Spiteri v State Transit Authority

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Spiteri v State Transit Authority [2023] NSWPIC 104
APPLICANT:	Charles Spiteri
RESPONDENT:	State Transit Authority
Member:	John Turner
DATE OF DECISION:	14 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 4(b)(i)-(ii); injury to the right thumb disputed; proposed surgery to the right thumb disputed; Kooragang Cement Pty Ltd v Bates, Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Military Rehabilitation and Compensation Commission v May, AV v AW, Ariton Mitic v Rail Corporation of NSW, Perry v Tanine Pty Ltd t/as Ermington Hotel and Federal Broom Co Pty Ltd v Semlitch considered and applied; Held – the applicant contracted or in the alternative suffered aggravation, acceleration, exacerbation or deterioration of a disease process in the right thumb within the meaning of section 4(b)(i) or 4(b)(ii)arising out of or in the course of his employment with the respondent, deemed to have occurred on 20 June 2020; the right thumb trigger release surgery proposed by Dr David Bradshaw reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent deemed to have occurred on 20 June 2020 within the meaning of section 60.
determinations made:	The Commission determines: 1. The applicant contracted a disease of his right thumb including a right thumb trigger finger condition within the meaning of s 4(b)(i) of the Workers Compensation Act 1987 in the course of his employment with the respondent deemed to have occurred on 20 June 2020. 2. In the alternative the applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease process of his right thumb including a right thumb trigger finger condition within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987 arising out of or in the course of his employment with the respondent deemed to have occurred on 20 June 2020. 3. The right thumb trigger finger release surgery proposed by Dr David Bradshaw is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent deemed to have occurred on 20 June 2020 within the meaning of s 60 of the Workers Compensation Act 1987. The Commission orders: 4. The respondent is to pay for the costs of and ancillary to the right thumb trigger finger release surgery proposed by Dr David Bradshaw at the gazetted rates.

STATEMENT OF REASONS

BACKGROUND

Charles Spiteri, the applicant, was employed by the State Transit Authority, the respondent, as a bus driver. The applicant commenced employment with the respondent in the mid-1990’s. The applicant pleads that he sustained injury to his right thumb due to the nature and conditions of his employment between 2008 and 20 June 2020 which included the opening and closing of heavy switches. The applicant pleads a deemed dated of injury of
20 June 2020.
The claim for compensation in these proceedings is confined to the costs of proposed right trigger thumb release surgery as recommended by Dr David Bradshaw, orthopaedic surgeon hand wrist and microsurgeon, in his report dated 11 October 2021. The Application to Resolve a Dispute (ARD) was amended to delete any reference to an injury to the neck.
The respondent in a notice issued in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 4 March 2022 and a notice under s 287A of the 1998 Act disputed:
(a) pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act) that the applicant suffered injury to his right thumb arising out of or in the course of employment with the respondent;
(b) pursuant to s 9A of the 1987 Act that the applicant’s employment was a substantial contributing factor to the right thumb injury;
(c) pursuant to s 4(b) of the 1987 Act that employment was the main contributing factor to the contraction, aggravation, acceleration and/or deterioration of a disease, and
(d) pursuant to s 60 that the need for the proposed surgery is ‘reasonably necessary’ as a result of an injury.

ISSUES FOR DETERMINATION

In the conciliation conference the parties agreed that there was no dispute:
(a) that the applicant suffered from a right thumb trigger finger condition, and
(b) that the trigger thumb release surgery proposed by Dr Bradshaw is ‘reasonably necessary’ for that condition.

The parties agree that the following issues remain in dispute:
(a)    whether the applicant suffered injury to his right thumb arising out of or in the course of employment with the respondent;
(b)    whether the applicant’s employment was a substantial contributing factor to the right thumb injury, and
(c)    whether employment was the main contributing factor to the contraction, aggravation, acceleration and/or deterioration of a disease in respect to the right thumb.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
23 February 2023. Mr Bill Carney, counsel, instructed by Sher Afgan, solicitor, appeared for the applicant, who was present. Mr Tony Baker, counsel, appeared for the respondent, instructed by Kearen Mawad. The proceedings were conducted in-person. 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)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    respondents Application to Admit Late Documents signed 15 February 2023 and attached documents.
There was no objection by the applicant to the admission into evidence of the document attached to the respondent’s Application to Admit Late Documents signed 15 February 2023 being a further report of Dr Frank Machart, orthopaedic surgeon. By consent the documents attached to the respondent’s Application to Admit Late Documents signed 15 February 2023 were admitted into evidence.
A brief summary of the evidence follows. The attached documents to the ARD were unpaginated and therefore page reference numbers have not been recorded when referring to documents contained within the ARD.

Oral evidence

Neither party sought leave to adduce oral evidence.

Applicant’s statement

The parties agreed, that contrary to the applicant’s statement which records that he commenced employment with the respondent in 2008, the applicant commenced employment with the respondent in the mid-1990’s. The applicant ceased performing work duties for the respondent on 10 June 2020 due to an issue unrelated to any physical injury suffered by the applicant. The applicant’s employment with the respondent formally ceased on or about 19 June 2020.
The applicant has provided a statement dated 1 November 2022. The applicant states that as part of driving the bus “80% of the functioning of the bus operation” involved the use of his right thumb, that he used his right thumb “very often” whilst driving the “old bus” for the respondent, that the destination signs were all manual and that his thumb was used more than 1000 times a day opening and closing doors and adjusting manual route and destination signs.
The applicant states that there were five or more spindles that needed to be turned regularly every 15 to 20 minutes to notify the passengers about the bus route and that there were “heavy switches” to open and close the front and rear bus doors and that he had to open and close the doors at every destination stop.
The applicant states at [15] of his statement “That’s where I experienced thumb pain. That’s where the major damage happened and I went to see the doctor’s about the thumb”. At [16] the applicant states “Through the time there has been a problem with the thumb. I experienced pain and numbness in my right thumb” and at [17] “I was going through the pain as I had to survive to put food on the table for my family”.
The applicant states that he initially experienced low-grade discomfort in the thumb palmodigital region but with the passage of time it got worse. In the morning his right thumb felt seized up and it “took some time for the range of motion to warm up”.
The applicant states that the “symptoms generally fluctuated with the degree of driving” he was doing, especially when he had to use the door opener switches frequently with his thumb.
At [21] the applicant states that “I went to see the doctor and upon examination my thumb moves through range of motion classic triggering”.

Treating medical evidence

Clinical records from the Maroubra Medical Centre which commence on 8 September 2006 do not record any complaints by the applicant in respect to his right thumb prior to
16 March 2021.
On 16 March 2021 the applicant attended on Dr Andrew Moore of the Maroubra Medical Centre with right thumb pain and clicking. The clinical note records “said this is recent” and also went on to record “feels to get stuck in the morning and has to massage the thumb”. On examination the applicant was observed to be tender at the base of the thumb. The doctor recorded as the reason for the visit osteoarthritis of 1^st carpometacarpal joint and requested X-ray of the right thumb noting trigger thumb.
On 24 March 2021 the applicant attended on Dr Andrew Moore for trigger thumb. The doctor recorded “?? cause”. Dr Moore referred the applicant for a steroid injection to the right thumb.
On 13 May 2021 the applicant attended on Dr Lim of the Workers Doctors medical practice.
On 13 May 2021 Dr Lim, who describes himself as the nominated treating doctor, reported on the applicant. The doctor records that the applicant initially presented on 13 May 2021 for injury to his neck, shoulder, back and finger. Dr Lim records that the applicant was a bus “operator” at the time of injury and that he last worked on 10 June 2020.
Dr Lim made diagnosis in respect to the cervical spine, thoracic spine, lumbar spine, mental health and relevantly a diagnosis of right thumb and first trigger finger.
Dr Lim recorded that the applicant reported that whilst at work on 10 June 2020 he suffered neck, shoulder, finger and back injuries due to repetitive steering, twisting, driving and prolonged sitting in a setting of years of driving. A cortisone injection to the thumb in
April 2021 settled the pain.
Based on his understanding of the applicant’s role as a bus operator, Dr Lim was of the opinion that it would be reasonable to conclude that the mechanism of injury was the result of the nature and conditions of employment. Dr Lim was of the opinion that the history given is consistent with employment being the main contributing factor to the injury. The doctor observed that he did not have medical evidence to indicate an alternate mechanism of injury.
On 13 May 2021 Dr Lim completed a certificate of capacity/certificate of fitness in which the doctor relevantly recorded a diagnosis of right thumb trigger finger amongst multiple other diagnosis. The certificate records that the applicant was first seen at the doctor’s medical practice for the injury on 13 May 2021 and records a stated date of injury of 10 June 2020.
The doctor recorded that the neck, shoulder, finger and back injuries were due to repetitive steering, twisting, driving and prolonged sitting in a setting of years of driving. The only pre-existing factors identified which may be relevant to the condition or injuries was a lower back injury in August 2019.
On 22 July 2021 Dr Peter Khong, neurosurgeon and spine surgeon, reported to Dr Lim. The applicant had consulted Dr Khong on 22 July 2021. The report largely relates to back and neck complaints but relevantly records trigger finger right thumb which a cortisone injection had helped transiently.
On 11 August 2021 Dr Calvache-Rubio reported on the applicant recording that he initially presented on 13 May 2021 for injury to his neck, shoulder, back and finger. The doctor recorded that the applicant was employed as a bus driver at the time of injury and that he had been a bus “operator” for 24 years. The doctor records multiple diagnosis which relevantly included right thumb trigger finger.
In respect to the history of injury the doctor recorded that in the setting of years of driving the applicant reported that whilst at work on 10 June 2020 he suffered neck, shoulder, finger and back injuries due to repetitive steering, twisting, driving and prolonged sitting.
The doctor noted that the applicant had been suspended from work on 10 June 2020 for reasons unrelated to any physical injury and that his employment was terminated on
19 June 2020.
Dr Calvache-Rubio concluded that the applicant suffered extensive injuries as a result of the nature of his work.
On 1 September 2021 the applicant participated in a Telehealth consultation with Dr Andrew Moore of the Maroubra Medical Centre for trigger thumb with right thumb base pain and clicking and pain. Dr Moore recorded that there had been a return of the same symptoms which the applicant had in March 2021. Dr Moore referred the applicant for a steroid injection to the right thumb.
On 2 September 2021 Dr Calvache-Rubio referred the applicant to the hand surgeon,
Dr David Bradshaw. The referral recorded that the applicant had recurrent thumb metacarpophalangeal (MCP) joint pain, swelling and trigger finger from the repetitive nature of his work.
On 11 October 2021 Dr Bradshaw reported to Dr Calvache-Rubio. Dr Bradshaw recorded a history that the applicant had first experienced pain in his thumb “many years ago”. Initially the pain was low grade discomfort in the thumb palmodigital region. However, two or three years prior to examination the applicant began to notice worsening pain in the thumb MCP joint region, together with intermittent clicking or locking of his thumb. The locking would be worse in the morning when the thumb felt “seized up” and it took some time for the range of motion to warm up. The applicant reported that his symptoms generally fluctuated with the degree of driving he was doing, especially when he was having to use the door opener frequently with his left thumb.
In the doctor’s opinion the overall pattern of the symptoms was very much in keeping with trigger thumb. The doctor noted that there had been a good response to a trigger thumb injection.
On examination Dr Bradshaw observed classic triggering of the thumb and noted that an Ultrasound was in keeping with trigger thumb.
Dr Bradshaw was of the opinion that surgical treatment in the form of a right trigger thumb release was indicated.
Dr Bradshaw observed that establishing causation in cases of stenosing tendovaginitis can be difficult. However, given that the applicant found that his symptoms fluctuated with the amount of driving he was doing, especially with the amount of manipulating of the door switch on the bus, the doctor was of the opinion that it is likely that the applicant’s workplace activities were a significant contributor to his symptoms.

Dr McGlynn

Dr Michael McGlynn OAM, plastic, reconstructive & hand surgeon, provided a medico-legal report for the applicant dated 24 May 2022. Dr McGlynn records that the applicant stated that about 10 years prior he started feeling ache and pain in his right thumb which radiated up the arm. This slowly worsened over several years. In 2020 he developed clicking in the right thumb with active flexion and in 2021 he developed locking of the thumb in flexion. The applicant consulted his general practitioner.
Dr McGlynn recorded that the applicant related his right thumb condition to operating a switch that opens and closes bus doors at every stop. The applicant reported to the doctor that the switch is activated by thumb movement and the applicant estimated that he would perform around 1000 door openings and closings during a 10 hour shift. Dr McGlynn claims that he was able to confirm the accuracy of this estimate by getting the applicant to describe the most common bus route he did, the number of stops on the route, and the number of trips he would make in a 10 hour shift.
Dr McGlynn observed that there was no evidence of any repetitive non-work manual activity.
Dr McGlynn is of the opinion that the history and clinical presentation are consistent with stenosing tenosynovitis of the right thumb flexor tendon sheath. In the doctor’s opinion the condition is not constitutional and more likely than not is an overuse injury caused by repetitive operation, up to 1000 times per shift over many years, with the right thumb of a switch that opens and closes bus doors. The doctor observed that the condition is most commonly caused by overuse and there is no evidence of any other probable cause for the condition. The doctor observed that known causes are infection, inflammatory conditions such as rheumatoid arthritis, trauma and overuse. Other associations include diabetes and gout. Dr McGlynn was of the opinion that there was no evidence of any pre-existing injury or condition contributing to the right thumb tenosynovitis condition.
Dr McGlynn agreed with Dr David Bradshaw that a right trigger thumb release was necessary and agreed with the surgery proposed by Dr Bradshaw. The doctor observed that the proposed surgery would benefit the applicant by immediately releasing the flexor tendon allowing free movement of the thumb flexor tendon.

Dr Machart

Dr Frank Machart, orthopaedic surgeon, provided medico-legal reports for the respondent dated 8 September 2021, 3 March 2022 and 19 January 2023.
Dr Machart in his report dated 8 September 2021 noted that documents attached to the letter of instruction to the doctor recorded that the applicant had suffered injury to his right thumb on 7 December 1998 whilst changing a destination sign on the front of a bus. The applicant did not recall the incident.
In respect to the right thumb the doctor records a 5 to 10 year history of pain over the MCP joint associated with swelling, “apparently due to using door switches”.[1] Dr Machart further recorded that in the 12 months prior to examination there had been triggering in the thumb and pain over the volar aspect.[2]
[1] Reply p 27.
[2] Reply p 27.
The doctors’ findings on examination were consistent with right thumb flexor tenosynovitis and trigger thumb.
Dr Machart concluded that the diagnostic features have elements of degenerative arthrosis affecting several areas of the body, cervical spine, thoracic spine, lumbar spine, and right thumb. Dr Machart concluded that the right trigger thumb is a spontaneous constitutional condition unrelated to the applicant’s work duties with the respondent as the applicant developed the condition 12 months after he left work.[3] Dr Machart did however find that the “symptoms in the right thumb were aggravated by physical activities, use of the right hand”[4] whilst also concluding that he did not see any evidence that work was a major contributing factor to aggravation of disease injury.[5]
[3] Reply p 29.
[4] Reply p 31.
[5] Reply p 37.
Dr Machart concluded that the applicant would benefit from surgical release of the right thumb trigger, observing that within two or three weeks of the procedure a full resolution of symptoms would be expected.
Dr Machart in a supplementary report dated 3 March 2022 records that the applicant was assessed by Dr Gliksman on 6 May 1999 for pain in the right thumb and right shoulder.
Dr Machart does not record any details as to the cause of any right thumb condition nor as to the nature of the right thumb condition. No report of Dr Gliksman is before me.

Dr Machart in a report dated 19 January 2023 records that his time analysis was not in favour of the symptoms of triggering developing during the time when the applicant was performing work duties for the respondent.[6]
[6] AAL p 2.
Dr Machart conceded that there may have been tenosynovitis or osteoarthritis over the years. However, concluded that this remained unclear and could not be corroborated given the information before him.[7] The doctor observed that he did not see evidence of right thumb symptoms having been reported during the period of the applicant’s employment, except for unrecollected episode on 7 December 1988 (this would appear to be a typographical error with correct date being 7 December 1989).
[7] AAL p 2.
Dr Machart observed that is not clear from reading Dr McGlynn’s report what the actual action of the thumb was in opening and closing the bus doors. The doctor noted that there was no information as to whether the switch opens sideways, up or down, or pushing a button. Dr Machart went on to comment that it appears to be an afterthought because of the absence of reporting of injury to the respondent, and symptoms gradually increasing while not working.
Dr Machart concluded that an objectively defined report of injury from treating doctors at the time of employment would be necessary for him to alter his opinion on the subject of liability.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

Applicant submissions

In the course of the applicant’s submissions, I was taken to large portions of the evidence in this matter. As the evidence in this matter has been summarised above the evidence referred to in the submissions will not be again summarised in detail here.

In summary, through Mr Carney of counsel, the applicant submitted that his work duties driving buses for the respondent, in particular the opening and closing of the doors and to a lesser extent the turning of the spindles to signal the buses destination, required repetitive use of his right thumb and that over time he developed pain and numbness in his right thumb as a result of his work duties. Initially he experienced low grade discomfort which got worse with the passage of time and in the morning, he would feel that his right thumb was seized up and it took some time for the range of motion to warm up.
The applicant submitted that on 16 March 2021 he attended on Dr Andrew Moore who recorded that the thumb feels stuck in the morning and that the applicant has to massage the thumb with a diagnosis of osteoarthritis of the first carpometacarpal joint. That the applicant again attended on Dr Moore on 24 March 2021 at which time the doctor recorded a diagnosis of trigger thumb with the cause being unknown. However, by that stage Dr Moore had taken a history of the applicant being a bus driver having a problem with a trigger thumb which it was submitted was consistent with the history given by the applicant.
Mr Carney observed that Dr Lim in his report of 13 May 2021 records that there is a complaint of trigger thumb. The applicant drew attention to the opinion of Dr Lim, based on his understanding of the applicant’s role as a bus operator, that it would be reasonable to conclude that the mechanism of injury was the result of the nature and conditions of the applicant’s employment and that the history given is consistent with employment being the main contributing factor to the injury.
The applicant submitted that Dr Bradshaw had taken a thorough history about the onset of pain. The applicant drew attention to the fact that whilst Dr Bradshaw conceded that establishing causation in cases of stenosing tenovaginitis can be difficult, given that the applicant found that his symptoms fluctuated with the amount of driving he was doing, especially with the amount he was manipulating the switch for the doors, it is likely that his workplace activities were at least a contributing factor to his symptoms.
It was observed that Dr McGlynn had recorded that it was in 2021 that the applicant developed locking in the right thumb in flexion. It was submitted that it was only at that time that the applicant consulted his general practitioner.
The applicant submitted that the history on which Dr Machart is relying is flawed and there were complaints of pain before the worker ceased work duties with the respondent. It was submitted that the opinions of Dr McGlynn and Dr Bradshaw should be preferred to that of
Dr Machart.
In submissions in reply it was submitted that the reference in the applicant’s statement to old buses was only referable to the destination boxes and not to the bus door switches. In respect to the lack of recorded complaint in regard to the right thumb in the clinical records of the Maroubra Medical Centre from around the time of the applicant’s cessation of work duties with the respondent up to 16 March 2021 it was submitted that the applicant was attending the medical centre for other matters and perhaps he was just dealing with the problem that was of immediate concern to him at that time.

Respondent submissions

In the course of the respondent’s submissions, I was taken to large portions of the evidence in this matter. As the evidence in this matter has been summarised above the evidence referred to in the submissions will not be again summarised in detail here.
In summary, through Mr Baker of counsel, the respondent submitted that as the ARD is currently pleaded that pleading relates to the period 2008 to 20 June 2020 and the use of heavy switches to open and close bus doors.
It was submitted that the applicant’s statement is unhelpful, that in some senses it almost has submissions contained within it, that it uses medical terms which the applicant would not have any comprehension of.
It was submitted that the assertion in the applicant’s statement that 80% of the operation of the bus required the use of the right thumb seems a gross exaggeration and that the statement is based on work performed some years ago on old buses. It was submitted that whilst the old buses had manual spindles to change the destinations and were obviously heavier and less effective, in the last 10 to 20 years that has been done electronically. It was also submitted that whilst it may have been the case in the 1990’s that the switch was heavy that would not have been the case in the last 20 years. In the respondent’s submission the modern bus fleet is significantly improved in every sense ergonomically which is evidenced by the digitised signage and the electronic functions of the vehicle.
The respondent submitted that the applicant simply states that when opening and closing the doors to the bus, that’s when he experienced thumb pain. That’s when the major damage happened, and he went to see the doctors about his thumb. The respondent submits that according to the applicant’s statement at the time that he experienced that thumb pain he was seeing the doctors and complaining to them about the thumb, because the applicant goes on to state that he was going through the pain because he had to survive and put food on the table for his family. The respondent submitted that the applicant had been divorced for at least three or four years prior to 2020 when he finished work.
The respondent submitted that the applicant’s evidence in his statement that he went to see the doctor and on examination the thumb moved through a range of motion of classic triggering was the applicant conflating what happened in 2021 with what he asserts to have been the case when he was driving the buses.
The respondent submitted that the applicant last performed work duties for the respondent on 10 June 2020 yet there is no record of any complaint in respect to the right thumb either prior to or at the time of him ceasing work duties for the respondent. The respondent observed that in some 10 attendances by the applicant on the Maroubra Medical Centre from July 2020 to September 2020 the applicant made no complaint in respect to his right thumb or any other physical injury. It is not until 16 March 2021 that the applicant attended on
Dr Moore complaining of right thumb pain and clicking with Dr Moore recording “this is recent”. The respondent observed that no history was given to Dr Moore at that time of 5 to 10 years of pain and swelling worsened with driving or any mention of switches or anything to do with employment whatsoever.
The respondent observed that on 24 March 2021 the applicant again attended on Dr Moore in respect to trigger thumb. The respondent submitted that the passage “?? cause” recorded in the clinical record of the attendance clearly indicated that the applicant had given the doctor no history when saw him on 16 March 2021 or on 24 March 2021 of having any issue with work resulting in pain swelling or as later developed in March 2021 triggering of the thumb and this plays into the doctor’s note of 16 March 2020 that “this is recent”.
The respondent observed that the applicant next attended (Telehealth) the Maroubra Medical Centre on 1 September 2021 in relation to his right thumb. The respondent drew attention to the fact that the clinical note for the attendance records that the same symptoms as occurred in March 2021 had recurred with there being no reference to it being the return of symptoms that the applicant had for a decade related to work.
The respondent observed that the applicant initially attended on Dr Lim on 13 May 2021 and the report of Dr Lim of the same date contains no meaningful history at all of the longevity of the applicant’s symptoms other than that in August of 2019 he had a back injury. The respondent also observed that the certificates of capacity all record a similar history/cause of injury relying on nature and conditions with no mention of switches. The respondent submitted that there was no mention of switches because there was no history of them ever given to the doctor(s) at that time. The respondent submitted that is a later re-invention of history trying to find a cause where the thumb would actually be used in some meaningful fashion in the driving of a bus.
In respect to the report of Dr Bradshaw dated 11 October 2021 the respondent submitted that Dr Bradshaw adopted the history which he took. On the basis of that history the doctor accepted that there was a relationship between the applicant’s work duties and the right thumb condition, particularly given the history in respect to the use of the switches to operate the doors, which the respondent submitted is first recorded in the said report of Dr Bradshaw.
The respondent also submitted that Dr McGlynn had formed his opinion based on an incorrect history that the applicant started to experience right thumb symptoms 10 years prior, the history in respect to the switch used to operate the bus doors taken by
Dr Bradshaw for the first time, and that the pain and swelling got worse in 2020 whilst the applicant was still employed by the respondent or in the period 2018 to 2020.
The respondent submitted that the histories taken by Dr Bradshaw and Dr McGlynn were so tainted as not to provide a fair climate for a proper medical opinion.
The respondent, in respect to the report of Dr Machart dated 8 September 2021, noted that the doctor recorded that the applicant had pain over the MCP joint associated with swelling for 5-10 years, apparently due to using door switches, and in the previous 12 months triggering in the thumb and pain. The respondent incorrectly submitted on the history taken by Dr Machart that the triggering only occurred in 2021. However the applicant attended on Dr Machart on 19 August 2021 and therefore on that basis the triggering occurred in
August 2019 only some two months after ceasing duties with the respondent.
The respondent noted that Dr Machart states that the diagnostic features has elements of degenerative arthrosis affecting several areas of the body including the right thumb. The respondent submitted that it is fairly widespread phenomenon which the doctor is observing with the worker taking anti-inflammatories, so clearly in the respondents submission there is an inflammatory process occurring in the applicant’s body.
The respondent observed that Dr Machart concluded that he did not see evidence that work was a major contributing factor to aggravation of disease or injury, finding that the condition is constitutional. Dr Machart was of the opinion that the trigger thumb is a condition that developed 12 months after the applicant left work and therefore is not related to a work injury.
The respondent submitted that Dr Macart had the correct history, that deals with the matters which relate to the onset of the triggering and the inability for that to be related to the work duties.
In respect to Dr Machart’s report of 19 January 2023 the respondent observed that the doctor assessed any link between the trigger thumb condition and the work duties to be of low probability.
In the respondent submission Dr Machart provides the most reasonable analysis of the facts. In the respondent submission Dr Machart deals with the opinion of Dr Bradshaw who had a history of the applicant working until recently when he saw him in October 2021 which, on the respondent’s submission, incorrect and asserting that the symptoms had been worse in the previous three years with intermittent locking in that period which the respondent submits is also incorrect. The respondent submitted that the opinion of Dr Machart should be preferred based on the lack of contemporaneous material to support the propositions espoused by the applicant in his statement, the non-reporting of any issues in relation to switches up to October of 2021, at which point in time the applicant has already had a first episode of triggering in March 2021 and a second episode in September 2021, and it is only then when he is referred to Dr Bradshaw that the history of the switches as a cause of the injury is taken. The respondent submitted that such a history is manifestly not supported by any of the contemporaneous material. The respondent submitted that the opinions of Dr Bradshaw and in turn of Dr McGlynn should not be accepted.

FINDINGS AND REASONS

The relevant law

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act.
Section 4(a) of the 1987 Act defines ‘injury’ to mean personal injury arising out of or in the course of employment. Pursuant to s 4(b) injury relevantly includes a ‘disease injury’ which means:
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.

The applicant bears the onus of proving injury.

Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
Injury simpliciter, or what is commonly referred to as a frank injury, requires an ascertainable or dramatic physiological change or disturbance of the normal physiological state: Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear). “Suddenness” is not a necessary requirement: Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (May). Although “suddenness” may be relevant in distinguishing a physiological change from the natural progression of an underlying disease.
In respect to ‘disease injury’ the test of ‘main contributing factor’ involves a consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor: AV v AW [2020] NSWWCCPD 9. In a matter involving s 4(b)(ii), an “aggravation, acceleration, exacerbation or deterioration” of a disease, the issue is whether employment was the main contributing factor ‘to the aggravation, acceleration, exacerbation or deterioration of that disease’ and not to the overall pathology or the overall disease process: Ariton Mitic v Rail Corporation of NSW (Matter No 008497/2013 8 April 2014) (Mitic).
In Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; (1998) 16 NSWCCR 253 (Perry) Burke CCJ held carpal tunnel syndrome to be a ‘disease’, saying:
“In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process. Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease.”

Consideration and findings

The only issue in dispute is whether the applicant sustained a work injury in the form of right trigger thumb. It is agreed between the parties that the applicant suffers from a right thumb trigger finger condition and that the trigger thumb release surgery proposed by Dr Bradshaw is ‘reasonably necessary’ for the condition.
I accept the respondent’s submission that that the pleading in the ARD limits the relevant period of nature and conditions to between 2008 and 20 June 2020.
The respondent also submitted in respect to the pleadings in the ARD that the nature and conditions relied upon as causative of the alleged injury is limited to the use of heavy switches to open and close the bus doors.
The injury description in the ARD relevantly states that the applicant incurred injury to his right thumb due to the nature and conditions of his employment and goes on to state “Also, due to heavy switches which required opening and closing on daily basis due to nature and condition the client incurred an injury to the right thumb”. The injury description is poorly pleaded, however the use of the adverb “also” indicates that the use of the doors is in addition to the nature and condition, or more correctly in the context, part of the nature and conditions relied upon. For these reasons I reject the respondent’s submission that the nature and conditions of employment relied upon is limited to the use of heavy switches to open and close the bus doors. In any event I note that the applicant almost solely relies upon the operation of the bus door switches as being causative of the subject injury.
The applicant ceased work duties with the respondent on 10 June 2020. His employment with the respondent ceased on or about 19 June 2020.
There are no contemporaneous medical records before me in respect to the applicant attending on a health professional in respect to any complaints in respect to his right thumb during the period of his employment with the respondent.
In the evidence before me the first record of the applicant attending on a doctor in respect to a right thumb condition is on 16 March 2021, approximately nine months after the applicant ceased work duties with the respondent.
On 16 March 2021 the applicant attended on Dr Andrew Moore of the Maroubra Medical Centre. The clinical notes of the Maroubra Medical Centre commence on 8 September 2006 and are the only clinical records in evidence which commence prior to the applicant ceasing work duties with the respondent.
Post the cessation of his work duties with the respondent and prior to 16 March 2021 the applicant attended on the Maroubra Medical Centre on 30 July 2020, 31 July 2020,
4 August 2020, 7 August 2020, 10 August 2020, 11 August 2020, 12 August 2020,
21 August 2020, 1 September 2020, 11 September 2020 and 14 September 2020 for matters unrelated to his right thumb.

Dr Moore records on 16 March 2021 that the applicant had right thumb pain and clicking. The doctor also recorded that the thumb gets stuck in the morning and the applicant has to massage the thumb. The applicant advised the doctor that this was recent, however it is unclear from the clinical record of the attendance as to whether the doctor is referring to all the symptoms being recent or that individual symptoms were recent. The clinical record records that an X-ray of the right thumb was requested referring to trigger thumb. No comment or opinion as to the cause of the condition is recorded.
The next recorded attendance of the applicant on a health professional is on 24 March 2021 when the applicant again attended on Dr Moore. The clinical record of Dr Moore for the attendance records a diagnosis of trigger thumb, and in respect to the cause records “?? cause” which I take to mean that cause was unknown.
The respondent submits that the applicant’s statement made 1 November 2022 is to the effect that the applicant was seeing doctors during the period that he was performing work duties for the respondent and that the contemporaneous medical evidence does not support such a history.
The applicant’s statement does not contain any dates as to when he went to see the doctors. In his statement the applicant describes his work duties in respect to usage of his right thumb before stating at [15] “That’s where I experienced thumb pain. That’s where the major damage happened and I went to see the doctors about the thumb”. The respondent submits that within the context of the statement the applicant was stating that he attended on the doctors when he experienced the pain in his thumb, and in the context of his statement that was when he was performing work duties driving buses. The respondent submitted that such a reading of the statement was supported by the applicant’s evidence that he was going through pain and had to survive to put food on the table for his family when the applicant had been divorced for at least three or four years prior to ceasing work duties. I do not accept the respondent’s submission for the following reason.
In isolation It is not clear from the applicant’s evidence, “That’s where I experienced thumb pain. That’s where the major damage happened and I went to see the doctors about the thumb”, that it can be implied that the applicant attended on doctors prior to ceasing work duties with the respondent. The applicant does not state for example that “at that time I went to see the doctors”.
On reviewing the rest of the applicant’s statement, it becomes clear that the doctors which the applicant went to see, he saw after he ceased work duties, as the applicant records what was observed when he attended on the doctor(s) and that he was referred to Dr Bradshaw which occurred in September 2021. The applicant first attended on Dr Bradshaw on
11 October 2021.
At [21] and [22] of his statement the applicant states that he went to see the doctor and upon examination his thumb moved through a range of motion classic triggering. That there was a palpable nodule at the level of the A pulley and triggering could be felt there. The applicant went on to state that he went to see Dr David Bradshaw who recommend surgical treatment in the form of a trigger thumb release. Here the applicant is clearly referring to his attendances on Dr Andrew Moore, Dr Lim and Dr Bradshaw, all of which occurred after he ceased work duties with the insured.
The applicant claims that he sustained injury to his right thumb due to the nature and conditions of his employment.
Whilst the applicant in his statement describes the operation of manual spindles to adjust the route and destination signs the applicant in submissions appeared to concede that manual destination signs would not have been in use in the relevant period after 2008. The applicant in his statement also estimated that 80% of the bus’s operation involved the use of his right thumb, an estimation which the respondent submitted was a gross exaggeration. The applicant, both in his evidence and in his submissions, almost solely relied on the use of the switches to open and close the bus doors as being the cause of injury.
It is the applicant’s evidence that the door switches were heavy. The respondent submitted that the applicant in stating that the subject switches were heavy was referring to older buses and that the modern buses, which the applicant would have been operating in the relevant period, are far better ergonomically. There was however no evidence presented by the respondent disputing the applicant’s claim that the switches were “heavy”.
Whilst it is the applicant’s evidence in his statement that he used his right thumb very often whilst driving the “old bus” there is nothing in his statement which indicates that when he was describing his work duties in operating the bus he was solely referring to the operation of old buses which were in operation prior to 2008. It is the applicant’s evidence that he initially experienced low-grade discomfort which got worse with the passage of time and generally fluctuated with the degree of driving that he was doing especially when he had to use the door opener switches frequently with his thumb. Dr Machart took a history of 5 to 10 years of thumb pain whilst Dr McGlynn took a history of the thumb pain commencing about 10 years prior to examination. The evidence as a whole does not support that the applicant was solely referring to the bus door switches on older buses that were in service prior to 2008.
Whilst Dr Machart was critical of the opinion of Dr McGlynn, observing that there was no description as to how the switch was operated for example up down, to the side or by button, Dr Machart himself did not seek that information from the applicant when he examined him on 19 August 2021.
It is the applicant’s evidence that he would frequently use the bus door switches in the course of his employment.
The applicant reported to Dr McGlynn that the bus door switches were activated by thumb movement and the applicant estimated that he would perform around 1000 door openings and closings during a 10 hour shift. Dr McGlynn claims that he was able to confirm the accuracy of this estimate by getting the applicant to describe the most common bus route he did, the number of stops on the route, and the number of trips he would make in a 10 hour shift.
There is no evidence from the respondent disputing that the applicant repetitively and frequently operated the bus door switch with his right thumb in the course of his work duties. I accept that the applicant did repetitively and frequently operate the bus door switches during the course of his work duties with the respondent driving buses.
It is the applicant’s evidence that his symptoms generally fluctuated with the degree of driving he was doing, especially when he had to use the door opener switches frequently with his thumb.
The respondent submitted that there is no mention of the use of the switches to operate the doors of the bus being the cause of the thumb condition in the clinical records of the Maroubra Medical Centre or Dr Lim’s initial assessment report of 13 May 2021 and that the certificates of capacity issued by the Workers Doctors medical practice make no reference to switches. The respondent submitted that there was no history of the switches recorded because there was no such history ever given to the doctors at the relevant time and that this is a later re-invention of the history in an attempt to find a cause where the thumb would actually be used in a meaningful fashion in the driving of a bus.
The applicant’s solicitors, PK Simpson & Co, in a letter (incorrectly dated 13 May 2020) sent to Dr Lim on 13 May 2021 is chronologically the first documentary evidence that the applicant’s right thumb condition may be work related. The said letter advises Dr Lim that PK Simpson & Co are acting for the applicant in respect to a workers compensation claim seeking further treatment of injuries. The letter refers to multiple injuries including trigger finger injury between 1995 to May 2020. Unfortunately there is no other evidence from PK Simpson & Co as to what instructions were taken from the applicant in respect to the alleged injury to the right thumb, however it seems reasonable to conclude that the applicant gave a history indicating that he sustained injury to the thumb due to the nature and conditions of his employment given the letter refers to a period over which the alleged injury was sustained rather than a specific date.
The initial assessment report of Dr Lim does not directly refer to the use of the switches. The doctor records in the report that the applicant presented on 13 May 2021 for injury to his neck, shoulder, back and finger relevantly diagnosing right thumb trigger finger. The doctor recorded that the applicant reported that he sustained injury to his neck, shoulder, finger and back due to repetitive steering, twisting, driving and prolonged sitting in a setting of years of driving. The report does not record a specific history of injury to the right thumb but does refer to driving generally which arguably would include the operation of the doors of the bus. The report primarily relates to the other body parts and comparatively only briefly references the right thumb.
Contrary to the respondent’s submission that the first reference to switches was recorded by Dr Bradshaw when he first saw the applicant on 11 October 2021; the first direct reference to switches appears in the medico-legal report of Dr Machart dated 8 September 2021 which was obtained on behalf of the respondent.
Dr Machart who saw the applicant on 19 August 2021 took the first detailed history in respect to the right thumb condition. Dr Machart took a history of pain over the MCP joint associated with swelling over 5 or 10 years, “apparently due to using door switches”. Dr Machart went on to record that the triggering in the right thumb flexor tendon had developed in the last 12 months.
The applicant was referred to the hand surgeon, Dr Bradshaw, by Dr Calvache-Rubio. The referral dated 2 September 2021 simply records “Herewith Mr Charles Spiteri who has recurrent thumb MCP joint pain swelling and trigger finger from repetitive nature of his work”. The referral contains no reference to the nature of the applicant’s work duties and in particular no reference to the operation of switches. It is of note that the said referral occurs after the applicant has been examined by Dr Machart.
It needs to be noted that the applicant was referred to Dr Bradshaw purely in respect to his right thumb condition. It is therefore unsurprising that Dr Bradshaw as a specialist hand surgeon takes the most detailed history.
Dr Bradshaw took a history that the applicant first experienced some pain in his thumb “many years ago”, with this initially just being low grade discomfort in the thumb palmodigital region, but worsening two or three years prior. Dr Bradshaw recorded that two to three years prior the applicant began to notice worsening pain in the thumb MCP joint region, together with intermittent clicking or locking of the thumb. The locking would be worse in the morning when he would feel that his thumb was "seized up" and it took some time for the range of motion to warm up. The applicant found that his symptoms generally fluctuated with the degree of driving he was doing, especially when he was having to use the door opener frequently with his left thumb.
I reject the respondent’s submission that there has been a later re-invention of the history in an attempt to find a cause where the thumb would actually be used in a meaningful fashion in the driving of a bus. The applicant’s evidence that he was required to repetitively operate a switch to open and close the doors of the bus in the course of his work duties is not challenged. Contrary to the respondent’s submission that Dr Bradshaw takes the first history of the switches, it is Dr Machart who was retained by the respondent who records the first history in respect to the bus door switches. It is also notable that the referral letter to
Dr Bradshaw, which is dated after the applicant was examined by Dr Machart, does not contain any reference to switches. It is unsurprising that Dr Bradshaw as a specialist hand surgeon, who was retained purely in respect to the treatment of the right thumb condition, took the most detailed history to that point.
The general practitioner, Dr Moore, may have been uncertain as to the cause of the thumb condition in March 2021 however it is unknown how much consideration was given to the cause of the condition at that time and the initial assessment report of Dr Lim was primarily concerned with conditions other than the thumb condition.
In respect to the development of the right thumb condition on 16 March 2021 Dr Andrew Moore of the Maroubra Medical Centre recorded that the applicant was suffering from right thumb pain and clicking with a feeling of the thumb getting stuck. Dr Moore also recorded that the applicant “said this is recent”. In March 2021 the applicant was diagnosed with a trigger thumb.
The histories taken by Dr Machart, Dr Bradshaw and Dr McGlynn and the evidence of the applicant are all broadly consistent in respect to the onset and development of the applicant’s right thumb symptoms.
It is the applicant’s evidence that he initially experienced low-grade discomfort in the thumb which worsened over time. The applicant stated that in the morning his right thumb felt seized up and it “took some time for the range of motion to warm up”. The applicant states that the “symptoms generally fluctuated with the degree of driving” he was doing, especially when he had to use the door opener switches frequently with his thumb.
Dr Machart when he examined the applicant on 19 August 2021 took a history from the applicant of 5 to 10 years of pain over the MCP joint associated with swelling with triggering in the thumb 12 months prior to examination which would place the onset of the triggering as occurring in or about August 2020, one to two months after the applicant ceased work duties with the insured. Dr McGlynn took a history of the applicant developing right thumb pain about 10 years prior which slowly worsened over the years with the development of clicking in the right thumb with active flexion in 2020 (does not identify whether that was before or after the applicant ceased his work duties with the insured) and locking of the thumb in flexion in 2021. Dr Bradshaw who initially saw the applicant on 11 October 2021 similarly took a history that the applicant had first experienced right thumb pain “many years ago” which was initially low-grade discomfort which worsened 2-3 years prior to examination together with intermittent locking of the thumb. Dr Moore who examined the applicant in March of 2021 provides a diagnosis of right thumb triggering.
The evidence supports, and I accept, that the applicant initially had an onset of right thumb symptoms some years prior to ceasing work duties with the respondent. The symptoms initially took the form of low-grade discomfort however the symptoms worsened over time. In approximately 2019/2020 the applicant appears to have developed clicking in the right thumb with some intermittent locking. It is unclear as to whether the intermittent locking commenced at the same as the clicking or whether that developed at a later date. The applicant appears to have developed the trigger condition of the right thumb in about 2020 early 2021.
Dr Moore diagnosed trigger thumb in March 2021.
The evidence supports that the applicant put up with the symptoms in his right thumb without seeking medical advice until the triggering of the thumb occurred following which he attended on Dr Moore who then records on 16 March 2021 that the applicant said that “this is recent”. That is that the triggering of the right thumb is recent.
In respect to the causal connection between the trigger condition of the right thumb and the applicant’s work duties with the respondent, the respondent submits that the opinion of
Dr Machart should be preferred to the opinions of Dr Bradshaw and Dr McGlynn. It is the respondent’s submission that the opinions of Dr Bradshaw and Dr McGlynn are based on an inaccurate history and that the opinion of Dr Machart is based on a correct history.
Dr Machart concluded that the diagnostic features have elements of degenerative arthrosis affecting several areas of the body, cervical spine, thoracic spine, lumbar spine, and right thumb. Dr Machart concluded that the right trigger thumb condition is a spontaneous constitutional condition unrelated to work duties as the applicant developed the condition 12 months after he left work. Dr Machart observed that he would require an objectively defined report of injury from treating doctors at the time of employment for him to alter his opinion on the subject of liability.
As previously noted, on the history taken by Dr Machart the onset of the triggering of the right thumb occurred in or about August 2020, approximately two months, not 12 months after the applicant ceased work duties. As previously discussed I am also satisfied that the thumb was symptomatic prior to the applicant ceasing work duties for the respondent.
Dr Bradshaw observed that establishing causation in cases of stenosing tendovaginitis can be difficult. However, on the basis that the applicant found that his symptoms fluctuated with the amount of driving he was doing and especially with the amount of manipulating of the door switch on the bus, the doctor was of the opinion that it is likely that the applicant’s workplace activities were a significant contributor to his symptoms.
Dr Michael McGlynn observed that there was no evidence of any repetitive non-work manual activity. Dr McGlynn is of the opinion that the right trigger thumb condition is not constitutional and more likely than not is an overuse injury caused by repetitive operation of the bus door switches. The doctor observed that the condition is most commonly caused by overuse and there is no evidence of any other probable cause for the condition. The doctor observed that known causes are infection, inflammatory conditions such as rheumatoid arthritis, trauma and overuse. Other associations include diabetes and gout. Dr McGlynn was of the opinion that there was no evidence of any pre-existing injury or condition contributing to the right thumb tenosynovitis condition.
I prefer the opinions of Dr Bradshaw and Dr McGlynn to that of Dr Machart. Dr Machart has based his opinion on the incorrect basis that the trigger thumb developed 12 months, not two months, after the applicant ceased work duties with the respondent. Dr Machart also does not consider, even though he noted that the right thumb symptoms were aggravated by physical activity, the development of the trigger condition in the context of the right thumb being symptomatic over many years with the thumb symptoms worsening over time including the subsequent development of clicking and intermittent locking in the thumb and the applicant’s history that the symptoms would fluctuate with the amount of bus driving that he performed and in particular the amount that he had to use the bus door switches. There is no evidence of any other cause of the right thumb condition and whilst Dr Machart observed that there were diagnostic features of degenerative arthrosis affecting several areas of the body including the right thumb there is no evidence or opinion that there is any general inflammatory condition that could have been causative of the right thumb condition.
The weight of the evidence supports that the applicant’s right thumb condition, including the triggering of the thumb, has occurred as a result of the repeated stress placed on the right thumb by the repetitive operation of the bus door switches in the course of his employment as a bus driver with the respondent. In accordance with the reasoning in Perry I find that the applicant has sustained a disease injury to his right thumb.

As there is no evidence of any repetitive physical activity involving the right thumb or other cause for the development of the right thumb condition other than the applicant’s work duties with the respondent I accept that the applicant’s employment was the main contributing factor to the contraction of a disease process of the right thumb in accordance with s 4(b)(i) of the 1987 Act.
If I am incorrect in respect to finding that the applicant’s employment was the main contributing factor to the contraction of a disease process of the right thumb I find pursuant to s 4(b)(ii) of the 1987 Act that the applicant’s employment was the main contributing factor to the aggravation, acceleration, exacerbation and/or deterioration of the disease process of the right thumb noting that it is the applicant’s evidence that his right thumb symptoms fluctuated with the amount that he was driving buses and in particular with the amount that he used the bus door switches. For there to be an aggravation or exacerbation of a disease all that is required is an intensifying of the symptoms: Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Semlitch). As previously discussed no competing factors to the aggravation or exacerbation of the disease have been identified.

SUMMARY

I find that:
(a) the applicant contracted a disease of his right thumb including a right thumb trigger finger condition within the meaning of s 4(b)(i) of the 1987 Act in the course of his employment with the respondent deemed to have occurred on
20 June 2020;
(b) in the alternative the applicant suffered an aggravation, acceleration, exacerbation or deterioration of a disease process of his right thumb including a right thumb trigger finger condition within the meaning of s 4(b)(ii) of 1987 Act arising out of or in the course of his employment with the respondent deemed to have occurred on 20 June 2020, and
(c) there is no dispute between the parties that the applicant suffers from a right thumb trigger finger condition and that the right thumb trigger release surgery proposed by Dr David Bradshaw is reasonably necessary treatment for the condition. I therefore find that the right thumb trigger finger release surgery proposed by Dr David Bradshaw is reasonably necessary treatment as a result of the injury sustained by the applicant in the course of his employment with the respondent deemed to have occurred on 20 June 2020 within the meaning of
s 60 of the 1987 Act.

[2023] NSWPIC 104

14 March 2023