Brown v State of New South Wales (Fire & Rescue NSW)
[2022] NSWPIC 663
•30 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Brown v State of New South Wales (Fire & Rescue NSW) [2022] NSWPIC 663 |
| APPLICANT: | Donald Brown |
| RESPONDENT: | State of New South Wales (Fire & Rescue NSW) |
| Member: | Michael Wright |
| DATE OF DECISION: | 30 November 2022 |
CATCHWORDS: | WORKERS COMPENSATION - Claim for lump sum compensation; causation disputed in respect of disease injury of the right hand arising from the nature and conditions of employment; Mason v Demasi and Kooragang Cement v Bates considered; Held – applicant sustained disease injury and aggravation of disease injury; matter referred to Medical Assessor for assessment of permanent impairment. |
| determinations made: | 1. The applicant sustained a disease injury within the meaning of s4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act), being osteoarthritic changes of the right wrist, as a result of the nature and conditions of the applicant’s employment with the respondent, involving the coupling of hoses on a regular and frequent basis, from 1988 until 18 December 2020. Pursuant to s 15 of the 1987 Act, the deemed date of injury is 18 December 2020. 2. The applicant suffered aggravation or exacerbation of a disease injury within the meaning of s 4(b)(ii) of the 1987 Act, being aggravation or exacerbation of osteoarthritic changes of the right wrist, as a result of injury on 22 May 2018. Pursuant to s 16 of the 1987 Act, the deemed date of injury is 22 May 2018. 3. In addition to the matters referred to a Medical Assessor at order 8 below, matter referred to the President for a referral to the same or other Medical Assessor for assessment of the degree of permanent impairment of the applicant’s right upper extremity (wrist) as a result of a. disease injury deemed to have happened on 18 December 2020 (nature and conditions of employment from 1988 to 18 December 2020), and b. aggravation and exacerbation of disease injury deemed to have happened on 22 May 2018. 4. Brief to the Medical Assessor to include the Application and attached documents, Reply and attached documents and Application to Admit Late Documents dated 17 August 2022, and attached documents. 5. Respondent to pay the applicant’s costs of these proceedings. An uplift of 30% is certified for complexity. By and with the consent of the parties, the Commission determines: 6. Claim for weekly compensation is discontinued. 7. Respondent to pay the applicant compensation pursuant to s 60 of the 1987 Act up to a maximum of $3,000 upon production of receipts, invoices, and Medicare Notices of Charge, and award for the Respondent thereafter and otherwise. 8. The applicant’s lumbar spine injuries are remitted to the President for referral to a Medical Assessor for assessment of whole person impairment as follows: a. Dates of injury i. 17.07.96 (pursuant to s 4(a) of the 1987 Act); ii. 21.02.97 (pursuant to s 4(a) of the 1987 Act); iii. 15.04.99 (pursuant to s 4(a) of the 1987 Act); iv. 19.06.02 (pursuant to s 4(a) of the 1987 Act); v. 24.04.05 (pursuant to s 4(a) of the 1987 Act), and vi. 18.12.20 (deemed) (pursuant to s 4(b) of the 1987 Act). b. The Medical Assessor is asked to assess the applicant’s whole person impairment in respect of his lumbar spine injury separately as a result of each date of injury. 9. The applicant’s claim for compensation pursuant to s 67 of the 1987 Act is to be determined following the assessment of his whole person impairment. 10. The issue of aggregation is to be determined following assessment of the applicant’s whole person impairment. Notation 1. Respondent agrees to pay, on a voluntary basis, the applicant weekly compensation to an agreed total of $54,957.60, as follows: (a) 7.07.21 – 31.03.21 (8 weeks) at the rate of $527.40 per week; (b) 1.04.21 – 30.09.21 (26 weeks) at the rate of $530.30 per week; (c) 1.10.21 – 31.03.22 (26 weeks) at the rate of $536.90 per week; (d) 1.04.22 – 30.09.22 (26 weeks) at the rate of $545.20 per week, and (e) 1.10.22 – 23.01.23 (16 weeks) at the rate of $550.80 per week. 2. Upon receipt of the s 60 expenses identified at order 2 above and weekly compensation identified at notation 1 above, and subject to notation 1, the applicant admits and agrees that he has received all of his entitlements to such compensation to date. |
STATEMENT OF REASONS
BACKGROUND
In an Application to Resolve a Dispute (ARD), Donald Brown (the applicant) claimed weekly benefits compensation, medical expenses, lump sum compensation and compensation for pain and suffering in respect of injuries to the lumbar spine and to the right wrist as a result of injuries sustained in the course of his employment as a firefighter with the State of New South Wales (Fire & Rescue NSW) (the respondent).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)
At the conciliation/arbitration hearing of this matter on 19 October 2022, the applicant was represented by Mr Hickey of counsel, instructed by Ms Ross, solicitor, and the respondent by Mr Adhikary of counsel, instructed by Ms Lamproglou, solicitor.
In the conciliation of this matter, the parties were able to achieve a partial resolution of this dispute by way of proposed agreed consent orders. The only matter that remained in dispute was the applicant’s claim for permanent impairment compensation in respect of his right wrist condition. The respondent disputed causation as to an alleged disease injury of the applicant’s right wrist as a result of the nature and conditions of his employment, and it also disputed that there was continuity of symptoms following frank injuries to the applicant’s right wrist said to have happened on 7 October 2016 and 22 May 2018.
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:
i) ARD and attached documents,
ii) Reply and attached documents, and
iii) Application to Admit Late Documents dated 17 August 2022 and attached documents.
Also before the Commission was another Application to Admit Late Documents dated 6 September 2022 and a wage schedule. The former document contained financial records relevant to a claim for weekly compensation. As these documents were not relevant to the disputed claim before me, and were not relied upon in submissions, they have not been considered in making this determination.
Oral evidence
There was no application for cross examination or to give oral evidence.
Documents
Applicant’s statement
The applicant provided statements dated 9 December 2021 and 26 July 2022.
In his statement dated 9 December 2021, the applicant stated relevantly in respect of his wrist injury that as a requirement of his employment as a firefighter he had to put hose couplings together on a regular and repetitive basis for many years and for “thousands of times”.
He stated that on 7 October 2016, as he was putting a hose couplings together, he experienced “a lot of wrist pain”. He lodged a notice of injury form with his employer but did not take time off work.
The applicant stated that on 22 May 2018 he was dragging a wheelie bin behind him and as he went around a corner it tipped over. He stated that he held onto it with his right hand to try and steady or stop the bin from tipping over and as he did so he felt “intense pain in his right wrist”. He stated that he was off work on 23 May 2018 to 25 June 2018 and he underwent
X-ray and ultrasound of his right hand on 1 June 2018. He stated that the pain in his right wrist settled somewhat but he continued to experience periodic flareups minor things such as opening jar he also had decreased grip strength.The applicant stated that he commenced work with the respondent as a firefighter in 1988 and he ceased work with the respondent is a firefighter on 18 December 2020.
In his statement dated 26 July 2022, in respect of his wrist injury the applicant said that he easily drops things and he also experiences flareups from minor tasks such as squeezing the water out of the dishcloth or pouring a glass of wine and he avoids shaking hands with people as he does not wish to set injury off.
The applicant also described the hoses in his statement of 26 July 2022. He stated that putting hose couplings together with a regular part of his employment duties and he thought that on average it would work the hose couplings together on about 10 occasions in each
24-hour shift, and this would fluctuate depending upon situations such as training or attendance at fires. He stated that the hoses were about the size of a calf muscle and in connecting the hoses he would hold one in his hand while squeezing tightly and then bring the other hose and pushing into the other coupling and, while doing this, you then twist and tighten the couplings to lock them into place. He said that some of the couplings were stubborn and he would need to use extra force to connect them and this was quite hard work which caused a lot of strain on his hands. He said that keen hoses would need to be connected before any water could be fed through the hose.The applicant stated that he first experienced pain in his right wrist from an injury in October 2016, following which he lodged a notice of injury form. He stated that his hand never really resolved after that and then he had the incident in May 2018 bolted the wheelie bin, for which a notice of injury claim form. He said that after that he would sometimes pick up a knife to put Vegemite on his toast and he would experience a sharp pain in his wrist.
Investigations
A report by Dr Truong dated 1 June 2018 of a right wrist X-ray and ultrasound noted a clinical history of a “twisting work injury”. Findings noted included “mild osteoarthritis seen in the radiocarpal joint… trapezoid joint, 1st CMCJ and 1st MCPJ.”
Dr Williams and other clinical notes
The applicant’s general practitioner (GP) relevantly issued Certificates of Capacity.
In a certificate dated 26 June 2018, Dr Williams recorded a date of injury of 22 May 2018 while “lifting bin and twisting wrist” with a diagnosis of “twisting hand and felt pain in right wrist”. The applicant was certified fit for preinjury duties and Dr Williams commented “return to work now… Illness - resolved”.
In a certificate dated 21 January 2021, Dr Williams diagnosed work-related injury of right wrist soft tissue injury, lower lumbar pain and a stated date of injury of 1 June 2018. Dr Williams stated that “previous injuries are worsening”. In a certificate dated 23 February 2021, Dr Williams diagnosed a right wrist soft tissue injury stated dated injury being 7 October 2016 and 22 May 2018 and he related the injury to work as “chronic injury of right wrist” and a “previous injury that has progressed”. In the same certificate Dr Williams also was of the opinion that the applicant had no current capacity for any work with a description of “right wrist disabled”.
Clinical records of the Seaforth Medical Centre, Warringah Medical & Dental Centre, and the Myora Medical Centre were also in evidence. Other than entries in May and June 2018 at the Myora Medical Centre, there is no reference to the duties of the applicant’s employment and right wrist symptoms prior to 2021. The entry of 29 May 2018 by Dr Williams recorded a right-hand twisting injury moving a bin at work with referral for an X-ray and an ultrasound of the right wrist. An entry of 25 June 2018 by Dr Williams noted that the applicant was fit for return to work from today and “now complete resolution”.
Dr Carr
Dr Carr, rheumatologist, provided treating reports dated 24 March 2020 and 12 October 2022 Dr Williams. Dr Carr noted that he had been asked to see the applicant with his recent positive blood test for systemic sclerosis, although he did not have clinical signs in that regard. Dr Carr also noted that the applicant’s other problem was that he was 64 years of age and the applicant felt that he was coming to the end of his time as a firefighter with the respondent.
Dr Carr noted that the applicant’s “major musculoskeletal injuries relate to low back pain”. Dr Carr also noted that the applicant’s other problem was right shoulder pain which was a “nuisance to him”. Dr Carr did not take a history of injury or pain to the applicant’s right wrist.
Dr Endrey-Walder
Dr Endrey-Walder, general and trauma surgeon, provided a medico-legal report to the applicant’s solicitors dated 16 December 2021, as well as a supplementary report of the same date in respect of the applicant’s right wrist, and a further supplementary report dated 9 February 2022 in respect of permanent impairment of the back and left leg.
In his main medico-legal report dated 16 December 2021, in relation to the applicant’s right wrist, Dr Endrey-Walder recorded a history of daily work involving recurrent and repetitive physical activity of coupling hoses together. He also recorded history that on 7 October 2016 while coupling hoses the applicant experienced acute right wrist pain, for which no time off work was taken and the applicant continued working and suffered intermittent flareups of the right wrist pain with various more strenuous physical activities. He also recorded that on 22 May 2018 while dragging a wheelie bin which started to tip over the applicant struggled to keep it balanced and suffered intense pain at the right wrist. Dr Endrey-Walder noted that on 29 May 2018 the applicant was seen by Dr Williams on account of this injury there was an ultrasound of the right wrist “showing no obvious pathology to account for the pain”. Dr Endrey-Walder noted that the applicant was off work for one month following this injury and on 25 June 2018 he was certified fit to return to full duties by Dr Williams after “complete resolution”. Dr Endrey-Walder noted that the applicant continued to experience flareups of pain at the wrist. He noted that Dr Williams on 1 October 2021 recommended a CT scan of the right wrist due to the repetitive nature of the applicant’s right wrist condition but as the right wrist pain settled, as it usually did, the applicant had not yet arranged for that test.
Dr Endrey-Walder noted that the applicant reported that he did not have constant pain in his right wrist “but I know something is there” with respect to the radial and ulnar side of the wrist, worse at the ulno-carpal side. He noted that the applicant said that “anything can aggravate it, opening a bottle top or a jar, squeezing things, twisting. I get acute pain, may last 3 – 4 hours to a couple of weeks with varying intensity”.
Dr Endrey-Walder stated that
“One appreciates that some aspects of his daily work, most especially coupling hoses, would impact on his upper limbs, most especially the right one, given that he is right-hand dominant.
In October 2016 he suffered an acute aggravation to the wrist, remaining with ongoing symptoms ever since, a particular aggravation and exacerbation of the wrist condition when trying to balance a wheelie bin in April 2018.
Once again, his symptoms are intermittent, at least as far as the intensity of the pain is concerned, and the suspicion is that he may have some early arthritic changes at the wrist, but I have found no clinical evidence for this, and I have seen no radiology.
It is reported that an Ultrasound of the right wrist in June 2018 highlighted no obvious pathology, but there are investigations, most especially an MRI scan and/or a Bone Scan, that are significantly more reliable in identifying pathology at a joint than an Ultrasound.
Given my inability to establish a diagnosis makes it difficult for me to suggest treatment for the condition.
It does appear, for the purposes of assessment of impairment, that the chronicity and the predictability of symptomatology with physical activity would suggest that assessment on the basis of restricted grip strength is reasonable.”
In his short supplementary report of 16 December 2021, Dr Endrey-Walder dealt with the
X-ray and ultrasound of the applicant’s right wrist dated 1 June 2018. He noted that the report highlighted that there was no acute fracture or dislocation at the wrist but there were mild osteoarthritic changes seen at the radio-carpal joint, scaphotrapezoid-trapezium joint, at the 1st CMCJ and 1st MCPJ. He noted that an ultrasound of the right wrist showed no evidence of abnormality.Dr Endrey-Walder was of the opinion that the applicant’s chronic but intermittent symptoms at the right wrist were due to early osteoarthritic changes “reasonably related to the nature and conditions of his daily work as a firefighter, especially the handling of the coupling of heavy large water hoses”.
Dr Wallace
Dr Wallace, orthopaedic surgeon, provided medico-legal reports to the respondent dated 15 March 2021 (x2), one being a report in relation to the right wrist and the other being a report in respect of the lumbar spine, 31 March 2021 being a short supplementary report in relation to the lumbar spine, and 23 May 2022, being in respect of both the lumbar spine and the right wrist.
In his report dated 15 March 2021 in respect of the applicant’s right wrist, Dr Wallace recorded a history of initial injury on 7 October 2016 while tightening a coupling on a hose forcibly when the applicant “felt something give in his right wrist” but medical treatment was not required at that time. He noted that on 22 May 2018 the applicant was retrieving a wheelie bin while pulling it up the slope when it started to twist over and the applicant attempted to correct it the onset of right wrist pain. He noted review by Dr Williams, prescription of anti-inflammatory medication and X-ray and ultrasound examination of the right wrist on 1 June 2018 which showed no traumatic pathology. He noted that the applicant was able to return to his preinjury duties on 25 June 2018, “at which time his right wrist symptoms had resolved”. He noted that the applicant had undergone no further treatment for his right wrist condition. Dr Wallace further noted that the applicant had no current pain at the right wrist, although he had previously noted occasional discomfort at the right wrist, worse with heavy lifting or with certain movements and relieved by anti-inflammatory medication. Dr Wallace noted the X-ray and Ultrasound of 1 June 2018 of the right wrist.
Dr Wallace diagnosed “minor ligamentous strain right wrist – now resolved” and “aggravation of pre-existing degenerative osteoarthritis radiocarpal joint right wrist – now resolved”. He was of the opinion that the applicant had suffered a minor twisting injury at his right wrist at work on 22 May 2018 and that this injury had resolved with no current pain at the right wrist. Dr Wallace was of the opinion that the applicant had no evidence of ongoing disability at the right wrist on clinical examination at the time of review on 9 March 2021. He was of the opinion that employment with the respondent was not a substantial contributing factor to any current right wrist condition.
In his report dated 23 May 2022, Dr Wallace noted in relation to the right wrist the previous history on 7 October 2016 and 22 May 2018. He noted that since his last review in March 2021 the applicant had not undergone any further treatment for the right wrist condition. He noted no further history of injury at the right wrist since the last review.
Dr Wallace noted that in respect of present complaints, the applicant noted intermittent aching pain at the right wrist at the radial and ulnar aspects of the joint. He noted that the pain is worse with lifting heavy objects, using tools or on flexion and is relieved by rest or anti-inflammatory medication.
Dr Wallace diagnosed a minor ligamentous strain of the right wrist, now resolved, in respect of the 7 October 2016 injury, and a minor ligamentous strain of the right wrist, now resolved, and aggravation of pre-existing degenerative osteoarthritis of the radiocarpal joint of the right wrist, now resolved, in respect of the 22 May 2018 injury.
Dr Wallace was of the opinion that there was “no objective medical evidence that Mr Brown suffered any work-related injury at his right wrist as a result of the nature and conditions of his employment as a firefighter”. He was of the opinion the applicant’s current right wrist symptoms were due to pre-existing degenerative osteoarthritis at the radiocarpal joint which was constitutional in origin and unrelated to employment. In response to a question whether there were any signs of exaggeration, inconsistent responses to examination or malingering, Dr Wallace stated that the applicant “exhibited no pain behaviour at the time of review on 17 May 2022.”
Reasons
In summary, the respondent submitted that the commission would not be satisfied that the applicant is sustained any disease injury to his right wrist, nor that the effects of the frank injuries of 7 October 2016 and 22 May 2018 continue to currently affect the applicant.
The respondent submitted that from the various clinical records produced there were no GP records or medical evidence which mentioned any nature and conditions or disease type of injury. It was submitted that there was no corroboration from the medical records or other evidence as to what the applicant said in his statements relating to his duties at work and a disease type injury. It was submitted that Dr Carr did not take a history of injury to the right wrist nor did he take a history of the duties of the applicant’s employment in this regard. It was also submitted by the respondent that the applicants lay evidence as to the nature and conditions of his employment was inconsistent with the absence of any reference in the contemporaneous medical evidence to the applicant’s employment duties and right wrist symptoms, other than in respect of the incident of May 2018, as noted above for the entries of 29 May 2018 and 25 June 2018.
I do not accept these submissions. The reports of Dr Carr made it clear that the referral to him was for other matters, which he considered, and he thereafter turned to what he described as “major musculoskeletal” issues for the applicant in respect of his lumbar spine and his right shoulder. In my view, the absence of reference to right wrist symptoms and a description of the applicant’s employment duties is not conclusive that the applicant was not suffering from right wrist symptoms in respect of his employment duties in the course of his employment. The applicant’s evidence that he sustained intermittent symptoms in his right wrist with flareups related to activity is not inconsistent with an absence of a note in this regard by Dr Carr. The applicant submitted that it was not known what questions were asked by Dr Carr in respect of history nor what answers were given by the applicant in that regard. I accept the applicant’s submission and I exercise the degree of caution that is required in respect of clinical records, as observed in Mason v Demasi[1]. The same consideration applies in respect of the clinical records referred to by the respondent. Further, as was observed in Davis v Council of the City of Wagga Wagga[2] (Davis), “experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury”[3], particularly in circumstances in this case where the applicant’s evidence is that his symptoms were intermittent and flareups were activity related.
[1] [2009] NSWCA 227 at [2]
[2] [2004] NSWCA 34 .
[3] Davis at [35]
In my view, the applicant’s evidence that his right wrist symptoms were intermittent with gradual progression and flareups related to activity is not inconsistent with the various clinical records noted above. I accept the applicant’s statement in this regard.
The clinical entry of Dr Williams and related Certificate of Capacity June 2018, in which it was asserted that there was complete resolution of the right wrist injury of May 2018, should in my view be considered in the context of return to work and of the applicant’s evidence that his symptoms were intermittent and activity related. In my view, this necessarily brief clinical note entry and medical certificate entry were a clinical assessment at the time of consultation, but could not be said to be an in-depth medical opinion with reasons, nor did it purport to be so. Further, as was observed in the applicant’s submissions, Dr Williams in his 2021 Certificates of Capacity, as noted above, was of the opinion that the applicant’s right wrist condition was progressive and worsening, although couched in terms of references to the injury dates of 7 October 2016 and 22 May 2018. In my view, this is the broader context in which the medical certificate of Dr Williams of June 2016 should be viewed. I do not accept the respondent’s submissions in this regard.
Moreover, the injury date of 7 October 2016 is in my view an instance of the applicant performing the duties of coupling the hoses from 1988 until December 2020, as referred to in his evidence. The respondent did not dispute the applicant’s evidence that on 7 October 2016, as he was putting a hose coupling together, he experienced a lot of right wrist pain and he lodged a notice of injury form with the respondent. Dr Williams in his certificate of 23 February 2021 diagnosed right wrist soft tissue injury consistent with injury on 7 October 2016 and 22 May 2018, being previous injury that had progressed and which was related to the applicant’s employment as a chronic injury of the right wrist. The injury referred to by Dr Williams with a date of 7 October 2016 was the injury when he was putting a hose coupling together. The fact of the incident on 7 October 2016, as referred to in this medical certificate, was not disputed by the respondent. This history was recorded by Dr Williams on 21 January 2021, a relatively short period after the applicant ceased his employment duties with the respondent in December 2020, having regard to the fact of the applicant having undertaken the employment duties of coupling hoses from 1988 until December 2020, a fact which was also not disputed by the respondent. These matters in my view support the applicant’s evidence that he performed regular and frequent coupling of the hoses from 1988 until December 2020 and over time he noticed intermittent, progressive and worsening right wrist pain. I accept the applicant’s evidence in this regard.
In relation to the opinion of Dr Wallace, I note that he was of the view that there was no objective medical evidence that the applicant had suffered any work-related right wrist injury as a result of the nature and conditions of his employment. However, the opinion provided by Dr Wallace in this regard was in response to a question put to him that posited whether there was any right wrist injury as a result of the nature and conditions of employment. Dr Wallace did not take a history of the applicant’s duties of coupling hoses in the nature and conditions of his employment from 1988 until December 2020, other than noting in his initial report of right wrist injury on 7 October 2016 when tightening a coupling on a hose forcibly and also to note that “his work duties involved general firefighting duties”. In my view, Dr Wallace did not outline his reasoning process in this regard in the absence of a consideration of the particular activity that was alleged in the applicant’s employment duties, that is the regular and frequent coupling of hoses from 1988 until December 2020, or indeed of any employment duties other than “general firefighting duties” and the specific dates of injury that he noted.
Further, while Dr Wallace noted intermittent right wrist pain, worse with lifting heavy objects or using tools or on flexion, he did not explain how he believed that symptoms from the frank injuries had resolved with respect to continuing intermittent symptoms related to activities. For these reasons, I do not prefer the opinion of Dr Wallace that the applicant had not suffered any work-related wrist injury as a result of the nature and conditions of his employment.
Dr Wallace did provide an opinion that the pre-existing degenerative osteoarthritis in the applicant’s right wrist was constitutional in origin and was unrelated to his employment. However, this opinion would carry greater weight if Dr Wallace had considered in his reasoning process the applicant’s employment duties of coupling hoses from 1988 until December 2020. I do not place weight on the opinion of Dr Wallace in this regard.
In relation to the opinion of Dr Endrey-Walder, I have accepted the applicant’s evidence that his employment duties from 1988 until December 2020 involved coupling of hoses on a regular and frequent basis and he experienced intermittent, progressive and worsening pain in his right wrist over the years while he was performing these duties. The applicant’s evidence in this regard is in my view supported by the certificate of capacity of Dr Williams of February 2021, as noted above. The opinion of Dr Endrey-Walder was based upon an acceptance of the applicant’s evidence in this regard and the X-ray investigation of the applicant’s right wrist on 1 June 2018, from which Dr Endrey-Walder diagnosed osteoarthritic changes of the right wrist and the applicant’s right wrist symptoms were due to early osteoarthritic changes reasonably related to nature and conditions of his daily work as a firefighter, especially the handling of the coupling of heavy large water hoses. In my view this is a sound basis for the provision of his opinion, and I accept the opinion of Dr Endrey-Walder. I prefer the opinion of Dr Endrey-Walder to that of Dr Wallace.
As causation of the disease injury of the right wrist was disputed by the respondent, it is necessary to evaluate the causal connection on a common sense basis, as established by the decision of Kooragang Cement Pty Ltd v Bates[4] (Kooragang). I have accepted the applicant’s evidence that his employment duties from 1988 until December 2020 included the regular and frequent coupling of water hoses and he noticed intermittent, progressive and worsening right wrist pain over the years, with activity related flareups. I have found that the certification provided by Dr Williams in February 2021, in respect of the consultation in January 2021 shortly after the applicant ceased his employment duties with the respondent, provided support for the applicant in certifying that there was progressive and worsening right wrist pain over the years as a result of injuries on 7 October 2016 and 22 May 2018, with the former injury being an instance of the nature and conditions of the applicant’s employment, namely the coupling of the hoses. I have accepted the opinion of Dr Endrey-Walder that the osteoarthritic changes of the applicant’s right wrist, as demonstrated in the X-ray of 1 June 2018, and the applicant’s right wrist symptoms were due to early osteoarthritic changes reasonably related to the nature and conditions of the applicant’s daily work as a firefighter, especially the handling of the coupling of heavy large water hoses. I find that the causal connection between the nature and conditions of the applicant’s employment from 1988 until December 2020, especially the handling of the water hoses on a regular basis, and the osteoarthritis of the applicant’s right wrist has been established on the balance of probabilities. As I have accepted the opinion of Dr Endrey-Walder, and not the opinion of Dr Wallace, the only factor in the contraction of the disease is the applicant’s employment.
[4] (1994) 35 NSWLR 452; 10 NSWCCR 796.
As for the frank injuries of 7 October 2016 and 22 May 2018, I have accepted the applicant’s submission that the former injury date was an instance of the nature and conditions of the applicant’s employment of the respondent, that is an instance of coupling the water hoses. I do not find that the incident on 7 October 2016 was a separate frank injury and, in my view, I am supported in this finding in that the applicant did not take time off work or seek treatment at the time, although he experienced right wrist symptoms resulting from coupling the water hoses on that day.
In respect of the incident of 22 May 2018, the respondent did not dispute that an incident took place in which the applicant was pulling a wheelie bin which turned and he twisted his right wrist and felt right wrist pain. It was the applicant’s evidence, which I accept, that he took one month off work as a result of this injury and he did not fully recover from that incident. In relation to the absence of clinical and medical records in this regard, such as those of Dr Carr and the various medical centres other than the notes of Dr Williams referred to above, the same reasoning that I have applied above to this submission by the respondent applies in respect of this incident. For the reasoning applied above in respect of the disease injury, the “complete resolution” of symptoms referred to in June 2016 by Dr Williams should be considered having regard to the applicant’s own evidence, which I accept, and also the later certificate of Dr Williams of February 2021 and the history recorded by Dr Endrey-Walder. It follows that I do not accept the opinion of Dr Wallace that the applicants right wrist symptoms resolved, as I have found that they did not resolve, rather they continued on and intermittent, progressive and worsening basis, as certified by Dr Williams in 2021 and as given in the applicant’s evidence, which I have also accepted. The same reasons as provided above, I accept the opinion of Dr Endrey-Walder in this regard. It was his opinion, which I accept, that in 2018 there was a particular aggravation and exacerbation of the wrist condition when trying to balance a wheelie bin. Although Dr Endrey-Walder referred to this injury as being in April 2018, there was no dispute in this regard, and I accept the applicant’s submission that there was a fair climate for Dr Endrey-Walder to provide this opinion in respect of the injury 22 May 2018, which in any event he had accurately recorded earlier in his report. Dr Endrey-Walder separately, as noted above, on review of the X-ray of 1 June 2018, diagnosed osteoarthritic changes of the right wrist.
On the same common sense evaluation of the causal link[5], I find that the applicant sustained continuing symptoms of pain and restrictions on an intermittent basis of his right wrist, progressing and worsening over time, as a result of aggravation and exacerbation of osteoarthritic changes of his right wrist as a result of injury on 22 May 2018, based upon an acceptance of the applicants evidence of a worsening of his right wrist symptoms on a continuing basis as a result of the injury on 22 May 2018, supported by the certification of Dr Williams in February 2021, the reasonably substantial period of time off work of one month following the incident, and the opinion of Dr Endrey-Walder. As I have accepted the opinion of Dr Endrey-Walder, and not the opinion of Dr Wallace, the only factor in the aggravation and exacerbation of the disease is the applicant’s employment. As was submitted by the applicant, the increase in symptoms, and on a continuing basis, were sufficient for there to be found, as I have found, an aggravation and exacerbation of the disease on 25 May 2018 in the sense identified in Federal Broom Company Pty Limited v Semlitch[6] and in Cant v Catholic Schools Office[7].
[5] Kooragang.
[6] [1964] HCA 34 at [9]
[7] [2000] NSWCC 37
I note that there was no dispute that the osteoarthritic changes of the applicant’s right wrist, that is osteoarthritis, were a disease process. I also note that the parties were in agreement that in respect of the frank injuries of 7 October 2016 and 22 May 2018 it was necessary to find whether or not there were continuing symptoms arising from those incidents for the purposes of a determination as to whether or not a referral to a Medical Assessor should be made for assessment of the degree of permanent impairment arising from such incidents. In my view, the decision in Greater Taree City Council v Moore[8] may have been applicable in circumstances where the only claim that remained in dispute was a claim for permanent impairment, as the claims for weekly compensation and medical expenses have been resolved between the parties, and there was no dispute that injury was sustained, in this case on 22 May 2018, although it was the respondent’s submission that such injury had resolved, a submission which I have not accepted as noted above. However, in view of the findings that I have made it is not necessary to consider this issue.
[8] [2010] NSWWCCPD 49.
I find that the applicant sustained a disease injury within the meaning of s 4(b)(i) of the 1987 Act, being osteoarthritic changes of the right wrist, as a result of the nature and conditions of the applicant’s employment with the respondent, involving the coupling of hoses on a regular and frequent basis, from 1988 until 18 December 2020 and that the applicant’s employment was the main contributing factor to contracting that disease. Pursuant to s 15 of the 1987 Act, the deemed date of injury is 18 December 2020.
I find that the applicant suffered aggravation or exacerbation of a disease injury within the meaning of s 4(b)(ii) of the 1987 Act, being aggravation or exacerbation of osteoarthritic changes of the right wrist, as a result of injury on 22 May 2018, and that the applicant’s employment was the main intruding factor to the aggravation and exacerbation of that disease. Pursuant to s 16 of the 1987 Act, the deemed date of injury is 22 May 2018.
The applicant sought an uplift of 30% on costs for complexity. The respondent made no submissions as to an uplift. At the hearing I indicated that an uplift of 20% may be appropriate. However, upon reflection there were a multiplicity of injuries, evidentiary and legal issues and claims in this matter. In my view an uplift of 30% is appropriate. The parties have liberty to apply in this regard.
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