Napper v Buckley's Rural Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Napper v Buckley's Rural Services Pty Ltd [2025] NSWPIC 456
APPLICANT:	Tye Napper
RESPONDENT:	Buckley's Rural Services Pty Ltd
MEMBER:	Parnel McAdam
DATE OF DECISION:	4 September 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; disease injury; applicant suffered renal failure; worked in a weed spraying business; significant chemical use; whether disease contracted in the course of employment to which employment the main contributing factor; different diagnoses given; consideration of medicolegal and treating diagnoses; date of injury in circumstances where first incapacity unclear; whether disposal of medical waste from dialysis reasonably necessary medical treatment; Held – applicant suffered an injury; employment main contributing factor to that injury; date of injury determined on first attendance for kidney biopsy; disposal of medical waste not reasonably necessary; directions issued for further conduct of matter.
DETERMINATIONS MADE:	The Personal Injury Commission (Commission) determines: 1. The applicant contracted a disease injury in the course of employment, to which employment was the main contributing factor to contracting the disease. 2. The injury is deemed to have occurred on 12 July 2018. 3. There is insufficient information contained to determine the applicant’s entitlement to weekly compensation benefits, including the calculation of pre-injury average weekly earnings (PIAWE). 4. Award for the respondent for the claimed medical expenses particularised in the Application to Resolve a Dispute, being “medical waste disposal”. 5. The respondent is to otherwise pay the applicant’s incurred medical expenses pursuant to s 60 of the Workers Compensation Act 1987 as particularised in the Application to Resolve a Dispute. The Commission directs: 1. The parties are to have discussions to attempt to resolve the issues regarding the entitlement to weekly compensation, including the PIAWE based on a date of injury of 12 July 2018. 2. If the parties are unable to reach an agreement on the calculation of PIAWE, or the award of weekly payments that are to be made, they are to lodge and serve the following: (a) the applicant, within 21 days of the date of this decision, a wages schedule attaching an explanation of the calculation of PIAWE, with references to appropriate evidence in support, and orders that it seeks the Personal Injury Commission (Commission) make concerning an award of weekly payments, and (b) the respondent, seven days following the date set out above, a wages schedule with the same attachments and explanation as above, in reply to that set out by the applicant. 3. Liberty to apply in respect of the above directions. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Napper is in an unenviable health situation. He is a young man, awaiting a kidney transplant, facing regular dialysis to keep him alive. He was, for a period, able to manage by undertaking dialysis at home. He is now undertaking dialysis at a medical facility. He is close to the top of the kidney transplant list, but even if that eventuates, he may be required to have another transplant, and will need to take immune suppressing drugs for the rest of his life. His kidney disease has had a significant impact on his life.
There is no dispute that Mr Napper has kidney disease, or lack of empathy for the position he finds himself in. The issue is whether the kidney disease arose out of Mr Napper’s employment in accordance with the requirements of the workers compensation legislation, and ancillary issues regarding the appropriate date of injury and incapacity.
Mr Napper claims that due to the use of chemicals in employment he contracted kidney disease. There is a dispute as to the nature of Mr Napper’s kidney disease, as well as to whether he has satisfied his onus to prove that it was an injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) injury and main contributing factor pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b) the appropriate deemed date of injury (if injury is found) pursuant to s 15 of the 1987 Act, and
(c) whether certain medical expenses are medical or related treatment as provided for in s 59 of the 1987 Act and/or are reasonably necessary pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

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.
This matter proceeded to conciliation/arbitration on 26 June 2025. Mr Napper was represented by Mr Hanrahan of counsel, instructed by Melinda Griffiths Lawyers. The respondent was represented by Ms Warren of counsel, instructed by Hickson’s Lawyers. Discussions occurred about the scope of the dispute on that occasion. Given the complexity of the issues raised, it was agreed that the matter would proceed by way of written submissions and accordingly a direction was issued setting out a timetable for same. The applicant, due to an administrative error, mis-diarised the due date for submissions and an extension of time was granted on 30 July 2025.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    An Application to Lodge Additional Documents, attaching certain material safety data sheets, lodged by the applicant on 1 July 2025.

Statement evidence

There are three statements provided in this case. Two by Mr Napper, and one from Mr Ethan Houghton-Smith, a work colleague of Mr Napper’s.
Mr Napper’s first statement is dated 22 January 2020. He describes his “condition for the purpose of this claim” as stage four kidney failure. He describes his work history with the respondent from 2013 to 2018, but notes that at the time of diagnosis, he was employed by a different employer.
Mr Napper was diagnosed on 31 October 2018 with chronic kidney disease. Mr Napper discloses recreational drug use and smoking. Mr Napper describes his role as “spraying using the attached hoses to the utility”. The role involved the mixing of chemicals:
“This would involve me mixing around 200ml of the chemicals into the large tank on the back of a utility and pump water into that tank from a creek or dam. I would firstly mix the chemicals in a small bucket that would then be poured into the large tank on the back of the utility. I would use side rails to climb onto the utility to conduct this process. I was not required to mix the water and chemical in the tank.”
Dye was added to the water. Mr Napper describes being provided with documentation about the use of chemicals and hazards. Mr Napper sets out the protective clothing he was provided with, including overalls, lurex gloves, steel cap boots but no requirement for a face mask or gloves whilst spraying. Mr Napper attributes his injury to exposure to chemicals by inhalation and absorption through the skin due to spillage. He nominates Round Up and Grazon in particular, but also “some other chemical boosters”.
Mr Napper then goes through the history of the diagnosis of his kidney disease, and treatment for it (up until the date of the statement, which is over five years old at this point).
Mr Napper provides a supplementary statement dated 6 April 2025. He sets out the medical treatment since the injury, including dialysis and the medications he requires. Mr Napper sets out his restrictions for work since his diagnosis:
“I have been unable to work on a committed full-time basis as my treatment requires me to receive dialysis for five and a half hours three times a week. I also need to attend medical appointments on a regular basis to so that my condition can be monitored.”
He also discusses the impact on his life from the kidney disease.
Mr Houghton-Smith provides a statement dated 3 November 2024. He worked for the respondent from around October 2017, for approximately four months. He performed the same role as the applicant. He sets out the chemicals used, being Round Up Biactive Herbicide (Glyphosate), Grazon Extra Herbicide and DuPont Brush-Off. He describes mixing the chemicals, including a dye, in a similar manner to Mr Napper.
Mr Houghton-Smith describes exposure to chemicals. The workers were provided with chemical resistant work boots and cotton overalls. Most of the workers did not wear clothes apart from underpants under their cotton overalls, due to the heat. Mr Houghton-Smith describes mixing chemicals, which would spill over the gloves, soaking the overalls and onto the skin. Mr Houghton-Smith also describes his socks being soaked with chemicals, which was obvious due to the dye. The workers would also be exposed to the spray when walking back through areas that had been treated, or due to wind.

The claim and dispute notices

Mr Napper first made a claim for compensation on 15 December 2020. He describes the tasks he was doing as “spraying noxious weeds with toxic chemicals” and “killing wildlife with toxic chemicals”. The injury is said to be “stage 4 end kidney disease/failure”, the injury caused by:
“Over exposure to toxic chemicals without correct PPE.
Negligence in spraying weeds in incorrect conditions against chemical law”
That claim was disputed via s 78 notice on 7 October 2021. The respondent raised disputes as to ss 4, 9(a), 33, 59 and 60 of the 1987 Act.

The expert evidence

There is a dispute between the independent medical experts engaged by the parties in this case. Mr Napper relies on the opinion of Professor David Gracey, a renal physician. Professor Gracey provides reports dated 18 July 2022, 27 April 2023, 15 October 2024, and 11 March 2025. Professor Gracey’s reports are comprehensive and I do not intend to summarise them in detail here. Given the issues in dispute, I will refer to them in more detail in my findings and reasons.
The initial referral and thus first report of Professor Gracey appears to have been on the basis of whether Mr Napper was appropriately treated, back to September 2015. Professor Gracey suggests that there were hallmarks of chronic kidney disease at that point, and Mr Napper required a renal biopsy in 2015. There are discussions about a kidney transplant and prospective life expectancy. There is no commentary, in this report, on the causation question in respect of employment.
In the report of 27 April 2023, the effects of the kidney transplant and risks associated are discussed. Again, this report is not particularly relevant to the issues in dispute and does not address the causation question.
By 15 October 2024, Professor Gracey was asked to provide an opinion “commenting upon the role Mr Napper’s employment and use of various chemicals that he was exposed to during his work” had on the chronic kidney disease and diagnosis. Amongst a long discussion, of a medical and highly technical nature, Professor Gracey discusses Mr Napper’s symptoms he experienced whilst employed:
“It is likely that Mr Napper was experiencing recurrent episodes of acute kidney injury due to occupational factors including exposure to herbicides and organophosphates, as well as recurrent episodes of intravascular volume depletion and inadequate oral intake; particularly when he had nausea and vomiting likely as a result of occupational exposure.”
Professor Gracey states that “it is likely that Mr Napper had recurrent acute organophosphate poisoning with dangerous levels of exposure to various herbicides.”
Professor Gracey opines that “it is likely that Mr Napper is suffering from a work-related disease”. He identifies exposure to various chemicals as causative, and does not identify any other risk factors. Professor Gracey goes on to comment on the reports of Dr Slezak (who provides opinions for the respondent). He provides the following reasons for disagreeing with the opinion:
“Hence, I also disagree that this case simply represents idiopathic mesangiocapillary glomerulonephritis. This postulate does not explain the severe chronic changes seen at the time of Mr Napper’s biopsy, nor does it explain his recurrent, intermittent symptoms including macroscopic haematuria at the time he was exposed to the weed killers.”
Professor Gracey also comments on the qualifications of Dr Slezak, who is a general physician, compared with that of a special Nephrologist, noting that it is a particularly complex and highly specialized field.
The report of 11 March 2025 comments on Mr Napper’s capacity. Professor Gracey comments that it would be “impossible for him to work currently in any capacity”. He goes further to suggest that Mr Napper “has had no capacity to work since the date of his diagnosis in 2018”.
The respondent relies on the opinions of Dr Slezak. He provides two reports, dated 3 March 2021 and 17 August 2021. He is described as a physician. It is not clear whether he has a subspeciality in nephrology, and Professor Gracey comments upon the specific complexities involved in that kind of work. Dr Slezak takes a consistent employment history of the use of weed spraying materials.
In his report of 3 March 2021, Dr Slezak diagnoses end-stage chronic renal failure. He discusses reports in the medical literature of chronic kidney disease of unknown aetiology in agricultural and manual works exposed to pesticides. He opines that:
“On Mr Nappers’ description of his work activities, one must therefore be very suspicious taking into account the timeline of exposure that significant Glyphosate exposure in the absence of any protective apparatus may well be the culprit of Mr Napper’s end-stage renal disease.”
It is not clear here whether Dr Slezak is suspicious of the causal connection, or suspects that significant Glyphosate exposure caused Mr Napper’s condition. It is a clumsily expressed opinion.
He goes on to diagnose “End-stage chronic renal failure, very likely secondary to significant pesticide exposure (Glyphosate)”.
Dr Slezak provides a filed review and report dated 17 August 2021. This was prepared after the review of a series of medical records from various sources. He discusses that material and states:
“The aetiology of Mr Napper's mesangiocapillary glomerulonephritis remains uncertain. The ‘full house’ immunoglobulin/complement deposition as evidenced on immunofluorescence does strongly suggest an immunological basis to the renal injury. Appropriate detailed immunological evaluation has excluded underlying conditions such as lupus erythematosus, systemic vasculitis and in the absence of any demonstrable specific cause, the working diagnosis must remain that of ‘idiopathic’ immune complex-mediated mesangiocapillary glomerulonephritis.” (emphasis in original)
He states that on review, the basis of Mr Napper’s renal disease would be due to:
“idiopathic immunecomplex-mediated mesangiocapillary glomerulonephritis, rather than any workplace renal injury due to the nature/conditions of employment/pesticide exposure.”

Clinical and treating records

There are comprehensive treating records before me. Obviously given the complexity, nature, and consequences of Mr Napper’s condition, there are a large number of records available. I will outline those in brief here, and expand upon the relevant records in my reasons below.
As indicated in the report of Professor Gracey, it is likely that Mr Napper’s symptoms related to kidney disfunction started in September 2015. This is evident through an analysis of the clinical records of Snowy River Health Centre. On 1 September 2015, he attended Dr Lowe, who records “last 304 days reports haematuria” (blood in the urine). The words “? Cause of haematuria” also appear. On 3 September 2015, significant haematuria was reported. Urine tests were performed. A result was received on 5 September 2015, which records “consistent with GN”, which is likely to refer to glomerulonephritis. By 30 September 2015, it is recorded “review of bloods – improving”.
There are no further references to any potential kidney issues (or similar symptoms) until 21 June 2018, following a blood test performed (for unrelated reasons). That attendance records “Deteriorating renal function Recommend renal referral”. Mr Napper was referred for a renal biopsy but was unable to compete it due to high blood pressure.
Mr Napper underwent the biopsy on 12 July 2018. On 25 July 2018, it is recorded:
“Clinically consistent with IgA Nephropathy
Biopsy is unusual
Some potential of ? lupus however bloods not consistent with this”
By 14 September 2018, Mr Napper was reporting left flank pain. The first reference to the condition Mr Napper suffers (chronic kidney disease, stage 4) appears on 28 September 2018. In October, Mr Napper reported swelling and fluid retention as a result of his kidney disease. On 9 November 2018, there is still a question over the cause: “? Cause of nephropathy”. Mr Napper started dialysis towards the end of April 2019, after a period of preparation and issues with blood pressure.
There is a letter from Dr Lemech, a vascular surgeon, commenting on Mr Napper’s suitability as a transplant recipient from 1 July 2020.
Dr Luxton, a renal medicine specialist, provides a report dated 3 June 2020. He refers to “GN” stating that the cause is not clear, “though he had heavy exposure to agricultural chemicals”.
There are discharge summaries from Canberra Hospital, related to attendances following the insertion of a catheter for dialysis. The diagnosis is end stage renal failure (ESRF) “secondary to mesangiocapillary glomerulonephritis”. In a report of 26 June 2018, during the investigatory stage of the illness, Dr Puri records a history of haematuria which “originally began in 2015, where he had some episodes of frank haematuria in the context of a severe chest infection”. However, on review of the general practitioner’s notes, the episode of chest infection was eight weeks prior to the appearance of haematuria. This commentary is likely based on the referral from Jindabyne Medical Practice dated 21 June 2018, which associates the frank haematuria with a vial type illness in September 2015, but again this history is slightly different to that shown in the clinical records.
The diagnosis of mesangiocapillary glomerulonephritis consistently appears throughout clinical reports in 2018 and 2019, following on from Mr Napper’s first diagnosis, and commencement of treatment regime including dialysis. There are various discussions about treatment including medications. There was a period of difficulty with high blood pressure and various attempts to control this.
On 13 August 2018, there is a reference to recreational drug use including cocaine and mushrooms. Dr Singer postulates that “potentially the interstitial disease is due to the use of mushrooms and I will try to get them identified via the ANU”. This hypothetical has informed, in part, the disputed diagnoses of the cause of Mr Napper’s kidney disease, although this has been addressed by Professor Gracey.
A letter from Dr Singer at Canberra Hospital is dated 13 September 2019. At this point Mr Napper was moving to the Sunshine Coast, and the letter serves as a background and introduction for the renal unit there. It is stated that “the cause for his kidney failure is unclear”, but “the working diagnosis was that it was a reaction to herbs”. This is similar to a letter from Canberra Hospital that is unsigned, addressed to Dr Lowe and dated 13 August 2018. That records “His current problems were preceded by consuming an unknown mushroom and he uses cocaine recreationally every couple of weeks”.

On 10 September 2018, Dr Singer again discusses the potential causative connection with mushrooms. He sent a photograph of the mushrooms to a mycologist who confirmed that they “all appeared to psylobine species”, but that “Magic mushrooms are not known to cause kidney disease, but that does not necessarily mean much”.
Mr Napper briefly lived in the Sunshine Coast area but then returned to New South Wales, and was treated at Shellharbour Hospital. A letter from Dr Murali dated 24 December 2019 describes “end stage kidney disease, the aetiology of which is not known to me”.
Dr Luxton of Prince of Wales Hospital provides a report dated 3 June 2020, concerning the transplant waitlist. He states “The cause of his GN is not clear though he had heavy exposure to agricultural chemicals. In view of possible recurrence post transplant I would be keen to review his histopathology.” From this record forward, there are references to the exposure to chemicals (variously as insecticides, pesticides, herbicides, and organophosphates). On 30 November 2020, Dr Murali records that:
“Patient is obsessed that his renal disease is due to the exposure to insecticides used as part of his job, a belief which Tye had before, but reportedly reaffirmed by the Naturopath he is consulting.”
Dr Cuthill provides a letter dated 27 May 2021, responding to questions raised by the insurer following the claim being made by Mr Napper. He sets out a history of diagnosis in June of 2016 (which is potentially a typographical error). He states that “Mr Napper attributes his renal failure to 5 years of daily heavy exposure to RoundUp/Grazon”. He opines “On initial review of the available literature, I advised Mr Napper that the evidence for causation of renal injury from glyphosate was weak”. Dr Cuthill acknowledges that he is not a renal physician.
Dr Luxton comments on the agricultural chemical exposure on 3 June 2021. He states that:
“this is not a recognised association with MCGN however there is an epidemic of CKDU (chronic kidney disease of unknown origin) in agricultural workers particularly in developing countries in warmer climates and there has been some research suggesting this may be linked to pesticides – however the pathology is quite different and is that of an interstitial nephritis.”
He ultimately concludes that he does not have enough information to comment on the impact of the agricultural exposure.
Dr Murali provides a report dated 23 June 2021, reporting on a kidney biopsy from July 2018 that showed “a pattern of abnormalities that can be categorized as ‘immune complex‑mediate messangio-capillary glomerulonephritis”. Further explanation of that condition is provided:
“Mesangio-capillary glomerulonephritis is a type of kidney disease, which can be caused by different infections like Hepatitis B, Hepatitis C or chronic bacterial infections and no such infections have been identified in Tye. The condition can also be caused by several specific multi-system autoimmune diseases which include Lupus, and no such disease has been identified in Tye. In a proportion of cases no specific cause can be identified and this is known as ‘idiopathic’. The cause of the mesangio-capillary glomerulonephritis pattern in Tye Napper is currently considered to be ‘idiopathic immune complex-mediated mesangio-capillary glomerulonephritis’.”

SUBMISSIONS

Due to the medical complexity of this case, as well as the close analysis of the determination of the dispute necessitates, it was agreed that the matter would proceed by the way of written submissions. I am grateful to the parties for what are comprehensive submissions relevant to the issues in dispute. Below is a summary of the submissions provided but due to their length I will not repeat them in full.

Applicant’s submissions

The applicant submits that the disease condition was insidious and of gradual onset. The diagnosis was made five months after the applicant ceased employment with the respondent. The applicant concedes that at the time he ceased work with the respondent, he was not aware of his diagnosis and was not aware of earlier symptoms of haematuria were signs of his condition. The condition has been described as end-stage renal failure, secondary to glomerulo-nephritis. The applicant notes that the diagnosis is atypical and complex.
The applicant refers to his statement which sets out his exposure to herbicides. He was provided with boots and cotton overalls, but no gloves and no face protection. The chemical sprays would soak through overalls which would be worn all day. It was impossible to avoid contact with the freshly sprayed weeds, and if there was a breeze the chemicals would blow over him.
The applicant refers to the material safety data sheets of the products used by Mr Napper, being RoundUp, DuPont Brush-Off and Grazon.
The applicant asserts that his condition stems from his exposure to chemicals while spraying noxious weeds without proper personal protective equipment. The applicant then goes through the treatment history undertaken by Mr Napper, as well as the medico-legal opinion of Professor Gracey, submitting that his reports provide strong support for the applicant’s claim, whilst disagreeing with the “idiopathic” conclusion expressed by Dr Slezak for the respondent.
The applicant notes that Dr Slezak initially stated that it was “very likely” that the cause was occupational, however, later determined that it was “idiopathic” without adequate or complete reasoning. The applicant submits that Dr Slezak failed to consider the full clinical picture described extensively by Professor Gracey. The applicant also discusses the other potential diagnoses, including that of Dr Singer at Canberra Hospital and Dr Murali, who is the applicant’s current treating specialist. The applicant submits that neither view is illuminating.
The applicant submits that in terms of incapacity, that he is unfit for work, but to his credit he works casually at a nutrition shop.
The applicant submits that the deemed date of injury should be determined from May 2018 when he ceased work with the respondent, as he was partially incapacitated by his symptoms due to his (as yet) undiagnosed condition.
The applicant submits that the medications prescribed and the costs associated with the disposal of medical waste should be considered to be medical or related treatment and are justified pursuant to s 60.

Respondent’s submissions

The respondent submits that the Commission would not be satisfied that the applicant’s disease injury was contracted by the applicant in the course of his employment with the respondent, nor that his employment was the main contributing factor to contracting the disease. The respondent notes that the applicant bears the onus in this regard.
The respondent submits that there are issues with the reliability of the applicant’s evidence. It is noted that the statement was completed on 22 January 2020 and supplementary statement on 24 March 2025, a significant period after the applicant ceased employment with the respondent. The respondent referred to Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Vergottis) and Watson v Foxman (1995) 49 NSWLR 315 at 319 (Watson).
The respondent submits that the applicant’s evidence through the passage of time became an impression from which plausible details were subconsciously reconstructed. This informs Professor Gracey’s opinion and thus undermines it.
The respondent follows by referring to the applicant’s drug use including marijuana and cocaine, noting that the applicant has given evidence that he ceased marijuana use in 2017 following the commencement of drug testing at work, but also that he continued to use marijuana and cocaine on an intermittent basis until his diagnosis in October 2018.
The respondent then summarises the relevant clinical records up until 6 December 2018, as well as the specific reports from various treating specialists Mr Napper has engaged with. The respondent relies on the report of Dr Slezak.
In respect of the opinion of Professor Grazey, the respondent submits that his opinion is based on a history of the development of symptoms that is inconsistent with the applicant and treating records, and accordingly little to no weight should be placed upon the opinion.
The respondent then deals with the date of injury issue, with reference to Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135 (Haddad). The respondent submits that there is no evidence of incapacity arising from injury during the time that the applicant was employed by the respondent. The respondent points to what it says are inconsistencies in the applicant’s evidence concerning his capacity to work, which suggest he was working, certified as able to work, or had some capacity for periods after the purported first date of incapacity relied on by the applicant. The respondent submits that the deemed date of injury would be 6 December 2018. The respondent submits that the Commission would not be satisfied that the applicant has been incapacitated for employment from 30 October 2018 to date and continuing as claimed by the applicant.
In respect of the medical expenses claimed, particularly the medical waste disposal, the respondent submits that they do not meet the definition of medical or related treatment in s 59 of the 1987 Act. The respondent further submits that the claimed expenses related to medical waste disposal when there is information that the bins are for general household waste only.

Applicant’s submissions in response

The applicant challenges the assertions made by the respondent in respect of the reliability of the applicant’s evidence. The applicant submits that there is no suggestion anywhere that the applicant’s recreational drug use would change the view reached by Professor Gracey concerning the effect of exposure to pesticides on Mr Napper’s kidney condition. This is more so when the only explanation posited by Dr Slezak is that the condition is idiopathic.
The applicant likewise rejects the assertions made by the respondent concerning the reliability of Professor Gracey’s expert evidence.
The applicant then refers to evidence of medical incapacity during the applicant’s employment with the respondent, including attendances in December 2017, excess fatigue and sleeping three hours when he arrived home from work. After ceasing work, his symptoms worsened. The applicant submits that the deemed date of injury could be found to be 27 February 2018, and that whilst his reasons for ceasing work with the respondent were not consciously related to his (at the time unknown) condition, they were due to excessive fatigue, body focus and altered mental state, caused by his condition. In the alternative, the applicant submits that the first informed reference to total incapacity due to his condition was made by Dr Lowe on 6 December 2018.
The applicant finally submits in respect of the medical expenses. The disposal of medical waste is included in s 59 as it is therapeutic treatment given by direction of a medical practitioner, including surgical supplies or curative apparatus, provided other than in a hospital setting. The disposal is legitimately to be regarded as reasonably necessary services, ancillary to the treatment directed.

FINDINGS AND REASONS

Clearly, as acknowledged by both parties to the dispute and indeed the doctors that have treated and provided opinions regarding Mr Napper, this case is medically complex. It is also clear that Mr Napper’s medical condition is serious, significant, and has had a life altering affect upon him. He is currently awaiting a kidney transplant which will hopefully improve his general functioning, but will leave him with lifelong consequences. It is also on the outer realms of the types of injuries generally determined by the Commission and suffered by workers in NSW. Nonetheless the well-established principles that exist apply to the circumstances presently before me.
The primary issue in this case is injury/main contributing factor. There are additional issues concerning the appropriate deemed date of injury pursuant to s 15 (if injury is found) as well as the specific compensation claimed in this case, relating to weekly benefits and medical expenses. I will deal with the issues in the order raised.

Injury

The applicant’s injury is particularised through the medical and lay evidence as the contraction of a disease, being stage 4 or end-stage renal failure. The applicant asserts that this disease was contracted in the course of employment, due to the use of herbicides.
Section 4 defines injury and for the specific purposes of this case, means:
“(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…”
The worker must satisfy the requirements of s 4 to have a finding made in his favour. Section 15 will then operate to determine the date the injury has occurred (Crisp v Chapman (1994) 10 NSWCCR 492). In present circumstances, Mr Napper’s disease was not diagnosed until after he ceased employment with the respondent, and was in fact employed in different employment. It has not been argued that there was another employer who employed Mr Napper in employment to the nature of which the disease was due. The evidence only supports a connection with the respondent (whether I accept that evidence, on the balance of probabilities, is a different question).
There are competing medico-legal opinions in this case that I have summarised above. There is a degree of diagnostic uncertainty about the cause of Mr Napper’s kidney disease, but there is no dispute that he has it. There are multiple causes postulated throughout the treating evidence that require discussion to determine the ultimate question – whether Mr Napper contracted a disease in the course of employment, to which employment with the respondent was the main contributing factor. The specific diagnosis of that kidney disease is also relevant, as again there are various diagnoses postulated in the medical evidence.
The applicant’s case is supported by Professor Gracey, who is a renal physician. The respondent relies upon Dr Slezak, although ultimately a large part of the respondent’s case is that the applicant has not satisfied his onus, which is of course his to prove, on the balance of probabilities.
I would not generally comment upon the qualifications of the experts briefed by the parties. Most matters that proceed through the Commission are familiar, and while different specialities may be briefed (such as in a physical injury involving the spine, where an orthopaedic surgeon, occupational physician or neurosurgeon could comment on the issues, depending on what they involve), there is generally no specific issue regarding qualifications or experience.
In the present case, Professor Gracey is a renal physician, a sub-specialty of being a physician. He provides a general summary of his background in his report of 18 July 2022:
“I am pleased to provide a report and opinion from the point of view of a Renal Physician, specialized in the care of patients with renal conditions, including those patients with chronic kidney disease, and those requiring dialysis or renal transplantation. I currently work as a Professor in the Renal Unit and Renal Transplant Unit at Royal Prince Alfred Hospital, Sydney and the Central Clinical School, Faculty of Medicine, University of Sydney.”
He was specifically asked to comment on the qualifications of Dr Slezak, providing a measured response that addresses the issue in his report of 15 October 2024:
“Renal histopathology is a highly specialised field, and I am aware that even specialist Nephrologists find it daunting, referring to Nephrologists more specialised in the field for the clinicopathological interpretation of the results of renal biopsies, particularly in complex or challenging cases. I am not aware of any general physicians who are confident enough or comfortable enough to interpret results on renal biopsies without the input of a Nephrologist or a renal-specialised histopathologist. Of course, I am not familiar with the specifics of Dr Slezak’s training in renal biopsies or his experience with the clinicopathological interpretation of such results, or indeed his training in Nephrology itself. It does seem that some of the intricacies of the case may have been overlooked, and some clinical anomalies not fully explained by the conclusions in his reports to date.”
Professor Gracey’s commentary on the specialised nature of renal histopathology as a field carries some weight. Dr Slezak makes no commentary on his specific expertise in the area, so I am unable to comment upon his background or whether he has specific sub-specialty training in renal injury or conditions.
The parties have not specifically commented on the qualifications of either expert, although questions were clearly raised, as set out above, by the applicant when seeking the opinion of Professor Gracey. However, the respondent does comment on the “reliability” of Professor Gracey’s opinion, on the background of an attack on the reliability of Mr Napper’s statement evidence. The respondent refers to Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, amongst others, on the basis that those authorities establish that there must be a “fair climate” upon which a doctor can base an opinion. It is also submitted that an opinion must be more than a mere “ipse dixit”.
It is appropriate that I consider the “reliability” of the applicant’s evidence first, as it does, to some extent, underpin the case before the Commission. As the parties acknowledge, the determination of the present issue, whilst inherently medical and complex in nature, requires a consideration of all of the evidence, including lay evidence.
The respondent submits that “it is relevant to point out that there are issues with the reliability of the applicant’s evidence”. This, it is said, does not extend to a doubt on the applicant’s credit, but more in the context that memory becomes fainter over time, with reference to Vergottis and Watson. The respondent relies upon Watson at 319, Per McLellan CJ in Equity:
“…human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. Or too often what is actually remembered is little more than an impression from which the plausible details are then, again often subconsciously, constructed. All of this is a matter of human experience.”
I am not of the view that Watson has particular relevance to the issues in this case. It is not clear to me what factual assertions, based on the lay evidence given by Mr Napper, are in dispute. There are no competing witnesses to interrogate. There is no dispute, from a factual point of view, of the types of duties undertaken by Mr Napper. The respondent has not provided a satisfactory evidentiary basis for such a dispute to exist.
Mr Napper provides two statements in this case, the first 22 January 2020 and a supplementary statement dated 24 March 2025. The age of those statements does not, in the circumstances of this case, undermine their reliability. In his statement of 22 January 2020, Mr Napper describes feeling ill and vomiting in the lead up to his diagnosis (which was after he ceased employment with the respondent). He describes commencing employment with the respondent in 2013 and working 50 to 60 hours per week.
The respondent’s business is described as a “weed spraying business for rural properties”. Mr Napper describes his duties in a series of paragraphs ([45]-[48] of the statement), which involved mixing chemicals, spraying them with a hose attached to a drum on a vehicle, the hose extending 200m. This is high volume spraying. Mr Napper describes the protective gear he was provided or was necessary to use, including the lack of gear for the face, and gloves (whilst spraying).

Mr Napper also addresses his drug use. There may be some slight inconsistencies in that history, although I don’t think it is of particular relevance or undermines the reliability of Mr Napper’s evidence as a whole. On the large part, that kind of memory falls more closely into the Watson sense. However, the issues around Mr Napper’s duties, when he worked, and the type of chemicals used do not really fit in the issues raised in Watson. Further, the history given by Mr Napper is supported by an independent third party (Mr Houghton-Smith).
Mr Houghton-Smith worked with the applicant for about four months in 2017. He describes the use of chemicals consistent with the evidence given by Mr Napper. He describes exposure to the chemicals in various ways, through walking through areas, soaking through overalls, and the lack of face, eye and hand protection whilst spraying. Mr Houghton-Smith was described as “captain careful” by other staff because he provided his own protective equipment.
Where there is no contravening factual evidence that Mr Napper was not exposed to the type of chemicals he outlines, it is difficult to see what purpose the respondent has in referring to and relying on Watson and Vergottis. Further, Watson involves issues regarding the histories of conversations had. No such issue arises here.
Whilst the clinical records do not provide independent and temporal records of exposure to chemicals, given the uncontradicted lay evidence of two witnesses I am satisfied that Mr Napper was exposed to chemicals as described by him in his statement, during the course of his employment with the respondent. That does not mean that he has satisfied his onus to prove injury, but one of the factors that go to that issue, on the way he has presented the case before me, has been met.
A significant issue in this case is the specific diagnosis of Mr Napper’s condition. He pleads injury in the Application as “Stage 4 Renal Failure”. In his report of 15 October 2024, Professor Gracey discusses Mr Napper’s diagnosis over more than three pages. He states “clinically, Mr Napper has end-stage renal failure”, and goes on to say “histologically the diagnosis is a little less clear”. He discusses the renal biopsy from July 2018, which shows “mesangiocapillary glomerulonephritis”. The report of Dr Singer from 13 August 2018 discusses the biopsy result:
“His biopsy not not [sic] neatly fit into a particular diagnostic box. He has idiopathic mesangiocapillary glomerulonephritis which looks like lupus, except that; he does not have lupus and most of the inflammation is in the interstitium.”
Professor Gracey goes into extensive detail about the biopsy, noting the nature of the changes suggesting autoimmune conditions such as lupus, which were sought but not found. Professor Gracey agrees with Dr Singer’s commentary above, that it does “not fit into a particular diagnostic box”.
I pause here to note that I have attempted to closely follow the chronology of the diagnosis of Mr Napper’s kidney disease. Mr Napper was really at the hands of his treating team in reaching that diagnosis. As is evidenced by the experts in this case, diagnosis of kidney disease is notoriously complicated. Early diagnostic efforts, including by Dr Singer, make no mention of Mr Napper’s employment with the respondent or exposure to chemicals. It may be that Mr Napper did not report those issues as he did not appreciate or understand the connection at that time.
In a report from Dr Murali dated 30 November 2020, this becomes apparent. He states:
“Patient is obsessed that his renal disease is due to the exposure to insecticides use as part of his job, a belief which Tye had before, but reportedly reaffirmed by the Naturopath he is consulting.”
This may go some way to explaining the lack of reference to his employment and use of chemicals to his earlier treating team. He became “obsessed” with the cause of his renal disease being connected to his employment after speaking to a Naturopath at some point in 2020.
In fact, Dr Singer early on proceeded on the basis of drug use as contributing. In his report of 13 August 2018, after discussing the biopsy results, he states he encouraged Mr Napper to stop using drugs and then tobacco. He goes on to say “Potentially the interstitial disease is due to the use of mushrooms and I will try to get them identified via the ANU”. Dr Singer reports on the photographs which were confirmed to be of the psylobine species, commenting that “Magic mushrooms are not known to cause kidney disease, but that does not necessarily mean much”. In a letter of 13 September 2019 he describes the working diagnosis as “a reaction to herbs” (unspecified).
I formally reject that diagnosis. It was not further pursued and does not appear in either of the expert opinions. Dr Gracey does not deal with it at all, and Dr Slezak does not rely upon it. Dr Singer notes that mushrooms are not known to cause kidney disease.
Returning to the report of Professor Gracey, he comments that “chronic kidney disease is widely reported in association with many characteristics epidemiologically that were present in Mr Napper’s case”. He then discusses studies of agricultural communities, pointing out that the renal biopsy findings in those cases were similar to those of Mr Napper’s. He goes on to discuss the chemical exposure:
“So, it is likely that Mr Napper had recurrent acute organophosphate poisoning with dangerous levels of exposure to various herbicides. It is likely these were responsible for episodes of recurrent acute kidney injury or intravascular volume depletion as well as various otherwise unexplained symptoms at the time of his exposure. It is likely that these recurrent insults to his kidney health resulted in the initiation of chronic, irreversible, changes histologically within his kidneys to account for the prominent chronic changes seen on the renal biopsy when it was eventually performed. I cannot see any other obvious explanation for the severe chronic features seen on Mr Napper’s biopsy.”
He also comments on the haematuria present in Mr Napper’s clinical history:
“It is also likely that the herbicides were playing a role in his recurrent episodes of dark urine, or macroscopic haematuria. With the diagnosis of acute glomerulonephritis in Mr Napper and the known renal effects of herbicides and organophosphates it seems that this exposure is the only identifiable clinical risk factor for the development of immune-complex glomerulonephritis.”
This haematuria dates back to 2015. The first such record is dated 1 September 2015, reporting 3-4 days of haematuria. Reference is made to pneumonia eight weeks earlier. Two days later Mr Napper reported back to his general practitioner with urine results arriving on 5 September 2019 “consistent with GN [glomerulonephritis]”. As can be seen, Professor Gracey has expressly considered this history of haematuria, as well as “various other unexplained symptoms”.
Dr Slezak considers the history of exposure in his initial report of 3 March 2021. He considers, at that time, Mr Napper’s end stage renal failure was “very likely secondary to significant pesticide exposure (Glyphosate)”. He did not, at the time of that report, have the full gamut of Mr Napper’s treating records, and in particular those reports of Dr Singer, Dr Murali, and other specialists who have treated Mr Napper’s kidney disease. In a report of 17 August 2021, he changes his opinion after considering the additional medical evidence (as he is entitled to do), to the following:
“In summary, on the basis of the additional medical evidence made available to me, the basis of Mr Napper's renal disease would appear to be due to idiopathic immune complex-mediated mesangiocapillary glomerulonephritis, rather than any workplace renal injury due to the nature/conditions of employment/pesticide exposure.”
He states that the immunofluorescence “does strongly suggest and immunological basis to the renal injury” (emphasis in original). He then goes on to acknowledge that the immunological evaluation excluded underlying conditions, but then postulates a working diagnosis of “idiopathic” immune complex-mediated mesangiocapillary glomerulonephritis.
One of the issues I have with accepting Dr Slezak’s opinion is he does not provide a great deal of reasons for the conclusion he has reached. This is particularly so when his opinion has changed from his previous report. He suggests that there is a strong basis to suggest an immunological basis to the condition, and acknowledges that immunological conditions have been excluded. He then doesn’t explain why he still persists with an immune complex mediated mesangiocapillary glomerulonephritis diagnosis. He goes on to discuss the reports in the medical literature in agricultural communities but again doesn’t explain why he rejects the causal link with the chemicals Mr Napper was exposed to.
I have not found his opinion particularly persuasive or helpful. He reaches a conclusion with no real explanation. I accept that Mr Napper has the onus to prove his case. The other potential diagnosis postulated is an idiopathic one (that is, no known cause), but Dr Slezak does not, in my view, sufficiently deal with or exclude the identified cause, of chemical exposure, which he had previously accepted.
This is contrary to the comprehensive and structured opinion provided by Professor Gracey, who fully grasps with the issue he was required to unravel.
The respondent attempts to undermine the opinion of Professor Gracey in a Paric sense by submitting it was not made in a fair climate. I have dealt with the submissions concerning the reliability of Mr Napper’s lay evidence above. I have found it reliable. The respondent has not directly challenged Mr Napper’s credibility, at least with respect to the injury and diagnostic issues present.
The respondent submits that the opinion of Professor Gracey was based upon a history of the development of symptoms inconsistent with the evidence of the applicant and treating records. I do not accept that submission. Professor Gracey’s report is comprehensive (and far more so than Dr Slezak’s). He considers the symptomatology present in the clinical records and reported by Mr Napper, dating back to 2015, explaining that the early haematuria was likely caused by his exposure to herbicides at that point. He also attributes several other symptoms as casually related to this herbicide exposure, through his worsening kidney functioning. I fail to understand how Professor Gracey’s opinion is inconsistent with any of the evidence. He has considered the evidence in detail. On that basis, I do not accept the respondent’s submissions.
Ultimately, I still must be satisfied that the applicant has proved his case on the balance of probabilities. One of the primary shortfalls in this case is a diagnosis from Mr Napper’s treating team consistent with the case that he has now brought. There have been various theories postulated, including:
(a)    the symptoms in 2015, as a result of earlier pneumonia;
(b)    a reaction to “herbs” by Dr Singer;
(c)    a consequence of magic mushroom use, by Dr Singer;
(d)    of an idiopathic nature, as postulated by Dr Murali, who describes it as “idiopathic immune complex-mediated mesangiocapillary glomerulonephritis” in his report of 23 June 2021;
(e)    as “not clear”, in the report of Dr Luxton of 3 June 2020, although he refers to “heavy exposure to agricultural chemicals”, and
(f)    “immune-complex glomerulonephritis” caused by recurrent acute organophosphate poisoning with dangerous levels of exposure to various herbicides”, resulting in chronic, irreversible histological changes, as postulated by Professor Gracey.
It is important to observe that the applicant’s treating team, including Dr Singer, Dr Murali, Dr Luxton, and the other staff renal specialists at the hospitals where Mr Napper has been treated had an early interest in a diagnosis, but as time progressed, were more concerned with treating Mr Napper’s condition and controlling his symptoms. This is consistent with their role as treating specialists. The cause of Mr Napper’s kidney disease was important at first, but as time went on, concerns were more appropriately addressed to control, including dialysis, the ongoing blood pressure issues Mr Napper suffered, and then ultimately placing him on the transplant list to improve his quality of life.
This is somewhat addressed in Nominal Defendant v Clancy [2007] NSWCA 349, where the use of clinical notes was discussed by Santow JA:
“While clinical notes, as McColl JA observes, may in common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive … clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document. It is fair to say a report to another doctor [or a medico-legal report] is likely to have been written with more deliberate consideration than rough notes.”
The primary purpose of Mr Napper’s attendance on the various clinicians discussed above was treatment, not the identification of the cause of the kidney disease (although I acknowledge that forms part of the treatment process). Once satisfied with a diagnosis (which is consistently accepted as mesangiocapillary glomerulonephritis, or in simpler terms, kidney disease leading to end-stage renal failure), the treating team were less concerned with the cause of the disease, and in particular whether there had been a work-related contribution to the contraction of that disease. It appears to have stumped the majority of the treating team, who nonetheless proceeded to do their job as best they could, in attempting to treat the disease.
It is in those circumstances that the medico-legal opinions become paramount. Both independent medical experts have considered all of the material discussed above including the treating doctor team. In my view, only Professor Gracey has appropriately and properly grappled with or considered that material. Dr Slezak has defaulted to an “idiopathic” opinion expressed (primarily) by Dr Murali. It is also noted that at the point when Dr Murali entered the picture, Mr Napper’s diagnosis had been established for many years, as had his treatment regime, leading to obviously less necessity to be afforded to the exploration of that diagnosis. Dr Murali was clearly aware of Mr Napper’s concerns about his chemical exposure, as he discusses it in his report of 30 November 2020, but takes it no further than acknowledging it and encouraging him to “not get too carried away by the advice of the Naturopath”, in the context of there being “virtually no chance that he will come off dialysis and avoid transplantation”.
Having considered all of the above, I prefer the opinion of Professor Gracey to Dr Slezak. I accept, on the balance of probabilities, that Mr Napper has suffered an injury in the course of his employment with the respondent. Employment was the main contributing factor to the contraction of that disease. No other factors have been identified. As Professor Gracey says:
“I believe that and with the diagnosis of acute glomerulonephritis in Mr Napper and the known renal effects of herbicides and organophosphates it seems that this occupational exposure is the only identifiable clinical risk factor for the development of immune-complex glomerulonephritis rather than being truly idiopathic. Hence, I also disagree that this case simply represents idiopathic mesangiocapillary glomerulonephritis. This postulate does not explain the severe chronic changes seen at the time of Mr Napper’s biopsy, nor does it explain his recurrent, intermittent symptoms including macroscopic haematuria at the time he was exposed to the weed killers.”
This conclusion is reached not just on the preference for Professor Gracey’s opinion over that of Dr Slezak, but my consideration of all of the evidence, lay and medical, available to me in this matter.

Deemed date of injury

As the injury is the contraction of a disease of a gradual process, s 15 of the 1987 Act operates to deem a date when the injury occurred. It provides, relevantly:
“(1)    If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(a)  the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)  compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
As the proceedings include a claim for weekly benefits compensation, the date of injury is a critical component of determining Mr Napper’s entitlements, as any award must be based on his pre-injury average weekly earnings (PIAWE).
The Application pleads a dated of injury of 30 October 2018. This is said to be the date of diagnosis of Mr Napper’s kidney disease, although based on the medical records before me, there were investigations and knowledge of kidney disease before that date. Dr Puri first reports on 26 June 2018 after Mr Napper attended an urgent review clinic.
The applicant’s submissions postulate am alternative date of May 2018, when Mr Napper ceased work with the respondent due to his undiagnosed condition at that time, as he was partially incapacitated from then due to his symptoms.
The respondent suggests that the deemed date of injury would be 6 December 2018, which is the first reference to his condition in a clinical record, preventing Mr Napper from being able to work.
This issue is difficult to untangle due to the period of time that has elapsed since the dates suggested by the parties. I do not think the date of 30 October 2018 is appropriate. Diagnosis does not constitute incapacity. The disease injury was not identified, formally, until that point (or most likely earlier, perhaps in June of 2018), but deeming a date of injury does not require consideration of when the diagnosis occurred, but rather when incapacity occurred (or when the claim was made).
The respondent refers to Haddad in their submissions. I agree that is the relevant authority on point. It was explained at [80] of that decision:
“As explained in Thoroughgood, the correct position is that where a disease injury causes an incapacity (in the sense of a reduction in earning capacity) and at the same time gives rise to an entitlement to compensation under the 1987 Act (whether for permanent impairment or treatment expenses or otherwise), s 15(1)(a)(i) operates to deem the date of injury relevant to any such claim to be the time when the worker suffered incapacity. This does not turn on the framing of the claim by the claimant but rather on the entitlement to claim, as illustrated most clearly in Thoroughgood, as to which see especially at [124] below. It means that since, in this case, on 20 January 2017, the appellant suffered a disease injury that caused both an incapacity giving rise to an entitlement to claim weekly compensation and also, at the same time, an entitlement to claim treatment expenses, that was the deemed date of injury relevant to both claims. That is not altered by the fact that he ultimately abandoned the claim for weekly compensation.”
Relevant is that the question does not turn on the framing of the claim by the applicant, which in the present case excludes the deemed date suggested in the Application.
When Mr Napper was diagnosed, he was employed by Perisher Blue Building and Civil. He ceased that employment in April 2019, following a period of attendances at specialists before commencing on dialysis. It is abundantly clear that he ceased employment then due to his work-related kidney disease.

There are earlier possible dates of incapacity. The applicant has suggested the cessation of work with the respondent, at a point in May 2018, as the date. Mr Napper’s statement addresses his cessation of employment with the respondent. He discusses the relationship he had with Jim Buckley, the site supervisor, which he describes as “good”. This relationship deteriorated when a new employee, Mr Roach, commenced, and was “bad mouthing” the team to Mr Buckley, particularly regarding recreational drug use in personal time. He goes on to state:
“I recall not long before I left when I pointed this out to Jim, he turned on me and took the side of Mr Roach and felt that what we did in our personal time was his business and he asked me not to return to work the following day.”
Mr Napper discusses his employment with Perisher Blue Building and Civil following his cessation of work with the respondent. In October 2018, he thought he had a broken wrist, attended his local doctor, and was referred for bloods and an X-ray. Specific investigations into his kidney functioning then began. He states his “initial symptoms were pain to my wrist and feeling generally unwell”, and that he first sought treatment in October 2018.
There are some symptoms recorded in the clinical records. Mr Napper attended Dr Lowe on 25 January 2018. The reason for visit is recorded as “depressed” but Dr Lowe records symptoms of “excess fatigue”, and “was sleeping 3 hours on arriving home from work”. On 1 February 2018, Dr Lowe records “mood improved”. He also notes “abnormal bloods” and “EUC abnormal - ? post GN 3 years ago” (here EUC stands for electrolytes, urea and creatine), and puts in a plan for “review 2 weeks”. Mr Napper did not follow up until 23 May 2018 (by which time he had left employment with the respondent, when he attended for what was suspected to be a viral respiratory tract illness).
The wrist injury/issue discussed in Mr Napper’s statement actually appears to have occurred in around June of 2018, which led to a referral for renal biopsy in July 2018. This is consistent with the report of Dr Puri, who saw Mr Napper on 26 June 2018.
I have difficulty accepting the applicant’s proposition of May 2018 as the appropriate deemed date. Mr Napper’s own evidence suggests he left his employment due to a clash with his supervisor, or was asked not to return. The attendances in January and February of 2018 do potentially show some symptomatology related to Mr Napper’s kidney disease, including “excess fatigue”, although it could also be considered to be due to psychological issues with his doctor recording “depressed” as the reason for visit. It is difficult to disentangle the potential psychological issues from the kidney issues, particularly in the absence of evidence in support.
It is also noted that the determination of a deemed date of injury requires consideration of all of the evidence, lay and medical, and turns not just on symptoms but on some actual loss (per Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277 (Stone) at [37]):
“Berkeley Challenge shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s.16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation. Thus, in such a case, incapacity first occurs when the physical incapacity results in some loss of wages, even if there had previously been incapacity in the Arnotts sense, not resulting in any loss of wages.”
It is probable that Mr Napper was suffering from symptomatic incapacity in February 2018. But it is not clear to me that there has been a loss of wages from that point. Mr Napper left employment for unrelated reasons, was unemployed for a short period (around two weeks, per his statement), then commenced alternative employment.
The respondent’s case is that the deemed date of injury should be 6 December 2018. This is based on Mr Napper’s attendance on Dr Lowe, and a certificate given on that date. However, there are earlier attendances at Canberra Hospital, related to his disease. He first met Dr Puri on 26 June 2018 in the “urgent review clinic”. It is not clear what this attendance involved and whether there was any loss of earning capacity so I have not utilised that date.
Mr Napper then underwent a biopsy on 12 July 2018. This was a Thursday and he was admitted at 2.00pm. He had some episodes of haematuria post biopsy and was kept overnight. This represents true incapacity as a result of injury. Mr Napper could clearly not work the day of his biopsy and was kept overnight, discharged on 13 July 2018. He would not have been able to work that day either. This is the first date of incapacity that I could identify within the evidence available to me.
This is concrete evidence of incapacity, connected to employment and the kidney disease caused by employment. I am satisfied that this is the first date of incapacity available in the evidence and find that the appropriate deemed date for the purposes of s 15 of the 1987 Act.
That raises the issue of the appropriate PIAWE figure. The applicant pleads a figure of $1,452, but this is based on a date of injury of 30 October 2018. The respondent’s submissions suggest that it should be calculated as from 6 December 2018, but have not provided a calculation. Neither party identifies 12 July 2018. I do not have sufficient submissions before me to appropriately consider the issue and accordingly will direct the parties to provide further submissions on this issue.

Incapacity

Mr Napper’s claim is for total incapacity from his pleaded date of injury (30 October 2018) to date and continuing. There are number of issues with that claim.
Firstly, there is evidence Mr Napper worked for a different employer, Perisher Blue Building and Civil until 6 October 2019. The wages schedule in the Application does not take account of this.
Secondly, there is evidence that Mr Napper has been able to work, at least part time, since October 2024 in a nutrition shop.
Thirdly, there is the issue of ss 38 and 39 of the 1987 Act in respect of the periods claimed. To obtain an award under s 38, Mr Napper must satisfy ss 38(2) and (3) of the 1987 Act which provides:
“(2)    A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3)     A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if—
(a)  the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b)  the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c)  the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.”
Thirdly, in respect of s 39, Mr Napper’s entitlement to weekly payments expires at 260 weeks, unless he meets the requirement in s 39(2) (i.e. an assessment of impairment of more than 20%). Depending on periods of partial or total incapacity, this could be July 2023, at the earliest. I simply do not have sufficient information to determine.
Nor do I have sufficient evidence of the applicant’s earnings during the period during 2018, following the date of injury, and 2019, before ceasing employment with the subsequent employer.
I do not criticise the parties for this, given the issues relating to injury were at the forefront of this case. Nonetheless I do not have sufficient information to determine what award Mr Napper may be entitled to, in terms of both the calculation of PIAWE, and the incapacity following the deemed date of injury I have found. I will call for precise further submissions on this issue so that I may make an appropriate award.
I do note, for completeness, that I do not accept the respondent’s starting position particularised in their submissions that the Commission ought not be satisfied the applicant has been incapacitated for employment as a result of his condition from 30 October 2018 to date and continuing. There is certainly evidence to suggest he has been incapacitated at some time during the period claimed.

Medical expenses

Articulated in the Application is a claim for past medical expenses of $8,453.30 for “Medical waste disposal and medication”. There is also a claim for future treatment for kidney transplant surgery and post-surgery medication.
There is a dispute as to the medical waste disposal and has been addressed by the parties in submissions. A schedule of expenses appears in the evidence, including invoices for medical waste disposal from Bin City, Bin Master, Tiny Tins and Worldwide Demolitions. Mr Napper regularly hired skips of 2-3m to his premises in Dapto.
The applicant submits that the expenses are appropriate under s 60. Mr Napper, in his supplementary statement, states:
“Since October 2018 until 6 months ago I would perform daily peritoneal dialysis at home. The drainage bags, tubes and pipes have to be disposed of after use and they overwhelm my garbage bin. I had to pay for this medical waste to be disposed of properly.”
Based on the medical records, I am not entirely certain that Mr Napper started dialysis in October 2018. He had issues with his blood pressure in the leadup to catheter insertion. The records from Canberra Hospital discuss these issues. In a discharge summary from
3 March 2019, it is recorded “not yet on PD” (peritoneal dialysis). It probably occurred not long after.
The respondent submits that the applicant has failed to properly particularise the claim for medical and related expenses pursuant to s 60 and there is insufficient evidence to support that the expenses claimed are reasonably necessary as a result of injury. The respondent, in particular, refers to the waste disposal and submits that a number of the providers to not accept medical waste and do not provide medical waste services. It is also submitted that medical waste does not meet the definition in s 59.
Section 59 defines medical or related treatment to include:
“(e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,”
Mr Napper undertaking dialysis at home must fit within the definition of “therapeutic treatment given by direction of a medical practitioner”, as submitted by the applicant. I am also satisfied that the specific materials used in undertaking dialysis, constitute “surgical supplies or curative apparatus”.
I have doubts about whether medical waste disposal fits within the appropriate definition in s 59(e). Disposal is not a surgical supply or curative apparatus. It is obviously necessary for medical waste to be disposed of appropriately and correctly but that does not answer the question of the interpretation of s 59. It may be that disposal is a necessary part of the “curative apparatus” but there is insufficient evidence for me to make that finding.
The bigger challenge is the applicant really hasn’t addressed this issue with sufficient evidence. Various invoices are provided that consistently indicate “skip hire” as the basis of the charge. There is no reference to medical waste in any of the invoices provided. In spite of Mr Napper asserting that he has undertaken home dialysis since October 2018 (which is more likely sometime in mid-2019) the invoices go back only to 2022.
I am not satisfied that Mr Napper has proven that the claimed expenses relating to medical waste disposal are “medical and related treatment” within the meaning of s 59. Otherwise, the list of medications contained in the schedule appears to be not particularly disputed by the respondent and I will make an order for the payment of those expenses.
Given that Mr Napper is on the transplant list but there is no proposed surgery at this stage, I do not intend to make the order for future treatment as particularised.

SUMMARY

I have found that Mr Napper has suffered a disease injury as alleged, which is deemed to have occurred on 12 July 2018. I will make the necessary orders reflecting that finding, as well as for the further disposition of this case, given the issues surrounding the particularisation of any entitlement to weekly benefits.

[2025] NSWPIC 456

4 September 2025