Ali v Form Group NSW Pty Ltd
[2023] NSWPIC 446
•4 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Ali v Form Group NSW Pty Ltd [2023] NSWPIC 446 |
| APPLICANT: | Ali Ali |
| RESPONDENT: | Form Group NSW Pty Ltd |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 4 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for finding of consequential injury in the applicant’s upper and lower intestinal tract; Held – the applicant has sustained a consequential injury to his upper and lower intestinal tracts as a result of the medication he has been prescribed and has ingested for pain arising from the injury he sustained in the employment of the respondent on 21 June 2021. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant has sustained a consequential injury to his upper and lower intestinal tracts as a result of the medication he has been prescribed and has ingested for pain arising from the injury he sustained in the employ of the respondent on 21 June 2021. The Commission Orders 2. The applicant’s lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows: (a) date of injury: 21 June 2017 (b) body system: cervical spine right upper extremity (shoulder); (c) Method of assessment: whole person impairment (d) Documents to be referred: Application to Resolve a Dispute and attachments, REPLY and attachments. |
STATEMENT OF REASONS
BACKGROUND
Ali Ali (the applicant) was injured in the employ of Form Group NSW Pty Ltd (the respondent) on 21 June 2017. His claim for compensation was the subject of a Certificate of Determination[1] which was appealed. The appeal was unsuccessful[2]. The Certificate of Determination was confirmed. Following determination of the issue in this application the parties will seek to have the applicant’s impairments referred to a Medical Assessor for determination of any whole person impairment.
[1] Certificate of Determination – Oral Decision Member Paul Sweeney 29 June 2023 A1- 2074/20 ARD page 637
[2] Appeal decision DP Wood 3 November 2023 [2020] NSWWCCPD 64 ARD page 638
ISSUE FOR DETERMINATION
Does the applicant suffer an intestinal impairment as a consequence of ingesting the medications prescribed for him by his treating medical practitioners for the pain he experiences arising from the injury he suffered in the respondents employ on 21 June 2017.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)
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
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents.
There was no oral evidence.
CONSIDERATION
The applicant was examined by Dr Anthony Greenburg, general and gastrointestinal surgeon on 20 April 2021. He provided a report dated 12 July 2021[3].
[3] ARD page 672.
DR Greenberg listed the medications being taken by the applicant at the time of examination. They were:
• Celebrex 200 mg one bd;
• Endep 25 mg daily;
• Endone 5 mg two to three tablets daily prn severity of his pain;
• Pariet 20 mg daily, and
• Progout 100 mg 1tab daily.
Dr Greenberg discussed the possible side effects of these drugs.
“Mobic is a class of drugs known as non-steroidal anti-inflammatory or NSAIDs. In particular, NSAIDs are recognised to cause disturbance to the gastrointestinal tract and is documented in the current version of MIMMS.
NSAIDs are also recognised to cause significant GI side effects particularly affecting the upper GI tract. It is accepted that on occasions the effects on the stomach can be serious and on occasions cause serious GI bleeding.
The most common adverse reaction occurring with Mobic is gastrointestinal.
• Nausea
• Vomiting
• Epigastric pain
• Gastritis
• Heartburn
• Diarrhoea
• Constipation
• Abdominal cramps or pain
• Fullness of the GI tract – bloating and flatulence
Although a small number of cases (less than 1%) there are serious complications:
• Gastric ulcer
• Duodenal ulcer
• Perforation
• Gastrointestinal haemorrhage
• melena”
He also provided an extensive review of the relevant literature.[4]
[4] ARD pages 674 to 676.
Dr Greenberg noted that the applicant had had no relevant gastrointestinal history or any intra-abdominal surgery. He provided an extensive outline of the applicant’s severe symptomatology in relation to his upper gastrointestinal tract and lower gastrointestinal tract.
Dr Greenberg provided an extensive discussion of the applicant’s medical history, possible treatment regimes and causative factors. In his opinion Mr Ali suffers from Gastro-Oesophageal Reflux Disease, probable analgesic gastropathy and medication-inducedGgastrointestinal motility disorder.[5]
[5] ARD pages 680 and 683.
Dr Kordian, a consultant gastroenterologist provided the following opinion in a report dated 15 February 2023.[6]
“Re: A Short report to advise on the extent of our patient’s gastrointestinal injuries and whether there has been a material contribution on terms of causation from the workplace injury.
Ali initially consulted me following a referral from his general practitioner on the 22/09/2023 with back ground history of epigastric pain which started a few months following a workplace injury. When he started having the pain he was on multiple pain killers including: Endone, Celebrex, Endep, Ibuprofen and Panadeine Forte. On the time of consultation his medications were: Tapentadol, Paroxetine, Celebrex and Rabeprazole.
Gastroscopy was performed on the 25th of October 2022 to investigate the cause of his pain. Gastroscopy showed a pre-pyloric ulcer with biopsies showing H.Pylorie gastritis which was treated with course of antibiotics then follow up gastroscopy in the 9th of December 2022 showed persistent of the ulcer but biopsy was negative for H.pylorie.
In my opinion Ali’s epigastric pain is likely due to gastric ulcer/gastritis which is likely caused by combination of multiple factors including H.pylorie, stress and medications used to control pain following workplace injury (Nonsteroidal Anti-Inflammatory Medications). He should continue on Somac for the next 6 months with aim to review if pain persists.”
[6] ARD page 1,299.
The respondent casts doubt on the veracity of applicant’s claim based on the absence of any direct evidence from the applicant. The history of the onset of symptoms is provided in the medical reports and not in the two statements provided by the applicant,[7] although there is reference to the applicant’s medications in his supplementary statement.[8] The respondent submits that the applicant should have provided direct evidence about the commencement of upper and lower tract gastrointestinal symptoms, what he did about them and what his complaints were at the time.
[7] ARD page 631 dated 15 April 2023 and ARD page 634 dated 22 May 2023.
[8] ARD page 634 dated 22 May 2023 paragraph Supplementary Statement 8.
The respondent further submits that there is no explanation for his past history of symptoms noted in the clinical notes provided.
Dr Greenberg noted that there was no relevant past history. The respondent’s submission is that the clinical notes show a relevant history of significance which was not revealed to Dr Greenberg, although Mr Stiles conceded that it was not a “week in week out” history. The history relied upon is a visit on 24 September 2013 to his general practitioner Dr El Skafi, who noted GORD (gastrointestinal oesophageal reflux disease) for advice and explanation which resulted in a prescription for Nexium,[9] and later visits in 2014 when Dr El Skafi again noted GORD and prescribed Nexium.[10]
[9] ARD page 199, and ARD page 1,083 in Better Access Health Care Plan.
[10] ARD page 184.
A history was taken by Dr Garvey who examined the applicant for the insurer on 1 October 2021. He noted consultations with the general practitioner on 14 December 2011, 24 September 2013, and four consultations in 2014 during which period when the applicant was prescribed Gastrostop, Nexium, Buscopan and Celebrex. Dr Garvey advised that he did not consider that the applicant was suffering from a consequential condition of gastrointestinal tract impairment as a result of his injury on 21 June 2017. He noted that there was no objective clinical evidence of any injury, merely symptoms. He stated, “In any event, the worker suffered from the following pre-injury conditions of gastro-oesophageal reflux and diarrhoea as documented in his GP’s reports of 2013 and 2014.” (my emphasis)
Conclusion
I have considered the history in the clinical notes of consultations with the applicant’s general practitioner in 2013 and 2014. I do not consider it to be a significant or relevant history. Far from it. I am not persuaded that Mr Ali would be likely to have considered it sufficiently significant to report to Dr Greenberg in 2021 in 2021. These consultations took place at least three years before the applicant was injured in the employ of the respondent and developed the pain that he has suffered from ever since. In contrast to any condition the applicant may have had in 2014, he now has severe and debilitating symptoms which I am persuaded are related to the medication prescribed by his treating doctors to alleviate his pain.
I find Dr Garvey’s remark that, in any event Mr Ali had had previous symptoms, very odd. What did he intend to convey by this remark? Does he consider previous symptoms to be a total answer to this claim? Is someone who has once suffered from Gastro-Oesophageal Reflux Disease (CORD) years earlier, not able to be affected by high levels of pain medication of the type likely to cause the symptoms from which Mr Ali now suffers? I find Dr Garvey’s opinion entirely unpersuasive.
I am satisfied and find that Mr Ali has been subjected to very high levels of medication for the treatment of pain arising from his workplace injury with the respondent which has resulted in severe and debilitating upper and lower tract gastro oesophageal symptoms.
SUMMARY
For the reasons set out above the Commission will make findings and orders as set out on page 1 of the Certificate of Determination.
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