Gillet v Tracey Bartley Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gillet v Tracey Bartley Pty Limited [2021] NSWPIC 175
APPLICANT:	Caitlyn Gillet
RESPONDENT:	Tracey Bartley Pty Limited
MEMBER:	Kerry Haddock
DATE OF DECISION:	8 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for permanent impairment compensation and medical expenses as a result of injury to cervical spine and thoracic spine sustained in a fall from a horse; injury claimed to be either post-traumatic syrinx or the aggravation, exacerbation and/or acceleration of underlying disease condition; Makita v Sprowles, Hancock v East Coast Timber, Mason v Demasi and State Transit Authority of New South Wales v El-Achi considered; Held- applicant developed syrinx either as a result of a frank incident or aggravation, exacerbation and/or acceleration of disease; award for the applicant for medical expenses; medical dispute referred to Medical Assessor for assessment of permanent impairment as a result of injury to the cervical spine and thoracic spine.
DETERMINATIONS MADE:	1. That there is an award for the applicant pursuant to section 60 of the Workers Compensation Act 1987. 2. That the matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury to the cervical spine and the thoracic spine on 10 December 2012. 3. That the Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attached documents, with the exception of the report of Dr Ross Mellick, dated 19 April 2018; (b) Reply and attached documents; (c) Application to Admit Late Documents dated 4 May 2021 and attached document, and (d) This Certificate of Determination and Statement of Reasons.

STATEMENT OF REASONS

BACKGROUND

The applicant, Caitlyn Gillett (Ms Gillett) sustained facial injuries on 10 December 2012 when she was thrown from a horse while riding trackwork at Wyong Racecourse. She also claims to have sustained injury to her spine, being the development of a syrinx. In the alternative, she claims to have sustained aggravation, exacerbation, and/or acceleration of an underlying disease condition.
Liability has been accepted for the applicant’s facial injuries.
The applicant completed a Worker’s Injury Claim Form (the Claim Form) on 25 January 2017. The Claim Form states that on 10 December 2012, “horse ducked out gap, dislodging me face first into rail”. The parts of her body that were injured were recorded as “Left side of face. Minor injury to above left knee/right thigh”.
The letter of claim is not in evidence. However, at some stage in 2019 the applicant made a claim for permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act). It is unclear what injuries were claimed, or the amount of compensation that was claimed.
On 8 August 2019 (it appears that the letter serving the notice is dated 8 August 2019, while the notice itself is dated 8 May 2019) the respondent’s workers’ compensation insurer, Racing NSW Insurance Fund (Racing NSW), issued Ms Gillett with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The respondent disputed liability for permanent impairment compensation on the basis that there was no injury that arose out of or in the course of the applicant’s employment. The respondent relied on sections 66; 4(a); 4(b); and 9A of the 1987 Act. The respondent disputed that the applicant had a definite syringohydromyelia and maintained that it could not be causally related to the incident on 10 December 2012.
On 9 September 2020, the respondent’s solicitors wrote to the applicant’s solicitors, referring to “your most recent claim for compensation benefits”. Once again, the letter of claim is not in evidence, but the letter referred to a previous Application to Resolve a Dispute, in Matter Number 5215 of 2019.
The respondent’s solicitors advised that notice was again given in accordance with section 78 of the 1998 Act. The reasons for declining liability were those set out in the previous notice, and the respondent again relied on the sections of the 1987 Act of which it had previously notified the applicant.

The applicant lodged a further Application to Resolve a Dispute, in Matter Number 6707 of 2020, which was discontinued.

The applicant lodged this Application to Resolve a Dispute (the Application) on 12 March 2021.
The Application claims that the applicant sustained injuries to her face and spine (development of a syrinx) when she was thrown from a horse while performing track work at Wyong Racecourse on 10 December 2012. In the alternative, she claims to have suffered the aggravation, exacerbation and/or acceleration of an underlying disease condition.
The applicant claims the sum of $864.95 for medical expenses, pursuant to section 60 of the 1987 Act. She also claims permanent impairment compensation of $41,250, pursuant to section 66 of the 1987 Act, in respect of 24% whole person impairment (WPI) as a result of injury to her cervical and thoracic spines.

The respondent lodged its Reply on 17 March 2021.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) Whether the applicant has sustained any injury to the cervical spine, thoracic spine or the spine generally.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 13 May 2021.
Ms Grotte of counsel, instructed by Mr Warren, appeared for the applicant, who was present. Mr Saul of counsel, instructed by Mr Macken, appeared for the respondent.

The applicant sought a general order for medical expenses pursuant to section 60 of the 1987 Act.

The applicant sought referral of the medical dispute to a Medical Assessor for assessment of WPI with respect to injury to the cervical and thoracic spines in the form of a syringomyelia.

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

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

(a)     The Application and attached documents, with the exception of the report of
Dr Ross Mellick, dated 19 April 2018, which was withdrawn by the applicant;
(b)     Reply and attached documents, and
(c)     Application to Admit Late Documents dated 4 May 2021 and attached document, filed by the respondent and admitted by consent.

Oral Evidence

There was no application by either party to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Statement of the applicant, Caitlyn Gillett

The applicant’s first statement is dated 24 September 2019.

The applicant states that she resigned from her previous employment in about August 2012 to become an apprentice jockey. She did track work for the respondent until early 2013.

On 10 December 2012, Ms Gillett was riding a horse onto the track, when it suddenly “spooked and bolted”. She had ridden the same horse a number of times before and he had never presented her with any problems.

Once the horse bolted, “there was no stopping him and he did a circuit of the course”. Everyone came to try to help, but this spooked the horse more, and he tried to escape off the track. The applicant was thrown off and went face first into the metal rail.

Ms Gillett eventually stood up and felt sore everywhere. Her face felt very hot and her legs were wobbly. She remembers that later her neck felt very sore, her face was swollen and her shoulders, back, arms and legs were sore. She went to her doctor and he gave her a few weeks off riding. She did light duties at work.

A few months after, the applicant’s face felt “weak” and she had a dent in her cheek, which is still visible. She was also getting twitches, which are also still visible. She continued to suffer neck pain. MRI in 2017 disclosed a syrinx that runs from the base of her skull to her spinal cord.

The applicant suffers severe pain that runs from the centre of her thoracic spine through her shoulders, up her neck, down her arms and through her chest. The pain is constant. She gets pins and needles down her arms into her wrists and hands. She has weakness in her shoulders, hands and legs. The numbness and weakness in her hands has impacted her writing and ability to grip things. It hurts her to breathe. Her lower back gets sore and she gets sciatic pain down her legs to her calves.

The applicant is unable to stand or sit for long periods. It hurts her to drive. She gets headaches and chronic fatigue. Her feet and lower legs throb and she gets pins and needles.

Ms Gillett was working four days a week. Even this office work hurt her. She had physio once a week and Botox injections every three months.

The applicant’s second statement is undated. She repeats the symptoms to which she refers in her first statement and the description of the injury.

The applicant tried to return to her career as a jockey but after riding just one horse, her back would be in too much pain and she felt a lot weaker. She was unable to ride without pain and this, together with her weakness, affected her ability to ride. It took her at least a week to recover from one ride. She therefore returned to her old job at PRP Radiology, performing clerical and receptionist duties.

Before the injury, the applicant attended the gym daily and was very active. She is no longer able to do this, as it causes too much strain on her body and pain.

The applicant has suffered neck and mid-back pain from the time of the fall. However, from about 2015/2016 it became a lot worse. She also started developing pain in her right shoulder, under her right arm, chest and ribs. These symptoms continue. She attended the GP multiple times for these symptoms in the lead up to her diagnosis, “yet I got dismissed”.

The applicant was going to physio once a week but is unable to afford it since Racing NSW denied her ongoing medical expenses. She has Botox injections every three months from Associate Professor Sturm, for hemifacial spasm.

Medical evidence
Wyong Family Practice

On 13 December 2012, Dr Phillip Giles recorded that the applicant had a fall from a galloping horse two days ago and “hit fence”. She had left facial paralysis and cheek swelling. She was sent for x-ray of her facial bones and CT.

On 28 February 2013, Dr Giles recorded “face still weak from previous injury”.

There are records of attendances for various complaints in 2013, 2014, 2015 and 2016.

On 12 July 2016, the applicant had an ultrasound of her thyroid, performed by Dr Gordon Melville. The clinical history was recorded as “funny feeling in neck ?thyroid”. Dr Melville reported that there were multiple small tiny nodules, measuring up to 2 mm in diameter bilaterally, but no large dominant nodule was seen.

On 14 December 2016, Dr Vanessa Alexander recorded that the applicant had had a lump on the right side of her neck for eight months and “in her groin as well”. She was referred for ultrasound.

Dr Alexander recorded on 20 December 2016 that she had given the applicant the results of the ultrasound of her groin and neck. She noted “reactive LN” (assumed to be lymph node). The applicant had been unwell a lot that year with chest infections. She was worried about lymphoma, but Dr Alexander “advised not indicative of this”. There were no concerning features “re: LN on USS”.

On 25 January 2017, Dr Mina Nakhla recorded that four years before, the applicant was injured as she came off a horse. She never claimed it as a work-related injury but had an incident report. The left side of her face “still not the same when she smiles!!”

Dr Nakhla advised the applicant that she needed to check with the insurance company to determine how to go ahead with a claim after four years. She would need a neurologist review “+NCS”.

Dr Nakhla recorded that a WorkCover NSW certificate dated 1 October 2012 [sic] was produced. It was confirmed as a work-related injury and the applicant was referred to A/Prof Sturm. She was issued with a certificate. Dr Nakhla continued to review the applicant, recording that she was treated by A/Prof Sturm with Botox.

On 4 May 2017, Dr Richard Morrow recorded that the applicant felt left shoulder and chest pain “from yesterday evening feels tight”. The chest pain was worse on breathing. The applicant had woken that morning feeling short of breath. She had a slight cough. She had previously been told she had a murmur, had had ECG and ECHO and “told OK”. She smoked five cigarettes a day. She was referred for a chest x-ray.

On 26 May 2017, Dr Nakhla recorded that the applicant was going well. She would need more Botox. The next one was in a few weeks.

Dr Nakhla issued the applicant with a WorkCover certificate on 23 June 2017, when she was “going reasonably well”.

On 25 July 2017, the applicant was “still the same” and was issued with a WorkCover certificate. “On the other hand,” she complained of pain under her right armpit and shoulder blade. She was reassured. Dr Nakhla recorded “imp. (impression?) muscular” and suggested NSAIDS.

Dr Nakhla recorded on 11 August 2017 that the applicant had muscular pain “right shoulder blade into right side of neck”. It was sore when she moved her arm. She was to see the physio if she was not improving.

Dr Nakhla continued to review the applicant and issue her with certificates from August 2017 to November 2017. There is little detail in her clinical records.

On 23 November 2017, Nicholas Smith recorded that the applicant had fallen one day ago. She had left inner buttock pain and referred pain to her left leg.

Dr Nakhla recorded on 1 December 2017 that the applicant had had a fall and her left side was sore. She noted “worsebn [sic] ??cause”. The applicant was referred for CT scan of her lumbosacral spine.

Dr Morrow reviewed the applicant on 22 December 2017 and issued her with a WorkCover certificate. He noted ongoing review with A/Prof Sturm and that she was having Botox injections.

Dr Nakhla recorded “same” on 24 January 2018, 21 February 2018, when she recorded “now referral to A/Prof Sturm as well” and 21 March 2018.

On 20 April 2018, Dr Nakhla recorded that the applicant needed a WorkCover certificate. “On the other hand”, she was tired, lethargic. She had lower abdominal pain “??cause”. The applicant needed blood test and ultrasound.

Dr Nakhla reviewed the applicant on 10 August 2018, noting that she “need W/C”. Her MRI was clear.

On 11 September 2018, Dr Nakhla recorded “W/C review” and that the applicant was going well. “Continue the same”.

On 2 October 2018, Dr Nakhla recorded that the applicant had fallen off a horse one day ago. She was not “KOd” (knocked out). She had “whiplash +”; full range of motion; and no neurological “symptoms?signs”. There was no abnormality detected in her cervical spine. She had nausea and increasing giddiness. She was referred for CT scan of her brain.

Dr Nakhla reviewed the applicant on 24 October 2018 and 18 December 2018, when she issued a WorkCover certificate.

Dr Nakhla continued to review the applicant in 2019, issuing a WorkCover certificate on 23 January 2019. The applicant consulted her again on 29 January 2019, when she recorded “going well. Need script”. This was not related to her claim.

On 30 April 2019, Dr Morrow recorded that the applicant needed a referral to A/Prof Sturm.

Dr Nakhla continued to issue the applicant with WorkCover certificates in 2019. The applicant also consulted other doctors in the practice for UTI; runny nose, post nasal drip and cough, when it was recorded “pain is worse with cough”.

On 18 July 2019, Dr Nishad Gamage recorded that the applicant had severe pains, “thought aggravated by coughing, same area of distribution”. A/Prof Strum approved a short course of opioids and was to see the applicant next week.

On 23 July 2019, Dr Nakhla recorded “change condition”. The applicant was not to do track work or horse riding. On 4 September 2019, she recorded that the applicant needed “WCC” but was “otherwise OK”.

The applicant continued to present at the practice for various conditions, such as a ganglion on her right wrist; URTI; headaches (when “no neck stiffness” was recorded); and right cervical lymph node enlargement.

On 6 November 2019, it was noted that, as the applicant’s lymph node was more than 17 mm, “as requested sent to haematologist”.

The applicant’s current medical history includes in 2017 “Traumatic Spinal Cord Syrinx”.

Associate Professor Jonathan Sturm

A/Prof Sturm reported to Dr Nakhla on 9 February 2017. He noted the applicant’s medical history. Ms Gillett presented with left facial weakness and spasm.

The history of the injury was recorded as the applicant having fallen from a horse, hitting the left side of her face against a metal rail. She did not lose consciousness but developed marked bruising and swelling over the left facial region. She saw her GP the next day and had a CT scan. She told A/Prof Sturm that the CT showed soft tissue swelling but no bone injury. The report of the CT scan, dated 13 December 2012, is attached to the Application, and confirms that history.

A/Prof Sturm recorded that the swelling resolved over weeks, but as it improved, the applicant noted left lower facial weakness, for example, asymmetry when she was smiling or in photos. She also developed muscle twitching around the left eye, lateral to the left nostril, and pulling up the left upper lip, which occurred frequently. She had suffered some social anxiety before the injury, and it had been much worse since she developed these problems. They had neither improved nor worsened since the injury.

A/Prof Sturm recorded findings relating to the applicant’s face, but the remainder of her neurological examination was “unremarkable”. He opined that the history and examination suggested traumatic injury to the applicant’s left facial nerve, sustained during her fall at work. He had sought approval from the insurer for MRI and MRA of her brain, to look for any structural abnormalities. The symptoms troubled the applicant significantly, and it would be worth trialling Botulinum toxin therapy.

On 1 March 2017, A/Prof Sturm reported that the applicant’s MRI of her brain and MR angiogram were normal, apart from noting that she had a tortuous left AICA (anterior inferior cerebellar artery), which abuts the left facial nerve. However, her symptoms came on after trauma to her face, with some mild left facial weakness, and therefore trauma seemed the more likely cause. There was no demyelination or other structural pathology seen.

A/Prof Sturm had injected the applicant with low doses of Botulinum toxin. He had reinforced that this would help the spasms around the eye, but not the lower face. He continued to treat her with Botox injections.

On 22 June 2017, A/Prof Sturm reported that the applicant’s diagnosis was left hemifacial spasm following trauma. He had injected her with Botox and was to see her in 12 weeks.

On 17 August 2017, the applicant had an MRI of her cervicothoracic spine by Dr Melville.

The MRI records a history of pain in the mid thoracic spine extending to “right and right arm”. There was a syrinx noted, extending from the skull base, through the cervical spine, most prominent in the cervical region from C3 to C7; and in the upper thoracic spine most prominent from T2 to T7, but extending to the conus medullaris. In the cervical spine, the syrinx had a maximum diameter of 3 mm; and a maximum diameter in the upper thoracic spine also of 3 mm.

There was no evidence of a compressive disc herniation, and no abnormality was seen at the craniocervical junction. The conus medullaris terminated normally at T12. No compressive lesion was seen in the thoracic spine.

The MRI report concludes that there was syringomyelia noted in the cervical and thoracic spine “as described which is presumably post traumatic given the history.”

A/Prof Sturm reported to Dr Nakhla on 14 September 2017. He commenced his report with the diagnoses “Left hemifacial spasm following trauma. Traumatic spinal cord syrinx”.

After referring to the applicant’s facial injuries and treatment, A/Prof Sturm noted that “over the past couple of years”, Ms Gillett had had pain in her neck and thoracic regions, “at times in the low back”. A few months ago, this had markedly worsened, with severe pain under her right shoulder blade, radiating around the rib cage and worsened by coughing or sneezing.

As the applicant worked in radiology, she had organised for herself an MRI of her spine. This showed a spinal cord syrinx extending from the skull base down to the conus, most prominent at C3-C7.

A/Prof Sturm recorded that the applicant’s pain had slowly settled down. She had brisk reflexes, but no weakness or increased tone in the limbs.

A/Prof Sturm opined that the applicant’s syrinx was caused by her traumatic fall when working as a trial horse rider. There had not been any other significant falls or injury, and the MRI of her brain had now [sic: not] shown any Chiari malformation as an alternative cause for the syrinx. It was most likely that she had muscle spasm triggering the recent exacerbation.
A/Prof Sturm concluded that as the applicant did not have any clinical signs of cord compression, the management of her syrinx would be non-surgical. He was to repeat her MRI cord in 12 months and involve a neurosurgeon if it was increasing in size or if she developed any neurological signs in the interim. He was to inform the insurance company of this development and arranged to see the applicant again in 12 weeks.

A/Prof Sturm reported to Dr Nakhla on 7 December 2017. He recorded the diagnoses of left hemifacial spasm following trauma and traumatic spinal cord syrinx. He had injected a small dose of Botox.

A/Prof Sturm noted that the applicant had had a recent fall where she was knocked over by her dogs and landed on her sacrum. Her plain x-rays were ok, but MRI of the lumbosacral spine was recommended.

A/Prof Sturm also reported to Racing NSW on 7 December 2017. He requested approval to continue Botox injections. He also stated, “As previously discussed she also has a traumatic syrinx relating to her work injury” and would need a progress MRI scan in about August 2018.

On 8 March 2018 A/Prof Sturm reported to the insurer that “[A]s previously discussed she has a traumatic syrinx relating to her work injury and will need a progress MRI scan around August 2018”. The applicant also had thoracic and lumbar back pain and would benefit from a physiotherapy assessment.

On 31 May 2018, A/Prof Sturm again reported to the insurer. He noted that “as previously outlined”, the applicant had a traumatic syrinx relating to her work injury that stretched from the upper cervical cord to the conus at the bottom of the cord. He requested approval for progress MRI of the whole of her spine, which would be due in August 2018. He continued to treat the applicant’s facial condition with Botox injections.

Mr Matt Cranney – Physiotherapist

Mr Cranney began treating the applicant in April 2018, after she was diagnosed with a syrinx. He discharged her from his care in September 2019.

Mr Cranney recorded on 27 April 2018 that the applicant had constant pain. The areas of complaint included neck and thoracic pain, “down arms”. The pain could get to 10/10. She also had low back pain down her legs to her ankles and pain in her feet. There were a “few types” of headaches, the first radiating from her neck to her bilateral anterior head, similar to migraine; and the second a sharp sudden pain at her anterior head, that could last one to two minutes and then ease.

Mr Cranney noted that the applicant had been treated by Wayne Embrose [sic: Ambrose] and by physiotherapist Brendan Clark only once, and “nil since finding out about syrinx”. He recorded that she was sore all day at work, had aches in her neck, head/thoracic/chest and right shoulder pain. The pain was constant and could be sharp, varying in intensity. The applicant was still riding horses once a fortnight, and was sore for a few days after, and going to the gym three times a week, depending on her pain.

Mr Cranney recorded the diagnoses of chronic pain elements and syringomyelia. The body chart he completed showed pain at the top of the applicant’s head and from the back of her head down her spine, right arm and legs.

On 2 October 2018, Mr Cranney recorded that the applicant had fallen from a horse the day before, when the horse reared. She had hit her head, and had a headache, was dizzy, tired and had no concentration. She had seen her GP, who did a CT. Mr Cranney recorded WAD (whiplash associated disorder) treatment and concussion education.

Dr Paul Teychenné – Neurologist

Dr Teychenné has been qualified by the applicant and reported first on 4 April 2019.

Dr Teychenné recorded a history of the circumstances of the injury that is broadly consistent with the applicant’s statement. However, he also recorded that as the horse ran back onto the main track, it went right, and the applicant was thrown to the left. She was thrown against the rail, hitting it over her left cheek. She immediately fell to the ground. Her head acutely flexed forward 35 degrees and laterally to the left. As the impact proceeded, she rolled onto her back and her head extended back about 25 degrees. She did not lose consciousness and was not amnesiac. She was subsequently able to concentrate and work things out. She did not have any evidence of TBI (traumatic brain injury).

The applicant told Dr Teychenné that she had scrapes over her left face and over the top of her left shoulder and anterior left thigh. She lay on the ground for about two minutes. When she got up, she was wobbling on her legs, which felt weak flexing down as she walked to the stable.

The “wobbly jelly-like feeling” in the applicant’s legs persisted for three days. When she got up, she noted a generalised tremor from her neck down both arms and her whole torso. Her legs were shaking, which persisted for about 1.5 hours. She noted immediate pain and general stiffness and tightness in the neck, extending down the posterior torso, down both arms, the legs and ankles.

Dr Teychenné recorded that a month after the injury, the applicant noted burning, throbbing, pinching, tightening and pins and needles pain in the neck, across the right upper torso at 7/10 to 8/10 intensity. Six months after the accident, she noted similar symptoms across the left suprascapular region and down over the left torso, particularly extending over the left and right scapula. The intensity of the pain was 5/10. She also noted constant pain, some six months after the accident, extending down the central vertebral column, from the upper thoracic spine into the lumbar spine. This was a dull ache, extending into the sacrum at intensity 4/10, lasting up to a day and occurring about once a week.

Dr Teychenné further recorded that a month after the injury, the applicant noted shooting pins and needles down the medial aspect of the right arm, from the right suprascapular region down the medial arm into the right fourth and fifth fingers. This was a numb aching pain of intensity 7/10. She described it as a burning, pinching pain.

Six months after the accident, the applicant noted shooting, burning, pinching pain down the medial aspect of the left arm of intensity 5/10. Dr Teychenné recorded that she “basically had constant pain over the neck across the left and right suprascapular region down over the right upper chest, as well as down the central vertebral column”. Its intensity was 7/10 to 8/10. She stated it had been constant in the neck since the accident and in the upper torso and down the medial arms since the onset of symptoms in those areas. The generalised tightness that she had in the neck, torso, arms and legs immediately after the accident lasted about one month.

In about mid-2015, the applicant began to develop a tension, dull, throbbing headache of intensity 6/10, extending from the left and right occipitocervical junction over the top of the head to the left and right forehead. The pain occurred every three days, lasting about one hour. She would have episodes when the severity of the pain increased to 9/10 to 10/10. This could last about three days and she felt “locked in bed”. She felt that if she moved, she could cause serious damage in an area over the central T5 to T7 vertebrae.

The applicant did not experience nausea or vomiting and did not complain of marked photophobia or phonophobia with this pain. She noted immediate pain over the right cheek, which appeared to be localised pain as a result of impact over the right cheek (in fact it was her left cheek that she struck). The whole of her upper ribcage felt tight and constricted, as if she was short of breath. This would localise around T3 down to T5, and she first noticed it 12 months after the accident.

The applicant also noted at that time sharp pain over the central lower sternum at T4. She could not breathe. The pain would last two to three days, at intensity 8/10 to 9/10, weekly. The pain extending down the central vertebral column extended to the sacrum at intensity 4/10 and could last a day, occurring every week.

Six months after the accident, the applicant noted shooting, cramping burning pain of intensity 6/10 to 7/10, extending from the lower lumbar spine across both buttocks and down the posterior left and right thighs to the left and right knees. She described it as a severe shooting pain, lasting one hour and occurring about every three days. At the same time, she developed burning, cramping, shooting pain down the posterior thighs from the lumbar spine through the buttocks. There was severe shooting pain for one hour. The pain would then begin to settle down, occurring about every three days.

Dr Teychenné recorded that over the last 10 months, the applicant, when lying on her back or side, would develop a numb, aching throb in the legs, from the knees down the whole of both lower legs and the whole foot. Her legs would throb and ache with pins and needles and when she got out of bed her legs would be weak for about an hour. She felt as though she had thick skin.

Over the last 18 months, the applicant had noted episodes of vertigo, where she was wobbly and could spin. This could last half an hour. A month after the injury she noted weakness in the hands, particularly within the left and right grip. She had constant pain in the neck over the posterior upper torso and noted constant twitching over the left side of the face. She had decreased movement of the left upper and lower lip when smiling. The right side went up, but the left went down. She had noted this since the injury. She also noted a dimple over the mid left cheek.

The applicant described constant twitching in the left cheek and jaw within the second and third divisions of the left trigeminal nerve supply. She began to walk stiffly about two years after the motor vehicle [sic] accident. She noticed increased pain, particularly over the back of the neck, posterior torso, arms and legs, if she was pushing or pulling. If she was sitting for 10 to 60 minutes she noticed increased pain in the neck down the central vertebral column and across the left and right suprascapular region.

Dr Teychenné recorded an extensive examination of the applicant. He noted normal movement of her lumbar spine, with pain in the mid upper chest when flexing over. She had normal movement of her neck, but flexion and extension induced sharp pain. There was a right hemicape decrease in pain and temperature sensation, with decrease in pain sensation over the mid left cheek. This was over the area of impact and probably the result of direct injury to the peripheral trigeminal V2 nerve supply.

The applicant had a glove-and-stocking decrease in pain and temperature sensation extending above the wrist and both mid-calves. There was decreased pain and temperature sensation in her right leg. Touch sensation was normal in her upper and lower limbs. Joint position and vibration were normal in the left and right first, third and fifth fingers and the left and right big toes.

Dr Teychenné noted normal sternomastoid and trapezius power. The applicant’s reflexes were symmetrical 1+, except for brisk 2+ knee jerks. She had +1 of both patella and adductor reflexes. Abdominal reflexes were present and both plantar responses were flat.

Dr Teychenné also noted some weakness in the supraspinatus and deltoid muscles. There was also some weakness in the interossei muscles and in left and right hip flexion.

Dr Teychenné opined that Ms Gillett’s symptoms after she was thrown from the horse were consistent with spinal shock and persisted for 1.5 hours. At the same time, she noted immediate pain and general stiffness and tightness in her neck, extending down the posterior torso down both arms and down the legs to the ankles.

Dr Teychenné opined that the history was quite consistent with the applicant sustaining a spinal cord injury. She described a distribution of pain and paraesthesia consistent with a central spinal cord lesion and her initial spinal cord shock was quite consistent with this. The lesion, based on the symptoms, was within the upper cervical spine.

Dr Teychenné noted the report of the MRI scan of the cervical spine on 17 August 2017. While the syrinx could potentially be traumatic, it was also potentially congenital but not symptomatic until the injury on 10 December 2012, when the applicant’s symptoms were quite consistent with the typical clinical picture in patients who have sustained incomplete cervical spinal cord lesions.

The acute wobbly jelly-like weakness in the applicant’s legs, and tremor in the arms, torso and legs was quite consistent with an immediate injury to the cervical spinal cord. While the syringomyelia was potentially traumatic, it was quite extensive and in Dr Teychenné’s experience traumatic syringomyelia is usually smaller areas of syrinx formation at the site of the injury.

Dr Teychenné reviewed A/Prof Sturm’s report dated 9 February 2017, and his findings. He noted that the syrinx would potentially affect the spinal nucleus of the trigeminal nerve but was less likely to affect the nucleus of the facial nerve. He suspected the applicant had sustained traumatic damage to the branches of facial nerve supplying the orbicularis oris muscle in particular.

Dr Teychenné noted that A/Prof Sturm considered that the applicant had a traumatic syrinx related to her work injury. He concluded that the applicant’s overall clinical picture was consistent with incomplete cervical cord lesion, which is central cord lesion consistent with the central syrinx. He considered her facial palsy could relate to damage to the peripheral facial nerve branches, but he had seen cases of eyelid twitching and even facial nerve spasm as a result of incomplete cord lesion. In Ms Gillett’s case, this could indicate some effect from the syrinx, which extended up to the skull base. She had MRI scan of the lumbar spine on 12 December 2017, with the clinical indication that she had lumbar pain radiating to the buttock, following a fall. She had a known syrinx.

Dr Teychenné noted A/Prof Sturm’s report dated 14 September 2017, and the conclusion he had reached. He reported having reviewed the applicant’s family practitioner notes of various dates, the last one he referred to being dated 23 November 2017.

Dr Teychenné diagnosed an incomplete cervical cord lesion with central syringomyelia extending from the base of the skull into the conus medullaris. He considered that the applicant may have congenital syringomyelia but agreed with A/Prof Sturm that she did not have any other features suggestive of congenital syringomyelia. She did not have hydrocephalus or Chiari malformation. The other causes [sic] for syringomyelia are acquired syringomyelia, which includes spinal cord injury. Dr Teychenné’s concern about acquired syringomyelia was the extent of syringomyelia. However, it may progress, become bigger and elongate over time, which could be consistent with the applicant’s MRI.

Dr Teychenné could not rule out the reasonable proposition that the applicant had localised syringomyelia at the time of the injury, that is, that the injury resulted in a traumatic syrinx within the high cervical spine that subsequently elongated and extended down the spinal cord. He therefore could not exclude that employment had been a main contributing factor.

Dr Teychenné opined that at the time of the applicant’s injury, there had either been the initiation of a traumatic syrinx or decompensation of a pre-existing syrinx, to result in a neurologic syndrome consistent with a central incomplete cervical cord lesion.

Dr Teychenné assessed the applicant with 24% WPI as a result of injury to her spine. He issued a “clarification report” dated 18 May 2020. He opined that the applicant had an aggravation of a pre-existing condition, that is, an acute aggravation of syringomyelia that became symptomatic after the injury on 10 December 2012. “Based on recent SIRA courses”, he opined that it was best to assess Ms Gillett under the spinal system, rather than the DRE system. He therefore assessed 24% WPI.

On 29 September 2020, Dr Teychenné reviewed MRI scan dated 18 December 2019. He agreed with the initial report of Dr Alan Chai regarding measurement of 3 to 3.5 mm of the lobulation at T3/4. Dr Teychenné described it as of significant size. He noted that Dr Chai had amended his report, assessing the maximum diameter as 2.3 to 2.6 mm, assessed in the axial imaging. He described this as quite a significant syrinx. On his assessment of the axial view, there was quite a large syrinx at T3/4.

Dr Teychenné suggested that an independent neurologist assess the size of the syrinx within the different areas, and in particular at T3/4. This does not appear to have occurred.
Dr Teychenné did not alter his conclusions after review of the amended MRI.

On 29 January 2021, Dr Teychenné issued a further “clarification report”. He had reviewed Dr Granot’s report dated 23 August 2020. He referred again to the applicant’s MRI scan reports. He opined that the amended report of radiologist Dr Chai was still in keeping with the report of Dr Melville, who measured the maximum diameter of the syrinx within the upper thoracic spine as 3 mm. He also measured the maximum diameter of the syrinx within the cervical spine as 3 mm. Based on Dr Chai’s amended report, the maximum diameter of the syrinx was still above 2 mm, which was quoted by Dr Granot as being borderline for calling it a syrinx.

Dr Teychenné noted Dr Granot’s reference to hydromyelia (abnormal widening of the central canal). He reported that it was sometimes used interchangeably with syringomyelia. The former is almost always associated in infants and children with hydrocephalus or birth defects such as Chiari Malformation II and Dandy-Walker syndrome. Syringomyelia occurs primarily in adults, the majority of whom have Chiari Malformation I or have experienced spinal cord trauma symptoms.

Dr Teychenné opined that, regardless of the debate of differentiation between syringomyelia and hydromyelia, the long distribution of the central syrinx in the applicant from C3 to lower T11, as well as the size of the syrinx at minimum T3/4 being 2.3 mm to 2.6 mm indicates that the likely diagnosis is that she has syringomyelia.

Dr Teychenné considered that the MRI scan findings were quite consistent both with the applicant’s symptoms and clinical signs elicited on examination on 4 April 2019. The lobulated appearance was consistent with syringomyelia, rather than hydromyelia. He disagreed with Dr Granot that the applicant’s initial injury was relatively mild.

Dr Teychenné considered that the applicant sustained a significant injury and probably exacerbated a pre-existing syringomyelia, resulting in a gradual development of symptomatic syringomyelia after an initial episode of spinal shock. The fall on 10 December 2012 was the primary cause of her “current clinical picture”.

Dr Ron Granot - Neurologist

Dr Granot was qualified by the respondent and reported first on 31 July 2019.

Dr Granot recorded a consistent history of the injury. The applicant recalled the fall and being on the ground, and that she did not lose consciousness. She lay on the ground for a few minutes and walked to the stable. She felt facial pain and unsteady. She went home and noted increasing left facial pain and swelling, as well as general shakiness, tightness and soreness. She saw her GP and imaging excluded a fracture. She noted facial twitching a few months later, and perhaps weakness of the face.

Dr Granot noted that a month after the incident, Ms Gillett began to note mid-scapular back pain, which worsened over time, including during her pregnancy. She began to note paraesthesia in her arms, perhaps six months post-incident, radiating down the medial arm forearm and hand.

The applicant told Dr Granot that the pain had increased progressively “(it is certainly much more severe now and was not severe at or around onset)”. She found it difficult to sit up straight and complained of weakness in her lower limbs, aching feet and morning stiffness. She also had difficulty from pain or weakness in lifting or reaching up. The applicant described stabbing or sharp interscapular pain, radiating anteriorly across the lower chest. There was also burning and formication, as well as a pressure sensation at times, in those areas and in her hands and feet. She denied significant issues with mobility, avoiding prolonged standing due to pain. Sitting and especially lying was very painful, worse with coughing.

Dr Granot noted that the applicant arranged the original MRI, as she was noting back symptoms and seeing her GP for assessment, without further testing.

The applicant was being treated by A/Prof Sturm with Botox for hemifacial spasm. She was having fortnightly physiotherapy but was wary of taking anti-neuropathics such as Lyrica. A neurosurgical review was discussed but had not been pursued as the syrinx had remained unchanged. The plan was to monitor it with regular MRI and review.

Dr Granot recorded complaints of significant pain, with baseline 7-8/10, up to 9-10/10, with exacerbation and reduced mobility every few months, as well as impaired upper limb movements related to pain. Stabbing was triggered by Valsalva, sleep was disturbed and rolling was limited. Facial spasms were intermittent and not of great concern with her current therapy.

Dr Granot recorded his findings on examination. The applicant had intermittent left contraction of the orbicularis oculi and cheek muscles. There was mild weakness of the left side of the face and mouth, which she said pre-dated the Botox therapy. She had reduced sensation to pinprick in her hands and feet, at the wrist and ankles, but examination was otherwise unremarkable. Movement was limited by pain but was all in normal [sic].

Dr Granot noted investigations, including MRI of the whole spine dated 6 August 2018, MRI of the brain dated 20 February 2017 and MRI of the cervical and thoracic spine dated 17 August 2017. With respect to the MRI dated 6 August 2018, he has recorded his measurements of the cervical and thoracic spines.

Dr Granot opined that the MRI showed a prominent central canal and is at the borderline for being described as a syrinx. The injury the applicant sustained was not a spinal injury. It is extremely unlikely that it was associated with an epidural or subarachnoid haematoma. Therefore, the syrinx, if it is to be called that, could not have occurred following such a minor trauma. Dr Granot did not feel that the applicant’s symptoms are clearly related to the underlying MR abnormality, which he felt had no connection to the injury on 10 December 2012. His diagnosis was no injury-related spinal abnormality.

Dr Granot diagnosed the applicant with left hemi-facial spasm. Her back pain and limb symptoms did not have a clear underlying cause. He opined that the mechanism of injury was not significant enough to have been able to cause a post-traumatic syrinx. Such a syrinx would be seen after a spinal cord injury or rarely, after a significant spinal haematoma related to an injury. The latter would be expected to present with severe localised pain, maximal at onset, which is not consistent with the history; and the former is not possible, given that the applicant arose and walked away from the accident. Therefore, this was not a post-traumatic syrinx, but was developmental. Dr Granot also pointed to the borderline measurements and suggested this may be a prominent central canal and only borderline a syrinx at all.

Dr Granot opined that the development of symptoms for a post-traumatic syrinx ranges from six months to many years, although it usually develops under five years from a spinal cord injury. He reiterated that the applicant’s symptoms are unlikely related to the borderline central canal and regardless, her injury was not substantial enough to have possibly caused a post-traumatic syrinx. He did not feel that she had definite syringohydromyelia, and it cannot be causally related to the incident of 10 December 2012. As there was no spinal injury or abnormality related to the incident, no permanent impairment was relevant.

Dr Granot has provided a further report, dated 23 August 2020. He recorded a history that was consistent with his first examination of the applicant. She found it difficult to sit up straight, as well as complaining of weakness in her lower limbs, aching feet and morning stiffness, with onset within the first 12 months. Her complaints were essentially unchanged.

On examination, Dr Granot found intermittent left contraction of the orbicularis oculi and cheek muscles, less frequent than before, and mild weakness of the left side of the face and mouth. The applicant had no definite distal sensory change and no cape-like loss or change over the back or spine, but perhaps reduced sensation to pinprick in her hands, compared to her feet. Her gait was of normal base. Her reflexes were normal, not brisk, with downgoing plantars. She had normal upper and lower limb power, with perhaps mild give way weakness of right finger abduction, but with encouragement, all power was within normal limits, when at times limited by pain.

Dr Granot had an MRI of the cervical spine, dated 18 December 2019, which he noted was updated since his last report. It was reported as showing a stable central syrinx throughout much of the cord. The appearances were stable and unchanged from studies on 18 February 2019 and 31 July 2019.

Dr Granot spoke to Dr Chai to clarify the size of the syrinx, which was reported as being above 3 mm. He concurred that the maximum dimensions of the syrinx, when measured on the axial, were only 2 to 2.6 mm.

Dr Granot referred to two major issues in reviewing the applicant’s case and Dr Teychenné’s assessment and opinion dated 18 May 2020. He noted that the diagnosis of a post-traumatic syrinx had been abandoned, as he initially discussed in his report that it could not have been the case, given the relatively mild initial injury.

Dr Granot opined that the diagnosis of syrinx relies on diameter measurements greater than 2 mm. Up until the MRI of 2019, there was no measure that was beyond this, or perhaps only fractionally so. The recent MRI stated dimensions of 3 mm to 3.5 mm, although when he measured it, he noted only 2 mm. Dr Chai concurred that the maximum diameter of the lesion was still around 2 mm to 2.5 mm, which is at the borderline of calling it a syrinx.
Dr Granot remained sceptical as to the link between the prominent central canal/borderline syrinx, and whether it could be symptomatic at all. He noted that Dr Teychenné described the syrinx at a maximum diameter of 2 mm, “so there is no argument in this regard”.

Dr Granot described a “grey area” of definition in the 2 mm to 4 mm area, between what is termed hydromyelia (expanded central canal) and syringohydromyelia (abnormal fluid filled cyst in the spinal cord). He quoted from an article that states patients with hydromyelia (regarded by many authors as a preliminary stage of syringomyelia) have a central canal that is typically linear and fusiform, with a maximum diameter of 2 mm to 4 mm on the axial plane, usually decreasing with age. He still questioned whether the lesion observed on MRI was pathologically related to the applicant’s presenting symptoms at all.

Dr Granot opined that Dr Teychenné’s assessment of WPI relied on physical findings with which he did not agree. He recommended that a pain specialist be involved in the applicant’s care, given her ongoing and significant symptoms.

On 24 February 2021, Dr Granot provided a further report, having reviewed Dr Teychenné’s report dated 29 January 2021 and the Wyong Family Medical Practice notes from 3 December 2012 to 24 December 2020. It appears that Dr Granot has in parts cut and pasted excerpts from Dr Teychenné’s report and interposed his comments. The font is different, so the report is reasonably easy to understand.

Dr Granot stated the dimensions of transition from syrinx to hydromyelia are generally agreed to be 2 mm. The measurement is just above this range, and not 3 mm to 4 mm, as previously implied. He is confident that the dimensions are approximately 2 mm or slightly above.

Dr Granot disagreed that hydromyelia is a definite pathological entity that necessarily progresses to become a syrinx. The majority of these patients are detected incidentally and by definition no symptoms are attributed to their prominent central canal. He did not believe that the “NIH information page”, from which Dr Teychenné has quoted, and which is intended for patients, contributes to the argument.

Dr Granot noted that Dr Teychenné had not read the article to which he referred, so was unclear how he could comment that 4 mm was on the very high side for widening of the central canal. Dr Teychenné had also opined that the long extension of the syrinx was far more consistent with syringomyelia than enlarged central canal. Dr Granot responded that he had seen prominent central canals being variable in size, so he disagreed with this as a diagnostic criterion.

Dr Teychenné described the mechanism of the applicant’s injury, which he considered more than just a relatively mild initial injury. He added that trauma is a known factor in exacerbating and even causing syringomyelia.

Dr Granot responded that mechanistically speaking, a syrinx can be post-traumatic, but this occurs after significant spinal trauma. One would expect to find an epidural haematoma in the spinal cord, or other significant markers of severe injury to the spine, such as fractures. He does not dispute that Ms Gillett had a “significant” injury, but rather this was not a significant spinal injury in the medical sense. She did not lose consciousness, again suggesting the level of force was not severe in the medical sense.

Dr Teychenné described the history taken by Dr Granot that the applicant was shocked and wobbly as being quite consistent with spinal shock. Dr Granot responded that “spinal shock” as a medical diagnosis implies cessation of function of the spinal cord. Walking from the accident clearly points away from this. Feeling unsteady is a common symptom after most accidents, is highly non-specific and by no means diagnostic of a condition as serious as spinal shock. He quoted from an article: “…Spinal shock occurs only with physiologic or anatomic transection or near transection of the spinal cord.”

Dr Teychenné had opined that the applicant probably exacerbated a pre-existing syringomyelia, resulting in a gradual development of a symptomatic syringomyelia after an initial episode of spinal shock. Dr Granot responded that the question raised in this statement is whether the condition was pre-existing or not. If it was, then development of symptoms at least a month after the accident may indicate this was a natural progression of the underlying disorder, as opposed to a post-traumatic injury.

Dr Granot noted that the GP’s records made no mention of pain or weakness throughout recent entries. He noted the record of a fall from a horse on 2 October 2018, when the applicant had “no neuro symptoms?signs”, which he assumed meant “symptoms/signs” and which is entirely out of keeping with someone with an active and symptomatic syrinx, who is already reported to have symptoms and signs.

Dr Granot also referred to the entry in the records on 25 January 2017, when no symptoms other than facial symptoms were described. He opined that these raise doubt as to the severity of the reported neurological symptoms affecting the limbs and trunk.

Dr Granot concluded that the injury was not a severe spinal injury to potentially cause a post-traumatic syrinx, as was previously proposed. An exacerbation of an underlying disorder is possible, but the timing (at least a month post-injury) suggests this could easily be natural progression. Spinal shock refers to significant dysfunction of the spinal cord, such that the patient is paraplegic or quadriplegic temporarily. This was clearly not the case.

The syrinx is borderline and unlikely to cause the motor symptoms ascribed to it. Dr Granot did not find motor signs to support this. His previous report stated that the dimensions can be seen as a normal (non-pathological) widening of the central canal. The absence of noted limb or trunk neurological symptoms described to the GP raises doubts about their severity.

Dr Granot confirmed his opinion that this was unlikely a post-traumatic syrinx, the injury was not likely the cause of any possible exacerbation of an underlying disorder, and the severity of the symptoms is cast into further doubt by the GP’s notes.

SUBMISSIONS

The submissions have been recorded and a transcript is available. I have therefore not reproduced them in full. However, I have had regard to them in making my determination.

Respondent

The respondent submitted that there is no doubt that the applicant had an injury on 10 December 2012. That is nearly 10 years ago, and what I need to decide is essentially causation in respect of complaints that are first being made in about 2017 or 2018.

The respondent referred to the applicant’s statement evidence and submitted it is inconsistent with the clinical records. If I cannot accept the contemporaneous complaints of pain in those specific regions of the spine, the applicant’s case falls away, particularly the opinion of Dr Teychenné. There is a difficult medical dispute between Dr Granot and
Dr Teychenné, but Dr Granot has a full picture of what’s going on.

The respondent submitted that the history taken by Dr Granot is contrary to the history given in the applicant’s statement, but she then gave a history that is consistent with the one she gave Dr Teychenné. This may be a credit issue or a time issue, given that this was some seven or eight years post the incident, but there is no mention of those symptoms a month, or years, after the incident.

The respondent submitted that, having reviewed the MRI scans, Dr Granot said firstly that the MRI showed prominent central canal and it is at the borderline for being described as a syrinx. This is the medical argument between Dr Granot and Dr Teychenné. Dr Granot, on balance, doesn’t believe what is being seen on the scans can actually be described as a syrinx, while Dr Teychenné says it is. If I am not satisfied the applicant actually suffered a spinal injury in any way, shape or form in the December 2012 incident, the respondent submitted that the rest becomes academic and I “don’t really need to go there”.

The respondent referred to Dr Granot’s evidence of what would be expected to follow the injury had the applicant injured her spine in the fall. It submitted that he had discussed with the radiologist the size of the syrinx, and the whole contention of the syrinx was abandoned. He disagreed with Dr Teychenné’s examinations and conclusions.

The respondent referred to Dr Granot’s final report and submits that he “smashes” the theory that a post-traumatic syrinx immediately followed or developed after this fall, for a number of reasons, not the least of which is the fall wasn’t as traumatic, there were no symptoms immediately following it, and the lack of complaints about those body parts.

As to the applicant’s alternative argument, that this is an aggravation of an underlying developmental or developed constitutional syrinx, the respondent submitted that “there’s not a skerrick of evidence” to suggest it predated 2017, let alone 2012. It’s occurred in some circumstances, the onus of which is on the applicant to prove.

The respondent referred to Dr Granot’s opinion that if the syrinx was pre-existing, the development of symptoms at least a month after the accident may indicate a natural progression of the underlying disorder, as opposed to post-traumatic injury. It submitted that is because the applicant said she was getting symptoms a month after December. That may be so but is not borne out by any of the contemporaneous material.

On the question of the time between the onset of symptoms and the injury, the respondent submitted that there are many cases dealing with this. It referred to the decision of Deputy President Roche in Brasz v Department of Ageing, Disability and Home Care [2009] NSWWCCPD 62. There was criticism in that case because it was four weeks post injury that certain symptoms came on.

The respondent submitted that if medical practitioners have based their opinions on a false history or one that cannot be corroborated by the available contemporaneous medical evidence, the opinions are totally compromised and offend Makita v Sprowles and Hancock v East Coast Timbers (Makita (Australia) Pty Ltd v Sprowles [2011] NSWCA 305 (Makita); and Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 (Hancock)) as not being opinions based on a fair climate. The respondent made that submission in this case.

The respondent submitted that the reports of A/Prof Sturm don’t add anything to the case, and it rises or falls on Dr Teychenné alone. It submitted that in his report dated 9 February 2017, A/Prof Sturm did not refer to any problems with the applicant’s neck, shoulders, arms, legs, back et cetera. The obvious submission that could be made against this is that she was going to him for the facial problem, but he is a qualified neurologist. If the applicant was experiencing or had experienced problems in her spine or shoulders, or any of those parts, even if she had no idea what they were, she would have been expected to tell him about that.

The respondent submitted that in March 2018, A/Prof Sturm simply said “As previously discussed, she has a traumatic syrinx related to her work injury…”, but there’s no discussion about this, “it comes out of the blue” and is an ipse dixit. There is no discussion as to why this is related to the injury. In May 2018 he said “As previously outlined…”, so it’s the same comment without any explanation or reasoning at all. It is essentially left at that and then
Dr Teychenné picks up in April 2019.

The respondent submitted that the history of the injury and the applicant’s symptoms recorded by Dr Teychenné was completely at odds with the clinical records, to which
Dr Granot had access. It submitted that the applicant doesn’t rely on any other contemporaneous reporting or other reports from the GP. Without that evidence, the respondent submitted that I must either reject or pay no proper attention to that history because it is of such a dramatic nature as to cause Dr Teychenné to arrive at his opinion that the syrinx is primarily post-traumatic. Dr Teychenné has referred to his assessment of the clinical notes, but we don’t know which ones they were. The respondent submitted that I would not be satisfied that Dr Teychenné expressed his opinion in a fair climate.

The respondent referred to the Claim Form, which is dated 25 January 2017, well within the period of four or five years where the applicant told Dr Teychenné that she had throbbing, burning and problems with her cervical spine and spine generally, but the only part of the body that was injured was the left side of the face with a minor injury to the left knee/right thigh.

The respondent submitted that I would reject the reports of Dr Teychenné and once I do, that’s the end of the case. There is a “throwaway line” by A/Prof Sturm and his opinion on this part of the case is not to be accepted, as an ipse dixit.

In reply to the applicant, the respondent submitted that her last submission was the gravamen of its case. It’s not a matter of a checklist, but a matter of whether I accept that any of those dramatic complaints that Dr Teychenné has recorded the applicant says began almost immediately after the fall in 2012 can be accepted in the absence of any evidence that supports it, other than her statement some seven years post the injury.

The respondent submitted that if the applicant made those complaints to the GP and they were not recorded, the GP should have provided a report to that effect and that is then a matter of evidence, but there is nothing between 2012 and 2017.

The respondent further submitted that it appears that not all of A/Prof Sturm’s reports are in evidence. There was reference in his report of 7 December 2017 to a fall recently where the applicant was knocked over by her dogs. It was recommended that she have an MRI of the lumbar spine.

As regards any referral to a Medical Assessor, the respondent did not concede that it should be in the terms submitted by the applicant, submitting that in the Application it’s “just simply cervical spine and thoracic spine” and that is what I would be referring, but it is entirely up to me how I characterise the injury as pleaded.

Applicant

The applicant referred to the report of Dr Melville of the MRI of her cervicothoracic spine and the description of pain in the mid-thoracic spine, extending to right and right arm. We don’t know what the history is, but this is about the time she was referred to A/Prof Sturm because of the continuing issue with her facial injury. So by August 2017 there is a diagnosis, at least by the radiologist, of syringomyelia in both the cervical and thoracic spines.

The applicant submitted that while she had another fall in 2018, the reality is that she already had the syringomyelia and her case is that either the fall caused the development of the syrinx or in the alternative, if she already had it, it was an aggravation, exacerbation, deterioration or acceleration of the disease process.

The applicant referred to Dr Granot having said the post-traumatic syrinx has been abandoned. She submitted that it hasn’t been abandoned. Dr Granot reported that the time for the development of symptoms from a post-traumatic syrinx ranges between six months and many years, although they usually develop under five years from a spinal cord injury. The fall was in 2012 and pain in her shoulders came on after six months and from about 2015/2016 her neck and back pain became a lot worse. This sits almost completely within the timeframe for the development of this issue for her.

The applicant referred to Dr Granot’s description of a minor injury. The horse was described in the Claim Form and clinical notes as a galloping horse, where she goes in one direction and the horse goes in one direction and she is thrown off – she doesn’t just fall off – face first into a railing, hitting the left side of her face. She submitted that velocity was in play, the horse was galloping, and she was thrown off onto a solid object and the ground.

The applicant submitted that Dr Granot made a concession when he reported that he did not dispute that the applicant had a “significant injury”, but not a significant spinal injury in the medical sense. He referred to her not having lost consciousness. A person can be thrown against something and not hit her head.

The applicant submitted that in his final report Dr Granot made several concessions. He agreed with Dr Teychenné that the transition from hydromyelia to syrinx is 2 mm but is still attached to the idea that you can only have a true syrinx if it’s between 3 mm and 4 mm. That is against the weight of the evidence from the radiologist and Dr Teychenné. Dr Granot agreed that a syrinx can be post-traumatic. He doesn’t really answer the question of whether the pre-existing condition could have been exacerbated.

The applicant submitted that Dr Granot mentioned the fall on 2 October 2018 but by then she had been well and truly diagnosed with this syringomyelia, and there is medical agreement that there is no congenital condition that has caused it. We are dealing with one of the known causes of syringomyelia, which is trauma of the spine.

The applicant submitted that this is an unusual matter. It’s not just a fall where she has claimed whiplash or a lumbar spine disc injury. It’s about the development of something that might take years to develop, or she might have had a smaller syrinx that has elongated over time as a result of the trauma. The fall in 2018 is a “red herring” because it came well after the MRI in 2017 that shows the extent of the syrinx. The applicant submitted that I would be satisfied on the balance of probabilities that this was a significant fall where she was thrown against the ground.

The applicant further submitted that I would be satisfied on the basis of the MRIs, and even Dr Granot says it takes years for these things to develop to a point where they are problematic. She doesn’t have an issue with what the respondent has pointed out in the clinical notes, but she appears to be quite stoic. She endured five years of facial problems so it’s not surprising that she was enduring other issues she might be experiencing, and not complaining. She didn’t even make a work-related claim at the time, even though she was entitled to. It is important to look at her particular circumstances.

The applicant submitted that Dr Teychenné is probably the first person who actually queried her about all her symptoms in trying to work it all out and that should not be held against him. Simply because the clinical notes don’t reflect that does not mean it’s not the situation and there is no reason why I wouldn’t accept the applicant. It isn’t a credit issue.

The applicant submitted she was sent to A/Prof Sturm in February 2017. The respondent suggested she was seen before and that is quite possible. The GP’s notes indicate that she was referred to A/Prof Sturm on 25 January 2017, and it was specifically in relation to her face. He noted facial weakness and asymmetry. He noted that she had a traumatic injury and wrote to Racing New South Wales for approval for MRI and MRA of the brain. There is nothing in the notes to show she complained about that, but one would imagine she was only sent off for that because she made a complaint and that’s recorded in the clinical history of the MRI. So even though it is not necessarily reflected in A/Prof Sturm’s reports, the applicant submitted that clearly she complained about these things, and by 8 March 2018, he says “As previously discussed…” This was with the injury manager at Racing New South Wales.

The applicant referred to the respondent’s submission that A/Prof Sturm’s report was a bare ipse dixit. She submitted that it’s not a medicolegal report, it’s a treating doctor’s report to an injury manager and based on an MRI that has confirmed syringomyelia. He is a neurologist and conjoint A/Prof at the University of Newcastle, so I can’t just dismiss him out of hand and say it’s a bare ipse dixit as he doesn’t analyse. He hasn’t been asked to. The applicant submitted this is a report by someone who has the relevant credentials to make the diagnosis and he makes the diagnosis.

The applicant referred to the clinical notes and conceded that the respondent was correct in saying there is really no entry in relation to painful body parts other than her face until 25 January 2017. On 4 May 2017, there is the entry about left shoulder and chest pain. She had a slight cough. She could not submit that this was in relation to syringomyelia, but she had no other symptoms of flu. She had previously been told she’s got a murmur, so it could be that, but it could also relate to the development of symptoms as a result of the syringomyelia. This is consistent with what Dr Granot said about the five-year period.

The applicant submitted that the entry in the clinical notes on 11 August 2017 was consistent with the fact there was a cervicothoracic syringomyelia evident on the MRI. There was already evidence of the syringomyelia when there was a fall, one week before the entry on 23 November 2017.

The applicant submitted that she had a significant fall, described shakiness and unsteadiness and it’s accepted that would probably be the case. Dr Teychenné described it as spinal shock. Dr Granot said it was not, as spinal shock is really about quadriplegia or paraplegia that is temporary. We know her body was thrown against an immovable oppositional force. She had a significant facial injury with spasms going on for years afterwards. This injury isn’t observable because it’s something that develops over a period of time.

The applicant then made submissions about Dr Teychenné ’s reports. The respondent criticised Dr Teychenné by saying Dr Granot looked at the clinical notes but Dr Teychenné referred to having reviewed them. He has picked out some entries, but that doesn’t mean he hasn’t looked at all of them and in fact suggests the opposite. He has not only had A/Prof Sturm’s reports sent to him but goes into some detail about them. He also had the radiological investigations.

Dr Teychenné “ticks the boxes” in respect of expert opinions and the requirements in Hancock and Makita. His opinion is in a fair climate; he did have all the information; and he did what other practitioners, and notably Dr Granot didn’t, in that he drills down and asks questions, despite the fact that it’s not necessarily in the clinical notes.

The applicant submitted that on the balance of probabilities I can accept Dr Teychenné’s opinion. He opined that in the absence of congenital syringomyelia, the other causes are acquired syringomyelia, which includes spinal cord injury. His concern about acquired syringomyelia was the extent of the syringomyelia, but he said it may progress, become bigger and elongate over time, which would be consistent with the MRI scan. He would not rule out that the injury resulted in a traumatic syrinx within the high cervical spine that subsequently elongated and extended down the spinal cord. He therefore could not exclude that employment was a main contributing factor to that exacerbation, aggravation, deterioration or acceleration.

The applicant submitted that Dr Granot didn’t really go into her symptoms or carry out an examination of the kind performed by Dr Teychenné because he completely focused on whether or not she had a syrinx and on the canal size, as opposed to actually examining her and seeing whether her symptoms were consistent with syringomyelia.

The applicant submitted that the way in which she is to be assessed is a matter for the AMS [sic]. If I am satisfied there’s been an injury, it’s an injury to the cervical spine and thoracic spine but in the form of a syringomyelia and is either the development of that syringomyelia or aggravation et cetera of the syringomyelia.

The applicant submitted that Dr Teychenné had reviewed Dr Chai’s amended MRI and reported that it did not alter his conclusions in relation to the syrinx. He accepted that the size of the syrinx was probably 2.3 to 2.6 mm, which he opined was a significant and large measurement. She submitted that Dr Granot could be said to be “fast and loose” with the measurements as he said they were only 2 mm, yet when Dr Chai amended his report it was above 2 mm. Dr Granot also reported that many authors regard hydromyelia as a preliminary stage of syringomyelia.

The applicant submitted that one must be cautious in accepting Dr Granot’s opinion, which is so firm until the final report, where he started to make concessions. He did not ultimately grapple with the question of a pre-existing condition and whether there’s been aggravation et cetera. The applicant submitted that I would prefer Dr Teychenné’s report because he grapples with these issues. He described the types of symptoms that are typical of syringomyelia. He also gave information about the difference between syringomyelia and hydromyelia and said that regardless of the debate about differentiation, the likely diagnosis is that Ms Gillett has syringomyelia.

The applicant referred to Dr Teychenné’s opinion that the fall from the bolting horse on 10 December 2012 was the primary cause of her current clinical picture. She submitted that in his first report, he used the words main contributing factor.

The applicant submitted that I would be satisfied on the balance of probabilities that there was an injury, the injury was in the nature of either a syringomyelia or an aggravation, et cetera, of that pre-existing syrinx and that the symptoms from which she now suffers are caused by that injury to the cervical spine, and which extends from the cervical spine to the thoracic spine, and therefore both body parts are involved.

The applicant submitted that her symptoms were generalised muscle weakness and muscle pain. It was not radiculopathy. She might not have discussed it with her GP and the focus initially for her, at only 19 years of age, may well have been her face. Even after such a significant fall and injury to her face, she didn’t get a lot of treatment until five years later, when it was still bothering her. The “usual checklist may just not apply in this particular type of case”.

The applicant finally submitted that, if I were to find in her favour, the medical dispute should be referred to a Medical Assessor for assessment of WPI with respect to injury to the cervical and thoracic spines in the form of a syringomyelia.

SUMMARY

The applicant claims to have sustained injury to her cervical and thoracic spine, that is the development of a syrinx, as a result of being thrown from a horse on 10 December 2012. In the alternative, she claims that the injury resulted in the aggravation, exacerbation and/or acceleration of an underlying disease condition, that is, a syrinx. I will refer in these reasons to “aggravation”, for convenience.

The respondent disputes that the applicant sustained any injury to either her cervical spine, her thoracic spine or her spine generally on 10 December 2012. If the applicant did not sustain such injury, then she is not entitled to payment of medical expenses for treatment of her spine; and the dispute as to her claim for WPI is not to be referred to a Medical Assessor.

Section 4 of the 1987 Act provides:
“In this Act--

“injury” --
(a) means personal injury arising out of or in the course of employment,
(b) includes a
“disease injury”, which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The applicant reported the injury when it occurred, and liability for her facial injuries has been accepted. Her evidence is that she went to her doctor, who gave her a few weeks off riding, and she did light duties at work.

Dr Giles recorded on 13 December 2012 that the applicant had fallen from a galloping horse two days before and hit the fence. She had left facial paralysis and cheek swelling, and was sent for x-ray of her facial bones and CT. There is no reference to any other complaints at this stage, but the applicant has stated that her legs were wobbly and later her neck, shoulders, back, arms and legs were sore. She has not given evidence of how much later this occurred, but Dr Granot has recorded the period as being about one month.
Dr Teychenné has also recorded the onset of significant symptoms at that time.

In her second statement, the applicant stated she had neck and mid-back pain from the time of the fall, but from about 2015/2016 it became a lot worse. She also developed pain in her right shoulder, under her right arm and in her chest and ribs. She had attended her GP multiple times in the lead up to her diagnosis, but was dismissed.

The applicant did not refer in her Claim Form to injury to her neck in the fall. However, she may not have been aware that she had injured her neck, given the insidious nature of the condition. The Claim Form was completed in January 2017, before the MRI that was reported as showing a syrinx. At that stage, she was concerned about facial symptoms, which was why she sought to have her claim re-opened and sought treatment from
A/Prof Sturm.

The applicant’s attendance at her GP “multiple times” does not suggest, as was submitted on her behalf, that she was stoic. Rather, her evidence is that she did complain about symptoms other than those related to her facial injuries, but her complaints were dismissed. There is no reference to these symptoms in the clinical records of Wyong Family Practice in either 2015 or 2016, when the applicant claims her neck and mid-back pain became worse.

This is, however, a case in respect of which the clinical records are of limited assistance. The development or aggravation of a syrinx, if such is the applicant’s diagnosis, may take some time. Dr Granot, while he does not accept that the applicant has a syrinx, reported that the condition may take many years to develop, although it usually occurs within five years. It was in August 2017 that the applicant underwent an MRI that was reported as showing a syrinx. This was just under five years after the injury. There is of course no way of knowing how long the abnormality existed before it was revealed by the MRI.

The applicant gains some support for her evidence that her complaints were dismissed from the history recorded by Dr Granot that she arranged the MRI by Dr Melville because she was noting back symptoms and seeing her GP for assessment, without further testing. She must have been sufficiently troubled by symptoms to take the initiative to arrange this investigation.

The clinical records do note that the applicant complained of pain under her right armpit and shoulder blade, symptoms to which she has referred in her statement, on 25 July 2017; and in her right shoulder blade into the right side of her neck on 11 August 2017. While Dr Nakhla has not recorded that these symptoms were related to the injury, that may be explained by the fact that at that stage she did not know about the diagnosis of a syrinx, or that it may be related to the fall. She simply recorded that the applicant had these generalised symptoms.

The respondent submitted that A/Prof Sturm’s evidence was an ipse dixit. Neither party referred me to his report dated 14 September 2017. He diagnosed the applicant’s condition as a traumatic spinal cord syrinx. He has provided his reasons for this conclusion, noting the applicant had no other significant falls or injury and she had no Chiari malformation. As the applicant submitted, the fall in October 2018 post-dated the MRI in August 2017 and the diagnosis of a syrinx. A/Prof Sturm opined that it was most likely that the applicant had muscle spasm that triggered the recent exacerbation. The fall when she was knocked over by her dogs also post-dated the diagnosis.

I do not accept that A/Prof Sturm’s evidence is an ipse dixit. His subsequent reports are brief, but he has clearly addressed the diagnosis in his first report after the MRI in August 2017 became available. He had an accurate history of the circumstances of the injury, and in fact the history he recorded on 9 February 2017 suggests a slightly less serious scenario, with a fall from a horse, versus being thrown by it. He had access to the MRI and noted that the applicant had no relevant congenital abnormality.

There is a fundamental difference of opinion between Dr Teychenné and Dr Granot as to the diagnosis of the applicant’s condition. Dr Teychenné accepted that Ms Gillett has a syrinx, which was either caused or aggravated by the injury. Dr Granot opined that the MRI showed a prominent central canal and was at the borderline for being described as a syrinx at all.

I believe it is necessary for me to determine firstly whether the applicant has a syrinx. If she does, it is feasible that it may have been some time after the injury that she began to complain about symptoms related to the syrinx. If I find that the applicant has a syrinx, then the question to be considered is whether it was caused or aggravated by the injury on 10 December 2012.

On balance, I am satisfied that the applicant’s condition is in fact a syrinx.

The MRI on 17 August 2017 was reported by Dr Melville as demonstrating a syrinx extending through the cervical and upper thoracic spines. Its diameter in both areas was reported as a maximum of 3 mm. Dr Melville described the syrinx as “presumably post-traumatic given the history”. Dr Granot reported that, after discussion with Dr Chai, the maximum diameter of the lesion was around 2 mm to 2.5 mm, but Dr Melville’s measurements were higher.

A/Prof Sturm, who has treated the applicant for several years, and is well qualified to assess her condition, accepts that she has a post-traumatic syrinx. I have afforded his opinion particular weight.

The nature of the applicant’s condition is such that, consistent with the decision in Masonv Demasi [2009] NSWCA 227 (Demasi), inconsistent accounts that may have been given to health professionals need to be approached with caution.

In Demasi, Basten JA stated that the following are relevant considerations in this circumstance:
“(a)    the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b)     the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c)     the record did not identify any questions which may have elucidated replies;
(d)     the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e)     a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”
Dr Teychenné recorded a fuller history of the injury than the applicant has provided in her statement. This may be because he asked specific questions about the mechanism of the injury and what happened after Ms Gillett was thrown from the horse. He noted that the horse went right, and she was thrown to the left, against the rail. Her head acutely flexed forward 35 degrees and laterally to the left. As the impact proceeded, she rolled onto her back and her head extended back about 25 degrees.

There is controversy between Dr Teychenné and Dr Granot as to whether the applicant’s spinal lesion is sufficiently large as to be classified as a syrinx. However, even Dr Chai’s amended measurement is from 2.3 mm to 2.6 mm, with Dr Granot describing the range of
2 mm to 2.5 mm as at the borderline for calling the condition a syrinx. Dr Chai still commented “Stable central syrinx throughout much of the cord as described” and referred to the condition as a syrinx elsewhere in his report.

Dr Granot opined that the dimensions of transition from syrinx to hydromyelia are generally agreed to be 2 mm. The measurement was just above this range, so it would appear that
Dr Chai’s amended measurement does not rule out that the applicant’s condition is in fact a syrinx.

Dr Granot does not accept that the applicant has a post-traumatic syrinx because she did not sustain a severe spinal injury in the fall from the horse. He did not dispute that she had a significant injury but disputed that she had a significant spinal injury. Dr Teychenné disagreed.

The circumstances of the injury were clearly significant. The applicant was thrown from a galloping horse that had been “spooked” and had bolted. She stated there was no stopping the horse and attempts by others to help her only served to further spook the animal. She went face first into a metal rail. She “eventually” stood up and felt sore everywhere. Her face felt very hot and her legs were wobbly. Later her neck felt very sore, her face was swollen and her shoulders, back, arms and legs were sore.

Dr Granot described the level of force involved in the fall as not severe in the medical sense. Both A/Prof Sturm and Dr Teychenné were of the opinion that the applicant has a post-traumatic syrinx. They must therefore accept that the fall was sufficient to cause trauma to her cervical spine. She struck her face with some force, and I accept that her head would have been flexed, as recorded by Dr Teychenné. I prefer the evidence of A/Prof Sturm and Dr Teychenné that the applicant has a post-traumatic syrinx, either caused by the fall or pre-existing and aggravated by the fall.

Dr Granot has referred to the diagnosis of post-traumatic syrinx as having been abandoned, but A/Prof Sturm has not abandoned it. Dr Teychenné appears to have finally come to the conclusion that the applicant probably exacerbated a pre-existing syringomyelia, resulting in a gradual development of symptomatic syringomyelia. He opined that the fall on 10 December 2012 was the primary cause of her current clinical picture.

For the applicant to succeed in establishing that she has sustained injury as a result of aggravation of a disease, she must establish that her employment was the main contributing factor to the aggravation.

In State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71, Acting President Roche, considering the application of the test in section 4(b)(ii) of the 1987 Act said [at 72]:

“That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence[2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.” (emphasis added).

Taking into account the whole of the evidence, I am satisfied that, if the applicant’s injury is the result of aggravation of a disease, then her employment was the main contributing factor to the aggravation. No other competing causes have been suggested. The syrinx had already been diagnosed when the applicant had another fall from a horse in 2018.

The applicant having established that she has sustained injury to her cervical and thoracic spine arising out of or in the course of her employment with the respondent, being either a frank injury or the aggravation of a disease, she is entitled to an award pursuant to section 60 of the 1987 Act for medical expenses.

The applicant’s claim for permanent impairment compensation is pleaded as one for injury to her cervical and thoracic spine. The medical dispute is to be referred to a Medical Assessor for assessment of permanent impairment as a result of injury to the cervical and thoracic spine on 10 December 2012.

The Medical Assessor is to be provided with the Application to Resolve a Dispute and attached documents, with the exception of the report of Dr Mellick dated 19 April 2018; the Reply and attached documents; the Application to Admit Late Documents dated 4 May 2021 and attached documents; and this Certificate of Determination and Statement of Reasons.

[2021] NSWPIC 175

8 June 2021