1. Mr Mateo Alofaki (the applicant) was employed by Southern Steel Group Pty Ltd (the respondent) as a storeman. It was a requirement of the applicant's employment that he wear steel capped boots.
2. On 29 May 2023, the applicant, through his solicitor, made a claim for workers compensation in respect of an injury to his right foot caused by the nature and conditions of his employment with the respondent.
3. The claim was disputed in a notice issued by the insurer pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 26 September 2023.
4. The current proceedings were commenced by lodgement of an Application to Resolve a Dispute (the Application) in the Personal Injury Commission (Commission) on 5 March 2025. The applicant seeks weekly compensation and medical and related treatment expenses.

1. The parties agree that the following issues remain in dispute:

(a) whether the applicant sustained an injury in the nature of an aggravation, acceleration, exacerbation or deterioration in the course of employment of a disease, to which the employment was the main contributing factor pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act);

(b) the correct deemed date of injury pursuant to s 16 of the 1987 Act;

(c) the extent and quantification of incapacity resulting from the injury;

(d) the correct pre-injury average weekly earnings (PIAWE) rate;

(e) the entitlement to medical and related treatment expenses pursuant to s 60 of the 1987 Act, and

(f) whether ss 254 and/or 261 of the 1998 Act prevent the recovery of compensation.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The matter proceeded to a conciliation conference and arbitration hearing in Sydney on

20 May 2025. The applicant was represented by Mr William Carney of counsel, instructed by Mr James Lemoto. The applicant was also assisted by an interpreter in the Tongan and English languages. The respondent was represented by Mr John Gaitanis of counsel, instructed by Mr Connor Ware. A representative from the insurer was also present. 2. 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.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application and attached documents;

(b) Reply and attached documents;

(c) documents attached to an Application to Lodge Additional Documents filed by the respondent on 1 May 2025, and

(d) amended wages schedule filed by the applicant on 13 May 2025.

1. Neither party applied to adduce oral evidence or cross-examine any witness.

1. The applicant's evidence is set out in written statements made by him on 28 July 2023 and

6 March 2024. 2. The applicant's first statement was prepared by an investigator on behalf of the insurer and is unsigned. Its contents are largely to the same as the later, signed statement. 3. In his second statement, the applicant said he was born in Tonga in 1969 and attended school until Year Nine. The applicant came to Australia in March 2004 from New Zealand. The applicant said he could not understand English properly without the assistance of an interpreter. 4. The applicant commenced employment with the respondent as a warehouse storeman on or about 6 April 2004. The applicant's work involved frequent, repetitive and strenuous bending, twisting, lifting carrying and walking around a factory while wearing steel toe capped boots. The applicant said his job required him to stand and walk at all times. 5. The applicant said that he sustained an injury to his right foot and toes as a result of his steel capped boots. For about two months, the applicant was in pain whilst walking around at work. The pain was particularly severe when climbing trucks to load and unload items. The applicant said he reported the injury verbally to his supervisors and manager, Ben, who told him to go to the doctors. 6. One day, the applicant was unable to finish a task unloading a truck due to his pain. The applicant took off his boot and went to speak to Ben explaining that he was in excruciating pain and could not put the boot back on. The applicant called his wife who picked him up and took him to the family doctor. The applicant's toe was infected, and he was hospitalised and placed on a drip. 7. Between 17 December 2021 and 28 January 2022, the applicant was unable to work due to being admitted to Liverpool Hospital for six weeks. The applicant was off work for a total of six months. On 31 March 2022, the applicant signed a letter of resignation. 8. The applicant said that he had subsequently found out that there was a medical process at Southern Steel which was not offered to him when he complained of his injuries.

1. Clinical records from the applicant's general practitioners are in evidence. Records from mid 2015 onwards indicate that the applicant was seen with regard to diabetes management.
2. On 15 July 2020, the applicant reported a burning pain in both feet for a few weeks, felt all over the feet from the ankles to the toes. Sensation at the feet was said to be normal. The applicant was given advice regarding diabetic management and referred for dietician and podiatrist review.
3. On 20 January 2021, the applicant was seen for pains in his legs. On examination, there was no focal swelling or tenderness. The applicant's calves were noted to be normal.
4. The applicant was seen by general practitioner, Dr Naila Shahid, on 18 August 2021 for a wound on the dorsum of his right big toe. The wound was swabbed and the applicant started on antibiotics. The applicant was advised to return the following Monday for a care plan and referral to a podiatrist.
5. On 23 August 2021, general practitioner, Dr Mohammed Naushad-Uddin recorded:

-Says uses a steel boot; decreased on the boot grazes on the dorsum big toe

-Has felt pain before; tried various different type of shoes but to no avail

I note that, he has not seen a podiatrist as advised last year; says has no time"

1. A dressing was applied to the wound and the applicant prescribed Keflex. The applicant was given a medical certificate for work.
2. The applicant reported a persisting infection on 2 September 2021. On 20 September 2021, Dr Naushad-Uddin recorded:

R big toe: 2cm deep crator on the callus on dorsum of big toe

L big toe: similar large callus on dorsum; no ulcer here

Imp: callus due to consistent use of steel-capped shoes

Emphasised ABPI immediately; referral given; should have no costs to pay

Emphasised to avoid steel-capped shoes; will speak to his boss"

1. The wound on the applicant's right big toe was noted to be larger on 19 October 2021. On the same date, Dr Naushad-Uddin prepared a medical certificate certifying the applicant as unable to work from 19 October 2021 to 29 October 2021 due to a friction ulcer on his right big toe. The certificate stated that the applicant should avoid wearing steel capped boots for at least two weeks to allow healing to occur. It was said the applicant could work if he did not require steel capped boots.
2. On 4 November 2021,

Exam -deep ulcer on dorsal of index toe, with necrotic base

1. Dr Naushad-Uddin referred the applicant to the High Risk Foot Clinic at Liverpool Hospital for urgent management of an ulcer on the applicant's right big and index toes. Dr Naushad-Uddin expressed the belief that the ulcers were acquired from the edge of the steel boot noting a callus on the dorsum of the left big toe.
2. In January 2022, it was noted that the applicant's ulcer was healing but he continued to visit the foot clinic. On 25 January 2022, the applicant complained of pain in his right leg. It was noted that he was suffering with a diabetic foot ulcer and had been off sick, mostly resting at home.
3. Dr Patrick Goorkiz, of Liverpool Hospital, reported on 9 February 2022 that the applicant had attended for review of a chronic right hallux ulcer. The ulcer had begun due to friction from work footwear. The applicant had previously completed an antibiotic course but the wound had progressed and was able to be probed to the bone. An X-ray showed extensive destruction of the distal phalanx with evidence of rapidly progressing osteomyelitis.
4. On 17 February 2022, Dr Matthew Huu Nguyen at Liverpool Hospital reported that the applicant had been seen for ongoing management of right hallux osteomyelitis. The applicant had been commenced on intravenous antibiotics on 2 February 2022.
5. On 23 February 2022, Dr Kenny Luu at Liverpool Hospital noted that the applicant was continuing on intravenous antibiotics and the ulcers on his right first toe had shown great improvement.
6. On 2 March 2022, Dr Luu reported that there had been an improvement in the applicant's right toe pain. The applicant had completed a four week course of intravenous antibiotics. The applicant had been able to mobilise and could return to work as a foreman.
7. On 7 March 2022, Dr Naushad-Uddin noted:

1. On 16 March 2022, Dr Luu noted that the applicant had been reviewed and reported significant improvements in his toe which had completely healed. The applicant remained well and was continuing on antibiotics.
2. A report from Dr Rebecca Nguyen at Liverpool Hospital noted that the applicant had been seen on 2 May 2022 at the high risk foot clinic for review of right hallux osteomyelitis. The applicant reported that the pain at his right hallux had resolved although he continued to note some neuropathic pain in a bilateral glove and stocking distribution. His wounds had completely healed over and there were no signs of cellulitis.
3. Dr Naushad-Uddin prepared a report for the applicant's solicitors on 2 March 2025, giving a history that was consistent with the clinical records. Dr Naushad-Uddin noted that the applicant had type II diabetes mellitus but his ankle brachial pressure index was normal, ruling out a vascular complication of diabetes. Dr Naushad-Uddin diagnosed repeated frictional abrasion leading to chronic ulcer of the right big and index toes.
4. After consistent management and prolonged care the ulcers had healed. The applicant's ongoing treatment concerned the management of his type II diabetes. Dr Naushad-Uddin expressed the opinion that the applicant's employment, particularly the requirement of wearing steel boots, was the main contributing factor to the injury.
5. It was noted that following the healing of the ulcers the applicant would have regained capacity to work but had been advised not work in steel capped boots.

1. Endocrinologist, Dr Stephen Thornley prepared a medicolegal report for the applicant after examining him on 8 February 2024[1].
2. Dr Thornley noted that the applicant had been diagnosed with type II diabetes mellitus 22 years earlier. The applicant reported some symptoms of diabetic neuropathy or nerve damage with numbness up to the knees bilaterally as well as pins and needles. Dr Thornley took a history of the injury as follows:

"In around July of last year, Mateo, who is required to wear steel capped boots in his occupation as a storeman, whilst at work noted that the shoes had rubbed on his feet and caused and abrasion or maceration affecting both feet. This progressed and Mateo developed an ulcer on the right big toe by the end of 2021. An x-ray at this stage did not demonstrate evidence of bony infection or osteomyelitis. The ulcer progressed and by late January 2022 it was noted that the x-ray demonstrated changes in the distal phalanx in the right big toe, consistent with bony infection or osteomyelitis. Mateo was then commenced on antibiotics in the form of Tazosin 13.5 mg daily intravenously for 4 weeks and then had a further 8 weeks of oral Augmentin Duo Forte. Mateo was assessed on a very regular basis by the Liverpool Hospital High Risk Podiatry Service during this time and after their supervision, the ulceration on the right big toe completely resolved and remains resolved. There was also an ulcer on the distal part of the right second toe and over the first MTP joint on the first toe, both of which resolved under the supervision of podiatrist. By March 2022 all wounds had healed and remain so."

"Mateo had a diabetic ulcer predominantly on the right first toe caused by recurrent rubbing on the first big toe by his steel cap boot which may have been ill fitted. This is also a direct consequence of long term, suboptimally controlled type II diabetes mellitus complicated by peripheral neuropathy and likely small vessel peripheral arterial vascular disease."

1. Dr Thornley expressed the opinion that employment was a substantial contributing factor to the injury, stating:

"...employment has been a substantial contributing factor to the development of maceration, feet infection with the complication of osteomyelitis and ulceration of the right big toe."

1. With regard to the applicant's capacity for work, Dr Thornley said he was not fit for work involving the requirement of wearing steel capped boots. The applicant would be fit for other physical type of work and sedentary work, however, English was not his first language.

1. The respondent relies on a written statement signed by Wen Jie Zhu on 28 March 2024.

Mr Zhu, also known as 'Jimmy Zu', stated that he was employed by the respondent as a state operations manager and had managed the applicant about five years earlier, before Ben Dunn took over the role. 2. Mr Zhu said he was unaware that the applicant had an injury to his foot although the applicant had mentioned indirectly that his work boot was giving him some grief. Mr Zhu recalled making arrangements to get the applicant whatever boot would make him comfortable. Mr Zhu recalled checking in with the applicant to see how the new boots were going and he said "good, much better." Mr Zhu said a lot of the Tongan employees in the warehouse had issues with the boots because of the size of their feet. Mr Zhu said,

"I am not aware of a report of the injury he is claiming. What I know of Mateo is he did mention sometimes that he had gout. I don't recall he related the gout to his boots and the whole story I heard was that he has diabetes however I was not aware of that during his employment and only found out once he was no longer employed with us. I did hear once or twice from his supervisor that he was not at work due to a foot issue so when I would see him back at work I would ask about his foot when walking past and he would say "it's good."

1. Mr Fauna Taufa signed a statement on 23 August 2023. Mr Taufa was employed by the respondent as a supervisor and had supervised the applicant. Mr Taufa said he was also the applicant's brother-in-law. Mr Taufa stated:

"I am not aware that Mateo was injured at work and there was no report was made to myself. There was no incident report written regarding a foot injury. He never mentioned any issues at work regarding his foot or issues with his work boot. As far as I know, he has diabetes, and this has caused him issues with his foot."

1. Mr Ben Dunn signed a written statement on 25 August 2023. Mr Dunn said he was an operations manager and would speak to the applicant once a week and see him every day. Mr Dunn said the applicant resigned on 31 March 2022. The reason given in the resignation letter was a severe injury to the applicant's foot due to the steel capped boot.
2. Mr Dunn confirmed that the applicant's duties involved loading and unloading and picking material. Mr Dunn said the applicant had taken a significant amount of leave due to gout:

"I was made aware of his gout when he originally said foot his was infected at the start of 2021. I recall he started showing us his toe and tried to put his work boot on but when we saw that he could not walk in the boot, and we called him back in and said what was happening. He showed me his toe and I said he needed to go to Doctor because he could not work in that condition."

1. Mr Dunn stated that the applicant was given new boots in October 2021 but never wore them. The applicant would come in to work for a few days then go off sick because of the gout. At the end of January 2022, the applicant called and said that his doctor needed to speak to him. Mr Dunn said:

"When the Doctor got on phone to me the Doctor said "Mateo is not going good he isn't allowed to go back to work because he is not looking after his foot. He has been trying to use natural remedies rather than taking the medication. He is not listening to the dietary requirements and is still wearing shoes when he shouldn't be. Mateo will not listen and if he keeps going like this we will need to amputate his foot."

1. Mr Dunn said that if a report had been received regarding an injury to his foot caused by work this would have been escalated.

1. The applicant prepared a letter of resignation on 31 March 2022 which relevantly stated:

"Thank you for giving me the opportunity to work in this position for the past 18 years. I have thoroughly enjoyed working here and appreciate all the opportunities you have given me. However, I have decided it was time for me to stop working due to a severe injury on my right toe which has been damaged from the steel cap boots causing me to stop working. Both my annual and sick leave has finished and | can no longer provide for my family, which is why I'm resigning so I could apply for payment from Centrelink until my right toe is fully healed."

1. Orthopaedic surgeon, Dr James Powell, prepared a medicolegal report for the respondent on 18 September 2023.
2. Dr Powell took a history that the applicant developed swelling in the right foot in January 2021. The applicant was seen at Fairfield Hospital and diagnosed with diabetes. The applicant was admitted to hospital for some six weeks. During this time, he was assessed by a podiatrist and advised on footwear selection, foot maintenance, foot inspection and so on. Following his discharge, the applicant returned to work and his work boots were refitted.
3. In May 2021, the applicant started to develop pain in the right forefoot and toes, particularly the great toe. Nothing in particular brought this on, but it was while he was walking on the floor and doing his work activities that he first noted the pain. The pain increased in severity and the applicant started to limp. The applicant reported his troubles to his supervisor and was advised to go home. The applicant continued with work until around August 2021 when the pain and limping became too severe for him to carry on.
4. Dr Powell recorded that the applicant was seen by his local doctor and assessed in the diabetic clinic. He had some areas of fluid discharged from the collections that developed in the foot and required dressings for these. The soft tissues improved but there were intermittent episodes of fluid collection and discharge.
5. Dr Powell gave a diagnosis as follows:

"Mr Alofaki is an insulin dependent diabetic. He has peripheral neuropathy involving both feet. It has been some time since his right forefoot difficulties that he relates to walking and wearing steel-capped boots at work. It is most likely that he had some mechanical abrasion of the forefoot and toes from his rigid work boots, mainly involving the right foot, most likely after his feet had become more tight in his boots from swelling associated with his diabetes and dependency and decreased vitality of the tissues and may also have had some local infection at the time. (These components have now resolved.)"

1. Asked about Dr Naushad-Uddin's impression that the applicant had an injury due to the consistent use of steel capped shoes, Dr Powel responded:

"Work boots and those shoes with steel-caps are designed for mechanical protection of the feet against injury, usually from objects being dropped on them in workplaces that are considered potentially dangerous. Such boots do not have wide fitting ranges and are rigid to provide the strength and protection.

It is not infrequent for such boots to cause soft tissue and skin abrasion and can be a contributor to the development of callus which allows differential soft tissue movement, irritation and breakdown, which can lead to ulceration, infection and so on. (They are not the only cause as the soft tissue tension can also be generated from within the foot, reacting against ground surfaces in walking and daily activities.)"

"Mr Alofaki indicated that his initial difficulties when he first presented in January 2021 were at the right foot, and he returned to work wearing his work boots fairly soon after discharge. It is probable that his right foot at the time was more swollen with soft tissue changes than the left, and this may have contributed to his symptoms and soft tissue difficulties developing later in the year, initially in the right foot."

1. With regard to the applicant's capacity for work, Dr Powell gave the opinion:

"As outlined above, Mr Alofaki's complaints and limitation in work capacity are reasonable, and relate to his diabetic status and having established peripheral neuropathy and bilateral foot disease, but do not arise from any aspect of his previous work (these effects having settled once the acute soft tissue component was addressed)."

1. Endocrinologist, Professor John Carter, prepared a medicolegal report for the respondent on 19 September 2023.
2. Professor Carter took a history that the applicant had no problems with his feet until July 2021 when he developed an ulcer over an area of callus on the top of his right first toe:

"The clinical notes indicate that he had a large callus over the top of the right first toe with a 1 cm ulcer in August 2021, but by September 2021, there was a 2 cm ulcer over the callus of the right great toe. To a lesser degree, there was callus over the tip and top of his right second toe and a small ulcer also developed in that region. The main ulcer on the right first toe recurred and in January 2022, he was diagnosed with osteomyelitis in the right first toe and was admitted to hospital for IV antibiotics. The ulcer continued and his employment was terminated on 7 March 2022 after he had exhausted his sick leave and long service leave."

1. Prof Carter reported that there was no ulceration at the time of his examination. The applicant had been diagnosed with type II diabetes around January 2021 by his general practitioner. The applicant's main complaint at the time of Prof Carter's report was pain over the soles of both feet up to the ankles and over both hands with diabetic peripheral neuropathy. The pain was exacerbated with the wearing of any shoes and the applicant now only wore sandals.
2. Asked whether employment was the main contributing factor to an injury, Prof Carter commented:

"I believe the most likely reason for there not being any significant callus formation or any ulcer formation when wearing his steel-capped boots between 2004 and early 2021, was because his feet were not affected by a peripheral neuropathy. The diabetes has caused a significant peripheral neuropathy and one of the complications in this situation is that there is hyperextension of the MTP joints in the feet such that the top of the toes are closer to the capping of his boots, thus leading to increased friction, callus formation, and subsequent breakdown into ulcers. Additionally, the numbness associated with the neuropathy would reduce symptoms/warning signs that otherwise would have been present in the toes from the increased pressure. Thus, I believe that the diabetes has played a very relevant role in the development of his condition."

1. The applicant submitted that the injury relied on in these proceedings was an aggravation of a disease caused by the restriction of his foot due to wearing steel capped boots, causing a period of six months of incapacity and need for treatment.
2. The applicant conceded that he had a pre-existing diabetes condition giving rise to an underlying vulnerability, however, it was the requirement to use steel cap boots which had caused the injury.
3. The applicant observed that Prof Carter agreed that constriction of the foot caused a rubbing or friction which caused ulceration and the need to undergo medical treatment. All of the doctors agreed that the applicant should not be working in a job that required that sort of constriction of the foot. The applicant submitted that there was no dispute that there was a medical condition at his foot which required treatment.
4. The applicant referred to his statement evidence. The applicant's work involved a lot of standing and walking. The applicant had expressed the belief that the wearing of boots caused the injury and noted that he had reported the injury to his supervisor. The letter of resignation referred to the injury.
5. Between 17 December 2021 and January 2022, the applicant was totally incapacitated and in hospital for six weeks. The applicant submitted that the first certificate of capacity was dated 17 December 2021 and that ought to be taken as the deemed date of injury.
6. The applicant referred to the report from Dr Naushad-Uddin prepared for his solicitors.

Dr Naushad-Uddin gave the opinion that repeated frictional abrasion led to chronic ulceration. A vascular complication of diabetes had been ruled out. 7. Endocrinologist, Dr Thornley, echoed that opinion stating that the injury occurred due to constriction of the boot, despite the clearly pre-existing diabetes. 8. The applicant noted that the reports from Liverpool Hospital confirmed that the ulcer on his toe was due to restricted footwear. 9. The applicant submitted that the medical evidence confirmed that despite his pre-existing vulnerability, the use of the constricted boot and the rubbing of this on the top of his toes was the cause of the particular injury relied on. The applicant had subsequently been incapacitated as a result of the injury. In the long-term, the applicant was restricted from work that required the wearing steel capped boots. 10. The applicant noted that the respondent's witnesses, other than Ben Dunn, said there was no record of injury. The letter of resignation stated, however, that the reason for the resignation was a severe injury to the applicant's foot due to the steel cap boot. It was quite clear that the applicant had given notice of the relevant facts giving rise to the injury to his employer prior to the cessation of work. 11. To say that the respondent did not know about the injury was quite disingenuous. The applicant's English was not that good. The employer must have known the facts of what was going on. All of the relevant details were contained in the letter of resignation. 12. The applicant submitted that the respondent's medicolegal evidence supported the occurrence of a short-term injury to the right foot. Dr Powell considered this, saying it was most likely that some mechanical abrasion of the forefoot and toes from the rigid work boots had contributed to the injury, although this had now resolved. Dr Powell agreed that the infection caused incapacity for a period of time. Although Dr Powell was focused on the pre-existing condition of diabetes, the presence of a pre-existing condition was not in dispute. 13. Dr Powell's history was also consistent with the applicant having notified the employer of the injury. Dr Powell reported that the applicant had indicated that he had his boots refitted to accommodate the changed condition of his right foot. The applicant had indicated that his supervisor had arranged for the work boots to be fitted. The applicant had reported that when he first developed pain in May 2021, he had brought this to the attention of his supervisor, asking for different boots. 14. The applicant observed that Prof Carter had given a similar opinion. Prof Carter expressed the opinion that the injury was caused by pressure on the top of his affected toes by the steel-capped boots and that the peripheral neuropathy caused by his diabetes had aggravated the situation. 15. Although Prof Carter had given an opinion that the applicant did not continue to suffer from the effects of the physical injury, the applicant was seeking a closed period of weekly compensation. The ulceration injury was the cause of him being unable to work. 16. The applicant conceded that the respondent's wages schedule and PIAWE calculation appeared to be consistent with the documents relied on by the respondent.

1. The respondent observed that the applicant had not provided any countervailing evidence to dispute the PIAWE rate relied on by the respondent. The respondent had provided wages material in support of its PIAWE calculation.
2. The respondent observed that Dr Thornley had expressed the opinion that the applicant was only partially incapacitated. The only limitation on his capacity was in relation to the wearing of steel capped boots. The applicant was capable of performing other work.
3. The respondent observed that the applicant had not provided any evidence to explain what had occurred in terms of reporting the injury or the making of claim. The applicant relied on inferences from the evidence.
4. The respondent referred to the statements of Mr Zhu, Mr Taufu and Mr Dunn. The witness statements confirmed that there was no report of an injury. It appeared to have been assumed that the applicant was suffering from gout. Although the applicant reported that there were problems with his feet, there was never an indication that the problems were work-related.
5. The respondent submitted that the letter of resignation was ambiguous regarding the presence of a work injury.
6. The respondent submitted that the applicant should have provided a written statement explaining the breaches of ss 254 and 261 of the 1998 Act.
7. The respondent said there were ambiguities regarding the pleading of injury. It was unclear whether both feet were affected. Dr Thornley suggested there had been an aggravation of diabetes, although the claim was later limited to an aggravation in the nature of ulcerations of the applicant's feet.
8. Dr Powell's opinion was that an abrasion of the foot only occurred after a swelling of the feet caused by the diabetes. The main contributing factor to the injury was not the boots but the peripheral neuropathy caused by the diabetes.
9. The respondent submitted that even on Dr Thornley's evidence, the applicant could not succeed. Prof Carter also considered that the applicant's condition was due to non-work-related factors.
10. The clinical records attached to the Application indicated that the applicant had suffered from diabetes mellitus since 2015.
11. In his statement evidence and the histories given to the medicolegal experts, the applicant had denied having a similar injury previously. Prof Carter noted that the applicant had been wearing steel capped boots since 2004 and had no problems until 2021. Prof Carter considered the applicant's condition was due to non-work-related factors. The diabetes had caused a significant peripheral neuropathy which had caused hyperextension of the MTP joints and feet so that the tops of the toes were closer to the capping of the applicant's boots.
12. The respondent submitted that if work was the main contributing factor to the injury, the applicant would have experienced this problem prior to 2021. The main contributing factor to the condition was the applicant's peripheral neuropathy or diabetes. Prof Carter expressed an opinion that the applicant would have experienced a similar type of injury with any enclosed shoes.
13. The respondent submitted that Prof Carter's opinion was compelling. Without the peripheral neuropathy and swelling there was no injury between 2004 and 2021.
14. The respondent submitted that Prof Carter's opinion was consistent with Dr Thornley's report. Dr Thornley agreed that the condition at the right big toe was a direct consequence of the peripheral neuropathy as well as the requirement to wear steel capped boots.

Dr Thornley's opinion suggested there were two factors operating at the same time, the diabetes and the shoes. Dr Thornley's opinion did not satisfy the main contributing factor test. Prof Carter gave a more plausible explanation. Both Dr Powell and Prof Carter opined that the peripheral neuropathy came first and was the main contributing factor to the ulceration. 15. The respondent submitted that the applicant had the ability to earn at least his pre-injury average weekly earnings rate per week. Even Dr Thornley conceded that the applicant had a partial capacity. Although Prof Carter did not think the applicant was fit to work, the incapacity was due to the non-work-related diabetic condition.

1. The applicant submitted that the only place he wore steel capped boots was at work. There was no doubt that the applicant wore the boots. The problem was the abrasion inside the boots. The injury would not have happened even with the peripheral neuropathy without the steel capped boots.

Whether the applicant has sustained an 'injury'?

1. 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. The term 'injury' is relevantly defined in s 4 as it applies to this case as:

(a) means personal injury arising out of or in the course of employment,

(b) includes a disease injury, which means:

(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined."

1. In AV v AW[2] Snell DP at [65]-[78] discussed the authorities on the main contributing factor test in s 4(b)(ii) of the 1987 Act and noted:

"It follows that the test of 'main contributing factor' involves 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.

(a) The test of 'main contributing factor' in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one 'main contributing factor' to an alleged aggravation injury.

(b) The test of 'main contributing factor' is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of 'main contributing factor' is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence."

1. It is common ground between the parties that the applicant has a disease condition, being type II diabetes mellitus. While Dr Powell and Prof Carter appear to have understood the condition was first diagnosed in January 2021, a review of the treating evidence confirms that the applicant had been diagnosed with and was receiving treatment for diabetes since at least 2015.
2. The medicolegal experts all also appear to accept that the applicant had a pre-existing peripheral neuropathy at his feet due to his diabetic condition. I note that there is reference to symptoms consistent with peripheral neuropathy in the general practitioner's notes in July 2020, prior to the onset of any ulceration of the toes.
3. There is no suggestion that either the diabetes mellitus or the peripheral neuropathy are causally related to the applicant's employment.
4. The particular 'injury' relied on by the applicant is the ulceration of his toes, in particular, the big toe of his right foot and the consequential osteomyelitis. The applicant says this occurred due to the edge of the steel cap of his work boots repeatedly rubbing on the dorsum of his toes while he stood and walked at work.
5. I accept on the evidence that the applicant wore steel capped boots at work and that his work involved constant standing and walking.
6. The mechanism of injury relied on by the applicant has been consistently described in the medical evidence. At a consultation with Dr Naushad-Uddin on 23 August 2021, the applicant described using a steel boot and the crease of the boot grazing the dorsum of the big toe. At a consultation on 20 September 2021, calluses on the toes of both feet were noted with Dr Naushad-Uddin recording his impression that the calluses were due to consistent use of steel capped shoes. The ulcer on the right big toe was located over the callus. A medical certificate issued on

19 October 2021 referred to a "friction ulcer on the right big toe" and advised that the applicant should avoid wearing steel capped boots for at least two weeks to allow healing to occur. 7. It appears that the applicant continued to work, at least periodically, and the wound progressed. On 4 November 2021, Dr Naushad-Uddin referred the applicant to the High Risk Foot Clinic at Liverpool Hospital for urgent management of ulcers on the right big toe and index toe. In the letter of referral, Dr Naushad-Uddin recorded his belief that the ulcer was acquired from the edge of the applicant's steel boot, noting the callus on the dorsum of the left big toe. 8. This causal theory was accepted by the doctors who treated the applicant at Liverpool Hospital. In February 2022, Dr Goorkiz, for example, referred to the applicant having a chronic right hallux ulcer that had begun due to friction from work footwear. Dr Goorkiz noted that the wound had progressed and was able to be probed to the bone. An X-ray showed extensive destruction of the distal phalanx with evidence of rapidly progressing osteomyelitis. The applicant was commenced on a four-week course of intravenous antibiotics. 9. The applicant's medicolegal expert, Dr Thornley, agreed with this causal theory, finding that the applicant had a diabetic ulcer predominantly on the right first toe which was caused by recurrent rubbing on the first toe of a steel capped boot. 10. I find the history recorded by Dr Powell somewhat difficult to reconcile with the other evidence. Dr Powell is the only doctor to have recorded a history of swelling in the right foot in January 2021 requiring a six-week hospitalisation at Fairfield Hospital. This hospitalisation is not recorded in the treating evidence, including the notes of the applicant's general practitioners. As noted above, there is evidence of hospitalisation at Liverpool Hospital in the early part of 2022. Dr Powell did not make any specific reference to the Liverpool Hospital records including the treatment for osteomyelitis in February and March 2022. It may be that Dr Powell has relied on an oral history given by the applicant, several years after the relevant events. The applicant was noted elsewhere in the evidence to be a poor historian, particularly as a result of language barriers. 11. The problematic history taken by Dr Powell has no doubt coloured his views. Nonetheless, Dr Powell agreed that there was a causal contribution from the wearing of steel capped boots and mechanical abrasion on the forefoot and toes. Dr Powell said it was not infrequent for such boots to cause soft tissue and skin abrasion, contributing to the development of callus and differential soft tissue movement, irritation, breakdown, ulceration and infection. 12. The history recorded by Prof Carter aligned more closely with the treating evidence. Prof Carter noted, however, that the applicant had worn steel capped boots between 2004 and early 2021 without any significant difficulty. This was said to be because the applicant's feet were not at that time affected by peripheral neuropathy. The diabetes caused a significant peripheral neuropathy involving hyperextension of the metatarsophalangeal (MTP) joints so that the tops of the toes were closer to the capping of the boots, leading to increased friction, callus formation and subsequently ulceration. The numbness associated with the neuropathy would have reduced symptoms that otherwise would have been present in the toes from the increased pressure. 13. It can be seen therefore that there is a consistency of medical opinion that the ulceration of the applicant's toes was the combined result of the applicant's diabetic condition and peripheral neuropathy, together with the wearing of the steel capped boots. It has not been suggested that the applicant would have developed the ulceration and subsequent osteomyelitis simply from wearing steel capped boots in the absence of a diabetic foot. 14. Similarly, while Prof Carter noted that symptoms of pain and swelling associated with the peripheral neuropathy were exacerbated by the wearing of any shoes, it has not been suggested that the applicant's diabetic foot would have developed the particular calluses, ulcers and osteomyelitis noted in the treating evidence had it not been for the prolonged wearing of steel capped boots in the course of the applicant's employment. Dr Naushad-Uddin noted, for example, that the applicant's ankle brachial pressure index was normal, ruling out a vascular complication of diabetes. 15. The applicant has characterised the 'injury' in this case as an aggravation, acceleration, exacerbation or deterioration in the course of employment of a disease for the purposes of s 4(b)(ii) of the 1987 Act. The applicant says the diabetic disease at his foot was aggravated or exacerbated by the wearing of steel capped boots, which was an inherent requirement of his employment. 16. In Federal Broom Co Pty Ltd v Semlitch (Semlitch)[3], Windeyer J said,

"[t]he question that each [aggravation; acceleration; exacerbation; deterioration] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient."

1. Applying Semlitch, Burke CCJ in Cant v Catholic Schools Office;[4] said:

"The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker."

1. I am satisfied on the foregoing analysis of the treating and medicolegal evidence that the wearing of steel capped boots while in the course of his employment made the diabetic condition at the applicant's foot worse in the sense described in Semlitch, by causing ulcers and ultimately the osteomyelitis treated at Liverpool Hospital in early 2022.
2. It is not necessary for the applicant to demonstrate that employment was the main contributing factor to the condition at his foot as a whole. It is only necessary that he demonstrate that employment was the main contributing to the aggravation of that condition. I am satisfied that the applicant has discharged his onus in this regard.
3. I find that the applicant sustained an injury in the nature of an aggravation, acceleration, exacerbation or deterioration in the course of employment of a disease, to which employment was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act.

Whether the applicant is barred from recovering compensation pursuant to ss 254 and/or 261 of the 1998 Act?

"(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury."

1. The evidence before the Commission clearly demonstrates that the applicant provided the respondent with notice of the injury to his right toe due to wearing steel capped boots in his letter of resignation dated 31 March 2022.
2. The respondent's witness evidence also confirms that the applicant's manager, Mr Dunn, was aware of the condition at the applicant's foot and an association between that condition and the wearing of steel capped boots prior to the applicant's resignation.
3. While the precise causal relationship between the condition at the applicant's foot and employment may not have been specifically articulated by the applicant, I am satisfied that notice of the injury was given in the manner required by s 254(1) of the 1998 Act.
4. Section 254 of the 1998 Act does not operate to bar the recovery of compensation.
5. Section 261 of the 1998 Act provides that compensation cannot be recovered unless a claim for compensation has been made within six months after the injury. A failure to make a claim within the required period is not, however, a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause, and the claim was made within three years after the injury.
6. The applicant's submissions suggested that sufficient particulars of a claim for compensation had also been provided to the respondent with the resignation letter.
7. Section 260 of the 1998 Act provides that a claim must be made in accordance with the applicable requirements of the Workers Compensation Guidelines. The SIRA Guidelines for Claiming Workers Compensation provide that a claim must supply information that demonstrates that the worker was employed; received an injury from or during the employment; and had lost income, needed medical treatment or had incurred other expenses because of that injury. An employer is required forward any workers compensation claim or information about a claim to their insurer within seven days of receiving it.
8. The applicant's letter of resignation confirmed that the applicant had been employed by the respondent; had sustained an injury to his toe during his employment caused by wearing steel capped boots; and could no longer work or support his family as he had exhausted his leave entitlements.
9. I accept that the evidence is consistent with the applicant having made a claim for compensation with the letter of resignation.
10. If I am wrong in this regard, I note that the applicant completed a work injury claim form on 29 May 2023, which was forwarded to the respondent on the same day. This was clearly within the three-year period specified in s 261 of the 1998 Act.
11. The respondent observed that the question of whether the delay in making a claim was occasioned by ignorance, mistake or other reasonable cause had not been directly addressed in the applicant's statement evidence.
12. The applicant's statement evidence does, however, indicate that he is a person with limited English language skills and education. Since moving to Australia in 2004, it appears the applicant had only ever worked for the respondent. The applicant's statement evidence suggested that he had more recently become aware that a workers compensation process should have been offered to him when he complained to his employer about his injuries. The causal relationship between the injury and the applicant's employment is not one which is straightforward having regard to the presence of the non-work-related diabetic condition. I am satisfied in all these circumstances that the evidence is consistent with any delay in making a compensation claim being occasioned by ignorance.
13. For these reasons, I am satisfied that s 261 of the 1998 Act does not operate to bar the recovery of compensation in this case.

Extent and quantification of incapacity resulting from the injury

1. While there is evidence that the applicant took various periods of time off work due to the ulceration of his right big toe in late 2021 and early 2022, the claim for compensation in these proceedings has been confined to the period from 13 March 2022 to 1 September 2022, according to the applicant's amended wages schedule.
2. The respondent has calculated the applicant's PIAWE based on the applicant's earnings in the 52 weeks prior to 13 March 2022, which it adopted as the deemed date of injury for the purposes of s 16 of the 1987 Act.
3. There is, however, email evidence from Adrian Marino, National Safety & Quality Manager indicating that the applicant's last physical day at work was 20 January 2022.
4. The applicant's statement evidence is that he was totally unable to work due to the injury from 17 December 2021 to 28 January 2022.
5. The respondent's wages material suggests that the applicant took long service leave for most of November 2021 and was largely off work on various forms of leave from

10 January 2022 onwards. 6. I have been unable to locate any SIRA certificates of capacity amongst the evidence before the Commission. There are, however, various ordinary medical certificates for various closed periods in the second half of 2021 and early 2022. 7. A Centrelink Medical Certificate certified the applicant as having no capacity for work or study from 23 March 2022 to 30 June 2022 due to a diabetic foot ulcer complicated by osteomyelitis. This certificate is, however, difficult to reconcile with the other medical evidence suggesting that the ulcers had healed by mid-March 2022. 8. The treating evidence from Liverpool Hospital indicates that the applicant continued to be treated for foot ulcer and osteomyelitis up until that time. The ulcers were noted by

Dr Nguyen to have completely healed on 16 March 2022, although the applicant remained on antibiotics. 9. Dr Naushad-Uddin and the medicolegal experts have all expressed the view that the applicant would have regained a capacity to work in suitable employment not requiring the wearing of steel capped boots once his ulcers and osteomyelitis had healed. The weight of evidence suggests the ulcers had healed prior to the commencement of the current claim for weekly compensation. 10. Although on 7 March 2022, Dr Naushad-Uddin noted that he had advised the applicant not to work for a few months, it is unclear whether this was due to the effects of the ulcer and osteomyelitis, or the ongoing difficulties associated with the applicant's diabetes. 11. As can be seen, the evidence with regard to the weekly compensation claim is unsatisfactory. 12. I am not satisfied that the applicant was incapacitated as a result of the injury, as opposed to the pre-existing diabetic condition, during the period of the applicant's amended wages schedule. 13. Nor am I satisfied that either party's PIAWE figure is accurate. Having regard to the ordinary medical certificates and clinical records, it is likely that the first date of incapacity was a date on or around 18 August 2021. I do not have before me evidence of the applicant's earnings for the 52-week period prior to that date. 14. While it is likely that the applicant has some entitlement to weekly compensation, for the reasons given above, I decline to make the award of weekly compensation claimed.

Entitlement to medical and related treatment expenses

1. The applicant has made a claim for incurred medical and related treatment expenses. I am satisfied that it was reasonably necessary that the applicant receive treatment for the work injury, being the ulcers on his toes and the consequential osteomyelitis.
2. There will be an award of a general nature for the respondent to pay the reasonably necessary medical and related treatment expenses resulting from the work injury in accordance with s 60 of the 1987 Act upon production of accounts, receipt and/or Medicare Notice of Charge.

[1] Dr Thornley's report is dated 7 February 2022, however, this appears to be a typographical error.

[2] [2020] NSWWCCPD 9.

[3] [1964] HCA 34; 110 CLR 626 at 632.

[4] [2000] NSWCC 37.