Palmer v Secretary, Department of Education
[2021] NSWPIC 73
•12 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Palmer v Secretary, Department of Education [2021] NSWPIC 73 |
| APPLICANT: | Caitlin Palmer |
| RESPONDENT: | Secretary, Department of Education |
| MEMBER: | Ms Kerry Haddock |
| DATE OF DECISION: | 12 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for permanent impairment compensation pursuant to section 66 of the 1987 Act, including disputed consequential condition of digestive system as a result of ingestion of medication for accepted injuries to left lower extremity; right lower extremity; and right upper extremity; Kumar v Royal Comfort BeddingPty Ltd [2012] NSWWCCPD 8 and Kooragang CementLtd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 considered; Held- award for the applicant in respect of consequential condition of the digestive system as a result of injuries to the left lower extremity; right lower extremity; and right upper extremity; matter remitted to the President for referral to Medical Assessor/s for assessment of permanent impairment. |
| DETERMINATIONS MADE: | 1. That the applicant has sustained a consequential condition of her digestive system as a result of injury on 17 June 2013. 2. That the matter is remitted to the President for referral to a Medical Assessor/s for assessment of permanent impairment as a result of injury to the left lower extremity; right lower extremity; right upper extremity; TEMSKI scarring; and upper digestive system on 17 June 2013. 3. That the Medical Assessor is to be provided with the following: (a) The Application to Resolve a Dispute and attached documents, with the exception of paragraph 28 of the applicant’s statement dated 6 August 2020; (b) The Reply and attached documents, and (c) The Application to Admit Late Documents dated 8 March 2021 and attached document. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Caitlin Palmer (Ms Palmer), sustained injury on 17 June 2013, while employed by the respondent as a teacher. She tripped and fell in the playground, landing on both knees and both hands. She later lost consciousness and fell a second time, hitting her body and face on the ground.
Ms Palmer injured her face, neck, back, legs, knees and right arm as a result of the falls. She claims to have developed secondary gastrointestinal injury as a result of the use of medication, and secondary psychological sequelae.
Liability for injury to the applicant’s head, right shoulder, right leg and both knees has been accepted.
By letter dated 18 June 2019, the respondent’s workers’ compensation insurer, Allianz Australia Insurance Limited (Allianz), advised the applicant that she was likely to have received weekly benefits for 260 weeks by 29 June 2019. She was requested to attend an assessment with an independent medical examiner (IME) in order to assess her entitlement to weekly benefits after 260 weeks and was provided with a choice of three IMEs.
The applicant chose to be examined by Professor William Cumming.
By letter dated 22 April 2020 Allianz made an offer of settlement of $20,400 in respect of 11% whole person impairment (WPI), as a result of injury to the applicant’s left and right knees and right ankle.
By letter dated 28 August 2020, the applicant withdrew a previous claim for WPI made on 18 December 2019, which is not in evidence. She made a claim pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 27% WPI as a result of injury to her right upper extremity; left lower extremity; right lower extremity; and scarring. She also made a claim for 10% WPI as a result of gastroenterological impairment.
On 4 November 2020, Allianz issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It disputed liability for her claim to have sustained a consequential gastrointestinal condition, pursuant to sections 4 and 9A of the 1987 Act [sic].
The applicant lodged an Application to Resolve a Dispute (the Application) on 13 January 2021. She claims pursuant to section 66 of the 1987 Act the sum of $66,000 in respect of 33% WPI as a result of injury to her left lower extremity; right lower extremity; right upper extremity; and digestive system.
The respondent lodged its Reply on 20 February 2021.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) Whether the applicant has sustained a consequential condition of her digestive system as a result of the injury on 17 June 2013.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for conciliation/hearing on 15 March 2021. Ms Lyn Goodman of counsel, instructed by Ms Zoe Anastassiades, appeared for the applicant, who was present. Mr Phillip Perry of counsel, instructed by Mr Jayden Krieg and Ms Megan Dibley, appeared for the respondent.
The applicant objected to the admission of the report of Associate Professor Phil Truskett, surgeon, dated 10 February 2021, which was lodged as a late document.
The report of A/Prof Truskett was admitted, for reasons provided at the hearing, and which have been recorded.
The respondent objected to paragraph 28 of the applicant’s statement dated 6 August 2020. The applicant withdrew that paragraph of the statement.
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
The following documents were in evidence before the Commission and considered in making this determination:
(a) The Application and attached documents, with the exception of paragraph 28 of the applicant’s statement dated 6 August 2020;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 8 March 2021 and attached document, admitted in accordance with my determination, over objection by the applicant.
Oral Evidence
There was no application by either party to call oral evidence or cross-examine any witness.
FINDINGS AND REASONS
Evidence of the applicant, Caitlin Palmer
The applicant has made two statements, the first dated 2 October 2014.
The statement contains details of the circumstances of the injury, which are not controversial. The applicant has also provided details of her treatment, which are provided in the medical evidence.
On 6 August 2020, the applicant stated that she stopped work in September 2015, as she was unable to continue.
The applicant had a further arthroscopy on her right knee in September 2105 and on her left knee in November 2015. She had right rotator cuff repair in January 2016. She had surgery on her right leg on 31 January 2017 and 3 April 2017.
The applicant uses a walking stick, as she feels unstable without it; and can only walk without her cane on flat and stable ground for short periods. She has multiple scars on her legs, of which she is conscious.
The applicant stated that she had pain in right ankle and pain and numbness from her right knee to her foot. She had pain and limitation of movement of both knees and her right shoulder. She also had frequent chronic headaches/migraines, double vision, dizziness, memory loss, insomnia and chronic fatigue. She had been diagnosed with fibromyalgia. She had put on about 30kg. Her doctors had advised her that the migraines were most likely caused by the opioids she took for the pain.
The applicant’s medication included Topiramate, Lyrica and Targin daily. She also took Panadeine Forte, Panadol, Panadol Osteo and Relpax for pain relief. She often used heat packs and gel packs.
Medical Evidence
Myhealth Medical Centre Liverpool
The clinical notes record a history of laparoscopic cholecystectomy in April 2012. It is noted that the applicant had “Intermittent RUQ Pain. U/S = Adenomyomatosis of Gall Bladder. HIDA = biliary dyskinesia”.
As at 4 September 2018, when the notes were printed, the applicant’s medication consisted of Aropax two daily; Lyrica once a day; Osteomol 665 Paracetamol 665, two, three times a day; Relpax one a day; Salpraz one, twice a day; Targin, one in the morning and two in the evening (different doses); and Topiramate one in the evening.
It is also noted that Panadeine Forte and Voltaren were prescribed in late 2014/early 2015, respectively; and Somac was prescribed on 9 February 2015.
The applicant was prescribed Tramal in May 2015. She stopped taking Voltaren for two weeks in May 2015 after a discussion about its side effects. She continued to be prescribed Tramal, Panadeine Forte and Somac.
On 3 October 2015, Dr Kostandina Gavazova, the applicant’s general practitioner, recorded that she “saw gastroenterology”. She was only on Tramal SR (slow release).
On 23 November 2015, Dr Gavazova recorded that the applicant was on Panadeine Forte. She had stopped Tramal and Voltaren. She continued to be prescribed Panadeine Forte and Somac.
On 8 March 2016, Dr Gavazova prescribed Aropax and Motilium. She prescribed Motilium and Somac on 23 September 2016, recording that the applicant had chronic headache and would stop all painkillers. She was to start Topiramate.
The applicant was prescribed Relpax for migraine on 16 December 2016. She continued to be prescribed Motilium and Somac.
On 13 February 2017, Dr Gavazova recorded that the applicant was on regular painkillers. She was prescribed Celebrex, Endone, Lyrica, Motilium and Targin on 25 February 2017.
Dr Gavazova continued to prescribe Endone, Celebrex, Lyrica, Targin, Aropax, Somac, Topiramate, Panadeine Forte, Motilium, Osteomol and Salpraz at various times throughout 2017 and 2018. On 27 September 2017, Panadeine Forte and Motilium were ceased.
On 22 May 2018, the applicant was referred for ultrasound of her abdomen, due to upper right abdominal pain, “similar to goldstones [sic] (removed))”. This was reported as showing moderate fatty infiltration of the liver, with no circumscribed mass lesion present.
Dr Michael Johnson – Orthopaedic Surgeon
Dr Johnson began treating the applicant shortly after the injury occurred.
Dr Johnson performed arthroscopy to the applicant’s right knee on 13 August 2013. On 4 April 2014 he reported to Allianz that she had chondral damage to her right patella, to a lesser extent to her left patella, and was recovering from an impingement syndrome in her right shoulder.
Dr Johnson reported to the applicant’s solicitors on 8 April 2015 that she remained on anti-inflammatory drugs during 2014. When she was seen in January 2015, she still had symptoms in her knees and right shoulder. He had discussed with her arthroscopic debridement of her shoulder and each knee.
Dr Max Ellis – Surgeon
Dr Ellis was qualified by the applicant and reported on 17 March 2015.
He recorded a consistent history of the applicant’s injury and treatment. He noted that she required Voltaren and Panadeine Forte daily.
Dr Ellis diagnosed traumatic capsulitis of the right shoulder, surface cartilage damage and meniscus and ligamentous injury to both knees, worse on the right. The applicant had also suffered a significant head injury. She had developed upper gastrointestinal symptoms, epigastric pain, as a result of the analgesic medication, and for which she had been prescribed Somac.
Dr Ellis assessed the applicant with 28% WPI, which included 4% WPI as a result of upper gastrointestinal symptoms.
Dr Ian Louis Meakin – Orthopaedic Specialist and Approved Medical Specialist
A general medical dispute was referred to Dr Meakin, who was asked to provide an opinion as to the reasonable necessity of proposed medical treatment.
The proposed treatment was physiotherapy; hydrotherapy; MRI scan of the right ankle; and/or arthroscopy of the left and right knees and/or right shoulder.
Dr Meakin issued a Medical Assessment Certificate dated 15 July 2015. He recorded the history of the injury and the applicant’s investigations and treatment.
Dr Meakin noted that the applicant’s conservative treatment had consisted of physiotherapy; analgesics; rest; and the passage of time. He opined that all the proposed treatment was reasonably necessary.
Dr Kenneth JH Koo – Gastroenterologist
Dr Koo reported first on 18 September 2015.
He recorded a history of vomiting and epigastric discomfort. Two weeks before, the applicant reported the onset of nausea, vomiting and diarrhoea. It was attributed to possible food poisoning. The symptoms had persisted, although with slight improvement in the last week.
Dr Koo noted that the applicant had been taking NSAIDs and opiate analgesia for chronic knee and shoulder pain since 2013. She had been on Voltaren, Tramadol and Panadeine Forte. She had ceased taking Voltaren several days before, due to persistent epigastric discomfort. She had had a cholecystectomy. A gastroscopy in 2012 was normal.
The applicant’s family history included a maternal aunt with gastric cancer; an uncle with bowel cancer; and a grandmother with pancreatic cancer.
Dr Koo opined that the applicant’s symptoms were likely to be from a viral infection that should settle soon. Peptic ulcer disease was less likely, although possible. He had arranged a gastroscopy the following week.
On 2 October 2015, Dr Koo reported that the applicant’s gastroscopy was normal, apart from mild chronic gastritis. Biopsies excluded H. Pylori infections and there were no ulcers present. A copy of the report is in evidence.
The applicant still had symptoms. She had commenced a probiotic and was still on Tramadol and Somac but had not taken any more NSAIDs.
Dr Koo opined that it was likely that the applicant’s symptoms were from a combination of NSAID gastropathy and delayed gastric emptying from opiate analgesia. He had commenced her on Motilium. He noted that she had abnormal liver tests, likely from fatty liver or drug induced liver dysfunction. She did not drink alcohol and had no other risk factors for hepatitis.
On 26 November 2015, Dr Koo reported that the applicant had had both knee surgeries. As a result, she had to increase her analgesia, using combination NSAIDs and Panadeine Forte. This had resulted in worsening nausea and abdominal discomfort.
The applicant had managed to stop NSAIDs and was only on Panadeine, although she required up to eight tablets a day. Her nausea had improved, and she had no further vomiting. She was scheduled for arthroscopy of her right shoulder.
Dr Koo was happy with the applicant’s progress but had again stressed the importance of reducing her use of NSAIDs and opiate analgesia, due to gastric toxicity.
Dr Tim O’Carrigan – Orthopaedic Surgeon
Dr O’Carrigan reported on 2 November 2016 that the applicant had had two right knee surgeries, left knee surgery and right shoulder surgery; and “that has all resolved and she is doing okay from that point of view”.
The applicant was unable to put her right heel on the ground. Dr O’Carrigan diagnosed secondary contracture of the right Achilles tendon. The applicant required a tendon lengthening procedure.
On 25 November 2016, Dr O’Carrigan reported that the surgery would take place on 31 January 2017, but the applicant first needed to see a pain management specialist, as there were concerns about pain management and a history of some liver compromise. His referral to pain management specialists Drs Tuan-Ahn Nguyen and Alistair Ramachandran noted that the applicant had been on a lot of pain medications over the years since the accident and there was some liver dysfunction.
Dr O’Carrigan reported on 7 February 2017 that the surgery had taken place. The applicant was “on fairly significant oral narcotics”.
On 21 February 2017, Dr O’Carrigan reported that he had provided the applicant with further prescriptions for Lyrica, Endone and Targin. By 21 March 2017, she was taking a little less Endone.
Dr O’Carrigan removed the frame from the applicant’s right leg on 3 April 2017. He reported on 13 April 2017 that her pain was well controlled.
On 14 December 2017, Dr O’Carrigan reported that the applicant had started an approved exercise program but after five weeks she was upgraded and had a lot of anterior ankle pain, swelling and deterioration of her pain profile.
Dr O’Carrigan told the applicant she did not require further surgery. There was no contraindication to her returning to an exercise program. She would need to make substantial improvement before it would be possible to return to work.
On 6 February 2018, Dr O’Carrigan reported that the applicant had been attending hydrotherapy and physiotherapy, both of which increased the swelling and pain in her ankle. It was made worse by pretty much any physical activity. She continued to require Targin and Lyrica.
The applicant had a corticosteroid injection on 28 February 2018. Dr O’Carrigan reported on 3 May 2018 that she had improved a lot and was doing well with hydrotherapy. She had been able to reduce her Targin.
Professor William Cumming – Orthopaedic Surgeon
Prof Cumming examined the applicant at Allianz’s request and reported first on 13 August 2019. He recorded that the applicant had injured both knees and her right shoulder, although she had subsequently developed a right ankle condition.
The applicant still had pain and occasional grating in her right knee. MRI showed chondral damage in her left knee, which had improved, but had been clicking and grinding in the past 18 months. She had a good range of movement in her right shoulder, with occasional pain. Her right foot had improved considerably after surgery.
Prof Cumming recorded that the applicant took mild analgesics and Lyrica for fibromyalgia. She provided documentation of her medication. It had previously been Endone, but was at that stage Tramal, Panadeine Forte, Panadeine, and more recently Somac and Motilium.
Prof Cumming assessed the applicant with 5% WPI as a result of injury to her right lower extremity (knee), left lower extremity (knee) and right upper extremity (shoulder). He had not been asked to assess her right ankle and did not do so. He opined that it would be preferable for the sensory loss and dysaesthesia in her right foot to be assessed by a neurologist.
On 2 October 2019, Prof Cumming provided a supplementary report in which he assessed WPI as a result of injury to the applicant’s right ankle as 6%.
Dr Neil Berry – General Surgeon
Dr Berry was qualified by the applicant and reported on 30 October 2019.
He recorded a consistent history of the injury and the applicant’s treatment. The applicant told him she began to experience stomach discomfort towards the end of 2013, when she was getting epigastric pain and reflux. Acidic and oily foods caused increased discomfort and she was prescribed Somac.
The applicant had almost constant nausea, and also suffered from gas and bloating, and intermittent constipation and diarrhoea. She was occasionally aware of bright rectal bleeding, but not of haemorrhoids.
In 2015, it was noted that the applicant had disturbed liver function studies that were thought to be due to analgesics. She came under the care of Dr Koo and underwent gastroscopy on 22 September 2015. She was diagnosed with gastro-oesophageal disease. No specific treatment, apart from encouragement to cease Tramadol, was given. She ceased Tramadol and her liver function studies settled.
The applicant still had epigastric pain. She remained sensitive to foods and had occasional constipation and cramping abdominal pain, but no other relevant symptoms.
Dr Berry recorded that the applicant was taking Targin, Lyrica, Topiramate, Somac, Aropax, and Panadol and Panadeine Forte as needed. She had hydrotherapy and physiotherapy as often as she could afford it.
Dr Berry noted that the applicant underwent laparoscopic cholecystectomy in 2012 and appendicectomy in 2016. He referred to the gastroscopy report dated 22 September 2015, which reported a normal oesophagus and duodenum. There was mild erythematous antral gastritis; and biopsies excluded Helicobacter pylori infection.
Dr Berry opined that the applicant had developed chronic gastro-oesophageal reflux disease as a result of her medication intake. There was no prospect that she would be able to cease her medications in the foreseeable future and therefore there was unlikely to be any improvement in her gastrointestinal system.
Dr Berry’s diagnoses were gastro-oesophageal reflux disease and irritable bowel syndrome. He assessed 10% WPI as a result of the condition of the applicant’s upper digestive tract. There was no rateable impairment for the lower digestive tract.
Dr Ross Mellick – Neurologist
Dr Mellick was qualified by the respondent and reported on 26 February 2020.
He recorded a consistent history of the injury and the applicant’s treatment. She was “taking a considerable amount of medication”, including Targin, Lyrica, Topiramate, Somac, Aropax and Panadeine Forte.
Dr Mellick assessed 4% WPI as a result of injury to the applicant’s right ankle and TEMSKI scarring.
Associate Professor Nigel Hope – Orthopaedic Surgeon
A/Prof Hope was qualified by the applicant and reported on 31 July 2020.
He recorded a consistent history of the applicant’s injuries and surgical treatment. He diagnosed right shoulder impingement; bilateral knee patellofemoral chondral injuries; and right ankle capsular fibrosis.
A/Prof Hope noted that the applicant was taking Targin, Lyrica, Aropax and Panadeine Forte daily. She took Topiramate for migraines. She had previously undergone appendicectomy and cholecystectomy.
A/Prof Hope assessed a total of 27% WPI as a result of injuries to the right upper extremity (shoulder); right lower extremity (knee and ankle); left lower extremity (knee); and TEMSKI scarring.
Associate Professor Phil Truskett – Surgeon
A/Prof Truskett was qualified by the respondent and reported first on 12 October 2020. He was asked to specifically assess the applicant’s gastrointestinal issues.
A/Prof Truskett obtained a consistent history of the injury and the applicant’s treatment. The applicant believed she began to experience upper gastrointestinal symptoms in late 2014 to early 2015. This was initially epigastric pain in the upper abdomen, with episodic stabbing epigastric discomfort.
Initially, the applicant’s Nurofen was stopped. She also had abnormal liver function, due to a medication that was ceased. She was referred to Dr Koo and underwent endoscopy. She was advised that she had gastroesophageal reflux and to cease some medications, the name of which she could not recall. There was no ulcer. She was started on Somac. From the time of her Achilles tendon surgery, she had begun to experience episodic loose motions with periods of constipation. She had not had a colonoscopy.
A/Prof Truskett recorded that the applicant took Lyrica twice a day (since January 2017); Topiramate once a day (since mid-2016); Somac once a day (since late 2014); Aropax proton pump inhibitor once a day (since 2012); Targin once or twice a day (since January 2017, reduced from her previous dose); and Vitamin D (one years’ imprisonment [sic]).
The applicant complained of symptoms in her upper and lower digestive tracts; right shoulder; right ankle; right and left knees; and migraine headaches.
As regards her upper digestive tract, the applicant complained of pain in her epigastrium, which she described as uncomfortable and present all the time, with exacerbations and incomplete remissions. The exacerbations, with increased pain, occurred every two weeks or so.
When the applicant’s pain was good, she would score it 2/10, with no stabbing component. When it was more severe, she would score it 5/10, and it may be stabbing in nature. Both pains appeared to be innate, with occasional cramping radiating to the right upper quadrant but not to the back. She had no trouble swallowing but had nausea when her pain increased. She had no vomiting. She occasionally experienced acid in her mouth but did not describe retrosternal burning. Pain and nausea were worse on hunching over or lying flat.
The applicant had gained 35kg since the accident. She avoided lactose as she had noticed over the past 14 years that it caused diarrhoea. She avoided fats, which caused diarrhoea 20 minutes after eating. Her gall bladder pain, before her cholecystectomy, was different.
As regards her lower digestive tract, the applicant had had loose motions since her ankle surgery. She opened her bowels some 30 minutes after eating. This recurred for approximately one week, with loose motions three to four times per day. She could also experience lower abdominal colicky pain. She took Gastrostop and Buscopan. When diarrhoea occurred, she tended to reduce her eating. She did not get up at night but waited until her bowels had settled before going to sleep. At other times, her bowels behaved normally. She had good bowel control and could distinguish flatus from faeces.
A/Prof Truskett noted that the applicant had a cholecystectomy in 2012. She had gall bladder sludge with recurrent abdominal pain, but it was different pain. She had also had an appendicectomy in 2016 and two wisdom teeth removed in 2003.
A/Prof Truskett referred to some medical reports and records that are not in evidence. He had not at that stage received Dr Koo’s report of the gastroscopy on 22 September 2015.
A/Prof Truskett opined that the applicant had symptoms of gastroesophageal reflux disease, diarrhoea and predominant irritable bowel syndrome. He agreed with Dr Berry’s diagnoses but noted that Dr Berry had not explained how he had assigned 10% WPI of the upper digestive tract.
A/Prof Truskett reported that gastroesophageal reflux disease is a constitutional disorder and does not relate to the applicant’s medication. It is conceivable that she may have been taking a non-steroidal anti-inflammatory medication “at that time”, which can cause oesophagitis, but not reflux. The medication had been ceased. There was no relationship between the applicant’s ongoing gastroesophageal reflux symptoms, the medications she took, or the injuries on 17 June 2013. Diarrhoea predominant irritable bowel syndrome is also a constitutional disorder. It does not relate to the injury or the medication.
A/Prof Truskett opined that there was no current medication that could be considered causal of the applicant’s symptoms of gastroesophageal or diarrhoea predominant irritable bowel syndrome. If causation could be proved, his assessment of WPI with respect to both the upper and lower digestive tract would be 0%.
On 31 December 2020, A/Prof Truskett provided a combined assessment of 9% WPI, none of which related to the gastrointestinal system.
A/Prof Truskett provided a supplementary report dated 10 February 2021. He had been provided with Dr Koo’s clinical records and the applicant’s statements.
A/Prof Truskett noted that the applicant had previously taken Mobic, Voltaren, Panadeine Forte, Tramadol, Imodium and Maxolon. As she no longer took them, any pharmacological effects had passed. She was not taking any NSAIDs and had not done so for some time. Targin is an opioid.
A/Prof Truskett reported that at the time of the gastroscopy, dated 22 September 2015, the applicant was taking Voltaren (NSAID), Panadeine Forte (opioid) and Tramadol (opioid).
Dr Koo had described a normal oesophagus and mild erythematous gastritis. If this gastritis was due to NSAID it would have resolved, as this is not a permanent effect of the medication and resolves with cessation. A recognised effect of opioids can be slowing of the gastrointestinal tract. The applicant complained of loose motions, and not constipation. If there was an issue with gastric emptying, it might cause nausea but there is no link between opioids and gastritis. The applicant’s abdominal discomfort was more in keeping with irritable bowel syndrome and not slow transit.A/Prof Truskett had not changed his opinion. He opined that, if the applicant had persisting mild gastritis, it would not be due to NSAID or opioids, and would therefore be constitutional. He would still assess 0% WPI with respect to both the upper and lower gastrointestinal tracts.
SUBMISSIONS
Counsels’ submissions have been recorded, so I will summarise them only briefly.
Applicant
The applicant refers to her evidence about the injury and subsequent surgeries. She would not have had surgery unless she was in substantial pain.
The applicant submits that she had the gastrointestinal condition in 2015, when she was assessed by Dr Ellis. He assessed her gastrointestinal symptoms. Dr Berry had Dr Koo’s clinical notes and the history he obtained was consistent with that of Dr Ellis and her evidence. A/Prof Truskett agrees with the diagnosis of gastroesophageal disease. What he does not agree with is the assessment of WPI.
The applicant submits that, as she is claiming to have a consequential condition, she need only establish a causal connection with the injury. The causal chain has not been broken in any way. She refers to the evidence of Dr Berry, Dr Gavazova and Dr Koo. Her 2012 gastroscopy was normal.
The applicant refers to the history obtained by Dr Koo that she increased her analgesia after both knee surgeries. This resulted in a worsening of her symptoms. There was a direct relationship. She had stopped taking NSAIDs but was still taking up to eight Panadeine tablets a day.
The applicant submits that I would accept the evidence of Dr Koo and Dr Berry. There is a very strong opinion from the treating doctor, supported by Dr Berry. A/Prof Truskett’s opinion is that her condition is a constitutional disorder, which is completely different to their opinion.
The applicant submits that A/Prof Truskett reported that she was not currently taking NSAIDs, but it was not long before that she was taking them, as she was taking them in 2017 and had the hardware removed from her ankle in 2018. His opinion that her condition would have resolved does not go to whether it was caused by the injury, but to whether she would have permanent impairment.
The applicant submits that she complained of both loose motions and constipation. There is no link between opioids and gastritis, but there is a link with NSAIDs, with which both Dr Koo and Dr Berry agree. A/Prof Truskett has not taken a history of increased symptoms with increased medication, but both Dr Koo and Dr Berry have. Their explanation of why the condition is related is more probable than A/Prof Truskett’s of why it is not.
In reply to the respondent, the applicant submits that the test to be applied is not “material contribution”, but the “unbroken causal chain”. She refers to Kooragang Cement Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
The applicant submits that Dr Koo performed the gastroscopy; and he opined that she had symptoms from a combination of NSAID gastropathy and delayed gastric emptying from opiate analgesia.
The applicant submits that, although her clinical notes start only from 2014 and there is no explanation why, it is quite clear from the medical evidence that Dr Gavazova was treating her for injuries sustained in the fall. Her medical certificates are also evidence of the medication she was taking.
The applicant submits that the suggestion by the respondent that she was taking medication for nasal congestion in 2014 is a “red herring”. There is evidence that she was taking this medication for her injuries. Nothing turns on the fact that she had a cholecystectomy. She had a serious injury in 2013 and was on “pretty serious doses of medication”.
The applicant submits that I would accept her as a witness of truth. She told the doctors about the cholecystectomy. No one says it is related to her abdominal pains. Not even
A/Prof Truskett says that. He agrees with her diagnosis, but says it is constitutional, without really saying why.
Respondent
The respondent submits that it is correct that the case is about the “chain of causation”, but the onus is on the applicant, and it has not been discharged. The challenge for her is in paragraphs 57 and 58 of Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy). She has to establish that the injury materially contributed to the condition she described to Dr Koo and for which she was treated.
The respondent refers to the applicant’s evidence, and asks “how was she before the injury?; what was her pain?; and who was she seeing?”. The medication is said to have been to assist with pain, so a history of the pain is critical. There is an obligation to say that the reason for ingesting the medication is for the pain for which the respondent is responsible.
The respondent is critical of Dr Berry’s evidence. It submits that it is difficult to regard him as a valid expert witness. He has referred to the applicant having found that many of the medications made it difficult for her to concentrate. It may be understood if a lay person said this, but an expert ought not to say it.
The respondent submits that nowhere in Dr Koo’s report is the diagnosis to which Dr Berry refers in his report. There is a gap in the material to satisfy the Murphy onus.
The respondent submits that Dr Koo has referred to the applicant having mild chronic gastritis, which raises the question of how long she has had it. Can we conclude the pain is medically something new? The applicant has been treated for pain in the past. Her clinical records refer to pain in the right upper quadrant. In April 2012 it was sufficient to warrant removal of her gall bladder.
The respondent refers to the fact that the applicant’s clinical records commence only in 2014. There is nothing about the success of the cholecystectomy. There is reference in the records to “pain”, but what sort of pain? The applicant was treated for frontal sinus pain on 20 October 2014. It is assumed the pain was severe enough to take to the GP, but there is no mention of pain in the knee or ankle.
The respondent submits that Dr Koo’s reports do not help. All they say is that the applicant has mild and chronic gastritis. When there is evidence from an A/Prof specialising in the area, who tells us there is no connection, it is incumbent on the applicant to provide evidence to make the connection. Dr Ellis has not provided the causal chain, and nor has Dr Koo. There is no explanation of why there is no report from Dr Koo to assist me.
The respondent submits that the Commission needs to know what happened in 2012; what pain the applicant had; and the treatment she had between 2012 and 2014. There is a “yawning gap”, especially when the clinical notes commence with reference to a different pain than that for which pain-killing drugs and repeat prescriptions were provided. A pharmacist or general surgeon could provide evidence about this.
The respondent submits that it is not straightforward that injury leads to pain, which leads to the ingestion of drugs, which leads to a gastrointestinal condition. There is no explanation and the applicant lacks the material needed. This is not “patched up” by qualifying Dr Berry. There is an absence from Dr Koo’s evidence of any real reference to the history of ingestion of drugs that is inculpated for the condition he finds.
The respondent finally submits that the applicant has not discharged the onus of establishing “material contribution”. The referral to a Medical Assessor should include only the body parts in respect of which injury is conceded, but not the consequential condition.
SUMMARY
The applicant claims to have sustained a consequential condition of her digestive system as a result of the injury on 17 June 2013. The condition is claimed to have been caused by her ingestion of medication to treat injuries, mainly to her right shoulder, both knees and right ankle. Liability for those injuries is not in dispute.
The applicant does not need to establish that she has sustained injury to her digestive system arising out of or in the course of her employment, pursuant to section 4 of the 1987 Act, or that employment was a substantial contributing factor to the conditions, pursuant to section 9A of the 1987 Act. In accordance with the decision of Deputy President Roche in Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 and the cases discussed therein, she need only establish on the balance of probabilities that her condition resulted from the accepted injuries.
The principles of Kooragang have consistently been applied in the Commission. Kirby P, as his Honour then was, said (at 461G):
“[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”.
After referring to earlier English authorities, his Honour added (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.”
His Honour went on to say that where causation is in issue, each case must be determined on its own facts; and (at 463-464) “what is required is a commonsense evaluation of the causal chain”.
The test in Kooragang was discussed in Comcare v Martin [2016] HCA 43 (Martin), when doubt was raised as to its correctness and applicability. It should be borne in mind that Martin concerned the Commonwealth workers’ compensation scheme.
The Court cautioned (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…”
In Crosland v Gregelle Michory Pty Limited [2017] NSWWCC 17 (at [34]), Arbitrator Sweeney provided the following useful summary of the effect of the decision in Martin:
“Since the decision in Comcare v Martin [2016] HCA 43 (Martin), doubts have been expressed as to whether the ‘common sense’ approach to causation proposed by Kooragang Cement is still applicable. It is unlikely, in my opinion, that the decision in Martin alters the principles applicable to causation under the 1987 Act. While the phrase ‘results from’ appears in both the NSW and Commonwealth legislation, it must be read in its statutory context. Nonetheless, in determining causation issues, it is probably best to adopt the counsel of eminent judges during previous debates on the meaning of the phrase ‘results from’ and to apply the words of the Act, leaving exegesis of the phrase to the Presidential Unit of the Commission.”
Having considered the evidence of the applicant and the medical evidence, I am satisfied on the balance of probabilities that the applicant has sustained a consequential condition of her digestive system as a result of accepted injuries she sustained on 17 June 2013.
The applicant has given evidence about the surgical procedures she has undergone, and there is medical evidence regarding those procedures. Her evidence is that she has taken Topiramate, Lyrica, Targin, Panadeine Forte, Panadol, Panadol Osteo and Relpax. The clinical records of Myhealth Medical Centre Liverpool confirm the medication that was prescribed for the applicant, at least since October 2014. She was taking “a considerable amount of medication” when she saw Dr Mellick in February 2020.
Dr Koo, the applicant’s treating gastroenterologist, took a history of the medication she had been taking, which he noted was related to chronic knee and shoulder pain, since 2013. He was aware of her family history; that she had a gastroscopy in 2012; and that she had a cholecystectomy in April 2012. He has not suggested that any of that history was relevant to her presentation.
Dr Koo initially believed the applicant’s symptoms were due to a viral infection. However, he arranged for a gastroscopy that showed mild chronic gastritis. He then diagnosed her with a combination of NSAID gastropathy and delayed gastric emptying from opiates.
It is of note that, when Dr Koo reassessed the applicant in November 2015, she had increased her use of analgesia because she had undergone knee surgery. This caused worsening nausea and abdominal discomfort. There was a temporal link between the increased medication and her symptoms.
Dr Koo stressed to the applicant that she should reduce her use of NSAIDs and opiates, due to gastric toxicity. He must have believed her condition was due to the medication she was taking. It would be expected that he would not otherwise suggest that she reduce prescription medication that other practitioners obviously believed she required.
The respondent is critical of Dr Koo’s evidence, which it submits is absent any real reference to the history of ingestion of drugs that is inculpated for the condition he finds. I do not accept this submission. He has recorded the drugs the applicant was taking and come to a reasoned conclusion. There is a “fair climate” for the opinion he expressed, as discussed in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844.
The respondent has also criticised Dr Berry’s evidence, submitting that his diagnosis is not mentioned in Dr Koo’s reports. However, he has set out in his report the documents with which he was provided, and they include Dr Soo’s clinical notes. He has referred to the gastroscopy report dated 22 September 2015. I do not accept that it is difficult to accept him as a valid expert witness. He has referred to the medication the applicant was taking and her previous medical history, including the cholecystectomy in 2012. A/Prof Truskett agreed with his diagnosis, but not with his assessment of impairment.
The respondent refers to the lack of evidence from the applicant about the cholecystectomy. However, it is clear from the medical evidence that Dr Berry, A/Prof Hope, Dr Meakin and A/Prof Truskett, at least, were aware that the applicant had undergone this procedure. None of them, including A/Prof Truskett, on whose evidence the respondent relies, opined that it had any bearing on the condition in respect of which she is claiming. A/Prof Truskett also recorded a history that the applicant felt “different pain” when she had problems with her gall bladder. I do not accept that the lack of evidence from the applicant is of any moment in determining the matter.
While A/Prof Truskett agreed with Dr Berry’s diagnosis, he opined that gastroesophageal reflux disease is a constitutional disorder and does not relate to the applicant’s medication. However, he went on to say that there was no current medication that could be considered causal of the applicant’s symptoms of gastroesophageal or diarrhoea predominant irritable bowel syndrome.
After being provided with Dr Koo’s records, A/Prof Truskett did not change his opinion. He opined that if the gastritis reported in the gastroscopy dated 22 September 2015 was due to NSAID, it would have resolved, as it is not a permanent effect of the medication. That appears to contradict his opinion that the applicant had a constitutional disorder. As the applicant submits, his opinion that her condition would have resolved does not go to whether it was caused by the injury, but to whether she would have permanent impairment.
A/Prof Truskett also reported that a recognised effect of opioids can be slowing of the gastrointestinal tract, but the applicant complained of loose motions, and not constipation. In fact, both he and Dr Berry recorded a history that she had complained of both constipation and diarrhoea.
I am not persuaded by A/Prof Truskett’s opinion, given the inconsistencies in his reports. I prefer the evidence of Dr Koo, who not only treated the applicant, but performed the gastroscopy in 2015, and Dr Berry. In my view, a commonsense evaluation of the causal chain leads to the conclusion that the applicant has sustained a consequential condition of her digestive tract as a result of the injury on 17 June 2013.
Dr Berry has assessed no permanent impairment as a result of the condition of the applicant’s lower digestive system. Accordingly, the Medical Assessor will be requested to assess only her upper digestive system.
I determine that the applicant has sustained a consequential condition of her digestive system as a result of injury on 17 June 2013.
The matter is remitted to the President for referral to a Medical Assessor/s for the assessment of permanent impairment as a result of injury to the left lower extremity; right lower extremity; right upper extremity; TEMSKI scarring; and consequential condition of the upper digestive system on 17 June 2013.
Kerry Haddock
MEMBER
12 April 2021
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