Hay v Shellharbour Private Hospital Limited - [2021] NSWPIC 104

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hay v Shellharbour Private Hospital Limited [2021] NSWPIC 104
APPLICANT:	Angela Hay
RESPONDENT:	Shellharbour Private Hospital Limited
MEMBER:	Mr Marshal Douglas
DATE OF DECISION:	29 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Applicant sought compensation for the cost of proposed surgery to treat pelvic organ prolapse, which applicant contended was an injury within meaning of section 4(a), due to a heavy lift she did on a particular day; or alternatively within meaning of section 4(b)(ii) due to repetitive lifting she had done over the whole period of her employment; respondent disputed applicant suffered an injury, and if section 4(a) injury disputed that her employment was a substantial contributing factor to injury; Held- applicant suffered injury simpliciter and her employment was a substantial contributing factor to the injury.
DETERMINATIONS MADE:	1. The applicant suffered an injury on 14 May 2020 in the course of her employment and to which her employment was a substantial contributing factor. 2. It is reasonably necessary as a result of the applicant’s injury that the applicant has treatment in the form of robotics assisted laparoscopic hysterectomy + BS, uterosacral fixation, anterior and posterior repair and cystoscopy. 3. By consent, the applicant’s claim for weekly payments of compensation is discontinued.

STATEMENT OF REASONS

BACKGROUND

Angela Hay has filed with the Commission an Application to Resolve a Dispute (ARD) seeking determination by the Commission of a claim she has made against her former employer, Shellharbour Private Hospital Pty Ltd (the respondent) for compensation for the cost of surgery that obstetrician and gynaecologist Dr Dharnesh Kothari has recommended she have to treat a utero-vaginal prolapse from which Ms Hay suffers.
There is no dispute that the surgery Dr Kothari has proposed is necessary to treat Ms Hay’s prolapse. Ms Hay contends her prolapse worsened, in the sense of there being a distinct physiological change of it, due to a lift she performed on 14 May 2020 as part of her employment, and this worsening of her prolapse is an injury within the meaning of section 4(a) of the Workers Compensation Act1987 (the 1987 Act). Alternatively, she contends repetitive and heavy lifting she undertook as part of her employment with the respondent over the course of more than two years was the main contributing factor to an acceleration of her prolapse. If the worsening of her prolapse is not an injury within the meaning of s 4(a), she contends it is an injury within the meaning of s 4(b)(ii).
The respondent disputes the lift Ms Hay undertook on 14 May 2020 resulted in an injury within the meaning of s 4(a) of the 1987 Act, or if it did, it disputes that her employment was a substantial contributing factor to that injury. Further, with respect to the alternative basis on which Ms Hay brings her claim, being that she suffered an injury within the meaning of
s 4(b)(ii), the respondent disputes that her employment was the main contributing factor to the acceleration of Ms Hay’s prolapse.

ISSUES FOR DETERMINATION

The parties agree that the only issues in dispute requiring determination by the Commission are:

(a) whether Ms Hay suffered an injury within the meaning of s 4(a) of the 1987 Act;
(b) if so, whether her employment was a substantial contributing factor to her injury;
(c) in the alternative, whether Ms Hay’s employment with the respondent was the main contributing factor to the acceleration of an utero-vaginal prolapse from which Ms Hay suffers.

I note that Ms Hay also initially sought determination by the Commission of a claim she had made for weekly payments of compensation, but she discontinued that claim at the commencement of the arbitration.

PROCEDURE BEFORE THE COMMISSION

A conciliation of Ms Hay’s disputed claim was conducted on 9 April 2021, in which I used my best endeavours to assist the parties to settle the matter. Ms Hay was represented by
Ms Nicole Compton of counsel instructed by Ms Baiba Thomas. Ms Laura Jones from the respondent’s insurer participated, and she was represented by Ms Lyn Goodman of counsel instructed by Ms Emily Angwin. I am satisfied the parties had sufficient opportunity to explore settlement, but were unable to reach an agreed resolution of the dispute. The matter accordingly proceeded to an arbitration.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:

(a) The ARD and attached documents;
(b) The Reply and attached documents.

No oral evidence was given.

FINDINGS AND REASONS

The relevant facts

Ms Hay was born on 27 October 1962. She has had three pregnancies delivering her first child in 1980 by caesarean section, her second child in 1982 by normal vaginal delivery and her third child by caesarean section in 1986.[1] Ms Hay went through menopause at sometime between 2014[2] and 2017.[3]
[1] ARD page 119 and page 61
[2] ARD page 61 and Reply page 23
[3] ARD page 112
Ms Hay also has had a history of obesity and underwent laparoscopy sleeve gastrectomy on 14 December 2019. Prior to her surgery, her weight was measured at 105 kilograms by consultant surgeon Dr James Chau.[4] Five weeks after her surgery a dietician measured her weight at 93 kilograms.[5] Ms Hay said in a statement she signed on 16 June 2020 that her weight was then 74 kilograms. On 10 December 2020, her weight was measured at 65 kilograms by Dr John Mutton, an obstetrician and gynaecologist whom Ms Hay’s solicitors qualified to provide an expert opinion. On 11 September 2020, Dr John Schmidt, an obstetrician and gynaecologist whom the respondent’s insurer qualified to provide an expert opinion, measured Ms Hay’s weight at 68 kilograms.
[4] ARD page 181
[5] ARD page 198
Ms Hay commenced employment with the respondent in 2017. Initially she worked as casual but her employment became full time in 2018. She was employed as a manager of the respondent’s central sterilising department. Her work involved her lifting trays of instruments and implants, which in her statement of 16 June 2020 she described as heavy. In a subsequent statement she signed on 21 February 2021 she described the trays as weighing between 1 kilogram and 11 kilograms. She said in her earliest statement that she had to remove these trays from boxes and often had to squat to do so. She indicated in this statement that the frequency with which she would have to lift the trays depended upon the number of surgeries being performed at the hospital at which she worked for the respondent. In a history she provided to orthopaedic surgeon Dr Mutton, she said she lifted the trays repetitively on a daily basis.
She was not challenged on this evidence.
In her statement of 16 June 2020 Ms Hay said that “a couple of months ago” she consulted a female doctor at a medical centre “because something did not feel right”. She said that she “did not feel correct when I went to the toilet and things like that”.[6] Other evidence establishes that the female doctor whom she consulted was Dr Kate McCullough of the Better Care Medical Centre. The record Dr McCullough made in her clinical notes relating to the consultation to which Ms Hay refers, included the following:
[6] ARD page 3 at [42]
“?prolapse
3-4 week history or intermittent feeling of insides coming out
worse with heavy lifting
no pain
had UTI - resolved 3wk ago
episodes of urinary incontinence occurring recently with no warning
1 x vaginal delivery with forceps for face presentation, 2 x LSCS
kids now 40, 38, 34
no major tears after vaginal delivery
Examination:
pelvic exam done with consent
bulging of ?vaginal wall posteriorly and downwards bulging of cervix/uterus with coughing
IMP: likely uterovaginal prolapse”[7]
[7] ARD page 69
Dr McCullough wrote a “specialist referral” to Dr Pip Gale, who it seems is a gynaecologist. Ms Hay never made an appointment with and consequently never consulted Dr Gale.
In her statement of 16 June 2020, Ms Hay recounted that on 14 May 2020 she assisted a wardsman to lift two metal boxes. She said in this statement that she did not know the weight of the boxes, but said that it was very large and nearly as tall as her. She also said that she is 5 feet 1 inch tall. In her statement of 21 February 2021 she said that the box she lifted was 60 kilograms. She told Dr Mutton it was 70 kilograms. She was also not challenged on this evidence and whilst there is a degree of uncertainty regarding the exact combined weight of the two boxes she assisted the wardsman to lift on 14 May 2020, given that in her earliest statement she was unable to specify an exact weight, I am satisfied that it involved her lifting a weight far heavier than the weight of the trays she normally lifted.
In her statement of 16 June 2020 she described having to bend down to pick up these boxes and struggling to do so. She said that “as soon as I done that I have pain right across the bottom of my lower back, like a big muscle ache”.[8] She described when she got home after her shift she went to the toilet and realised “that is was hanging out”, and that “when I went to wipe myself I could feel it bulging out”.[9]
[8] ARD page 4 at [52]
[9] ARD page 4 at [56]
Ms Hay had a telephone consultation with Dr Azim Al Khemesy from the Better Care Medical Centre on 19 May 2020. Given that this consultation was by telephone, Dr Al Khemesy obviously did not examine Ms Hay. He did however provide her a referral to Dr Kothari whom Ms Hay consulted on either 21 May 2020[10] or possibly 20 May 2020[11]. The notes
Dr Kothari made in his clinical records regarding that consultation included the following:
[10] ARD page 114
[11] ARD page 72
“Reason for Presentation:
57 yr old, CSD manager at SPH
Sudden worsening of prolapse
Aware of prolapse a while, lifted something heavy at work
and had complete uterus outside vagina
Can reduce prolapse -but comes back every evening
No urinary obstruction bowel symptoms - incomplete emptying of
bladder
No stress incontinence
Clinical Assessment:
CSt taken
Uterine prolapse- grade 3 at rest
Large cystocele
Mild recocele”[12]
[12] ARD page 114
On 26 May 2020 Dr Kothari wrote to Dr Al Khemesy advising Dr Al Khemesy that Ms Hay had been aware of a prolapse for a while but after lifting something heavy at work felt a complete uterine prolapse outside her vagina that she was able to reduce. Dr Kothari advised that on examination he found that Ms Hay had a grade 3 uterine prolapse at rest with a large cystocele and a moderate rectocele.
Ms Hay again consulted Dr Kothari on 1 July 2020 to discuss treatment options, at which time Dr Kothari recommended the surgery for which Ms Hay seeks compensation from the respondent.[13]

Opinion Evidence

[13] See ARD page 108 and 106

Dr Kothari

As mentioned, Ms Hay consulted Dr Kothari for management and treatment of her utero-vaginal prolapse. On 13 September 2020 Dr Kothari wrote to Ms Hay’s solicitors in response to a letter they sent him on 25 August 2020 (which letter is not in evidence). Dr Kothari advised Ms Hay’s solicitors that his diagnosis for Ms Hay was stage 3 utero-vaginal prolapse. He said that “severe degree of prolapse such as stage 3 and 4 are likely to get worse over time unless intervened”.[14] He also said:
“Heavy lifting has shown to increase risk of prolapse, like increased risk of many other hernia in body. I believe lifting heavy at work may have caused sudden worsening of prolapse”.[15]
[14] ARD page 72
[15] ARD page 72
He advised Ms Hay’s solicitors that Ms Hay had told him that she had been aware of some degree of vaginal prolapse for a while but “felt sudden worsening of uterus prolapse outside of her vagina after she lifted something heavy at work”.[16]
[16] ARD page 72

Dr John Mutton

Dr Mutton examined Ms Hay on 3 December 2020, at which time he obtained a history consistent with the factual matters set out above. Relevantly, the history included Ms Hay having to lift repetitively on a daily basis trays of instruments weighing up to 10 kilograms and “sometimes heavier”. He noted that she had to bend to the ground to lift those trays. He also noted that on 14 May 2020 Ms Hay assisted a colleague to lift a weight of approximately 70 kilograms and immediately upon doing so experienced back pain and later when she was at home “noticed a bulge in her vagina which she had not noticed before”.
Dr Mutton, in his report of 10 December 2020, advised that he found from his examination of Ms Hay that she had a “second degree utero-vaginal prolapse, a large cystocele and moderate rectocele”[17]. He noted that if an examination was done under anaesthesia, it might reveal the prolapse to be third degree.
[17] ARD page 62
Dr Mutton advised that a utero-vaginal prolapse is due to the avulsion of the pelvic floor muscles and ligaments from their attachments. He said that a prolapse will continue to get worse without surgical correction. He said that many factors contribute to pelvic organ prolapse including parity (which I note means the number of times a woman gives birth to a foetus), advancing age, obesity, hysterectomy, race and ethnicity, family history, collagen abnormality and elevated intra-abdominal pressure consequent upon chronic constipation or occupations that involve heavy lifting. He expressed his view that Ms Hay’s employment with the respondent “over two years was a substantial contributing factor, among others, to the worsening of her pelvic organ prolapse”[18]. He said that Ms Hay should avoid heavy lifting and any other activity that markedly increased intra-abdominal pressure, which would make her pelvic organ prolapse deteriorate further.
[18] ARD page 62
Dr Mutton expressed the view that Ms Hay’s pelvic organ prolapse was “pre-existing”, by which he meant the prolapse had occurred before she commenced her employment with the respondent. He said that Ms Hay’s prolapse was the result of child bearing, extreme obesity, aging and menopause. He said that “Ms Hay’s repetitive heavy lifting at work with the associated repetitive increases in intra abdominal pressure has been an aggravating factor for her pre-existing organ prolapse”[19]. He said that the repetitive heavy lifting Ms Hay had done in her employment had likely resulted in her pelvic organ prolapse becoming apparent earlier than what otherwise would have been the case had she not been undertaking repetitive heavy lifting. He was asked, “would you please indicate the apportionment due to any previous injury, pre-existing condition or abnormality” to which he responded as follows:
“As explained above there are multi-factorial causes for Ms Hay`s pelvic organ prolapse. Child birth and obesity with resultant prolonged increase in intra-abdominal pressure, along with advancing age and the menopause have contributed for approximately 80% to her pelvic organ prolapse and 20% has been contributed by her workplace injury. As stated above her workplace injury was, very likely, significant in the progression of her pre-existing pelvic organ prolapse.”[20]
[19] ARD page 62
[20] ARD page 63
Dr Mutton did not explicitly explain what he meant by “workplace injury”, but when his report is read as a whole, it seems to me that he was, by using that term, referring to the repetitive heavy lifting that Ms Hay done over the total period of time in her employment, rather than the specific and heavier lift that she did on 14 May 2020, and the contribution to Ms Hay’s pelvic organ prolapse from the long term lifting Ms Hay had done.
I observe that the letter of instruction from Ms Hay’s solicitors to Dr Mutton is not in evidence. Dr Mutton did however, set out in his report 10 questions that Ms Hay’s solicitors had asked him to answer. Within one of those questions there was a reference to “her injury”. In another there was reference to “our client’s injuries”. In another there was reference to “her work injury”. There is nothing in the materials before me that indicates what Ms Hay’s solicitors had informed Dr Mutton or had asked him to assume with respect to the occurrence of Ms Hay’s “injury” or “injuries” or the nature of it. Further, it does not seem that Dr Mutton was ever asked by Ms Hay’s solicitors whether the specific lift Ms Hay did on 14 May 2020, in which she assisted a colleague to lift a weight of up to 70 kilograms, resulted in a pathological or physiological change with respect to Ms Hay’s pelvic organ prolapse. On the face of it, that is somewhat strange omission given that the primary case Ms Hay advances with respect to her claim for compensation is that she suffered a physiological change with respect her pelvic organ prolapse from the specific lift she did on 14 May 2020. Dr Mutton did not express an opinion on whether the specific lift that Ms Hay performed on 14 May 2020 resulted in a distinct pathological or physiological change or disturbance with respect to Ms Hay’s pelvic organs, and it is not surprising he did not do so given that he was seemingly not asked to do so.

Dr John Schmidt

Dr Schmidt saw Ms Hay on 27 August 2020 and wrote a report to the insurer on 11 September 2020.
He obtained a history with respect to Ms Hay’s pregnancies, menopause and weight consistent with factual matters set out above. With respect to the work Ms Hay performed
[21] Reply page 24
[22] Reply page 24
[23] Reply page 26
[24] Reply at page 25
Dr Schmidt noted that Ms Hay was required to “unpack, check, wash and wrap instruments that were in trays weighing between 0.3 and 11 kilograms”[21]. He assumed that Ms Hay lifted boxes greater than 10 kilograms in the workplace repetitively. He noted that Ms Hay “suffered a workplace injury on 14/05/2020” when she lifted “one heavy box of instruments”[22]. He noted that one box had been placed on another box and she lifted both boxes simultaneously. He indicated the combined weight of the boxes in this single lift was between 11 and 12 kilograms.[23] He said that Ms Hay noted back pain at the time of this lift and that two days later she experienced a pressure feeling in the perineum. He noted that Ms Hay’s symptoms were such that thereafter she has engaged in less frequent sexual activity.[24]
He reported that his clinical examination of Ms Hay revealed a third degree large cystocele presenting beyond the intriotus (which I note is the vaginal opening), a small atrophic uterus which he described as being in a second degree prolapse, and a minimal rectocele. He noted that the cause of a prolapse is multifactorial and includes smoking, genetic propensity, child birth, heavy lifting in the workplace, obesity and menopause. He said that child birth is the biggest factor causing prolapse. He said that the levator muscles are avulsed from the pelvic bony wall and that the lack of support for the pelvic floor following avulsion of the pelvic floor muscles causes progressive prolapse with symptomology presenting later in life when other multifactorial causes present. With respect to Ms Hay’s prolapse, he considered that her deliveries through caesarean section not have avulsed her pelvic floor ligaments and would not have contributed to her prolapse, but he considered that her second birth which involved a prolonged labour “would have contributed to the biggest percentage of pelvic floor decent in later life”.
Dr Schmidt noted that Ms Hay was at one stage 107 kilograms but had reduced her weight to 68 kilograms. He said a “constant increase in intraabdominal pressure caused by obesity has been responsible for pelvic floor descent (prolapse)”[25].
[25] Reply page 25
Dr Schmidt also noted that as a consequence of menopause oestrogens are withdrawn which progressively worsen prolapse. He observed that Ms Hay was six years post menopausal.
Dr Schmidt also noted that lifting more than 10 kilograms in a workplace continually can contribute to prolapse. He considered that Ms Hay’s repetitive lifting of more than 10 kilogram boxes would have “contributed a percentage of prolapse”. He said that the single lifting episode on 14 May 2020 would not have been responsible for pelvic floor descent “without other multi factorial causes contributing”[26].
[26] Reply page 25

He said that he “deemed that lifting of boxes greater than 10 kilograms regularly at Shellharbour Hospital over two years is responsible for 15% of pelvic floor descent (prolapse)”[27]. He considered child birth, Ms Hay’s obesity prior to her gastric sleeve procedure and her being post menopausal were responsible for 85% of her prolapse. He considered that the single lifting episode in which Ms Hay lifted 11-12 kilograms was not responsible for “the prolapse” she now suffers.
[27] Reply page 26

Information pamphlets

Ms Hay has put into evidence three information pamphlets relating to pelvic organ prolapse that Dr Kothari provided her solicitors. One is titled “Pelvic Organ Prolapse in Women: Epidemiology, Risk Factors, Clinical Manifestations, and Management”[28] the authors of which are Rebecca G Rogers MD and Tola Fashokun MD FACOG and which published on the website. Another is titled “Pelvic Organ Prolapse”[29] issued by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. The last is titled “Surgical Treatment of Pelvic Organ Prolapse” which is copyrighted to Mi-tec Medical Publishing.
[28] ARD page 74
[29] ARD page 96
Rogers and Fashokun describe a pelvic organ prolapse as being the herniation of the pelvic organs beyond the vaginal walls. A cystocele is a hernia of the interior vaginal wall often associated with descent of the bladder. A rectocele is a hernia of the posterior vaginal segment often associated with the descent of the rectum. They note that pelvic organs in a woman are supported atomically by an interaction between the muscles of the pelvic floor and connective tissues attached to the bony pelvis.
Rogers and Fashokun note that risk factors for pelvic organ prolapse include parity, advancing age and obesity. They further note that chronic constipation appears to be a risk factor, likely as a consequence of repetitive increases in intraabdominal pressure. They note that data conflicts with respect to whether the risk of prolapse is increased in women in occupations that involve heavy lifting.
Rogers and Fashokun note that “prolapse is traditionally regarded as progressive disease, with mild prolapse inexorably leading to more advanced disease”.[30]
[30] ARD page 83
Rogers and Fashokun note the most common symptom of prolapse is the sensation of pelvic pressure or heaviness or protrusion of tissue from the vagina and that patients frequently describe “feeling a bulge” or a feeling of something “falling out of the vagina”.
The pamphlet published by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists reveals that the organs within a woman’s pelvis, consisting of the uterus, vagina, bladder and bowel, are normally held in place by a supportive hammock of muscles, ligaments and tissues that lay across the pelvis. It details that if the supporting tissue is weakened it no longer holds the organs in the correct position causing the organs to prolapse. It identifies that the main cause of pelvic organ prolapse “is injury to the ligaments and muscles, which make up the natural supporting tissues, which cradles the pelvic organs”.[31] It identifies that such an injury is likely to result from pregnancy and child birth, menopause and age, constipation, being overweight, smoking and/or a chronic cough and inherited risk.
[31] ARD page 96
The pamphlet Mi-tec published notes that a pelvic organ prolapse is a type of hernia that occurs when the muscles, ligaments and fascia that hold the pelvic organs in the correct position weaken or tear, allowing one or more of the pelvic organs to drop, or herniate into the vagina. It identifies that the main cause of prolapse is pregnancy and child birth and that prolapse may occur during or shortly after the pregnancy and may take many years to develop. It notes that obesity, weight gain, chronic cough, chronic constipation, heavy lifting and smoking may be risk factors as may be inherited weakness of pelvic floor connective tissues.
It notes that the degree to which the uterus has dropped is divided into four grades, with grade 1 being where the uterus has moved into the lower half of the vagina; grade 2 where the uterus has moved lower into the vagina and the cervix and is near the opening of the vagina; grade 3 where the vagina, uterus and cervix are protruding partially outside the vaginal opening; and grade 4 where the vagina, uterus and cervix have completely fallen outside of the vaginal opening.

Findings

A pelvic organ prolapse is when one or more of the pelvic organs, which comprise the vagina, uterus, cervix, rectum and bladder, descends beyond the vaginal walls. This occurs once there has been an avulsion of the muscles, ligaments and fascia that support the pelvic organs.
The evidence establishes that a pelvic organ prolapse is progressive, that is that once it has occurred it will, in accordance with its normal pathological course, worsen over time. The organs may progressively descend to and beyond the vaginal opening. That is the evidence of Drs Mutton and Schmidt. The information pamphlets also indicate that.
Dr Mutton’s opinion was that Ms Hay had a prolapse of her pelvic organs prior to commencing her employment with the respondent. I am satisfied by his evidence that was the case. No other evidence contradicts this. The onset of Ms Hay’s prolapse was most likely due to one or more of her prior pregnancies. That is likely the time at which her muscles, ligaments and fascia avulsed, starting the prolapse of her pelvic organs. Her menopause and her obese body mass probably contributed to its progression thereafter.
I am satisfied that the pelvic organ prolapse Ms Hay had at the time she commenced her employment with the respondent was asymptomatic at that time. She first experienced symptoms from her prolapse at the start of February 2020. The symptoms she then experienced were those that Dr Kate McCullough recorded on 27 February 2021, being a feeling that her “insides” were coming out and episodes of urinary incontinence.
Dr McCullough’s examination revealed a possible bulging of Ms Hay’s vaginal wall posteriorly and downwards. Dr McCullough made a tentative diagnosis of uterine vaginal prolapse. I am satisfied, based on the record Dr McCullough made with respect to Ms Hay’s consultation on 27 February 2020, and having regard to the content of Mi-tec brochure, that in all likelihood the degree to which Ms Hay’s pelvic organs had descended into her vagina was no greater than grade 1 or grade 2. That is, it was unlikely at that stage that her organs had reached her vaginal opening.
On 14 May 2020 Ms Hay assisted her work colleague to lift two very lengthy and heavy boxes. She and her colleague placed one box on top of the other and lifted the two boxes together. As previously said, I cannot be satisfied from the evidence what the exact combined weight of those boxes was, but I am satisfied that it was far greater than the weight of the trays Ms Hay was accustomed to lifting, which each weighed up to 11 kilograms. Saying that another way, the weight borne by Ms Hay when she performed that lift with her colleague was far greater than 11 kilograms.
Dr Schmidt, when he detailed a history in his report of Ms Hay having lifted between 11 to 12 kilograms in that single incident, has made an assumption about the combined weight of the boxes that does not accord with the evidence. Possibly he inferred what the combined weight was from Ms Hay having told him that her job involved her lifting trays of instruments weighing between 0.3 and 11 kilograms and that the lift she did on 14 May 2020 involved one heavy box of instruments being placed upon another box. Irrespective of the process by which he made that assumption, the assumption he made was wrong, in that the lift did not involve Ms Hay lifting boxes of instruments, or trays of instruments, but rather assisting a work colleague to lift two “metal boxes” of a length that approximated Ms Hay’s height. The boxes that Ms Hay lifted on that occasion were not the usual boxes or trays that she lifted. As said, I find the weight borne by Ms Hay in the lift from to the combined weight of the boxes was far greater than the weight of a tray of instruments.
The lift Ms Hay performed on the day also involved her having to bend down so as to be able to pick up the boxes from the ground.
I am also satisfied that immediately following this lift, Ms Hay experienced symptoms from her prolapse that she had not previously experienced being back pain and a bulging of her pelvic organs beyond her vaginal opening that she needed to reduce when she arrived home that evening. Her symptoms thereafter have had the consequence of her being able to engage less frequently in sexual activity.
I am satisfied from what Drs Kothari, Mutton and Schmidt found from their respective examinations of Ms Hay, which were all done after the incident on 14 May 2020, that
Ms Hay’s pelvic organs had descended further into her vagina than what Dr McCullough had found from her examination of the appellant three months prior to the incident on 14 May 2020.
Dr Kothari examination on 21 May 2020 is the examination most proximate in time to the incident. He found a grade 3 uterine prolapse. The Mi-tec brochure reveals that a grade 3 prolapse is where the pelvic organ protrudes partially beyond the vaginal opening. I am satisfied that Ms Hay’s uterus protruded her vaginal opening at the time of Dr Kothari’s examination. That is consistent with Ms Hay’s experience of having to reduce her prolapse following the incident.
Dr Schmidt found when he examined Ms Hay on 27 August 2020 a third degree cystocele and a second degree atopic uterus with a small rectocele. The third degree cystocele also indicates that at the time of his examination some of Ms Hay’s organs were protruding her vaginal opening.
Dr Mutton when he examined Ms Hay on 3 December 2020 found she had a second degree utero vaginal prolapse with a large cystocele and moderate rectocele. In other words at the time he examined Ms Hay her organs were near the opening of her vagina. He left open the possibility that an examination under anaesthetic may reveal a grade 3 prolapse, being one that protruded her vaginal opening. His findings nevertheless indicate that since the time
Dr McCullough had examined Ms Hay, Ms Hay’s organs had descended more.
All that is consistent with Ms Hay’s evidence that she felt her organs outside of her vagina for the first time after the lifting incident on 14 May 2020.
Insofar as Ms Hay’s pelvic organs had descended by 14 May 2020 to or out of the opening of her vagina, there had been a physiological or pathological change with respect to her pelvic organ prolapse from what was the case when she consulted Dr McCullough on 27 February 2020.
A pathological or physiological change or disturbance a worker suffers for the worse as a result of a specific work incident is an injury within the meaning of that term as defined in
[32] Ky v Blue Leaf Food Group Pty Ltd [2016] NSWWCC PD55 at [50] – [60] Military Rehabilitation & Compensation Commission v May [2016] HCA17 per Gageler J at [75]
s 4(a) of the 1987 Act.[32] The critical issue here, in terms of determining whether Ms Hay has suffered an injury within the meaning of s 4(a) is whether what occurred on 14 May 2020 when she assisted her colleague to lift two objects together caused a change or disturbance of her pre-existing pelvic organ prolapse for the worse, or whether the degree of the prolapse of her pelvic organs beyond her vaginal opening that followed that incident, and which manifested in back pain, was a consequence of the natural progression of the pathology of the prolapse.
I note again at this juncture that there is nothing within the evidence to indicate Ms Hay’s lawyers asked Dr Mutton to provide his opinion on whether the lift Ms Hay performed on 14 May 2020 resulted in a physiological change with respect to Ms Hay’s pelvic organ prolapse. Certainly there is no evidence from these two expert witnesses about this point. Given
Ms Hay’s primary case is that she suffered an injury simpliciter from this specific incident, one would have thought that her lawyers would have sought evidence in the form of an opinion from her qualified expert on this issue. Be that as it may, my task is to make findings on the evidence that has been presented.
I am satisfied that the heavy lift Ms Hay did on 14 May 2020 placed pressure Ms Hay’s intraabdominal muscles. All doctors indicate that pressure on intraabdominal muscles is a risk factor for pelvic organ prolapse. Given that it is a risk factor for the occurrence of pelvic organ prolapse, I infer that pressure on intraabdominal muscles is also a factor that may effect a pathological or physiological change to the condition once the condition has been initiated. In other words, it is a factor that increases the risk of the pathology, once initiated, worsening.
Dr Mutton expressed the view that heavy lifting over the course of time worsens a prolapse. He was not asked to and did not express an opinion on whether one lift could do that.
Dr Kothari however, expressed his belief that Ms Hay’s “lifting heavy” may have caused the sudden worsening of Ms Hay’s prolapse. Dr Kothari expressed this view in the context of the history he took from Ms Hay that she felt a sudden worsening of her prolapse after she lifted something heavy at work. To my mind, Dr Kothari’s reference to “lifting heavy” when expressing his view regarding the cause of the “sudden” worsening of Ms Hay’s prolapse is a reference to the specific lift Ms Hay did on 14 May 2020.
Dr Schmidt expressed the view that the single lifting incident on 14 May 2020 would not have been responsible for Ms Hay’s pelvic floor descent without the presence of other multifactorial causes. He also expressed the view that that event “is not responsible for the prolapse” from which Ms Hay now suffers. The view that he was therein expressing, it seems to me, relates to what the contribution was of the single lift Ms Hay performed on 14 May 2020 to the overall state of Ms Hay’s pelvic organ prolapse at the time she presented to Dr Schmidt for examination. He was not therein expressing a view with respect to whether the single event on 14 May 2020 could have effected a change in the degree of her prolapse. That is, his opinion does not relate to whether there was likely to have been any physiological or pathological change in Ms Hay’s prolapse for the worse, in the form of a further and discrete descent of Ms Hay’s pelvic organs within her vagina, from what the situation was immediately before the lift.
Further, and in any event, if I am wrong with respect to my analysis of the opinion Dr Schmidt was expressing, he did not obtain a correct history with respect to the weight that Ms Hay lifted on 14 May 2020 and with respect to the symptoms she experienced after the lift, such that I could place no weight on his opinion. The assumptions he made to provide his opinion, which were based on the history he obtained, were that Ms Hay lifted 12 kilograms and that two days afterwards she felt a pressure feeling in her perineum. Those assumptions are incorrect. The weight borne by Ms Hay was far greater than 12 kilograms, and after her shift on the day she performed the lift, she felt her organs outside of her vagina.
The critical details that emerge from the evidence are that placing pressure on the intraabdominal muscles increases the risk of prolapse and that Ms Hay experienced symptoms following the lifting incident on 14 May 2020 that she had not previously experienced, namely back pain and her organs extending to and beyond her vaginal opening. A heavy lift places pressure on the intraabdominal muscles and may effect a physiological or pathological change in a pelvic organ prolapse already in existence. It is implicit from the view Dr Kothari expressed that “lifting heavy” may have caused the sudden worsening of Ms Hay’s prolapse, that a single lift can effect that change. The fact that on 14 May 2020 Ms Hay lifted a weight far greater than what she had previously lifted and the fact that she felt symptoms that she had not previously experienced before 14 May 2020, and the fact that when examined thereafter it was discovered that her pelvic organs had descended further into her vagina than what was the case when she had previously been examined on 27 February 2020, persuade me that more likely than not the lift she did on 14 May 2020 did result in a pathological or physiological change for the worse for her in that it resulted in a further descent of her pelvic organs such that they protruded her vaginal opening causing her back pain. Hence, I am satisfied and find that she has suffered an injury within the meaning of
s 4(a) of the 1987 Act.
As mentioned, the respondent also contended that even if Ms Hay did suffer an injury within the meaning of s 4(a), then her employment was not a substantial contributing factor to that injury. I do not agree with that. Insofar as the injury she suffered on 14 May 2020 was a discrete physiological disturbance represented by a discrete and further descent of her pelvic organs into her vaginal, then the lift that she performed on that day was real and of substance in terms of its contribution to the further prolapse of her organs.[33] Relevant to that finding is that the work that Ms Hay did on the day was assisting a colleague to lift a far heavier weight than what she had previously been lifting in her employment and which would have placed more pressure on the intraabdominal wall than what was previously the case with respect to the lifting she performed in her work. The evidence does not establish that the symptoms that she experienced on that day, being back pain and her pelvic organs outside of her vagina, would have happened without her doing that lift. The evidence indicates that her body mass had greatly reduced by the 14 May 2020, and although her weight may still have been a factor in terms of placing pressure on the intraabdominal muscles, it was not such that it rendered the very heavy lift she did on that day of no real consequence in terms of the pressure it placed upon her intraabdominal muscles.
[33] See Badawi v Nexon Asia Pacific Pty Ltd t/as Command Australia Pty Ltd [2009] NSWCA 234 at [82] and [107]
Given my finding that Ms Hay suffered an injury within the meaning of s 4(a) of the 1987 Act and to which her employment was a substantial contributing factor, it is not necessary that I consider the alternative case that Ms Hay presented, which is that she suffered an injury in the meaning of s 4(b)(ii) of the 1987 Act, However, given the parties made submissions with respect to the issue, I shall deal very briefly with it.
I would not have been satisfied that Ms Hay suffered an injury within the meaning of s 4(b)(ii) of the 1987 Act. That is because the evidence indicates that Ms Hay was obese for at least the first two years of her employment and, following bariatric surgery. Whilst her weight progressively reduced in the five months before 14 May 2020, she nevertheless remained overweight. The evidence is clear that being obese and overweight is a factor that places pressure on the intraabdominal muscles and is a factor that will contribute to the causation of pelvic organ prolapse and also, once the disease has initiated, contributes to the worsening of it.

The evidence presented would not have enabled me to evaluate the extent to which the lifting that Ms Hay did over the course of her employment, including the lift of 14 May 2020 (assuming I did not find that event resulted in an injury simpliciter) contributed to the progression or the worsening of her pelvic organ prolapse from the time she commenced her employment, relative to the contribution her weight had on that progression. Indeed, the evidence that there is on that point indicates that her weight and her lifting over the course of time were both significant factors in the development of the disease. The evidence does not enable a finding to be made that one was more significant than the other such that it could be found that the lifting she did over the period of her employment was the main factor to the acceleration or worsening of her pelvic organ prolapse.

Marshal Douglas
MEMBER

29 April 2021