Kamau v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Kamau v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 348
APPLICANT:	Steven Kamau
RESPONDENT: second respondent:	Chamight Pty Ltd Workers Compensation Nominal Insurer (iCare)
Member:	Karen Garner
DATE OF DECISION:	14 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; applicant had accepted laceration to the head; whether the applicant sustained a traumatic brain injury and a high cervical cord lesion injury pursuant to section 4(a) and 9A; Held – applicant did sustain a traumatic brain injury and a high cervical cord lesion injury pursuant to section 4(a) and 9A; matter remitted to the President of the Commission for referral to a Medical Assessor for assessment of permanent impairment in relation to traumatic brain injury and high cervical cord lesion injury.
determinations made:	The Commission declares: 1. The first respondent, Chamight Pty Ltd, commenced to be wound up after entering into a contract with an insurer/scheme agent. 2. The first respondent, Chamight Pty Ltd, was not insured as required by the Workers Compensation Act 1987 (the 1987 Act) at all relevant times. The Commission determines: 1. The applicant sustained a traumatic brain injury on 5 September 2019 in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act to which his employment was a substantial contributing factor pursuant to s 9A of the 1987 Act. 2. The applicant sustained a high cervical cord lesion injury on 5 September 2019 in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act to which his employment was a substantial contributing factor pursuant to s 9A of the 1987 Act. 3. The matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows: Date of injury: 5 September 2019 Body parts: nervous system cervical spine Method: whole person impairment 4. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute (ARD) and attached documents. (b) Application to Admit Late Documents (AALD) by the Nominal Insurer dated 20 March 2023, which contains the Reply to ARD (Reply), with the exception of: (i) statement of Justin Moran dated 22 October 2019 (at AALD by the Nominal Insurer dated 20 March 2023, page 6), and (ii) Email – Incident Report dated 22 October 2019 (at AALD by the Nominal Insurer dated 20 March 2023, page 15). (c) AALD by the worker dated 29 May 2023, with the exception of: (i) paragraphs 2, 3 and 5 of the applicant’s supplementary statement dated 5 April 2023 (at AALD by worker dated 29 May 2023, page 2). (d) AALD by the Nominal Insurer dated 29 May 2023. 5. The Workers Compensation Nominal Insurer is liable to pay compensation to the applicant pursuant to s 66 of the 1987 Act as if it were the insurer of the first respondent, Chamight Pty Ltd, at all relevant times. 6. Pursuant to s 145 of the 1987 Act, the first respondent, Chamight Pty Ltd, reimburse the Workers Compensation Nominal Insurer the amounts paid out of the Insurance Fund in respect of the above-mentioned compensation.

STATEMENT OF REASONS

BACKGROUND

Steven Kamau (the applicant) was employed by Chamight Pty Limited (the first respondent).
On 5 September 2019, the applicant was hit on the head with an object during the course of his work as a labourer with the first respondent and he sustained a laceration to his scalp (the incident).
It appears to be common ground that the first respondent commenced to be wound up after entering into a contract for workers compensation insurance and was not insured as required by the Workers Compensation Act 1987 (the 1987 Act) at all relevant times.
On 13 September 2021, the applicant made a claim on the Workers Compensation Nominal Insurer – iCare (the Nominal Insurer) for lump sum permanent impairment compensation pursuant to s 66 of the 1987 Act for 36% whole person impairment (WPI) as a result of the incident, based on the opinion of Dr Paul Teychenne dated 7 September 2021.
By notice dated 11 January 2022, issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the Nominal Insurer disputed liability for permanent impairment compensation on the ground that the accepted physical injury did not result in more than 10% WPI as required by s 66(1) of the 1987 Act and the permanent impairment did not result from an injury as required by s 66(1) of the 1987 Act. The notice described the injury as:
“Laceration injury on the top of the head subcutaneous haematoma around cervical spine injury.
26/11/2020 Consequential injury accepted: Major depressive disorder with anxiety and trauma symptoms.”
On 20 February 2023, the applicant initiated proceedings in the Personal Injury Commission (Commission) by way of an Application to Resolve a Dispute (ARD). The ARD claims permanent impairment compensation pursuant to s 66 of the 1987 Act for 36% in respect of injury on 5 September 2019 to the nervous system and the cervical spine body systems.[1]
[1] The ARD, under the heading of “Injury Details” describes a date of injury of 5 September 2019, however under the heading of “Permanent Impairment/Pain and Suffering” describes a date of injury of 9 June 2021. It appears that the correct date to which the ARD was intended to refer is 5 September 2019.
The ARD stated that the applicant also seeks declarations that the first respondent, Chamight Pty Ltd, commenced to be wound up after entering into a contract with an insurer/scheme agent and that it was not insured as required by the 1987 Act at the time of the applicant’s injury. Further< the applicant also seeks the following orders:
(a) that the Nominal Insurer pay any compensation and costs awarded against the first respondent from the Workers Compensation Insurance Fund established under s 154D of the 1987 Act, and
(b) that the first respondent reimburse the Nominal Insurer for amounts paid out of the Workers Compensation Insurance Fund in respect of compensation and costs awarded against the first respondent.

ISSUES FOR DETERMINATION

The Nominal Insurer accepts that the applicant was struck on the head by an item in the course of his employment on 5 September 2019.
The parties agree that the following issues remain in dispute:
(a) whether on 5 September 2019, the applicant sustained injury pursuant to ss 4(a) and 9A of the 1987 Act in the nature of:
(i)traumatic brain injury, or
(ii)high cervical spinal cord injury, and
(b) the extent and quantification of the applicant’s entitlement to permanent impairment compensation pursuant to s 66 of the 1987 Act in respect of traumatic brain injury or high cervical spinal cord injury on 5 September 2019.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a hearing on 5 June 2023, the applicant was represented by Mr Luke Morgan, counsel, instructed by Ms Amber Khan of Gerard Malouf & Partners. The Nominal Insurer was represented by Ms Nicole Compton, counsel, instructed by Ms Mirian Browne of Turks Legal, with Ms Sharon Barnsley of iCare.
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

Objections to evidence

At the commencement of the hearing, both counsel raised objections to evidence.
I gave my determination regarding the objections to the evidence at that time. My reasons for the determination in that regard are as follows.

Objections to applicant’s evidence

Counsel for the Nominal Insurer, Ms Compton, raised objection to the following parts of the applicant’s evidence:
(a) paragraphs 2, 3 and 5 of the applicant’s supplementary statement dated
5 April 2023 (at AALD by worker dated 29 May 2023, page 2).
Paragraphs 2 and 3 of the applicant’s supplementary statement contained evidence in relation to the incident, including the nature, weight and shape of the item that fell on the applicant’s head.
Paragraph 5 of the applicant’s supplementary statement contained evidence in relation to ongoing pain and restriction in movement that the applicant experiences as a result of the incident.
Counsel’s submissions in relation to the objection to the evidence were recorded and a copy of the recording is available to the parties.
In summary, Ms Compton submitted that her client would be prejudicially affected by the admission of that late evidence, which differs from the applicant’s previous evidence, and that such prejudice could not be rectified at such a late time because she did not have an opportunity to take instructions and her client to obtain further evidence.
In summary, Mr Morgan submitted that the applicant would be prejudicially affected if those paragraphs were excluded from the evidence because it was necessary to address a real issue in dispute, namely the factual dispute regarding the nature and weight of the item that fell on the applicant. Mr Morgan submitted that the applicant’s statement addressed factual matters contained in the statement of Justin Moran dated 22 October 2019 which was contained in an AALD lodged by the Nominal Insurer (at AALD by the Nominal Insurer dated 20 March 2023, page 6) and which did not come into the applicant’s possession prior to that time, although extracts of Mr Moran’s statement were included in a report of Dr Ron Granot dated 16 November 2021 (at ARD, page 42). Mr Morgan submitted that the Nominal Insurer had the statement of Mr Moran since October 2019. Mr Morgan submitted that the Nominal Insurer has had ample time to previously obtain evidence in relation to the incident.
In summary, Ms Compton submitted in reply that the applicant previously had relevant extracts of Mr Moran’s statement because they were included in the report of Dr Ron Granot dated 16 November 2021 (which was lodged as an attachment to the ARD, page 42).
Ms Compton submitted that the applicant could have requested a complete copy of the statement at any time prior. Further, Ms Compton submitted that the applicant could have provided evidence in response to the extracts of Mr Moran’s statement which were contained in Dr Granot’s report at any time. Ms Compton submitted that the prejudice which would be caused to the Nominal Insurer by admission of the applicant’s evidence which is objected to, could not be cured at this late stage.

Objections to Nominal Insurer’s evidence

Counsel for the applicant, Mr Morgan, then raised objection to the following parts of the Nominal Insurer’s evidence:
(a) statement of Justin Moran dated 22 October 2019 (at AALD by the Nominal Insurer dated 20 March 2023, page 6), and
(b) email – Incident Report dated 22 October 2019 (at AALD by the Nominal Insurer dated 20 March 2023, page 15).
The statement of Justin Moran dated 22 October 2019 contained evidence in relation to matters which included the engagement of the applicant and the incident.
The Email – Incident Report dated 22 October 2019 contained evidence in relation to the incident.
Counsel’s submissions in relation to the objection were recorded and a copy of the recording is available to the parties.
In summary, Mr Morgan submitted for the applicant that the Nominal Insurer did not comply with the requirements of regulation 38 of the Workers Compensation Regulation 2016 (Regulation) in respect of those documents because the documents were not referred to in the Nominal Insurer’s s 78 notice, nor provided with the s 78 notice, notwithstanding that they were available to the Nominal Insurer at the time that the s 78 notice was issued.
In summary, Ms Compton submitted for the Nominal Insurer in reply that it is prejudiced by the applicant’s failure to object to those documents at the preliminary conference or at another time prior to commencement of the hearing. Ms Compton submitted that extracts of Mr Moran’s statement were included in a report of Dr Ron Granot dated 16 November 2021 (at ARD, page 42) which was referred to in the s 78 notice and provided to the applicant with the s 78 notice and which was also was included in the ARD.

Consideration

Rule 67 (4) PIC Rules states:
“67   Material to be lodged in applicable proceedings
(1)    A party to applicable proceedings must lodge and serve on the other parties, with an application to commence proceedings or a reply to an application, the following—
(a)the information and documents relevant to the resolution of the real issues in the proceedings on which the party proposes to rely that—
(i)are in the possession or control of the party, and
(ii)that have not been lodged by a party in the current proceedings,
(b)the information or documents required to be provided with the application or reply by—
(i)the approved form for the application or reply, or
(ii)these Rules, or
(iii)the procedural directions.
(2)    Subject to subrules (3) and (4), a party may not introduce evidence that has not been—
(a)lodged and served as required by subrule (1), or
(b)provided to another party as required by enabling legislation or these Rules.
(3)    If a party to applicable proceedings wishes to rely on a document not lodged and served in compliance with subrule (1), the party must—
(a)as soon as practicable after becoming aware of the document or obtaining possession of the document, serve a copy on all other parties, and
(b)not later than 3 working days before a teleconference, on one occasion only and by the approved form, lodge all documents not previously lodged, and
(c)not later than 3 working days before a hearing, on one occasion only and by the approved form, lodge all documents not previously lodged, and
(d)not later than 14 working days before a medical assessment, on one occasion only and by the approved form, lodge all documents not previously lodged.
(4)    The appropriate decision-maker for the applicable proceedings may, if it is satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would be prevented from introducing because of the operation of subrule (2) if—
(a)the party complies with subrule (3), or
(b)the appropriate decision-maker gives the party leave to lodge additional documents following an attempt by the party, whether or not successful, to obtain consent to the lodgment from all parties to the proceedings.”
Paragraphs 26 and 28 of Procedural Direction PIC 3 state:
“Admission of late documents
26. Parties are expected to comply with the timeframe requirements set out in the legislation and rules. The lodgment and registration of the appropriate form does not mean that the document attached is admitted as evidence in the proceedings.”
“28. In determining an application for leave to admit late documents, the following matters will be considered:
(a)the interests of justice;
(b)the requirements of the workers compensation legislation and the PIC Rules;
(c)the submissions of the parties including the adequacy of the moving party’s reason/s for the delay in lodging the document/s;
(d)any prejudice that would result from granting or refusing leave to admit the documents;
(e)the effect, if any, on the timely resolution of the dispute, and
(f)the objects of the Commission under sections 3 and 42 of the PIC Act.”
The onus of establishing that it is in the interests of justice to admit late documents is on the party seeking to have the documents admitted: Nelson Bay Pest Services v Morrison [2007] NSWWCCPD 135.
Regulation 38 relevantly states:
“38 Notice of insurer decisions
(1) A notice under section 78 of the 1998 Act of an insurer’s decision to dispute liability in respect of a claim or any aspect of a claim (except in connection with a work injury damages matter), or to discontinue or reduce the amount of weekly payments of compensation, is to contain the following information—
(a)a statement identifying all the reports and documents submitted by the worker in making the claim for compensation, and by the employer in connection with the claim,
(b)a statement identifying all the reports of the type to which clause 41 applies that are relevant to the decision, whether or not the reports support the reasons for the decision,
(c)a statement advising that a copy of a report required to be provided by the insurer under clause 41(3) (except as provided by clause 41(5) or (6)) accompanies the notice,
(d)details of the procedure for requesting a review of the decision,
(e)a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, from an Australian legal practitioner, from the Independent Review Officer or from any other relevant service established by the Authority,
(f)the contact details for the Independent Review Officer,
(g)the street address and the email address of the President,
(h)a summary, in the approved form, of the effect of the decision, the worker’s rights of review, the procedure for requesting a review and the legal and other services that may be available to the worker to provide advice or assistance in relation to the dispute.
(2) If the notice relates to a decision to discontinue weekly payments of compensation, the insurer must give a copy of the summary referred to in subclause (1)(h) to any current employer of the worker who is liable to pay the compensation (except in circumstances where the compensation is paid by the insurer).”
Regulation 41 relevantly states:
“41   Access to certain medical reports and other reports obtained by insurer
(1)    This clause applies to the following types of reports that an employer or insurer has in the employer’s or insurer’s possession—
(a)medical reports, including medical reports provided pursuant to section 119 (Medical examination of workers at direction of employer) of the 1998 Act,
(b)certificates of capacity,
(c)clinical notes,
(d)investigators’ reports,
(e)workplace rehabilitation providers’ reports,
(f)health service providers’ reports,
(g)reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made.
(2)    This clause applies to the following decisions of an employer or insurer relating to an injured worker—
(a)a decision to dispute liability in respect of a claim, or any aspect of a claim (in circumstances requiring the insurer to give the worker a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act),
(b)a decision to discontinue payment, or to reduce the amount of weekly benefits (in circumstances requiring the insurer to give the worker a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act),
(c)a decision on the review under section 287A of the 1998 Act of a decision described in paragraph (a) or (b) that confirms the original decision.
(3)    For the purposes of sections 73(1) and 126(2) of the 1998 Act, if an employer or insurer makes a decision to which this clause applies, the employer or insurer must provide a copy of any relevant report to which this clause applies to the worker, as an attachment to a notice under Division 3 of Part 2 of Chapter 4 of the 1998 Act or section 287A of the 1998 Act, as the case may be, except where the report has already been supplied to the worker and that report is identified in a statement under clause 38(1)(d).
(4)    The obligation in this clause to provide a copy of a report applies to any report that is relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reasons for the decision.
(5)    If the employer or insurer is of the opinion that supplying a worker with a copy of a report would pose a serious threat to the life or health of the worker or any other person, the employer or insurer may instead supply the report—
(a)in the case of a medical report, certificate of capacity or clinical notes—to a medical practitioner nominated by the worker for that purpose, or
(b)in any other case—to a law practice representing the worker.
(6)    If, on the application of an employer or insurer, the Authority is satisfied that supplying the worker with a copy of the report would pose a serious threat to the life or health of the worker or any other person and that supplying the report as provided by this clause would not be appropriate, the Authority may—
(a)direct that the report be supplied to such other persons as the Authority considers appropriate, or
(b)make such other directions as the Authority thinks fit.”

The evidence which is the subject of objections by the applicant and the Nominal Insurer deals with factual issues relevant to the incident. It is relevant to the issues in dispute.
I accept Mr Morgan’s submission for the applicant that the Nominal Insurer did not comply with the requirements of regulation 38 of the Workers Compensation Regulation 2016 (Regulation) in respect of the statement of Mr Moran dated 22 October 2019 and the Email – Incident Report dated 22 October 2019 because those documents were not referred to in the s 78 notice, nor provided with the s 78 notice, notwithstanding that they were apparently available to the Nominal Insurer at the time that the s 78 notice was issued. The documents were not provided to the applicant prior to service of the Nominal Insurer’s AALD which included them.
The Nominal Insurer has not provided an explanation for the failure to comply with Regulation 38 and the delay in providing the documents. However, I also accept the submission of Ms Compton for the Nominal Insurer that extracts of Mr Moran’s statement were included in a report of Dr Ron Granot dated 16 November 2021 (at ARD, page 42) which was referred to in the s 78 notice and provided to the applicant with the s 78 notice and which was also was included in the ARD.
I accept that the Nominal Insurer would be prejudiced by failure to admit into evidence the statement of Mr Moran dated 22 October 2019 and the Email – Incident Report dated
22 October 2019 into evidence. Further, the Nominal Insurer would be prejudiced by the late admission into evidence of paragraphs 2, 3 and 5 of the applicant’s supplementary statement dated 5 April 2023 (at AALD by worker dated 29 May 2023, page 2) because it does not have an opportunity to investigate the factual issues and adduce any further evidence in that regard at this late stage.
I accept that the applicant would be prejudiced by failure to admit into evidence paragraphs 2, 3 and 5 of the applicant’s supplementary statement dated 5 April 2023 (at AALD by worker dated 29 May 2023, page 2) because it would not otherwise have an opportunity to address evidence included in the statement of Mr Moran dated 22 October 2019 and the Email – Incident Report dated 22 October 2019. I do not consider the applicant’s failure to object to those documents at the preliminary conference or at another time prior to commencement of the hearing to be fatal. The applicant’s objection at this time is predicated on the Nominal Insurer’s objection to the relevant paragraphs of the applicant’s statement which was adduced to address the statement of Mr Moran and the Email – Incident Report which the applicant did not previously have, albeit it had some notice of the nature of the evidence because of the extract contained in the report of Dr Granot.
Prejudice to both parties caused by admission of the evidence objected to may be cured by an opportunity for the parties to adduce and lodge further evidence. However, such a course of action would delay resolution of this dispute.
Whilst that is an option worthy of serious consideration, I also need to consider the objects of the Commission under ss 3 and 42 of the Personal Injury Commission Act 2020 (the PIC Act). In particular, s 42(1) requires the Commission to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
On balance, having regard to all of the above matters that I have referred to above in relation to this particular proceeding, I consider that the interests of justice is best served by not admitting into evidence any of the evidence that was the subject of objection by either the applicant or the Nominal Insurer.
Accordingly, I determine that:
(a) the AALD by the Nominal Insurer dated 20 March 2023, which contains the Reply to ARD (Reply), is admitted into evidence with the exception of:
(i)Statement of Justin Moran dated 22 October 2019 (at AALD by the Nominal Insurer dated 20 March 2023, page 6), and
(ii)Email – Incident Report dated 22 October 2019 (at AALD by the Nominal Insurer dated 20 March 2023, page 15).
(b) the AALD by the worker dated 29 May 2023 is admitted into evidence, with the exception of:
(i)paragraphs 2, 3 and 5 of the applicant’s supplementary statement dated
5 April 2023 (at AALD by worker dated 29 May 2023, page 2).
I note that no objection was raised in relation to admission of the AALD by the Nominal Insurer dated 29 May 2023.

Documentary evidence

On that basis, the following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    AALD by the Nominal Insurer dated 20 March 2023, which contains the Reply, with the exception of:
(i)Statement of Justin Moran dated 22 October 2019 (at AALD by the Nominal Insurer dated 20 March 2023, page 6), and
(ii)Email – Incident Report dated 22 October 2019 (at AALD by the Nominal Insurer dated 20 March 2023, page 15).
(c)    AALD by worker dated 29 May 2023, with the exception of:
(i)paragraphs 2, 3 and 5 of the applicant’s supplementary statement dated 5 April 2023 (at AALD by worker dated 29 May 2023, page 2).
(d)    AALD by the Nominal Insurer dated 29 May 2023.

Oral evidence

There was no application to cross-examine and no oral evidence was adduced.

Lay evidence

Applicant

The applicant gave evidence by way of a statement dated 24 August 2022 and a supplementary statement dated 5 April 2023 (excluding paragraphs 2, 3 and 5).
In his statement dated 24 August 2022, the applicant stated that, on 5 September 2019, he undertook work for the first respondent, with the assistance of the applicant’s friend, Bob Kanyiri, at a shopping centre where he required to work on the installation of a board on a large display model of a bag. The applicant stated that a male colleague stood on a ladder to screw a part of the board onto the display and then proceeded to descend the ladder and asked the applicant to put in a LED strip. The applicant stated that he was on his knees on the ground trying to lift up the LED strip, when the board that the male colleague had just screwed onto the display fell and struck the applicant’s head.
The applicant’s statement included a picture of the display, which appears to be several metres high, although it does not reach the height of the ceiling of the shopping centre. The statement also included pictures of the board or part of a board which fell and struck the applicant’s head. The board appears to be a substantial item in a long shape and it has clear damage to one corner. The statement also includes a picture of a laceration to the applicant’s head.
The applicant stated that immediately after he was struck on the head, he “saw stars” and screamed in pain. The applicant stated that:
“15. I recall being woken up by my colleague. I stood up but felt weakness in my legs. I felt I had to sit instantly...
16.    I felt an immediate onset of pain to my head, neck and shoulders. The pain would shoot through my head and around my body. My head felt heavy and extremely painful.
17.    I was soon driven home where I wanted to rest.
18.    When I got home, I recall being incredibly unsteady on my feet to the point where I had to support my weight with the walls around me.
19.    I managed to get into bed where I rested. The pain was excruciating.
20.    I noticed when I was in bed my legs were shivering as thought [sic] I had had a cold. They were shaking uncontrollably.”
The applicant stated that he awoke to find his pillow covered in blood and the following day he attended his general practitioner and was referred to hospital where he was found to have a laceration on his head which was treated.
The applicant stated that he experienced ongoing “constant thumping, dizziness and headaches”, “started to hear repetitive noises in my ears when I would lay down” and soon afterwards “began to notice a tremor in my hands which would become worse during the night”. The applicant stated that the pain in his head felt unbearable and his condition continued to persist and worsen over time. The applicant stated that his memory started to decline. The applicant continued to experience fogginess, blurred vision and unstable walking. Certain movements in his neck instigated random severe, sharp neck pain. The applicant also experienced occasional “black outs”.
The applicant stated that he again attended his general practitioner and was referred for investigations, physiotherapy and later to a neuropsychologist, Dr Nora Breen, who noted that he had a cognitive impairment. The applicant was also referred to Associate Professor Raj Sundaraj and also Dr Trudi Richmond, pain specialist. In around May 2021, the applicant underwent pulsed radiofrequency for bilateral occipital nerves which relieved his pain temporarily.
The applicant stated that he developed anxiety and depression as a result of the pain and inability to function. He stated that he found it increasingly difficult to concentrate on simple tasks and continued to feel a throbbing sensation in his head and felt as though his eyes “were being sucked out”. The applicant stated that he continues to suffer ongoing pain, restrictions and disabilities, which include: persistent pain in his head and neck, which is exacerbated in cold weather; restricted neck movement; sharp shooting pain when lifting items; migraines; headaches; dizziness; vertigo; unsteady gait; and he is prone to falls.
In his supplementary statement dated 5 April 2023, the applicant stated that as soon as the board hit him, he saw “stars”, screamed in pain “and then everything went black”.
The applicant stated that he continues to experience various symptoms to his head from time to time, including migraines, headaches and dizziness and he has also developed vertigo, unsteady gait and proneness to falls. His eyes hurt under bright lights, especially sunshine, and he has to wear ultraviolet glasses to avoid experiencing extreme pain. Further, he now finds that trying to concentrate on simple things gives him a “throbbing sensation in my head and makes me feel as though my eyes are being sucked out” and he continues to “experience bouts of fogginess, blurred vision and occasional blackouts”.

Bob Kanyiri, applicant’s colleague

Mr Kanyiri gave evidence by way of a statement dated 4 November 2022.
Mr Kanyiri stated that on 5 September 2019, he assisted the applicant with his work at the shopping centre. Mr Kanyiri stated that the applicant, with the assistance of another person, Justin, lifted “a big board” and installed it on a model bag. Mr Kanyiri stated that “Justin was on a ladder, screwing in the panel when out of no where, the panel dropped on Steven’s head and I heard Steven scream”. Mr Kanyiri ran to the applicant and “noticed the board they had been installing laying on the ground, with a chip on the corner of the board”. Mr Kanyiri noticed that the applicant’s head was bleeding and he was assisted and treated on the scene.

Treating medical evidence

Dr Mohammed Fazle Rabbi, general practitioner

In a report dated 5 June 2022,[2] Dr Rabbi stated that on 9 September 2019, the applicant reported “pain in the back of his neck with radiation to his upper back, he has the pain since a heavy [sic] plywood, weighing about 5 – 10 kilos has fallen over top of his head at work on 06/09/2019”. On examination, Dr Rabbi noted a wound on the top of top of the applicant’s head, marked tenderness over the C6 and C7 cervical spine and movement of the applicant’s neck was mildly restricted due to pain. Dr Rabbi stated that the fall of a heavy item on the applicant’s head had resulted in bilateral occipital neuralgia cervical radiculopathy. Dr Rabbi stated that he was not aware of any shoulder injury.
[2] ARD, page 64.

Dr Nora Breen, clinical neuropsychologist

In a report dated 8 April 2020,[3] Dr Breen recorded a history reported by the applicant that he sustained injury in September 2019 when he was working in a shopping centre to install a signboard,
“when a 5 – 10 kilo triangular piece of wood fell on the top of his head. He said he screamed out with pain and ‘saw stars’ but did not report a loss of consciousness. He said there was a lot of blood... he sat down for the next hour holding the cotton pad on the cut on top of his head...”
[3] ARD, page 66.
Dr Breen recorded that the applicant:
“reported ongoing pain in the seven months since the injury that includes headache (‘pounding pain’), pain on the external surface of his head (‘like a blanket of pain covering my head’), and pain in his neck, shoulders and back. He described the pain as constant since the injury...”
Dr Breen reported that the applicant demonstrated some mild lapses in attention and a mild reduction in his ability to perform tasks requiring rapid responses under timed conditions. The applicant also demonstrated verbal memory characterised by slow learning but intact recall and recognition, and visual memory characterised by mildly reduced recall but intact recognition. Dr Breen stated that the applicant also had a severe level of depression and moderate anxiety with ongoing high levels of pain. Dr Breen stated that the applicant’s symptoms could be explained on the basis of a post-concussion syndrome, but was also typical of significant mood disorders.

Associate Professor Raj Sundaraj, specialist pain medicine physician

In a report dated 7 October 2020,[4] Associate Professor Sundaraj recorded a reported history that, when a “large sign board” fell on the applicant’s head, he experienced sudden pain in the head and neck region and bleeding. Associate Professor Sundaraj recorded that imaging was essentially reported as normal. Associate Professor Sundaraj recorded that the applicant experienced persistent upper neck pain including severe throbbing headaches which varied in intensity. Associate Professor Sundaraj stated that the applicant was unable to lift any items as it aggravated his pain. Associate Professor Sundaraj stated that, in time, the applicant experienced radiating pain to his upper back between the interscapular region.
[4] ARD, page 71.
On examination, Associate Professor Sundaraj noted significant tenderness in the upper cervical facet regions and specifically C2/3 and C3/4 levels, with the right side worse than the left side. The greater occipital nerve at the superior nuchal line was very tender even to light palpation. Associate Professor Sundaraj opined that the applicant had sustained injury to the upper cervical facet joints and that in turn was causing irritation to the occipital nerves, which arise from the upper cervical spine. Associate Professor Sundaraj diagnosed cervical facet disharmony and associated occipital neuralgia.
In a report dated 9 December 2020,[5] Associate Professor Sundaraj recorded the applicant’s ongoing pain. He recommended diagnostic local anaesthetic injection around the occipital nerves.
[5] ARD, page 73.

Dr Trudi Richmond, pain medicine specialist

Dr Richmond provided evidence by way of reports dated 29 January 2021, 27 August 2021 and 22 October 2021.[6]
[6] ARD, page 75.
Dr Richmond recorded a reported history that the applicant sustained a large laceration to his head on 5 September 2019 “when a heavy plywood sign fell on his head from a height. He calls [sic] seeing stars for a minute however did not loose [sic] consciousness”. Dr Richmond recorded that the applicant had persistent post-traumatic headache, ongoing dizziness, poor concentration and memory and neck and bilateral shoulder pains. Dr Richmond noted that the applicant’s pain was aggravated by forward flexion of the applicant’s cervical spine. She noted that the applicant had experienced photophobia, blurred vision and diplopia but that had resolved. Dr Richmond stated that the applicant’s presentation was consistent with a post-traumatic headache, with possible occipital neuralgia and post concussive syndrome as well as depression. She recommended diagnostic occipital nerve blocks.

Dr Ramakrishna Bhavanishankar, consultant psychiatrist

In a report dated 18 November 2020,[7] Dr Bhavanishankar recorded a history that the applicant sustained head and neck injury when a sign board fell 3.5m onto his head, which caused him to feel excruciating pain and to feel faint. Dr Bhavanishankar stated that the applicant presented with features of a major depressive disorder with anxiety and trauma symptoms.
[7] ARD, page 81.

Dr Rowena Mobbs, pain medicine specialist

In a report dated 27 January 2022, Dr Mobbs reported that she had discussed with the applicant potential pain treatment options which were directed to treat post-traumatic migraine.[8]
[8] AALD by insurer dated 29 May 2023, page 1.

Clinical records

The evidence included clinical records of:
(a)    Dr Mohammad Rabbi;[9]
[9] ARD, page 84; AALD by worker dated 29 May 2023, page 250.
(i)on 6 September 2019, Dr Rabbi recorded that the applicant had sustained a laceration injury to his scalp on the top of his head. Dr Rabbi recorded that the applicant reported that a heavy plywood, weighing about 5 – 10 kg had fallen over the top of his head the previous day. Dr Rabbi recorded that the applicant reported no loss of consciousness, vomiting, weakness in any part of his body, nor any loss of speech. The record stated “NO headache”. Dr Rabbi advised the applicant to attend hospital emergency;
(ii)on 9 September 2019, Dr Rabbi recorded that the applicant had pain in the back of his neck with radiation to his upper back, which he had had since the injury on 5 September 2019. Dr Rabbi recorded marked tenderness over the C6 and c7 cervical spine and movement of the applicant’s neck was mildly restricted due to pain;
(iii)on or about 11 September 2019, Dr Rabbi recorded that the applicant still had pain on both sides of his head and pain when he lay down. A CT- Head showed swelling overlying the posterior aspect of the skull vertex without any fracture being identified. A CT- Cervical Spine showed no significant abnormality;
(iv)on 3 October 2019, Dr Rabbi recorded that the applicant reported getting dizziness two to three times each day and he had recently “blacked out”. The applicant also reported severe constant headache every day and the development of insomnia since a heavy plywood, weighing about 5 – 10 kg had fallen on the top of his head at work in September 2019, and
(v)Dr Rabbi recorded that the applicant subsequently made similar complaints of ongoing head and neck pain and dizziness in the latter part of 2019 and during 2020;
(b)    Dr Trudi Richmond;[10]
(c)    Proactive Psychology;[11]
(d)    Ms Kylie Pennings,[12] and
(e)    Dr Ramakrishna Bhavanishankar.[13]
[10] AALD by worker dated 29 May 2023, page 5.
[11] ARD, page 183.
[12] AALD by worker dated 29 May 2023, page 360.
[13] AALD by worker dated 29 May 2023, page 625.

Other documents

The evidence also included documents produced by the Nominal Insurer under notice for production, which included numerous Certificates of Capacity.[14]
[14] AALD by worker dated 29 May 2023, page 651.

Imaging

The evidence included reports of the following imaging:
(a)    CT brain and cervical spine dated 11 September 2019;[15]
(b)    MRI brain and cervical spine dated 20 October 2019;[16]
(c)    MRI brain and cervical spine dated 22 October 2019;[17]
(d)    Bone scan dated 3 November 2020,[18] and
(e)    MRI Cervical Spine dated 18 November 2021.[19]

Independent medical evidence

[15] ARD, page 108.

[16] ARD, pages 111, 112.

[17] AALD by insurer dated 20 March 2021, page 16.

[18] ARD, page 167.

[19] AALD by insurer dated 20 March 2021, page 18.

Dr Ron Granot, neurologist

Dr Granot provided an independent medical opinion, qualified by the Nominal Insurer.
In a report dated 16 November 2021, Dr Granot recorded the reported medical history.
Dr Granot recorded history reported by the applicant as follows:[20]
“On 5/2/19, he was assisting in installing an A frame sign and was installling an LED strip light along when a 60cm triangular piece – he is unsure of the material, but estimated weight of 5 – 10 kg, fell onto him from 1m above onto the vertex of his head. He felt a sharp pain and yelled out. At the time, he said all he saw was “black and yellow stars” for a minute before vision returned. He stood up, walked to a bench a few metres away, feeling “a bit wobbly”. He then noted bleeding over his face... He went home, slept and awoke with a pillow covered in blood.”
[20] ARD, page 53.

Dr Granot recorded the applicant’s description of pain and symptoms following the incident, which included headaches. Also:[21]
“He describes development of photophobia, accompanying his severe daily generalised throbbing headaches.... Exacerbating factors would include leaning forward. He wakes 5AM, woken by pain. Prior to the current opioids, he had greater difficulty sleeping.
He became aware in early-mid 2020 (perhaps March-May), of pain shooting from the shoulder to the elbow bilaterally. These are triggered with persistent abduction, such as driving. It is around 4/10 but is masked by Targin. He seems to recall this triggered when he was trying to change a tyre...
Activity is reduced due to shoulder pain...
He can walk normally for 10 minutes, with longer walks triggering a worse headache. Hand function is unaffected – he is able to type etcetera.
He does mention reduced erection intensity...
He is also aware of a fine postural hand tremor since early-mid 2020.”
[21] ARD, pages 53, 54.
Dr Granot noted that occipital nerve blocks were helpful for three days after the first and mildly beneficial for a week after the second set of injections.
Dr Granot recorded that the applicant reported “ongoing daily generalised headaches 6/10 on the Targin (it increases rapidly if a dose is omitted)”.
On examination, Dr Granot noted:
“He had a 10 x 10 cm Versatis patch over the right clavicle. Gait was normal, including tandem and Romberg’s.
There was moderate tenderness over the occipital ridge, with mild general scalp allodynia.
Pain was noted with proximal upper limb power testing, but 5/5 power was achievable for all muscle groups. Lower limb power was within normal limits. Reflexes were symmetrical and normal, without being brisk, and plantars flexor. Sensation was normal.
Pain was distinctly triggered by abduction beyond 70 degrees bilaterally, worse on the right; it was exacerbated by abduction and external rotation, as well as internal rotation and felt along the deltoid / lateral arm.”
Dr Granot reviewed imaging and stated that imaging was entirely normal.
Dr Granot diagnosed post-traumatic migrainous headaches, mechanistically related to the incident. He also diagnosed bilateral rotator cuff injury, unrelated to the incident. He stated that: [22]
“... the symptomatology is consistent with a post-traumatic migrainous headache, with a neuropathic component, on the assumption that there was a significant blow to the head... The presence of photophobia and the generalised and throbbing nature of the headache suggests that this is more likely migraine based rather than occipital neuralgia per say [sic].
...
Finally, his upper limb symptomatology post-dates the injury by many months and is described as onset after manual activity and is clinically consistent with rotator cuff pathology. ... Given the history provided of this being an unrelated injury, related to manual activity changing his tyre, I do not see this as being related to his primary injury.
In terms of the proposed differential diagnoses offered by Dr Teychenne, there is no evidence for a significant traumatic brain injury on imaging or clinical grounds whatsoever, given that there was no loss of consciousness or imaging changes to support such an injury. As such this is not assessable under WorkCover guidelines, but the nature of the injury makes this an unlikely scenario for a brain injury whatsoever.
Secondly, there is no evidence either mechanistically, clinically or on imaging to suggest any cervical spinal cord injury or radicular involvement. As above, I expect that his upper limb symptoms relate to his rotator cuff only.”
[22] ARD, page 57.
Dr Granot did not provide an assessment of WPI on the basis that migraine headaches are not assessable under the SIRA Guidelines and Dr Granot did not find that the applicant had any other work-related injury.
Dr Granot noted differences between his opinion and the opinion Dr Teychenne in his report dated 7 September 2021. Dr Granot stated:[23]
[23] ARD, page 63.
“There are numerous differences which I shall discuss in turn. Initially, he does not fulfil the criteria for an assessable traumatic brain injury under the workcover guides. Beyond this, I do not believe that he sustained any significant head injury.
As per section 5.9 of the SIRA guidelines, page 32, an assessable traumatic brain injury relies on there being evidence of a high energy injury as per the following:
Clinical assessment must include at lease one of the following:
-significant medically verified abnormalities in the Glasgow Coma Scale score
-significant medically verified duration of post-traumatic amnesia
-significant intracranial pathology on CT scan or MRI.
As such, the injury in question is not assessable, due to the absence of any of these factors.
Secondly, the upper limb symptomatology began six months following the head injury, is likely related to shoulder pathology, and was triggered by a separate incident unrelated to his work. In terms of an alleged spinal cord injury, there is no support for this whatsoever given that the injury triggering the episode was remote from his work injury, there are no upper motor neuron signs when examining the patient and finally there are no MRI changes of the spinal column or spinal cord at all. Therefore, I do not find there to be any evidence whatsoever for a spinal cord or associated injury to be assessed...”
In a supplementary report dated 27 January 2022, Dr Granot recommended treatment focused on the likely migraine origin of the applicant’s symptoms, rather than exclusively on the occipital nerves.

Dr Paul Teychenne, consultant neurologist

Dr Teychenne provided an independent medical opinion, qualified by the applicant.
In a report dated 7 September 2021, Dr Teychenne recorded a detailed history.
Dr Teychenne stated that the applicant reported that on 5 September 2019:[24]
“... He was a labourer and was down on his knees fixing a sign. He stated that a 5 to 10 kg plywood sign fell about 10 metres hitting him over the top of the head. He was not wearing a helmet. He was found to have a laceration of the vertex. He stated that he was kneeling at the moment of the impact and this compressed him down onto his calves. His thighs gave way and he finished up on his heels and then falling off to the right. He stated that everything went immediately black. He saw golden stars. Everything was black for one-and-a half minutes with the golden stars. When he stood up he almost immediately felt he would fall. He felt weak on the legs. He was wobbly in the legs and sat down... at the scene of the accident he sat down for 30 minutes and then when he started walking his legs felt shaky. When sitting he felt a sharp knife-like pain as though he has a sword in his head. The whole of the head was painful. It was throbbing as though he had been hit inside his head with a hammer.”
[24] ARD, page 20.
Dr Teychenne also recorded the applicant’s description of pain and symptoms which developed after the incident, which included throbbing headache, sharp head pain, being “wobbly” in the legs, staggering from side to side when he walked and also a tremor or shaking in the legs which lasted for about 40 minutes when he was lying in bed.
Dr Teychenee recorded the applicant’s reported ongoing severe head pain which extended from the neck over the left and right side of the head, he “felt as though his eyes were being sucked out with the headache”, weakness in his legs which persisted for seven months, weakness in his arms which could last up to 30 minutes, memory deficit, photophobia and feelings of electric shock shooting into his head which would last about one hour and were debilitating.
Dr Teychenne reviewed imaging and medical reports.
Dr Teychenne stated that:[25]
[25] ARD, pages 24, 26, 27, 28.
(a)    the headaches described in the applicant’s history were consistent with occipital neuralgia and an organic headache (rather than a stress-related headache) which was consistent with an incomplete cervical spinal cord injury;
(b)    the applicant’s cognitive deficits identified by psychometric testing was consistent with a mild traumatic brain injury;
(c)    certain of the applicant’s history immediately following the incident of seeing blackness and stars, feeling like he would fall when he stood up and being weak and wobbly in the legs was a potential indicator of brain concussion but was also an indicator of spinal concussion;
(d)    the applicant’s weak wobbly legs were consistent with spinal shock;
(e)    the applicant’s history of sharp knife-like head pain, leg tremor and shaking, and being off balance and staggering to some extent, was more consistent with a spinal cord lesion injury than with brain concussion;
(f)    the applicant’s history of head and neck pain, which particularly occurred if he carried out heavy activities, was consistent with dysaesthesia secondary to cervicogenic upper cervical nerve root pain;
(g)    the applicant’s history of hand tremor which developed six months after the incident, and weakness in his legs which persisted for seven months was quite consistent with the applicant sustaining an upper spinal cord injury at the time of the incident;
(h)    the applicant’s forgetfulness some nine months after the incident was consistent with a mild traumatic brain injury;
(i)    the applicant’s decreased erections was consistent with high cervical spinal cord injury;
(j)    the applicant’s headaches, feeling that his eyeballs were being sucked out with the headache, photophobia particularly in the morning was not unusual in patients with high cervical cord lesions which involve the cervicomedullary region;
(k)    the applicant’s feeling of electric shock from the left and right suprascapular region into the left and right occiput shooting into the parietal region of the head was quite typical of a cervicogenic headache, that is, neuropathic pain arising from the upper cervical spinal cord;
(l)    the applicant’s feeling of weakness in his arms which could last for up to 30 minutes was consistent with high cervical cord lesion;
(m)     the applicant’s history of being unsteady for seven months after the incident was also consistent with a high incomplete cervical cord lesion, and
(n)    on examination, the applicant had evidence of a high incomplete cervical cord lesion, in particular: when squatting, the applicant’s legs collapsed and did not support him; when walking, the applicant walked with a mild slow small stepped gait; the applicant was slightly slow standing up from a chair without pushing up; when the applicant stood up on his heels, he fell back; the applicant had a mild sway to the left and right on heel-to-toe walk; he had bilateral imbalance; when pushed, the applicant fell en bloc to the left and right; when pulled, the applicant fell back with collapse of both legs; the applicant had sharp pain across the left and right anterior C3/4 dermatome when hunching up his shoulders; he had brisk knee reflex and patellar reflexes; he had upper motor neuron weakness in the upper limbs and intrinsic hand muscle weakness within the lower limbs; he also had a sensory level to pain and temperature sensation at T10 anteriorly and at T7 posteriorly, the level was higher in the upper limbs at C4.
Dr Teychenne opined that the applicant sustained:[26]
(a) a concussive head injury, being a mild traumatic brain injury, with cognitive deficits particularly a memory deficit. Dr Teychenne considered that Dr Breen’s clinical findings were consistent with an organic traumatic brain injury, and
(b) an incomplete cervical cord lesion, which was potentially high in view of the migraine-like cervicogenic headaches with photophobia. Dr Teychenne stated that it was apparent on clinical examination that the applicant had evidence of an incomplete central cervical cord lesion.
[26] ARD, page 29.
Dr Teychenne opined that the applicant had sustained permanent impairment and that the employment was a substantial contributing factor to his impairment. Having regard to the State Insurance Regulatory Authority Guidelines 4^th Edition (1 April 2016), (SIRA Guidelines) Dr Teychenne assessed total 36% WPI, calculated on the basis of:[27]
[27] ARD, pages 31, 32.
(a)    15% WPI in respect of central and peripheral nervous system:
“Page 320, Table 13-5
Based on Dr Breen’s assessment, I consider that he had moderate memory loss more marked for recent events, defect interferes with everday activities. Score 1.
In view of his slowness across tests of the executive function that were times and required alternating sequences, I consider that he would have moderate difficulty in handling problems, similarities and differences. Score 1.
Based on these results, I also consider he would have mild and definite impairment of function at home, more difficult chores abandoned and more complicated hobbies and interests abandoned. Score 1. CDR score of 1 equals Class 2, Table 13-6, Page 320.”
(b)    7% WPI in respect of the spine:
“SIRA Guidelines Page 24, Section 4.6 indicates that a person with a spinal cord injury should be assessed by Section 15.7, AMA-5. In view of his intrinsic hand muscle weakness, I would rate him in Class B, Page 396, Table 15-6. I consider that he could use both upper extremities for self-care, grasping and holding but in view of his intrinsic hand weakness and weakness in flexion of the terminal phalanx of the second to fifth fingers, I consider that he would have some difficulty with digital dexterity.”
(c)    15% WPI in respect of the spine:
“Page 396 Table 15-6C
In view of his weakness IN squatting where his legs collapsed and also his imbalance where again his legs collapsed when pulled back associated with his mild slow small stepped gait, I would consider that he had a station and gait disorder. I would classify him in Class 2. When he rises to a standing position, he walks some distance with some difficulty and without assistance but is limited to level surfaces.”
(d)    5% WPI in respect of the spine:
“Page 397 Table 15-6F
In view of his decrease in erections, I would consider that he fitted into Class 1. Sexual functioning is possible but with difficulty of erection.”
In a supplementary report dated 17 November 2022, Dr Teychenne reported on his consideration of the report of Dr Granot dated 16 November 2021. Dr Teychenne restated and maintained his opinions in relation to diagnosis and assessment of WPI and set out his clinical reasoning for those opinions. Dr Teychenne considered, but did not accept,
Dr Granot’s opinions regarding diagnosis and WPI.
In relation to Dr Granot’s opinion that the applicant does not fulfil the criteria for an assessable traumatic brain injury under the SIRA Guidelines:[28]
(a)    having regard to the reported history, Dr Teychenne considered that the applicant did have a severe impact to the head and that the injury did involve high-energy impact, as required by SIRA Guidelines, page 32, section 5.9;
(b)    Dr Teychenne stated that a significant medically verified duration of post-traumatic amnesia is critical for clinical assessment of a traumatic brain injury.
Dr Teychenne considered that, acknowledged that a Glasgow Coma Scale score was not done in respect of the applicant because he was not immediately assessed by medical personnel. However, Dr Teychenne noted that the applicant reported that, in the immediate period after the incident, his vision went black for one-and-a-half minutes and he saw golden stars. Dr Teychenne acknowledged that did not specifically indicate amnesia but stated that he suspected that the applicant was not totally cognisant of all that was happening during that period when he saw blackness and stars, and
(c)    Dr Teychenne stated that a significant intracranial pathology on CT scan or MRI scan is also critical for clinical assessment of a traumatic brain injury.
[28] ARD, pages 36, 37, 38.
Dr Teychenne acknowledged that the applicant did not have a CT scan nor an MRI scan and thus could not fulfil that criteria. However, Dr Teychenne considered that the criteria does not encapsulate mild traumatic brain injuries which may occur as a result of concussion and may be associated with cognitive defects. Dr Teychenne stated that, in his opinion, the applicant did qualify for a traumatic brain injury in that the reported history that Dr Teychenne obtained was that he had a severe impact to the head by a falling board, which involved a high-energy impact, and the applicant sustained a large laceration to the head and neck and bilateral shoulder pain. Dr Teychenne noted that the reported history was that the impact of the falling board caused the applicant to be compressed down onto his calves, his thighs gave way and he finished on his heels falling off to the right, the applicant saw blackness and stars for one-and-a-half minutes and his legs felt weak and wobbly. Dr Teychenne also noted that applicant’s various reported symptoms that he subsequently experienced following the incident, which Dr Teychenne opined to be most likely due to spinal shock occurring as a result of an acute injury to the upper cervical spinal cord. Further, Dr Teychenne stated that the description of the applicant’s headache was such that the headache had features that were typical of cervicogenic headaches arising from an upper cervical spinal cord injury.
In relation to Dr Granot’s opinion that there was no support for a spinal cord injury:[29]
[29] ARD, pages 38, 39, 40.
(a)    Dr Teychenne stated that the applicant’s medical history and symptomatology was consistent with the immediate onset of spinal shock consistent with an injury to the high cervical spinal cord, which probably involved the cervicomedullary region, particularly the sudden sensation of everything going black, immediate cervicogenic headache resulting in a sensation of knife-like pain through his head, imbalance, staggering and tremor and shaking in the legs. Dr Teychenne acknowledged that headaches resulting from a high incomplete cervical spinal cord injury may have many features consistent with migraine and they may to some extent respond to anti-migraine preparations but the genesis of the pain is from the high cervical spinal cord injury;
(b)    Dr Teychenne obtained a history that two days after the incident, the applicant had sharp pain in the neck across the left and right suprascapular region which extended down the dorsolateral aspect of the left and right arm and the applicant was unsteady for seven months after the incident, which followed a fairly classic description of acute spinal cord shock associated with cervicogenic headaches. Thus, Dr Teychenne did not agree with Dr Granot’s statement that the applicant’s upper limb symptomatology was unrelated to the incident and it had come on six months after the incident;
(c)    Dr Teychenne stated that diagnosis of an incomplete cervical spinal cord injury is generally a clinical diagnosis and many patients with such a diagnosis did not have any macroscopic evidence of injury to the spinal cord or compromise of the central spinal cord. Dr Teychenne stated that acute spinal cord injuries can occur in the presence of what appears to be a normal central canal, particularly if the patient has a significant compressive or flexion injury to the head and neck, as described by the applicant;
(d)    Dr Teychenne noted some inconsistencies in description of the incident and the item that struck the applicant, but stated that the applicant’s description of acute weakness particularly within the legs, is consistent with spinal shock;
(e)    Dr Teychenne stated that a note of Dr Rabbi on 9 September 2019 indicated that the applicant had pain over the back of the neck with radiation to his upper back and marked tenderness over C6 and C7 cervical spine. Dr Teychenne stated that information was consistent with the history he obtained from the applicant that the symptoms arising from the cervical spine had started within at least two days after the incident;
(f)    Dr Teychenne noted that, although Dr Granot indicated that examination did not show any upper motor neuron signs, Dr Teychenne found upper motor neuron weakness in both upper limbs, intrinsic hand muscle weakness and myelopathic weakness in the lower limbs. Dr Teychenne stated that the distribution of weakness was classic upper motor neuron weakness. Further, the intrinsic hand muscle weakness was described in medical literature as classic of central cervical cord injuries;
(g)    Dr Teychenne also noted that examination showed that the applicant had marked imbalance combined with upper motor neuron weakness, intrinsic hand muscle weakness and mylopathic weakness which was classic of a central incomplete cervical cord lesion which is the most common form of cervical spinal cord injuries. Dr Teychenne stated that, in his experience, MRI scans may not pick up evidence of microscopic spinal cord damage;
(h)    Dr Teychenne stated that, in contrast to examination by Dr Granot, he found considerable clinical evidence of a spinal cord injury, and
(i)    Dr Teychenne stated that the reports of Dr Rabbi, over two to four days after the incident, were also consistent with an acute spinal cord injury. He stated that, while the applicant had migraine-like cervicogenic headaches, it was apparent on overall review of the history that this was not a question of just pure post-traumatic migraine, but rather a combination of an acute spinal cord injury and most probably a concussive head injury.

SUBMISSIONS

Counsel for the applicant and counsel for the Nominal Insurer both made detailed written submissions. Both counsel referred to various parts of the evidence.
In summary, Mr Morgan submitted for the applicant that, having regard to the evidence and particularly the photographic evidence, the Commission should be satisfied that the applicant suffered a significant strike to his head in the incident. Mr Morgan submitted that the treating medical evidence and the independent medical opinion of Dr Teychenne strongly supports a finding that the applicant sustained injury to his cervical spine in the nature of a high cervical spinal cord injury. Further, Mr Morgan submitted that the treating and independent medical opinion also strongly supports a finding that the applicant sustained a traumatic brain injury.
Mr Morgan submitted that the matter should be referred to the President for remittal to a Medical Assessor to assess WPI attributable to:
(a) traumatic brain injury, and
(b) cervical spine injury.
In summary, Ms Compton acknowledged that the Nominal Insurer does not deny that the applicant was hit in the head with an object, whilst at work, and that the incident resulted in laceration of the applicant’s scalp which required modest treatment.
Ms Compton submitted for the Nominal Insurer that, having regard to various evidence, the Commission should find that the board which hit the applicant’s head was a light PVC foam board with sharp edges and that it dropped only a metre or so to the applicant who was crouched down (about 1m) from the ground.
Ms Compton submitted that the Nominal Insurer has not specifically denied that the applicant sustained an injury to the cervical spine, however there is no evidence that the applicant sustained an injury to the cervical spine in the usual respect, as there is no separate identification of an injury to the cervical spine with an attached WPI assessment.
Ms Compton submitted that the only reference to the cervical spine is the method of WPI assessment undertaken by Dr Teychenne and that Dr Teychenne’s diagnosis in that regard is without any clinical justification or radiology.
Ms Compton submitted that no claim to the cervical spine has been made at this time and the accepted injury is a lacerated injury to the head with an accepted consequential psychological injury.
Ms Compton submitted that there is no evidence that the applicant meets any of the criteria outlined in clause 5.9 of the SIRA Guidelines with respect to assessment of a traumatic brain injury.
Ms Compton submitted that the evidence of Dr Teychenne is against the weight of the evidence, is confusing, does not explain the causal relationship with the circumstances of injury and his opinion and reasoning cannot be accepted. Ms Compton submitted that the cervical spine assessment utilised by Dr Teychenne does not equate to separate pathology or injury in the cervical spine.
Ms Compton submitted that, having regard to various evidence, the Commission should prefer and accept the opinion of Dr Granot and find that the applicant sustained only a mirror laceration of his head which has resulted in a diagnosis of post traumatic migraine.
On that basis, Ms Compton submitted that there should be an award for the respondent.

FINDINGS AND REASONS

The Law

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer.
The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
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.
(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.”
Section 9A of the 1987 Act states:
“(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)    The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[30] (Kooragang), where Kirby J stated:
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[31]
[30] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[31] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated at [463] – [464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Although the High Court in Comcare v Martin[32] raised some concerns about the common sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common sense approach still has place in the application of the legislation to the present case.
[32] [2016] HCA 43, [42].
Principles regarding the discharge of the onus of proof were considered by President Keating in Department of Education & Training v Ireland[33] (Ireland). In order for the applicant to discharge the onus that he sustained the alleged injury, I “must feel an actual persuasion of the existence of that fact”.
[33] [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].

Consideration

The Nominal Insurer accepts that, on 5 September 2019, the applicant was struck on the head by an item in the course of his employment with the first respondent. Further, the Nominal Insurer accepts that incident resulted in laceration of the applicant’s scalp which required modest treatment.
I am required to determine whether, on 5 September 2019, the applicant sustained injury pursuant to ss 4(a) and 9A of the 1987 Act in the nature of:
(a) traumatic brain injury, and/or
(b) high cervical spinal cord injury.

The incident

Ms Compton submitted for the Nominal Insurer that, having regard to various evidence, the Commission should find that the board which hit the applicant’s head was a light PVC foam board with sharp edges and that it dropped only a metre or so to the applicant who was crouched down (about 1m) from the ground. The implication of Ms Compton’s submission is that the nature of the incident was not such that, on the balance of probabilities, it would have caused traumatic brain injury or high cervical spinal cord injury.
There is no explicit direct evidence in relation to the distance that the board fell before it struck the applicant’s head nor in relation to the weight of the board.
The applicant’s evidence in relation to the incident, given in his statement of 24 August 2022, is that a male colleague, Justin, stood on a ladder to screw a board or part of a board onto the display, and that it then fell from where it had been screwed onto the display and struck the applicant’s head as the applicant was on his knees on the ground.
Mr Kanyiri’s evidence is consistent to the effect that he stated that the board was required to be lifted and was then screwed onto the display by a male colleague, Justin, who was standing on a ladder to do so. Mr Kanyiri described the board that struck the applicant’s head as “a big board” and that, after it fell on the applicant’s head, it had a chip on the corner of the board.
The history of the incident recorded by Dr Rabbi on 6 September 2019 was that the board which struck the applicant’s head the previous day, was a heavy plywood and weighed about 5 to 10 kg. Dr Breen recorded a similar history.
From the pictures taken of the scene following the incident, it appears that the display was a model of a large bag. The display was clearly of a substantial size although it does not reach the height of the ceiling of the shopping centre. Considering the display in the context of surrounding structures and flooring, I estimate that it would be at least 2m high, and quite likely higher. I accept the evidence that the applicant’s male colleague stood on a ladder to affix the board to the display. Considering all the evidence as a whole, on the balance of probabilities, I consider that it is most likely that the board would have been affixed to the model at a height which was, at the minimum, above easy reaching height for an adult man when standing.
It is difficult to be certain from the pictures of the shape and dimensions of the board which fell and struck the applicant’s head. The board appears to be a long shape with some broader sides of a relatively uniform thickness. It is hard to estimate the length of the board because the entirety of the board is not visible but, considering it in the context of the person that is holding it and the flooring, I estimate that it would likely be at least close to 1m long, and quite possibly longer. It is not entirely clear from the pictures what the board is made of, but the surface appears to have some slight irregularities in parts and at least some of the surface appears to have the texture of wood or metal, more so on the broader expanses. On a close examination of the pictures, it appears that some edges of the board are more smooth, whilst other edges are not completely smooth and uniform and have a degree of irregularity. It appears from the irregularity along the edges that the board may be comprised of different substances, such as either a composite product or a product which has an external coating on the broader expanses which appears to be a metal or wood substance. The board appears from the pictures to be substantially solid. Considering the evidence as a whole, on the balance of probability, I think it is most likely that the board is at least partly made of some type of wood substance. In any event, it certainly does not appear to be made solely of PVC foam. Of course, it is hard to estimate the weight of the board from the picture, however having regard to what I have described above and considering the evidence as a whole, I consider that the board would not have been very light weight and, on the balance of probability, I am satisfied that the board would have weighed at least several kilograms and most likely over 5 kg and less than 10kg.
There is clear and significant damage to one corner of the board, which appears to be indented and lacerated. There is no evidence, and I consider it unlikely in the circumstances, that the board would have been damaged in that manner prior to the incident. The logical conclusion is that the damage to the board occurred as a result of the incident. The damage to the board indicates that the board impacted with a significant degree of energy.
The pictures also show a significant laceration to the top of the applicant’s head. As noted above, the Nominal Insurer accepts that the incident resulted in the laceration of the applicant’s scalp.
Having regard to the evidence as a whole, I am satisfied on the balance of probabilities that the circumstances of the incident was such that the falling board would have impacted the top of the applicant’s head in a significant, forceful, severe and traumatic manner. I accept that it would have been a high-energy impact.

Traumatic brain injury

Ms Compton submitted that there is no evidence that the applicant meets any of the criteria outlined in clause 5.9 of the SIRA Guidelines with respect to assessment of a traumatic brain injury.
Clause 5.9 of the SIRA Guidelines states:
“5.9 In assessing disturbances of mental status and integrative functioning; and emotional or behavioural disturbances; disturbances in the level of consciousness and awareness; disturbances of sleep and arousal function; and disorders of communication (AMA5 sections 13.3a, 13.3c, 13.3d, 13.3e and 13.3f; pp 309–311 and 317–327), the assessor should make ratings based on clinical assessment and the results of neuropsychometric testing, where available.
For traumatic brain injury, there should be evidence of a severe impact to the head, or that the injury involved a high-energy impact.
Clinical assessment must include at least one of the following:
·significant medically verified abnormalities in the Glasgow Coma Scale score
·significant medically verified duration of post-traumatic amnesia
·significant intracranial pathology on CT scan or MRI.
Neuropsychological testing should be conducted by a registered clinical neuropsychologist who is a member, or is eligible for membership, of the Australian Psychological Society’s College of Clinical Neuropsychology. Neuropsychological test data is to be considered in the context of the overall clinical history, examination and radiological findings, and not in isolation.”
Dr Granot’s independent medical opinion was that the applicant does not fulfil the criteria for an assessable traumatic brain injury under the SIRA Guidelines on the basis that there was no evidence for a significant traumatic brain injury on imaging or clinical grounds, given that there was no loss of consciousness nor imaging changes to support such an injury.
Dr Teychenne’s independent medical opinion was that the applicant does fulfil the criteria for an assessable traumatic brain injury under the SIRA Guidelines.
I find Dr Teychenne’s evidence to be particularly compelling. Dr Teychenne’s reports were very thorough, detailed, considered and in-depth reports which provided a clear and reasoned consideration and analysis of the of the applicant’s history, treatment, investigations and examination. Dr Teychenne provided a reasoned and sound explanation for his diagnosis which appears to be consistent with the evidence regarding the applicant’s history, symptoms, treatment, investigations and examination. Further, in his supplementary report Dr Teychenne again set out considered and detailed clinical reasoning in support of his opinion, and rejection of the opinion of Dr Granot.
In relation to the requirement for a severe impact to the head or a high-energy impact,
Dr Teychenne considered that both of those factors were satisfied by the reported history, which recorded a severe high-impact to the applicant’s head by the falling board, causing laceration to the applicant’s scalp.
On the basis of my findings in relation to the incident which are discussed above, I am satisfied that there is evidence of a severe impact to the applicant’s head as a result of the incident. I am also satisfied that the impact to the applicant’s head involved a high-energy impact.
In relation to the requirement for significant medically verified abnormalities in the Glasgow Coma Scale score, Dr Teychenne acknowledged that a Glasgow Coma Scale score was not done in respect of the applicant because he was not immediately assessed by medical personnel.
I am satisfied that there is no evidence that a Glasgow Coma Scale score was undertaken in respect of the applicant.
In relation to the requirement for a significant intracranial pathology on CT scan or MRI scan for clinical assessment of a traumatic brain injury. Dr Teychenne acknowledged that the applicant did not have a CT scan nor an MRI scan and thus could not fulfil that criteria.
I am also satisfied that there is no evidence of any significant intracranial pathology on CT scan or MRI.
In relation to the requirement for significant medically verified duration of post-traumatic amnesia, the applicant’s evidence, contained in his statement is that he recalls that, following the incident he was “woken up by my colleague”. The applicant stated that he stood up but felt weakness in his legs and had to sit instantly.[34]
[34] Applicant’s statement dated 24 August 2022, paragraph 15, at ARD, page 2.
However, there is no medical evidence of a specific reported history that the applicant experienced a loss of consciousness nor amnesia as a result of the incident. On
6 September 2019, the history recorded by Dr Rabbi noted that the applicant reported no loss of consciousness, vomiting, weakness in any part of his body nor loss of speech.
Dr Breen and Dr Richmond also recorded a history that the applicant did not report a loss of consciousness.

However, the history contained in the applicant’s evidence and also recorded by Dr Breen, Dr Richmond, Dr Granot and Dr Teychenne, which I accept, is that that immediately following the incident, the applicant saw only black and golden stars for approximately one and a half minutes, and he felt he would fall almost immediately he tried to stand and he felt weak and wobbly in his legs. The applicant felt pain and throbbing in his head.
Dr Teychenne acknowledged there was no medical verification which specifically indicated amnesia. However, Dr Teychenne noted that, in the immediate period after the incident, the applicant’s vision went black and he saw only blackness and stars for one-and-a-half minutes. Dr Teychenne opined that the applicant was most likely not totally cognisant of all that was happening during that period when he saw blackness and stars.
Dr Teychenne’s opinion in that regard would be consistent with the applicant’s evidence that he saw “stars” and was then “woken” by his colleague following the incident.[35] I note that there is some inconsistency between the applicant’s evidence in his statement that he was “woken” and the history recorded by treating practitioners that he did not report a loss of consciousness. The applicant’s consistent reported evidence is that he also experienced other significant effects immediately following the incident and in the subsequent hours. These included feeling excruciating pain in his neck, head and shoulders, being incredibly unsteady on his feet, needing to rest and his legs shivering and shaking uncontrollably. Considering the evidence as a whole and the significant traumatic injury to the applicant’s head, I consider that Dr Teychenne’s opinion that the applicant was most likely not totally cognisant of all that was happening during that period when he saw blackness and stars is a logical and reasonable conclusion. On that basis, I accept that Dr Teychenne’s opinion in that regard is evidence of post-traumatic amnesia.
[35] ARD, page 2, Applicant’s statement, paragraphs 14, 15.
Dr Teychenne diagnosed a concussive head injury, being a mild traumatic brain injury, with cognitive deficits, particularly a memory deficit. Dr Teychenne stated that, notwithstanding the absence of significant intracranial pathology on CT scan or MRI scan, mild traumatic brain injuries may occur as a result of concussion and be associated with cognitive defects. Dr Teychenne opined that various reported symptoms that the applicant experienced following the incident, were consistent with a traumatic brain injury. Dr Teychenne considered that the applicant’s history of, immediately following the incident, seeing blackness and stars, feeling like he would fall when he stood up and being weak and wobbly in the legs was a potential indicator of brain concussion (and also spinal concussion).
Dr Teychenne also opined that the applicant’s cognitive deficits identified by psychometric testing and also the applicant’s forgetfulness some nine months after the incident was consistent with a mild traumatic brain injury. Dr Teychenne considered that Dr Breen’s clinical findings were consistent with an organic traumatic brain injury.
I note that, on 8 April 2020, Dr Breen reported that the applicant demonstrated some mild lapses in attention, a mild reduction in his ability to perform tasks requiring rapid responses under timed conditions, verbal memory characterised by slow learning and visual memory characterised by mildly reduced recall. Dr Breen stated that the applicant’s symptoms could be explained on the basis of a post-concussion syndrome, but was also typical of significant mood disorders.
Further, in 2021, Dr Richmond stated that the applicant’s presentation was consistent with a post-traumatic headache, with possible occipital neuralgia and post concussive syndrome as well as depression.
Considering the evidence as a whole, I feel a real sense of persuasion, and I accept that, as a result of the incident, the applicant sustained a traumatic brain injury in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act to which his employment was a substantial contributing factor pursuant to s 9A of the 1987 Act.

Dispute in relation to high cervical spinal cord injury

Ms Compton submitted that no claim in relation to the cervical spine or spinal cord injury has been made at this time. Ms Compton noted that the accepted injury is a lacerated injury to the head with an accepted consequential psychological injury. Ms Compton submitted that the Nominal Insurer has not specifically denied that the applicant sustained an injury to the cervical spine.
I consider that the issue of injury to the applicant’s cervical spinal cord is a dispute that can be determined by the Commission on the basis that it is a matter subsequently arising out of a dispute, in accordance with s 289A(3) of the 1998 Act. However in any event, to the extent that it may be necessary to do so, I exercise my discretion to hear and determine the dispute in relation to injury to the applicant’s the cervical spinal cord injury pursuant to s 289A(4) of the 1998 Act on the basis that it is in the interests of justice to do so.
I have given consideration to the principles and matters set out in Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227.
In that regard, I note that the Nominal Insurer was made aware of the claimed high cervical cord lesion injury when it was served with the report of Dr Teychenne with the applicant’s claim for lump sum permanent impairment compensation by letter dated 13 September 2021. The applicant’s claim for lump sum permanent impairment compensation by letter dated
13 September 2021 was based on the attached independent medical opinion of
Dr Teychenne dated 7 September 2021. Dr Teychenne’s opinion articulated a diagnosis of a high incomplete cervical cord lesion and also provided an assessment of WPI which included an assessment of WPI in respect of the applicant’s central and peripheral nervous system. The Nominal Insurer’s s 78 notice dated 11 January 2022 stated that it relied on the report of the independent medical expert qualified by the Nominal Insurer, Dr Granot, dated
16 November 2021. In that report, Dr Granot specifically considered Dr Teychenne’s diagnoses of traumatic brain injury and high cervical cord lesion and expressly provided an opinion in relation to such injury. That was the basis of the Nominal Insurer’s s 78 notice.
The ARD stated a claim for permanent impairment compensation in respect of the cervical spine and nervous system. In the Reply, which was filed by way of the AALD by the Nominal Insurer dated 20 March 2023, the Nominal Insurer stated that the respondent,
“disputes liability for any alleged traumatic brain injury or cervical cord lesion/ high spinal cord injury pursuant to section 4 and 9A of the 1987 Act. The Respondent disputes that the Applicant suffers any permanent impairment at all or as alleged. The matter requires determination of the injury issues prior to any referral for Medical Assessment”.
The Nominal Insurer did not then raise any issue regarding a failure to claim in relation to spinal cord injury.
At the preliminary conference held on 18 April 2023, the Nominal Insurer was represented by its solicitor. Directions issued by the Commission on 18 April 2023 record that the parties agreed that the matters in dispute include whether the applicant suffered injury in the nature of traumatic brain injury or high cervical spinal cord injury on 5 September 2021 pursuant to ss 4(a) and 9A of the 1987 Act. The Nominal Insurer sought and obtained Directions for Production at the preliminary conference. Again, no issue was raised by the Nominal Insurer at the preliminary conference regarding any failure to claim in respect of injury to the applicant’s cervical spinal cord.
I do not consider that there is undue prejudice to either of the parties by the determination of the issue at this time because the independent medical evidence of both the applicant and the Nominal Insurer directly addresses the issue of high cervical cord lesion injury and, as demonstrated in these reasons, there is considerable merit to the medical evidence in support of a finding that the applicant sustained a high cervical cord lesion injury.
I have also considered the objects of the Commission under ss 3 and 42 of the PIC Act. In particular, s 42(1) requires the Commission to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
On balance, having regard to all of the above matters that I have referred to above in relation to this particular proceeding and the claim for permanent impairment compensation in respect of a high cervical cord lesion injury, I consider that the interests of equity, good conscience, the substantial merits of the case and justice is best served by determination of the dispute whether the applicant sustained cervical spinal cord injury.

High cervical spinal cord injury

Ms Compton submitted for the Nominal Insurer that there is no evidence that the applicant sustained an injury to the cervical spine in the usual respect, as there is no separate identification of an injury to the cervical spine with an attached WPI assessment.
Ms Compton submitted that the only reference to the cervical spine is the method of WPI assessment undertaken by Dr Teychenne and that Dr Teychenne’s diagnosis in that regard is without any clinical justification or radiology.
Dr Granot did not find there to be any evidence whatsoever for a cervical spinal cord or associated injury to be assessed. Dr Granot’s opinion in that regard was based on several factors: Dr Granot’s understood that the applicant’s upper limb symptomatology began six months following the incident, and Dr Granot considered that it more likely related to shoulder pathology which was triggered by circumstances which were unrelated to the incident; Dr Granot noting that there are no upper motor neuron signs when examining the patient; and finally Dr Granot noted there are no MRI changes of the spinal column or spinal cord at all.
In contrast, Dr Teychenne diagnosed a high incomplete cervical cord lesion injury caused by the incident. Dr Teychenne’s opinion in that regard was based on the following factors:
(a)    Dr Teychenne noted that, during the incident, the applicant was struck by a heavy sign and sustained a large laceration to his head and head, neck and bilateral shoulder pain;
(b)    Dr Teychenne considered that certain of the applicant’s history immediately following the incident of seeing blackness and stars, feeling like he would fall when he stood up and being weak and wobbly in the legs was an indicator of spinal concussion;
(c)    Dr Teychenne considered that the applicant’s symptoms immediately following the incident, being sharp knife-like head pain, being off balance and staggering to some extent, leg tremor and shaking, was consistent with a spinal cord lesion injury;
(d)    Dr Teychenne considered that the applicant’s ongoing headaches were consistent with occipital neuralgia and an organic headache (rather than a stress-related headache) which was consistent with an incomplete cervical cord injury. Dr Teychenne considered that the applicant’s headaches, feeling that his eyeballs were being sucked out with the headache and photophobia particularly in the morning was not unusual in patients with high cervical cord lesions which involve the cervicomedullary region;
(e)    Dr Teychenne considered that the applicant’s history of head and neck pain, which particularly occurred if he carried out heavy activities, was consistent with dysaesthesia secondary to cervicogenic upper cervical nerve root pain;
(f)    Dr Teychenne considered that the applicant’s feeling of electric shock from the left and right suprascapular region into the left and right occiput shooting into the parietal region of the head was quite typical of a cervicogenic headache, being neuropathic pain arising from the upper cervical spinal cord;
(g)    Dr Teychenne considered that the applicant’s feeling of weakness in his arms which could last for up to 30 minutes was consistent with high cervical cord lesion. Dr Teychenne considered that the applicant’s history of hand tremor which developed six months after the incident was quite consistent with the applicant sustaining an upper spinal cord injury at the time of the incident;
(h)    Dr Teychenne considered that the applicant’s history of weakness in his legs and being unsteady for seven months after the incident was also consistent with a high incomplete cervical cord lesion;
(i)    Dr Teychenne considered that the applicant’s decreased erections was consistent with high cervical cord injury, and
(j)    Dr Teychenne noted on examination, that the applicant had evidence of a high incomplete cervical cord lesion, in particular: when squatting, the applicant’s legs collapsed and did not support him; when walking, the applicant walked with a mild slow small stepped gait; the applicant was slightly slow standing up from a chair without pushing up; when the applicant stood up on his heels, he fell back; the applicant had a mild sway to the left and right on heel-to-toe walk; he had bilateral imbalance; when pushed, the applicant fell en bloc to the left and right; when pulled, the applicant fell back with collapse of both legs; the applicant had sharp pain across the left and right anterior C3/4 dermatome when hunching up his shoulders; he had brisk knee reflex and patellar reflexes; he had upper motor neuron weakness in the upper limbs and intrinsic hand muscle weakness within the lower limbs; he also had a sensory level to pain and temperature sensation at T10 anteriorly and at T7 posteriorly, the level was higher in the upper limbs at C4.
As I have noted above, the picture of the applicant’s head following the incident shows a significant laceration to his scalp. The picture of the model, from which the board fell, indicates that it was of such a height that the board likely fell such a distance before it impacted the applicant’s head as he knelt on the floor, that it would have been a high-energy impact. The pictures of the board which struck the applicant’s head indicates that it was likely of such a substantial size, substance and heft that it would have struck the applicant’s head as it fell with a severe and a high-energy impact.
I note that the applicant described that, immediately following the incident, he felt an onset of shooting pain to his head, neck and shoulders and his head felt heavy and painful. He described being unsteady on his feet and, later that day, uncontrollable shivering and shaking of his legs.
Dr Rabbi recorded on 9 September 2019 that the applicant reported that since the incident he had pain in the back of his neck which radiated to his upper back. Dr Rabbi noted that the applicant had marked tenderness over the C6 and C7 cervical spine and movement of the applicant’s neck was mildly restricted due to pain.
Dr Breen recorded on 8 April 2020 that the applicant reported pain in his neck, shoulders and back which had been constant since the incident.
On 7 October 2020, Associate Professor Sundaraj noted that imaging was essentially reported as normal. However on examination, Associate Professor Sundaraj noted significant tenderness in the upper cervical facet regions and specifically C2/3 and C3/4 levels, with the right side worse than the left side. The greater occipital nerve at the superior nuchal line was very tender even to light palpation. Associate Professor Sundaraj opined that the applicant had sustained injury to the upper cervical facet joints and that in turn was causing irritation to the occipital nerves, which arise from the upper cervical spine. Associate Professor Sundaraj diagnosed cervical facet disharmony and associated occipital neuralgia.
In 2021, Dr Richmond recorded that the applicant had persistent post-traumatic headache, ongoing dizziness, poor concentration and memory and neck and bilateral shoulder pains.
Dr Richmond noted that the applicant’s pain was aggravated by forward flexion of the applicant’s cervical spine. She noted that the applicant had experienced photophobia, blurred vision and diplopia but that had resolved.
On or about 11 September 2019, Dr Rabbi recorded that the applicant still had pain on both sides of his head and pain when he lay down. A CT of the head showed swelling overlying the posterior aspect of the skull vertex without any fracture being identified. A CT of the cervical spine showed no significant abnormality.
The Nominal Insurer has accepted that the applicant sustained a laceration to his head as a result of the incident. There is no evidence of any other significant cause of cervical spinal cord lesion injury apart from the incident.
I find Dr Teychenne’s evidence to be particularly compelling. As noted above,
Dr Teychenne’s reports were very thorough, detailed, considered and in-depth reports which provided a clear and reasoned consideration and analysis of the of the applicant’s history, treatment, investigations and examination. I consider that Dr Teychenne provided a reasoned and sound explanation for his diagnosis which appears to be consistent with the evidence regarding the applicant’s history, symptoms, treatment, investigations and examination. Further, in his supplementary report Dr Teychenne again set out considered and detailed clinical reasoning in support of his opinion, and rejection of the opinion of
Dr Granot.
Considering the evidence as a whole, I feel a real sense of persuasion, and I accept that, as a result of the incident, the applicant sustained a high cervical cord lesion injury in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act to which his employment was a substantial contributing factor pursuant to s 9A of the 1987 Act.

Declaration pursuant to s 162 of the 1987 Act

The ARD stated that the applicant seeks a declaration under s 162 of the 1987 Act on the ground that the first respondent, Chamight Pty Ltd commenced to be wound up after entering into a contract with an insurer/scheme agent. Further, the ARD stated that the first respondent, Chamight Pty Ltd, is uninsured. It stated that the applicant seeks a declaration that the first respondent was not insured as required by the 1987 Act at the time of the applicant’s injury and also seeks the following orders:
(a) that the Nominal Insurer pay any compensation and costs awarded against the employer from the Workers Compensation Insurance Fund established under
s 154D of the 1987 Act, and
(b) that the first respondent reimburse the Nominal Insurer for amounts paid out of the Workers Compensation Insurance Fund in respect of compensation and costs awarded against the employer.
Section 162 of the 1987 Act relevantly states:
“162   Death of employer
(1)    The Commission may, on application by a worker and if satisfied as to the matter sought to be declared, declare that an employer has entered into a contract with an insurer, named in the declaration, in respect of any liability under this Act to that worker and that the employer—
...
(d)being a company, has commenced to be wound up after entering into the contract with the insurer.
(2)    Where the Commission makes a declaration under subsection (1), the Commission may make an award of compensation for an injury to the worker (being, in the case referred to in subsection (1) (d), an injury that took place before the commencement of the winding up of the employer) and such an award shall, for the purposes of section 159, be deemed to be an award against an employer of the worker with whom the insurer referred to in the declaration entered into a contract with respect to any liability under this Act to that worker.”
The claim for permanent impairment compensation pursuant to s 66 of the 1987 Act was made on the Nominal Insurer and the Nominal Insurer issued the notice pursuant to s 78 of the 1998 Act. The Nominal Insurer was represented at the hearing.

It appears to be common ground that the first respondent, Chamight Pty Ltd commenced to be wound up after entering into a contract with an insurer/scheme agent and / or was not insured as required by the 1987 Act at all relevant times, however there is no clear evidence in this regard and the basis for that is unclear.
In the circumstances, I am satisfied that it is appropriate to issue declarations as follows:
(a) the first respondent, Chamight Pty Ltd, commenced to be wound up after entering into a contract with an insurer/scheme agent, and
(b) the first respondent was not insured as required by the 1987 Act at all relevant times.
Further, I consider that it is appropriate to order that:
(a) the Workers Compensation Nominal Insurer is liable to pay compensation to the applicant pursuant to s 66 of the 1987 Act as if it were the insurer of the first respondent, Chamight Pty Ltd, at all relevant times, and
(b) pursuant to s 145 of the 1987 Act, the first respondent, Chamight Pty Ltd, reimburse the Workers Compensation Nominal Insurer the amounts paid out of the Insurance Fund in respect of the above-mentioned compensation.

SUMMARY

The Commission declares:
(a) the first respondent, Chamight Pty Ltd, commenced to be wound up after entering into a contract with an insurer/scheme agent, and
(b) the first respondent, Chamight Pty Ltd, was not insured as required by the 1987 Act at all relevant times.
The Commission determines:
(a)    The applicant sustained a traumatic brain injury on 5 September 2019 in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act to which his employment was a substantial contributing factor pursuant to s 9A of the 1987 Act.
(b)    The applicant sustained a high cervical cord lesion injury on 5 September 2019 in the course of his employment with the respondent pursuant to s 4(a) of the 1987 Act to which his employment was a substantial contributing factor pursuant to
s 9A of the 1987 Act.
(c)    The matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows:
Date of injury:           5 September 2019
Body parts:               nervous system
cervical spine
Method:  whole person impairment
(d)    The materials to be referred to the Medical Assessor are to include:
(i)ARD and attached documents;
(ii)AALD by the Nominal Insurer dated 20 March 2023, which contains the Reply, with the exception of:
A.Statement of Justin Moran dated 22 October 2019 (at AALD by the Nominal Insurer dated 20 March 2023, page 6);
B.Email – Incident Report dated 22 October 2019 (at AALD by the Nominal Insurer dated 20 March 2023, page 15).
(iii)AALD by worker dated 29 May 2023, with the exception of:
A.paragraphs 2, 3 and 5 of the applicant’s supplementary statement dated 5 April 2023 (at AALD by worker dated 29 May 2023, page 2).
(iv)AALD by the Nominal Insurer dated 29 May 2023.
(e)    The Workers Compensation Nominal Insurer is liable to pay compensation to the applicant pursuant to s 66 of the 1987 Act as if it were the insurer of the first respondent, Chamight Pty Ltd, at all relevant times.
(f)    Pursuant to s 145 of the 1987 Act, the first respondent, Chamight Pty Ltd, reimburse the Workers Compensation Nominal Insurer the amounts paid out of the Insurance Fund in respect of the above-mentioned compensation.

[2023] NSWPIC 348

14 July 2023