Allaw v Allstaff Australia Sydney Pty Ltd
[2024] NSWPIC 509
•16 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allaw v Allstaff Australia Sydney Pty Ltd [2024] NSWPIC 509 |
| APPLICANT: | Alaa Allaw |
| RESPONDENT: | Allstaff Australia Sydney Pty Ltd |
| SENIOR MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 16 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; accepted claim for lumbar injury; further claims for consequential conditions in the knees and digestive system/anal canal; applicant is required to establish the relationship through a “common sense evaluation” of the causal chain determined on the basis of evidence including expert opinion; Kooragang Cement Pty Ltd v Bates considered; Held – the applicant did not discharge the onus of establishing the consequential condition on the balance of probabilities in respect of the bilateral knee condition; the pleaded case was not adequately supported by lay or expert opinion; finding in favour of the applicant in respect of the digestive system/anal canal after a common sense valuation of the causal chain. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered an injury to his lumbar spine and consequential condition to the digestive system/anal canal. The date of injury is 20 March 2019. 2. Award for the respondent in respect of the claim of bilateral consequential conditions to the knees. 3. The matter is remitted to the President to be referred to a Medical Assessor to assess whole person impairment of the lumbar spine and a consequential condition to the digestive/ anal canal. The Application to Resolve a Dispute, Reply and late documents dated 29 June 2024 are to be provided to the Medical Assessor. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The applicant claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in relation to a lumbar spine injury (which was accepted) and consequential injuries to the digestive system/anal canal and the left and right lower extremities (knees).
The applicant has prepared a statement which outlines his claim.[1] On 20 March 2019 the applicant was performing his usual duties as a picker/packer and developed severe lower back pain. He describes his duties which include constantly lifting boxes from a conveyor belt and stacking them on to pallets and also lifting boxes from the pallets and putting them on conveyor belts.
[1] Application page 1.
The applicant consulted his general practitioner Dr Moussad who referred him for an MRI scan and then to Professor Papantoniou.
Initial treatment commenced which included physiotherapy, chiropractic treatment, hydrotherapy and prescription medication.
The applicant had a lumbar epidural injection in June 2019 and ultimately underwent an L5/S1 nucleoplasty under the hands of Prof Papantoniou on 23 December 2019. The applicant says that the result of the surgery was there was reduced referred pain down the leg, but he had ongoing lower back pain. Prof Papantoniou raised the possibility of fusion surgery however the applicant was reluctant to undergo such significant and invasive surgery.
The applicant noticed the onset of bilateral knee pain in January 2020, before that time he had no symptoms in the knees or hips. He then underwent an X-ray of both knees in September 2022 which demonstrated mild osteoarthritis of the left knee and a small effusion in the right knee. A subsequent MRI of the left knee demonstrated a mild effusion and a cleavage tear in the medial meniscus.
The applicant underwent an MRI of the left hip which demonstrated a small labral tear of the left hip which was treated with a left hip steroid injection in September 2022.
Treatment was then sought in respect of the right hip in December 2022 with Prof Papantoniou. The applicant then underwent a right hip steroid injection in April 2023. The applicant reports that he was required to take medication to control his pain. He also consulted Dr Hanna (chiropractor) for treatment of his back, hip and knees.
It is the applicant’s opinion that following his back injury, he started to walk with a limp and has found it hard to keep his back upright due to pain. He believed that it is this change in his walk and posture that has caused problems in the hips and knees.
Because of his injury, the applicant takes various medications to relieve his pain.
Dr Moussad prescribed 50 mg of Tramadol three times a day, 50 mg of Voltaren twice a day and 30 mg Panadeine Forte twice a day. The applicant also applied Voltaren Osteo gel every night on his lower back for pain.The applicant began to experience constipation issues around 2019. He later developed intermittent episodes of haemorrhoid discomfort as a result of the constipation.
The applicant consulted Dr Peter Dutton on 4 December 2020 regarding the constipation and subsequent development of hemorrhoidal problems. Dr Dutton recommended that the symptoms were treated with conservative measures including dietary measures and taking laxatives. Dr Dutton performed a colonoscopy and hemorrhoidectomy surgery on
20 January 2022.The applicant now takes Somac (40mg daily), Gaviscon and Movilax.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Has the applicant suffered a consequential condition to his digestive system/anal canal?
(b) Has the applicant suffered a consequential condition to the left and right lower extremities (knees)?
PROCEDURE BEFORE THE PERSONAL INJURY 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.
The dispute proceeded on the basis of written submissions.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (Application) and attached documents;
(b) Reply to the Application to Resolve a Dispute;
(c) late documents dated 29 June 2024, and
(d) submissions dated 16 July 2024, 5 August 2024 and 15 August 2024.
Medical evidence
I will now turn to the medical evidence.
Professor Papantoniou
Professor Papantoniou is the applicant’s treating orthopaedic specialist. He first saw the applicant in December 2021.[2] At that stage the applicant had undergone the nucleoplasty in December 2019. The applicant complained of back pain however there is no mention of the knees.
[2] Application page 50.
Professor Papantoniou has prepared a further report dated 22 February 2022 to the applicant’s general practitioner, Dr Moussad.[3] At that stage the applicant had reported his haemorrhoids which Prof Papantoniou thought was as a result of constipation from taking his analgesia for his lower back. The possibility of a fusion was discussed however the applicant at that stage did not feel the pain was bad enough to warrant an operation. There is no mention in respect of any bilateral knee issues at that time.
[3] Application page 52.
On 5 April 2022 Prof Papantoniou once again wrote to the general practitioner in respect of the applicant’s lumbar spine condition which was becoming worse. No mention is made in relation to the bilateral knee condition.
On 7 July 2022 a further report is sent to the general practitioner[4] in respect of the applicant’s severe lower back pain. At that stage, the pain was increasing, and it was Prof Papantoniou’s opinion that an instrumented fusion at L5/S1 was now appropriate. In correspondence dated 18 April 2023 from Prof Papantoniou to Dr Moussad,[5] Dr Papantoniou once again believes an instrumented fusion is appropriate. At that stage the applicant started to get right hip pain and was being treated with a steroid injection. There was no mention in respect of the bilateral knee condition.
[4] Application page 57.
[5] Application page 62.
On 11 July 2023, Prof Papantoniou wrote again to the applicant’s general practitioner[6] and complaints referred to in that report are lower back pain, bilateral sciatica and hip pain.
Dr Bodel
[6] Application page 64
Dr Bodel’s first report is dated 18 May 2023.[7] Dr Bodel takes a thorough history in relation to the applicant’s onset of physical symptoms and treatment. In relation to the bilateral knee condition, Dr Bodel understands that the pain in the knees has come on gradually without additional accident or injury. He observes that the applicant has an unsteady gait with a right sided limp.
[7] Application page 20.
Dr Bodel opines that the applicant’s backache has led to the anterior knee pain. He provides no explanation as to that process.
In a further report dated 9 October 2023,[8] Dr Bodel explains his opinion that the lumbar spine injury has materially contributed to the “injury” to the bilateral knee condition however the underlying pathological process condition is largely genetically determined. That is to say, the bilateral arthritic change in the knees is constitutionally based but the injury is the aggravation, acceleration, exacerbation and deterioration of that disease process and is therefore causally related to work.
[8] Application page 31.
In a report dated 20 December 2023,[9] Dr Bodel further explains that the bilateral knee condition and says that he has read the statement from Mr Allaw where he states his knee pain came on gradually without specific accident or injury and he first became aware of his knee and hip pain in January 2020 and reported it to his general practitioner at that time.
Dr Bodel opined that due to back pain the applicant cannot bend, twist or lift and he took to squatting down which put extra load on his hips and knees and that is the causative connection between the injury that occurred on 20 March 2019 and the current clinical circumstance.
Associate Professor Craig Waller
[9] Application page 34.
Associate Professor Craig Waller has prepared a report dated 25 October 2022.[10] In that report A/Prof Waller takes a history of the applicant’s lumbar injury and nucleoplasty in December 2019. He also took a history of anterior pain in both knees. So far as the pain in the knee he took a reported pain scale of 4 out of 10 in the left knee and 2 to 3 in the right knee. On examination, in respect of the left knee, there was a positive finding of palpitation of the proximal patella tendon with full range of motion, stable cruciate and collateral ligaments and no meniscal tendons. The right knee on examination was normal.
[10] Reply page 13.
Associate Professor Waller opined that the applicant had mild left patella tendonitis and mild patellofemoral dysfunction of the right knee which was not related to the workplace injury. A/Prof Waller does not provide any opinion as to how those conditions came about.
In a further report dated 4 May 2023,[11] A/Prof Waller takes a history of the applicant’s bilateral knee condition, pain in the hips increasing, however there was no change in the pain in the knees. Once again, he does support any workplace connection in respect of the bilateral knee condition.
[11] Reply page 21.
In a further report dated 31 July 2023,[12] whilst he takes a history of pain in the knees, on examination the knees were normal with no effusion or joint line tenderness. There was central patella tracking with stable ligaments and no tenderness to palpation.
[12] Reply page 27.
Associate Professor Waller opined that there was no plausible reason why a back condition would cause consequential injuries to the knees. He observed that though the applicant’s back was stiff his gait was symmetrical. In his conclusion at paragraph 6 in that same report, A/Prof Waller does state that the applicant had mild patellofemoral dysfunction without crepitus and a full range of motion in both knees. He therefore concluded that the applicant did not have any rateable impairment in respect of knees. He found no restriction of movement in either knee.
Associate Professor Waller has prepared a final report dated 10 May 2024.[13] In that report A/Prof Waller does not change his opinion and opines that there was no objective evidence of significant pathology affecting the applicant’s knees. Whilst he accepts that the applicant has symptoms of mild patella tendonitis in the left knee and mild patellofemoral dysfunction in the right knee, they are in no way attributable to the applicant’s back condition. Whilst he accepts that the applicant has a stiff back but a symmetrical gait, to his mind there was no plausible explanation for the applicant’s knee symptoms as being consequential of the work injury.
[13] Late documents page 1.
In respect of Dr Bodel’s history that the applicant cannot bend, twist or lift and has taken to squatting down putting extra load on his hips and knees, A/Prof Waller queries where the evidence is for this statement. He believes that it is simply conjecture with no scientific basis.
Dr Dutton
Dr Dutton is the applicant’s treating surgeon in respect of his haemorrhoids. In a report to the general practitioner in 2021,[14] Dr Dutton explains that since the injury the applicant has been taking regular pain medication which includes Panadeine Forte, Tramal and Voltaren and this has resulted in him developing constipation issues around the end of last year. He has also subsequently developed intermittent episodes of haemorrhoid symptoms of swelling with mild discomfort, and mild PR bleeding. At that stage Dr Dutton understood that the applicant had been requiring regular pain medication which included Panadeine Forte, Tramal and Voltaren and this was starting to cause constipation issues in the second half of the previous year. The applicant also experienced intermittent episodes of haemorrhoid discomfort from swelling and prolapse with associated mild PR bleeding. Dr Dutton recommended a colonoscopy and haemorrhoidectomy to be performed.
Dr Neil Berry
[14] Application page 605.
Dr Neil Berry has produced two substantive reports at the request of the applicant’s solicitors both dated 21 July 2022.[15] Dr Berry takes a thorough history of the applicant’s injury and subsequent treatment history. He says at the second page of his report that the applicant took a series of analgesics following his attendance at St George Private Hospital for the nucleoplasty which included Panadeine Forte, Voltaren and Tramal. Dr Berry concludes that as a result of this he developed constipation, haemorrhoids, anal pain and bleeding.
[15] Application page 36.
Dr Berry understands that on 20 January 2022 the applicant underwent a colonoscopy which confirmed the diagnosis of fourth degree haemorrhoids. Coincidentally, a polyp was also removed from the colon and then an open haemorrhoidectomy was carried out.
So far as present symptomatology is concerned, Dr Berry took a history that the applicant suffers a degree of constipation which comes and goes. Fortunately, the applicant does not have any bleeding from the bowel.
Dr Berry’s opinion is quite clearly articulated in that the applicant’s ingestion of medication, due to pain, is well known to cause constipation and then constipation is the major cause of a haemorrhoid formation and the third-degree haemorrhoids, which were found on colonoscopy, would have been caused or aggravated by constipation caused by the applicant’s medication intake.
In a second report also dated 21 July 2022, Dr Berry assesses the applicant’s whole person impairment in relation to his anal disease at 5% whole person impairment.
Dr Berry has produced a report dated 31 August 2023 after receiving Dr Sethi’s report dated 13 July 2023.
Dr Berry understands that Dr Sethi diagnoses the applicant’s condition as GORD relying on the applicant’s weight being elevated and also a barium swallow on 1 October 2021 which showed mild reflux symptoms with no other abnormality is the oesophagus, stomach or duodenum. Dr Sethi also opined that the fact that the symptoms took one year to come along is contraindicative to Dr Berry’s assessment.
In reply, Dr Berry says that the applicant’s raised BMI being related to his irritable bowel syndrome and that 50% of the population have rectal bleeding and haemorrhoids is not supported by medical literature. Dr Berry also observes that when he saw the applicant his body max index (BMI) was only 25.
Dr Berry once again confirms his previous opinion that the fact that the claimant was taking Panadeine Forte, six tablets a day, Tramal and Voltaren, all medications which are known to cause constipation and gastric irritation, supports his finding that the medication intake has contributed to the applicant’s digestive tract symptoms.
Dr Siddarth Sethi
Dr Sethi is a gastroenterologist retained by the respondent. His first report is dated
13 July 2023.[16] Dr Sethi understood that the applicant had been prescribed Panadeine Forte, Tramal, Voltaren and Voltaren gel. He also understood that the applicant began experiencing gastrointestinal symptoms about one year after starting that regime of medication. Dr Sethi disagrees that the medications caused the gastrointestinal symptoms. In his opinion, the applicant developed gastro-oesophageal reflux disease (GORD), irritable bowel syndrome, haemorrhoids in his own accord and the analgesic medication did not play any causative role whatsoever.[16] Reply page 33.
Dr Sethi explained that the applicant’s raised BMI had likely strongly contributed to the applicant’s GORD which is a very common condition affecting 15-20% of the general population. He states that raised BMI is well described in the medical and scientific literature to cause GORD however no references were provided in respect of that conclusion. In addition, smoking is a likely a contributor towards GORD, once again relying on medical and scientific literature without providing any links or references in respect of that conclusion. Likewise, in respect of the irritable bowel syndrome, Dr Sethi says that approximately 15-20% of the general population has IBS as caused by visceral hypersensitivity of the gastrointestinal tract and the BMI was likely to have contributed to the IBS together with smoking. Once again, the doctor refers to medical and scientific literature without any reference to that medical and scientific literature he relies upon. Likewise, in respect of haemorrhoids, Dr Sethi once again relies on the applicant’s raised BMI and smoking with reference to medical and scientific literature, without provision of any such referencing.
Finally, Dr Sethi says that there is a time gap of one year between the applicant commencing analgesic medication and first developing gastrointestinal symptoms. He thinks that this is a very prolonged period of time and essentially excludes any causative role for the symptoms. Had they been responsible, he expects that the symptoms would have started soon after, that is, within a few days or weeks.
Dr Sethi has prepared a final report dated 16 May 2024.[17] In that report Dr Sethi is of the opinion that the gastrointestinal symptoms including symptoms in the anus, are not consequential and not due to the consumption of medication to manage the pain from the back injury. In respect of haemorrhoids, Dr Sethi explains that approximately 50% of the general population has haemorrhoids and once again states that this is accepted widespread medical and scientific opinion without any reference to any particular journal, articles etc. In addition, he refers to the applicant’s BMI and smoking, once again contributing to the haemorrhoid condition. Finally, he also relies on the one-year gap between commencing analgesic medication and the development of gastrointestinal symptoms.
[17] Late documents page 4.
Dr Sethi does provide links to raised BMI contributing to the GORD symptomatology and the haemorrhoids in this report. What those reports say is that raised BMI is well-documented in medical and scientific literature to worsen reflux and further, that haemorrhoids are found in 39% of the Australian population.
DISCUSSION AND FINDINGS
The Application couches the injury and consequential conditions in the following terms:
“On 20 March 2019, the applicant suffered injury to his lower back whilst performing his usual duties as a picker/packer. The applicant developed secondary anal disease as a result of his excess medication intake to treat his work injury and a second injury to the bilateral knees due to altered gait.”
I will now look at both of these allegations separately. The claims are consequential conditions as a result of an accepted workplace injury, being an injury to the lumbar spine. The applicant’s submissions have helpfully summarised the relevant case law concerning consequential conditions in paragraph 13. The submissions provide:
(a) the applicant bears the onus of establishing the fact/existence of a consequential condition on the balance of probabilities;[18]
(b) the applicant does not need to establish that the condition is an injury within the meaning of s 4 of the 1987 Act:[19]
(c) what is required is the establishment of a relationship through a “common sense evaluation” of the causal chain determined on the basis of the evidence, including expert opinion;[20]
(d) a consequential condition is found when the applicant experiences new symptomatology in a different area of the body due to the effects or consequences of the original work-related injury;[21]
(e) to establish the existence of a consequential condition does not necessarily require the identification of a specific pathology,[22] and
(f) there needs to be an unbroken chain of causation from the injury to the development of the consequential condition.
[18] March v Stramare (E & MH) Pty Limited [1991] HCA 12.
[19] Moon v Conmah Pty Limited [2009] NSWCCPD 134.
[20] Kooragang Cement v Bates [1991] 35 NSWLR 452.
[21] Rail Services Australia v Dimovski & Anor [2004] NSWCA 267.
[22] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
The applicant says that what is required is there is a common sense test relative to the chain of causation would look to, in effect, identifying the consequences of an accepted workplace injury and as to whether there has resulted in or caused a material contribution to the development of the condition affecting a part of the body that is remote to the accepted injury.
I will now turn to disputed body parts.
Bilateral lower extremities
The applicant has couched his claim in terms of as a consequence of his altered gait pattern he has developed increasing symptomatology associated with a degenerative/congenital dysfunction of his knees.
The applicant points out that prior to the accepted workplace injury he experienced no problems in respect of his knees and hips. In December 2019 the applicant was complaining about pain radiating from the right buttock into the right leg.[23]
[23] Application page 518.
By January 2020, he was reporting his symptomatology to his knees to his general practitioner which can be seen in the general practitioner’s notes. On 24 January 2020,[24] the applicant has complained to his general practitioner of ongoing problems associated with both knees. Thereafter, there are numerous occasions where the applicant appears to be complaining about knee pain.[25]
[24] Application page 520.
[25] Application pages 521, 531 and 534.
The applicant relies on the opinion of Dr Bodel in respect of bilateral knee condition which is couched in his report of 9 October 2023. In that report Dr Bodel opines that the injury to the lumbar spine has materially contributed to the “injury” but not necessarily the condition which was the underlying pathological process which is largely genetically determined. That is to say, the bilateral arthritic change in the knees is constitutionally based but the injury is the aggravation, acceleration, exacerbation and deterioration of that disease process.
The respondent disputes the claim in respect of the bilateral knee condition. They point out that both A/Prof Waller and Dr Bodel agree that the applicant has mild patella tendonitis on the left-hand side and the right-hand side. I agree with that observation.
The respondent complains that Dr Bodel does not provide any reasoning as to why the applicant is experiencing this onset of symptomatology with reference to the lumbar spine. In his report of 9 October 2023, Dr Bodel referred to A/Prof Waller’s report and states:
“He, Associate Professor Waller, does not however identify the positive findings in his knees as work-related in this matter. I disagree for reasons I have outlined in my original report.”
Quite clearly, the respondent is concerned that the opinion of Dr Bodel does not explain why and by what process the applicant’s bilateral knee conditions results from the accepted lumbar condition. I also share that same concern.
In his report of 20 December 2023, Dr Bodel appears to provide some link to the original injury when he says that the applicant has back pain and cannot bend, twist or lift and therefore took to squatting down which put extra load on his hips and knees. The history of not being able to bend, lift or twist and therefore squatting down does not appear anywhere in the evidence. Dr Bodel, quite crucially, does not provide any opinion about altered gait and any connection between altered gait and the consequential condition in the applicant’s knees, which is the applicant’s claim.
There are two reasons why I believe Dr Bodel’s opinion does not provide any significant assistance for me in this determination. The first reason, which is not fatal to the applicant’s claim, is that the first report of Dr Bodel has not been provided. I would be interested to see what this report says. However, I am left without it being provided even after it was referred to in the respondent’s submissions. Nevertheless, what is more important to my mind is that Dr Bodel does not provide any opinion as to any connection between the applicants pleaded case that is altered gait and consequential condition of the applicant’s knees. The inability to bend, twist or lift is a different case entirely and one which the applicant provides no evidence.
I should also point out, even if the applicant did provide evidence as to his inability to bend, twist or lift arising from his lumbar injury, I would need some plausible explanation as to how this would cause symptomatology in the knees, there is no explanation in the applicant’s case. Dr Bodel does not explain in any details as to why this would cause a consequential condition.
The applicant does provide evidence of altered gait, which is consistent with observations made by Dr Bodel. Dr Bodel however does not appear to provide any medical expert opinion as this being causative of the applicant’s bilateral knee symptomatology.
Associate Professor Waller has provided three reports dated 25 October 2022, 4 May 2023 and 31 July 2023. Whilst A/Prof Waller concludes the applicant has mild left patello tendonitis and mild patella-femoral dysfunction of the right knee, he considers that neither of these conditions are attributable to the accepted work injury. Indeed, in an observation in July 2023, A/Prof Waller observes that the applicant did walk with a stiff lumbar spine however his gait was symmetrical.
Given the comments I have made above, I am not persuaded on the balance of probabilities that the applicant has sustained a consequential condition in his knees. The applicant has not established a commonsense chain of causation as required. In those circumstances there ought to be an award in favour of the respondent in respect of the applicant’s bilateral knee condition.
Gastrointestinal system
The applicant claims that he developed gastrointestinal complaints as a consequence of taking significant medication to address his pain symptomatology associated with his lumbar spine. The applicant’s pain levels have been so significant that Prof Papantoniou has recommended a fusion, however the applicant has elected not to undergo that invasive surgery and to persist with conservative treatment. The side effect for the taking of medication is the development of gastrointestinal complaints.
The applicant relies on the opinion of Dr Berry who has couched in his opinion in a report dated 21 July 2022.[26] Dr Berry explains the applicant’s pain has been controlled by multiple medications which have led to constipation and the formation of haemorrhoids. He refers to the colonoscopy and says that confirms that haemorrhoids were caused and aggravated by the recurrent constipation resulting from medication intake.
[26] Application page 36.
Dr Sethi has been retained by the respondent to prepare an opinion and his report is dated July 2023.[27] He refers to the colonoscopy and haemorrhoidectomy performed on
20 January 2022. He also refers to other complaints including raised BMI and smoking however does not take into account the effects of the intake of any analgesic medication.[27] Reply page 33.
The applicant’s treating doctor, Dr Dutton, quite clearly sees a link between constipation issues and the taking of medication. In a report to the general practitioner in 2021,[28]
Dr Dutton explains that since the injury the applicant has been taking regular pain medication which includes Panadeine Forte, Tramal and Voltaren and this has resulted in him developing constipation issues around the end of last year. He has also subsequently developed intermittent episodes of haemorrhoid symptoms of swelling with mild discomfort, and mild PR bleeding.[28] Application page 605.
Dr Dutton reports to the insurer in December 2021[29] and once again sees a link between constipation issues and the taking of regular pain medication including Panadeine Forte, Tramal and Voltaren.
[29] Application page 601.
Dr Sethi was concerned that there has been a time gap of a year between the applicant commencing analgesic medication and the first development of gastrointestinal symptoms. He therefore concludes that because of this extensive period of time any causative role has been excluded. This is a concern not shared by any other expert in the dispute.
Further Dr Sethi seems to place significant importance on the applicant’s weight, even though his BMI was calculated as being only 25 by Dr Berry. This to my mind reduces any reliance that I would place on his opinion in this regard.
I feel that Dr Dutton is in the best position to be able to find an opinion in relation to this, he clearly sees a link and does not appear to place any importance on the delay in symptoms.
On balance, I feel that Dr Dutton is in the best position to be able to provide me with a link so far as consequential condition is concerned of the gastrointestinal system. I find his treating opinion persuasive and I accordingly give it greater weight in these proceedings.
Dr Dutton’s opinion and observations are supported by the opinion of Dr Berry whose reports are concise and thorough. Both opinions support a common-sense causative link as required.
In those circumstances there should be an award in favour of the applicant in respect of the digestive system/ anal canal.
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