Moore v Australian Native Landscapes Pty Ltd
[2024] NSWPIC 131
•19 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Moore v Australian Native Landscapes Pty Ltd [2024] NSWPIC 131 |
| APPLICANT: | Norman Moore |
| RESPONDENT: | Australian Native Landscapes Pty Ltd |
| MEMBER: | Jill Toohey |
| DATE OF DECISION: | 19 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Applicant suffered accepted abdominal injury in the course of his employment as a truck driver; urgent laparotomy performed; mesenteric bleeding; incidental finding of neuroendocrine tumour during surgery; ileostomy performed; applicant developed problems with the ileostomy; proposed reversal treatment; whether the proposed treatment causally related to the accepted injury; Held – finding that the proposed treatment is not causally related to the injury; award for the respondent. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained abdominal injury on 20 December 2021 arising out of or in the course of his employment with the respondent. 2. The proposed treatment is not reasonably necessary as a result of the injury sustained by the applicant. 3. Award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
Norman Moore, the applicant, was employed as a truck driver for Australian Native Landscapes Pty Ltd, the respondent, on 20 December 2021 when he was involved in a motor vehicle accident. The steering wheel of his truck struck hit him in the abdomen and pinned him to his seat. An ambulance attended. He was given morphine for severe pain in his abdomen and he was taken to Campbelltown Hospital.
Mr Moore underwent urgent surgery at Campbelltown Hospital. A trauma laparotomy was performed and he was found to have mesenteric bleeding. In the course of the procedure to deal with the bleeding, Mr Moore was found to have a metastatic carcinoid tumour. He had not previously been aware of its presence. An ileostomy was formed in order to deal with the neuroendocrine tumour. Approximately 13cm of his bowel was resected and the ileocolic junction was removed together with the superior mesenteric artery. The wound was packed to stem the mesenteric bleeding and was left open. It was closed two days later after a “relook laparotomy” confirmed the bleeding had stopped.
The respondent accepted liability for Mr Moore’s abdominal injury.
Mr Moore has experienced ongoing problems with the ileostomy including leakage and irritation of the skin surrounding the stoma. Surgeon Dr Dean Yeh proposes treatment to reverse the laparotomy and the stoma so as to deal with these problems. There is no dispute that this is reasonable treatment for his condition.
By dispute notices issued on 13 September 2023 and 27 December 2023, the respondent disputed Mr Moore’s claim in respect of the proposed treatment.
The respondent accepts that the proposed treatment is reasonably necessary for Mr Moore’s condition but disputes any causal connection to his accepted injury.
By proceedings commenced in the Personal Injury Commission (Commission) on
17 January 2024, Mr Moore seeks payment of the cost of the treatment proposed by Dr Yeh.
ISSUE FOR DETERMINATION
The parties agree that the issue remaining in dispute is whether the treatment proposed by Dr Yeh is reasonably necessary as a result of Mr Moore’s injury on 20 December 2021.
PROCEDURE BEFORE THE COMMISSION
The parties attended a conciliation conference and arbitration hearing on 15 March 2024 at which Mr Moore was represented by Mr Hickey of counsel, instructed by Ms Panju. The respondent was represented by Mr Beran of counsel, instructed by Mr Gore-Lenskyj.
The documents in the Application to Resolve a Dispute (ARD) included reports from independent medical examiners, Dr Damodaran Prem Kumar and Dr Anthony Greenberg, both general surgeons with the same specialty. Mr Hickey advised that Mr Moore would rely on the opinion of Dr Greenberg only.
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 they have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Oral evidence
Neither party sought leave to adduce any oral evidence or cross-examine any witness.
Mr Moore’s evidence
Mr Moore provided a statement of evidence dated 17 December 2023 in which he described the circumstances of the accident, his treatment in Westmead Hospital, the finding of the cancerous tumour, and the difficulties he has had coping with the ileostomy bag including leakage and skin irritation around the stoma.
Mr Moore says he would like to have the treatment proposed by Dr Yeh, and he hopes to improve his enjoyment of life and restore the freedom from the bag that he enjoyed before the accident. He states his reasons for disagreeing with the opinion of the respondent’s independent medical examiner, Dr Siddharth Sethi. He says he believes the opinion of
Dr Anthony Greenberg, whom he saw at the request of his solicitors, is correct.
Ambulance report and Campbelltown Hospital discharge summary
A report by the ambulance officers who attended at the scene of the accident[1] shows that
Mr Moore was found in his vehicle with the steering wheel and dash compressed into his abdomen. He was administered morphine “to partial effect” and was taken to Westmead Hospital. There is no dispute as to the circumstances of the accident or Mr Moore’s injury, and it is not necessary to refer to the report further.[1] ARD page 50.
Clinical records from Campbelltown Hospital are in evidence.[2] Dr Greenberg cites relevant extracts in his report. They show that there was a “mesenteric laceration from ileocolic (at site of the mesenteric calcified mass) to the root of the mesentery”. On CT imaging, an ileocolic mesenteric calcified mass, likely a neuroendocrine tumour, with likely metastases in the liver, was seen. A laparotomy was performed and the terminal Ilium and distal ascending colon were resected. Some persistent arterial bleeding was identified and the decision was made to pack the wound to set the bleeding and keep the laparostomy open. A “relook laparotomy” was performed two days later, the packs were removed, a ileostomy was formed, and the abdomen was closed.
[2] ARD page 57.
The proposed treatment
Dr Yeh’s quote for the proposed treatment describes it in two parts:
i) laparotomy/laparoscopy for intestinal obstruction, and
ii) large intension resection with anastomosis including right hemicolectomy.[3]
[3] ARD page 37.
Dr Sethi’s report
Dr Sethi saw Mr Moore for assessment on 14 July 2023 and provided a report dated
20 July 2023.[4] He noted that Mr Moore sustained abdominal injuries in the motor vehicle accident and was airlifted to Westmead Hospital where he underwent urgent trauma laparotomy and was found to have a metastatic neuroendocrine tumour of the terminal ileum. An ileocolic resection was performed and Mr Moore was returned to the intensive care unit with an open abdomen.[4] Reply page 12.
Dr Sethi noted that, on 23 December 2021, a “relook laparotomy” was performed and no further bleeding was found. The masses in Mr Moore’s liver were found to be cancerous and had spread. A stoma was created to assist with treatment. Mr Moore was treated with various medications to manage the “high stoma output” and he was commenced on chemotherapy.
Dr Sethi stated that Mr Moore:
“… was involved in a MVA where he sustained abdominal injuries, and was found to have neuroendocrine tumour of the ileum which had metastasised to the liver and lymph nodes. An ileocolic resection was performed and a stoma was constructed. Chemotherapy for his tumour was prescribed. His stoma was created in order to treat his neuroendocrine tumour and stoma reversal has been deferred in order to facilitate cancer therapy. Stoma reversal is planned to take place in the future. He has developed complications including skin irritation/breakdown, abdominal pain, diarrhoea with several loose watery motions daily and stoma bag disconnection from the skin. Mr Moore blames his MVA for his current symptoms.”
Dr Sethi stated that he disagreed with Mr Moore as to the cause of the problems with his stoma bag. He said Mr Moore’s current symptoms:
“… are entirely due to his underlying metastatic neuroendocrine tumour. His MVA did not play any causative role whatsoever and it has occurred regardless. He has long since recovered from his MVA without any sequelae whatsoever. I shall outline my reasoning below.
Mr Moore was found to have mesenteric lacerations only as a result of his MVA, which were repaired. A neuroendocrine tumour of the ileum which had metastasized to the liver and lymph nodes was incidentally diagnosed. This was previously undiagnosed and asymptomatic. Ileocolic resection, stoma formation and chemotherapy were prescribed in order to treat his cancer. Stoma reversal was deferred in order to facilitate cancer treatment. In view of this, it is highly unreasonable to blame his MVA for causing his current symptoms. They have occurred regardless.”
Dr Greenberg’s report
Dr Greenberg saw Mr Moore for assessment on 31 October 2023 and provided a report dated 29 November 2023.[5]
[5] ARD page 22.
Dr Greenberg took a history of the accident and Mr Moore’s subsequent treatment which is uncontroversial. He noted that Mr Moore required a trauma laparotomy, and two post-operative procedures before his abdomen was closed. He noted a copy of the operation report from Campbelltown dated 20 December 2021 parts of which he reproduced in his report.
Dr Greenberg noted that Mr Moore “was left with an ileostomy which he has had to deal with for the last 2 years and 10 months” and he described Mr Moore’s current symptoms which he said had had a significant impact on his quality of life and day to day activities.
Dr Greenberg described the injuries received in the accident as trauma laparotomy, ileocolic resection, and formation of an end ileostomy. Mr Hickey acknowledged at the hearing that these are descriptions of treatment rather than the injury itself. Later in his report,
Dr Greenberg stated that Mr Moore sustained “intra-abdominal injuries and was recognised on the CT scan to have intra-abdominal bleeding.” He stated that it was confirmed that the lesions detected on the CT scan were a neuroendocrine tumour with multiple hepatic metastases.Dr Greenberg commented:
“It is recognised that Mr Moore would have required surgery because of the neuroendocrine tumour and required probable post-operative adjuvant therapy.
However, following the motor vehicle accident and need for urgent surgery and delayed abdominal closure, Mr Moore was left with the permanent ileostomy.”
Dr Greenberg said:
“● If Mr Moore was diagnosed and operated on before the motor vehicle accident (20 December 2021) and had an elective procedure, he would have had a planned procedure, and (more likely than not) would not have required a stoma.
· As a general rule, Mr Moore would have been advised to have a right hemicolectomy and ileocolic anastomosis and remove [sic] the bulk of the tumour as was possible.
· In my opinion, the need for a stoma and the subsequent closure that now Mr Moore requires was a consequence of the motor vehicle accident and not as a consequence of the incidental finding of a neuroendocrine tumour (carcinoid tumour).”
Dr Greenberg concluded:
“In my opinion, Mr Moore’s motor vehicle accident was a substantial contributing factor to his need for an ileostomy and would not have been necessary if he had elective surgery.”
SUBMISSIONS
The applicant’s submissions
Mr Hickey refers to the decision of Deputy President Roche in Taxis Combined Services (Victoria) Pty Ltd v Schokman[6] in which the worker claimed the cost of proposed dental treatment as a result of an accepted facial injury suffered during an assault in the course of his employment. Mr Hickey submits that the test is not particularly high: the injury need not be the only, or even the substantial, contributing factor to the need for the treatment.
[6] [2014] NSWWCCPD 18 (Schokman).
Mr Hickey relies on Dr Greenberg’s report which confirms that, in the course of the laparotomy, Mr Moore was found to have palpable lymph nodes. Mr Hickey submits that the laparotomy was carried out entirely because of the motor vehicle accident and, once the bleeding caused in the accident stopped, the stoma and ileostomy were performed.
Mr Hickey submits that Dr Greenberg acknowledges that Mr Moore would have needed surgery to treat the tumour at some point, but he says the need for the urgent surgery and the delay in closing the wound led to the need for the stoma and meant that a hemicolectomy could not be performed.
Mr Hickey submits that the manner in which the surgery was conducted was a direct result of the motor vehicle accident, and Dr Sethi does not address this in his report, and he has not countered Dr Greenberg’s opinion.
Mr Hickey submits that, while it is true that the tumour was an incidental finding, the way in which it was dealt with was altered by the need for the emergency treatment, and the laparotomy which had to stay open for a period. The requirement for the stoma was at least in part due to the injury, and the approach that was required was such that it was at least a material contributing factor to the need for the further procedure now being recommended by Dr Yeh.
The respondent’s submissions
Mr Beran submits that the need for the treatment does not result from the accepted injury. He refers to the decision in Lyons v Master Builders Association of NSW[7] in which Neilson CCJ held that “injury” refers to “both the [injurious] event and the pathology arising from it”. Mr Beran submits that the question is whether the pathology has made a material contribution to the need for the proposed treatment.
[7] (2003) 25 NSWCCR 423.
Mr Beran submits that the laparotomy was clearly required as a result of the accident, and there is no dispute that it was necessary. However, the stoma was not required in the first place as a result of the injury and nor is the procedure that Mr Moore now requires.
Mr Beran submits that there is no evidence from any doctor as to why the stoma was created in the first place. The discharge notes show that the mesenteric laceration was caused by the motor vehicle accident, and that was the injury in the sense of the relevant pathology. The injury in the motor vehicle accident was purely mesenteric and not related to the bowel.
Mr Beran submits that the ileostomy was not created because of the mesenteric bleeding; it was due to the removal of the bowel, and there is no relevant causative link. The test is not one of “but for the motor vehicle accident”; the issue is whether the mesenteric bleeding made a material contribution to the need for the stoma. Mr Beran submits that it did not, and without the incidental finding of the tumour, Mr Moore would not have needed the stoma.
As to incidental findings, Mr Beran refers to Corrigan v CL Brown & Sons[8] in which an employer was found not liable for the cost of a CT scan to investigate a condition that was not connected to the injury.
[8] [1998] NSWCC 37; (1998) 16 NSWCCR 681 (Corrigan).
Mr Beran submits that Dr Greenberg’s argument is that, had Mr Moore had a planned procedure to deal with the tumour, he would not have needed the stoma; it was the delay because of the mesenteric bleeding that led to the need for the stoma. Dr Greenberg says that, “as a general rule”, Mr Moore would have been advised to undergo a right hemicolectomy. Mr Beran submits that we are not dealing with general rules but with
Mr Moore’s case, and we do not know if he could have had a hemicolectomy and there is no report or evidence that it was even possible. Mr Beran submits that general rules do not equate to the balance of probabilities. Further if, as a general rule, a hemicolectomy would have been undertaken, Dr Greenberg does not explain why it was not.Mr Beran submits that Mr Moore’s case is dealing in hypotheticals; we do not know why the “relook laparotomy” was performed, we do not know why there was a delay in creating the stoma after the first operation; we do not know if it could have been created in the first operation; we do not know why a hemicolectomy could not have been done. Mr Beran submits that we know from the hospital discharge records what happened, but not why. There is no report from the treating surgeon about these issues. Dr Sethi makes clear that there is no link between the laceration and the removal of the ileum which created the need for the stoma.
Mr Beran submits that the evidence does not support the finding that Mr Moore’s accepted injury made a material contribution to the need for the proposed treatment.
Submissions in reply
In reply, Mr Hickey submits that the question of bleeding and delay is dealt with in the discharge summary. Dr Greenberg states that the decision to delay was because there was still bleeding. Mr Hickey submits that we know that it was directly related to the bleeding.
Mr Hickey submits that it is not necessary for Mr Moore to have a report from the treating doctor in order to make out his case. He relies on the expert opinion of Dr Greenberg who provides evidence as to how the tumour would usually be dealt with.
Mr Hickey submits that the fact that the tumour was an incidental finding does not defeat
Mr Moore’s claim. He does not suggest it was a direct result of the injury. As Dr Greenburg says, the injury altered the approach to the treatment.
CONSIDERATION
Section 60(1) of the Workers Compensation Act 1987 (the 1987 Act) provides:
“If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
There is no dispute that the neuroendocrine tumour was found incidentally in the course of treatment of Mr Moore’s accepted abdominal injury and that it was unrelated to the mesenteric bleeding which was the injury caused by the motor vehicle accident. There is no dispute that the ileostomy was created solely in order to deal with the neuroendocrine tumour. There is no dispute that Mr Moore has had continuing problems with the ileostomy and that the proposed reversal of the laparotomy and stoma is reasonably necessary treatment for his condition.
The issue for determination is whether the need for the proposed treatment is causally related to the injury sustained by Mr Moore on 20 December 2021 in the course of his employment.
Mr Moore bears the onus of proof. The standard is on the balance of probabilities, meaning I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland[9] and Nguyen v Cosmopolitan Homes.[10]
[9] Department of Education and Training v Ireland [2008] NSWWCCPD 134.
[10] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The legal test of causation was described by Kirby P (as he then was) in KooragangCement Pty Ltd v Bates[11] as follows:
“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.”
[11] 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
The work injury does not have to be the only, or even a substantial, cause of the need for the reasonably necessary treatment. In Murphy v AllityManagement Services Pty Ltd,[12] Deputy President Roche said at [57]-[58]:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]-[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
[12] [2015] NSWWCCPD 49.
In Schokman, the worker suffered facial injuries during an assault which eventually resulted in the loss of four teeth, requiring treatment with a fixed bridge. At the time of the treatment, he was found to have pre-existing periodontitis unrelated to the assault. Some years later, the bridge broke. On examination, a further complication of peri-implantitis was identified, requiring treatment. The insurer maintained that the need for the new bridge was not necessary as a result of the injury. There was a dispute as to whether the worker had the particular periodontal condition and, if so, whether it made a material contribution to the need for the new bridge.
On appeal, Deputy President Roche rejected the respondent’s submission that, in assessing the chain of causation, the Arbitrator had failed to consider adequately the evidence relating to other possible causative factors. He said that the fact that the worker had a pre-existing condition and poor oral hygiene, which may have been factors in developing a further condition, did not mean that the proposed treatment of the further condition was not as a result of the injury. He found that the worker required implants because of his injury, not because of his pre-existing periodontitis.[13]
[13] Schokman at [52].
Deputy President Roche said at [54]:
“It follows that, even if it were accepted that the peri-implantitis was ‘caused’ (in the sense of having been materially contributed to) by the non-work factors listed by Dr Boland, that would not prevent a finding that, as a matter of common sense, the need for the proposed treatment has arisen ‘as a result of the injury’. That is because, as Dr Roessler explained, the peri-implantitis is ‘only there, because Mr Schokman has implants.’ This is not a matter of merely saying that ‘but for’ the presence of the implants Mr Schokman would not have the peri-implantitis, though that is undoubtedly true. It is a matter of concluding that, as a matter of commonsense, the injury was a material cause of the need for the proposed treatment (because it brought about the need for the implants), even if other factors were also present that may have also contributed to that need.”
Schokman can be distinguished from the present case in which the formation of the ileostomy which now requires treatment was entirely unrelated to the mesenteric bleeding which was the accepted abdominal injury. In Schokman, there was a chain of causation from the injury to the implants to the condition of peri-implantitis. In this regard, I agree with Mr Beran’s submissions. Mr Moore’s neuroendocrine tumour was a pre-existing condition but not one that made any contribution to the need for the treatment. Dr Greenberg acknowledges that Mr Moore would have required treatment for the tumour at some point in any event.
In Corrigan, the worker was suffering from industrial deafness due to noise exposure in the course of his employment. His doctor recommended a CT scan to exclude the possibility of a tumour causing asymmetrical hearing loss which, he said, was unrelated to his industrial deafness claim. Armitage J found that the diagnostic surgery was performed in order to determine whether a tumour might be the source of the pain and may or may not have been the result of the blow received in the employment injury.
The Court in Corrigan distinguished the decision in McGillicuddy v Grahame Industries Pty Ltd[14] in which diagnostic surgery “was in part treatment for pain that was incontestably the result of an employment injury” and was medical treatment that resulted from the employment injury. In Corrigan, however, Armitage J said it was “nowhere suggested in the medical evidence that the tumour which Dr Seymour suspected, was in any way related to the fact that the applicant was suffering from industrial deafness.” There was no suggestion that the suspected tumour was, or even might be, related to the applicant’s industrial deafness. The Court concluded that the CT scan was not medical treatment resulting from an injury within the meaning of the 1987 Act.
[14] [1958] 32 WCR (NSW) 150.
I accept that, merely because a finding is incidental, it does not mean there is not a causative relationship to the injury. However, I am not persuaded that Mr Moore has discharged his onus to establish the causative relationship. It is true that the hospital records show that the delay in closing the laparotomy was the mesenteric bleeding but neither the records nor
Dr Greenberg’s report explains what bearing, if any, the delay had on the decision to create the ileostomy. I accept that a treating surgeon’s report may not be necessary to explain this, but some explanation is. I agree with Mr Beran’s submission that we know what happened but not why.Mr Moore’s case, based on Dr Greenberg’s report, is that the injury altered the approach to the treatment of the neuroendocrine tumour. Dr Greenberg says that “as a general rule”
Mr Moore would have been advised to have a right hemicolectomy and ileocolic anastomosis “and remove the bulk of the tumour as was possible”. (I understand Dr Greenberg to mean to remove as much of the tumour as was possible.)I agree with Mr Beran’s submission that it is not sufficient to establish a causative relationship for Dr Greenberg to state what would have happened “as a general rule”. He does not say with any certainty that Mr Moore would have fallen within the general rule. He does not explain why a right hemicolectomy and ileocolic anastomosis could not have been performed at the time.
I note that the treatment proposed by Dr Yeh is described as a laparotomy/laparoscopy for intestinal obstruction, and large intension resection with anastomosis including right hemicolectomy. This second part appears to be the treatment indicated by Dr Greenberg as what would have occurred “as a general rule”. However, neither party made submissions as to any inference that might be drawn from this and I make no findings about it.
For these reasons, I find that Mr Moore has not established, on the balance of probabilities, a causal link between the injury sustained in the motor vehicle accident on 20 December 2021 and the treatment now proposed by Dr Yeh.
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