Sutton v Legends Australia Holdings Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sutton v Legends Australia Holdings Pty Ltd [2022] NSWPIC 322
APPLICANT:	Nigel Sutton
RESPONDENT:	Legend Australia Holdings Pty Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	23 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Accepted claim for injury to lumbar spine and further permanent impairment claimed; disputed claim for permanent impairment as a result of consequential gastrointestinal conditions as a result of ingestion of medication for spinal injury and related medical expenses; both parties relied on evidence of independent medical examiners; lack of contemporaneous evidence of date of onset of symptoms with first record five years after injury occurred and which was addressed by the respondent’s qualified medical evidence, but not by the applicant’s qualified medical evidence; consideration of Kooragang v Bates, Murray v Shillingsworth, Seltsam Pty Ltd v McGuiness, EMI (Aust) Ltd v Bes, South Western Sydney Area Health Service v Edmonds Kumar v Royal Comfort Bedding Pty Ltd and Nguyen v Cosmopolitan Homes; Held – the applicant has not satisfied the onus of establishing consequential condition of gastrointestinal system as a result of injury to lumbar spine; award for the respondent with respect to the claim for consequential gastrointestinal conditions; claim for further impairment as a result of injury to the lumbar spine remitted to President for referral to Medical Assessor.
DETERMINATIONS MADE:	That there is an award for the respondent in respect of the claim for consequential gastrointestinal condition. 2. That the matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury to the lumbar spine on 3 October 2006. 3. That the Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments; (c) Application to Admit Late Documents dated 11 May 2022 and attachments, and (d) Application to Admit Late Documents dated 25 May 2022 and attachments.

STATEMENT OF REASONS

BACKGROUND

The applicant, Nigel Sutton (Mr Sutton) was employed by the respondent, Legend Australia Holdings Pty Limited (Legend) as a storeman.
Mr Sutton sustained an accepted injury to his lower back on 3 October 2006, when he was unloading silicone latex cylinders. He also claims to have developed a consequential gastrointestinal condition.
The applicant submitted a Recurrence Form – Employee (the recurrence form) dated 12 July 2019. The date of recurrence was claimed as ongoing. The symptoms were “ongoing and have never stopped. Getting worse.” They were described as “sharp pain in lower left back and left leg and hip and toes.”
The applicant stated that his ongoing treatment included Cymbalta, Codeine Forte, Endone and Valium.
On 3 March 2020, the respondent’s workers compensation insurer, AAI Limited trading as GIO (GIO), issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
GIO disputed liability for payment of weekly expenses and medical expenses. It noted that the applicant’s claim was closed in 2016, following a work capacity decision that reduced his weekly benefits to zero. In January 2017, the previous insurer declined a request for payment for a gastroscopy and colonoscopy but did fund doctor reviews and pharmacy expenses. The applicant’s entitlement to medical benefits ceased on 9 August 2018 and his claim was closed.
GIO had received the recurrence form and certificate of capacity on 23 July 2019. It had made numerous attempts to contact the applicant by telephone, and sent a letter dated 25 October 2019, but had not received a response.
GIO reiterated that the applicant’s entitlement to weekly benefits ceased on 9 August 2016, and to medical benefits on 9 August 2018. “For this reason,” it disputed liability for the claimed recurrence dated 23 July 2019. It would review its decision on receipt of new information.

By letter dated 9 March 2021, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation, pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant claimed to have 17% whole person impairment (WPI) as a result of injury to his lumbar spine and digestive system. He also made a claim pursuant to s 60 of the 1987 Act for reasonable and necessary [sic] medical expenses.
On 31 May 2021, GIO issued the applicant with a further notice pursuant to s 78 of the 1998 Act. It disputed that he was entitled to permanent impairment compensation for injury on 3 October 2006.
Liability was disputed on the basis that the applicant’s accepted physical injury had not resulted in more than 10% WPI, as required by s 66(1) of the 1987 Act. GIO disputed that the applicant’s gastrointestinal condition was a consequence of the injury to his lumbar spine on 3 October 2006. Its independent medical examiner, Dr Siddarth Sethi, had assessed 0% WPI as a result of any gastrointestinal condition.
The applicant lodged an Application to Resolve a Dispute (the Application) on 4 March 2022. He claimed that during the course of his employment with Legend on 3 October 2006, he sustained a significant lower back injury.
The Application claimed the sum of $23,000 in respect of 17% WPI as a result of injury on 3 October 2006 to the lumbar spine and digestive system. It also claimed past medical expenses of $5,897.95.
The respondent lodged its Reply on 17 March 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant is entitled to further permanent impairment compensation with respect to the injury to his lumbar spine;
(b)    whether the applicant has sustained a consequential gastrointestinal condition as a result of the injury to his lumbar spine, and
(c)    the applicant’s entitlement to payment of medical expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was listed for telephone conference before me on 4 April 2022, when Mr Drake appeared for the applicant and Ms Ralph appeared for the respondent. The applicant and Ms Brown of GIO were also present.
The Application was amended, by consent, to add: “Our client subsequently developed a consequential gastrointestinal condition”.
The matter was listed for conciliation/arbitration hearing on 31 May 2022. Mr Stephen Hickey of counsel, instructed by Mr Drake, appeared for the applicant, who was present. Mr Doak of counsel, instructed by Ms Markley, appeared for the respondent.
The respondent objected to the applicant relying on the reports of both Prof Terry Bolin and Dr Anthony Greenberg, as Prof Bolin was, and Dr Greenberg is, a gastrointestinal specialist.
The applicant relied on Prof Bolin’s report only for the purpose of the history he recorded and did not rely on his assessment of WPI.
Mr Hickey advised that the applicant had made an earlier claim for WPI, in respect of which he had received compensation. There is no evidence about that claim in these proceedings. Mr Hickey advised that he believed that claim was finalised in 2008. Mr Doak advised, relying on material with which he had been briefed, that there was a determination on 24 August 2007. I have not been provided with that material.
The parties agreed that, regardless of my determination with respect to the applicant’s claim to have sustained a consequential condition, the medical dispute is to be referred to a Medical Assessor or Medical Assessors; and all the documents are to be provided to the Medical Assessor/s.

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 attachments;
(b)    Reply and attachments;
(c)    Application to Admit Late Documents and attachments, filled by the applicant, and
(d)    Application to Admit Late Documents dated 25 May 2022 and attachments, filed by the respondent.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Nigel Sutton

Mr Sutton’s first statement is signed but undated.
The applicant injured his back on 3 October 2006 and developed consequential gastrointestinal symptoms due to the medication he was taking for back pain. The injury to his back occurred when he was unloading silicone latex cylinders, weighing approximately 20kg each. He felt a sudden pain in his lower back, which he initially thought was a strain.
After finishing the job, the applicant told another employee, “Craig”, that he had hurt his back and thought it was very bad. Craig told him to go the doctor. He downplayed his back pain because he did not want to lose his job or have it effect the rest of his life.
The applicant consulted his general practitioner (GP), Dr (Jacob) Artinian, the next day and had about two weeks off work. An X-ray and CT scan did not reveal any specific findings, so he was referred to physiotherapy.
The applicant returned to work on restricted duties. He was made redundant on 25 January 2007. As the pain continued, he was referred to Dr Gregory Carr, who sent him for MRI. This revealed an annular tear in the L5/S1 disc on the right.
The applicant started taking Panadeine Forte straight away. It was then increased to three times a day. He also started taking Digesics, Lyrica, Tramadol, Panadol, Panadeine, Endone, Cymbalta and Valium. “Currently”, his prescription is for Cymbalta for depression/pain and Valium when required. He takes 90mg of Cymbalta every day, up to eight Panadeine Forte and six to eight Endone, although he had been taking eight lately.
While the applicant was still in a lot of pain, “looking back”, he downplayed it because he did not want to show he was in pain to his friends and family.
Before his back injury and taking these medications, the applicant never had any gastrointestinal issues or abdominal operations. He first started experiencing gastrointestinal issues not long after the injury, as Codeine Forte was making him constipated. He didn’t really want to take it but had to as the pain in his back was unbearable.
The applicant’s symptoms included reflux, which was progressively getting worse and occurred most days. His bowels were not normal since taking the medication and he often had constipation. He had often had to go for colonoscopies, which had been very painful.
The applicant developed PTSD (post-traumatic stress disorder) after being made redundant. He had known something was wrong, but only realised after a while.
The applicant must have a walking stick with him all the time. His left leg goes numb with pins and needles and occasionally buckles. He has lost most of his mobility and is in pain all the time. He often has nightmares and wakes yelling and swearing. His back injury is further complicated by his gastrointestinal symptoms, depression, and limited physicality.
Mr Sutton made a second statement dated 10 May 2022, in support of his claim for medical expenses.
The medications were prescribed by his doctors to relieve his gastrointestinal symptoms and associated pain. He had been advised by his treating specialist, Dr Carr, that Cymbalta is used to treat depression and for pain relief. It is used for pain relief for his work injuries.

Medical evidence

Warringah Medical and Dental Centre

The clinical records commence on 4 May 2004. They include reports from treating specialists, which I have discussed under their respective headings.
On 3 February 2006, there is a record of PR (per rectum) bleed, “seen specialist”.
On 3 October 2006, the applicant presented with a history of hurting his lower back at work that morning.
The applicant continued to attend the practice for treatment for his injury.
On 28 November 2007, there is a history of epigastric hernia “tender ++ refer u/s” [ultrasound]. The ultrasound was reported by Dr Ronald Norman on 4 December 2007. He provided a provisional opinion that the palpable abnormality was due to the applicant’s xiphi-sternum.
On 3 March 2009, Dr Artinian recorded that the applicant had seen Dr Carr. “Try Mobic 15”.
On 26 August 2015, Dr Janine Teasdale recorded that the applicant seemed to be on six daily Panadeine Forte, Cymbalta and Endone for breakthrough. He had seen pain clinics, which were not helpful. She noted “? longer acting opiate would be better”.
Dr Artinian recorded on 29 November 2016 that the applicant had seen a “Prof at POW colonoscopy”. He noted to refer to specialist for follow up. There was a referral to Dr Jamal Merei.
On 14 February 2017, Dr Maryam Ronagh recorded that the applicant had “work related back injury on Endone for several years!”. She had explained other options, but she preferred that he see his regular GP.
Dr Liwei Shi recorded on 22 May 2017 that the applicant had PR bleeding, “small amount for years intermittently”. He was on the waiting list for colonoscopy and gastroscopy. He would like to take three months off but waiting for “scopy” did not justify time off.
On 24 May 2017, Dr Artinian recorded that the applicant was “going for scops”.
On 11 September 2017, Dr Marcos Jackson advised the applicant he must move from Endone to a longer acting pain killer. The applicant declined, insisting on Endone. He was advised to see his regular LMO (local medical officer), who would be there early in the morning.
On 12 September 2017, Dr Max (Ali) Mahdavi reviewed the notes for 11 September 2017. He gave the applicant 5mg of Endone, four tablets only. The applicant would come back to see Dr Artinian.
On 25 September 2017, Dr Nima Sharifian called the doctor shopping line. The applicant had not been identified. It was noted that he always got repeat scripts every two to three weeks, and he was advised to continue with Dr Artinian, who was away that day.
On 2 June 2020, Dr Mark Green recorded that new opioid rules were in place.
On 1 September 2020, Dr Green recorded that the applicant admitted to “taking few extra” Endone, “but not many”. It had been ongoing for 14 years. PBS would not authorise for a few more days.
Dr Green recorded on 4 September 2020 that the applicant was really struggling with medication. He had not had Endone for one week. It was noted “Agree up quantity in ST admits to taking up to 6 a day. Needs referral to pain specialist”.
On 1 October 2020, Dr Green recorded a long chat re: analgesia. The applicant was “on phenomenal quantities of opiates”.
On 22 November 2021, Dr Green recorded “reviewed re meds”. There was no evidence of doctor shopping. The applicant was aware that ideally, he needed to look at reducing but he was coping well on his current meds.
Dr Green recorded on 20 December 2021 that the applicant was aware of high dose opiates and the associated risks.
On 12 April 2022, Dr Jennifer Wines recorded that the applicant had been taking Endone and Panadeine Forte for some years.

Dr Gregory Carr – rheumatologist

The applicant was referred to Dr Carr by Dr Artinian, to whom he reported on 23 April 2007.
Dr Carr noted that the applicant’s lumbar MRI showed a posterior paracentral tiny L5/S1 annular tear, without significant protrusion or compression of nerve roots. This may have been relevant to the injury on or about 3 October 2006.
Dr Carr opined that the small tear should not really preclude the applicant returning to useful employment. It would obviously trouble him for the next six months or so but should slowly settle. Dr Carr did not recommend invasive intervention or local injection, but only a spinal exercise program.
On 21 January 2008, Dr Carr reported to Dr Artinian that there had been some mild improvement in the applicant’s condition. He was using over-the-counter medications such as Panadol or Nurofen.
Dr Carr reported to Dr Artinian on 29 May 2008. The applicant’s leg pain and left-sided back pain remained much the same. Dr Carr suspected he would have permanent impairment, and there was little further to be done to alter the situation. He had not arranged to see the applicant again.
On 23 February 2009, Dr Carr reported to Dr Artinian that the applicant’s situation had not really changed. He believed his condition had stabilised.
On 17 March 2011, Dr Carr reported to Allianz Australia Workers’ Compensation (NSW) Limited (Allianz), which was then managing the claim, that the applicant had been sent by Dr Artinian, somewhat frustrated that he still had daily left lumbosacral pain, referring into the left buttock, thigh and calf, to the third and fourth toes, and intermittent neck and left scapular pain.
The applicant’s physio had been ceased and he doubted he would be able to cope without it, although he had been working three days a week since November 2010, having been off work for nearly four years. He had been having physio twice a week.
Dr Carr recorded that the applicant still had localised pain at the left lumbosacral junction. His straight leg raise was about 60 degrees bilaterally, ankle and knee jerks were preserved, and there was no wasting in the left leg, neurological deficit, or signs of radiculopathy.
Dr Carr opined that the applicant required physio twice a week, because he had struggled with pain since the injury and had been consistent in his presentations.
“Unfortunately,” the applicant still required Panadeine Forte, which he tried to avoid, because last year he had needed an operation for perianal problems, “which was no doubt a direct complication of the analgesics he’s been using”. This meant the applicant was very hesitant to take analgesia and was therefore putting up with a lot of pain. He took occasional Mobic, which really didn’t have constipating side effects, but certainly the codeine did.
On 20 September 2012, Dr Carr reported to Allianz that the applicant was on a lot of analgesia, with Codeine Phosphate 60mg three times a day on most days.
On 24 April 2013, Dr Carr reported to Allianz that the applicant was quite constipated by the combination of medication. He wanted the applicant to use Tramal 100mg twice day and forget the Codeine Phosphate. He may require Movical and Dr Carr had asked him to see Dr Artinian regularly.
Dr Andrew Jordan (locum to Dr Carr) reported to Allianz on 23 May 2013. The applicant was taking Tramal, which he found effective, but was not taking it regularly. Codeine caused significant constipation and he had stopped taking it.
Dr Jordan agreed that switching to slow release Tramadol may provide more sustained release [sic: relief?]. Tramadol, in combination with paracetamol, can be effective. The applicant understood that chronic pain would be ongoing.
On 25 July 2013, Dr Carr reported to Allianz. The applicant was starting to get abdominal pain, which Dr Carr thought might be the early signs of a peptic ulcer from Herron Ibuprofen tablets, which he had ceased that day. Dr Carr still wanted him on 50mg of Tramal.
Dr Carr noted that abdominal examination did not reveal any tenderness in the epigastrium. The applicant was “exactly the sort of character who is likely to get a peptic ulcer, particularly with the stress that he is under…”
On 10 October 2013, Dr Carr reported to Allianz that the applicant still needed sometimes up to six Panadeine Forte a day, and two to four Digesics a day. Dr Carr had asked him to continue Somac for his abdominal symptoms, and that had helped.

On 23 January 2014, Dr Carr reported that the applicant had been using the gym twice a week, but this had been discontinued. He would bring in his Application for Review for his declined pool pass.
Dr Carr had asked the applicant to cut down the Panadeine Forte to two at night and use two Digesics per day. If he didn’t get his regular exercise his back would be worse, as it was when he presented that day.
On 20 March 2014, Dr Carr reported to Allianz that the applicant was “just managing to take the edge off his pain” with four Digesics daily in a spit dose, and two Panadeine Forte at night. Dr Carr was going to try him on Lyrica to help him get better sleep. They may be able to get rid of the sharp, shooting and burning back pain, as the dose was built up. Dr Carr asked Allianz to “sponsor” the applicant’s drugs, as they managed his chronic pain. He also sought approval for the Warringah Aquatic Centre (the Centre) and physiotherapy.
On 29 May 2014, Dr Shirley Yu (locum for Dr Carr) reported to Allianz that the applicant was still unable to afford the medications that had been suggested for overall pain management, in addition to four Digesics daily and two Panadeine Forte at night. His sleep was of ongoing concern and Dr Carr had suggested starting Lyrica.
The applicant had still not received approval for the Centre and had been unable to have further physiotherapy, which was important to manage his chronic pain. If he was unable to have any regular exercises, his back pain would continue to worsen.
Dr Carr next reported to Allianz on 30 October 2014. The applicant had obtained his swim pass, which Dr Carr opined would help with his chronic back ache. It was not likely to improve greatly, and he still required six Panadeine Forte per day.
On 29 January 2015, Dr Carr reported that the applicant had had to stop Lyrica for medical reasons and continued on Cymbalta. He was really quite depressed, and his back pain continued unabated. He didn’t have the money for Cymbalta, which is a powerful antidepressant. He continued to need Panadeine Forte.
Dr Carr reported on 5 March 2015 that the applicant continued to suffer mechanical back ache, aggravated by activity. His depression had improved since he had been on Cymbalta. He was still using a lot of analgesia, Panadeine Forte six times a day, and a supply lasted only about 16 days. Dr Carr wanted Dr Artinian to be involved in issuing prescriptions for this strong drug, as he thought the applicant should be under a single prescriber when using mild narcotic medication.
Dr Carr reported to Allianz on 26 March 2015 that the applicant was to stay under Dr Artinian’s care for the next six months. He would not see Mr Sutton unless Dr Artinian requested it. The applicant continued to require Panadeine Forte and 60mg Cymbalta, the latter for both pain management and depression.
On 1 June 2015, Dr Carr reported that the applicant had been using eight Panadeine Forte a day while he was off Lyrica. Dr Carr had told him this would upset his liver.
Dr Carr reported to Dr Artinian on 17 December 2015 that the applicant had been in worse pain since he saw him in July. The severity of his pain was aggravated catching his bus and standing into town to comply with attendance at rehabilitation, which was consistent with his sciatic pain.
On 22 January 2016, Dr Carr responded to questions from Injury Treatment Pty Ltd (rehabilitation provider). He opined that the applicant was likely to continue to suffer his current pain syndrome for the foreseeable future. Barriers to his return to work included depression. He suffered from an easily upset stomach and did not tolerate medication easily.
On 11 July 2016, Dr Carr reported to Dr Artinian that the applicant’s symptoms hadn’t changed. There was ongoing back pain and left sciatica, with no obvious solution, as he was in chronic pain all the time.
Dr Carr opined that there was nothing medically that was really going to alter the applicant’s management. He was pleased to be involved in the overall management plan, but not to prescribe analgesics, which he wanted under Dr Artinian’s care.
On 17 October 2016, Dr Carr reported that the applicant’s depression had increased. He had bilateral back pain and referred leg pain, worse on the left. He did not have any wasting. He was not keen on epidural injection, and Dr Carr couldn’t guarantee benefit. He remained on six Panadeine Forte a day, Cymbalta, and two Endone at night.
On 12 July 2017, Dr Carr reported that the applicant’s analgesic medications were really not solving the problem, despite six Panadeine Forte a day, and Endone two or three times a day.
Dr Carr reported to Dr Artinian on 30 October 2019. He endorsed the applicant continuing with Cymbalta 60mg once daily; Endone 5mg, four times a day; and Panadeine Forte, no more than two tablets, three times a day, as four times a day exposed him to dangerous doses of paracetamol. Dr Artinian needed to check his liver function. There would be occasions when he needed Valium.
The applicant told Dr Carr that his recent blood tests checked his liver function, and they were normal, but Dr Carr did not have confirmation.
Dr Carr reported to Dr Green on 12 October 2020. He noted that the applicant was on a lot of medication to help control his chronic low back pain and left sciatica. He had recently aggravated his back while being transferred between beds after a colonoscopy.
Dr Carr wanted the applicant to continue on Cymbalta, in a reduced dose as a trial. He needed up to four 5mg Endone tablets a day, and Panadeine Forte two tablets three times a day. He used the occasional Valium, and Dr Carr appreciated the chronicity of his symptoms. He supported an extra Endone tablet on “the odd day” when the applicant might need it.

Dr Nigel Ackroyd – general and vascular surgeon

Dr Ackroyd reported to Dr Joseph Galati on 27 August 2008.
The applicant had had PR bleeding on and off for a year or so. It came on particularly when he ate a lot of cured meats.
Dr Ackroyd opined that the applicant’s bleeding could be due to local anorectal pathology. He had arranged for examination under anaesthetic in Manly Hospital on 17 September 2008.
On 17 September 2008, Dr Ackroyd reported to Dr Galati that the applicant had had colonoscopy and banding of haemorrhoids.
Dr Ackroyd again reported to Dr Galati on 24 September 2008.
The applicant had recently had haemorrhoids banded and a small hyperplastic polyp removed from its proximal sigmoid colon. There was still some way to go with healing in the anal canal, but the applicant should ultimately get a good long term result.
Dr Ackroyd reported to Dr Artinian on 28 May 2010. The applicant had returned with further bleeding PR. He had some pain on opening his bowels.
Dr Ackroyd suspected the applicant had an anal fissure, which appeared to be associated with a small pedunculated lesion in the anal canal. He was to be admitted for an examination under anaesthetic with a view to banding his haemorrhoids and possible lateral sphincterotomy if there was a chronic anal fissure.
Dr Ackroyd next reported to Dr Artinian on 16 June 2010. He had performed excision of the applicant’s chronic anterior anal fissure and manual dilatation of the anus on 16 June 2010.

Dr John Bentivoglio – orthopaedic surgeon

Dr Bentivoglio was qualified by the applicant’s former solicitors and reported first on 9 May 2007. He recorded a consistent history of the injury.
The applicant complained of left sided low back pain and pain radiating down his left leg. Dr Bentivoglio diagnosed discal damage at L5/S1.
Dr Bentivoglio opined that it was likely that the applicant would continue to be symptomatic. He assessed 6% WPI as a result of injury to the lumbar spine.
Dr Bentivoglio again reported on 9 April 2009. The applicant’s complaints remained consistent.
Dr Bentivoglio’s opinion remained the same. The applicant had some anxiety, and he opined that Mr Sutton probably should be assessed by a psychologist or psychiatrist.

Dr Jama Merei – general and laparoscopic surgeon

Dr Merei reported to Dr Artinian on 12 December 2016. The applicant had been referred with abdominal pain and constipation. He had had a colonoscopy a few years ago.
Dr Merei agreed with Dr Artinian that the applicant needed a gastroscopy and colonoscopy.
There is a report of a colonoscopy performed by Dr Merei on 7 August 2017, the indications for which were abdominal pain and anal bleeding. Apart from two polyps, the examination was normal.
Dr Merei also reported on 7 August 2017 that the applicant had undergone upper gastrointestinal endoscopy, the indication for which was abdominal pain. The diagnosis was a normal examination.
Dr Merei reported to Dr Artinian on 1 October 2019. The applicant had been referred to him with a perianal lump. There was no associated bleeding. He had a history of polyps. Dr Merei opined that he would need a colonoscopy with possible banding of his haemorrhoids.
Dr Merei reported on 6 July 2020 that the applicant had undergone colonoscopy and polypectomy. Three rectal polyps were removed, and second degree haemorrhoids were banded.

Dr Thomas A Silva – orthopaedic surgeon

Dr Silva was qualified by Allianz and reported first on 24 August 2015.
Dr Silva recorded a consistent history of the injury. The applicant’s treatment since the injury had been a lot of physiotherapy, an exercise program and pain medication. He initially took Lyrica, which caused urinary symptoms, and took Tramadol, which nauseated him. His current medication was Cymbalta, Panadeine Forte and Endone.
The applicant complained of low back pain radiating down the left leg to the toes, causing some numbness and tingling in the leg.
Dr Silva diagnosed residual lumbar strain or discopathic back pain from a probable L5/S1 annular tear, but no lumbar radiculopathy.
Dr Silva again reported on 12 May 2021.
The applicant’s treatment had been no operation; no spinal injections; no physiotherapy; and pain medication like Panadeine Forte (four to six a day), 5mg Endone (six tablets a day), one Cymbalta a day, and one Valium a day. Dr Silva thought there was excessive consumption of opioids, which were not indicated for a mild residual lumbar strain without lumbar radiculopathy.
The applicant wanted to lie on the couch and had wanted to lie on the carpet at reception to relieve his back. Dr Silva found these to be significant non-organic features. He assessed 6% WPI.

Professor Terry D Bolin – gastrointestinal and liver specialist

Prof Bolin was qualified by the applicant and reported on 22 November 2016.
Prof Bolin recorded a consistent history of the injury. The applicant had been treated with physiotherapy, hydrotherapy, and medications including Panadeine Forte, Cymbalta and Endone, which he continued, together with Lyrica, Digesic, Tramadol and Somac. He was not at that time undergoing any physical therapy.
Prof Bolin recorded that symptoms referable to the gastrointestinal tract began soon after the injury.
Symptoms referable to the upper intestinal tract included periodic gastro-oesophageal reflux and heartburn, particularly at night. The applicant was able to eat only small meals because of epigastric pain and bloating with larger meals. There was no choking, but occasional belching. The symptoms were consistent with gastro-oesophageal reflux and heartburn. The applicant was undergoing no therapy.
The applicant also had symptoms referable to the lower intestinal tract. Constipation was present all the time, lasting three to four days. There was occasional blood with difficult defecation, and some abdominal pain that improved with the passage of flatus or a bowel action, suggesting it was of colonic origin. The applicant was on no particular therapy and relied on vegetables and fruit to increase his fibre.
Prof Bolin opined that the applicant required investigations that would be necessary before providing a WPI.
Prof Bolin diagnosed the applicant with gastro-oesophageal reflux and dysmotility; and constipation-dominant irritable bowel syndrome (IBS). He opined that this was a consequence of the work injury, in addition to the side effects of the medication taken for pain relief.
Prof Bolin assessed impairment of the upper digestive tract and lower digestive tract, but the applicant does not rely on those assessments.
Prof Bolin reported that IBS and motility disorders are one [sic] of the most common persistent pain syndromes. They are characterised by chronic abdominal pain or discomfort, alteration in bowel habit and bloating. He opined that injury, together with a multitude of drugs, act in concert to produce the symptoms of IBS. It is not possible to separate the contribution of each medication.
Prof Bolin added that there is increasing evidence that IBS is a stress sensitive disorder. Sustained stress can cause enhanced responsiveness of central stress circuits, dysregulation of adaptive systems and increased vulnerability to functional disorders, including IBS. Chronic stress has also been shown to affect health outcomes in IBS patients.
It is probable that changes occur over a period of time, accounting for the time lapse between the onset of injury and medication uses and the development of symptoms. Depending on physiological and psychosocial contributions, severity will differ among individuals and within the same individual over time.
Prof Bolin reported that it is hypothesised that patients with mild-to-moderate IBS often have more peripherally generated symptoms with gut-based features (i.e. relieved by defaecation, worse with eating, intermittent, crampy abdominal pain), whereas patients with more severe and painful IBS tend to have more noxious, continuous, and severe symptoms with psychosocial and somatic comorbidities.

Dr Min Fee Lai – general, plastic and reconstructive surgeon

Dr Lai was qualified by the applicant and reported on 21 March 2017.
Dr Lai recorded a consistent history of the injury. He noted that, besides his bad back, the applicant suffered from depression and bad dentition. He took Panadeine Forte and Endone for pain and Cymbalta for depression.
Dr Lai reported that the applicant’s physiotherapy had stopped over four years ago and his mainstay of pain management was home exercises and analgesia.
The applicant complained of lower back pain, more on the left, with radiation down the back of his left leg. He also had paraesthesia in the areas described. He had difficulty sitting, standing or lying for long periods. Carrying heavy objects aggravated his symptoms.
Dr Lai assessed 12% WPI as a result of injury to the applicant’s lumbar spine.

Dr Anthony Greenberg – general and gastrointestinal surgeon

Dr Greenberg was qualified by the applicant and reported on 15 February 2021.
Dr Greenberg recorded a consistent history of the injury. He understood that the applicant had a small annular tear to the L5/S1 disc, which had caused ongoing problems.
The applicant took Panadeine Forte, two tablets twice on a bad day, and three times a day when the pain was more severe; Endone 5mg in similar doses; mixed and matched medications, often taking two Panadeine Forte in the morning and the second dose of Endone in the afternoon and evening; on other occasions two Panadol in the morning and at lunchtime, two Endone in the afternoon and two in the evening; 60mg of Cymbalta in the morning; and 5mg of Valium at night. .
Dr Greenberg then went on to discuss the effects of the various drugs taken by the applicant.
Panadeine Forte is reported to be associated with nausea and vomiting in over 10% of patients. It is known to cause disturbance of gastrointestinal motility, resulting in delayed gastric emptying. Dr Greenberg opined that this would almost certainly aggravate any existing gastroesophageal reflux and aggravate the symptoms. It is accepted that 10% to 15% of patients requiring long-term Panadeine Forte, or most opiates, report a disturbance of gastrointestinal motility and varying degrees of constipation and sequelae. In Dr Greenberg’s experience, bowel dysfunction is often unreported and significantly more common than is generally recognised.
Endone is an opioid and Dr Greenberg opined is known to affect gastrointestinal motility. Nausea; vomiting; dyspepsia; gastritis; Xerostomia; abdominal pain; and anorexia are commonly reported. Constipation is a very common problem and associated with a significant morbidity. Diarrhoea is also a significant problem that can be the result of chronic constipation or a direct result of Endone.

Patients who take Cymbalta report nausea; dry mouth; constipation; insomnia; dizziness; fatigue; diarrhoea; somnolence; diaphoresis; and anorexia.
Valium is usually well tolerated. Adverse gastrointestinal events are recognised, but their frequency is not defined. Dry mouth or hypersalivation, constipation, diarrhoea and nausea have been reported. Addiction is of concern.
Dr Greenberg recorded that the applicant had no prior history of gastrointestinal issues and considered himself to be in good health. He had had no previous abdominal operations.
The applicant described his upper gastrointestinal tract symptoms as reflux, progressively worsening and occurring most days, and intermittent nausea.
As regards his lower gastrointestinal tract, the applicant said his bowels were normal before the injury. He tried initially to avoid medication, but the pain got too much. He started to take medication and developed bowel problems. He was constipated. He described his symptoms. He was aware of swelling, which had been diagnosed as haemorrhoids. He never felt his bowels were normal.
On examination, Dr Greenberg had the impression the applicant was very stoical, and playing down his symptoms. He was in the healthy weight range. His upper abdomen was fairly unremarkable, and he had some non-specific general tenderness in the lower abdomen.
Dr Greenberg opined that long-term use of analgesics and antidepressants are recognised to alter bowel motility and have significant side effects. The symptoms described were consistent with the history and diagnosis.
The cause of bowel motility is not well understood. However, it is accepted that it relates to the disturbance of normal bowel peristalsis and the movement of faecal matter through the colon. Acute or chronic stress may play a role in the aetiology. It is recognised that these symptoms can be very refractory to treatment and once the condition has become chronic, the symptoms may be difficult to alleviate.
Dr Greenberg referred to the gastroscopy performed by Dr Merei on 7 August 2017. The applicant said he had had quite a few endoscopies over the past years, and most recently a colonoscopy in July 2020. Dr Greenberg did not have a copy of that report.
Dr Greenberg opined that the applicant had rateable impairments of the upper gastrointestinal (tract); lower gastrointestinal (tract); and anal canal. He assessed WPI of 2% in respect of each, a combined total of 6% WPI.
On the balance of probabilities, Dr Greenberg opined that the symptoms described by the applicant were related to the medications he requires as a consequence of his orthopaedic injures. The recognised side effects of the medications could account for some of his upper gastrointestinal symptoms. It is unlikely that his symptoms will settle while he needs the medication.
Dr Greenberg opined that the applicant’s symptoms are not associated with IBS and on the balance pf probabilities are medication induced. It would not be expected that there would be any significant weight loss.
In Dr Greenberg’s practice, it was not uncommon to see patients with gastrointestinal symptoms that are a consequence of their medication. Such side effects are recognised and accepted in clinical practice. A normal colonoscopy does not exclude a medication induced motility disorder. It is accepted that a normal gastroscopy does not exclude gastro-oesophageal reflux disease (GORD).
Dr Greenberg concluded that the applicant had GORD; medication-induced gastrointestinal motility disorder; and haemorrhoids. Panadeine Forte and Endone are opioids and recognised to alter gastrointestinal motility. The applicant’s symptoms and clinical examination were consistent.

As regards the applicant’s haemorrhoids, Dr Greenberg opined that, while he requires long-term analgesics (opioids), it is unlikely they will settle down.
Dr Greenberg noted Dr Lai’s assessment of 12% WPI. He combined that assessment with his own to reach an assessment of 17% WPI.

Dr Siddarth Sethi – gastroenterologist/hepatologist

Dr Sethi was qualified by the respondent and reported on 4 May 2021.
Dr Sethi recorded a consistent history of the injury. The applicant was found to have an annular tear of the L5/S1 disc. He commenced taking analgesics almost immediately after the injury, using Panadeine Forte and Digesic, and later Endone.
The applicant first developed gastrointestinal symptoms in about 2011. There was no history of gastrointestinal symptoms before this. He had reflux felt as a burning sensation in the epigastrium, radiating upwards and causing throat discomfort. There was excess bloating, wind and abdominal distention, and he passed excess gas. His bowel habits tended towards constipation.
Dr Sethi noted that the applicant consulted Dr Merei on 12 December 2016 and underwent gastroscopy/colonoscopy on 7 August 2017. A July 2020 colonoscopy was reported as normal.
The applicant’s reflux was persisting, and his constipation was well controlled with laxatives. He smoked around five cigarettes daily and did not drink alcohol.
The applicant’s current medications were Valium; four tablets daily of Panadeine Forte; six tablets daily of Endone; Cymbalta; and three tablets daily of Golax.
On examination, Dr Sethi recorded that the applicant’s abdomen was soft and non-tender. There were no masses or organomegaly. Rectal exam showed small external haemorrhoids.
Dr Sethi opined that the applicant had GORD, IBS and haemorrhoids. They had all developed independently of his employment, accident and medications prescribed afterwards. They would have occurred regardless and are unrelated.
Dr Sethi noted that the applicant first began taking analgesics in 2006 but did not develop gastrointestinal symptoms until 2011. This strongly goes against any causative role for his medications. Had they been responsible, symptoms would have reasonably been expected to start within a few days or weeks. The five year gap essentially rules out any causative role for his medications beyond all reasonable doubt.
Dr Sethi opined that GORD is very common, affecting about 15% to 20% of the general population, and caused by laxity of the gastro-oesophageal sphincter valve. The analgesics the applicant was prescribed do not usually cause GORD. Smoking is a well-known risk factor for worsening GORD. He opined that the applicant’s smoking had likely contributed to his GORD.
IBS is also a very common condition, affecting about 15% to 20% of the general population, and caused by visceral hypersensitivity of the gastrointestinal tract. The analgesics taken by the applicant can cause mild constipation but don’t usually cause bloating and excess gas.
Haemorrhoids are also a very common condition, affecting up to 50% of the general population. They are caused by long term low dietary fibre intake.
Dr Sethi opined that the analgesics prescribed for the applicant do not reasonably account for his gastrointestinal symptoms, particularly his reflux, bloating and excess gas.
Dr Sethi commented on Dr Greenberg’s report. He opined that Dr Greenberg had given excessive and undue importance to the analgesics the applicant was prescribed and had not reasonably considered the far more realistic and likely possibility of him developing IBS. He had not considered the impact of smoking on causing GORD.
Dr Sethi disagreed with Dr Greenberg’s assessment of 6% WPI. The correct figure is 0% WPI. AMA guidelines clearly state that patients with symptoms only should be rated as 0% impairment. Dr Sethi assessed 0% WPI of the upper gastrointestinal tract; 0% WPI of the lower gastrointestinal tract; and 0% WPI of the anus, equating to 0% WPI.

SUBMISSIONS

The parties’ submissions have been recorded and a transcript is available. I will therefore refer to them only briefly.

Applicant

The applicant relied essentially on Dr Greenberg’s opinion and assessment. Dr Greenberg recognised that the medication he ingested was required to treat pain emanating from the spinal injury and he has given a history of significant pain. This is referred to in Dr Lai’s report.
The applicant submitted that Dr Greenberg has recorded a history of a significant amount of painkilling medication, and Cymbalta was also taken in part for treatment of depression. Dr Greenberg has referred to the effect of some of these medications on the gastrointestinal tracts. He submitted that it is important that Dr Greenberg opined that delayed gastric emptying “almost certainly” aggravated any existing GORD and symptoms.
The applicant referred to the decision in Kooragang v Bates (1994) 35 NSWLR 452 (Kooragang) and the commonsense approach to causation. He noted the difference of opinion between Drs Greenberg and Sethi. Dr Greenberg has opined that constipation is very commonly associated with Endone. The applicant submitted it features in his history.
The applicant submitted that it is important to dwell on Dr Greenberg’s history that he has been getting worse progressively, as it will have some bearing on the weight I give to Dr Sethi’s opinion. Dr Sethi points to the medication not being the cause of the problems, as bowel problems were noted in 2011, five years after the accident. Dr Sethi found GORD and IBS, differing from Dr Greenberg on the latter. They both agree the applicant has haemorrhoids. Dr Greenberg opined that while he requires long term analgesics, it is unlikely they will settle down.
The applicant submitted that Dr Greenberg had the impression he was very distressed and playing down his symptoms. It is important that he opined that a normal colonoscopy does not exclude medication induced motility disorder; and it is accepted that a normal gastroscopy does not exclude GORD. He submitted there is no issue that he suffers from GORD. Dr Sethi recognises it, but causation is in issue.
The applicant referred to Prof Bolin’s report, confirming that he did not rely on his opinion, but essentially for history. He recorded the ingestion of the same, or substantially the same, medication. He also recorded a history that the symptoms referrable to the gastrointestinal tract began soon after the injury.
The applicant has given evidence of the constant development of gastrointestinal symptoms, due to the medication he was taking for his back pain. He submitted that is an opinion, but probably gleaned from what he’s been told. He referred to his evidence about when he started taking various medications.
The applicant submitted that Dr Sethi recorded a history that he commenced taking analgesics almost immediately after the injury, which was consistent with his earlier submission.
The applicant submitted that Dr Sethi referred to “beyond all reasonable doubt”, which had “gone into criminal standards”.
The applicant submitted that Dr Sethi did not rule out analgesics having caused GORD, opining that those prescribed to him do not usually cause it. He submitted it allows me to examine the possibility. I have the opinion of Dr Greenberg, who is very strong on the medication causing the problems. The applicant stated he started to notice problems soon after the injury, not five years after.
The applicant submitted that Dr Sethi’s opinion that the analgesics he prescribed can potentially cause mild constipation, but don’t usually cause bloating or excess gas is supportive of him. The constipation is what Dr Greenberg opined is the cause of much of the pathology in the perianal tract, and the gastrointestinal motility, or the alternate IBS that Dr Sethi stated he has.
The applicant submitted that, if it’s accepted that low fibre intake causes haemorrhoids, it is not a giant step to deduce that a secondary effect is probably constipation. He submitted that Dr Sethi gives the concession in a rather oblique way. He doesn’t seem to take the next step, that constipation may ensue if you don’t take enough fibre.
The applicant submitted that I would find injury in these gastrointestinal areas and the anal area, as assessed by Dr Greenberg, and accept his history that he started noticing these problems soon after starting the medication.
The applicant sought a general order for section 60 expenses; and that, should I find in his favour on the consequential injuries, they be referred for assessment with the lumbar spine.
In reply to the respondent, the applicant submitted that the test to be employed is whether I am persuaded to the degree required by the evidence on causation, referring to Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen). Dr Greenberg used the balance of probabilities, based on his clinical history and the findings of the tests of the various drugs.
The applicant referred to the Court of Appeal decision in Murray v Shillingsworth [2006] NSWCA 367 [at 30] (Shillingsworth), where reference was made to the decision of Spigelman CJ in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 (McGuiness). He submitted that, first of all I look at the evidence, determine if it is possible, and if it is possible, look at the rest of the evidence. namely the factual material that informs the symptoms, his statement and the history in the reports. I then determine whether I am persuaded, as in the commentary in Nguyen.
The applicant also referred to EMI (Aust) Ltd v Bes (1970 WCR 114 (Bes), to which reference was made in Shillingsworth. He submitted that Dr Greenberg has said it’s a possible view by referring to these tests. The respondent is taking it a step further as those tests are something I can’t avoid, and therefore it’s below the probability or sense of persuasion consideration I must carry out. He submitted that’s not the way to approach it.
The applicant submitted I can’t abrogate my responsibility by looking at the test results referred to by Dr Greenberg, as dismissing the enquiry, he “doesn’t get over the hurdle of probability or the sense of persuasion” to make an award on causation in his favour.
The applicant referred to the evidence of Dr Carr, which he submitted supports Dr Greenberg’s clinical determination. Dr Bentivoglio opined in 2009 that he would probably require $500 worth of medication per annum, continuing, and given his level of pain and restriction at that time.

Respondent

The respondent submitted there is no issue that the applicant sustained an injury to his lumbar spine in 2006. There is no issue that he has been taking the medication that is set out in Dr Greenberg’s report.
The respondent referred to Kooragang and Moon v Conmah Pty Limited [2009] NSWWCCPD 134, which referred to the test of causation for a consequential loss or condition as being whether it “results or resulted from”. it submitted that this case comes down to a series of factual inconsistencies and a difference of opinion between medical experts. Prof Bolin can’t be relied on for the opinion as to causation. It is really a contest between the opinions of Drs Greenberg and Sethi.
The respondent referred to Dr Sethi’s history that the applicant began taking analgesics in 2006 but did not develop gastrointestinal symptoms until 2011. It submitted this is one of the important elements in the case, because what Dr Sethi diagnosed was GORD, IBS and haemorrhoids. He disavowed that they were causally related to the ingestion of the medication and has set out his reasoning. The history of a gap of five years he took is different from what the applicant said in his statement, but it is the assumption on which he proceeded.
The respondent then referred to Dr Sethi’s opinion as to the percentage of the population affected by the three conditions he diagnosed and their likely cause.
The respondent submitted that the first factual dispute is that there is a gap of five years between the commencement of taking the medication and the report by the applicant of the development of gastrointestinal symptoms in 2011. The applicant’s evidence that he first started experiencing gastrointestinal issues “not long after” the injury is not entirely helpful, but that’s as high as it gets on his evidence. Prof Bolin also recorded that symptoms began soon after the injury.
The respondent submitted that this raises a clear conflict between what Dr Sethi recorded having been told by the applicant and what the applicant told Prof Bolin and has said in his statement. One way to attempt to resolve the conflict is to refer to contemporaneous records. The respondent submitted there is a startling absence of any reference in the records between 2006 and 2011 to any gastroesophageal or gastrointestinal symptoms.
The respondent submitted that the clinical records are inconsistent with the applicant’s statement and certainly don’t corroborate it. They don’t support the history recorded by Prof Bolin. He has just recorded what the applicant told him. The respondent submitted that for me to accept the applicant, I would have to overcome the absence of any recorded complaint.
The respondent submitted it is fully aware that case law says there must be some caution about reliance on entries in clinical notes but that doesn’t necessarily apply to an absence of entries. We don’t have an explanation from the applicant as to why there are no records of complaint. The records support the account Dr Sethi recorded, which is the assumption on which he’s based his opinion.
The respondent submitted that, in contrast, Dr Greenberg “sort of launches into the medication review”. There is a background and social history and a history of the injury, but little in the way of identification of the starting time for these things, other than what appears to be an acceptance of what the applicant has said.
The respondent submitted that if Dr Greenberg is proceeding on the assumption that those symptoms occurred shortly after the commencement of medication, that is simply not borne out by the contemporaneous records. It might be something the applicant said, but there is considerable doubt about it and I would have considerable difficulty relying on it.
The respondent submitted I could put Dr Sethi’s opinion to one side and still not find that the applicant succeeds. He bears the legal and evidentiary onus of satisfying me on the balance of probabilities. Dr Greenberg refers several times to the balance of probabilities. It doesn’t lend reports any more weight, because the doctor is required to set out the assumptions on which he relies, the reasoning behind his opinion, and the opinion. The respondent submitted that Dr Greenberg doesn’t do that.
The respondent then referred in detail to Dr Greenberg’s report, and the percentage of the general population that he reported suffer from the conditions he diagnosed. It submitted there is a very significant proportion that doesn’t suffer from effects of the medication. The respondent submitted that adding the percentages, they add up to 49%, so we still don’t get to the balance of probabilities. But, more fundamentally, Dr Greenberg just states that on the balance of probabilities the symptoms are related. That raises the obvious question, “why?” “How do you say that?”
The respondent referred to the decision in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (Edmonds). It submitted that it’s not sufficient to simply state, as Dr Greenberg has done, that on the balance of probabilities it’s medication induced. Edmonds was cited with approval in Brannigan v Elbon Consulting Services Pty Ltd [2021] NSWWCCPD 27 (Brannigan), the publication of the decision in which has been restricted.
The respondent put onto the record what the President said in Brannigan. It submitted that Dr Greenberg has just provided a bare ipse dixit. It’s just an assertion that there’s a causal relationship and he has not even gone so far, with the upper gastrointestinal tract, as saying “it does”. He simply says “it could” account for.
The respondent submitted I have the alternative opinion of Dr Sethi, on which it is open to me to place weight, because he relied on a number of factors. He sets out why he considers that this is GORD, IBS and haemorrhoids, and why they’re not related to the medication the applicant has been ingesting for many years. The test in Kooragang is a commonsense test, but it’s not a leap of faith test. President Kirby referred to consideration of medical experts, where relevant.
The respondent submitted that Dr Greenberg’s reasoning “just doesn’t get there” because his percentages leave very large proportions, not of the general population, but of the very cohorts he’s talking about, who are taking those types of medication, who don’t experience it.
The respondent submitted that it doesn’t follow, and it’s not open to the Commission to find, that because the applicant has experienced symptoms after ingesting medication that the medication is causative. I have two opinions that are diametrically opposed. Dr Sethi provides reasons, Dr Greenberg does not. He doesn’t set out the assumptions on which he’s relying; identify when the symptoms came on; and deal with that in any analytical form. He just assumes that it follows, based on statistical populations.
The respondent finally submitted that I would not be satisfied that the applicant has made out the gastrointestinal or gastroesophageal conditions resulting from the injury to the lumbar spine and the necessity to ingest the medication.

SUMMARY

The applicant claims to have developed a consequential gastrointestinal condition as a result of the ingestion of medication to treat the effects of an accepted injury to his lumbar spine.
Mr Sutton is not required to establish that he has sustained injury to his gastrointestinal system arising out of or in the course of his employment, pursuant to s 4 of the 1987 Act, or that employment was a substantial contributing factor to the condition, pursuant to s 9A of the Act. In accordance with the decision of Deputy President Roche in Kumar v RoyalComfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), and the cases discussed therein, he need only establish on the balance of probabilities that his gastrointestinal condition resulted from the accepted injury to his lumbar spine.
In Kumar, Roche DP applied the principles of Kooragang, and they have consistently been applied in the Commission.
In Kooragang, Kirby P, as he 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 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.”
The applicant’s statement is undated, so I do not know when it was prepared. He stated that he first started experiencing gastrointestinal issues not long after the injury but is no more specific than that. He also stated that he had never had any gastrointestinal issues or abdominal operations before the injury to his lumbar spine.
I am of course conscious that decisions such as Nominal Defendant v Clancy [2007] NSWCA 349 and Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 advise that caution should be exercised when relying on clinical records.
However, this is essentially a matter where each party relies on qualified medical evidence. The respondent relies on the opinion of Dr Sethi that, because he recorded a history that the first gastrointestinal symptoms occurred about five years after the injury, and the applicant had been taking analgesics since 2006, that essentially rules out any causative role of the medication.

With no assistance from evidence from any treating doctor as to causation, the presence or absence of contemporaneous evidence is therefore, in my view, crucial to the determination I must make. I have no evidence from the applicant or any treating doctor to explain the absence of recorded complaints, apart from the applicant stating that “looking back”, he downplayed his pain, and Dr Greenberg describing him as “stoical”.
There is a history in the GPs’ notes that on 3 February 2006, which was before the injury, the applicant presented with PR bleed, and had seen a specialist, but there is no further evidence about that. It may be of limited relevance, except that it casts some doubt on the accuracy of the applicant’s recollection, where the timeline of events assumes some importance, and where they are, it is assumed, being recalled some years later.
Apart from the reference to epigastric hernia on 28 November 2007, which does not appear to be relevant, there is no contemporaneous reference in the GPs’ notes to the applicant experiencing gastrointestinal symptoms.
Dr Artinian recorded in November 2016 that the applicant had had a colonoscopy, and referred him to Dr Merei, but that was some 10 years after the injury. The next relevant entry is about PR bleeding “for years intermittently” on 22 May 2017. The applicant suffered from this issue before the injury. There is no indication in the records that the GPs related his gastrointestinal issues to his ingestion of medication.
Some GPs expressed concern about the applicant’s ingestion of Endone, and some suspected him (wrongly, it seems) of “doctor shopping”, but none recorded concerns that it may affect his gastrointestinal system. Dr Green recorded in December 2021 that the applicant was aware of the risks of taking high dose opiates but did not say what they were.
Dr Carr has treated the applicant for many years. He recorded in January 2008 that Mr Sutton was using medications like Panadol and Nurofen.
Dr Carr reported to Allianz in March 2011 that the applicant had tried to avoid Panadeine Forte, because last year he needed surgery for perianal problems that Dr Carr opined were a direct complication of the analgesics.
Neither party has referred me to Dr Ackroyd’s evidence, but it appears that Dr Carr may have been referring to the surgery he performed in June 2010 for an anal fissure. Dr Ackroyd has not commented on causation, apart from opining that the fissure appeared to be associated with a lesion in the anal canal.
As Dr Carr has recorded no detail of the surgery, and has not referred to Dr Ackroyd’s reports, I am not able to conclude that he was aware of the nature of the surgery, or that he could be certain it was a complication of ingestion of analgesics. Dr Carr recorded that “certainly” codeine had constipating effects, but this appears to have been the first time he mentioned this, in 2011. He expressed concerns about the effects of the medication on the applicant’s liver function.
Dr Merei’s evidence is of little assistance, as he has not commented on causation. He recorded abdominal pain, constipation and anal bleeding.
Prof Bolin reported in 2016, 10 years after the injury. He recorded that the applicant’s gastrointestinal symptoms began soon after the injury, but the history is no more specific, and it is not supported by the contemporaneous records.
Dr Greenberg has not recorded any history of when the applicant’s symptoms began. He has assiduously recorded the dosage and frequency of the medication, as has Dr Sethi, but he has not addressed the issue of the timing of the onset of symptoms. He has also not recorded, as Dr Sethi did, that the applicant is a smoker.
I have given little weight to the statistics cited by both Drs Greenberg and Sethi. It may be accepted that some individuals who are prescribed analgesic medication develop gastrointestinal symptoms as a result of the ingestion of such medication, and some do not. The matter I must determine on the evidence before me is whether the applicant falls into the former category.
The applicant referred to the decision of Einstein J in Shillingsworth, where his Honour (at [30]) referred to what Spigelman CJ said in McGuiness:
“There are cases in which medical science cannot identify the biological or pathological mechanisms by which disease develops. In some cases medical science cannot determine the existence of a causal relationship. Such a state of affairs is not necessarily determinative of the existence or nonexistence of a causal relationship for the purposes of attributing legal responsibility. In circumstances where the aetiology of a disease is uncertain or subject to significant scientific dispute, Courts are not thereby disenabled from making decisions as to causation on the balance of probabilities.”
Einstein J also referred to the remarks of Herron CJ in Bes (1970) WCR 114 at 119:
"It seems to me that bears out what I have concluded is the correct principle to apply, namely, that it is not incumbent upon the applicant upon whom the onus rests to produce evidence from medical witnesses which proves to demonstration that the applicant's contention is correct. 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 the 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.”
I am of course required to determine the issue in dispute, and I respectfully agree with the remarks of Herron CJ in Bes. However, I am, as his Honour said, required to reach a decision on probability. My findings must be based on the evidence, or reasonable inferences open to be drawn from the evidence, not on my own knowledge: Strinic v Singh [2009] NSWCA 15 at [60].

The respondent referred to Brannigan, in which President Judge Philips said:
“At reasons 187 the Arbitrator set out a passage from McColl JA’s decision [in Edmonds]. This has, since that date, been one of the leading cases dealing with the concept of bare ipse dixits of experts carrying little weight.”
McColl JA said in Edmonds (at [130]-[132]):
“In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh(1953) SC 34 at 39-40 that:
‘... the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng[2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.
In my view Dr Rivett’s statement that ‘in general all the problems are work-related’ which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.”
The difficulty I have in preferring Dr Greenberg’s evidence over that of Dr Sethi, which essentially forms the basis of the contest, is that Dr Greenberg does not appear to have a record of when the applicant’s symptoms commenced, which in Dr Sethi’s opinion is a crucial matter; and I do not have other evidence, lay or medical, that would assist me in determining that matter. As I have noted, Dr Greenberg also did not record a history of the applicant smoking.
The applicant has referred me to Nguyen, in which the Court of Appeal (McDougall J; McColl JA and Bell JA agreeing), said (at [48], referring to the decision of the High Court in Malec v JC Hutton Pty Limited[1990] HCA 20; (1990) 169 CLR 638):
“On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours’ approach, what is required is a determination of the respective probabilities of the event’s having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.”
The Court of Appeal in Nguyen went on to say at [55]:
“The position may be summarised as follows:
(1)     A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
For the reasons given above, I am not persuaded, on the balance of probabilities, that the applicant has sustained a consequential gastrointestinal condition as a result of the injury to his lumbar spine on 3 October 2006. There will accordingly be an award for the respondent in respect of that claim.
The medical dispute as to WPI as a result of injury to the applicant’s lumbar spine will be remitted to the President, to be referred to a Medical Assessor for assessment.
The orders are as set out in the Certificate of Determination.

[2022] NSWPIC 322

23 June 2022