Tyers v Graphic Packaging International Inc

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tyers v Graphic Packaging International Inc [2024] NSWPIC 100
APPLICANT:	Neal Tyers
RESPONDENT:	Graphic Packaging International Inc
MEMBER:	John Turner
DATE OF DECISION:	4 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66; no dispute that the applicant had suffered hernia injuries to both groins in the course of his employment with the respondent; the applicant alleged that the right sided hernia injury developed as a consequence of the earlier left sided hernia injury; the respondent disputed that the right sided hernia condition was a consequential condition and therefore that the impairments from the left and right hernia conditions could be combined for the purposes of assessment of impairment pursuant to section 66; Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty, State of New South Wales v Bishop, Kooragang Cement Pty Ltd v Bates, Briginshaw v Briginshaw, and Mason v Demasi considered; Held – the applicant sustained a consequential condition of the right groin as a result of the accepted left hernia injury sustained on 10 May 2015.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant sustained a consequential condition of the right groin, hernia, as a result of the accepted left hernia injury sustained on 10 May 2015. The Commission orders: 2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 10 May 2015 – personal injury. (b) Body systems / parts: (i) right lower extremity; (ii) left lower extremity; (iii) left ilioinguinal nerve; (iv) left iliohypogastric nerve; (v) left anterior femoral cutaneous nerve; (vi) right ilioinguinal nerve (consequential); (vii) right iliohypogastric nerve (consequential); (viii) right anterior femoral cutaneous nerve (consequential), and (ix) TEMSKI/scarring. (c) Method of Assessment: whole person impairment 3. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents, and c. documents attached to the applicant’s Application to Admit Late Documents dated 19 February 202. 4. The parties have liberty to apply for four days from the date of this decision in respect to any issue in respect to the body systems to be referred to the Medical Assessor.

STATEMENT OF REASONS

BACKGROUND

Mr Neal Tyers, the applicant, was employed at all relevant times by Graphic Packaging International Inc, the respondent, as a printer’s assistant.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that he sustained a frank and/or disease injury to his left groin on
10 May 2015. That following surgical repair of a left inguinal hernia which was performed on 2 December 2015 he returned to work with the respondent performing his pre-injury duties despite having been certified fit for light suitable duties. That following his return to work he relied on his right side to reduce the strain on his previously injured left side and as a result developed a hernia on his right side.
At the arbitration hearing the applicant, for the sake of absolute clarity, sought leave to amend the Application to Resolve a Dispute (ARD) by amending the type of injury to frank and/or disease and the injury description to add the following additional paragraph:
“The right sided hernia injury resulted from the left hernia injury thereby being a consequential condition. The surgical procedures which were required with respect to the left and right hernia conditions resulted from the left hernia injury and are consequential conditions.”
The proposed amendments were not objected to by the respondent and the ARD was amended in accordance with the applicant’s application.
The applicant seeks compensation for impairment of his left lower extremity, right lower extremity, nervous system and TEMSKI/scarring pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
In respect to impairment of the nervous system the applicant relies on impairment assessments provided by Dr Tillman Boesel, interventional pain specialist, who assessed impairment of the right and left ilioinguinal, iliohypogastric and anterior femoral cutaneous nerves.
The respondent does not dispute that the applicant sustained hernia injuries to both groins in the course of his employment. The respondent disputes that the right side hernia injury has resulted from the earlier left side hernia injury and therefore disputes that any impairment which results from the two conditions can be combined for the purposes assessing any entitlement to impairment compensation pursuant to s 66 of the 1987 Act.
The applicant commenced employment with the respondent in 2011.
It is the applicant’s evidence that on or about 10 May 2015 whilst in the course of his work duties he experienced pain in his left groin and noticed a lump in the same area which became particularly obvious when he bent down. The applicant reported the injury and subsequently attended on the respondents nominated doctor, the general practitioner (GP) Dr Candice Chin, who referred the applicant for an ultrasound.
The applicant was subsequently referred to Dr David Youkhanis, general surgeon, who referred the applicant for a further ultrasound. On 2 December 2015 Dr Youkhanis performed a surgical repair with mesh of a large left direct inguinal hernia as well as a surgical repair with mesh of a paraumbilical hernia.
It is the applicant’s evidence that following the surgery he experienced increasing pain in the area.
It is the applicant’s evidence that approximately six weeks after the surgery he was certified fit to perform light duties. However, as there were no light duties made available the applicant returned to work with the respondent performing his pre-injury duties.
It is the applicant’s evidence that as the pain in his left leg and groin would increase significantly if he placed a lot of weight on his left side, particularly when lifting pallets or pushing the pallet jack, he would place as much weight as possible on his right leg/right side of his body in an attempt to reduce the strain on the injured left side.

It is the applicant’s evidence that in or around February 2017 he was provided with lighter duties in quality control. However, these duties still required him to stand and lift and he continued to place as much weight as possible on the right side of his body.
In around early 2017 the applicant noticed pain in his right groin for which he initially attended on his GP, Dr Chow, on 28 March 2017. On 29 March 2017 Dr Chow’s colleague, Dr Steven Wong referred the applicant for an ultrasound of his right groin suspecting that the applicant had developed a hernia. The applicant was subsequently diagnosed to be suffering from a right inguinal hernia and was referred to the general surgeon, Dr Sulman Ahmed. The applicant was also referred for pain management to Dr Sushama Deshpande, interventional pain specialist.
On 7 September 2017 Dr Ahmed performed a surgical right inguinal hernia repair with mesh. It is the applicant’s evidence that his pain increased following the surgery.
A recurrence of the left sided inguinal hernia was subsequently diagnosed and on
29 March 2018 Dr Ahmed performed a surgical repair with mesh of the recurrent left sided inguinal hernia.
The applicant experienced ongoing pain with various treatments being attempted including cortisone injections, radiofrequency ablation and the trial of a spinal cord stimulator which was removed after approximately one week.

ISSUES FOR DETERMINATION

It is not disputed that the applicant has sustained work related hernia injuries to both groins in the course of his employment with the respondent. The respondent however disputes that the right groin condition is as a consequence of the earlier left groin condition.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
16 February 2024. Mr Ty Hickey, counsel, instructed by Ms Jessica Grant-Nilon, solicitor, appeared for the applicant, who was present. Mr Andrew Coombe, counsel, appeared for the respondent, instructed by Mr Richard Orr. The proceedings were conducted in-person. 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)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    applicant’s Application to Admit Late Documents dated 19 February 2024 and attached documents.
There was no objection by the respondent to the admission into evidence of the document attached to the applicant’s Application to Admit Late Documents dated 19 February 2024. A copy of the document was provided at the time of the arbitration hearing at which time a Direction was made for the applicant to lodge an Application to Admit Late so that the document would form part of the Commission file.

Oral evidence

Neither party sought leave to adduce oral evidence.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

FINDINGS AND REASONS

Consideration and findings

There is no dispute that the applicant sustained, as alleged, hernia injuries which affected his left groin in the course of his employment with the respondent with a date of injury of
10 May 2015. There is also no dispute that the applicant subsequently sustained in the course of his employment a hernia injury affecting his right groin. There is also no dispute that the surgical repairs for both the left and right hernias were required as a result of the accepted work injuries. The respondent has accepted liability for both injuries and has paid for the resulting treatment including the costs of and associated with the surgical repairs.
Whilst injury is not in dispute, Mr Coombe submitted on behalf of the respondent that there is no evidence that the applicant had sustained a disease injury as opposed to a frank injury. I accept that there is no evidence to support that the hernia injuries sustained by the applicant are disease injuries for the purposes of s 4 of the 1987 Act. The medical experts who provided forensic reports to both the applicant and the respondent do not appear to have considered the issue. Whether the accepted injuries suffered by the applicant are frank injuries or disease injuries however is irrelevant to the matter at hand. The applicant relies alternatively on having sustained either frank injuries or disease injuries and as previously noted injury is not disputed.
The dispute is as to whether the right sided hernia injury results from the left sided hernia injury sustained on 10 May 2015 as the applicant contends or that it is a separate injury unrelated to the earlier left sided hernia injury as the respondent contends.
I accept the applicant’s evidence, which there is no reason to doubt, there being no evidence to the contrary that his work duties with the respondent prior to sustaining the left sided hernia injury included working with a machine which created labels on cardboard packaging. His duties required him to push pallet jacks loaded with stacked cardboard which would be fed into the machine. Once the cardboard had been fed into the machine, he would then have to remove the empty pallet which required him to lift the pallet and twist to place the empty pallet on the ground. He would then collect another stack of cardboard packaging with the pallet jack to take back to the machine and repeat the process. He would go through about 40 pallets of cardboard per day. It is the applicant’s evidence that the work was very fast paced as the machines were quick and he needed to keep up with the machine. It is the applicant’s evidence that the machine on which he worked was around four steps high which made the stack of the empty pallets on the ground heavier.
From the applicant’s description, his work duties prior to suffering the left sided hernia were physically heavy and arduous in nature.
I also accept the applicant’s evidence, which there is no reason to doubt, there being no evidence to the contrary that on returning to work with the respondent in 2016 following the surgical repair of his left sided hernia he was not initially provided with suitable duties but returned performing his pre-injury duties.
I also accept the applicant’s evidence, which there is no reason to doubt, there being no evidence to the contrary that in or around February 2017 he was provided with lighter duties in quality control. Whilst these duties may have been lighter, he was still required to pack boxes of printed material, each box weighing between 5 to 10kg, before carrying and loading the boxes onto pallets. That in addition to lifting and carrying the boxes that he packed he also assisted his female colleagues by lifting, carrying and stacking the boxes that they had completed. The applicant estimates that he would carry approximately 240 boxes during each shift that he worked and at the time he was working three, four hour shifts per week.
Whilst the duties that the applicant performed whilst on light duties may have been lighter than his pre-injury duties, they were still physically heavy and repetitive in nature.
It is the applicant’s evidence, which is supported by the contemporaneous medical evidence, that he continued to experience left groin pain following the initial surgical repair performed by Dr David Youkhanis, specialist general surgeon and endoscopist, on 2 December 2015. I also accept the applicant’s evidence that his left groin symptoms were aggravated by his work duties following his return to work. The clinical notes from the Tindale Family Practice corroborate the applicant’s evidence. The said clinical notes relevantly record:
(a)    entry dated 19 February 2016 – that the applicant had returned to work on the Tuesday on light duties but was finding it hard as he was limping and still tender following the surgery;
(b)    entry dated 24 March 2016 – persistent pain in the left groin and that there were no light duties;
(c)    entry 4 April 2016 – that the applicant was managing his normal duties despite some pain;
(d)    entry 13 May 2016 – that the applicant was experiencing on and off left groin pain;
(e)    entry 16 May 2016 - that the applicant was experiencing increasing left groin pain;
(f)    entry 1 September 2016 – that the applicant was experiencing left groin pain and that he picks up heavy pallets at work;
(g)    entry on 28 November 2016 – that the applicant was still complaining of left groin pain after picking up heavy wooden pallets at work, and
(h)    on 28 March 2017 the clinical notes record the applicant’s first complaint of right groin pain.
The applicant’s evidence as to experiencing on going pain following the left sided hernia repair is also support by the reports of the treating surgeon Dr Youkhanis. Whilst
Dr Youkhanis initially reported on 17 December 2015 that on review the applicant was feeling well, was asymptomatic and very happy with the outcome, the doctor subsequently reported on 19 February 2016 that the applicant was still complaining of pain but was getting better. By the time that Dr Youkhanis reported on 10 March 2016 a further ultrasound had been performed of the applicant’s left groin in respect to which Dr Youkhanis noted that the ultrasound had been reported as displaying signs consistent with lateral femoral cutaneous nerve impingement syndrome which Dr Youkhanis dismissed as being unrelated to the hernia surgery on the basis that the surgical repair of the of the left inguinal hernia did not involve work, cutting or stitching, in the area of the lateral femoral cutaneous nerve.
Dr Youkhanis therefore recommended that the applicant be referred to a neurosurgeon.
Dr Deshpande reporting on 22 June 2017 also recorded that the triggers for the applicant’s left inguinal hernia pain were mainly walking and lifting. The applicant reported to
Dr Deshpande that his pain was relieved with resting.
The opinion of Dr Youkhanis brings us to the issue of the cause/diagnosis of the applicant’s on going post surgical left groin pain.
Whist Dr Youkhanis dismisses the applicant’s post surgical pain as being unrelated to the left side hernia repair, Dr Deshpande to whom the applicant was initially referred for pain management diagnosed persistent post hernia surgery neurogenic pain on the left side. In the opinion of Dr Tillman Boesel, interventional pain specialist, who appears to have taken up the pain management treatment of the applicant from Dr Deshpande, the applicant is suffering from a chronic neuropathic pain syndrome following injury to the nerves in the groin during the hernia operation on both sides. In particular Dr Boesel identified significant neuropathic pain in the territories of the bilateral ilioinguinal, iliohypogastric and anterior femoral cutaneous nerves.
Dr Anthony Greenberg, general and gastrointestinal surgeon, who provided forensic medical reports to the applicant is of the opinion that the applicant’s symptoms and physical findings are consistent with bilateral nerve entrapment syndromes. Dr Greenberg in providing his opinion observed that postoperative pain following inguinal hernia repair is a recognised complication. Dr Greenberg observed that there are two mechanisms that are thought to explain the symptoms being neurotropic pain and nociceptive pain. Neurotropic pain arises when one or more nerves are injured during the procedure and nociceptive pain is usually as a result of an inflammatory response from the mesh, or the fixation devices used to anchor the mesh in place.
Dr Phil Truskett, surgeon, who provided forensic medical reports to the respondent is of the opinion that the applicant suffered genuine left sided pain following the left sided hernia repair surgery. In the opinion of Dr Truskett the focus of the pain appeared to be in the area of the pubic tubercle and the abductor longus tendon which in his opinion may have become inflamed by the operative procedure. In the opinion of Dr Truskett the pain was related to the surgical repair of the left hernia. Dr Truskett did not however believe that there was convincing evidence of neural damage and believed that the applicant’s symptoms were more in keeping with a myofascial syndrome.
Whilst the diagnosis made by Dr Truskett differs from that of Dr Boesel, Dr Deshpande and Dr Greenberg; Dr Truskett agrees that the persisting symptoms following the left hernia repair surgery was as a result of the surgery.
I prefer and accept the opinions of Dr Truskett, Dr Boesel, Dr Deshpande and Dr Greenberg that the applicant’s continuing symptoms following the left hernia repair surgery were due to the said surgical repair. The weight of the medical opinion supports the opinions of the said doctors. Whilst Dr Youkhanis is of the opinion that the applicant’s ongoing pain was unrelated to the surgery, Dr Youkhanis appears to have only relatively briefly considered the issue suggesting that an opinion be obtained from a neurosurgeon whilst Dr Greenberg and Dr Truskett in particular have provided detailed reasons for their opinions and as Dr Truskett observed historically the development of the symptoms was consistent with them being related to the surgical repair.

Having accepted that as a result of the accepted left sided hernia injury sustained on
10 May 2015 the applicant suffered from ongoing left groin pain following and due to the surgical repair performed on 2 December 2015 and that following his return to work with the respondent in early 2016 he continued to perform heavy physical duties which aggravated his left groin symptoms I now turn to the question of whether the accepted right groin hernia injury results from the accepted earlier left sided hernia injury.
To establish that the right groin injury is a consequential condition the applicant has to prove on the balance of probabilities that the right groin condition resulted from the left groin injury. It is not necessary for the applicant to establish an injury within the meaning of s 4 of the 1987 Act.[1]
[1] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [100]; Moon v Conmah Pty Limited [2009] NSWWCCPD 134 at [45].
The question of whether a consequential condition has been sustained is a question of fact.[2] Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain.[3]
[2] State of New South Wales v Bishop [2014] NSWCA 354.
[3] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
The applicant bears the onus of establishing on the balance of probabilities that he has developed a consequential condition as a result of the accepted left groin hernia injury. For a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact.[4]
[4] Briginshaw v Briginshaw [1938] HCA 34; 91938) 60 CLR 336.
On his return to work with the respondent in early 2016 following his left side hernia repair surgery on 2 December 2015 the applicant was performing his original pre-injury duties. It is the applicant’s evidence, which I have previously accepted, that his left leg and groin pain was aggravated by his work duties at the time. It is the applicant’s evidence that he would place as much weight as possible on his right leg/right side of his body in an attempt to reduce the strain on the injured left side.
The applicant was provided with lighter duties in quality control in or around February 2017. However, these duties as described above were still physically heavy in nature with the applicant repetitively lifting and carrying boxes which he stacked onto a pallet. It is the applicant’s evidence that whilst performing these lighter duties he continued to place as much weight as possible on the right side of his body.
It is the applicant’s evidence that throughout the time that he performed the lighter duties he would place as much weight as possible on his right side as he would feel an immediate increase in pain if he stood with his weight on his left side. When he lifted, he would place as much weight as possible on his right side. It is the applicant’s evidence that when he was performing the lighter duties he would carry the boxes mainly up against his right side in an attempt to minimise the weight on his left side. He would then bend down, leaning towards his right side, with most of his weight on his right side.
In late March/early April 2017 the applicant was diagnosed with a right sided hernia for which the respondent has accepted liability.
Mr Coombe submitted on behalf of the respondent that the applicant in his initial statement made on 28 April 2017, a statement made in respect to the right sided hernia condition, does not refer to relying on his right side to protect his left side and that the clinical notes of the Tindale Family Practice record no mention of an altered gait apart from the entry on
16 December 2016 and record no mention of altered lifting or method of work.
In my view the applicant’s failure to mention the reliance on his right side at the time of the making of his statement on 28 April 2017 and the lack of reference to reliance on the right side and to altered gait it in the clinical notes of the Tindale Family Practice is of no significance. The applicant in his statement of 28 April 2017 does state that he had continued to suffer from pain in his left groin since the left hernia repair surgery. The applicant provides in his statement a very matter of fact description of his duties, the development of his condition, the treatment he received and his work situation following the development and reporting of the right sided condition.
The applicant is not a doctor and would not have been aware of any significance that maybe attached to his reliance on the right side of his body and as Mr Coombe observed in his submissions the applicant does not in his statement evidence draw a causal link between his reliance on his right side and the development of the hernia condition.
As previously noted, the contemporaneous medical evidence such as the clinical notes from the Tindale Family Practice corroborate that the applicant’s work duties aggravated his left groin symptoms and it is entirely reasonable to assume that the applicant would have attempted to reduce such aggravations by placing a greater reliance on the right side of his body.
The clinical notes for the applicant’s attendance are brief, as is usual for such notes and as Basten JA observed in Mason v Demasi [2009] NSWCA 227 should be treated with caution. Dr Deshpande reported on 22 June 2017 that the triggers for the applicant’s left inguinal hernia pain were mainly walking and lifting and that his pain was relieved with resting. Whilst Dr Truskett did not report the presence of a limp when he reported on the applicant on
28 August 2017, Dr Ian Smith who provided an injury management report to the respondent on 29 August 2019 noted that the applicant could walk for 10 minutes with a limp tending to drag his left leg a little, Dr Truskett on 13 July 2020 reported that the applicant had told him that he always limps as well as observing that the applicant limped at the time of the examination and Dr Truskett reported on 15 June 2021 that the applicant reported that he had limped with his left leg since his initial surgery.
Whilst the said reports of Dr Smith and Dr Truskett post date the development of the right side hernia condition they significantly pre-date the opinion of Dr Boesel of 2 June 2023 as to the existence of a causal connection between the applicant’s limp and the development of the right sided hernia condition.
I accept the applicant’s evidence that he placed a greater reliance on the right side of his body following the left hernia repair surgery.
It is the evidence of Dr Boesel and Dr Greenberg that lifting is a recognised cause of hernia. It would also appear that Dr Truskett agrees with this opinion.
Dr Boesel offered as a likely explanation for the development of the right sided hernia the applicant’s favouring of his right side whilst he was lifting heavy pallets. Dr Boesel considered that the increased load on the right side as well as the asymmetric biomechanical loading on the right lower limb and inguinal region may have caused the applicant to be more likely to suffer a hernia on the right side. Dr Boesel correctly qualified his hypothesis by observing that he is not a surgeon but rather treats pain disorders.
Mr Coombe, on behalf of the respondent, criticised the opinion of Dr Boesel on the basis that there is a shift in the report in which Dr Boesel provided this opinion from a reliance on altered gait as the cause of the right hernia condition to a reliance on heavy lifting which reflected poorly on the applicant’s case.
I do not accept this submission. Dr Bosel was asked by the applicant’s solicitors to provide an opinion regarding the mechanism of the right groin injury and whether the right groin injury is a consequential condition resulting from altered gait following the accepted left groin injury. Dr Boesel having considered the question posed by the applicant’s solicitors provided his opinion which was that he did not believe that an abnormal gait is an implicated causal factor in the right sided hernia as a mechanism of injury. The doctor did propose an alternate hypothesis as previously discussed. There is no opinion from Dr Boesel or any other medical expert to the effect that the applicant’s altered gait caused or contributed to the development of the right sided hernia condition.
Dr Truskett considered the above hypothesis of Dr Boesel and rejected same on the basis that he was unable to provide a physiological mechanism whereby an individual could consciously or unconsciously redistribute intraabdominal pressure in this way.
Dr Greenberg observed that excessive lifting and the consequential increase in intrabdominal pressure is a recognised contributing factor to hernia development. This has also been his experience as a surgeon for over 30 years.
Dr Greenberg observed that when engaging in manual labour and excessive lifting the normal mechanisms transmit the weight through the upper limbs (shoulders and elbows), through the cervical spine and thoracolumbar spine, the abdominal wall and into the lower limbs (hips and knees).
Dr Greenberg observed that it had been his experience that when there is disturbed symmetry excessive lifting or repetitive activity can result in ipsilateral pathology. In the opinion of Dr Greenberg, the need for the applicant to rely on the right side was more likely than not a substantial contributing factor to the subsequent development of the right sided inguinal hernia.
Mr Coombe submitted on behalf of the respondent that the opinion of Dr Truskett should be accepted and that the opinion of Dr Greenberg is speculative. In making this submission
Mr Coombe referred to the last paragraph on page 2 of Dr Greenberg’s report dated
5 February 2024 where Dr Greenberg states: “It is recognised that excessive lifting and the subsequent increase in intraabdominal pressure is regarded as the contributory factor to hernia development.”
The paragraph in question simply provides Dr Greenberg’s understanding of the accepted medical view as to a cause of hernia. That opinion is shared by Dr Boesel and Dr Truskett. Dr Greenberg’s opinion as to the causal connection between the left sided hernia condition then focuses on the altered biomechanics and importantly the biomechanics involved in load bearing which included not only the abdominal wall but also the arms, legs and spine.
Mr Coombe also submitted that that the opinion of Dr Greenberg that the need for the applicant to rely on the right side was “more likely than not” a substantial contributing factor to the subsequent development of the right sided inguinal hernia is speculative. I do not accept that the opinion is mere speculation. It is often the case that medical experts are asked to provide an opinion on matters where it is not possible to provide such an opinion with absolute certainty. The use of the phrase more likely than not indicates a greater than 50% probability. The doctor provides reasons for his opinion including his observations from long career as a surgeon.
I prefer the opinion of Dr Greenberg to that of Dr Truskett. In coming to his opinion
Dr Greenberg has considered all the biomechanical factors that are involved in lifting and in the bearing of the weight being lifted and how those biomechanical factors are affected by the asymmetry caused by the applicant’s over reliance on the right side of his body. It is clear from the applicant’s description of how he carried the boxes when performing the lighter duties, carrying the boxes pressed up against his right side, that the left groin injury and the persisting post surgical pain lead to a significant alteration in the technique that he would likely otherwise have adopted. Dr Truskett appears to assume, without considering the altered techniques adopted by the applicant that the intraabdominal pressures would have been unaltered without considering in a holistic fashion as Dr Greenberg has done the biomechanics of the lifting process.
The respondent submitted that it is significant that the applicant in his statement evidence does not identify how it is that the right sided hernia is directly related to the left sided hernia. I do not accept the respondent’s submission. As Mr Hickey correctly submitted on behalf of the applicant, the applicant is not a doctor and is not able to give an opinion as to the causal connection. Even Dr Boesel who is a highly qualified specialist qualified his opinion as to causal connection by observing that he was not a surgeon. The applicant has however provided commentary as to how the left hernia injury and his continuing post surgical pain caused him to rely on his right side to bear not only his body weight but also the weight of any items that he lifted.
Mr Coombe submitted on behalf of the respondent that the first time that any causal link between the left hernia injury and the development of the right hernia condition was raised is when Dr Boesel provided his report to the applicant’s solicitors on 2 June 2023. Mr Coombe submitted that if there was a causal connection to be drawn between the left inguinal hernia injury and the development of the right hernia condition, that such a causal link would have been identified by the treating medical practitioners but there is no evidence of such an opinion.
I do not accept this submission. There was no reason for the treating doctors to consider what for their purposes would have been an esoteric and irrelevant question. The treating medical practitioner’s role was to treat the applicant and to potentially consider the issue of causation if a dispute as to liability arose that affected the payment of the treatment costs. There was no dispute as to the diagnosis of the hernia conditions, the consensus of the medical opinion was that the bilateral hernia conditions were caused by the nature of the applicant’s employment duties and the respondent accepted liability for both conditions.
The only time that the issue of any causal connection between the left hernia condition and the development of the right hernia condition becomes of relevance, and merit consideration, is in respect to the claim for impairment compensation. Thus, the question initially arises when the applicant’s solicitors pose the question to Dr Boesel which the doctor responded to on 2 June 2023.
For the above reasons I find that the applicant sustained a consequential condition of the right groin, hernia, as a result of the accepted left hernia injury on 10 May 2015.
As I have found that the applicant has suffered a consequential condition of the right groin as a result of the accepted left sided injury I will remit both injuries to the President for referral to a Medical Assessor for impairment assessment.

[2024] NSWPIC 100

4 March 2024