Lennon v De Martin & Gasparini Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Lennon v De Martin & Gasparini Pty Limited [2022] NSWPIC 664
APPLICANT:	Andrew Lennon
RESPONDENT:	De Martin & Gasparini Pty Limited
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	30 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits, medical expenses and permanent impairment compensation as a result of accepted frank injury to right elbow on 19 July 2017; claimed aggravation, acceleration, exacerbation or deterioration of disease injury to right elbow, right wrist and left wrist; deemed date of injury of 1 November 2017; respondent insured by two insurers over the course of the applicant’s employment; application of sections 4(b)(ii) and 16 of the Workers Compensation Act 1987; consideration of Makita (Australia) Pty Ltd v Sprowles, AV v AW, White v Sylvania Lighting Australasia Pty Ltd and State Transit Authority of New South Wales v El-Achi; Held – applicant sustained injury to right elbow on 19 July 2017; injury to right elbow, right wrist and left wrist on 1 November 2017 (deemed); matter remitted to President for referral to Medical Assessor for assessment of permanent impairment as a result of injury to right upper extremity (right elbow) on 19 July 2017; right upper extremity (right elbow and wrist) and left upper extremity (left wrist) on 1 November 2017 (deemed); matter to be listed for further preliminary conference after issue of the Medical Assessment Certificate and for directions regarding the claim for weekly benefits and medical expenses.
determinations made:	1. The matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment: (a) as a result of injury to the right upper extremity (right elbow) on 19 July 2017, and (b) as a result of injury to the right upper extremity (right elbow and right wrist) and left upper extremity (left wrist) deemed to have been sustained on 1 November 2017. 2. The Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments; (b) Reply by self-insurer and attachments; (c) Application to Admit Late Documents dated 23 June 2022 and attachments (Reply); (d) Application to Admit Late Documents dated 22 August 2022 and attachments; (e) Application to Admit Late Documents dated 24 August 2022 and attachments; (f) Application to Admit Late Documents dated 24 August 2022 and attachments, and (g) a copy of these reasons. 3. The matter is to be listed for further preliminary conference before me after the issue of the Medical Assessment Certificate, when directions will be made regarding the claim for weekly benefits and medical expenses.

STATEMENT OF REASONS

BACKGROUND

The applicant, Andrew Lennon (Mr Lennon) was employed by the respondent, De Martin & Gasparini Pty Limited (DMG) as a labourer.
Mr Lennon sustained an injury to his right elbow on 19 July 2017, when he struck it on a pipe brace. He re-injured his elbow on 13 September 2017, when he bumped it on a steel beam. He also claims that the nature and conditions of his employment, with a deemed date of injury of 1 November 2017, have caused injuries to his right elbow and carpal tunnel syndrome of his left and right wrists. He claims to have sustained aggravation, acceleration, aggravation or deterioration of a disease, to which employment was the main contributing factor, deemed to have occurred on 1 November 2017.
The respondent was insured by Employers Mutual NSW Limited (EML) for relevant periods prior to 1 October 2017. Since that date, it has been self-insured by Boral Limited (Boral).
On 17 January 2019, Boral issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It disputed liability for a cortisone injection to his left hand and referral to a rheumatologist, to investigate pseudo-gout. Boral disputed that the applicant’s employment was a substantial contributing factor to his gout symptoms.
On 27 February 2019, Boral issued the applicant with a further notice pursuant to s 78 of the 1998 Act. It disputed “the nature and extent” of the injury sustained on 1 November 2017; maintained that he had fully recovered from the effects of any injury he may have sustained, and disputed liability for payment of weekly benefits and medical expenses.
On 23 September 2019, EML issued the applicant with a notice pursuant to s 78 of the 1998 Act. It disputed that he was entitled to ongoing weekly payments for his injury on
19 July 2017, as he did not have total or partial incapacity for work as a result of the injury. It also disputed liability for payment of medical expenses.
On 13 July 2020, EML issued the applicant with a review notice pursuant to s 287A of the 1998 Act. It maintained its decision to dispute liability for injury to his right elbow.
On 10 August 2020, Boral issued the applicant with a notice pursuant to s 78 of the 1998 Act. It disputed liability for injury to his left wrist, right wrist, and arms on 1 November 2017. Boral disputed that he had sustained injury; that employment was a substantial contributing factor to injury; and that employment was the main contributing factor to either a disease or the aggravation, acceleration, exacerbation or deterioration of a disease.
Boral disputed the deemed date of injury, maintaining that the first date of incapacity was not 1 November 2017, but was prior to October 2017, when the respondent became self-insured. It disputed that the applicant was entitled to payment of either weekly benefits or medical expenses.
On 1 December 2021, Boral issued the applicant with a further notice pursuant to s 78 of the 1998 Act. It disputed liability for his claim for whole person impairment (WPI), pursuant to
s 66 of the Workers Compensation Act 1987 (the 1987 Act). The issues were the same as those notified on 10 August 2020. It disputed that the applicant had at least 11% WPI in respect of his injury.
On 21 January 2022, EML issued the applicant with a notice pursuant to s 78 of the 1998 Act. It disputed that he was entitled to permanent impairment compensation for his injury on 19 July 2017. It referred to the applicant’s claim to have sustained injury to his right elbow on 19 July 2017, in respect of which liability was accepted, and on the deemed date of
16 July 2021, when the claim for WPI was made. His solicitors had confirmed that he was claiming to have sustained a “disease injury”, the deemed date of which was
1 November 2017, when EML was not on risk.
EML disputed that the applicant had sustained injury to his left and right wrists; that employment was a substantial contributing factor to such injury; that he had sustained a disease injury (including the aggravation, acceleration, exacerbation or deterioration of a disease); that employment was the main contributing factor to a disease injury; and that the injury on 19 July 2017 had resulted in more than 10% WPI.
On 24 August 2022, EML issued the applicant with a further notice pursuant to s 78 of the 1998 Act. It disputed liability for injury to his right elbow and left and right wrists on the deemed date of 31 July 2017 and/or 13 September 2017. While the matters in dispute are not well-expressed, it appears that EML maintained that the applicant had recovered from an accepted injury to his right elbow on 19 July 2017; and disputed any injury, including a disease injury, to his right elbow and/or left and right wrists on either 31 July 2017 or
13 September 2017.
The applicant lodged an Application to Resolve a Dispute (the Application) on 27 May 2022. He claimed that on 19 July 2017, he was trying to start a petrol blower, and pulling on the cord when his right elbow struck a pipe brace on nearby scaffolding. He re-injured his right elbow on 13 September 2017, while on light duties, when he bumped his elbow on a steel beam while working in the respondent’s yard. He claimed to have injuries to his right elbow and bilateral carpal tunnel syndrome (left and right wrists).
The applicant also claimed to have sustained a disease and the aggravation, acceleration, exacerbation or deterioration of a disease, deemed to have occurred on 19 July 2017, resulting in the same injuries.
The Application claimed that the applicant was employed in extremely physically demanding conditions, working with concrete and cleaning up construction sites, requiring him to lift and carry heavy objects, operate jackhammers and kangas, lay concrete pipe, shovel concrete, lay and fix “reo” and other tasks. He claimed that these conditions of employment and events in the course of that employment occurring on 19 July 2017, 31 July 2017,
13 September 2017 and 1 November 2017 caused the aggravation, acceleration, exacerbation and deterioration of right elbow epicondylitis and carpal tunnel in both wrists. He claimed that employment was the main contributing factor to the development of the pathology identified and its aggravation, acceleration, exacerbation and deterioration.
The applicant claims weekly benefits compensation from 18 November 2019 to date and continuing. He also claims the sum of $12,255.40 in respect of past medical expenses; and $37,820 pursuant to s 66 of the 1987 Act in respect of 15% WPI as a result of injury to his left upper extremity and right upper extremity on 16 July 2021.
The respondent as self-insurer lodged its Reply on 22 June 2022.
The respondent in the interests of EML lodged its Reply as an attachment to an Application to Admit Late Documents on 23 June 2022.

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a) whether the applicant has sustained injury to his right elbow, right wrist and left wrist pursuant to s 4(b)(ii) of the 1987 Act;
(b) whether the applicant is entitled to payment of weekly benefits and medical expenses as a result of injury to his right elbow, right wrist and/or left wrist, and, if so, the amount of weekly benefits to which he is entitled, and
(c) the assessment of WPI as a result of injury alleged.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing on 30 August 2022. Mr Phillip Perry of counsel, instructed by Ms Becker, appeared for the applicant, who was present.
Mr Grimes of counsel, instructed by Ms Risti, appeared for the respondent in the interests of EML. Mr McMahon of counsel, instructed by Mr Cooper, appeared for the respondent in the interests of Boral. Ms Patterson of EML and Ms Laman, representative of the self-insurer, also attended.
Due to the time taken in conciliation, it was not possible to proceed to hearing the matter on 30 August 2022. Directions were made for the provision of written submissions, and submissions have been provided in accordance with the directions. The partiers were advised that, at the conclusion of the time allowed for submissions, the matter would be determined “on the papers”.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    the Application and attachments;
(b)    Reply by self-insurer and attachments;
(c)    Application to Admit Late Documents dated 23 June 2022 and attachments (Reply), filed by the respondent in the interests of EML;
(d)    Application to Admit Late Documents dated 22 August 2022 and attachments, filed by the applicant;
(e)    Application to Admit Late Documents dated 24 August 2022 and attachments, filed by the self-insurer, and
(f)    Application to Admit Late Documents dated 24 August 2022 and attachments, filed by the respondent in the interests of EML.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Andrew Lennon

The applicant’s first statement is dated 8 February 2018. It was provided to an investigator retained by GIO, Virtual Intelligence Insurance & Litigation Support (Virtual Intelligence). It is unsigned.
The applicant’s average hours with DMG were about 60 (per week). He believed he started full time with them on 19 March 2014. Before that, he was a casual. He was a labourer. If he were a concreter, he would get a better hourly rate.
As a labourer, “you basically do everything, you clean up the shit”. When he was working on Tower 2 at Barangaroo, which is where he worked most, he would use the jackhammer, “which was ok until you had to hold them at waist or chest height”. He also worked at Tower 1 and 3 and Basement, as well as R8/R9.
He would take out the walls, the hobbs, which is basically a concrete platform that is in a shower, but these were much longer. He used to lay the concrete pipelines and remove them. At times they were also full of concrete.
At one point, they had to remove 365 pipes, with each pipe weighing up to 160kg. When they had to move them, they used a sling and forklift. At other times, they would have to grind a lot of floors. When chopping out stressing pans, he had to walk behind grinders, and get on his knees to grind out the stressing pans “surrounds for level”.
The worst job when he first started at Barangaroo was to shovel out concrete from bins. When he noticed he could use machinery for this, he would use it.
He was basically a jack of all trades. Whenever he had to run pipes through the fire stairs, he had to cover them, put fences around the booms, “whatever they wanted me to do I would do. I never refused to do anything I was asked to do”.
There was Daniel, whose surname was something like “Resido” (Rossetto); He had a few supervisors on site at Barangaroo. There were also “Deano”, “Tyrone” (Taraborrelli) and “Pat”.
He had been trained to report injuries and was one of the safety officers with DMG. He knew all about manual handling and his requirement to report injuries.
He described the machinery and tools he used as 60 pound and 90 pound jackhammers, weighing roughly 20kg; ramsets and [illegible], which were used to drill bolts into the concrete. He used to drive the forklifts. “Plenty of shovels, brooms, picks, crow bars and the big pinch bars”. There were slings “that you would put around items to lift them”. There were seven inch and four inch grinders, and the walk behind grinders that were a lot larger.
There was a banding machine to band the pipes and trolleys to move items up and down Barangaroo. There was the electric saw used to cut out the dynabolts, sledgehammers, “[t]he big vibrators, the whipper snipper ones. On top of this you would have to drag the pipes, but this didn’t make any sense when we had cranes which we could use to lift the pipes”. He had to “[T]ie in the reo and tie in the mesh”. If the workers wouldn’t do the work, no one would do it, so he had to help.
He didn’t receive training on the various tools and machinery, “it was more about common knowledge”. He did not think they had any labourers apart from him.
He had injured his wrists “on and off” since late 2013, before obtaining a certificate of capacity (COC) dated 1 November 2017. When he started with DMG in 2013, and got on the jackhammer at Barangaroo, this was the first time his hands had clawed up, “plus numbness/pins and needles”.
When he worked on the council, they would say use the jackhammers for 10 minutes and then stop. With DMG, they would use the jackhammers and try to get the job done as quick as possible.
He began to think the pain in his wrists was being caused by the jackhammer and kangas, the vibration from both, but he didn’t think he was doing damage. He was feeling like Chinese burns in his wrists, and it was then that he knew there was something not right.
He would tell the first aiders from Lend Lease and the supervisors at DMG about the injuries to his wrists. Before starting with DMG, he had no problems with his wrists. He now could not move them at all. All he wanted was to be fixed and go back to work.
The supervisors were “Draco”, Louis Drinkwater. All the injuries should be written in the books. He never saw a doctor before November 2017, because he always thought it was different machinery causing pain in his wrists and arms.
In October 2013, he injured his hands and wrists when he was jackhammering slabs at Barangaroo, using a 60 pound jackhammer, and sometimes the 80 and 90 pound jackhammers. He was trying to dig the concrete out between the reo. His arms also had cramps.
Rob Barnes, a subcontractor to DMG, was a witness to events in October 2013. He was willing to provide a statement. There were other people around, but he could not confirm their names. The names of the Lend Lease people were Steve Polson and “James”. Steve would be able to chase up Warren Henderson and Danny Abou.
He reported the injury to Daniel from DMG, “the same supervisor who never said anything about my arm getting burnt”. At the time, they were advised to speak to first aid and then the supervisor, and he did both. Incident reports only came in roughly three years ago. They should have reports on this injury. He never received any documentation. If he had known Daniel never reported the injury, he would have chased it up.
He got prescriptions from Dr Don Wijeratne at Darling Street Balmain. He was dead, and his practice was no longer there. His current doctor was Dr Riju C Ramrakha, at Elliott Street, Balmain. He began seeing him in 2012/2013.

The applicant has given further evidence about the injuries, and I will refer to it below.
Mr Lennon’s second statement is dated 10 March 2021.
He commenced employment with USG Boral Building Products Pty Limited (USG) as a labourer in around 2013. His employment was transferred to DMG on 18 March 2014. He was employed by DMG from 18 March 2014 until 17 May 2019, when his employment was terminated.
His duties with both USG and DMG involved working with concrete and cleaning up sites. He worked around 60 hours per week. He operated jackhammers and kangas, laid and removed concrete pipelines, ground down floors, shovelled out concrete, put fences around booms, laid and fixed reo, and did other heavy tasks. The jackhammers and kanga could weigh up to 90 pounds and were used to break up concrete and dig it out from the reo.
While operating jackhammers and kangas, he noticed pain in his wrists. He was encouraged not to take breaks when operating this heavy vibrating machinery. He mentioned that his wrists hurt after operating the machinery to the first aid operators on site and his supervisors, but they did not do anything about it.
There were multiple occasions when his hands and wrists hurt after operating a jackhammer, particularly while he was working on the Barangaroo construction sites.
The applicant has referred to injury dates of about October 2013; on or about
8 January 2014; 24 March 2014; 28 July 2014; 13 November 2014; 15 January 2015;
14 April 2015; 22 July 2015; 22 December 2015; 27 January 2016; 18 March 2016; and
21 July 2016. He reported the injuries to either Daniel Rossetto, Deano or Tyrone, and sought treatment from first aid.
In about October 2013, he was using the jackhammer a lot. It was a major job, and his wrists hurt a lot once they were finished. He reported this injury to Daniel Rossetto, his supervisor with USG. He found out later he never formally reported this injury. He was simply told to talk to first aid.
He used ice packs to dull the pain in his wrists, but never sought other medical treatment at this time. He thought the pain was from operating the jackhammer for too long. It settled down after a while and he ignored further twinges in his wrists.

On or about 8 January 2014, he was chopping out hobbs, decks, slabs, columns and stressing pans. He had to use jackhammers, the bigger kangas, and scribblers to rough up the column and take the concrete out. He felt pain in both his hands and wrists. He reported it to Daniel and went to first aid. He was given ice packs.
On 24 March 2014, he was chopping pans and a few little hobbs, and had to take out some walls. He was using a jackhammer, which again aggravated pain in his hands and wrists. He reported it to Daniel and sought first aid. He was given ice packs and his wrists were wrapped in bandages.
On 28 July 2014, he was using the big jackhammer to remove concrete, as well as grinding and removing pipes, when he again noticed pain in his wrists and hands. He reported it to Daniel and went to first aid. There was nobody there, so he got himself ice packs, as his palms were bruised and throbbing.
He does not recall any other incidents between 21 July 2016 and 1 November 2017 that caused specific pain in his hands and wrists. He thought it was related to his work each time, was a normal reaction to using tools, and the pain would settle over the next day or two. He did not seek further treatment, as the pain always settled down. He did not think it was related to or causing any more serious injuries.
He was unaware that Daniel, Deano and Tyrone never properly reported his wrist injuries. He spoke to them every time he felt pain and saw first aid.
After 21 July 2016, he was taken off the tools and no longer had to perform heavy tasks such as jackhammering and operating vibrating machinery. He was moved to Paddington, a nursing home site.
On 19 July 2017, he had to pull a cord to start a petrol blower. As he did so, he struck his right elbow against a metal pipe brace on a scaffold. He felt immediate sharp pain in his elbow and sliced it open. He stopped work, reported to first aid, and went to his general practitioner, Dr Ramrakha.
He reported the injury, and his employer lodged a claim with EML (Claim number 293521016). EML accepted liability for the injury and commenced payment of weekly compensation and medical expenses. He developed an infection in the laceration, which settled after a course of antibiotics.
He returned to work on 21 July 2017 and worked light duties for eight hours per day in the yard until 13 September 2017, avoiding any heavy lifting with his right arm. While working in the yard, he was not operating any heavy vibrating machinery. He did not work any overtime during this period.
On 13 September 2017, he bumped his right elbow on a steel beam. He stopped work due to the pain and on the advice of his case manager. He returned to light duties in the yard, for eight hours per day, on 16 October 2017. On 30 October 2017, he was downgraded to four hours of work per day, which continued until 2 November 2017.
Between July 2016 and 1 November 2017, he experienced pain in his hands and wrists on occasion, but he thought it was related to his elbow injury. The pain became worse, despite physiotherapy for his elbow, so on 1 November 2017, he sought treatment for his hands and wrists.
He saw Dr Ramrakha about his wrist pain and told him he had first noticed symptoms in 2015 and had reported it to his employer at the time. Dr Ramrakha provided a COC for his wrist injuries, which was served on GIO, as insurer of USG.
GIO registered his claim with a deemed date of injury of 1 January 2015 and commenced payment of treatment expenses for his bilateral wrist injuries. They did not pay any weekly compensation as it was being paid by EML.
He ceased work on 2 November 2017. He returned to work on 13 November 2017 for a single day, but otherwise had not returned to work.
On 4 June 2018, GIO denied liability for the injury to his wrists on 1 November 2017 (deemed) (claim number G502978B157) as Boral as self-insurer, not GIO, was on risk in November 2017. They also denied liability on the basis that he had not developed carpal tunnel in the course of his work, preferring statements over what his duties were and how much heavy vibration he was exposed to.
On 25 June 2018, his solicitors lodged a claim with Boral self-insurance for his bilateral wrist injuries and carpal tunnel, with a deemed date of injury of 1 November 2017.
On 24 July 2018, Boral accepted liability for medical expenses only for his bilateral wrist injuries.
On 16 August 2018, he underwent a left endoscopic carpal tunnel release and STT (scaphoid-trapezium-trapezoideum) arthroplasty, by Dr (Damian) Ryan at North Shore Private Hospital, paid for by Boral self-insurance. His left wrist symptoms settled somewhat.
On 20 December 2018, Dr Ryan performed right endoscopic carpal tunnel release and STT arthroplasty, paid for by Boral self-insurance. The pain in his right wrist started to settle, and he regained more feeling in his fingers. However, his left wrist became more painful. Dr Ryan recommended a corticosteroid injection to help with the pain around his STT joint.
On 17 January 2019, Boral as self-insurer, under claim number NSW-2019-0031, denied liability for a cortisone injection to his left wrist, on the basis that he had not worked since
1 November 2017, there was no new incident to cause the development of gout symptoms, and they were likely constitutional.
On 25 January 2019, he had a cortisone injection to his left scaphotrapezial joint to help with the pain and irritation in his wrist. The pain settled down again.
On 27 February 2019, Boral denied liability for his deemed injury to both wrists on
1 November 2017, on the basis that his continuing incapacity was related to degenerative arthritis in both wrists, and the arthritis was not work related.
On 23 September 2019, EML disputed liability for continuing weekly payments for his right elbow injury on 19 July 2017, on the basis that it still believed he had recovered from the injury and any further incapacity was not due to his injury.
On 13 July 2020, EML maintained its denial of liability for his right elbow injury on
19 July 2017, on the basis that it believed he had recovered from the injury and any further incapacity was not due to the injury.
On 10 August 2020, Boral denied liability for his bilateral wrist injuries on 1 November 2017, on the basis that his employment was not a substantial contributing factor to his injury, and his carpal tunnel [injury] was constitutional.
On 1 December 2021, Boral issued a further denial of liability for his bilateral carpal tunnel and right elbow on 1 November 2017, on the basis that he did not sustain injury to either arm or wrist and his work was not a substantial contributing factor to his injury or the main contributing factor to a disease or aggravation of a disease.
On 21 January 2022, EML issued a further denial of liability for his lump sum claim, on the basis that he did not suffer from a work related disease to both arms, and he did not have any continuing impairment from his injury on 19 July 2017.
He had read the statements of Paride Vezza, Leonardo Titone, Noella Green and Daniel Rossetto. I note that, while the investigator’s report referred to statements from these witnesses, only that of Ms Green was attached.
He disagreed with their characterisation that his work did not involve using kangas and jackhammers on occasion. He noted the statements that DMG did not own 60 pound and 90-pound jackhammers, but he recalled using them, the 60 pound more frequently than the 90 pound, and needing to use kangas and jackhammers for extended periods.
He agreed they used a sling and forklift to move the heavy concrete pipes. The work was still heavy, due to the amount of manual handling involved in setting up the sling and moving the pipes.
As regards reporting injuries, he mostly just got on with his work and ignored the pain in his wrists as much as possible in the hope it would settle down. Labouring is a job where there are frequently aches and pains caused by the work. Aside from mentioning to his supervisors that his wrists hurt, it did not seem worth formally reporting his wrist pain when it settled down.
He experienced pain and restriction of movement in his right elbow, wrists, and hands. He continued to experience pain and stiffness in his right elbow, and intermittent numbness and tingling and loss of grip strength in both hands. He continued to wear wrist braces during the day. He did not think he could return to his pre-injury work and was not sure what other work he could do.
Mr Lennon made a supplementary statement dated 17 August 2022.
He had read the vocational assessment from RehabLife dated 30 June 2021. He disagreed with the assessment, and believed it had an inaccurate picture of his condition.
He remained unfit for work as per the COCs issued by Dr Ramrakha.
The jobs nominated by RehabLife, those of ESL (English as second language) tutor, call centre operator, and service coordinator, had not been approved by his GP as suitable employment. He did not have experience with these roles. He had performed physically demanding jobs all his working life. He had experience with manual labour and construction, not with tutoring, call centres, or other jobs based in office environments.
He did not have experience with jobs that require computer skills and lacked such skills. He believed this made the nominated roles unsuitable for him. He had not completed the computer courses suggested in the assessment. He did not believe jobs involving computer use were suitable employment options, due to the nature of his injuries. He believed he continued to have no current work capacity.

Evidence of Noella Green

Ms Green’s statement is dated 1 March 2018. She was DMG’s senior HSE advisor. Before this, she was a work fit adviser with Boral.
Even when she was at Boral, one of her responsibilities was to manage DMG’s injuries, so she had knowledge of the applicant and his injuries before she commenced with DMG in January 2018.
She first met the applicant when he was working at Paddington. He injured his right shin on 12 July 2017. He made no mention of having any hand or wrist injuries.
On 19 July 2017, the applicant injured his right elbow, when he struck it whilst pulling a petrol operated blower. He again made no mention of any hand or wrist injuries. They had Early Notification Reports for the shin and elbow injuries.
Between roughly August 2017 and September 2017, there were a few medical case conference reviews for the applicant’s elbow injury. It was at one of these that he first raised the issue of wrist pain, specifically to his right wrist. He also reported pain in his left wrist, but it was more about his right wrist. Although she was not his treating doctor, it appeared that if he wasn’t using his right elbow, he would be compensating in another joint, whether that be his shoulder or wrist.
The applicant made no mention of any specific injury that had occurred to cause his right and left wrist pain.
On 30 October 2017, she met with the applicant and his specialist, Dr Ryan, when the applicant first mentioned a right wrist injury and it being related to work. The specialist asked if it was related to his right elbow injury. The applicant said no, he had had this pain for ages.
She asked if the applicant had reported his injuries formally and he advised he hadn’t. She told him he would have to submit a claim form outlining how he had injured his right wrist.
The applicant stated he had a right wrist injury, more so than his left. He was also having issues with his hands when holding and talking on his phone.
The specialist asked questions about the type of work the applicant did, what tools he used, and what he had done before working with DMG. He explained his duties, using a jackhammer and the kanga. The specialist said if he did that type of work, after time, he would most likely end up with the injuries he was reporting.
On 1 November 2017, she received a COC from the applicant’s GP, relating to injuries to both wrists. “What was being listed…for me, these could only be confirmed if an MRI had been conducted”. She knew of no MRI.
The date of injury was listed as 2015, and the use of a 90 pound jackhammer was the cause of injury. The applicant hadn’t been doing his normal duties since mid-July 2017, “yet here he was saying he was injured back in 2015”. More information was going to be required.
The next COC she received was on 14 November 2017, which was backdated to
1 November 2017. The NTD (nominated treating doctor) had changed the diagnosis, listing a number of conditions and multiple dates of injury, from 2013 to July 2016, with a number of tools as the cause.
She looked into their system to see whether any injuries had been reported on the dates listed. There hadn’t been, and there were no hand or wrist injuries reported at any point.

Evidence of Tyrone Taraborrelli

Mr Taraborrelli was a project manager at DMG. His statement is dated 1 March 2018. He was responsible for supervising the applicant at Barangaroo, from roughly 2015 to the end of 2016.
The applicant would have used the kanga, also known as the Dyna Drill. They used predominantly the Ramset and Hilti brands. There was also a walk behind floor grinder and the four inch hand buffers. The applicant would also have used a little jackhammer. He could not be sure of its size. There was also a variety of hand tools, shovels, large iron crow bars and wheelbarrows.
The weight of a kanga is roughly 8kg, and the biggest electrical one would be 11kg. They operate downwards, that is, “you are pushing down on them and allowing the tool to chip away at the concrete, so you are guiding it more than anything”.
It was possible that the applicant used a 60 or 90 pound jackhammer. He could not recall. He knew they hired big jackhammers at one point. At that time, they also had labour hire, because it was more than a one man job. The applicant may have helped. These jackhammers are operated by an air compressor.
The applicant drove the forklift. It was also more than likely that he used the walk behind buffers. They are operated on the ground, so much like the kangas, you don’t have to hold them up to operate them. They may be heavy, but the machine is something that you stand behind and push to operate.
The applicant would have used an electric saw to cut dynabolts. This would probably have been an 18-volt battery operated version, weighing near to 1kg to 2kg. It is possible that he used a sledgehammer, but it wouldn’t have been a day to day task.
They had pipes full of concrete at times, and they had to move them. They weigh 80kg empty, and probably 150kg to 160kg full of concrete. The applicant did not move 365 pipes. He “would have moved a couple”, but they had mechanical aids, chain blocks. They also had to walk behind the forklift to assist in movement of the pipes. There were a lot of aids on hand. Even when they were empty, they were not lifted individually, as even 80kg is too much for one person. When they had to move the full pipes, there would have been maybe 50 to 60.
There weren’t that many hobbs on the project. The main ones were in the plant room, but they didn’t take them out, they put them in.
The applicant had to chop out stressing pans. This was done by all workers, and he did not recall anyone being injured from this task. The applicant would have ground floors with the walk behind grinders or hand buffers, but it wasn’t a daily task. He refused to be part of the concrete pouring, but he was there to do certain tasks. What he was doing was nothing out of the ordinary. The tasks were all activities that any of their workers undertook.
The applicant had both mechanical assistance and assistance from other workers. He got things done that he was asked to do. He was also the Safety HSR on site, so he brought up and fixed a lot of safety issues. It was part of his duties to go on safety walks, to liaise with the builder.
He had no knowledge of any injuries sustained by the applicant, or medical treatment obtained. It was not true that he wouldn’t listen when the applicant reported injuries. They knew the process; the applicant knew it. He was the safety rep, which meant if he or someone else got injured, it would be reported to a leading hand, a supervisor, and then he would have to go to first aid on site. If treatment was required, it would be given by the first aider, who was a Lend Lease employee, and if necessary, the worker would be taken to the doctor. They would be notified by first aid and complete an ENF (assumed to mean Early Notification Form). If the applicant went to first aid for each injury, there would be ENFs in the system. It was not true that incident reports only came in roughly three years ago.

Medical evidence

Dr Riju C Ramrakha – general practitioner

Clinical records

Dr Ramrakha’s clinical records commence on 30 October 2012. It is not my intention to refer to every entry.
On 20 July 2017, Dr Ramrakha recorded that the applicant bumped his [right] elbow trying to start the blower yesterday. A laceration was dressed by the nurse. The applicant’s elbow was swollen. There was tenderness of the right lateral epicondyle. “No deformity. No restriction”.
On 1 August 2017, Dr Ramrakha recorded that the applicant had been seen by another doctor at the employer’s insistence, and he had ordered an MRI.
On 8 August 2017, Dr Ramrakha recorded that the applicant had a right common extensor tendon tear. He was to continue to wear an elbow brace.
On 29 August 2017, Dr Ramrakha took part in a case conference with EML. They discussed both an injury to the applicant’s shin and his elbow injury. Dr Ramrakha opined that the elbow injury was likely to take 12 weeks to recover. The applicant needed specialist review. He may require elbow orthotic, as “some become chronic”.
Dr Ramrakha recorded on 31 August 2017 that the applicant’s elbow was more swollen since starting physio. He would benefit from elbow orthotic.
On 14 September 2017, Dr Ramrakha recorded that the applicant found it impossible not to knock his elbow. The insurer had not yet provided the orthotic. “Noella” (Ms Green) had suggested he take time off work.
Dr Ramrakha recorded on 22 September 2017 that the applicant had the orthotic and was finding it helpful. At a case conference on 25 September 2017, he recorded that the applicant would have two weeks of rest for the elbow, then review.
On 9 October 2017, Dr Ramrakha recorded case conference, at which it was decided the applicant would have one more week off, then light duties. He was to be reviewed by
Dr Ryan on 31 October 2017.
On 19 October 2017, Dr Ramrakha recorded a request for ultrasound of both wrists – “site of pain and carpal tunnels”; and bilateral X-rays of the wrists. He noted wrist pain and swelling.
On 24 October 2017, Dr Ramrakha recorded that the applicant had a ganglion, bilateral synovitis, median nerve thickening at the wrist, and thrombosis of the right radial artery. He had been referred to a hand surgeon. He was to continue wearing the orthotic.
Dr Ramrakha recorded on 1 November 2017 that the applicant had reported in 2015 that his hands were cramping up when using a 90-pound jackhammer and kanga. “Seen by Dr Ryan > MRI ordered on wrist and left elbow”.
On 6 November 2017, Dr Ramrakha recorded that the MRI payment was “knocked back” because there was no claim number. He advised that an initial WorkCover certificate for the wrists only was lodged on 1 November 2017, and to contact the insurer for the claim number.
Dr Ramrakha also recorded that the applicant had worsening wrist pain. His hands went numb when using a mobile phone and he had dropped it. He had dropped two glasses at home. He was awaiting a claim number for the MRI. His elbow was much worse since being examined by Dr Ryan.
On 9 November 2017, Dr Ramrakha recorded that the applicant had had an MRI of the right wrist at his own expense. He thought injury to his wrists may first have been as early as 2013.

On 13 November 2017, Dr Ramrakha recorded that the applicant stated he had reported wrist injuries in October 2013; 8 January 2014; 24 March 2014; 28 July 2014;
13 November 2014; 15 January 2015; 14 April 2015; 22 July 2015; 22 December 2015;
27 January 2016; 18 March 2016; and 21 July 2016. He had reported his hands cramping up after using a 90 pound hammer, kanga, shovelling concrete out of two metre bins, and other activities. “Use of scabbola” [possibly what the applicant referred to as scribblers]. (Emphasis in original).
On 14 November 2017, Dr Ramrakha recorded a diagnosis of bilateral carpal tunnel syndrome.
Dr Ramrakha recorded on 16 November 2017 that the applicant presented with bilateral wrist pain and elbow pain. He was upset that the insurer claimed he did not report the injury. He stated he repeatedly reported it. He was having MRI guided steroid injections ordered by
Dr Ryan.
On 12 December 2017, Dr Ramrakha recorded that the applicant had had steroid injections to both wrists. The right improved for a few days. Dr (Bassel) Hassan was to arrange wrist splints for carpal tunnel syndrome.
The applicant presented on 17 January 2018 with pain in his right elbow. He had received paperwork from EML to see its doctor for assessment.
On 1 March 2018, Dr Ramrakha recorded that the applicant could not hold the phone because of paraesthesia and numbness. His left hand was worse than his right. He had noted some improvement with Tapentadol. Dr Ramrakha noted workers compensation – wrists and elbow.
Dr Ramrakha continued to provide the applicant with workers compensation certificates for his elbow and wrists.
On 8 May 2018, Dr Ramrakha recorded that the applicant had pins and needles in both hands. His wrist pain was worse, and his elbow pain was unchanged. He was clumsy with both hands.
Dr Ramrakha recorded on 27 June 2018 that GIO “deem” the injury date to be
November 2017. He noted the first WorkCover certificate stated the applicant thought the injury was in 2015 and was reported. The second certificate specified multiple dates going back to 2013.
On 28 August 2018, Dr Ramrakha recorded that the applicant had had surgery on his left wrist. His left arm was in a sling.
On 21 December 2018, Dr Ramrakha recorded that the applicant had had surgery to his right wrist.
On 7 January 2019, Dr Ramrakha recorded a diagnosis of calcium pyrophosphate deposition disease. He noted a request for ultrasound guided steroid injection to the left STT joint.
On 17 January 2019, Dr Ramrakha recorded that the applicant was “Told by insurer to ‘prove’ crystal deposits are not the ‘cause’ of his problems”. He was referred to a rheumatologist (Dr Griff Richards).
On 22 January 2019, Dr Ramrakha recorded that he had received a letter from EML regarding a shoulder injury – “no history of shoulder injury or claim found”. The applicant still had elbow pain.
Dr Ramrakha recorded on 5 March 2019 that the applicant had been seen by Prof (Arun) Aggarwal. Liability had been declined by Boral. He provided workers compensation certificates for the wrists and elbow.
On 22 March 2019, Dr Ramrakha recorded right elbow pain. The applicant’s elbow was not swollen. He was tender over the medial and lateral epicondyle. There was no deformity and no restriction.
On 8 April 2019, Dr Ramrakha noted the “imaging report” and diagnosed common extensor high grade tear and chronic tendinosis; right radial collateral ligament high grade tear; ulnar collateral ligament proximal attachment abnormality; right elbow common flexor tendinosis; right elbow marrow oedema; chondral attenuation of the right radial head; and chondral wear of the right capitellum. The applicant was referred to Dr Jeffrey Hughes.
On 15 April 2019, Dr Ramrakha added multiple further diagnoses, including of both wrists, noting left and right wrist surgery. He continued to issue COCs for injury to both the wrists and right elbow.
On 26 July 2019, Dr Ramrakha recorded ongoing pain in the right elbow and both wrists. He issued a COC for both wrists; and on 29 July 2019 for the elbow[s] [sic].
On 10 September 2019, Dr Ramrakha recorded that the applicant had right elbow pain and bilateral wrist pain. “Symptoms unchanged”. He was wearing splints on both wrists.
On 9 October 2019, the applicant was seeking a second opinion about his elbow. Referrals to Dr Chris Smithers and Prof Aggarwal were provided.
The last entry is dated 3 December 2019.

Reports

Dr Ramrakha reported to EML on 7 November 2017. He recorded the applicant’s diagnoses as right elbow high grade near complete common extensor origin tear, which extended to involve the lateral ligaments; right elbow tendinopathy low grade in common flexor origin; and right elbow soft tissue contusion overlying the posterior aspect of the common extensor origin.
The applicant had described deterioration in his symptoms. He had given a history of bumping his elbow whilst doing light duties in the “yard”. He had been certified as unfit for work until he was reviewed by Dr Ryan.
On 20 December 2017, Dr Ramrakha reported to GIO.
The applicant’s diagnoses were recorded as synovitis of both wrists and thickening of both median nerves; right wrist STT joint osteoarthritis with right reactive synovitis; right radiocarpal joint synovitis; right prestyloid recess synovitis; right radiocarpal effusion; right pisotriquetral effusion; right ganglion captitate hamate articulation (4mm); bilateral median dysfunction at wrist; left median nerve flattening and hyperintensity on MRI; left STT osteoarthritis with marrow oedema; radioulnar osteoarthritis; scapho-lunate ligament abnormality; dorsal and volar left wrist ganglia; muscle weakness of both hands; and reduced sensation of median nerve distribution in both hands.
The applicant had reported his hands “cramping up” after using a 90lb jackhammer, “Kango” [sic], shovelling concrete out of two metre bins, and other activities following use of the “scabbola”.
The applicant had had investigations of both wrists in October to December 2017.
Dr Ramrakha had prescribed rest. He would normally recommend wrist splints at night for bilateral nerve dysfunction at the wrist. He expected this to improve with rest.
Dr Ramrakha expected the applicant’s bilateral median nerve dysfunction to improve with rest, and his other injuries with rest and Mobic. Dr Ryan had arranged steroid injections. There may be a case for surgical treatment of the ganglia.
Dr Ramrakha opined that the applicant had sustained a serious injury to multiple anatomical structures at the wrists, including both median nerves. His condition made him a danger to himself and others in the workplace.
On 2 April 2019, Dr Ramrakha reported to EML regarding the applicant’s right elbow injury.
Dr Ramrakha first saw the applicant for his right elbow injury on 20 July 2017. He recorded a consistent history of the injury on 19 July 2017.
On the basis of MRI on 2 August 2017, Dr Ramrakha diagnosed near complete high grade tear of the common extensor origin; low grade tendinopathy of the common flexor origin; and soft tissue contusion.
The applicant was commenced on physiotherapy and a foam device for his elbow was obtained. He was referred to Dr Ryan, who later referred him to Dr Hughes. Dr Ramrakha had also referred him to Prof Aggarwal.
Dr Ramrakha had requested MRI of the right elbow on 22 February 2019 but received no confirmation of approval from EML. He had last examined Mr Lennon’s elbow on
22 March 2019. He continued to have medial and lateral epicondyle tenderness. He remained unfit for pre-injury duties in terms of that injury.
Dr Ramrakha advised that the applicant required MRI and referral to both Dr Hughes and Prof Aggarwal. A tear such as he had sustained is notoriously difficult in its resolution. He may require surgery, but that was a decision for Dr Hughes.
On 14 January 2020, Dr Ramrakha reported to the applicant’s solicitors. He has responded to their questions, which have not been provided.
Dr Ramrakha opined that the applicant’s clinical and imaging findings were consistent with the description of the injury. The injury on 17 July 2017 [sic] was the cause of these abnormalities. The applicant’s employment was the sole contributing factor to this injury. The repeated use of high impact vibrating jackhammers over the years was also a contributing factor to this injury.
Dr Ramrakha concluded that Mr Lennon’s prognosis for a full recovery of the injury to his right elbow, and specifically his common extensor origin tear, was poor even with [potential] surgery. Surgery may produce some improvement in his symptoms.
The applicant remained unfit for his pre-injury duties. He should not return to the use of heavy high impact vibrating jackhammer-like machines on a permanent basis.
Dr Ramrakha again reported to the applicant’s solicitors on 20 April 2020.
The applicant had first consulted Dr Ramrakha about his wrist injury on 19 October 2017, complaining of bilateral wrist pain and swelling. Imaging was ordered. It was found to be abnormal, and he was referred to Dr Ryan. MRI was ordered on 1 November 2017.
The applicant told Dr Ramrakha he had reported wrist pain to his employer frequently, providing dates from October 2013 to 21 July 2016. He described his work duties as consisting of considerable use of jackhammer type machines and heavy vibrating machines, frequently at or above waist height and sometimes above shoulder height.
The applicant described the machines he used as kanga, jackhammer and scabbola. He also reported repeatedly shovelling cement into 2m high bins.
Dr Ramrakha recorded the applicant’s symptoms as worsening wrist pain, and his hands would go numb, so he dropped things. The pain kept him awake and he felt he was a danger to himself and others in the workplace.
According to Dr Ramrakha, there were delays in the approval of treatment. As Dr Ryan had recommended irreversible operative treatment, he referred the applicant on
21 February 2018 to Dr Wheen for a second opinion. The applicant told him on
4 February 2019 that the insurer had refused to pay for injections to his wrist under imaging guidance, ordered by Dr Ryan.
Dr Ramrakha opined that the applicant had sustained a serious injury to multiple anatomical structures at the wrists, including both median nerves. There were clinical signs of weakness of the muscles supplied by the median nerves, and reduced sensation in their sensory distribution.
There had been some improvement following surgery, but the applicant continued to have bilateral wrist pain and weakness and clumsiness in both hands. There had been some objective improvement in his carpal tunnel symptoms, but his last nerve conduction study remained abnormal. The injuries to his wrists were a direct result of the use of high impact machines and heavy vibrating machines over many years.
Dr Ramrakha opined that the applicant remained permanently unfit for his previous occupation. He was unfit for all forms of employment he could reasonably be expected to undertake with his education and experience. He had difficulty using a mobile phone and would have problems using a keyboard for long periods. Dr Ramrakha considered him permanently unfit for any form of employment.
The last COC issued by Dr Ramrakha is dated 27 April 2022. It listed numerous diagnoses of the applicant’s wrists and right elbow and certified him with no work capacity until 25 May 2022.

Dr Damian P Ryan – hand surgeon

Dr Ryan reported to Dr Ramrakha first on 11 August 2017, the applicant having been referred for treatment of his right elbow.
Dr Ryan recorded a consistent history of the injury on 19 July 2017. The applicant’s ongoing problem was pain over the extensor surface of the arm and elbow.
The applicant’s MRI showed some changes of lateral epicondylitis, which Dr Ryan expected were long standing and were not symptomatic. Of significance, there was swelling in the region of the triceps tendon over the posterior and lateral aspect of the elbow. Dr Ryan was sure this was the cause of the pain.
Dr Ryan opined that the applicant should have physiotherapy to reduce the soft tissue inflammation and work on strengthening. It was reasonable that he remain on light duties, but this could include some light activities with his right arm as symptoms allowed.
On 31 August 2017, Dr Ryan reported that the applicant was working on light duties, avoiding heavy lifting with his right arm. He was “still tender of the laceration of the triceps tendon”, and that was likely to persist for another month or so.
The applicant “certainly will do no harm by more vigorous activity”, but his discomfort would prevent him from his usual heavy work. Dr Ryan opined that he should stay on restricted duties but could increase them as symptoms allowed. He believed there was a suggestion he may have a more permanent change in his position, which was a little less vigorous in any event.
On 30 October 2017, Dr Ryan reported that the applicant continued on light duties, not only due to discomfort around the extensor surface of his elbow, but also some discomfort in the right wrist, which had developed over the last two weeks.
Considering the severity of the applicant’s symptoms and how long they had been present, Dr Ryan suggested repeat MRI of the right elbow and right wrist.
Dr Ryan reported on 3 November 2017 that the MRI of the applicant’s right elbow showed changes of medial and lateral epicondylitis, and no significant abnormality around the triceps tendon. There were some subtle changes in the radiocapiteller joint.
Clinically, the applicant’s tenderness was maximal over the medial epicondyle. Dr Ryan suspected it was the main source of his current elbow symptoms. He also had longer term symptoms of the wrist, related to the nature of his work. Dr Ryan was awaiting MRI of the wrist.
Dr Ryan reported on 10 November 2017 that the cause of the applicant’s wrist pain was not completely clear. He suggested review by Dr Hughes. The MRI of his right wrist primarily showed osteoarthritis involving the scaphotrapezial joint, with milder changes in the radiolunate joint. Dr Ryan recommended a radiologically guided injection of corticosteroid into the scaphotrapezial joint, for both therapeutic and diagnostic benefit.
The applicant’s symptoms were such that he could not perform his usual work, although if appropriate lighter duties were available, he would be fit for those.
On 5 January 2018, Dr Ryan reported that the applicant continued to have significant pain around both wrists, despite the use of splints and inflammatories [sic]. The injections to the scaphotrapezial joints of each hand provided temporary relief. He had not been able to perform any work, due to the symptoms in both hands, which caused problems even with writing.
Dr Ryan noted that the applicant had had problems with his hands going back to 2013, when he described them clawing when using heavy equipment. He had had recent nerve conduction studies that showed changes of carpal tunnel syndrome bilaterally, but no changes with regard to the ulnar nerve at the elbow. He reported pins and needles of the fingers when using a telephone, sufficiently bad that he was unable to drive.
The applicant had had significant symptoms since July 2017, despite various non-operative treatment. Dr Ryan thought his main problems related to arthritis around the scaphotrapezial joint of both wrists, and some carpal tunnel syndrome.
Dr Ryan suggested the applicant have a more restricted splint to his most symptomatic wrist, immobilising both the thumb and the wrist to more effectively less [sic] the scaphotrapezial joint. The splint would be too restrictive to allow him to perform any work using his hands.
Dr Ryan opined that the applicant would require surgery, and he recommended arthroplasty of the scaphotrapezial joint and carpal tunnel decompression. This would be expected to relieve the pain. However, it was unlikely to make his hands strong enough to return to heavy manual work. He should be able to return to light manual tasks, perhaps as a safety officer.
Dr Ryan had arranged for a splint to be fitted and would request approval for surgery.
Dr Ryan made several requests of EML for approval for surgery. He performed arthroplasty of the left scaphotrapezial joint and left endoscopic carpal tunnel release on 16 August 2018.
On 24 August 2018, Dr Ryan reviewed the applicant. He reported that at operation there was gross arthritis of the scaphotrapezial joint, which was managed by implant arthroplasty. The applicant’s wound had healed, and X-rays showed satisfactory alignment of his implant. He was to start gentle range of motion exercises.
Dr Ryan reported on 31 August 2018 that the applicant’s carpal tunnel symptoms had resolved. His wrist was a little uncomfortable, which was expected. He would continue with gentle range of motion exercises, with his wrist supported in a splint. He could start more aggressive exercise in two weeks.
On 21 September 2018, Dr Ryan reported that Mr Lennon had been progressing well, but had a minor fall at home that aggravated his wrist. It was quite swollen diffusely dorsally, and Dr Ryan wondered whether he may have some gout associated with the recent minor trauma. X-rays showed the implant remained satisfactorily aligned.
Dr Ryan suggested that the applicant rest his hand in a splint and take regular anti-inflammatories.
On 3 October 2018, Dr Ryan reported that the acute pain that the applicant had two weeks ago was improving. He was still somewhat swollen over the volar radial and dorsal radial aspect of the wrist but had approximately half normal motion in flexion and extension, and radioulnar deviation without acute pain. His finger was still a little stiff.
Dr Ryan reviewed the applicant on 2 November 2018. There had been further improvement in the strength and flexibility of the left wrist, with decreased use of the splint. The applicant was not yet strong enough to return to his usual work, particularly considering he still had symptoms in his right wrist.
On 28 November 2018, Dr Ryan reported to Boral that the applicant had returned a little earlier than expected. Over the last few days, he had again developed pain in the left wrist, without a specific injury. This was similar to the situation six to eight weeks after his initial surgery.
The applicant’s wrist was irritable, and Dr Ryan wondered whether his symptoms may be caused by gout or pseudo-gout. He would require aspiration and examination for crystals to confirm that. Dr Ryan asked for approval to perform this procedure.
On 12 December 2018, Dr Ryan reported to Boral that there had been improvement in the discomfort of the applicant’s left wrist. Aspiration revealed calcium pyrophosphate crystals, which would explain his intermittent episodes of discomfort. This can occur after injuries or arthritis and is best managed by anti-inflammatories. It usually eventually settles, and the applicant appeared to have reached that point.
The applicant found his left wrist was better than before surgery, and he was more troubled by the right wrist. Dr Ryan recommended right endoscopic carpal tunnel release and scaphotrapezial arthroplasty, for which he requested approval.
Dr Ryan performed the surgery on 20 December 2018. On 28 December 2018, he reported that the applicant had lost the numbness of his fingertips, his wrist was moderately uncomfortable, as would be expected, and X-rays showed satisfactory alignment. He would rest his hand in a splint and Dr Ryan would review him in two weeks. He continued to have discomfort in the left wrist, although less severe.
On 4 January 2019, Dr Ryan reported that the applicant’s right hand was progressing as expected. He had increasing pain around the left wrist. This was associated with crystals around the scaphotrapezial implant. Dr Ryan recommended repeat corticosteroid injection.
Dr Ryan performed the injection on 25 January 2019, “as there seemed some question as to how much that irritation relates to his work injury”. Dr Ryan had little doubt that it related to the surgery for arthritis of that joint, even though there may be underlying chondrocalcinosis. The applicant continued to recover, five weeks after surgery.

Dr Ryan reported to the applicant’s solicitors on 20 March 2019. He has referred to their questions of 17 February 2020, so either that (most likely) or the date of the report is an error, but nothing turns on this.
Dr Ryan noted a consistent history of the injury to the applicant’s right elbow, the development of symptoms in the right wrist, and subsequently in the left. He referred to the surgery of both wrists.
“Included” (it is assumed by his solicitors) was a detailed description by Mr Lennon of the nature of his work. This was very heavy, requiring the use of jackhammers and other heavy equipment.
Dr Ryan opined that, although it would be difficult to define a particular injury as the cause of arthritis in both wrists, it was reasonable to consider that the applicant’s arthritis had been caused by his heavy manual work over a number of years. There can certainly be a constitutional tendency to develop degenerative arthritis, but it may be asymptomatic. At the very least, it had been aggravated by the nature of his work. He would not have required surgery except for the nature of his work and the injury caused by that work.
Dr Ryan had not seen Mr Lennon since February 2019. He would expect that he would have some persistent weakness and stiffness in the wrist and would not have been fit for very heavy manual tasks. Dr Ryan would not have expected any significant change in his condition after six months from the last surgery. In particular, he would not have expected any deterioration in his condition with regard to his arthritis or carpal tunnel syndrome.
At the time of his last consultation, Dr Ryan would have assessed the applicant as fit for light duties. He would not give a specific weight restriction but suggested this should be within the limits of pain, weakness, or stiffness. It was unlikely the applicant would be able to return to his previous very manual work.

Dr Jeffery S Hughes – orthopaedic shoulder and elbow surgeon

Dr Hughes reported to Dr Ryan on 30 November 2017.
He recorded that the applicant had had many years working in a robust manner, undertaking heavy manual duties. This had involved lifting a lot of tools with grip and pinch, and a lot of impact tools such as jackhammers, as well as kanga hammers. He noted a history of the injury to the applicant’s elbow on 19 July 2017.
Since that injury, and intercurrently, the applicant had also complained of bilateral wrist pain, worse on the right. At that time, it was the main barrier to him returning to work. He reported some discomfort around the elbow, but it was not well localised, and certainly not to the common extensor origin. His MRI showed an extensive common extensor origin detachment.
Dr Hughes did not believe the applicant’s symptoms warranted surgery. He had a type of lesion that would not respond to PRP (platelet rich plasma) or biological solutions, because of the extensive footprint detachment. If he developed symptoms, surgery was the most predictable way of restoring function.
Dr Hughes reported to Dr Ramrakha on 13 May 2019. He had last seen the applicant six months before, that is in about November 2018.
The applicant’s range of movement and symptoms remained unchanged. His symptoms stopped him using his hand freely, with lateral elbow pain, but were not symptoms that he perceived as severe enough to warrant surgery. He wore wrist splints for his carpal tunnel, which was for the wrist pain.
The MRI was unchanged and was unlikely to change in the long term. There was some chondral attenuation of the radial head, but otherwise very little else to see. The applicant had a similar level of incapacity for work, which Dr Hughes did not expect to change in the long term.
Should the applicant wish to undergo surgery, this would normally be open surgical debridement and repair. It would be expected to reduce his symptoms and get him back to activities of daily living and comfort. It would not allow him to return to full robust activities such as concreting. Dr Hughes thought the main barrier to him returning to work was his bilateral wrist pain.

Dr Bassel Hassan – consultant neurologist

Dr Hassan reported to Dr Ramrakha on 14 December 2017.
Dr Hassan recorded a history of bilateral hand pain and numbness, present since 2013, following work related injury. The applicant used tools, including vibrating type tools, for long periods.
The symptoms the applicant described suggested musculoskeletal pain at the wrists, rather than carpal tunnel syndrome. However, he also described symptoms that suggested carpal tunnel syndrome.
Dr Hassan opined that the applicant had evidence of relatively mild carpal tunnel syndrome. Carpal tunnel release may help his nocturnal symptoms but was unlikely to have significant impact on his daytime symptoms.

Professor Arun Aggarwal – neurologist and rehabilitation/pain medicine specialist

Prof Aggarwal reported first to Dr Ramrakha on 7 February 2018. The applicant had been referred to him for a second opinion.
Prof Aggarwal recorded a consistent history of the injury in July 2017, and that the applicant had been using 60kg jackhammers and impact tools for a number of years. He had gradually developed bilateral wrist pain with associated numbness and paraesthesia. The symptoms affected all his fingers. He also had pain in his wrist, extending into his fingers.
The symptoms in the applicant’s hands tended to be worse in the day, especially when he was using them, but could also occur at night.
Prof Aggarwal noted the findings on MRI of the applicant’s right elbow in August 2017. MRI in November 2017 of his left wrist showed some flattening and hyperintensity of his median nerve, consistent with carpal tunnel syndrome with associated arthritis. Nerve conduction studies in December 2014 [sic 2017] showed evidence of mild bilateral carpal tunnel syndrome.
The applicant had been offered median nerve decompression and had an appointment with a hand surgeon in the next few weeks.
The applicant mentioned he had noticed his hands tended to swell at times. He had noticed increased swelling and his hands becoming red and mottled. He also had a burning sensation.
Prof Aggarwal opined that the applicant had mild bilateral carpal tunnel syndrome. He also had vaso-motor symptoms and signs suggesting he had developed a complex regional pain syndrome (CRPS). Prof Aggarwal had sought approval for a bone scan to look for evidence of this.
Prof Aggarwal reviewed the applicant on 10 April 2018.
The applicant had noticed improvement in his pain with medication, reducing from 10/10 to about 5/10. He did not want to stay on medications that were masking his pain, so he ceased them about a week ago, with his pain levels increasing to “11/10”.
The bone scan showed changes consistent with osteoarthritis. The applicant advised he had been reviewed by a second orthopaedic surgeon, who had also suggested fusion of his first carpo-metacarpal joints, but not carpal tunnel decompression.
Prof Aggarwal had commenced the applicant on Prednisone. He hoped a more generalised anti-inflammatory, rather than a localised surgical solution, would help improve his generalised inflammation.
On 22 May 2018, Prof Aggarwal reported that the applicant had noticed marked improvement in his pain after commencing Prednisone. As he weaned off it, he noticed a recurrence. On the higher dose, he felt slightly more agitated and irritable, but there were several life events that may have contributed.
The applicant felt his pain had improved by at least 50%, with pain levels at around 6/10. He felt much less angry, frustrated, and short tempered, as he was much more functional when using his hands.
Prof Aggarwal was very pleased with the applicant’s improvement. He adjusted the dose of Prednisone and sought approval for repeat nerve conduction studies to see whether it had improved Mr Lennon’s carpal tunnel syndrome.
On 8 August 2018, Prof Aggarwal reported that the applicant’s nerve conduction studies showed moderate bilateral carpal tunnel syndrome. EMG showed no evidence of denervation and upper limb somatosensory evoked potentials were normal.
Prof Aggarwal recommended that the applicant remain on Prednisone until he had his carpal tunnels decompressed, slowly reducing to a maintenance dose after surgery.
On 6 November 2018, Prof Aggarwal reported that the applicant felt his pain had been very well controlled since his last review. He had slowly weaned off Prednisone since his left carpal tunnel decompression on 16 August 2018. The numbness and paraesthesia and pain had completely resolved. He also felt his right sided symptoms were well controlled, as he had been attending hydrotherapy regularly. He was hoping to have his right carpal tunnel decompressed in the near future.
On 4 March 2019, Prof Aggarwal reported that the applicant’s symptoms had been very well controlled since his last review. The numbness and paraesthesia in both hands had completely resolved. He still had intermittent wrist pain, worse on the right, especially when he used his hands, so he still wore bilateral wrist splints. He described the pain as sharp and stabbing during the day. He remained on medication.
Follow up nerve conduction studies showed further improvement in the applicant’s bilateral carpal tunnel syndrome. EMG and upper limb somatosensory evoked potentials remained the same.
Prof Aggarwal was very pleased with the applicant’s symptom control. As his carpal tunnel symptoms had virtually resolved, he had reinforced the importance of stopping wearing his nocturnal splints. He had increased the dosage of Lyrica to further improve the neuropathic component of the pain, and suggested Celebrex as an alternative to Mobic.
On 2 July 2019, Prof Aggarwal reported that the applicant had noticed improvement in his bilateral wrist pain after increasing Lyrica and commencing Celebrex. However, when he reduced Lyrica and ceased Celebrex, he noticed recurrence of bilateral wrist pain, especially around the base of his thumbs. The pain was sharp and shooting.
The applicant had continued to have physiotherapy. His symptoms were not responding, as he had ongoing pain each time he ceased medication. He was no longer wearing his splints at night.
Nerve conduction studies showed the applicant still had very mild bilateral carpal syndrome. EMG and studies from his APBs showed no evidence of denervation.
Prof Aggarwal was pleased with the applicant’s pain and symptom control when he was taking his medication. He had reinforced its importance, and suggested he wear wrist splints at night. Ongoing physiotherapy was unlikely to be of significant benefit.
Dr Ramrakha again referred the applicant to Prof Aggarwal in November 2019. Prof Aggarwal reported on 5 November 2019 that Mr Lennon felt his pain had been very well controlled since his last review and had weaned off medication. He only occasionally had pain in his wrists, but this limited their use and he occasionally dropped things. He felt the numbness and paraesthesia had been very well controlled and as a result he no longer wore his splints.
Nerve conduction studies showed a slight deterioration, especially in the left carpal tunnel syndrome. EMG studies from his left APB showed no evidence of denervation.
Prof Aggarwal was pleased with the applicant’s symptom control, but as he occasionally had wrist pain that woke him, he suggested he remain on Lyrica at night, and continue to wear at least his left wrist splint.
On 3 March 2020, Prof Aggarwal reported that the applicant’s pain had not been well controlled since his last review. For the last six weeks, he had been riding his pushbike and swimming. He had noticed increased pain in his right wrist. He described it as a constant dull ache, rather than sharp, stabbing, or burning. He had increased his dose of Lyrica with little improvement.
The applicant felt the numbness and paraesthesia of his hands had been well controlled and he continued to wear bilateral flexion control wrist splints. Nerve conduction studies showed marginal improvement in his bilateral carpal tunnel syndrome.
As pain had recurred, Prof Aggarwal suggested the applicant recommence Celebrex and remain on Lyrica, but increase the dose.
On 7 July 2020, Prof Aggarwal reported that the applicant felt there had been some improvement in his pain since recommencing Celebrex. He had also slowly increased Lyrica, which he felt had improved his pain.
The applicant continued to have pain at the base of both thumbs, described as a “hammer” and pressure sensation. He did not describe the pain as sharp, stabbing, or burning. He had occasionally dropped things, as he felt numbness of his fingertips. He continued to wear nocturnal splints at least four times per week, and rigid splints during the day, mainly for protection.
Nerve conduction studies showed bilateral carpal tunnel syndrome. There was also evidence of bilateral ulnar neuropathies across the elbows. The applicant frequently leaned on his elbows during the consultation and did this quite a lot at home.
Prof Aggarwal was concerned that Mr Lennon continued to have ongoing median nerve dysfunction, despite having bilateral median nerve decompression in 2018. He had had post-operative imaging of his carpal tunnels, and Prof Aggarwal had asked him to provide the reports. He suggested the applicant increase Celebrex, remain on Lyrica, and continue to wear his nocturnal splints.
Dr Ramrakha again referred the applicant to Prof Aggarwal in March 2021. Prof Aggarwal reported on 19 March 2021 that the applicant continued to have ongoing bilateral wrist pain. He described it as sharp, stabbing, and electric shock-like. He obtained good relief from Lyrica.
Nerve conduction studies showed the applicant’s bilateral carpal tunnel syndrome had improved considerably. His ulnar neuropathies had resolved.
Prof Aggarwal was pleased with the improvement in the applicant’s carpal tunnel syndrome electro physiologically, but as he had ongoing wrist pain, he commenced him on Gabapentin and recommenced Celebrex for his underlying osteoarthritis. He should continue to wear his nocturnal splints.
Prof Aggarwal reported to the applicant’s solicitors on 30 June 2021.
The history of the injury to the applicant’s elbow and development of bilateral wrist symptoms was consistent. Prof Aggarwal noted his findings on examination and the results of the nerve conduction studies.
Prof Aggarwal reported that the applicant had mild bilateral carpal tunnel syndrome with signs and symptoms suggestive of CRPS. A bone scan had shown results consistent with inflammatory arthropathy. There were no radiological features to support the clinical diagnosis of CRPS.
The “events described by history” were a substantial contributing factor to the injury. The applicant indicated he was pain free before the injury in July 2017 and was not experiencing any pain in his wrists or numbness of his fingers before this event.
Prof Aggarwal opined that the applicant did not have an occupational disease, but an aggravation, exacerbation, acceleration or deterioration of a disease. He had an underlying degenerative condition that had been aggravated by the injury in July 2017. His employment could be considered to have aggravated, accelerated, exacerbated and deteriorated his carpal [tunnel] due to the heavy vibratory machinery used at work.
It was not reasonable for the applicant to have been totally unfit for work since
November 2017. Chronic pain patients in general have lower work rates but are still able to work (60% at seven years). The applicant was partially, not totally, unfit for work. He had the capacity to perform light and restricted duties.
The applicant had his left carpal tunnel decompressed in August 2018, after which the numbness and paraesthesia of his left hand completely resolved. Subsequently, he had his right carpal tunnel decompressed, after which the numbness and paraesthesia of his hand improved.
The applicant had noticed a marked improvement in his pain since he had been on steroid treatment. He was very functional, at one stage being able to ride a pushbike long distances and swim. He was independent with all activities of daily living and mobilised independently.
At his last review in March 2021, the applicant had a recurrence of bilateral wrist pain after running out of medication in January 2021. He was recommenced on anti-neuropathic medication Gabapentin.
Prof Aggarwal opined that it was likely that the applicant’s symptoms were related to the heavy manual work he was performing, and he was not fit to return to work as a labourer. He was able to work part time and perform light duties. He should avoid heavy lifting. Given his age, he may have limited options. He could work in a supervisory or overseeing capacity.
Prof Aggarwal reported that once acute pain fails to respond to conventional therapy, secondary mechanisms come into play. As a result, reversal of the pain becomes much more difficult, and it continues to be maintained, despite resolution of its initial cause.
It had been nearly four years since the applicant’s original injury. He needed to continue to take a more active role in his management. Prof Aggarwal had also reinforced the need to incorporate pacing into his daily routine.

Dr Douglass Wheen – hand surgeon

The applicant was referred to Dr Wheen for a second opinion about his wrist injuries.
Dr Wheen reported on 2 September 2018.
The applicant, who is left-hand dominant, had previously worked as a labourer, including shovelling, demolition, and use of jackhammers. He had presented with constant left hand numbness of all fingers, and central wrist pain. There was similar numbness and volar wrist pain on the right. He was constantly using a splint on each wrist.
Dr Wheen recorded that the onset of symptoms was in or about 2013, when the applicant was doing various demolition activities. He was seen by Dr Ryan and Dr Wheen believed he had injection of both STT joints, with some relief. He had also seen Prof Aggarwal, who diagnosed CRPS.
Dr Wheen diagnosed advanced osteoarthritis of the right and left STT joints. He agreed with Dr Ryan that either partial wrist (STT) fusion or excisional arthroplasty was appropriate. Either operation should be combined with carpal tunnel release.
It was unlikely the applicant would ever return to heavy labouring or demolition work. He wished to work as a safety officer, which seemed appropriate.

Dr Michael J McGlynn – plastic, reconstructive and hand surgeon

Dr McGlynn was qualified by Boral and reported on 21 February 2019. He recorded the date of injury as 1 November 2017, to the right and left upper limbs.
Dr McGlynn recorded a consistent history of the injury to the applicant’s right elbow on
19 July 2017. He was found to have an injury of the common extensor origin, which was treated with rest and physiotherapy. He returned to work in September 2017, and on 4 December 2017, his hand therapist reported the injury had resolved.
The applicant first noticed tingling and numbness in his fingers in early 2017. The symptoms were worse on the left and disturbed his sleep. He had multiple episodes of wrist, hand and finger pain at work, but on 1 November 2017, he noticed the onset of bilateral wrist pain at rest. Because it was present when he was not using tools, he saw his doctor. He had been off work since then.
Dr McGlynn referred to the applicant’s statement, which included multiple instances of wrist, hand and finger pain at work. He said the first occurred in 2014, shortly after starting work with DMG and having to use a jackhammer. He was treated at first aid but did not seek medical advice for any of these episodes of pain.
Dr McGlynn noted Dr Ryan’s diagnoses and the surgery performed in August 2018 and December 2018.
The applicant had a COC certifying him with no capacity for work and was to be reviewed on 20 March 2019. He had mild wrist pain at rest. It was made worse by wrist or thumb movement. He had tingling and numbness of the thumb, index, and middle fingers of both hands.

Dr Bodel opined that the applicant was not fit for labouring work. His prospects of returning to work were very poor. He had a very limited skill set, and at the age of 60, it appeared unlikely he would return to paid work. He assessed 4% WPI as a result of injury to the right upper extremity, and 2% WPI as a result of injury to the left upper extremity, a total of 6% WPI.
Dr Bodel next reported on 31 March 2021, having re-examined the applicant. He summarised his injuries as bilateral carpal tunnel syndrome and lateral epicondylitis in the right elbow.
The history recorded was largely consistent with that recorded in 2019.
The applicant complained of persisting symptoms associated with carpal tunnel syndrome and lateral epicondylar discomfort in the right elbow. He still had pain in both hands, worse on the left; pain in the distribution of the median nerve in each hand, with some tingling, but no numbness; and tenderness over the lateral epicondyle of the right elbow.
Dr Bodel had again seen ultrasounds of the wrists, MRI scans of the elbow and wrists, and X-rays of the wrists. The applicant had had a surgical implant in the STT joints, done by
Dr Ryan as part of the carpal tunnel release.
Dr Bodel opined that the applicant had bilateral carpal tunnel syndrome and STT osteoarthritis, as well as lateral epicondylitis in the right elbow. There had been no material change in his condition since the date of his last report. The injury had been caused by the nature and conditions of his work in general.
The injury to the applicant’s right elbow and wrists was the aggravation, acceleration, exacerbation and deterioration of a disease process. This had occurred as a result of the nature and conditions of work in general. The injury to his right elbow was not an occupational disease, but a constitutional degenerative process that had been made worse by aggravation, acceleration, exacerbation and deterioration caused by the work itself.
Dr Bodel confirmed that the applicant’s work was the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration to the disease process in the region of the right elbow, which was the lateral epicondylitis. Carpal tunnel is also a disease of gradual onset. There had been aggravation, acceleration, exacerbation and deterioration by the nature and conditions of work in general. Work was the main contributing factor.
Dr Bodel opined that the applicant had no capacity for work. He would probably remain totally and permanently unfit indefinitely for work for which he had the appropriate education, physical fitness, training and experience. He was certainly not fit to return to labouring work.
Dr Bodel had previously omitted to make an assessment for the implant surgery at the STT joint. He assessed 9% WPI as a result of injury to the right upper extremity, and 7% WPI as a result of injury to the left upper extremity, a total of 15% WPI.

SUBMISSIONS

The parties have provided written submissions, which I will summarise briefly.

Respondent in the interests of Boral

Boral submitted that the injuries alleged are:
(a)    19 July 2017 – s 4(a) – right elbow and bilateral carpal tunnel (left and right wrists) – the applicant bumped his right elbow whilst trying to start a leaf blower;
(b)    19 July 2017 (deemed) – a disease injury pursuant to s 4(b)(i) or (ii) - right elbow and bilateral carpal tunnel (left and right wrists) – due to the “nature and conditions of employment” including various heavy labouring type tasks described in the Application, and
(c)    1 November 2017 (deemed) – a disease injury pursuant to s 4(b)(i) or (ii) - right elbow and bilateral carpal tunnel (left and right wrists) – due to the “nature and conditions of employment” including various heavy labouring type tasks described in the Application.
Boral submitted that the applicant confirmed at the conciliation/arbitration hearing that his case on injury was pursued as pleaded.
Boral’s submissions were made on the basis that, should the applicant establish injury, then the matter is to be remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment, if any, said to arise from injury to the left and right upper extremities. The applicant’s entitlement to weekly benefits is to be deferred until that assessment has been conducted.
Boral referred to the applicant’s statements regarding the nature of his work, and his evidence that from 21 July 2016, he was taken off the tools at Barangaroo, there was no more jackhammering, and the heavy work complained of not being undertaken from then on. He stated “…I didn’t have to do this anymore, which is why I stopped having the injuries I was having”.
Boral also referred to the applicant’s evidence that he was in pain from July 2016 to
1 November 2017, but assumed it was coming from his elbow. It got worse and worse, so he went to his GP and got a COC on 1 November 2017.
Boral submitted that the applicant suffered the frank incident to his right elbow on
19 July 2017. This resulted in time off work, and he only ever returned to work on light duties, largely on restricted hours. On his case, the applicant has remained with some level of incapacity from 19 July 2017. The medical evidence supports the position that, whilst there was a frank incident, there was also a disease process in place, which was aggravated by the work undertaken until that point, thereby contributing to incapacity from that date.
Boral referred to the MRI of the applicant’s right elbow, dated 2 August 2017. It submitted that only the tendinopathy in the common flexor origin and soft tissue contusion were linked to the frank incident. The balance are all a “disease” that ultimately resulted in the applicant suffering an incapacity on 19 July 2017 and onwards, for which he did not ever return to full pre-injury duties.
Boral submitted that the applicant was in receipt of weekly benefits in the period at least from 21 August 2017 through 15 October 2017. He returned to work for one day on
16 October 2017, on light duties. He had an incapacity when he returned to work, noting he was on light duties. He has always had an incapacity for work from 19 July 2017 onwards.
Boral referred to the medical evidence of Drs Ramrakha, Ryan, Hughes, Hassan, McGlynn, and Bodel, as well as the investigations. Dr Bodel separated the disease type claim and the frank incident. While there is reference to 1 November 2017, it is conflated in relation to the frank incident.
Dr Bodel opined that the nature and conditions of the applicant’s work was causative of the lateral epicondylitis and the bilateral wrist conditions. Boral submitted his opinion should not be accepted. There is no reasoning, and it clearly offends the requirements for expert evidence in the Commission (referring to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 et al) (Makita).
Boral submitted there is a difficulty in the applicant establishing the disease injury as alleged. The factual evidence concerning the work undertaken, and the chronological onset of complaints does not support a finding of injury pursuant to s 4(b)(i) or (ii) of the 1987 Act. In addition, the chronology bears no semblance [sic] to Dr Bodel’s opinion on causation.
Boral submitted the applicant has not discharged his onus, as far as establishing that employment was the main contributing factor to the onset or aggravation of the disease process. It submitted there is an award in its favour concerning the allegation of a disease injury.
In the event that the Commission is against it on the above submissions, Boral made submissions on the correct date of injury.
Boral submitted that EML has paid compensation benefits to the applicant in relation to both the right elbow (including the disease type injury), and the bilateral wrists. The issue is the operation of ss 15 or 16 of the 1987 Act, as the case may be, concerning the date of injury and, as a consequence, who (EML or Boral) would respond to the claim.
Boral submitted that the disease claim deemed to have occurred on 19 July 2017, in relation to the right elbow, resulted in incapacity. The applicant did not ever return to his pre-injury duties following this injury. The consequence of this is that EML is liable to respond to the claim, noting it was on risk in the period up to 30 September 2017. The fact that the bilateral wrists were added to the claim is of no consequence. There is a disease process in the right upper extremity resulting in incapacity, which was then intercurrent with the bilateral wrist conditions.
Boral submitted that the applicant had not ever returned to full duties and was incapacitated from July 2017 onwards. Of note, he was off work and in receipt of weekly benefits in early October 2017 and returned to work on 16 October 2017 on light duties (thereby remaining incapacitated), then ceasing work and ultimately seeking treatment in relation to the bilateral wrists. The disease injury with a deemed date of 19 July 2017 is the correct date of injury.
Boral submitted that EML is liable for the disease injury, if same is found, and should respond to the claim. It has actually responded to the claim, paying treatment and medical expenses and weekly benefits.
As regards weekly benefits, Boral submitted that EML has paid weekly benefits pursuant to both ss 36 and 37 of the 1987 Act in the period from 14 September 2017 through
21 July 2019. The applicant has received 16 weeks of weekly benefits pursuant to s 36 (going beyond the scope of the legislation) and 109 weeks pursuant to s 37.
The consequence of this is that the applicant has an entitlement to a further eight weeks of weekly benefits, on the respondent’s case, pursuant to s 37 of the 1987 Act.
The applicant posits that there is a new injury (the disease injury) and an incapacity arising from that injury that entitles him to recommence a claim for weekly benefits. He alleges he has not received any weekly benefits in relation to this injury.
Boral submitted there is an obvious benefit to the applicant to recommence the claim for weekly benefits, as, on the evidence as it presently stands, he would not appear to be entitled to payments pursuant to s 38 of the 1987 Act. Conse quently, he has a limited entitlement.
Boral referred to the list of payments, which includes medical expenses in relation to the bilateral wrists, and payments pursuant to s 36 of the 1987 Act for greater than that to which the applicant might be entitled. The payments concerning the bilateral wrists are indicative that the applicant has in fact been paid weekly benefits pursuant to the disease type claim.
Boral submitted that the payment of 16 weeks weekly benefits pursuant to s 36 tends to the position that the applicant has been paid in relation to two separate injuries. This is supported when considering the COCs relied on from at least 1 November 2017, which refer to “Synovitis both wrists and thickening of median nerve, ganglion left wrist”.
The later COCs refer to the difficulties in relation to both wrists and an effusion of the right elbow. The benefits paid by EML were paid relying on similar certificates and in relation to both the allegation of the frank injury of 19 July 2017 and the disease injury with a deemed date of 19 July 2017.
Boral submitted that if the applicant establishes an entitlement to weekly benefits, in relation to the frank injury or the disease type injury, then the compensation available pursuant to
s 37 of the 1987 Act is limited.
Boral concluded that the Commission would not find that the applicant has discharged his onus to establish a disease injury. If it is against Boral, then it submitted that the deemed date of injury in relation to the disease type claim is 19 July 2017, and EML is liable to respond to that claim.
In reply to EML, Boral submitted that its submissions ignore the fact that the applicant, on his own evidence, was removed from work alleged to have been causative of the carpal tunnel condition by the time Boral was on risk. It submitted Dr Bodel relied on a history of injuries undertaken, which the applicant did not undertake from some time in early to mid-2016.
In reply to the applicant, Boral submitted that EML paid for surgeries concerning the bilateral carpal tunnel condition that forms the basis of the disease claim. The applicant’s assertion that EML has made no payments for the injury of 1 November 2017 is correct. There is no disease injury of 1 November 2017, noting the above. It arose at a date prior, at which time EML was on risk.

Respondent in the interests of EML

EML submitted that the categories of personal injury within the meaning of s 4(a) of the 1987 Act and disease injury within the meaning of s 4(b) are not mutually exclusive: Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD 13 at [67]; and Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31.
EML submitted that the applicant suffered a disease or aggravation, acceleration, exacerbation and/or deterioration of a disease of the hands and both wrists during Boral’s period of risk. For “aggravation” to be found, it is not necessary for there to be actual worsening in the disease itself, but for there to be an increase in the symptoms and restrictions resulting from the disease: Rural Press Limited v Hancock [2009] NSWWCCPD 160.
EML referred to the GP’s notes, and submitted that those on 20 July 2017 and prior, make no reference to the applicant’s injury to the wrists or hands.
EML relied on factual and medical evidence in respect of injury to the hands or wrists during Boral’s period of risk. It submitted that carpal tunnel syndrome is a disease of gradual onset: Perry v Tanine Pty Limited (1998) 16 NSWCCR 253.
EML disputed that the applicant suffers any ongoing incapacity during its period of risk. It relied on Dr Rimmer’s evidence. If the Commission is against it, it submitted the evidence that indicates any ongoing incapacity is due to injury in Boral’s period of risk is that the applicant was performing suitable duties prior to ceasing work following the injury with Boral. It also relied on Dr McGlynn’s supplementary report dated 25 October 2021.
EML concluded that there is a new injury to the applicant’s hands and wrists within Boral’s period of risk. It submitted that the applicant has recovered from any injury during its period of risk, and any ongoing incapacity is due to injury in Boral’s period of risk. Given there is a new injury with Boral, any weekly compensation paid by EML in the past would not count for the purposes of the entitlement periods for Boral’s injury.

Applicant

The applicant submitted that he has sustained two injuries in the course of his employment. On 19 July 2017, he injured his right elbow. He has given evidence of this event in his statement dated 24 May 2022.
The applicant referred to his subsequent medical treatment. He submitted that on
3 November 2017, Dr Ryan noted a second condition, distinct from the legacy of the direct blow to his right elbow. He considered the medial epicondyle to be the main source of his current elbow symptoms, having previously noted that he struck the posterior aspect on
19 July 2017.
The applicant submitted that the second injury is a condition of both the wrists and hands, the legacy of the very heavy work he performed from 2013 to 2 November 2017. Although the heaviest work ceased after 21 July 2017, it is clear his work continued to be demanding on his hands and wrists up to his last day of work. All the diagnoses made by Dr Ramrakha relate to his wrists and hands, rather than to his right elbow.
The applicant submitted that, after considering all the medical evidence, the Commission will be satisfied that he has established both of the injuries set out in Part 4 of the Application, that is:
(a) 19 July 2017, injury to right elbow (reinjured on 13 September 2017 in similar circumstances, i.e., a direct blow), and
(b) 1 November 2017 (deemed) injury of the type described in s 4(b)(ii), that is the aggravation, etc, of a disease to which aggravation, etc, employment is the main contributing factor. The s 4(b) aggravation, etc, is not restricted to the wrists and hands. There is also persuasive evidence that the applicant's right epicondylitis has been aggravated by his work.
The applicant referred to Dr McGlynn’s evidence, and submitted he conceded that manual activity can aggravate degenerative arthritis of the wrists, and carpal tunnel syndrome. He suggested those conditions can be aggravated by activity away from work. He did not suggest the applicant suffered an injury away from work, performing activities comparable to those performed at work. The aggravation relied on is the work he was required to perform with the respondent. He referred to AV v AW [2020] NSWWCCPD 9 at [78].
The applicant relied on the opinion expressed by Dr Ryan that the long-term symptoms, then in his right wrist, were related to the nature of his work. (Emphasis in original).
The applicant submitted that Dr Khan related his symptoms to his employment. Dr Rimmer did not address the nature of his employment, beyond taking a detailed account of the injury of 19 July 2017 to his right elbow. He referred to extensive medical literature to suggest that no occupation causes this condition. The applicant submitted this does not provide insight into whether employment can aggravate, exacerbate or accelerate the condition. (Emphasis in original).
When Dr Rimmer was asked about aggravation, he simply stated “Not applicable”. The applicant submitted this answer may be explicable, given that he was asked to consider aggravation only if he considered his condition to be described as a disease of gradual process.
The applicant submitted that Dr Wheen at least inferentially supported a link between his work duties and the condition diagnosed. He supported both arthroplasty of the right wrist and carpal tunnel release and considered the applicant unlikely ever to return to heavy labouring or demolition work.
The applicant referred to Ms Green’s evidence about the discussion she had with him and
Dr Ryan, when Dr Ryan said, “if you are going to do this type of work, after time, you will most likely end up with the injuries he was reporting”. The applicant referred to
Mr Taraborelli’s statement, which he submitted corroborated his evidence of using the type of tools and performing the type of work implicated by Dr Ryan.
The applicant submitted that Prof Aggarwal has provided support for the proposition that employment was the main contributing factor to the aggravation of the conditions he suffered and identified by Prof Aggarwal.
With this evidence before the Commission, the applicant submitted it can readily accept
Dr Bodel’s opinion, expressed on 31 March 2021.
The applicant submitted that he became incapacitated by his symptoms on
1 November 2017. By operation of s 16 of the 1987 Act, his injury is deemed to have occurred on that date. He submitted that the Commission would remit his claim under s 66 of the Act to the President for referral to a Medical Assessor to assess impairment of the right upper extremity (wrist and elbow), and the left upper extremity (wrist); and all the documents before the Commission should be available to the Medical Assessor.
The applicant submitted the Commission would order the respondent to pay his reasonable medical expenses, pursuant to s 60 of the 1987 Act, for treatment of his wrists, hands, and right elbow.
The applicant seeks weekly benefits in accordance with his wage schedule. He submitted that, as his injury falls within s 4(b)(ii) of the 1987 Act, it occurred on 1 November 2017. No payments of compensation made prior to 1 November 2017 could be asserted to be made in respect of this injury.
The applicant submitted that the change in duties to which counsel for Boral referred is immaterial to the determination of liability. There is one employer. He continued in employment until 1 November 2017. “Incapacity” within s 16 of the 1987 Act has the same meaning as in s 34: White v Sylvania Lighting Australasia Pty Ltd [2011] NSWWCCPD 7 at [59] (White).

An application was made to Boral on 9 March 2021, bearing claim number NSW-2019-0031, for continuation of payments after 130 weeks. Liability to pay weekly benefits, inter alia, was denied by Boral on 1 December 2021. The applicant submitted that counsel for Boral is incorrect in asserting that he does not appear to be entitled to s 38 payments. The COCs of Dr Ramrakha attached to his Application to Admit Late Documents are all to the effect that he has no residual capacity for employment.
The applicant submitted that payments made by EML were made exclusively for the injury he sustained during EML’s period of risk. EML has made no payments, nor could it be expected to, for the injury of 1 November 2017.
It is correctly noted by counsel for Boral that consideration of an entitlement to weekly benefits is to be deferred until the Medical Assessor has issued a Medical Assessment Certificate.

SUMMARY

Section 4 of the 1987 Act provides:
“‘injury’ –
(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means--
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”
Section 16 of the 1987 Act provides:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease--
(a) the injury shall, for the purposes of this Act, be deemed to have happened--
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
(2) Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case--

‘C’ is the contribution to be calculated for the particular employer concerned.

‘T’ is the amount of compensation to which the employer is required to contribute.

‘A’ is the total period of employment of the worker with the employer during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.

‘B’ is the total period of employment of the worker with all employers during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.
(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.
(4) This section does not apply to an injury to which section 17 applies.”
The applicant sustained a frank injury to his right elbow on 19 July 2017. That injury is not in dispute. His case is that, in addition, he has sustained injury to his right elbow as a result of the aggravation, acceleration, exacerbation or deterioration of a disease, to which his employment was the main contributing factor.
The applicant also claims to have sustained injury to his left and right wrists, as a result of the aggravation, acceleration, exacerbation or deterioration of a disease, to which his employment was the main contributing factor. For convenience, I will refer in these reasons to aggravation.
While the Application pleads that the injury to the applicant’s left and right wrists was carpal tunnel syndrome, the matter proceeded on the basis that he also sustained aggravation of degenerative arthritis in both wrists, as well as aggravation of right elbow epicondylitis (which is pleaded in the Application). This aggravation is claimed to be due to the physically demanding conditions of his work for the respondent.
The applicant has given evidence about the nature of the work he did for the respondent.
Dr Rimmer reported that statements from employees of DMG categorically deny the applicant’s evidence about that work. I note that the factual investigation carried out by Virtual Intelligence, dated 5 March 2018, to which statements of the applicant and Ms Green are attached, referred to the evidence of other witnesses, and the applicant has referred to it, but it is not before me.
Dr Rimmer referred to a supplementary factual investigation report dated 19 April 2018, but it is also not before me.
I give little weight to Ms Green’s evidence as a whole. She opined on matters that were clearly outside her area of expertise, and her main concern appeared to be whether the injuries were reported. Her evidence is, however, supportive of the applicant in that she confirmed what he told Dr Ryan about his duties, and that Dr Ryan said that would most likely end in the injuries he was reporting.
Mr Taraborrelli also did not “categorically deny” the applicant’s evidence about the nature of his duties. He confirmed that the applicant used kangas, possibly large jackhammers, probably the buffers, an electric saw, and possibly a sledgehammer. He confirmed that the applicant had to chop out stressing pans.
I accept the applicant’s evidence about the type of work he performed for the respondent. It is confirmed by entries in Dr Ramrakha’s clinical records and consistent with the histories provided to his treating specialists and qualified practitioners. It is not adequately traversed by other lay evidence. I accept that it was physically demanding work, as he has claimed.
It does not appear to be in dispute that the applicant had carpal tunnel syndrome in both hands. He underwent surgery to each wrist, performed by Dr Ryan.
Prof Aggarwal, who reviewed the applicant over several years, opined that his employment could be considered to have aggravated his carpal tunnel, due to the heavy vibratory machinery he used at work.
Even Dr McGlynn, who opined that the applicant’s carpal tunnel condition was not due to his employment, conceded that manual activity can aggravate arthritis of the wrist and carpal tunnel syndrome. He opined that the incidence of carpal tunnel syndrome is increased in the presence of STT or wrist joint arthritis. The degenerative arthritis was the likely cause of the bilateral carpal tunnel syndrome.
Dr Ryan believed the applicant’s main problems related to arthritis around the scaphotrapezial joint of both wrists, and some carpal tunnel syndrome. He was familiar with the nature of the applicant’s work. He opined that, at the least, his degenerative arthritis had been aggravated by the nature of his work. He expressed the opinion that the long term symptoms, at that stage in the right wrist, were related to the nature of the applicant’s work.
I do not accept that Dr Bodel’s opinion offends the principles of Makita. I have accepted the applicant’s evidence, supported at least in part by Mr Taraborrelli, about the work he performed for the respondent.
As regards the applicant’s wrists, Dr Bodel opined that the injury was the aggravation of arthritic changes and carpal tunnel syndrome. That is consistent with the evidence of the applicant’s treating specialists, although Dr Bodel also ascribed the development of the carpal tunnel syndrome to the nature and conditions of employment.
I accept the evidence of Prof Aggarwal, Dr Ryan and Dr Bodel that the applicant sustained aggravation of carpal tunnel syndrome and arthritis of his left and right wrists in the course of his employment with the respondent.
I prefer their evidence to that of Dr Rimmer. I accept the applicant’s evidence about the nature of his work, which Dr Rimmer did not. As the applicant submitted, his opinion that no occupation causes carpal tunnel syndrome does not provide insight into whether employment can aggravate the condition. His opinion that aggravation of a disease was not relevant may be explicable because he did not believe that the applicant’s condition was best described as a disease.
In order to establish injury pursuant to s 4(b)(ii) of the 1987 Act, the applicant must prove that his employment was the main contributing factor to the aggravation of the disease.
It was held by Deputy President Snell in AV v AW that the test of “main contributing factor” involves a broad evaluative consideration of potential competing causative factors. It should be decided on the evidence overall and is not purely a medical question.
Snell DP also agreed with what Roche DP said in State Transit Authority of New South Wales v El-Achi[2015] NSWWCCPD 71 (El-Achi), that the test of main contributing factor is one of causation.
The applicant obviously had to use his hands for activities outside those in which he was involved while working for the respondent. However, having considered his evidence about his employment, and the medical evidence, I am satisfied that his employment with the respondent was the main contributing factor to the aggravation of the disease affecting his left and right wrists.
The next issue to be determined is whether the applicant has also sustained an aggravation of a disease in his right elbow.
As the applicant submitted, on 3 November 2017, Dr Ryan noted a second condition of his right elbow. MRI showed medial and lateral epicondylitis. He had previously noted asymptomatic changes of lateral epicondylitis. The applicant’s symptoms immediately after the injury on 19 July 2017 were at the posterior and lateral aspects of the elbow.
Dr Ramrakha recorded on his examination of the applicant on 22 March 2019 that he had both medial and lateral epicondyle tenderness.
Dr Bodel opined that the applicant had a constitutional degenerative change in the lateral epicondyle of the right elbow. He had never completely recovered from the injury on
19 July 2017. He opined that the condition had been aggravated by the nature and conditions of the applicant’s employment. He has recorded the type of work performed by the applicant. I have already said that I accept the applicant’s evidence in that regard.
Dr Rimmer opined that the applicant had recovered from the frank injury to his right elbow. However, in September 2019, he recorded that the applicant complained of intermittent pain in both the posterior and anterior aspects of the elbow; and in December 2021, he reported that the applicant complained of tenderness of the lateral aspect of the elbow.
Dr Rimmer did not consider that the condition of the applicant’s right wrist and elbow, or his left wrist, was a disease of gradual process. He has therefore not opined on the issue of whether employment has aggravated a disease of the right elbow.
I prefer the evidence of Dr Bodel, which is supported by that of Drs Ryan and Ramrakha, that the applicant has sustained injury to his right elbow as a result of the aggravation of a disease. Dr Bodel had a history of the work performed by the applicant, which I accept as accurate, as did Drs Ryan and Ramrakha.
I accept that the applicant’s employment was the main contributing factor to the aggravation of the disease process of his right elbow. Once again, the principles of AV v AW and El-Achi apply. The applicant’s work activities were such that their effect would far outweigh any day to day activity outside his work environment.
The applicant submitted that the injury to his right elbow, right wrist, and left wrist is deemed to have occurred on 1 November 2017, when he became incapacitated for work as a result of his symptoms.
As Roche DP held in White, the deemed date of injury pursuant to s 16 of the 1987 Act, is the time of the worker’s death or incapacity. In this case, that date is 1 November 2017.
The applicant has sustained two injuries, to his right elbow on 19 July 2017; and to his right elbow, right and left wrists, deemed to have been sustained on 1 November 2017.
The matter will therefore be remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury to the right upper extremity (right elbow) on 19 July 2017; and to the right upper extremity (right elbow and right wrist) and left upper extremity (left wrist), deemed to have been sustained on 1 November 2017.
The Medical Assessor is to be provided with all the documents in evidence before the Commission and a copy of these reasons.
The matter is to be listed for further preliminary conference before me after the issue of the Medical Assessment Certificate, at which time directions will be made regarding the claim for weekly benefits and medical expenses.
The orders are as set out in the Certificate of Determination.

[2022] NSWPIC 664

30 November 2022