Lafaitele v Budget Rent-A-Car Operations Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lafaitele v Budget Rent-A-Car Operations Pty Ltd [2025] NSWPIC 4
APPLICANT:	John Lafaitele
RESPONDENT:	Budget Rent-A-Car Operations Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	7 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application for lump sum permanent impairment compensation pursuant to section 66; applicant had accepted injury to right lower extremity (knee), TEMSKI/scarring and respiratory system (sleep disorder consequential condition); whether the applicant sustained a consequential condition of the left knee and the digestive tract (GORD) as a result the accepted injury to right knee; Held – the applicant sustained a consequential condition of the left knee as a result of the accepted injury to the right knee; applicant did not sustain a consequential condition of the digestive tract as a result of the accepted injury to the right knee; matter remitted to the President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a consequential condition of his left knee, as a result of the accepted right knee injury sustained on 7 September 2016. 2. The applicant did not sustain a consequential condition of his digestive tract, as a result of the accepted right knee injury sustained on 7 September 2016. The Commission orders: 3. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 7 September 2016 (with consequential condition). Body parts: right lower extremity (knee); TEMSKI/scarring; respiratory system (sleep disorder consequential condition), and left lower extremity (knee consequential condition). Method: whole person impairment. 4. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute and attachments; (b) Reply to Application to Resolve a Dispute and attachments, and (c) the report of Dr Greenberg dated 25 February 2021 (which should correctly have been dated 25 February 2022).

STATEMENT OF REASONS

BACKGROUND

John Lafaitele (the applicant) injured his right knee in the course of his employment as a car detailer with Budget Rent-A-Car Operations Pty Ltd (the respondent) on 7 September 2016.
The respondent admitted liability for the applicant’s right knee injury on 7 September 2016 (the accepted right knee injury), consequential scarring and a consequential condition of the applicant’s respiratory system (sleep disorder).
The applicant made a claim for lump sum permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for total 28% whole person impairment (WPI) in respect of injury on 7 September 2016 to the right knee, with consequential scarring and consequential conditions of the applicant’s respiratory system (sleep disorder), left knee and digestive tract.
The respondent disputes liability for the claims of consequential conditions of the left knee and digestive tract.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a conciliation conference and arbitration hearing on 26 November 2024, the applicant was represented by Mr Phillip Perry, counsel, instructed by Turner Freeman Lawyers. The respondent was represented by Ms Lyn Goodman, counsel, instructed by Mr Malcolm Griffin of Bartier Perry Lawyers.
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.

ISSUES FOR DETERMINATION

The respondent accepted injury to the applicant’s right knee on 7 September 2016, consequential scarring and a consequential condition of the applicant’s respiratory system (sleep disorder).
The parties agree that they should be remitted to the President for referral to a Medical Assessor for assessment of WPI pursuant to ss 65 and 66 of the 1987 Act. The issue for determination concerns the nature and extent of such referral.
The following issues remain in dispute:
(a)    whether the applicant sustained a consequential condition of his left knee;
(b)    whether the applicant sustained a consequential condition of his digestive tract, and
(c)    the extent and quantification of the applicant’s entitlement to permanent impairment lump sum compensation.

EVIDENCE

Oral evidence

No party applied to adduce oral evidence nor cross-examine any witness.

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attachments;
(b)    Reply to Application to Resolve a Dispute and attachments, and
(c)    the report of Dr Greenberg dated 25 February 2021, which should correctly have been dated 25 February 2022, and which will be referred to as the report of
25 February 2022.

SUBMISSIONS

Both counsel made oral primary submissions which were recorded and also made written submissions.

Applicant’s oral primary submissions

In summary, Mr Perry submitted that, having particular regard to various evidence which he referred:
(a)    the Commission should be satisfied that the applicant is a credible witness and his evidence should be accepted; Dr Gehr expressed the opinion that the applicant presented in a straightforward manner; there is no indictment of the applicant’s credibility apart from Associate Professor Miniter referring to the applicant’s “protestations to the contrary”;
(b)    the Commission should be satisfied that the applicant had no relevant condition of his left knee nor digestive tract prior to him sustaining the accepted right knee injury on 7 September 2016;
(c)    the referral to the Medical Assessor should include a consequential condition to the left knee and a consequential condition being a disorder of the digestive tract;
(d)    the Commission should be satisfied that the applicant sustained a consequential condition of the left knee as a result of the accepted right knee injury: the accepted right knee injury was a significant injury; the applicant suffered ongoing significant right knee pain; the applicant underwent various treatments to his right knee which included three surgeries but experienced ongoing problems with his right knee; the applicant kept active; the applicant walked with an altered gait which caused the applicant’s left knee to become painful and swollen and a consequential condition of the left knee; the first notification of the applicant suffering left knee pain was on 11 December 2018; there is evidence that the applicant developed a problem with his left knee and he now has a decreased range of motion and muscle wasting which is consistent with a left knee consequential condition; Dr Gehr accepted that the applicant sustained a consequential condition of his left knee and Dr Gehr stated that the contralateral limb becomes symptomatic in 10 to 20% of cases; Dr Gehr’s opinion should be preferred and accepted to that of Associate Professor Miniter in that regard, and
(e)    the Commission should be satisfied that the applicant sustained a consequential condition being a disorder of the digestive tract as a result of the accepted right knee injury: the accepted right knee injury was a significant injury; the applicant suffered ongoing significant right knee pain; the applicant was required to take various analgesic medication for pain relief as a result of the accepted right knee injury; the applicant experienced subsequent symptoms of the digestive tract; the existence of another non-work-related disorder of the digestive tract does not preclude a finding that the applicant sustained a consequential condition of the digestive tract (in accordance with Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49, per Roche DP at [57] - [58]); the applicant is required to establish that the accepted right knee injury “materially contributed” to the need for the medication (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452); Dr Anthony Greenberg identified digestive tract pathology and diagnosed a consequential condition of the digestive tract as a result of ingesting the analgesic medication; Dr Greenberg’s opinion should be preferred and accepted.

Respondent’s oral primary submissions

In summary, Ms Goodman submitted that, having particular regard to various evidence which she referred:
(a)    the referral to the Medical Assessor should not include a consequential condition to the left knee nor a consequential condition being a disorder of the digestive tract;
(b)    the Commission should not be satisfied that the applicant sustained a left knee consequential condition: the respondent accepts that the applicant sustained a right knee injury on 7 September 2016 and that the applicant underwent right knee arthroscopic surgery on 15 December 2016, a revision procedure on
19 October 2017 and a third procedure being incision of the pre-patellar and incision of a cyst on 14 June 2022; abnormality of the left knee on examination can be a basis to find a left knee consequential condition; Dr Gehr did not explain a chain of causation between the accepted right knee injury and left knee condition, in particular he did not explain why there might be muscle wasting and what might cause it, he did not explain how there was muscle wasting but both leg measurements remained the same; he did not explain in what context the applicant experienced left knee pain (whether he was sitting or standing etc.) and he did not explain the context of the left knee symptoms what the left knee symptoms and complaints related to; Dr Gehr did not refer to imaging of the left knee; Dr Gehr did not explain the basis for his opinion that the ACL is deficient; Dr Gehr’s opinion is not persuasive and should not be accepted; A/Prof Miniter’s opinion should be preferred and accepted; the applicant first reported left knee symptoms some two years after the right knee injury, and
(c)    the Commission should not be satisfied that the applicant sustained a consequential condition of the digestive tract: the evidence does not sustain a finding that, on the balance of probabilities, the applicant’s gastric symptoms that the applicant has developed since the accepted right knee injury are a consequence of that injury; the applicant took various medications, only some of which were medications which were pain or analgesic medications; the analgesic medication consumed by the applicant subsequent to his injury is listed on page 7 of Dr Greenberg’s original report and includes Endone, Lyrica, Seroquel, Diazepam and Nortriptyline and included medication consumed by the applicant “of his own accord”; it is pain or analgesic medication which Dr Greenberg considered is responsible for development of the applicant’s GORD; Dr Sethi diagnosed Gastro-oesophageal Reflux Disease (GORD), which developed of its own accord and contributed to by the applicant’s obesity, and irritable bowel syndrome (IBS), which also developed of its own accord and was a common condition caused by hypersensitivity of the digestive tract; Dr Greenberg did not comment on causative aspects of the applicant’s gastrointestinal conditions, such as analgesic medication does not cause the applicant’s symptoms of reflux or diarrhoea, the continuation of the applicant’s gastrointestinal symptoms after the applicant ceased to take medication and, further, the role of the applicant’s obesity in the development of GORD; Dr Sethi’s opinion should be preferred and accepted.

Applicant’s oral submissions in reply

In summary, Mr Perry submitted that, the applicant seeks to admit into evidence a further report of Dr Greenberg dated 25 February 2022. Ultimately, the respondent consented to that document being admitted into evidence and the parties were given the opportunity to make further written submissions.

Applicant’s written submissions in reply

In summary, the applicant’s written submissions in reply were that:
(a) in relation to the alleged left knee consequential condition: Dr Yu observed the development of left knee pain in his report of 25 July 2019; it is not disputed that the onset of left knee pain followed the accepted injury to the right knee and the applicant suffered the effects of that injury which severely compromised the use of his right leg; it is also not disputed that the applicant underwent left knee surgery on 15 December 2016, 19 October 2017 and 14 June 2022; the lack of utility in the applicant’s right knee over that extended period has had the obvious result that the applicant has had limited use of a painful right leg; the inference that can strongly be drawn from those facts is that the injury to the right knee had the expected consequence of shifting the applicant’s weight to his left side, making a material contribution to the painful condition of the left knee; on that basis, the Commission should find that there is a consequential condition of the left knee which results from the accepted injury and which should be assessed by a Medical Assessor, and
(b) in relation to the alleged consequential condition of the digestive tract: both
Dr Sethi and Dr Greenberg diagnosed GORD; it is pain or analgesic medication which Dr Greenberg considered is responsible for development of the applicant’s GORD; the analgesic medication consumed by the applicant subsequent to his injury is listed on page 7 of Dr Greenberg’s original report and includes Endone, Lyrica, Seroquel, Diazepam and Nortriptyline; the expression that the applicant consumed medication “of his own accord” is inappropriate because the evidence demonstrates that the applicant was in significant pain on and from
7 September 2016 and his consumption of analgesic medication was a direct result of that pain; Dr Sethi’s evidence that the applicant developed GORD and IBS of their own accord is not persuasive because Dr Greenberg’s evidence is that long-term medication, clearly including analgesic medication, can lead to adverse gastrointestinal events; furthermore, Dr Sethi noted that the applicant experienced gastrointestinal symptoms “subsequently” to developing chronic knee pain after a work injury; the sequence is telling; the applicant did not have digestive tract symptoms prior to the accepted injury, however following the injury he ingested the analgesic medications which had the capacity to cause gastrointestinal symptoms and he then developed those symptoms; a chain of causation whereby the consumption of analgesic medication made necessary by the accepted injury has made a material contribution to the applicant’s gastrointestinal disorder is demonstrated by the uncontested proposition that analgesic medication can have the effect of causing gastrointestinal symptoms and Dr Greenberg’s conclusion that there is such a chain of causation.

Respondent’s written submissions in reply

In summary, the respondent’s written submissions in reply were that:
(a) in relation to the alleged consequential condition of the digestive tract:
Dr Greenberg’s report dated 25 February 2022 noted that when he first saw the applicant on 7 September 2021, the applicant was on Escitalopram (which is an anti-depressant) and Pantaprazole (which is generally prescribed for GORD). Therefore at the time that the applicant was first seen by Dr Greenberg on
7 September 2021, the applicant was not on any medication for pain relief;
Dr Greenberg did note however that approximately one month prior to seeing the applicant, the applicant had stopped the medication he had been taking except for Escalitopram; Dr Greenberg also noted that the applicant had previously been on a number of medications for pain relief, neuropathic pain and mood disorder including Lyrica, Seroquel, Endone, Diazepam and Nortriptyline; it is only Lyrica and Endone that is medication for pain relief (Seroquel, Diazepam and Nortriptyline treat other conditions).

FINDINGS AND REASONS

The law

It is not necessary for the applicant to establish that a consequential condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act nor that the employment was a substantial contributing factor within the meaning of s 9A of the 1987 Act. In Moon v Conmah Pty Ltd,[1] Deputy President Roche stated at [45]-[46]:[2]
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[1] [2009] NSWWCCPD 134.
[2] See also Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8, at [61].
In Bouchmouni v Bakhos Matta t/as Western Red Services,[3] Deputy President Roche stated:
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions…
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[3] [2013] NSWWCCPD 4.
The applicable legal test of causation was set out by the Court of Appeal in Kooragang,[4] where Kirby P (as his Honour then was) stated:
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
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.”[5]
[4] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[5] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated at [463]-[464]:
“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.”

Although the High Court in Comcare v Martin[6] raised some concerns about the common sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common sense approach still has place in the application of the legislation to the present case.
[6] [2016] HCA 43, at [42].
The Court of Appeal in Nguyen v Cosmopolitan Homes[7] held that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, and stated:
“(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 reasonably 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.”
[7] [2008] NSWC 246.
The applicant bears the onus of proof.

Factual background

The applicant’s credibility has not been disputed and the applicant was not cross-examined. The applicant’s evidence is largely consistent with treating medical evidence. Dr Gehr considered that the applicant presented in a straightforward manner. On that basis, I accept the general credibility of the applicant’s evidence.
The respondent accepts that the applicant sustained the accepted right knee injury and that the applicant underwent treatments for the accepted right knee injury which included three right knee surgeries.
On that basis, I accept the applicant’s evidence and the following factual background relevant to the issues which I am required to determine:
(a)    on 7 September 2016, the applicant sustained the accepted right knee injury which caused the applicant to experience significant right knee pain;
(b)    on 15 December 2016, as a consequence of the accepted right knee injury, the applicant underwent right knee arthroscopic decompression and debridement of ACL cyst under the hand of Dr Ivan Popoff, orthopaedic surgeon;
(c)    following the surgery and an initial period off work, the applicant returned to work, initially performing light duties, and the applicant experienced continued pain in his right knee;
(d)    in about September 2017, the applicant experienced a recurrence of extreme pain in his right knee and it became swollen. The applicant consulted his treating practitioner and an MRI of the right knee showed an ACL ganglion;
(e)    on 19 October 2017, as a consequence of the accepted right knee injury, the applicant also underwent a further right knee arthroscopic revision procedure ACL ganglion excision, under the hand of Dr Popoff;
(f)    from that time, the applicant has felt substantial and persisting pain in his right knee;
(g)    the applicant developed an infection in his right knee which delayed recovery;
(h)    the applicant underwent physiotherapy and hydrotherapy treatment;
(i)    in March 2018, the applicant developed significant right knee pain following a physiotherapy session in which a greater weight was inadvertently applied during a leg press exercise. An MRI of the right knee showed patella tendonitis and the applicant was referred to Dr Paul Annett, sports physician;
(j)    by mid-2018, as a consequence of the accepted right knee injury, the applicant continued to experience persistent right knee pain with a burning sensation and he had difficulties standing for more than 10 minutes. The applicant continued to undergo physiotherapy;
(k)    in March 2019, the applicant experienced a recurrence of pain in both knees and Dr Popoff diagnosed bilateral patellofemoral syndrome;
(l)    on 23 May 2019, the applicant was admitted into a hospital emergency department for lower back pain after he fell when his right knee gave way as he attempted to lift a table. The applicant was prescribed Panadol, Ibuprofen and Endone and discharged home;
(m)     on 18 June 2019, Dr Faiz Noore advised the applicant to attend work despite persistent pain including in his right knee, to benefit his mental health;
(n)    the applicant continued to experience ongoing right knee pain, and
(o)    on 14 June 2022, as a consequence of the accepted right knee injury, the applicant underwent further surgery being open incision of the pre-patellar, right knee arthroscopy and decompression of ACL cyst, under the hand of Dr Popoff.

Consequential condition of the left knee

Applicant’s evidence

The applicant’s evidence is that he commenced to experience left knee pain about a year after he sustained the accepted right knee injury because he was overusing his left leg and his posture was altered. The applicant stated that he continued to complain of left knee pain although he never underwent any treatment for his left knee pain.

Treating medical evidence

In a report dated 18 June 2018, Dr Robin Mitchell, injury management consultant, reported that the applicant’s left knee was normal.
In a clinical note dated 11 December 2018, Dr James Yu, pain medicine physician, recorded that the applicant complained of left knee pain.
In a letter dated 28 March 2019, Dr Ivan Popoff, orthopaedic surgeon, reported that the applicant’s right knee pain had flared up and he was getting similar pain in his left knee.
Dr Popoff diagnosed bilateral patellofemoral syndrome.
In a letter dated 4 April 2019, Dr James Yu, pain medicine physician, reported that the applicant presented with persistent right knee pain and also complained of worsening left knee pain, both rated at 8/10.
On 10 April 2019, an MRI of the left knee was reported to show no abnormal findings and no clear cause for the applicant’s knee pain was identified.
In a letter dated 25 July 2019, Dr James Yu, pain medicine physician, reported that the applicant also complained of left knee pain.
In a report dated 11 November 2021, Dr Gregory McGroder, consultant occupational physician, reported that the applicant walked with an antalgic gait favouring his right leg.
In a report dated 27 July 2022, Suzanne Middlemiss, titled musculoskeletal physiotherapist, reported that the applicant presented post-operative right knee ganglion removal, with marked pain in both legs, and limited range of motion in both hamstrings.
In a letter dated 17 August 2022, Dr Ivan Popoff, orthopaedic surgeon, stated that the applicant was complaining of pain in his left knee. Dr Popoff requested an MRI of the left knee.

Independent medical evidence

Associate Professor Paul Miniter, orthopaedic surgeon, independent medical expert qualified by the respondent

In a report dated 20 September 2023, Associate Professor Paul Miniter stated that, on examination, the applicant had a normal gait pattern. Associate Professor Miniter found no evidence of an injury to the applicant’s right knee and no explanation for his right knee pain. Associate Professor Miniter reported that at no stage during the assessment did the applicant mention his left knee. Associate Professor Miniter reported that, on examination, found the right knee range of motion to be slightly restricted to 120 degrees as compared to 130 degrees on the contralateral side, with excellent development of musculature. Associate Professor Miniter found the applicant’s left knee to be normal. Associate Professor Miniter reported that there was no evidence of injury to the applicant’s left knee. Associate Professor Miniter did not accept that the applicant sustained a consequential condition of his left knee. Associate Professor Miniter stated that a consequential knee condition is not accepted in medical literature, “particularly in this case where the patient at no stage mentioned his left knee and has a left knee which is normal to physical examination”. Associate Professor Miniter stated:
“There is no evidence of permanent impairment of either knee as a consequence of an alleged work incident on 7 September 2016. Despite his protestations to the contrary, the MRI scan of his knee taken in November that year does not demonstrate any significant pathology. Whole person impairment is not present as he has normal range of motion, a stable knee and no evidence of muscular wasting nor intra-articular fluid. I have made it very clear that I could see no evidence of injury and I could see no evidence of a reason to proceed to arthroscopic surgery.”
In relation to Dr Gehr’s report dated 24 May 2023, Associate Professor Miniter stated:
“Dr Gehr’s report has been reviewed. In my opinion, his report does not identify a cause for this man’s disability and the fact that he believes that his knee is ACL deficient shows a lack of understanding of the various scans associated with this man’s presentation and a misinterpretation of his physical examination. I have no explanation for this man’s claimed discomfort. There is no objective evidence to support the fact that he has any major pathology associated with the right knee. I feel sorely for him having been through separate surgical procedures, the indication for these procedures not being clear to this observer.”
In a supplementary report dated 16 February 2024, Associate Professor Miniter stated that on examination he found that the applicant had 120 degrees of flexion of the right knee, 130 degrees of flexion of the left knee and excellent quadriceps development. Associate Professor Miniter noted the difference between his findings on examination and Dr Gehr’s findings on examination which identified restricted range in motion and marked wasting of the quadriceps group and an ACL deficient knee, none of which Associate Professor Miniter identified.

Dr Eugene Gehr, orthopaedic surgeon, independent medical expert qualified by the applicant

In a report dated 24 May 2023, Dr Eugene Gehr stated that the applicant reported no previous knee problems prior to the accepted right knee injury on 9 September 2016.
Dr Gehr stated that the applicant’s right knee has remained symptomatic following the accepted right knee injury on 8 September 2016. Dr Gehr stated that the applicant also developed a problem with his left knee shortly afterwards and has persisting pain in that region. Dr Gehr stated that the applicant could not remember exactly when his left knee started bothering him. Dr Gehr stated that the applicant reported pain over the anteromedial aspect of the left knee, rated at 6/10, and left knee stiffness, especially in the morning.
Dr Gehr recorded that the applicant walked with an unsteady antalgic gait referred to right knee. On examination of the left knee, Dr Gehr found decreased range of motion with muscle wasting of the vastus medialis oblique muscle (VMO). Dr Gehr diagnosed left knee pain, with VMO muscle wasting with decreased range of motion. Dr Gehr assessed 4% WPI in respect of the applicant’s left knee.
In a supplementary report dated 30 October 2023, Dr Eugene Gehr, commented on the report of Associate Professor Paul Miniter dated 20 September 2023. Dr Gehr pointed out that at a combined meeting of the Australian Medico-Legal College/Royal Australasian College of Surgeons on 8 September 2019 it was stated that the contralateral limb will become symptomatic in 10% to 20% of cases. Dr Gehr noted that, whilst Associate Professor Miniter stated that the left knee was normal on examination, that was not Dr Gehr’s finding. Dr Gehr noted that on 11 December 2018, the applicant’s treating pain specialist,
Dr James Yu, recorded that the applicant had left knee pain. Dr Gehr disagreed with Associate Professor Miniter’s opinion in relation to the applicant’s right knee. Dr Gehr stated that the right knee remained significantly symptomatic and required ongoing care. Dr Gehr stated that Associate Professor Miniter had a basis for permanent impairment based on loss of range of motion of both knees. Dr Gehr maintained his diagnosis, comments, assessment and determination of permanent impairment in his previous report.

Consideration

I accept that the applicant did not have any left knee problems prior to the accepted injury because:
(a)    it is consistent with the applicant’s evidence and the applicant’s credibility and evidence in that regard has not been disputed;
(b)    it is consistent with the medical history recorded by the treating practitioners and the independent medical experts;
(c)    it is consistent with Dr Robin Mitchell’s report dated 18 June 2018 that the applicant’s left knee was normal, and
(d)    there is no evidence of any prior left knee problems.
I accept that the applicant experienced left knee pain at least from 11 December 2018, because:
(a) it is consistent with the applicant’s evidence and the applicant’s credibility and evidence in that regard has not been disputed, and
(b) it is consistent with the contemporaneous record of Dr James Yu, pain medicine physician, that the applicant then complained of such pain, which is the earliest contemporaneous record of the applicant complaining of left knee pain.
I accept that the applicant subsequently experienced ongoing left knee pain, because:
(a)    notwithstanding that Associate Professor Miniter stated in his report dated
20 September 2023 that the applicant did not mention his left knee at any stage during the assessment;
(b)    it is consistent with the applicant’s evidence and the applicant’s credibility and evidence in that regard has not been disputed;
(c)    it is consistent with the contemporaneous records of various treating practitioners that the applicant complained of ongoing left knee pain between 2018 and 2022, and
(d)    it is consistent with the evidence of Dr Eugune Gehr in his report dated
24 May 2023 that the applicant stated that he developed a problem with his left knee shortly after the accepted right knee injury and has persisting pain in the left knee region.
I accept that there is no significant abnormal pathology of the left knee demonstrated by imaging because:
(a) the MRI of the left knee on 10 April 2019 was reported to show no significant abnormal findings and no clear cause for the applicant’s pain was identified, and
(b) there is no evidence which demonstrates any significant abnormal pathology of the left knee.
However, the absence of significant abnormal pathology of the left knee demonstrated by imaging does not necessarily preclude a diagnosis of left knee pain.
It is somewhat challenging to reconcile the conflicting findings on examination of the independent medical experts.
I accept that the applicant developed an altered gait because of his accepted right knee injury because:
(a)    notwithstanding that Associate Professor Miniter stated in his report dated
20 September 2023 that the applicant on examination had a normal gait pattern;
(b)    it is consistent with the evidence of Dr Gregory McGroder, consultant occupational physician, in a report dated 11 November 2021, that the applicant walked with an antalgic gait favouring his right leg;
(c)    it is consistent with the evidence of Dr Eugene Gehr in his report dated
24 May 2023 that the applicant walked with an unsteady antalgic gait referred to the right knee, and
(d)    having regard to the evidence as a whole, I consider that it is consistent, logical and likely that the applicant would have experienced an antalgic gait referred to the right knee in the circumstances of the accepted factual background which I have set out above, in particular that the applicant experienced significant ongoing right knee pain and underwent treatment which included several surgical procedures involving his right knee between 2016 and 2022.
I accept that the applicant’s left knee range of motion was restricted following the accepted right knee injury because:
(a)    notwithstanding that Associate Professor Miniter stated in his report dated
20 September 2023 that on examination the right knee range of motion was slightly restricted to 120 degrees as compared to 130 degrees on the contralateral side, and further stated that the applicant had a normal range of motion;
(b)    it is consistent with the evidence of Suzanne Middlemiss, the treating musculoskeletal physiotherapist, in her report dated 27 July 2022, that the applicant had limited range of motion in both hamstrings;
(c)    it is consistent with the evidence of Dr Eugene Gehr in his reports dated
24 May 2023 and 30 October 2023 that, on examination, he assessed that the applicant had a range of motion of the left knee of 0 to 90 degrees, which is a decreased range of motion. Dr Gehr explained that the active range of motion was measured with the passive range of motion reserved for clinical and diagnostic verification, and
(d)    having regard to the evidence as a whole, I consider that it is consistent, logical and likely that the applicant would have would have experienced a restricted range of motion of the left knee in the circumstances of the accepted factual background which I have set out above, in particular that the applicant experienced significant ongoing right knee pain and underwent treatment which included several surgical procedures involving his right knee between 2016 and 2022 and that the applicant developed an antalgic gait.
I accept that the applicant had muscle wasting of the right leg VMO because:
(a)    notwithstanding that Associate Professor Miniter stated in his report dated
20 September 2023 that on examination the left leg had excellent musculature with no muscle wasting;
(b)    it is consistent with the evidence of Dr Eugene Gehr in his reports dated
24 May 2023 and 30 October 2023 that, on examination, he found the applicant’s left leg had muscle wasting of the VMO with a Q-angle of 10 degrees. Dr Gehr explained that all measurements were done with a goniometer and/or inclinometer and were repeated three times for consistency if required;
(c)    Dr Gehr’s findings are not inconsistent with the evidence of Dr Ivan Popoff, orthopaedic surgeon, 28 March 2019 that he diagnosed bilateral patellofemoral syndrome;
(d)    I do not accept the applicant’s submission that the evidence of Dr Gehr should not be accepted because he did not explain how there was muscle wasting but both leg measurements remained the same because, in the circumstances of this case including the applicant’s significant medical history, I do not consider that comparison between the legs is a necessary nor particularly helpful exercise, and
(e)    having regard to the evidence as a whole, I consider that it is consistent, logical and likely that the applicant would have would have experienced muscle wasting of the right leg VMO in the circumstances of the accepted factual background which I have set out above, in particular that the applicant experienced significant ongoing right knee pain and underwent treatment which included several surgical procedures involving his right knee between 2016 and 2022 and that the applicant developed an antalgic gait and had a restricted range of motion of the left knee.
I accept that there is no apparent alternative cause or explanation for the applicant’s left knee pain, apart from being consequential to the accepted right knee injury, because:
(a)    there is no evidence of any left knee injury;
(b)    there is no evidence of any alternative cause or explanation for the applicant’s left knee pain;
(c)    no alternative hypothesis was put forward for the cause of the applicant’s left knee pain, and
(d)    Associate Professor Miniter was unable to provide any explanation for the applicant’s left knee pain.
I do not accept the respondent’s submission that Dr Gehr’s opinion should be rejected on the ground that Dr Gehr did not review imaging of the applicant’s left knee because:
(a)    it is apparent from Dr Gehr’s report dated 24 May 2023, that he was aware that in a letter dated 4 April 2019, Dr Yu requested an MRI of the left knee although
Dr Gehr did not refer to the outcome of that MRI request;
(b)    it is apparent from Dr Gehr’s reports that his opinion was based on his physical examination of the applicant and review of clinical material which does not appear to have included the imaging of the applicant’s left knee;
(c)    Dr Gehr diagnosed left knee pain only and he did not base the diagnosis on any identified left knee pathology apart from his findings on examination, and
(d)    given that the imaging did not show any significant abnormality of the left knee I do not consider that it would have made any difference to Dr Gehr’s opinion.

I do not accept the respondent’s submission that Dr Gehr’s opinion should be rejected on the ground that he did not specifically articulate a chain of causation between the accepted right knee injury and left knee condition, in particular he did not explain why there might be muscle wasting and what might cause it, he did not explain in what context the applicant experienced left knee pain (whether he was sitting or standing etc.) and he did not explain the context of the left knee symptoms what the left knee symptoms and complaints related to because:
(a)    Dr Gehr’s diagnosis of left knee pain is consistent with the treating medical evidence that the applicant experienced persisting left knee pain over a number of years;
(b)    I consider that it is implicit from Dr Gehr’s evidence that it was his opinion that the applicant walked with an unsteady antalgic gait referred to the right knee as a consequence of the accepted right knee injury and consequential right knee pain and multiple surgeries over an extended period of time, and that Dr Gehr regarded that as the mechanism for the left knee pathology on examination and the applicant’s persisting left knee pain, and
(c)    I accept that, having regard to the evidence as a whole, the inference that can be logically and clearly drawn from those facts is that the accepted right knee injury had the consequence of shifting the applicant’s weight to his left side, making a material contribution to the painful condition of the left knee.
Whilst the medical evidence does present some challenges, I prefer and accept the opinion of Dr Eugene Gehr, because I am satisfied that as a matter of common sense, it provides a logical and likely explanation for the applicant’s persistent left knee pain having regard to the evidence as a whole and my findings and comments set out above, particularly in the circumstances where no other cause nor explanation for the applicant’s pain has been offered. I consider that Dr Gehr’s opinion is consistent with the treating medical evidence and particularly the opinion of Dr Ivan Popoff, orthopaedic surgeon, who diagnosed bilateral patellofemoral syndrome in March 2019. Further, I am satisfied that Dr Gehr’s opinion is consistent with accepted medical opinion referred to by Dr Gehr in his report that a consequential condition affecting the contralateral limb does occur in some cases.
Considering the evidence as a whole, I am satisfied on the balance of probabilities that, as a result of the accepted right knee injury, the applicant experienced significant and ongoing pain and disability of his right knee, which caused the applicant to develop an antalgic gait, and which in turn caused the applicant to experience left knee restrictions, VMO muscle wasting and pain consequential to the accepted right knee injury.
Applying the commonsense test to evaluate the causal chain, having regard to the evidence as a whole, I am satisfied on the balance of probabilities and find that the applicant sustained left knee pain and that a clear causal connection exists between that left knee pain and the accepted right knee injury. Accordingly, I am satisfied that the applicant sustained a left knee consequential condition which resulted from the accepted right knee injury.
On that basis, I am satisfied that the applicant has discharged its onus of proof and that the applicant sustained a consequential condition of his left knee, as a result the accepted right knee injury.

Consequential condition of the digestive tract

Applicant’s evidence

The applicant stated that he has consumed Lyrica, Seroquel, Endone, Endep, Diazepam, Atorvastin, OxyContin, Fexofenadine and Nortryptyline for pain relief, including neuropathic pain, caused by the accepted right knee injury. The applicant stated that due to the gastrointestinal and psychological side-effects of the pain medication he was consuming, he ceased consuming those medications and took simple analgesics, however he subsequently returned to consuming stronger medication because he did not find simple analgesics helpful.
The applicant stated that he now suffers from reflux as a consequence of consuming a high amount of pain medication to manage the symptoms of his work-related injury and he has been diagnosed with GORD. The applicant stated that he never experienced gastrointestinal problems prior to the accepted right knee injury.

Treating medical evidence

In a letter dated 1 May 2018, Dr James Yu, pain medicine physician, reported that the applicant was prescribed Lyrica and Endone for knee pain.
In a letter dated 4 April 2019, Dr James Yu, pain medicine physician, reported that the applicant was prescribed medications being Lyrica and Endep for bilateral knee pain.
In a letter dated 18 June 2019, Dr Faiz Noore, Pain Medicine Physician and Psychiatrist, reported that the applicant’s current medications included Oxycodone and Pregabalin, which are pain medications.
In a report dated 25 July 2019, Dr James Yu, pain medicine physician, reported that the applicant had ceased taking Lyrica and Endep medication.
On 15 February 2021, a colonoscopy and endoscopy was reported to show no pathological abnormality.
In a report dated 9 November 2021, Dr James Yu, pain medicine physician, reported that the applicant would undergo a trial of Spinal Cord Stimulation and that, during the trial, his analgesic requirement would be assessed.
In a report dated 8 February 2022, Dr James Yu, pain medicine physician, reported that the trial of Spinal Cord Stimulation did not provide the applicant with relief from his right knee pain and that the trial would conclude.
In a progress note dated 15 June 2022, Dr Asif Rasheed stated that the applicant had right knee arthroscopy and decompression surgery and had been discharged with medication which included Palexia, Endone and Lyrica.
In a progress noted dated 24 June 2022, Dr Ashif Rasheed stated that the applicant was taking Palexia and Celebrex and side effects of the medication was discussed.
In a letter dated 24 November 2022, Dr James Yu, pain medicine physician, stated that due to the applicant’s persistent right knee pain, the applicant had continued his analgesic medications at the same dose.
In a report dated 26 June 2023, Dr Anthony Greenberg, general and gastrointestinal surgeon, reported that the applicant was still being prescribed Lyrica.

Independent medical evidence

Dr Siddarth Sethi, gastroenterologist and hepatologist, independent medical expert qualified by the respondent

In a report dated 1 September 2023, Dr Siddarth Sethi, gastroenterologist and hepatologist, provided an independent medical opinion, qualified by the respondent, based on a consultation with the respondent on 25 August 2023. Dr Sethi noted that since the accepted injury the applicant was prescribed analgesic agents including Lyrica, Seroquel, Endone, Diazepam, Nortriptyline, Nurofen and Panadine rapid. Dr Sethi stated there was no past history of gastrointestinal symptoms however, that soon after commencing analgesic agents, the applicant developed gastrointestinal symptoms for the first time. Dr Sethi stated that the applicant experienced a restrosternal sensation radiating upwards associated with a hoarse voice and dry throat, nausea, vomiting and right sided stabbing abdominal pain with diarrhoea which was worsened by eating certain foods. Dr Sethi stated that the applicant’s gastrointestinal symptoms had not improved since ceasing several analgesic medications including Lyrica and Endone. Dr Sethi diagnosed GORD and IBS. Dr Sethi expressed the opinion that the GORD had developed of its own accord, being a common condition affecting around 15-20% of the general population and caused by laxity of the gastro-oesophageal sphincter valve and likely strongly contributed to by the applicant’s obesity, in accordance with accepted medical literature. Dr Sethi expressed the opinion that the IBS had also developed of its own accord, being a very common condition affecting around 15-20% of the general population and caused by visceral hypersensitivity of the gastrointestinal tract and noting that the applicant’s description of abdominal cramps and intermittent diarrhoea worsened by eating certain foods was strongly suggestive of IBS, in accordance with accepted medical literature. Dr Sethi expressed the opinion that the applicant’s obesity had also likely strongly contributed to the applicant’s IBS. Dr Sethi disagreed that the applicant’s prescribed analgesic medications had any causative role whatsoever in the development of the applicant’s gastrointestinal symptoms. Dr Sethi stated that the analgesic medications that the applicant was prescribed do not reasonably account for his gastrointestinal symptoms, and that they can potentially cause constipation but do not cause reflux or diarrhoea.
Dr Sethi also stated that the applicant’s gastrointestinal symptoms had persisted since he had ceased taking analgesic medications, which conclusively ruled out any role for his medications. Dr Sethi assessed 0% total WPI of the gastrointestinal tract, calculated on the basis of 0% WPI of the upper gastrointestinal tract and 0% WPI of the lower gastrointestinal tract.
In a report dated 5 February 2024, Dr Sethi commented on the report of Dr Greenberg dated 15 November 2023. Dr Sethi stated that he was fully aware that patients who require long term medication can potentially develop adverse gastrointestinal events but that is not applicable or relevant in the applicant’s case. Dr Sethi stated that the applicant had since ceased taking analgesic medications, yet his gastrointestinal symptoms were persisting, which conclusively ruled out any role for his medications. Dr Sethi expressed the opinion that Dr Greenberg had given excessive and undue importance to the applicant’s prescribed analgesic medications and had failed to consider the far more likely and realistic probability that he has developed GORD of his own accord. Dr Sethi disagreed with Dr Greenberg’s assessment of 1% WPI and stated that the correct figure is 0% WPI on the basis that the State Insurance Regulatory Authority (SIRA) guidelines clearly state that patients with symptoms alone should be correctly rated as 0% WPI and also on the basis that
Dr Greenberg had not reasonably considered the role of obesity in worsening GORD.
Dr Sethi acknowledged that Dr Greenberg has been a surgeon for 30 years but maintained that GORD is usually managed by physicians and not by surgeons. Dr Sethi stated that he had discussed the applicant’s lower gastrointestinal symptoms as he reported experiencing intermittent diarrhoea. Dr Sethi noted that Dr Greenberg had recorded that the applicant had some intermittent diarrhoea, which is a bowel problem. Dr Sethi also noted that
Dr Greenberg acknowledged that the applicant had ceased his medication one month prior to his interview and failed to explain how the medications could reasonably be responsible for the applicant’s GORD given that they had ceased.

Dr Anthony Greenberg, general and gastrointestinal surgeon, independent medical expert qualified by the applicant

In a report dated 25 February 2022, Dr Anthony Greenberg, general and gastrointestinal surgeon, provided an independent medical opinion, qualified by the applicant, based on a consultation with the applicant on 7 September 2021. Dr Greenberg noted that the applicant’s current medications included Escitalopram and Pantoprazole. Dr Greenberg noted that the applicant had previously taken a number of medications for pain relief, neuropathic pain and mood disorder including Lyrica, Seroquel, Endone, Diazepam and Nortriptyline. Dr Greenberg stated that the applicant had no past history of previous gastrointestinal problems. Dr Greenberg recorded a history of frequent and ongoing ‘reflux’ symptoms during the day and particularly at night when the applicant lay down.
Dr Greenberg diagnosed GORD, which he opined was multifactorial. Dr Greenberg stated that it is recognised that some of the applicant’s prescribed medications could either be the cause or aggravate GORD. Dr Greenberg noted that the applicant has required medication for pain relief, neuropathic pain and a mood disorder following the accepted right knee injury. Dr Greenberg opined that the applicant’s employment with the respondent has (more likely than not) been a contributing factor to the applicant’s GORD.
In a report dated 26 June 2023, Dr Anthony Greenberg, general and gastrointestinal surgeon, reported on his review of the applicant on 30 May 2023. Dr Greenberg stated that the applicant had previously been on a number of medications for pain relief and neuropathic pain, which included Lyrica and Endone, which he had ceased approximately one month prior to the interview, and the applicant had now been prescribed Lyrica. Dr Greenberg stated that Lyrica (Pregabalin) did report adverse gastrointestinal events, in particular: Xerostomia (4% to 9%), constipation (less than 10%), increased appetite (2% to 7%), nausea (5%), flatulence (less than 3%), vomiting (1% to 3%), abdominal distension (2%), abdominal pain (less than 1%) and gastroenteritis (less than 1%). Dr Greenberg stated that the applicant said that his gastrointestinal symptoms were unchanged since he was last reviewed. Dr Greenberg recorded various reported symptoms of the upper gastrointestinal tract, which included a persisting pain in his upper abdomen and frequent reflux symptoms, rated on average at 6 -7/10. On examination, Dr Greenberg found the applicant’s abdomen to be unremarkable apart from some non-specific tenderness in the right upper quadrant.
Dr Greenberg stated that the applicant’s weight had increased marginally from 98kg to 101kg and that he would be considered overweight. Dr Greenberg reported that the applicant was still being prescribed Lyrica. Dr Greenberg diagnosed GORD and a medication induced gastrointestinal motility disorder. Dr Greenberg concluded that the applicant’s current medication regimen is a result of his work-related injuries and that the applicant had required medication since 7 September 2017. Dr Greenberg stated that it is recognised that the applicant’s current medication regime can cause adverse gastrointestinal events and he expressed the opinion that it was more likely than not that was the cause of the applicant’s upper abdominal pain and GORD. Dr Greenberg assessed 1% WPI in respect of the upper gastrointestinal tract.
In a supplementary report dated 15 November 2023, Dr Anthony Greenberg, general and gastrointestinal surgeon, commented on the report of Dr Sethi dated 1 September 2023.
Dr Greenberg detailed his training and expertise as a gastrointestinal (colorectal) surgeon and his qualification to comment on gastrointestinal disease. Dr Greenberg stated that patients who require long term medication, as the applicant did, develop adverse gastrointestinal events. Dr Greenberg stated that he took the applicant’s obesity into account when assessing the applicant’s WPI. Dr Greenberg stated that the applicant’s gastrointestinal symptoms and clinical signs were consistent with GORD. Dr Greenberg stated that the adverse gastrointestinal events documented in his previous reports were widely reported in medical literature. Dr Greenberg stated that his previous reports were evidence based and documented in detail the accepted medical opinion of the majority of practising gastroenterologists, gastrointestinal surgeons and medical clinicians who treat injured patients and require medication to cope with their injuries. Dr Greenberg stated that the applicant injured his right knee and was prescribed medication for pain relief, neuropathic pain and as necessary for a consequential mood disturbance. Dr Greenberg noted that the applicant confirmed that he had no problems with his bowel and it was normal other than some intermittent diarrhoea. Dr Greenberg stated that he did not know why Dr Sethi discussed lower gastrointestinal symptoms (IBS) as the applicant had no abnormal bowel problems, noting that the applicant’s bowel function was not in dispute and was assessed at 0%. Dr Greenberg confirmed his opinion that the applicant’s GORD is multifactorial and that the applicant’s prescribed medications could, on the balance of probabilities, either be the cause or aggravate GORD. Dr Greenberg confirmed that he assessed 1% total WPI, calculated on the basis of 1% WPI for the upper gastrointestinal tract and 0% WPI for the lower gastrointestinal tract.

Consideration

I accept that the applicant developed GORD subsequent to the accepted right knee injury because:
(a) both Dr Sethi and Dr Greenberg diagnosed GORD, and
(b) that diagnosis is consistent with at least some of the applicant’s gastrointestinal symptoms, particularly symptoms of reflux.
The critical issue which is necessary to determine is what is the cause of the applicant’s GORD. Dr Sethi expressed the opinion that the GORD had developed of its own accord and had no causal relationship with the applicant’s accepted right knee injury. Dr Greenberg expressed the opinion that the cause of the development of the applicant’s GORD was multifactorial and that the pain relief and analgesic medication that the applicant was prescribed to treat the accepted right knee injury was, at least, a contributing factor to the development of the GORD.
I accept that the applicant did not have any gastrointestinal problems prior to the accepted injury because:
(a)    it is consistent with the applicant’s evidence and the applicant’s credibility and evidence in that regard has not been disputed;
(b)    it is consistent with the medical history recorded by the independent medical experts, and
(c)    there is no evidence of any prior gastrointestinal problems.
I accept that subsequent to the accepted right knee injury, the applicant commenced to experience, for the first time various, frequent and ongoing gastrointestinal symptoms including symptoms of reflux being restrosternal sensation radiating upwards associated with a hoarse voice and dry throat, nausea, vomiting and persistent abdominal pain, because:
(a)    it is consistent with the applicant’s evidence and the applicant’s credibility and evidence in that regard has not been disputed;
(b)    it is consistent with the medical history recorded by the independent medical experts, and
(c)    it is consistent with the treating medical evidence, in particular the report of a colonoscopy and endoscopy on 15 February 2021.
I accept that there is no evidence of imaging which shows any gastrointestinal pathological abnormality, because:
(a) as noted above, the colonoscopy and endoscopy on 15 February 2021 was reported to show no pathological abnormality, and
(b) there is no evidence of any other imaging.
I accept that subsequent to the accepted right knee injury, and as a consequence of that injury, the applicant consumed prescribed analgesic and pain relief medication which included Lyrica, Seroquel, Endone, Diazepam, Nortriptyline, Nurofen and Panadine rapid (the prescribed medications) because:
(a) the respondent accepts that the prescribed medications were prescribed as noted by Dr Sethi in his report dated 1 September 2023, and
(b) it is consistent with the applicant’s evidence, the treating evidence and the evidence of Dr Greenberg.
I accept that the prescribed medications have the potential to cause various symptoms of the upper gastrointestinal tract, including nausea, vomiting and abdominal pain, because:
(a)    the independent medical experts both gave evidence to that effect;
(b)    I accept the evidence of Dr Greenberg that Lyrica (Pregabalin) reported adverse gastrointestinal events, in particular: Xerostomia (4% to 9%), constipation (less than 10%), increased appetite (2% to 7%), nausea (5%), flatulence (less than 3%), vomiting (1% to 3%), abdominal distension (2%), abdominal pain (less than 1%) and gastroenteritis (less than 1%). I accept that evidence because I consider that the acknowledgement by Lyrica of such side effects of the prescribed medication is particularly persuasive, and
(c)    Dr Sethi stated that he was fully aware that patients who require long term medication can potentially develop adverse gastrointestinal events. Dr Sethi stated that the analgesic medications that the applicant was prescribed do not reasonably account for his gastrointestinal symptoms, and that they can potentially cause constipation but do not cause reflux or diarrhoea. However,
Dr Sethi did not address Lyrica’s acknowledgement of the specific side effects referred to above.

However, I note that those above adverse gastrointestinal events acknowledged by Lyrica do not specifically include GORD nor reflux, although they do list some of the applicant’s gastrointestinal symptoms, specifically nausea, vomiting and abdominal pain. Dr Greenberg did not refer to specific medical literature which specifically evidenced that GORD was a potential side effect of the prescribed medication.
I accept that the applicant’s GORD, at least in part, developed of its own accord, because:
(a)    Dr Greenberg accepted that the development of the applicant’s GORD was multifactorial;
(b)    I accept Dr Sethi’s evidence that GORD is a common condition affecting around 15-20% of the general population and caused by laxity of the gastro-oesophageal sphincter valve and likely strongly contributed to by the applicant’s obesity, in accordance with accepted medical literature, and
(c)    having regard to the evidence as a whole, including the applicant’s obesity which both Dr Sethi and Dr Greenberg accepted as a likely contributing factor, I consider that it is logical and likely that the applicant’s GORD developed of its own accord.
I do not accept that the prescribed medications that the applicant was prescribed to treat the accepted right knee injury were a contributing factor to the GORD, because:
(a)    whilst the applicant’s persisting gastrointestinal symptoms include nausea, vomiting and abdominal pain, they also significantly include reflux, which is a critical element of the diagnosis of GORD;
(b)    the adverse gastrointestinal events acknowledged by Lyrica do not specifically include GORD nor reflux, although they do list some of the applicant’s gastrointestinal symptoms, specifically nausea, vomiting and abdominal pain;
(c)    Dr Greenberg did not refer to specific medical literature which evidenced that GORD was a potential side effect of the prescribed medication;
(d)    Dr Greenberg did not specifically address nor explain the continuation of the applicant’s gastrointestinal symptoms one month after cessation of the prescribed medication, and
(e)    having regard to the evidence as a whole,and applying the commonsense test to evaluate the causal chain, I am satisfied that Dr Sethi’s evidence provides a logical and likely explanation for the development of the applicant’s GORD and his opinion that the prescribed medication did not have any causative relationship with the GORD. In the circumstances, I prefer and accept the evidence of Dr Sethi in relation to the cause of the applicant’s GORD.
I note that Dr Sethi also diagnosed IBS which he considered was the cause of some of the applicant’s symptoms such as diarrhoea. That is not part of the applicant’s claim, which relates solely to the diagnosis of GORD. I note that it is clearly apparent from Dr Sethi’s report that the diagnosis of IBS does not preclude the diagnosis of GORD.
Whilst the medical evidence does present some challenges, for the reasons set out above, I prefer and accept the opinion of Dr Sethi.
Applying the commonsense test to evaluate the causal chain, having regard to the evidence as a whole, I am not satisfied on the balance of probabilities that the applicant has discharged its onus of proof to establish that a clear causal connection exists between the applicant’s GORD and the accepted right knee injury.
Accordingly, I am not satisfied that the applicant sustained a consequential condition of the digestive tract consequential to the accepted right knee injury.

Referral to a Medical Assessor

Having made these findings, it is appropriate for me to remit the matter to the President to be referred to a Medical Assessor for an assessment of WPI in respect of the accepted right knee injury and a consequential condition of his left knee.
All of the materials admitted in the proceedings will be included in the referral.

SUMMARY

Accordingly, I make the following finding:
(a) the applicant sustained a consequential condition of his left knee, as a result of the accepted right knee injury sustained on 7 September 2016, and
(b) the applicant did not sustain a consequential condition of his digestive tract, as a result the accepted right knee injury sustained on 7 September 2016.
On that basis, it is appropriate to order as follows:
(a)    The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury:        7 September 2016 (with consequential condition).
Body parts:            right lower extremity (knee); TEMSKI/scarring;
respiratory system (sleep disorder consequential condition), and left lower extremity (knee consequential condition).
Method:                  whole person impairment.
(b)    The materials to be referred to the Medical Assessor are to include:
(i)Application to Resolve a Dispute and attachments;
(ii)Reply to Application to Resolve a Dispute and attachments, and
(iii)the report of Dr Greenberg dated 25 February 2021 (which should correctly have been dated 25 February 2022).

[2025] NSWPIC 4

7 January 2025