Brazil v State of New South Wales (NSW Police Force)
[2025] NSWPIC 81
•11 March 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Brazil v State of New South Wales (NSW Police Force) [2025] NSWPIC 81 |
| APPLICANT: | Douglas Edward Brazil |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 11 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; applicant claims permanent impairment compensation payable under section 66 resulting from injury to his left lower extremity (left hip) being an aggravation of a disease injury arising out of or in the course of his employment with the respondent; the applicant also claims pain and suffering compensation payable under section 67; the applicant’s claim is declined with alleged injury placed in issue; Held – the applicant sustained injury to his left lower extremity (left hip) being an aggravation of a disease injury arising out of or in the course of his employment with the respondent with his employment being a substantial contributing factor to injury; the applicant’s claim for permanent impairment is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment resulting from the injury; the applicant’s claim for pain and suffering compensation is stood over until the Medical Assessment Certificate is issued and the appeal period has past. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained injury to his left lower extremity (left hip), being an aggravation of a disease injury, arising out of or in the course of his employment with the respondent, with his employment being a substantial contributing factor to injury, with deemed date of injury of 6 September 2018. 2. The applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 is remitted 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: Date of injury: 6 September 2018 (deemed). Body systems/parts: left lower extremity (left hip). Method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attached documents; (c) Reply and attached documents, and (d) Application to Lodge Additional Documents dated 3 February 2025 and attached documents. 4. The applicant’s claim for pain and suffering compensation payable pursuant to s 67 of the Workers Compensation Act 1987 is stood over until such time as the Medical Assessment Certificate has issued and the appeal period relevant to the Medical Assessment Certificate has passed. 5. The respondent is to pay the applicant’s costs as agreed or assessed. The matter is considered to be complex and a 10% uplift on costs for both parties is recommended. |
STATEMENT OF REASONS
BACKGROUND
At the time the applicant, Douglas Edward Brazil (Mr Brazil) sustained alleged injury the subject of these proceedings, he was working with the respondent, State of New South Wales (NSW Police Force) (NSWPF). Mr Brazil was with NSW Police between 2005 and 2018. Mr Brazil is currently working as an IT consultant. Mr Brazil is 50 years of age.
Mr Brazil claims lump sum compensation payable under s 66 of the Workers Compensation Act 1987 (1987 Act) for permanent impairment resulting from alleged injury to his left lower extremity (left hip), being injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a pre-existing disease, arising out of or in the course of his employment with NSW Police, with his employment being a substantial contributing factor to injury, and with a deemed date of injury of 6 September 2018.
Mr Brazil also claims lump sum compensation payable under s 67 of the 1987 Act for pain and suffering.
The circumstances of Mr Brazil’s alleged injury is described in the following terms:
“regular wear of the police issued appointments belt over the course of his service has led to a left hip injury including wearing the belt whilst driving, walking, running, arresting offenders, wrestling and sitting for prolonged periods”
Mr Brazil’s claim is declined, and he has been issued with notice of the decision to decline his claim, in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).
ISSUES FOR DETERMINATION
The parties agree the deemed date of injury is 6 September 2018.
The parties agree the following issues remain in dispute:
(a) whether Mr Brazil sustained injury to his left lower extremity (left hip) being a disease injury aggravated in the course of his employment with NSWPF, with his employment being a substantial contributing factor to injury, and if so,
(b) percentage permanent impairment resulting from the injury and entitlement to compensation payable under s 66 of the 1987 Act for permanent impairment and entitlement to compensation payable under s 67 of the 1987 Act for pain and suffering.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
These proceedings came before me for preliminary conference on 4 December 2024 and with Mr Brazil’s claim remaining unresolved, these proceedings came before me for conciliation/arbitration hearing on 10 February 2025. Mr Tanner of counsel appeared for
Mr Brazil, and Mr Gaitanis of counsel appeared for NSWPF. Counsel’s instructing solicitors were present. Representatives of both the insurer and NSWPF were present. Mr Brazil was present.Following my discussions with counsel 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 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 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) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents, and
(c) Application to Lodge Additional Documents dated 3 February 2025 and attached documents.
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
Mr Brazil’s statement
Mr Brazil provided a statement dated 31 October 2024. Mr Brazil relevantly explained:
“about the 26th of August 2005, I attested as a constable in the NSW Police Force stationed at Leichardt Local Area Command initially performing general duties. Between the 16th April 2008 and the 16th May 2009, I performed duties as the Field Intelligence Office, Leichardt Local Area Command. Between 17th May 2009 and 18th September 2010 I performed duties at the State Electronic Evidence Branch Strawberry hills in a technical capacity. Between 19th September 2010 and 13th December 2017 I worked in general duties whilst stationed at the Penrith Local Area. Between 14th December 2017 and 6th September 2018 I worked in general duties whilst stationed at the Nepean Police Area Command. On the 6th September 2018, I separated from the NSW Police Force”
Relevant to his alleged left hip injury, Mr Brazil said:
“During my service I was required to wear a police-issued appointments belt that weighed approximately 3 kilograms. The belt held all my appointments, including firearm, spare ammunition, handcuffs, baton, torch, multitool, personal protection kit and police radio. I began wearing the belt following my attestation in August 2005 and wore it while driving, walking, running, arresting offenders, wrestling, and sitting for prolonged periods, primarily during 12-hour shifts.
In March 2010 I began to experience increased discomfort and pain in my hips, prompting me to request a gel belt. I reported this to Senior Sergeant Donald Jordan on 18th June 2010 and received the belt a few weeks later.
In December 2022 while kneeling to reach out to one of my children, I felt a sharp pain in my left hip, which led me to consult with my general practitioner, Dr Brian Foo. He referred me for an MRI, which was conducted at the St Vincent’s Imaging Clinic on 14 December by Ms Emily Rieber. On 16 December 2022, on receiving the results of my MRI, Dr Foo referred me to orthopaedic surgeon, Dr Timothy Small at the St Vincents Clinic. On 22 December 2022 I attended the St Vincents Clinic and had a consult with Dr Small where he diagnosed me with ‘grade 4 chondral wear involving the left hip joint, moderate effusion with reactive synovitis and a degenerative anterior labral tear’.
Dr Small referred me to Dr Lim from Workers Doctors, who was more familiar with navigating the intricacies of the WorkCover scheme. On 28th December 2022 I received a cortisone injection in my left hip to alleviate the localised pain I was experiencing, which was administered by Dr Garry Schaffer.On 24th January 2023 I saw Dr Lim at Workers Doctors who attributed my injury to the daily wearing of the police issued appointment belt during my work as a police officer, which included many years of patrolling.
On or around 1st March 2023, I lodged an incident form, informing the NSW Police Force of my hip injury following Dr Lim’s opinion on its causation…”
Worker’s injury claim form
Relevant to his left hip injury Mr Brazil completed a report of injury form dated 1 March 2023. Mr Brazil described the circumstances of injury “(L) hip injury due to carrying an appointment belt at work on a daily basis, which included years of patrolling.”
Email correspondence
In an email dated 24 June 2010 Mr Bazil wrote to NSWPF advising that he had requested a load bearing vest (LBV) or a gel belt because he had had “a lower back issue in the past etc”. In an email dated 23 July 2010 Mr Brazil was advised that his gel belt was on back order with the writer’s comment, “sorry they never told me they had none in stock in your size. Will let you know when it finally arrives”. In an email dated 30 July 2010 Mr Brazil relevantly wrote again to NSWPF with comment that he was “guessing” that his “gel belt etc. are still on back order”.
While not explained in the documents before me, I understand the “gel belt” requested by
Mr Brazil to be a belt that is somewhat lighter than the traditional duty belt issued to members of NSWPF.
Treating medical evidence
Dr Foo
Mr Brazil has come under the long term general care of Dr Foo. Dr Foo’s clinical records demonstrate Mr Brazil consulted with him on 2 December 2022 with complaint of left hip pain for four months. Dr Foo noted “no injury. has seen phyiso but no better. Pain on walking but can keep going. Got referral for MRI.” Dr Foo noted on 14 December 2022 that Mr Brazil had undertaken the MRI with the report pending.
Dr Foo noted on 16 December 2022 that the MRI demonstrated a labral tear and worn cartilage, and under cover of letter dated the same day, Dr Foo referred Mr Brazil to Dr Small for orthopaedic review. Dr Foo said of Mr Brazil “he has had left hip pain for a while. MRI shows worn cartilage and anterior labral tear”.
On 28 December 2022, Dr Foo noted of Mr Brazil “said will need L hip surgery but given injection today to buy some time.”
Dr Small
Mr Bazil came under the specialist orthopaedic care of Dr Small. In the information sheet
Mr Brazil completed for Dr Small on 22 December 2022, in response to a request for workers compensation details, Mr Brazil wrote “[M]aybe?” and noted EML as the relevant workers compensation insurer.Dr Small provided a report dated 22 December 2022 in which he confirmed Mr Brazil had consulted with him that day. Dr Small described Mr Brazil presenting with “a six week history of pain localised to the deep left buttock region.” Dr Small reported Mr Brazil did not recall any specific injury or precipitating cause. Following clinical examination and review of the MRI scan, Dr Small provided opinion “Douglas’ left hip pain is secondary to osteoarthritis. While Dr Small planned to review Mr Brazil in May, Dr Small reported on 20 January 2023 that the recent left hip injection that Mr Brazil had undertaken on 20 December 2022 “confirms that Douglas’ left hip pain is secondary to his left hip osteoarthritis.”
In his report dated 17 July 2023 Dr Small confirmed Mr Brazil had attended a telehealth consultation with him that day. Dr Small said of Mr Brazil:
“He continues to suffer from ongoing left hip pain on a background of known left hip degenerative change.”
Dr Small planned to review Mr Brazil again in September.
Dr Lim
Mr Brazil came under the general medical care of Dr Lim’s medical practice in January 2023, apparently following referral from Dr Small. It is evident from Dr Lim’s clinical records that Mr Brazil’s claim for workers compensation resulting from his left hip injury was initially accepted (with the left hip injection that he came to on 22 December 2022 having been approved treatment) but declined in May 2023.
Dr Lim provided a report dated 14 September 2023. Dr Lim reported Mr Brazil initially presented on 24 January 2023 with complaint of left hip pain. Dr Lim noted Mr Brazil’s last day of work with NSWPF was 6 September 2018. Dr Lim provided diagnosis which included “L) hip grade four cartilage wear, joint effusion with synovitis, anterior labral tear (MRI 14/12/22)”. Dr Lim recorded the following history of injury:
“(L) hip injury due to carrying an appointment belt at work on a daily basis, which included years of patrolling … his job role required him to wear an appointment belt (1kg+). He began experiencing hip pain and stopped working in August 2018 as he was no longer able to cope. He had three years off work before he returned back to working in IT…”
Dr Lim concluded:
“He has sustained a (L) hip injury due to carrying an appointment belt at work on a daily basis. Work was the main contributing factor for the aggravation, acceleration, exacerbation, or deterioration of his hip arthritis from the nature and conditions of his work over 13 years, that being walking the beat carrying his appointment belt.”
Dr Lim also said:
“I disagree with the opinion of the insurer’s Dr Robinson who states that it is constitutional (i.e. no apparent cause) and then states that it was exacerbated multiple times by his altercations.
Work was the main contributing factor for the aggravation, acceleration, exacerbation or deterioration of his (L) hip arthritis from the nature and conditions of his work over 13 years, that being walking the beat carrying his appointment belt.”
Independent medical evidence
Dr Robinson
Mr Brazil was assessed by Dr Robinson on 14 April 2023 in his capacity as an independent medical examiner. Dr Robinson is an orthopaedic surgeon. Dr Robinson provided a report dated the same day as his assessment. Dr Robinson recorded a history of injury:
“There has been no definitive injury to his left hip which is the subject of his consultations. He has over the years, within the police force had numerous scuffles and wrestles with offenders and also been involved in chasing of such in difficult circumstances. He has never had a direct trauma to the left hip. He developed pain approximately two years ago when he was crouching down playing with one of his children and he developed acute pain which prevented him from moving for short periods.”
Dr Robinson reported Mr Brazil had thought his pain would settle with physiotherapy treatment, but due to persistence he sought general medical treatment, and following diagnostic investigation Mr Brazil was referred for specialist orthopaedic review.
Following clinical examination and review of the diagnostic imaging report, Dr Robinson provided an opinion, noting that he had not reviewed the actual X-rays and MRI undertaken and merely relied on the report referred:
“This gentleman has symptoms and signs related to an arthritic condition diagnosed on an MRI as above. He dates this from several years ago without any precipitating injury. It is unlikely that an appointments belt would cause arthritic change in a hip particular the magnitude as described. It is more common for this arthritic change to be constitutional in nature in the absence of any precipitating injury. The diagnosis is arthritis of the left hip. The causation was almost certainly constitutional."
However, in response to specific questioning Dr Robinson relevantly confirmed:
“Causation is a constitutional problem and employment with the NSW Police was not the substantial contributing factor to the onset of the moderate to severe arthritis as mentioned…
The incidence which occurred in the course of his work with the police would have exacerbated the problems which were developing at that stage. He is now suffering with the normal symptoms associated with arthritis and the natural history of such.”
Also, in response to the specific question “is there evidence of a pre-existing condition? If so, has this condition been aggravated/exacerbated by Douglas’ employment with NSW Police?”
Dr Robertson said:“No apart from the constitutional development of the arthritic change. This would have been exacerbated by employment with the Police and the various altercations he was involved with but also the arthritis would have occurred in any event.”
Mr Brazil was re-assessed by Dr Robinson on 12 April 2024 and provided a report dated
18 April 2024. It is apparent that on this occasion Dr Robinson had available to him reports prepared by Dr Lim and also a report prepared by Dr Giblin (referred below).Dr Robinson confirmed that subsequent to his earlier assessment of Mr Brazil, Mr Brazil had had no further treatment for his left hip pain. Dr Robinson took the opportunity to discuss the onset of Mr Brazil’s left hip pain “and the exact chronology of when it first occurred”.
Dr Robinson relevantly reported:“he states it did occur when he was bending down in 2022 whilst playing with his child at home. He states it was a sharp pain, and he was unable to move for a certain time and required an injection into the area to relieve the symptoms. He had left the Police force at this time, having not worked since March 2022 when he was made redundant.”
Mr Brazil ceased working with NSWPF in September 2018, and Dr Robinson’s reference to Mr Brazil’s redundancy in March 2022 is reference to Mr Brazil ceasing work in subsequent employment with a software company.
Dr Robertson reported Mr Brazil denied any history of injury or problems with his left hip prior to the onset of pain described to have occurred in 2022. Dr Robinson reported Mr Brazil believed the pain was due to the belt he was wearing in the course of his employment with NSWPF. Dr Robinson reported Mr Brazil was currently employed in employment “where he undertakes work from home, and it mainly involves him sitting although he is able to stand if he requires to.”
Following clinical examination on this occasion, Dr Robinson said Mr Brazil’s condition “has not deteriorated markedly clinically” and provided opinion:
“This gentleman has complaints of pain in his left hip. There has been no specific incident to cause excessive wear which is present within his work-related activities. I believe that the problem he has is constitutional in nature in the absence of such. He has no such problems in the right hip and if symptoms were related to work, one would expect to see at least some arthritic change in the opposite hip.”
Dr Robinson reported diagnosis as “he has symptoms related to arthritic change within his left hip”. However, in response to the specific question “[D]o you consider that employment was not a substantial contributing factor to the onset of and/or the aggravation, acceleration, exacerbation or deterioration of the arthritis in the left hip” Dr Robinson said, “No, when the arthritis did supervene, such activities would exacerbate the symptoms but not cause them”.
In response to specific questioning “if you accept that the claimant suffered a work-related injury, please comment on whether the claimant continues to suffer the effects of the injury or whether same has resolved”, Dr Robinson said: “No related work injury that I could determine was present.”
While Dr Robinson provided assessment of 2% whole person impairment (WPI) resulting from the injury Mr Brazil sustained to his left lower extremity (left hip), following request for clarification, in a supplementary report dated 11 June 2024, Dr Robinson said Mr Brazil’s permanent impairment “… I believe is related to a pre-existing condition but not to an injury. The condition is a natural history of a constitutional problem, and this would be the cause of the impairment”.
Dr Giblin
Mr Brazil was assessed by Dr Giblin on 16 January 2024 in his capacity as an independent medical examiner. Dr Giblin is an orthopaedic surgeon. Dr Giblin provided a report dated the following day. Dr Robinson relevantly recorded a history of injury sustained by Mr Brazil to his left hip:
“He was attested as a NSW Police Officer on 26 August 2005. Most of his working life was in General Duties in the City and Penrith.
Part of his Penrith duties were prolonged periods of foot patrols where for twelve hours he would have to walk around the shopping centres. He noticed that he started to develop pain on the left side of his low back radiating towards his left pelvic area. He had a gel belt in 2010 but still had the pain in the back but not as bad in 2015 he went to wearing a vest, but he still had to always have his appointments on his left hip. In 2018 he was the custody manager still wearing appointments at the Penrith Police Station. He resigned his job 6 September 2018… He was at home in November 2022 and bent over to one of his children when he experienced acute disabling left hip pain. This was new pain and very disabling. He has had no new injuries. Prior to the police employment, there was no previous history of these symptoms or injuries.”
Following clinical examination and review of the MRI scan report, Dr Giblin provided opinion:
“Based upon his history and examination, provisional diagnosis of an emergent soft tissue injury to the left hip, reasonably causally related to the nature and conditions of his work environment as being the main contributing factor. These conditions relate to prolonged periods of standing, walking, patrolling together with intermittent impact activities involving in chasing, scuffles and the long term effects of chronic weight bearing of appointments.”
Dr Giblin provided assessment of 12% WPI resulting from the injury Mr Brazil has sustained to his left lower extremity (left hip) and in noting “the issue of a constitutional cause has been advanced as a reason for the present left hip injury”, in a supplementary report dated
17 January 2024, Dr Giblin provided opinion:“It would be my view, based upon the nature and conditions of his work environment that the hip was subject to repetitive micro trauma which were additive in nature but minor in extent on each occasion. However, over a long period of time, there would have been an increased vulnerability superimposed upon a potential underlying constitutional factor, but the extent of the constitutional factor is minimal given that there is no family history of hip pathology nor any pre-injury history of hip symptoms or abnormalities”
Submissions
Mr Gaitanis and Mr Tanner made oral submissions, which I have carefully considered. As a recording of counsel’s submissions is available to the parties on request, I have not reproduced them here.
Determination
Has Mr Brazil sustained injury to his left lower extremity (left hip), being the aggravation of a disease injury arising out of or in the course of his employment with NSWPF, with his employment being a substantial contributing factor to injury?
NSWPF disputes Mr Brazil has sustained injury to his left lower extremity (left hip), being the aggravation of a disease injury arising out of or in the course of his employment with NSWPF, with his employment being a substantial contributing factor to injury.
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment, relevantly including injury in the nature of a disease injury where the worker’s employment is a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease injury.
Where an alleged injury consists of an aggravation, acceleration, exacerbation or deterioration of an injury in the nature of a disease injury, as in Mr Brazil’s case, I find Federal Broom Co Pty Ltd v Semlitch[1] particularly instructive in that, Kitto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism.”
[1] [1964] HCA 34.
Semlitch has been in applied in a number of subsequent matters (see Cant v Catholic Schools Office[2] and Kelly v Western Institute NSW TAFE Commission).[3]
[2] [2000] NSWCC 37.
[3] [2010] NSWWCCPD 71.
In the circumstances of Mr Brazil’s matter, s 4 of the 1987 Act must be read together with s 9A of the 1987 Act, which essentially provides no compensation is payable under the 1987 Act in respect of injury if the employment was not a substantial contributing factor to injury. The law in relation to “substantial contributing factor” was considered by the court in Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited[4] and Da Ros v Qantas Airways Ltd, [5] and it is accepted that for employment to be “a substantial contributing factor” to the injury for the purposes of s 9A the causal connection must be “real and of substance”.
[4] [2009] NSWCA 324; DDCR 75.
[5] [2010] NSWCA 89.
Relevant to the issue of causation, in Kooragang Cement Pty Ltd v Bates[6] the court said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts … What is required is a commonsense evaluation of the causal chain.”
[6] (1994) 35 NSWL 452; 10 NSWCCR 796 at [463].
Mr Brazil has the onus of proving he has sustained injury in the nature to his left lower extremity (left hip), being the aggravation of a disease injury arising out of or in the course of his employment with NSWPF, with his employment being a substantial contributing factor to injury, and I am required to carefully consider the factual and medical evidence admitted in these proceedings. I am mindful that in Nguyen v Cosmopolitan Homes (NSW) Limited[7] the court stated:
“A number of cases, of high authority, insist that 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 actual existence of that fact.”
[7] [2008] NSWCA 246.
I consider it is also helpful to note that in Malec v JC Hutton Pty Limited[8] the court stated:
“A common law court determined on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain, if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.”
[8] (1990) 169 CLR 638.
In his statement dated 31 October 2024, Mr Brazil said he worked with NSWPF between 2005 and 2018. Mr Brazil said that while working with NSWPF he was required to wear a police force issued belt which held his appointments, being a firearm, spare ammunition, handcuffs, baton, torch, multitool, personal protection kit and police radio. Mr Brazil said he wore his appointment belt “while driving, walking, running, arresting officers, wrestling, and sitting for long periods, primarily during 12-hour shifts”. Mr Brazil estimated his police issued belt weighed approximately 3kg, and Dr Lim provided a history of Mr Brazil’s belt weighing “1kg+”.
Mr Brazil said that as early as 2010 he began to experience “discomfort and pain”, which prompted him to request a gel belt, which he was issued with “a few weeks later”. Email correspondence between Mr Brazil and NSWPF in mid-2010 demonstrates Mr Brazil requested he be issued with a gel belt and that there was delay in the issuing of the requested gel belt. Dr Giblin reported Mr Brazil continued to experience pain despite wearing a gel belt and consequently Mr Brazil began wearing a LBV. However, Mr Brazil was still required to wear his appointments on his left hip.
Mr Brazil explained that in December 2022, some four years after he ceased working with NSWPF in 2018, “while kneeling to reach out to one of my children” he felt a sharp pain in his left hip, after which he consulted Dr Foo, with referral for MRI and subsequent referral for orthopaedic review with Dr Small and referral to Dr Lim “who was more familiar with navigating the intricacies of the WorkCover scheme”.
Mr Brazil said that with Dr Lim providing opinion Mr Brazil’s left hip injury resulted from “the daily wearing of the police issued appointment belt during my work as a police officer, which included many years of patrolling,” Mr Brazil lodged an incident form with NSWPF and made a claim for workers compensation.
Dr Foo’s clinical records confirm Mr Brazil consulted with him on 2 December 2022 with complaint of left hip pain. Dr Foo noted “no injury.” Dr Foo noted Mr Brazil received physiotherapy treatment, with no relief. Dr Foo referred Mr Brazil for MRI, following which he referred him for orthopedic review with Dr Small. When Mr Brazil consulted with
Dr Small on 22 December 2022, being some four weeks prior to his consultation with Dr Lim, Mr Brazil himself had considered the possibility that his left hip injury may be injury resulting from his employment with NSWPF.In his initial report Dr Small reported Mr Brazil presented with complaint of a “six-week history of pain localized to the deep left buttock injury,” without recollection of any specific injury of precipitating cause. Dr Small provided opinion Mr Brazil’s left hip pain was secondary to osteoarthritis.
When Mr Brazil consulted with Dr Lim on 24 January 2023 with complaint of left hip pain, at which time Dr Lim had the MRI scan dated 14 December 2022 available to him, Dr Lim concluded:
“He has sustained a L) hip injury due to carrying an appointment belt at work on a daily basis. Work was the main contributing factor for the aggravation, acceleration, exacerbation, or deterioration of his hip arthritis from the nature and conditions of his work over 13 years, that being walking the beat carrying his appointment belt.”
Dr Robinson orthopaedically assessed Mr Brazil on 14 April 2023 and I think it is fair to say that while Dr Robinson provided opinion the osteoarthritic condition Mr Brazil suffered in his left hip had not been caused by his employment with NSWPF, the osteoarthritic condition
Mr Brazil suffered in his left hip had been “exacerbated” by his employment with NSWPF. When Dr Robinson re-assessed Mr Brazil on 12 April 2024, Dr Robinson reported Mr Brazil’s condition had “not deteriorated markedly clinically” since previous assessment. Dr Robinson said he took the opportunity at that time to discuss the onset of Mr Brazil’s left hip pain, which he said Mr Brazil reported occurred in 2022. Dr Robinson said Mr Brazil believed his left hip pain resulted from the belt he wore while working with NSWPF, and in response to the specific negative question “Do you consider that employment was not a substantial contributing factor to the onset of and/or aggravation, acceleration, exacerbation or deterioration of the arthritis in the left hip” Dr Robinson responded “No, when the arthritis did supervene, such activities would exacerbate the symptoms but not cause them”, which to my mind means that while Mr Brazil’s employment activities made Mr Brazil’s existing arthritis worse, his employment duties were not the cause of his arthritis. In other words, Dr Robinson was of the view Mr Brazil’s employment activities triggered an “increase or intensifying of symptoms” of an already present arthritic condition, as required by Semlitch. I am comfortable with my understanding of Dr Robinson’s response to this specific question, particularly so against the backdrop of Dr Robinson’s response to the specific question “if you accept that the claimant suffered a work-related injury, please comment on whether the claimant continues to suffer the effects of the injury or whether the same has resolved” which was not a denial of work-related injury by Dr Robinson but rather a denial of work-related injury being “present”, which to my mind means that Dr Robinson was of the view the work-related aggravation of Mr Brazil’s pre-existing arthritis had now resolved.Following review of the evidence as a whole and careful consideration of counsel’s submissions, I accept Mr Brazil has discharged the onus of proof required of him and I accept Mr Brazil sustained injury to his left lower extremity (left hip), being an aggravation of a disease injury, arising out of or in the course of his employment with NSWPF, with his employment being a substantial contributing factor to injury, with deemed date of injury of
6 September 2018.In circumstances where there is no new non-work factor identified which is a competing causal factor of Mr Brazil’s injury to his left lower extremity (left hip), other than Mr Brazil reaching out to his child in late 2022, being reported action considered by both Dr Robinson and Dr Giblin in their capacity as independent medical examiners, for the reasons outlined above I am satisfied on the balance of probabilities that Mr Brazil sustained injury to his left lower extremity (left hip) being an aggravation of a disease injury, arising out of or in the course of his employment with NSWPF, with his employment being a substantial contributing factor to injury. As required by Nguyen I feel an actual persuasion of the existence of that fact.
What is the percentage permanent impairment sustained by Mr Brazil resulting from the injury and entitlement to compensation payable under s 66 of the 1987 Act?
As I have determined Mr Brazil sustained injury to his left lower extremity (left hip), being an aggravation of a disease injury, arising out of or in the course of his employment with NSWPF, with his employment being a substantial contributing factor to injury, it is appropriate for Mr Brazil’s claim for permanent impairment compensation to be remitted to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment.
What is Mr Brazil’s entitlement to pain and suffering compensation payable s 67 of the 1987 Act?
By consent, Mr Brazil’s claim for pain and suffering compensation is stood over until such time as the Medical Assessment Certificate has issued and the appeal period relevant to the Medical Assessment Certificate has passed.
Costs
As I accept Mr Brazil sustained injury to his left lower extremity (left hip) being an aggravation of a disease injury arising out of or in the course of his employment with NSWPF with his employment being a substantial contributing factor to injury, it follows Mr Brazil has entitlement to his costs.
I am of the view that this matter involved a degree of complexity. NSWPF disputed Mr Brazil sustained injury as alleged, and despite the parties engaging in quite lengthy resolution negotiations, Mr Brazil’s claim remained unresolved, and the matter proceeded to an arbitration hearing. I recommend an uplift of 10% relevant to the parties’ costs.
SUMMARY
Mr Brazil sustained injury to his left lower extremity (left hip), being an aggravation of a disease injury, arising out of or in the course of his employment with NSWPF, with his employment being a substantial contributing factor to injury, and with deemed date of injury of 6 September 2018.
Mr Brazil’s claim for permanent impairment compensation payable under s 66 of the 1987 Act is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment as follows:
Date of injury: 6 September 2018 (deemed).
Body systems/parts: left lower extremity (left hip).
Method of assessment: whole person impairment.
The documents to be reviewed by the Medical Assessor are:
(a) this Certificate of Determination and Statement of Reasons;
(b) Application to Resolve a Dispute and attached documents;
(c) Reply and attached documents, and
(d) Application to Lodge Additional Documents dated 3 February 2025 and attached documents.
Mr Brazil’s claim for pain and suffering compensation payable pursuant to s 67 of the 1987 Act is stood over until such time as the Medical Assessment Certificate has issued and the appeal period relevant to the Medical Assessment Certificate has passed.
NSWPF is to pay Mr Brazil’s costs as agreed or assessed. I consider the matter to be complex and a 10% uplift on costs for both parties is recommended.
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