Littlewood v Mario Tascone & Jenny Truong
[2024] NSWPIC 61
•14 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Littlewood v Mario Tascone & Jenny Truong [2024] NSWPIC 61 |
| APPLICANT: | Bud William Littlewood |
| RESPONDENT: | Mario Tascone and Jenny Truong |
| MEMBER: | Karen Garner |
| DATE OF DECISION: | 14 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; application for lump sum permanent impairment compensation pursuant to section 66; applicant had accepted injury to lumbar spine, with a deemed date of injury of 31 January 2017; whether the applicant sustained a consequential condition of the digestive system; Held – the applicant sustained a consequential condition of the digestive system, as a result the accepted injury to the lumbar spine; the matter be remitted to the President to be referred to a Medical Assessor for an assessment of whole person impairment of both the lumbar spine and the digestive system. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained a consequential condition of the digestive system. The Commission orders: 2. The matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows: Date of injury: 31 January 2017 (deemed) Body parts: lumbar spine digestive system Method: whole person impairmen.t 3. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute and attachments, and (b) Reply to Application to Resolve a Dispute and attachments. |
STATEMENT OF REASONS
BACKGROUND
Bud William Littlewood (the applicant) is 31-years-old and was employed Mario Rascone and Jenny Truong (the respondent) as a storeman.
On 31 January 2017, the applicant sustained injury to his lumbar spine when he was pushing cages of heavy stock at work.
On 3 February 2017, the applicant notified the respondent of the injury to his lumbar spine.
The applicant made a claim for permanent impairment lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 17% total whole person impairment (WPI), calculated on the basis of 15% WPI of the lumbar spine and 2% WPI of the gastrointestinal tract. The applicant claimed that he sustained a consequential condition of the gastrointestinal tract related to the lumbar spine injury.
By notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer accepted that the applicant sustained injury to his lumbar spine on 31 January 2017. However, the insurer disputed liability for permanent impairment compensation on the grounds that: firstly, it disputed that the applicant sustained a consequential gastrointestinal condition as a result of the accepted lumbar spine injury; and secondly, the accepted lumbar spine injury has not resulted in greater than 10% permanent impairment as required by s 66(1) of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The applicant initiated proceedings in the Personal Injury Commission (the Commission) by an Application to Resolve a Dispute (Application) lodged on 14 November 2023, whereby he claimed permanent impairment compensation of $42,443.48 pursuant to s 66 of the 1987 Act, calculated on the basis of 17% total WPI in respect of the lumbar spine and digestive system. The respondent lodged a Reply to the Application (Reply) on 5 December 2023.
At a hearing before me on 22 January 2024, the applicant was represented by Mr Paul Stockley, counsel, instructed by Mr John Elhage of Penrose Lawyers. The respondent was represented by Mr Stuart Grant, counsel, instructed by Ms Brieanna Gallagher of Hall & Wilcox 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 accepts that the applicant sustained injury to his lumbar spine in the course of his employment on 31 January 2017.
The following issues remain in dispute:
(a) whether the applicant sustained a consequential condition of the digestive system as a result of the accepted lumbar spine injury, and
(a) if relevant, the degree of permanent impairment resulting from such injury and consequential condition.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application with attached documents, and
(b) Reply with attached documents.
Oral evidence
No party applied to adduce oral evidence or cross-examined any witness.
Applicant’s statement
The applicant gave evidence by way of a statement dated 24 March 2023. The applicant stated that he was diagnosed with a disc prolapse in his lumbar spine after he injured his lower back at work on 31 January 2017. The applicant stated that he underwent a microdiscectomy at L4/5 on the left side on 29 March 2017, under the care of Dr Ashish Diwan.
The applicant stated that he has continued to experience debilitating pain in his lower back since the lumbar spine injury on 31 January 2017, despite the surgery on 29 March 2017 and various physiotherapy and other treatment including a pain management program.
The applicant stated that he consumed a lot of medication since the injury to his lumbar spine on 31 January 2017, which has caused problems with his gastrointestinal system and hemorrhoids. The applicant stated that he noticed some gut discomfort when he started using medication, and he has experienced progressively worse gut problems as the medication dosages were increased.
The applicant stated that in late 2021 he was referred to Dr Richard Shew, gastroenterologist, in respect of his gastrointestinal and haemorrhoid complaints. The applicant stated that, following an endoscopy procedure on 19 January 2022, Dr Shew diagnosed stomach inflammation and gastritis.
The applicant responded to reports of the insurer’s independent medical expert, Dr Siddarth Sethi. The applicant stated that he cannot recall having issues with his gut and complaining of gut problems to his general practitioner Dr Aldrin Tai in 2014, however he suspects that such complaints were one-off complaints and not an ongoing issue because he did not undergo subsequent medical treatment or investigations in that regard. The applicant also stated that he does not know exactly when his gut problems started, but they started shortly after he started using medication and progressively worsened. The applicant stated that initially he did not think much of his gut problems and he thought it was just a side effect of the medication he was using and would not cause any long-term problems. The applicant denied lacking in fibre intake. He stated that whilst he may have had hemorrhoids before his work accident, the problems that he is now having with his gut were not common before his work injury.
The applicant stated that he currently consumes various medications including Naproxen, Zaldiar, Omeprazole, Cymbalta, Gagepentin.
The applicant stated that he currently suffers from persisting pain and functional limitations and restrictions in his lower back and left leg. The applicant stated that, as a result of the medications he was required to take, he also currently suffers from hemorrhoids and various issues with his gastrointestinal system, including reflux, nausea, constipation and diarrhoea.
Treating medical evidence
Dr Aldrin Tai, general practitioner
In a report dated 25 July 2023, Dr Tai stated:
“1. The diagnosis of Mr Littlewood's gastrointestinal condition is gastritis.
2. Mr Littlewood was prescribed numerous scripts for Non steroidal anti-inflammatory medication namely Naprosyn 500mg once daily on 10 Feb 2017, Naprosyn 500mg twice daily on 17 August 2017, Naprosyn 500mg once daily on 6 January 2021 and Meloxicam (Mabie) a COX 2 inhibitor anti-inflammatory 15mg once daily on 21 July 2021. He has developed gastrointestinal symptoms after taking the Naprosyn. In my opinion, his employment with Chemist Warehouse was the main contributing factor to his injury and gastric condition.
3. Mr Littlewood did consult my colleague at the clinic on 9 May 2014 regarding a gastric complaint and was prescribed Pantoprazole medication, a proton pump inhibitor. Another Dr colleague also mentioned about the condition on 25 June 2014. There were only two occasions that he consulted in regard to a gastric condition, prior to his work related injury on 31 January 2017. Given the two and a half year period between the initial presentation and the work injury date, it is unlikely that he has suffered any significant gastrointestinal condition, during the timeframe.
4. I have read Dr Sethi's report. There were two isolated gastrointestinal complaints in relation to Mr Littlewood in May and June 2014. In my opinion, these two incidents were isolated events and did not eventuate into ongoing presentations for the ensuing two and half years. As such, I would not label it as pre-existing gastrointestinal condition.
5. In my opinion, if in the scenario that he did suffer from a pre-existing gastrointestinal condition, as suggested by Dr Sethi, I would have expected Mr Littlewood to seek treatment on more occasions, requesting for medications to curb stomach inflammation and suppress gastric acid production, or perhaps necessitating upper GI endoscopy earlier in the piece to establish a gastric diagnosis, during the period from July 2014 to 31 January 2017.
6. He was prescribed NSAIDs namely Naprosyn to treat his work related back injury. Mr Littlewood developed symptoms of dyspepsia and upper abdominal pain with tender epigastrium, when he consulted me on 12 May 2021 about 4 months after taking the NSAIDS. He was referred to gastroenterologist Dr Robert Nguyen, however he was unable to secure an earlier appointment to see him. He was then subsequently referred to gastroenterologist Dr Richard Shew on 26 May 2021 for endoscopy. He was also prescribed Pantoprazole 40mg once daily. On 19 January 2022 Mr Littlewood underwent gastroscopy with findings of a moderately inflamed stomach. He was diagnosed with gastritis.
In my opinion, Mr Littlewood has reported to me symptoms of dyspepsia , resulting from the consumption of Naprosyn to treat his back pain. The endoscopy findings on 19 January 2022 confirms the diagnosis of gastritis and therefore is consistent with his symptom presentation.”
Clinical records
The evidence includes clinical records of:
(a) Engadine Central Medical Centre;
(b) Hurstville Medical Practice;
(c) Dr Ashish Diwan;
(d) Campsie Medical Practice;
(e) New Life Physiotherapy;
(f) Optimum Health Solutions;
(g) Bondi Junction Endoscopy Centre, and
(h) Brain and Spine Surgery.
In particular:
(a) general practitioner’s clinical notes dated 9 May 2014 recorded that the applicant was on long-term Voltaren use for back pain and had symptoms of gastritis;
(b) general practitioner’s clinical notes dated 25 June 2014 recorded that the applicant normally took Voltaren and Panadeine Forte for back pain and noted a history of peptic ulcer disease;
(c) by letter dated 13 September 2021, Dr Tai referred the applicant to Dr Richard Shew, for an opinion and management of abdominal pains and endoscopy, and
(d) Dr Shew’s progress notes dated 28 January 2022 noted a history of nausea and epigastric pain for two years. It stated that the applicant’s stomach was moderately inflamed and stated a diagnosis of gastritis. The progress notes recorded that the applicant was taking Naproxen medication and recommended that the applicant should “Reduce intake of Naproxen”.
The evidence also includes a table of Medicare benefits.
Independent medical evidence
Dr Brian Stephenson, orthopaedic surgeon.
Dr Stephenson provided an independent medical opinion, qualified by the applicant.
In a report dated 7 July 2020, Dr Stephenson recorded the history of the applicant’s lumbar spine injury, investigations and that the applicant underwent a L4/5 microdiscectomy. Dr Stephenson expressed the opinion that the applicant’s employment was a substantial contributing factor to his lumbar spine injury. Dr Stephenson recorded that the applicant “is prescribed Zaldiar, which is a compound of acetaminophen 325 mg and tramadol 37.5 mg. GIT constipation effects are noted as well as anorexia, diarrhoea and nausea. It is a compound of tramadol and acetaminophen”. Dr Stephenson assessed total 15% WPI in respect of the lumbar spine, calculated on the basis of 15% WPI of the lumbar spine.
Dr Stephenson referred to a report of Dr Greenberg dated 5 May 2020 and stated that it assessed impairment of the applicant’s upper and lower gastrointestinal tract. Dr Stephenson stated that the assessment related to the effect of analgesic and anti-inflammatory drugs on the applicant’s gastro-intestinal tract. Further, Dr Stephenson stated that the applicant was prescribed Zaldiar, being a compound of tramadol and acetaminophen, and “[gastro-intestinal tract] constipation effects are noted as well as anorexia, diarrhoea and nausea”. Dr Stephenson also recorded that the applicant’s present complaints included abdominal pain, reflux and hemorrhoids.
Dr Stephen Rimmer, orthopaedic surgeon
Dr Rimmer provided an independent medical opinion, qualified by the respondent.
In a report dated 19 August 2020, Dr Rimmer noted that the applicant underwent a L4/5 microdiscectomy on 29 March 2017. Dr Rimmer recorded that the applicant noted that the applicant reported increased pain in his lumbar spine over the previous six weeks and “takes a daily cocktail of oral analgesic medication”.
In a report dated 22 November 2022, Dr Rimmer recorded that the applicant reported ongoing lumbar spine pain and that he took oral analgesic medication including Tramadol, Gapapentin and Naproxen. Dr Rimmer expressed the opinion that the applicant’s lumbar spine injury sustained at work on 31 January 2017 had resolved. Dr Rimmer assessed total 11% WPI, calculated on the basis of 11% WPI of the lumbar spine.
Dr Donald Frommer, gastroenterologist
In a report dated 9 August 2023, Dr Frommer recorded a history of the lumbar spine injury on 31 January 2017. In relation to the gastrointestinal history provided by the applicant, Dr Frommer stated:
“[The applicant] stated that... Within a week of 31 January 2017, he was prescribed Naprosyn and Panadeine Forte. Six to nine months later he developed heartburn and nausea helped by Nexium 40mg. He has no reflux, dysphagia, odynophagia, vomiting, indigestion or abdominal pain.
Constipation developed about three months after the injury, with having to strain and feelings of incomplete evacuation. He found that Cymbalta caused watery diarrhoea but has not passed blood or mucus pr.
On 19 January 2022 he had a gastroscopy by Dr. R. Shew and was subsequently told him that he had gastritis. (Histopathology of gastric biopsies stated that there was ‘no significant abnormality’). Recommended treatment with Pariet was ineffective.”
Dr Frommer stated that:
“If [the applicant’s] GP prescribed Panadeine Forte and Voltaren only on 9 May 2014 and 25 June 2014 then that alone would not necessarily establish a pre-existing cause for symptoms and therefore unrelated to his injury of 31 January 2014. However, it does not exclude a pre-existing cause for symptoms and therefore unrelated to his injury of 31 January 2014.
It is impossible to be certain whether or not your client’s employment with [the respondent] was a substantial contributing factor to the injury or simply an additional factor. The fact that after 31 January 2017 a wider variety of analgesics were prescribed and that the new gastrointestinal symptoms developed suggest that [the applicant’s] back pains were worse after 31 January 2017.”
Dr Frommer expressed the opinion that, if the applicant had a pre-existing gastrointestinal condition which may have caused or contributed to his current presentation as suggested by Dr Sethi, Dr Frommer would have expected the applicant to seek medical treatment for that condition during the period between January 2014 and the work accident on 31 January 2017.
Dr Frommer assessed 2% WPI in respect of the gastrointestinal tract.
Dr Siddarth Sethi, gastroenterologist
Dr Sethi provided an independent medical opinion, qualified by the respondent.
In a report dated 18 August 2020, Dr Sethi recorded a history that, following the lumbar spine injury on 31 January 2017, he commenced on analgesic agents including Endone and Tramal, Endone was ceased in March 2018 and the applicant then commenced on Lyrica and Endep. Dr Sethi recorded that the applicant experienced ongoing pain following a L4/5 laminectomy and discectomy and underwent a pain management program. Dr Sethi recorded that the applicant first started to experience gastrointestinal symptoms in June 2017, which included reflux, nausea, abdominal distention and tenderness, alternating diarrhoea and constipation and hemorrhoids. Dr Sethi stated that the applicant experienced persisting gastrointestinal symptoms and he currently took medication including Zoldiar, Endep, Lyrica, Nexium and Valium. Dr Sethi diagnosed Irritable Bowel Syndrome (IBS) and Gastroesophageal Reflux Disease (GORD). Dr Sethi expressed the opinion that the IBS and GORD was entirely unrelated to the lumbar spine injury and the various medications that the applicant was prescribed. On that basis, Dr Sethi assessed 0% WPI in respect of the gastrointestinal tract and anal canal. Dr Sethi gave the following reasons for his opinion:
(a) the work accident did not involve any direct injury to the gastrointestinal tract;
(b) the applicant’s gastrointestinal symptoms did not start for five months after the lumbar spine injury which “conclusively rules out any causative role for the medications”;
(c) IBS and GORD are common conditions affecting around 15-20% of the general population;
(d) the applicant was obese, which likely contributed to him developing both IBS and GORD as “Excess body weight is well described in the medical and scientific literature as promoting the development of and worsening of GORD”;
(e) “GORD is known to be caused by laxity of the gastro-oesophageal sphincter valve. It is not affected by the type of medications that ... [the applicant] was taking. This is widespread accepted medical and scientific opinion”;
(f) “The analgesic medications that the applicant was taking do not cause bloating, reflux, reaction to certain foods, excess gas, loud noises and irregular bowel habits. Zoldiar, Endep and Lyrica do not cause the type of symptoms that ... the applicant is reporting”;
(g) “The irregular bowel habits of alternating diarrhoea and constipation is strongly suggestive of irritable bowel syndrome and is very rarely seen in other conditions. If analgesic medications had been responsible for his symptoms, he would have constipation alone and not diarrhoea”. Dr Sethi acknowledged that analgesic medications can potentially cause constipation but do not cause irregular bowel habits;
(h) “His symptoms of bloating, excess gas, abdominal pain and irregular bowel habits are strongly suggestive of IBS and is extremely unlikely to be arising from anything else. The minor rectal bleeding is almost certainly hemorrhoidal in etiology. Hemorrhoids are usually caused by long term low dietary fibre intake. They are entirely unrelated to his alleged accident and the medications that he was prescribed”, and
(i) The applicant’s “weight gain of 25kg since the alleged incident is likely secondary to excess calorie intake”.
In a report dated 10 May 2021, Dr Sethi noted that medical records showed that on 9 May 2014 the applicant reported to his treating general practitioner that he had symptoms of gastritis and had a diagnosis of a peptic ulcer after long term medication of Voltaren for back pain. On that basis, Dr Sethi stated:
“In my opinion, Mr. Littlewood had pre-existing back pain and gastrointestinal symptoms dating back to 2014. He had been ingesting analgesic agents since 2014. This preceded his work accident in 2017 by 3 years and clearly establishes beyond all reasonable doubt that his back pain and gastrointestinal symptoms were preexisting and unrelated to his employment and work injury of January 2017.
I had interviewed Mr. Littlewood in August 2020. I specifically enquired as to when his gastrointestinal symptoms had started. He had stated that they first started in June 2017. The new information from his medical records contradicts this history and demonstrates that they were present 3 years earlier. This further establishes that Mr Littlewood’s gastrointestinal symptoms were not influenced by his employment and work injury of January 2017 as it was clearly a pre-existing condition.
In my opinion, Mr. Littlewood is an unreliable historian as his history of previous gastrointestinal symptoms in 2014 was not given to me despite specific questioning.
In summary, Mr. Littlewood’s gastrointestinal symptoms are unrelated to his work injury of January 2017.”
Further, Dr Sethi expressly rejected the opinion that the applicant’s hemorrhoids were related to his employment, the work injury and the medications prescribed. Dr Sethi stated that hemorrhoids are usually cause by long term low dietary fibre intake and was not related to the applicant’s ingestion of analgesic agents. Dr Sethi noted that the applicant had commenced taking analgesic agents in 2014, which was three years before his work injury. Dr Sethi expressed the opinion that medical records that the applicant had “presented to his GP in 2014 on multiple occasions complaining of gastrointestinal symptoms... clearly indicates that his [gastrointestinal condition] was pre-existing beyond all reasonable doubt” and that the applicant’s pre-existing gastrointestinal condition which has caused and contributed to his current presentation.
In a report dated 6 January 2023, Dr Sethi recorded an updated history. Dr Sethi diagnosed GORD, IBS and hemorrhoids, which he believed most likely developed independently of the applicant’s employment, work injury and the medications. Dr Sethi stated that there were a number of pre-existing and non-work related factors which caused and contributed to the applicant’s condition, particularly: obesity with a Body Mass Index (BMI) of 30; laxity of the gastro-oesophageal sphincter valve, which caused him to develop GORD; visceral hypersensitivity of the gastrointestinal tract, which caused him to develop IBS; and long term low dietary fibre intake, which caused him to develop hemorrhoids. Dr Sethi stated that in his original interview with the applicant on 14 August 2020, the applicant stated that his gastrointestinal symptoms first started 6 months after his injury, however the applicant subsequently claimed that they started 1 month after his injury. Dr Sethi stated:
“I do not consider that the worker sustained injury to his upper and lower gastrointestinal tract and anal canal as a consequence of the workplace injury on 31 January 2017. I shall outline my reasoning below.
I note that Mr. Littlewood’s accident did not directly involve the gastrointestinal tract.
Mr. Littlewood’s description of a retrosternal burning sensation radiating upwards with dry mouth and nausea is strongly suggestive of GORD. This is a common condition affecting around 15-20% of the general population and is caused by laxity of the gastro-oesaphageal sphincter valve. This is accepted widespread medical and scientific opinion.
Mr. Littlewood is obese with a BMI of 30. Obesity is well described in the medical and scientific literature to cause GORD. His obesity has likely contributed to his GORD.
Mr. Littlewood’s description of excess gas, constipation, diarrhoea and incomplete emptying is strongly suggestive of IBS. This is a common condition affecting around 15-20% of the general population and is caused by visceral hypersensitivity of the gastrointestinal tract. This is accepted widespread medical and scientific opinion.
Mr. Littlewood’s obesity has likely contributed to his developing IBS. Obesity is well described in the medical and scientific literature to cause IBS. His obesity has likely contributed to his IBS.
Mr. Littlewood’s description of bright red blood rectally is consistent with hemorrhoids. This is a common condition affecting around 50% of the general population and is caused by long term low dietary fibre intake. This is accepted widespread medical and scientific opinion.
Obesity is well described in the medical and scientific literature to cause hemorrhoids. His obesity has likely contributed to his hemorrhoids.
The analgesic medications that Mr. Littlewood was prescribed do not reasonably account for his gastrointestinal symptoms. They do not cause reflux and bloating. Analgesic medications can potentially cause constipation but do not cause diarrhoea.
In my opinion, Mr. Littlewood is an inconsistent historian. In my original interview with him on 14/8/2020, he stated that his gastrointestinal symptoms started six months after commencing analgesic medications. He now claims that they started after one month.
Mr. Littlewood had pre-existing back pain as clearly documented in his medical records and had been ingesting analgesic agents since 2014. He was also documented as experiencing gastrointestinal symptoms in 2014, prior to the accident. This predates his work accident by 3 years and clearly establishes beyond all reasonable doubt that his gastrointestinal symptoms were pre-existing and were unrelated to his employment and work injury in January 2017.”
On that basis, Dr Sethi assessed 0% WPI in respect of the gastrointestinal tract.
In a report dated 18 September 2023, Dr Sethi expressly disagreed with the opinion of Dr Frommer. In that regard, Dr Sethi stated:
“On Page 4 of his report, Dr. Frommer states ‘If his GP prescribed Panadeine Forte and Voltaren only on 9 May 2014 and 25 June 2014 then that alone would not necessarily establish a pre-existing cause for symptoms and therefore unrelated to his injury of 31 January 2014.’
I disagree with this. Mr. Littlewood very clearly had a pre-existing history of gastrointestinal symptoms given that his symptoms were documented as being present 3 years earlier in 2014. It is recorded that he experienced symptoms of gastritis after taking Voltaren. This unequivocally disproves Dr. Frommer’s allegations.
On Page 4 of his report, Dr. Fromer states ‘It does not exclude a pre-existing cause for symptoms and therefore unrelated to his injury of 31 January 2014.’
I agree with this. He likely had a pre-existing cause for his symptoms which predated his work injury by several years.
On Page 4 of his report, Dr. Frommer states ‘The fact that after 31 January 2017 a wider variety of analgesics were prescribed and that new gastrointestinal symptoms developed suggest that Mr. Littlewoods back pain were worse after 31 January 2017.’
I disagree with this. The prescription of analgesics was completely unrelated to and entirely independent of his employment, work injury and the analgesic medications that he was prescribed. These did not play any causative role whatsoever and his gastrointestinal symptoms have occurred regardless.
On Page 4 of his report, Dr. Frommer answers ‘Yes’ in response to being asked ‘if our client had a pre-existing gastrointestinal condition which may have caused or contributed to his current presentation as suggested by Dr. Sethi, would you have expected out client to seek medical treatment for that condition during the period January 2014 up to the work accident on 31 January 2017.’
I agree with this. I note that he did seek medical treatment for his pre-existing gastrointestinal condition in 2014.
In my opinion, Dr. Frommer has given excessive and undue importance to the analgesic medications that he was prescribed and has not reasonably considered the far more likely and realistic probability that he has developed GORD and IBS of his own accord. Dr. Frommer has also not reasonably considered the contribution of his obesity to his symptoms.”
On that basis, Dr Sethi restated his assessment of 0% WPI in respect of the gastrointestinal tract.
SUBMISSIONS
Counsel for the applicant and the respondent both made oral submissions which were recorded.
Applicant’s submissions
Mr Stockley’s submissions, on behalf of the applicant, may be summarised as follows:
(a) the principles to be applied to determine whether the applicant sustained a consequential condition are set out in Kumar v Royal Comfort Bedding Pty Ltd [2013] NSWWCCPD 8 (Kumar), which is analogous to the present case;
(b) the applicant’s case is that the applicant’s accepted lumbar spine injury created the need for pain-relieving medication, which preceded the onset of gastrointestinal symptoms quite quickly;
(c) the chronology of the onset of the applicant’s gastrointestinal symptoms within weeks of him being prescribed Naprosyn medication indicates a causal connection;
(d) the evidence of the applicant’s treating general practitioner, Dr Tai, and independent medical expert, Dr Frommer is compelling and should be preferred;
(e) the evidence of Dr Tai supports finding a causal connection between the medication and the onset of the applicant’s gastrointestinal symptoms and gastrointestinal condition. Further, Dr Tai’s report dated 22 July 2023 explained that the gastrointestinal complaints which the applicant reported in May and June 2014 were isolated complaints and did not eventuate into an ongoing presentation that constituted a pre-existing gastrointestinal condition;
(f) the evidence of Dr Frommer suggests that he supported a causal connection with upper gastrointestinal symptoms only (although the applicant complained of both upper and lower gastrointestinal symptoms) and is more guarded. Dr Frommer did not apply the correct test, which is the balance of probabilities. However, Dr Frommer dealt with the 2014 gastrointestinal symptoms. Further, Dr Frommer accepted that the medication which the applicant took to treat his back injury was at least an “additional factor” to the development of the applicant’s gastrointestinal symptoms. That is sufficient to establish a causal nexus. Dr Frommer’s assessment of impairment also indicates that he accepted that there is a work-related impairment in respect of the applicant’s gastrointestinal symptoms, and
(g) on that basis, the Commission should find that, as a result of the accepted lumbar spine injury, specifically from ingesting pain relieving medication, the applicant developed a consequential condition of his digestive system. Accordingly, the Commission should refer both the lumbar spine injury and the consequential condition of the digestive system to a Medical Assessor for assessment of WPI.
Respondent’s submissions
Mr Grant’s submissions, on behalf of the respondent, may be summarised as follows:
(a) the respondent accepts that that principles to be applied to determine whether the applicant sustained a consequential condition are set out in Kumar. However, the principles set out in Kooragang Cement Pty Ltd v Bates[1] (Kooragang) require a sensible approach;
[1] (1994) 35 NSWLR 452; 10 NSWCCR 796.
(b) there is a logical fallacy in the applicant’s submission. The applicant’s submission that there must be a causal relationship between the accepted back injury, the ingesting of medication and the development of a gastrointestinal condition is not supported by the medical evidence;
(c) there are flaws in the applicant’s medical evidence;
(d) Dr Tai, a general practitioner, clearly accepts by his referral to Dr Richard Shew, gastroenterologist, that a specialist gastroenterologist was appropriate to deal with the applicant’s gastrointestinal symptoms;
(e) the gap in time between the applicant ingesting medication and reported gastrointestinal symptoms does not support the existence of a causal connection between them;
(f) Dr Frommer’s evidence is not supportive of the existence of a causal connection between medication and gastrointestinal symptoms because he indicated reservations about the existence of such a causal connection and because he did not address issues raised by Dr Sethi, and
(g) Dr Sethi detailed a number of reasons which supported his opinion that the applicant’s gastrointestinal symptoms were unrelated to the lumbar spine injury and his opinion that it was most likely that there were alternative causes for the development of the applicant’s gastrointestinal symptoms. Those reasons include: the prolonged delay between the applicant ingesting the medication and reporting gastrointestinal symptoms; the applicant’s symptoms are strongly suggestive of IBS and GORD; IBS and GORD are common conditions; the applicant’s obesity likely contributed to him developing both IBS and GORD; GORD is known to be caused by laxity of the gastro-oesophageal sphincter valve and not the medications that the applicant was taking; the medications that the applicant was taking do not cause symptoms that were experienced by the applicant; and, the previous gastrointestinal symptoms which the applicant reported back to 2014 establishes that his gastrointestinal symptoms were pre-existing and unrelated to his employment and accepted lumbar spine injury;
(h) the fact that the applicant experienced isolated gastrointestinal symptoms back to 2014 rather suggests that Dr Sethi was right, in that the applicant clearly had the capacity to develop gastrointestinal symptoms independent of ingesting the medication;
(i) the applicant has not offered an explanation as to the reason why there was a delay in development of the applicant’s gastrointestinal symptoms after ingesting the medication;
(j) the evidence of Dr Sethi is persuasive and ought to be accepted and preferred to the other medical evidence, and
(k) on that basis, the Commission should find that the applicant did not develop a consequential condition of the digestive system.
Applicant’s submissions in reply
Mr Stockley’s submissions in reply may be summarised as follows:
(a) Dr Sethi’s assumption that the applicant did not experience gastrointestinal symptoms until several months after the applicant first commenced taking the medication is not supported by the other medical evidence;
(b) Dr Tai’s evidence is that the medication Naprosyn is implicated in development of the applicant’s gastrointestinal condition. Dr Tai did not prescribe that medication until several months after the lumbar spine injury which occurred on 31 January 2017. Dr Tai stated that the applicant was prescribed Naprosyn 500mg once daily on 10 Feb 2017, Naprosyn 500mg twice daily, on 17 August 2017, Naprosyn 500mg once daily on 6 January 2021 and Meloxicam a COX 2 inhibitor anti-inflammatory 15mg once daily on 21 July 2021. On that basis, the five month delay assumed by Dr Sethi is not made out, and
(c) the test applied by Dr Sethi, namely that the applicant’s employment was a substantial contributing factor, was not the appropriate test to be applied in this case. The appropriate test to be applied is whether the applicant’s employment causally contributed to the applicant’s gastrointestinal condition.
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 or that the employment was a substantial contributing factor within the meaning of s 9A of the 1987 Act. In Moon v Conmah,[2] Deputy President Roche stated at [45]-[46]:
“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.”
[2] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services,[3] Roche DP 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 legal test of causation to be applied in determining whether there is a consequential condition is that set out in Kumar v Royal Comfort Bedding Pty Ltd [2013] NSWWCCPD 8 at [35]-[59], which applied the principles in Kooragang Cement Pty Ltd v Bates[4] (Kooragang). In Kooragang, 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 issue to be determined is whether the subject injury has materially contributed to the onset of the condition claimed, unbroken by a novus actus interveniens: Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 at [53].
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.
Consideration
The applicant’s evidence is that he suffers a consequential condition of the digestive system caused by medication he was required to take to treat his lumbar spine injury.
Medical opinion in relation to the gastrointestinal symptoms
Both of the applicant’s treating practitioners, Dr Tai and Dr Shew, diagnosed gastritis.
Dr Tai expressed the opinion that the applicant developed gastrointestinal symptoms as a consequence of taking non-steroidal anti-inflammatory medication, namely Naprosyn.
Whilst Dr Shew did not provide any opinion specifically regarding the cause of the applicant’s gastrointestinal symptoms, I consider it significant that his progress notes dated 28 January 2022 which stated a diagnosis of gastritis, noted that the applicant was taking Naproxen medication and recommended that the applicant should “Reduce intake of Naproxen”. Taken in context, I consider that this indicates that Dr Shew at least contemplated a causal connection between the applicant ingesting Naproxen and the diagnosis of gastritis.
In his report dated 7 July 2020, independent medical expert, Dr Stephenson, recorded that the applicant’s present complaints included abdominal pain, reflux and hemorrhoids. Dr Stephenson stated that the applicant was prescribed Zaldiar, being a compound of tramadol and acetaminophen, and “[gastro-intestinal tract] constipation effects are noted as well as anorexia, diarrhoea and nausea”. Whilst Dr Stephenson did not expressly opine as to the cause of the applicant’s gastrointestinal symptoms, it seems implicit from his report that Dr Stephenson considered that the applicant’s gastrointestinal symptoms were caused by the medication that the applicant was taking to treat his lumbar spine injury. I note that Dr Stephenson is an orthopaedic surgeon, not a gastroenterologist, however I consider that he would have knowledge of known side effects of pain medication to treat orthopaedic conditions such as the applicant’s lumbar spine injury.
In his report dated 9 August 2023, independent medical expert, Dr Frommer, gastroenterologist, was somewhat unclear in expressly stating his opinion regarding the applicant’s diagnosis and its cause. Dr Frommer noted the applicant’s various gastrointestinal symptoms and the reported diagnosis of gastritis following the endoscopy. Reading Dr Frommer’s opinion in context, it appears to me that he accepted that diagnosis of gastritis and, further, accepted that the applicant’s lumbar spine injury was, at the least, a causal factor in the development of the gastritis. Dr Frommer accepted that the medication which the applicant took to treat his back injury was at least an “additional factor” to the development of the applicant’s gastrointestinal symptoms. That is sufficient to establish a causal nexus. This is consistent with Dr Fommer assessing 2% WPI in respect of the gastrointestinal tract.
In his reports dated 18 August 2020, 10 May 2021, 6 January 2023 and 18 September 2023, independent medical expert, Dr Sethi diagnosed IBS and GORD, which he considered to be entirely unrelated to the applicant’s lumbar spine injury.
Prior medical history
In relation to the applicant’s medical history prior to the lumbar spine injury, the medical evidence shows that on 9 May 2014 and 25 June 2014, the applicant’ treating general practitioner recorded gastrointestinal symptoms, described by Dr Tai as a “gastric condition”, for which he was prescribed Pantoprazole medication. Dr Tai noted that these were the only occasions on which the applicant sought medical treatment for those symptoms prior to the lumbar spine injury.
Dr Tai expressed the opinion that, given the two and a half year period between the applicant’s presentation for that condition and the work injury, it is unlikely that the applicant suffered any significant gastrointestinal condition during that timeframe. On that basis, Dr Tai expressed the opinion that the gastric condition which the applicant suffered in May and June of 2014 were isolated events which did not eventuate into an ongoing presentation for the following two and a half years. Dr Tai stated that, if the gastric condition had been ongoing, he would have expected that the applicant would have sought further treatment and the condition would have been investigated, which apparently did not occur. Accordingly, Dr Tai did not consider that it was appropriate to label it as a “pre-existing gastrointestinal condition” prior to the lumbar spine injury.
In his report dated 9 August 2023, independent medical expert, Dr Frommer, gastroenterologist, stated that if the applicant’s general practitioner prescribed only Panadeine Forte and Voltaren on 9 May 2014 and 25 June 2014, then “that alone would not necessarily establish a pre-existing cause for symptoms and therefore unrelated to his injury of 31 January 2014. However, it does not exclude a pre-existing cause for symptoms and therefore unrelated to his injury of 31 January 2014”. Whilst Dr Frommer did not exclude the possibility that the applicant had a gastro-intestinal condition prior to the lumbar spine injury in 2017, he was not satisfied that it was “necessarily” demonstrated by the applicant’s reported symptoms on 9 May 2014 and 25 June 2014, treated only by Panadeine Forte and Voltaren. Dr Frommer has clearly applied an incorrect test of proof. Although his opinion is expressed in somewhat ambiguous terms, it appears that Dr Frommer did accept the likelihood that the applicant’s employment, through his lumbar spine injury, was, at the least, “an additional factor” to the development of the subsequent gastrointestinal condition. Dr Frommer clearly expressed the opinion that, if the applicant had a pre-existing gastrointestinal condition which may have caused or contributed to his current gastrointestinal symptoms, Dr Frommer would have expected the applicant to seek medical treatment for that condition during the period between January 2014 and the lumbar spine injury in 2017. Of course, there is no evidence that the applicant did so.
Dr Sethi disagreed with Dr Frommer’s view and considered that the fact that the applicant did seek treatment for gastrointestinal symptoms in 2014 demonstrated a pre-existing condition. Dr Sethi clearly considered the existence of what he described as a pre-existing gastrointestinal condition, to be significant in his opinion that the lumbar spine injury was not a causal factor in the development of the applicant’s current gastrointestinal symptoms.
I accept that there is no medical evidence which demonstrates that the applicant sought medical treatment for any gastrointestinal symptoms prior to the lumbar spine injury, apart from on 9 May 2014 and 25 June 2014, for which the applicant was prescribed Pantoprazole medication. Further, there is no evidence that the applicant underwent any investigation or other treatment of those symptoms.
I consider it to be quite significant that the applicant did not seek treatment for any gastrointestinal symptoms between 2014 and the time of the lumbar spine injury in 2017.
Considering the evidence as a whole, I prefer and accept the evidence of the applicant’s treating general practitioner, Dr Tai. On that basis, I am not satisfied that the applicant had a significant pre-existing gastrointestinal condition prior to the lumbar spine injury.
In any event however, even if I am incorrect in that regard, that does not necessarily exclude the possibility of the lumbar spine injury being a causal factor in the development of the applicant’s current gastrointestinal symptoms.
Pain caused by the lumbar spine injury
It is not in dispute that the applicant sustained a lumbar spine injury in the course of work on 31 January 2017. An MRI lumbar spine on 3 March 2017 was reported to show L4/5 spondylotic change and left posterolateral extruded disc fragment with affect on the left L5 nerve root sleeve. The applicant underwent a L4/5 microdiscectomy in March 2017.
The applicant’s evidence is that he experienced debilitating pain following the lumbar spine injury. This is supported by the medical evidence, which shows that the applicant received various treatment for severe ongoing pain from the lumbar spine injury, including a pain management program.
Considering the evidence as a whole, I accept that the applicant experienced significant pain following the lumbar spine injury. Further, I accept that the lumbar spine injury created the need for pain-relieving medication.
The pain medication
There is considerable evidence that the applicant’s lumbar spine pain was treated with various pain relieving medication, including non-steroidal anti-inflammatory medication.
In his report dated 9 August 2023, independent medical expert, Dr Frommer recorded a reported history that the applicant was prescribed Naprosyn and Panadeine Forte within a week of the lumbar spine injury in 2017.
In his report dated 18 August 2020, independent medical expert, Dr Sethi recorded a history that following the lumbar spine injury, the applicant commenced on analgesic agents including Endone and Tramal. Endone was ceased in March 2018 and the applicant then commenced on Lyrica and Endep. Dr Sethi recorded that the applicant currently took medication including Zoldiar, Endep, Lyrica, Nexium and Valium.
In his report dated 7 July 2020, independent medical expert, Dr Stephenson, stated that the applicant was prescribed Zaldiar, being a compound of tramadol and acetaminophen, and that “[gastro-intestinal tract] constipation effects are noted as well as anorexia, diarrhoea and nausea”.
In his report dated 19 August 2020, Dr Rimmer stated that the applicant “takes a daily cocktail of oral analgesic medication” to treat pain caused by his lumbar spine injury.
The applicant’s treating general practitioner, Dr Tai stated that the applicant was prescribed non-steroidal anti-inflammatory medication: Naprosyn, to treat his lumbar spine injury as follows: 500mg once daily on 10 February 2017; 500mg twice daily on 17 August 2017; and 500mg once daily on 6 January 2021; and Meloxicam 15 mg once daily on 21 July 2021. Dr Tai expressed the opinion that Naprosyn in particular can cause gastrointestinal symptoms of the kind suffered by the applicant.
In his report dated 22 November 2022, Dr Rimer recorded that the applicant took oral analgesic medication including Tramadol, Gapapentin and Naproxen.
I note that Naprosyn is a form of Naproxen.
Considering the evidence as a whole, I accept that following the lumbar spine injury, the applicant ingested various medication which had the capacity to cause gastrointestinal symptoms of the kind experienced by the applicant.
The gastrointestinal symptoms experienced by the applicant and the timing of those symptoms
The applicant’s evidence is that the particular symptoms caused by the medication include reflux, nausea, constipation, diarrhoea and hemorrhoids.
The applicant’s evidence is that he noticed some gut discomfort when he started using medication, and that his gastrointestinal symptoms have progressively worsened as the medication dosages were increased. The applicant stated that initially he did not think much of his gut problems and he thought it was just a side effect of the medication and would not cause any long-term problems.
In his report dated 9 August 2023, independent medical expert, Dr Frommer recorded that the applicant stated that he developed heartburn and nausea some six to nine months after being prescribed Naprosyn and Panadeine Forte in 2017. Dr Frommer recorded that about three months after the injury, the applicant developed constipation and feelings of incomplete evacuation, and he found that Cymbalta caused diarrhoea. Dr Frommer stated that the applicant has no reflux, dysphagia, odynophagia, vomiting, indigestion or abdominal pain.
In his report dated 18 August 2020, independent medical expert, Dr Sethi recorded that the applicant reported that he first started to experience gastrointestinal symptoms in June 2017, which included reflux, nausea, abdominal distention and tenderness, alternating diarrhoea and constipation and hemorrhoids. In his report dated 6 January 2023, Dr Sethi recorded an updated history and stated that the applicant originally stated that his gastrointestinal symptoms first started 6 months after the lumbar spine injury, but subsequently claimed that they started one month after the injury.
In his report dated 7 July 2020, independent medical expert, Dr Stephenson, recorded that the applicant’s present complaints included abdominal pain, reflux and hemorrhoids.
Dr Tai’s evidence is that on 12 May 2021, the applicant reported symptoms of dyspepsia, upper abdominal pain and tender epigastrium.
The medical evidence shows that on 12 May 2021, the applicant first consulted Dr Tai and reported symptoms of dyspepsia, upper abdominal pain and tender epigastrium. That is some four months after the applicant was prescribed Naprosyn 500mg once daily on 6 January 2021.
On 26 May 2021, Dr Tai referred the applicant to Dr Shew, gastroenterologist.
However, I note that Dr Shew’s progress notes dated 28 January 2022 stated a history of nausea and epigastric pain with occasional diarrhoea for two years. This seems to be somewhat inconsistent with the evidence of Dr Tai (which, albeit, does not indicate when the symptoms began but does state a diagnosis of gastro-oesophageal reflux disease on 26 May 2021) but consistent with the evidence of Dr Stephenson which recorded that the applicant had gastrointestinal symptoms in July 2020.
I note that the evidence is somewhat inconsistent and unclear as to precisely when the applicant first started experiencing gastrointestinal symptoms following the lumbar spine injury.
However, considering the evidence as a whole, I am satisfied that the applicant first started experiencing gastrointestinal symptoms within a month of taking medication following the lumbar spine injury, and that those symptoms worsened over time. On that basis, I am not satisfied that there was a significant delay in development of the applicant’s gastrointestinal symptoms after ingesting the medication. I accept that the pain-relieving medication preceded the onset of gastrointestinal symptoms and that the chronology of the onset of the applicant’s gastrointestinal symptoms relatively soon after him being prescribed the medication is supportive of a causal connection.
The endoscopy and diagnosis of gastritis
The endoscopy performed on 19 January 2022, was reported to show inflammation of the stomach and a diagnosis of gastritis.
I consider it significant that the applicant’s treating general practitioner, Dr Tai reported that the diagnosis of gastritis was consistent with the applicant’s symptom presentation.
As noted above, Dr Shew’s progress notes dated 28 January 2022 which stated a diagnosis of gastritis, noted that the applicant was taking Naproxen medication and recommended that the applicant should “Reduce intake of Naproxen”. Taken in context, I consider that this indicates that Dr Shew at least contemplated a causal connection between the applicant ingesting Naproxen and the diagnosis of gastritis.
Although Dr Frommer’s report dated 9 August 2023 is ambiguous in some respects, it is clear that Dr Frommer considered the findings of the endoscopy performed on 19 January 2022.
I note that Dr Sethi provided alternative explanations for the development of the applicant’s gastrointestinal symptoms, including IBS and GORD. However, Dr Sethi’s opinion did not provide any significant explanation for the reported results of the endoscopy performed on 19 January 2022, which showed inflammation of the stomach and a diagnosis of gastritis.
I am not satisfied that Dr Sethi’s opinion significantly reconciled the diagnosis of gastritis and the results of the endoscopy performed on 19 January 2022 with his opinion of diagnosis and causation.
Commonsense evaluation of the causal chain
I accept that the medical evidence in this matter is not clear.
However, having regard to the evidence as a whole, and for the various reasons that I have referred to above, I prefer and accept the opinion of the applicant’s treating general practitioner, Dr Tai, and the applicant’s independent medical expert, Dr Frommer, which I find to be compelling.
Considering the evidence as a whole and based on a commonsense evaluation of the causal chain, I am satisfied that the applicant developed a consequential condition of the digestive system as a result of the accepted lumbar spine injury, specifically from ingesting pain-relieving medication.
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 lumbar spine injury and consequential condition of the digestive system, with a deemed date of injury of 31 January 2017.
All of the materials admitted in the proceedings will be included in the referral.
SUMMARY
Accordingly, I make the following findings:
(a) the applicant sustained a consequential condition of the digestive system.
Further, I order that the matter is remitted to the President to be referred to a Medical Assessor for an assessment of WPI in respect of the lumbar spine injury and the digestive system, with a deemed date of injury of 31 January 2017. The documents to be referred to the Medical Assessor comprise the Application and the Reply.
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