Rhodes v St Luke's Hospital Complex
[2011] NSWWCCPD 46
•24 August 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Rhodes v St Luke’s Hospital Complex [2011] NSWWCCPD 46 | ||||
| APPELLANT: | Tania Louise Rhodes | ||||
| RESPONDENT: | St Luke’s Hospital Complex | ||||
| INSURER: | Cambridge Integrated Services Australia Pty Ltd | ||||
| FILE NUMBER: | A1-10518/10 | ||||
| ARBITRATOR: | Mr P Sweeney | ||||
| DATE OF ARBITRATOR’S DECISION: | 11 May 2011 | ||||
| DATE OF APPEAL DECISION: | 24 August 2011 | ||||
| SUBJECT MATTER OF DECISION: | Causation; whether impairment of lower digestive tract resulted from ingestion of medication for conceded physical injury | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | P K Simpson & Co | |||
| Respondent: | Hicksons | ||||
ORDERS MADE ON APPEAL: | The Arbitrator’s decision of 11 May 2011 is confirmed. Each party is to pay her or its own costs of the appeal. | ||||
BACKGROUND
Tania Rhodes worked as an assistant in nursing with St Luke’s Hospital Complex. On 24 June 2003, she slipped on a wet floor in the hospital’s kitchen and twisted her upper body, injuring her neck, left shoulder and back. Over time, her symptoms spread to include migraine and right hip pain.
The Commission issued a Certificate of Determination on 20 November 2007 in which Ms Rhodes was awarded lump sum compensation of $18,500 in respect of a 14 per cent whole person impairment due to the injury to her cervical spine and left shoulder, and $12,500 in respect of pain and suffering.
On 17 December 2010, the worker’s solicitors filed an Application to Resolve a Dispute (the Application) seeking an additional $8,750 lump sum compensation because of an alleged impairment of her lower digestive tract said to have resulted from the consumption of medication for the injuries received on 24 June 2003.
The hospital disputed the claim on two grounds. The first ground was that Ms Rhodes had not established that the need for her pain-relieving medication arose from her injury and the second was that Ms Rhodes took similar medication for the condition of endometriosis and had similar lower digestive tract symptoms prior to her injury on 24 June 2003.
The Commission listed the matter for conciliation and arbitration on 7 April 2011. After hearing oral evidence from Ms Rhodes, and submissions from both sides, the Arbitrator reserved his decision. In a decision delivered on 11 May 2011, the Arbitrator concluded that Ms Rhodes had not established that her lower digestive tract condition had resulted from her ingestion of medication for her injuries and he made an award for the hospital.
Ms Rhodes has appealed the Arbitrator’s determination.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that Professor Bolin found that the drugs Endone, Tramal, Mersyndol Forte and MS Contin were only taken after the June 2003 injury (Professor Bolin’s evidence);
(b) misdirecting himself as to the test for causation in a claim for a further impairment (causation), and
(c) applying s 9A of the Workers Compensation Act 1987 in saying that the worker’s endometritis was the substantial contributing factor that caused Ms Rhodes to take pain-relieving medication in any event (s 9A).
EVIDENCE
The following summary largely, but not wholly, follows the unchallenged summary of the evidence set out in the Arbitrator’s decision.
The worker’s medical history
Dr Faux, a rehabilitation specialist, reported on 10 August 2004 that Ms Rhodes had suffered from endometriosis for many years. He added:
“She has had repetitive laparotomies with laser therapy; she has had a hysterectomy with a right oophorectomy and is under the care of Dr Lichis, a specialist in palliative care for her chronic pain. She has approximately three admissions a year for pelvic pain when she requires IV Morphine. In the 1980’s she was seen at the Queen Elizabeth II Hospital in Brisbane and attended a pain clinic, to reprogram but has not seen a pain clinic since. Her last laparoscopy was in October 2003 when she had her pelvis explored.”
In a report from the Royal Women’s Hospital dated 4 August 2003, it was reported that the applicant had a pain score for pelvic pain of 100/100 for which she used Tramal, Mersyndol Forte and occasional MS Contin. The doctors arranged for the applicant to undergo a laparoscopy and a resection of her endometriosis in September 2003.
On 19 September 2003, Dr Lorraine Jones, a rehabilitation specialist, recorded that Ms Rhodes took six Panadeine Forte a day and MS Contin, which she took essentially for her endometriosis.
On 4 March 2004, Dr Thomson and Dr Abbot reported that they were struggling to find a specific gynaecological problem and they had referred Ms Rhodes to Dr Khor for chronic pain management. The referral noted that Ms Rhodes reported a range of bowel problems and that she had been on strong medication for some time, including Tramal and MS Contin.
On 18 June 2004, Ms Rhodes saw Dr Mitchell, an occupational physician, with regard to her work injuries and told him that she had previously been well, apart from having endometriosis for which she took Tramal and MS Contin.
Ms Rhodes saw Dr Gorman at the St George Pain Management Unit in July 2005. It was suggested that the worker participate in a program that encouraged patients to reduce inappropriate use of medication. Ms Rhodes was reported to have said:
“she was not willing to cease her use of MS Contin and Endone that she uses for managing her abdominal pain and did not believe that active pain management strategies may assist her in management of that pain as well as her neck and shoulder pain.”
The medical evidence in respect of the injuries on 24 June 2003
The following summary focuses on the treatment recommended for the work injuries.
In a report dated 12 August 2003, Vitali Kanevsky, physiotherapist, recorded that Ms Rhodes had sustained a thoracolumbar intervertebral strain at work on 24 June 2003. Treatment consisted of passive facet joint mobilisation, soft tissue releases to the levator scapula, neural stretches, home exercises, postural education, and various electrotherapeutic modalities.
Dr Jones prescribed Mobic in September 2003. In December 2003, Ms Rhodes had an injection to her shoulder at the hands of Dr Lorraine Jones.
On 22 March 2004, Dr Pillemer, orthopaedic surgeon, reported that he did not have much to offer Ms Rhodes in the way of treatment, but felt that if her symptoms persisted the best investigation would be an MRI of her lower thoracic spine because she had marked tenderness at T10.
An MRI of the thoracic spine on 30 April 2004 was normal.
Dr Robin Mitchell reported on 18 June 2004 that Ms Rhodes had widespread pain of a soft tissue nature following a relatively minor work incident. Her symptoms were clouded by the fact that she had endometriosis. He felt that her symptoms were due to unresolved muscle tightness and spasm. He recommended a stretching program and a short series of pain management sessions. He also recommended that she see an occupational psychologist.
Dr Rimmer, orthopaedic surgeon, saw Ms Rhodes on 10 June 2004. He said it was difficult to determine the presence of any organic pathology without the relevant investigations. From the worker’s presentation, his diagnosis was:
(a) abnormal illness behaviour;
(b) narcotic dependence, and
(c) minor muscular ligamentous strain of the left periscapular musculature.
He recommended that Ms Rhodes see a physiotherapist, concentrating on stretching and strengthening the periscapular musculature. He also suggested that she see a psychiatrist and seek a second opinion, as she appeared to have developed a narcotic dependence.
Dr Faux said in his report of 10 August 2004 that Ms Rhodes had tried Tramal and Panadol without significant help, and tried occasional MS Contin and heat packs. Whether that medication was for her endometriosis or her injury is unclear. He referred to her “inappropriate analgesic regime” as an “associated problem”.
On 8 September 2004, Dr Faux recommended a left-sided C5/6 facet joint injection for diagnostic reasons and nortriptyline, Tramal and Mobic. For “breakthrough pain”, Ms Rhodes could “take Panadol or MS Contin for her endometriosis”.
In a report dated 19 September 2004, Brian Kearney, clinical psychologist, recorded that Ms Rhodes had had endometriosis for the past nine years, which she described as “horrendous”. She coped with the pain by using hot water bottles, MS Contin when severe, and, if that did not work, her son took her to the emergency ward, where she was given morphine and stayed overnight. That had happened on four occasions in 2004.
On 12 October 2004, Dr Faux asked Ms Rhodes to stop nortriptyline and Tramal and stay on MS Contin with Endone. He recommended physiotherapy, facet joint injections and a referral to the ACTIVATE program, which focused on non-drug treatments of chronic pain.
On 1 March 2005, Dr Faux reported that, through the use of MS Contin, Ms Rhodes cut down her hospital admissions from 10 a year to three or four a year.
Dr Bencsik, Approved Medical Specialist, after reviewing the medical evidence and examining Ms Rhodes, accepted that she had “an orthopaedic basis for cervical and left shoulder symptoms”. He thought this related partly to the work incident and partly to the nature of and conditions of her work after the accident. He also concluded, however, that:
“This lady’s intake of opiates is out of proportion to her injuries and one is drawn to the opinion that her requirement for continued exhibition [sic] of opiates influences her symptoms and signs.”
One of his diagnoses was probable dependence on narcotics which he thought would probably lose their ability “to treat pain as well as before” with the passage of time.
The worker’s evidence
Ms Rhodes said that, as a result of her injury on 24 June 2003, she suffered symptoms, which continued to worsen over time, in her “head, neck, right arm, left arm, back, abdomen, right leg, left leg, bowel function, sexual organs and anxiety and depression”. She said that, due to her “extreme pain levels”, she had been prescribed “large dosages” of medication that included Endone, Panadeine Forte, Di-Gesic, Panadol, Voltaren, Endep, and MS Contin.
She said that, as a result of taking these medications, she experienced stomach and bowel problems, starting with constipation and diarrhoea. She denied having told Dr Gillies, gastroenterologist qualified by the hospital, that her abdominal pain was “all related to [her] endometriosis” and said that all of the medication listed at [32] above were prescribed for her back (injury) and not for her endometriosis. She denied being depressed or addicted to these medications.
When asked if she took the medication listed at [32] above prior to her injury in June 2003, she said she “had no idea” (T6.22). She said that she took Panadol before the injury (T4.23), “Just the standard things for headaches, I don’t know, if I was in pain or anything” (T4.38). She described her health in general before the injury as “excellent” (T4.44). When it was put to her that she had “considerable health problems prior to this injury” (T5.1), she replied “Not considerable, no. Like what?” (T5.3). Though she agreed she had endometriosis, she said that had nothing to do with her back (T5.6), but she agreed that it caused her pain (T5.12). Though she could not remember taking pain-killing medication for the endometriosis, she said that she had been “given injections once a month, but that was an implant” (T5.16).
Ms Rhodes also agreed that she had had pelvic pain for a long time before the injury and that it was “very, very severe” (T7.55), but she did not recall telling a doctor at the Royal Hospital for Women that the pelvic pain was 100 out of 100 (T8.16). She did not agree that in August 2003 she was seeking strong analgesics for her pelvic pain (T9.5). She agreed that she still had “extreme pain” in her pelvis in March 2004 (T10.17) and that she was taking Tramal for that pain, but was not sure about MS Contin (T10.25).
When it was put to Ms Rhodes that she had been seeking treatment or making complaints about constipation and/or diarrhoea as early as 1998, she said that “Diarrhoea comes with the endometriosis” (T15.23). When pressed that she had been complaining about those problems “back as early as August 1998”, she said, “I could have done” (T15.29). She said that she had problems with constipation and diarrhoea for “a number of years on and off” (T15.40). When asked how long she had the problem, she said “I have no idea; just a while” (T15.43).
The Arbitrator said that the worker’s evidence about her symptoms and medication prior to and at the time of the injury were “not entirely reliable” (Statement of Reasons (Reasons) at [17]).
Evidence of the gastroenterologists
Ms Rhodes relied on evidence from Professor Bolin in reports dated 13 August 2010, 8 December 2010 and 30 March 2011. He said that the problems to be assessed were the worker’s symptoms of constipation, diarrhoea, abdominal pain and bloating, together with nausea. He recorded that Ms Rhodes had been well in the two years prior to her work injury, but after it she “started a series of analgesic medications including Endone, Panadeine Forte, Digesic, Panadol, Votaren, Endep, MS Contin and had cortisone injections to her shoulder and under CT guidance to the cervical spine”. He said, “Co-incident with the use of all her analgesic medication, [in] August 2003, she began to develop symptoms referrable to the digestive tract”. These consisted primarily of constipation alternating with diarrhoea. Under “Previous or subsequent diagnoses, conditions, accidents or injuries”, he recorded only that Ms Rhodes had had a colonoscopy and endoscopy in February 2010.
In his report of 8 December 2010, Professor Bolin said:
“Ms Rhodes was previously well prior to the accident that occurred in the course of her normal duties on 24th June 2003. As a consequence of this she was treated with physiotherapy together with Endone, Panadeine Forte, Digesic, Panadol, Voltaren, Endep and CT guided injection.
I believe that this combination of injury and multiple medications has led to the irritable bowel syndrome which in turn is the cause of her digestive tract symptoms.”
Dr Margaret Gillies reported on 24 February 2011 that she did not believe Ms Rhodes had irritable bowel syndrome. She thought “most of Ms Rhodes’ pain is related to her endometriosis” and that, if she had planned surgery (for the endometriosis), her back pain may still be present but would be “insignificant in comparison to the endometriosis pain”, she would require less medication, and her gastrointestinal symptoms should settle. Dr Gillies could not exclude the possibility that Ms Rhodes was addicted to narcotics. She concluded:
“On the balance of probabilities, I believe it is more likely that any digestive tract issues were caused by the pain of endometriosis and the medication taken for that than the medication for physical (orthopaedic) complaints.”
In his report of 30 March 2011, Professor Bolin said that the history he had obtained was “clearly quite different from that obtained by Dr Gillies”. He repeated that Ms Rhodes described the onset of constipation during 2003, which would last for three to four days and be followed by diarrhoea. He said:
“It should be noted that injury, together with [a] multitude of drugs act in concert to produce the symptoms of irritable bowel syndrome. It is not possible to separate the contribution of each individual medication.”
He found the worker’s weight to be 50.4 kg and did not believe there was any psychiatric contribution to this in terms of anorexia. He described the worker’s symptoms “as consequent upon the effects of her injury and multiple medications”. He could not see from the letter from Dr Gillies that there were any other symptoms consistent with endometriosis, though he accepted that “there is frequently a link between endometriosis and irritable bowel syndrome”. He concluded that he could not “accept the assertion that endometriosis underlies her problems and is the basis for all her pain”.
THE ARBITRATOR’S REASONS
The Arbitrator noted (at [3]) that the worker’s general practitioners had referred her to a “bewildering variety of specialists” for advice and treatment in respect of her injuries. Those doctors had prescribed Endone, Panadeine Forte, MS Contin and other drugs to alleviate her pain.
After summarising the evidence, the Arbitrator said (at [43]) that the opinions of Professor Bolin and Dr Gillies were predicated on assumptions that were not borne out by the evidence.
Dr Gillies assumed that Ms Rhodes had been prescribed Endone, MS Contin and other drugs primarily for her endometriosis rather than her physical injuries. The Arbitrator accepted that the evidence established that Ms Rhodes was initially prescribed MS Contin, Tramal and Mersyndol Forte for her endometriosis but, from late 2004 or early 2005, she was prescribed those drugs, and other drugs, for her work injuries.
Dealing with Professor Bolin’s evidence, the Arbitrator said (at [44]) that his opinion was based on a history that Ms Rhodes started analgesic medications as a result of her work injury. He took no history of Ms Rhodes requiring some of the drugs enumerated in his reports for her endometriosis.
He said that the worker’s evidence was “not entirely consistent with the contemporaneous medical record which suggests that the applicant had experienced a long struggle with painful pelvic pain and that by 2003 she was using Tramal and MS Contin for treatment of severe pelvic pain”. Given the discrepancy between the worker’s evidence and the contemporaneous medical records, the Arbitrator concluded (at [44]) that it was “inappropriate to accept her evidence when it is in conflict with unequivocal contemporaneous medical histories and the recorded observations of treating practitioners”.
The Arbitrator then listed (at [45]) the inconsistencies between Professor Bolin’s history and the evidence. They were:
(a) Ms Rhodes clearly suffered from extremely intense pelvic pain from August 2003, which was unrelieved by the laparoscopy on 19 September 2003;
(b) Ms Rhodes was treated for this condition with Tramal, Mersyndol Forte, MS Contin and, probably, Endone;
(c) Professor Bolin did not have a history that, at least by 19 January 2004, Ms Rhodes had chronic bowel symptoms when she was referred to Dr Marinos for a colonoscopy, and
(d) Ms Rhodes associated her diarrhoea with her endometriosis.
In these circumstances, the Arbitrator concluded that Professor Bolin’s conclusion on the connection between work injuries and the worker’s lower digestive tract symptoms was “founded upon assumptions that are quite different from the facts proved in the matter”.
The Arbitrator thought it was important that, when Dr Gorman suggested in 2005 that Ms Rhodes undertake a program to reduce and eventually cease medication, she declined that invitation because she felt that Endone and MS Contin were essential for controlling her pelvic pain (see [16] above). Though he did not accept the evidence of Dr Gillies that Ms Rhodes was prescribed analgesics largely because of her pelvic pain, it seemed likely that Ms Rhodes would have continued to take significant doses of analgesics for her pelvic pain from 2003 to date even if she had not suffered compensable injuries to her back, neck and shoulder (Reasons at [47]).
He concluded (at [48]) that Ms Rhodes had not established on the balance of probabilities that her lower digestive tract symptoms resulted from her injury at work on 24 June 2003. She had chronic bowel symptoms before she was prescribed significant analgesic medication for the effects of the work injuries and had been prescribed Mersyndol, Tramal and MS Contin for pelvic pain prior to being prescribed those, and similar medications, for her work injuries. He felt Ms Rhodes would probably have continued to take some of those medications for her pelvic pain even if she had not been injured at work. It followed that she was likely to have suffered the symptoms Professor Bolin ascribed to her work injury and medication in any event.
If he was wrong in this conclusion, the Arbitrator felt that Professor Bolin’s history was so inaccurate in important respects that his opinion was of no assistance in determining the causation issue (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510). While it was possible that the additional medication Ms Rhodes was prescribed for her work injuries had added to her “chronic bowel symptoms”, in the absence of reliable evidence in respect of the effect of the worker’s pelvic pain on her need for prescription medication, it was impossible to reach a conclusion on that matter on the balance of probabilities. It was likely that Ms Rhodes would have continued to take analgesic and other medication irrespective of her injury, and would have continued to suffer chronic bowel symptoms irrespective of her injury. He was not satisfied that the condition of the worker’s lower digestive tract resulted from the injury on 24 June 2003.
SUBMISSIONS, DISCUSSION AND FINDINGS
Professor Bolin’s evidence
The worker’s solicitor, Mr Petrovski, submitted that the Arbitrator erred in finding (at [44]) that “Professor Bolin found that the drugs Endone, Tramal, Mersyndol Forte and MS Contin were only taken after the injury in June 2003”. He added:
“Clearly as the Arbitrator himself has found in Paragraph 40 that Professor Bolin was shown Dr Gillies [sic] report, which contains the assertion that the ingestion of drugs started with the endometriosis. Professor Bolin accepted some pain from the Endrometriosis [sic] but not that it was the basis ‘for all her pain’ and so rejected Dr Gillies [sic] opinion.”
I do not accept this submission.
The Arbitrator correctly recorded that Professor Bolin’s opinion was based on a history that Ms Rhodes commenced analgesic medications as a result of her work injury. After seeing the report prepared by Dr Gillies, Professor Bolin did not deal in any meaningful way with the additional history recorded in that report, but said he felt the need to “reiterate” that his history was “quite different” from that obtained by Dr Gillies. The Arbitrator correctly observed that Professor Bolin’s history was inaccurate on several key issues (see [23] above). The Arbitrator was right to conclude that those inaccuracies reduced the weight to be attached to his opinion.
Professor Bolin did not make the statement attributed to him in the submissions on appeal. Without any proper consideration of the additional history recorded by Dr Gillies, he said that he could not “accept the assertion that endometriosis underlies her problems and is the basis for all her pain”. The evidence that Ms Rhodes was treated with Tramal, Mersyndol Forte, MS Contin and, probably, Endone because of her pelvic pain was significant. Professor Bolin failed to consider that evidence and the Arbitrator was right to state that his opinion was founded upon assumptions that were quite different from the facts proved in the evidence.
Causation
Mr Petrovski submitted that the Arbitrator misdirected himself as to the test for causation in a claim for additional lump sum compensation as a result of a consequential loss. He said that the test in such a claim is whether the impairment has resulted from the injury and the fact that Ms Rhodes would have taken medication for endometriosis did not mean that she was not taking it for her back pain or that the bowel condition did not result from both the endometriosis and the back pain. He said that the complaint of bowel problems in 1998 was a one-off complaint from which no long-term treatment resulted.
He argued that, just because Ms Rhodes suffered from bowel problems from another condition, did not mean that the back complaints, and the medication taken for the back complaints, were “just disregarded”. He said that Ms Rhodes only started to receive “excessive prescriptions for pain medication after her accident in June 2003 as is evidenced by the Arbitrator’s decision in paragraphs 44–46”. The Arbitrator found that Ms Rhodes took painkillers for her back and that the prescriptions increased after the 2003 injury. He referred to the Arbitrator’s statement (at [49]) that it was possible “the additional medication she was taking added to her bowel symptoms”.
I do not accept these submissions.
The test of causation in a claim for compensation for a consequential loss or impairment is the same as it is in a claim for weekly compensation, namely, has the loss or impairment “resulted from” the relevant work injury (Sidiropoulos v Able Placements Pty Ltd [1998] NSWCC 7; 16 NSWCCR 123; Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648). The Arbitrator correctly applied that test. He said (at [8]) that the issue for determination was whether the condition of the worker’s lower digestive tract “resulted from the injury of 24 June 2003”. He consistently applied that test throughout his decision. For the reasons outlined above, he was not satisfied that Ms Rhodes had established that her condition resulted from the relevant work injury.
While it is certainly possible that a condition can result from more than one cause, the worker rested her case on the false assumption that she had been well before the work injury and, because of the effects of that injury, she took multiple medications that caused her irritable bowel syndrome. Professor Bolin’s opinion was based on an inaccurate and flawed history. Because of that inaccurate and flawed history, the Arbitrator did not accept the Professor’s opinion. That conclusion was open to the Arbitrator and discloses no error.
The submission that the bowel problem in 1998 was a one-off problem from which no long-term treatment resulted is not correct. The worker’s own evidence was that she had problems with constipation and diarrhoea for “a number of years on and off” (T15.40). The worker’s bowel problems were related to her endometriosis. In a report dated 4 August 2003 from the Royal Hospital for Women, it was noted she had had five laparoscopies for treatment for endometriosis and in 1998/99 she had a “total abdominal hysterectomy and left salpingo- oophorectomy due to her endometriosis”.
It is correct that, just because Ms Rhodes took medication for her endometriosis, as well as for her back, that does not mean that the medication for the back should be disregarded. However, this submission ignores the Arbitrator’s reasons and the issues in the case. The Arbitrator did not ignore the worker’s back pain, or the medication taken for it, in assessing the claim. He said (at [43]) that, at some time in late 2004 or early 2005, Ms Rhodes was prescribed medication, implicated in her bowel problems, for her work injuries. However, the worker’s lower digestive tract problems started well before 2004 and the Arbitrator felt that it was likely that she would have continued to take significant doses of analgesics for her pelvic pain to date even if she had not suffered her injury at work. That conclusion was consistent with the evidence and was open to him.
The submission that Ms Rhodes only started to receive “excessive prescriptions for pain medication after her accident in June 2003” misses the point. Ms Rhodes had long-term pelvic pain and by 2003 she was using Tramal, Mersyndol Forte and occasional MS Contin because of that pain, not because of the effects of injury. In view of the discrepancy between the worker’s evidence, which was that she did not agree that in August 2003 she was seeking strong analgesics for her pelvic pain, and the contemporaneous medical evidence, it was open to the Arbitrator to conclude that it was inappropriate to accept her evidence when it conflicted with the contemporaneous medical evidence.
The reference to the Arbitrator’s statement at [49] that it was possible that the additional medication added to the worker’s bowel symptoms ignores the rest of that paragraph. While acknowledging that that was a possibility, the Arbitrator correctly concluded that, in the absence of reliable evidence about the effect of the pelvic pain on the worker’s need for medication, it was impossible to reach a conclusion on the matter. Given the shortcomings in Professor Bolin’s history, that finding was open and discloses no error.
Section 9A
Mr Petrovski submitted that the Arbitrator “in effect erred in applying s 9A in saying that the endrometriosis [sic] was a substantial contributing factor [that] would have caused her to take pain killers any way”. He said that the Arbitrator applied the wrong test (at [49]) where he said that it was likely that Ms Rhodes “would have continued to suffer chronic bowel symptoms irrespective of her injury” because, clearly, it was the taking of the medication that caused the bowel condition and the (work) injury was the reason she was taking the medication. Therefore, the bowel condition had resulted from the injury. The Arbitrator said, wrongly, it is argued, that the substantial reason the worker was on medication was her endometriosis and her injury was not a substantial cause for her ingestion of medication.
Mr Petrovski said that it cannot be correct that, just because Ms Rhodes took medication for one condition, one can disregard the fact that she took the medication for the effects of the injury. The evidence from the pain clinic that Ms Rhodes should stop her intake of MS Contin and Endone was after her injury and at a time when it was found her intake of medication had increased due to her injury. This lends weight to the fact that the injury was a cause of ingestion of the relevant medication.
I do not accept these submissions.
The Arbitrator did not refer to s 9A or the concept of substantial contributing factor at any point in his decision. He considered whether, on the balance of probabilities, the worker’s condition had resulted from her injury. Having considered the worker’s case, and having rejected the worker’s evidence where it conflicted with contemporaneous evidence, and having rejected Professor Bolin’s evidence because it had an inaccurate history, he was not satisfied that the condition had resulted from the injury. That finding was open and discloses no error.
The Arbitrator’s finding at [49] was an alternative finding. He did no more than make the observation that it was likely that Ms Rhodes would have continued to take analgesic and other medication irrespective of her injury and, as a result, would have continued to suffer chronic bowel symptoms irrespective of her injury. In those circumstances, he was not satisfied that the condition of the worker’s lower digestive tract resulted from the injury on 24 June 2003.
Mr Petrovski’s submissions are based on the false assumptions that, since the medication caused the lower digestive tract symptoms, and if it is accepted the worker consumed medication for her injury, it must follow that the lower digestive tract symptoms resulted from the injury. That submission ignores the worker’s significant pelvic symptoms and problems before the injury, the continuation of those symptoms and problems after the injury, and the prescription of significant pain relieving medication for those symptoms from 2003. It also ignores the fundamental flaw in the worker’s case, namely, that Professor Bolin based his conclusion on an inaccurate history.
CONCLUSION
The Arbitrator’s decision discloses no error of fact, law or discretion.
DECISION
The Arbitrator’s decision of 11 May 2011 is confirmed.
COSTS
Each party is to pay her or its own costs of the appeal.
Bill Roche
Deputy President
24 August 2011
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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