Cayir v Woolworths Group Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Cayir v Woolworths Group Limited [2023] NSWPIC 78
APPLICANT:	Umit Cayir
RESPONDENT:	Woolworths Group Limited
Member:	Michael Inglis
DATE OF DECISION:	3 March 2022
DATE OF AMENDMENT:	28 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; whether applicant suffered injury in the form of a disease of gradual onset to the left and/or right upper extremities within the meaning of sections 15 and 16; whether injury resulted in permanent impairment; Held – the applicant suffers from a disease of gradual onset in his left upper extremity; the disease process was aggravated, accelerated, exacerbated or deteriorated in the course of his employment and his employment was the main contributing factor; the applicant has not established that he suffers from a disease of gradual onset in his right upper extremity; the applicant has not established that any condition that he may suffer from in his right upper extremity is permanent; matter referred to the President of the Personal Injury Commission for referral for medical assessment of permanent impairment of the left upper extremity.
determinations made:	1. The applicant suffers from a disease of gradual onset in his left upper extremity namely recurrent ganglion and de Quervain’s tenosynovitis. 2. The disease process was aggravated, accelerated, exacerbated or deteriorated in the course of his employment and his employment was the main contributing factor. 3. The applicant has not established that he suffers from a disease of gradual onset in his right upper extremity. 4. The applicant has not established that any condition that he may suffer from in his right upper extremity is permanent. 5. Matter referred to the President for referral for medical assessment of permanent impairment of the left upper extremity. 6. Material to be provided to the Medical Assessor: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) Applications to Admit Late Documents and attachments.

STATEMENT OF REASONS

BACKGROUND

STATEMENT OF REASONS

BACKGROUND

Umit Cayir (the applicant) is presently aged 49 years.
At age 19, he commenced work at Coles in Figtree. His duties included moving large bakery pans, kneading dough, stock replenishment, cleaning, working ovens, donuts, icing and traying cookies.
During his employment with Coles Bakery, he experienced immense pain in his left wrist which he believed was due to the repetitive movement of his employment duties as a baker.
On 16 September 2018, he left Coles and began work with Woolworths Group Limited (the respondent). He was also employed there as a baker but described his work there as lighter.
He eventually ceased working with Woolworths after a comparatively short period of time.
Whilst working in the bakery at the Figtree store of Coles, the applicant developed an injury to his left wrist.
After leaving employment, the applicant made a claim for permanent impairment compensation on Coles by a letter from his solicitors dated 12 June 2019. He alleged a deemed date of injury to be 1 August 2009, which was the date he apparently reported a gradual onset of left wrist pain to his then employer.
On 11 September 2019, Coles issued a s 78 notice declining liability. That notice alleged the injuries to each of the applicant’s wrists were diseases of gradual onset to which the applicant’s employment with the respondent was either employment to which the nature of the disease was due (s 15 of the Workers Compensation Act 1987 (the 1987 Act)) or employment to which the nature of the aggravation of the disease process was due (s 16 of the 1987 Act).
Insofar as it may be relevant, the s 78 notice also disputed the claimed date of injury and asserted it should be the date on which the applicant made his claim for permanent impairment compensation, namely 29 April 2019.
In those proceedings, there was no issue between the parties that the injury was in the nature of a disease process caused by the nature and condition of the applicant’s employment, or alternatively an aggravation to that disease process. He had later developed similar problems in his right wrist.
The matter came before Arbitrator, as he then was, Cameron Burge, who on 26 May 2020, entered an award for the respondent.
The basis for Arbitrator Burge entering the award for the respondent was that in his opinion Woolworths, the current respondent, was the employer who last employed the applicant in employment to the nature of which the disease and/or the aggravation of the disease was due.
Reference is made to these proceedings for historical purposes only as the current respondent was not a party to those proceedings and I am required to determine this matter on the evidence before me.

ISSUES FOR DETERMINATION

This is a claim for lump sum compensation.
The original Application to Resolve a Dispute (ARD) was filed on 5 July 2022. In that application, the type of injury was described as “Disease” and the systems claimed in relation to permanent impairment was limited to “Left upper extremity”.
The cause of injury was described in the following terms:
“the injury was sustained as a result of the claimant’s employment. He developed a dorsal wrist ganglion on his left wrist, tenosynovitis with involvement of the compartments on the dorsum of the wrist. He also experienced median nerve compression of the left wrist, with the same symptoms occurring on the right wrist.”
Please see attached the medical assessment certificate (MAC) dated 12 January 2022 as to further details of the injury.
The reference to the MAC is in fact an examination of the applicant that was conducted by Medical Assessor Tim Anderson on 12 January 2022. Medical Assessor Anderson set out the following history:
“Mr Cayir related that he had started work as a baker at Coles in August 2002. He continued working at Coles until September 2018. He gives a history of progressive dysfunction of his left arm, particularly around the wrist complex. This started around 2008. A dorsal wrist ganglion was identified and was excised on two occasions. From his history, it seems unlikely that the ganglion had much to do with the remainder of the dysfunction of the left wrist.
Over the last few months, the condition seems to have deteriorated severely. At this assessment, Mr Cayir had a chronic pain condition, although had not reached the stage of complex regional pain syndrome. (Nothing like this has ever been mentioned in the file.)
At this assessment, his left four quarter was particularly dysfunctional.”
Medical Assessor Anderson was required to examine the applicant in relation to injury to both the left and right upper extremity for the purposes of whole person impairment assessment.
At a teleconference on 2 August 2022, Member Deborah Moore noted that the ARD in this action was to be amended to include a s 66 claim for right upper extremity. That did not occur before the matter came before me for determination.
On the morning of the hearing, Mr Lachlan Robison sought to amend the ARD to insert the following in relation to injury:
“The applicant was injured as a result of the nature and conditions of his employment causing injury to the left upper extremity (wrist, elbow, fingers) and right upper extremity (hand, wrist).”
Ms Nicole Compton of counsel, who appeared for the respondent, objected to the amendment. In essence, she submitted that the respondent was required only to meet a disease case and that the amendment substantially increased the anatomical areas of injury. In particular, Ms Compton noted that there had not previously been a suggestion of any injury to the elbow.
Mr Robison then agreed to delete the specific reference to wrist, elbow, and fingers. He pressed the proposed amendment in relation to the right upper extremity where he particularised injury to the hand and wrist. Mr Robison conceded that the applicant’s case was founded on the allegation that the conditions in his left and right extremities were a disease within the meaning of ss 15 and 16 of the 1987 Act.
I permitted the amendment with the deletion of the specific reference to the left wrist, elbow, and fingers. I directed that an amended ARD be filed. On 25 November 2022, the applicant solicitor filed an amended ARD. In that document the description of the injury remains the same as originally pleaded and it adds only the right upper extremity as a system for which permanent impairment is claimed.
Accordingly, I regard the issues to be determined by me as follows:
1. has the applicant sustained injuries to his left and right upper extremities as a result of a disease of gradual onset within the meaning of ss 15 and/or 16 of the 1987 Act whilst employed by the respondent?
2. should any body parts be referred to the President for referral to a Medical Assessor for assessment?

PROCEDURE BEFORE THE COMMISSION

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 Personal Injury Commission (the Commission) and considered in making this determination:
(a)    the ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents (Coles records) and attachments dated 7 October 2022.
Ms Compton objected to a second statement of the applicant (ARD 5). Subject to Mr Robison arranging for the document to be dated, I admitted the statement on the basis that it would be of assistance to me and did not prejudice the respondent.
Ms Compton objected to the decision of Arbitrator Burge in matter number 992/20 Umit Cayir v Coles Supermarkets Australia Pty Ltd (ARD) 32-37. I admitted the document and again indicated to the parties that the matter would be determined on the evidence before me.
Ms Compton objected to the MAC of Medical Assessor Tim Anderson (ARD 54). I admitted that MAC on a limited basis in that it could go to a Medical Assessor as part of the evidence to be considered by that Medical Assessor in relation to the issue of causation of any condition suffered by the applicant.
Insofar as the late documents being the records of Coles Limited was concerned, I admitted those documents on the basis that they had only been received by the respondent a few days prior to the hearing. Upon the issue of the direction to produce those documents by the Commission, the notice had been followed-up on several occasions by the solicitor for the respondent. Those documents comprised some 1,524 pages. The parties were informed that I would consider the material contained in those documents to which I was referred in either addresses or written submissions on that basis, Mr Robison consented to the tender of the documents.

Oral evidence

There was no oral evidence as the applicant was not required for cross-examination.

Applicant statements

Following his commencement of employment as a baker with Coles in late August 2002, the applicant’s duties, including moving large bakery pans, kneading dough, stock replenishment, cleaning, working ovens, donuts icing and traying cookies.
During that employment, he says that he began to experience symptoms of immense pain in his left wrist, which he believed was due to the repetitive movement required by his workplace activities as a baker.
On 1 August 2009, he developed a large lump on top of his left wrist. This lump, he says, was causing him severe pain both when performing the repetitive working duties and in his daily life.
The pain began in his wrist and travelled up to his elbow. He also started to suffer from tingling sensations in his fingers.
The applicant consulted his general practitioner, Dr Gupta, on 3 August 2009 and was referred for an ultrasound which confirmed a ganglion. He was advised to wear a supportive bandage on the left wrist and was limited to lifting 5kg at work from 3 August to
10 August 2009.
Subsequently, Dr Gupta referred the applicant to Dr Deshpande, orthopaedic surgeon, who recommended surgical excision of the ganglion. The ganglion was in fact removed by that doctor on 10 February 2009.
The applicant says that the surgery did not improve his symptoms in the slightest and he continued to experience the same pain in his working and daily life.
Thereafter, for some time, the applicant worked restricted hours.
When his condition failed to improve, further ultrasounds were performed on 22 June 2010 and 20 January 2011. Those ultrasounds revealed a lobulated cyst lesion and a prominent separated ganglion cyst.
Dr Gupta then referred the applicant to another surgeon, Dr Peter Scougall.
An MRI was performed on 30 May 2011 by Dr Alastair Robertson and a recurrent ganglion cyst was located. This was closely associated with dorsal extrinsic carpal ligaments. The applicant continued to suffer symptoms, although he remained at his pre-injury duties.
On 19 August 2011, he was referred by Dr Scougall to Dr Steven Ng, a consultant physician in occupational and musculoskeletal medicine.
Thereafter, there is a history of continuing investigation and surgical intervention.
In his statement, the applicant says he continued to perform his pre-injury duties as a baker with Coles until 16 April 2012. Those duties included stock replenishment within weight restrictions, cleaning, returning ovens, donuts, icing, traying cookies, et cetera.
Following the surgery by Dr Scougall, the applicant says that the pain in his left wrist improved, but that was only temporary, i.e., for a period of 8 to 10 months.
Eventually, the applicant resigned from Coles and took up employment with the respondent.
There is no doubt that the work which the applicant performed at Coles involved repetitive and some times heavy use of each of his upper limbs, in particular the wrists.
Concerning his duties, whilst working for the respondent, the applicant says relevantly in his second statement:
“I started work with Woolworths in a smaller store on or about September 2018. I am employed as a baker, but I took on the role as it was lighter work. Coles would make up to $65,000.00 sales wide in the bakery whilst Woolworths only makes up to $18,000.00–$22,000.00 sales wide. Woolworths have different systems of work that helped me with the daily loads such as;
a.    Reducing repetitive tasks due to more employees;
b.    Reduced heavy lifting;
c.    Longer break periods;
d.    A smaller and less busy store to enable recovery time during the day.
6. I saw Dr Bodel on 29 April 2019. The symptoms I was experiencing at that time were the same symptoms that I had when I was employed at Coles. I do not believe that the position at Woolworths has in any way contributed to my injury as I had all the symptoms prior to taking up the new employment with Woolworths. The position at Woolworths has assisted me to continue work and manage the pain.”

Applicant’s medical evidence

There are volumes of medical reports attached to the ARD. Most of those reports relate to treatment afforded the applicant whilst he was employed by Coles. Essentially, in the current application, the applicant relies upon opinions expressed in reports of Dr James Bodel as follows.

Dr James G Bodel, orthopaedic surgeon

Before considering the opinions of Dr Bodel, I note that the evidence establishes that the applicant’s left upper extremity is dominant.
In relation to the work performed by the applicant at Woolworths, Dr Bodel also noted in his report, “He has subsequently found work at Woolworths Store where he is again working as a baker”, and he states that this is a ‘quieter smaller store’.
Dr Bodel reported to the applicant’s solicitors on 29 April 2019. In that report, Dr Bodel sets out the applicant’s medical history, particularly in relation to his work with Coles. As to the diagnosis, Dr Bodel opines:
“Summary of Injuries
·A dorsal wrist ganglion on the back of the left wrist;
·Numbness and tingling in the index, middle, ring and little finger of the left hand;
·Consequential pain and stiffness in the region of the right wrist and hand.
3. Your Diagnosis;
The diagnosis here is a dorsal wrist ganglion on the left wrist, tenosynovitis which did involve the first compartment (De Quervain tenosynovitis), but clinically today may also involve the other compartments on the dorsum of the wrist.
I also suspect that he had median nerve compression at the wrist.
He has mild similar symptoms on the right-hand side but they are not as florid as on the left side.
4.Your Opinion as To the Relationship Between the Patient’s Condition and The Subject Accident;
There is a direct causal link between the nature and conditions of this gentleman’s work and his ongoing complaints.
There is no specific (accident) as such, but this claim is clearly a nature and conditions claim associated with the nature of work in general.
5. Your opinion as to the long-term prognosis;
This gentleman’s long-term prognosis remains very guarded.
He will continue to have symptoms and signs of pathology in both wrists as long as he continues in this type of work.
He must try and modify the work and avoid as much as possible, strenuous or repetitive tasks with the risks in order to minimise his symptoms.
It would be prudent for him to explore the possibilities of retraining if that is at all possible.”
Dr Bodel also recommended further testing in the form of nerve conduction studies to assess whether or not the applicant has clinical evidence of mild median nerve compression at the wrist on the left-hand side.
Dr Bodel then provided a supplementary report dated 27 May 2022. That report is essentially a commentary on the contents of the report obtained by the respondent from Dr Ron Haig, to which I will be referring later.
In relation to applicant’s right wrist, Dr Bodel opines:
“He does have symptoms in the region of the right wrist and there has certainly been no specific injury on the right-hand side apart from the aggravation, acceleration, exacerbation and deterioration of some underlying degenerative process which has not been formally identified. At the time of my assessment three years ago, there were only investigations of the left wrist available with x-rays and MRI scans but I never saw an MRI scan of the right wrist to make a pathological diagnosis on the right side.”
Dr Bodel then comments on the report of Dr Haig as follows:
“In response to your specific questions, I would indicate the following;
1. In the report of Dr Haig dated 28 October 2021, Dr Haig notes that question (d) that Mr Cayir’s injuries were not caused by his work at Coles or Woolworths. We kindly seek your opinion as to whether work was a substantial contributing factor to the claimant’s physical injuries.
As I have indicated above, and Dr Haig’s diagnosis is a medical diagnosis of pathology.
He has indicated that the ganglion and the De Quervain tenosynovitis are constitutional ailments that are not specifically related to work and I disagree with the second part of that statement.
These things indeed are constitutional ailments and they are genetically based to each individual as to who will develop them or not.
The “injury” is the aggravation, acceleration, exacerbation and deterioration of those disease processes and I continue to hold that view.
For that reason, the treatment of the pathology and therefore the treatment of the injury is causally related to work.
2. Your opinion as to the relationship between the claimant’s injuries and the conditions of his employment.
As I have indicated above, the pathology that has developed in the left arm principally and in particular to the region of the left wrist and hand is a constitutionally based abnormality and it is a disease process of gradual onset.
The work and conditions of his work over many years has caused the aggravation, acceleration, exacerbation and deterioration of that disease process as I have indicated.”

Earlier, Dr Bodel had provided a report dated 1 November 2019 to Kells Solicitors, presumably the applicant’s solicitors at the time. The contents of that report are also relevant in relation to history that had been previously afforded to Dr Bodel. He records:
“I note your further advice that in fact he was working only a total of 14 days at Woolworths before instructing solicitors in relation to his injuries. In my view, it is unlikely therefore that that short period of work has caused any additional permanent structural injury or aggravation, acceleration, exacerbation and deterioration but only temporary aggravation at most.
In response to your specific questions, I would indicate the following;
1.     Do you believe the injury is a result of the aggravation from his new employment with Woolworths?
As I have indicated above, the 14 days of work that he did at Woolworths has caused a temporary aggravation only and no additional permanent aggravation, acceleration, exacerbation or deterioration on the basis of the history given.
2.     Do you consider the mentioned injury to have occurred over the 17 years of his employment with Coles?
The injury that led to the pathology is a pathological process that has occurred over time associated with the nature and conditions of his work over 17 years.
The work itself has then caused aggravation, acceleration, exacerbation and deterioration to that disease process.
3.     Does Dr Home’s report cause you to alter your opinion in anyway?
No, I am still of the view that the lengthy period of work at Coles is the main substantial contributing factor to the injury as a result of the nature and conditions of work over that 17 years of employment.”

Respondent’s medical evidence

The respondent relies upon a report of Dr Ron Haig, orthopaedic surgeon, dated
28 October 2021.

Dr Ron Haig, orthopaedic surgeon

The respondent relies upon report of Dr Haig dated 28 October 2021. Essentially, Dr Haig is of the opinion that the applicant has not sustained any compensable workplace injury. He opines relevantly:
“There has been no injury to the right hand or wrist, and I do not subscribe to the concept of “consequential pain” and I am unaware of any evidence that this is a recognised entity...
In terms of the left-hand/wrist, there has been no injury as such, but rather the development of a ganglion during 2009 and, after excision, recurrence of the ganglion which is not in itself unusual. The recurrent ganglion was also excised. This ganglion I believe was a constitutional/degenerative matter and I do not believe it was work-related. ...
I do not believe his condition of ganglion and recurrent ganglion were due to his work, either at Coles or Woolworths. ...
I do not believe he is able to perform his earlier employment, but I would suggest that it is not because of any organic reason but otherwise. This, however, is a matter beyond my area of expertise...
It made the point that I do not believe his condition of ganglion and recurrence of ganglion and De Quervain’s, if indeed he had a De Quervain’s condition, were work-related and I have made similar comment about any carpal tunnel syndrome, and, as such, I believe there is 100% deduction for non-work-related impairment.”
Dr Haig’s final comment relates to his assessment of whole person impairment in respect of the left upper extremity at 25% which he believes is non-organically determined.

RELEVANT LEGISLATION

In their collective submissions, the parties have referred me to ss 4, 9A, 15 and 16 of the 1987 Act.
Section 4 provides relevantly:
“Definition of ‘injury’
4. Definition of injury
‘injury’
(a)means personal injury arising out of or in the course of employment,
(b)includes a:
‘disease injury’, which means –
(i)A disease that is contracted by worker in the course of employment, but only if the employment was the main contributing factor to contracting the disease, and
(ii)The aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease,
and….”
Section 9A provides:
“9A no compensation payable unless employment a substantial contributing factor to injury
(1) No compensation is payable under this act in respect of an injury (other than a disease injury, unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining a worker’s employment was a substantial contributing factor to an injury, but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such determination) –
(a)The time and place of injury,
(b)The nature of the work performed and the particular tasks of that work,
(c)The duration of the employment,
(d)The probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)The worker state of health before the injury and the existence of any hereditary risks,
(f)The worker’s lifestyle and his or her activities outside the workplace....”
Section 15 provides relevantly:
“15 diseases of gradual process - employer liable, date of injury, et cetera
(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process-
(a)The injury shall, for the purposes of this act, be deemed to have happened –
(i)At the time of the worker’s death or incapacity, or
(ii)If death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury,
and
(b)The compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
(2) Any employers who, during the 12 months preceding a workers death or incapacity, or the date of claim (as the case requires, employed the worker in any employment to the nature to which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions, as in default of agreement, may be determined by the commission....”
Section 16 provides relevantly:
“16. Aggravation et cetera of diseases – employer liable, date of injury et cetera
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of the disease –
(a)The injury shall, for the purposes of this act, be deemed to have happened‑–
(i)At the time of the worker’s death or incapacity, or
(ii)If death or incapacity has not resulted from the injury at the time the worker makes a claim for compensation with respect to that injury, and
(b)The compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration exacerbation or deterioration....”

SUBMISSIONS

I have been provided with sets of detailed submissions drafted by counsel for both parties.

Respondent’s submissions

As Ms Compton says in her initial submissions:
“the crux of the respondent’s position is that the Applicant has not sustained any injury with regard to the left upper extremity due to his employment with the respondent. The respondent submits that all injuries claimed have been as a result of his employment with the Coles Group which is not a party to the proceedings.”
Ms Compton submits that the requirements of ss 15 and 16 are not met, and that there is no medical evidence to support the applicant’s contention that the work that he performed with the respondent caused any “additional permanent structural injury or aggravation, acceleration, exacerbation and deterioration but only a temporary aggravation at most”.
In her later submissions, Ms Compton submits that the applicant should make it clear whether he is alleging that he suffered a “frank” injury simpliciter or relies only on the disease provisions.
Ms Compton also drew my attention to the decision in of Kelly v Western Institute NSW TAFE Commission (2010) NSW CCPD 71 where Roche DP said “aggravation or exacerbation of the disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensification of the symptoms”. Ms Compton says that the utterances of Roche DP, which I regard as obiter to his decision supports her contention that there must be evidence of symptoms and that employment with the respondent was the main contributing factor to such an increase. By respondent, she is referring to her client Woolworths Group Ltd. These provisions are set out in ss 15 and 16 of the 1987 Act.

Applicant’s submissions

Subsequent to the hearing, Mr Robison, counsel for the applicant also provided additional written submissions.
He relies on Dr Bodel’s opinion that the nature and conditions of the applicant’s work over many years has caused the aggravation, acceleration, et cetera of a disease process. He submits that that opinion “dovetails perfectly with s 16 of the Act as to an aggravation of disease over the time (the last period of time being the subject period of employment with the respondent)”.
Mr Robison submits in relation to the right arm that “the right upper extremity injury is less severe but should be included”.
Specifically, as Dr Bodel notes “He does have ‘symptoms’ in the region of the right wrist and there has certainly been no specific injury on the right-hand side apart from the aggravation, acceleration, exacerbation and deterioration of some underlying degenerative process which has yet not been formally identified. The nature of the applicant’s work was essentially the same in terms of the use of his two upper extremities and it stands to reason that there is thus an injury to both”.
In relation to the claimed injury to the right arm, Mr Robison submits:
“That I should reject the opinion of Dr Haig and notes that Dr Haig says clearly that he does not subscribe to the consequent concept of consequential pain.
It is trite to say that a consequential condition is well recognised and accepted by the Commission as an injury within the mean of the act.”

FINDINGS AND REASONS

In her submissions, Ms Compton complained that the respondent was at a disadvantage by being required to put on its submissions before the applicant, which was said to be usual practice. It is not uncommon for a respondent or defendant be required to make the initial submissions where both parties have gone into evidence.
Ms Compton also submitted that “This places the respondent in a precarious position as it is unclear as to the actual claim to which it must respond noting that it is going first in submissions”.
Ms Compton correctly submitted that the amended ARD had not been filed.
The applicant’s counsel made it clear before the commencement of the hearing that the applicant’s case was founded in the disease provisions in the 1987 Act, i.e., ss 15 and 16.
I note that in the s 78 notice issued by the respondent on 2 December 2021, the respondent gives notice that it contends that:
“●    Your employment with Woolworths Group Ltd is not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of any disease injury or condition as required by section 4 (b) (ii) of the WC act.
·        You did not sustain a ‘disease’ injury within the meaning of section 15 of the WC Act.
·        Your employment with Woolworths Group Ltd does not consist in the aggravation, acceleration, exacerbation or deterioration of a disease pursuant to section 16 of the WC Act.
·        You have not suffered permanent impairment/whole person impairment. Any permanent impairment/whole person impairment is not due to injury arising out of or in the course of the employment with Woolworths Group Ltd as required under Section 66 of the WC Act.”
Clearly, the respondent was cognisant of the issues between the parties to be determined by the Commission as of 2 December 2021.
Ms Compton submitted, and I accepted two submissions in Reply.
As is noted above pursuant to s 4 (b) (ii), injury includes the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
Section 16 of the 1987 Act applies to injuries caused by, inter alia, the aggravation or exacerbation of diseases, and relevantly provide:
“1. If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a)The injury shall, for the purposes of this act, be deemed to have happened:
ii)If the death or incapacity is not resulted from the injury, at the time the worker makes a claim for compensation with respect to the injury, and
(b)Compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
Given the wording of ss 15 and 16, as set out above, it is necessary to examine the duties undertaken by the applicant at both workplaces. The nature and extent of the applicant’s duties with Coles are set out in some detail in his statement.
At paragraph 37 of his initial statement, he says:
“I continued to perform my pre-injury duties as a baker with Coles Figtree until 16 April 2012 surgery such as stock replenishment within weight restrictions, cleaning, working ovens, doughnuts, icing, traying cookies, et cetera as outlined in my return to work plan.”
In paragraph 4 of his statement, the applicant also indicated that his duties included moving large bakery pans, kneading dough, stock replenishment, cleaning and working ovens.

In his supplementary statement, the applicant further described his duties with Coles as follows:
“Duties that I undertook was working at Coles included lifting heavy boxes, lifting bags of flour that were 12.5 kg, lifting 35 kg of dough from a large bowl then cutting the dough into 16 kg pieces to be placed into another machine. I would mould and flatten the dough, place it on trays. There were 54 lows on one rack, weighing up to 4-5 kg including the tin. I was also involved in over duties where I would have to knock out the tins. This duty is my risk and cause it pain. While working at Coles, there was a severe shortage of staff. At the commencement of my employment, there were four staff members in the bakery section which went down to just myself. I was doing a 3-4 person job. My hours at Coles included 8-9-hour days with 30 minutes paid break and 30 minutes unpaid break. I work around 152 hours per month as a full-time employee.”
The reference by the applicant to his wrist was in relation to the left wrist.
At paragraph 5 of his supplementary statement, the applicant contrasted those duties with those at Woolworths. He says:
“Coles make up to $65,000.00 sales running the bakery whilst Woolworths only makes up to $18,000.00 - $22,000.00 sales storewide. Woolworths had very different systems of work that helped me with the daily load such as:
a.     Reducing repetitive tasks due to more employees;
b.     Reducing heavy liftings;
c.     Longer break periods;
d.     Smaller and less work to enable recovery time during the day.
I saw Dr Bodel on 29 April 2019. The symptoms I was experiencing at that time was the same symptoms that I had when I was employed at Coles. I did not believe that the position at Woolworths has in any way contributed to my injury as I had all of the symptoms prior to taking up the new employment with Woolworths. The position at Woolworths has assisted me to continue to work and manage the pain.”
The applicant’s opinion as to the impact of his work at Woolworths and the legal consequences are not relevant to the matters which I must consider and determine.
There is a long line of authority which has dealt with the meaning of the phrase “employment to the nature of which” a disease injury was due. In Hay v Commonwealth Steel Co Pty Ltd [2018] NSWWCCPD 31 (31 July 2018) (Hay), Deputy President Wood considered the phrase “employment to the nature of which” a disease is due in the context of a hearing loss claim.
The Deputy President noted that the purpose of ss 15 and 16 is “to avoid unnecessary litigation, simplify the assignment of liability and remove the debate about true causation”. In such a case, it is not appropriate to look beyond the nature of the employment to “true causation” (see also the decision of Roach DP in State Cover Mutual Ltd v Cameron [2014] NSWWCCPD 49 (Cameron). In both Hay and Cameron, it was held that to approach the question of causation of a disease injury (in those cases hearing loss) by reference to an enquiry as to actual causation as opposed to that required by the statute is “fundamentally wrong”.
In Hay, Wood DP refer to the High Court decision Smith v Man (1932) 47 CLR 426. That case dealt specifically with the phrase at issue in this matter, namely a disease arising “from the nature” of employment. Starke J in that matter took the view that:
“It must arise, no doubt from the nature of the employment. But it is not necessary that it should arise “out of the particular service of the particular employer sued. It is enough if the disease is “incidental to that class of employment so that it can be attributed to service therein.”
In Commonwealth v Bourne (1960) 104 CLR 32, the High Court further considered the meaning of the phrase in s 10 (1) (b) of the 1926 Workers Compensation Act “due to the nature of the employment in which the employee was engaged”. The Court concluded that the phrase referred to is not concerned with a particular activity with a particular employer, but rather the results which are incidental to the class of employment by virtue of its tendencies, incidents or characteristics. It is not concerned directly with something arising out of the particular service of the particular employee.
Dixon CJ said that the phrase “due to the nature of the work” was used:
“To provide for ready recourse by the employee to the latest employer who employed him in work to the nature of which his compliant was due independently of the question of whether working for that particular employer contributed at all to his condition… It was accordingly necessary to make the nature of the test and not the actual work done or the employment as it actually affected the man…
“Nature” is a wide as well as vague word and one must be careful not to narrow its application or attempt to reduce it to too much precision. But it does seem to refer to a connection between the “disease” in the defined sense and the description of employment by virtue of its tendencies, incidents or characteristics.”
Applying the above line of authority, it is not necessary to delve into the specific work carried out by the applicant with the respondent. Rather, it is simply enough that the employment is to the nature of which the disease is due. After leaving Coles, the applicant continued to carry out work as a baker with the respondent. There is no basis upon which to draw sufficient distinction between the work with Coles and with the respondent. Notwithstanding a reduction in heavy tasks and lifting, longer breaks and a less busy stall, the relevant enquiry for the Commission is whether the work with the respondent is employment “to the nature of which” the disease is due.
This is not a situation where the applicant was transferred from work as a baker into a completely sedentary role or a role with completely different duties. Rather, he continued to carry out essentially the same duties, albeit they were somewhat less strenuous in nature.
I am of the opinion that the employment with the respondent was of the same nature to that which he carried out with Coles.

Despite Dr Bodel’s opinion that “it is unlikely therefore that that short period of work has caused any additional permanent structural injury or aggravation, acceleration, exacerbation and deterioration but only a temporary aggravation at most”. It is not the test that I must apply and Dr Bodel does conclude that there was an aggravation et cetera, although he believed it to be temporary.

Does the applicant suffer from a disease within the meaning of ss 15 and 16

In the claim brought by the applicant against his former employer, Coles, which was determined by Arbitrator Burge, it was conceded that the applicant suffered from injury in the nature of a disease process caused by the nature and conditions of his employment or alternatively, an aggravation to that disease process. That is not the situation in the current matter. Dr Bodel agreed with the diagnosis of the doctors that treated the applicant whilst he was employed with Coles that he suffered from the development of recurrent ganglions and De Quervain’s tenosynovitis. In particular, he opined:
“As I have indicated above, the pathology that has developed in the left arm principally, and in particular, the region of the left wrist and hand is a constitutional-based abnormality, and it is a disease process of gradual onset.
The nature and conditions of his work over many years has caused the aggravation, acceleration, exacerbation and deterioration of that disease process as I have indicated.”
In his report, Dr Haig says:
“This ganglion, I believe was a constitutional/degenerative matter and I do not believe it was work-related… I do not believe his condition of ganglion and recurrent ganglion were due to his work, either at Coles or Woolworths.”
In relation to the applicant’s right wrist, Dr Haig opined:
“There has been no injury to the right hand or wrist, and I do not subscribe to the concept of “consequential pained…” and I am unaware of any evidence that this is a recognised entity.”
Dr Haig “does not comment upon the additionally diagnosed condition of De Quervain’s tenosynovitis for which condition the applicant underwent a De Quervain’s release. Given the nature of the applicant’s work duties and accepting, as Dr Bodel does that the underlying conditions may have been constitutional, I prefer the opinion of Dr Bodel that insofar as the applicant’s left wrist is concerned, he suffers from a disease of gradual onset, as diagnosed by Dr Bodel which has been aggravated, accelerated, exacerbated and resulted in deterioration as a result of the applicant’s work duties.
I am also satisfied that, insofar as the left wrist is concerned, the applicant’s employment was the main contributing factor to the contracting of the disease.

Applicant’s right wrist

The applicant also claims that he suffers from a disease of gradual onset in relation to his right wrist.
The genesis of the symptoms in the right wrist are said to be the result of the applicant favouring his left dominant wrist as a result of symptoms in that wrist resulting from his work duties.
Again, the applicant relies upon the opinion expressed by Dr Bodel. Dr Bodel in his report of 29 April 2019 describes the injury to the right wrist as “consequential pain and stiffness to the region of the right wrist and hand”. He says further, “he reports no other accident or injury but he did develop a gradual onset of right wrist and hand pain because he has overused that right side to protect the injured left side”.
In relation to the left wrist, Dr Bodel noted “he has quite clear symptoms and signs of ongoing pathology in the region of the left wrist and in my view, this warrants further investigation”.
Although Dr Bodel says in his report that the applicant has signs of pathology in both wrists, he is unable to identify with any precision the pathology in the right wrist. In his report of 27 May 2022, he says relevantly in relation to the right wrist, “he does have symptoms in the region of the right wrist and there has certainly been no specific injury on the right-hand side apart from the aggravation, acceleration, exacerbation and deterioration of some underlying degenerative process which as yet has not been formally identified”. As he says further, “I never saw an MRI scan of the right wrist to make a pathological diagnosis on the right side”.
I cannot be satisfied on the evidence presently available that the applicant does suffer from a disease of gradual onset in relation to his wrist as claimed. Similarly, I cannot be satisfied that any symptoms that he may be suffering from in the right wrist are permanent.
It may be that further investigation in the future may identify the presence of some pathology such as degenerative change opined by Dr Bodel. However, to make such a finding at this stage would be purely speculative.

SUMMARY

I am satisfied that in relation to his left wrist, the applicant suffers from a disease of gradual onset namely recurrent ganglion and de Quervain’s tenosynovitis.
I am satisfied that the disease process was aggravated, accelerated, exacerbated, or deteriorated in the course of his employment and that his employment was the main contributing factor.
I am not satisfied that the applicant suffers from a disease process in relation to his right wrist as claimed.
I am not satisfied that any condition that may exist presently in the right wrist is permanent.
I will refer the matter for assessment of permanent loss of use of the left upper extremity.

Deemed date of injury

The respondent has not disputed that in the event that I find that the applicant is suffering from a disease of gradual onset, then the deemed date of injury is 12 June 2019.

[2023] NSWPIC 78

3 March 2022