McKinlay v The Village by Scalabrini Nursing Home
[2025] NSWPIC 213
•16 May 2025
CERTIFICATE OF DETERMINATION OF MEMBER CITATION: McKinlay v The Village by Scalabrini Nursing Home [2025] NSWPIC 213 APPLICANT: Walter McKinlay RESPONDENT: The Village by Scalabrini Nursing Home MEMBER: Carolyn Rimmer DATE OF DECISION: 16 May 2025 CATCHWORDS: WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation following hernia injury; disputed secondary condition to digestive system alleged to have occurred from ingestion of medication following multiple surgical procedures after the hernia injury; dispute as to the terms of referral of accepted conditions in the genitofemoral nerve, Ilioinguinal nerve, and Iliohypogastric nerve; Held – award for the applicant with respect to the consequential gastrointestinal condition; body systems to be referred to a Medical Assessor for the purposes of assessing permanent impairment to include the nervous system (genitofemoral nerve, Ilioinguinal nerve, and Iliohypogastric nerve). DETERMINATIONS MADE: The Commission determines:
1. Award for the applicant with respect to the consequential gastrointestinal condition.
2. This matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury: 18 September 2018.
Body systems/parts: digestive system (hernia and consequential gastrointestinal condition); nervous system (genitofemoral nerve, Ilioinguinal nerve, Iliohypogastric nerve); TEMSKI/scarring; urinary/reproductive system, and lower extremity (right femoral nerve).
Method of assessment: whole person impairment.
3. All documents attached to the Application to Resolve a Dispute, and the Reply and the Amended Application to Resolve a Dispute (form only) are to be sent to the Medical Assessor.
A brief statement is attached setting out the Commission’s reasons for the determination.
STATEMENT OF REASONS
BACKGROUND
1.On 3 February 2025, Walter McKinlay (the applicant) lodged an Application to Resolve a Dispute (the application) in the Personal Injury Commission (Commission). The applicant’s employer at the relevant time was The Village By Scalabrini Nursing Home (the respondent). The respondent was insured by Catholic Church Insurances Limited at the relevant time. The applicant made a claim for lump sum compensation pursuant to s 66 of the WorkersCompensationAct1987 (1987 Act).
2.On 18 September 2018, the applicant, in the course of his employment with the respondent as a maintenance supervisor, was pushing a mower in order to lift the front wheels to get over a gutter when he experienced severe pain in his groin and lower abdomen. The applicant sustained an injury (namely, a hernia and injury to his reproductive system, and developed in the peripheral nerves, namely, the iliohypogastric nerve, the ilioinguinal nerve, the genitofemoral nerve and the right femoral nerve) and scarring as a result of the injury on 18 September 2018. The applicant alleged that he developed a consequential condition in his digestive system as a result of the injury on 18 September 2018.
3.The insurer, in a Section 78 Notice dated 6 December 2024, disputed whether the applicant had a secondary gastrointestinal condition.
ISSUES FOR DETERMINATION
4.The parties agree that the following issues remain in dispute:
(a) whether the applicant has a secondary gastrointestinal condition as a result of the injury on 18 September 2018, and
(b) the terms of any referral to a Medical Assessor.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
5.The parties attended a conciliation conference and arbitration hearing via audio visual link (MS Teams) on 24 April 2025. The proceedings and the arbitration were sound recorded and a copy of the recording is available to the parties. The applicant was represented by
Mr Ty Hickey, who was instructed by Ms Almaet of Turner Freeman Lawyers. The respondent was represented by Mr David King who was instructed by Ms Amin of BBW Lawyers. Ms Duarte from the Employers Mutual NSW Limited, agent for the insurer, was present.6.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
7.The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Amended Application to Resolve a Dispute (form only), and
(c) Reply and attached documents.
SUBMISSIONS
8.Both parties made oral submissions at the hearing on 24 April 2025 in relation to the issue of whether the applicant has a secondary gastrointestinal condition. Due to time constraints, the parties were directed to file written submissions concerning the terms of any referral to the Medical Assessor in relation to the assessment of the iliohypogastric nerve, the ilioinguinal nerve, the genitofemoral nerve and the right femoral nerve.
9.The submissions of the parties during the arbitration were recorded and I do not propose to repeat each of the arguments of counsel in these reasons.
10.However, the respondent submitted that the onus of proof falls on the applicant and that I could not be satisfied that there was evidence of an exacerbation of the pre-existing gastritis following the injury at work in September 2018. The respondent argued that the applicant’s pre-existing gastrointestinal issues had persisted after the work injury. Further, the respondent submits that the findings in the gastroscopy in 2020 were normal and showed that there was no aggravation of the pre-existing condition on a clinical basis.
11.The applicant submitted that the report of Dr Conrad and the clinical notes from the general practitioner, Dr Nguyen, provided evidence of an exacerbation of the pre-existing gastritis caused by the use of significant amounts of medication prescribed for the work injury. The applicant argued that neither Dr Sharp nor Dr Sethi considered the effects of medication prescribed after the work injury and whether this medication had exacerbated the pre-existing gastritis.
12.In respect of the terms of the referral to the Medical Assessor, the respondent filed written submissions dated 2 May 2025. The applicant filed written submissions dated 9 May 2025.
FINDINGS AND REASONS
13.The respondent agreed that the claim made pursuant to s 66 in respect of the digestive system (hernia), the reproductive system, scarring and the iliohypogastric nerve, the ilioinguinal nerve, the genitofemoral nerve and the right femoral nerve as a result of the injury on 18 September 2018 should be referred to a Medical Assessor for assessment of whole person impairment (WPI).
Evidence of the applicant
14.In a statement dated 31 January 2025, the applicant wrote:
“5. In 2016, I was diagnosed with reflux, a pituitary tumour and torsion of the testis. I underwent an endoscopic trans nasal transsphenoidal excision of the pituitary lesion and a septoplasty.
6. In 2016, I underwent an excision of a Rathke's left cysts by Dr Gemma Olsen.
7 In 2018, I underwent an excision of a lymphangioma which is a benign version of a lymphatic tumour.”
15.The applicant described experiencing severe pain in his lower abdomen and groin on
18 September 2018 when pressing down on the mower to lift the front wheels to get over a gutter. He went to Nepean Hospital and then to his general practitioner, Dr Vincent Nguyen. Dr Nguyen referred him for an ultrasound of the lower abdomen and groin region. The applicant stated that the ultrasound confirmed that he had a hernia and he was referred to
Dr Peter Dutton. The applicant stated that on 28 September 2018, Dr Dutton performed a laparoscopic repair of an inguinal and small femoral hernia.16.The applicant described experiencing shooting pain and pinching around the right testis in October 2018. He wrote:
“18. I continued to experience ongoing and increasing pain and it impacted my ability to function and sleep. I referred to Nepean Hospital in early November where I was prescribed Endone for the pain.
19. On 9 November 2018, I consulted Dr Nguyen, and I advised him that I continue to have shooting pain. Dr Nguyen advised me to trial return to work.
20. I consulted Dr Dutton who advised me to trial Lyrica 150mg for ongoing pain.
21. I underwent an MRI scan which confirmed that the fibrosis was touching my genito femoral nerve.”
17.The applicant stated that he saw Dr Nguyen on 21 December 2018 as he was struggling with ongoing pain and deteriorating mental health. He said that as a result of his injury and inability to work he had experienced an increase in stress leading to anxiety and depression. He stated that he eventually had to commence anti-depressant medication, Lovan, to assist with his increasing symptoms.
18.The applicant stated that he consulted with Dr Dutton who told him he needed to be under the management of a pain specialist. He wrote:
“30. I began to rely heavily on Lyrica and this dependency caused an overuse. I was eventually admitted into Nepean Mental Health Unit for one or two nights because of this.”
19.The applicant stated that on 25 February 2019 he consulted Dr Hasher Kadavil, pain specialist, who recommended he trial lignocaine 5% patches and inguinal nerve pulsed radiofrequency neurotomy and undertake exercise physiology and pain focused psychology. He said that on 7 May 2019 Dr Kadavil recommended he undertake nerve pulsed radiofrequency neurotomy. The applicant stated that on 17 July 2019 Dr Kadavil advised him to get an update opinion on surgical intervention.
20.The applicant stated that he saw Dr Nabeel Ibrahim on 22 August 2019 as the applicant wanted the mesh removed. He said that Dr Ibrahim referred him to Professor Tillman Boesel.
21.The applicant stated that on 25 March 2020 he had a consultation with Professor Boesel. On 19 August 2020 Professor Boesel recommended a spinal neurostimulation implant.
22.The applicant wrote:
“47. I consulted Dr Boesel on 30 November 2021 for ongoing neuropathic groin pain. I advised Dr Boesel that any activity significantly aggravated my pain symptoms. I continue to take Effexor and some Panadeine forte when necessary, however the groin pain continues, and I had developed lower back pain likely due to postural and gait changes with my pain.”
23.The applicant stated that he saw Professor Boesel on 18 October 2022 where he confirmed the applicant was at the end of the stimulation trial. The applicant said that he told Dr Boesel that he had improvement with the throbbing sensation in his groin.
24.The applicant stated that on 5 April 2023, he underwent an operation to insert a Medtronic spinal cord stimulator. He said that initially this provided him with some relief, but he then had issues with the wound in the battery pouch not healing properly. He stated that he was taken back for debridement on 3 May 2023 where his doctors found signs of an infection. The applicant stated that he was taken back to the operating room on 31 May 2023 and the doctors removed the battery and impulse generator as they could not treat the issue conservatively.
25.The applicant stated that on 23 July 2023 he was then referred to Dr Sepehr Lajevardi, Plastic and Reconstructive Surgeon, for management of his wound following surgery.
26.The applicant described a consultation with Dr Nguyen on 14 May 2024 after an injury to his right ankle when his right leg gave way as he got out of bed, due to increased pain in his right groin. He said that he consulted Dr Nguyen due to worsening pain in his stomach and right groin, as well as his right ankle.
27.The applicant stated that he consulted Dr Nguyen on 9 August 2024 due to extreme back pain.
28.The applicant stated that he underwent a total of around nine procedures with Professor Boesel for the implantation of the nerve stimulator and on two occasions, the wound opened, and he developed an infection where he was required to undergo surgery to extend the wound and clean the area. He said that the battery was also repositioned several times due to an array of issues, which resulted in extending a small scar to around a length of 15cm.
Medical reports
Medico-legal reports
29.In a report dated 15 February 2019, Dr Philip Sharpe, consultant surgeon, noted:
“He is taking Lovan 2 tablets at night, Lyrica 25mg at night which he finds of some help, and Panadol Osteo most days 2 tablets twice or three times a day. He also takes Nexium for GORD and ceased a non-steroidal anti-inflammatory medication one week ago because of symptoms.”
Dr Sharp made a diagnosis of some local pain from where the mesh was in the right groin together with some neuropathic pain most likely due to fibrosis around the genital branch of the right genitofemoral nerve. Dr Sharp noted that current treatment was reasonable and necessary having regards to the work injury especially with the requirement for him to take Panadol Osteo and Lyrica for pain relief.
30.In a report dated 15 April 2021, Dr Sharp noted that the applicant last worked at the end of February 2019. He noted that the applicant was taking Effexor; either Panadol or Panadol Osteo, four to six tablets a day; Naprosyn or Naprogesic, one tablet twice a day and Nexium, but had ceased the Lyrica in mid-2019. He noted that the applicant had seen both a psychiatrist and a psychologist.
31.Under “Other Relevant Medical and Occupational History”, Dr Sharp noted: “In February 2020, he had a colonoscopy and gastroscopy both of which I understand were normal”.
32.Dr Sharp noted that the applicant was seen by Professor Boesel, a Pain Management Physician, and has had an injection of local anaesthetic into the right groin which helped until the local anaesthetic wore off i.e. several hours. He noted that the applicant had had a pulse radio neurectomy of the right L1 nerve root with an associated nerve block done on
23 July 2020 with no real improvement of his symptoms. He noted that Professor Boesel had suggested that a Medtronic Intellis spinal stimulation implant be inserted.33.Dr Sharp reported that the applicant felt that there had been an increase in his symptoms over the last three months. He noted that the ongoing symptoms followed the repair of the right inguinal/femoral hernia in September 2018. Under “Diagnosis” he wrote:
“Mr McKinlay has pain in the distribution of the ilioinguinal nerve as well as the genital branch of the genitofemoral nerve on the right. He sustained a right inguinal and femoral herniae. He had laparoscopic repair of these herniae with residual pain involving the above nerves on the right-hand side.”
34.In a report dated 21 April 2021, Dr Sharp wrote:
“The medical history (non-work related) of a pituitary tumour (Rathke cyst), a prior history of orchidopexy in 2016 for testicular torsion and a history of gastroscopy/colonoscopy to investigate gastrointestinal symptoms of heartburn, reflux, abdominal discomfort and difficulty swallowing with occasional loose motions, has no impact on his current condition and wellbeing.”
35.In a report dated 23 July 2024, Dr Sharp noted that on 5 April 2023 Professor Antonio Di Ieva, neurosurgeon, inserted a spinal cord stimulator. He wrote:
“The wound in the right buttock broke down and was re-sutured. The wound then became infected. Mr McKinlay told me he had approximately three further operations for debridement of the wound. The spinal cord stimulator was removed. It was re-implanted towards the end of 2023. He had a further operation in early 2024 where the battery had to be changed.”
36.Dr Sharp noted that Dr Farzan Bahin, gastroenterologist, performed a gastroscopy and colonoscopy on 8 July 2018 [sic]. Dr Sharp stated that both were reported to be normal, apart from some mild gastro-oesophageal reflux and a small hiatus hernia. He noted that the oesophagus showed reactive changes in keeping with a reflux oesophagitis. Dr Sharp reported that biopsies from the stomach, duodenum and colon were all within normal limits.
37.Dr Sharp noted that a further gastroscopy and colonoscopy were performed by Dr Bahin on
7 February 2020 and these were both said to be normal.38.Dr Sharp noted that current medications were Efexor 150mg twice daily, Nexium 20mg one daily, Nurofen three days weekly, two tablets daily and Panadol five to six days per week, four tablets daily.
39.Dr Sharp made a diagnosis of neuropathic pain in the distribution of the ilio-inguinal and genito-femoral branches on the right side following laparoscopic repair of a right femoral and inguinal hernia. He noted that the applicant has scars resulting from multiple operations for insertion and removal of spinal cord stimulation with associated wound infection and replacement of battery.
40.Dr Sharp was asked “Considering your previous report, report of Dr Farzan Bahin dated
14 July 2017 (including pathology reports) and the report of Dr Sethi, do you believe the worker suffered a gastrointestinal injury as a result of the previously accepted hernia injury? Please explain your reasoning”. Dr Sharp answered:“I have read the reports of Dr Bahin and Dr Sethi. I do not believe that Mr McKinlay has suffered a gastrointestinal injury as a result of the previously accepted hernia injuries. His first colonoscopy and gastroscopy were in 2017, more than a year before his right groin injury. His symptoms are suggestive of irritable bowel syndrome, together with gastro-oesophageal reflux disease. This has been documented on two gastroscopies and colonoscopies. As it precedes his inguinal hernia symptoms, it is not related to the previously accepted hernia injury.”
41.Dr Sharp assessed WPI noting that under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA5) Chapter 6, page 136, table 6.9, he has zero impairment for recurrent hernia. Under the Fourth Edition of the NSW Guidelines to the Evaluation of Permanent Impairment (the Guidelines), page 78, paragraphs 16-2 to 16-6, his symptoms of pain have been present for more than 12 months. Dr Sharp noted that the applicant had severe dysaesthesia in the distribution of the ilio-inguinal nerve and genito-femoral nerves on the right. He wrote: “This equates to 5% WPI as assessed by as per paragraph 16.3, page 78.” Dr Sharp assessed 2% WPI for scarring using the Guidelines at Table 14.1, page 74 (TEMSKI). Dr Sharp stated that GIT assessment equated to zero as it precedes the development of the hernia.
42.Dr Sharp disagreed with Dr Conrad’s assessment of 5% WPI due to gastritis “as these gastrointestinal symptoms preceded the hernia symptoms.”
43.Dr Siddarth Sethi, consultant gastroenterologist/hepatologist, in a report dated 1 March 2020, noted that the applicant has a past history of reflux. He noted that the applicant was first reviewed by Dr Bahin, gastroenterologist, in June 2017 and a gastroscopy/colonoscopy was performed on 8 July 2017. He noted that the applicant was found to have reflux oesaphagitis and small hiatus hernia and Dr Bahin felt the applicant had irritable bowel syndrome.
44.Dr Sethi noted that Dr Bahin reviewed the applicant again on 4 February 2020 and the applicant was experiencing reflux, heartburn, abdominal discomfort, difficulty swallowing and occasional loose motions. The applicant had gained weight and weighed 90kg. Rectal bleeding was noted. Dr Bahin had noted that the applicant had experienced nasal/throat issues and was prescribed increased dose of Nexium “to no improvement”. Dr Bahin advised that he follow a time restricted eating pattern of eight hours per day and reduce carbohydrate intake.
45.Dr Sethi noted that gastroscopy/colonoscopy was performed on 7 February 2020 and reported as normal. He wrote:
“Dr Bahin stated that immobility following the workplace injury led to weight gain, worsening heartburn symptoms, trouble swallowing, change in bowel habits and rectal bleeding. He opined that post operatively bowel habits can be altered and lead to problems such as straining and per rectal bleeding from slower colonic transit.”
46.Dr Sethi expressed the opinion that the applicant had developed chronic pain post groin surgery. He wrote:
“This is entirely unrelated to his gastrointestinal symptoms. He would have very likely have developed gastrointestinal symptoms regardless of whether the workplace injury occurred or not…The symptoms he experiences of heartburn, trouble swallowing, change in bowel habits are likely secondary to irritable bowel syndrome and gastro-oesophageal reflux disease. These are pre-existing conditions that he was diagnosed with in 2017. The weight gain he experienced is likely to be from excess calorie intake. While weight gain could potentially contribute to gastrointestinal symptoms, it is insufficient to reasonably account for his symptoms. The rectal bleeding is likely secondary to haemorrhoids. I fail to see any relationship between his workplace injury and his current gastrointestinal symptoms. There is no physiological mechanism whereby his groin injury could lead to gastrointestinal symptoms. It is unreasonable to argue otherwise.”
47.Dr Sethi concluded that the applicant was diagnosed as having irritable bowel syndrome and gastro-oesophageal reflux disease in 2017. He stated that given that this was diagnosed three years previously, it was clearly a pre-existing condition and is entirely unrelated to his workplace right groin hernia.
48.In a report dated 27 May 2024, Dr Peter Conrad, consultant surgeon, noted that due to the ongoing severe pain in his right groin after the surgery by Dr Dutton, the applicant saw a number of specialists including Professor Boesel, pain management specialist; Professor Di leva, neurosurgeon; Dr Matthew, a psychologist with Sydney Pain Centre due to concomitant depression and anxiety; Professor Menon, neurologist; Dr Kadavil, pain specialist; and Dr Jayalath, a psychiatrist due to his ongoing pain causing depression.
Dr Conrad noted that the applicant also saw Dr Ibrahim, a surgeon, and Dr Gemma Olsen, neurosurgeon. Dr Conrad noted that “due to taking medications for his pain, he also saw Dr Chohan, a gastroenterologist, who did a gastroscopy, 29 July 2019, which showed some gastropathy presumably due to the painkiller tablets he was taking”.49.Dr Conrad noted that Dr Ibrahim, general surgeon, advised him against having the mesh removed, as he felt that this might make the pain worse. Dr Conrad noted that the applicant has had pain management treatment including nerve blocks and more recently a spinal stimulator inserted by Professor Boesel. He noted that the implant is still in place but the initial implant got infected and had to be taken out and replaced on the left side where it is situated at the moment.
50.Dr Conrad expressed the view that after the surgery on 28 September 2018, the applicant sustained severe ongoing pain with a distribution in the right ilioinguinal nerve and common peroneal nerves, and the dysaesthesia is associated with severe pain and hypersensitivity in the nerve distribution. Dr Conrad noted that the pain has been so severe that he has needed about three operations for the insertion of spinal stimulators, with the original stimulator having to be replaced by a second stimulator due to infection. Dr Conrad noted that the applicant has also had “significant psychological problems due to his ongoing pain and some indigestion and abdominal pain due to the effects of the pain management tablets, which have been shown to be due to gastritis on gastroscopy”.
51.Dr Conrad assessed using Table 6.3 of AMA 5, a Class 1 Impairment for gastritis, giving 5% WPI on the basis of symptoms and signs of upper digestive tract disease with continuous treatment not required.
Reports of treating doctors and physiotherapists
52.In a report dated 14 July 2017, Dr Farzan Bahin, treating gastroenterologist and hepatologist, noted that the applicant had longstanding reflux/heartburn, abdominal cramps and intermittent loose motions. He reported that the applicant underwent endoscopic evaluation on 8 July 2017.
53.Dr Bahin reported that the gastroscopy as “Oesophagus - small hiatus hernia and mild reflux oesophagitis. Stomach - bile reflux; mild gastritis distally...” He described the colonoscopy as an unremarkable study. Under “Histology”, he wrote: “Oesophageal biopsy - reactive changes in keeping with reflux oesophagitis. Gastric biopsy - acid secreting mucosa, within normal limits. Duodenal biopsy - within normal limits. Random colonic biopsy - within normal limits. Disaccharidases – normal.”
54.Dr Bahin recommended “Nexium and Ranitidene half an hour before food bd and regular Metamucil”.
55.Dr Bahin wrote:
“Walter has had longstanding heartburn, regurgitation and acid reflux over the last few years. Nexium helps but he wishes not to rely on medications in the long term. For a while now he has also had abdominal cramps which is worse at night. There are loose motions/diarrhoea up to 1-2 times a week. There are no other alarm features and his weight has been stable…Walter can be reassured on the basis of his endoscopic evaluation. His reflux oesophagitis needs ongoing lifestyle and pharmacological adjustment. If this doesn't help, then anti-reflux surgery could be considered.”
56.In a report dated 4 February 2020, Dr Bahin noted that he had not seen the applicant for two to three years and caught up with him in regard to his persistent troubles related to reflux, heartburn, abdominal discomfort and occasional loose motions. He noted that the applicant sometimes had troubles with swallowing after having tablets as well.
57.Dr Bahin wrote:
“He recently had a work-related operation and has been off work which has caused him to gain weight to 90 kilograms. He saw an ENT for nasal and throat issues and, despite an increase in Nexium, he hasn't really had an improvement. Of late, he has also had PR bleeding.”
58.Dr Bahin asked the applicant to have a repeat gastroscopy and colonoscopy to ensure no new or complicating pathology had evolved since his last procedure and to then institute a time restricted eating pattern of eight hours per day in combination with lowering his carbohydrate intake. Dr Bahin hoped that with these changes, the applicant’s need for Nexium and Tazac would decrease, and that with improved mood and energy, he might not need the Efexor which was not helping the situation.
59.In a report dated 27 June 2023, Professor Antonio Di Ieva, treating neurosurgeon, noted that the applicant underwent an implant of a Medtronic Spinal Cord Stimulator on 5 April 2023 but unfortunately had issues with the wound and was bought back to the theatre on 3 May 2023 for surgical debridement. He noted that the incision continued to show signs of a lack of healing and a further debridement was performed. Professor Antonio Di Ieva noted that the applicant underwent a further operation on 31 May 2023 when the implant was removed. He noted that after the surgery on 31 May 2023 confirmation was received that the infection was due to a staphylococcus aureus. He proposed that once the applicant had healed a further operation for the implant should be carried out with the impulse generator placed on the other side.
60.In a report dated 26 March 2024, Professor Tillman Boesel, treating interventional pain specialist, noted that the applicant currently manages with simple analgesia (paracetamol/ibuprofen), although he does take occasional Panadeine. Professor Boesel noted that since the surgery by Dr Dutton, the applicant has had continuous pain, which has not fundamentally changed in character.
61.Professor Boesel noted that the applicant described constant pressure in the right groin, that was worse with activity which further produced stabbing pain in the groin and a sensation of a dead leg. He noted symptoms were increased by fullness of the bladder and tight clothing. He noted there were intermittent paraesthesias in the anterior thigh and medial calf and reports of weakness on bending his hip beyond 90 degrees.
62.Under “treatment history” Professor Boesel wrote:
“He saw Dr Nabeel Ibrahim, who performed two nerve blocks and then subsequently referred him on for pain management. He has seen my colleague, Dr Hasher Kadavil, previously, who performed a pulsed radiofrequency neurotomy to the groin without benefit. I saw him and performed an L1 DRG pulsed neurotomy, which again was of no benefit.
After some delays in approval from the insurer, he underwent a spinal cord stimulator trial in 2023. He subsequently went on to have an implant following a successful trial.
He, unfortunately, developed a refractory wound breakdown in his right buttock surgical site where the battery was placed. The aetiology of this is unclear, though pathology has shown that there was granulomatous inflammation in the wound. There were multiple surgical procedures (four) followed by a final debridement by a plastic surgeon. The device was explanted during this course.
He has subsequently undergone a re-implantation of the stimulator which is helping him, though he required a battery revision.
He does feel the stimulator helps, both in terms of a sense of distraction and also reducing his groin pressure.”
63.Professor Boesel made a diagnosis of a chronic post-surgical pain syndrome. He wrote:
“Specifically, he has sustained injuries to the ilioinguinal, iliohypogastric and genitofemoral nerves in relation to surgical hernia mesh placement. He has sensory disturbance in the distribution of the right femoral nerve, possibly related to nerve tethering.”
64.Professor Boesel made the following assessment of WPI:
“With respect to assessment of whole person impairment, the following impairments apply:
Femoral nerve: Pain with dysaesthesia by AMA-5, Table 17.37, whole person impairment of 3% for the right femoral nerve. In respect to the innervation of the groin, I refer to Table 5.1 of the 2016 guidelines to whole person impairment by SIRA.
● Genitofemoral nerve, severe neurogenic pain and sensory alteration in an anatomic distribution, 5% impairment.
● Ilioinguinal nerve, severe neurogenic pain and sensory alteration in an anatomic
distribution, 5% impairment.
● Iliohypogastric nerve, mild-to-moderate neurogenic pain and sensory alteration in an anatomic distribution, 3% impairment.
TEMSKI assessment for scarring – 4% whole person impairment is allocated for the various scars, in particular the right buttock scars where multiple surgical procedures have occurred.”
65.In the clinical notes from Rainbow Medical Practice, entries included the following:
(a) 4 January 2016 - Dr Giang Nguyen noted that the applicant had a tender sore shoulder and a sore knee and “been taking lot of Nurofen now causing stomach pain suggest for Somac 1 daily and stay of [sic] Nurofen taking Panadein [sic] forte instead for his shoulder...”
(b) 27 June 2016 – Dr Giang Nguyen noted that the applicant had back pain and epigastric pain and wrote: “Reflux – gastro-oesophageal plan start on Pariet as Somac is not working and for Celebrex as not affecting stomach like the others.” Dr Nguyen prescribed Pariet EC tablet 200mg one daily and Celebrex capsule 200mg one daily.
(c) 26 September 2016 – Dr Giang Nguyen noted that the applicant had “testes torsion and had surgery 1 week now yesterday had another abdo pain …been on Panadeine Forte”.
(d) 2 March 2017 – Dr Giang Nguyen noted that the applicant had had surgery and “need Panadeine Forte”.
(e) 2 June 2017 – Dr Giang Nguyen noted that the reason for contact was gastroenteritis, reflux gastro-oesophageal. He noted “reflux bad Pariet was working now it is not and not responding to Somac taking Nexium and feeling better …need referral to gastroenterologist”. Dr Nguyen referred the applicant to Dr Bahim and prescribed Nexium EC tablets 40mg one daily.
(f) 11 September 2017 – Dr Giang Nguyen noted the reason for contact was a cold and viral illness. He wrote: “2. reflux scope showing hiatus hernia and suggest he be on Nexium od and Tazac 1 bd.” He prescribed Nexium EC tablet 20mg one daily and Tazac capsule 150mg.
(g) In the entries dated 17 Feb 2018, 2 March 2018, 30 July 2018, 25 August 2018 and 14 September 2018 reference is made to the applicant attending Dr Nguyen but no reference is made in these consultations to reflux and no prescriptions for NSAIDS or Nexium were issued in this period.
(h) 18 September 2018 - Dr Giang Nguyen noted complaints of testicular pain and referred the applicant for an ultrasound. In a later consultation on
18 September 2018, Dr Nguyen explained that the applicant had a femoral hernia and referred him to Dr Peter Dutton. No pain medications were prescribed.(i) 21 September 2018 - Dr Giang Nguyen noted “pain is not as bad …not doing physical work …booked in to see surgeon.” No pain medication was prescribed.
(j) 12 October 2018 - Dr Giang Nguyen noted the hernia had been fixed. He wrote: “fair bruising …still having pulling feeling swelling on R groin as he is taking pain relief very often, plan is to rest him another week.”
(k) 25 October 2018 - Dr Giang Nguyen noted the applicant had seen Dr Dutton and the plan was to rest and review. He wrote: “stomach play up need more Nexium”. He prescribed Nexium EC tablet 20 mg one daily.
(l) 5 November 2018 - Dr Giang Nguyen noted “pain was bad on waking up yesterday been to Nepean having Endone then once home taking Panadein [sic] Forte.”
(m) 23 November 2018 - Dr Giang Nguyen noted that the applicant had seen the surgeon last week and was now being put on Lyrica 150 nocte. He noted the applicant was taking pain relief as well “taking Nexium 20 mg daily but still in pain as taking Nurofen”.
(n) 10 December 2018 - Dr Giang Nguyen noted that the applicant was in pain. He prescribed Panadol Osteo SR tablets 665mg and Nexium EC Tablets 20 mg one daily.
(o) 21 December 2018 - Dr Giang Nguyen noted that the applicant was not coping mentally and had depressive features.
(p) 9 January 2019 - Dr Giang Nguyen noted that the applicant was feeling low in mood and waiting approval for psychology and wanted to start on “meds”.
Dr Nguyen prescribed Lovan capsules 20 mg 1 mane.(q) 11 January 2019 - Dr Giang Nguyen noted pain was bad and “need nsaid”. He prescribed Tazac capsule 150 mg and Celebrex capsule 200mg 1 daily.
(r) 14 January 2019 –Dr Giang Nguyen noted now on Celebrex and “note he tried Lyrica and not feeling well...need cont Lovan”.
(s) 16 January 2019 - Dr Giang Nguyen noted “Lyrica OK at home the head is not right at work …counselling.”
(t) 24 January 2019 - Dr Giang Nguyen noted right medial groin pain constant, not back to work since 15 January 2019. He noted “says went in the morning and could not tolerate the pain.”
(u) On 1 February 2019 - Dr Giang Nguyen noted “depressed and may need to push the dose.”
(v) On 6 February 2019 - Dr Giang Nguyen noted “physio stir thing up tender groin suggest for cont Lyrica re his anxiety and depression suggest Valium but refuse suggest Stemetoil [sic] mane and review.”
(w) On 7 February 2019 – Dr Giang Nguyen noted “pain in waves… need pain management”.
(x) On 18 February 2019 - Dr Giang Nguyen noted “seen Dr Dutton ? pain associates with scarring …. and now opt for pain management”. He prescribed Efexor-XR SR capsule 37.5 mg one daily.
(y) On 25 February 2019 - Dr Giang Nguyen noted “severe depression – seen Nepean mental Health and not followed up”.
(z) On 26 February 2019 - Dr Giang Nguyen noted “we try to bring down and wean off Lyrica to 25 due to his severe depression.” He noted “need Diazepam script for his anxiety and nerve and depression short term”. He prescribed Diazepam Tablet 2mg one to two daily.
(aa) On 11 March 2019 - Dr Giang Nguyen noted “now to increase to 75 mg Efexor from 37.5 and pain management”. He prescribed Efexor-XR SR capsule 75mg one daily.
(bb) On 5 April 2019 - Dr Giang Nguyen noted “using more Lyrica lately…been overdosing himself with Lyrica.”
(cc) On 15 April 2019 - Dr Giang Nguyen noted that depression was controlled, the pain is not controlled. He suggested that the applicant take Lyrica again at 25mg nocte.
(dd) On 28 May 2019 - Dr Giang Nguyen noted “taking Nurofen and Panadol”. He noted “Reflux – gastro-oesophageal, pain, diarrhoea” and prescribed Nexium EC Tablet 20 mg one daily, Nuromol EC tablet 200mg/500mg tablet.
(ee) On 18 June 2019 - Dr Giang Nguyen noted “feeling something stuck on the throat” and on examination found “tender sore epigastric and globus feeling suggest no Nuromol and for Tarzac and Nexium bd”.
(ff) On 25 June 2019 - Dr Giang Nguyen noted “taking Nexium and Tarzac still same…need to wait to see pain management on 16/7”. He noted “talk re pain and reflux”. He wrote: “2 severe globus feeling and tender on epigastric area despite Tazac and Nexium suggest to see gastroenterologist. Letter created – re referral letter with full history to Dr Veronica Cohan.”
(gg) On 9 July 2019 - Dr Giang Nguyen noted “note the feeling on the throat the whole time he is to see Veronica next week.”
(hh) On 4 September 2019 - Dr Giang Nguyen noted “pain is bad been taking a lot of Panadol suggest adding Panadein Forte mix with Panadol”. He prescribed Panadeine Forte tablet 500mg/30mg.
(ii) On 14 November 2019 - Dr Giang Nguyen noted “had nerve blocked had ant numb feeling for 2 hours then the pain went back now 2 weeks ago may need further pain management. It is risky re femoral hernia. Pain every day the nerve block making no difference whatsoever the Nurofen is helping but causing reflux…”
(jj) On 6 December 2019 - Dr Giang Nguyen noted “had injection and the needle did not work and now needs to think of something taking lots of Nurofen and it helps but nee(sic) Gaviscon.”
(kk) On 30 January 2020 - Dr Giang Nguyen noted “the GORD symptoms persist
need referral to gastroenterology surgeon”. A referral was made to Dr Bahin.
(ll) On 5 May 2020 - Dr Giang Nguyen noted “taking Nurofen / Panadol and Naprogesic and helps a little bit approx. 3-4 daily…just realise that Efexor is helping him with the pain”.
(mm) On 19 May 2020- Dr Giang Nguyen prescribed Efexor-XR SR 1150 mg 1 mane and “need Nexium as well”.
(nn) On 28 May 2020 - Dr Giang Nguyen noted “having Maxigesic and not really work …issues with ongoing pain and depression.”
(oo) On 2 June 2020 - Dr Giang Nguyen noted reason for contact was pain and “XR constipation”.
(pp) On 15 July 2020 - Dr Giang Nguyen noted has been on Efexor 225 mg he has a dry mouth will need to see psychiatrist”.
(qq) On 11 September 2020 - Dr Giang Nguyen noted “still on Efexor 225mg”.
(rr) On 7 October 2020 - Dr Giang Nguyen noted “seen psychiatrist pumped up Efexor from 225 to 300…constipated as well and suggest cotn [sic] Metamucil with Coloxyl and Senna.
(ss) On 6 November 2020 - Dr Giang Nguyen noted “pain is very bad…taking Nurofen and Panadol not working.”
(tt) On 4 December 2020 - Dr Giang Nguyen noted “now on reduced Efexor 225 (from 300) and for adding Avanza 15 mg nocte …taking Panadol extra and Nurofen all the time” Reasons for contact were pain, depression and constipation.
(uu) On 22 February 2023 – Dr Giang Nguyen noted reason for contact included reflux gastro-oesophageal. He issued prescriptions for Tazac capsule 150 mg 1bd and Nexium EC tablet 20 mg 1 daily. He noted: “reflux - need to start on Nexium and Tarzac.”
(vv) On 7 June 2024 – Dr Giang Nguyen noted “the pain is kind of worse as he is trying to more running around the house taking more Panadol and Nurofen for same play up his stomach a fair bit…”
(ww) On 30 August 2024 – Dr Gaing Nguyen noted “need Efexor as off for 2 days and start feeling unwell and need more Nexium as well – Reflux counselling can try off Nexium on and off basis and to see if he can go off but if not we may need to reduce to the lowest dose possible.”
(xx) On 1 October 2024 – Dr Giang Nguyen noted “been taking more Nurofen and Panadol …taking 1 Panadol and 1 Nurofen and this every day 2-3 times”.
66.The clinical notes of Nepean Hospital contained the following entries:
(a) 4 November 2018 Matthew Binks, Medical Trainee noted: “No GI/GU symptoms” and b/g GORD, gas/colon 3 yrs ago – NAD – otherwise no abdo OTs – Nexium nkda.” Treatment plan included analgesia regularly. Ms Ilic, registered nurse noted that Endone was given for pain. In the Clinical Initiatives Form the following was noted: “today pain from operative site. …Reflux NKDs”.
(b) On 21 February 2019 Dr Ashraf Phillips noted that the applicant had self-presented because of suicidal ideation in the context of chronic pain and other health issues.
DISCUSSION
Consequential condition in the digestive system
67.The first issue to be determined is whether the applicant sustained a consequential condition in his digestive system, which resulted from the injury on 18 September 2018. The applicant submits that he had sustained a consequential condition in the digestive system as a result of the medication he has taken following surgery to repair a hernia following the injury at work on 18 September 2018.
68.It is necessary to establish the relevant test for determining consequential conditions, particularly when there is the presence of pre-existing pathology in a body system which is suggested to be the cause of ongoing problems.
69.In Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452 (Kooragang), Kirby P stated [at 462E]:
“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.”
70.Further, 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 common sense 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.”
71.In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8, Deputy President Roche dealt with a question of whether an injured worker's shoulder condition resulted from mobilising whilst recuperating from an accepted back injury. In finding a consequential condition was present, the Deputy President noted that it was not necessary for the worker to establish that he has significant pathology in his shoulder, only that the proposed surgery is reasonably necessary as a result of the injury on 19 March 2009.
72.Deputy President Roche in Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 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 (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja {2009] NSWWCCPD 158 at [122] ; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD8 at [35] –[49] and [61]). ...
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’.”
73.The High Court in Comcare v Martin (2016) HCA 43 (Martin) considered the extent to which one can rely on a “common sense approach”.
74.In Martin the High Court stated at [42]:
“Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm.” (Footnotes omitted)
75.However, as I understand it, Kirby P in Kooragang when referring to applying “commonsense” was not suggesting it be applied “at large” or that issues were to be determined or answered by "common sense" alone, rather than by a careful analysis of the evidence.
76.The applicant submitted that there was sufficient evidence for me to make a finding of a consequential condition in the digestive system.
77.There is no dispute that the applicant sustained injury, namely, a hernia, at work on
18 September 2018.78.I accept that the applicant had complained about reflux prior to the injury on
18 September 2018. Indeed, in his statement dated 31 January 2025, the applicant said that he was diagnosed with reflux in 2016.79.The clinical notes of Dr Nguyen provide a more detailed history of the complaints made by the applicant about reflux prior to the work injury on 18 September 2018. On 4 January 2016 Dr Nguyen noted that the applicant had a tender sore shoulder and a sore knee and “been taking lot of Nurofen now causing stomach pain”. Dr Nguyen suggested the applicant take Somac one daily and stay off Nurofen taking Panadeine Forte instead for his shoulder. On
27 June 2016 Dr Nguyen noted that the applicant had back pain and epigastric pain and diagnosed “Reflux – gastro-oesophageal”. Dr Nguyen proposed that the applicant start on Pariet as Somac was not working and take Celebrex as it did not affect the stomach like the other medications. On 26 September 2016 Dr Nguyen noted that the applicant had a testes torsion and had undergone surgery a week earlier, had been on Panadeine Forte and had abdominal pain.80.On 2 March 2017, Dr Nguyen noted that the applicant had had surgery and needed Panadeine Forte. On 2 June 2017 Dr Nguyen noted that the applicant had bad reflux and Pariet was not working now. He noted that the applicant was taking Nexium and feeling better. He referred the applicant to Dr Bahin. On 11 September 2017 Dr Nguyen was consulted by the applicant about a cold but went on to note that the reflux scope showing hiatus hernia and suggested the applicant be on Nexium and Tazac.
81.Dr Bahin, on 14 July 2017, noted that the applicant had longstanding reflux/heartburn, abdominal cramps and intermittent loose motions. He reported that the gastroscopy as “Oesophagus - small hiatus hernia and mild reflux oesophagitis. Stomach - bile reflux; mild gastritis distally...” Under “Histology”, he wrote: “Oesophageal biopsy - reactive changes in keeping with reflux oesophagitis”. Dr Bahin recommended Nexium and Ranitidene “half an hour before food bd” and regular Metamucil.
82.Dr Bahin wrote: “…Walter can be reassured on the basis of is endoscopic evaluation. His reflux oesophagitis needs ongoing lifestyle and pharmacological adjustment. If this doesn't help, then anti-reflux surgery could be considered”.
83.I noted that the applicant consulted Dr Nguyen about various health issues on
17 February 2018, 2 March 2018, 30 July 2018, 25 August 2018 and 14 September 2018 but there was no reference in those clinical entries to any complaints about reflux or any gastrointestinal issues. No prescriptions were made for NSAIDS or Nexium, Tazac during this period. The clinical notes also demonstrate that the complaints of reflux were, in the main, made when the applicant was taking Panadeine Forte or Nurofen after surgery or when experiencing pain in his shoulder, knee or back.84.I am satisfied that the evidence demonstrates that the applicant had a pre-existing condition, namely, reflux oesophagitis, for which he was treated in 2016 and 2017. However, there were no complaints about reflux or further consultations about reflux by Dr Nguyen after
11 September 2017. There were no further consultations with Dr Bahin and no suggestion that anti-reflux surgery was considered. The treatment for the reflux oesophagitis was, in my view, limited and I accept that after he saw Dr Bahin in July 2017, he made no further complaints to Dr Nguyen concerning reflux.85.Dr Sharp expressed the opinion that the applicant did not suffer a gastrointestinal injury as a result of the accepted hernia injuries. Dr Sharp noted that the first colonoscopy and gastroscopy were in 2017, more than a year before his right groin injury. He considered that the symptoms are suggestive of irritable bowel syndrome, together with gastro-oesophageal reflux disease and this has been documented on two gastroscopies and colonoscopies.
Dr Sharpe concluded that as “it precedes his inguinal hernia symptoms, it is not related to the previously accepted hernia injury”.86.Dr Sethi expressed the opinion that the applicant had developed chronic pain post groin surgery which was entirely unrelated to his gastrointestinal symptoms. Dr Sethi considered that the applicant would have very likely have developed gastrointestinal symptoms regardless of whether the workplace injury occurred or not. He was of the view that the symptoms he experiences of heartburn, trouble swallowing, change in bowel habits are likely secondary to irritable bowel syndrome and gastro-oesophageal reflux disease and these were pre-existing conditions that he was diagnosed with in 2017. Dr Sethi did consider that the weight gain could potentially contribute to gastrointestinal symptoms but was insufficient to reasonably account for his symptoms. He opined that the rectal bleeding was likely secondary to haemorrhoids. Dr Sethi wrote:
“I fail to see any relationship between his workplace injury and his current gastrointestinal symptoms. There is no physiological mechanism whereby his groin injury could lead to gastrointestinal symptoms. It is unreasonable to argue otherwise.”
87.Dr Sethi concluded that the applicant was diagnosed as having irritable bowel syndrome and gastro-oesophageal reflux disease in 2017. He stated that given that this was diagnosed three years previously, it was clearly a pre-existing condition and is entirely unrelated to his workplace right groin hernia.
88.Dr Conrad expressed the view that after the surgery on 28 September 2018, the applicant sustained severe ongoing pain with a distribution in the right ilioinguinal nerve and common peroneal nerves, and the dysaesthesia was associated with severe pain and hypersensitivity in the nerve distribution. Dr Conrad noted that the applicant has also had “significant psychological problems due to his ongoing pain and some indigestion and abdominal pain due to the effects of the pain management tablets, which have been shown to be due to gastritis on gastroscopy”.
89.I accept that Dr Conrad failed to take history of the pre-existing condition, namely, gastro-oesophageal reflux disease. However, he did consider the critical issue in this matter, that is, whether the pain management medication caused abdominal pain and gastritis. The fact that he omitted to take a history of the reflux problems in 2016 and 2017 and the diagnosis then of reflux oesophagitis by Dr Bahin is more critical in the actual assessment of impairment. I am satisfied on balance that the opinion given by Dr Conrad was made in a fair climate.
90.There is no dispute that the applicant underwent surgery, namely a laparoscopic repair of the right inguinal/femoral hernia that was undertaken on 28 September 2018. I accept that following that surgical procedure, the applicant developed a chronic pain condition in his right groin.
91.I accept the applicant’s evidence, which is not contested, that following the surgery for the hernia repair he continued to experience ongoing and increasing severe pain which impacted his ability to function and sleep. The applicant attended Nepean Hospital in early November 2018 where he was prescribed Endone for the pain. He consulted Dr Dutton who advised him to trial Lyrica 150mg for ongoing pain.
92.Dr Sharp, on 15 February 2019, noted that the applicant was taking Lovan two tablets at night, Lyrica 25mg at night and Panadol Osteo most days two tablets twice or three times a day. Dr Sharpe also noted that the applicant was taking Nexium for GORD and ceased a non-steroidal anti-inflammatory medication one week ago because of symptoms. Dr Sharp considered that current treatment was reasonable and necessary having regard to the work injury especially with the requirement for him to take Panadol Osteo and Lyrica for pain relief.
93.Dr Bahin, in his report of 4 February 2020, reviewed the applicant in relation to his “persistent troubles related to reflux, heartburn, abdominal discomfort and occasional loose motions” and noted that Efexor “was not helping the situation”.
94.On 15 April 2021, Dr Sharp noted that the applicant was taking Effexor; either Panadol or Panadol Osteo, four to six tablets a day; Naprosyn or Naprogesic, one tablet twice a day and Nexium, but had ceased the Lyrica in mid-2019. He noted that the applicant had seen both a psychiatrist and a psychologist.
95.The medical evidence establishes that the applicant suffered depression and anxiety following the surgery in October 2018. He gained weight. He was placed on anti-depressant medication which appears to have made matters worse in terms of reflux. I accept that there were numerous operations performed to implant a spinal cord stimulator, and complications, including infections, occurred in the course of that treatment.
96.The applicant has sought treatment from numerous specialists including Professor Boesel, Professor Di Leva, Dr Matthew, Professor Menon, Dr Kadavil, Dr Jayalath, Dr Ibrahim, and Dr Gemma Olsen. The applicant’s treatment has been extensive and involved numerous surgical procedures in relation to the spinal cord stimulator implant.
97.Dr Nguyen’s clinical notes are evidence, in my view, of a causal connection between the ingestion of medication and the increase in reflux. On 12 October 2018 Dr Nguyen noted that the applicant was taking pain relief “very often”. Nearly two weeks later, on 25 October 2018, Dr Nguyen noted that the applicant’s stomach was playing up and he needed more Nexium, which Dr Nguyen prescribed.
98.The causal connection between the ingestion of medication and the increase in reflux is demonstrated in an entry dated 14 November 2019, where Dr Nguyen noted a history of the applicant having “pain every day” and that “Nurofen is helping but causing reflux”. Similarly, on 7 June 2024, Dr Nguyen noted that the pain was worse, and the applicant was taking more Panadol and Nurofen for the pain and “play up stomach a fair bit”.
99.I am satisfied that because of the surgery which took place on 28 September 2018 following the injury on 18 September 2018, the applicant was prescribed and took a significant amount of medication to reduce his pain and, especially, the neuropathic pain, and also medication to treat the secondary psychological condition. The clinical records of Dr Nguyen show a sufficient link, in my view, between the onset of further gastrointestinal symptoms and the medication intake. There is evidence that Dr Nguyen tried to change medications or prescribed Nexium or Tarzac or similar medications to reduce gastric symptoms. Based on the clinical notes including such prescriptions made, Dr Nguyen, in my view, establishes a clear causal connection between the medication use and the symptoms of reflux.
100.In making the finding above, I prefer the evidence of Dr Conrad and Dr Nguyen to that of
Dr Sharp and Dr Sethi because neither Dr Sharp nor Dr Sethi properly address the question of whether the medications taken by the applicant caused an exacerbation in his gastrointestinal symptoms and resulted in a consequential condition. Dr Sethi and Dr Sharp both concluded that because the gastro-oesophageal reflux disease predated the inguinal hernia injury, it is not related to the hernia injury. Dr Sharp and Dr Sethi focused on whether the applicant had “suffered any work-related injury” to his gastrointestinal system, rather than the correct question of whether the symptoms had resulted from the medication taken following the surgery for the hernia injury. Further, Dr Sharp and Dr Sethi were aware of a pre-existing condition, but neither of them referred to the clinical notes of Dr Nguyen and looked properly at the history of the applicant’s gastro-oesophageal reflux disease.101.Dr Conrad, despite failing to take a history of a pre-existing condition, was the only medical expert who addressed the appropriate causation issues. As the Court of Appeal explained in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 what is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” ([85]). Dr Conrad complied with that requirement. An error in one part of a history does not necessarily destroy the probative value of an expert’s report. That is especially so if the balance of the report is consistent with the accepted evidence and supportive of the claim made. The error in the histories recorded by Dr Conrad must be read in the context of the whole of his reports and the whole of the evidence. The relevant causal connection is established by the combined effect of accepting both Dr Conrad and Dr Nguyen.
102.I am satisfied that there was an increase in symptomatology which resulted from the ingestion of medications prescribed because of his pain and depression and this was causally related to the surgery undertaken to repair the hernia following the injury on
18 September 2018. I am satisfied that it is more probable than not that the ingestion of medications prescribed following the hernia surgery led to an increase in reflux symptoms and the applicant developed a secondary condition, namely an aggravation of his pre-existing reflux oesophagitis.103.The respondent submitted that the results of the second gastroscopy were normal and therefore there was so no aggravation on a clinical basis. However, I accept that while the results were normal, there had been a significant increase in symptomology following the hernia surgery in 2018 and sufficient to find that the applicant had a consequential condition, namely an aggravation of his pre-existing reflux oesophagitis.
104.Having regard to all of the evidence, I am satisfied on the balance of probabilities that the applicant's reflux oesophagitis / gastritis is consequent upon his accepted hernia injury. I find that the applicant suffers from a consequential condition of reflux oesophagitis / gastritis as a result of the medications prescribed following his injuries on 18 September 2018.
105.However, it is a matter for a Medical Assessor to determine the nature and extent of the consequential condition, its persisting effects, if any, the relationship to any current impairment and the extent of any WPI which had resulted from that consequential condition as opposed to any pre-existing condition affecting the digestive system.
Referral to Medical Assessor
106.In the written submissions dated 2 May 2025, the respondent consents to the following body systems being referred to a Medical Assessor for assessment of permanent impairment:
(a) TEMSKI/scarring;
(b) urinary/reproductive system, and
(c) right lower extremity (femoral nerve).
107.In addition, the respondent submits that ‘Digestive System (Hernia)’ should also be referred to a Medical Assessor for the purposes of assessment of permanent impairment.
108.At the preliminary conference on 17 March 2025, the applicant has sought to amend the ARD to include the body system of “Central and Peripheral Nervous System” based on the assessment of Professor Tillman Boesel. Within his report dated 26 March 2024, Professor Boesel referred to Table 5.1 of the NSW Workers' Compensation Guidelines for the Evaluation of Permanent Impairment (The Guidelines) and assessed impairment in relation to the genitofemoral nerve, ilioinguinal nerve, and iliohypogastric nerve. The applicant submits that the body system of “Central and Peripheral Nervous System” should be included in the referral to the Medical Assessor.
109.I note that in the preliminary conference on 17 March 2025 the respondent agreed that the claims in respect of the hernia, scarring, reproductive system, and peripheral nerves could be referred for assessment by a Medical Assessor, but argued that any assessment of the peripheral nerves should be made under Pt 16.3 of the Guidelines.
110.As noted above, the respondent submits that the appropriate body system to be referred in relation to these nerves is the “Digestive” body system (Part 16 of the Guidelines). The respondent referred to Part 16.2, 16.3 and Part 1.23 as well as Part 5.1 and 5.3 of the Guidelines.
111.The respondent submits that the correct approach when assessing hernias and/or damage to nerves in the context of hernia repair is by reference to Part 16.3 of the Guidelines. The respondent submits that Part 16.3 of the Guidelines specifically envisages a scenario where, following a hernia repair, a nerve is damaged and references Table 5.1 of the Guidelines and that, on this basis, the inclusion of an additional body system (that is, the ‘Central and Peripheral Nervous System’) is erroneous, particularly in the context of Part 1.23 of the Guidelines which allows assessors to compare measurable impairment by analogy.
112.The respondent submits that the above approach is consistent with that adopted by Dr Sharp in his report of 23 July 2024. Dr Sharp noted symptoms of pain had been present for more than 12 months and there was severe dysaesthesia in the distribution of the ilioinguinal nerve and the genitofemoral nerves on the right. Dr Sharp referenced Part 16.3 of the Guidelines and assessed 5% WPI for the ilioinguinal nerve and the genitofemoral nerves respectively. The respondent submits that it is correct to refer the body system of “Digestive System (Hernia)” without the need to refer the “Central and Peripheral Nervous System”, given that Part 16.3 of the Guidelines allows an assessor to account for any impairment to the relevant nerves.
113.The respondent submits that any impairments of the peripheral nervous system should be assessed not by reference to Part 5 of the Guidelines but by the relevant parts of the AMA 5 by which they are specifically considered. The respondent submits that to the extent Part 5.1 of the Guidelines is relevant, it is through Part 16.3 of the Guidelines and therefore an entirely different body system need not be referred for assessment.
114.Part 16.2 of the Guidelines provides:
“AMA5 Section 6.6, ‘Hernias’ (p136): occasionally in regard to inguinal hernia repairs, there is damage to the ilioinguinal nerve following surgical repair. Where there is loss of sensation in the distribution of the ilioinguinal nerve following the upper anterior medial aspect of the thigh a 1% WPI should be assessed as per Table 5.1 in Chapter 5 of the Guidelines. This assessment should not be made unless the symptoms have persisted for 12 months.”
115.Part 16.3 of the Guidelines provides:
“Where, following repair, there is severe dysaesthesia in the distribution of the ilio inguinal nerve, a maximum of 5%, whole person impairment (WPI) may be assessed as per table 5.1 in Chapter 5 in the Guidelines. This assessment should not be made unless the symptoms have persisted for 12 months.”
116. Part 5.1 of the Guidelines provides:
“AMA5 Chapter 13 ‘The central and peripheral nervous system’ (pp305-561), provides guidelines on methods of assessing permanent impairment involving the central nervous system. It is logically structured and consistent with the usual sequence of examination of the nervous system. Cerebral functions are discussed first, followed by the cranial nerves, station, gait and movement disorders, the upper extremities related to central impairment, the brain stem, the spinal cord and the peripheral nervous system, including neuromuscular junction and muscular system. A summary concludes the chapter.”
117.Part 5.3 of the Guidelines provides:
“Impairments of the peripheral nervous system are assessed by using the relevant parts of the upper extremity, lower extremity and spine sections of AMA5.”
118.Part 1.23 of the Guidelines provide:
“AMA5 (p111) states: ‘given the range , evolution and discovery of new medical conditions, these Guidelines cannot provide an impairment rating for all impairments…In situations where impairment ratings are not provided, these Guidelines suggest that medical practitioners use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.’ The assessor must stay within the body part/region when using analogy:
‘The assessor’s judgment, based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guidelines criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment’.”
119.The applicant claims that he suffered injuries to the genitofemoral nerve, Ilioinguinal nerve, Iliohypogastric nerve and femoral nerve and relies on the assessment by Professor Tillman Boesel in his report dated 26 March 2024.
120.The respondent refers to Part 16.3 of the Guidelines. However, Part 16.3 specifically refers to a situation where, following a hernia repair, there is damage to the ilioinguinal nerve. In my view, Part 16.3 relates only to an assessment of damage to the ilioinguinal nerve “as per table 5.1 in Chapter 5 of the guidelines.” Part 16.3 does not provide for assessment of the genitofemoral nerve, the iliohypogastric nerve or femoral nerve. Indeed, the assessment by Dr Sharp appears to be based on an incorrect application of the Guidelines in so far as he assessed the damage to the genitofemoral nerve under part 16.3 of the Guidelines.
121.In my view, a referral of the nerve injuries under the digestive system (Part 16) alone could lead to error. I accept the applicant’s submission that such a referral would ignore and leave the potential for a non-assessment of the femoral, genitofemoral or iliohypogastric nerves, which fall outside the scope of an assessment made under Pt 16.3.
122.It appears that the parties agree that assessment of the femoral nerve should be made by reference to Table 17.37 of AMA5, that is, assessment of the lower extremity impairments. There is no dispute that this assessment is appropriate and that the lower extremities should be referred to the Medical Assessor for determination. The respondent concedes this in the written submissions.
123.I find that the genitofemoral, ilioinguinal, and iliohypogastric nerves should be referred by reference to Table 5.1 of the Guidelines, which is contained within the chapter addressing the Nervous System. I agree with the applicant that this is the correct section of the Guidelines for assessment of these specific peripheral nerves.
124.The respondent submits that the correct approach when assessing hernias and/or damage to nerves in the context of hernia repair is by reference to Part 16.3 of the Guidelines. The respondent wrote:
“It is highlighted that Part 16.3 of the Guidelines specifically envisages a scenario where, following a hernia repair, a nerve is damaged and references Table 5.1 of the Guidelines. On this basis, it is submitted that the inclusion of an additional body system (that is, the ‘Central and Peripheral Nervous System’) is erroneous, particularly in the context of Part 1.23 of the Guidelines which allows assessors to compare measurable impairment by analogy.”
As noted above, Part 16.3 is limited solely to damage to the ilioinguinal nerve. The reference by the respondent to “a scenario where, following a hernia repair, a nerve is damaged” is, in my view, misleading as it omits reference to the words “Where, following repair, there is severe dysaesthesia in the distribution of the ilio inguinal nerve”. In addition, I have identified in the referral the particular nerves to be assessed. The reference to Part 1.23 is, in my view, misplaced as the Guidelines clearly provide an impairment rating for assessing the nerve injuries claimed.
125.The referral to the Medical Assessor will include the following body parts/systems:
· digestive system (hernia and consequential gastrointestinal condition);
· nervous system (genitofemoral nerve, Ilioinguinal nerve, Iliohypogastric nerve)
· TEMSKI/scarring;
· urinary/reproductive system, and
· lower Extremity (right femoral nerve).
126.I am satisfied that such a referral reflects the issues in dispute between the parties (Skates v Hills Industries Ltd [2021] NSWCA 142). The referral proposed by the respondent, in my view, would unfairly limit the scope of the referral which could prevent the applicant from receiving lump sum compensation for the nerve injuries identified.
ORDERS
127.Award for the applicant with respect to the consequential gastrointestinal condition.
128.The following body systems to be referred to a Medical Assessor for the purposes of assessing permanent impairment:
· digestive system (hernia and consequential gastrointestinal condition);
· Nervous system (genitofemoral nerve, Ilioinguinal nerve, Iliohypogastric nerve);
· TEMSKI/scarring;
· urinary/reproductive system, and
· lower extremity (right femoral nerve).
0
10
0