Edress v Giovanni Faraone (t/as Sydney Commercial Ventilation)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Edress v Giovanni Faraone (t/as Sydney Commercial Ventilation) [2024] NSWPIC 144
APPLICANT:	Abdel Salam Ahmed Eltgani Edress
RESPONDENT:	Giovanni Faraone trading as Sydney Commercial Ventilation
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	25 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; weekly compensation claim by applicant who had sustained an injury as a result of exposure to caustic chemicals in the course of his employment with the respondent; sections 4 and 9A are not in issue, however the respondent contends the effects of the injury have ceased and the applicant has no entitlement to weekly compensation; Held – finding made that applicant’s medical evidence has failed to deal with pre-injury rhinitis and treatment; respondent’s medical evidence preferred; finding made that applicant’s injury has ceased.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent in relation to the claim for weekly compensation.

STATEMENT OF REASONS

BACKGROUND

The name of the respondent was amended to Giovanni Faraone trading as Sydney Commercial Ventilation.
Mr Edress was born in Sudan and studied law at Cairo El Neelin University and practiced as a barrister in Khartoum. In 2013 he migrated to Australia. He was employed by the respondent as a full time cleaner since November 2021. He used caustic chemicals for cleaning such as potassium hydroxide. He said the chemicals released fumes that burned his skin and caused respiratory irritation.
In his Application to Resolve a Dispute (ARD) the injury description is “exposure to caustic chemicals over a prolonged period of time led to occupational-induced chronic rhinosinusitis which is causing upper airway cough syndrome and chronic cough”. The deemed date of injury is 10 June 2022.
The claim for compensation made in the ARD is confined to weekly compensation from
10 August 2023 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act). However, the commencement date for the weekly payments claim was amended to 8 August 2023.
The respondent’s workers compensation insurer, Employers Mutual NSW Limited, has issued several declinature notices which I have summarised below. However, the respondent’s counsel at the outset of arbitration hearing confirmed that the issues now being relied upon are:
“(a) whether or not the applicant’s injury is ongoing, whether whatever that injury might be.
(b) If there is any ongoing injury, is there any incapacity for work?”
The pre-injury average weekly earnings (PIAWE) has been agreed at $1,340 per week as per the insurer’s calculation in the s 78 notice dated 27 April 2023.[1]
[1] At ARD p 33

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The arbitration hearing took place on 23 November 2023 in person. Mr Ross Goodridge, counsel, instructed by Mr Deng, solicitor, appeared on behalf of Mr Edress, who was in attendance. Mr Jarryd Malouf, counsel, instructed by Ms Sarah Magan, solicitor, and a representative from the insurer appeared for the respondent.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence. Counsel made oral submissions which have been sound recorded.

FINDINGS AND REASONS

Applicant’s statement

Mr Edress has provided statements dated 21 February 2023[2] and 21 September 2023 in which he gives the following evidence.
[2] Reply p 28.
He was employed by the respondent since November 2021 as a full time cleaner using caustic chemicals such as potassium hydroxide. He says the chemicals released fumes that burned his skin and caused respiratory irritation. He said he was only provided with a normal surgical mask, not the special mask required on the specifications sheet.
Mr Edress states that he has suffered from injuries to his respiratory system including chronic cough, dyspnea, breathlessness, red and itchy eyes, rhinosinusitis, friction on his sternum and rib cage, bronchospasm and chronic back, chest, rib and sternal pain.
He says he first noticed and reported his symptoms to Giovanni Faraone on 31 March 2022. He said he sought medical treatment including steroids, nasal sprays and Montelukast but his symptoms persisted and worsened and he stopped work on 10 June 2022. He says his symptoms are ongoing and he has tried, without long-term relief, Dymista, Nasonex, Symbicort, Prednisone, Montelukast and pain killers. He sets out his disabilities.
Mr Edress written resignation dated 10 June 2022 says he is healthy and the reason he is resigning is because he wants to be paid $300 per week more and the employer says he cannot afford that.[3]
[3] Reply p 33.
Mr Edress completed a Worker’s injury claim form, which is dated 13 July 2022.[4]
[4] ARD p 10.

Insurer’s notices

On 27 April 2023 the insurer made a work capacity assessment and advised Mr Edress’s weekly payments would reduce from 8 August 2023.[5] In the reasons for the decision section of the notice the insurer advises that they believe Mr Edress is currently able to work in suitable employment for eight hours per day, three days per week. They relied on the certificate of capacity of Dr Safwat Saba dated 20 April 2023 with this work capacity certification. Applying s 32A of the 1987 Act, the insurer advised, using the Prudence Rehab vocational assessment of 31 January 2023, that Mr Edress could work in the role of an aged and disability carer. The insurer also advised Dr Assem on 28 March 2023 endorsed this role as being suitable. The insurer advised that they therefore believed Mr Edress could earn $720 in suitable employment, based on $30 per hour. The insurer refers to the Prudence Rehab Labour Market Analysis on 3 April 2023 who contacted Sunnyfield to ascertain the requirements for the role of Support Worker and they replied that as the applicant already has a NDIS number and due to his skills he is a suitable candidate for that role.[6]
[5] ARD p 28.
[6] ARD p 33.
The same work capacity decision has the calculation of the PIAWE at $1,340. Then takes 80% of that as per s 37 of the 1987 Act and deducts $720 which the insurer says Mr Edress can earn in suitable employment to arrive at a weekly compensation entitlement of $352.
The insurer issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 10 August 2023 advising, based on the opinion of Professor Paul Thomas in report dated 23 May 2023, they disputed he suffered from a total or partial incapacity for work as required under s 33 of the 1987 Act and accordingly they dispute his entitlement to weekly benefits. They also dispute his entitlement to medical and related treatment asserting that they are not reasonably necessary as a result of an injury.[7] The insurer also advised that their position was that the effects of the workplace aggravation had ceased.
[7] ARD p 20
On 28 August 2023 the insurer completed a review of the decision and maintained their declinature.[8] The insurer advised that it considered Mr Edress’s current symptoms to be due to pre-existing conditions and not to his employment.

Medical evidence

[8] ARD p 24.

Prior to commencement of employment

On 3 June 2020 Dr Piyush Sinha, a general practitioner from the Strathfield Plaza Family Medical Practice, wrote in his clinical progress notes that the applicant had “seasonal rhinitis, intermittent nasal congestion”.[9] On 19 June 2020 there was another surgery consultation with the doctor recording “ongoing nasal/sinus congestion, limited response to Nasonex/Dymista/promethazine”. Panafcort and Phenergan tablets were prescribed and Dymista nasal spray. On 14 July 2020 advice was given not to frequently use oral corticosteroids and a trial of Dymista was recommended.
[9] ARD p 143.
On 21 August 2020 a chest X-ray was performed with the history dyspnoea, wheezing, cough at the request of Dr Sinha. The radiologist concluded “mild peribronchial cuffing in keeping with the potential inflammatory process such as asthma”.[10]
[10] ARD p 149.
On 4 December 2020 Dr Sinha discussed with the applicant the options for his perennial rhinitis.[11]
[11] ARD p 144.
On 13 April 2021 the applicant saw Dr Sinha with a persistent dry cough/wheeze. The doctor queried if he had mild asthma and a trial of Symbicort Turbuhaler was prescribed.
On 29 April 2021 saw another doctor at the practice about cough/sore throat.
On 16 August 2021 Dr Sinha issued a non- workcover certificate stating that the applicant suffers from perennial rhinitis, mild asthma and he utilises regular corticosteroid nasal sprays and oral metered dose inhaler. He is medically advised to avoid working in dusty, chemical or extreme cold environments.[12] His clinical note for this consultation has this information recorded.[13]
[12] ARD p 62.
[13] ARD p 144.

Post commencement of employment

On 5 April 2022 a CT scan of the chest was performed,[14] which Dr Dmitri said was essentially normal.[15]
[14] ARD p 42.
[15] ARD p 54.
On 20 May 2022 Dr Sinha records that the applicant is travelling to Sudan and requests prescriptions. The history of asthma and perennial rhinitis is recorded stating they were currently stable.[16]
[16] ARD p 145.
On 15 July 2022 Dr Assem issued a report stating that the applicant first presented to him on 31 March 2022 complaining of symptoms from working with caustic chemicals.[17] The doctor says the applicant did not want to pursue a workers compensation claim and he sets out his symptoms and treatments they have tried. He also refers to the applicant having work related stress including due to his boss not paying superannuation and tax.
[17] ARD p 61.
On 19 July 2022 an ultrasound was performed of Mr Edress’s sternum at the request of
[18] ARD p 36.
Dr Assem.[18] Osteoarthritis was suggested and there was a bony irregularity at the lower sternum which the radiologist said may correspond with the presumed chronic ovoid defect within the sternum seen on CT scan. It was noted that Mr Edress was focally tender.
On 20 September 2022 the applicant attended Dr Sinha with ongoing nasal congestion, rhinorrhoea and dry cough. The doctor noted he was seen by “LMO ? occupational aetiological factors ? reactive pneumonitis. Pt awaiting specialist r v”. The doctor recorded that the applicant uses hot water and caustic chemicals to clean ventilation equipment.[19]
[19] ARD p 146.
On 7 October 2022 Dr Assem issued a report.[20] The doctor states that the applicant first presented to him about the work injury on 31 March 2022 working with strong chemical which have caused him significant respiratory symptoms, allergic symptoms and secondary chest and back pain. The doctor also details psychological symptoms due to finding out he had not been paid superannuation or tax. It is noted that the applicant has been diagnosed with an adjustment disorder with depressed mood.
[20] ARD p 60.
On 19 October 2022 Dr Subramanyam, from the Lung and Sleep Clinic, reported to
[21] ARD p 67 and Reply p 36.
[22] ARD p 126.
Dr Assem.[21] The doctor noted that the applicant reported having a chronic cough over the prior 12 months. The applicant said his symptoms started after working with caustic chemicals for eight months. He described significant fume exposures with associated eye congestion, rhinorrhoea and cough. The doctor took the history that despite being off work for four months the applicant has persistent issues with cough, nasal congestion and rhinorrhoea. However, the doctor noted he has a relatively preserved exercise tolerance with minimal dyspnoea. Dr Subramanyam states that the contributors to his cough may include acid reflux. It is noted he has snoring and interrupted sleep. Dr Subramanyam found normal function and radiology. The doctor suggested some further tests but at that stage said the cough appears to be related to upper airway sensitisation due to reflux, rhinitis and possible sleep disordered breathing. Spirometry test was performed and pulmonary functional analysis.[22]
On 20 October 2022 a CT scan of the facial bones and paranasal sinus was performed with the radiologist reporting “mucosal thickening of the frontal, sphenoid, ethmoid and bilateral maxillary sinus mucosal polyps suggestive of pansinusitis”.[23]
[23] Reply p 41.
Various Certificates of Capacity were issued by Dr Assem and other doctors at his practice. The diagnosis included,
“significant chronic cough, dyspnea, rhinosinusitis, rhinnorea secondary to working with chemicals…secondary back and chest pain from significant coughing. Work related stress & Adjustment disorder with depressed mood…issue with boss including refusal to pay his superannuation, tax…many arguments related to this…reports bullying and mistreatment in the workplace…Since has low mood would like to see a psychologist.”
On 1,[24] 13[25] and 27 September 2022,[26] 7 October 2022,[27] 4 November 2022[28] and
[24] Reply p 88 issued by Dr Assem.
[25] Reply p 84 issued by Dr Assem.
[26] Reply p 81 issued by Dr Assem.
[27] Reply p 77 issued by Dr Assem.
[28] Reply p 72 Issued by Dr Ara.
[29] Reply p 66.
2 December 2022 the certificates all state that the applicant had no current work capacity.[29]
On 11 November 2022 various provocation tests were performed including Mannitol[30]
[30] ARD p 118.
On 31 January 2023 Prudence Rehab issued a Vocational Assessment Report.[31]
[31] ARD p 71.
On 22 February 2023 the applicant was certified fit for six hours per day, three days per week.[32]
[32] Reply p 55.
On 14 March 2023 a CT scan was performed of the applicant’s sternum and sternoclavicular joint.[33] The radiologist concluded:
“Maximal discomfort corresponds to manubriosternal articulation which does show
[33] Reply p 39.
arthropathy. Given the symptomatology after coughing, synovitis within the manubriosternal articulation on the background of underlying arthropathy is a consideration exacerbated by the coughing. This would be best assessed with MRI. No fracture is noted.”
On 20 March 2023[34] and 20 April 2023 Dr Safwat Saba, general practitioner from Lakemba, issued Certificates of Capacity finding the applicant had capacity to work eight hour per day three days per week.[35]
[34] Reply p 50.
[35] Reply p 46.
On 28 March 2023 Dr Assem signed a form which set out the vocational options of a delivery driver, truck driver, aged or disabled carer which the doctor approved, but he did not approve the option of a forklift driver due to the environment being dusty and having irritants.[36]
[36] ARD p 139.
On 27 April 1023 Dr Ibrahim, sports physician, reported to Dr Assem.[37] He has a history that Mr Edress has had pain in his chest for eight months and that he developed a gradual onset of chest pain which had become worse with coughing and sneezing. The doctor advises that a CT scan dated 14 March indicated degenerative changes in the manubriosternal joint with evidence of ossification over the joint. On examination he was moderately tender over the joint. Dr Ibrahim was unsure which treatment to adopt and recommended a review with a cardiothoracic surgeon.
[37] ARD p 38 and Reply p 35.
On 10 May 2023 Dr Haque, respiratory and sleep physician, reported to Dr Assem.[38] Unfortunately, only page 1 of this report is in the ARD and in the Reply. Dr Hague says he suspects that the applicant’s rhinitis and chronic bronchitis is from working with chemicals including potassium hydroxide. The doctor says there was no adequate personal protection equipment at work and the applicant worked in an enclosed space with minimal ventilation and large vats of solvents. The doctor diagnosed that the applicant’s chest pain sounds pleuritic and hypersensitivity pneumonitis and thromboembolic disease as differentials. He also raised the possibility of pleurisy or subclinical rib fractures from coughing. However, as page 2 of the report is missing it is difficult to be sure of any of the doctor’s conclusions in this report.
[38] ARD p 37 and Reply p 34.
On 23 May 2023 Professor Paul Thomas, respiratory and sleep physician, provided the insurer with a report.[39] The doctor diagnosed that Mr Edress has a chronic cough due to paranasal sinusitis and atopic rhinitis, gastro-oesophageal reflux disease and more likely than not it was exacerbated by exposure to potassium hydroxide.
[39] Reply p 19.
He states the stimulus is no longer present, referring to the potassium hydroxide. He adds in answer to question 7, that Mr Edress has an underlying atopic tendency with panparanasal sinusitis with post-nasal drip and this is the principal cause of his cough but this is not related to the alleged injury.
In terms of work capacity Professor Thomas found he would be unrestricted in terms of hours, capabilities and there are no restrictions on his activities. He noted that he had been a barrister in Khartoum and reasoned he could therefore do administrative work, assuming his English is to a suitable standard. He said he could do physical work.
On 16 June 2023 Dr Dimitri provided a medico-legal report for the applicant.[40] He recites the history of the applicant’s work environment and testing that he has undergone. He has a history that prior to this work he had no health problems. On examination he found that the applicant was not short of breath and did not cough excessively. His chest was clear and saturations normal. The rhinoscopy showed evidence of significant rhinitis. There was tenderness over the manubriosternal joint and sternocostal joint.
[40] ARD p 53.
Dr Dimitri’s diagnosis is that the applicant has occupational- induced chronic rhinitis due to exposure to caustic chemical, causing an upper airway cough syndrome and a chronic cough. He also says that the applicant has manubriosternal joint arthritis and manubriosternal-chondral articulation arthritis caused by carrying heavy loads in the course of his job without the aid of proper lifting equipment. In terms of work capacity the doctor said he found it difficult to advise his past, present and future work capacity as he is not currently at maximum medical improvement.
On 16 June 2023 Dr Safwat Saba issued a Certificate of Capacity finding the applicant had no current work capacity for any employment covering the next month.[41]
[41] Reply p 43.
On 6 October 2023 Professor Thomas provided a supplementary report.[42] He reviewed the report of Dr Dimitri dated 16 June 2023 and says he agrees the applicant has chronic rhinosinusitis and that is contributing to his symptoms of cough. But he states he does not agree with Dr Dmitri in terms of causation. Professor Thomas states:
“it is my opinion that he has pre-existing allergic rhinosinusitis which may have been exacerbated by exposure to potassium hydroxide and other cleaning materials. The exposure has now ceased and the remaining inflammation would more likely than not be associated with his atopic disease.”
[42] Reply p 16.
Professor Thomas gives the reasons for his opinion by explaining that exposure to caustic chemicals such as potassium hydroxide would not be associated with sensitisation of an atopic nature common to aeroallergens. He said the applicant’s condition is atopic which is secondary to a genetic tendency and he has sensitisation to common aeroallergens. He states exposure to potassium hydroxide will cause mucosal irritation and can exacerbate any pre-existing upper airway inflammation.

Determination

Whether the applicant’s injury is ongoing?

The respondent bases its approach on Professor Thomas’s opinion that the applicant has pre-existing allergic rhinosinusitis which may have been exacerbated by exposure to potassium hydroxide. Also that the applicant’s condition is atopic which is secondary to a genetic tendency. He states exposure to potassium hydroxide will cause mucosal irritation and can exacerbate any pre-existing upper airway inflammation. Professor Thomas advises that the exposure has ceased and the remaining inflammation would more likely than not be associated with his atopic disease.
Mr Goodridge for the applicant submitted that there is no evidence to support Professor Thomas’s opinion that the applicant has an atopic pre-disposition. He submits that the applicant developed the conditions when working. Mr Goodridge submitted that it is important to appreciate that the pre-existing condition is a susceptibility.
However, the records of Dr Sinha show that the applicant, well before he started work for the respondent, suffered from perennial rhinitis, mild asthma and was using regular corticosteroid nasal sprays. He also had been prescribed Nasonex/Dymista/promethazine, Panafcort and Phenergan tablets and a Symbicort Turbuhaler. He consulted Dr Sinha consultations in June 2020 through to 16 August 2021. The applicant started work for the respondent in November 2021.
Mr Goodridge submits that Professor Thomas accepts there was an injury which would come within s 4(b)(ii) of the 1987 Act whereas Dr Subramanyam says the entire cause of the applicant’s conditions are due to his work. He submits that Professor Thomas has misunderstood the law. He also submits that Dr Dimitri holds the view that the applicant has occupationally induced chronic rhinosinusitis. Mr Goodridge did refer to Dr Dimitri’s history that “prior to this, he was healthy with no other health problems”. I note that the doctor also states in point 6 of the report that he was asymptomatic before he started the work.
Clearly Dr Dimitri was unaware of Dr Sinha’s records. I find it is very significant that the applicant had been treated for perennial rhinitis and mild asthma well before he started work for the respondent including on 16 August 2021, only three months before he started the work. Dr Subramanyam also has the history that his symptoms started after working with caustic chemicals. The doctor also does not seem aware of the pre-employment medical history as revealed in Dr Sinha’s notes.
Mr Goodridge submitted that Professor Thomas does not consider that an aggravation of a genetic predisposition could be something that is ongoing. He submits that nowhere in Professor Thomas’s histories does he assert there were any symptoms prior to the exposure at work. Mr Goodridge in his submissions in chief did not refer to Dr Sinha’s records and certificate of 16 August 2021 which are in the applicant’s ARD.
Mr Malouf for the respondent drew attention to the applicant’s statements failing to mention his previous symptoms and stating he first noticed his symptoms on 31 March 2022, which was five months after he started work. He also pointed to the applicant’s answers to various questions in his first statement, when asked if there was something else that could have led or contributed to the current injury, he writes “nothing at all”. Mr Malouf submits that no weight can be given to Dr Dimitri’s reports because he did not know about the prior history. He submitted this was a “fundamental basis” upon which Dr Dimitri has provided his opinion, that the applicant was asymptomatic before he commenced this work.
Mr Malouf also submitted that in addition to the medical records occurring before his employment with the respondent, when the applicant attended Dr Sinha in May 2022 he did not advise Dr Sinha of any work causes for his symptoms. I am not as concerned about this omission given the applicant did tell Dr Assem on 31 March 2022.
Dr Assem shows no awareness that the applicant had rhinitis and a cough before he started work for the respondent nor that he was treated with significantly similar treatment regime than in the past.
Mr Malouf also submitted that the applicant’s resignation says he has no health problems. I place no particular weight on this given the applicant has said he had issues with his boss about not paying superannuation and tax so he could have been motivated to downplay the situation when he resigned. I cannot infer this, to do so would be speculation on my part. However, I consider the more pertinent evidence is from Dr Sinha.
Mr Malouf’s submission that the applicant has not discharged his onus of proof to establish that the applicant’s work related injury is ongoing is well founded. I find I am unable to rely on the opinions of Dr Dimitri, Dr Subramanyam and Dr Assem when such highly relevant medical treatment in 2020 and 2021 has not been considered by them.
I simply do not know what those doctors’ opinions would have been about the duration of symptoms in light of the issues that the applicant had before his employment.
Mr Goodridge was critical of Professor Thomas’s opinion. However, I find he has given a carefully reasoned opinion for instance he says that the blood tests provided show elevated level of IgE and he had a positive specific IgE to house dust mite, indicative of atopy. In his supplementary report he explains that the applicant is atopic which he says is secondary to a genetic tendency and he has sensitisation to common aeroallergens. He says the exposure to caustic chemicals will cause mucosal irritation and can exacerbate any pre-existing upper airway irritation. The records of Dr Sinha lend support to Professor Thomas’s opinion that the applicant is atopic and he had pre-existing allergic rhinosinusitis. Professor Thomas is the only doctor to consider that he had a pre-existing condition. He offers the opinion that the exacerbation by exposure to the potassium hydroxide and other cleaning material has ceased because he says the exposure has ceased. He says any remaining inflammation is more likely than not associated with his atopic disease. I prefer Professor Thomas’s opinions to that of Dr Dimitri, Dr Subramanyam and Dr Assem.
For these reasons, I find an award for the respondent in relation to the claim for weekly compensation.

[2024] NSWPIC 144

25 March 2024