Pena v Almec Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Pena v Almec Pty Ltd [2023] NSWPIC 115
APPLICANT:	Ernesto Dela Pena
RESPONDENT:	Almec Pty Ltd
Member:	Karen Garner
DATE OF DECISION:	17 March 2023
DATE OF AMENDMENT:	20 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; applicant had accepted head injury; whether the applicant sustained injury to his neck pursuant to sections 4(a), 9A and 4(b)(ii); Held – applicant did not sustain injury to his cervical spine arising out of his employment pursuant to section 4(a) and 9A; applicant sustained injury to his cervical spine arising out of his employment pursuant to section 4(b)(ii); matter remitted to the President of the Personal Injury Commission for referral to a Medical Assessor for assessment of permanent impairment in relation to the applicant’s cervical spine.
determinations made:	The Commission determines: 1. The applicant did not sustain injury to his cervical spine arising out of his employment with the respondent pursuant to s 4(a) of the Workers Compensation Act 1987 to which his employment was a substantial contributing factor pursuant to s 9A of the Workers Compensation Act 1987. 2. The applicant sustained injury to his cervical spine in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the Workers Compensation Act 1987. The Commission orders: 3. The matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows: Date of injury: 21 December 2020. Body parts: cervical spine and TEMSKI/ scarring. Method: whole person impairment. 4. The materials to be referred to the Medical Assessor are to include: (a) the Application to Resolve a Dispute and all attachments; (b) direction dated 13 December 2022, which notes amendment to the Application to Resolve a Dispute, and (c) the Reply and all attachments.

STATEMENT OF REASONS

BACKGROUND

Ernesto Dela Pena (the applicant) is 69 years old and was employed by Almec Pty Ltd (the respondent) as a Process Worker.
The applicant alleges that, while working on 21 December 2020, he injured his head and neck when he accidentally fell whilst moving three large metal sheets (the Event). The applicant also alleges that the injury caused aggravation, acceleration, exacerbation or deterioration of an underlying disease process in his neck.
On or about 23 December 2020, the applicant initiated a workers compensation claim against the respondent by way of a Certificate of Capacity issued by Dr Izzet Ayad Meina, which certified that the applicant had no capacity for any work from 19 January 2021 to
19 February 2021 because of a “Head Injury, Right supraorbital Facial laceration” on
[1] ARD, page 42.
21 December 2020.[1]
By a claim dated 13 March 2020, [2] which was served on the respondent’s insurer under cover of an email dated 28 March 2022, [3] the applicant’s solicitor made a claim for permanent impairment lump sum compensation (permanent impairment compensation) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 27% whole person impairment (WPI) for “Central cervical cord lesion and laceration to forehead” with a date of injury of
[2] ARD, page 8.
[3] ARD, page 11.
21 December 2020. The claim attached a report and WPI assessment of Dr Paul Teychenne (Dr Teychenne) dated 10 September 2021 and a supplementary report of Dr Teychenne dated 13 November 2021.
By notice dated 19 August 2022, issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the insurer disputed liability for weekly payments pursuant to s 33 of the 1987 Act and for medical or related expenses pursuant to s 60 of the 1987 Act for the claimed injury to the applicant’s cervical spine on the grounds that:[4]
(a)    the applicant had failed to give notice of the injury to the cervical spine prior to service on the insurer of the claim for permanent impairment compensation on
28 March 2022, and had failed to make the claim in accordance with ss 254 and 261 of the 1998 Act;
(b)    there was no injury to the applicant’s cervical spine which arose out of or in the course of his employment, to which his employment was a substantial contributing factor on 21 December 2020 (as required by ss 4 and 9A of the 1987 Act);
(c)    the applicant did not have total or partial incapacity for work resulting from an injury (as required by s 33 of the 1987 Act), and
(d)    medical or related treatment was not reasonably necessary as a result of an injury (as required by ss 59 and 60 of the 1987 Act).
[4] ARD, page 12.
By further notice also dated 19 August 2022, issued pursuant to s 78 of the 1998 Act, the insurer disputed liability for permanent impairment compensation for the claimed injury to the applicant’s cervical spine on the grounds that:[5]
(a) whilst there was an accepted physical injury, there was no injury to the applicant’s cervical spine which arose out of or in the course of his employment, to which his employment was a substantial contributing factor on
21 December 2020 (as required by ss 4 and 9A of the 1987 Act), and
(b) the applicant did not meet the requisite threshold of greater than 10% WPI (as required by s 66 of the 1987 Act).
[5] Reply, page 1.
By Application to Resolve a Dispute (ARD) registered in the Personal Injury Commission (the Commission) on 11 October 2022, the applicant claims permanent impairment compensation pursuant to s 66 of the 1987 Act for 27% WPI totalling $75,940 in respect of the applicant’s cervical spine and TEMSKI/scarring, with a date of injury of
21 December 2020.
On 1 November 2022, the respondent lodged in the Commission a Reply to ARD (Reply).
By direction dated 13 December 2022, the Commission directed that the ARD is amended, by consent, by amending the “Injury Details – Type of injury” to read:
“Type of Injury:
Personal/aggravation, acceleration, exacerbation or deterioration of underlying disease process – ss 4(a), 4(b)(ii) of the Workers Compensation Act 1987”

ISSUES FOR DETERMINATION

The respondent accepts injury to the applicant’s head in the course of employment on
21 December 2020.
The parties agree that the following issues remain in dispute in relation to the applicant’s claim for permanent impairment compensation pursuant to s 66(1) of the 1987 Act:
(a) whether the applicant sustained a cervical spine injury arising out of or in the course of employment and his employment was a substantial contributing factor to the injury – ss 4(a) and 9A of the 1987 Act;
(b) whether the applicant sustained aggravation, acceleration, exacerbation or deterioration of disease in his cervical spine arising out of or in the course of employment and his employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration – s 4(b)(ii) of the 1987 Act, and
(c) the degree of permanent impairment resulting from such injury.

PROCEDURE BEFORE THE COMMISSION

At a hearing on 13 December 2022, the applicant was represented by Ms Eraine Grotte, counsel, instructed by Ms Biljana Maric of Fern Lawyers. The respondent was represented by Ms Pam Goodman, counsel, instructed by Mr Rahul Dominic Balan of HWL Ebsworth Lawyers.
I am satisfied that the parties to the dispute understand the nature of the ARD and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD with attached documents, and
(b) Reply with attached documents.

Oral evidence

No party applied to adduce oral evidence or cross-examined any witness.

Applicant’s statement

The applicant provided a statement in writing.[6]
[6] ARD, page 1.
The applicant stated that he commenced working with the respondent as a full-time process worker in 2018.
The applicant had neck pain approximately two years prior to the accident on
21 December 2020. The applicant was treated with physiotherapy and was able to, and did, continue working without further complaint. The applicant was not incapacitated until the accident.
On 21 December 2020 at about 11.15pm after the end of his shift, he was asked by his supervisor to stay on and to move three sheets of metal in one go from one pallet to another pallet. Whilst the applicant and his supervisor worked together to move the metal sheets, the applicant slipped on some plastic. The applicant fell forward, hit his forehead on the edge of the metal sheets and then fell further to the concrete ground. The applicant sustained a U-shaped laceration 7cm long by 1cm wide over the right forehead from where he hit the corner of the metal sheet. When the applicant raised his head from the concrete ground, his forehead was bleeding. The applicant stood up but felt dizzy and felt a tremor in his arms and legs.
The applicant intended to go straight to hospital, however diverted to his home which was closer, because he felt uneasy and dizzy and was continuing to bleed from his forehead through a bandage. When the applicant returned home, his daughter took him to Westmead Hospital.
The applicant was admitted to Westmead Hospital. He received treatment including stitches and painkillers and imaging was undertaken. He was discharged at 6pm the following day into the care of his family and treating practitioner, Dr Meina.
On or around 23 December 2020, the applicant attended Dr Meina because he was still feeling very dizzy and noticed that his eyesight was blurry. Dr Meina referred him back to Westmead Hospital.
The applicant resigned employment, with his last day of service being 23 May 2021, without returning to work.
The applicant received treatment from Dr Dowla, neurosurgeon, due to him feeling numbness on his forehead and pins and needles around the wound, blurry vision and dizziness. The applicant underwent various investigations.
The applicant continued to experience ongoing headaches and dizziness. The headache was a “numb headache” which would last about two minutes, occurring up to three times per week, sometimes twice a day.
In or around June 2021, the applicant began to experience a needle-like pain from the neck, which extended across the left and right suprascapular region. Occipital pain from the neck into the back was constant at the time and would particularly wake him up at night.
In or around June 2021, the applicant was dropping articles out of his hands. He was weak in his arms and hand and had trouble moving his right arm at the shoulder.
The applicant attended his general practitioner because of what he was experiencing and a CT scan of the applicant’s neck was undertaken on or about 22 June 2021.
The applicant was then referred to Dr Fowler, neurosurgeon, whom he attended on or about 24 June 2021. Dr Fowler recommended an MRI scan and physiotherapy treatment for the neck.
The applicant attended physiotherapy treatment for a couple of months, which provided temporary relief.
The pain then returned and the applicant again consulted Dr Fowler who recommended a CT-guided injection to the neck, which was performed at Westmead Hospital. The injection provided temporary relief.
The applicant continues to experience ongoing weakness in his hands and arms, dropping articles out of his hands, trouble moving his right shoulder, pain over the anterior aspect of the shoulder, numbness in his forehead, a feeling of pins and needles over the laceration, blurry vision, headaches that last for up to an hour and bouts of dizziness.
As a result of ongoing symptoms, the applicant is unable to engage in many activities that he was previously able to undertake and this has significantly impacted his daily life.
The applicant has been advised that he requires treatment for his neck and fears that his condition may worsen if he does not receive treatment.

Treating medical evidence

Dr M Dowla, consultant in neurology and clinical neurophysiology

Dr Dowla reviewed the applicant upon referral from Dr Meina in respect of ongoing dizziness experienced by the applicant.
Dr Dowla’s report to Dr Meina dated 4 March 2021,[7] stated that he could not find any evidence of any neural injury in the forehead and that the applicant’s dizziness is probably functional.
[7] ARD, page 209.
In a report dated 13 May 2021,[8] Dr Dowla stated that the applicant reported that since the accident on 21 December 2020, he felt dizzy on and off and the applicant felt heavy in the head with blurring vision particularly in the morning. The applicant also reported a pinprick sensation in the right forehead and occasional numbness. On examination, Dr Dowla noted that there was no definite sensory impairment and all cranial nerve functions were normal.
[8] ARD, page 42.
Dr Dowla stated that he could not find any evidence of any neural injury in the forehead. He opined that the applicant’s dizziness was probably functional.
In a report dated 21 February 2022,[9] Dr Dowla stated that on review examination, there was no definite sensory impairment, all cranial nerve functions were normal, Hallpike’s test was negative, and a bink reflex study showed normal R1 and R2 latencies and inter-latencies indicative of normal facial and trigeminal nerve function. Dr Dowla stated that he could not find evidence of any neural injury in the forehead and the applicant’s dizziness was probably functional.

Clinical notes

[9] Reply, page 7.

Dr Izzet Ayad Meina

The evidence includes various clinical notes of the applicant’s treating practitioner,
[10] ARD, page 45.
Dr Meina.[10]
On 23 December 2020, Dr Meina noted:[11]
“work related injury on 21/12/2020
had a fall at work
sustained Right forehead supraorbital laceration treated at hospital
CT scan (Brain), no acute intracranial injury
presented this afternoon with increasing headache, nauseated, and blurrey vission [sic]”
[11] ARD, page 54.
A Workers Compensation First Attendance Form dated 23 December 2020 stated the type of injury as “witnessed fall – head laceration”.[12]
[12] ARD, page 158.
On 19 January 2020, Dr Meina noted[13] that he was planning to give the applicant a final WorkCover certificate but the applicant reported that dizziness was an ongoing issue. The applicant was concerned that he may fall again if he went back to work. Dr Meina referred the applicant back to Westmead Hospital. Dr Meina referred the applicant to Dr Shareef Dowla, neurologist.
[13] ARD, pages 52-53.
On 11 February 2021, Dr Meina noted[14] that the applicant reported that he was still experiencing dizziness.
[14] ARD, page 52.
On 24 June 2021, Dr Meina referred the applicant for work-related psychological symptoms.[15]
[15] ARD, page 51.
On 21 June 2021, Dr Meina noted[16] “worsening of neck pain (Chronic OA)”. Dr Meina referred the applicant for an X-ray and CT scan of the cervical spine. Dr Meina noted that:[17]
“Last X ray on 2019
showed Advanced Facet arthropathy on Right side, along with bony Encroachment on Right C4-5 neural foramen
and left Moderate Facet arthropathy on left C2-3
clinically no neurological Deficit”
(the 2019 X-ray referred to in Dr Meina’s clinical notes is not in evidence)
[16] ARD, pages 47-48.
[17] ARD, page 48.
On 24 June 2021, Dr Meina discussed the scan results with the applicant[18] and referred him to Dr Renata Abruszko[19] in respect of “Lower cervical degenerative disc disease and left C6 and bilateral C7 radiculopathy. Central cord compression C3-C7”.
[18] ARD, pages 46-47.
[19] ARD pages 137, 140.
On 25 June 2021, Dr Meina referred the applicant to Dr Adam Fowler[20] in respect of “Lower cervical degenerative disc disease and left C6 and bilateral C7 radiculopathy. Central cord compression C3-C7”.
[20] ARD, page 142.

Dr Shareef Dowla, neurologist

The evidence includes various clinical notes of Dr Dowla.[21]
[21] ARD, page 203.
Dr Meina’s referral to Dr Dowla dated 19 January 2021 noted that the applicant experienced “ongoing dizziness”.[22]
[22] ARD, page 205, 209.
Dr Dowla’s reported,[23] that he could not find any evidence of any neural injury in the forehead and that the applicant’s dizziness is probably functional.
[23] ARD, page 209.

Jason Kevern, Rehabilitation Consultant, Interact Injury Management

The evidence includes various clinical notes of the applicant’s rehabilitation consultant, Jason Kevern.[24]
[24] ARD, page 212.
A report of Interact Injury Management dated 4 March 2021,[25] noted that the applicant’s job included lifting and carrying of sheet metal, loading sheet metal onto a press machine and boxing up completed jobs.
[25] ARD, pages 219, 233, 238.
Reports of Interact Injury Management dated 12 February 2021,[26] 17 February 2021,[27]
[26] ARD, page 257.
[27] ARD, page 265; Reply, page 26.
[28] ARD, pages 225, 238.
[29] ARD, page 245; Reply, page 26.
[30] ARD, page 241.
[31] ARD, page 221,
4 March 2021,[28] 25 March 2021,[29] 26 April 2021[30] and 18 June 2021,[31] noted that the applicant experienced ongoing dizziness.

Dr Adam Fowler, neurosurgeon

The evidence includes various clinical notes of Dr Fowler, neurosurgeon.[32]
[32] ARD, page 283.
Dr Fowler’s report to Dr Meina dated 14 July 2021,[33] stated that the applicant reported greater than two years of escalating mechanical type neck pain, with neck stiffness and discomfort in all degrees of motion of his cervical spine and right-sided pain over the cape of his trapezius region when he lies a certain way. Dr Fowler noted on examination, that the applicant essentially had a full range of neck motion with restriction due to pain but otherwise the presentation was generally normal. Dr Fowler noted that a CT scan of the applicant shows multiple levels of advanced osteoarthritic change. Dr Fowler stated that the applicant’s presentation was suggestive of spinal cord compression in the lower cervical spine but there was no clinical myelopathy present.
[33] ARD, page 285.
Dr Fowler noted that a report of imaging of the applicant’s spine on 19 July 2021[34] noted that there is evidence of significant degenerative change in several facet joints and intervertebral discs of the cervical spine, both shoulders and multiple other sides, being most marked in the lumbar spine (C3/C4, C5/6, C6/7, L5/S1, L4/5). Dr Fowler referred the applicant for an MRI scan and a bone scan.
[34] ARD, page 287.
The bone scan[35] showed evidence of significant degenerative change in several facet joints and intervertebral discs of the cervical spine. The MRI scan of the cervical spine dated
[35] ARD, page 287.
[36] ARD, page 289.
19 July 2021[36] reported no cord compression or myelopathy.

Westmead Hospital

A report of a CT scan of the brain on 24 December 2020[37] stated there was no acute intracranial haemorrhage and the overall appearance was unchanged compared to CT brain scan from 22 October 2020.
[37] ARD, page 294.
A Discharge Summary dated 22 December 2020[38] noted the applicant’s admission on
22 December 2020 and recorded the history of the presenting illness as follows:
“-   Fall with headstrike onto right frontal aspect of head onto sheet metal
-      Denies LOC, amnesia, could immediately mobilise
-      Denies precipitating events eg SOB, dizziness, chest pain, palpitations
-    Sustained deep circular lac to right forehead requiring silver nitrate cauterisation in ED
-    Some headache + dizziness (dizziness present only in ED)
-    Denies c-spine pain, nausea, vomiting, coryzal symptoms, chest pain, abdo pain, limb pain
-    States injury occurred at work at [approximately] 2330 in the company warehouse. States was rostered 1500-2300 but was required to stay back after work”
[38] ARD, page 149.

A Patient Health Record/Discharge Summary dated 24 December 2020[39] noted that the applicant presented again on 23 December 2020 with worsening headache, nausea and onset of blurry vision. It noted that the applicant also reported dizziness. It stated that the applicant had a history of a fall and head injury (on 21 December 2020) and had sustained a 10cm circular right supraorbital, suprafascial laceration.
[39] ARD, page 294; Reply 22.

Imaging

A report of a CT scan of the neck dated 24 June 2021,[40] stated that: at C3-4 and C4-5 there is prominent right-sided facet joint osteoarthritis with secondary neural foraminal narrowing; at C5-6 and C6-7 there is prominent degenerative disc disease with intervertebral disc space narrowing and circumferential osteophyte formation; at C5-6 there is left-sided neural foraminal narrowing; at C6-7 there is bilateral neural foraminal narrowing; between C3 and C7 focal posterior osteophytes impact the cervical cord, there is no evidence of an intervertebral disc prolapse. The reported stated an impression of right mid and upper cervical joint osteoarthritis and right C4 and C5 radiculopathy, lower cervical degenerative disc disease and left C6 and bilateral C7 radiculopathy and central cord compression at C3-7.
[40] ARD, page 310.

Photograph of injury/scarring

A photograph of the applicant’s head[41] shows a significant U-shaped lesion on his head above his right eye.
[41] ARD, pages 312-347; Reply, pages 36- 74.

Certificates of Capacity

Numerous Certificates of Capacity were completed in respect of head injury, right supra-orbital facial laceration and post-traumatic stress disorder with a date of injury of
[42] ARD, pages 315-318; Reply, pages 36-75.
[43] ARD, page 340.
[44] 19 January 2021 - ARD, page 326; 19 February 2021 – ARD, page 328.
21 December 2020.[42] A Certificate of Capacity dated 23 December 2020 stated that the applicant was referred back to hospital in relation to headache, blurry vision and visual field defect.[43] Some Certificates of Capacity noted that the applicant kept “complaining of dizziness”.[44]

Section 126 documents - Icare

The evidence included various other documents,[45] many of which were copies of documents included elsewhere in the evidence and referred to above.

Independent medical evidence

[45] ARD, page 318.

Dr Paul Teychenne, neurologist

Dr Teychenne provided an independent medical opinion at the request of the applicant.
In a report dated 10 September 2021, Dr Teychenne took a detailed history of the Event on 21 December 2020 and symptomatology from the applicant, which included:
“... he stated that when he hit the floor with his head his head rebounded back and he demonstrated about 20 [degrees] of hyperextension. He stood up at that time but he felt dizzy. He was swaying to the left ad right. He was taking very small steps. He had a tremor in the arms and legs. He had pain across the anterior right shoulder. He felt he could not move his right arm at the shoulder.
His legs felt weak and soft. He demonstrated that his legs were flexing down as he walked. The tremors were intermittent but were lasting about 5 minutes. His legs were flexing down for minutes at a time. He drove home but when his daughter saw him when he arrived home she noted that aside from the laceration that he was taking very small steps and that he was shaking particularly in the right leg. The tremor was episodic lasting a few minutes clearing but then recurring. He was holding the right side of his head over the laceration. He was nauseated. He had blurred vision. His lips were dry and he was spinning. His head felt heavy. The spinning was episodic lasting a few minutes.
He was taken to the Westmead Hospital and was admitted for a day. He was discharged at 6pm the following day. His family took him home. They noted that he was taking very small steps. His wife demonstrated very small almost shuffling steps. He was tremoring in the legs. This situation persisted for about 7 days before he began to walk with a better cadence. It was about 6 days before the tremor eased.
Around June 2021 he began to notice a needle like pain from the neck across the left and right suprascapular region varying at intensity from 1/10 to 4/10. At that time he noted the pain was extending across the left and right suprascapular region and he also noted headaches and dizziness. The pain was extending from the neck into the back of the head and over the top of the head to the forehead. He stated the headache would occur with the dizziness. He described the headache as a numb headache. The dizziness was a sense of swaying. The headache was episodic. It would last about 2 minutes occurring up to 3 times per week sometimes twice a day. The occipital pain form the neck into the back of the head however was constant and would particularly wake him at night. He described a needle like pain in the neck across the left and right suprascapular region. He had noted the neck pain across the left and right suprascapular region for at least 2 years prior to the accident but the pain was worse after the accident rising to intensity 5/10.
In June 2021 he noted that he was dropping articles out of either hand. He was weak in the arms and hands. He had trouble moving the right arm at the shoulder. He appeared to have pain over the anterior aspect of the shoulder.
...
His family noted when he arrived home immediately after the accident that he was holding his head over the area of laceration. He felt nauseated. He had blurred vision. His lips were dry. He was spinning. His head felt heavy.... after the injury he noted more marked urinary frequency and recurrent incontinence...”[46]
[46] ARD, pages 27-28.
On examination, Dr Teychenne noted that: the applicant had a 7cm x 1cm U-shaped scar over the forehead; cranial nerve examination was normal; the applicant had grade 3-4/5 weakness in the left and right supraspinatus, deltoid and infraspinatus muscles with grade 3-4/5 weakness in dorsiflexion of fingers of left and right hand, grade 3-4/5 weakness in the left APB muscle, grade 3/5 weakness in the right APB muscle, grade 3/5 weakness in the left and right interossei muscles with grade 2/5 weakness in abduction of the left and right 5^th finger; the applicant had grade 3/5 weakness in dorsiflexion of the left and right big toe and 2^nd to 5^th toes; grade 4/5 weakness in left hip flexion, grade 4.5/5 weakness in right hip flexion; reflexes were generally symmetrical except for knee jerks; the right plantar response was flexor, the left plantar response was flat; abdominal reflexes were present in all quadrants but except for the left lower quadrant; when standing with feet together and pushed, the applicant took 2-3 steps to the left and right; when pulled, he took 2 steps back with some mild leg collapse and had to be caught; on heel to toe walk, he has a marked sway to the left and right, with imbalance to the left and right; on Sharpened Rhomberg test, he swayed to the left and right; when standing on his heels, he fell back; he was unable to sustain standing on his toes; the applicant had a sensory level to pain and temperature sensation at T10 both anterior and posterior though the level to temperature sensation was slightly higher at T8 over the posterior torso; he had a level to pain and temperature sensation at approximately C4 in both arm and touch sensation was normal.[47]
[47] ARD, pages 28-29.
Dr Teychenne noted that an MRI scan of the cervical spine showed disc osteophytes impinging on the spinal cord with evidence of spinal stenosis through the mid-cervical spine and cord flattening.[48] He noted that a CT scan of the cervical spine showed degenerative disc osteophytes at C5/6 and C6/7 which were abutting on the spinal cord and probably causing some mild compression of the cord and it was stated that the applicant had cord compression from C3 down to C7.[49]
[48] ARD, page 28.
[49] ARD, page 29.
In a report dated 13 November 2021,[50] Dr Teychenne stated that the history of the injury reported by the applicant:[51]
“...was quite consistent with spinal shock.
From description the patient had acute hyperextension of the head and neck as his forehead hit the ground. This is quite a well described phenomenon from an impact to the top of the head of forehead during a fall. That is the natural reaction is [sic] hyperextension of the head and neck. The description of his legs being weak and soft flexing down tremoring and his swaying to the left and right with very small shuffling steps was quite consistent with cervical spinal shock. That is an acute impact on the cervical spinal cord resulting in spinal concussion or shock.”
[50] ARD, page 30.
[51] ARD, page 32.
Dr Teychenne stated that, due to degenerative change of the cervical spine shown on the MRI scan of 19 July 2021, the applicant would have been “at great risk of sustaining an acute impact to the cervical spinal cord as a result of a fall and probable hyperextension of the head and neck at impact”.[52]
[52] ARD, page 32.
Dr Teychenne stated that:
“... vertigo is a very common manifestation of both acute spinal shock of an acute spinal cord injury but it may also be a common manifestation in patients with incomplete cervical cord lesions... probably due to an impact on the vestibulo spinal pathway during an hyperextension injury. The base of the brainstem may be sheared across the upper spinal cord due to the fact that the brainstem is mobile and the spinal cord is fixed within the spinal canal. Normal function of the facial and trigeminal nerves would not however indicate normal function within the vestibulospinal pathway. Lack of myelopathic findings within the spinal cord does not exclude myelopathic findings within the spinal cord as the damage is microscopic and simply not seen on macroscopic MRI scans of the spinal cord.”[53]
[53] ARD, page 32.
Dr Teychenne noted that his findings on examination of the applicant were “quite common in my experience in patients with incomplete central cord lesions”. Dr Teychenne stated that the applicant:
“... had evidence of an incomplete central cervical cord lesion typical in my experience in a patient who has sustained a hyperextension injury to the head and neck particularly in the presence of cervical spinal stenosis which increases the risk of damage to the spinal cord as a result of hyperextension of the head and neck.
I note that the MRI scan of the cervical spine showed evidence of foraminal stenosis at multiple levels from C3 down to C7 but the predominant clinical manifestations demonstrated during my assessment of Mr Dela Pena were those of a cervical cord injury and not a nerve root injury.”[54]
[54] ARD, page 32.
Dr Teychenne stated that, in his opinion, the applicant had sustained an incomplete central cord lesion. Dr Teychenne opined that the fall at work was a substantial contributing factor to the applicant’s injuries. Dr Teychenne stated that it was probable that the applicant had cervical spinal stenosis prior to the injury however those symptoms were exacerbated by the impact on the spinal cord at the time of the injury at work.[55]
[55] ARD, page 35.
In a further report dated 13 November 2021, Dr Teychenne stated that utilising the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th edition (AMA-5), he assessed total 27% WPI, calculated on the basis of: (1) spine - 10% pursuant to page 396, Table 15.6B; 6% WPI for spine pursuant to page 396, Table 15.6C; 6% WPI pursuant to page 396, Table 15.6D, 7% pursuant to page 396, Table 15.6F, and (2) skin – 2%WPI.

Dr Dudley O’Sullivan, neurologist

Dr O’Sullivan provided an independent medical opinion at the request of the respondent.
In a report dated 20 July 2022, Dr O’Sullivan noted that he saw the applicant on 11 July 2022 and reviewed relevant documents. He recounted the history of the Event, symptomology and treatment and the applicant’s previous medical history.
Dr O’Sullivan noted that the applicant’s neurological examination was generally unremarkable. However, Dr O’Sullivan noted that there was a reduction in pinprick in the distribution of the right superior orbital nerve. Dr O’Sullivan also noted that the applicant had an unsteady gait when walking heel to toe, a sway, dizziness and feeling off balance.[56]
[56] ARD, pages 21-22.
Dr O’Sullivan noted that the applicant’s current complaints were persistent right frontal headache together with an area of numbness above the scar consistent with an injury to the superior orbital nerve. He considered that the applicant’s dizziness and feeling off balance related to a hearing impediment with some vestibular dysfunction. He did not believe that they related to any underlying neurological abnormality.[57]
[57] ARD, page 23.
Dr O’Sullivan stated that he was unable to find any neurological abnormality as described by Dr Teychenne in his report.[58] Dr O’Sullivan stated that he could find no neurological evidence to indicate that the applicant had sustained an incomplete cervical cord lesion. Dr O’Sullivan stated that he could find that the applicant had no sensory level to pain and temperature sensation at T10 anteriorly and T8 posteriorly. He stated that there was no sensory impairment to pain and temperature in the applicant’s upper limbs.[59]
[58] ARD, page 21.
[59] ARD, page 22.
Dr O’Sullivan noted that the CT scan of the applicant’s cervical spine on admission to Westmead Hospital after the accident was normal. Dr O’Sullivan stated that some degree of cord compression between C3 and C7 with canal stenosis shown on CT scan and MRI scan “would be long standing in my opinion and would not have occurred as a result of his workplace injury”.[60]
[60] ARD, page 22.
Dr O’Sullivan stated that there was “no evidence in my opinion to indicate that he has an incomplete cervical cord lesion”.[61]
[61] ARD, page 23.
Dr O’Sullivan stated that he does “not consider that [the applicant] has sustained any injury to his cervical spine or cervical cord as a result of the minor head injury” that he sustained on 21 December 2020.[62]
[62] ARD, page 22.
Dr O’Sullivan stated that the applicant:
“... had symptoms with regards to his cervical spine since 2018. At no stage has he had any symptoms to indicate radiculopathy going down his arms nor has he had any history to indicate that he has evidence of a cervical cord abnormality. The injury that occurred on 21 December 2020 related purely to his right forehead laceration and at no time did he have any evidence to indicate that he sustained an injury to his cervical spine. He certainly had no neurological abnormality when he was examined in the Westmead Hospital.”[63]
[63] ARD, page 23.
Dr O’Sullivan opined that “the applicant’s cervical spine symptomology relates to degenerative cervical spondylitic disease and not to the effect of the minor head injury”.[64]
[64] ARD, page 22.
Dr O’Sullivan stated that he did not consider that the applicant would be able to return to any form of employment. He stated that in his opinion “there is no portion of his incapacity with regards to employment. His pre-existing cervical spondylitic disease which is still evident may be a factor in limiting him to return to work”.[65]
[65] ARD, page 25.
In a further report also dated 20 July 2022, Dr O’Sullivan stated that, utilising AMA-5, he assessed permanent impairment of the cervical spine to be 0% WPI because he could find no evidence of radiculopathy or myelopathy.[66]
[66] Reply to ARD, page 19.

SUBMISSIONS

Counsel for the applicant and the respondent both made written submissions.

Applicant’s submissions

In summary, the applicant’s counsel, Ms Grotte, submits that:
(a)    the real issue is the mechanism of injury and whether on the balance of probabilities, the applicant has established that on 21 December 2020 the Event caused a worsening of the underlying neck condition;
(b)    the applicant’s evidence should be accepted as credit is not in issue. On that basis, the Commission should accept that the applicant suffered a significant fall at work on 21 December 2020 which caused a deep and extensive laceration to his head. The applicant immediately and subsequently complained of persisting headaches and dizziness. Further, although the applicant had prior symptoms of pain across the neck and trapezius region, the applicant was able to tolerate those symptoms with some physiotherapy. However, the applicant’s neck symptoms and related symptoms worsened after the fall;
(c)    the fact that the applicant’s neck symptoms came on some six months after the work injury on 21 December 2020 is not fatal to the applicant’s case. The applicant’s case is that there was an underlying condition which was made worse by the fall in terms of an increase in symptoms, new symptoms, an inability to hold items in his hands and weakness and an inability to carry out his pre-injury work. The aggravation, exacerbation, acceleration and/or deterioration of an underlying condition can, and does, occur over a period of time. There is no evidence of any other incident;
(d)    is not fatal to the applicant’s case that there is no change in the underlying pathology. In that regard, the applicant relies on the decision of the Full Court of the Federal Court in Commonwealth of Australia v Beattie [1981] FCA 88; 35 ALR 369 at 377-378 which noted that Federal Broom Company Pty Ltd v Semlitch (1964) 40 CLR 626 establishes that there may be an exacerbation or aggravation, which relevantly mean the same thing, notwithstanding that there is no change in the underlying pathology;
(e)    the fact that Dr Fowler expressed no opinion as to causation is also of no consequence because he was reviewing the applicant for the purposes of treatment, did not concern himself with causation and would not be expected in those circumstances to take any detailed history;
(f)    the evidence of Dr Teychenne is persuasive and explained the mechanism of injury. Dr Teychenne elicited evidence from the applicant regarding the fall on
21 December 2020 and concluded that there was evidence of a hyperextension of the neck. Having regard to the evidence, it should be accepted that in all probability the applicant’s head rebounded in the way described. Dr Teychenne explained that dizziness and headaches which the applicant experienced after the fall and which persisted, and later increased symptoms of pain across the neck, were symptoms of neck injury;
(g)    the evidence of Dr Teychenne should be preferred to the evidence of
Dr O’Sullivan for the following reasons:
(i)Dr Teychenne reviewed all of the evidence and elicited more evidence by questioning the applicant as to the mechanism of injury, which is plausible and likely;
(ii)the fall was significant and caused a significant laceration. The fall was onto sheet metal and also onto concrete. It can be accepted that the Event concerned a moveable object striking an immoveable object with force;
(iii)Dr Teychenne’s explanation for the symptoms experienced after the fall was based on an intellectual and scientific explanation as explained by him;
(iv)it can be accepted that there was a rebound of the head and neck causing a hyperextension of the neck as posited by Dr Teychenne as this is plausible and credible and is based on his medical expertise as stated by him in his reports;
(v)Dr Teychenne has satisfied the requirements for expert evidence;
(vi)Dr Teychenne also explained that the pre-existing condition made the applicant more vulnerable to injury to the neck by virtue of the hyperextension mechanism and the pre-existing cord compression at C3-7;
(vii)Dr Teychenne’s opinion has a scientific and intellectual basis for it and it is not a bare ipse dixit;
(viii)Dr O’Sullivan does not grapple with the injury as an aggravation etc type injury and provides no analysis;
(ix)Dr O’Sullivan does not deal with the hyperextension mechanism of injury, and
(x)Dr O’Sullivan’s analysis is limited and does not engage with the applicant’s case.
(h)    having regard to the evidence, the Commission should accept, on the balance of probabilities, that on 21 December 2020 the applicant sustained a neck injury by way of aggravation, acceleration, exacerbation or deterioration of a disease and the fall was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(i)    the medical dispute ought to be remitted to the President for referral to a Medical Assessor for assessment of WPI.

Respondent’s submissions

In summary, the respondent’s counsel, Ms Goodman, submits that:
(a)    although the respondent admitted liability for the injury, it disputes that the applicant sustained an injury to his cervical spine;
(b)    the Commission should not be satisfied that any injury to the cervical spine/neck is causally related to the work-related incident on 21 December 2020 because:
(i)the clinical notes of Westmead Hospital on 22 December 2022 recorded that the applicant denied cervical spine pain;
(ii)the first record of any complaint regarding injury to the cervical spine/neck was when the applicant attended Dr Meina on
21 June 2021, despite the applicant having numerous opportunities to report such complaints in the Workers Compensation First Attendance Form dated 23 December 2020 and at various medical attendances between 21 December 2020 and 21 June 2021;
(iii)an inference can be drawn that Dr Meina does not support any allegation that the applicant injured his cervical spine in the Event because Dr Meina recorded cervical spine injury (in Dr Meina’s clinical notes dated 21 June 2021, the request of an X-ray and CT scan of the applicant’s cervical spine on 21 June 2021, referral to
Dr Abraszko on 24 June 2021 and referral to Dr Fowler on
25 June 2021) only in the context of chronic osteoarthritis and not being related to the Event. Further, Dr Meina did not refer to the cervical spine in Certificates of Capacity dated 21 June 2021,
20 July 2021, 20 August 2021, 20 September 2021, 21 October 2021 and 20 November 2021;
(iv)further, Dr Meina’s notes dated 21 June 2021 recorded “worsening of neck pain (Chronic OA)” under the heading “Reason for Contact” without noting any history of injury to the applicant’s neck. Dr Meina’s notes dated 21 June 2021 also refer to ordering an X-ray and CT scan of the applicant’s cervical spine and indicates that there was a previous X-ray in 2019;
(v)Dr Dowla, in his report dated 4 March 2021, in respect of the applicant’s ongoing dizziness, made no mention of injury to the applicant’s cervical spine, found no evidence of any neural injury in the forehead and opined that the applicant’s dizziness was probably “functional”. Further, in his report dated 1 February 2022, Dr Dowla noted that the applicant was still complaining of dizziness, headaches and numbness in his forehead, but found on examination that the applicant demonstrated normal results;
(vi)Dr Fowler, in his report dated 13 July 2021, noted the applicant had a history of greater than two years escalating mechanical type neck pain (which included a lengthy period prior to the Event) and that a CT scan on 22 June 2021 showed multiple levels of advanced osteoarthritic change and was suggestive of spinal cord compression in the lower cervical spine, and
(vii)the bone scan showed evidence of significant degenerative change in several facet joints and intervertebral discs of the cervical spine. The MRI scan of the cervical spine dated 19 July 2021 reported no cord compression or myelopathy.
(c)    the Commission should not accept the opinion of Dr Teychenne and his opinion should be given no weight because: it is based on an incorrect history; it is inconsistent with evidence of the treating medical practitioners and imaging;
Dr Teychenne provided no explanation for the fact that there were no complaints of pain in the neck until 21 June 2021 and no medical record of hyperextension injury to the applicant’s neck, a tremor in his legs or neck pain despite the applicant having numerous medical attendances; the applicant in his statement, did not refer to hyperextension injury to his neck or to his neck condition being worse after the fall at work; there is no contemporaneous evidence that the applicant “also felt a tremor in his arms and legs” at the time of the Event or following the Event and there is no explanation from the applicant why that is the case;
(d)    the Commission should accept and prefer the opinion of Dr O’Sullivan because: Dr O’Sullivan did not obtain a history from the applicant of tremor in his arms and legs nor neck hyperextension at the time of injury; he considered imaging; on examination he could find no neurologic abnormality as described by
Dr Teychenne, and Dr O’Sullivan’s opinion that the applicant’s cervical spine symptomatology relates to cervical spondylitic disease unrelated to his work injury is based on contemporaneous evidence, and
(e)    on that basis, an award should be entered for the respondent.

Applicant’s submissions in reply

In summary, Ms Grotte submits in reply that:
(a)    the fact that the applicant did not complain of pain in his cervical spine until he complained of a worsening of neck symptoms to Dr Meina in June 2021 is not determinative of whether he sustained an aggravation, exacerbation, acceleration or deterioration of the underlying neck condition in the Event;
(b)    the symptoms complained of immediately afterwards included dizziness and headache, which were symptoms which Dr Teychenne identified as being consistent with an injury to the neck;
(c)    Dr Dowla’s view that the complaint of dizziness was functional and not organic also ought to be rejected. Dr Dowla’s focus was whether or not there had been a neural injury to the forehead, or facial nerves or trigeminal nerve. He was not considering whether there had been a neck injury and what those symptoms might have meant in that context;
(d)    the neck issue becomes apparent in June 2021 when there is evidence of a worsening of the underlying neck condition;
(e)    Dr Fowler in July 2021 took a history that there had been two years of escalating neck pain, which includes the period following the Event. What is likely in this case is that the initial focus was the severe laceration to the forehead, and the complaints of dizziness and headache. As stated above, Dr Teychenne identified these as symptoms of the spinal cord compression in the lower cervical spine, once he obtained a full and detailed history;
(f)    Dr O’Sullivan’s view that the symptoms of gait disturbance were likely due to vestibular dysfunction is purely speculative and without any foundation. There is no medical evidence or diagnosis to support this hypothesis. It ought to be rejected. Dr Teychenne explained that the symptoms of imbalance were symptoms of the spinal cord compression in the lower cervical spine. The MRI dated 19 July 2021 confirmed acquired spinal stenosis present on the right side which would account for the radicular compression;
(g)    in terms of the evidence, there is evidence before the Commission as to the hyperextension of the neck following a rebound of the head in the fall. This is not simply Dr Teychenne surmising what might have happened. He obtained that history from the applicant who would have provided that evidence while being questioned about what had happened in the fall. The description is completely plausible given the fall onto the metal sheets and the concrete floor. It ought to be accepted;
(h)    in contrast, Dr O’Sullivan minimises the Event, stating that the injury was “only a right forehead laceration”. The photographs belie this description and are evidence of a much more significant fall and injury, and
(i)    on that basis, the applicant ought to be accepted.

FINDINGS AND REASONS

Did the applicant sustain a cervical spine injury or aggravation, acceleration, exacerbation or deterioration of a disease involving the cervical spine? – ss 4(a), 9A and 4(b)(ii) of the 1987 Act

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.”
In AV v AW,[67] Snell DP considered the expression, “main contributing factor” in s 4(b)(ii) and observed:
“The following may be taken from the above:
(a)The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[67] [2020] NSWWCCPD 9.
The expression, “aggravation, acceleration, exacerbation or deterioration” of a disease for the purposes of s 4(b)(ii) of the 1987 Act was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch[68] (Semlitch):
“The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.”[69]

96.Justice Kitto in the same case found:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’. Accordingly if salt be applied to an open wound, making the would no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.”[70]
[68] [1964] HCA 34; 110 CLR 626.
[69] Semlitch, 640.
[70] Semlitch, at 635.

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[71] (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.”[72]
[71] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[72] 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[73] 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.
[73] [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[74] (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”.
[74] [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
It is accepted that, in the course of his employment, the applicant sustained a frank injury to his head in the Event on 21 December 2020.
What requires determination is whether the applicant has also sustained injury to his cervical spine pursuant to ss 4(a) and 9A of the 1987 Act, or the aggravation, acceleration, exacerbation or deterioration of a disease pursuant to s 4(b)(ii) of the 1987 Act, in the Event.
The applicant submitted that the injury to the cervical spine ought to be characterised as a disease injury pursuant to s 4(b)(ii) of the 1987 Act.[75] The applicant’s submissions did not address cervical spine injury pursuant to s 4(a) of the 1987 Act and it appears implicit from the applicant’s submissions that the applicant no longer relies on s 4(a) of the 1987 Act.
[75] Applicant’s Submissions, paragraphs 35, 48-50.
It appears clear from the medical evidence, and has not been disputed, that the applicant had a pre-existing degenerative condition of the cervical spine. Dr Meina recorded[76] that the applicant had chronic osteoarthritis and that an X-ray in 2019 showed advanced facet arthropathy on the right side, along with bony encroachment on the right C4-5 neural foramen and left moderate facet arthropathy on left C2-3, but no neurological deficit. A CT scan carried out and reported on 22 June 2021, [77] showed right mid and upper cervical joint osteoarthritis and right C4 and C5 radiculopathy as well as lower cervical degenerative disc disease and left C6 and bilateral C7 radiculopathy with central cord compression C3-C7.
Dr Fowler reported on 14 July 2021[78] that the applicant had “greater than 2 years of escalating mechanical type neck pain” and that he described neck stiffness and discomfort in all degrees of motion of his cervical spine“ as well as two to three times per week right sided pain over the cape of his trapezius region when he lies in a certain way on his pillow.
[76] ARD, pages 46-47.
[77] ARD, page 288.
[78] ARD, page 285
[79] ARD, page 289.
[80] ARD, page 287.
Dr Fowler noted the evidence of multilevel advanced osteoarthritic change, but also noted that the findings were suggestive of spinal cord compression. An MRI of the cervical spine carried out on 19 July 2021[79] demonstrated multilevel pathology with acquired spinal stenosis but no cord compression or myelopathy. It also demonstrated acquired foraminal stenosis present bilaterally especially on the right which was noted to account for radicular compression. A bone scan carried out and reported on 20 July 2021[80] demonstrated severe degenerative change in the right facet joint of C3/C4 and C4/C5 with sclerosis and hypertrophy of the joints and degenerative change around the intervertebral discs at C5/C6 and C6/C7 with sclerosis of the endplates, early marginal osteophyte formation and extension into the uncovertebral joints.
The critical issue is whether the applicant’s pre-existing degenerative cervical spine condition was aggravated, accelerated, exacerbated or deteriorated by the Event.
The applicant acknowledges that he had neck pain approximately two years prior to the Event. The applicant stated that he was able to tolerate the neck pain with physiotherapy and to continue working and he denies that he was incapacitated at any time prior to the Event. [81] There is no evidence to the contrary. It is noted that the applicant’s job entails lifting and carrying of sheet metal, loading sheet metal onto a press machine, and boxing up completed jobs.[82]
[81] ARD, page 5, paragraph [54].
[82] ARD, page 239.
The applicant’s evidence[83] in relation to the Event is that on 21 December 2020, he fell forward, hitting his forehead on the edge of the three metal sheets that he had been carrying, and then fell further to the concrete ground. The applicant was bleeding from the head. He stood up, but felt dizzy and felt a tremor in his arms and legs. He later experienced ongoing dizziness, blurred vision, headache and a sensation of pins and needs near the wound. The applicant sustained a significant U-shaped laceration 7cm long by 1cm wide over the right forehead where he hit the corner of the aluminium sheet.
[83] ARD, pages 2-4.

The clinical notes of Westmead Hospital on 22 December 2020[84] recorded “headstrike onto right frontal aspect of head onto sheet metal” and “some headache and dizziness” but the applicant denied cervical spine pain, nausea, vomiting, coryzal symptoms, chest pain, abdominal pain and limb pain. The hospital described the wound as being “a 10cm circular right supraorbital, supra fascial laceration”.[85]
[84] ARD, page 149.
[85] ARD, page 296.
On about 23 December 2020, the applicant returned to see Dr Meina as he was experiencing increasing headache, dizziness, nausea and blurry vision.[86] Dr Meina completed a Certificate of Capacity dated 23 December 2020[87] which described the injury as “Head Injury/Right Supra-orbital fascial Laceration”.
[86] ARD, page 54.
[87] ARD, page 94.
On 23 December, the applicant presented again at Westmead Hospital, complaining of worsening headache, dizziness, nausea and blurry vision.[88]
[88] ARD, page 296.
At various subsequent times, the applicant reported ongoing headache, dizziness, nausea and blurry vision to Dr Meina.[89]
[89] ARD, pages 52-53.
On 19 January 2021, Dr Meina referred the applicant to Dr Dowla, neurologist, because the symptom of dizziness was continuing and the applicant was concerned that he may fall again if he was required to return to work.[90] It is noted that Dr Meina’s referral to Dr Dowla on
[90] ARD, pages 52, 205.
19 January 2021 in relation to ongoing dizziness, did reference the dizziness in the context of “Work related Injury” and “Facial lacerations”.
On 4 March 2021, Dr Dowla reported[91] that the applicant complained to him of feeling dizzy on and off, particularly in the morning, that he felt heavy in the head and had blurred vision as well as numbness in the forehead. Dr Dowla reported that he found no evidence of neural injury in the forehead and he was of the view that the dizziness was probably functional. The Hallpike’s test was negative. Dr Dowla made no mention of the applicant’s cervical spine.
[91] ARD, page 210.
On 26 April 2021, the report of Interact Injury Management noted that the applicant continued to experience dizziness and sensation issues over the scar site on his head in addition to psychological issues.[92]
[92] ARD, page 563-564.
On 13 May 2021, Dr Dowla reviewed the applicant, noting that the applicant was continuing to complain of dizziness. Dr Dowla reported in the same terms that he could not find any evidence of any neural injury in the forehead and the applicant’s dizziness is probably functional.[93]
[93] ARD, page 42.
There is no record of the applicant complaining of pain in the cervical spine in the Workers Compensation First Attendance Form dated 23 December 2020 and at various medical attendances between 21 December 2020 and 21 June 2021.
The applicant’s evidence[94] is that in or around June 2021, he began to notice a needle-like pain from the neck across the left and right suprascapular region. The occipital pain from the neck into the back was constant and woke him at night. The applicant experienced dropping articles out of his hands, he was weak in his arms and hand and had trouble moving his right arm at the shoulder.
[94] ARD, pages 3-4.
It is not disputed by the applicant that, [95] the first record of any complaint being made regarding pain in the applicant’s cervical spine was when the applicant consulted Dr Meina on 21 June 2021 complaining of worsening neck pain. Dr Meina noted “worsening of neck pain (Chronic OA)”.[96] Dr Meina also noted that the applicant’s neck had last been X-rayed in 2019, which showed advanced facet arthropathy on the right side along with a bony enchroachment on the right C4-5 neural foramen and left moderate facet arthropathy on the left C2-3, but no neurological deficit.
[95] Applicant’s Submission in Reply, paragraph 1.
[96] ARD, pages 47-48.
A CT scan carried out and reported on 22 June 2021 showed right C4 and C5 radiculopathy and left C6 and bilateral radiculopathy with central cord compression C3-C7.[97] A neurosurgical consult was recommended.
[97] ARD, pages 288, 291.
On 24 June 2021, Dr Meina referred the applicant to Dr Abraszko.[98]
[98] ARD, page 137.
On 25 June 2021, Dr Meina referred the applicant to Dr Fowler.[99]
[99] ARD, page 290.
On 14 July 2021, Dr Fowler reported following a review of the applicant in respect of his neck pain.[100] Dr Fowler recorded a history from the applicant that the applicant had “greater than 2 years of escalating mechanical type neck pain” and that he “describes that he has neck stiffness and discomfort in all degrees of motion of his cervical spine” and was “also complaining of twice or three times a week a right-sided pain over the cape of his trapezius region when he lies a certain way on the pillow”. Dr Fowler noted that a CT scan of the cervical spine organised by Dr Meina (dated 22 June 2021) shows multiple levels of advanced osteoarthritic change and was suggestive of spinal cord compression in the lower cervical spine. Dr Fowler referred the applicant for an MRI scan and a bone scan.
[100] ARD, page 285.
On 19 July 2021, an MRI of the cervical spine was carried out .[101] It demonstrated multilevel pathology and acquired spinal stenosis but no cord compression or myelopathy. It was reported that the acquired foraminal stenosis was present bilaterally especially on the right side which it was reported would account for the radicular compression.
[101] ARD, page 289.
On 20 July 2021, a bone scan[102] showed evidence of significant degenerative change in several facet joints and intervertebral discs of the cervical spine.
[102] ARD, page 287.
On 1 February 2022, Dr Dowla reviewed the applicant again and noted that the applicant “continues to feel dizzy with headache and numbness in forehead. He has a pinprick sensation in the right forehead as well”. Dr Dowla reported[103] that he could not find any evidence of any neural injury in the forehead and considered that the applicant’s dizziness is probably functional.
[103] Reply, page 7-8.
It is noted that Dr Meina’s clinical notes dated 21 June 2021, request of an X-ray and CT scan of the applicant’s spine on 21 June 2021, referral to Dr Abruszko on 24 June 2021 and referral to Dr Fowler on 25 June 2021 in respect of the applicant’s worsening neck pain, reference only the applicant’s history of spinal degenerative disease: by stating “worsening of neck pain (Chronic OA)”. They do not reference the Event or any work-related injury. It is further noted that the Certificates of Capacity completed by Dr Meina on 21 June 2021,[104]
20 July 2021,[105] 20 August 2021,[106] 20 September 2021,[107] 21 October 2021[108] and
[104] Reply, page 63.
[105] Reply, page 66.
[106] ARD, page 315.
[107] Reply, page 69.
[108] Reply, page 45.
[109] Reply, page 72.
20 November 2021[109] make no reference to the cervical spine.
Further, Dr Meina did not refer to the cervical spine in Certificates of Capacity dated
21 June 2021, 20 July 2021, 20 August 2021, 20 September 2021, 21 October 2021 and
20 November 2021.
The respondent submitted that such failure by Dr Meina to reference the cervical spine in the context of the Event and work-related injury gives rise to an inference that Dr Meina does not support any allegation that the applicant injured his cervical spine in the Event.
That argument does have some merit. But it is also understandable that, in the context of the applicant’s prior history of pre-existing degenerative condition of the cervical spine, that the pre-existing degenerative condition remained a primary focus of Dr Meina, who may have not understood the significance of the applicant’s neck pain in the context of other symptoms, such as dizziness and tremor in the applicant’s arms and legs, that the applicant sustained from the Event.
The respondent submitted that it is significant that Dr Dowla, in his reports dated
4 March 2021 and 1 February 2022, in respect of the applicant’s ongoing dizziness, made no mention of injury to the applicant’s cervical spine, found no evidence of any neural injury in the forehead and opined that the applicant’s dizziness was probably “functional”. Further, in his report dated 1 February 2022, Dr Dowla noted that the applicant was still complaining of dizziness, headaches and numbness in his forehead, but Dr Dowla found on examination that the applicant demonstrated normal results. However, I note that Dr Dowla’s focus was considering the issue of dizziness in the context of whether there had been a neural injury to the forehead, or facial nerves or trigeminal nerve. Dr Dowla did not consider whether there had been a neck injury and the relevance of the applicant’s various symptoms in that context.
The respondent also submitted that it is significant that Dr Fowler, in his report dated
[110] ARD, page 285.
[111] ARD, page 290.
13 July 2021, [110] noted that the applicant had a history of greater than two years escalating mechanical type neck pain, and that a CT scan on 22 June 2021 showed multiple levels of advanced osteoarthritic change and was suggestive of spinal cord compression in the lower cervical spine. This, the respondent submitted, was further supported by the bone scan which showed evidence of significant degenerative change in several facet joints and intervertebral discs of the cervical spine and the MRI scan of the cervical spine dated 19 July 2021 which reported no cord compression or myelopathy. However, I note that Dr Meina’s referral to Dr Fowler dated 25 June 2021[111] referred simply to “worsening of neck pain (Chronic OA)” and a presenting problem of “Lower cervical degenerative disc disease and left C6 and bilateral C7 radiculopathy. Central cord compression C3-C7”. Further, it is apparent from Dr Fowler’s report that he did not consider the applicant’s neck pain in the context of any history of injury from the Event or work-related injury or the applicant’s various symptoms in that context.
Dr O’Sullivan, in his report dated 20 July 2022,[112] stated that in his opinion the applicant’s cervical spine symptomatology relates to cervical spondylitic disease unrelated to his work injury, which he referred to as a “minor head injury”. It is apparent from the report that
Dr O’Sullivan relied on the various investigations and that when the applicant was admitted to hospital his neurological examination was normal. Dr O’Sullivan reported the history of the injury as recorded in the clinical notes and does not appear to have added to the history of the mechanism of injury from any discussion with the applicant, other than the report of symptoms following the Event. Dr O’Sullivan obtained no history from the applicant of a tremor in his arms and legs at the time of injury, nor of a hyperextension injury to his neck.
[112] Reply, page 9; ARD, pages 22-23.
Dr O’Sullivan did add to the history of the past neck complaints, noting that the applicant first developed pain in his neck in about 2019. On examination of the applicant, Dr O’Sullivan noted that the applicant was a little unsteady and tended to sway, however he considered that the applicant’s gait disturbance, balance and dizziness issues may relate to the applicant’s hearing impediment with some vestibular dysfunction. Dr O’Sullivan could not detect any neurologic abnormality in the upper limbs.
Dr Teychenne, in his report dated 13 November 2021,[113] stated that in his opinion, the applicant had sustained an incomplete central cord lesion in the Event.
[113] ARD, pages 32, 35.
[114] ARD, page 35.
Dr Teychenne stated that it was probable that the applicant had cervical spinal stenosis prior to the injury however those symptoms were exacerbated by the impact on the spinal cord at the time of the injury at work.[114]
Dr Teychenne took an extensive history from the applicant. In particular, Dr Teychenne recorded that the applicant told him the following details of the Event and injury: the metal impacted with the floor and the applicant fell onto the metal sheet; “when he hit the floor with his head his head rebounded back and he demonstrated about 20 (degrees) of hyperextension”; he stood up following the fall but felt dizzy and was swaying from side to side; had a tremor in his arms and legs as well as pain across his anterior shoulder; he could not move his right arm at the shoulder; his legs felt weak and soft; the tremors were intermittent but lasted for about five minutes; he felt nauseated and had blurred vision; he was spinning and his head felt heavy.
Dr Teychenne also recorded that the applicant told him that, in about June 2021, he noticed a needle-like pain from the neck across the left and right suprascapular region which was varying in intensity, and he also experienced headaches and dizziness. The applicant reported that the pain extended from the neck into the back of the head and over the top of the head to the forehead. The applicant reported that the headache occurred with the dizziness and the occipital pain from the neck into the back of the head was constant. The pain across the left and right suprascapular region had been present for at least two years prior to the accident but had worsened after the accident.
Dr Teychenne stated that the history of the injury reported by the applicant[115] was quite consistent with acute hyperextension of the head and neck as his forehead hit the ground, which was an acute impact on the cervical spinal cord resulting in spinal concussion or shock.
[115] ARD, page 32.
Dr Teychenne reviewed the investigations and clinical notes and reports. On examination,
Dr Teychenne noted that the applicant had some minimal restriction on movement of the neck restricted by pain but did not have any distinct bony midline tenderness. His upper and lower limbs were neurologically normal. He was Hoffmann’s Sign negative. Dr Teychenne did find some evidence of myelopathic weakness within the lower limbs with some minimal weakness in right hip flexion and weakness in left hip flexion. Dr Teychenne noted that the applicant had upper motor neurone weakness in the upper limbs and intrinsic hand muscle weakness, the combination of which Dr Teychenne had experienced to be indicative of an incomplete cervical cord lesion. Dr Teychenne also found evidence of bilateral imbalance with the applicant’s legs collapsing when standing with feet together and pulled back and a marked imbalance on heel to toe walk to both the left and right side. The applicant fell back when standing on his heels and he had a sensory level to pain and temperature sensation on the torso, particularly at T8 posteriorly. Dr Teychenne stated that in his opinion those findings are quite common in patients with incomplete central cervical cord lesions, which do not present in the typical manner of a transverse spinal cord lesion.
Dr Teychenne stated that in his experience, incomplete central cervical cord lesions are more commonly demonstrated by evidence of cervical spine stenosis and cord compression, which was apparent in the applicant’s case.
Dr Teychenne opined that the pre-existing significant degenerative change in several facet joints and intervertebral discs of the applicant’s cervical spine had placed the applicant at considerable risk of a cervical spinal cord injury as a result of the fall in the Event.
Dr Teychenne disagreed that the applicant’s problems with balance were likely functional in nature. Dr Teychenne considered that an incomplete central cervical cord lesion had been the cause for the applicant’s dizziness, headaches, imbalance, upper motor neurone weakness, intrinsic hand muscle weakness, some myelopathic weakness and sensory deficit that he found on examination.
Dr Teychenne considered that the applicant’s fall at work, and therefore the applicant’s employment, was a substantial contributing factor to the applicant’s injuries.
I note that the history of the Event and the applicant’s symptoms recorded by Dr Teychenne differs in some significant respects from the history recorded elsewhere, particularly in relation to neck hyperextension and tremor in the applicant’s arms and legs at the time of injury. I note that Dr Teychenne elicited more information by questioning the applicant as to the mechanism of injury. In contrast, Dr O’Sullivan appeared to minimise the injurious nature of the Event, referring to a “minor head injury” albeit in the context of the evidence that was then available to him.
The applicant’s credit is not in dispute. From other reports of the history, it is apparent that the applicant’s fall was onto sheet metal which caused a significant laceration and then onto concrete and the applicant experienced a number of other significant symptoms, including headaches and dizziness. Considering the evidence as a whole, I am satisfied that the more extensive history and symptoms reported by the applicant to Dr Teychenne under questioning is plausible and likely. I accept the history reported by the applicant to
Dr Teychenne. I accept that, in the circumstances of such a significant fall onto concrete, in circumstances where the applicant had been holding three metal sheets and then fell onto the metal sheets, sustaining a significant laceration, and then fell further onto the concrete, that it is likely that the applicant’s head and neck would have rebounded causing a hyperextension of the neck as posited by Dr Teychenne. I also accept that the applicant experienced tremoring in his arms and legs immediately at the time of the Event.
I note that the applicant’s neck symptoms were not reported until some six months after the Event. However, there is evidence that when the applicant did report neck symptoms, he reported experiencing worsening symptoms over at least a two year period, which clearly included periods of time both before and after the Event.
I note that the applicant’s case is that there was an underlying condition which was made worse by the fall in terms of an increase in symptoms, new symptoms, an inability to hold items in his hands and weakness and an inability to carry out his pre-injury work, as noted by Dr Teychenne. I accept that aggravation, exacerbation, acceleration and/or deterioration of an underlying condition can, and does, occur over a period of time.
There is no evidence of any other injurious event.
I note that there is no change in the underlying pathology. In Commonwealth of Australia v Beattie [1981] FCA 88; 35 ALR 369 at 377-378, the Full Court of the Federal Court noted that Federal Broom Company Pty Ltd v Semlitch (1964) 40 CLR 626 establishes that there may be an exacerbation or aggravation, notwithstanding that there is no change in the underlying pathology.
I consider that Dr Teychenne gave a detailed and rational explanation of the mechanism of injury in the context of the applicant’s pre-existing condition, the applicant’s various symptoms and he also explained the basis for his opinion in the context of the applicant’s pathology identified by imaging. Dr Teychenne explained that the symptoms of imbalance were symptoms of the spinal cord compression in the lower cervical spine. The MRI dated
19 July 2021 confirmed acquired spinal stenosis present on the right side which would account for the radicular compression.
Considering the evidence as a whole, I find the evidence of Dr Teychenne particularly persuasive and I prefer it to the evidence of Dr O’Sullivan, Dr Dowla and Dr Fowler.
Dr Teychenne opined that the fall at work was a substantial contributing factor to the applicant’s injuries. It is not fatal to the applicant’s case that Dr Teychenne did not address the question of “main contributing factor”. As observed by Deputy President Snell in Av v AW [2020] NSWWCCPD 9, at [71]:
“In El-Achi Roche DP, considering the application of the test in s 4(b)(ii) in its current form, said:
‘That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.’”

The Court of Appeal in Nguyen v Cosmopolitan Homes[116] held that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, and stated:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonably hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[116] [2008] NSWC 246.
This is not a case where the evidence is clear cut. The medicolegal evidence is also somewhat problematic.
The evidence does not support characterisation of a cervical spine injury pursuant to s 4(a) of the 1987 Act.
Having carefully considered the evidence as a whole and for the reasons given above, I am however satisfied on the balance of probabilities that the applicant developed cervical symptomatology and sustained injury to his cervical spine in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act.
Having made this finding, it is appropriate for me to remit the matter to the President to be referred to a Medical Assessor for an assessment of WPI of the cervical spine and TEMSKI/scarring resulting from the injury on 21 December 2020.
All of the materials admitted in the proceedings will be included in the referral.

SUMMARY

The applicant did not sustain injury to his cervical spine arising out 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.
The applicant sustained injury to his cervical spine in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act.
The matter is remitted to the President to be referred to a Medical Assessor for an assessment of WPI of the cervical spine and TEMSKI/scarring resulting from the injury on
21 December 2020.

[2023] NSWPIC 115

17 March 2023