Gardyne v Med-X Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gardyne v Med-X Pty Ltd [2024] NSWPIC 421
APPLICANT:	Andrew Hunter Gardyne
RESPONDENT:	Med-X Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	6 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 4; whether applicant suffered injury in the form of adult onset asthma and vocal cord dysfunction due to exposure to bushfire smoke in the course of employment; claim for medical and treatment expenses; Kooragang Cement Pty Ltd v Bates, AV v AW and Murphy v Allity Management Services Pty Ltd considered and applied; Held – applicant has sustained injury in the form of vocal cord dysfunction and adult onset asthma as a result of exposure to smoke from bushfires in the course of his employment with the respondent; respondent to pay the applicant’s reasonably necessary medical and related expenses as a result of injury.
DETERMINATIONS MADE:	The Commission determines: 1. The claim in the Application to Resolve a Dispute for medical, hospital or related expenses is amended to a claim for a general order pursuant to s 60 of the Workers Compensation Act 1987. 2. That the applicant has sustained injury in the form of vocal cord dysfunction and adult onset asthma as a result of exposure to smoke from bushfires in the course of his employment with the respondent with a deemed date of injury of 7 November 2019. 3. Pursuant to s 60 of the Workers Compensation Act 1987 the respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of injury deemed to have occurred on 7 November 2019.

STATEMENT OF REASONS

BACKGROUND

At all relevant times Mr Andrew Gardyne, the applicant was employed by Med-X Pty Ltd, the respondent, as a driver and collector of clinical waste.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he alleges he sustained injury on the deemed date of 7 November 2019. The applicant alleges that in the course of his employment with the respondent from August 2019 to November 2019 he travelled through smoke laden bush fire areas throughout Coffs Harbour to North and South of Sydney including passing Newcastle and the Central Coast, which had low air quality index. The applicant alleges that as a result of the exposure to bush fire smoke he developed asthma and vocal cord dysfunction.
The applicant claims medical, hospital and related treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    the respondent disputes that the applicant has sustained injury as alleged;
(b)    the respondent disputes that the applicant’s employment was a substantial contributing factor to any alleged injury;
(c)    the respondent disputes that the applicant’s employment was the main contributing factor to the contraction, aggravation, acceleration and/or deterioration of a disease, and
(d)    the respondent disputes that the claimed treatment is/was reasonably necessary as a result of an injury.
The respondent had raised disputes pursuant to ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) but withdrew those disputes at the commencement of the arbitration hearing.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
1 July 2024. Mr Lachlan Robison, counsel, instructed by Mr George Staninovski, solicitor, appeared for the applicant, who was present. Mr Daniel Stiles, counsel, appeared for the respondent, instructed by Mr Scott Murray, solicitor. The proceedings were conducted via MS Teams. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.

Oral evidence

There were no applications made to adduce oral evidence.

FINDINGS AND REASONS

At the commencement of the arbitration hearing the applicant sought leave to amend the Application to Resolve a Dispute to claim a general order for medical and treatment expenses pursuant to s 60 of the 1987 Act. The applicant had claimed in respect to past treatment expenses $1,155.59 in respect to accounts and receipts attached to the Application to Resolve a Dispute. In respect to future treatment expenses the applicant had claimed $3,650 in respect to speech therapy. The amendment was opposed by the respondent.
In the applicant’s submission the amount claimed for past medical expenses is unlikely to be correct and to limit the claim to the amount claimed, if it does not reflect the reality, would not do justice between the parties.
In the respondent’s submission the findings on liability will deal with the entitlement to medical and treatment expenses generally but the respondent has prepared to meet the claim as particularised with the accounts and receipts attached to the Application to Resolve a Dispute.
I grant the amendment sought by the applicant.
The respondent has totally denied liability for medical and treatment expenses. A determination that fails to deal with the true extent of the dispute is not in the interest of justice or in the parties’ interests. The amendment does not cause any prejudice to the respondent as any claim for payment of medical or treatment expenses under a general order is still contingent on the treatment being reasonably necessary as a result of the injury.

Injury

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act.
Section 4(a) of the 1987 Act defines ‘injury’ to mean personal injury arising out of or in the course of employment. Pursuant to s 4(b) injury relevantly includes a ‘disease injury’ which means:
(a) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(b) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.

The applicant bears the onus of proving injury on the balance of probabilities.

Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
In respect to ‘disease injury’ the test of ‘main contributing factor’ involves a consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor: AV v AW [2020] NSWWCCPD 9. In a matter involving s 4(b)(ii), an “aggravation, acceleration, exacerbation or deterioration” of a disease, the issue is whether employment was the main contributing factor ‘to the aggravation, acceleration, exacerbation or deterioration of that disease’ and not to the overall pathology or the overall disease process: Ariton Mitic v Rail Corporation of NSW (Matter No 008497/2013 8 April 2014) (Mitic).
For the following reasons I accept and find that the applicant was exposed to smoke from bushfires in the course of his employment with the respondent between August and November 2019 and that as a result of that exposure he developed respiratory symptoms.
It is the applicant’s evidence that he worked an average of 30 to 36 hours per week for the respondent. His work duties included the collection of clinical waste and sharps and the delivery of new product to Red Cross, private and public hospitals, medical centres, aged care facilities, tattooists, dentists, libraries, vets, pharmacies and public sharp disposal bins as directed by the respondent. This included the collection of heavy bins weighing up to 150kg.
It is the applicant’s evidence that he was required to travel long distances up to 700km per day driving one of the respondent’s purpose built trucks.
It is the applicant’s evidence that between August and November 2019 he spent three months travelling for work through smoke laden bushfire areas and that during that time, he had to regularly plan alternate routes around closed roads and fires.
It is the applicant’s evidence that from approximately August 2019 onwards he would often have workdays where he would have to be in a smoky environment up to eight to nine hours a day working for the respondent.
It is the applicant’s evidence that the areas that he travelled in and through for work during that three month period included Coffs Harbour to the north, down to Sydney in the south and included Newcastle and the NSW Central Coast as well as travelling weekly to the Tamworth and Armidale regions across to Coffs Harbour and down to the Taree area.
The applicant has served evidence in respect to air quality which is not of any great assistance. There is insufficient evidence to identify the location of the applicant from day to day in order to assess whether the area in which he would have been located on most days was subject to poor air quality conditions. Much of the evidence also postdates the applicant’s cessation of work duties with the respondent and is therefore of little relevance. However, it is the applicant’s evidence that he was exposed to smoke from bushfires in the course of his employment from August to November 2019 and there is no evidence from the respondent disputing the applicant’s evidence and there are no submissions by the respondent as to why the applicant’s evidence should not be accepted. I therefore accept the applicant’s evidence that from August to November 2019 he was, in the course of his employment, exposed to smoke from bushfires.
It is the applicant’s evidence that the truck provided by the respondent had either an unfiltered cabin or if there was a filter that it did not appear to be working. The applicant’s evidence as to the status of the air conditioning on the truck which he drove is unchallenged. There is no evidence from the respondent as to the nature of the air conditioning on the truck which the applicant drove.
It is also the applicant’s evidence that his work required intermittent outside air exposure combined with physical effort whilst performing his duties.
It is the applicant’s evidence that he had not suffered from breathing issues prior to August 2019 and the clinical records do not provide any evidence of any prior respiratory complaints.
It is the applicant’s evidence that during this period he found himself becoming more and more wheezy with a cough and shortness of breath and that from approximately late August to early September 2019 his partner, who is a general practitioner (GP), advised him to use a Ventolin inhaler which he had not previously used.
It is the evidence of the applicant’s partner, Helen Seligmann, a retired GP, that she has been the applicant’s partner since January 2014 and that she had not observed the applicant to have symptoms suggestive of asthma or allergies prior to July 2019.
It is the evidence of Ms Seligmann that around July/August 2019 the applicant began to mention to her that he had shortness of breath, coughing and hoarseness whilst travelling through the bushfires in Northern NSW for work. He complained that the cabin of the truck was often full of smoke and that he did not believe that it had a working air filter. It is the evidence of Ms Seligmann that she suggested to the applicant that he trial a Ventolin inhaler that she carried in her emergency bag.
It is the evidence of Ms Seligmann that she travelled to New Zealand to work as a GP locum between September and November 2019 and that during their nightly phone calls the applicant frequently mentioned that he was having respiratory difficulties while driving through the bushfires. It is Ms Seligmann’s evidence that she tried to persuade the applicant to see a GP in this regard, and talked about the possibility that it was a workers compensation problem. She also encouraged the applicant to take the Ventolin inhaler with him.
It is the applicant’s evidence that on Tuesday 8 October 2019 during a dust storm in Tamworth and on top of a day’s bushfire smoke exposure, he became acutely short of breath and wheezy and was unable to stay overnight in Tamworth, where he normally stayed when on a New England run. Instead, he continued to drive to Newcastle from Tamworth arriving there at 10:30pm that same night. It is the applicant’s evidence that during that drive, because he felt so unwell, he contacted his partner in New Zealand by telephone and she stayed with him on the telephone throughout that journey as she was worried about his state of health.
It is the applicant’s evidence that on 29 October 2019 he became severely short of breath whilst at Forster during the Fallford/Darawank bush fires and drove south to Newcastle to get away from the poor air quality. The applicant estimates that on that day he was in an intense smoky environment for three to four hours carrying out his duties for the insured in the Taree/Forster areas.
It is the evidence of Ms Seligmann that she recalls several separate occasions when the applicant called her in distress, struggling to breathe and audibly wheezing over the phone. Sometimes he was hoarse and struggled to speak. In particular, Ms Seligmann recalls that the applicant phoned and informed her that he was struggling on one occasion in Port Macquarie, on another occasion on 8 October 2019 at Armidale/Tamworth and on
7 November 2019 the day before a bushfire at their home.
It is the evidence of Ms Seligmann that on 8 October 2019 and on 7 November 2019 she stayed on the phone with the applicant for hours, until he reached his destination, to make sure that he remained safe.
It is the applicant’s evidence that during this time he had ongoing conversations with Sean Christie (former transport manager and business owner and his former direct supervisor) and Aaron Whitton (the respondent’s transport manager and the applicant’s direct supervisor) about how the smoke was affecting him in his role. The applicant concedes that he never made a formal written complaint to the insured however it is his evidence that the insured was well aware of his situation and the fact that he felt compromised as to his respiratory health.
There is no evidence from Mr Sean Christie or Mr Aaron Whitton disputing the applicant’s evidence that he reported to them how the smoke was affecting him. There is some indication in the dispute notices issued on behalf of the respondent that a factual investigation was undertaken by Quantumcorp on behalf of the respondent however the only document in evidence from that investigation would appear to be a statement by the applicant dated 17 December 2019.
It is the applicant’s evidence that during a four month period his partner was overseas from the end of September until approximately mid November 2019 and whilst she was away in New Zealand he spoke to her by phone on Facetime.
It is the applicant’s evidence that on Thursday 7 November 2019 whilst travelling for work he was notified by a neighbour that the local bushfire had reached the property next door to his and that his residence was under threat.
It is the applicant’s evidence that he completed that day’s run for the respondent and then travelled back to his home arriving at 4:30am on 8 November 2019.
It is the applicant’s evidence that on his return home he slept for a couple of hours and then prepared and defended his home against the bushfire. In order to prepare to fight the fire he wore a P2 face mask and goggles. It is the applicant’s evidence that he successfully defended his home that day over a period of approximately four hours from around 11:00am to 3:30pm.
The applicant last performed work duties for the respondent on 7/8 November 2019.
It is the applicant’s evidence that as a result of his condition deteriorating on
14 November 2019, he presented to the Emergency Department at the Manning Base Hospital in Taree to seek medical assistance. It is the applicant’s evidence that at the time he was struggling to breath and had tightness across his chest which was similar to the symptoms that he had experienced on 8 October 2019 when he was in Tamworth.
The Manning Hospital Emergency Department Triage Notes record that the applicant presented to the hospital on 14 November 2019 with a cough and shortness of breath which had been present since the previous night. The notes record that the applicant wore a mask and goggles when fighting fires, that the applicant planned to avoid smoke and that there was no history of asthma/COPD. I take COPD to be an abbreviation for chronic obstructive pulmonary disease.
The Discharge Referral of the Manning Base Hospital completed on 14 November 2019 records in the abbreviated emergency department attendance details that the applicant presented post inhalation of smoke since “last Thursday” fighting fire at home.
The discharge referral records that the applicant had been fighting fires at his home since the previous Thursday and had felt difficulty breathing “since tonight”. The discharge referral notes that the applicant had some improvement with Ventolin at home. The discharge referral otherwise records the applicant as “well” with no recent sickness.
In the applicant’s submission, which I accept, the clinical records from the Manning Hospital need to be considered in the context in which they were created. That they were created in the context of providing treatment to the applicant as a patient rather than for the determination of causation yet alone liability for an injury. In the applicant’s submission the immediate need for the applicant’s attendance at the hospital is a separate question from the development of an underlying disease injury.
I am of the view that the clinical notes of the Manning Hospital cannot be considered in isolation but rather need to be considered both in the context in which the notes were created and in concert with the other evidence.
The applicant’s attendance on the Manning Base Hospital on 14 November 2019 was his first attendance on a medical practitioner other than his partner, Ms Seligmann, for his respiratory symptoms.
The applicant had attended on his GP’s, Dr Casper Badenhorst on 12 August 2019,
Dr Trevor Hurlow on 9 September 2019 and again on Dr Badenhorst on 20 September 2019 without there being any complaint recorded of respiratory symptoms. There is no evidence from the applicant that he sought any treatment for respiratory symptoms from any other doctor other than his partner prior to 14 November 2019.
On 17 November 2019 the applicant did attend on Dr Pieter Erasmus. The clinical note of the attendance records a history of exposure to smoke from August 2019 in the course of his employment, that the applicant had defended his property from a bushfire and that his chest symptoms progressively worsened with the applicant attending hospital.
On 25 November 2019 the applicant consulted Dr Hurlow at which time his complaints included coughing causing breathlessness with it being noted that air pollution was high.
The applicant again attended on Dr Hurlow on 16 December 2019 complaining of ongoing chest tightness and breathlessness worsening since August.

The applicant’s evidence, the evidence of the applicant’s partner and the clinical records all support that the applicant suffered from no prior respiratory complaints or conditions.
It is the applicant’s evidence that he developed respiratory symptoms from about August 2019 with wheezing, coughing, shortness of breath and a hoarse voice. The applicant’s evidence is supported and corroborated by the evidence of his partner, Ms Seligmann.
It is the applicant’s evidence that during this period he had ongoing conversations with his supervisors at the respondent, Mr Sean Christie and Mr Aaron Whitton, in respect to the health issues and difficulties he was having. There is no evidence from Mr Christie and
Mr Whitton disputing the applicant’s evidence.
Whilst the applicant did not attend on a medical practice or hospital for treatment of his respiratory condition until 14 November 2019 after fighting the bushfire which had invaded his property on 8 November 2019 the evidence supports that the applicant’s respiratory symptoms were already present and had been present for some time prior to fighting the fire.
Whilst the applicant had not previously attended on a medical practice or hospital for treatment of his respiratory condition prior to 14 November 2019 he had received some treatment from his GP partner, Ms Seligmann, who had recommended and supplied to him Ventolin. Of note the clinical records of the Manning Base Hospital for 14 November 2019 records that the applicant had been using Ventolin at home with some positive effect prior to presenting to the hospital.
Whilst the applicant did attend on Dr Badenhorst on 12 August 2019, Dr Hurlow on
9 September 2019 and again on Dr Badenhorst on 20 September 2019 without there being any complaint recorded of respiratory symptoms these attendances were relatively early in the development of the symptoms and the applicant had consulted his partner and was provided with Ventolin. These attendances are also prior to the more significant incidents of respiratory distress that occurred on the applicant’s evidence on 8 October and 29 October. When the applicant sees Dr Erasmus on 17 November 2019 he provides a history of exposure to smoke since August 2019.
On 3 January 2020 Dr Peter Braude, consultant physician, reported to the respondent.
Dr Braude recorded a history that about six months prior to reporting, the applicant had noticed dyspnoea on exertion particularly on walking up hills and on pulling and loading objects which he did as a transport truck driver. The applicant had noticed the same symptoms when exposed to a lot of passive smoke particularly in the previous couple of months including whilst driving his truck when some smoke got into the cabin. He had noticed a cough on exertion with occasional wheezing and he had used a Ventolin puffer which helped with his symptoms.
The history taken by Dr Braude is a little confused in that the doctor refers to the applicant being exposed to passive smoke particularly in the previous couple of months including whilst driving his truck. The applicant had last performed work duties for the respondent on 7/8 November 2019 some two months prior, so the exposure had to take place prior to the applicant ceasing work duties. By the time that Dr Braude provides his report on
3 January 2019 the applicant had already made his statement of 17 December 2019 in which it is his evidence that he had been exposed to smoke in the course of his employment since August 2019 and had developed respiratory symptoms from about August 2019.
On the history provided Dr Braude suspected that the applicant had recent onset asthma over the previous six months which had been exacerbated by exertion and exposure to passive smoke from the bushfires.
On 7 April 2020 Dr Braude reported to the respondent that he believed that the applicant has asthma not due to the extent of smoky conditions in New South Wales because of the bushfires but aggravated by the smoky conditions that he was exposed to.
In reaching this opinion Dr Braude noted that the applicant had told him in January that he had symptoms of dyspnoea intermittently for six months before he was exposed to smoke and his symptoms became a lot worse when he was exposed to smoke in November 2019. As previously noted, the history taken by Dr Braude is a little confused, this history is not consistent with the history recorded in the applicant’s statement which had been completed 17 December 2019 shortly prior to the report of Dr Braude which is that he developed the respiratory symptoms following his exposure to smoke from the bushfires. Dr Braude also noted that the applicant had a family history of asthma with two of his children. It is the applicant’s evidence that after his attendance on Dr Braude it subsequently became apparent that one of his daughters had panic attacks and hyperventilation due to stress, and the other had asthma, first requiring a preventer after having COVID-19. Before the
COVID-19 infection she used occasional Ventolin only, mostly with chest infections. The children’s mother had asthma. It is the applicant’s evidence that there appeared to be no family history of asthma on his side of the family.
Dr Braude suspected that the applicant had increasing bronchial hyperreactivity for some time which is the hallmark of asthma, but his asthma was exacerbated by passive smoke a known trigger for asthma however Dr Braude did not feel that there was evidence that the passive smoking actually caused the asthma.
A/Prof Christopher Grainge, thoracic physician, provided a forensic report to the applicant dated 28 January 2022 in which he reported that up until July 2019, the applicant did not have any personal or antecedent history of asthma. In terms of family history, the doctor noted that one of the applicant’s daughters had a diagnosis of asthma, but none of his siblings had been diagnosed with a respiratory disorder. The applicant had never been a smoker.
A/Prof Grainge recorded a history that around July 2019, there was dense smoke in the eastern areas of New South Wales and specifically around Port Macquarie. That the applicant in the course of his employment had to pass through dense smoke. That his truck did not have any air filtration and he was not provided with or wear a mask at any point during his employment.
The applicant recalled first getting symptoms when in Port Macquarie, those symptoms being wheeziness and a tightness in his chest. Over the next five months, the bushfires were present throughout New South Wales and throughout the areas where the applicant was working.
A/Prof Grainge records that the applicant particularly remembered an incident at the beginning of October 2019 where he was in Tamworth and had an episode of acute onset shortness of breath early in the morning associated with chest tightness and at that point had to leave the area until the density of smoke had reduced and his symptoms gradually abated. Over this time in more general terms, his wheeze and cough continued, and he was short of breath on exercise, for example walking backwards and forwards between the premises which produced the clinical waste and his vehicle. He was waking at night due to shortness of breath and had wheeze on a daily basis and noted a rapid and definitive improvement with inhaled Salbutamol.
In the opinion of A/Prof Grainge the applicant definitely had respiratory restriction and symptoms following his exposure to bushfire smoke in mid to late 2019 which he did not have prior to that exposure.
In the opinion of A/Prof Grainge the diagnosis of the cause of the respiratory symptoms was not entirely clear. In the opinion of A/Prof Grainge the applicant certainly had features strongly suggestive of vocal cord dysfunction where the upper airway constricts and leads to inspiratory airway restriction associated commonly with voice change and with odours as a trigger. In A/Prof Grainge’s opinion on the other side of the equation, the applicant has symptoms in keeping with asthma, specifically the excellent response to inhaled long-acting beta agonists and inhaled steroids and his initial improvement with Salbutamol. As such, A/Prof Grainge’s over-arching diagnosis is a combination of definite presence of vocal cord dysfunction and likely presence of adult onset asthma.
In respect to the applicant’s vocal cord dysfunction, A/Prof Grainge was of the opinion that there would likely be significant improvement in the applicant’s condition if he was able to access a specialist team of respiratory physicians and speech pathologists.
In the opinion of A/Prof Grainge the applicant’s employment was a substantial contributing factor to his injuries, specifically the development of a combination of vocal cord dysfunction and adult onset asthma.
In the opinion of A/Prof Grainge the applicant would benefit from specialist speech pathology input and with the input of a speech pathologist with expertise in vocal cord and laryngeal dysfunction syndromes. The requirement for treatment would be in the order of an initial visit to a speech pathologist with the advantage of nasendoscopy and provocation testing and then a series of consultations for treatment, usually between 4 and 6.
On 30 April 2023 Dr Braude reported to the applicant’s solicitors. Dr Braude confirmed that he had only seen the applicant on the one occasion on 3 January 2020 when he was referred by his GP at which time Dr Braude suspected that the applicant had asthma that was aggravated by smoke from the bushfires that he was driving through.
Following 3 January 2020 some further testing was performed. Dr Braude agreed with A/Prof Grainge that the applicant was experiencing typical asthma symptoms and he confirmed that diagnosis. Dr Braude also agreed with A/Prof Grainge that the applicant had vocal cord dysfunction.
Dr Braude is of the opinion that the applicant’s employment, during which he had to drive through smoke laden bush fire areas, contributed to his condition. In Dr Braude’s opinion the smoke aggravated or exacerbated his asthma and his vocal cord dysfunction. Dr Braude suspected that the applicant had asthma based on his family history and positive bronchial challenge test, but the smoke was the main aggravating factor making his symptoms worse in the few months before the doctor saw him.
Dr Braude “totally” agreed with Dr Grainge that it is very likely that the applicant’s prognosis is likely to be much better and much improved if his asthma and vocal cord dysfunction are treated aggressively. In Dr Braude’s opinion the applicant would benefit from specialist speech pathologist input, and he should undergo nasal endoscopy and provocation testing and treatment by a speech pathologist.
A/Prof Grainge provided a further forensic report to the applicant dated 22 March 2024 in which he reported that the applicant has ongoing respiratory symptoms with rapid onset shortness of breath, wheeze, voice change, voice loss and subjective airway closure. These can come on at any time but are specifically triggered by strenuous exercise or any exposure to old bushfire ash or other similar strong smells. He often also gets these sudden onset of breathlessness periods abruptly in the evenings with no apparent trigger.
In addition to these sudden onset episodes A/Prof Grainge recorded that most nights the applicant wakes at around 4:00am feeling he is restricted in his chest and short of breath. This usually settles spontaneously, but sometimes he has to use his reliever inhaler in order to settle these episodes.
A/Prof Grainge observed that there was a bush fire around the applicant’s house on
8 November 2019 but by that time, the applicant’s symptomatology was firmly established with no notable worsening due to the local bushfire.
In the absence of the exposure to smoke in the course of his employment A/Prof Grainge expected that the applicant would not have any respiratory symptoms. As such, A/Prof Grainge concluded that the applicant’s employment was the main contributing factor towards the contraction of his asthma and vocal cord dysfunction.
Both Dr Braude and A/Prof Grainge have diagnosed the applicant with asthma and vocal cord dysfunction with Dr Grainge expressing some limited uncertainty as to the asthma diagnosis. I accept this diagnosis. There is no competing alternate diagnosis.
It was submitted on behalf of the respondent that A/Prof Grainge expressed some uncertainty as to the diagnosis of vocal cord dysfunction. Dr Grainge did observe that “[t]he diagnosis of the cause of these respiratory symptoms is not entirely clear”.[1] However it was the diagnosis of asthma not vocal cord dysfunction which the doctor appears to have had some reservation about stating “…my over-arching diagnosis is a combination of definite presence of vocal cord dysfunction and likely presence of adult onset asthma”.[2] A/Prof Grainge did observe however that the applicant had an “excellent” response to the inhaled asthma treatments.
[1] ARD p 53.
[2] ARD p 54.
It was also submitted on behalf of the respondent that none of the applicant’s treating doctors had diagnosed vocal cord dysfunction however this is incorrect. The applicant as I understand it was initially referred to Dr Braude for treatment and Dr Braude agrees with the diagnosis of A/Prof Grainge.
In the opinion of A/Prof Grainge the applicant’s symptomatology was fully established prior to the applicant fighting the fire at his property on 8 November 2019 and in the doctor’s opinion in the absence of the exposure to smoke in the course of his employment with the respondent the applicant would not have developed respiratory symptoms. As such, in the opinion of A/Prof Grainge the applicant’s employment was the main contributing factor to the contraction of the asthma and vocal cord dysfunction.
I accept the opinion of A/Prof Grainge as to the applicant’s employment being the main contributing factor to the contraction of the asthma and vocal cord dysfunction. The history taken and relied upon by A/Prof Grainge in coming to his opinion is in my view more accurate than that obtained by Dr Braude as to the commencement of the respiratory symptoms with the concurrent exposure to smoke in the course of his employment as well as to the applicant’s family history of asthma.
Whilst A/Prof Grainge does not initially obtain a history of the applicant’s firefighting on and after 8 November 2019 the doctor does subsequently conclude, having reviewed the history including that of his firefighting at home, that the applicant’s symptomatology was fully established prior to the applicant fighting the fire.
I therefore find for the above reasons that the applicant has sustained injury in the form of vocal cord dysfunction and adult onset asthma as a result of exposure to smoke from bushfires in the course of his employment with the respondent with a deemed date of injury of 7 November 2019.

Medical and treatment expenses

I now turn to the claim for medical and treatment expenses pursuant to s 60 of the 1987 Act.
In terms of whether a proposed treatment is reasonably necessary as a result of the work-related injury Roche DP in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) stated:
“[57] …a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53 WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
[58] Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716).”
As previously discussed, I accept the opinion of A/Prof Grainge that the applicant’s symptomatology was firmly established prior to the fighting of fires at his home on
8 November 2019. The applicant had prior to then received treatment from his partner who was qualified GP. As part of that treatment Ms Seligmann recommended that the applicant take Ventolin which had been of some benefit.
Whilst the fighting of the fires at home may also contribute to the need for the medical treatment, the applicant required that treatment for the work related injury prior to the fighting of the fires. As was observed in Murphy the work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
I therefore make a general order for the payment of the applicant’s medical and treatment expense pursuant to s 60 of the 1987 Act.

[2024] NSWPIC 421

6 August 2024