Cayir v Woolworths Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cayir v Woolworths Group Ltd [2024] NSWPIC 345
APPLICANT:	Umit Cayir
RESPONDENT:	Woolworths Group Limited
MEMBER:	Catherine McDonald
DATE OF DECISION:	28 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; re-determination after successful appeal; relevance of findings in earlier proceedings against another employer; comity; Secretary, Department of Education v Dawking; section 4(b)(i) injury; section 15 applied; Crisp v Chapman, Kelly v Glenroc Pastoral Co, Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Thiess Watkins White (Constructions) Pty Ltd, and Statecover Mutual v Cameron; Held – remitted to the President for referral to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. I remit the matter to the President for referral to a Medical Assessor to assess the applicant’s permanent impairment: Body system: left upper extremity (wrist and elbow). Date of injury: 12 June 2019. Method of assessment: whole person impairment. 2. The documents to be sent to the Medical Assessor are: a. Application to Resolve a Dispute and attached documents; b. Reply; c. respondent’s Application to Admit Late Documents dated 28 September 2022, attaching Dr Gupta’s notes, and d. respondent’s Application to Admit Late Documents dated 4 April 2024 (omitting pages 15 to 70).

STATEMENT OF REASONS

BACKGROUND

Between 2002 and 2018 Umit Cayir was employed in the bakery of a supermarket at Figtree, operated by Coles Supermarkets Australia Pty Ltd (Coles). During that time, Mr Cayir suffered an injury to his left wrist, for which he underwent surgery. In September 2018 he ceased working for Coles and began working for Woolworths Group Limited (Woolworths), also in a supermarket bakery but in a smaller store. He regarded the duties as lighter than those at Coles but he ceased working after a short period.
On 12 June 2019 Mr Cayir made a claim for permanent impairment compensation in respect of both of his arms against Coles, relying on a deemed date of injury of 1 August 2009, the date when he first reported left wrist pain to Coles. Coles rejected the claim, relying on ss 15 and 16 of the Workers Compensation Act 1987 (the 1987 Act) and saying that the injury was a disease and that it was not the last employer who employed Mr Cayir in employment to the nature of which the disease was due.
Mr Cayir commenced proceedings against Coles which were determined by an arbitrator of the Workers Compensation Commission on 26 May 2020.[1] Arbitrator Burge (as he then was) determined that the deemed date of injury in respect of both of Mr Cayir’s arms was
12 June 2019 and that as at that date, Woolworths was the last employer who employed
[1] Cayir v Coles Supermarkets Australia Pty Ltd [2020] NSWWCC 170.
Mr Cayir in employment to the nature of which the disease was due. Member Burge (to use his current title) held that he could not make findings against Woolworths, which was not a party to the proceedings, and made an award in favour of Coles.
These proceedings against Woolworths were originally filed in the Personal Injury Commission (Commission) and determined on 28 March 2023. A Commission Member determined, relying on ss 15 and 16 of the 1987 Act that Mr Cayir suffered a disease of gradual onset in his left arm being a recurrent ganglion and de Quervain’s tenosynovitis, which was aggravated, accelerated, exacerbated or deteriorated in the course of his employment with Woolworths and that employment was the main contributing factor. The Member was not satisfied that any condition in Mr Cayir’s right wrist was permanent.
Both parties appealed and the appeals were determined on 29 February 2024.[2] In summary and in respect of Woolworths’ appeal, Snell DP determined that it was necessary for Mr Cayir to establish that he had suffered an injury as defined in s 4 of the 1987 Act before consideration of ss 15 and 16 arose. The Certificate of Determination was set aside, and the matter remitted for redetermination. Mr Cayir’s appeal failed with respect to the Member’s finding that Mr Cayir had not suffered a disease of gradual onset in his right wrist.
[2] Cayir v Woolworths Group Ltd; Woolworths Group Ltd v Cayir [2024] NSWPICPD 13 (the appeal decision).
The issue to be determined by me is whether Mr Cayir suffered an injury to his left wrist for which Woolworths is liable.

PROCEDURE BEFORE THE COMMISSION

At a preliminary conference on 4 April 2024, I listed the matter for conciliation conference and arbitration hearing on 6 May 2024.
Between those events, Mr Cayir filed further proceedings against Coles which were listed for preliminary conference before a Commission Member. It was agreed that those proceedings would be discontinued, and an application made to join Coles to these proceedings. A form seeking the joinder was filed but no substantive documents in support of that application were provided to me.
Mr Robison of counsel appeared for Mr Cayir and Ms Compton of counsel appeared for Woolworths at the conciliation conference on 6 May 2024. Coles was represented by Mr Baker of counsel When the parties were unable to resolve the totality of the claim, Mr Cayir discontinued the application to join Coles. Those discussions took some time.
The hearing commenced. When time was short, I interrupted Ms Compton toward the end of her submissions to raise a matter orally with Mr Robison, discussed below. I directed both parties to file written submissions on outstanding issues and they filed submissions in accordance with the orders made.
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 used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (ARD);
(b)    Reply;
(c)    respondent’s Application to Admit Late Documents dated 28 September 2022, attaching Dr Gupta’s notes, and
(d)    respondent’s Application to Admit Late Documents dated 4 April 2024.
The Application to Admit Late Documents dated 4 April 2024 contained documents produced under direction by Coles. On 8 May 2024 Mr Cayir filed another Application to Admit Late Documents attaching the pleadings from the claims against Coles omitted from Woolworths’ application. No objection was taken to the filing of those documents.
There was no oral evidence.
The ARD pleaded the injury in the following way:
“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 MAC dated 12 January 2022 as to further details of the injury.”
Mr Cayir provided two statements. The first is dated 31 January 2019 and he described his employment at Coles between 2002 and 2018. He said that his work included “moving, large bakery, pans, needing dough, stock, replenishment, cleaning, working ovens, doughnuts, icing, and traying cookies”. He said that he began to experience pain in his left wrist, which he believed was due to repetitive movement, his job as a baker required. He said that he left Coles and began working at another local bakery, which had less workload than what working at Coles entailed.
Mr Cayir described the development of a lump on top of his left wrist in August 2009 and the subsequent treatment for which Coles accepted liability, including surgery in January 2010 and April 2012. He said he continued to perform his pre-injury duties until 16 April 2012. He returned to work after the surgery, and the weights that he was capable of lifting were gradually increased. He said that his wrist improved for about 8 to 10 months following the surgery, but after time the pain and lack of mobility returned and, at the time of his statement, he was suffering the same symptoms as before the surgery. Mr Cayir said that he resigned and found a position where the workload was less. Woolworths was not named in the statement.
The second statement is undated. Mr Cayir said:
“I resigned from my employment with Coles on or about September 2018. The difficulties I was having at Coles caused me to job search for a different role to accommodate my injuries as I was unable to manage the pain. Duties that I undertook whilst working at Coles included lifting heavy boxes, lifting bags of flour that were 12.5kgs, lifting 35kgs of dough from a large bowI then cutting the dough into 16kg pieces to be placed into another machine. I would mould and flatten the dough, place it on trays. There were 54 loaves on one rack, weighing up to 4-5 kg including the tins. I was aIso involved in oven duties. where I would have to knock out the tins. This duty used my wrist and caused it pain. While working .at Coles there was a severe shortage of staff. At the commencement of my employment there were 4 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 would be work around 152 hours per month as a full-time employer.[sic]
I started work with Woolworths in a smaller store on or about September 2018. I am employed as a baker but I took on that role as it was lighter work. Coles would make up to $65,000 sales wide in the bakery whilst Woolworths only makes up to $ 18,00 -$22,000 sales wide. Woolworths have different systems of work that help me with the daily loads such as:-
a.Reducing repetitive tasks due to more employees;
b.Reduced heavy lifting;
c.Longer break periods; and
d.A smaller and less busy store to enable recovery time during the day.
I saw Dr Bodel on 29 April 2019. The symptoms I was experiencing at that time were the same symptoms that II 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 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.” [sic]
There is no explanation for the failure to provide a further statement describing the work at Woolworths in greater detail. Despite commencing proceedings against Woolworths, Mr Cayir’s own evidence is the same as that relied on in the proceedings against Coles. The second statement is undated and appears to predate the cessation of Mr Cayir’s work at Woolworths. It would have been a simple matter to prepare a further statement and it is likely that it would have assisted in the resolution of the claim.

Medical evidence in the ARD

The medical evidence in the ARD is limited. Mr Cayir developed a dorsal ganglion on his left wrist in 2009. Dr Deshpande excised it on 11 February 2010. In a report dated
[3] In the bundle of documents produced by Coles.
18 January 2010,[3] Dr Deshpande said that Mr Cayir’s work involved using his wrists all the time.
On 10 May 2011, Dr Scougall saw Mr Cayir for a second opinion. Mr Cayir was experiencing fluctuating swelling, larger after making dough at work. Dr Scougall considered that the symptoms extended beyond the recurrent ganglion. After an MRI scan, Dr Scougall said that the discomfort and weakness that Mr Cayir described were greater than would be expected from the recurrent ganglion and that revision surgery may be indicated in future.
Mr Cayir saw Mr Haig for hand therapy and Dr Ng for rehabilitation. On 17 February 2012, Dr Scougall noted that Mr Cayir’s ganglion was painful and that he suffered radial wrist pain and swelling after making hot cross buns. He diagnosed de Quervain’s tenosynovitis. On 16 April 2012 Dr Scougall operated, performing left wrist de Quervain’s release and arthroscopy and open ganglion excision.
By January 2013, Mr Cayir had returned to pre-injury duties at Coles. Dr Scougall recorded that he had good wrist function though had basal thumb discomfort, worse with use.
Dr Bodel examined Mr Cayir at the request of his solicitors and reported on 29 April 2019. He recorded that Mr Cayir worked at a very busy supermarket in a full-time role starting at about 1:00am and finishing at 9:30 or 10:00am. The work was physical and heavy, and Mr Cayir eventually resigned from that job in September 2018 and had “s[BG1] ubsequently, found lighter duty work at Woolworths store again working as a baker, and he is coping better with that.” Dr Bodel noted that Mr Cayir had a lot of pain in his wrists and was concerned about his long-term working capabilities. He diagnosed a [BG2] dorsal wrist ganglion, numbness and tingling in the index, middle, ring, a little fingers of the left hand [BG3] and consequential, pain and stiffness in the right hand. Dr Bodel recorded:
“He indicates that he had always anticipated that he would be able to stay at Coles until retirement age but he was developing increasing discomfort in the dorsum of the left wrist over time and eventually he had to resign in September 2018. He did so he said because of the severity of his pain. He also indicated that the workplace was just too busy for him and he could not get any decent rest for that arm.
He has subsequently found work at a Woolworths store where he is again working as a baker and he states that this is a quieter smaller store and he is coping better.”
Dr Bodel provided an assessment of permanent impairment as a result of the restriction of left elbow, wrist and hand movement and slight restriction of movement in the right wrist.
Dr Bodel provided a further report dated 27 May 2022. He said that he had provided supplementary reports on 1 November 2019 but had not re-examined Mr Cayir. The reports from November 2019, do not appear in the ARD. Dr Bodel’s 2022 report responds to that of Dr Haig discussed below. He said that Mr Cayir suffered the aggravation, acceleration, exacerbation of constitutional disease processes, being a ganglion and de Quervain’s tenosynovitis. He considered that the pathology was causally related to Mr Cayir’s work.

Medical evidence in Woolworths’ Reply

Woolworths relied on a report of Dr Haig dated 28 October 2021. He summarised the history of treatment and said:
“He stated by 2018 he ‘couldn’t handle the pain anymore’ and he discontinued work at Coles and began work at Woolworths where he stated the work was ‘more flexible and more staff’. His pain however did continue. He states he then started to experience anxiety and panic attacks and discontinued work at Woolworths resigning on 20 June 2021. He described this as a ‘mental breakdown’. He has not worked since.”
Dr Haig did not set out a history of Mr Cayir’s duties at either supermarket. He recorded Mr Cayir was in constant pain which was “enough to annoy” and that he suffered episodes of tingling in his fingers. Dr Haig considered that Mr Cayir’s compliance on examination was poor. Asked to confirm his diagnosis, Dr Haig said:
“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.”
He considered that the ganglion was not related to Mr Cayir’s employment either with Coles or Woolworths.
Woolworths issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 on 2 December 2021. The grounds relied on to defend the claim were essentially that Mr Cayir did not suffer an injury in Woolworths’ employ, that he did not suffer a s 15 disease injury and that he did not suffer a s 16 disease injury to which employment at Woolworths was the main contributing factor. The only reasons offered in support of that decision were that Dr Haig did not consider that Mr Cayir suffered an injury which was due to his work either at Coles or Woolworths.
Woolworths did not lead any lay evidence about Mr Cayir’s duties at its store. It relied on a bundle of documents produced by Coles.

Coles’ documents

Woolworths relied on a large bundle of documents produced by Coles. They contained the initial report of Dr Deshpande dated 18 January 2010. He noted that Mr Cayir worked at Coles as a baker which involved him using his wrists all the time. He developed a ganglion which Mr Cayir’s general practitioner had previously aspirated. He considered that the ganglion was probably of traumatic origin and recommended surgical excision.
On 11 September 2019 Coles declined Mr Cayir’s claim on the basis that it was not the last employer in employment to the nature of which the disease is due. Coles alleged that Mr Cayir performed the same duties at Woolworths as those he had performed at Coles.
Coles arranged for Mr Cayir to see Dr Home, occupational physician, who reported for the first time on 5 April 2011. He diagnosed a recurrent radio-dorsal ganglion which may be arising from the lunate-capitate joint. He considered that treatment was warranted and that the condition was likely to have arisen as a consequence of highly repetitive and sometimes forceful work as a baker, which involved repetitive manual handling and some jarring of the wrist when knocking out bread.
Dr Home saw Mr Cayir again and reported on 12 August 2019. He recorded that Mr Cayir had undertaken his normal duties at Coles until September 2018 and that over the year before he resigned, Mr Cayir had activity-related pain in his wrist, in particular with forceful physical activities such as kneading dough or repetitive lifting of trays from ovens. Over the same period, he experienced the onset of intermittent paraesthesia in the middle three digits of his left hand. Dr Home wrote:
“He states that since his resignation from Coles, he has commenced full-time work as a baker at Woolworths. He states that the work at Woolworths is less physically demanding than his work at Coles. In particular, he reports that the staff levels are higher at Woolworths with four co-workers working in the bakery in comparison to one or two co-workers during his periods of work at Coles.
He estimates that the manual handling requirements at Woolworths approximately half of the level that he endured at his work as a baker at Coles.”
Dr Home diagnosed chronic radiocarpal synovitis and de Quervain’s tenosynovitis. He said that the tenosynovitis was inflammation of the tendon sheath of the first dorsal extensor compartment and those signs were not evident when he examined Mr Cayir in April 2011 and likely reflect the development of a further condition arising from the natural conditions of his employment. He said that the symptoms of paraesthesia were consistent with a clinical diagnosis of median nerve compression at the wrist or carpal tunnel syndrome, the latter having developed over the last two years and being common among manual workers including bakers. Without providing his reasoning, Dr Home said that, based on the history, there would be equal apportionment of liability to his periods of employment at Coles and Woolworths. Later in the report he said that he considered the work at Woolworths would likely represent an aggravation of his known medical conditions or diseases arising due to the nature and conditions of his employment. He said that his current employment was capable and likely to cause an aggravation of his disease because:
“Notwithstanding Mr Cayir’s history that he has reduced his overall workload slnce moving from Coles to Woolworths, he continues to undertake forceful bimanual work that has caused aggravation of his existing pathologies.”

Dr Home considered that Mr Cayir’s symptoms would continue while he continued to perform forceful bimanual work.
A report from Dr Bodel dated 1 November 2019 addressed to Mr Cayir’s former solicitors read:
“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 injury. In my view it is unlikely therefore that that short period of work has caused any additional permanent structural injury or aggravation, acceleration, exacerbation or deterioration but only a temporary aggravation at most.”
Dr Bodel considered that the lengthy period of work at Coles was the main contributing factor to the injury.
Dr Home reported again on 11 June 2021, obtaining a history that Mr Cayir continued to work at Woolworths until late 2019 when he ceased work because of his mental health. He described the work Mr Cayir performed during his period of a year at Woolworths as similar. He diagnosed chronic synovitis, a radio-dorsal ganglion, mild symptoms of carpal tunnel syndrome and de Quervain’s tenosynovitis. He considered all those conditions were permanent, even if Mr Cayir was to undergo a carpal tunnel release. Dr Home said that the employment at Coles was the main contributing factor to the development of all of those conditions.
Coles asked Dr Home to consider Member Burge’s decision dated 26 May 2020. Dr Home said that the work at Coles was the main contributing factor to the development of the ganglion, synovitis and de Quervain’s tenosynovitis and that the work at both Coles and Woolworths contributed equally to the development and persistence of carpal tunnel syndrome.
Mr Cayir’s Application to Admit Late documents dated 8 May 2024 contained the pleadings in the proceedings determined by Member Burge and in a subsequent application for medical assessment.

Proceedings against Coles

Member Burge’s decision in 992/20 dated 26 May 2020 is short. He had the statements described above and heard oral argument from counsel for Mr Cayir and for Coles. The ARD pleaded:
“Due to the nature and conditions of his employment. Mr Cayir developed a dorsal wrist ganglion on left wrist, tenosynovitis with involvement of the compartments on the dorsum of the wrist. Median nerve compression of left wrist...”
The issues to be determined were the nature of the injury and the effect of the work at Woolworths and the appropriate deemed date.
Member Burge noted that Mr Cayir’s case against Coles was based on s 15 of the 1987 Act. He was satisfied that Mr Cayir’s work as a baker at Woolworths was work to the nature of which the disease was due. On the basis of the submissions made, Member Burge was satisfied that there was no basis “to draw sufficient distinction between the work” with Coles and the work with Woolworths, saying that the duties were essentially the same, though less strenuous.
The Medical Assessment Certificate (MAC) referred to in the ARD was prepared in proceedings against Coles with a different matter number to those determined by Member Burge. The Medical Assessor assessed 20% whole person impairment as a result of injuries to Mr Cayir’s left and right upper extremities. I was not taken to the MAC in the parties’ submissions.

SUBMISSIONS

Oral submissions

Mr Robison began his submissions by saying that there was no issue estoppel as a result of Member Burge’s decision because there was no coincidence of issues and parties. He said that Member Burge came to the correct conclusion as to the causation of the injury and the last employer. While his decision was not binding on me as a precedent, Mr Robison said I should follow it for reasons of comity, referring to Undershaft (No 1) Ltd v Federal Commissioner of Taxation[4] (Undershaft), Business World Computers v Australian Telecommunications Commission[5] and La Macchia v Minister for Primary Industries and Energy.[6] He said that the principle to be gleaned from what Lindgren J said in Undershaft that the principle of comity required a member of a tribunal to adhere to the findings of another member with coordinate authority to create a coherent outcome and that I was required to do so unless the earlier findings were clearly or plainly wrong. Mr Robison quoted from Undershaft at [74]:
“While the expression ‘clearly wrong’ and ‘plainly wrong’ may be open to criticism, they usefully remind the later judge of the interests of justice in consistency of decision-making in a system of which the individual judge is but a part.”
[4] [2009] FCA 41.
[5] [1988] FCA 206, (1988) 82 ALR 49.
[6] (1992) 110 ALR 201.
Mr Robison said that a slightly stricter test was applied in SZQGX v Minister for Immigration[7] - that the decision of another member of a court or tribunal should be followed unless it is clearly wrong.
[7] [2011] FMC 863.
With respect of ss 15 and 16 of the 1987 Act, Mr Robison said that it was not necessary to prove actual causation in the employ of each employer and that it was only necessary to prove that the relevant employment exposed a worker to a risk of the same kind, citing Smith v Mann[8] and Tame v Commonwealth Collieries Pty Limited[9] (Tame) Because the question of whether employment was the main contributing factor to the disease suffered by Mr Cayir was satisfied in respect of his employment at Coles, I would be satisfied that his employment at Woolworths was of a kind to expose him to the same risk and to fix liability on Woolworths as the last relevant employer.
[8] (1932) 47 CLR 426.
[9] (1947) 47 SR (NSW) 269.
In the alternative, Mr Robison said that Member Burge’s decision was a well-reasoned coherent analysis which I should adopt “on the merits”.

Woolworths

With respect to determining the matter on the basis of comity, Ms Compton said that it was necessary to look at the finding of fact made in the earlier decision. In the case before Member Burge, Coles did not dispute that Mr Cayir had suffered an injury. In this case, Woolworths has disputed injury.
Ms Compton said that three pathologies in Mr Cayir’s left upper extremity were pleaded in the ARD – a dorsal wrist ganglion, tenosynovitis with involvement of the compartments on the dorsum of the wrist and median nerve compression. There is no evidence here to identify the exact case relied on against Coles or to identify the case pleaded and determined. Woolworths was not a party to those proceedings and the decision only binds Coles. Ms Compton said that the decisions to which Mr Robison took me to were not relevant because injury was in dispute.
Ms Compton said that ss 15 and 16 did not determine whether there was an injury and are concerned with who was responsible to pay compensation. In this case, there was no medical evidence to show that the three aspects of pathology on which Mr Cayir relied on were suffered in the employ of Woolworths. She took me to Mr Cayir’s statements to point out that there was no evidence about injury after he resigned from Coles and to Dr Bodel’s reports in these proceedings which she said were inconclusive as to whether the injury was caused by work at Coles or Woolworths. Ms Compton also took me to Dr Bodel’s report dated 1 November 2019 in Woolworths’ late documents dated 4 April 2024 in which he said that the work at Woolworths had caused only a temporary aggravation of the injury suffered at Coles.
With respect to the ganglion and de Quervain’s tenosynovitis, Ms Compton said there was evidence going back to 2009 of a history of treatment by Dr Deshpande, Dr Scougall and Prof Gumley, which included surgery in 2011 and 2012. Mr Cayir then returned to work and there was no other evidence until he commenced proceedings against Coles in April 2019. There was no evidence of left median nerve compression. Ms Compton said there was evidence of aggravation of a disease at two specific points in time being the development of the wrist ganglion and the recurrence of the ganglion. Dr Bodel provided evidence that Mr Cayir had suffered the aggravation, acceleration, exacerbation of deterioration of a disease but that it had occurred in the employ of Woolworths. Though Mr Cayir said his condition has become worse, there was no medical evidence of a deterioration in the employ of Woolworths.
Ms Compton noted that Mr Cayir suffered from a significant, unrelated psychiatric condition which led to him ceasing work in June 2021. She said that Mr Cayir may be mistaken as to the chronology of the conditions and that the evidence that he is always in pain is not supported by the lack of relevant history in the notes of his general practitioner, Dr Gupta.
Turning to the requirements of ss 15 and 16, Ms Compton submitted that it was insufficient for Mr Cayir to merely give evidence that he was a baker. There is no evidence about his duties at Woolworths and the work that he said gave rise to the pathology, though there is evidence about his duties at Coles. He said in his second statement that the bakery at the Woolworths supermarket was smaller, that Woolworths used a different system of work and that he did not believe that the work had contributed to his injury.
Turning again to the medical evidence, Ms Compton said that Dr Haig’s opinion with respect to the diagnosis and development of the condition was different. He considered that the ganglion was constitutional. Dr Bodel agreed that the ganglion was constitutional but was aggravated at Coles.
Ms Compton took me to Coles’ evidence in the Application to Admit Late Documents dated 4 April 2024. Mr Cayir saw Dr Home in 2011 diagnosing a recurrent ganglion, during the time he was working at Coles. He saw Dr Home again in August 2019 and Dr Home considered that there was median nerve compression, resulting from his work as a baker, and that Mr Cayir continued to suffer symptoms.
Ms Compton said that the continuation of symptoms after a change in employment was not necessarily an aggravation in the employ of the new employer and that there was no evidence of a change in the pathology.
At that point, when the time remaining for the arbitration hearing was running short, I asked Ms Compton to prepare written submissions on anything else she wished to say so that I could ask Mr Robison two questions. I directed Mr Robison to the fact that Member Burge said little about the actual causation of the injury in his decision and that the decision of Snell DP highlighted the need to make a finding as to injury before turning to ss 15 and 16. I also noted that the submissions as to comity were abandoned on the appeal.
Mr Robison responded that the effect of cases such as StateCover Mutual Ltd v Cameron[i][10] (Cameron) is to remove arguments about causation. He said that Mr Cayir is required to prove that he suffered injury but he did not have to prove that work at Woolworths caused the injury; he was required to prove that the two jobs were similar enough that they were both employments to the nature of which the disease is due or at least that the second job posed a risk of causing injury. He said that the injury would fall within s 16 even if the bulk of the pathology was constitutional because the only cause of the injury was work as a baker and the main contributing factor test has been proved in respect of the employment at Coles. Mr Robison noted that only the aggravation has to be caused by work. He said that if Dr Haig’s opinion is excluded, the medical case was consistent in terms of aggravation.

Written submissions

In her written submissions, Ms Compton noted that Mr Robison did not deal with the issue of injury. She said there is no evidence to establish that Mr Cayir suffered a s 4(b)(ii) injury or any frank injury in the employ of Woolworths, resulting in the three conditions which he said he suffered. She said there was no evidence on which I could find that Mr Cayir suffered an injury to which his employment with Woolworths was the main contributing factor. The left wrist ganglion developed and was treated during his employment at Coles, as did tenosynovitis. Ms Compton said there was no diagnosis of left wrist median nerve compression in Mr Cayir’s case, merely a hypothesis. Ms Compton referred me to a series of decisions in no particular order. I discuss the relevant decisions below. She said:
“The respondent in this matter therefore submits that in order for the Member to find a disease condition fits into the legal definition there must be evidence of symptoms and that employment with the Respondent was the ‘main contributing factor’ to such an increase. In this case, there is no such evidence.”
Mr Robison said that the documents in Woolworths’ Application to Admit Late Documents showed that the pleading against Coles was substantially similar to that in these proceedings. Mr Robison accepted that the principal of comity is generally directed to points of law, and not fact. He said that if I was to make a finding different to that of Member Burge in the proceedings against Coles, there would be two legally irreconcilable outcomes, in that Mr Cayir would have been found to have suffered a compensable injury but would have no respondent liable to pay compensation. Mr Robison said that Member Burge’s decision was of assistance as an analysis of the facts and adopted his reasoning.
Mr Robison said that he did deal with injury in his primary submissions by submitting that injury occurred during Mr Cayir’s employment with Coles. He said that Mr Cayir did not have to prove injury in the course of his employment with Woolworths. The disease provisions assumed that injury has occurred and provide the machinery for determining when the injury is deemed to have happened and by whom compensation is paid. He said that Woolworths’s submissions conflated the considerations arising from s 4 and ss 15 and 16. He said that injury section required that there be an injury in the course of employment to which, and to which employment was the main contributing factor and did not necessarily mean employment with the relevant respondent. Mr Cayir had merely to prove that employment with Woolworths was such as to expose him to the risk of the injury that he suffered, referring to Tame. Work at Woolworths was a lower order of intensity than that at Coles, but it would be unreasonable to find that working as a baker did not expose Mr Cayir to the risk of a continuation of the disease process, and that the medical evidence supported that opinion.
Mr Robison said that because the claim was for permanent impairment compensation only, it was not necessary that Mr Cayir provide any evidence about his current circumstances.

FINDINGS AND REASONS

The injury pleaded against Woolworths is a disease injury. It is necessary that I determine whether Mr Cayir suffered an injury to his left wrist within the meaning of s 4 of the 1987 Act, because no finding of injury has ever been made in proceedings to which Woolworths is a party. Coles admitted that Mr Cayir suffered an injury in its employ in the proceedings determined by Member Burge. The parties accept that no issue estoppel arises from that decision because Woolworths was not a party to those proceedings (nor a privy to a party). Woolworths denies that Mr Cayir suffered an injury, relying on Dr Haig’s opinion that the condition is constitutional.
In oral submissions, Mr Robison said that I should follow Member Burge’s decision for reasons of comity. That submission was surprising when that position was not maintained on the appeal before Snell DP who said:
“The worker does not, on appeal, repeat his argument that the Member should have applied the decision of the Member who decided the previous proceedings, on the basis of the doctrine of comity. The finding on ‘injury’ in the previous proceedings was essentially one of fact. In Comino v Kremetis Chen J said of the doctrine: ‘… the practice is limited to questions of law, and has no application to questions of fact’ and ‘the rule does not override the fundamental duty of the trial judge to decide the case albeit that that process involves consideration of, and proper regard being given to, the previous judgment.’ This decision was applied by Wood DP in Secretary, Department of Education v Dawking.”
In Secretary, Department of Education v Dawking[11] a case concerning a psychological injury said to arise from a COVID-19 vaccination mandate, Wood DP considered a submission that a Commission Member should have come to the same conclusion as another Member in a different case. Wood DP said:[12]
“Most recently, Chen J in Comino v Kremetis reviewed the relevant authorities and observed that ‘the practice is limited to questions of law, and has no application to questions of fact’ and ‘the rule does not override the fundamental duty of the trial judge to decide the case albeit that that process involves consideration of, and proper regard being given to, the previous judgment.’
The determination required of the Member in the present matter was a question of causation of the injury and whether the respondent’s employment was a substantial, or the main contributing factor to the injury. The Member’s conclusions were conclusions of fact. The same can be said in respect of Bjekic. As Chen J observed in Comino, judicial comity is limited to questions of law and statutory interpretation and has no application to factual determinations. Neither case turned upon questions of statutory interpretation or principles of law.”
[11] [2023] NSWPICPD 23.
[12] At [111]-[112].
The principle of comity does not require me to come to the same decision as Member Burge on questions of fact. The cases to which Mr Robison referred me, such, as Undershaft, concerned the construction of legislation and not questions of fact.
In his written submissions, Mr Robison noted the possibility of two irreconcilable decisions of the Commission if I did not come to the same decision as Member Burge. I have in fact reached substantially the same conclusion but if I had not, it may well have been a result of the forensic decisions made in the preparation of the cases on Mr Cayir’s behalf. The possibility of irreconcilable decisions does not, of itself, mean that I should come to the same decision as Member Burge in proceedings against a different employer on a question of fact. It is necessary that I decide the question of injury afresh.

Injury

It is necessary to determine the question of injury because no finding as to injury has ever been made in proceedings to which Woolworths is a party. The date of injury relied on in the ARD is 19 June 2019. Woolworths accepted that was the relevant date in its s 78 notice and no application to amend it has been made.
Section 4 of the 1987 Act provides:
“4 Definition of ‘injury’
In this Act—
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 a 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,”
Mr Cayir’s history is that his work was heavy, particularly at Coles. That history is gleaned from his statements and from the history that he provided to the medical practitioners. There is no evidence that Mr Cayir suffered any condition in his left wrist before he commenced work as a baker. Though his statements are brief, he described heavy repetitive work. After performing that work for seven years, he observed that he had developed a ganglion. Though the reports of his treating practitioners are brief, they attribute the condition to the particular tasks involved in his work. Dr Deshpande said that the condition was traumatic.
With the exception of Dr Haig, the tenor of the medical evidence is that the work Mr Cayir performed led to the development of a dorsal ganglion, which was excised and recurred, and de Quervain’s tenosynovitis. Dr Bodel noted the long hours that Mr Cayir worked and Dr Home described the repetitive and forceful manual tasks he was reqried to perform.

Woolworths denied that Mr Cayir suffered injury in its s 78 notice dated 2 December 2021. Though the claim was denied on a series of sections in the legislation, the only substantive reason in the notice was that Dr Haig did not believe that Mr Cayir suffered an injury as a result of his work either with Coles or with Woolworths. Woolworths denied that Mr Cayir suffered any injury, not merely an injury in its own employ.
Dr Haig did not set out any history of Mr Cayir’s duties and there is no reasoning in his report to explain his opinion. In the absence of any explanation of his reasoning, I do not accept Dr Haig’s opinion,[13] which is inconsistent with all of the medical evidence in the file.
[13] See South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [130]-[132] and Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11.
Dr Home also considered, on clinical grounds, that Mr Cayir suffered carpal tunnel syndrome, which is pressure on the median nerve in the carpal tunnel of the wrist. There is no evidence that he has undergone nerve conduction studies to confirm that diagnosis. The fact that only Dr Home made that additional diagnosis does not detract from the finding that Mr Cayir suffered an injury to his left wrist and elbow as a result of his employment.
The injury did not occur in one blow as a result of a frank incident. The medical evidence all leads to the conclusion that it is a disease injury, suffered as a result of the tasks that Mr Cayir performed. I am satisfied that it is an injury as defined by s 4(b) of the 1987 Act and that employment was the main contributing factor in the causation of the disease. There is no evidence of any competing causative factor, other than Dr Haig’s bald statement that the condition is constitutional, and for which he did not provide reasons. In the absence of evidence of any other causative factor, I am satisfied that employment was the main contributing factor to the injury.

Liability for compensation

Section 15 of the 1987 Act relevantly provides:
“15 Diseases of gradual process—employer liable, date of injury etc
(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) 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 worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of 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.
...
(4A) In this section, a reference to employment to the nature of which a disease was due includes a reference to employment the nature of which was a contributing factor to the disease.”
Section 16 of the 1987 Act relevantly provides:
“16 Aggravation etc of diseases—employer liable, date of injury etc
(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—
(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) 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.
(2) Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment 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.
…”
Sections 15 and 16 of the 1987 Act operate to fix liability for a disease injury on the appropriate employer. On the basis of the medical evidence described above, there is no evidence that Mr Cayir suffered a disease before he commenced working at Coles and I am satisfied that it is only necessary to consider s 15. Even if s 16 was also relevant, the outcome is the same.
The purpose of the disease provisions was described by Mahoney AP in Crisp v Chapman:[14]
“It is, I think, a confusion to treat section 15 or section 16 ... as, in the sense here relevant, creating liability for compensation. In general, each of the sections assumes that an injury has occurred and each provides the means of determining when the injury is deemed to have happened, by whom compensation is payable, and other ancillary matters. In principle, it remains for the worker to prove that an injury has occurred ... To prove that, it is necessary for the worker to prove the ‘happening’ of an injury within section 4. However, section 15 applies essentially in the case of an injury of the second kind to which I have referred [a work-caused disease] and section 16 to an injury of the third kind [a work-aggravated disease]. It is, therefore, no doubt convenient to refer to injuries of those kinds as cases within section 15 and section 16 respectively. However, it is necessary in doing so to recall that essentially the injuries are those provided for in section 4.”
[14] [1994] NSWCA 73; (1994) 10 NSWCCR 492.
In Kelly v Glenroc Pastoral Co Pty Ltd:[15]
“While it may be that to describe a claim which is authorised by the combined operation of sections 4 (‘injury’ – (b)(i)),15 and 33 of the Act is a convenient form of legal shorthand, it seems to me that, if that be done uncritically, and without regard to the fact that the source of the relevant worker’s entitlement is to be found in the combined operation of sections 4 and 33 - section 15 being procedural, or evidentiary in nature, identifying, for the purposes of a claim, the time at which the incapacity is to be taken as having arisen, and the employer against whom the claim may be made – one is apt to be led into confusion of thought’.”
[15] [1994] NSWCA 162; (1994) 10 NSWCCR 178.
Woolworths’ case is that Mr Cayir did not suffer injury in its employ and that there was no change in pathology during its period of employment. Ms Compton referred me to decisions concerning the aggravation of a disease but the definition of aggravation is not relevant here because I have found that Mr Cayir suffered an injury as defined in s 4(b)(i).
Woolworths argument that it was necessary that there be a change in pathology is concerned with what described as “true causation” in Cameron, referring to Kirby P’s statement in Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Thiess Watkins White (Constructions) Pty Ltd.[16] Section 15 is not concerned with true causation and it is not necessary that there be a change in pathology if the employment at Woolworths was employment to the nature of which the disease is due.
[16] [1995] NSWCA 183.
The Member who first determined these proceedings was satisfied that it was. On appeal before Snell DP Woolworths argued:
“against the proposition that employment with Woolworths was employment to the nature of which the disease was due. This includes reference to the worker’s evidence regarding the nature and severity of his symptoms and whether the symptoms changed while the worker was employed by Woolworths.”[17]
[17] The appeal decision at [68].
Snell DP said that Mr Cayir:
“did not need to establish that the disease process was due to the later employment. In a passage from Smith v Mann, quoted by the Member in his reasons at [93], Starke J said:
‘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”.’
The argument that s 4 needs to be satisfied, prior to ss 15 and 16 becoming relevant, is already raised and dealt with under Grounds Nos. 1 and 2 above. … The Member set out the worker’s evidence in his statements, dealing with his duties while working with Coles, and contrasted this with his relatively lighter duties at Woolworths. The Member described the worker’s opinion of ‘his work at Woolworths, and the legal consequences’, as ‘not relevant’ to the matters to be determined.
The Member referred to a number of relevant authorities, in particular the judgment of Dixon CJ in Bourne[18], where his Honour said:
‘… the purpose of using the words “due to the nature of the employment” and not ‘due to the employment’ was to provide for ready recourse by the employee to the latest employer who employed him in work to the nature of which his complaint was due independently of the question whether working for that particular employer contributed at all to his condition or aggravated it or accelerated its development; that employer could then claim over against a previous employer employing the claimant in work of a like nature and so on down the line. It was accordingly necessary to make the nature of the work the test and not the actual work done or the employment as it actually affected the man.’ (emphasis added)
Woolworths’ submissions on this issue direct themselves to ‘employment to the nature of which the disease was due’. That phrase is employed in s 15 of the 1987 Act. The Member’s reasons referred to the same test and to the difference between the duties at Woolworths as opposed to Coles. The Member referred to ‘a reduction in heavy tasks and lifting, longer breaks and a less busy stall’. The Member’s reasons said the worker ‘continued to carry out essentially the same duties, albeit they were somewhat less strenuous in nature’. He made a factual finding that ‘employment with [Woolworths] was of the same nature to that which he carried out with Coles’. This conclusion was open on the evidence and consistent with authorities such as Bourne and Smith v Mann on which the Member relied. Woolworths has not, in Ground No. 3, identified error within the meaning of s 352(5) of the 1998 Act.
The error alleged in Ground No. 3 is not made out.”
[18] Referring to Commonwealth v Bourne [1960] HCA 26; 104 CLR 32.
Those statements are most relevant to my determination, but I am still required to reach my own determination as to whether Mr Cayir’s employment with Woolworths was employment to the nature of which the diseases suffered are due.
I have already noted the unsatisfactory nature of Mr Cayir’s evidence. His statements are to the effect that the work at Woolworths was lighter and he said that the repetitive tasks and heavy lifting were reduced. He did not say those tasks were eliminated. His own belief in his second statement that the work at Woolworths did not contribute to the injury is merely lay opinion.
Dr Bodel’s opinion in 2019 that Coles was the last relevant employer because Mr Cayir worked only 14 days before instructing solicitors is also not relevant because it is the nature of the employment, not actual causation, which is relevant.
The most probative evidence for the determination of this question is that of Dr Home who carefully considered the respective duties at Coles and Woolworths for the purpose of seeking to attribute liability. As quoted above, Dr Home said that even though Mr Cayir had reduced his overall workload “he continues to undertake forceful bimanual work”. At Woolworths, Mr Cayir continued to perform the same tasks which involved a similar ergonomic load, albeit somewhat reduced. He continued to perform tasks of the kind that led to the development of the disease.
I am satisfied that Mr Cayir’s employment at Woolworths was employment to the nature of which the diseases of recurrent ganglion and de Quervain’s tenosynovitis were due. Accordingly, Woolworths is liable to pay any permanent impairment compensation to which Mr Cayir is entitled.
I therefore remit the matter to the President for referral to a Medical Assessor to assess the applicant’s permanent impairment:
Body system:  left upper extremity (wrist and elbow).
Date of injury:  12 June 2019.
Method of assessment:               whole person impairment.
The documents to be sent to the Medical Assessor are:
(a)    ARD;
(b)    Reply;
(c)    respondent’s Application to Admit Late Documents dated 28 September 2022, attaching Dr Gupta’s notes, and
(d)    respondent’s Application to Admit Late Documents dated 4 April 2024 (omitting pages 15 to 70).

[10] [2014] NSWWCCPD 49.

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[2024] NSWPIC 345

28 June 2024