1. The documents to be reviewed by the Medical Assessor are;

(a) the Application to Resolve a Dispute and attached documents, and

(b) the Reply and attached documents.

1. Following the completion of the Medical Assessment process the matter is to be listed for a further preliminary conference to assess the applicant's claim for pain and suffering under

A brief statement is attached setting out the Commission's reasons for the determination.

1. Mr Edward Ljubicic, the applicant, was a retained firefighter between 1989 and 2015. He was diagnosed with colorectal cancer in 2012, presumed under s 19A of the Workers Compensation Act 1987 (1987 Act) to have been contracted in the course of his firefighting employment. This condition has been successfully treated.
2. Following that diagnosis and right hemicolectomy surgery in 2012 the applicant developed significant gastrointestinal symptoms that he did not have before his cancer condition. A claim was made on 12 April 2023 for lump sum compensation for 13% whole person impairment (WPI) of the applicant's digestive system and scarring, and for pain and suffering pursuant to s 67 of the 1987 Act.
3. The respondent issued a notice on 6 November 2023 under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) disputing liability for the applicant's lump sum compensation claim, with the gastrointestinal symptoms not accepted as a consequential condition resulting from the accepted injury.
4. The applicant requested a review of that decision on 4 September 2025. The review outcome of 18 September 2025 upheld the decision to decline the claim for lump sum compensation.
5. The applicant lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (Commission) on 24 September 2025 claiming lump sum compensation for 13% WPI of the digestive system and scarring pursuant to s 66 of the 1987 Act, and $25,000 for pain and suffering pursuant to s 67 of the 1987 Act.
6. The dispute was listed for conciliation conference and arbitration hearing on

1. The parties agree the issue in dispute is whether the applicant has sustained a gastrointestinal condition as a consequence of the accepted colorectal injury of

1. The parties appeared for conciliation conference and arbitration hearing on

11 November 2025 by audio visual link (MS Teams). Mr Luke Morgan of counsel appeared for the applicant instructed by Ms Michelle Walsh, legal practitioner. Mr John Gaitanis of counsel appeared for the respondent instructed by Ms Brooke Dyson, legal practitioner. Mr Rosman and Ms Brown were also present. 2. I am satisfied 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 the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents; and

(b) Reply and attached documents.

1. In his first statement of 14 November 2023 the applicant, 70 years of age at that time, describes being employed by the respondent as a retained firefighter for 27 years from 1989 until his discharge on 9 October 2015. He was also a self-employed electrical contractor for 45 years.
2. As part of his duties with the respondent he used carcinogenic foams when firefighting, attended fires with toxic fumes including oil and car fires, and he occasionally attended bush fires.
3. The applicant was diagnosed with Type 2 diabetes in approximately 2001 which was picked up on an annual blood test that he was required to take for work. He had never had any gastrointestinal symptoms as a consequence of his diabetes. His diabetes is managed by his general practitioner. He has been taking insulin for the last two years and before that he was taking Diaformin tablets.
4. After his diagnosis with colon cancer the applicant had surgery on 5 July 2012 when Dr Still removed 20 cm of his colon. There has been no recurrence of his colon cancer since then.
5. Following the diagnosis however the applicant developed significant gastrointestinal symptoms that he did not have before the cancer.
6. The applicant describes his symptoms. These include loss of control of bowel movements, a sense of sudden urgency, and little warning when he needs to go to the bathroom. He is required to carry a change of underwear whenever he leaves the house. He experiences abdominal cramping and discomfort, difficulty and pain passing wind and there is a chance of bowel leakage.
7. The applicant's quality of life is affected; he is unable to swim or run and he has to organise his daily activities and life around the potential of an unexpected bowel movement.
8. He has never been diagnosed with irritable bowel syndrome (IBS).
9. In his statement of 2 April 2024 the applicant describes first being diagnosed with diabetes in about 2001 following an annual blood test required by the respondent.
10. It was noticed that his blood sugar level was high and his general practitioner arranged a blood glucose test which revealed the applicant had Type 2 diabetes.
11. The applicant had no symptoms at the time, he did not feel unwell and he would not have known he had diabetes if not for the blood test.
12. Diaformin was initially prescribed and in about 2021 the applicant was referred to an endocrinologist who he saw once. That doctor prescribed Metformin and he also takes Ryzodeg injections daily, 10mg before breakfast and 10mg before dinner.
13. The applicant had never suffered from any gastrointestinal symptoms from 2001 up until he had right hemicolectomy surgery in 2012. The gastrointestinal symptoms started after he had the 2012 surgery.

Dr Anthony Greenberg, independent general and gastrointestinal surgeon

1. Dr Greenberg provides a report to the applicant's solicitors dated 6 April 2023.
2. Dr Greenberg records the applicant's background, social history and his past medical history. The applicant's clinical history includes that he has some loss of bowel control and he has had several accidents, his stools are more formed in the morning becoming very loose and watery as the day goes on, it is not uncommon for him to go to the bathroom three to four times a day and when he gets urgency he describes cramping, abdominal pain, loose stools and explosive diarrhoea.
3. The applicant explained the consequences following his surgery have had a significant impact on his quality of life and his ability to function on a day to day basis.
4. Following his examination Dr Greenberg found the applicant to be in a healthy weight range, Dr Greenberg includes with his report photographs of the applicant's abdomen that show a visible scar from the right hemicolectomy.
5. The investigation reports included with Dr Greenberg's report include a histopathology report of 10 July 2012. A right hemicolectomy specimen consists of 35mm of terminal ileum and 95mm of caecum with ascending colon. The tumour located in the caecum is an ulcerated, slightly vegetant and infiltrative tumour measuring 14mm in greatest dimension and involving the ileocaecal valve. The report includes a reference to the tumour involving the ileocaecal valve.
6. Dr Greenberg confirms the applicant has had a good result from surgery and his chances of long-term cure are now extremely high, however his bowel function is now unlikely to resolve and it is permanent.
7. WPI of the lower gastrointestinal tract is assessed as Class 2 at 12% WPI. Dr Greenberg also assesses 1% WPI for scarring, and the applicant's combined WPI is 13%.
8. In a supplementary report on 26 March 2024 Dr Greenberg is asked whether the applicant's gastrointestinal symptoms that commenced after his treatment for colorectal cancer and the right hemicolectomy are caused by his colon cancer.
9. Dr Greenberg's understanding is the applicant did not have any pre-existing gastrointestinal symptoms prior to the surgery other than those related to the malignant (caecal) tumour.
10. After describing the applicant's clinical history including that following surgery he had significant gastrointestinal symptoms that have persisted and not resolved, Dr Greenberg provides a short literature review regarding diarrhoea and bile salt malabsorption.
11. In summary, all diarrhoea is incomplete absorption of water from the intestinal lumen and even relatively modest compromise of absorptive function can lead to loose stools. Diarrhoea can broadly be classified as a number of conditions including IBS and malabsorption syndromes.
12. Bile acids or bile salts are produced in the liver and bile, released after meals, is important for digestion and absorption of fats in the small intestine. Usually over 95% of the bile acids are absorbed in the terminal ileum, taken up by the liver and resecreted into the alimentary tract. Less than 0.5g of bile acids enter the large intestine each 24 hours and when large amounts enter the large intestine this can cause symptoms of chronic diarrhoea.
13. Dr Greenberg does not agree with Dr Sethi, qualified by the respondent, who concludes the applicant's symptoms are caused by IBS or diabetic neuropathy.
14. Dr Greenberg comments that it is recognised that bile salt malabsorption is an adverse event and occurs in a small cohort of patients. In his opinion bile salt malabsorption is more likely than not the cause of the applicant's gastrointestinal symptoms.
15. It is also recognised that some patients who have coloic resection for a variety of reasons including cancer can have an alteration of bowel habit as described by the applicant.
16. Dr Greenberg is aware the applicant is a Type 2 diabetic which he describes as being controlled by diet alone. In Dr Greenberg's opinion Type 2 diabetes is not likely to account for the applicant's current gastrointestinal symptoms.
17. Dr Greenberg says he has been a colorectal surgeon for over 35 years and the applicant's symptoms are consistent with his experience.
18. Dr Greenberg provides a second supplementary report on 12 June 2025. The doctor is asked for his opinion on Dr Sethi's supplementary report in which Dr Sethi opines the applicant's gastrointestinal symptoms are not related to his bowel cancer and are more likely due to autonomic neuropathy from Type 2 diabetes.
19. Dr Greenberg refers to his two earlier reports in which he discussed bowel dysfunction after surgical resection. Dr Greenberg reiterates that the applicant's symptoms are consistent with a patient who has had a right hemicolectomy.
20. Dr Greenberg says "[i]t is recognised that a loss of the right colon, ilio caecal valve and the terminal ileum can cause a significant change in bowel habit."[1]
21. Although the surgery was in 2012 it has been Dr Greenberg's experience that there is a cohort of patients such as the applicant who do not regain their previous bowel function; they have an ongoing issue and their bowel dysfunction does not resolve. It is recognised that although the majority of patients who have a right hemicolectomy recover and develop normal bowel function, there is a cohort who do not.
22. Dr Greenberg's opinion is that the applicant's ongoing gastrointestinal symptoms are on the balance of probabilities not a result of being a Type 2 diabetic.
23. The doctor is not aware of any evidence or investigation confirming the applicant has an autonomic neuropathy. The applicant's gastrointestinal symptoms are consistent with Dr Greenberg's experience as a general and colorectal surgeon.
24. Dr Greenberg assesses 12% WPI of the lower gastrointestinal tract and 1% for scarring, with a combined total of 13% WPI. The doctor's opinion is unchanged.

1. The histopathology report of 22 June 2012 notes clinical details including diabetic/weight loss and caecal tumour. The three biopsies show gastric active-chronic inflammation and helicobacter pylori, that the duodenum is normal, and the caecal tumour with tubulovillous adenoma with at least high grade dysplasia.
2. The CT chest, abdomen and pelvis of 25 June 2012 includes the clinical information of tumour medial wall caecum and confirms the primary caecal neoplasm on history with no CT evidence of advanced local disease, nodal disease or metastatic disease, as well as incidental cholelithiasis.
3. The histopathology report of 10 July 2012 with a right hemicolectomy specimen consisting of terminal ileum and caecum is referred to above.
4. The CT chest, abdomen and pelvis of 25 June 2014 includes the history of two years post right hemicolectomy and comments there is no evidence of disease recurrence.

Dr Andrew Still, treating colorectal and general surgeon

1. Dr Still reports to the applicant's general practitioner between 12 July 2012 and 2 July 2014.
2. Dr Still notes the applicant's very good recovery following the right hemicolectomy and cholecystectomy in July 2012. In 2014 he notes the applicant's past history of Type 2 diabetes, the 2012 surgery, and the colonoscopy in September 2013 following which he remains well.
3. In his report to Dr Perry, general practitioner, on 28 November 2012 Dr Still says "[h]is bowel habit tends slightly on the loose side but he is not troubled by this at all."[2]
4. The certificate of capacity of Dr Sumathi Sundar dated 9 August 2022 included with the ARD has as the diagnosis bowel cancer diagnosed in 2012.

1. The respondent relies on its s 78 notice of 6 November 2023, the internal review notice of

18 September 2025, and Dr Sethi's opinion that the applicant's symptoms are strongly suggestive of IBS and autonomic neuropathy secondary to Type 2 diabetes. 2. On 18 September 2025 the respondent confirms it does not agree the applicant has a consequential condition resulting from the accepted injury, or that he has any permanent impairment from the accepted injury, and he is not eligible for compensation.

Dr Siddarth Sethi, independent consultant gastroenterologist and hepatologist

1. On 23 July 2024 Dr Sethi provides his opinion that subsequent to the applicant's bowel cancer in 2012 and the curative resection, the applicant developed gastrointestinal symptoms of diarrhoea where he passes around two to three loose motions daily, he has fecal urgency and increased wind/gas which he blames on his previous cancer.
2. Dr Sethi disagrees with the applicant's view. In Dr Sethi's opinion the applicant has developed IBS and autonomic neuropathy secondary to Type 2 diabetes mellitus entirely of his own accord and his employment and bowel cancer did not play any causative role whatsoever. It has occurred regardless.
3. Dr Sethi outlines his reasoning. The applicant's symptoms are strongly suggestive of IBS, a common condition affecting around 15% to 20% of the general population caused by visceral hypersensitivity of the gastrointestinal tract, accepted by widespread medical and scientific opinion.
4. The applicant quit smoking 15 years ago and occasionally smokes. Dr Sethi's opinion is his smoking has likely contributed to his IBS as it is well described in the medical and scientific literature to worsen IBS.
5. It is highly likely and extremely probable in Dr Sethi's view that the applicant has developed autonomic neuropathy secondary to Type 2 diabetes mellitus to account for his symptoms, a well described complication of Type 2 diabetes.
6. Dr Sethi notes the applicant's bowel cancer has long since been in remission and he has fully recovered from this. There is no reasonable anatomical or physiological mechanism whereby the previous bowel cancer accounts for the applicant's current symptoms.
7. Dr Sethi includes as a pre-existing condition visceral hypersensitivity of the gastrointestinal tract along with cigarette smoking and Type 2 diabetes mellitus.
8. Dr Sethi's opinion is that there is no consequential condition whatsoever as a result of colorectal cancer and/or its treatment. He notes the applicant's gastrointestinal symptoms have been present since 2012 and have been stable for several years.
9. WPI of the lower gastrointestinal tract is 0%. Dr Sethi apportions 50% responsibility for the applicant's persisting complaints to his visceral hypersensitivity of the gastrointestinal tract, 45% to autonomic neuropathy from Type 2 diabetes mellitus, 5% to previous cigarette smoking and 0% to the work injury.
10. Asked to comment on Dr Greenberg's findings, Dr Sethi notes Dr Greenberg is a surgeon and not a gastroenterologist hence this case is outside his field of expertise, and it is in his opinion both unreasonable and inappropriate for a surgeon to comment on this case, being more appropriately in the field of expertise of a physician.
11. Dr Sethi's opinion is Dr Greenberg has entirely failed to consider the far more likely and realistic probability that the applicant has developed IBS and autonomic neuropathy of his own accord. Dr Sethi also notes the SIRA guidelines clearly state patients with symptoms alone and no clinical signs should be rated as having 0% impairment.
12. In a supplementary report of 4 March 2024 Dr Sethi reviews the clinical records and notes he could not find any mention of the applicant's gastrointestinal symptoms.
13. Dr Sethi is asked to explain the condition and symptoms of autonomic neuropathy. The condition occurs when there is damage to the nerves that control autonomic body functions, and can affect blood pressure, temperature control, digestion and bladder function, and it can cause bloating, fullness and diarrhoea. It is a well described complication of Type 2 diabetes and more likely than not, on the balance of probabilities, accounts for the applicant's current symptoms.
14. Dr Sethi outlines his reasoning for his opinion that the gastrointestinal symptoms are entirely unrelated to the cancer diagnosis; only part of the applicant's right colon was resected in 2012, the vast majority of his gastrointestinal tract is still intact including his stomach, entire small intestine and most of his large intestine.
15. The applicant should long since have made a full recovery from his cancer and it is highly unreasonable to blame this for his current symptoms in Dr Sethi's opinion. There is no reasonable anatomical and physiologic basis for bowel resection performed in the distant past for his current symptoms.
16. In his second supplementary report of 13 April 2024 Dr Sethi comments on Dr Greenberg's supplementary report of 26 March 2024.
17. The symptoms Dr Greenberg sets out are strongly consistent with IBS and autonomic neuropathy from Type 2 diabetes mellitus in Dr Sethi's view rather than arising from surgery. The applicant underwent right hemicolectomy for a cecal tumour, and did not undergo resection of the terminal ileum where bile salts are reabsorbed.
18. In view of that Dr Sethi disagrees with the applicant's symptoms of diarrhoea being caused by bile salt malabsorption, and he notes there was no reason for his operating surgeon to resect the small bowel nor was this documented in his clinical records. In view of this the mechanism of injury alleged by Dr Greenberg is entirely invalid.

Clinical records of Dr Andrew Still, treating colorectal and general surgeon

1. Dr Still's reports between 3 July 2012 and 2 July 2014 are with the Reply. These mainly provide brief reports of consultations with the applicant following the surgery on 5 July 2012.
2. There are a number of investigation reports including those referred to above.
3. In addition there are biochemistry and haematology reports, an electrocardiogram report, and a histopathology report on 3 September 2013 of a hyperplastic polyp. The CT chest, abdomen and pelvis on 15 August 2013 finds no indication of malignancy or other significant finding.

Clinical records of Dapto Family Medical Practice

1. The Dapto Family Medical Practice clinical records date from 6 August 2012 to

7 December 2023. The entries that appear relevant are noted below. 2. Dr Peter Cusick, consultant gastroenterologist, records on 22 June 2012 the applicant has not had any specific gastrointestinal symptoms although he has had reflux problems in the past. [3] 3. Dr Cusick then describes a colonoscopy examination performed through into the ileum. The ileum appeared normal but on the interior aspect of the ileocaecal valve and extending into the medial wall of the caecum there was a large ulcerative tumour and multiple biopsies were taken. The applicant was referred to Dr Still for resection. 4. Dr Still reports to Dr Perry on 28 November 2012 "[h]is bowel habit tends slightly on the loose side but he is not troubled by this at all."[4] 5. On 2 September 2013 Dr Cusick saw the applicant for a follow up colonoscopy and refers to the applicant currently having two to three bowel motions per day. 6. Dr Raja's letter to Dr Perry on 15 March 2015 includes that the applicant presented that day with vomiting, pain in the upper abdomen and slight diarrhoea. Dr Raja's impression was of gastritis with mild dehydration and the applicant received an injection of Stemetil. 7. Dr Perry records on 19 March 2015 the applicant recently had a gastro bug, weight loss due to extra work and a referral is created for a gastroscopy and colonoscopy. 8. On 3 October 2018 Dr Sundar notes the past history of bowel cancer with a history of weight loss but the applicant has good appetite, his bowels are regular and there is no bleeding. 9. On 25 March 2021 Dr Sundar notes after being prescribed with Endone the applicant's bowels are regular. 10. Regarding the applicant's diabetes, Dr Perry and later Dr Sundar manage the condition with regular reviews, testing and they provide prescriptions. 11. Dr Carol Ting, endocrinologist, recommended the applicant start Ryzodeg after seeing him on 26 February 2020. 12. On 5 March 2020 Dr Sundar records the applicant had seen Dr Ting who wants to put him on insulin, and on 31 March 2020 the doctor records the applicant has recently started on Ryzodeg.

1. The applicant made oral submissions which have been recorded and form part of the Commission's record. These are set out below.
2. Courts well recognise that caution should be taken when approaching clinical material and the significance one might attach to those notes They would certainly not be demonstrative one way or another the applicant says as to whether the applicant has problems with his intestinal tract.
3. Dr Greenberg, who performed a physical examination, and Dr Sethi, who relied on a video conference with the applicant, both make a diagnosis that the applicant has issues with the gastrointestinal tract and were willing to accept the workers recitation of symptomology. The diversion of opinion is essentially relative to the cause of that. Dr Sethi takes a very different and distinctive line to Dr Greenberg.
4. The test that needs to be applied is well recognised in Kooragang v Bates[5] applying a common sense test of causation looking at all the circumstances, and not Dr Sethi's approach where he appears to not be prepared to commit himself to a diagnosis unless he was effectively 99% certain that was the cause.
5. Regard should be had to all of the circumstances and the material before the Commission as to whether the relevant relationship exists between the injury and the condition the applicant describes.
6. Both doctors accept something has arisen as a consequence of the surgery that was performed to address the cancer which is accepted as a workplace injury given the nature of the applicant's employment.
7. Regard might also to be had to the decisions in Bes[6] and Fernandez[7] both of which are authority for the proposition that you do not need to be satisfied to the level of scientific proof relative to the relationship in a medical sense between the workers present condition and the surgery that was performed as a result of his workplace injury.
8. You are allowed to have regard to all of the overlying facts. Probably the most critical one is that, as the applicant identified in his statements, the diabetic condition was diagnosed ten years before the diagnosis of cancer and the worker's unchallenged evidence is that he had no gastrointestinal issues prior to the surgery. It has only been since the surgery that he finds himself in the situation he is now in, which marries to the opinion of Dr Greenberg.
9. The applicant urges the Commission to accept the worker as someone who comes before it with a quite specific complaint, in many ways a very embarrassing complaint. There is no reason the applicant submits why what he describes to Dr Greenberg is not an understandable consequence of the surgery performed.
10. Considering the worker's description of the symptomology, the doctors acceptance of that symptomology being relevantly indicative of a gastrointestinal complaint, the fact that it only became a problem after the surgery and the worker dealing with diabetes for ten years prior to that, with Dr Greenberg's considered opinion as a specialist in the field, the relevant relationship is established.
11. The applicant's statement evidence of 14 November 2023 was referred to in submissions. Attention was drawn to the applicant's diagnosis with diabetes in about 2001 and that he had no symptoms, he has consulted an endocrinologist once and his general practitioner manages his diabetes, he has taken insulin for the last two years and before that took Diaformin, and on noticing he was losing weight he had a colonoscopy following which he was diagnosed with colon cancer. The applicant describes his gastrointestinal symptoms and the affect on his quality of life.
12. In his more recent statement the applicant describes his diagnosis and treatment for diabetes.
13. Dr Greenberg's initial report includes the history and some clinical material. Dr Greenberg comments on Dr Sethi's opinion in his supplementary report. Dr Greenberg sets out his reasoning process considering the clinical history and he reviews the literature and concludes with his opinion that bile salt malabsorption is more likely than not the cause of the applicant's gastrointestinal symptoms. It is not likely that Type 2 diabetes accounts for his current gastrointestinal symptoms.
14. Dr Sethi in his report of 13 April 2024 disagrees with Dr Greenberg however the applicant submits he does not provide an explanation as to why. The work history is relative to the onset of his symptomatology and its close temporal association with the surgery is not at all relevant in the doctor's opinion and it suffers as a result.
15. Finally in Dr Greenberg's supplementary report of 12 June 2025 he comments again on Dr Sethi's most recent report and confirms his earlier opinion.
16. With reference to those three critical cases of Kooragang, Bes and Fernandez, when you look at all the material, the factual material and the medical evidence, the applicant's submission is the Commission would be more than comfortable with finding that the relevant relationship to this consequential condition resulting from the surgery exists and the matter can be referred to a Medical Assessor.
17. The significance or otherwise of complaints to a general practitioner is a matter for the Commission's determination, and if that is relevant to the assessment of WPI that is something that can be left to the Medical Assessor.

1. The respondent made oral submissions which have been recorded and form part of the Commission's record. These are set out below.
2. Kooragang requires a causal connection to be established where the condition naturally results from or was materially contributed to by the accepted injury. It is not just that it coincides in time.
3. The second point the respondent raises is the issue of diabetes which has not been referred to by Dr Greenberg. Dr Greenberg fails to really deal with the criticisms of Dr Sethi and he has had an opportunity to do so.
4. In his report of 12 June 2025 Dr Greenberg says he does not agree with Dr Sethi's opinion. From the information he reviewed he is not aware of any evidence or investigations that confirmed the applicant had diabetic induced autonomic neuropathy. He goes on to say the ongoing gastrointestinal symptoms are on the balance of probabilities not as a result of being a Type 2 diabetic.
5. Dr Sethi provides cogent reasoning and explanations for his opinions, which Dr Greenberg should have taken the opportunity to deal with but does not.
6. Dr Sethi sets out the history of diabetes mellitus and in his subsequent report of

14 March 2024 he is specifically asked to explain why he considers the gastrointestinal symptoms are related to his diabetes and not to his cancer diagnosis, and he is asked to explain the condition and symptoms of autonomic neuropathy. 7. Dr Sethi says the gastrointestinal symptoms are entirely unrelated to the cancer diagnosis and are more related to his diabetes and he outlines his reasoning. The bowel resection was performed 12 years ago and involved only part of his right colon. The vast majority of his gastrointestinal tract is still intact including his stomach, entire small intestine and most of his large intestine. In view of this he should long since have made a full recovery from his cancer and it is highly unreasonable to blame this for his current symptoms. 8. This is the explanation provided by Dr Sethi, and he says there is no reasonable anatomical or physiologic basis for bowel resection performed in the distant past to account for his current symptoms. 9. Dr Sethi goes on to say autonomic neuropathy is a well described complication of Type 2 diabetes and more likely, on the balance of probabilities, accounts for his current symptoms. 10. The doctor explains autonomic neuropathy occurs when there is damage to the nerves that control autonomic body functions and can affect blood pressure, temperature control, digestion and bladder function and can cause bloating, fullness and diarrhoea. 11. Those are the complaints the applicant indicates and Dr Sethi causally links the Type 2 diabetes to the autonomic neuropathy in a reasoned and cogent way to the current symptoms, and on the self-reporting of the applicant. 12. In his report of 13 April 2024 Dr Sethi says the applicant's symptoms are strongly consistent with IBS and autonomic neuropathy from Type 2 diabetes mellitus rather than arising from surgery as Dr Greenberg claims. 13. Dr Sethi disagrees with Dr Greenberg's assessment of bile salt malabsorption as being the cause of the applicant's gastrointestinal symptoms. He notes the applicant underwent right hemicolectomy for a cecal tumour and he did not undergo resection of the terminal ileum where bile salts are reabsorbed. In his view it is highly unlikely and extremely improbable on the balance of probabilities that he is experiencing diarrhoea related to bile malabsorption as Dr Greenberg alleges. 14. Dr Sethi has raised two important issues. One is the diabetes and the relationship to the autonomic neuropathy which is a nerve damage condition which causes bowel dysfunction and Dr Greenberg fails to deal with that at all. 15. Secondly Dr Sethi responds to the bile salt malabsorption and says the applicant did not undergo resection of that part of the bowel where bile salts are reabsorbed and it is extremely improbable that the diarrhoea is related to bile salt malabsorption. 16. There is a significant gap in that evidence and Dr Greenberg has not provided sufficient cause to find on behalf of the applicant on that basis. 17. There is not a low bar for finding a consequential condition. The Kooragang test requires a causal connection on a common sense basis and looking at alternative hypotheses which in this case is IBS and diabetes. Dr Greenberg has failed to deal with that. 18. Dr Still, the treating surgeon, reviewed the applicant regularly from 2012 to 2014. You would expect the applicant would tell Dr Still about the problems he has and there is no suggestion of these bowel dysfunctional issues raised by the applicant. 19. Dr Still's report of 28 November 2012 says "[h]is bowel habit tends slightly on the loose side but he is not troubled by this at all."[8] The balance of the material includes a number of reports from Dr Still to Dr Perry between 2012 and 2014 and there is just no reference at all to any complaints by the applicant about gastrointestinal problems. 20. You would expect seeing your colorectal physician after surgery and after a tumour you would say you were still getting these severe case of urgency, diarrhoea, cramping and so on because you would be troubled by it, but there are no complaints made to Dr Still about these things. 21. There is just no evidence of complaints in the medical notes. This is one of the factors that needs to be looked at. The applicant suggests caution should be exercised when one views clinical notes and submits it is not demonstrative one way or another. 22. The respondent's submission is the absence of reference to significant gastrointestinal issues after the applicant has suffered something quite serious points to there being a lack of complaint because it is just not there. 23. Dr Sethi has accepted the applicant in terms of the complaints that are made but he goes further and says if he has these problems they are not referable to the cancer he suffered or the surgery but it is referable to IBS and autonomic neuropathy secondary to long standing Type 2 diabetes mellitus. 24. The s 78 notice sets out the respondent's position. Dr Sethi in his first report of 23 July 2021 provides his explanation that he disagrees with the applicant blaming his cancer for the current gastrointestinal symptoms, and in his opinion he has developed IBS and autonomic neuropathy secondary to Type 2 diabetes. 25. Dr Sethi outlines his reasoning that the symptoms are suggestive of IBS, smoking is well described to worsen IBS, and autonomic neuropathy secondary to diabetes mellitus is a well described complication in the medical and scientific literature. The bowel cancer was surgically resected in 2012 and he has long since fully recovered. It is highly unreasonable to blame this for his current symptoms. 26. In his report of 6 April 2023 Dr Greenberg sets out the applicant's symptoms reported to him which is relatively consistent with the applicant's statement. Dr Greenberg includes some of the radiology reports and on 12 July 2012 a report from Dr Still to Dr Kapel that incudes he has made a very good recovery following his recent surgery. Dr Greenberg then moves forward to the WPI assessment and says the applicant had no postoperative complications. 27. Following the surgery the applicant has ongoing symptoms of chronic abdominal pain, loose watery stools, explosive diarrhoea, urgency and 'recurring accidents'. The respondent submits that may be so but there are no clinical notes or contemporaneous material in that respect. 28. Dr Greenberg makes absolutely no comment at all regarding causation of the problems or symptoms he identified with the surgery. In his report of 26 March 2024 Dr Greenberg says the applicant had no pre-existing gastrointestinal symptoms prior to the surgery, then he looks at the literature review and says broadly diarrhoea can be classified as firstly IBS which is what Dr Sethi is talking about. Dr Greenberg then says he does not agree with Dr Sethi and there is no explanation provided. 29. Dr Greenberg then talks about the bile salt malabsorption and says it is also recognised that some patients who have coloic resection for a variety of reasons including cancer can have an alteration of bowel habit as described by the applicant. 30. Dr Greenberg is aware the applicant is a Type 2 diabetic controlled on diet alone but he goes on to say without any explanation or reasoning that in his opinion Type 2 diabetes is not likely to account for the applicant's current gastrointestinal symptoms. He does not deal with Dr Sethi's opinion. Dr Greenberg then says he has been a colorectal surgeon for over 35 years and the symptoms are consistent with his experience. 31. Dr Greenberg fails to address Dr Sethi's opinion in his report of 12 June 2025 and reiterates his earlier comments. The extent of Dr Greenberg's opinion is that he is not aware of any evidence or investigation confirming the applicant has diabetic induced autonomic neuropathy and on the balance of probabilities the symptoms are not as a result of being a Type 2 diabetic. 32. Dr Sethi has provided cogent and reasoned explanations and he has provided an alternative hypothesis that the more probable cause is IBS and diabetic autonomic neuropathy. Dr Greenberg has not displaced that alternative hypothesis and simply disagrees with it. 33. The applicant needs to establish on the balance of probabilities that his current gastrointestinal symptoms are caused or materially contributed to by the accepted cancer or its treatment. The chain of causation is broken because there is an alternative pathology that explains the symptoms and Dr Greenberg fails to explain why it is not so. 34. Dr Sethi raises the question of a gastrointestinal physician providing comment and not a specialist surgeon. 35. Dr Sethi has provided an explanation of autonomic neuropathy secondary to diabetes which is consistent with the evidence, and with an absence of recorded bowel complaints in the decade after surgery in the clinical notes. 36. On that basis Dr Sethi's opinion should be accepted and not Dr Greenberg's opinion. If the Commission is against the respondent the matter should go to a Medical Assessor and return for the assessment of the s 67 claim.

1. Dr Greenberg is a gastrointestinal surgeon of 35 years' experience who provides an opinion as to what happens when one does a right hemicolectomy and we have a gastroenterologist who has decided without any clinical evidence or any testing that there is a neuropathic condition. Dr Greenberg points out there is no evidence to support that as a potential cause of the complaints made by the applicant.
2. Dr Greenberg is a surgeon who has performed surgery in this space for 35 years and he says the applicant's symptoms are consistent with a patient who has had a hemicolectomy and it is recognised that a loss of the right colon, ilio caecal valve and the terminal ileum can cause a significant change in bowel habit.
3. A quick search of the internet says the definition of a right hemicolectomy is a removal of the right side of the colon including the caecum, the appendix and a portion of the terminal ileum.
4. The histopathology shows and Dr Greenberg says that a right hemicolectomy involves an impact on the terminal ileum.
5. Dr Sethi says unless they have touched the terminal ileum Dr Greenberg's theory does not hold water, however there is no basis for Dr Sethi's opinion as there is no basis to support the proposition or theory as to cause of the applicant's complaints.
6. Dr Greenberg in his most recent report could not be clearer with respect to how this has come to pass. He has had responses to this surgery with changes that can be mild, moderate or severe. The applicant's symptoms are consistent with a patient who has had a right hemicolectomy and he required that surgery because of the cancer.
7. Dr Greenberg then explains that it is recognised that although the majority of patients who have a right hemicolectomy recover and develop normal bowel function there is a cohort who do not, and that is the applicant. He does not agree with Dr Sethi's opinion as he is not aware of any evidence or investigations that confirm the applicant has diabetic induced autonomic neuropathy.
8. Dr Sethi has made a stab in the dark based on the fact the applicant is diabetic and says perhaps this is causing his symptoms, and it could not possibly be the inability to absorb bile salts because the terminal ileum was not touched, but there was clearly a biopsy done on it so something has happened to the terminal ileum in the surgery.
9. Dr Greenberg says that results from the surgical procedure that involves the terminal ileum.
10. The applicant accepts what the respondent says regarding the timeline which is not evidence itself, but it is part of the overall factual picture to weigh with all the various elements on the available material.
11. There is a doctor saying there is a probable connection and as Bes and Fernandez both say it is only in circumstances where the doctors say there is no possibility of a connection that that conclusion is not open.
12. Dr Greenberg, an experienced colorectal surgeon, says it is probable there is a connection and then there is the temporal association which torpedoes Dr Sethi's opinion, as there is no analysis as to why there was not a problem before 2012 and there is one afterwards.
13. Dr Sethi's alternative theories have no basis in a diagnosis that is identified and he has decided as a physician and not as a surgeon that the terminal ileum is not involved in this particular surgery where clearly it is.
14. Once you tie all those elements together you would have little difficulty in accepting that the relevant relationship exists, a consequential condition has resulted from the surgery, and it is a matter for a Medical Assessor as to how to assess the level of WPI.

1. Dr Sethi in his report of 13 April 2024 accepts the applicant underwent a right hemicolectomy but then says he did not undergo resection of the terminal ileum where bile salts are reabsorbed. There was no reason for his operating surgeon to resect the small bowel nor was this documented in his clinical records. In view of this, the mechanism of injury alleged by Dr Greenberg is entirely invalid in Dr Sethi's opinion.

Did the applicant sustain a gastrointestinal condition as a consequence of the accepted colorectal injury of 22 June 2012

1. The applicant carries the onus of establishing he has sustained a consequential gastrointestinal condition on the balance of probabilities, and he must actually persuade the Commission of the occurrence or existence of a fact before it can be found.[9]
2. It is not necessary for the applicant to establish a consequential gastrointestinal condition is itself an 'injury' pursuant to ss 4 and 9A of the 1987 Act. As Roche DP discusses in Moon[10] all the applicant must establish is that his gastrointestinal symptoms and restrictions have resulted from his accepted colorectal cancer.
3. Where there is a consequential condition the legal test of causation requires the application of the principles in Kooragang, confirmed in Kumar,[11] with a commonsense evaluation of the causal chain and with each case determined on its own facts and on the basis of the evidence and expert opinions.
4. The question to be asked is whether the disputed gastrointestinal condition resulted from the work injury,[12] whether the subject injury materially contributed to the onset of the condition claimed, and whether the causative connection has been snapped or broken by a novus actus interveniens.[13]
5. There is no dispute the hemicolectomy in July 2012 was required to treat the applicant's accepted colorectal or colon cancer.
6. Dr Greenberg and Dr Sethi agree the applicant has recovered from the colon cancer, the cancer is not the cause of his current gastrointestinal symptoms, those symptoms arose following the hemicolectomy on 5 July 2012 and they have not resolved.
7. Ther respondent notes the lack of reference to gastrointestinal symptoms in the clinical records. This in part might be explained by what may be considered as the embarrassing nature of the symptoms.
8. As the applicant submits, clinical material may not be demonstrative one way or another, and Courts accept generally that clinical records should be treated with caution.[14]
9. In circumstances where the applicant was diagnosed with colon cancer and then had regular reviews to confirm it had not recurred, I am not persuaded the absence of clinical records referring to gastrointestinal complaints is of such significance as to undermine the acceptance by both Dr Greenberg and Dr Sethi of the history of the symptoms the applicant describes.
10. It is undisputed that the applicant's gastrointestinal symptoms arose following the hemicolectomy in 2012, however something more than a temporal connection is required[15] as the applicant concedes.
11. On the available evidence no specific testing has been carried out to identify the precise cause of the applicant's gastrointestinal symptoms.
12. As the applicant submits relying on Bes and Fernandez, the Commission is not required to be satisfied of the relationship between the applicant's gastrointestinal symptoms and the hemicolectomy to the level of scientific proof.
13. In Bes Herron CJ states it is not incumbent on the applicant to produce evidence from medical witnesses which proves to demonstration that his contention is correct, and if medical science is prepared to say that it is a possible view that there is a connection between the events and the injury then after examining the lay evidence the Commission may decide that it is probable.[16]
14. Dr Greenberg opines the applicant suffers with diarrhoea and bile salt malabsorption. Bile salt malabsorption he describes as occurring when larger amounts of bile acids enter the large intestine, stimulating water secretion and intestinal motility in the colon which causes symptoms of chronic diarrhoea.
15. Bile salt malabsorption occurs in a small cohort of patients and in Dr Greenberg's opinion this is more likely than not the cause of the applicant's gastrointestinal symptoms. Some patients who have coloic resection have an alteration of bowel habit as described by the applicant. His symptoms are consistent with Dr Greenberg's experience over 35 years as a colorectal surgeon.
16. I do not accept Dr Sethi's opinion that there is no reasonable anatomical and physiologic basis for the 2012 surgery causing the applicant's current symptoms or that the mechanism of injury alleged by Dr Greenberg is entirely invalid.
17. Dr Sethi notes that only part of the applicant's right colon was resected in 2012 and the vast majority of the gastrointestinal tract is still intact including his stomach, the entire small intestine and most of his large intestine.
18. Dr Greenberg says it is recognised that a loss of the right colon, ilio caecal valve and the terminal ileum can cause significant change in bowel habit.
19. There is no operation report available from the hemicolectomy on 5 July 2012. The right hemicolectomy specimen from that surgery consists of terminal ileum, caecum with ascending colon and appendix. The infiltrative tumour involved the ileocaecal valve. There are also segments of the large and small bowel with numerous stitches and multiple surgical staples. The tumour is described as being "to colon and terminal ileum".[17] This report appears to support for Dr Greenberg's opinion which I accept.
20. There is insufficient evidence in my view supporting Dr Sethi's opinion of the alternative causes of the applicant's gastrointestinal symptoms.
21. Dr Sethi opines the applicant's symptoms are strongly suggestive of IBS and autonomic neuropathy secondary to Type 2 diabetes. Dr Sethi provides a cogent and reasoned opinion as the respondent submits, however there is no further evidence before the Commission supporting those diagnoses.
22. Regarding IBS, Dr Sethi opines this is a common condition affecting around 15% to 20% of the general population caused by visceral hypersensitivity of the gastrointestinal tract. There is no evidence suggesting the applicant has a heightened sensitivity or a lower than normal threshold for pain. Dr Sethi refers to the lack of mention of gastrointestinal complaints in the clinical records. This suggests it is unlikely the applicant had a pre-existing condition of visceral hypersensitivity as he opines.
23. I am not persuaded that IBS is more likely than not the cause of the applicant's symptoms in the absence of further evidence supporting that diagnosis.
24. Regarding autonomic neuropathy secondary to Type 2 diabetes, Dr Sethi opines it is highly likely and extremely probable that this has developed and accounts for the applicant's symptoms including diarrhoea. It is a well described complication of Type 2 diabetes.
25. While there is evidence the applicant's diabetes condition was not always well managed, the applicant's unchallenged statement evidence is that his diabetes condition did not cause gastrointestinal symptoms following diagnosis in 2001, some ten years before his gastrointestinal symptoms occurred in 2012.
26. The applicant relies on his general practitioners to manage his diabetes and he consulted Dr Ting in 2020 who recommended he commence using Ryzodeg. There is no evidence from his general practitioners or from Dr Ting suggesting his diabetes condition may have resulted in autonomic neuropathy. Dr Still notes the applicant is a Type 2 diabetic and makes no reference to relevant symptoms.
27. I do not accept the respondent's submission that Dr Greenberg provides no explanation or reasoning for his opinion that Type 2 diabetes is not likely to account for the applicant's gastrointestinal symptoms.
28. Dr Greenberg's explanation is that he is not aware of any evidence or investigations confirming the applicant has autonomic neuropathy. Dr Greenberg is not in my view required to offer more by way of an explanation for his opinion that the cause of the applicant's symptoms is not likely to be autonomic neuropathy secondary to Type 2 diabetes.[18]
29. I am not persuaded that autonomic neuropathy secondary to Type 2 diabetes is likely to account for the applicant's gastrointestinal symptoms in the absence of further evidence supporting that diagnosis.
30. Dr Sethi's opinion is consistent with the evidence of the applicant's symptoms as the respondent submits, however on weighing all of the evidence I prefer the opinion of Dr Greenberg. I do not accept the chain of causation is broken as a result of Dr Sethi's opinion of an alternative explanation for the applicant's symptoms.
31. The majority view in Fernandez is that where there is expert evidence of a probable cause of the condition, in drawing an inference as to the causal connection with the injury the Commission is entitled to have regard to the absence of any pre-existing condition, the appearance of the condition after the injury, together with the absence of any other proof or indication in the evidence of an alternative cause of the condition. The combination of the circumstances and the medical evidence may provide a sufficient basis on which to draw an inference favourable to the applicant.
32. Given the absence of pre-existing gastrointestinal symptoms, that the applicant had a hemicolectomy in 2012 following which he began to suffer gastrointestinal symptoms, insufficient evidence in my view that his symptoms result from IBS or Type 2 diabetes, and Dr Greenberg's expert medical opinion connecting those symptoms to the surgery which I have preferred, I accept on balance the hemicolectomy more likely than not caused the applicant's gastrointestinal symptoms.
33. On the balance of probabilities I find the applicant's gastrointestinal symptoms are caused or materially contributed to by the hemicolectomy surgery required to treat the accepted colorectal injury.

1. The applicant has sustained a gastrointestinal condition as a consequence of the accepted colorectal injury of 22 June 2012.
2. The matter will be remitted to the President for referral to a Medical Assessor for assessment of WPI of the applicant's digestive system and scarring (TEMSKI).
3. Following the completion of the Medical Assessment process the matter is to be listed for a further preliminary conference to assess the applicant's claim for pain and suffering under

[5] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).

[6] EMI (Aust) Ltd v Bes [1970] 2 NSWLR 238 (Bes).

[7] Tubemakers of Australia Ltd v Fernandez [1975] 2 NSWLR 190; (1975) 50 ALJR 720 (Fernandez).

[9] Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55].

[10] Moon v Conmah Limited [2009] NSWWCCPD 134 at [45].

[11] Kumar v Royal Comfort Bedding [2012] NSWWCCPD 8.

[13] Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 at [53].

[14] Mason v Demasi [2009] NSWCA 227.

[15] Forestry Commission of New South Wales t/as Forests NSW v Graham [2014] NSWWCCPD 73 at [78].

[18] Australian Security and Investments Commission v Rich [2005] NSWCA 152.