Du v Tian Tong Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Du v Tian Tong Group Pty Ltd [2023] NSWPIC 19
APPLICANT:	Hang Du
RESPONDENT:	Tian Tong Group Pty Ltd
Member:	John Wynyard
DATE OF DECISION:	18 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Lump sum claim for injury to the cervical spine and cervical spinal cord; whether injury to spinal cord occurred; Held – every medical practitioner in the matter, including the respondent’s neurosurgeon, accepted that injury in serious motor vehicle accident involved both the cervical spine, and the cervical spinal cord; the respondent’s neurosurgeon then contradicted his earlier advice and stated that the applicant did not suffer a spinal cord injury, but the respondent’s neurosurgeon applied the wrong criteria to the definition of a spinal cord impairment; matter remitted for whole person impairment assessment for both the cervical spine and the cervical spinal cord.
determinations made:	1. I remit this matter to the President for referral to a Medical Assessor for an assessment of whole person impairment on the following bases: (a) Date of injury: 11 May 2018. (b) Matters for assessment: (i) cervical spine, and (ii) cervical spinal cord. (c) Evidence: (i) Application to Resolve a Dispute and attached documents; (ii) Reply and attached documents, and (iii) Respondent Application to Admit Late Documents dated 25 October 2022.

STATEMENT OF REASONS

BACKGROUND

Hang Du, the applicant, brings an action against Tian Tong Group Pty Ltd, the respondent, for lump sum compensation.
Dispute notices were served, and the Application to Resolve a Dispute (ARD) and Reply were duly issued.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) did the applicant suffer an injury to his cervical spinal cord.

PROCEDURE BEFORE THE COMMISSION

At the teleconference on 7 October 2022, I issued directions for written submissions. The applicant was represented by Mr Cedric Chen of Stephen Young Lawyers. The respondent was represented by Mr Robert Mitas from Lee Legal Group. Ms Sarah Molle, a Mandarin interpreter, and Ms Lucy Iacono on behalf of the insurer were also in attendance.
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 relevant documentary evidence will be referred to in the reasons below. I have accepted the factual background as it has been set out by both parties, as there is no dispute as to the chronology.

Oral evidence

No application was made with regard to oral evidence.

FINDINGS AND REASONS

The issue for determination arises after the respondent objected to the proposed terms of a referral to a medical assessment dated 5 September 2022, which sought a whole person impairment (WPI) assessment for an injury which was described simply as “cervical spine”. The respondent submitted that the nature of the injury should be more fully described, as whilst the expert evidence agreed that Mr Du had injured his cervical spine, there was a difference of opinion as to the nature of that injury.
Mr Du had injured his neck on 11 May 2018 whilst on a business trip in China. He had been involved in a motor vehicle accident whilst travelling in the backseat of a seven seater sport utility vehicle (SUV). He underwent an anterior cervical fusion from C3 to C6 at Central Hospital in the city of MaAnShan that same day, and has been left with continuing symptoms in his upper extremities and cervical spine.
There were four expert opinions as to the appropriate method of assessment, and it initially appeared that it was the method, rather than the identification of the particular injury, that lay behind the issue the respondent seeks to ventilate before me.
I accordingly directed that written submissions be filed.

SUBMISSIONS
The respondent

I was referred to the s 78 notice dated 10 January 2022. It referred to examinations of Mr Du by Dr Graeme Doig and Dr Vidyasagar Casikar, although it relied only on the opinion of
Dr Casikar.
The notice recorded that Mr Du was seeking lump sum compensation for 47% WPI. It referred to advice from Dr Casikar that appeared to dispute the nature of the injury. Dr Casikar was quoted as saying that a cervical spine injury was not the same as cervical cord injury.[1]
[1] Reply page 3.
The respondent submitted that whilst the applicant’s medical experts made reference to a spinal cord injury, there was no objective evidence to support such a finding. The “nature” or “type” of the injury to the spinal cord had not been explained.
Thus it was necessary for the Commission to rule on whether, as I understood the submission, there had been an injury to the cervical spine and/or an injury to the cervical spinal cord. I was referred to various authorities regarding the Commission’s powers in that regard.[2]
[2] Spicer Axel Australia Pty Ltd v. Merza [2007] NSWWCCPD 148; Jaffarie v Quality Castings Pty Limited [2014] NSWWCCPD 79; Dywidag Systems International Pty Ltd v. Melksham [2020] NSWWCCPD 41.
The point of distinction, the respondent argued, could be found in the contrasting opinions of Dr Peter Khong and Dr Vidyasagar Casikar - both experts being neurosurgeons. On
26 May 2021 Dr Khong had diagnosed the nature of Mr Du’s injury:[3]
“Mr Du experienced a unstable cervical spine fracture, likely a C4 burst fracture, with an associated spinal cord injury. He went on to have a C4 corpectomy and C3 - 6 anterior cervical fusion.”
[3] ARD page 18.
Dr Casikar, the respondent argued, did not accept that Mr Du had suffered an injury to the cervical spinal cord. I was referred to Dr Casikar’s comments which had been reproduced in the s 78 notice. They were made in Dr Casikar’s report of 4 January 2022, when he was asked to comment on the report of Dr Khong.[4] Dr Casikar said:
“Mr Du has suffered a cervical spine injury. This is not the same as cervical cord injury. He does not have long cord symptoms. Therefore, you cannot include the cervical cord injury along with cervical spine injury.”
[4] Reply page 22.
The respondent also referred to the explanation given by Dr Casikar for his opinion in the next paragraph:
“….Clinically there is no evidence to suggest that he has long track signs at the level of the injury. Unless he has long track signs and spasticity in the lower limbs, bladder and other dysfunctions suggestive of a cervical cord injury I believe the impairment is mainly cervical spine injury with neurological problems…”
The respondent quite properly conceded that “some of the medical reports and records… make general reference to a spinal cord injury”. However, the respondent argued that no clear diagnosis or conclusion had ever been reached regarding the nature of that condition. It was submitted that there were no radiological or other investigations which “explain the nature of this alleged ‘injury’ to the spinal cord”. It was alleged that neurological investigations undertaken in 2018 were normal and no up-to-date investigations were in evidence.
The respondent submitted that if Mr Du was suffering a spinal cord injury with the types of symptoms referred to by Dr Casikar then it could be expected that the treating doctors would be investigating with a view to providing appropriate treatment. It would be expected, the respondent submitted, that where a patient complained of symptoms consistent with cervical myelopathy, radiculopathy, spinal canal stenosis, cord compression or myelomalacia, that an MRI scan would be taken as part of the patient’s management.
The respondent then referred to the WPI assessment given by Dr Khong pursuant to Table 15 – 6 at page 396 of AMA 5.[5] The respondent submitted that Dr Khong did not give any explanation for his finding that there had been an injury to the spinal cord.
[5] American Medical Association Guides to the Evaluation of Permanent Impairment, volume 5.
Further, the respondent submitted, the treating neurosurgeon, Dr Van Gelder had noted that as of 19 November 2020, Mr Du had returned to work and was using both arms normally for dexterous tasks.[6] It was alleged that such a finding would be inconsistent with the history recorded by Dr Khong. It was also relevant that Dr Van Gelder made no further arrangements to see Mr Du, and indeed that Mr Du had not sought further treatment from a neurosurgeon since that time.
[6] ARD page 1098.
The respondent concluded its submissions by alleging that there was insufficient evidence to support a finding that the applicant had suffered a cervical spinal cord injury. There should accordingly be an award in favour of the respondent regarding the allegation of injury to the spinal cord. The referral to the Medical Assessor should seek an assessment regarding the cervical spine, but not the cervical spine cord.

The applicant

Mr Du did not engage with the specific submissions raised by the respondent. He simply referred to his statement as to the circumstances of his accident and his assertion that he had indeed suffered a spinal cord injury. Mr Du set out the injuries he had suffered, namely:
·        fractures of C2, C3, C5 vertebra;
·        paralysis of arms;
·        paraesthesia of left arm and hand, and
·        psychological injury.
It was submitted that prior to his accident Mr Du had full work capacity, and that the above injuries related entirely to the accident. As indicated in the latest certificate of capacity, it was alleged the applicant still suffered from all of the above injuries.
The final submission was somewhat opaque. The applicant submitted that “it would only be appropriate to seek the medical opinion of an accredited medical assessor to determine the concern of ‘whether the worker suffered from a spinal cord injury’ at the PIC”. I assume that the applicant was referring to the alternative option of seeking a general opinion from a Medical Assessor in the event that I was unable to reach any conclusion on the evidence before me.

DISCUSSION

As I intimated in my opening remarks, on the proper consideration of the evidence the issue relates to the methodology that a Medical Assessor should employ in dealing with this case. I do not accept the premise of the respondent’s argument.
It was confirmed by the medical treaters and experts for Mr Du, as was conceded by the respondent, that he suffered an injury to his cervical spinal cord. Dr Van Gelder stated as much in the three opinions that were before me dated 20 August 2018, 29 August 2018 and 19 November 2020.[7]
[7] ARD pages 1094, 1093 and 1092 respectively.
Dr Matthew Giblin, orthopaedic surgeon, was of the same view when he reported to the applicant’s solicitors on 8 February 2021. He said:[8]
“It is my opinion this gentleman’s injuries are consistent with the accident described, he sustained a fracture of his cervical spine and a spinal cord injury. He has gone on to have a C4 cervical vertebrectomy and a fusion C3-C6. He still has symptoms in his left upper limb due to spinal cord trauma.”
[8] ARD page 24.
I have already referred to Dr Khong’s diagnosis when considering the respondent’s submissions. In that same report of 26 May 2021 Dr Khong noted that it had been three years since the injury, and that Mr Du was unlikely to make any additional recovery. He would suffer persistent neck and shoulder pain, numbness in both upper limbs and loss of dexterity of the left hand.[9] A perusal of the clinical notes from the Burwood Family Medical Centre confirms that Mr Du has consistently reported similar symptoms to his general practitioner, Dr Shi.
[9] ARD page 19.
A matter of some significance, in view of the issue raised by the respondent, is the reliability of the opinion on which the insurer denied liability, that of Dr Casikar.
However, Dr Casikar also accepted in an earlier report that Mr Du had suffered injury to his cervical spinal cord. On 17 November 2021 Dr Casikar took a consistent history of the injury and subsequent surgical treatment. He noted on examination that Mr Du had significant hypersensitivity in the left upper limb, the movements of which were reduced and internal rotation reduced to 30°. Dr Casikar’s opinion was that Mr Du had a significant traumatic injury, and that he had a “residual hypersensitivity problem”, which Dr Casikar thought was “mainly” because Mr Du was scared of touching it, and that the hypersensitivity would gradually reduce in the course of time.[10]
[10] Respondent AALD page 1.
I have some reservations about Dr Casikar’s opinion that the hypersensitivity would gradually reduce, as it was not supported by the contemporaneous evidence in the records of the Burwood Family Medical Centre. I also note that Dr Casikar, by using the word “mainly”, did not exclude other causes for the hypersensitivity.
In any event, Dr Casikar, when asked to comment on the findings of Dr Giblin said, “I accept the findings of Dr Giblin”.
As indicated above, Dr Giblin found a fracture of the cervical spine, and a cervical cord injury. Dr Casikar’s acceptance of those findings was unconditional.
As also indicated above, the respondent lodged a report of Dr Graeme Doig dated
24 November 2021. Dr Doig is a general orthopaedics and trauma surgeon, whose opinion was similarly unambiguous. On examination, Dr Doig said:[11]
“[Mr Du] displayed approximately 25% loss of movement through the cervical spine, weakness at the left shoulder and was unable to fully elevate his arm overhead with Grade 4 on 5 power. He appeared to have weakness in the C4 and CS myotomes, hyper-reflexia in the left arm and altered sensation also affecting the left arm in multiple, dermatomal regions. This was consistent with myelopathy as a ·result of spinal-cord injury.”
[11] Reply page 13.
Dr Doig’s diagnosis stated:
“The diagnosis is a complex fracture of the C3 cervical vertebra, including the posterior elements and vertebral body, with probable damage to the spinal cord according to a pre-operative MRI scan performed in China. Mr Du has undergone decompression and fusion surgery with persistent neurological symptoms affecting the non-dominant-left arm consistent with myelopathy.”
In considering the appropriate degree of WPI, Dr Doig made findings that were broadly consistent with those of Dr Giblin, and Dr Casikar up to that point.[12]
[12] Dr Doig assessed 28%, Dr Giblin 30%, and Dr Casikar 30%.
It is significant, however, that in giving his assessment of 30% WPI, Dr Giblin said:[13]
“This 30% does not include the spinal cord injury, resulting in his left arm pain and numbness and this is best assessed by a Neurosurgeon as it is outside my field of expertise.”
(As written).
[13] ARD page 26.
Similarly, Dr Doig said:[14]
“Further impairment is justified due to the on-going, neurological symptoms in my opinion and as alluded to previously, assessment by a Consultant Neurologist would be appropriate.”
[14] Reply page 18.
The consultant neurologist retained by the applicant was Dr Khong. He assessed a cervical spine injury of 30%, but then made the further assessment referred to by both Dr Giblin and Dr Doig, finding a further entitlement of 25%.[15]
[15] ARD page 21.
It is instructive to consider the whole of Dr Casikar’s response to the opinion of Dr Khong as in its s 78 notice the insurer was selective in its quotation of Dr Casikar’s advice, conflating his answers to two separate questions, and ignoring the relevant part of his comments.
Dr Casikar was asked to comment on Dr Khong’s opinion. He said:[16]
“Thank you for the documentation provided. Dr Khong has assessed a further 25% WPI in reference to spinal cord injury. If he is trying to use the spinal cord assessment for his spinal injury that is acceptable. However he cannot combine this with the DRE assessment and I think he can use one of the two methods of involvement. In my opinion either he uses 25% WPI according to page 396 as a spinal cord injury or he uses the DRE Table 15-5. The DRE category of IV includes the fracture compression of vertebral body and other features. Therefore, I believe that the assessment should be either in one of the two, both are not applicable. Please note that if Mr Hang Du has 47% impairment, he would not be in a position to drive and get back to his normal duties. Therefore, one will have to look at this impairment with a different approach.
Mr Du has suffered a cervical spine injury. This is not the same as cervical cord injury. He does not have long cord symptoms. Therefore, you cannot include the cervical cord injury along with cervical spine injury.”
(Emphasis added).
[16] Reply page 22.
It can be seen that Dr Casikar had no problem with there being an assessment for Mr Du’s spinal cord injury. His objection was not that there was no such injury, but that there could not be a combination for both the cervical spine injury, and the added assessment for the spinal cord injury. However, his second paragraph (relied on by the respondent) appeared to contradict his own advice.
Having given that advice, Dr Casikar then was asked:
“4. In a separate report, could the Doctor please provide his assessment on whole person impairment pursuant (WPI) to the SIRA Guidelines and AMAS in respect to his alleged injuries? When providing your assessment of WPI, we ask that you specifically consider whether the worker has a diagnosable spinal cord disorder, and if so, include in your assessment any applicable neurological impairment?”
Of course, Dr Casikar had just answered that question by both saying that it was acceptable to use the spinal cord assessment, and, in his second paragraph, saying in effect that there was no spinal cord injury. His full answer, however, illustrated the real issue in the case. He said:[17]
“I have already provided a WPI according to SIRA Guidelines. I do not believe that one has to include spinal cord disorder. Clinically there is no evidence to suggest that he has long track signs at the level of the injury. Unless he has long track signs and spasticity in the lower limbs, bladder and other dysfunctions _suggestive of a cervical cord injury I believe the impairment is mainly cervical spine injury with neurological problems. DRE IV adequately addresses this issue. DRE modifiers include multisegment fusion and other neurological problems and also include self-care issues. Therefore adding spinal cord injury to a cervical spine injury would be inappropriate. Perhaps one of the two methods. I do not believe both methods can be combined.”
(Emphasis added).
[17] Reply page 22.
Table 15-6 of AMA5 is entitled “Rating Corticospinal Tract Impairment”. It sets out the criteria for seven classes of entitlement. The relevant criteria identified by Dr Khong was Class 3, which provides, “Individual can use the involved extremity but has difficulty with self-care activities”.
Dr Casikar’s description of a spinal cord injury was inconsistent with the Guideline. In the absence of any explanation as to why the relevant Guideline had not been applied, and in the absence of any explanation as to why long track symptoms and spasticity were relevant thereto, Dr Casikar’s advice can be put to one side. The apparent ambiguity of his advice could perhaps be explained by his concern that Table 15-6 and Table 15-5 assessments should not be combined. In any event Dr Casikar’s opinion was unsupported by the other expert opinions (including that of Dr Doig, whose reports were lodged by the respondent), all of whom diagnosed injury to the spinal cord – as did Dr Casikar himself, as I have indicated.
The respondent’s case is dismissed. For completeness, I reject the submission that no clear diagnosis had been reached as to Mr Du’s injury. Whether a patient with the long track symptoms described by Dr Casikar would need further treatment is irrelevant, as Mr Du does not have those symptoms, neither are they relevant to the criteria provided by the Guideline. Although Dr van Gelder noted Mr Du’s exemplary attitude to his condition by finding suitable work, Dr van Gelder repeated in each of his reports that the diagnosis was of injury to the cervical spine, and to the cervical spinal cord.

I accordingly remit this matter to the President for referral to a Medical Assessor for an assessment of WPI on the following bases:
(a)     Date of injury: 11 May 2018.
(b)     Matters for assessment:
(i)cervical spine, and
(ii)cervical spinal cord.
(c)     Evidence:
(i)ARD and attached documents;
(ii)Reply and attached documents, and
(iii)Respondent Application to Admit Late Documents dated 25 October 2022.

[2023] NSWPIC 19

18 January 2023