Curcuruto v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Curcuruto v Secretary, Department of Education [2025] NSWPIC 273
APPLICANT:	Karen Curcuruto
RESPONDENT:	Secretary, Department of Education
MEMBER:	Adam Halstead
DATE OF DECISION:	17 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; medical expenses claim pursuant to section 60; applicant injured at work; knee injuries accepted; exercise program following knee surgery; applicant claims pelvic organ prolapse as consequential condition arising from exercise program; nature of available supporting medical evidence; sufficiency for establishing causal chain; Held – available evidence does not reasonably establish pelvic organ prolapse consequential to accepted workplace injuries; other relevant risk factors present; award for respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Karen Curcuruto, claims the cost of medical treatment, specifically surgery, to correct a pelvic organ prolapse. She injured her right knee in the course of employment with the respondent, Secretary, Department of Education. Her left knee was later also affected. Bilateral knee surgery was performed and the applicant was prescribed a post-operative exercise program. The applicant contends the program caused a pelvic organ prolapse or aggravation of that condition. The respondent disputes the claim. An Application to Resolve a Dispute (ARD) was lodged by the applicant in the Personal Injury Commission (Commission) on 12 February 2025. The ARD refers the applicant having “sustained a pelvic prolapse”.

PROCEDURE BEFORE THE COMMISSION

The matter was before the Commission for an arbitration hearing on 9 May 2025. Ms Compton of counsel, instructed by Mr Morson from Turner Freeman solicitors, appeared for the applicant, who was present. The respondent was represented by Mr Hart of counsel, instructed by Mr Simmons from Gair Legal solicitors and an officer from its insurer.
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 endeavoured to bring the parties to the dispute to an acceptable settlement and am satisfied that the parties have had sufficient opportunity to explore settlement. They have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The issues identified by the parties that require determination are whether:
(a) any pelvic organ prolapse condition experienced by the applicant is consequential to her work-related knee injury and, if so
(b) it is reasonably necessary for the applicant to receive proposed surgery.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply with attachments from the respondent (Reply), and
(c)    supplementary applicant statement dated 7 May 2025.
There was no application to call oral evidence or cross-examine any witness at the hearing.

CONSIDERATION, FINDINGS AND REASONS

Does the applicant suffer consequential pelvic organ prolapse?

The applicant claims to suffer a pelvic organ prolapse condition that arose from her accepted knee injury. The basis of the claim is that a post-operative exercise regime prescribed for knee rehabilitation was the cause of her pelvic prolapse. The applicant bears the onus to prove her condition is consequential to an accepted injury. The relevant test for causation is that found in Kooragang Cement Pty Ltd v Bates (Kooragang),[1] which requires the Commission to apply a commonsense approach to determine causation.
[1] Kooragang Cement Pty Ltd v Bates (1994) 10 NSW CCR 796.
It is unnecessary for an applicant to satisfy a requirement of having suffered injury for the purposes of s 4 of the Workers Compensation Act 1987 (the Act) for a consequential condition to be found: Kumar v Royal Comfort Bedding Pty Ltd[2] (Kumar). This means the applicant is not required to satisfy the definition of “injury” as set out in s 4 of the Act, only that the symptoms and effects of pelvic organ prolapse have resulted from her knee injury: Moon v Conmah Pty Limited[3] (Moon).
[2] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSW WCCPD 8.
[3] Moon v Conmah Pty Limited [2009] NSWWCCPD 134.
It is also unnecessary for specific pathology to be identified when finding a consequential condition exists,[4] however there must be an unbroken chain of causation from the accepted injury to the development of the consequential condition. Although the applicant is not required to prove injury, it would seem clear, and undisputed, she has pelvic organ prolapse.
[4] Kumar at [55].
According to Roche DP in Drca v KAB Seating Systems Pty Ltd[5] (Drca), for an applicant to succeed in a claim for compensation, the Commission needs to be satisfied that on the balance of probabilities of the facts that establish the claim. In relation to the applicant’s claim, this means she needs to establish that it was more probable than not that her pelvic organ prolapse condition resulted from the accepted knee injury. I am required to have a “feeling of actual persuasion” she has met this onus: Nguyen v Cosmopolitan Homes.[6]
[5] Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10.
[6] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The applicant seeks to establish a causal connection based upon the exercise program which she claims required engagement of core muscles that in turn resulted in the pelvic organ prolapse. It was pleaded in the ARD the applicant received personal injury and that:[7]
“In the recovery/rehabilitation process following bilateral knee replacements the applicant worker was performing core based exercises as directed by her doctors and allied health providers and sustained a pelvic prolapse.”
[7] ARD Form 2, p 6.
The applicant consulted her usual treating general practitioner (GP), Dr Aslam Shinwari, in relation to medical concerns generally and received specialist treatment from Dr Sherif Rizkallah, orthopaedic surgeon, in relation to knee injury. In her statement of 21 January 2025, the applicant recounted:[8]
“12. …Dr Rizkallah recommended and performed a bilateral knee replacement on 10 October 2023. After the surgery, I was advised to undergo 12 to 16 weeks of physiotherapy.
13.    On 12 March 2024, I consulted Dr Shinwari again due to a uterine prolapse that developed following the intense physiotherapy and physical activity I had undergone following my bilateral knee replacement
14.    I consulted Dr Rizkallah on 21 March 2024 who recommended that I continue with physiotherapy and hydrotherapy treatment.
15.    On 8 April 2024, Dr Shinwari wrote a referral for me to see Dr Dahiya for a gynaecological review, as Dr Dahiya was the only doctor in the Penrith/Blacktown area who would see me under workers' compensation. I was approved by the insurer to see Dr Dahiya on 17 April 2024, and I saw her on 18 July 2024.
16.    Dr Naman Dahiya confirmed the diagnosis of a prolapse involving my uterus, cervix, and posterior compartment. Dr Dahiya noted that due to the severity of the prolapse, I would require surgery, including a total laparoscopic/robotic hysterectomy, bilateral salpingectomy, and uterosacral ligament suspension, along with posterior repair, perineorrhaphy, and cystoscopy. This surgery request was sent to the insurer on 30 July 2024.
17.    The insurer had trouble finding a gynaecologist and independent medical examiner, so their decision in response to the surgery request was delayed.
18.    In response to the surgery request, the insurer requested a file review from Dr Norman Chan. I was unwilling to undertake a physical examination with a male doctor and they were unable to find a female doctor. Therefore, Dr Chan completed his report without examining me and was clear that he was unaware of the severity of my prolapse, given that he did not have all the information regarding Dr Dahiya's finding on examination and the exercises that I undertook. He stated that, in his opinion, the prolapse was not caused by the physiotherapy exercises I had undertaken.”
[8] ARD p 3.
In a 29 July 2024 email to staff from the office of Dr Naman Dahiya, the applicant’s treating gynaecological specialist, the applicant stated she:[9]
“…had no problems with [her] prolapse cervix until [she] had [her] Bilateral Total Knee Replacement and constantly straining [her] core muscles to get up and down and doing exercises has contributed to the prolapse”.
[9] ARD p 22.
In Dr Dahiya’s 29 July 2024 letter addressed “To whom it may concern”, it was stated the applicant “has not previously had any issues with prolapse” and that:[10]
“When she commenced exercises for her bilateral total knee replacement and was constantly engaging pelvic floor muscles during the exercises, the prolapse was exacerbated which is now persistent.”
[10] ARD p 18.
It is difficult to reconcile that commentary of Dr Dahiya with the content of the specialist’s earlier letter to Dr Shinwari dated 18 July 2024[11] that the applicant “has had a prolapse on and off for a while” and that “she noticed significant worsening of the prolapse”. It was also reported that the applicant “noticed this initially a long time ago, but during recent exercises, noticed a bulge coming out of the vagina”.
[11] ARD p 20.
A clinical note made by Dr Shinwari on 8 July 2022, which was before the applicant injured her knee and received the subsequent surgery, recorded:[12]
“exacerbation of prolaps [sic] symptoms
now constantly out
had it during last pregnancy at that time a ring inserted and removed before delivery
o/e [‘on examination’]
bulging lump on the opening of vulva”
[12] ARD p 120.
Dr Shinwari’s “Management” of the issue was recorded in the note as “referal [sic] to gynee clinic and pelvic floor exercise physio given” and the “Actions” were “Letter to Gynee clinic printed”, letters for pelvic floor exercises, a referral for physiotherapy and a prescription for Nexium tablets.
The applicant relies on a supplementary statement dated 7 May 2025 in which she claims to have no recollection of the discussion with Dr Shinwari about prolapse at that time. Her evidence is that she “recently” contacted the GP about the 8 July 2022 clinical note and was advised “that it was because [she] was suffering reflux at the time”.[13] While there is reference in the clinical note to the reason for visit being “Gatro-oesophageal reflux disease” and her being prescribed Nexium (used for the treatment of stomach ulcers and reflux disease), the issue of prolapse was clearly discussed and it is apparent the condition presented by the applicant was examined by Dr Shinwari at the time. The applicant’s statement evidence is that the GP “advised the coughing and dry wrenching [sic] from the reflux put a strain on core muscles and pressure on the cervix”. Whatever the cause, the clinical note leaves little doubt the applicant experienced pelvic organ prolapse in July 2022, well before her knee surgery.
[13] At [6].

Dr Naman Dahiya

The applicant’s treating specialist, Dr Naman Dahiya, gynaecologist and advanced laparoscopic and robotic surgeon, prepared a letter reporting to her GP on 18 July 2024 following the initial referral consultation.[14] That letter contains reference to the applicant’s reporting of her condition. There is no opinion or explanation as to the likely cause of the pelvic organ prolapse. There is also a “To whom it may concern” letter of Dr Dahiya dated 29 July 2024 that recites the applicant’s version of the background to her condition without opinion as to cause. That letter appears to merely reflect the content of the applicant’s email to Dr Dahiya’s office on the same date as to background.[15]
[14] ARD p 20.
[15] ARD p 22.
There is an undated document that appears to be a response from Dr Dahiya to a request for information submitted to him by the respondent’s insurer.[16] The response document is undated, and the queries have not been included, however some relevant information was apparently provided by Dr Dahiya on that occasion. Given the document cannot be confirmed and is not in expert evidence format, it is given the appropriate weight. On balance it appears to be from Dr Dahiya and, assuming it is, he stated that “ongoing physical exertion and exercise is a contributing factor for prolapse”[17] and identified that “age is a risk factor” as is “having one [or] more deliveries vaginally” and the applicant “had 3 normal deliveries”.[18] These observations are consistent with those of Dr Norman Chan.
[16] Reply pp 34-35.
[17] Reply p 34 at [2].
[18] Reply p 34 at [4].

Dr Norman Chan

The respondent qualified Dr Norman Chan, obstetrician and gynaecologist and laparoscopic surgeon, to prepare a report based upon a file review of the applicant’s claim. Dr Chan provided reports dated 26 September 2024[19] and 11 November 2024,[20] which the applicant sought to impugn on the basis she was not examined by that specialist.[21] Comment is required about the circumstances of those reports.
[19] Reply p 21.
[20] Reply p 26.
[21] ARD p 3 at [18].
Dr Chan was requested to prepare a file review report because the applicant refused to attend an examination conducted by a male specialist.[22] In circumstances where the respondent was unable to locate a female medical expert to examine and report on the applicant, it resorted to requesting the report in the form a file review from Dr Chan.
[22] ARD p 3 at [18].
The reason the applicant refused examination by a male specialist is unclear where her treating gynaecologist, Dr Dahiya, is male (although reference to him as female in the applicant’s 21 January 2025 statement[23] is intriguing). It is evident that doctor consulted the applicant for the first time on 18 July 2024[24] and there was no historical patient relationship before then. It is further noted the applicant’s usual treating GP, Dr Shinwari, is also male and there is evidence of her being examined by him on 8 July 2022.[25]
[23] ARD p 3 at [15].
[24] ARD p 20.
[25] ARD p 120.
It is not reasonable for the applicant to complain about Dr Chan preparing a report “without examining me” and that specialist being “unaware of the severity of my prolapse” where he “did not have all the information”[26] in circumstances where she refused examination.
[26] ARD pp 3-4 at [18].
In his 26 September 2024 report Dr Chan identifies that “exercise may cause [pelvic organ prolapse] as a result of raised intrabdominal pressure, such as heavy lifting and doing squats”.[27] He noted the applicant “has risk factors for [pelvic organ prolapse] such as three previous normal vaginal deliveries and her age” but he was at that time unable to “determine whether her work-related physiotherapy caused her [pelvic organ prolapse]”.
[27] Reply p 23.
Further information was subsequently provided to Dr Chan, including the nature of the knee rehabilitation exercises prescribed for the applicant,[28] and he produced the 11 November 2024 supplementary report. Dr Chan was unambiguous in his view that exercises were not the cause to the applicant’s prolapse,[29] given:
“According to the diagram provided by the physiotherapist, the exercises prescribed were not strenuous and did not require raising significant intra-abdominal pressure. The prescribed exercises did not involve [the applicant] lifting weights.
According to the Continence Foundation of Australia (Aquacise your pelvic floor – May 2019), water based exercises provides buoyancy that ‘floats’ the internal organs. This decreases the gravitational forces acting through the pelvis and therefore decreases the pressure on the pelvic floor with exercise, compared with similar exercises performed on land. The Foundation concluded that water based exercises are suitable for women with pelvic organ prolapse.”
[28] It is uncontroversial that those appear at ARD pp 134-137.
[29] Reply p 26 at [2].
In response to a view expressed by the applicant’s treating physiotherapist that the prescribed exercises would not increase intra-abdominal pressure, Dr Chan disagreed and stated:[30]
“Some exercises would increase intra-abdominal pressure slightly, but the prescribed exercises were so mild, the increase in intra-abdominal pressure would be insignificant, and would not cause pelvic organ prolapse”.
[30] Reply p 27 at [3].

Ms Brigita Ancans

Ms Brigita Ancans was the physiotherapist who provided post-operative treatment, and prepared the exercise regime, for the applicant. In her letter to the respondent’s insurer dated 18 October 2024, Ms Ancans made clear that regime did not include pelvic floor exercises[31] and she considered the recommended exercises did not increase intra-abdominal pressure.[32] The physiotherapist opined that the exercises did not cause the applicant’s pelvic organ prolapse on the basis:[33]
“The exercises prescribed are unlikely to have contributed to a pelvic floor prolapse. These exercises focused on improving lower limb strength following [the applicant’s] knee surgeries and did not target her pelvic floor.”
[31] Reply p 29 at [4] and p30 at [5].
[32] Reply p 30 at [6].
[33] Reply p 30 at [7].

Findings on injury

In her 21 January 2025 statement, the applicant outlined the nature of the exercise regime and provided her view about how those caused her prolapse condition.[34] While the factual information provided by the applicant therein is noted, her assessment of causation is unqualified opinion and speculation. That aspect of her evidence is given no weight.
[34] ARD p 4 at [21]-[23].
The clinical record evidence, as well as background commentary of Dr Dahiya in his 29 July 2024, confirms the applicant had pelvic organ prolapse before her knee injury and later surgery. It was the subject of consultation with Dr Shinwari on 8 July 2022 and at that time was noted to have also been an issue at the time of the applicant’s “last pregnancy”.
Although the ARD appears to have originally been based upon a novel condition resulting from the post-surgery exercise program, the applicant’s case at hearing was argued as being an “aggravation of an underlying condition” that was “made worse by the exercises”. The revision brought the claim into line with the historical clinical evidence, and it was open to the applicant to do so. Notwithstanding that change, it is the nature of the exercise program that is central to the applicant’s case.
The qualified expert opinion in evidence is that of Dr Chan. Although not a formal report, the evidence from the treating physiotherapist, Ms Ancans, is also persuasive. They were either directly aware of, or provided details of, the exercise regime prescribed for the applicant. The evidence does not establish that program included pelvic floor work.
Dr Chan’s opinion is unequivocal, the exercises prescribed for the applicant were not sufficient to cause pelvic organ prolapse. Ms Ancans is of the same view. Despite the applicant’s objection to the nature of Dr Chan’s “file review” reporting, his assessment of, and opinion on, the nature of the exercises did not require examination of the applicant in relation to likely causation as contended by the applicant and she did not provide any contra qualified opinion.
The applicant had a history of pelvic floor prolapse presenting at various times. As indicated by Dr Chan, and it also seems Dr Dahiya, common causes for the condition are related to ageing (the applicant was 51 years of age at the time) and vaginal deliveries, of which the applicant had three. She was at risk of the condition regardless of whether the prescribed exercise was undertaken. The condition had been present a few months before her knee injury on 25 January 2023. The balance of the evidence does not establish the exercise program was the cause of the episode that the applicant noticed around 12 March 2024, particularly given the risk factors present and her repeat history of experiencing the condition.

In applying the commonsense test, it is necessary for supporting evidence to be present that establishes the causal chain. Something more than unqualified opinion from the applicant on medical and physiological matters is required, which is in essence all that is present in her case as pleaded and argued on the evidence. The qualified evidence relied upon by the respondent is accepted as cogent and persuasive. The issue I must determine is whether the applicant has a pelvic organ prolapse condition that has resulted as a consequence of her accepted knee injury and the related surgical treatment. On the balance of the evidence, primarily that of Dr Chan, I cannot be satisfied that it was.

SUMMARY

The evidence does not establish the applicant’s pelvic organ prolapse arose as a consequence of work-caused injury by way of the prescribed rehabilitative exercise program. Accordingly, there is an award for the respondent on the disputed claim.

[2025] NSWPIC 273

17 June 2025