequently noted lumbar back pain. He was assisted to stand and went to hospital. He felt a sense of detachment from his legs, which he feels is still persisting now. He also felt at the time and still feels numbness from the elbows and knees distally, over the medial forearm and hand and the lateral leg and foot. He also describes right lower cervical neck pain.”
In respect of the applicant’s current status, Dr Granot relevantly noted that:
"his neck pain is over the right lateral lower half of the neck and is significant (7–8/10) and associated with reduced range of motion, especially to the right… numbness is noted distal to the elbows symmetrically, dorsal forearm and hand over digits 3–5 and volar digits 3–5 palm)… he feels detached from his limbs –as if he is a puppet walking”.
On examination, Dr Granot relevantly noted that:
"Power in his upper limbs was essentially normal with encouragement. Reflexes were present, plantars down going… sensation was reduced to vibration and pinprick acrally… he had a wide based gait, with difficulty standing on heels or toes… he was able to stand for prolonged periods unassisted… is static Laura Lynn power was poor on the whole. Lower limbs barely demonstrated 3/5 power, but he was able to arise with only minimal use of the hands and stood unassisted throughout the consultation and whilst waiting”.
Dr Granot was of the opinion that "he has post injury cervical spine pain, which may be facetogenic or discogenic and perhaps an element of chronic pain associated with the crush fracture at C6".
Dr Granot was also of the opinion that
“The lumbar spine pain likewise may be discogenic or facetogenic, but has not improved with the fusion and disc replacement procedure. Review by a pain physician and RF ablation of facet joints may be able to assist with the localisation and optimal therapy of his back pain.
The acral sensory symptoms do not appear to have a central or peripheral component. In terms of differential diagnoses, the sensory symptoms may be a small fibre neuropathy (which could be confirmed by autonomic function testing, performed the Royal Prince Alfred Hospital), although there is no clear causative link that can be Drawn from the mechanism of the original injury to the current acral sensory symptoms.
The weakness likewise has not been confirmed with neurogenic changes on EMG and has no central explanatory lesion. Likewise, in the absence of confirmation of underlying neurological impairment, and with the somewhat contradictory clinical findings, I would suggest that the weakness component and sense of detachment from his limbs - now primarily involving the lower limbs only - be likely secondary to his psychiatric disorder. Naturally, a psychiatric opinion in this regard would be helpful.”
Dr Granot diagnosed cervical and thoracic crush fractures, and facetogenic neck and lumbar pain. He also stated that "psychiatric diagnosis may assist with clarification of lower limb weakness".
Dr Granot was also of the opinion that "the remains no definite neurological explanation for his difficulty with walking nor of his sensory symptoms”.
Dr Granot provided an assessment of permanent impairment in respect of the lumbar spine. In respect of the cervical spine, he assessed whole person impairment (WPI) of 5% "due to the compression fracture of under 25%", and of the thoracic spine he assessed 20% WPI "using WorkCover Guides 4.30 for combining percentage of crush across vertebrae (yielding as per Dr Houang's MRI review 20% + 20% + 5% + 5% + 5% = 55%)”.
In response to a question as to causation of the assessments of permanent impairment that he provided, Dr Granot stated:
“The mechanism of injury was one of significant axial load. Therefore, this would be expected to cause a crush fracture, such as those observed in his thoracic spine, as well as disc protrusion, such as those observed in his lumbar spine, which subsequently led to the surgery performed and the associated impairment related to scarring as well”.

Dr Davies

Dr Davies, neurosurgeon, provided a treating report to Dr Tran dated 11 February 2019.
Dr Davies recorded a history that the applicant remembered lifting heavy concrete blocks and developing acute low back pain and leg symptoms. Dr Davies noted the applicant underwent surgery in March 2018. Dr Davies also recorded that the applicant noted that ”straight after the injury he had discomfort in his neck which has worsened in the last year” and that the applicant also "complains of numbness in his forearms and hands (dorsal surface)". Dr Davies noted on examination that the applicant had "very variable, effort dependent, upper limb weakness ranging from almost 5/5 to 0/5". Dr Davies also noted the applicant had "exquisite light touch sensation discomfort in his lumbar spine and back of his neck".
Dr Davies noted investigations including an MRI of the cervical and thoracic spine of 6 February 2017. Dr Davies stated that the MRI demonstrated:
"some old scalloping of the C6 vertebral endplates with some loss of superior and inferior vertebral body height. This looks old or congenital. There is no evidence of acute fracture. There is desiccation of multiple thoracic discs and schmorl's nodes. At no level is there any significant extrinsic nerve root compression, foramenal stenosis or cord compression. There is only mild C5/6 foramenal stenosis.”
Dr Davies diagnosed "central pain synDrome”. Dr Davies also stated that the applicant’s “chronic back and limb symptoms have a neuropathic quality but are not associated with any surgically correctable extrinsic nerve root compression. There does not appear to be any sinister pathology or instability…”

Dr Khor

Dr Khor, consultant in anaesthesia and pain management, provided a number of treating reports.
In an initial treating report dated 23 March 2018, Dr Khor noted the L4/5 disc replacement and fusion of the lumbar spine. Dr Khor noted that the applicant’s “analgesic regimen was not quite sufficient for the complexity of his surgery”. Dr Khor observed that "he left yesterday for rehabilitation and hopefully as he gets better, his GP can reduce his medications, especially the strong opioid oxycodone".
In a report to the workers compensation insurer dated 25 June 2018, Dr Khor noted that the applicant "still seemed to be genuinely struggling with his spinal pain and possibly some neurological issues which are difficult to pinpoint from clinical examination”. Dr Khor recommended a Ketamine infusion, neurological review, and an MRI of the brain, cervical and thoracic region.
In a report dated 25 June 2018 to Dr Tran, Dr Khor noted severe pain in relation to the “lumbosacral spinal region”, which was “associated with some numbness over his leg and feet region…” Dr Khor noted that the applicant “still had a very antalgic gait and seemed quite wobbly”. Dr Khor recorded that the applicant still had not had his MRI scan as it had not been approved by the insurer.
Dr Khor’s subsequent reports outlined pain management treatment. Dr Khor was of the impression, in his report of 19 August 2020, that “there were no major neurological injuries that can be ascertained”, although in his report of 1 March 2021, he “suggested that in view of his very unusual neurological symptoms to seek the opinion of a spinal medicine physician and I will write to the insurer to seek approval”.

Dr Houang and Dr Korbel

The MRI cervical and thoracic spine report of Dr Perry dated 6 February 2017 has been noted above. The history recorded by Dr Perry was “numbness". In his report, Dr Perry noted findings in respect of both the cervical and thoracic spines that sagittal alignment was satisfactory, vertebral body heights were normal, no focal disc herniation, and no canal or foramenal stenosis. The report concluded that “there is no significant structural abnormality”.
Dr Houang, consultant radiologist, provided a review report, dated 9 July 2021, of the MRI cervical thoracic spine that was done on 6 February 2017.
Dr Houang noted a history of "work related injury on 15/12/2016 lifting extremely heavy plate. Radiculopathy in cervical region to both limbs”.
In respect of the cervical spine, Dr Houang noted findings including:
"C5/6 disc shows minor protrusion posteriorly more towards the left side also. Both foramen are encroached by uncovertebral and facet joints hypertrophic changes. C6 vertebral body shows 15% reduction of height and mild irregular endplates suggesting compression.
C6/7 disc shows minor protrusion centrally and towards the left side. Left foramen is narrowed by facet joint osteoarthritic changes and small disc protrusion. Left facet joint shows a little hypertrophic bone change.”
In respect of the thoracic spine, Dr Houang noted findings including:
“T4/5 disc shows a focal central protrusion indenting the thecal sac containing hyperintense T2 signal suggesting annular tear. Thecal sac is indented.
T5/6 shows a focal protrusion to the right side of midline also containing small annular tears.
T6/7 disc shows a Schmorl's node with irregular inferior end-plates at T6, and anterior spur.
T7/8 T8/9 T9/10 T10/11 T11/12 discs all show Schmorl's nodes with 5-10% reduction in height, in T8, T9, T10 vertebral bodies and irregular end-plates. Foramen are clear and from T6 level downwards no axial images are available.”
Dr Houang concluded in respect of the cervical spine:
“15% compression of C6 vertebral body…C4 C5/6 C6/7 discs show small protrusion posteriorly more towards the left side… the foramen are encroached on the left side at C4/5 and C6/7, both sides at C5/6 by a combination of protrusions and bone changes in the uncovertebral and facet joints”.
In respect of the thoracic spine, Dr Houang concluded:
“Subacute compression of T3 and T4 vertebral bodies , <>20%, with anterior wedging and depression of the end-plates…T4/5 and T5/6 discs protrusions : T4/5 in a central direction and T5/6 to the right, both show small annular tears…Mild reduction in height 5-10% in T8, T9, T10 and irregular end-plates from subacute compression”.
Dr Korber, radiologist, provided a report to the respondent’s solicitors dated 4 April 2022. The report was described as radiology, imaging and file review. Dr Korber noted a history of injury on 15 December 2016 when the applicant “lifted approximately 30 kg to 35 kg, suffering an injury to his lumbar spine. He heard an audible pop in his lower back which caused him to collapse to the ground.”
Dr Korber noted that
"The worker complained of inability to feel his legs and arms for a period of time. Nerve conduction studies confirmed the lower limbs were within normal limits. An MRI of the whole spine was recommended, to exclude cord compression. It was noted that the worker made no complaints of neck pain but reported sensory symptoms in the arms and legs. An MRI performed of the cervical and thoracic spine on 06 February 2017, was reported as showing no significant structural abnormality by Dr Perry.”
Dr Korber noted subsequent nerve conduction studies and referral to Dr Coughlan, with subsequent anterior lumber fusion at L5/S1 and disc replacement at L4/5 performed on 15 March 2018.

Dr Korber noted that:
“On 7 June 2018, the worker underwent a SPECT-CT which showed diffuse increased activity in the cervical bone marrow but no focal reaction to suggest a healing fracture. Nevertheless, the worker reports suffering a crush fracture in his cervical spine. There would appear to be doubt as to how long this process had been in train.”
Dr Korber further noted that:
“From the initial medical reports of Ryde Hospital on 15 December 2016 at the time of injury, no mention is made of cervical symptoms. The clinical history provided was back pain after lifting a heavy object. This would exclude a cervical fracture on both clinical grounds, and also on the mechanism of injury.”
Dr Korber reviewed the MRI cervical spine of 6 December 2017, simultaneously correlated with the CT of 7 June 2018, "in order to correlate what is bony and what is not”. He commented that "at C6/7 there is a discovertebral bar, the disc conforming to the bony outline. The nerves are shown to exit without compression, although the foramina are narrow. There is some left-sided facet arthritis at C6/7.” In my view, the reference by Dr Korber to and MRI cervical spine of "6 December 2017” was a typographical error and was a reference to the MRI of the cervical spine that was done on 6 February 2017, as I did not find, nor was I taken to, an MRI cervical spine in December 2017, and Dr Houang proceeded on the basis of his commentary in respect of the review report that he gave.
Dr Korber reviewed the MRI and CT thoracic spine of 6 February 2017 and 7 June 2018. Dr Korber commented that "both studies were compared simultaneously in two planes”.
Dr Korber noted that
“There is a thoracic kyphosis. There is anterior wedging of T6, T7 and T8. There is anterior wedging but no evidence of anterior compression fracture at any level. (Not all anterior wedging is due to fracture). There is no evidence of anterior lip fracture, which always occur with compression of vertebral bodies. There is disc desiccation at multiple levels in the thoracic spine with associated endplate irregularity and Schmorl's nodes involving most discs from C5 down to the thoracolumbar junction. The appearances are typical of a Scheuermann's disease pattern. There is disc indentation into multiple end plates, again a feature of Scheuermann's sease. There is a thoracic scoliosis convex to the right. T7 and T8 are anteriorly wedged. T3 and T4 are not anteriorly wedged…”
Dr Korber summarised his opinion. He stated that "on the matter of the nature of the C6 pathology, this is not a fracture…” He provided reasons for this which included “…There is no rapid deceleration injury. Without deceleration injury there is no fracture…” He also provided reasons with reference to his findings in respect of the C6 vertebral body, the C5 and C6 vertebras, and at T1.
He stated that "in relation to the thoracic spine, I agree with Dr Cochrane, that the changes are in keeping with Scheuermann’s disease…” Dr Korber provided reasons for this opinion which included "… The mechanism of injury is inappropriate…” and also with reference to his findings in respect of characteristic irregularity and wedging, normal appearances at the relevant levels and absence of lip fracture.
Dr Korber disagreed with the opinion of Dr Houang in respect of C6. He stated that "C6 is not compressed, it developed that way. In my opinion, the cervical spine MRI and CT are unremarkable and in keeping with Dr Perry's report. He regarded the normal variant of C6 as a not a significant structural abnormality.”
In respect of the report of Dr Cho of 7 June 2018, Dr Korber stated:
“In relation to Dr Cho's report, I agree with the left uncovertebral joint hypertrophy at C4/5 and C5/6. I do not agree with the right paracentral foraminal disc protrusion at C6/7 diagnosed on CT. as this IS not confirmed on the MRI. In either event, he indicated this as a ‘suggestion.’ Dr Cho makes no mention of any fracture in the thoracic spines. He mentions ... vertebral body height loss....may be due to old compression fracture. He has not noticed that the vertebral body height is greater at the front. He may be unaware of the normal variants. Dr Perry does not report any fractures.”
Dr Korber also stated that "on the point of symptoms, if there had been fractures in both the thoracic and cervical spine, there would have to have been significant symptoms associated at the time of presentation.” He stated that "I cannot see a cause for the claimants reported long tract symptoms".
Dr Houang provided a supplementary report to the applicant’s solicitors, dated 5 May 2022, commenting upon the report of Dr Korber.
In respect of Dr Korber's views as to C6 pathology and the absence of a rapid deceleration injury, and hence no fracture, Dr Houang commented that the history did “not provide enough details for such a conclusive interpretation”.
As to Dr Korber’s opinion that the C6 intervertebral body did not demonstrate anterior vertebral body compression, Dr Houang was of the view that reduction in height and increased anterior-posterior diameter, as he identified with reference to specific measurements, did not fit into a development category as suggested by Dr Korber.
With respect to Dr Korber’s comments regarding the MRI cervical spine 6 December 2017, that the appearances were in keeping with a developmental variation, and was not the appearance of a fracture pattern, Dr Houang was of the opinion that there were patterns of post traumatic abnormally shaped vertebral body, and that one could not be excluded from the other, as “often there are complex and combined mechanisms involved.
Dr Houang responded to Dr Korber’s comment that “small C5 and C6 vertebras are a well-known normal variant”, with the comment “C5 and C6 are also frequently injured”.
In respect of the thoracic spine, and in response to Dr Korber’s opinion that he agreed with Dr Cochrane changes were in keeping with Scheuermann’s disease, Dr Houang commented that the images that he identified demonstrated “depressed superior endplates of T3 and T4, in addition to the long standing Schmorl’s nodes… which would not cause depressed endplates and approximately 20% anterior wedging”.
Responding to Dr Korber's disagreement with his opinion regarding C6, that is the C6 was not compressed but had developed that way, Dr Houang commented that "the larger AP diameter of C6 suggests this is not a developmental abnormality”.
With respect to Dr Korber's comments on Dr Cho’s report, Dr Houang commented that "it would appear that Dr Cho and I agreed that C6 is a result of compression”.
In respect of Dr Korber's comments that the SPECT-CT of 7 June 2018 “showed diffuse increased activity in the cervical bone marrow no focal reaction to suggest a healing fracture. Nevertheless, the worker reports suffering a crush fracture in his cervical spine…", Dr Houang commented that "this is certainly abnormal in a post traumatic scenario, which can be positive for an extended period (say two years)…”
In response to Dr Korber's opinion that there would have to have been significant symptoms at the time of initial presentation for there to have been fractures in both the thoracic and cervical spines, and the mechanism of a lifting or shovelling injury was inappropriate to cause simultaneous cervical and thoracic spine fractures, Dr Houang commented that the reason for long tract symptoms maybe from injury in the cervical spine "by some contusion of neural structure and not from lumbar spine injury”.
Dr Houang commented that ignoring increased activity in the cervical bone marrow, abnormal in a post traumatic scenario, and long tract symptoms resulting from injury to the cervical spine by contusion of the neural structure, could not "be unexplained by the" C6 developmental hypothesis "presented thus far”.

Dr Dixon

Dr Dixon, orthopaedic surgeon, provided reports to the applicant’s solicitors dated 10 September 2018, 11 September 2018, 28 August 2021, 25 August 2021 and 2 May 2022.
In his report dated 10 September 2018, Dr Dixon noted that on the day of the subject accident the applicant was “carrying a heavy base plate when he heard very large popping sound in his back and had marked low back pain and fell to the ground… eventually had a discogram which showed symptomatic discs in his lumbar spine…” and the applicant underwent “a prosthetic disc replacement and L4/5 and an L5 anterior disc spacer with segmental fixation. Dr Dixon recorded that “he subsequently developed pain in the neck and thoracic spine with sensory changes in his lateral arms from the elbow, extending to the little and ring fingers”.
Dr Dixon recorded that in respect of activities of daily living, the applicant "also had further disability from right-sided neck pain and some thoracic pain with sensory changes affecting the lateral border of his forearms and little and ring fingers". Dr Dixon also noted that present symptoms reported by the applicant included "pain in the right side of his neck, extending over the thoracic area with sensory changes persisting over the lateral forearms extending to the little and ring fingers". On examination, Dr Dixon noted restrictions and signs with respect to the cervical spine on testing, and also "mild stiffness of the upper thoracic spine with trunk rotation decreased by one third”.
Dr Dixon noted MRI of the cervical and thoracic spine on 6 February 2017 “showed no significant structural abnormality and no mal-alignment. There were no disc herniations”.
Dr Dixon diagnosed, among other matters,
“Persisting radicular complaint with bilateral sciatica and S1 sensory changes with burning pain in his right foot with an ataxic gait where he subsequently developed pain in his neck and upper thoracic spine after shoveling at work with sensory alteration down the lateral arms and in a C8/T1 distribution with negative MRI studies of the cervical and thoracic spine.”
Dr Dixon stated that "the above conditions are causally related to the injuries received in the subject accident at work on December 15, 2016”. Dr Dixon was of the opinion the applicant “has received severe injuries to his lumbar spine with radiculopathy requiring L5/S1 inter-body spacer with segmental fixation and prosthetic disc replacement at L4/5 in his lumbar spine” and “he subsequently developed injury to the thoracic spine and cervical spine which may have been exacerbated when he was doing the shovelling work on his return to work trial with radicular complaint in the upper limbs with sensory alteration in a C8/T1 distribution”.
In his impairment report of 11 September 2018, Dr Dixon stated that, in respect of the cervical spine, “…he has post traumatic stiffness with radicular complaint with C6/7 disc protrusion on CT of the thoracic spine dated 7 June 2018 without dysmetria…” Dr Dixon also stated that, in respect of the thoracic spine, “…he has post traumatic stiffness on trunk rotation…”
In his report dated 25 August 2021, Dr Dixon recorded that the applicant “was lifting and carrying base plates and on or about the 12th lift, he heard a loud popping sound in his back and began to experience significant back pain with numbness in his upper and lower limbs. He fell to the ground and had difficulty moving his legs…” He noted that the applicant “filled out a workers compensation claim form noting injury to his back with lumbar disc prolapse, injury to both arms and legs inclusive of his back.” Dr Dixon noted that “at the time he was not aware of arm numbness at Ryde Hospital and when he filled out the Claim Form, this was inadvertently omitted.”
Dr Dixon continued:
“On 16 December 2016 he attended his local doctor and was prescribed further analgesic medication and referred for physiotherapy and had radiological investigations arranged which included an MRI of his cervical and thoracic spine. He continued with narcotic analgesia which included Oxycontin and Endone and on 22 December 2016 he had an MRI of the lumbar spine…He was subsequently referred to a neurologist for nerve conduction studies on 23 December 2016.”
Dr Dixon considered the review by Dr Houang of the MRI cervical and thoracic spine of February 2017:
“The MRI of the cervical and thoracic spine in February 2017 has been reviewed by Dr Michael Huang, consultant radiologist, who noted there was a 15% compression of the C6 vertebral body and C4/5, CS/6 and C6/7 discs showed small protrusions posteriorly more towards the left and that the foramina encroached on the left side at C4/5 and C6/7 and both sides at CS/6 by a combination of protrusions and bone changes in the uncovertebral and facet joints. He noted that the thoracic spine showed Schmorl's nodes from C7 to T12 with reduction in disc height in TS, T9 and T10 vertebral bodies and the foramen were clear. He felt there was subacute compression, however, of the T3 and T4 vertebral bodies of approximately 20% with anterior wedging and decompression of the end plates with a focal central disc protrusion at T4/5, indenting the thecal sac with an intense T2 signal consistent with annular tear. There was some exaggeration of the thoracic kyphosis with a scoliosis to the right in the mid thoracic spine. The main conclusion was that there were T3 and T4 vertebral body compressions of approximately 20% with anterior wedging and T4/5 and TS/6 disc protrusions centrally at T 4/5 and TS/6 to the right, both showing small annular tears. He noted there were some irregular end plates from subacute compression of 5% to 10% at TS, T9 and T10.”
In respect of present symptoms, Dr Dixon recorded that the applicant:
“reports persisting pain and stiffness in his neck with radicular complaint with paraesthesia extending down the lateral arm to the ulnar three digits of both hands. He reports this pain and stiffness impacts on his ability to Drive, reverse park, change lanes and check the blind spots. He localises pain to the trapezius muscles more marked on the right and in the mid and lower cervical facet joint areas.”
On examination, Dr Dixon recorded persisting stiffness of the cervical spine with decreased flexion, extension and rotation, and tenderness of the lower cervical spinous process, facet joints and the upper trapezius muscles. Dr Dixon noted sensory alteration in the lateral right and left forearm extending to the lateral two digits.
In respect of further radiological investigations, Dr Dixon noted nerve conduction studies on 21 February 2017, with "EMG studies at that stage not supporting a diagnosis of cervical spondylosis with C6/7 radiculopathy, nor median nerve entrapment at the wrist.” Dr Dixon noted that "CT of the cervical spine on June 7, 2018 showed mild to moderate foraminal narrowing at C5/6 bilaterally and at C6/7 on the right and a para-central foraminal disc protrusion at C6/7”.
Dr Dixon diagnosed mid back strain injury of the lumbar spine at work when lifting a heavy base plate with a large annular tear at L5/S1 and an anterior disc bulge at L4/5. He also diagnosed "pain in his neck and upper thoracic spine after shovelling at work with sensory alteration down the lateral arms and in a C8/T1 distribution” and:
“cervical spine pain with sensory changes in his upper limbs with C4/5, C5/6 and C6/7 disc protrusions more towards the left with encroachment of the foramen at C4/5 and C6/7 and to both sides at C5/6, with a combination of protrusion and bone changes in the uncovertebral and facet joints.”
Dr Dixon also diagnosed that "in the thoracic spine, he had wedge compressions at T3 and T4 vertebral bodies of some 20% and T4/5 and T5/6 disc protrusions. There was a mild reduction in disc height at T8/9/10, which appeared to be related to old Scheuermann’s disease."
Dr Dixon stated that "the above conditions are causally related to the injuries received in the subject accident at work on December 15, 2016, as well as the shovelling incident in 2017, which aggravated his neck and back condition".
Dr Dixon further commented that the applicant had "received severe injuries to his lumbar spine with radiculopathy…" and "he subsequently developed injury to the thoracic spine and cervical spine which may have been exacerbated when he was doing the shovelling work on his return to work trial with radicular complaint in the upper limbs with sensory alteration in a C8/T1 distribution”.
In his report dated 25 August 2021, Dr Dixon assessed WPI for the cervical spine "where he has a known neck strain injury with C4/5, C5/6 and C6/7 disc protrusions with a 15% compression of the C6 vertebral body…” Dr Dixon also assessed WPI for the thoracic spine "where there is 20% wedging of each of the T3 and T4 vertebral bodies…”
In his report dated 2 May 2022, Dr Dixon referred to "the consultant’s radiological review dated 4 April 2022”, which is a reference to the report of Dr Korber, and also, to "the details of the history of the claimant’s accident, which confirms there was injury to the cervical spine, and the thoracolumbar spine".
Dr Dixon commented that:
“In relation to the thoracic spine, there are Scheuermann's changes but Dr Houang felt that there was a focal central disc protrusion at T4/5 indenting the thecal sac with an intense T2 signal, consistent with annular tear. This appears to be in addition to the Scheuermann's changes.”
Dr Dixon stated that he had "no wish to cavil with the opinion of my learned radiological colleagues, as there is merits in both their reports, which I have respectfully reviewed."

Dr Cochrane

Dr Cochrane, neurosurgeon and spinal surgeon, provided reports to the workers compensation insurer and to the respondent’s solicitors dated 20 November 2017, 25 March 2019, 24 March 2020, 2 June 2020, and 30 November 2021.
In his report dated 20 November 2017, Dr Cochran recorded a history that the applicant stated that he:
"suffered instantaneous severe low back pain when lifting somewhere between an estimated 12 or 13 concrete field fencing, bass plates (estimated 31 kg weight each) at the workplace on 15 December 2016. He heard a ‘pop’ in his back, collapsed, and ‘couldn't feel his arms and legs’ for some time, such that he was taken to Ryde Hospital emergency Department”.
Dr Cochrane noted significant ongoing back pain and proposed surgery by Dr Coughlan.
Dr Cochrane noted that the applicant described his current symptoms as "numbness in the legs and arms 'from the joints down’… on the outer side of his upper limbs and outer side of his lower limbs".
On examination, Dr Cochrane noted assessment of the cervical spine “revealed mild restriction with neck flexion to 40° and extension to 15°… and rotation limited symmetrically at 40° bilaterally. Extension of the neck in particular was reported as causing posterior neck pain.” Dr Cochrane noted that "in the thoracic spine, there was approximately global mild symmetrical loss of movement to 80% of expected range”.
Dr Cochrane noted radiological studies, including MRI cervical spine and thoracic spine of 6 February 2017. He noted that:
"the study shows a normal cord through the cervicothoracic spine. There was mild midcervical bony foraminal narrowing but no clear, neurocompressive lesion seen in the cervical spine. There is no neuocompressive lesion or cord abnormality seen in the thoracic spine.”
Dr Cochrane concluded that there were a number of inconsistencies in respect of physical examination. Dr Cochrane also stated that "it is not my opinion that Mr Clarke presents as a straightforward candidate for examination, and it is my interpretation, within my experience as a doctor in general, that there is a significant, psychological overlay and anxiety associated with the physical presentation”. He stated that "there was no neurological deficit evident, but significant pain limitation, especially with movements of the low back, and the lower limbs”.
Dr Cochrane also stated that:
"there are symptoms of the entire body going numb and sensory problems in both the upper and lower limbs, not associated with any radiological abnormality in the spinal cord on the MRI, nor associated with any abnormality on nerve conduction studies repeated three times”.

He stated that "there are, therefore, diffuse limb symptoms without a radiological cause, and I do not believe these are directly related to the physical injury of 15 December 2016”.
Dr Cochrane further stated that:
"the current presentation I do not believe is consistent in the sense that there are a number of concerning symptoms which are not explained neurologically or anatomically given the neurophysiological studies and imaging of the spine performed to date. It is not my opinion that any present low back pain symptoms and numbness of the limbs episodically within the entire body directly related to the work related injury of 15 December 2016”.
Dr Cochrane also said that "I'm not sure of the cause for the reported sensory problems in the limbs and the numbness of the entire body but it is not my opinion that Mr Clarke's employment is relevant as regards any present neurosensory problems in the body”.
In his report, dated 25 March 2019, Dr Cochrane noted the previous history of injury and also the spinal surgery on 15 March 2018. Dr Cochrane noted that there was "refractory back pain and significant psychological distress that persists".
Dr Cochrane also noted that additionally the applicant recalled "having to shovel ‘8 tonnes’ of soil over one day in early mid 2017 which he alleges further aggravated his back problems”.
In respective current symptoms, Dr Cochrane noted the applicant described numbness in both arms from the elbows down and “constant neck pain, described as 8/10 in severity on a visual analogue scale being posterior neck, pain”.
Dr Cochrane noted assessment of the cervical spine "revealed marked restriction, with flexion and extension, half expected range and lateral flexion to the right half expected range, and the left worse to one-third of expected range. Rotation of the neck was poor…” and "this was reported as causing general posterior neck pain, rated 8/10”. He also noted "assessment of the thoracic spine revealed half range rotation again with neck pain, but also low back pain (not thoracic pain)”.
Dr Cochrane also noted neurological assessment of the upper limbs revealed normal tone, and:
"power was symmetrical and within normal range, although voluntary movements appeared to be submaximal, perhaps associated with increased neck pain, which was reported by Mr Clarke. Certainly, movements in the upper limbs were symmetrical, and there was no intrinsic hand weakness evident”.
Dr Cochrane, reviewed further investigations, including a bone scan of 18 May 2018. He stated that "the study shows diffuse increase in activity globally in the cervical bone marrow but no focal reaction. There is no discovertebral reaction seen”.
Dr Cochrane concluded that "my clinical assessment today does not reveal myelopathy or spasticity, and there was no reflex abnormalities seen. There was significant restrictions in lumbar mores than cervical movements as described”. Dr Cochrane stated that "it is my concern, therefore, that there may be a proximal pathology, an integrated pain synDrome, or psychological condition impacting on the presentation”. Dr Cochrane noted reports of Dr Coughlan, Dr Granot and Dr Davies. Dr Cochrane agreed with the comments of Dr Granot, regarding the need for an EMG and nerve conduction studies being repeated. Dr Cochrane stated that "this would be to exclude any peripheral neurological abnormality in the limbs, and would likely, in my opinion, confirm a central pain phenomenon as opposed to a peripheral neuropathic or spinal pathology”.
Dr Cochrane also stated that "I cannot provide, at present, a neurological diagnosis to explain the symptoms in the limbs. I consider it likely, on balance of probability, but there is a centralised pain phenomenon or a modified presentation due to factors outside of the physical injury to the low back”.
In his report dated 24 March 2020, Dr Cochrane noted further psychological distress and treatment.
In respect of current symptoms, Dr Cochrane noted that the applicant "describes problems predominantly in his lower limbs". Dr Cochrane also noted that the applicant reported "that he has sustained a fracture to the C6 cervical vertebrae, which, in his opinion, results with ‘no feeling in his arms and legs’”. Dr Cochrane also noted that "on direct questioning, later, Mr Clarke denied loss of abnormal sensation, at present, in his upper limbs, and his left lower limb”.
On examination, Dr Cochrane noted that:
"assessment of the cervical spine was associated with markedly slow movements, with cervical flexion full in range although movement performed slowly. Extension and right lateral flexion were restricted to half expected range and left lateral flexion and rotation bilaterally were restricted to two-thirds of range. This was with report of posterior neck pain”.
Dr Cochrane also noted that assessment of the thoracic spine "revealed a half comfortable range of thoracic rotation”.
In respect of neurological assessment of the upper limbs, Dr Cochrane noted:
“Mr Clarke reported that he experienced ‘numbness’ below the elbows bilaterally. Fine touch and pinprick testing were performed and were inconsistent, with similar sites tested on number of occasions variably reported as having slightly abnormal, markedly impaired or even absent sensation on repeat testing. I felt reports of sensory loss were therefore markedly inconsistent.”
Dr Cochrane also observed:
“Mr Clarke also reports that he suffered a fracture of the C6 vertebral body. I noted that a SPECT CT bone scan performed on 18 May 2018 showed diffusely increased activity in the cervical bone marrow but no focal reaction to suggest a healing fracture, and although a cannot directly review the studies, I note the treating specialist who referred him to an MRI scan of the entire spine showing ‘no focal abnormality’ (letter of neurologist, Dr Ron Granot, dated 24 September 2018). Further, Dr Marc Coughlan in his letter of 15 November 2018 reports the MRI scan of the brain was completely normal and a normal appearance was seen on the cervical and thoracic MRI scans.”
Dr Cochrane also stated:
“It seems that Mr Clarke unlikely suffered a cervical injury at the time of the work-related event, in the sense that he felt and heard a ‘pop’ in his low back and collapsed, he stated that he ‘couldn't feel his arms and his legs’ for some time, but did not report immediate neck pain. I noted in my IME assessment of 10 November 2017 (the report 20 November 2017) that sensory problems in both upper limbs and both lower limbs were experienced at that time, that there were asymmetrically restricted cervical movements, and this has been seen on repeat examinations including that of present date. This suggests some persistent cervical pain. There was, however, no radiological evidence of a cervical spine neck injury with the a lifting incident of 15 December 2016, nor would one be expected given the mechanism of injury. I therefore consider it reasonable to conclude that there was a lumbar injury but not a cervical injury occurring with respect to the work-related event of 15 December 2016. I would note that with respect to both the cervical spine and the lumbar spine, cannot confirm radiculopathy. Certainly, radiculopathy was not verifiable within the limits of an inconsistent clinical examination. I do note that there are normal reflexes in all groups, no wasting or asymmetry evident, equivocal plantar responses, and no radiological evidence of any spinal cord or neurocompressive lesion in the cervical, thoracic and lumbar spines.”
Dr, Cochrane further stated that:
“…I note that is there is no evidence of a cervical spine injury having occurred. At the time of the event, Mr Clarke reported that in addition to the ‘pop’ in his low back and severe low back pain, he ‘couldn't feel his arms and his legs’. There has been no radiological evidence provided of disorder in the cervical spine which would explain loss of function or sensory changes in the upper limbs and notwithstanding that subsequent investigations have shown age-appropriate degeneration in the cervical spine, can see no evidence that the cervical injury has occurred with the incident of 15 December 2016. I believe Mr Clarke's cervical symptoms represent, in part, increased global muscular tone along the spine due to his low back injury and, in part, the natural consequences of progressive degeneration in the cervical spine, as a result of the usual ageing process".
In response to a question as to whether any cervical spine injury can be considered consequential to the lumbar spine injury, Dr Cochrane responded, as follows:
“I could see no evidence that a cervical spine injury has occurred. Certainly, Mr Clarke does have symptoms referable to his cervical spine and asymmetrically restricted cervical movements. At present date his cervical condition would be consistent with an AMA5 DRE Cervical Category I impairment if it were determined that he had suffered a work-related injury to his cervical spine. I see in contemporaneous notes, despite period where he ‘couldn't feel his arms and legs’ that there has been no documented radiological abnormality and no subsequent motor or neurological abnormality that can reasonably be related to an injured cervical spine. I am therefore not of the opinion that any current cervical spine condition or injury can be considered consequential to the lumbar spine injury or consequential to the work-related incident. I would concede, however, that increased muscle tone in the low back would, in due course, ascend through the spine towards the neck and restrict cervical movements as is often seen in patients with chronically increased paraspinal muscle tone. This is primarily a function or consequence of persisting pain as opposed to an injury to the cervical spine.”
In response, to a question, as to the WPI, if any, resulting from the alleged injuries to the lumbar spine and cervical spine, Dr Cochrane stated:
“I am not of the opinion that there has been a work-related injury to the cervical spine. I do consider that there are cervical symptoms and restricted cervical movements present, but I feel these are more likely related to increased paraspinal muscle tone from the lumbar condition and also from progressive degeneration which I cannot attribute to the work-related injury of 15 December 2016…”
In his report dated 2 June 2020, Dr Cochrane stated that:
"I have not diagnosed a specific injurious condition affecting the cervical spine. There is no radiological evidence provided that, for example, a cervical fracture occurred, nor would one be anticipated with the low back injury sustained at the workplace on 15 September 2016.”
He also stated that:
"I believe the most significant contribution to any reduced cervical movement and pain is age related degeneration… In simple terms, I do not believe any present cervical pain can be reasonably related to work related injury or treatments undertaken for work related injury to the lumbar spine”.
Dr Cochrane continued that "I can see no evidence that the workers age related cervical degeneration was aggravated by his employment. I am not of the opinion that any specific cervical injury has occurred.” Dr Cochrane did not believe that "any injury or aggravation of the cervical spine was relevant regards, the shovelling of soil which I will assume occurred on 23 May 2017, nor the primary work injury on 15 December 2016.”
Dr Cochrane also stated that:
"I see no evidence that the workers age related degeneration has been aggravated by his employment. I note in my most recent IME report… that Mr Clarke did, at that stage, not list neck pain as one of his current symptoms, rather problems affecting his lower moreso than his upper limbs, low back pain, and depression.”
He also stated that:
“…I also noted there was no evidence of an injury or fracture, for example, having affected the cervical spine based on the medical imaging reports provided. As such, cervical pain is inferred by restricted cervical movements, not by specific reports of neck pain by the injured worker, and not related to any cervical injury that I can determine. I am not of the opinion that a cervical injury has ever occurred at the workplace nor an aggravation.”
In his report dated 30 November 2021, Dr Cochrane noted and listed the files and reports that had been provided to him for his consideration. I note that the review report of Dr Houang was not listed amongst those documents.
Dr Cochrane stated that:
“I asked Mr Clarke about the history of thoracic pain, noting that when I assessed him first for the insurer on 10 November 2017, he did not describe neck pain or thoracic pain. Mr Clarke recalls that he experienced interscapular thoracic region pain from around the time of his injury (this was not previously reported to me in 2017) and underwent imaging of his entire spine including CT and MRI scan and he recalls being told that the scans revealed thoracic fractures.”
Dr Cochrane noted radiological studies. He stated that he had been able to review digital files provided to him recently.
In respect of the MRI cervical and thoracic spine of 6 February 2017, Dr Cochrane stated:
“I have directly reviewed the images. In the cervical spine, the cervical cord is normal and cervical lordosis is preserved. Mild degenerative disc disease is seen at C5/6 level with mild disc desiccation also at C6/7. There is mild endplate irregularity superiorly at C6 and somewhat convex or up- bowed inferior endplate. The anterior and posterior C6 vertebral body heights are preserved and equivalent, and there is no evidence to me of a fracture having occurred in the cervical spine, but is rather degenerative change. There is no bone marrow signal abnormality. There is no soft tissue signal abnormality. There is no nerve compression seen.”
He also stated:
“In the thoracic spine, the thoracic cord images normally. There is a mild increase in the thoracic kyphosis. Mild anterior wedging is seen at T7/T8. This would be consistent with mild Scheuermann's disease. I am not convinced there is any evidence of fracture or endplate irregularity. Mild thoracic disc degeneration is seen at T6/7 down to T7/8 levels. There are no changes in bone marrow signal abnormality to suggest oedema as might be anticipated with an acute or sub-acute thoracic vertebral fracture. As such, I have seen no evidence of an acute or sub-acute fracture in either the cervical or thoracic spine on the study. There is no neurocompressive lesion seen.”
In respect of the CT cervical and thoracic spine of 7 June 2018, Dr Cochrane stated:
“In the cervical spine, there a is a relatively concave inferior endplate at C6, with that at the superior C6 being somewhat irregular, consistent with the February 2017 CT scan. There is no anterior loss of height at C6 to suggest a crush fracture. Degenerative changes of a mild degree are seen at C5/6 and C6/7. a There is no evidence of a trabecular compression, fracture lines, sclerosis or other sequelae of a healed fracture in the cervical spine. Cervical lordosis is preserved. Mild left moreso than right bony foraminal narrowing is seen at C5/6 but not significant and without clear nerve compression. In the thoracic spine, there is mild mid-thoracic vertebral plate endplate irregularity as consistent with Scheuermann's disease, with relative mild anterior loss of height of anterior vertebral bodies, most marked at T8 (20%) compared to no more than 10% at T6 and T7. There is no evidence of trabecular abnormality, sclerosis or previous healing fracture. Coronal alignment is near-normal with mild scoliosis in the mid-thoracic region. The central canal and neuroforaminal dimensions are adequate. There is no evidence of neural compromise.”
Dr Cochrane noted that on assessment, the applicant had reported significant low back pain and neck pain with respect to the incident of 15 December 2016, which was "at odds with my previous assessment (whereby no cervical pain was described)".
Dr Cochrane was of the opinion that:
“the work related injury is a lumbar injury of significance, noting that a collapse to the ground with low back pain occurred, accepting there may have been a mild soft tissue injury occurring in other reasons of the spine, such as the cervical or thoracic region. I am of the opinion that there is no neurological explanation for numbness in all limbs (arms and legs) occurring with respect to this workplace incident, and this appears to be the opinion of a number of assessors notably Dr Marc Coughlan (neurosurgeon), Dr Ron Granot (neurologist) and Dr Kok Thor (pain specialist).”
Dr Cochrane continued by stating that:
"… I am not of the opinion that there is any evidence on a clinical basis, nor on review of contemporaneous medical records that a cervical and/or thoracic injury occurred. I also note that neurological symptoms in the upper limbs have not been diagnosed in the sense of unremarkable nerve conduction studies, MRI scan of the cervical and thoracic, spinal cord, and MRI scan of the brain.”
Dr Cochrane noted the opinion of Dr Houang. He stated:
“I also note that the claimant claims for cervical and thoracic fractures, seemingly based on the report of radiologist, Dr Michael Houang, dated 9 July 2021, when reviewing the MRI scan of the thoracic spine of 6 February 2017 (which I myself have reviewed). I do not agree with Dr Houang and feel that the changes in the thoracic spine are entirely consistent with mild Scheuermann's disease, and the ‘subacute compression of T3 and T4 vertebral bodies have less than 20%’ are simply not present, and somewhat fanciful. The fact that there is mild superior relative to posterior reduction in height in a number of vertebral bodies is entirely consistent with Scheuermann's disease. As to the report of ‘15% compression at C6 vertebral body’, Dr Houang describes compression of the C6 vertebral body based on a reduction of height (he does not refer to which part of the vertebral body is reduced in height) and mild irregular endplates, although also describes disc degeneration above and below this particular vertebral body. I disagree strongly with Dr Houang and believe that the cervical findings are those of age-appropriate degeneration, noting that there is no oedema in this MRI study (undertaken three months after the described workplace injury) to suggest a fracture had occurred in the cervical or thoracic spine. At three months post-injury, oedema would likely still be evident if there had been a fracture with the workplace event.”
In response to a question as to whether the applicant sustained injury to his cervical spine at the time of the workplace injury on 15 December 2016, Dr Cochrane stated:
“I refer you to my previous comments, whereby I am of the opinion that the worker did not sustain an acute injury to his cervical spine at the time of the workplace injury on 15 December 2016. I note that I have assessed the claimant previously on 10 November 2017 and at that time the claimant did not provide a history of acute cervical pain at the time of injury but rather acute and severe lumbar pain only, although neurological symptoms in all four limbs were reported. That being said, these symptoms have not been explained in the sense that there has been no radiological confirmation of any compromise or abnormality of the spinal cord, nerve roots or brain. Nerve conduction studies of the peripheral nerves in the upper limbs have also been unremarkable.”
In response to a question as to whether the applicant sustained injury to his thoracic spine at the time of the workplace injury on 15 December 2016, Dr Cochrane stated:
“I again refer to my previous comments, whereby I believe the claimant has mild degenerative changes in the spine and probably mild Scheuermann's disease. I again point out the MRI scan of the thoracic region undertaken some three months after the injury did not show any oedema to suggest a healing fracture and I consider it more likely the pain in the thoracic region represents soft tissue pain or a central pain syndrome[TR1] .”

For the reasons noted above, I do not prefer the opinion of Dr Korber. The respondent submitted that, with respect to the mechanism of injury in this matter, it is implausible that the applicant sustained crush fractures to both the cervical and thoracic spines. The respondent made this submission with particular reference to the opinion of Dr Korber. I do not accept this submission.
Dr Dixon accepted the opinion and findings in Dr Houang’s report of 9 July 2021, while Dr Cochrane did not. Dr Cochrane reviewed the MRI scan of 6 February 2017 and the CT scan of 7 June 2018, and provided his observations and comments. Dr Dixon did not state whether he had reviewed these scans, although in my view he turned his mind to the reports of Dr Houang and Dr Korber in providing his commentary report of 2 May 2022. I do not accept the respondent’s submissions in this regard, as in my view Dr Dixon indicated his acceptance of the report of Dr Houang of 9 July 2021, and his non-acceptance of the report of Dr Korber.
Dr Granot, in his treating reports of 24 September 2018 and 23 January 2019, considered the MRI cervical and thoracic spine scan of 6 February 2017, and noted the report of "no significant abnormality", but continued with the initials “RG”, then “crush of C6 evident (not acute)”. In my view, the initials “RG” refer to Ross Granot, that is Dr Granot himself. This is supported by the expression of his opinion in his subsequent report dated 8 August 2021 to the applicant’s solicitors. Dr Granot’s treating reports were produced well before that of Dr Houang in July 2021, in respect of his review of the same MRI. Dr Granot was of the view that the C6 crush is long-standing. Contrary to Dr Korber, Dr Granot noted that the mechanism of injury was one of significant axial load, which would be expected to cause a crush fracture, such as those observed in the thoracic spine, as well as disc protrusion such as those observed in the lumbar spine. The interpretation by Dr Granot of the MRI scan of 6 February 2017 in respect of the C6 crush fracture was contrary to that of Dr Cochrane and Dr Korber, and referred to the report of Dr Houang in his report of 8 August 2021.
In relation to Dr Houang, in my view his report and opinion was accepted by Dr Dixon, and also to some extent as to thoracic spine fractures, Dr Granot. Dr Cochrane did not agree with the MRI review report of Dr Houang. I accept the reports and opinion of Dr Houang. In my view the criticisms made by Dr Cochrane are insufficient to outweigh the acceptance by Dr Dixon and, to some extent, Dr Granot.
It was submitted by the respondent that in respect of the cervical spine, Dr Granot did not attribute the peripheral numbness of the arms to the subject incident. This in my view is correct. However, Dr Granot in his report of 8 August 2021 did attribute the post injury cervical spine pain, which he stated “may be facetogenic or discogenic and perhaps an element of chronic pain”, with the crush fracture at C6. This description, together with his view of “long standing” C6 crush fracture, in my view attributes the possibility of facetogenic or discogenic post injury cervical spine pain to the crush factor at C6, notwithstanding his earlier uncertainty as to the origin of the pain, and having regard to his diagnoses of cervical and thoracic crush fractures and facetogenic neck and lumbar pain. The description “long standing” C6 crush fracture, which was “not acute”, has a degree of uncertainty. However, the first report of Dr Granot was dated 24 September 2018, a period of some 22 months after the subject injury. Dr Granot did not say that the C6 crush fracture was long standing as at the MRI of 6 February 2017, or whether he was referring to long standing at the time of review. Dr Granot also did not suggest that C6 crush fracture preceded the injury of 15 December 2016. The observations that the C6 crush fracture were long standing and not acute were not equivalent or indeed determinative, that is, what is important is the opinion provided that the applicant had post injury cervical spine pain which may be facetogenic or discogenic and perhaps an element of chronic pain associated with the crush fracture at C6.
In his report of 8 August 2021, Dr Granot noted the history of injury on 15 December 2016, that the applicant felt at the time feelings of numbness in his arms and that “he also describes lower cervical neck pain”. The respondent submitted that this recorded in the present tense and could not be regarded as applying to the time of the subject incident. I do not accept this submission. In my view the context in which that sentence was noted, that is with respect to history of injury on 15 December 2016, as well being noted in the same paragraph and following immediately after the history recorded of feeling numbness in the arms at the time of the accident, results in the meaning that the applicant described to Dr Granot lower cervical neck pain at the time of the subject incident. This history, recorded in 2021 by Dr Granot, was consistent with treatment provided to the applicant in January and February 2017 and the invesigations that were arranged, being in respect of neck and thoracic pain and stiffness. This history recorded by Dr Granot was alos consistent with the consistency of restricted movement and cervical pain noted by Dr Cochrane, discussed below. In my view this was an opinion expressed by Dr Granot unequivocally without reference psychological issues or functional overlay, in contradistinction to his comments about acral symptoms.
In relation to the reports of Dr Dixon, insofar as they considered the cervical spine and thoracic spine history, his opinion as to causation of the cervical spine and thoracic spine conditions considered the development of thoracic and cervical subsequent to the subject incident, on a background of later work duties, a history which was not relied upon in these proceedings. Dr Dixon did relevantly consider, on my reading of his opinion as a whole, that the applicant’s cervical and thoracic spine conditions were the result of the injury on 15 December 2016. However, he also noted “subsequent” development of cervical and thoracic pain after shovelling at work. In my view, in his reports, the usage of the word “subsequently” in his history of the accident given by the applicant, meant following or coming after the subject incident. The respondent noted the uncertainty or difficulty in understanding the meaning of the word “subsequently”, but in my view the meaning to be attributed is that of relevant pain following on the day or shortly after the subject incident. This is supported by the placement in the 2018 report of the subsequent relevant pain, between the history of the subject incident, and the later shovelling in 2017. However, in the diagnosis section of his report he also said that the applicant subsequently developed pain in the neck and upper thoracic spine after shovelling at work. These seemingly contradictory observations were in my view reconciled in his 2021 report.
Dr Dixon, in his 25 August 2021 report, noted numbness of the upper and lower limbs as well as significant back pain at the time of the subject incident. He considered there was pain in the neck and upper thoracic spine after shovelling at work. He diagnosed pain in the neck and upper thoracic spine after shovelling at work with sensory alteration in the arms in a C8/T1 distribution. This was a diagnosis in distinction to his diagnosis of cervical pain with sensory changes in his upper limbs, which I summarise as generally in relation to pathology at C4/5, C5/6 and C6/7 with a combination of protrusion and bone changes in the uncovertebral and facet joints. He diagnosed in respect of the thoracic spine wedge compressions at T3 and T4 and T4/5 and T5/6 disc protrusions with mild pathology at T8/9/10 apparently related to old Scheuermann’s disease. I note that these diagnoses in respect of C4/5/6/7 and uncovertebral and facet joints, as well as in respect of T3, T4 and T4/5/6, as well as the Scheuermann’s disease pathology, were made with reference to Dr Dixon’s acceptance of the review report of Dr Houang of the MRI of 6 February 2017, that is an MRI taken some seven weeks after the subject incident, and well before the shovelling duties that the applicant undertook. Considering his reports as a whole, in my view Dr Dixon considered that these conditions at C4/5/6/7 and the nominated structures, as well as at T3, T4 and T4/5/6 were causally related to the injuries received in the subject incident, and the later shovelling in 2017, “aggravated” the neck and back condition, noting that Dr Dixon specifically referred to C8/T1 in this regard. I do not accept the respondent’s submissions in this regard. In my view Dr Dixon did provide an explanation, albeit concise, which required a consideration of his reports as a whole.
The respondent submitted that the applicant’s inconsistencies on presentation, and the lack of neurological findings and investigative results meant that the applicant’s arm symptoms of numbness could not be explained, and therefore could not be related to the injury on 15 December 2016. It was also submitted there was a lack of history of injury and reported symptoms in relation to his thoracic spine, and similarly could not be related to the subject incident.
It is correct that Dr Coughlan, Dr Davies, Dr Khor and Dr Cochrane were unable to find a neurological explanation for what they regarded as the applicant’s inconsistent signs and symptoms on presentation to them. However that is not the end of the matter.
Dr Khor in his report dated 19 August 2020, did not say there was no neurological injury. He stated that “there were no major neurological injuries that can be ascertained”. Dr Khor, in his report of 1 March 2021 “suggested that in view of his very unusual neurological symptoms…seek the opinion of a spinal medicine physician”. This in my view was not opinion that precluded the possibility of injury in terms of pathology, noting that the unusual neurological symptoms included those with respect to the applicant’s arms, and also noting that the suggested opinion was not necessarily the opinion of a neurologist or neurosurgeon.
It should also be noted that the inconsistencies of signs and symptoms that were recorded by Dr Coughlan, Dr Davies and Dr Cochrane were those that were observed by the relevant doctors at times that were some time after the incident on 15 December 2016, and as such were relevant to a consideration as to permanent impairment arising from injury, rather than injury itself. So, for example, Dr Coughlan pursued active consideration and investigation, of what he regarded as the applicant’s inconsistent presentation, after the surgery to the applicant’s lumbar spine on 15 March 2018. The applicant consulted Dr Davies for a second opinion in February 2019. The applicant first attended Dr Cochrane at the request of the workers compensation insurer in November 2017.
The proviso to this proposition is that the purported absence of neurological findings meant that the applicant’s complaints of arm numbness following the subject incident could not be related to his cervical spine, as was contended by the respondent.
However, this argument is itself based upon the proposition that neurological investigations and opinions preclude consideration of causation of injury not based upon neurological issues. In my view, such consideration is not precluded in this case.
It was submitted by the applicant that Dr Cochrane's report of 24 March 2020 provides support for the proposition that the applicant sustained cervical spine injury as a result of the incident on 15 December 2016. In that report, particularly in his response to question five on page 11 of his report, Dr Cochrane was of the view that he could see no evidence that a cervical spine injury had occurred, but the applicant certainly did have symptoms referable to the cervical spine and asymmetrically restricted cervical movements.
Dr Cochrane was of the view that at that time the applicant’s cervical condition would be consistent with the relevant DRE II impairment rating if it were determined that the applicant had suffered a work related injury to his cervical spine. Dr Cochrane noted contemporaneous notes in which there were no documented radiological abnormality or subsequent motor or neurological abnormality that could reasonably be related to an injured cervical spine, notwithstanding a period when the applicant “could not feel his arms or legs”. This opinion of Dr Cochrane, it was submitted, conceded the possibility that the applicant sustained injury to his cervical spine as a result of the incident on 15 December 2016, although the absence of documented radiological or subsequent neurological abnormality meant Dr Cochrane could not relate the current condition to the subject incident. Further, this view provided by Dr Cochrane was expressed without reservation with respect to functional overlay, and I am of the view that questions of functional overlay are not a factor in this regard.
The respondent submitted that this report should not be read in that way. It pointed to a history given by the applicant in the same report, of discomfort in the neck straight afterwards, worse in the last year, and it was submitted that this was not consistent with the history given by the applicant at the time of the injury or in the months following it, and was not in accordance with the diagnoses of a pain syndrome[TR2] provided by Dr Davies, Dr Coughlan and Dr Cochrane. It was submitted that Dr Cochrane did not accept that there may have been some sort of neurological insult to the neck on the day of the subject injury. Rather, it was submitted that Dr Cochrane merely expressed a view that despite the fact that there were those complaints at the time, there was nothing to assess at that time of examination.
I do not accept these submissions by the respondent. In his supplementary report dated 2 June 2020 Dr Cochrane stated that he had not diagnosed a specific injurious condition affecting the cervical spine, there being no radiological evidence for example of the occurrence of a fracture, nor was there evidence of aggravation of an underlying condition. In my view, this was again an expression of opinion based upon the absence of radiological or neurological evidence, which was not a preclusion of injury to the cervical spine.
In his report dated 30 November 2021, Dr Cochrane provided the review of the radiology noted above, in which he confirmed his view that there was no radiological or neurological evidence to explain the applicant’s symptoms.
The reports of Dr Cochrane pointed to a lack of evidence that the applicant sustained cervical spine injury. In his 2019 report, Dr Cochrane stated that he was unable to provide a neurological diagnosis to explain the limb symptoms.
In his 2020 report, Dr Cochrane considered that it was unlikely that the applicant suffered a cervical injury at the time of the subject incident, in that the applicant could not feel his arms and legs for some time but did not report immediate neck pain, but that there were asymmetrically restricted cervical movements noted in his first examination in 2017 and such restrictions had been seen on repeat examinations to March 2020, suggesting some persistent cervical pain, although there was no radiological evidence of a cervical spine neck injury with the lifting incident of 15 December 2016, which was not expected given the mechanism of injury, which was in part due to progressive age related degeneration of the cervical spine and in part due to increased muscular tone along the spine due to the lumbar injury.
It is in this context that in my view the apparent concession by Dr Cochrane in his report of 24 March 2020 is to be considered. I have found that the applicant sustained arm numbness and neck pain following the incident of 15 December 2016. Dr Cochrane’s view, that repeat examinations have shown asymmetrically restricted cervical movements suggesting some persistent cervical pain, was in fact supported by the physiotherapy report of Mr Howard of 15 February 2017, which was in turn supportive of my finding that the applicant sustained cervical pain following the subject injury.
In his report of 30 November 2021, Dr Cochrane opined that he was strongly of the view that the applicant’s symptoms in the cervical and thoracic regions were the result of a pain syndrome, yet he also accepted that there may have been a mild soft tissue injury occurring in other areas of the spine, such as the cervical or thoracic region, although he noted, without elaboration, that at the time of the injury to the lumbar spine there was a collapse to the ground. He also continued that there was no evidence on a clinical basis or on review of contemporaneous medical records that a cervical or thoracic injury occurred. This in my view is a qualified opinion, that is as to clinical presentation at the time to Dr Cochrane, and as to his review of medical records, although on the latter point I have found in favour of the applicant. As to the former point, this illustrates in my view the temporal basis of the enquiry by Dr Cochrane, that is his view of the applicant’s presentation at the time of clinical examination, rather than the enquiry that is conducted here. In my view, a concession by Dr Cochrane as to the possibility of soft tissue injury to the cervical and thoracic spine, as I have accepted, is not inconsistent with his reports taken as a whole.
In my view, the opinion of Dr Cochrane conceded that cervical spine injury could be found on determination of a factual issue as to complaint of neck pain, a finding which I have made, and was not contingent upon his view that there was an absence of neurological and radiological evidence. In my view his subsequent analysis of age related degenerative change and increased muscle tone due to the lumbar spine injury, was expressed as a further step in the reasoning process following his analysis in respect of report of complaint of neck pain. I accept the applicant’s submissions in this regard. Further, the concession made by Dr Cochrane is in my view not contradicted by his opinion that he did not believe that “any present neck pain” can be reasonably related to to the work related injury (report dated 2 June 2020). The distinction is between injury as a result of the subject incident, and present condition.
In EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 (Bes) Herron CJ said at [242]:
“‘Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be a touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.”
In relation to the cervical spine, I have found that the applicant did suffer from neck restrictions and pain as a result of the accident of 15 December 2016, having regard to the contemporaneous documents referred to above, particularly the referrals for investigations of the cervical and thoracic spine, and the report of the physiotherapist Mr Howard. I have found that Dr Cochrane has conceded the possibility of soft tissue injury to the cervical spine, if neck pain as a result of the accident were to be found. Dr Granot was of the view that the applicant had sustained post injury cervical spine pain, possibly facetogenic or discogenic perhaps with an element of chronic pain, although he did not say that axial load at the time of the subject injury caused the C6 crush fracture. This in my view is not inconsistent with the view expressed by Dr Cochrane, noted above, that is soft tissue injury of the cervical spine, as expressed by Dr Cochrane, and pain associated with C6 crush fracture, as expressed by Dr Granot. Dr Dixon was also of the view that the applicant sustained cervical injury as a result of the subject incident with reference to specific pathology. I have accepted the applicant’s evidence that he had made complaints of neck pain in respect of his appointments with Dr Frith in 2017. Considering the principle referred to above in Bes, having regard to the possibility of cervical spine injury conceded by Dr Cochrane, and contemporaneous material that I have accepted, I find on the balance of probabilities that the applicant sustained cervical spine injury as a result of the accident on 15 December 2016. I have applied a commonsense view of causation,[5] having regard to the contemporaneous materials, including the referral by Dr Tran for physiotherapy treatment and investigation, and the physiotherapy report of Mr Howard, which elicited pain and restrictions that were consistent with the particular concession by Dr Cochrane in respect of cervical spine pain on movement.
[5] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796

I find pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) that the applicant sustained injury to the cervical spine as a result of injury on 15 December 2016.
In relation to the thoracic spine, I have similarly found thoracic spine stiffness and noted treatment, as discussed in the report of Mr Howard dated 15 February 2017, and investigations, including the MRI scan of 6 Febrary 2017, I have accepted the applicant’s evidence that he had made complaints of pain in the whole of his back, which I accept included pain in his thoracic spine, in respect of his appointment with Dr Frith in late January 2017. Dr Granot in his report 8 August 2021 was of the opinion that the mechanism of injury was one of significant axial load, which would be expected to cause a crush fracture such as those observed in the thoracic spine. Dr Dixon was also of the opinion that the observed pathology was caused by the injury of 15 December 2016. Dr Cochrane in his report of 30 November 2021 conceded that there may have been a mild soft tissue injury to the thoracic spine, although he was not of the opinion that a thoracic injury had occurred, on review of contemporaneous medical records or on a clinical basis, and there were no diagnosed neurological symptoms. The same analysis that applied to the concession made by Dr Cochrane as the possibility of injury to the cervical spine, also applies to the thoracic spine. Having regard to the principle referred to above in Bes, and having regard to the possibility of thoracic spine injury conceded by Dr Cochrane, and to contemporaneous material that I have accepted, I find on the balance of probabilities that the applicant sustained thoracic spine injury as a result of the accident on 15 December 2016. Applying a commonsense view of causation, and having regard to the contemporaneous materials, including the referral by Dr Tran for physiotherapy treatment and investigation, and the physiotherapy report of Mr Howard, I find that injury to the thoracic spine resulted from the accident of 15 December 2016.
I find pursuant to s 4(a) of the 1987 Act that the applicant sustained injury to the thoracic spine as a result of injury on 15 December 2016.
There were no submissions in relation to s 9A of the 1987 Act. Dr Cochrane did not think employment was a substantial contributing factor to either the cervical or thoracic conditions.
However, whether employment is a substantial contributing factor to an injury is question of fact and is a matter of impression and degree[6]. Dr Cochrane in his reports did point to age related degenerative change as being a reason why employment was not a substantial contributing factor to the cervical spine and thoracic spine conditions as he found them at the time of his examinations and reports. However, this was expressed in relation to his view that there was no neurological basis for there being injury. He separately conceded the possibility of soft tissue injury of both the cervical and thoracic spines, which in my view is a separate consideration of injury and whether employment was a substantial contributing factor to the cervical spine and thoracic spine injuries. There was no evidence, medical or lay, as to the existence of symptoms of a pre-existing condition. Dr Granot and Dr Dixon did not point to another non work related factor. Accordingly, I find that employment was a substantial contributing factor to the cervical spine and thoracic spine injuries.
[6] Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 at [29].
The respondent submitted that it was necessary to consider and find specific pathology with respect to injury found. The applicant submitted that it was sufficient to find injury without reference to pathology, as it was a matter for a Medical Assessor to assess the permanent impairment resulting from an injury.
In my view it is not necessary to find specific pathology in this matter. This is, in my view, consistent with the decision of Emmett JA in in Bindah v Carter Holt Harvey Wood Products Australia Pty Limited[7] in which it was said:
“Thus, because an arbitrator has no jurisdiction to decide a medical dispute, an arbitrator has no jurisdiction to make findings that are binding on an approved medical specialist or on an Appeal Panel. A finding made by a person without jurisdiction cannot bind a person or persons who have jurisdiction (see Haroun v Rail Corporation New South Wales [2008] NSWCA 192 at [16] and [19] - [21])[8].
…
The Commission cannot award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist. It follows that the determination of the degree of permanent impairment that results from an injury is a matter wholly within the jurisdiction of the approved medical specialist or, on appeal, the Appeal Panel. It is not a matter for determination by an arbitrator. Thus, it would not have been open for the arbitrator who made the consent Determination to determine, even by consent, that any degree of permanent impairment resulted from an exacerbation of the pre-existing cataract condition. That is a matter wholly within the jurisdiction of an approved medical specialist or an Appeal Panel.[9]”
[7] [2014] NSWCA 264.
[8] at [109].
[9] at [112].
Although the legislation has changed somewhat since that decision, in my view, once a referral is made to a Medical Assessor, as it will in this matter, the reasons of Emmett JA remain applicable. It is noted that in the same decision Meagher JA held that an arbitrator could determine causal matters in relation to permanent impairment. However, the effect of that decision was that in the matter at hand, the precise pathology resulting from the injury and its effects was a matter for an Approved Medical Specialist, now a Medical Assessor.
There remains significant controversy as to the interpretation and meaning to be given to the MRI scan of 6 February 2017 and the CT scan of 7 June 2018. Dr Cochrane in my view conceded the possibility of injury but did not accept the opinion of Dr Houang, and Dr Cochrane came to his own view about the these scans. Dr Dixon accepted the opinion of Dr Houang. Dr Granot reached his own, differing view as to the MRI of 6 February 2017. I have not preferred Dr Korbel’s report. In my view, consideration of these scans falls within the domain of a Medical Assessor having regard to the necessary causal relationship between injury and permanent impairment. It is not necessary for a Medical Assessor to decide between the competing views as to these scans, rather a Medical Assessor can make their own assessment of these scans in the course of assessing permanent impairment.

[TR1]Typo / [sic]?

[TR2]Is this meant to be spelt this way?

[2023] NSWPIC 418

17 August 2023