Skoko v Charles Sturt University

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Skoko v Charles Sturt University [2023] NSWPIC 589
APPLICANT:	Hazbo Skoko
RESPONDENT:	Charles Sturt University
MEMBER:	John Isaksen
DATE OF DECISION:	11 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for whole person impairment for the right knee, left knee as a consequential condition, scarring, and lower digestive tract as a consequential condition; respondent concedes injury to right knee and consequential condition to left knee and scarring but disputes consequential condition affecting lower digestive tract; worker claims that psychological stress as a result of work injury has resulted in aggravation of pre-existing gastrointestinal condition; reference to Moon v Conmah P/L on issue of consequential condition; whether a possible causal connection between the injury and the aggravation of a gastrointestinal condition can be established on the balance of probabilities from an evaluation of the evidence; reference to EMI (Australia) Ltd v Bes and Fernandez v Tubemakers of Australia Ltd; Held – the worker did not sustain a consequential condition affecting the lower digestive tract worker as a result of the work injury to the right knee; the possible cause and the aggravation of the gastrointestinal condition was not “sufficiently close” (Fernandez) to conclude that this was the actual cause of the aggravation; referral for assessment by a Medical Assessor of the right and left lower extremities and scarring.
DETERMINATIONS MADE:	The Commission determines: 1. An award for the respondent for the claim made by the applicant that he has suffered a consequential condition affecting his lower digestive tract as a result of the injury to his right knee on 28 August 2017. The Commission orders: 2. The matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 28 August 2017 Body Parts: right lower extremity (knee) left lower extremity (knee) as a consequential condition scarring (TEMSKI) Method of Assessment: whole person impairment 3. The following documents are to be forwarded to the Medical Assessor: (a) Application to Resolve a Dispute with attachments; (b) Reply with attachments, and (c) A copy of this decision.

STATEMENT OF REASONS

BACKGROUND

Hazbo Skoko, the applicant in these proceedings, sustained an injury to his right knee in the course of his employment with the respondent, Charles Sturt University, on 28 August 2017.
The respondent has admitted liability for the injury to the right knee.
Member Beilby made a finding on 4 June 2021 that Mr Skoko suffered a consequential condition in his left knee as a result of the injury on 28 August 2017 and that a left knee replacement was reasonably necessary.
Mr Skoko underwent a right total knee replacement on 20 June 2020, a left total knee replacement in July 2021, and a revision of the right total knee replacement on 14 December 2021.
Mr Skoko now makes a claim for a lump sum payment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 51% whole person impairment which comprises 20% permanent impairment of the right knee, 20% permanent impairment of the left knee as a consequential condition and 1% permanent impairment for scarring based upon assessments made by Dr Bodel, orthopaedic surgeon, plus 23% permanent impairment of the lower digestive tract as a consequential condition as assessed by Dr Frommer, gastroenterologist and hepatologist.
The respondent disputes liability for the claim of a consequential condition affecting the lower digestive system.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant has suffered a consequential condition affecting his lower digestive system as a result of the injury sustained on 28 August 2017.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 5 October 2023. 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.
Mr Barter appeared for the applicant, instructed by Ms Mackovic. Mr Gaitanis appeared for the respondent, instructed by Mr Rago.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) the Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant.

The applicant’s evidence

Mr Skoko has provided statements dated 25 November 2020 and 30 June 2023.
In his statement dated 25 November 2020, Mr Skoko states that he was diagnosed with ulcerative colitis in or around 2003 and that over the years he has undergone various procedures for this condition. He states that he considered himself to be quite fit and active before the injury he sustained to his right knee on 28 August 2017, including jogging once a month and swimming and practising yoga. He states that he was diagnosed with Crohn’s disease in or about 2018.
In his statement dated 30 June 2023, Mr Skoko states that in 2019 he was feeling so stressed and anxious about his injuries that it began to affect his physical state and mental health. He states that he reported this to Dr Wettstein, the specialist who has treated him for colitis and Crohn’s disease, and that Dr Wettstein confirmed that his condition was becoming worse.

The medical evidence

The medical material in the ARD and Reply which relates to treatment of Mr Skoko’s digestive system commences in 2014.
Dr Vivekanandarajah, consultant gastroenterologist, writes in a report dated 4 July 2014 that Mr Skoko has had long-standing ulcerative colitis for almost 33 years. He writes that Mr Skoko’s last major exacerbation was almost 15 years ago and that Mr Skoko had been well until late in the previous year when he developed diarrhoea associated with PR bleeding and mucous which was associated with work-related stressors.
A colonoscopy performed on 17 July 2014 reports chronic left sided colitis with mild active disease.
A colonoscopy performed on 15 September 2014 reports left sided colitis.
A colonoscopy performed on 10 September 2015 reports Crohn’s colitis.
Dr Wettstein is from the same specialist practice as Dr Vivekanandarajah and appears to take over the treatment of Mr Skoko in 2015. In a report dated 14 December 2015, Dr Wettstein writes that Mr Skoko is in complete remission from his chronic gastrointestinal condition called Inflammatory Bowel Disease (IBD) and classified as colitis. He writes that Mr Skoko may at times have a flareup of his condition requiring medical treatment which will easily be controlled but on very rare occasions may need hospitalisation for intravenous therapy.
A colonoscopy performed on 18 September 2017 reports moderate active patchy Crohn’s colitis. An upper gastrointestinal (GI) endoscopy which is undertaken on the same day as the colonoscopy and the report includes: “Hazbo has chronic Crohn’s colitis which currently is in complete remission”.
A colonoscopy performed on 6 June 2019 includes a report of ascending colon active colitis. An upper GI endoscopy which is undertaken on the same day as the colonoscopy and the report includes:
“Hazbo has had a flare up of Crohn’s disease. He has bloating, PR bleeding, diarrhoea alternating with constipation, lethargy and malaise and a depressed mood”.
A colonoscopy performed on 22 April 2021 reports active patchy Crohn’s colitis. Dr Wettstein writes some two weeks later on 7 May 2021 that Mr Skoko has had a minor flareup with his Crohn’s colitis. Dr Wettstein writes on 1 July 2021 that Mr Skoko has had an excellent response to steroid therapy and appears to be clinically in remission.
A colonoscopy performed on 11 July 2022 reports mild active right sided colitis. The report also states that Mr Skoko “feels that his recent flare up was aggravated by the psychosocial stressors and medical treatment related to his re-do knee surgery”.
There is a report from Dr Ghaly, consultant gastroenterologist, dated 9 February 2023 which diagnoses Mr Skoko as having chronically active steroid dependent Crohn’s colitis.
There is a report from Mr Skoko’s treating orthopaedic specialist, Dr Klar, dated 25 November 2021. Dr Klar refers to the protracted nature of deliberations by the insurer of the respondent, EML, which has “no doubt” created significant emotional stress for Mr Skoko and “is a known trigger for his Crohn’s disease”.
Dr Klar then writes:
“Mr Skoko has a long history of Crohn’s disease which on average requires three months of oral steroids once every two years and he has had the diagnosis of Crohn’s for 40 years. Emotional stress is a known trigger for Crohn’s disease in Mr Skoko’s past. In my opinion, the stress created by the acrimonious manner in which EML have approached Mr Skoko’s case has potentially caused exacerbations of his Crohn’s disease with a flareup noted in 2019 requiring around three months of oral steroids to bring the flare under control. When he has more symptoms from his Crohn’s disease he requires more oral steroid which makes his osteoporosis worse. In my mind these factors are all linked and all likely to have played a role in what has transpired for the right knee replacement”.
There is a report from Dean Oxley, psychologist, dated 3 May 2022 wherein Mr Oxley records that five years of treatment and multiple operations for Mr Skoko’s work injury has created a sense of hopelessness and lack of control. Mr Oxley found Moderate Depression, Extremely Severe Anxiety and Severe Stress on the Depression Anxiety and Stress Scale (DASS) and records that Mr Skoko has experienced strong feelings of suicidal ideation.
Dr Frommer has provided a report at the request of Mr Skoko’s lawyers dated 5 December 2022.
Dr Frommer records that Mr Skoko has had the alterative colitis form of IBD since about 1981 when Mr Skoko was 22 years of age. He records that Mr Skoko had major flareups of this condition in 1999 and twice in 2013. He records that: “Until relatively recently he was free of flare-ups for about two to three years”.
Dr Frommer records details of the injury that Mr Skoko sustained to his right knee on 28 August 2017 and the subsequent operations to both right and left knees. He records that Mr Skoko has developed anxiety, depression and suicidal ideation since his work injury.
Dr Frommer writes that Mr Skoko alleges that his pre-existing alterative colitis and/or Crohn’s condition has been significantly aggravated due to significant stress and anxiety from his work injury and subsequent operations. Dr Frommer writes that ulcerative colitis and Crohn’s colitis are both IBDs and that patients have flare-ups of this condition periodically for unknown reasons in most cases. He opines that gastroenterologists rarely regard psychological stress as precipitating causes for flare-ups or for the deterioration of the condition.
Dr Frommer writes that the medical literature suggests that there may be a causative link between psychological stress and subsequent flareups or deterioration of IBD but the evidence for this is not strong. He refers to nine studies which he could locate “of varying methods, quality and conclusions”, with three studies finding a causative link and another study with a link in the long-term.
Dr Frommer does opine that it is well-established that irritable bowel syndrome (IBS) can worsen with psychological stress and that an article he found suggests that a quarter of IBD reported symptoms compatible with IBS, which suggests that some patients might have both conditions. Dr Frommer concludes that Mr Skoko “may therefore have both IBS as well as IBD and the link that he alleges between his flare-ups or for deterioration may have a component of IBS.”
Dr Frommer then writes:
“I believe that the primary contributing factor to the current injury/condition and ongoing gut symptoms is his pre-existing IBD but that the fall led to the psychological stress which may have caused exacerbations of his symptoms”.
Dr Sethi, gastroenterologist and hepatologist, has provided reports at the request of the respondent dated 28 September 2022, 24 November 2022, 16 January 2023 and 26 April 2023.
In his report dated 28 September 2022, Dr Sethi records that Mr Skoko has a past history of Crohn’s disease which was diagnosed in 1981. He records that Mr Skoko has had several flares of Crohn’s disease over the years and that a disease flare started in January 2022.
Dr Sethi opines:
“He has had several exacerbations of Crohn’s disease which predated his work injury. Given this, it is highly unreasonable, on the balance of probabilities, to blame his work injury for causing exacerbation of Crohn’s disease. I note that Crohn’s disease is well described in the medical and scientific literature to be a relapsing and remitting disease. That is to say that the natural history of Crohn’s disease involves intermittent exacerbations.
There is no scientific evidence that emotional stress causes worsening of Crohn’s disease. This has never been proven or established in any scientific trial. The overwhelming majority of medical and scientific opinion is that there is no causative link between stress and Crohn’s disease”.
Dr Sethi is aware of the report from Dr Klar dated 25 November 2021 wherein Dr Klar writes that the stress from Mr Skoko’s work injury has potentially caused exacerbations of Crohn’s disease. Dr Sethi writes that Dr Klar is an orthopaedic surgeon and that opinion from Dr Klar is outside Dr Klar’s field of expertise.
In a supplementary report dated 24 November 2022, Dr Sethi confirms his opinion that Crohn’s disease is a relapsing and remitting condition and adds:
“It is an autoimmune disease caused by the immune system recognising the bowel’s gastrointestinal tract as being foreign, leading to inflammation. This has likely caused his Crohn’s disease to flare. In other words, his Crohn’s disease has flared of its own accord”.
Dr Sethi provides a supplementary report dated 16 January 2023 in response to Dr Wittstein stating in a colonoscopy report dated 11 July 2022 that Mr Skoko “feels that his recent flare up was aggravated by the psychosocial stressors and medical treatment related to his re-do knee surgery”. Dr Sethi writes that this comment by Dr Wittstein merely reflects Mr Skoko’s subjective opinion and is not backed up by any scientific or clinical evidence.
In his final report dated 26 April 2023, Dr Sethi maintains his opinion that Mr Skoko’s employment, work injury and subsequent treatment does not play any causative role in the worsening of his Crohn’s disease.
Dr Sethi also responds to the opinion provided by Dr Frommer. Dr Sethi states that only three of nine studies showed a possible link between psychological stress and subsequent exacerbations of IBD, which he considers to constitute extremely weak evidence and is contradictory to widespread established medical and scientific opinion. He notes that Dr Frommer essentially acknowledges this.
Dr Sethi also writes that psychological stress does not worsen IBS symptoms and that this has never been proven or established in the medical and scientific literature. Dr Sethi also does not consider that Mr Skoko has IBS because Mr Skoko has been prescribed Vedolizumab for IBD.

A summary of submissions

Mr Barter on behalf of Mr Skoko submits that the medical evidence reveals that Mr Skoko was having little difficulty with his underlying colitis condition between 2014 and the work injury in 2017. He refers to the report from Dr Wittstein dated 14 December 2015 wherein Dr Wittstein writes that Mr Skoko is currently in complete remission.
Mr Barter points out that subsequent flare-ups of Mr Skoko’s colitis have coincided with stressful events related to his work injury. A flare-up in May and June 2021 coincides with stress associated with Mr Skoko taking legal action to have the respondent accept that he had a consequential condition affecting his left knee and meet the cost of surgery on that knee. A flare-up in July 2022 coincides with Mr Skoko needing psychological counselling two months earlier.
Mr Barter concedes that Dr Frommer provides an opinion no higher than it is possible that psychological stress has caused an exacerbation of Mr Skoko’s underlying colitis, but he submits that a possible cause can be accepted as a probable cause upon an examination of all the evidence. In support of the submission, Mr Barter refers to the coincidence of
flare-ups with stressful events related to Mr Skoko’s work injury, the record made by Dr Vivekanandarajah in July 2014 of the development of colitis symptoms associated with stress at work, and Mr Skoko’s own observations of the development of a condition which he has had to live with for almost 40 years.
Mr Gaitanis for the respondent submits that the opinion from Dr Frommer is weak and cannot be relied upon with any confidence. Dr Frommer refers to there being only three out of nine studies which he has located which provide a link between psychological stress and flare-ups or a deterioration of Crohn’s disease, but Dr Frommer does not provide copies of those studies or even identifies the source of those studies.
Mr Gaitanis submits that Dr Frommer is aware of the weakness of the opinion which he provides by his speculation that Mr Skoko might have IBS, the symptoms of which he understands can be linked to psychological stress, when there is no concrete evidence that Mr Skoko has ever suffered from or has been diagnosed with IBS.
Mr Gaitanis submits that the opinion of Dr Sethi should be preferred because Dr Sethi has set out in some detail the reasons why there is no link between Mr Skoko’s psychological distress and any exacerbation of his gastrointestinal condition.
Mr Gaitanis refers to there being no opinion provided by Dr Wittstein on this issue, despite his many years of treatment of Mr Skoko. Nor are there any clinical notes in evidence from treating doctors which might provide a more complete picture of the progression of Mr Skoko’s gastrointestinal condition over many years and a link to any stressful events which have had an impact upon by Mr Skoko.
Mr Gaitanis also submits that the expert evidence relating to Mr Skoko’s psychological condition is limited to one report from a psychologist in May 2022. There is no opinion from a qualified psychiatrist who might be able to provide details of the extent of any psychological condition which Mr Skoko suffers from.

Determination

The determination of whether a condition suffered by a worker is as a consequence of a work injury was considered by DP Roche in Moon vConmah Pty Limited [2009] NSWWCCPD 134 (Moon). In that matter the worker claimed whole person impairment from symptoms experienced in the left shoulder as a consequence of an accepted injury to the right shoulder. DP Roche said at [45]-[46]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.
The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).”

Deputy President Roche then proceeded to state that the expression “results from” should be applied using the principles set out by Kirby P in Kooragang. In Kooragang Kirby P said at [462]:
“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.”
Kirby P then said at [463]-[464]:
“…What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury… Is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
The issue to be determined in this dispute is whether the aggravation of Mr Skoko’s gastrointestinal condition since 2017 results from the effects of the work injury which Mr Skoko sustained to his right knee on 28 August 2017.
Although Mr Skoko states that he was diagnosed with ulcerative colitis in or around 2003, the records made by Dr Vivekanandarajah, Dr Frommer and Dr Sethi identify the onset of symptoms for this condition from the early 1980s. However, there is no medical material which sets out the progression of this condition, and in particular the frequency of flare-ups of this condition, prior to 2014.
Dr Vivekanandarajah writes in July 2014 that Mr Skoko’s “last major exacerbation” was in about 2000, but there is no additional material to identify what Dr Vivekanandarajah regards as a “major exacerbation”, other than recording that Mr Skoko had been well until late 2013.
Dr Frommer records that Mr Skoko had a “major flare-up” in 1999 and twice in 2013, which is broadly consistent with the records made by Dr Vivekanandarajah if it is accepted that Dr Frommer is referring to the two colonoscopies performed in 2014.
Dr Sethi is less specific when he writes that Mr Skoko had “several flares” of Crohn’s disease, some of which pre-date the work injury.
I agree with an observation made by Mr Gaitanis that it would have been very helpful to have some material, such as the notes from a general practitioner, to gauge the effect of Mr Skoko’s gastrointestinal condition at least between 2000 and 2014.
However, I also agree with the submission made by Mr Barter that Mr Skoko’s gastrointestinal condition was relatively inactive between 2014 and the work injury in 2017.
The reports from Dr Vivekanandarajah confirm that Mr Skoko had flare-ups of his condition in 2014 which required two colonoscopies to be performed in that year, but it is not clear from the reports from Dr Wettstein during 2015 as to whether Mr Skoko had a further flare-up in 2015 or whether he was continuing to be treated for the flare-ups in 2014. The reports from the colonoscopy and endoscopy performed on 10 September 2015 do not indicate whether Mr Skoko was continuing to suffer the effects of a flare-up.
The report from Dr Wittstein dated 14 December 2015 envisages that Mr Skoko may have further flare-ups because of his condition, but Dr Wittstein does not identify any potential causes for such flare-ups in that report.
Mr Skoko undergoes a further colonoscopy on 18 September 2017, which is only weeks after his work injury. The report of the upper GI endoscopy which is undertaken on the same day as the colonoscopy states that Mr Skoko’s chronic Crohn’s colitis is currently in complete remission.
Dr Wettstein performs a further colonoscopy and endoscopy on 6 June 2019 and the upper GI endoscopy report states that Mr Skoko has had a flare-up of Crohn’s disease. From my review of the evidence this would appear to be the first flare-up since 2014 and extends the period of remission even beyond the period of relative inactivity for symptoms associated with Mr Skoko’s gastrointestinal condition that was identified in Mr Barter’s submissions.
However, there does not appear to be any medical material around the time of the colonoscopy and endoscopy in 2019 which identifies a link between psychological distress being experienced by Mr Skoko and the exacerbation of his gastrointestinal condition other than a reference to a “depressed mood” in the endoscopy report.
The next colonoscopy and endoscopy in April 2021 are conducted when Dr Wettstein identifies a minor flare-up, but there is no reference to a link between psychological distress being experienced by Mr Skoko and the exacerbation of his gastrointestinal condition in the material from Dr Wettstein. This flare-up does coincide with the litigation involving the claim for a consequential condition affecting the left knee and the need for surgery on that knee, and Dr Klar is prepared to opine in November 2021 that the difficulties experienced by Mr Skoko with his workers compensation has potentially caused exacerbations of his Crohn’s disease.
It is only at the time of the next flare-up in mid-2022 that Dr Wettstein refers to the aggravation of the gastrointestinal condition by psychosocial stressors being related to the work injury. However, that is not an opinion volunteered by Dr Wettstein in the colonoscopy report dated 11 July 2022, but merely a record of what Mr Skoko believed was the cause of that most recent flare-up.
An opinion from Dr Wettstein is likely to have been very helpful in the determination of this dispute. Dr Wettstein has been treating and monitoring Mr Skoko’s gastrointestinal condition for over eight years now and is in a very good position to provide an opinion as to whether psychological distress which Mr Skoko has experienced may have exacerbated his condition.
Dr Wettstein practices from the Centre for Digestive Diseases in Sydney and would have the benefit of considering this particular issue with his peers and would presumably have access to relevant studies which may have addressed this issue.
In the absence of an opinion from Dr Wettstein, Mr Skoko is left very much to rely upon the opinion of Dr Frommer. However, I find that the opinion provided by Dr Frommer is weak and tentative and I find that I cannot rely upon that opinion with any confidence.
Dr Frommer concedes that gastroenterologists rarely regard psychological stress as precipitating causes for flareups for the deterioration of IBD. He refers to three studies with “a link” between psychological stress and subsequent exacerbation of IBD but makes no attempt to identify those studies or to provide any further details of what is contained in those studies. He refers to a total of nine studies “of varying methods, quality and conclusions” but no attempt to engage in his own interrogation of the studies to identify which studies should be preferred.
I also agree with the submission made by Mr Gaitanis that Dr Frommer is aware of the weakness of the opinion which he provides by his speculation that Mr Skoko might have IBS, which does allow for a link to psychological stress, when there is no concrete evidence that Mr Skoko has ever suffered from or has been diagnosed with IBS.
Dr Frommer is provided with medical material since 2014 but he does not engage in his own analysis of the development of Mr Skoko’s gastrointestinal condition over the ensuing years to allow for a conclusion that it is at least possible that there is a link between the psychological stress which Mr Skoko has suffered from since the work injury and the aggravation of his gastrointestinal condition.
Dr Frommer also does not provide his own scientific reasoning from his own clinical experience or from a consideration of studies which he refers to as to how there is a causal connection between psychological stress and the flare-up of symptoms associated with Mr Skoko’s gastrointestinal condition.
While I accept that Mr Skoko has experienced psychological stress due to the effects of the injury he sustained to his right knee on 28 August 2017, I have concluded that Mr Skoko has failed to establish on the balance of probabilities that this psychological stress has led to an exacerbation of his gastrointestinal condition because of the deficiencies and weakness in the opinion from Dr Frommer and the lack of any support for such a causal connection in the material from Dr Wittstein.
Mr Barter relies upon a submission that despite the qualifications in the opinion provided by Dr Frommer, there is well established authority that a court or tribunal can evaluate all of the evidence to determine that a possible causal connection can be established on the balance of probabilities.
Chief Justice Herron in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 (Bes) said at [242]:
“Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be a touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.”
In Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 (Fernandez), Glass JA referred to Bes when he said at [197]:
“The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia v Commissioner for Railways (NSW)(1970) 45 ALJR 465, or when the expert evidence does not rise above the opinion that a causal connection is possible: EMI (Australia) Ltd v Bes[1970] 2 NSWR 238; appeal dismissed (1970) 44 ALJR 360N. The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence.”
His Honour then said at [200]:
“In such a case as the present, the question would be whether the evidence showed the connection between the possible cause and the condition which occurred was sufficiently close to warrant a reasonable mind, faced with the problem of determining the question upon the evidence before it, concluding that the possible was the actual cause.”
From my evaluation of the evidence, I do not consider that the psychological stress which Mr Skoko claims he has experienced as a result of the injury to his right knee is “sufficiently close” (Fernandez) to the flare-ups of his gastrointestinal condition to reach a conclusion that this psychological stress as a possible cause of some or all of those flare-ups since 28 August 2017 is the actual cause of the aggravation of his gastrointestinal condition.
Dr Vivekanandarajah writes that Mr Skoko found the onset of symptoms in late 2013 to coincide with work-related stressors. However, that is not an opinion which is endorsed by Dr Vivekanandarajah and as such carries little weight in the argument being pursued by Mr Barter.
Some of the flare-ups of Mr Skoko’s gastrointestinal condition do coincide with particularly stressful periods for Mr Skoko since his work injury and have been identified in some of the medical material. There is the report from Dr Klar dated 25 November 2021 which refers to the acrimonious manner in which EML have approached Mr Skoko’s claim and the need for Mr Skoko to seek psychological counselling in 2022 due to a sense of hopelessness due to his work injury.
However, there is no consideration by Dr Wittstein in the material which he has produced which identifies of a link between psychological stress complained of by Mr Skoko and the aggravation of his gastrointestinal condition, despite Dr Wittstein treating Mr Skoko for flare-ups in 2019, 2021 and 2022.
The reference to the aggravation of the gastrointestinal condition by psychosocial stressors being related to Mr Skoko’s work injury in the colonoscopy report from Dr Wittstein dated 11 July 2022 is no more than a record of what Mr Skoko believes is the cause of that most recent flare-up and is not an opinion that is provided by Dr Wittstein.
Dr Klar opines that emotional stress is a known trigger for Crohn’s disease, but I do not accept this opinion when there is no corresponding reference in any of the material from Dr Wittstein and Dr Klar is providing an opinion which is outside of his field of expertise and with no additional medical information provided which supports such an opinion.
I reiterate that I accept that Mr Skoko has experienced psychological stress due to the effects of the injury he sustained to his right knee on 28 August 2017, but the evidence which I have referred to is not “sufficiently close” to conclude on the balance of probabilities that this psychological stress is the actual cause of the aggravation of his gastrointestinal condition.
I also prefer the opinion provided by Dr Sethi over the opinion provided by Dr Frommer.
In Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 (Wiki), Ipp JA (with Bryson JA and Stein AJA agreeing) said at [62]:
“... save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons…
... [w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other.”
Dr Sethi provides an explanation as to why he does not consider that emotional stress can lead to an exacerbation of Crohn’s disease. His explanation that Crohn’s disease is an autoimmune disease caused by the immune system recognising the bowel’s gastrointestinal tract as being foreign and which flares of its own accord is consistent with the progression of Mr Skoko’s condition since 2014 and the material from Dr Wittstein.
Dr Sethi states that there is no scientific trial which proves or establishes that emotional stress causes a worsening of Crohn’s disease. That is a conclusion which I accept when Dr Frommer does not provide any details of the studies which has located that would allow Dr Sethi to respond this.
Dr Sethi also provides reasons as to why he does not consider that Mr Skoko has IBS, which is in contrast to what amounts to no more than speculation by Dr Frommer of a possible cause for the flare-ups which Mr Skoko has experienced since 2017.
I have set out my reasons as to why I do not consider that the evidence relied upon by Mr Skoko is sufficient to establish on the balance of probabilities that he has suffered a consequential condition affecting his gastrointestinal condition as a result of the injury he sustained to his right knee on 28 August 2017.
I have set out my reasons as to why I do not consider that there is sufficient evidence to allow a possible cause of the aggravation of Mr Skoko’s gastrointestinal condition to be established on the balance of probabilities.
I have set out my reasons as to why I prefer the opinion of Dr Sethi over the opinion provided by Dr Frommer.
There will therefore be an award for the respondent on the claim made by Mr Skoko that he has a consequential condition affecting his gastrointestinal condition as a result of the injury he sustained to his right knee on 28 August 2017.
There will otherwise be a referral to a Medical Assessor for assessment of whole person impairment of the right knee, the left knee as a consequential condition, and for scarring under the evaluation of minor skin impairment (TEMSKI) guidelines.

[2023] NSWPIC 589

11 October 2023