Lazim v All Builds Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lazim v All Builds Pty Ltd [2025] NSWPIC 56
APPLICANT:	Atif Lazim
RESPONDENT:	All Builds Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	19 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Claim for cost of bilateral hernia repair surgery; dispute as to whether hernias caused by injurious event as claimed; the applicant suffered a serious fall at work which caused back and shoulder injuries, with loss of consciousness, and a concussion; he was hospitalized for several days after the injury; approximately six months after the fall and against a background of ongoing serious lumbar spine and shoulder issues the applicant complained of groin pain and underwent ultrasounds which revealed the presence of bilateral inguinal hernias; the respondent denies the hernias were caused by the fall; Held – the primary liability question in this matter is one of causation and accordingly a common sense evaluation of the evidence must be undertaken; Kooragang Cement Pty Ltd v Bates followed; the applicant’s evidence that he was focusing on his back and shoulder symptoms in the initial stages of his recovery is uncontested and is supported by the respondent’s IME who noted inguinal hernias are often undiagnosed and/or asymptomatic for lengthy periods after they develop; a lack of complaint to treating practitioners is not of itself fatal to a claim of injury to a given body system; Baker v Southern Metropolitan Cemeteries Trust; corroboration is not necessary to accept an asserted fact in a civil case; Chanaa v Zarour; the applicant’s IME provides a substantive basis for accepting the hernias were caused by the fall at issue; the respondent’s IME provides a simple assertion they were not caused by the fall without positing why such an event could not have done so; a commonsense evaluation of the causal chain supports a finding of injury in the nature of bilateral inguinal hernias as alleged; the evidence discloses the only effective way to treat hernias is to reduce them via surgery as claimed; as such the surgery is reasonably necessary as a result of the injury; respondent to pay the costs of and incidental to the proposed surgery.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered injury in the nature of bilateral inguinal hernias in the course of his employment with the respondent on 6 April 2022. 2. The surgery proposed by Dr Zahid in the nature of laparoscopic repair of bilateral inguinal hernias is reasonably necessary as a result of the applicant's injury. 3. The respondent is to pay the costs of and incidental to the bilateral inguinal hernia surgery. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

On 6 April 2022, Atif Lazim (the applicant) suffered a serious fall in the course of his employment with All Builds Pty Ltd (the respondent). On that occasion the applicant was carrying a large bearer approximately 8m long when his foot was caught on some pipes on the ground, causing him to fall and lose consciousness. He awoke in hospital.
There is no issue the injurious event took place, and that the applicant suffered injuries to his back and shoulder, together with a loss of consciousness and associated concussion. Those injuries are not in dispute in these proceedings, though their presence is relevant to the issues for determination, for reasons which are set out below.
The applicant also claims he suffered bilateral inguinal hernias in the fall at issue, which is denied by the respondent. There is no question as to the existence of the hernias, however, the respondent alleges they were not caused in the fall. Additionally, in the event the hernias were caused by the fall, the respondent says the proposed surgery is not reasonably necessary.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered bilateral inguinal hernias in the fall at issue, and
(b) if the answer to (a) above is in the affirmative, whether the proposed surgery is reasonably necessary.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

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.
The parties attended a hearing before me on 18 February 2025. Mr Necovski of counsel appeared for the applicant. Mr Morgan of counsel appeared for the respondent.

EVIDENCE

Written evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (Application);
(b)    Reply and attachments, and
(c)    applicant's Application to Lodge Additional Documents (ALAD) and attachments dated 12 February 2025.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered the hernias as alleged

The applicant must prove his bilateral hernias were caused by his work injury. The hernias are claimed to have been directly caused by the injurious fall at work. They are not pleaded by way of a disease injury or aggravation of a disease.
In his statement, the applicant sets out the circumstances of his fall, although in fairness to him the evidence is quite scant owing to his loss of consciousness and associated memory loss. The applicant states:
"9.I was carrying a large bearer about eight metres long when my foot got caught on some pipes on the ground.
10.I fell and lost consciousness and when I came to, I was in the Royal North Shore Hospital.
11.I am not sure exactly how I fell because I lost consciousness and had memory issues regarding the incident, however, I had been told that I fell onto my back and the timber fell on top of me.
12.I noticed the pain in my groin in around October 2022.
13.I think the reason why the pain in my groin became noticeable after my injury was because the pain in my back and shoulder was more severe at the time of my injury. It masked it for a period of time."
The applicant sets out his post-injury treatment as follows:
"14.I was in hospital at Royal North Shore for five days before I self-discharged.
15.I ended up going back to Liverpool Hospital due to the pain and was discharged two days after that.
16.I underwent multiple CT scans which showed a disc protrusion.
17.I first attended workers' doctors, my nominated treating doctor, Dr Lim after my injury on 24 May 2022.
18.When I first attended, I reported pain to my neck, shoulder and lower back. I also had memory issues following the incident with severe headaches.
19.Dr Lim diagnosed me with 'post-concussion symptoms; ? functional neurological disorder; cervical spine strain; bilateral shoulder strain; lumbar spine radiculopathy, L5/S1 bulging disc with S1 nerve roots impingement; adjustment disorder.
20.I was referred to a spinal surgeon, psychiatrist and psychologist. The psychiatrist, it because I was on tramadol for the pain.”
The applicant was referred to Dr Singh in relation to his spinal injuries. He consulted Dr Singh on 4 August 2022.
On 6 October 2022, the applicant had an ultrasound of his groins which showed the bilateral inguinal hernias. He was referred for that study by Dr Alkurdi from Liverpool Healthcare Medical Centre. No documents from Dr Alkurdi are attached to the Application. It is, therefore, unclear when the applicant first made substantive complaints in relation to his groins to that doctor. However, it is reasonable to infer it would have been a short time before the bilateral ultrasound was undertaken.
For the applicant, Mr Necovski submitted the presence of the hernias is undisputed. He impressed upon the Commission the applicant's explanation for the delay in reporting issues with his groins, noting it was not unusual for persons who suffer multiple injuries to focus on one or more body systems before becoming aware of issues with others.
The question of the aetiology of the applicant's bilateral hernias is one of causation. In determining the cause of an injury or condition, the Commission must apply a commonsense test of causation. In the workers compensation context, the appropriate test was set out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), where his Honour said:
"The result of the cases is that each case where causation is an 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 a subsequent death or injury 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 compensation."
For the respondent, Mr Morgan submitted a commonsense evaluation of the evidence would not satisfy the Commission the applicant had discharged the onus of proof as, through no fault of his own, he was unable to remember the mechanism of the fall. Mr Morgan also noted the applicant’s medical case relies on the theory on causation set out in the report of his independent medical examiner (IME) Dr Rapaport. Mr Morgan submitted the Commission would prefer the views of the respondent's IME Dr Edwards, who noted inguinal hernias are common in adult males, and frequently go undiagnosed for lengthy periods as they are frequently asymptomatic for a long time after they develop.
Dr Edwards was of the view the hernias were not caused by the fall at issue. The respondent's case is the inguinal hernias are incidental findings and not linked to the fall.
In his report dated 16 March 2024, Dr Rapaport took a history from the applicant concerning the fall and subsequent admission to hospital. In relation to the hernias, the relevant history from Dr Rapaport was as follows:
"Mr Lazim noted some left testicular pain that prompted him to draw his GP's attention to that region and an ultrasound examination of the groin was conducted and apparently revealed a bilateral inguinal hernia condition. There are multiple file notes in the GP records that reference bilateral groin pain and an ultrasound ordered to investigate that issue. The earliest reference to the bilateral groin pain and bilateral hernia diagnosis is November 2022, some seven months following the work injury."
After carrying out an examination and noting the relevant investigations, Dr Rapaport noted:
"Left groin discomfort while present intermittently is mild and overshadowed by more severe pains in the lower back and shoulder regions. Mr Lazim is limited in his ability to lift or strain because the limiting factor that prevents him from doing so is the back pain that is aggravated by attempts at such injury."
Dr Rapaport then provided the following opinion:
"My physical examination confirmed bilateral cough impulse consistent with the previously made diagnosis of bilateral inguinal hernia. They are small and the symptoms caused by their presence are overridden by the intensely symptomatic somatic and spinal pain suffered by your client.
I have read the report of Dr Kim Edwards who confirms the clinical diagnosis of bilateral inguinal hernia but posits that the condition is generally common in men and is an incidental finding unrelated to the injury suffered by your client.
Dr Edwards has expressed his view that there is no evidence of the hernia condition being present before 6 April 2022 causing an objective observer to therefore conclude that the hernia condition developed either on that same day of injury or alternately in the post-injury period when your client was convalescing from his injury sustained in the accident.
Despite a personal view expressed by Dr Edwards that raised intraabdominal pressure does not play a part in the genesis of abdominal wall herniation, a view that I suggest is out of step with the majority of his peers who perform hernia surgery, Dr Edwards seems to contradict this theory by acknowledging that ‘. . . conditions that lead to chronically-increased abdominal pressure such as obesity, ascites and pregnancy are associated with hernia formation.'
For acute situations where there is a sudden elevation of intraabdominal pressure, Dr Edwards posits that the groin shutter mechanism works as a protective measure to prevent hernia formation ‘the exception to the general trend is the patient who overloads his/her abdominal wall for the amount of muscular strength that he/she possesses.'
Based on the statements Dr Edwards has made, I feel that he could be persuaded to accept the following scenario of likely events:
‘Mr Lazim was carrying a heavy load of wet timbers that he had protested to his supervisors was too heavy to carry on his own.
Mr Lazim tripped over an obstruction on the ground, causing him to lose control of his load.
There was a sudden tensing up with contraction of his core abdominal muscle and elevation of intraabdominal pressure as he fell towards and then impacted the hard ground.
The tearing of the transversalis fascia in the posterior inguinal canal and extrusion of extraperitoneal tissue through the defects caused, was initiated by the tensing up of core abdominal muscles, with the resulting elevation of intraabdominal pressure and the impact of the heavy fall to the ground.
The onset of a direct inguinal hernia occurred at the point of Mr Lazim hitting hard ground.’
Dr Edwards adds further to the likelihood of the scenario that I have posited when he states that 'most abdominal hernias are asymptomatic'. Therefore, some delay in notification following the causative trauma that produced a bilateral inguinal hernia is unsurprising.
It is, therefore, not considered unusual that symptoms of abdominal wall herniation were first apparent some seven months following Mr Lazim's injury, overshadowed as they were by multiple other painful sources of injury suffered by your client.
I conclude that more probably than not, the present condition of bilateral inguinal hernia was caused by the sudden elevation of intraabdominal pressure occasioned by the tensing of the core muscles of the abdominal wall as your client lost control of a heavy load that he was carrying and fell heavily to the ground. It is likely that there was a tearing injury to the posterior wall of the inguinal canal and extrusion of extraperitoneal tissue through the defects created thereby."
For the respondent, Mr Morgan submitted Dr Rapaport's theory was built almost exclusively on supposition. Nevertheless, Dr Rapaport is the only medical expert in the matter who has taken a detailed history of the circumstances of the fall and provided a theory as to its potential impact in relation to the hernias. Whilst I have no difficulty accepting Mr Morgan's submissions that there was no mention of groin or hernia problems to the applicant's treating practitioners over the course of many months after the fall, the respondent's own IME, Dr Edwards potentially explains this phenomenon by noting inguinal hernias are often asymptomatic and therefore remain undiagnosed for a lengthy period of time.
Accepting Dr Edwards' views as to the lack of symptoms which often arise from inguinal hernias, it seems this proposition cuts both ways. On the one hand, it is potentially suggestive of the inguinal hernias having been present for some time before the fall at issue. By the same token, it seems equally plausible, absent explanation to the contrary, that the hernias could have been caused in the fall but the symptoms were either not present or so slight as to have only been noticed by the applicant several months afterwards.
It should also be noted that an absence of complaint to a treating practitioner for even a lengthy period of time is not of itself determinative of whether ran injury has taken place. As Deputy President Roche noted in Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD56 (Baker):
“80.   It was correct that Mr Baker did not complain to his general practitioner of bullying until 26 September 2013. However, that fact was not determinative of whether Mr Baker suffered a psychological injury as a result of events that were up to and including that date. The lack of complaint to a general practitioner is a factor an Arbitrator is entitled to take into account in considering whether to accept a worker’s assertion that certain events occurred and that they affected the worker in a certain way.
81.    However, on its own, the absence of such a complaint to Mr Baker’s general practitioner until 26 September 2013 was not decisive of whether the events complained of caused a psychological injury and the arbitrator erred in treating it as if it was. That is especially so in circumstances where there is evidence not referred to by the Arbitrator, that Mr Baker had complained to the respondent’s representatives of bullying and harassment from as early as July 2012.
82.    Whether Mr Baker suffered a psychological injury as a result of the events at work up to 26 September 2013 depended on an assessment of all the evidence. This included the evidence of the co-workers that there were significant issues between them and Mr Baker that created conflicts at work, … and the evidence from Dr Stevens. In the circumstances, it was not appropriate to conclude that Mr Baker suffered no injury solely because he did not complain of bullying to a general practitioner until 26 September 2013.
83.    The Arbitrator’s conclusion, on this issue, really amounts to a finding that he did not accept Mr Baker suffered a psychological injury because there was no corroboration of his complaints, from a general practitioner, until 26 September 2013. There is no requirement for corroboration in a civil case (Chanaa v Zarour [2011] NSWCA199 at [86]) and, to the extent that the Arbitrator thought that such corroboration was necessary, he erred.
84.    Moreover, as Beazley JA (as her Honour then was) (Campbell and Macfarlan JJA agreeing) explained in Patrech v State of New South Wales [2009] NSWCA118 at [77], [91] and [105], it is unlikely that it is necessary (or even a relevant consideration) that a person must identify themselves as psychologically ill (that is, to have understood or believed his or her symptoms to constitute a mental illness) to find a psychological illness. The true question is whether the person was suffering symptoms, which properly diagnosed, constitute an illness.”
Although Baker dealt with a psychological injury, the Deputy President’s comments are, in my view, equally applicable to matter involving multiple physical injuries. Each case must be determined by reference to its own facts.
As noted, the applicant carries the onus of proof. From a medical perspective, Dr Rapaport provides an explanation as to how the hernias could have been caused by the fall at issue. For his part, Dr Edwards does not.
Dr Edwards provides lengthy extracts from academic material concerning inguinal hernias. Relevant risk factors include (but are not limited to) smoking, age and family history. Nevertheless, Dr Edwards does concede undiagnosed hernias are found in approximately 20% of cases where radiological investigation is carried out for other reasons. Dr Edwards stated:
"The cause of inguinal hernias remains uncertain. Risk factors are described, such as smoking and a positive family history, and it is thought that sustained increases in intraabdominal pressure may be a risk factor. Kinge et al write 'the linear rise of prevalence rates observed in adults (years 15 plus) most likely are not explained by one factor but rather indicate a multifactorial biological problem' . . .
Kinge et al write 'it is generally believed that occupations requiring heavy lifting and severe straining are more frequently associated with the development of hernia, however, the empirical data supporting this view are scarce.'”

It appears from this commentary that Dr Edwards is leaving open the prospect that the applicant's hernias may have been caused by the nature and conditions of employment, which was plainly heavy and repetitive. However, the applicant does not plead his case as a disease or aggravation injury. Rather, it is pleaded as a frank injury.
In terms of the possibility of the fall causing the bilateral hernias, Dr Edwards simply states the diagnosis does not relate to the injury. He does not provide a substantive reason as to why the mechanism of the fall could not have caused the two hernias at issue.
When specifically asked whether the applicant's employment was a substantial contributing factor to the hernias, Dr Edwards stated, "the only factor of relevance, in my opinion, is that it is more likely than not this or a similar condition would have happened around the same time in Mr Lazim's life if he had not been in his employment." But with respect to Dr Edwards, that does not address the potential impact of the fall itself as a causal factor of the fall.
The parties also addressed the question of surveillance material before the Commission which tended to demonstrate the applicant having a greater degree of functioning than that demonstrated at his medical examinations. This may well be the case; however, it does not impact the question of the causation of the inguinal hernias.
There is no issue that hernias are present, and that the applicant first complained of groin symptoms approximately six months after the injury. Nevertheless, the applicant was also out of work during this period and not engaging in heavy activities.
This being so and given the quite appropriate concession by Dr Edwards that hernia symptomology may be either slight or non-existent for a significant period of time, in my view the preponderance of the medical evidence supports a finding that the applicant suffered his bilateral inguinal hernias in the fall at issue.
On balance, I prefer the view of Dr Rapaport to that of Dr Edwards, as the former is the only expert who specifically addresses the fall in question and posits a substantive opinion as to how such fall may have caused the applicant's injury. That hypothesis is not rebutted by Dr Edwards or by any other medical practitioner, and on balance I accept it.
For these reasons, there will be a finding the applicant suffered his bilateral inguinal hernias in the fall at issue.

The reasonable necessity of the surgery

Mr Morgan submitted the surveillance material would assist in persuading the Commission that the treatment is not reasonably necessary, as it demonstrates a degree of functioning on the part of the applicant greater than that which he has exhibited both at the hearing and upon medical examination.
However, even if that submission was to be accepted, I note the respondent's own IME categorically states the only treatment which can repair inguinal hernias is the surgery proposed. That is, there is no form of conservative treatment which will lead to a cure.
In examining whether the treatment ought to be allowed or be forborne, I am mindful of the non-exhaustive indicia set out by Deputy President Roche in Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab). In examining the indicia, it is apparent the treatment is appropriate and no alternatives are available which are potentially as effective as the proposed surgery. There is also no suggestion the cost of the proposed treatment is prohibitive, nor is there any challenge to the proposition that it is likely to be successful.
Reference was also made to the fact that the applicant's IME indicated the repair of the hernias was reasonably necessary but not urgent. Urgency is not a necessary requirement to find reasonable necessity.
In my view, having found the hernias were caused by the fall at issue, the evidence as to whether the proposed surgery is reasonably necessary is overwhelmingly favourable to the applicant, and I therefore, find the proposed surgery is reasonably necessary, and the respondent will be ordered to pay the costs of and incidental to it.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page one of the Certificate of Determination.

[2025] NSWPIC 56

19 February 2025