Christopher v Presbyterian Social Services

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Christopher v Presbyterian Social Services [2023] NSWPIC 606
APPLICANT:	Debbie Christopher
RESPONDENT:	Allawah Childrens Private Hospital
MEMBER:	John Wynyard
DATE OF DECISION:	10 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for declaration and orders that surgery reasonably necessary; whether hiatal hernia caused by 23 years of lifting disable children weighing up to 30kg; whether proposed additional gastric bypass was reasonably necessary; whether pre-existing GORD condition the cause of the hernia; Held – opinion of treating surgeons preferred that such lifting main contributing cause; gastric bypass also reasonably necessary as part of long term management; Diab v NRMA Ltd and Bartolo v Western Sydney Area Health Service considered and applied.
DETERMINATIONS MADE:	The Commission determines: 1. I declare that the proposed surgery of a hiatus hernia repair, Roux En Y Gastroenterostomy, removal of mesh and gastroscopy is reasonably necessary. 2. The respondent will pay for the costs of and associated with this surgery.

STATEMENT OF REASONS

BACKGROUND

Debbie Christopher, the applicant, brings an action against Allawah Children’s Private Hospital (the respondent) for a declaration that the surgery proposed was reasonably necessary, and for an order that the respondent pay the costs thereof.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) is Ms Christopher’s condition for which the declaration is sought, related to her employment?
(b) If so, is the proposed gastric bypass surgical treatment, which is part of the surgery proposed, related to her employment and/or reasonably necessary.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

This matter was heard on 4 October 2023. Ms Nicole Compton appeared, briefed by Ms Peta Kavas for the applicant, and Mr Daniel Stiles of counsel appeared, briefed by Mr Gilmore for the respondent. Ms Sarah Waddick appeared for the insurer and Ms Bramble as Ms Christopher’s support person.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents dated 28 September 2023 with attachment (Mr Stiles did not rely on this document).

Oral evidence

No application was made.

FINDINGS AND REASONS

Ms Christopher

Ms Christopher claimed in the ARD that she suffered an injury on 28 September 2018, when she developed a hiatal hernia, which she alleged had arisen as a result of more than 20 years employment with the respondent working with severely disabled children. Part of her duties was the repetitive, heavy lifting of those children, and it was this that Ms Christopher alleged led to her sustaining a hernia that required surgical intervention in 2015.
She returned to work, but her symptoms recurred in 2017 and she ceased work on 28 September 2018, as her symptoms were worsening.
At [7] of her statement Ms Christopher said:
“In 2015 I underwent this surgery. Professor Bearney told me that it was work related, but that it would be hard to prove. I accepted this and returned to work.”
Ms Christopher accordingly paid for the surgery herself.
She described the nature of her duties as follows:
“[3]    I have been employed by Allawah Children's Hospital in Dundas for almost 24 years.
[4]     In this role, the work was very heavy. All the children are severely disabled and require total assistance with all cares and activities of daily living. My daily living routine included a lot of heavy lifting of these children, in and out of bed, into wheelchairs and chairs, toileting, showering, feeding, assisting them to ambulate with standing and walking frames and pro boards, and bed changing for bedridden incontinent children.
[5]     around 2015, I consulted my GP with gastric symptoms which were quite severe and had been getting worse for quite some time.”
Following the 2015 surgery, Ms Christopher said that her symptoms settled down and she managed to work through to 2018. She said that in 2017 she noticed a return of symptoms worsening with time. She made a claim for workers compensation around this time, which, she said at [10], was accepted. It would appear that the claim concerned a co-morbid condition regarding Ms Christopher’s cervical spine, for which she underwent two spinal surgeries.
The date Ms Christopher ceased work is not clear, but the s 78 notice of 31 August 2022 suggested that she may have ceased on 6 October 2018,[1] whilst the ARD claimed an injury date of 28 September 2018. Nothing turns on this discrepancy, as it is common ground that Ms Christopher’s symptoms returned whilst she was still employed.
[1] Reply page 7.
She was referred to Professor Peter Cosman for treatment of her gastrointestinal complaints, whom she saw on 30 April 2019. A gastroscopy was undertaken which Professor Cosman on 5 July 2019 which demonstrated a fixed 4cm paraoesophageal hernia with a possible Schatzi ring in the lower oesophagus. Professor Cosman ordered further oesophageal studies after which surgery was planned to “repair her hiatal hernia recurrence.”[2]
[2] ARD page 60.
Ms Christopher said that once COVID hit, she was unable to access further specialist treatment as elective surgery was banned during the emergency. Professor Cosman moved to Queensland in 2022 and Ms Christopher was referred to Associate Professor Charbel Sandroussi, who on 26 May 2022 said:[3]
“She had a CT scan which shows persistence of the hiatus hernia, and a large piece of mesh which is almost certainly contributing to things. She also has fairly normal gastric emptying.”
[3] ARD page 31.
Surgery was organised for 24 June 2022, but approval was not given, and Ms Christopher’s medication was no longer paid – presumably as a result of a s 78 notice of 16 June 2022.
On 13 July 2022, Associate Professor Sandroussi diagnosed:[4]
“… severe reflux, oesophagitis, a stricture in the distal oesophagus, and a large hiatus hernia.”
[4] ARD page 27.

Clinical notes

The clinical notes of Telopea Medical Centre showed that Ms Christopher was suffering from gastro oesophageal reflux disease (GORD) on her first attendance on 19 January 2012, for which she was prescribed Somac.[5] On 8 May 2013 Ms Christopher was again prescribed Somac, which an entry on 30 September 2013 noted “doesn’t help her.” She was diagnosed on 22 March 2014 as having a viral upper respiratory tract infection and suffering from diarrhoea, amongst other symptoms. Entries thereafter through to 10 December 2014 recorded continuing respiratory infection.
[5] The clinical notes start at ARD page 62.
On 10 December 2014 investigations showed “large sliding hiatus hernia” and the need to see a gastroenterologist. Further investigations showed on 12 December 2014 that Ms Christopher was suffering centrilobular emphysema and relevantly a “large diaphragmic hernia lt posteriorly, composing of colon and portion of stomach.” She was referred then to see a gastroenterologist, a Dr Rodges. The entry of 17 December 2014 showed that Ms Christopher had seen Dr “Rofges”, who had sent her to a general surgeon “and he will see her on 10 February 2015 for operation.”
The entry of 12 February 2015 stated that Ms Christopher had seen Dr Christopher “Berney” “for her sliding hernia… he told her that she has two more years to live and booked her for gastro colonoscopy….”
On 11 March 2015 the entry showed that Ms Christopher had undergone the colonoscopy and gastroscopy which found a type IV hiatus hernia. The notes showed that thereafter Ms Christopher was booked for an operation for her hernia on 28 May 2015. The entry of 22 April 2015 stated:
“…ask for a letter to her employer that she shouldn’t lift wt more than 10 kg due to her hernia.”
On 4 June 2015 the entry showed that she had undergone a laparoscopic repair of her diaphragm with mesh.

Professor Peter Cosman

Professor Peter Cosman’s expertise was partially obscured by the photocopying, but his report to Dr Calvache-Rubio of Workers Doctors on 9 April 2020 showed that his specialty was “pancreaticobiliary … esophagogastric ….”. I accept therefore that he was an expert in the field of esophagogastric medicine.
In his report 30 April 2019 he acknowledged that Ms Christopher had been referred for treatment and management. He noted that Ms Christopher had been working as an Assistant in Nursing for 20 years or so in a children’s hospital where she was frequently lifting children of all sizes. He noted that she had a large para oesophageal hernia in 2015 manifesting with dysphagia, and that the surgery resulted in a good resolution of the symptoms and normalisation of eating until about two years before (that is to say, 2017). The dysphagia began to return, and was now persistent for solids, Ms Christopher being unable to eat red meat at all. She was vomiting after almost every meal and experiencing regular epigastric pain and reflux. She had significant levels of dysphagia. (Dysphagia is the medical term for swallowing difficulties.) Investigations including a barium swallow in March 2019 revealed that she had a small sliding hiatal hernia with a more substantial para oesophageal hernia which Professor Cosman said represented “a site of recurrence.”
In his next report of 5 July 2019 Professor Cosman noted that Ms Christopher’s symptoms were unchanged. Her recent gastroscopy and demonstrated a fixed 4cm para oesophageal hernia with a possible Schatzki ring in the lower oesophagus. He said:
“I believe that her working conditions as a carer for children with disabilities has contributed to the recurrence of her hiatal hernia through repeated straining whilst lifting children whose weight frequently exceeds 30 kg.”
Professor Cosman proposed the surgery once approval has been received from the insurer.
Professor Cosman saw Ms Christopher again on 9 April 2020 after she had presented at Ryde Hospital Emergency Department with epigastric and left upper quadrant abdominal pain, with “coffee ground emesis” (‘emesis’ being the medical term for the process of vomiting). Professor Cosman proposed surgical intervention, but noted that in the Covid emergency at the time there was a ban on elective surgery.

Associate Professor Charbel Sandroussi

Associate Professor Charbel Sandroussi, upper gastrointestinal, hepatobiliary and transplant surgeon then became involved with Ms Christopher’s treatment, Professor Cosman having relocated to Queensland. On 26 May 2022 Associate Professor Sandroussi reported to the general practitioner (GP) that Ms Christopher had ongoing obstructive swallowing and “terrible” reflux symptoms. He said, as indicated, that a CT scan showed persistence of the hiatus hernia, “and a large piece of mesh which is almost certainly contributing to things.”
Associate Professor Sandroussi said that he had a long talk with Ms Christopher about both undertaking a hiatus hernia repair, and undertaking a gastric bypass-type operation to ameliorate her reflux and stomach obstruction in the longer term. Associate Professor Sandroussi asserted that the purpose of this latter procedure was not for any weight problems, but rather more as a definitive treatment for her reflux.[6]
[6] ARD page 31.
Associate Professor Sandroussi on the same day applied to the insurer for approval to perform the surgery that is the subject of this application, that is to say:
“Hiatus hernia repair plus Roux En Y gastroenterostomy plus removal of mesh plus gastroscopy.”
Surgery was arranged for 24 June 2022 at the Mater Hospital at North Sydney, but was cancelled when approval was not given, as indicated.
On 13 July 2022 Associate Professor Sandroussi stated:
“[Ms Christopher] does a lot of heavy lifting at work, and the hiatus hernia was almost certainly caused by recurrent lifting and this has led to the symptoms of vomiting and reflux.”
Associate Professor Sandroussi diagnosed severe reflux, oesophagitis, stricture in the distal oesophagus, and a large hiatus hernia. He said:[7]
“The only treatment for this, is revision of surgery, with correction of the hiatal defect, restoration of normal oesophageal anatomy, and performance of a gastroenterostomy to improve drainage of the stomach and help reduce the risk of reflux ever occurring again.”
[7] ARD page 27.
Without surgery, Associate Professor Sandroussi said, it was probable that her condition would deteriorate; her reflux will worsen and there is an increased risk of strictures, oesophagitis and ultimately of oesophageal cancer. He said no other treatment was indicated.
“The patient's condition is terrible, it is not stable, and will not get better unless she has surgery…”

Dr Peter Conrad

Dr Peter Conrad, general surgeon was retained as the medico-legal expert by Ms Christopher. He reported on 11 May 2023, taking a consistent history of Ms Christopher’s employment with the respondent for about 23 years. He recorded that a lot of the work involved heavy lifting of disabled children and supporting them, toileting them and showering them.[8]
[8] ARD page 23.
The history taken was that about 10 years ago Ms Christopher developed reflux and vomiting which was aggravated by heavy lifting at work. A hiatus hernia was diagnosed about eight to nine years earlier, and the symptoms were so severe that she had surgery with Professor “Bearney.”
Dr Conrad noted the nature of the surgery and that there was a good resolution of symptoms until about 2017 when her dysphagia began to return. It was made worse by solids. She was unable to eat red meat. She was vomiting after almost every meal and continued to have epigastric pain and reflux.
He referred to Professor Cosman’s report showing Eckardt score of 11, which indicated significant levels of dyphagia.
Dr Conrad noted Professor Cosman’s opinion that heavy lifting substantially contributed to the recurrence of the hernia. He noted that Ms Christopher was now under the care of Associate Professor Sandroussi and repeated Associate Professor Sandroussi’s observations as to both the cause of her recurrent hiatus hernia and the seriousness of her condition. He said:[9]
“Ms Christopher as a result of repetitive lifting of disabled patients and supporting disabled patients at [the respondent hospital] developed a hiatus hernia which was initially repaired by Professor Bearney in about 2015.
Unfortunately after some two years, this has substantially recurred ….”
[9] ARD page 25.
Dr Conrad agreed with the treating surgeons that “undoubtedly the hiatus hernia was predominantly precipitated by her conditions of work.”
He agreed with the surgical expert that the proposed surgery was mandatory.

Dr Han Thai

The respondent relied on firstly report of Dr Han Thai dated 9 June 2022. Dr Thai was an occupational physician. He advised that the epigastric hernia recurrence was related to failed surgery, and that if that surgery had been covered by an earlier claim the recurrence injury could be accepted, but if the original surgery was paid for privately then the recurrence injury would not be work-related. In any event, the proposed Roux en Y gastroenterostomy was not caused by work duties. Mr Stiles observed in his submissions that this opinion did not take the matter any further, with which I agree.

Dr Sidarth Sethi

Dr Siddarth Sethi, gastroenterologist and hepatologist, stated on 11 January 2022 that he did not consider the paraesophageal hernia was related to her work, and he thought that it would have developed regardless of her employment.
He noted that Ms Christopher had a pre-existing GORD, which he said was a very common condition affecting 15-20% of the general population.
He said that hiatal hernia were also very common, affecting 55-60% of people above the age of 50. The hernias were caused by abdominal muscle wall weakness and increased pressure in the abdominal cavity.
Dr Sethi noted that Ms Christopher previously had a hernia and that therefore this was a pre-existing condition of which it was “highly unlikely and extremely improbable” that lifting children at work would have caused her to develop recurrent paraesophageal hernia.
Dr Sethi thought that Ms Christopher’s recurrent vomiting and sternal burning sensation was strongly suggestive of GORD.

Associate Professor Paul Myers

The respondent also relied on Associate Professor Paul Myers, general and vascular aurgeon, who reported on 29 June 2022.[10]
[10] Reply page 26.
Associate Professor Myers took a consistent history. He noted the 2015 surgery with Professor “Bearney” and that at the time she had stomach pain and vomiting. He said he would be surprised if Professor Bearney did tell her that she would be dead if she did not have the 2015 surgery.
Associate Professor Myers appeared to be relying on what Ms Christopher told him about the surgery carried out by Professor Bearney. He noted that it caused an improvement, but only to about three years before Dr Myer’s report of 29 June 2022, when she started vomiting again.
That history is questionable. That would locate the recurrence of symptoms in 2019 whereas other evidence demonstrated that the symptoms re-emerged while she was still working in 2017.
Associate Professor Myers noted that Ms Christopher had been referred to Professor Cosman, who had moved to Queensland.
Associate Professor Myers noted that the COVID 19 emergency made it difficult to get an appointment and that was when she went to the Workers’ Doctors and was referred to Associate Professor Sandroussi. Before that, Associate Professor Myers noted, a barium swallow had been performed.
That test showed that there was no gastroesophageal reflux and no suggestion of gastric outlet obstruction, Associate Professor Myers said.
However, the CT scan performed at Associate Professor Sandroussi’s request on 24 May 2022 did show a similar hiatus hernia to that which was shown in the previous CT in April 2019.
Associate Professor Myers referred to a gastric study performed at the request of Associate Professor Sandroussi on 23 May 2022 the results of which Associate Professor Myers said “not only was there no evidence of any gastric outlet obstruction, the stomach would seem to empty more quickly than normal.”
Associate Professor Myers described the proposed Roux-en Y procedure as being occasionally used as bariatric surgery more commonly in the past, or for either cancer or peptic ulcer disease.
Associate Professor Myers agreed that Ms Christopher was suffering from a para-esophageal hernia with reflux probably associated with it.
He stated that it would not be unreasonable to perform the surgery but he could not understand why a Roux-en Y gastroenterostomy was also sought, and he advised that it was not indicated. He indicated that Ms Christopher was not overweight and did not need bariatric surgery.
Associate Professor Myers noted that “the basis of this claim seems to be that increase intra-abdominal pressure for whatever reason, including lifting and straining will lead to an increased incident of para-esophageal hernia.”
Associate Professor Myers agreed that there was some evidence that obesity increased the risk of paraesophageal hernia, but Associate Professor Myers had just stated that Ms Christopher was not overweight.
Associate Professor Myers also said that increasing age can cause an increase risk of the development of the hernia and there was also some genetic involvement in a small group.

He said:
“There is no evidence in the scientific literature of which I am aware – and I have reviewed this because of this case – that straining and/or increased intra-abdominal pressure, or employment, is related to the formation or recurrence of a para-esophageal hernia.”
Associate Professor Myers said:
“As I see with some other matters that are related to compensation issues, there seems to have been an extrapolation of reasoning to include straining, lifting and work as a cause.
But I can find no evidence in the scientific literature to support that contention.”
He agreed that Ms Christopher would continue to have symptoms unless she had further repair of her paraesophageal hernia. He repeated that he could not see any justification for the Roux-en Y procedure.

SUBMISSIONS

Ms Compton

Ms Compton referred firstly to the approval request from Associate Professor Sandroussi for the proposed surgery. Ms Compton noted that although Associate Professor Myers doubted that the proposed Roux-en Y gastroenterostomy was necessary, Associate Professor Sandroussi explained why he recommended that procedure along with the others. Ms Compton submitted that Associate Professor Sandroussi’s opinion was a complete reply to Associate Professor Myers’ reservations. Associate Professor Sandroussi was Ms Christopher’s treating surgeon who advised that the gastroenterostomy was needed to treat the effects of the hernia, and not related to any bariatric question.
Ms Compton referred to the history of Ms Christopher’s condition. The clinical notes of the Teleopea Medical Centre demonstrated a long history of gastric problems, and Ms Compton led me through them. She submitted that when considered with the opinions of Professor Cosman and Associate Professor Sandroussi, the notes would be persuasive that there was a link between the heavy lifting nature of Ms Christopher’s duties and the onset of her condition. Dr Conrad’s view was the same, Ms Compton said.
Ms Compton referred to the opinion of Dr Thai and Dr Sethi, submitting that those of the treating surgeons should be preferred.

Mr Stiles

Mr Stiles submitted that it was not clear as to when Ms Christopher’s symptoms recurred. He noted that the claim was that their onset was sometime in 2017, but the evidence showed that there was no treatment until 2019, and the recommendation for surgery was not made until 2022.
Mr Stiles submitted that it was significant that there was no evidence from Professor Bearney concerning the 2015 surgery, nor was there any evidence going to the causation of that 2015 treatment.
The clinical notes of the Telopea Medical Centre were of little probative weight as to the link between Ms Christopher’s duties and the need for the proposed surgery, Mr Stiles argued. He submitted that when she first attended the medical practice as early as 2012, it was for her GORD which, according to Dr Sethi, had been of long standing. Mr Stiles referred to the entries in the years preceding the 2015 surgery which were all concerned with her reflux condition. He said that when Ms Christopher was referred for expert treatment by Professor Bearney, there was no suggestion made that her work duties had been the cause of her condition. Whilst Professor Cosman posited an opinion that the duties of lifting children had caused a recurrence of the hernia, there was no evidence that such lifting had been the cause of the 2015 surgery.
Mr Stiles relied on the opinion of Dr Sethi, conceding as he did that the history taken by Dr Sethi was confused, but whose opinion nonetheless could be accepted that her employment was not causative of her condition.
Mr Stiles relied more confidently on the opinion of Associate Professor Myers. Mr Stiles submitted that the gastric bypass procedure of the Roux en Y gastroenterostomy had not been shown to be necessary, as the CT investigations did not show that Ms Christopher was suffering any symptoms which required it. Moreover, Mr Stiles argued, Associate Professor Sandroussi did not link the hernia treatment to the gastric bypass procedure. The bypass procedure was, Mr Stiles submitted “a leap too far.” He submitted that even Dr Conrad’s explanation that this procedure was for drainage of the stomach did not link it to the hernia condition.
Mr Stiles submitted that there was a gap in the evidence between the alleged recurrence of Ms Christopher’s reflux and her treatment with Professor Cosman in 2019. The condition may have subsided, Mr Stiles said, as the relevant clinical notes were concerned with orthopaedic and stress issues. There was very little that suggested that Ms Christopher’s hernia condition had been caused by her employment.
Mr Stiles adopted the advice of Associate Professor Myers that there was no causal relationship between Ms Christophers’ duties in her employment.

Ms Compton in reply

Ms Compton stressed that it was the opinion of Dr Conrad that it was mandatory that the bypass surgery should be undertaken. She submitted that Associate Professor Sandroussi also explained the necessity for the proposed surgery as being the only treatment that could reduce the chance of the hernia ever happening again.

DISCUSSION

The dispute notice of 17 June 2022 denied liability for the subject surgical treatment on two bases. Firstly it stated:[11]
“EML disputing liability for the surgery, as it appears that the original epigastric hernia recurrence is related to a failed surgery in 2015, prior to your work injury in 2018. As the original surgery was not covered under EML's claim, the requested hiatus hernia repair, removal of mesh and gastroscopy cannot be considered work related, and due to your work injury in 2018.”
[11] ARD pages 13-14.
Secondly, the notice referred to the proposed bypass surgery, saying:
“There is no explanation about the relationship of this procedure and how it is related to your work injury in 2018, as it appears to be unrelated to your claim.”
The “work injury in 2018” referred to a cervical spine injury in respect of which Ms Christopher said she came to two major spinal surgeries.
Although the dispute notice stated that the proposed surgery was unrelated to the 2018 injury, in the subsequent notice of 31 August 2022 the notice stated:[12]
“We also highlight the qualified opinion of Dr Han Thai who found that your hernia recurrence was related to the failed surgery in 2015. Furthermore, you hadn’t performed workplace duties since your injury in 2018 and your symptoms have progressively worsened following work cessation.”
[12] Reply page 8.
The essential issue is whether the 2015 surgery which Ms Christopher paid for herself was reasonably necessary as a result of the nature and conditions of her work at that time. As was conjectured by Dr Thai, if the 2015 surgery had been covered by an earlier claim, then the current application could be accepted as a recurrence injury, and the costs of the proposed surgery met by the insurer.
He was, however, incorrect to state that if the 2015 surgery had been paid for privately, then the 2015 injury could not be seen as work related. This is, obviously enough, because he did not consider the case where no claim had been made and thus no determination as to liability had been considered.
As both counsel recognised, it was accordingly necessary to consider the contemporaneous evidence, as the present allegation of injury is on the basis that Ms Christopher’s condition is a recurrence of that 2015 injury.
Ms Compton referred to the clinical notes of the Telopea Medical Centre at the time of the 2015 surgery to establish a causal link between the need for surgery at that time and the nature of Ms Christopher’s employment duties.
This proved to be a two-edged sword, as the notes showed that Ms Christopher was suffering from GORD on her first attendance on 19 January 2012, and was treated for a variety of related problems through to her eventual diagnosis by Dr Rodges in December 2014. Although the entries since 22 March 2014 diagnosed a viral upper respiratory tract infection, the symptoms such as diarrhoea raise the prospect that there was a gastric problem as well. In any event the discovery of the large sliding hiatus hernia in December 2014 and the subsequent investigation and referral led to the surgery with Professor Bearney. (Professor Bearney’s name was spelt in different ways in the evidence, but it is common ground that they referred to the same person.)
The notes are a two-edged sword because whilst they certainly show that Ms Christopher was suffering, for a long period of time, symptoms that were eventually diagnosed as requiring surgical repair, there was very little to suggest that her having to lift and carry disabled children was a cause of her condition.
However, an inference is available from the entry of 22 April 2015, when a positive diagnosis was finally made, that lifting more than 10 kg was contra – indicated because of her hernia. Mr Stiles downplayed that entry, saying that it did not follow that the hernia condition resulted from her lifting, but there was other evidence which tends to confirm that interpretation. It is also evident that such a request would not have been made unless it was considered that lifting over 10kg was dangerous for a person with Ms Christopher’s hernia. As she had been symptomatic for some time an inference is also available that indeed her having had to lift disable children weighing up to 30kg for 20 years or so might well have been a cause.
Ms Christopher alleged in her statement of 8 June 2023, to repeat:
“In 2015, I underwent the surgery. Professor Bearney told me that it was work-related but that it would be hard to prove. I accepted this and returned to work.”
There is no corroboration for Ms Christopher’s allegation, but it does seem that Professor Bearney did make statements that were perhaps outside a strict interpretation of his/her specialty. Associate Professor Myers noted that Professor Bearney had allegedly said to Ms Christopher that she was in “Category IV and if she did not have surgery she would be dead.” Associate Professor Myers expressed some doubt and said he would be “somewhat surprised” if Professor Bearney “really did tell Ms Christopher that in those terms.”
Ms Christopher did not make that claim in her statement, but it was supported, as indicated, by the entry of 12 February 2015 in the Telopea Medical Centre notes:
“He told her she has two more years to live…”
If Professor Bearney did make that statement, which I accept he/she did, it is reasonable to assume that he/she also told Ms Christopher that her condition at the time of the 2015 surgery on 28 May 2015, was work-related, but difficult to prove.
Mr Stiles noted that there was nothing lodged from Professor Bearney, and it can be seen that it is not clear what sex he/she is,[13] nor indeed how to spell the name. It would have been useful to have heard from this treating surgeon, but I do not regard the absence of this evidence as being determinative. As I commented to Mr Stiles, I was more concerned with what was before the Commission, rather than what was not.
[13] Professor Bearney was mainly referred to as a man, but the entry in the clinical notes of 17 March 2015 describes a woman.
Mr Stiles also submitted that there was a temporal gap between when Ms Christopher said her symptoms recurred in 2017 and when she sought treatment from Professor Cosman in 2019. Mr Stiles withdrew his submission that there was “an absence” of medical evidence between those dates and stated there was “very little” evidence in the clinical notes and records that suggested Ms Christopher’s symptoms were attributable to employment.
The concession was well made, as although part of the clinical notes for 2017 were concerned with treatment by a psychologist, Darrin Hooper, there were entries that referred to a complaint of diarrhoea on 8 August 2017, and the GP recorded “coughing” and diagnosed a lower respiratory tract infection (LRTI) on 29 August 2017. Ms Christopher was recorded to have been vomiting on 14 September 2017, when a diagnosis of recurrent respiratory tract infection (RRTI) was given. The GP recorded complaints of coughing and diagnosed a viral upper respiratory tract infection on 11 July 2017
Ms Christopher said that “in 2017” she noticed a return of the symptoms worsening with time. It can be seen that there is no precise correlation within the clinical notes and the recurrence of Ms Christopher’s paraesophageal hernia, which reflects a similar approach taken by the same GP in 2014. He simply diagnosed a viral upper respiratory tract infection from March 2014 until on 10 December 2014 when, because of a “cough for months,” chest radiography (CXR) discovered the large sliding hiatus hernia.
The GP also recorded complaints of coughing and lower respiratory tract infection on 16 January 2018 and 22 March 2018. There were entries in September 2018 about Ms Christopher’s neck, and on 17 September 2018 she was admitted to Ryde Hospital with “RUQ pain.” “RUQ” is a medical abbreviation for “right upper quadrant” most commonly attributable to biliary and hepatic pathology.
Ms Christopher was treated constantly, the notes showed, for stress at work, her neck condition, and at one stage for a septated cyst. She was booked for a cholecystectomy on 22 October 2018.
Ms Christopher had a number of complaints therefore, but amongst them were symptoms that correlated to those that her GP noted before her 2015 diagnosis.
The notes from 2017 constitute no more than a strand of evidence regarding causation, and of themselves have little probative weight. However, when combined with the other matters I have discussed a chain of causation is established which gives prima facie proof that the two recurrences are related, and that they occurred during her employment with the respondent.
There was no challenge to the fact that Ms Christopher had been working for over 23 years in an arduous and difficult job which involved the lifting and managing of children that she described. The question then remains as to whether those duties were a cause of her injury which now requires, as a matter of urgency, further surgery.
As noted, Professor Cosman is an expert in the field of esophagogastric medicine, and was the treating surgeon in 2019. He managed Ms Christopher’s condition from 30 April 2019 to at least 9 April 2020, and was planning to repair her hiatal hernia when the Covid emergency occurred. He had more familiarity with Ms Christopher’s condition than the medico-legal experts retained by the insurer. His opinion was unequivocal – that the repeated straining in whilst lifting children contributed to the recurrence of Ms Christopher’s hiatal hernia.
Similarly, Associate Professor Sandroussi has been managing Ms Christopher’s treatment since April 2022 and had a familiarity with her case leading up to booking her admission to the Mater Hospital on 24 June 2022. He too was unequivocal about the role that the work duties played in causing her condition, stating that the lifting “almost certainly” caused the recurrent hiatus hernia.
Dr Conrad supported these opinions, finding that “undoubtedly” the hiatus hernia was predominantly precipitated by the work conditions.
The respondent’s reliance on the opinion of Dr Sethi did not advance its case. Firstly, Dr Sethi’s history was wrong. He appears to have conflated Ms Christopher’s orthopaedic injuries with the hernia injury, stating that Ms Christopher developed neck, back and abdominal pain on 28 September 2018. Whilst he noted the 2015 paraesophageal repair and Ms Christopher’s current symptoms of vomiting five times per day, he indicated that she had been suffering those symptoms since 2015, which was incorrect, as they ceased after the 2015 hernia repair. He took no history of any recovery after the 2015 surgery, and his statement that her condition had not been affected by “her work accident” again demonstrates his confusion as to his task.
Dr Sethi noted that investigations in 2019 had shown a recurrent paraesophageal hernia. He noted that Ms Christopher underwent oesophageal manometry and pH studies following her gastroscopy on 13 June 2019. He noted Ms Christopher’s claim that her hernia occurred as a result of repeatedly lifting heavy children.
Dr Sethi advised that Ms Christopher’s hernia developed regardless of her employment, which did not play “any” causative role. His explanation for that statement was that 55-60% of the population over 50 have hiatal hernias, a “very common condition.” This was because of abdominal wall weakness and increased pressure on the abdominal cavity.
What Dr Sethi did not consider was whether the repeated lifting over 23 years or so would have contributed to the development of her condition. His absolute denial that it made any contribution stands in stark contrast to the unanimous view of the two specialist surgeons I have just recounted. Moreover his opinion that it was “highly unlikely" and “extremely improbable” that lifting children at work would have caused the recurrent hernia fails to consider whether the lifting would have aggravated the condition.
Moreover, if Dr Sethi was correct that Ms Christopher had abdominal wall weakness, he did not consider whether the work she was doing had caused that weakness to rupture, thus creating the paraoesophageal hernia. An employer must take its worker as it finds her.[14]
[14] The “talem qualem” rule: see State Transport Authority v Chemler [2007] NSWCA 249 at [40].
In any event, Dr Sethi’s percentage statistics were not verified. I have some reservations about accepting the accuracy of such figures without some explanation of their provenance.
Associate Professor Myers’s history taking was more accurate than that taken by Dr Sethi, and he agreed with the diagnosis of recurrent hiatus hernia. Associate Professor Myers was asked some questions, and the following was recorded:[15]
“a.     Is Ms Christopher's employment the substantial contributing factor to her current gastrointestinal diagnosis?
No.
b.      Is Ms Christopher's employment the main contributing factor to an aggravation (i.e. aggravation, exacerbation, acceleration, deterioration) of a pre-existing gastrointestinal condition? Please confirm the pre-existing condition aggravated.
No.
c.      Has Ms Christopher's gastrointestinal condition arisen (or been aggravated) as a consequence of her other work injuries in this claim, or the management required for these injuries? Please provide a detailed explanation of any causal relationship.
No.”
[15] Reply page 29.
Associate Professor Myer’s reasons for giving those answers were:
“Ms Christopher’s gastro-intestinal diagnosis is not a work-related injury or aggravation.”
He advised that there was no evidence in the “scientific literature” of which he was aware that “straining and/or increased intra-abdominal pressure, or employment was related to the formation or recurrence of a paraoesophangeal hernia.” This catch-all opinion followed his summation of the issue:
“The basis of this claim seems to be on the basis that increased intra-abdominal pressure for whatever reason, including lifting and straining, will lead to an increased incidence of para-esophageal hernia.”
This somewhat condescending tone suggested that he had not really appreciated the issue. The phrase “for whatever reason” is remarkable and suggests perhaps an approach that was not wholly impartial. This impression was not helped by his subsequent comment:
“As I see with some other matters that are related to compensation issues, there seems to have been an extrapolation of reasoning to include straining, lifting and work as a cause.”
Again, what the “scientific literature” was that Associate Professor Myers especially reviewed because of this case was not identified.
In the final analysis, Associate Professor Myers’s opinions are no more than ipse dixits as to whether the constant lifting of disabled children weighing up to 30kg was a contributing factor to the injury. As indicated, I accept the opinions of the treating surgeons Professor Cosman and Associate Professor Sandroussi. They were specifically qualified in this specialty and both, over a gap of three years were unhesitatingly of the view that the constant lifting had caused the hernia. I am satisfied that these duties were the main contributing factor to Ms Christopher’s injury and the consequent need for the subject surgery.

Mr Stiles submitted that even if I made such a finding, the proposed Roux-en Y gastroenterostomy could not be a reasonably necessary surgical treatment. Again, he relied on the opinion of Associate Professor Myers in arguing that Associate Professor Sandroussi did not link that procedure to the need for the hernia repair.
Associate Professor Sandroussi’s explanation for the bypass procedure, as indicated above, was that it would “improve the drainage to the stomach and help reduce the risk of Ms Christopher’s reflux ever happening again.” He also stated:[16]
“…I have had a long talk with [Ms Christopher] about possibly undertaking a gastric bypass-type operation to ameliorate her reflux and stomach obstruction in the longer term, and she is amenable to this. This is not done for any weight problems but rather more as a definitive treatment for her reflux.”
[16] ARD page 31 – report of 26 May 2022.
Associate Professor Myers however referred to the barium swallow procedure, which occurred on 15 March 2019.[17] The findings did not demonstrate any gastro-oesophageal reflux or gastric obstruction. He also noted that a CT scan performed on 24 May 2022 – a month earlier from his assessment – showed “no holdup…within the oesophagus proximal to the hernia.” He also said that there was “no suggestion of gastric outlet obstruction.”
[17] ARD page 61.
Associate Professor Sandroussi had noted the CT results when he had his long talk to Ms Christopher, as he reported on 26 May 2022, including that “fairly normal gastric emptying” was recorded. It was not, I infer, a relevant consideration in his over-all strategy, and his proposal was, as he then said, “in the longer term” management of Ms Christopher’s condition. Whether any obstruction was present on any particular day was not the point. In his report of 13 July 2022, Associate Professor Sandroussi described Ms Christopher’s condition as “terrible.” Dr Sethi noted that she was vomiting several times per day – five times on average.[18]
[18] Reply page 19.
Associate Professor Sandroussi was in the best position to evaluate the most optimal surgical procedure. Associate Professor Myers’ explanation that the procedure was usually carried out for bariatric purposes, which was not indicated in Ms Christopher’s case, ignored Associate Professor Sandroussi’s express disavowal of that purpose, and did not attempt to engage with the longer-term outcomes that the proposed surgery was recommended for.
I also accept the opinion of Dr Conrad, who agreed that the hiatus hernia was “undoubtedly” predominantly precipitated by Ms Christopher’s work duties. He stated:
“…revision surgery with correction of the hiatus defect, restoration of normal oesophageal anatomy and performance by gastroenterostomy to improve drainage of the stomach will help reduce risk of reflux and is mandatory.”
In Diab v NRMA Ltd,[19] an authority frequently cited in this area, DP Roche summarised the relevant indicia regarding the question of whether treatment was reasonably necessary. At [88] he described one of the indicia as “the actual or potential effectiveness of the treatment.”
[19] [2014] NSWWCCPD 72.
Both Ms Christopher’s treating surgeon and medico-legal expert agree that the inclusion of the gastric bypass element of the proposed surgery has an actual effectiveness, but in the case of a person as badly affected by her condition as Ms Christopher the potential effectiveness is also a relevant factor. This is a case about which the dicta of an earlier case is perhaps apposite, as was cited by DP Roche at [78]:
“In addition, the Commission has been guided by, and generally followed, the decision of Burke CCJ in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233 (Bartolo), where his Honour said, at 238D:
‘The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.’”
This dicta was doubted as being generally applicable by the learned DP at [90], but it applies in Ms Christopher’s case as to the potential effectiveness of the Roux en Y gastroenterostomy.

Orders

For these reasons I declare that the proposed surgery of a Hiatus hernia repair, Roux-En Y Gastroenterostomy, Removal of mesh and Gastroscopy is reasonably necessary.
The respondent will pay for the costs of and associated with this surgery.

[2023] NSWPIC 606

10 November 2023