D'amico v State of New South Wales (NSW Police Force)
[2025] NSWPIC 489
•17 September 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | D'amico v State of New South Wales (NSW Police Force) [2025] NSWPIC 489 |
| APPLICANT: | Kylie Ann D'amico |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| MEMBER: | Karen Garner |
| DATE OF DECISION: | 17 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment lump sum compensation pursuant to section 66 and compensation for pain and suffering pursuant to section 67; whether applicant sustained injury to her bilateral wrists, right thumb, right knee, and left ankle arising out of her employment with the respondent pursuant to section 4(b)(i) and section 4(b)(ii); Held – applicant did sustain injury to her bilateral wrists, right thumb, right knee, and left ankle arising out of her employment with the respondent pursuant to section 4(b)(i); applicant did not sustain these injuries pursuant to section 4(b)(ii); matter remitted to the President to be referred to a Medical Assessor for assessment of whole person impairment; matter to be listed for further conference following the issue of the Medical Assessment Certificate in relation to the claim pursuant to section 67; the respondent to pay the applicant’s costs as agreed or assessed. |
| DETERMINATIONS MADE: | The Personal Injury Commission determines: 1. The applicant did sustain injury to her right wrist, right thumb, left wrist, right knee and left ankle as a result of the nature and conditions of her employment with the respondent, with a deemed date of injury of 3 March 2025, being a disease contracted by the applicant in the course of her employment and her employment was the main contributing factor to contracting the disease, pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act). 2. The applicant did not sustain injury to her right wrist, right thumb, left wrist, right knee and left ankle as a result of the nature and conditions of her employment with the respondent, with a deemed date of injury of 3 March 2025, being an acceleration, acceleration, exacerbation and deterioration of a disease in the course of her employment and the employment was the main contributing factor to the acceleration, acceleration, exacerbation and deterioration, pursuant to s 4(b)(ii) of the 1987 Act. The Personal Injury Commission orders: 3. The matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows: Date of injury: 3 March 2025 (deemed). Body parts: right upper extremity (wrist, thumb); left upper extremity (wrist); right lower extremity (knee), and left lower extremity (ankle). Method: whole person impairment. 4. The materials to be referred to the Medical Assessor are to include: (a) the Application to Resolve a Dispute and all attachments, and (b) the Reply and all attachments. 5. Following issue of the Medical Assessment Certificate, the matter will be listed for further conference before Member Garner in relation to the claim for compensation for pain and suffering. 6. The respondent to pay the applicant’s costs as agreed or assessed. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Kylie Ann D’amico (the applicant) is 41 years old. The applicant was employed by the State of New South Wales (NSW Police Force) (the respondent).
By letter dated 3 March 2025, the applicant’s solicitor notified the respondent’s insurer (the insurer) of a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the amount of $18,700 in respect of 13% total whole person impairment (WPI), and a claim for compensation for pain and suffering pursuant to s 67 of the 1987 Act in the amount of $25,000 in respect of 50%. The claims were in respect of injury to the applicant’s upper right extremity, left upper extremity, right lower extremity and left lower extremity, with a deemed date of injury of 3 March 2025 as follows:
(a) repetitive soft tissue injuries and strain injuries in both wrists;
(b) repetitive soft tissue injuries and strain injuries in both wrists and the carpometacarpal joints in the lateral wrist;
(c) repetitive soft tissue injuries and strain injuries in both patellofemoral joints in the knees;
(d) chronic stress and strain injuries in the lateral ankle joints, and
(e) aggravation or exacerbation of underlying early degenerative change in both wrists and in the thumb carpometacarpal joint as well as in both knees.
By letter dated 1 April 2025, the applicant’s solicitor provided further particulars of the claim.
By notice dated 5 May 2025 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the insurer disputed the applicant’s entitlement to compensation permanent impairment compensation on the grounds that it disputed that there was compliance with ss 4, 9A, 4(b)(i), 4(b)(ii) and 66(1) and 67 of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The applicant initiated proceedings in the Personal Injury Commission (Commission) by an Application to Resolve a Dispute (ARD) lodged on 17 June 2025, which claimed permanent impairment compensation pursuant to s 66 of the 1987 Act and compensation pursuant to
s 67 of the 1987 Act in respect of the claimed injuries.The respondent lodged a Reply to the ARD (Reply) on 26 June 2025.
At a hearing before me on 13 August 2025, the applicant was represented by Mr Ty Hickey of counsel, instructed by Mr Brendan Bourke of Bourke Legal Lawyers. The respondent was represented by Mr Bill Loukas of counsel, instructed by Mr Danny Khoshaba of Bartier Perry Lawyers.
At the hearing, by consent, the ARD was amended to claim compensation for injury pursuant to both s 4(b)(i) and 4(b)(ii) of the 1987 Act.
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.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained injury to her right wrist, right thumb, left wrist, right knee and left ankle as a result of the nature and conditions of her employment with the respondent, with a deemed date of injury of 3 March 2025, being a disease contracted by the applicant in the course of her employment and her employment was the main contributing factor to contracting the disease, pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act);
(b) whether the applicant sustained injury to her right wrist, right thumb, left wrist, right knee and left ankle as a result of the nature and conditions of her employment with the respondent, with a deemed date of injury of 3 March 2025, being an acceleration, acceleration, exacerbation and deterioration of a disease in the course of her employment and the employment was the main contributing factor to the acceleration, acceleration, exacerbation and deterioration, pursuant to s 4(b)(ii) of the 1987 Act;
(c) the extent and quantification of the applicant’s entitlement to payment of permanent impairment compensation pursuant to s 66 of the 1987 Act, and
(d) the extent and quantification of the applicant’s entitlement to payment of compensation for pain and suffering pursuant to s 67 of the 1987 Act.
INTERLOCUTORY ISSUE
Application for leave to cross-examine the applicant
The respondent sought leave to cross-examine the applicant. The application for leave was opposed by the applicant. Counsel made oral submissions, which were recorded.
I refused the respondent’s application for leave to cross-examine the applicant for the following reasons:
(a) on behalf of the respondent, Mr Loukas, stated that the applicant’s credit is in issue and that the respondent seeks to cross-examine the applicant in relation to her explanation as to why she did not report and seek treatment for the claimed injuries: particularly in relation to the applicant’s evidence regarding a culture within the respondent that did not encourage reporting of injuries and also in relation to other injuries, which are not the subject of the present proceedings, which he submitted that the applicant did report and seek treatment for;
(b) there is no legal right to cross-examination in Commission proceedings. The Member has a discretion to allow or not allow cross-examination. In Alumimium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 (Zheng), Bryson JA, with whom Handley JA and Bell J agreed stated at [37]:
“… There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration”;
(c) Zheng was applied in the Personal Injury Commission by Parker SC ADP in Hinde v Tarago Operations Pty Ltd [2023] NSWPICPD 66 who stated at [60]:
“… The Commission is required to afford procedural fairness by giving the parties notice of the case to be put against them, and a reasonable opportunity to put evidence and submissions before the tribunal on that case, but it does not follow that in circumstances where cross-examination has not occurred either that evidence is uncontested or that there has been a denial of procedural fairness”;
(d) in Newitt v Combined Roofing Australia Pty Ltd [2025] NSWPICPD 40 a [42] to [47], President Phillips J set out principles about the rule in Browne v Dunn in Commission proceedings:
“A few principles about the rule in Browne v Dunn in the Commission
42.Firstly, the rules of evidence do not apply to Commission proceedings, and the Commission is to ‘act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.’
43.Secondly, both parties have in error referred to Practice Direction 18.6. This is the Practice Direction made pursuant to the Workers Compensation Commission Rules 2011 which was repealed upon the commencement of the 2020 Act on 1 March 2021. This matter, having been commenced after 1 March 2021 is therefore not a “pending proceeding” as contemplated in Schedule 1, Part 2, Division 4A, Subdivision 1, clause 14A (1) of the 2020 Act and is therefore subject to the rules and Procedural Directions made under the 2020 Act. The applicable rules are the Personal Injury Commission Rules 2021, r 34 (Calling witnesses) and r 67 (Documents lodged under division). These rules are supported by Procedural Direction PIC1 at paragraph [38] which provides for examination of witnesses by leave and by Procedural Direction PIC 10. I will deal with this aspect of the ground of appeal on the basis of the applicable rules and procedures.
44.Thirdly, by a combination of the various rules and procedural directions, each party must lodge and serve material, including witness statements, which they intend relying upon.
45.Fourthly, there is no right to cross-examine in the Commission, leave is required. This situation was discussed in Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng in relation to the former Workers Compensation Commission. The principles set out in Aluminium Louvres are equally applicable to the Commission having regard to the legislation, rules and Procedural Directions (referred to above) being substantially consistent with those considered by the Court of Appeal.
46.Fifthly, there is in the context of Commission proceedings, no denial of natural justice or breach of the rule in Browne v Dunn if the party is aware of the case that he or she has to answer and there is an opportunity to reply. In Winter, at [81], the following was said about the rule in Browne v Dunn:
‘... The consequence of these decisions is that the circumstances in which Browne v Dunn will require matter to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice of the submission ultimately intended to be put to the court. An aspect of this is that Browne v Dunn will require more extensive cross-examination in a case where all the evidence is given orally, than is necessary in a case where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement.’
I would remark that the effect of the Commission Rules, and in particular r 67, is to enable issues to be identified in the filed material well prior to the hearing.
47.Sixthly, the rules of procedural fairness apply to Commission proceedings.”
(footnotes omitted);
(e) the obligation to afford procedural fairness requires that a party be given notice of the case that is put against him or her, and a reasonable opportunity to put evidence and submissions before a tribunal concerning that case: New South Wales Police Force v Winter [2011] NSWC 330 at [84];
(f) in the present case, the issues in dispute were well known to the parties. The injury was in dispute by the respondent by the evidence of Dr Stephen Rimmer and the s 78 notice issued on 5 May 2025;
(g) the applicant has given a detailed statement giving evidence in relation to the nature and conditions of her employment, the alleged injuries and the reason for her failure to report the injuries and seek treatment;
(h) despite having an opportunity to do so, the respondent has not put on any evidence which addresses the applicant’s evidence in that regard;
(i) further, the respondent has given no evidence regarding the applicant’s reporting of other injuries which are the subject of these proceedings;
(j) the applicant has explained in her statement which she did not seek treatment in respect of the injuries which are the subject of these proceedings;
(k) on 18 January 2024, the applicant was medically discharged on account of post-traumatic stress disorder, caused by her employment with the respondent;
(l) having regard to the evidence as a whole and the matters set out above, I am not satisfied that the rule in Browne v Dunn is breached by the applicant not being cross-examined;
(m) further, I am not satisfied that it is appropriate in the present circumstances that leave be granted to the respondent to cross-examine the applicant, and
(n) accordingly, the respondent’s application is declined.
EVIDENCE
Oral evidence
No oral evidence was given.
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents, and
(b) the Reply and attached documents.
Lay evidence
The applicant
The applicant gave evidence by way of a lengthy statement dated 12 June 2025. In summary, the applicant stated that:
(a) she was fit prior to her employment with the respondent and she has not sustained any relevant injury outside of her employment with the respondent;
(b) she worked for the respondent:
(i)from 2008 to 2012, as a civilian employee, working as a forensic scientist analysing substances;
(ii)from May 2015 to 4 August 2022, as an attested police officer, in general duties for approximately one year, then as a fingerprint technician in the Crime Scene Services Branch;
(c) her last day of work was 4 August 2022;
(d) on 18 January 2024, she was medically discharged on account of post-traumatic stress disorder, caused by her employment with the respondent;
(e) in relation to the nature and conditions of her employment, she detailed various physical requirements of her employment with the respondent and physical traumas that she sustained in the course of performing her work duties. These included:
(i)she was required to undertake defensive tactics and weapons training, which was physically difficult and often painful;
(ii)firearms training involved repetitive shooting from various positions including standing and kneeling and sometimes quickly transitioning between all positions;
(iii)physical defensive tactics which the applicant was required to train in and apply included the use of batons, handcuffs, weapon-less control, leg sweeps, arm bars, wrist locks, defence against chokes, knife defence, kicks, knee strikes, and, close quarter defence and control;
(iv)physical defensive tactics often involved the physical manipulation of a joint or limb against a training partner or perpetrator who was struggling violently, punching, kicking, dropping to the ground, drug affected, strong or skilled and trained in physical tactics;
(v)weapon-less control techniques involved the use of pressure and counter-pressure to muscles, tendons and nerve points, often in conjunction with joint manipulation, body manipulation, targeted body strikes and handcuffing;
(vi)during training programs and physical defensive tactics, she would be working with other police officers who caused her injury because they were aggressive, physically very strong and unable or unwilling to control their own strength, or unable to apply the techniques in a way which did not injure their training partner;
(vii)during training programs and defensive tactics, she was required to play the role of both “attacker” and “victim”, in training exercises which involved tackling, being tackled, dragging, being dragged, leg-sweeping, being leg-swept, head-locking, being head-locked;
(viii)in the performance of her work duties, she repeatedly chased offenders, climbed fences, kicked doors in, restrained offenders and was engaged in physical altercations;
(ix)she was involved in hundreds of arrests, which mostly involved aggressive perpetrators which required her to become physical involved through restraint, wrestling, fighting and violence;
(x)on more than one occasion, she was grabbed from behind and pulled to the ground, rolled violently with someone, banging knees, elbows and various body parts during the event;
(xi)in the course of her duties she was flipped, kicked, wrestled, rolled, thrown, choked, dragged, held and knocked violently and unexpectedly to the ground, frequently taking the impact with her knees, elbows or wrists;
(xii)from time to time, in performing an arrest, she tumbled down a set or stairs, chased a person, grabbed a person, tried to hold onto them, tried to avoid being struck with an object and she got into awkward positions;
(xiii)on occasions she was required to help lift bodies;
(xiv)on many occasions she was required to rip, tear and bust a person out of a car following a motor vehicle accident;
(xv)she was repeatedly physically assaulted and injured;
(xvi)in general duties, she was required to wear and appointment belt which weighed up to 8 to 9kg for up to 12 hours per day;
(f) in relation to her bilateral wrists, hands and right thumb, she suffered a series of indivisible injuries or micro-trauma to her bilateral wrists arising out of uncontrolled and unpredictable events occurring repetitively as part of the nature and conditions of employment of her employment as a general duties officer and as a crime scene investigator. In particular:
(i)during training and defensive tactics, she was required to place pressure on various body parts, which put great strain on her hands, fingers, thumbs and wrists and caused twisting of the wrists and thumbs;
(ii)she was involved in hundreds of violent arrests which generally involved rolling, wrestling, grappling, falling onto one or both hands;
(iii)she was required to grab and hold violent and non-compliant offenders for extended periods of time, which caused one or both wrists to be twisted or hyperextended;
(iv)her fingers were often bent backwards or sideways and her thumbs were often twisted or hyper-extended, sometimes caught in clothing or forcibly twisted by offenders during those violent arrests;
(v)she also suffered many unintended injuries during defensive tactics exercises, as well as numerous incidental injuries when forcibly trying to administer handcuffs to offenders;
(vi)regular weapons training also placed enormous strain upon both wrists, particularly from the recoil associated with discharging firearms 30 to 50 times per day;
(vii)she also experienced pain in both wrists in the course of her crime scene investigation training and duties from carrying a heavy camera and having to suspend herself by leaning heavily on one or other of her wrists to take photographs at crime scenes in awkward situations or spaces, often in circumstances where her footing was not ideal due to slippery body fluids and/or wet, uneven or broken terrain;
(viii)she had to lift and carry other objects heavy equipment;
(ix)she had to lift and carry heavy and awkward items at crime scenes;
(x)she had to dig and sift through rubble and hold large, heavy and awkward pieces of roofing iron, concrete, masonry, roof timbers, wall studs, carpets, ceiling fans, bookcases and furniture, which did not have safe lifting points;
(xi)she had to spend long periods of time on her computer examining fingerprints and other evidence which further contributed to the pain in her wrists;
(xii)weapons training exercises, regularly carried out between 20 and 100 times a day, placed enormous strain on both her hands and thumbs, as one hand was used for racking the slide of the police pistol and the other for loading 15 bullets into the Glock pistol;
(xiii)weapons training exercises also placed enormous strain on both wrists, particularly from the recoil associated with discharging firearms 30 to 50 times per day;
(xiv)she experienced pain in her hands when repetitively handling firearms in the course of her duties;
(xv)her wrists and thumbs, particularly her right thumb, got progressively more arthritic and worse without any single moment of obvious injury;
(g) in relation to her right knee, she suffered a series of indivisible injuries or micro-trauma to the right knee from both forcible twisting events and high impact events to the front and side of the knee as a result of the nature and conditions of her employment as a police officer. In particular:
(i)on countless occasions during training and defensive tactics, she was required to both deliver kicks and be kicked in the upper leg and hip area, which caused twisting and pressure to the knee joint and often caused the knee to buckle;
(ii)during the course of chasing, jumping and violent arrests, she was involved in constant and repetitive jumping, twisting, rolling, wrestling, and falling, knocking the knee on the footpath or the road or a hard surface or a rock and twisting and damaging her knee;
(iii)she fell or dropped onto uneven surfaces which caused twisting or striking of her knee upon landing, causing both bruising underneath the kneecap and on the top of the tibia/fibula as well as disruption of the articulating cartilage of the knee;
(iv)landings were made more difficult because the appointments belt weighted 9 or 10kg and made balancing difficult and increased the risk of a sideways force on the knee;
(v)when performing crime scene investigation duties, she was required to lift, carry and move heavy and awkward equipment and items, often up and down narrow stairwells and/or in confined and awkward spaces, which caused her to twist her knee or fall heavily onto her knee;
(vi)she does not recall any specific incident when she sustained a major injury to her right knee, but she regularly experienced knee pain in the course of her duties;
(vii)she experienced right knee pain particularly during the 12 months of crime scene investigation training and, thereafter, when she attended active crime scenes;
(h) in relation to her ankles, she suffered a series of indivisible injuries or micro-trauma to both ankles arising out of running, jumping, twisting, falling, chasing activities occurring as part of the nature and conditions of her employment as a police officer. In particular:
(i)she experienced periodic ankle pain or twisted ankles whilst running, jumping, chasing, falling, twisting, landing heavily on one or both feet when flipping over fences or walls and landing heavily with the force of her own body weight and also exacerbated by the weight of the appointments belt;
(ii)on numerous occasions during an extended foot pursuit, she badly rolled an ankle, however she continued the pursuit, aggravating the effects of the rolled ankle;
(iii)she regularly injured or twisted both ankles during crime scene training or at active crime scenes whilst trying to secure her footing wearing police footwear on slippery, wet, uneven, broken and debris riddled surfaces and terrain;
(i) she did not lodge incident reports on all occasions of injury in the course of her work because:
(i)there was a very heavily ingrained culture of “not reporting” injuries or that something was hurting, and that only “sooks” and those that did not want promotion dared to report injuries;
(ii)reporting incidents was not always encouraged nor supported early in her career;
(iii)particularly as a female officer in the early part of her police career, female police officers who reported injury were ridiculed;
(iv)she would have been ridiculed and viewed as being “weak” for reporting incidents resulting in injuries;
(v)similar to most of her colleagues, her injuries were annoying and frustrating, but were not crippling;
(j) she did not see a physiotherapist or chiropractor sooner because:
(i)from her experience and advice that she received, she understood that physiotherapist treated severe muscular injuries, tendon/ligament injuries and injuries that could not be self-treated and which could get worse;
(ii)she sought treatment only for injuries which seemed to be “sinister”;
(iii)she understood that physiotherapist and doctors could not fix the arthritic pain in her hands, knees and ankles;
(iv)she understood that the best way to fix those injuries was with rest, ice, elevation and pain killers, which she was able to self-administer;
(v)as a shift-worker, she jealously guarded her days off work;
(vi)in the circumstances, she did not see the point in spending time and money going to a physiotherapist or doctor;
(k) she continues to experience pain, restrictions and impact to her daily life as a result of the various injuries;
(l) she undergoes ongoing treatment to manage pain in her right thumb, bilateral wrists, right knee and left ankle, which is stretch, massage and taking Nurofen and Panadol as required to manage the symptoms;
(m) Dr Rimmer did not give her the opportunity to explain, in her own words, how the injuries to her wrists, thumb, knee and ankles came about, and
(n) she also sustained injuries to her cervical spine, lumbar spine and bilateral shoulders which were assessed and settled via a Complying Agreement in February 2025.
Treating medical evidence
Imaging
A report dated 6 March 2024 reported on the following imaging:
(a) X-ray both ankles showed: normal radiological features of the bone components; no evidence of arthritic changes; and no erosive arthritic changes in either ankle;
(b) X-ray right knee showed: the clavicles, scapulae and humerai are intact; no evidence of erosive nor arthritic changes in the acromioclavicular or glenohumeral joints; no subacromial bone spurring; no soft tissue calcification in the region of the rotator cuffs, and
(c) Ultrasound both shoulders showed: no evidence of any tendon tears; the subscapularis, supraspinatus, infraspinatus and biceps tendons are all intact; there are mild tendinosis of the supraspinatus tendons bilaterally; there is no significant thickening of the bursae or changes or bursitis; there is a normal range of movement with no evidence of impingement with the abduction of the arms; and no abnormality is seen in the acromioclavicular joints or in the region of the humeral head.
A report dated 7 March 2024 reported on the following imaging:
(a) Ultrasound of the hands showed: no significant structural abnormality, and
(b) Ultrasound of the ankles showed: no significant structural abnormality; the tendons and ligaments of the medial and lateral ankles are intact; a small effusion is seen around the left ATFL but no tear or evidence of strain is shown; there are no joint effusions.
A report dated 31 October 2024 reported on the following imaging:
(a) X-ray both hips showed: no significant structural abnormality.
Clinical records
Clinical records of Movement Therapy:
(a) record various appointment with the applicant on 15 March 2022, 5 April 2022 and 16 May 2022 in relation to treatment for L5/S1 disc bulge, and
(b) do not specifically refer to any of the body parts which are the subject of the present claim.
Clinical records of Evans Street Chiropractic:
(a) record various appointment with the applicant between 13 January 2010 and
23 August 2024 in relation to treatment for various symptoms mostly related to the shoulders, hips, jaw and neck, and(b) do not specifically refer to any of the body parts which are the subject of the present claim.
Independent medical evidence
Dr Andrew Porteous, occupational physician, qualified by the applicant
In a medico-legal report dated 31 December 2024, Dr Porteous:
(a) recorded of a history of the nature and conditions of the applicant’s employment and injury to the body parts claimed;
(b) in relation to the applicant’s current symptoms, reported that the applicant stated that:
(i)she had chronic pain at the base of both thumbs and the lateral wrists, which started in general duties and continued since, and she gets pain in the base of the thumb up to 5/10 on the right and 6/10 on the left with any forceful or moderate or heavy activity, which can increase to 8/10;
(ii)she has had pain in her knees ever since she has done general duties and landed frequently on her knees, and now if she kneel or crouches the pain will be 6/10 on the right and 3 or 4/10 on the left, and the knee pain can occur when she feels unsteady on her ankles or slightly loses her stability in the ankles;
(iii)her ankles feel unsteady or unstable and feels pain in the ankles when engaged in an activity that aggravates them, which she now avoids. The applicant reported having repeatedly stressed and strained the ankles and sprained them doing general duties in 2015 and walking on uneven ground;
(iv)the applicant reported using Nurofen most days for one of the claimed injuries,
(c) reported that, on examination:
(i)the applicant’s wrists showed 50% extension right (2%) and 60% on the left (0%), 60 degrees flexion bilaterally (0%), 10 degrees radial deviation (2%) and 10 degrees ulnar deviation (4%) bilaterally, 8% UEI right, 6% UEI left;
(ii)in the thumb, there was tenderness in the carpometacarpal joints, on the left thumb there was radial abduction of 40% (2%);
(iii)in the knees, the applicant had 0 degrees to 120 degrees flexion right, 0 degrees to 130 degrees left, they were stable, there was patella femoral pain on both knees with compression and there was crepitus (2%);
(iv)in the ankles, the applicant had full right ankle range of motion, in the left ankle the applicant had full movement except for an eversion on the left which is at 10% WPI; the applicant walked with a normal gait,
(d) diagnosed:
(i)repetitive soft tissue injuries and strain injuries in both wrists;
(ii)repetitive soft tissue injuries and strain injuries in the carpometacarpal joints in the lateral wrist;
(iii)repetitive soft tissue injuries and strain injuries in both patellafemoral joints in the knees;
(iv)repetitive soft tissue injuries, chronic stress and strain injuries in the lateral ankle joints;
(v)aggravation or exacerbation of underlying early degenerative change in both wrists and in the thumb carpometacarpal joint as well as in both knees,
(e) opined that the applicant had an aggravation or exacerbation of underlying early degenerate change in both wrists and in the thumb carpometacarpal joint as well as in both knees;
(f) opined that the applicant has had hard, heavy and repetitive stress and strain due to the nature and conditions of her employment in all of those joints, which was the substantial and main contributing factor to those injuries;
(g) stated that maximum medical improvement had been reached in relation to both wrists, right knee and both ankles, and
(h) assessed total 13% WPI, calculated on the basis of:
(i)6% WPI for the right upper extremity (right wrist and right thumb);
(ii)4% WPI for the left upper extremity (left wrist);
(iii)2% WPI for the right lower extremity (right knee);
(iv)1% WPI for the left lower extremity (left ankle), and
(v)0% WPI for the right lower extremity (right ankle).
Dr Stephen Rimmer, orthopaedic surgeon, qualified by the respondent
In a report dated 29 April 2024, Dr Rimmer:
(a) noted that he considered the report of Dr Porteous dated 31 December 2024 and the radiological investigations of 6 March and 7 March 2024. Dr Rimmer noted that the ultrasound of both hands and wrists on 7 March 2024 showed no abnormality. Dr Rimmer noted that there were no radiological scans of the applicant’s right knee, nor right and left ankles;
(b) in relation to the applicant’s current symptoms, reported that the applicant stated that:
(i)she could not put pressure on her wrists, with the right being greater than the left; the right thumb was “fine”;
(ii)the medial aspect of the right knee was sore and painful, however it was purely mechanical in nature and there was no clicking, swelling, locking nor instability; the ankles “give way”;
(c) noted that the applicant does not require any forms of oral analgesia or anti-inflammatories;
(d) reported that on examination:
(i)the applicant’s wrists: were symmetrical in position; were nontender to firm palpation throughout; and had the following active range of motion: flexion 60°, right equals left; extension 60°, right equals left; ulnar deviation 30°, right equals left, radial deviation 20°, right equals left.
(ii)the applicant’s right knee: was symmetrical in alignment on standing, supine and quadriceps musculature; had normal gait; there was no effusion; there was no joint line tenderness; collateral and cruciate ligaments were intact; range of motion was 0 degrees to 130 degrees (right equals left) and pain free;
(iii)the applicant’s ankles and feet: was symmetrical on standing with no swelling nor discoloration; had normal gait; could tiptoe and heel weight bear without difficulty; was nontender to firm palpation throughout; and had the following active range of motion: plantar flexion 25° (right equals left), extension 15° (right equals left), inversion 25° (right equals left), eversion 15° (right equals left) and performed without any discomfort; and the neurovascular system in both feet was intact, and
(iv)clinical examination of all the sites was entirely normal;
(e) in relation to diagnosis, expressed the opinion of “Overwhelmingly, abnormal illness behaviour for the purpose of personal financial gain… There is no physical diagnosis”;
(f) opined that the applicant never had a condition of the bilateral wrists, right thumb, right knee and bilateral ankles and that her employment was not a contributing factor to any injury to those body parts;
(g) stated that the applicant continues to do self-care and normal domestic duties;
(h) stated that “There are overwhelming signs and indications of malingering, i.e. there is nothing physically wrong with [the applicant]”;
(i) stated that from a physical perspective, the applicant’s capacity was as a fully operational police officer;
(j) considered that the applicant had reached maximum medical improvement, and
(k) assessed total 0% WPI, calculated on the basis of 0% WPI for the bilateral wrists, 0% WPI for the right knee, and 0% WPI for the bilateral ankles. Dr Rimmer did not give a WPI assessment in respect of the right thumb.
SUBMISSIONS
Both counsel made oral submissions which were recorded. Both counsel referred to various legal authorities and evidence.
In summary, on behalf of the applicant, Mr Hickey submitted that:
(a) as a police officer, the applicant was exempt from 2012 amendments to the
1987 Act and that the 1987 Act prior to the 2012 amendments applies to her claims for workers compensation;(b) the applicant’s evidence should be accepted;
(c) the respondent has not put on any evidence which challenges the applicant’s evidence, particularly in relation to the nature and conditions of her employment, the physical impacts of her work on her body and the workplace culture;
(d) it is not in dispute that the applicant ceased to work in August 2022 as a result of significant post-traumatic stress disorder;
(e) radiology is a supportive, but not definitive, diagnostic tool;
(f) the opinion of Dr Porteous should be preferred and accepted because his report demonstrates that he properly engaged with the applicant’s history and provided a careful and considered opinion based on sound analysis and reasoning;
(g) no weight should be given to the opinion of Dr Rimmer because his report is inflammatory, it indicates that he did not take a full history and it refers to a prior report of Dr Rimmer which is not in evidence;
(h) the respondent has not raised an issue regarding compliance with
ss 254 and 261 of the 1998 Act;(i) there was no legal requirement for the applicant to engage in treatment for the injuries;
(j) the applicant has provided a credible explanation, which should be accepted, for how she sustained the injuries, and why she did not report the injuries nor seek medical treatment for them;
(k) there is a clear causal link between the applicant’s work and the pain and symptoms which the applicant has experienced in relation to the claimed injuries, and
(l) applying the commonsense test, the Commission should be satisfied that the applicant has discharged the onus of proof and that injury is established.
In summary, on behalf of the respondent, Mr Loukas submitted that:
(a) whilst the applicant spoke at length about the physical nature of her employment, there is no evidence of any particular injury or microtrauma to any claimed body part;
(b) there is an absence of any complaint by the applicant regarding any of the injuries claimed;
(c) there is an absence of any treatment received by the applicant regarding any of the injuries claimed;
(d) the applicant has not undertaken any work since August 2022 however she has not explained nor given evidence as to any microtraumas that she has sustained nor how her conditions have worsened since August 2022 and her bringing the claim for workers compensation in March 2025;
(e) there is no radiological evidence, clinical notes nor other diagnostic tools which is supportive of the applicant’s claimed injuries;
(f) the evidence of Dr Porteous is the only medical evidence which is supportive of the applicant’s claimed injuries;
(g) the applicant’s evidence is subjective and not objective and it does not indicate any specific trauma to any particular body part;
(h) the diagnostic imaging on 6 and 7 March 2024 showed no evidence of any abnormality in respect of the claimed body parts;
(i) there is zero radiology and diagnostic evidence which supports a finding of any arthritic change;
(j) the applicant’s evidence of a work culture of not reporting work injuries is inconsistent with evidence that the applicant did report work injuries to her cervical spine, lumbar spine and bilateral shoulders and the applicant’s history of making other claims for workers compensation;
(k) in the circumstances, the opinion of Dr Rimmer is the most compelling and it should be preferred and accepted;
(l) the opinion of Dr Porteous is not clear as he appears to be having a “bet each way” with alternative diagnoses of microtrauma or an aggravation of a pre-existing condition. Further, there was nothing to support Dr Porteous’ diagnoses apart from his acceptance of the applicant’s version of her work history;
(m) there is no medical evidence of any degenerative change;
(n) there is no evidence of any MRI imaging;
(o) the applicant’s credit is not in issue, and
(p) however, the applicant has not discharged the onus of proof to establish injury as required by the legislation.
In summary, on behalf of the applicant, in reply, Mr Hickey submitted:
(a) the only evidence that the respondent points to in relation to notice of injury to other body parts which are not the subject of the present claim, is evidence long after the applicant ceased to work;
(b) in relation to ongoing pathology of the claimed injuries, the applicant gave evidence of ongoing symptoms that she experiences including sensations of an arthritic nature;
(c) the lack of physical work since the applicant ceased to work for the respondent is not relevant because the applicant attributed injury to the period of time when she did perform work for the respondent;
(d) the lack of contemporaneous clinical evidence is not relevant because the applicant has explained why she did not report nor seek treatment for the subject injuries;
(e) the imaging conducted is in evidence and it was not diagnostic per se, but merely a tool to assist in a diagnosis;
(f) Dr Porteous’ opinion was based not only on the history given by the applicant, but also on Dr Porteous’ clinical examination of the applicant and his qualified opinion as to diagnosis, with the assistance of diagnostic imaging. Dr Porteous stated that he saw imaging that had been conducted, and
(g) MRI imaging was not a necessary requirement.
THE LAW
Changes introduced to the 1987 Act by the Workers Compensation Legislation Amendment Act 2012 (the 2012 Amendment Act) did not apply to police officers, who remained exempt from those reforms. The following provisions of the 1987 Act, as in force prior to the 2012 Amendment Act reforms, are applicable to the applicant as a police officer.
Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer.
The term injury is defined in s 4 of the 1987 Act (as it was prior to the 2012 Amendment Act) as follows:
“4 Definition of “injury”
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[1] (Kooragang), where Kirby J stated:
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[2]
[1] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[2] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated at [463] – [464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Principles regarding the discharge of the onus of proof were considered by President Keating in Department of Education & Training v Ireland[3] (Ireland). In order for the applicant to discharge the onus, I “must feel an actual persuasion of the existence of that fact”.
[3] [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
Section 15 of the 1987 Act (as it was in force prior to the 2012 Amendment 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.
…
(4) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.
…”
Section 16 of the 1987 Act (as it was in force prior to the 2012 Amendment 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.
…
(3) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.
…”
FINDINGS AND REASONS
Credibility of the evidence of the applicant
I note that the respondent sought leave to cross-examine the applicant at the hearing, however that application was refused for the reasons set out above.
The respondent did not take issue with the applicant’s credit in a general sense.
In any event, I note that the applicant was an attested member of the NSW Police Force. There is no suggestion, and certainly no evidence, that she is other than an upstanding citizen of general moral integrity.
On that basis, I make no general findings that the evidence of the applicant should not be accepted.
However, I will consider the evidence in more detail below, in the context of the specific evidence and the weight that should be given in each case.
Factual findings in relation to the nature and conditions of the applicant’s employment
For the following reasons, I accept the applicant’s evidence regarding the nature and conditions of her training and work with the respondent, in particular, in relation to the physical nature and demands of that training and work and the physical impacts that she sustained in undertaking that training and work:
(a) the applicant gave detailed evidence in relation to the physically demanding nature of her training and work with the respondent as a civilian employee working as a forensic scientist analysing substances from 2008 to 2012, and then as a police officer from 2015 to 2022. The applicant also detailed various bodily traumas that she regularly sustained in undertaking that work and training;
(b) the respondent has not put on any evidence which challenges the applicant’s evidence in relation to the nature and conditions of her employment with the respondent. In particular, there is no evidence which is inconsistent with the applicant’s evidence regarding the physical demands of her training and work and the physical impacts of her training and work on her body;
(c) I note that Dr Porteous recorded that the applicant reported a similar history of physically demanding training and work in her employment with the respondent. Dr Rimmer did not record any detailed history regarding the applicant’s work training and duties, and he certainly did not record any inconsistent history, and
(d) I consider it logical and likely that a forensic scientist and police officer employed by the respondent would be engaged in such physically demanding training and work and that they would, from time to time, sustain physical impacts of the type described by the applicant.
On that basis, I accept that the applicant’s training and work with the respondent as a forensic scientist and then, particularly, as a police officer, was generally of a physically demanding nature. Further, I accept, that in the course of her training and work with the respondent, the applicant did regularly sustain forceful and damaging impacts, strains and stresses to her body from time to time, as described by the applicant in her evidence, including to her bilateral wrists and hands, right knee and left ankle.
On that basis, I do not accept the respondent’s submission that there is no evidence of any injury or micro-trauma to any claimed body part.
Evidence in relation to not reporting injuries
For the following reasons, I accept the applicant’s evidence regarding her perception of a workplace culture of not reporting injuries sustained during training and work with the respondent:
(a) the applicant gave detailed evidence in relation to her experience, perception and understanding of a general workplace culture within the respondent of not reporting injuries sustained during the period of her training and work with the respondent as a forensic scientist and particularly as a police officer;
(b) the applicant also gave detailed evidence in relation to her experience, perception and understanding of such a general workplace culture as it related to specifically to women employed by the respondent in those roles;
(c) the applicant’s evidence is subjective to the extent that it relates to her perception, understanding and state of mind at the relevant time;
(d) there is no independent and objective evidence of the respondent’s workplace culture regarding the reporting of injuries, neither generally, nor in the specific context of women employees, and particularly not in the context of the applicant’s specific employment;
(e) the respondent has not put on any evidence at all which challenges the applicant’s evidence in relation to the respondent’s culture of reporting injuries during the relevant period. In particular, there is no evidence which is inconsistent with the applicant’s evidence regarding her experience, perception and understanding of a culture of not reporting injuries sustained in training and work with the respondent, both generally and specifically as a woman;
(f) neither independent medical expert recorded any reported history regarding the applicant’s experience, perception and understanding of a work culture of not reporting injuries. In some ways, this is not surprising nor necessarily determinative, because the issue of reporting of injury was not particularly relevant to the history of sustaining injury as recorded by Dr Porteous. Further, Dr Rimmer did not record any detailed history at all regarding the applicant’s work training and duties, and he certainly did not record any inconsistent history, and
(g) I consider it logical and likely that the applicant, as a forensic scientist and especially as a police officer employed by the respondent, particularly during the relevant time period and as a woman in the relatively early stage of her policing career, may perceive a culture of remaining silent and not reporting physical impacts and relatively minor injuries where she was capable of continuing to work despite those impacts and injuries.
Further, I note that:
(a) the applicant’s evidence is that the injuries which are the subject of this claim were relatively minor, being “annoying” although they did not prevent her from continuing work, which she did despite those injuries, and
(b) whilst it is apparent that the applicant also experienced other injuries in the course of her employment with the respondent, which have been the subject of other proceedings in the Commission, there is no clear evidence before me regarding the timing of reports of those other injuries, nor any differences in the circumstances and severity of those other injuries in comparison to the injuries which are the subject of this claim.
On that basis, I accept the applicant’s explanation of why she did not report the subject injuries sustained during training and work with the respondent, effectively being that she perceived that it was inappropriate to report those relatively minor injuries where she was capable of continuing to work and did so.
Evidence in relation to not obtaining medical treatment for injuries
For the following reasons, I accept the applicant’s evidence regarding her failure to seek treatment from a medical practitioner or allied health practitioner for the injuries which are the subject of this claim:
(a) the applicant gave evidence that she did not seek medical treatment for the subject injuries because:
(i)from her experience and advice that she received, she understood that physiotherapist treated severe muscular injuries, tendon/ligament injuries and injuries that could not be self-treated and which could get worse;
(ii)she sought treatment only for injuries which seemed to be “sinister”;
(iii)she understood that physiotherapist and doctors could not fix the arthritic pain in her hands, knees and ankles;
(iv)she understood that the best way to fix those injuries was with rest, ice, elevation and pain killers, which she was able to self-administer;
(v)as a shift-worker, she jealously guarded her days off work;
(vi)in the circumstances, she did not see the point in spending time and money going to a physiotherapist or doctor, and
(b) the applicant’s evidence is subjective to the extent that it relates to her perception, understanding and state of mind at the relevant time;
(c) the applicant’s evidence is that the injuries which are the subject of this claim were relatively minor, being “annoying” although they did not prevent her from continuing work, which she did despite those injuries;
(d) there is no evidence that the applicant had any incapacity for work as a result of the subject injuries nor that she took any time off work for that reason;
(e) the various clinical records show that the applicant sought and received treatment for various other injuries between January 2010 and August 2024, mostly related to her shoulders, hips, jaw and neck, including L5/S1 disc bulge in 2022;
(f) I consider that it is logical and likely, and I accept, that those other injuries, were regarded by the applicant as more serious or “sinister” in comparison to the injuries which are the subject of the present claim;
(g) the applicant gave evidence that she underwent, and continues to undergo, ongoing self-treatment to manage pain in her right thumb, bilateral wrists, right knee and left ankle, which is stretch, massage and taking Nurofen and Panadol as required to manage the symptoms, and
(h) in the circumstances, I consider it understandable that the applicant did not seek treatment for the subject injuries from a medical practitioner or allied health practitioner, because she understood the subject injuries to be relatively minor injuries, she self-treated the injuries and where she was capable of continuing to work despite those injuries and did so.
On that basis, I accept the applicant’s explanation of why she did not seek nor receive treatment for the subject injuries sustained during training and work with the respondent, effectively being that: she perceived that the subject injuries were relatively minor injuries; she was capable of continuing to work and did so; she understood that any treatment of the subject injuries would be ineffective; she jealously guarded her time off work; she self-treated the subject injuries; she self-treated the injuries; and, in the circumstances, she did not see the point in spending time or money seeking treatment for the subject injuries.
The applicant’s absence from work since August 2022
The respondent’s counsel submitted that a relevant consideration is that the applicant has not undertaken any work since August 2022 however she has not explained nor given evidence as to any microtraumas that she has sustained nor how her conditions have worsened since August 2022 and her bringing the claim for workers compensation in
March 2025.It is not in dispute that the applicant ceased to work for the respondent in August 2022, as a result of a diagnosis of post-traumatic stress disorder.
The applicant has given evidence that she sustained the claimed injuries during her employment with the respondent, prior to ceasing to work for the respondent.
If the injuries which are the subject of the present claim were sustained during her employment as alleged by the applicant, then it is not necessary that the applicant’s injuries worsened between her ceasing work in August 2022 and her bringing the claim for workers compensation in March 2025.
Consideration of evidence and findings in relation to injury to the applicant’s right wrist and thumb, and left wrist
The applicant has given detailed evidence of various indivisible injuries or micro-trauma that she sustained to her bilateral wrists, hands and thumbs in the course of, and caused by, her training and work with the respondent. These included strain, twisting and hyperextension of her wrists and thumb during various training and work activities, and repetitive weapon handling and recoil strain and trauma. The applicant stated that her wrists and thumbs, particularly her right thumb, got progressively more arthritic and worse without any single moment of obvious injury. The applicant stated that she continues to pain, restrictions and impact to her daily life as a result of such injuries.
There is no radiological evidence of abnormality, injury, nor or any degenerative change, involving the applicant’s wrists or right thumb.
Dr Porteous recorded a history of injury to the applicant’s bilateral wrists and right thumb, which is generally consistent with the applicant’s evidence in that regard. Dr Porteous recorded that the applicant reported chronic pain at the base of both thumbs and the lateral wrists, which started in general duties and continued since, and pain in the base of the thumb up to 5/10 on the right and 6/10 on the left with any forceful or moderate or heavy activity, which can increase to 8/10. Dr Porteous recorded that the applicant reported using Nurofen most days for one of the claimed injuries. Dr Porteous reported that, on examination: the applicant’s wrists showed 50% extension right (2%) and 60% on the left (0%), 60 degrees flexion bilaterally (0%), 10 degrees radial deviation (2%) and 10 degrees ulnar deviation (4%) bilaterally, 8% UEI right, 6% UEI left; and in the thumb, there was tenderness in the carpometacarpal joints, and on the left thumb there was radial abduction of 40% (2%). On that basis, Dr Porteous diagnosed repetitive soft tissue injuries and strain injuries in both wrists, repetitive soft tissue injuries and strain injuries in both wrists and the carpometacarpal joints in the lateral wrist, and aggravation or exacerbation of underlying early degenerative change in both wrists and in the thumb carpometacarpal joint, caused by hard, heavy and repetitive stress and strain due to the nature and conditions of her employment in all of those joints, which was the substantial and main contributing factor to those injuries.
Dr Rimmer did not record any history of injury to the applicant’s bilateral wrists and right thumb. Dr Rimmer recorded that the applicant reported that she could not put pressure on her wrists, with the right being greater than the left, and that the right thumb was “fine”. Dr Rimmer recorded that the applicant did not require any form or oral analgesia or anti-inflammatories and that the applicant continued to do self-care and perform normal domestic duties. Dr Rimmer recorded that, on examination: the applicant’s wrists: were symmetrical in position; were nontender to firm palpation throughout; and had the following active range of motion: flexion 60°, right equals left; extension 60°, right equals left; ulnar deviation 30°, right equals left, radial deviation 20°, right equals left. Dr Rimmer stated that clinical examination was entirely normal. Dr Rimmer expressed the opinion that the applicant had “Overwhelmingly, abnormal illness behaviour for the purpose of personal financial gain”. On that basis, Dr Rimmer stated that there was no physical diagnosis.
The applicant stated that Dr Rimmer did not give her the opportunity to explain, in her own words, how the injuries to her wrists, thumb, knee and ankles came about. In any event Dr Rimmer did not record a history of injury to the applicant’s bilateral wrists and right thumb. Notably, Dr Rimmer reported that the applicant does not require any forms of oral analgesia or anti-inflammatories, which is inconsistent with the applicant’s evidence and the history reported by Dr Porteous.
The medical evidence is not clear-cut and there is some difficulty in resolving the difference in the medical evidence in this case.
Considering the evidence as a whole, I generally prefer and accept the evidence and opinion of Dr Porteous because:
(a) his opinion takes account of the applicant’s evidence, which I accept, of the extensive history of the nature and conditions of the applicant’s employment and the various indivisible injuries or micro-trauma that the applicant sustained during the course of her employment;
(b) his opinion takes account of the applicant’s evidence, which I accept, that she self-treated her injuries, particularly taking Nurofen on a regular basis;
(c) subject to my comment below, given the nature of the diagnoses made by Dr Porteous, it is not necessarily determinative that there were no relevant radiological findings;
(d) I do not accept the respondent’s submission that the opinion or Dr Porteous is not “clear” and that he was having a “bet each way” with alternative diagnoses of microtrauma or an aggravation of a pre-existing degenerative condition;
(e) to the contrary, Dr Porteous’ report appears to be a well-considered and careful analysis of relevant information and states with clarity his diagnoses and the basis for same;
(f) I do not accept the respondent’s submission that there was nothing to support Dr Porteous’ diagnoses apart from his acceptance of the applicant’s version of her work history because Dr Porteous’ opinion was also based on his examination of the applicant and the applicant’s reported ongoing symptoms and use of pain medication as required to manage her pain symptoms, and
(g) Dr Rimmer recorded similar symptoms reported by the applicant, with some exceptions. To the extent of any inconsistency, I prefer and accept the reported symptoms recorded by Dr Porteous because Dr Porteous took a generally comprehensive history relevant to those symptoms.
However, I do note that there is no evidence of any underlying early degenerative change in the applicant’s wrists and in the thumb carpometacarpal joint. For that reason, I do not accept that the applicant sustained an aggravation or exacerbation of any such pre-existing degenerative condition.
For all of the reasons stated above, I am satisfied that the applicant has discharged the onus of proof and I find that the applicant sustained injury to her bilateral wrists and right thumb in the course of her employment and to which the employment was a contributing factor, being:
(a) repetitive soft tissue injuries and strain injuries in both wrists, and
(b) repetitive soft tissue injuries and strain injuries in both wrists and the carpometacarpal joints in the lateral wrist.
Consideration of evidence and findings in relation to injury to the applicant’s right knee
The applicant has given detailed evidence of various indivisible injuries or micro-trauma that she sustained to her right knee in the course of, and caused by, her training and work with the respondent. These included various forcible twisting events and high impact events to her knee during her training and work for the respondent. The applicant stated that she experienced knee pain in the course of her duties, and right knee pain particularly during the 12 months of crime scene investigation and, thereafter, when she attended active crime scenes. The applicant stated that she continues to pain, restrictions and impact to her daily life as a result of such injuries.
There is no radiological evidence of abnormality, injury, nor or any degenerative change, involving the applicant’s knees.
Dr Porteous recorded a history of injury to the applicant’s knees, which is generally consistent with the applicant’s evidence in that regard. Dr Porteous recorded that the applicant reported experiencing pain in her knees ever since she undertook general policing duties and landed frequently on her knees, and now if she kneels or crouches the pain will be 6/10 on the right and 3 or 4/10 on the left, and the knee pain can occur when she feels unsteady on her ankles or slightly loses her stability in the ankles. Dr Porteous recorded that the applicant reported using Nurofen most days for one of the claimed injuries. Dr Porteous reported that, on examination, in the knees, the applicant had 0 degrees to 120 degrees flexion right, 0 degrees to 130 degrees left, they were stable, there was patella femoral pain on both knees with compression and there was crepitus (2%). On that basis, Dr Porteous diagnosed repetitive soft tissue injuries and strain injuries in both patellofemoral joints in the knees, and aggravation or exacerbation of underlying early degenerative change in both knees, caused by hard, heavy and repetitive stress and strain due to the nature and conditions of her employment in all of those joints, which was the substantial and main contributing factor to those injuries.
Dr Rimmer did not record any history of injury to the applicant’s knees. Dr Rimmer recorded that the applicant reported that the medial aspect of the right knee was sore and painful, however it was purely mechanical in nature and there was no clicking, swelling, locking nor instability. Dr Rimmer recorded that the applicant did not require any form or oral analgesia or anti-inflammatories and that the applicant continued to do self-care and perform normal domestic duties. Dr Rimmer recorded that, on examination, the applicant’s right knee: was symmetrical in alignment on standing, supine and quadriceps musculature; had normal gait; there was no effusion; there was no joint line tenderness; collateral and cruciate ligaments were intact; range of motion was 0 degrees to 130 degrees (right equals left) and pain free. Dr Rimmer stated that clinical examination was entirely normal. Dr Rimmer expressed the opinion that the applicant had “Overwhelmingly, abnormal illness behaviour for the purpose of personal financial gain”. On that basis, Dr Rimmer stated that there was no physical diagnosis.
The applicant stated that Dr Rimmer did not give her the opportunity to explain, in her own words, how the injuries to her wrists, thumb, knee and ankles came about. In any event Dr Rimmer did not record a history of injury to the applicant’s knees. Notably, Dr Rimmer reported that the applicant does not require any forms of oral analgesia or anti-inflammatories, which is inconsistent with the applicant’s evidence and the history reported by Dr Porteous.
The medical evidence is not clear-cut and there is some difficulty in resolving the difference in the medical evidence in this case.
Considering the evidence as a whole, I generally prefer and accept the evidence and opinion of Dr Porteous because:
(a) his opinion takes account of the applicant’s evidence, which I accept, of the extensive history of the nature and conditions of the applicant’s employment and the various indivisible injuries or micro-trauma that the applicant sustained during the course of her employment;
(b) his opinion takes account of the applicant’s evidence, which I accept, that she self-treated her injuries, particularly taking Nurofen on a regular basis;
(c) subject to my comment below, given the nature of the diagnoses made by Dr Porteous, it is not necessarily determinative that there were no relevant radiological findings;
(d) I do not accept the respondent’s submission that the opinion or Dr Porteous is not “clear” and that he was having a “bet each way” with alternative diagnoses of microtrauma or an aggravation of a pre-existing degenerative condition;
(e) to the contrary, Dr Porteous’ report appears to be a well-considered and careful analysis of relevant information and states with clarity his diagnoses and the basis for same;
(f) I do not accept the respondent’s submission that there was nothing to support
Dr Porteous’ diagnoses apart from his acceptance of the applicant’s version of her work history because Dr Porteous’ opinion was also based on his examination of the applicant and the applicant’s reported ongoing symptoms and use of pain medication as required to manage her pain symptoms, and(g) Dr Rimmer recorded similar symptoms reported by the applicant, with some exceptions. To the extent of any inconsistency, I prefer and accept the reported symptoms recorded by Dr Porteous because Dr Porteous took a generally comprehensive history relevant to those symptoms.
However, I do note that there is no evidence of any underlying early degenerative change in the applicant’s knees. For that reason, I do not accept that the applicant sustained an aggravation or exacerbation of any such pre-existing degenerative condition.
For all of the reasons stated above, I am satisfied that the applicant discharged the onus of proof and I find that the applicant sustained injury to her right knee in the course of her employment and to which the employment was a contributing factor, being:
(a) repetitive soft tissue injuries and strain injuries in the patellofemoral joint in the knee.
Consideration of evidence and findings in relation to injury to the applicant’s left ankle
The applicant has given detailed evidence of various indivisible injuries or micro-trauma that she sustained to her ankles in the course of, and caused by, her training and work with the respondent. These included trauma and twisting injuries to her ankles, and rolled ankles, whilst running, jumping, and falling and trying to secure footing on slippery, wet, uneven, broken and debris-riddled surfaces and terrain. The applicant stated that she experienced periodic ankle pain during those events and activities. The applicant stated that she continues to pain, restrictions and impact to her daily life as a result of such injuries.
There is no radiological evidence of abnormality, injury, nor or any degenerative change, involving the applicant’s ankles.
Dr Porteous recorded that the applicant reported having repeatedly stressed and strained the ankles and sprained them doing general duties in 2015 and walking on uneven ground. Dr Porteous recorded that the applicant reported that her ankles feel unsteady or unstable and she feels pain in the ankles when engaged in an activity that aggravates them, which she now avoids. Dr Porteous recorded that the applicant reported using Nurofen most days for one of the claimed injuries. Dr Porteous reported that, on examination, in the ankles, the applicant had full right ankle range of motion, in the left ankle the applicant had full movement except for an eversion on the left, and the applicant walked with a normal gait. On that basis, Dr Porteous diagnosed repetitive soft tissue injuries, chronic stress and strain injuries in the lateral ankle joints, caused by hard, heavy and repetitive stress and strain due to the nature and conditions of her employment in all of those joints, which was the substantial and main contributing factor to those injuries.
Dr Rimmer did not record any history of injury to the applicant’s ankles. Dr Rimmer recorded that the applicant reported that her ankles “give way”. Dr Rimmer recorded that the applicant did not require any form or oral analgesia or anti-inflammatories and that the applicant continued to do self-care and perform normal domestic duties. Dr Rimmer recorded that, on examination: the applicant’s ankles and feet were symmetrical on standing with no swelling nor discoloration; the applicant had normal gait, could tiptoe and heel weight bear without difficulty, was nontender to firm palpation throughout; the applicant had an active range of motion of plantar flexion 25° (right equals left), extension 15° (right equals left), inversion 25° (right equals left), eversion 15° (right equals left) and performed without any discomfort; and the neurovascular system in both feet was intact. Dr Rimmer stated that clinical examination was entirely normal. Dr Rimmer expressed the opinion that the applicant had “Overwhelmingly, abnormal illness behaviour for the purpose of personal financial gain”. On that basis, Dr Rimmer stated that there was no physical diagnosis.
The applicant stated that Dr Rimmer did not give her the opportunity to explain, in her own words, how the injuries to her wrists, thumb, knee and ankles came about. In any event Dr Rimmer did not record a history of injury to the applicant’s ankles. Notably, Dr Rimmer reported that the applicant does not require any forms of oral analgesia or anti-inflammatories, which is inconsistent with the applicant’s evidence and the history reported by Dr Porteous.
The medical evidence is not clear-cut and there is some difficulty in resolving the difference in the medical evidence in this case.
Considering the evidence as a whole, I generally prefer and accept the evidence and opinion of Dr Porteous because:
(a) his opinion takes account of the applicant’s evidence, which I accept, of the extensive history of the nature and conditions of the applicant’s employment and the various indivisible injuries or micro-trauma that the applicant sustained during the course of her employment;
(b) his opinion takes account of the applicant’s evidence, which I accept, that she self-treated her injuries, particularly taking Nurofen on a regular basis;
(c) subject to my comment below, given the nature of the diagnoses made by Dr Porteous, it is not necessarily determinative that there were no relevant radiological findings;
(d) I do not accept the respondent’s submission that the opinion or Dr Porteous is not “clear” and that he was having a “bet each way” with alternative diagnoses of microtrauma or an aggravation of a pre-existing degenerative condition;
(e) to the contrary, Dr Porteous’ report appears to be a well-considered and careful analysis of relevant information and states with clarity his diagnoses and the basis for same;
(f) I do not accept the respondent’s submission that there was nothing to support Dr Porteous’ diagnoses apart from his acceptance of the applicant’s version of her work history because Dr Porteous’ opinion was also based on his examination of the applicant and the applicant’s reported ongoing symptoms and use of pain medication as required to manage her pain symptoms, and
(g) Dr Rimmer recorded similar symptoms reported by the applicant, with some exceptions. To the extent of any inconsistency, I prefer and accept the reported symptoms recorded by Dr Porteous because Dr Porteous took a generally comprehensive history relevant to those symptoms.
However, I do note that there is no evidence of any underlying early degenerative change in the applicant’s ankles. For that reason, I do not accept that the applicant sustained an aggravation or exacerbation of any such pre-existing degenerative condition.
For all of the reasons stated above, I am satisfied that the applicant discharged the onus of proof and I find that the applicant sustained injury to her left ankle in the course of her employment and to which the employment was a contributing factor, being:
(a) chronic stress and strain injury in the lateral left ankle joint.
Findings in relation to injury
There is no evidence that incapacity has resulted from any of the claimed injuries. Accordingly, pursuant to s 15(1) of the 1987 Act, the date of injury is deemed to be the date of the claim.
Accordingly, for all of the reasons that I have set out above, I find on the balance of probability that:
(a) the applicant did sustain injury to her right wrist, right thumb, left wrist, right knee and left ankle as a result of the nature and conditions of her employment with the respondent, with a deemed date of injury of 3 March 2025, being a disease contracted by the applicant in the course of her employment and her employment was the main contributing factor to contracting the disease, pursuant to s 4(b)(i) of the 1987 Act, and
(b) the applicant did not sustain injury to her right wrist, right thumb, left wrist, right knee and left ankle as a result of the nature and conditions of her employment with the respondent, with a deemed date of injury of 3 March 2025, being an acceleration, acceleration, exacerbation and deterioration of a disease in the course of her employment and the employment was the main contributing factor to the acceleration, acceleration, exacerbation and deterioration, pursuant to
s 4(b)(ii) of the 1987 Act.
What is the extent and quantification of the applicant’s entitlement to payment of permanent impairment compensation pursuant to s 66 of the 1987 Act?
There is a dispute in relation to assessment of WPI.
Given my findings above, it is appropriate to refer the matter to the President for referral to a Medical Assessor for determination of WPI. The Medical Assessor should be provided with the following documents:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Claim for compensation for pain and suffering
In the circumstances, it is appropriate that, following the issue of the Medical Assessment Certificate, the matter will be listed for further conference before me in relation to the claim for compensation for pain and suffering.
Costs
In the circumstances, it is appropriate to make an order for costs.
SUMMARY
On that basis, I determine that:
(a) the applicant did sustain injury to her right wrist, right thumb, left wrist, right knee and left ankle as a result of the nature and conditions of her employment with the respondent, with a deemed date of injury of 3 March 2025, being a disease contracted by the applicant in the course of her employment and her employment was the main contributing factor to contracting the disease, pursuant to s 4(b)(i) of the 1987 Act, and
(b) the applicant did not sustain injury to her right wrist, right thumb, left wrist, right knee and left ankle as a result of the nature and conditions of her employment with the respondent, with a deemed date of injury of 3 March 2025, being an acceleration, acceleration, exacerbation and deterioration of a disease in the course of her employment and the employment was the main contributing factor to the acceleration, acceleration, exacerbation and deterioration, pursuant to
s 4(b)(ii) of the 1987 Act.On that basis, it is appropriate to make the following orders:
(a) the matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows:
Date of injury: 3 March 2025 (deemed);
Body parts:right upper extremity (wrist, thumb); left upper extremity (wrist); right lower extremity (knee); left lower extremity (ankle);
Method: WPI;
(b) the materials to be referred to the Medical Assessor are to include:
(i)the Application to Resolve a Dispute and all attachments, and
(ii)the Reply and all attachments;
(c) following issue of the Medical Assessment Certificate, the matter will be listed for further conference before Member Garner in relation to the claim for compensation for pain and suffering, and
(d) the respondent to pay the applicant’s costs as agreed or assessed.
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