Jaksic v Commercial Interiors Projects Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jaksic v Commercial Interiors Projects Pty Ltd [2022] NSWPIC 257
APPLICANT:	Milos Jaksic
RESPONDENT:	Commercial Interiors Projects Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	30 May 2022
CATCHWORD:	WORKERS COMPENSATION - Claim for consequential condition to upper digestive tract; whether applicant expert opinion compromised by clinical notes of GP; whether presence of Helicobacter infection negated any other cause for applicant’s gastritis; whether applicant’s weight sole cause of reflux symptoms; whether gap in clinical records raise Jones v Dunkel inference; Held- error in history taking by applicant expert not relevant and opinion within a fair climate ACW v ACX applied; caution to be adopted in reliance on clinical notes Qannadian applied; applicant’s weight a talem qualem matter State Transit v Fritzi Chemmler applied; medication for reflux a material factor Ozcan v Macarthur Disability Services Ltd applied; Respondent expert did not exclude possibility of other cause for gastritis Woolworths v Christopher-Coates applied; gap in clinical records explained; award applicant.
DETERMINATIONS MADE:	1. By consent the claim for injury to the thoracic spine is discontinued on the applicant’s application. 2. By consent the claim is amended to claim that the injury alleged was in fact a consequential condition. 3. I remit this matter to the President for referral to a Medical Assessor on the following bases: (a) Date of injury: 18 October 2018 (b) Matters for assessment: i) (The cervical and lumbar areas of the spine ii) Right and left upper extremities (shoulders) iii) Left lower extremity (knee) iv) Upper digestive tract (c) Evidence: For the applicant: (i) ARD and attached documents (ii) Application to admit late documents For the respondent: (i) Reply and attached documents

STATEMENT OF REASONS

BACKGROUND

Milos Jaksic, the applicant, brings an action against Commercial Interiors Projects Pty Ltd, the respondent, for lump sum compensation caused by a consequential condition to injury on 18 October 2018.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) Has the applicant suffered a consequential condition to his upper digestive tract?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

On 6 May 2022 a conciliation and arbitration hearing was convened through Microsoft Teams video link. The applicant was represented by Mr Frank Curran of counsel instructed by Mr David Carter of Messrs Carters Lawyers. The respondent was represented by Ms Nicole Compton of counsel instructed by Mr Nathan Buyers from Messrs TurksLegal. Mr Daniel McAndrew also appeared on behalf of the insurer, EML and Mr Oleg Parenta appeared as the official interpreter. Also accompanying the applicant was Mr Angel Ristov, an interpreter retained by the applicant.
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)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Document (ALD) containing further statement of the applicant.

Oral evidence

No application was made in relation to oral evidence.

FINDINGS AND REASONS
Preliminary

Mr Jaksic was injured on 18 October 2018 as a gyprocker when whilst carrying a large sheet of plaster board above his head, his feet became entangled in an extension cord and he fell.
He hit his head on a partition and part of the structure fell on him as he fell onto his right hand side. He was taken by ambulance to Westmead Hospital where he was held for six to eight weeks and then discharged.
The respondent has accepted that injury was caused to the cervical and lumbar areas of the spine, the shoulders and the left knee. As indicated, this case concerns a lump sum claim caused by injury to the digestive system, which was at the outset of the hearing more precisely identified as being the upper digestive tract.
At the commencement of the proceedings Mr Curran advised that claim for the thoracic spine was discontinued, which I have noted in the Commission’s determination.
The claim was pleaded as a personal injury, but after argument Mr Curran amended the claim to allege that the damage to the upper digestive tract was a consequential condition arising out of the injuries sustained on 18 October 2018.

The applicant

Mr Jaksic emigrated from Serbia in the year 2000. He is married with two children and had been working as a gyprocker since about 2002.
His statement of 28 February 2022[1] Mr Jaksic described his physical injuries, but did not discuss his medication regime. He stated that he had undergone three separate surgical procedures consisting of left knee surgery in mid 2019 with Dr Giblin, right shoulder surgery in October 2019 with Dr Dave and further left shoulder surgery also with Dr Dave in February 2020.
[1] ARD p 1.
In his supplementary statement dated 27 April 2022[2], however, Mr Jaksic said that since his accident he had taken medication to control the “very severe pain” and insomnia caused by the accident. He said he had taken various medications which included Tramal, Nurofen, Panadol and Normison.
[2] ALD p 1.
He said that “about two years ago” he went off Tramal and started to take Mersyndol. He said from paragraph 5:[3]
“5.     I have had gastro intestinal symptoms and I started to get those symptoms about 4-5 months after the accident and the symptoms I have suffered from are reflux, stomach bloating, pain in the stomach and vomiting from time to time. I have also suffered from constipation and I get urgency from time to time.
6.      I believe that all these symptoms are caused by the medication I have taken which I took as a result of the accident, the subject of this claim.
7.      The symptoms are a very serious problem and greatly concern me as for that matter so are the lower intestinal symptoms and these symptoms add to my incapacity for work.”

Dr Kris Tomka
[3] ALD p 2.

Dr Tomka was Mr Jaksic’s treating general practitioner (GP) at the Bathurst Street Medical Practice. He supplied a report dated 22 April 2021.[4] Dr Tomka said:
“I am Mr. Jaksic's treating doctor since 2010. Mr. Jaksic was always in good health until an injury at work on the 18/10/2018.”
[4] ARD p 23.
Dr Tomka then described the subject accident and subsequent treatment. He then said:[5]
“As far as I am aware there was no pre-existing condition. All his symptoms are caused by the injury at work on that particular day.”

Dr Neil Berry
[5] ARD p 25.

Mr Jaksic’s claim was supported by Dr Neil A Berry, specialist general surgeon, who reported to Carters Law Firm on 9 September 2021[6].
[6] ARD p 17.
He took the following history:[7]
“In terms of his digestive tract, approximately four to five months after the injury he started to develop epigastric pain and reflux. At first he did not pay any attention to it as his musculoskeletal injuries took up his attention. He then found that he was getting bloating and alternating constipation with diarrhoea. At this stage he consulted his general practitioner and was advised to eat smaller, more frequent meals and he was prescribed Nexium.
Unfortunately his condition did not improve and he was subsequently referred to Dr Alexander Simring, Gastroenterologist who performed gastroscopy and colonoscopy. The patient was given a variety of medications over the next month but despite this, his condition did not improve.”
[7] ARD p 18.
The applicant complained to Dr Berry that he was getting pain in his epigastric region after eating and experienced bloating and nausea.
At that time, September 2021, the applicant was taking
· Mersyndol;
· Normison;

· Nexium, and
· Coversyl.

Dr Berry noted that Mr Jaksic had ceased Panadeine Forte and Tramal on the advice from his GP.
Dr Berry said:
“There is no history of prior accident, injury or claim for compensation.
…
Mr Jaksic suffers from mild hypertension and is taking Coversyl daily. Apart from that, he is not aware of any other serious health issues.”
On physical examination Dr Berry noted that Jaksic weighed 128kgs and Dr Berry noted that it was in the epigastric region that he suffered discomfort.
In his opinion Dr Berry said:[8]
“This man has a history of developing bloating and reflux as a result of his medication Intake. He has undergone gastroscopy and colonoscopy and has been found to have gastritis complicated by Helicobacter Pylori.”
[8] ARD p 20.
Dr Berry’s diagnosis was[9]:
“The diagnosis Is chronic gastritis caused by his medication intake and overshadowed by a Helicobacter Infection.”
[9] ARD p 20.
As to causation Dr Berry said:
“I would consider that your client's digestive tract symptoms are the result of his medication intake, particularly Panadeine Forte and Tramal and therefore they are a consequence of the treatment of the pain that he has suffered from his musculoskeletal Injuries.”
In considering the appropriate assessment for the upper digestive tract Dr Berry said:
“In this man's case, the patient has histological evidence of chronic gastritis with superimposed Helicobacter infection. I would therefore place the patient in Class 2 on the grounds that he requires dietary restrictions, and medication for the control of his symptoms. It is noted that his weight is not below desirable levels and I would therefore assess him at a 15% Whole Person Impairment and I would deduct one third for his Helicobacter infection giving him a 10% Whole Person Impairment for the intake of medications.”

Dr Simring

The gastroscopy and colonoscopy reports by Dr Alexander Simring were lodged[10]. The investigations were performed on 3 June 2021. Dr Simring’s findings on gastroscopy were of a normal oesophagus and a duodenum that was “normal to the second part.“ As to his findings regarding the stomach, Dr Simring reported:
“STOMACH
Moderate erythematous gastritis involving the upper and lower stomach was apparent suggestive of H.pylori.
…..
GASTRITIS: There was moderate gastritis suggestive of H.pylori however no evidence of peptic ulcer disease. I have taken biopsies for H.pylori including culture and sensitivity.
Reflux symptoms should be managed through dietary measures including weight loss (LMO refer to dietician). Recommend standard dose PPI once daily on a regular basis for 2 months then continue on an as needed basis.”
[10] Reply p 31.
In his report on colonoscopy, Dr Simring found:
“COLON POLYPS: The patient had 2 small colon polyps removed. Recommend surveillance colonoscopy in 5 years provided adenomatous polyps. Rectal bleeding due to haemorrhoids, conservative management. Constipation related to use of opiates, minimise use.
Recommend
high fibre diet with Movicol as needed for constipation.”
The samples were analysed by Laverty Pathology in its Histopathology report of 6 June 2021.[11] There was “active chronic gastritis, helicobacter associated” found, and no significant abnormality in the small bowel. The duodenum samples were “essentially normal.”

Dr Donald Frommer
[11] Reply from p 33.

The respondent qualified Dr Donald Frommer, gastroenterologist and hepatologist, whose report was dated 7 February 2022.[12] Amongst the documentation forwarded to him was the above report from Dr Berry.
[12] Reply p 20.
Dr Frommer noted the history of Mr Jaksic’s injury and subsequent surgical procedures. He noted that a number of medications had been taken since the initial injury. He noted Mr Jaksic’s symptoms, which he described as “subsequent injuries.” They were heartburn and reflux, and constipation.
With regard to heartburn and reflux the history taken was that for about two years Mr Jaksic had experienced occasional nausea and bringing up his food. Dr Frommer was not sure due to language difficulties whether Mr Jaksic meant he had been vomiting or regurgitating, but his impression was that it was regurgitation. These symptoms were accompanied by epigastric and retrosternal burning sensations which happened three to four times a week usually when lying in bed. They were not related to any kinds of foods.
With regard to the symptoms of constipation, for approximately two years Mr Jaksic opened his bowels every three days and experienced bloating. About once per month he had watery diarrhoea, although he did not take any aperients.
Mr Jaksic was taking one tablet of Mersyndol per day for pain relief although he had previously been taking Tramadol. He was also taking Normison.
Dr Frommer noted the endoscopy and colonoscopy reports by Dr Simring.
Dr Frommer noted that the GP notes supplied to him finished in March 2021 (as indeed they did to the Commission) and did not know due to the language difficulty whether the Nexium recommended by Dr Simring had been prescribed.
He noted that in the past Mr Jaksic has suffered from gout and hypertension. His diagnosis was:
“Gastroesophageal reflux
Previous Helicobacter pylori and chronic active gastritis. Present Helicobacter pylori status uncertain.
Analgesic induced constipation.”
Dr Frommer’s attention was drawn to the clinical records obtained by the respondent, and he was asked:
“ a. In your view, has the worker’s alleged gastrointestinal condition resulted from his medication plan?
Yes, for his constipation.
No, for his reflux symptoms, his gastric Helicobacter pylori infection or gastritis.
The main cause for his reflux symptoms is his obesity
Dr. Berry states that ‘The diagnosis is chronic gastritis caused by his medication intake and overshadowed by a Helicobacter infection.’
In my clinical career I have not heard of the constituents of Mersyndol, Tramal or Normison causing gastritis. To check this I did a literature search on PubMed and could find no articles suggesting the constituents cause gastritis. However, nearly all cases of Helicobacter infection cause some degree of gastritis. Therefore I think that the worker’s gastritis is wholly caused by the infection.”
Dr Frommer was asked about Mr Jaksic’s ingestion of medication prior to the subject accident, as revealed by the clinical notes. Dr Frommer said:[13]
“The Mersyndol Forte and Tramal taken before the injury would have had a tendency to cause constipation but to a lesser degree than after the injury when the analgesics were prescribed at a higher frequency.”
[13] Reply p 25.
Dr Frommer was asked to assess any whole person impairment caused by the gastrointestinal tract. He said:[14]
“Reflux symptoms
The main factor causing his reflux symptoms is his obesity. 5 years ago, his weight was 120kg (BMI 37.4) increasing to his present weight of 128kg (BMI39.9). Therefore most of his weight related tendency was present before his injury. In addition his reflux is mild as there was no inflammation seen in his oesophagus on endoscopy, he does not have daily symptoms and he only needs to take Nexium every third day.
……The Helicobacter pylori infection and gastritis, which are not work related, are asymptomatic. Because of the mildness of his reflux symptoms I therefore assess his reflux symptoms as having a WPI of 4%.”

Bathurst Street Medical Practice
[14] Reply p 27.

The clinical notes from the Bathurst Street Medical Practice which the applicant attended were lodged.[15]
[15] ARD p 29.
Firstly, the notes show that there was indeed a prior injury on 1 October 2015 when Dr Krisimir Tomka, Mr Jaksic’s treating GP, recorded complaints of a painful left knee which was mildly swollen and in respect of which Dr Tomka suspected a partial tear.[16] This injury was not noted again until 20 December 2017[17] and I infer was the subject of some investigation from the entry of 15 January 2018 when Dr Tomka noted there was a partial thickness tear in the anterior cruciate, and mentioned “[orthopaedic] surgeon”, from which I infer that the injury was sufficiently serious that Dr Tomka either referred, or was considering a referral, to an orthopaedic surgeon for management.[18]
[16] ARD p 29.
[17] ARD p 31.
[18] ARD p 32.
Secondly Dr Tomka’s notes reveal continuing problems suffered by Mr Jaksic with gout and arthritis. Gout was first noted on 3 June 2015[19] and there were constant presentations by Mr Jaksic with gout throughout the clinical notes. I observe in passing that there was only one entry for 2016 which was for an acute attack of gout.[20] The notes also reveal a continuing problem with arthritis, which was first noted on 4 September 2017.[21] For this condition, Dr Tomka prescribed Mersyndol Forte tablets on 4 September 2017, and Tramal tablets on 20 December 2017.
[19] ARD p 29.
[20] ARD pp 29-30.
[21] ARD p 30.
The last prescriptions noted prior to the subject accident were for Prednisone tablets (which had been prescribed often), and Panadol Extra caplets (which were prescribed for the first time) on 18 September 2018, when Mr Jaksic presented complaining of both an acute attack of gout and arthritic pain. The injury occurred, it will be recalled, on 18 October 2018.
Following the subject accident, the applicant was prescribed Panadeine Forte on 22 October 2018, Normison on 9 November 2018, Mersyndol Forte on 29 November 2018, Panadol Extra on 21 December 2018 and 8 January 2019, and Tramal on 23 January 2019.[22] The notes confirm the continued ingestion of this medication, and the gout medication, over the next two years up to the last entry of 15 March 2021. The records confirm that the applicant’s intake of medication was consistent and frequent over the years between 18 October 2018 and the date of Dr Simring’s investigations on 3 June 2021.

SUBMISSIONS
Mr Curran
[22] ARD p 34.

Mr Curran submitted that the overall evidence should be considered, which included the three operative procedures and Mr Jaksic’s psychological health, with the consequent necessity for medication. The applicant, like most lay persons, was unable to describe his digestive complaints by reference to his digestive tracts. However, it was probable that the necessity to take the medication at such intense levels had resulted in the injury to the digestive tract diagnosed by Dr Berry.
Mr Curran said “it was also significant” that the applicant began to complain of his symptoms four to five months after the accident. This was consistent with the evolution of the injurious condition diagnosed by Dr Berry, to a point where in February/March of 2019 the applicant started to have problems with his gastric system from the consequential necessity to take medication. (I assume Mr Curran was referring to 2021, in line with the evidence.)
Thus, in all the circumstances the probabilities were that the subject accident had caused Mr Jaksic’s present digestive symptoms. There was some medical debate as to their degree, but Mr Curran submitted that Dr Berry’s report was sensible and realistic, with sound reasons advanced for his opinion regarding the digestive tract. The claim should accordingly be referred to an MA, with the other claims.

Ms Compton

Ms Compton submitted that the reliance by the applicant on Dr Berry’s assertion that the symptoms began some four to five months following the accident was not borne out by contemporaneous evidence. The clinical notes indicated the consumption by Mr Jaksic of analgesic medication for some time.
Dr Berry’s diagnosis of chronic gastritis was important in the light of Dr Frommer’s diagnoses. The issue resolved itself, as I understood Ms Compton, into the question of whether any of the gastritis could be ascribed to the medication being taken by Mr Jaksic, as was suggested by Dr Berry, or whether it was not possible as was Dr Frommer’s considered opinion.

Ms Compton submitted that I would prefer the opinion of Dr Frommer both because he was a specialist gastroenterologist (whereas Dr Berry was a general surgeon) and because the evidence did not support Dr Berry’s opinion. Ms Compton noted that Dr Berry deducted one third from his upper digestive tract assessment because of the superimposed Helicobacter infection.
The clinical records of the Bathurst Medical Practice began in 2014, and I was referred to various entries that recorded complaints of left knee pain since 1 October 2015, and the prescription of various medications, including Tramal Prednisone and Mersyndol Forte at various times, including gout related medication such as Colchicine and Colgout.
Up to the time of the accident, Ms Compton submitted, the medication had been codeine based analgesia to treat a significant orthopaedic condition that had been extant since 1 October 2015.
Ms Compton submitted that there was no complaint recorded in the clinical records at all of any digestive or stomach complaints. The notes lodged did not extend beyond 15 March 2021 and it could be inferred accordingly that the gastroscopy and colonoscopy of June 2021 had been provoked by symptoms that arose after 15 March 2021.
The entries in the notes that pre-dated the injury demonstrated that Mr Jaksic had a condition in his left knee which was arthritic and that has also suffered from gout for which he was prescribed various medications including Colchieine, Presydone and Tramal. Ms Compton noted that the partial thickness tear of the meniscus had been diagnosed on 15 June 2018, prior to the subject injuries and that Mr Jaksic had been referred to an orthopaedic surgeon in that regard.
The clinical notes showed no increase in medication after the subject accident beyond that which the applicant had already been receiving over the previous three years, it was submitted. There were no complaints at all of a gastric nature recorded in the clinical notes at all. The referral to Dr Simring accordingly must have been made following such complaints between 15 March 2021 and 3 June 2021, which was inconsistent with the assumption made by Dr Berry.
Ms Compton submitted that it was more probable that Dr Frommer was correct and that the main factor in Mr Jaksic’s reflux symptoms was simply the fact that he was now 128kgs when he had weighed 120kgs at the time of the injury.
Moreover Dr Berry’s opinion was compromised by the fact that there was no evidence as to how the gastroscopy and colonoscopy came to be performed. She said that Mr Jaksic must have been referred to Dr Simring, but there was no evidence as to how that came to happen. The absence of that documentation was unexplained when an explanation should reasonably have been given. Accordingly, a Jones v Dunkel inference was available.

Mr Curran in reply

Mr Curran stated that the stark point in the narrative was 18 October 2018. The contrast in his condition before and after that date would enable a comparative evaluation which would clearly show a significant collapse in his health. He had been working prior to that date and has not been able to work since.
It was submitted that the medication intake shown by the evidence before the injury was nowhere near as great as the post-accident intake. Dr Berry took a full history and should be preferred, he said.
He agreed that Mr Jaksic’s weight problem was fairly evident at the time he was working, but that an employer has to take his employee as he finds him.

DISCUSSION

In the final analysis the resolution of this dispute depends upon an analysis of the expert opinion. As was mentioned by both counsel, the digestive system is a technical subject about which a worker could not be expected to have much knowledge, and it is the subject of specific specialties within the medical profession.
I do not put much store in Ms Compton’s submission that a Gastroenterologist has a more specialised knowledge than a General Surgeon. It is apparent that Dr Berry, from the detail of his report, has sufficient expertise to be able to advise on this specific subject.
The respondent relied on the contents of the clinical notes from the Bathurst Medical Practice to demonstrate that Dr Berry’s assumption that there was no relevant past history was incorrect.
It is relevant to note that the contents of clinical notes by medical professionals are to be approached with some caution.[23] In this matter, however, they are not controversial, as the basis of Dr Frommer’s opinion was that the chronic gastritis had wholly been caused by Helicobacter infection. The ingestion of medication prior to the subject accident was not regarded as significant, as he said that whilst it may have had a tendency to cause constipation, the higher frequency of ingestion following the subject accident made it of “a lesser degree.”
[23]See e.g. President Judge Keating Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50 from [35]; Collins v Bunnings Group [2021] PIC 313 at [221] per Senior Member Capel.
On any view of the evidence Mr Jaksic was being prescribed opiate based analgesia, amongst other medication, following the subject injuries, the treatment for which has resulted in three operative procedures and a reliance on that medication for some three years.
I was grateful for counsel’s thorough analysis of the clinical notes, but I do not consider that Dr Berry’s opinion is compromised by his error. I note that Dr Berry had available the report from Dr Tomka dated 22 April 2021. It may be that Dr Berry was misled by Dr Tomka’s report regarding Mr Jaksic’s past health.
It is regrettable that Dr Tomka allowed his enthusiasm for his client’s case to overcome his attention to detail. He knew, because he had been treating Mr Jaksic since 2010, that Mr Jaksic was not “always in good health”. He was aware too that there were pre-existing conditions and his disclaimer “as far as I am aware” ignored the fact that he had been treating Mr Jaksic for his injured left knee on and off since 1 October 2015.
The significance of the medication taken prior to the subject injury was not a factor in Dr Frommer’s opinion, and Dr Berry’s report may be accepted as being within a fair climate.[24]
[24] See ACW v ACX [2022] NSWPICPD 19.
The respondent sought to rely on the clinical notes to establish a further error by Dr Berry in his acceptance of the history that Mr Jaksic’s gastric symptoms occurred shortly after the subject accident. It was submitted that the applicant should not be believed because he said both in his statement and to Dr Berry that his symptoms began four to five months after the subject accident.
The respondent was correct in its submission that there was no record of any complaint about gastric symptoms within the entirety of the clinical notes, which commenced in 2014. Of course, that absence does not prove that Dr Berry’s assumption in that regard was incorrect, as it was not suggested that any complaint about those symptoms had been made to the treating practitioners. Indeed Mr Jaksic stated that he was more preoccupied with his orthopaedic injuries and it is quite consistent therefore to conclude that he was not suggesting that he had actually reported his symptoms to his medical practitioners.
It is apparent that Mr Jaksic did not seek medical treatment with regard to his digestive symptoms until sometime between 15 March 2021 and the investigations carried out by Dr Simring on 3 June 2021. I do not ascribe to the gap in the records from Dr Tomka an inference that they were not supplied because they could not assist the applicant, as was submitted by Ms Compton.
The gastroscopy/colonoscopy report from Dr Simring was addressed to “Kris” whom I infer was Dr Krisimir Tomka, so that it may readily be inferred that Mr Jaksic complained about his digestive symptoms to Dr Tomka between 15 March 2021 and 3 June 2021.
That Mr Jaksic did not complain to his GP about those symptoms until after 15 March 2020 is consistent with the history taken by Dr Berry that Mr Jaksic consulted his general practitioner, was advised to eat smaller more frequent meals and was prescribed Nexium. Dr Berry described that point in time as being “at that stage”, but he did not further define when that consultation with Dr Tomka occurred.
The procedures undergone on 3 June 2021 establish that Mr Jaksic consulted Dr Tomka about his gastric condition and it follows therefore that the consultation occurred sometime between 15 March 2021 and that date. Although in a perfectly presented case the additional records from the Bathurst Street Medical Practice could have been obtained prior to the hearing, I do not read into their absence an inference that their content would not help the applicant’s case.
Dr Frommer stated that the “main” factor in Mr Jaksic’s reflux symptoms was his obesity. Whilst Mr Jaksic’s 120kg weight at the time of the accident may well have contributed to his reflux symptoms, an employer must take his employee as he finds him – the talem qualem principle.[25] Dr Frommer’s use of the adjective “main” demonstrates that Mr Jaksic’s weight problem was not the only factor or cause for the reflux symptoms. No other cause was suggested, and it may be inferred that Dr Frommer was allowing that the ingestion of medication was another contributing factor. This being a case that involves a consequential condition, all that has to be established is that the ingestion of the medication was a material factor in the onset of the condition.[26] I find that to have been established accordingly.
[25] See State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 at [40] per Spigelman CJ.
[26] Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56; Secretary, NSW Department of Education v Johnson [2019] NSWCA 321.
The nub of the case is however, that Dr Frommer’s opinion should be preferred on the basis that he advised that the gastritis was “wholly” caused by the Helicobacter infection. I do not however read Dr Frommer’s report as totally discounting a causal link between Mr Jaksic’s gastritis and the medication regime prescribed in respect of the injuries caused in the subject accident, or in respect of the subsequent treatment.
Both Dr Berry and Dr Frommer found the presence of Helicobacter Pylori in the analysis of the specimens from the stomach to be significant. Both experts diagnosed chronic gastritis. Dr Berry acknowledged that a deduction would have to be made for the presence of the Helicobacter Pylori, whilst Dr Frommer doubted that the medication regime could have caused the gastritis, saying that he had not heard of such a situation in his clinical career.
Dr Frommer consulted relevant literature and said that he could find no articles that supported such a conclusion. He stated that “nearly all” cases of Helicobacter infection caused some degree of gastritis and “therefore” concluded that the gastritis was “wholly caused by the infection.”
Again, Dr Frommer left some room for doubt that it was possible that gastritis could be caused by other factors comorbidly with the presence of Helicobacter Pylori. If “nearly all” cases involving the presence of Helicobacter caused gastritis, it followed that there were other cases where the gastritis could have other causes, notwithstanding the presence of Helicobacter infection. This was the view of Dr Berry, and I do not read Dr Frommer’s opinion as discounting it. Dr Frommer’s view that the gastritis had been “wholly” caused by the infection must be looked at in the light of his concession that it was not all cases but “nearly all” cases where Helicobacter infection actually caused gastritis.
Dr Berry’s view was the medication may have contributed to the gastritis, albeit that there was “superimposed” the helicobacter infection. In Woolworths Limited v Christopher-Coates[27] at [176] President Judge Keating reviewed the relevant authority and cited the decision of the Court of Appeal in Commonwealth v McLean:[28]
“A tribunal of fact is entitled to find causation as a matter of commonsense from the sequence of events, although medical science does not support an affirmative answer, provided it does not exclude such a finding: [authorities omitted]”
[27] [2014] NSWWCCPD 14.
[28] (1996) NSWLR 389.
No such exclusion was established, and I am persuaded, having considered the totality of the evidence, that the claim for lump sum compensation regarding the upper digestive tract should be assessed along with the accepted claims.

SUMMARY

For these reasons I remit this matter to the President for referral to a Medical Assessor on the following bases:
(a)    Date of injury:                   18 October 2018.
(b)    Matters for assessment:    (i)     The cervical and lumbar areas of the spine.
(ii)Right and left upper extremities (shoulders).
(iii)Left lower extremity (knee).
(iv) Upper digestive tract.
(c)    Evidence:  For the applicant:
(i)ARD and attached documents.
(ii)Application to admit late documents.
For the respondent:
(i)         Reply and attached documents.

[2022] NSWPIC 257

30 May 2022