Daniel v Flick Anticimex Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Daniel v Flick Anticimex Pty Ltd [2025] NSWPIC 279
APPLICANT:	Daniel
RESPONDENT:	Anticimex Pty Ltd
MEMBER:	Mithcell Strachan
DATE OF DECISION:	18 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; consequential condition; Kumar v Royal Comfort Bedding Pty Ltd, and Kooragang Cement Pty Ltd v Bates applied; competing expert evidence; Charles Sturt University v Manning, and Ly v Jitt Offset Pty Ltd applied; Held – applicant has not discharged her onus in establishing a consequential gastrointestinal condition in the form of an acute bowel obstruction requiring emergency hospital admission and surgery.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent with respect to consequential condition to the gastrointestinal system. 2. The claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor for determination of the permanent impairment arising from the following: Date of injury: 19 September 2017. Body systems referred: cervical spine, left upper extremity (shoulder), and scarring (TEMSKI) Method of assessment: whole person impairment 3. The documents to be referred to the Medical Assessor to assist with their assessment are to include the following: (a) this Certificate of Determination; (b) Application to Resolve a Dispute and attachments, and (c) Reply and attachments.

STATEMENT OF REASONS

BACKGROUND

The applicant sustained an injury to her cervical spine and left shoulder in the course of her employment with respondent on 19 September 2017. There is no dispute with respect to these injuries.
In treating the accepted injuries the applicant was prescribed pain medication including Panadeine Forte and Naprosyn.
On 5 March 2020 the applicant was admitted to Fairfield Hospital with an acute bowel obstruction. Due to the bowel obstruction and associated complications a colostomy was performed.
The issue for determination by the Personal Injury Commission (Commission) is whether the acute bowel obstruction resulted from the ingestion of pain medication prescribed with respect to the accepted cervical spine and left shoulder injuries.
For the reasons that follow, I am not satisfied that the acute bowel obstruction results from the accepted cervical spine and left shoulder injuries.

ISSUES FOR DETERMINATION

The applicant brings a claim for lump sum compensation for injuries sustained to the left shoulder, cervical spine and consequential gastrointestinal condition and scarring.
There is no dispute with respect to injury to the left shoulder, cervical spine and scarring to the left shoulder.
The parties agree that the following issue remains in dispute:
(a) whether the applicant sustained a consequential gastrointestinal condition resulting from injury to her left shoulder and cervical spine on
19 September 2017.
The parties agree that scarring with respect to the abdomen would only be accessible if the applicant succeeds in establishing the consequential gastrointestinal condition.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference and arbitration hearing on 20 May 2025 in Sydney. Mr Saleh of counsel appeared for the applicant instructed by Mr Nemme and
Ms Wehbe. Mr Parker of counsel appeared for the respondent instructed by Mr Su. Mr Ye of the respondent’s insurer was also in attendance. The applicant participated by telephone.
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 and attached documents;
(b)    Reply and attachments, and
(c)    Application to Lodge Additional Documents dated 15 May 2025 filed by the respondent.
The additional documents relied on by the respondent comprised only of a further report of Dr Sethi. This had been provided to the applicant on about 24 April 2025 and the applicant had had time to obtain any response needed and no objection to the additional documents was taken by the applicant. The report is of relevance to the issues in dispute. It is appropriate that the additional documents filed on 15 May 2025 be introduced into the proceedings.

FINDINGS AND REASONS

Did the applicant sustain a consequential gastrointestinal condition

The applicant carries on onus of establishing the consequential condition. Where the applicant is asserting a consequential condition, it is not necessary for the applicant to establish that she suffered an injury in accordance with s 4 of the 1987 Act (see Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]). What the applicant must establish, is that the consequential condition “results from” the accepted psychological injury; this analysis requires a commonsense evaluation of the causal chain (see Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 per Kirby P (as he was then) at [463]-[464]).
The applicant alleges that it was the taking of Panadeine Forte that led to constipation and the subsequent bowel obstruction.
The applicant’s submission was essentially that there is a temporal connection between the injury, long period ingesting Panadeine Forte and the onset of gastrointestinal symptoms and therefore on a common sense basis I would find that they are connected.
The respondent’s submission was that the acute bowel obstruction was a result of significant internal pelvic adhesions described as a frozen pelvis which was a result of earlier unrelated medication conditions and surgery to the pelvis that the applicant had undergone in about 2001.
It is not in dispute that from 2017 the applicant was taking Panadeine Forte to treat pain in her shoulder and cervical spine which resulted from the accepted injury.
The applicant relies on a qualified opinion of Dr Greenberg, general and gastrointestinal surgeon, dated 6 January 2023.
Dr Greenburg recorded a history that following her left shoulder injury the applicant took Panadeine Forte (opioid) on average two tablets three times per day and Naprosyn (NSAID) “on a regular basis”. The applicant advised Dr Greenburg that leading up to her presentation at Fairfield Hospital her bowel function had changed and she had become very constipated. Dr Greenburg detailed the reported change in the applicant’s bowel difficulties.
He considered that the applicant’s “long-term use of Panadeine Forte (more likely than not) exacerbated her colonic obstruction rather than being the primary cause”. He noted that opioids in particular are associated with gastrointestinal motility disorder which is consistent with the applicant’s history and then recorded the applicant’s “medication may have exacerbated her symptoms and in turn led to her presentation to Fairfield Hospital”.
In a subsequent report dated 6 January 2023 sets out the following explanation for his opinion with respect to causation:
“●      The applicant was prescribed long term medication for pain relief following the injury to her left shoulder.
·        Panadeine Forte is recognised to be associated with an intestinal motility disorder.
·        [the treating surgeon] confirmed [the applicant] had pelvic adhesions from previous abdominal surgery.
·        [the applicant] was also shown to have a frozen pelvis and reconstruction was not possible.
·        [the applicant] has significant comorbidities and any further surgery places her at a significant risk.
I have taken the view that [the applicant’s] need for long term medication for pain relief was not the underlying cause of her acute large bowel obstruction but may have exacerbated the onset of her presentation to Fairfield Hospital.”
That is, it is a possibility that pain medication causing intestinal motility disorder may have exacerbated the onset of her presentation.
In a further report dated 21 January 2025 Dr Greenburg provides a literature review with respect to a condition known as sigmoid volvulus. The introduction appears to have been prompted by questions from the applicant’s solicitor. As I understand it, the literature review notes that sigmoid volvulus occurs when an air-filled loop of the sigmoid colon twists about its mesentery (a supporting structure that suspends the intestines) with the twist causing an obstruction. Dr Greenburg noted that chronic constipation is a recognised risk factor for sigmoid volvulus.
Dr Greenburg noted that pelvic adhesions were present prior to the applicant’s presentation with sigmoid volvulus and that the operative notes do not relate the sigmoid volvulus and pelvic adhesions. As I have discussed below, the operation notes make no findings of sigmoid volvulus. Dr Greenburg comments that “the pelvic adhesions and the sigmoid volvulus were (more likely than not) unrelated events” and that the applicant would have needed the sigmoid colectomy procedure regardless.
Dr Greenburg expressed the opinion that it is difficult to give a definitive explanation for the applicant’s acute sigmoid volvulus, the applicant’s constipation was more likely than not the precipitating cause of the sigmoid volvulus and that the sigmoid volvulus and the ingestion of Panadeine Forte were (more likely than not) related.
The respondent relies on the qualified opinions of Dr Sethi, gastroenterologist and hepatologist. In a report of 10 October 2023 Dr Sethi expresses the opinion that the applicant developed the bowel obstruction independently and that her employment, work injury and analgesic medications did not play a causative role. He notes:
(a)    the original injury did not involve the gastrointestinal tract;
(b)    the applicant has a pelvic abscess that was resected in 2001, long predating her work injury;
(c)    during the operation she was found to have pelvic adhesions which he opines caused the bowel obstruction;
(d)    Dr Ooi, the treating surgeon, considered she had a frozen pelvis, and
(e)    he explains that a frozen pelvis is a condition where pelvic organs are distorted and tether to each other as a result of an adhesive process and that it is “highly likely and extremely probably” that this is responsible for the applicant’s bowel obstruction.
Dr Sethi also considered the applicant’s prior smoking and alcohol intake contributed to her bowel obstruction. He noted that “there is no reasonably anatomical or physiological mechanism whereby [the applicant’s] employment, work injury or the analgesic medications that she was prescribed could have caused her to develop either an abdominal abscess or bowel obstruction”.
There is a clear contest on the expert evidence with respect to the cause of the acute bowel obstruction.
With respect to how the Commission deals with such a contest, the respondent referred to the decision of Charles Sturt University v Manning [2016] NSWWCCPD 10 at [52]-[53] where Deputy President Roche said:
“The extent of an Arbitrator’s duty to engage with the evidence depends on the circumstances of each case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728). However, where there is disputed expert evidence, the “parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other” (Archibald v Byron Shire Council [2003] NSWCA 292; 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed), quoted with approval by McColl JA in Hume v Walton [2005] NSWCA 148 at [69]).
The Arbitrator was required to engage with the conflicting medical evidence (Sant v Tsoutsas [2009] NSWCA 3; Sourlos v Luv A Coffee Lismore Pty Ltd [2007] NSWCA 203 at [25] and Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127). As Bingham LJ explained in Eckersley v Binnie (1988) 18 Con LR 1 at 77–78, ‘a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons’ (quoted with approval by Beazley JA (as her Honour then was) in Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293 at [133]).”
Further, in Ly v Jitt Offset Pty Ltd [2021] NSWPICPD 2 at [92]-[93] Deputy President Wood said:
“Wiki establishes that in order to reject a coherent and reasoned opinion expressed by a suitably qualified expert, it should be the subject of a coherent and reasoned rebuttal, unless it can be discounted for other cogent reasons.
It is important to note that the Member did not reject the opinion of Dr Giblin because of the evidence of Dr Breit. Adopting the ratio in Wiki, there was no suggestion that Dr Giblin was attempting to mislead. In those circumstances, and in the absence of an accepted rebuttal by a medical expert, the Member was required to give cogent reasons as to why he rejected Dr Giblin’s opinion expressed in his 2018 report.”
Mindful of what was said in Manning and Ly I have carefully considered the opinions of
Drs Greenburg and Sethi within the context of the available contemporaneous records and treating reports I reject the opinion of Dr Greenburg for the following reasons.
In his report of 6 January 2023, Dr Greenburg’s opinion was that the long-term need for pain medication was not the underlying cause but may have exacerbated the onset of the acute bowel obstruction.
However, in his report of 21 January 2025 following a literature review this opinion has changed and Dr Greenburg considers a condition described as sigmoid volvulus (which I have described at paragraph 24 above). He notes that chronic constipation is a risk factor for sigmoid volvulus. His opinion in this subsequent report is that the sigmoid volvulus (resulting from chronic constipation from medication use) was unrelated to the pelvic adhesions.
The difficultly I have with accepting Dr Greenburg’s opinion is twofold.
Firstly, he has expressed two separate opinions with respect to causation. Initially that the use of pain medication was not the cause but may have exacerbated the onset of the acute bowel obstruction and then later that the applicant suffered from a sigmoid volvulus. He provides no explanation for this change in his opinion.
Secondly, the later opinion is predicated, at a factual level, on the presence of the sigmoid volvulus but without explaining the providence of this new diagnosis.
A CT scan undertaken on 5 March 2020 when the applicant attended Fairfield Hospital but prior to surgery that the imaging was “consistent with a volvulus” and findings “suggestive of sigmoid volvulus”.
A diagnosis of sigmoid volvulus was also mentioned in an ICU consultant progress note by Dr Rachel Choit dated 5 March 2020. Dr Choit provided remote advice essentially with respect to the availability of an ICU unit to provide continuous ventilation support following surgery and it is in this context that the clinical note records a bowel obstruction secondary to sigmoid volvulus. This note however is clearly from prior to the surgery with a recommendation being made for the applicant to be transferred to Liverpool or Blacktown Hospital due to the inability of Fairfield Hospital to provide ongoing ventilatory support post the surgical procedure or to at least make sure a bed would be available if the surgery was to be undertaken at Fairfield Hospital.
However, the operation report dated 5 March 2020 records the following operative findings:
“Flexible sigmoidoscopy could not be advanced further than 20 cm.
Grossly distended large bowel (transverse, descending and sigmoid colon) with partial thickness serosal tears in the transverse and descending colon.
Palpable large rectal mass.
Small bowel, omental and colonic adhesions.
Small bowel dilated.
Large left ovarian cyst which was decompressed – thick white material aspirated from cyst. Fluid sent for histopathology/fluid m/c/s.
No obvious metastasis to liver, peritoneal or palpable lymph nodes.”
It is evident that while there may have been an initial diagnosis prior to surgery of sigmoid volvulus, once the applicant’s internal abdominal and pelvic organs could be visualised during surgery, it is not recorded.
Additionally, the applicant underwent further CT scans including a scan on 17 March 2020 which noted that the applicant underwent a “hartmanns procedure for obstructing pelvic mass on 5/3/20 (pelvic mass still remains)”. Dr Greenburg has not explained how, if the condition was a sigmoid volvulus, it remained following the surgery.
I also have difficulty with the opinion of Dr Sethi relied on by the respondent. This difficulty is also twofold.
Primarily the history recorded by Dr Sethi was that the applicant was not constipated prior to the bowel obstruction. This is clearly incorrect having regard not only to the statement evidence of the applicant but also a report of Dr Low, the applicant’s treating shoulder surgeon from three days prior to the bowel obstruction on 2 March 2020 where he recorded that the applicant was taking Panadeine Forte which was causing constipation.
However, Dr Sethi has had regard to the operation findings of pelvic adhesions causing her to develop the bowel obstruction. He has also explained the relationship between the frozen pelvis diagnosed by Dr Ooi and the development of the bowel obstruction. This explanation is coherent and consistent with the operation findings and the opinion of Dr Ooi as the treating surgeon.
Dr Sethi was given the opportunity to address the issue of constipation in his further report of 24 April 2025 and states that it was not a causative factor.
Dr Sethi’s supplementary report however has been infected by the same issue as Dr Greenburg’s most recent report with the introduction, in the questions posed to him, of a sigmoid volvulus. As I have set out above, sigmoid volvulus was not an operative finding nor a diagnosis made by Dr Ooi. Dr Greenburg has now explained how he reached such a diagnosis and I have not accepted it at a factual level.
Having regard to the reliance in his initial report on a history of no constipation and the infection of the subsequent report by the diagnosis by Dr Greenburg of sigmoid volvulus, while I do not reject the opinion of Dr Sethi entirely, I can only put limited weight on it, in so far as it is consistent with the opinion of Dr Ooi the treating surgeon.
Dr Kevin Ooi, treating colorectal and general surgeon has provided a number of reports to the applicant’s general practitioner and has spent considerable time explaining the applicant’s condition to her. In his 1 May 2020 report he noted that the applicant’s presentation and management was complex. She had been admitted to Fairfield Hospital with an acute large bowel obstruction and underwent a laparotomy by Dr Govind Krishna.
Dr Ooi reports that that Dr Krishna had found, during the procedure, a frozen pelvis and an ovarian cystic lesion.
Dr Ooi first consulted the applicant the day following Dr Krishna’s surgery when she was transferred from Fairfield to Bankstown Hospital to be admitted to intensive care. Further investigations were undertaken and Dr Ooi expressed the view that the issue was most likely related to her laparotomy 19 years earlier. He repeats this opinion in a further report of
27 May 2020. This opinion is consistent with the findings during the operation and I accept it.
The applicant’s medical condition and its origins is a complex issue. However, in summary:
(a)    I am satisfied that the applicant is suffering from pelvic adhesions described by Dr Ooi as a frozen pelvis.
(b)    I am unable to accept the opinion of Dr Greenburg as:
(i)in its final form it is predicated on the basis that the applicant developed a sigmoid volvulus (being an air-filled loop of the colon twisted about the supporting structures);
(ii)this finding was not made by the surgical team who was able to visualise the applicant’s internal structures, and
(iii)the obstructive mass remained on CT scan on 17 March 2020.
(c)    While I have placed limited weight on the opinions expressed by Dr Sethi I am assisted by his explanation of frozen pelvis and how the adhesive process can lead to bowel obstructions.
(d)    I accept the opinion of Dr Ooi (supported by Dr Sethi) that it was the adhesions from the frozen pelvis which caused the bowel obstruction.

I accept the evidence of the applicant that prior to her admission to Fairfield Hospital there had been a change in the behaviour of her bowel and she was experiencing constipation however having found the bowel obstruction resulting from the pelvic adhesions I am satisfied that it is more likely than not that it was the development of these adhesions and the frozen pelvis that led to the changed bowel behaviour and constipation.
As I have not accepted the opinion of Dr Greenburg and having had regard to the other evidence before the Commission, I am not satisfied, applying a commonsense test of causation, that the applicant has discharged her onus in establishing a consequential gastrointestinal condition in the form of an acute bowel obstruction requiring emergency hospital admission and surgery. On a commonsense basis, the frozen pelvis condition and associated abdominal adhesions provide the most rational explanation for her condition and there is no suggestion these relate to the injury to her cervical and lumbar spine.

SUMMARY

For the reasons above I make the orders in the attached Certificate of Determination.

[2025] NSWPIC 279

18 June 2025