Hendrix v Accuro Homecare Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hendrix v Accuro Homecare Pty Ltd [2022] NSWPIC 315
APPLICANT:	Lynda Hendrix
RESPONDENT:	Accuro Homecare Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	22 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Consequential urological condition as a result of lumbar spine surgery; evaluation of expert evidence; Hancock v East Coast Timber Products, Westpac Banking Corporation v Chauhan, Kooragang Cement Ltd v Bates, South Western Sydney Area Health Service v Edmonds, Nguyen v Cosmopolitan Homes; Held– award for the respondent with respect to the consequential condition.
DETERMINATIONS MADE:	1. Award for the respondent with respect to the consequential condition in the urinary and reproductive system. 2. Award for the respondent on the claim for s 60 expenses in the Application to Resolve a Dispute. 3. I remit the matter for referral to a Medical Assessor to assess the applicant’s permanent impairment: Date of injury: 29 April 2010 Body parts: Lumbar spine Left lower extremity (foot) Right lower extremity (foot) 4. The documents to be sent to the Medical Assessor are: a. Application to Resolve a Dispute, and b. Reply.

STATEMENT OF REASONS

BACKGROUND

Lynda Hendrix was employed by Accuro Homecare Pty Limited (Accuro) as a field officer, providing care for elderly clients in their homes and taking them to appointments. On 29 April 2010 she suffered an injury to her low back when she slipped on wet tiles at a client’s home.
Ms Hendrix has undergone considerable treatment, including three operations on her back and three operations for plantar fasciitis, which was a result of her altered gait following surgery. Ms Hendrix says that she began to experience urinary incontinence.
Ms Hendrix claims permanent impairment compensation in respect of her lumbar spine, left and right lower extremities and urinary and reproductive system. Accuro disputes that the condition causing urinary incontinence is a consequence of her back injury. That is the only issue for determination in these proceedings.

PROCEDURE

Ms Hendrix’s treating urogynaecologist is Dr Manning. At a telephone conference on 9 February 2022 I granted leave to Accuro to issue a direction for production to Dr Manning.
The claim was listed for conciliation conference and arbitration hearing on 5 April 2022 when Mr Barter of counsel appeared for Ms Hendrix and Mr Doak of counsel appeared for Accuro. Dr Manning’s documents had been produced so recently that the parties required access to them before making submissions. I therefore made an order for written submissions. Submissions were provided in accordance with the orders but the late documents were not provided until requested for the purpose of this decision. Accuro did not raise any dispute about the provision of those documents and I have therefore taken them into account.
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 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

The following documents were in evidence and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply, and
(c)    Application to Admit Late Documents dated 16 June 2022.
Ms Hendrix had been seeing Dr Coughlan, neurosurgeon, for an unrelated neck injury and continued to consult him after the injury in April 2010. On 28 March 2011 he recommended CT guided perineural sleeve injections which, he said on 18 April 2011, provided a temporary significant improvement. He proposed non-operative management because of multi-level disc degeneration.
In September 2012, Ms Hendrix underwent a two level anterior interbody fusion and L3/4 and L4/5. In 2013 she began to experience problems with her feet. In 2014 Dr Coughlan extended the fusion to L2/3. In 2016 Dr Coughlan recommended a trial of a spinal cord stimulator.
Ms Hendrix developed pain in her feet which is accepted to be the result of an altered gait. She saw Dr Hunter for the first time in 2013.
Ms Hendrix said in her statement that she began to experience urinary incontinence after the surgery in 2014 when she said that she began to leak urine for no particular reason. Ms Hendrix did not think it was associated with her back pain until Dr Coughlan asked if she had any incontinence issues.
The first surgery on Ms Hendrix’s feet was carried out in 2015.
The first reference to urinary issues is in Dr Macauley’s notes for 10 September 2015 when he recorded that Ms Hendrix “still reports paraesthetic sensation in buttocks and legs, progressive incontinence”. He referred Ms Hendrix to Dr Manning but there is no evidence to show that she saw Dr Manning then.
On 14 September 2015 Dr Coughlan noted in his report to Dr Macauley that Ms Hendrix had some intercurrent bladder problems and that he had explained the importance of monitoring them.
On 30 March 2016 Ms Hendrix saw Mr McMinimee at Dr Macauley’s rooms. Other reports confirm that Mr McMinimee is a physiotherapist. He recorded:
“Seeing Dr Van Therie - Regarding bladder function due to multiple surgeries ...
Seeing Dr Couglan review 7th April 2016 for discussion regarding radiculopathy and pain stimulator as siggested by Dr Russo.” [sic]
On 26 May 2016, Dr Macauley recorded “application for continence aids”.
On 21 July 2016 Dr Coughlan wrote to Accuro’s insurer and said that Ms Hendrix had some intermittent leg pain but that her biggest issue was bladder dysfunction and he had recommended that she see Dr Ruthven, a local urologist. He said:
“I am under the impression that some of her bladder symptoms are neurogenic given her long and convoluted calls with her spine. The spine issues are directly related to a workplace injuries and therefore the bladder concerns are secondary to that.”
Following that consultation, Dr Macauley recorded on 25 July 2016 that Ms Hendrix was “considering spinal cord stimulator for bladder issues”. Dr Macauley referred Ms Hendrix to Dr Ruthven.
Dr Ruthven reported on 14 September 2016 and said:
“Thank you for asking me to see Mrs Hendrix, who, for many years now has had urge and stress incontinence requiring innumerable number of pads, day and night.… She was told she had a small bladder and I suspect if that was the case she would have been going to the toilet quite regularly during the with urge and urge incontinence [sic]. Therefore, she simply may have had a normal bladder capacity but had a lack of antidiuretic hormone at night.
To sort out all the causes of her current lack of dysfunction she needs to see Tom Jarvis at Prince of Wales to see whether there is a neuropathic component to her bladder dysfunction at this time.”
Ms Hendrix said in her statement that she did not find Dr Ruthven helpful because he “thought [her urinary condition] was too difficult to manage”.
On 13 October 2016 Mr McMinimee noted that he had returned a call to Ms Hendrix and “[r]ecent lost strength in legs/bladder incontinence issues”.
Dr Ruthven’s report dated 13 October 2016 to the insurer appears in the Reply. He said that Ms Hendrix’s bladder issues were still being investigated and he awaited the urodynamic study. He said that bladder innervation is transmitted by the S2, 3, 4 segments. He said:
“Any spinal-cord injury either spontaneous or iatrogenic or post surgery could have an influence on bladder function. At this point there is no neurological evidence that has occurred.
My impression is that her current bladder problems are independent of her recent surgeries.”
On 1 November 2016 Dr Coughlan inserted an epidural spinal stimulator as a trial and he said on 23 March 2017 that it provided improvement in Ms Hendrix’s back pain and leg pain. He said “she is currently working through some issues with her urinary incontinence and she did see Dr Ruthven and discuss the option of a sling procedure”.
Dr Jarvis undertook a urodynamic study on 3 December 2016, noting in his history that Ms Hendrix’s symptoms had been present for two years and were worse following anterior spinal surgery. He set out the results of the urodynamic study and said that there was:
“evidence of type 2 urodynamic stress incontinence with descent – especially in the supine position when the bladder neck is open. From this examination there is evidence of stable detrusor function (although the patient was on anticholergenics. Urgency may be precipitated by proximal urethral fluid due to stress incontinence. The recommended intervention for this lady is pelvic floor exercises with a specialised pelvic floor physiotherapist concentrating on abdominal contractions. Given her complex medical history, surgical management … will confer more risks. Urethral bulking agent or a fascial bladder neck sling maybe the best option for a patient on long-term steroids and significant bladder neck opening.”
Dr Jarvis’ report had been provided to a number of the doctors who examined Ms Hendrix and it was provided as part of the Application to Admit Late Documents.
Ms Hendrix said in her statement that she decided that she would not see Dr Jarvis again because she did not think she would get the best treatment from him.
There is no reference to Dr Jarvis’ report in Dr Macauley’s own notes other than his comment that Ms Hendrix was “considering later bladder surgery” on 27 March 2017. Mr McMiminee’s note for 24 April 2017 said:
“S/E Seen Dr Coughlan last year re bladder/bowel issues.
Review with Dr Van Therie firstly in sydney; Dr Ruthven at Gosford; Sent for testing at Gosford Private Hosptial;
Then referred to Dr Tom Jarvis; Prince of Wales; Regarding bowel & bladder - Testing at Prince of Wales.
Dr Ruthven has recommended surgery for continence issues. Using own tissue.”
On 18 June 2017 Dr Coughlan said that Ms Hendrix continued to have very significant back pain and was considering going ahead with the stimulator but his review of the images suggested significant ongoing issues at L5/S1 so that he recommended an anterior lumbar interbody fusion at L5/S1 augmented via posterior pedicle screws. The fusion was discussed in a number of reports and proposed for early 2018.
Ms Hendrix said that in the second half of 2017 she decided to see a female specialist and was referred by her general practitioner, Dr Macauley, to Dr Manning from a consultation on 27 June 2017.
Dr Manning reported on 10 August 2017 and said that Ms Hendrix “presents with urinary incontinence since 2012 but the problem worsened recently”. She said “There is a history of childhood nocturnal enuresis, until the age of 12 and this is strongly associated with overactive bladder symptoms as an adult”.
Dr Manning said:
“It was suggested that she have a sling procedure at Prince of Wales when urodynamics were performed and they did demonstrate stress leakage standing. However, bladders are complicated and on occasions the urodynamic studies do not demonstrate what is happening. She has a lot of symptoms of urgency. She was enuretic as a child. She has got lower limb neurologic symptoms from her back surgery. She has loss of sensation around the perineal area and parts of her legs. It is quite possible there is a component of neurogenic bladder although she empties well. The leakage problem has only been very recent and it worsened recently so I would suggest that she should pursue options for urge in the first instance. Slings can aggravate urge and make the leakage worse ultimately .She has tried Vesicare without any benefit; I've suggested that she try Mirabegron, Enablex, and Oxytrol. This will take about 3 weeks and after this the option would be to have a trial of a sacral nerve stimulator or to have a Botox injection and either would be an appropriate next step… If at the end of the day none of these options are effective then a sling would be the way to go but it would be safest I think, this way, to first exclude urge when there is a reasonable possibility that this is present.”
Ms Hendrix said in her statement that Dr Manning told her that the symptoms were likely related to her lower back and recommended medication. She said Dr Manning offered Botox injections into her cervix but she declined that treatment.
On 14 December 2017 Dr Coghlan noted that Ms Hendrix had been seeing Mr McMinimee. He said that a further lumbar fusion was planned for February 2018 and said:
“she has also had intermittent bladder and bowel dysfunction and I have explained to her that if she gets worsening of this she might have to go to an emergency department and consider surgery sooner rather than later. But at the moment her bladder and bowel function is stable with intermittent dysfunction and this has been the case for a long time.”
Surgery in the form of a 360° fusion at L5/S1 was carried out by Dr Coughlan and Dr Lennox on 5 and 6 March 2018.
Ms Hendrix saw Dr Manning again on 16 October 2018. Dr Manning said that Ms Hendrix had severe urinary incontinence which had worsened and “she has had several back surgeries which suggestion neurologic component to the urge, she has had loss of sensation in the saddle distribution last time I saw her and in her feet”. Dr Manning noted that medication had not been of benefit and that Ms Hendrix felt her bladder was worse. She had also changed noticed a change in her bowel function. Dr Manning set out the results of the tests that she undertook and said “there is a neurogenic bladder. She empties well”. Dr Manning provided a contiform device for severe stress leakage noting that Ms Hendrix leaked with coughing and had a chronic cough as a result of asthma. She said that if the device worked a sling would be a good idea and if it did not help, recommended Botox injection for urge treatment.
On the same day, Dr Manning sent a short report to Accuro’s insurer, enclosing her letter to Dr Macauley, saying that Ms Hendrix’s severe urinary incontinence was worsening as were urge leakage symptoms. She said:
“she has a loss of sensation in the saddle area suggestive of neurogenic injury. Given this picture much of her leakage is likely related to her back injury and subsequent back surgeries.”
On 24 October 2018 Dr Macauley recorded that Ms Hendrix had seen Dr Manning and was considering her options.
Ms Hendrix saw Dr Manning again on 15 November 2018. The county form device did not help her incontinence at all and Dr Manning said:
“the leakage obviously relates to her neurogenic bladder. I’ve put in the letter that she had a chronic cough, she clarified this today and said she doesn’t have much of an issue with coughing even though she does have asthma. This adds to the feeling for the urge problem should be treated which would be botulinum toxin or say chrome neuromodulation if medications are not affective. One other option is posterior tibial nerve stimulation.”
There are no further references to Ms Hendrix’s bladder in Dr Macauley’s notes, which end in mid 2019.
Ms Hendrix’s solicitors asked her to see Dr Rochford who reported on 13 November 2019. Dr Rochford said that Ms Hendrix had the onset of urinary incontinence following the second surgery in 2014. She had increased frequency and she had incontinence when she laughed, coughed or sneezed as well as when she had the urge to pass urine. Dr Rochford said that Ms Hendrix gave him a copy of the urodynamics studies undertaken by Dr Jarvis and he set them out.
Dr Rochford said that because of the ongoing problem and because Dr Jarvis did not do workers compensation reports, Ms Hendrix was referred to Dr Manning. He noted that she also had numbness in both buttocks and around the anal area.
Dr Rochford said that urinary incontinence was a complication of the spinal surgery. He said she had sustained injury to her spinal cord causing a cauda equina lesion. He did not explain his opinion. He assessed 30% whole person impairment (WPI) under paragraph 7.8 of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment in respect of mixed urge and stress incontinence.
Ms Hendrix’s solicitors also qualified Dr J Bentivoglio, orthopaedic surgeon, who reported on 6 August 2020. This report did not mention Ms Hendrix’s bladder symptoms at all, other than to note the assessment of 30% WPI for the urological injuries which he considered was high.
Accuro’s solicitors qualified Dr Wines, urologist, who reported on 19 February 2021. He said that Ms Hendrix did not reveal any urinary symptoms before the injury in 2010. He summarised the reports and said that Ms Hendrix experienced stress and occasional urge incontinence. He said that it was not surprising that the medication Dr Manning recommended did provide benefit because of the urodynamic study. He set out the result of his physical examination and said that examination of her perianal and perineum areas was inconsistent.
He said:
“This lady appears to suffer from pure stress incontinence without bladder instability as demonstrated by Dr Jarvis’s urodynamics study. This would be a legacy of the previous pregnancies and unlikely to be of any significance in relation to her alleged work injury. She would probably benefit from anti-stress incontinence surgery unrelated to the Worker’s Compensation environment.
As she has had further back surgery since the urodynamics study was performed there would be some merit in the study being repeated prior to a decision being made concerning any anti-stress incontinence surgery.”
Dr Wines said that the condition was not causally related to the back injury because the urodynamic study showed pure stress incontinence consistent with her history of pregnancies and there was no urodynamic evidence of neurological impairment of bladder function which would be the case with neurological trauma.

SUBMISSIONS

Mr Barter prepared submissions on behalf of Ms Hendrix. He summarised her statement and said that it established a temporal connection between the surgery and her first experience of incontinence. He said it was significant that she noticed there was no particular reason and that it was not associated with coughing, sneezing or activity which might place stress on the bladder.
After setting out the medical history about the onset of the symptoms, Mr Barter said that Dr Rochford provided a reasoned explanation for the causal connection between the injury and incontinence. Mr Barter noted that Dr Coughlan provided an opinion about the causation of the condition by inference in his report dated 14 December 2017 when he said that Ms Hendrix may have to bring her next surgery forward if she experienced deteriorating bladder and bowel dysfunction. He said that Dr Manning considered that there was a neurogenic component to the condition.
With respect to Accuro’s evidence, Mr Barter noted that Dr Wines provided the only medical evidence purporting to exclude a neuropathic component. He noted that Dr Wines observed inconsistent sensation but did not address the findings of loss of sensation made by Drs Rochford and Manning. Mr Barter said it was not clear from Dr Wines’ report if he had seen Dr Jarvis’ report. He said it was not clear if Dr Wines considered that a finding of stress incontinence necessarily excludes a contributing neurogenic component and also not clear if a history of a loss of sensation in the saddle distribution would have caused him to alter his opinion.
Mr Barter referred to Hancock v East Coast Timber Products Pty Limited[1] where Beazley JA said:
“Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.

In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA.”

[1] [2011] NSWCA 11 at [82]-[82].

Mr Barter said that it may be that the symptoms result from both stress incontinence and a neuropathic component so that the question of the degree of contribution is a matter for a Medical Assessor, referring to Shankar v Ceva Logistics (Australia) Pty Limited[2].
[2] [2021] NSWPICPD 18.

Accuro’s submissions

Mr Doak prepared submissions on behalf of Accuro. He began by setting out the principles of causation in claim for a consequential loss, referring to Moon v Conmah[3] and Murphy v Allity Management Services Pty Ltd[4] (Murphy). In respect of Murphy, he said that the test of material contribution to a need for treatment was also applicable to claims for consequential loss.
[3] [2009] NSWWCCPD 134
[4] [2015] NSWWCCPD 49 at [58].
Mr Doak summarised the medical evidence and said that it was significant that only Dr Wines was the only doctor in the proceeding to identify that the first referral for treatment for urinary incontinence was two years after the second back surgery. He noted that Ms Hendrix’s statement did not identify when she first experienced symptoms other than to say it was following the second operation and that the first reference in the general practitioner’s notes was on 26 May 2016. Mr Doak said that those notes contradict Ms Hendrix’s evidence about the close temporal connection with the second back surgery.
Turning to Dr Manning’s reports, Mr Doak said that she did not set out in detail the history of the onset of Ms Hendrix’s symptoms and merely said that the back surgery suggested a neurogenic component. She reported the results of the tests she undertook but did not set out her opinion about the diagnostic significance of the results. Mr Doak said that Dr Manning did not provide the reasoning for her conclusion that Ms Hendrix suffered a neurogenic injury, noting her use of “suggestive” and “likely”.
With respect to the weight to be given to Dr Manning’s opinion, Mr Doak noted that she considered causation from the perspective of a wrapped up history of “several surgeries” without analysis of the timing of each surgery and the onset of urinary symptoms. Mr Doak also said that Dr Manning purported to attribute the urinary symptoms to the back injury but did not provide a reasoned analysis to support that conclusion. He said that Dr Manning also did not analyse the impact of the surgeries, two of which occurred after the onset of the symptoms. Mr Doak said that Dr Manning’s reports did not fulfil the requirements of Rule 73 of the Personal Injury Commission Rules 2021. He also referred to Hancock and other authorities with respect to expert evidence in the Commission.
Mr Doak also submitted that Dr Rochford recorded a vague history of the onset of Ms Hendrix’s urinary symptoms, merely stating that the onset was after the second surgery. He noted that Dr Rochford saw Dr Jarvis’ results but did not express an opinion as to their diagnostic significance. Mr Doak said that Dr Rochford did not provide any support for the opinion that Ms Hendrix suffered a cauda equina lesion due to surgery, so that his opinion was a mere assertion.
Referring to Ms Hendrix’s submissions which seek to rely on the reports of Drs Coughlan and Ruthven to support a causal relationship between the surgery and onset of urinary symptoms, Mr Doak noted that Ms Hendrix had Dr Jarvis’ report and provided it to Dr Rochford but had not relied on it in these proceedings so that there was no evidence to support the contention that there was a neuropathic component to the condition. He said that Ms Hendrix’s evidence fell short of fulfilling the task of satisfying the Commission that there was a material contribution from the surgery to her urinary symptoms.

Reply

In reply, Mr Barter said that the absence of a record of syptoms does necessarily lead to the conclusion that the symptoms were not present between 2014 and 2018. He said that equally available conclusions were that the treating doctors did not regard the incontinence symptoms as significant for treatment or that Ms Hendrix was so concerned about other symptoms that she failed to emphasise the incontinence symptoms. He said that none of the doctors have referred to the temporal gap and indeed Dr Wines was happy to determine that the cause of the condition was pregnancy even though the applicant’s children were 29 and 35 in August 2020. Mr Barter noted that Ms Hendrix did not draw a conclusion about the cause of her symptoms until she was asked about it by Dr Coughlan.
Mr Barter referred to the decision of Phillips P in Westpac Banking Corporation v Chauhan (Chauhan)[5] with respect to the acceptance of medical evidence:
“Based upon a consideration of the authorities described above, I do not accept the appellant’s essential submission that strict non-compliance with Makita is fatal to the learned Arbitrator placing any reliance upon Dr Gupta’s report. I do not read the authorities of Makita, Paric and Hancock as necessarily presenting an either/or choice for a decision maker. In my view, Makita sets out in comprehensive terms the proper approach for the tribunal of fact when considering expert evidence. In Makita, Heydon JA himself refers to Paric and acknowledges that an opinion will be admissible and material even though the facts established may not correspond with complete precision. I do not therefore read Makita as standing for the rather stark proposition asserted by the appellant in this matter, that namely if the facts are not proven to substantiate the opinion, the opinion is inadmissible or ought be accorded little or no weight. At [64] of Makita, Heydon JA acknowledges that ‘other admissible evidence may be available to substantiate the opinion’.”
[5] [2019] NSWWCCPD 63 at [81].
Mr Barter said that the evidence taken as a whole has sufficient weight to support the conclusion that the urinary symptoms result from the back injury through multiple surgeries, particularly when there is no support for the alternative proposition that they resulted from pregnancies 30 years before.

FINDINGS AND REASONS

In order to prove that she suffers a consequential urological condition, Ms Hendrix must show that it results from her accepted back injury. In Kooragang Cement Ltd v Bates[6] (Kooragang) Kirby P said that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”[7]. His Honour said:
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[6] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
[7] At 461G.
Kirby P said[8]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
[8] At 463-464.
The test of material contribution on which Accuro relies was formulated for the purpose of a treatment dispute. In Murphy, Roche DP considered whether it was necessary that a work injury be the only cause of a need for treatment for that treatment to be considered reasonably necessary as a result of the injury. Roche DP said:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd(1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters(1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd(1979) 53 WCR 167; ACQ Pty Ltd v Cook[2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
In Le Twins Pty Limited v Luo[9], Parker ADP noted that Murphy is an example of the requirement to consider the purpose for which causation is being determined, noting that Murphy concerned the determination of whether surgery was reasonably necessary in the circumstances.
[9] [2019] NSWWCCPD52.
The test to be applied in this case is that in Kooragang – whether the condition of urinary incontinence resulted from the accepted back injury.

Medical evidence

Ms Hendrix suffered from a complex combination of medical conditions even before the back injury. There is no doubt on the evidence that she has a significant problem with urinary incontinence which requires treatment and I have no doubt that the condition is distressing and debilitating.
The medical reports show a reasonable temporal connection between the surgery in 2014 and the first complaints of urinary problems but that is not enough to determine that Ms Hendrix suffered a consequential condition. The evidence must also show and explain a causal connection.
The first complaints were to Dr Macauley in 2015 and a referral was made to Dr Manning then, though Ms Hendrix apparently did not attend. The complaints increased over time. Dr Ruthven’s reference in 2016 to complaints for many years is unexplained.
During 2014 and 2015 Ms Hendrix also underwent treatment for the accepted consequential condition of plantar fasciitis.
There is no evidence about when Dr Coughlan asked Ms Hendrix if she suffered bladder problems. On 14 September 2015 he described the problems as intercurrent with her other conditions. By 21 July 2016 he said he was under the impression that the bladder problems were neurogenic. He recommended that Ms Hendrix see Dr Ruthven. In the same report to Accuro’s insurer, and in response to a specific request that he do so, Dr Coughlan provided the justification that he was “under the impression” that some of the bladder problems were neurogenic given the convoluted course with her spine. The report is inconclusive because Ms Hendrix had not yet seen Dr Ruthven, whose opinion Dr Coughlan had sought.
Dr Ruthven, like Dr Manning, had a history that Ms Hendrix had wet the bed as a child and teenager. Accuro’s insurer also asked Dr Ruthven for an opinion as to causation and on 13 October 2016, while waiting for urodynamic studies, he said that there was no evidence that a spinal cord injury had occurred. He conceded that a spinal cord injury could impact bladder function. His impression was that the problems were not related to the surgery.
The urodynamic studies were not undertaken until December 2016. Ms Hendrix apparently had a copy of Dr Jarvis’ report though it was not provided to Accuro’s solicitors until after the conciliation conference and arbitration conference, nor to me. That omission was unexplained. Clearly it should have been provided to Ms Hendrix’s solicitors and included in the ARD. It is not clear if Dr Wines saw the report though his own report suggests he was aware of the substance of it.
Ms Hendrix offered a number of comments in her statement about her lack of confidence in the treatment proposed by Dr Ruthven and Dr Jarvis. While those comments may disclose how Ms Hendrix felt after the consultations and may explain why she did not follow up with any treatment, they do not assist in the determination of whether she suffered a consequential condition.
The determination of this question is made more difficult by the fact that many of the doctors expressed a tentative view then said that they had referred Ms Hendrix elsewhere – Dr Coughlan said that he had referred Ms Hendrix to Dr Ruthven, Dr Ruthven referred Ms Hendrix to Dr Jarvis. Perhaps because Ms Hendrix did not see him again, there is no report from Dr Ruthven after the date of Dr Jarvis’s report so that it is not possible to discern what his concluded opinion was and whether he still adhered to the view that the bladder problems were independent of her back surgery. There is no report about any treatment Dr Jarvis proposed, even though the other evidence suggests that he proposed surgery.
The only relevant comment by Dr Coughlan after the referral to Dr Ruthven was in his report dated 14 December 2017. He did not express a view about the causation of bladder and bowel dysfunction though the inference is that there is some relationship to her back condition. His suggestion that surgery might be required sooner rather than later presumably relates to the fusion proposed in early 2018, though it is unclear. I do not agree that report bears the weight that Mr Barter submitted that it carried.
Mr Doak was correct to observe that Dr Manning’s reports are carefully and somewhat tentatively expressed. However she did state on 16 October 2018 that Ms Hendrix had a neurogenic bladder. She did not explain what that meant, is understandable when the report was addressed to Dr Macauley and provided for the purpose of treatment.
Hancock dealt with the weight to be given to medical reports and confirmed that a report needs to generally comply with the rules for expert evidence to the extent that it provides a proper basis for the Commission’s decisions. The reports of the treating doctors do not provide that basis.
The standard to be expected of an expert report in the Commission was set out in Hancock but also in South Western Sydney Area Health Service v Edmonds[10] where McColl JA said:
“In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
‘… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary’ (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.
In my view Dr Rivett’s statement that ‘in general all the problems are work-related’ which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.”
[10] [2007] NSWCA 16 at [130]-[132].
There are references in the reports to stress incontinence, urge incontinence, neurogenic bladder and loss of sensation. None of the evidence explains the causation and implications of each of those signs and symptoms. It is not possible to understand from the evidence whether a neurogenic bladder would result in urge or stress incontinence, both or neither. There is no explanation that would allow a finding as to whether Ms Hendrix’s condition resulted partly from the surgery and partly from other factors. There is evidence about proposed treatment (though there is no claim for the cost of that treatment) and nothing in the reports to explain how the diagnosis might effect what treatment was required.
The issue is different to that which Phillips P considered in Chauhan and to which Mr Barter referred. In that case the President considered whether the factual basis for an opinion had been established evidence provided a fair climate for a medical expert to express an opinion as described in Paric v John Holland (Constructions) Pty Ltd[11]. The problem in this case is that the medical experts have not provided the explanation that would allow their opinions to be evaluated and understood.
[11] [1984] 2 NSWLR 505.
In a case where there are so many short reports written by treating doctors for treating doctors, it might be expected that a medico-legal report would provide the explanation that would allow me to evaluate the causal chain. Dr Rochford did not provide that explanation. He said that Ms Hendrix had suffered an injury to her spinal cord causing a causa equina lesion as a result of the surgery and that urinary incontinence was a result. His opinion is unhelpful because it is not explained. It is a bare ipse dixit. The same can be said for his bald diagnosis of “stress urinary incontinence and neurogenic bladder”. Dr Rochford was asked many questions but provided only a short response to each one. His responses are repetitive rather than illuminating.
Dr Wines report similarly lacks an explanation for his opinion.
Whether a condition results from an injury is a matter that must be proved on the balance of probabilities. Proof to that standard was described by the Court of Appeal in Nguyen v Cosmopolitan Homes.[12] McDougall J, with whom the other members of the Court agreed, said[13]:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[12] [2008] NSWCA 246.
[13] At [55].

On the evidence, I am unable to feel an actual persuasion that the urological condition suffered by Ms Hendrix resulted from the injury to her back on 28 April 2010.
I make these orders:
(a)    Award for Accuro with respect to the consequential condition in the urinary and reproductive system.
(b)    Award for Accuro on the claim for s 60 expenses in the ARD.
(c)    I remit the matter for referral to a Medical Assessor to assess Ms Hendrix’s permanent impairment:
Date of injury:           29 April 2010
Body parts:               Lumbar spine
Left lower extremity (foot)
Right lower extremity (foot)
(d)    The documents to be sent to the Medical Assessor are:
(i)the ARD, and
(ii)Reply.

[2022] NSWPIC 315

22 June 2022