Abou-Sleiman v P & v Masonry Pty Ltd - [2011] NSWWCCPD 21

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Abou-Sleiman v P & V Masonry Pty Ltd [2011] NSWWCCPD 21
APPELLANT:		Paul Abou-Sleiman
RESPONDENT:		P & V Masonry Pty Ltd
INSURER:		GIO General Limited
FILE NUMBER:		A1-5962/10
ARBITRATOR:	Mr Grahame Edwards
DATE OF ARBITRATOR’S DECISION: DATE OF APPEAL HEARING:		2 November 2010 10 March 2011
DATE OF APPEAL DECISION:		1 April 2011
SUBJECT MATTER OF DECISION:		Personal injury; s 10 of the Workers Compensation Act 1987; late evidence on appeal
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr A Campbell, instructed by Buttar Caldwell & Co
Respondent:	Mr M Batten, instructed by TurksLegal
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 3 November 2010 is confirmed. Each party is to pay his or its own costs of the appeal.

BACKGROUND TO THE APPEAL

The appellant, Mr Abou-Sleiman, is a stonemason. He is a working director of P & V Masonry Pty Ltd, the respondent to the appeal. On 4 March 2009, the Mr Abou-Sleiman was involved in a motor vehicle collision during the course of a journey between his place of abode and place of employment.
He was driving a utility-type vehicle which was stationary at a set of traffic lights behind a truck in Frederick Street, Ashfield, when his vehicle was hit from behind by a truck. The impact pushed Mr Abou-Sleiman’s utility into the rear of the truck in front. The impact from the collision was substantial and resulted in Mr Abou-Sleiman’s utility being towed from the scene. Mr Abou-Sleiman alleged that he sustained an injury to his lumbar spine. He has not resumed work since the accident.
On 16 March 2009, Mr Abou-Sleiman completed a “worker’s injury claim form”, in which he stated that he sustained injuries to his back and neck as a result of the motor vehicle accident, and a hernia as a result of the “nature and conditions” of his employment.
Liability was initially accepted for weekly payments and medical expenses.
On 28 April 2010, Buttar Caldwell & Co, solicitors acting on behalf of Mr Abou-Sleiman, made a claim on GIO Workers Compensation (the scheme agents for P & V Masonry Pty Ltd), for $24,337.50 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 16 per cent whole person impairment, and $33,000, being compensation for pain and suffering pursuant to s 67. The worker alleged injuries occurring on 4 March 2009, in March 2006 and arising from the “nature and conditions of employment” from April 2000 to date. He alleged he suffered “[i]njury to the neck, back, anxiety and depression, loss of activities of daily living”.
On 14 July 2010, following an assessment by Dr Maxwell (on behalf of the respondent), GIO notified Mr Abou-Sleiman that liability for the lump sum compensation was declined on the basis that he did not suffer from any permanent impairment as a result of the injuries alleged.
On 25 July 2010, an Application to Resolve a Dispute was lodged in the Commission. The Application initially claimed the lump sum compensation referred to at [5] and weekly compensation from 4 March 2009 to date and continuing. The Application relied on the injury to the lumbar spine alleged to have occurred in the motor vehicle accident on 4 March 2009, plus various other injuries which are not presently relevant.
On 17 August 2010, P & V Masonry lodged a Reply with the Commission, relying on 14 grounds for denying the claim.
On 31 August 2010, a telephone conference was held between the parties. At the telephone conference, by consent, the claim was substantially amended, such that the only claims remaining concerned the claim for lump sum compensation in respect of the alleged injury to the lumbar spine and the claim for payment of medical expenses associated with treatment of the alleged injury to the lumbar spine.
At a conciliation and arbitration on 27 October 2010, the parties agreed that the issue for determination by the Arbitrator concerned whether Mr Abou-Sleiman suffered a personal injury to his lumbar spine in the motor vehicle accident on 4 March 2009. At the arbitration, Mr Abou-Sleiman gave oral evidence and counsel for both parties made submissions. Counsel for Mr Abou-Sleiman, Mr Petrie, submitted that Mr Abou-Sleiman suffered a personal injury in the nature of an injury to the L4/5 disc consistent with the evidence of Dr Qidwai (T18.38).
In a reserved decision dated 3 November 2010, the Arbitrator determined that, whilst it was likely that Mr Abou-Sleiman suffered an aggravation of degenerative changes in his lumbar spine, he failed to satisfy the Arbitrator that he had sustained a “personal injury” within the meaning of s 10(1) of the 1987 Act during a periodic journey, in that the injurious event did not result in a sudden identifiable pathological change.
The Commission issued a Certificate of Determination dated 3 November 2010 in the following terms:
“The Commission determines:
1. Award for the respondent.
2. No order as to costs.”
In an appeal filed on 17 November 2010, Mr Abou-Sleiman seeks leave to challenge the Arbitrator’s findings and determination.

LEAVE TO APPEAL

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

Monetary threshold

It is not disputed that the monetary thresholds in s 352(3) of the 1998 Act are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
I grant leave to appeal.

ISSUES IN DISPUTE

The only issue in dispute before the Arbitrator was:
Did the worker suffer a personal injury to the lumbar spine on 4 March 2009 when involved in a motor vehicle collision during the course of a journey between his place of employment and his place of abode?

On appeal, the appellant initially relied on the following grounds of appeal.
(a)     The Arbitrator should not have determined the ‘injury’ issue and should have referred that issue for determination by an approved medical specialist (AMS) “in the interests of justice”. The alleged failure to refer the matter to an AMS “annihilated” the worker’s rights.
(b)     The Arbitrator took irrelevant considerations into account in the application of the decision in Yum Restaurants Australia Pty Ltd t/as Pizza Hut RestaurantsvWatters [2001] NSWWCCPD 31 (Watters).
(c)     The Arbitrator erred in preferring the evidence of Dr Maxwell and failed to give reasons for doing so.
(d)     The Arbitrator erred in concluding that the “causing of a disc bulge could not be a ‘personal injury’ within the meaning of the Act”.
On the hearing of the appeal on 10 March 2011, with the consent of the respondent, the appellant abandoned all the grounds of appeal pleaded in the Appeal Against Decision of Arbitrator and substituted the following ground in a handwritten document headed “Amended Grounds of Appeal” filed on 10 March 2011.
“The Arbitrator erred in not finding there was a sudden identifiable pathological change in the workers condition which caused his injury.”
Counsel made no application to rely on fresh evidence or additional evidence on appeal.

FRESH EVIDENCE ON APPEAL

On 14 March 2011, two business days after I reserved my decision on the appeal, Mr Abou-Sleiman lodged an Application to Admit Late Documents. The Application attached an affidavit from Mr Abou-Sleiman dated 11 March 2011 and an affidavit from his wife, Minerva Abou-Sleiman, dated the same date.
An Application to Admit Late Documents is misconceived. The substance of the application is an application to introduce Fresh or Additional Evidence on appeal.
During the course of argument at the appeal hearing, there was considerable discussion between myself and Mr Campbell, counsel for Mr Abou-Sleiman, concerning the onset of symptoms suffered by the worker immediately after the accident. Mr Abou-Sleiman reported to Dr Maxwell he suffered an ache in his back in the evening after the accident. Yet his counsel submitted he felt pain in his back that evening (T7.6). At T8.6, I asked counsel to direct me to the evidence concerning the worker’s complaints of pain in the back on the day of the accident. At T8.23, Mr Campbell, after withdrawing his earlier submission that the worker suffered pain in his back on the evening of the accident, conceded that the worker’s evidence was silent on that issue.
During the arbitration hearing, Mr Abou-Sleiman was cross-examined on the history he gave Dr Maxwell. The following exchange is recorded at T8.26:
“Q. Did you tell Dr Maxwell that that night, you experienced aching in your back?
A. Yes, I reported that I had back pain.
Q. Did you, in fact, tell Dr Maxwell that that night you experienced aching in your back?
A. Yes I did.”
During a further exchange with counsel, Mr Campbell conceded, quite properly (at T10.20), that there was no evidence of radiculopathy which was in part the foundation for Dr Qidwai’s opinion.
Briefly stated, the evidence now sought to be introduced from Mr Abou-Sleiman and his wife concerns the onset and intensity of the pain he felt in his back after the accident and the reasons for his delay in seeking medical treatment. In contradiction to his earlier evidence, he now says:
“On the night of the accident I felt pain in my back and neck. The pain was deep and the muscles in back also became very tight which added to my discomfort”.
Mr Abou-Sleiman added (for the first time) that he was unable to sleep and began to experience numbness and pins and needles. He did not identify where those symptoms were experienced, or when they first occurred.
Section 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with leave of the Commission.”
Practice Note 6 sets out the requirements for an application for leave to introduce fresh or additional evidence and is in these terms:
“Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:
·it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
·the evidence is credible;
·there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
·it is just to admit the evidence in all the circumstances of the individual case.
Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.
If fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:
·a schedule of the fresh or additional evidence;
·a copy of the fresh or additional evidence;
·a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and
·submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.
Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.”
This Commission has emphasised in numerous cases that arbitrations are not a trial run where parties can see how things turn out and then attempt to introduce on appeal evidence that was readily available at the time of the arbitration (Matar v Zeineddine [2008] NSWWCCPD 51).
In Haider v J P Morgan Holdings Aust Ltd [2007] NSWCA 158 (Haider), Basten JA drew a distinction between “new evidence” referred to in Practice Direction 6 and “evidence in addition to or in substitution” as set out in s 352(6). The Court of Appeal considered Practice Direction 6, which established the conditions required to be satisfied for the admission of “fresh evidence”, but held that a more flexible test applied to “evidence in addition to or in substitution for”. In Haider, Basten JA was dealing with Practice Note 6 as it then was. The Practice Note was subsequently reissued on 15 November 2007 and is in materially different terms to those considered by his Honour. It now refers to “each application to introduce fresh or additional evidence on appeal” whereas the former practice note dealt with the procedural steps required to introduce “new evidence on appeal”.
In Akins v National Australia Bank [1994] FCA 1209; 34 NSWLR 155, an appeal brought from a judgment following a trial without a jury in the court, Clarke JA (Sheller JA and Powell JA agreeing) stated (at 160) that three conditions need to be met before “fresh evidence” can be admitted:
“These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.”
In Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116, (Nowlan), Heydon JA stated at [15]:
“Even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?”
In Naidu v Able Manufacturing Pty Ltd [2007] NSWWCCPD 237, Deputy President Roche said (at [26]), referring to Haider and Nowlan:
“In considering an application to rely on fresh evidence or further evidence on appeal, the Commission must balance two competing requirements: the public interest that litigation should not continue indefinitely against the need to ensure that justice is done in all the circumstances of the case. In balancing these matters the Commission must also keep in mind its statutory duty to act ‘according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’ (s 354(3) of the 1998 Act).”
In purported compliance with Practice Note 6, Mr Abou-Sleiman submits:
“In accordance with the Rules, the document scheduled herein should be admitted for the avoidance of injustice.
2.[sic]Pursuant to the doctrine of procedural fairness generally, the Applicant should be allowed the admittance of the document scheduled herein, as to deny this would prejudice the Applicant’s case and the interests of justice as a whole.
3.Specifically, the document scheduled herein was not in the possession of the Applicant at the time of or prior to the filing of their Application.
4.There is no prejudice to the Respondent in respect of time.
5.The document scheduled herein is relevant to a fact in issue that could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact.”
On 14 March 2011, the respondent notified the Commission of its objection to the appellant’s Application and sought an opportunity to make submissions. On 16 March 2011, I issued a direction to the respondent to file and serve any submissions in response to the appellant’s Application to Admit Late Documents by 25 March 2011.
In response to the direction, the respondent makes the following submissions:
(a)     It would be substantially prejudiced if leave to rely on the late documents were granted.
(b)     The evidence Mr Abou-Sleiman now attempts to rely upon has always been available, and could have been obtained and served prior to the Application to Resolve a Dispute being filed, or following the initial teleconference.
(c)     Leave was granted to Mr Abou-Sleiman to give evidence at the arbitration. His answers were transcribed and were available prior to lodging the appeal and during the appeal hearing.
(d)     No valid reason has been advanced as to why the new evidence should be admitted in circumstances where it could have been admitted in evidence prior to the arbitration hearing.
(e)     Mr Abou-Sleiman’s counsel did not foreshadow at the appeal hearing that an application would be made for the admission of additional evidence. Indeed, his counsel relied on the evidence already given by his client both orally and in his written evidence before the Arbitrator.
(f)      The submissions on page 2 of the Application to Admit Late Documents are not appropriate grounds to warrant the admission of the evidence following an appeal hearing. The reasons proposed by Mr Abou-Sleiman do not meet the legislative criteria to justify the grant of leave to admit evidence that was clearly available prior to the Application to Resolve a Dispute being filed.
No statement of evidence was filed by Mr Abou-Sleiman with the Application to Resolve a Dispute filed on 26 July 2010, although such a statement was foreshadowed. At the arbitration hearing, Mr Abou-Sleiman was given leave to rely on an Application to Admit Late Documents dated 30 August 2010, which included a statement of Mr Abou-Sleiman which is undated and unsigned. The statement covered several broad areas, including history, injury details, medical information, injuries and disabilities, and domestic assistance. Under the heading “Injuries and Disabilities”, Mr Abou-Sleiman detailed the nature and extent of the symptoms he allegedly suffered in his back as a result of the accident.
The evidence Mr Abou-Sleiman now seeks leave to give in his affidavit attached to his Application to Admit Late Documents is inconsistent with his initial statement and his oral evidence at the arbitration hearing.
The appellant has not provided any submissions as to why the additional evidence could not have been obtained earlier. The statement of evidence that the Arbitrator permitted as late evidence from the appellant dealt with the general subject matter which the appellant now seeks to supplement. The appellant’s counsel, Mr Petrie, did not indicate at any stage prior to or during the hearing of the appeal that he intended to seek leave to tender further evidence. Other than a question concerning the use of an interpreter when being questioned by Dr Maxwell, Mr Petrie did not seek to elicit any further evidence from Mr Abou-Sleiman at the arbitration hearing.
The evidence Mr Abou-Sleiman and his wife now seek leave to have admitted in evidence could not be described as ‘fresh’ evidence. Whilst it may not have been reduced to writing until after the appeal hearing, it was evidence that was always available and could have been filed with the application.
I am strongly of the view that the application by Mr Abou-Sleiman to supplement his evidence at this late stage in the proceedings should not be permitted. My reasons for so concluding are as follows.
First, it appears that the application to rely on additional evidence of the applicant and his wife after the appeal hearing concluded is merely an attempt to rectify shortcomings in the evidence identified during the hearing of the appeal.

Second, Mr Abou-Sleiman has made no attempt to address the requirement in Practice Direction 6 to demonstrate why the evidence could not, with reasonable diligence, have been obtained and tendered in the proceedings before the Arbitrator. Mr Abou-Sleiman was legally represented throughout these proceedings. The evidence was always available to be given. It could and should have been reduced to writing and filed with the Application to Resolve a Dispute as required by s 290 of the 1998 Act and Pt 10 r 3 of the Workers Compensation Rules 2010.
Third, I accept the respondent’s submission that the admission of the additional evidence would result in substantial prejudice to it. The respondent would be denied the opportunity to test this evidence. To allow the additional evidence so late in the proceedings would be unfair in a system that requires all evidence on which a party intends to rely to be attached to the Application to Resolve a Dispute. The respondent’s defence to the application thus far is partly based upon the history provided by Mr Abou-Sleiman to Dr Maxwell. The evidence Mr Abou-Sleiman now seeks to have admitted is inconsistent with that history. If the additional evidence is permitted, the employer would be denied the opportunity to have its only expert witness, Dr Maxwell, express an opinion based on the worker’s further evidence.
Fourth, the proposed additional evidence is not such that there is a high degree of probability that there would be a different outcome. Mr Abou-Sleiman’s evidence in his affidavit of 11 March 2011is inconsistent with his evidence given before the Arbitrator in that he now states that he suffered pain on the evening of the accident, deep in the muscles. The pain was, he now alleges, of such intensity that he could not sleep, and he suffered numbness and pins and needles. His evidence before the Arbitrator was that he reported only aching in the back to Dr Maxwell. This inconsistency does not advance Mr Abou-Sleiman’s case. Given that the evidence has come so late in the proceedings, and given the inconsistency to which I have referred, I do not accept it as credible evidence.
Last, applying the additional test in Nowlan, it is not in the interests of justice to allow an applicant who gave sworn evidence before an Arbitrator an opportunity to vary that evidence after the result in the arbitration proceedings and whilst the outcome of the appeal is reserved. Once the oral argument on appeal concluded, the only matter outstanding was the delivery of my decision.
The evidence Mrs Abou-Sleiman seeks to give in her affidavit evidence of 11 March 2011 corroborates her husband’s affidavit of the same date. In the opening paragraph, she states:
“I wish to clarify several issues in relation to the accident that have not been addressed in detail”.
This is a clear indication that the evidence she seeks to give is an attempt to rectify shortcomings in her husband’s evidence exposed during the hearing of the appeal. Again, no attempt has been made to explain why this evidence, which I infer was readily available to be given, was not obtained until after the conclusion of the appeal. The admission of Mrs Abou-Sleiman’s evidence at this late stage in the proceedings is prejudicial to the respondent because it would be denied the opportunity to test her evidence.
An application of this kind, seeking to allow a new witness to give evidence in proceedings in the Commission after the arbitration hearing and whilst the appeal decision is reserved, is, in my experience, unprecedented, particularly in circumstances where the evidence was apparently readily available at the time of the arbitration and the failure to introduce it in a timely fashion is completely unexplained. In a case such as this, where no valid reason has been advanced as to why the evidence was not filed at the arbitration, it would be to set to nil the provisions of the legislation and rules which require the service of all evidence on which an applicant relies with the Application to Resolve a Dispute. For these reasons, I do not consider it in the interests of justice to allow the application to admit evidence from Mrs Abou-Sleiman.
For these reasons, the appellant’s application to tender fresh/additional evidence on appeal is rejected.

THE EVIDENCE

Mr Abou-Sleiman’s evidence is set out in his statement attached to the Application to Admit Late Documents dated 30 August 2010 and his oral evidence at the arbitration on 27 October 2010.
In his statement, Mr Abou-Sleiman stated that he was 47 years of age and has no formal qualifications. In 1988, he commenced his own business as a stonemason. Initially, he worked as a sole trader until the year 2000, when he commenced to operate under a corporate structure known as P & V Masonry Pty Ltd. His job involved masonry work and constructing stone walls.
On 4 March 2009, he was driving home from work when he was involved in a motor vehicle collision. He stated that a truck ran into the back of his car whilst he was stationary at a red light. Initially, he said that his neck and back were injured. He reported the incident to the police on the same day.
Mr Abou-Sleiman stated that the following day he contacted his doctor to make an appointment, but the first available appointment was three or four days later.
Mr Abou-Sleiman came under the care of Dr Khalid Qidwai. He has not returned to work since the accident. After six months, he was certified fit for suitable duties, but has been unable to secure suitable employment. He stated that he had been referred to “some specialists” as a result of his injuries, but did not elaborate. He then provided a detailed account of his continuing pain and various impairments. He described a number of domestic activities that was no longer able to complete, stating that his sons do many of the domestic tasks and chores.
At the arbitration, Mr Batten, counsel for P & V Masonry, sought leave to cross-examine Mr Abou-Sleiman confined to putting to him that the history he gave to Dr Maxwell at the consultation with Dr Maxwell on 28 June 2010 was as set out in the doctor’s report. On that limited basis, leave was granted.
Mr Abou-Sleiman said that, at the accident scene, he sat for a time on the kerb. He agreed that he did not tell Dr Maxwell that “because he didn’t ask me”. He disagreed with the proposition that he felt “all right” at the accident scene, stating that “actually, I almost collapsed”. Mr Abou-Sleiman denied that he told his wife that he felt “all right” when he telephoned her from the accident scene. He stated that he was unable to recall telling the police when he reported to the local police station that he was “all right” at that time.
Mr Abou-Sleiman agreed that he told Dr Maxwell that, on the night of the accident, he experienced aching in his back. He agreed that, in the history he gave Dr Maxwell, he had previously told Dr Qidwai that he was feeling pain in the middle of his back.

Dr Dugal

Dr T Dugal performed a CT scan of the lumbar spine on 11 March 2009 and reported in the following terms:
“Technique: High resolution, helical acquisition of the lumbar spine with multi-planar reformation and real time 3D assessment has been performed.
Findings: Overall alignment is normal. No spondylolisthesis or scoliosis is evident.
Assessment of the individual disc spaces discloses intact T12/L1 to L3/4, no disc protrusion or neural compromise is seen.
L4/5 does demonstrate a broad-based bulge indenting the ventral sac causing mild central as well as mild foraminal stenosis without exiting nerve deviation. The facet joints are intact.
L5/S1 does not show disc protrusion or neural compromise.
COMMENT: CT scan of the lumbar spine shows a degenerate L4/5 disc causing mild central and foraminal stenosis without exiting L4 nerve root deviation.”

Dr Khalid Qidwai

Dr Qidwai appears to have specialist qualifications, but practises as a general practitioner. He provided a report to Mr Abou-Sleiman’s solicitors dated 18 April 2010. Dr Qidwai stated that Mr Abou-Sleiman saw him on 10 March 2009. He reported that, whilst driving home from work in his ute, he had stopped at a set of traffic lights, and a truck came from behind and hit him. Dr Qidwai noted that Mr Abou-Sleiman was badly shaken and sustained “a whiplash to his neck”. He stated that he has continued to treat Mr Abou-Sleiman, who continues to complain of pain in the “neck and back”. Mr Abou-Sleiman denied having any symptoms in the back prior to the accident. Dr Qidwai reported details of Mr Abou-Sleiman’s past medical history and details of his clinical examination. In terms of his clinical examination, Dr Qidwai noted that Mr Abou-Sleiman presented as a physically fit, healthy-looking man in some degree of pain. His note of the clinical examination states:
“He was able to walk on his toes and on his heels. He did not squat down fully, claiming pain in the anterior part of both thighs. Spinal flexion allowed him to reach his fingers to 40 cm from the floor. There was rhythmic recovery to the erect position. There was tenderness in the L4/5 and L5/S1 spinous process.
The lumbar spine revealed normal lumbar lordotic curve. Movements induced pain at 60° in forward flexion and 20° in extension. Lateral flexion and rotation were normal but painful. The straight leg raise test on each side was restricted to 70° on either side. Muscle strength in his lower limbs appeared to be weaker, as could be expected from a person of his age and build. Sensation on the lateral aspect of both feet was blunted when compared with the rest of the foot.
His knee jerk and ankle jerk reflexes were normal and symmetrical. His hip joints were normal, as were his knee joints. Stressing his sacro-iliac joints did not cause pain.”
Dr Qidwai noted the findings of the CT scan of the lumbosacral spine of 11 March 2009. He concluded that Mr Abou-Sleiman was suffering from cervicolumbar radiculopathy and opined that it was likely he might require surgical treatment if the condition deteriorates. He stated that Mr Abou-Sleiman suffered from the following injuries due to the accident described to him:
“1.Soft tissue injuries to the lumbosacral muscles and ligaments.
2.Disc injuries to L4/5 level. This has now progressed to disc space narrowing and degeneration.”
He assessed a 16 per cent whole person impairment quantified as follows:
“Lumbosacral spine table 15.3 DRE 3 WPI 10%
Cervical spine table 15.5 DRE 2 WPI 5%
ADL para 4.30 (WorkCover Guide) WPI 2%.”
On 17 March 2009, Dr Qidwai issued an initial WorkCover certificate. He certified the worker unfit from 4 March 2009 to 1 April 2009. He diagnosed “disc injury neck and back”. He then issued a series of progressive WorkCover medical certificates certifying the worker unfit for duties with the same diagnosis until 15 August 2009.
On 24 March 2010, Dr Qidwai issued a further WorkCover progress medical certificate certifying the worker fit for suitable duties from 23 March 2010 based on the same diagnosis. Further certificates were issued in similar terms until 23 August 2010.
Dr Qidwai’s clinical notes were produced in response to a direction for production and were admitted into evidence. His first note of relevance is on 15 June 2009. He noted, among other things:
“Had MVA 4-03-09 while on way to home from work, hit from the back by truck, badly shaken, started pain in back, and neck. Was in the ute, went to the police station after wife came to the accident scene. Came to see me 10-03-09.”
Mr Abou-Sleiman saw Dr Qidwai regularly between June and October 2009. For the majority of those visits, Dr Qidwai noted complaints of back pain or noted that the back pain had remained the same. Under a heading “Reason for Contact”, he repeatedly noted “disc prolapse”.
Between January and August 2010, Mr Abou-Sleiman saw Dr Quidwai at roughly monthly intervals. His progress notes continue to note back pain. Of the 23 entries that I examined, there was no reference in Dr Qidwai’s progress notes to any symptoms of radiculopathy except for one entry on 31 August 2009, which read “back pain has been bad, going into left leg”. There were no prior or subsequent complaints of radiating pain. Dr Qidwai took no steps to investigate the cause of any alleged radiculopathy.

Dr David Maxwell

On 28 June 2010, Mr Abou-Sleiman was examined by Dr David Maxwell, an orthopaedic and spinal surgeon, at the request of the respondent. He provided a report to GIO dated 29 June 2010. Dr Maxwell elicited a personal history, including the worker’s past medical history and his educational and occupational history.
Dr Maxwell took a careful history of the worker’s involvement in a motor vehicle collision on 5 March 2009. He noted that the worker was stopped at a set of traffic lights. There was a truck in front of him and he was hit from the rear by another truck which failed to stop. The truck hit the tray of the utility and the utility was pushed forward into the vehicle in front. Mr Abou-Sleiman stated that the tray of his utility deformed the cabin. He was wearing a seatbelt. He could not be sure whether he came into contact with the steering wheel. He was able to get out of the car immediately after the impact. He surveyed the damage, noting that his utility was badly damaged, both front and rear. He was unable to drive the vehicle and it was towed away. He called his wife and, at that stage, stated that he felt “all right”. He then travelled to the police station and made a report at the police station. He told the police he was “all right”.
Dr Maxwell noted that the worker stated that his back was aching that night. Four days later, he attended his general practitioner, Dr Qidwai, saying he felt pain in the middle of his back. Dr Qidwai organised an x-ray and a scan of his back, and told the worker that he had “some damage”. According to Mr Abou-Sleiman, Dr Qidwai told him he would “never ever recover completely”. He was advised not to undertake any lifting and was referred to a physiotherapist. He said that he was able to lift 6–7 kg in one hand, but, if he tried to lift in both hands, his back would ache. Dr Qidwai suggested he undertake a supervisory role, which the worker rejected, as he had never employed other workers and felt that it would not be financially viable. Mr Abou-Sleiman has not been referred for specialist treatment. He undertook physiotherapy sessions for two weeks and then went on a gym program which included eight visits to a gym where he used various exercise machines.
His present symptoms included complaints of pain in the back, “a little worse on the right side”.
Dr Maxwell noted that the report of the CT of the lumbar spine of 11 March 2009 suggested a broad-based disc bulge indenting the ventral sac, causing mild central as well as foraminal stenosis.
Dr Maxwell stated that he looked closely at the scans, but could not see any evidence of a disc bulge at L4/5, and felt the scan was normal.
Clinical examination revealed that Mr Abou-Sleiman moved freely and did not appear to be in any distress. He sat for the duration of the 40-minute period during which the history was taken. He complained of an area of pain, pointing to the T12/L1 level. The worker’s various ranges of movement were carefully recorded.
Dr Maxwell concluded that, notwithstanding the worker’s complaints of discomfort at T12/L1 level, there was no significant abnormality to find on examination. He noted Mr Abou-Sleiman was asymptomatic initially immediately after the accident, but he developed some back pain the next day. He stated that he could find no physical cause for his continuing symptoms. He was unable to see any physical reason why the worker had been certified totally unfit for work from 4 March 2009 to 30 September 2009, nor did he think there was any valid reason for any ongoing restrictions on the worker’s capacity for work. Dr Maxwell stated that he could find no evidence that the worker was still suffering from any work-related injury and felt that he was quite fit to return to work as a stonemason without restriction. He recommended no further treatment and assessed that there was zero per cent whole person impairment, noting that the worker demonstrated a symmetrical range of movement with no spasm or guarding, and there were no radicular symptoms or signs. He therefore classified him as DRE category 1.
Dr Maxwell commented on Dr Qidwai’s findings, stating:
“I note that Dr Qidwai, his treating practitioner, has suggested he suffers from radiculopathy. There is no evidence that he suffers from radiculopathy. Dr Qidwai has found no abnormal radicular signs to suggest that he suffers from cervical and lumbar radiculopathy, and there is no objective basis for his assessment of 17 per cent whole person impairment in relation to Mr Abou-Sleiman’s lumbosacral spine and cervical spine.”

DISCUSSION AND FINDINGS

The relevant legislation provides as follows. Section 4 of the 1987 Act provides:
“4   Definition of ‘injury’
In this Act:
injury:
(a)  means personal injury arising out of or in the course of employment,
(b)  includes:
(i)  a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)  the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, 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.”
Sub-sections (1) and (1D) of s 10 of the 1987 Act provide:
“(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
…
(1D)Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.”
There is no issue that Mr Abou-Sleiman was on a journey to which s 10 applies when he was involved in the subject motor vehicle accident. The question for determination is whether he suffered a “personal injury” within the meaning of the section.
In Armao v Ladue Holdings Pty Ltd [1992] NSWCC 16; 8 NSWCCR 440 (Armao), Burke CCJ noted the distinction between the definition of injury in s 4 and the words “personal injury” in s 10(1). He noted that the definition of “injury” in s 4 draws a clear distinction between two types of injury, broadly termed personal injury and a disease. He said:
“It is only the first of these elements which is picked up by s 10(1). Thereby the other is clearly excluded from the ambit of that provision. Therefore any journey injury falling within the disease category does not attract any benefit under the Act.”
In Watters, Deputy President Roche, after referring to Armao and other authorities, noted at [66]:
“Though the dividing line between a disease injury and a personal injury is no longer as distinct as it once was and a disease injury can, in certain circumstances, also be a personal injury, I am in general agreement with Armao that, for the purpose of s 10, the distinction between a disease injury and a personal injury is still valid. To succeed with a claim under s 10, a worker must have received a personal injury, that is, a sudden identifiable pathological change brought about by an internal or external event. That such a change also causes, or can be characterised as, an aggravation of a disease will not prevent it being a personal injury.”
He concluded at [75]–[76]:
“On my reading of Armao, his Honour expressly acknowledged, consistent with Zickar, that in order to establish a personal injury it was necessary to prove that a sudden identifiable pathological change had occurred. He did not suggest that an injury that aggravated a degenerative condition could not also be a personal injury, but considered whether, on the facts before him, the worker had received such a personal injury. He did not exclude the possibility that the worker had received a personal injury because the incident had also aggravated degenerative changes, but concluded on the evidence that there had been no personal injury.
To the extent that McGraw suggests that a disease injury, without a sudden identifiable pathological change, constitutes a personal injury, it is not consistent with Zickar. To establish a disease injury it is necessary that the disease be contracted in the course of the employment and to which the employment was a contributing factor (s 4(b)(i)), or, in the case of an aggravation injury, that the employment was a contributing factor to the aggravation (s 4(b)(ii)). While on a journey, a worker will not normally be in the course of his or her employment and employment will not be a contributing factor to a disease injury. Therefore, to succeed, Ms Watters has to establish that she received a personal injury, that is, a sudden identifiable pathological change.”

Zickar is a reference to Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 at 347. In Zickar, the worker collapsed at work after the rupture of a cerebral aneurysm. He suffered severe brain damage. The aneurysm was a congenital weakness. Mr Zickar was successful in the High Court as his claim was based on the rupture of a blood vessel (a sudden identifiable pathological change, not on an autogenous disease).
Consistent with these principles, the Arbitrator correctly identified, at [23]–[25] of the Reasons, the legal principles he applied to determine whether Mr Abou-Sleiman suffered a “personal injury” within the meaning of s 10 of the 1987 Act. In order for Mr Abou-Sleiman to succeed, he must establish that he received a personal injury, namely, a “sudden identifiable pathological change brought about by an internal or external event”.
Although Mr Abou-Sleiman initially challenged the Arbitrator’s formulation of the test to be applied, at the appeal hearing his counsel, Mr Campbell, conceded the Arbitrator correctly stated the test for establishing a ‘personal injury’ in journey claims as articulated in Watters.
Mr Abou-Sleiman’s submissions on the appeal are significantly different from the submissions that were put to the Arbitrator and the submissions originally advanced in the Appeal Against Decision of Arbitrator. Essentially, his submissions now fall into three alternative categories. First, he submits that the injury he sustained was a disc prolapse, as referred to in Dr Qidwai’s medical certificates. Secondly, that the injury consists of the disc bulge demonstrated on the CT scan by Dr Dugal and, thirdly, Mr Abou-Sleiman submits that the injury consists in soft tissue injuries to the lumbosacral muscles and ligaments.
Dr Qidwai described the worker’s injury to the lumbosacral spine in his multiple medical certificates as a “disc prolapse”. He failed to identify at which level of the lumbar spine he considered the prolapse to have occurred. It was not a diagnosis that he considered or discussed in his report of 18 April 2010, in which he limited his diagnosis to the more generic term of “disc injuries” at the L4/5 level. The diagnosis of a disc prolapse is inconsistent with Dr Dugal’s assessment following the CT scan of the lumbar spine, in which he concluded that there was evidence of a degenerate L4/5 disc. Dr Dugal expressly excluded the possibility of a disc protrusion at L5/S1.
The diagnosis of a disc prolapse is also inconsistent with the evidence of Dr Maxwell. Dr Maxwell reviewed the CT scan performed by Dr Dugal and concluded that it did not demonstrate any evidence of any significant abnormality in the lumbosacral spine.
When these issues were put to Mr Abou-Sleiman’s counsel during the appeal hearing, he was unable to direct me to any evidence to support a diagnosis of disc prolapse, other than the unexplained reference to it in several of Dr Qidwai’s consultation notes (T9.32).
Dr Qidwai has not provided any reasons for reaching a conclusion that there was a disc prolapse. Although he stated that there was evidence of radiculopathy, he did not state which of his clinical findings supported such a conclusion. I have carefully reviewed Dr Qidwai’s clinical notes and could find no evidence of any reported symptoms that would support a conclusion of radiculopathy other than one isolated entry referred to at [69]. Dr Maxwell found no evidence of radiculopathy.
Mr Abou-Sleiman’s counsel conceded at the appeal hearing that there was no evidence of radiculopathy as found by Dr Qidwai (T10.20).
Mr Abou-Sleiman’s second alternative submission is that the Commission would find that his injury sustained in the motor vehicle accident on 4 March 2009 consisted of a “disc bulge at the L4/5 level”. The existence of a disc bulge was confirmed by Dr Dugal following the CT scan on 11 March 2009. The appellant’s case is that the evidence of the bulge is a sudden identifiable pathological change in Mr Abou-Sleiman’s lumbosacral spine caused by his involvement in the motor vehicle accident.
As I have discussed, Dr Dugal was of the opinion that the existence of a bulge was a degenerative condition, not one that was traumatically induced. Dr Maxwell, after reviewing the CT scan himself, does not accept that there was a bulge at all. In support of this submission, the only medical evidence the appellant relies on is the report of Dr Qidwai. However, Dr Qidwai’s report does not address the causation issue at all. He noted Dr Dugal’s report which demonstrated the existence of degenerative disc disease both in the cervical and lumbar spine. He did not express disagreement with Dr Dugal’s conclusion that the disc bulge was degenerate or provide any reason why the existence of a disc bulge would be consistent with it having been caused by the trauma of the accident. Mr Campbell conceded at the hearing of the appeal that Dr Qidwai was silent on those issues (T11.30). He added:
“…The only person that seems to have addressed that properly is the radiologist who says something to the contrary.”
Mr Abou-Sleiman’s third submission on appeal was one that had not been advanced at all during the arbitration proceedings. It is that the sudden identifiable pathological change suffered by him in the motor vehicle accident consists in the “soft tissue injuries of the lumbo-sacral muscles and ligaments” as diagnosed by Dr Qidwai. Mr Campbell was unable to offer any cogent argument as to why such a diagnosis would constitute a sudden pathological change in the worker’s lumbosacral spine.
Mr Campbell submitted that, if the Commission was not satisfied that there was any disc damage sustained in the accident, it would infer from the workers complaints, notwithstanding the absence of any radiology to prove it on an objective basis, that there had been soft tissue damage sustained as a result of the accident (T16.43).
The respondent submitted that a diagnosis of soft tissue injuries to the lumbosacral muscle and tissues does not identify a sudden identifiable pathological change and it does not identify any change as being sudden. Mr Batten submitted that the argument now advanced by Mr Abou-Sleiman concerning the significance of the soft tissue injuries is inconsistent with the submissions to the Arbitrator, which relied on the damage to the L4/5 disc and the tenderness displayed at that level as the evidence of the sudden identifiable pathological change that occurred as a result of the accident.
The respondent submits that the Arbitrator preferred the opinion of Dr Maxwell over the opinion of Dr Qidwai and, in doing so, he carefully considered and analysed the available evidence and provided sufficient reasons for his conclusions.
Further, the respondent submits that, at [38]–[42] of the Reasons, the Arbitrator provided a balanced appraisal of the evidence of the medical practitioners and radiologists. The Arbitrator “highlighted” that there was no medical opinion that the broad-based disc bulge noted by Dr Dugal was the result of the accident. Furthermore, Dr Maxwell closely inspected the CT scan and formed the opinion that the scan was normal ([43] of the Reasons).
After weighing the medical evidence carefully, the Arbitrator concluded that Dr Maxwell’s opinion that Mr Abou-Sleiman suffered no abnormality and that there was no physical cause for his continuing symptoms, is to be preferred. For the reasons given by the Arbitrator, and for these additional reasons, I agree.
The factors that diminish the weight to be attached to Dr Qidwai’s evidence are:
(a)     he failed to explain why he disagreed with the radiologist’s assessment that the abnormality demonstrated at L4/5 was degenerate rather than the result of the trauma sustained in the motor vehicle accident;
(b)     as conceded by Mr Abou-Sleiman’s counsel, there is no objective evidence to support a diagnosis of a disc prolapse as found by Dr Qidwai;
(c)     despite Dr Qidwai’s observation, there is no evidence of the radiculopathy referred to in his reports or clinical notes, which was also conceded on the appeal;
(d)     unlike Dr Maxwell, Dr Qidwai has not indicated whether he independently reviewed or examined the CT scan in reaching his conclusion;
(e)     the existence of a disc prolapse would be inconsistent with the worker’s initial complaints of an aching in his back, and
(f)      Dr Qidwai’s findings are unsupported by any reasons for reaching the conclusions he did.
On the other hand, there are several compelling reasons for preferring Dr Maxwell’s conclusion:
(a)     Dr Maxwell is a specialist orthopaedic and spinal surgeon;
(b)     he could not see any evidence of a disc bulge at L4/5 on the CT scan;
(c)     clinical examination revealed that Mr Abou-Sleiman moved freely and did not appear to be in any distress. He sat for the duration of the 40-minute history-taking without complaint;
(d)     he could not find any significant abnormality on clinical examination;
(e)     there was no evidence of radiculopathy on examination;
(f)      there was no evidence of radiculopathy from Dr Qidwai’s report of his clinical findings;
(g)     there was no evidence of any neurological compromise in the legs, and
(h)     Mr Abou-Sleiman had a full range of movement of the lumbar spine with no spasm or guarding.
In terms of the new argument raised on appeal, I am not persuaded by the appellant’s argument that the Commission should infer that Mr Abou-Sleiman suffered a sudden identifiable pathological change in the nature of damage to the lumbosacral muscle and tissues. I would reach the same conclusion (because of the inconsistencies noted earlier) even if I had admitted the additional evidence Mr Abou-Sleiman has sought to tender after the conclusion of the appeal hearing.
I accept that Mr Abou-Sleiman was subjected to a significant impact when his vehicle was struck from behind. It may be reasonable to infer from the available facts that Mr Abou-Sleiman may have suffered an aggravation of a pre-existing degenerative condition in his lumbar spine, but that is quite a different proposition from accepting, by inference only, that he suffered a sudden identifiable pathological change.
The appellant has failed to identify, other than in vague general terms, the muscles and tissues allegedly subjected to any pathological change, the nature of the change, or its persisting effect on Mr Abou-Sleiman. Although some of those matters may not be capable of objective proof through radiological examination, I am not satisfied on the facts of this case that the Commission should draw the inference urged by Mr Abou-Sleiman when the more compelling inference is that he may have suffered (at most) an aggravation of the degenerative changes already present in his lumbar spine. That said, I do not exclude the possibility that, in an appropriate case, proven injuries to the soft tissues in the spine could be sufficient to establish a “personal injury”.
Ultimately, I agree with the Arbitrator’s conclusion that the worker did not suffer a sudden identifiable pathological change in his lumbar spine as a result of his involvement in the motor vehicle accident.

CONCLUSION

Having conducted a review on the merits, the true and correct position is that Mr Abou-Sleiman did not suffer a personal injury within the meaning of s 10 of the 1987 Act as a result of his involvement in a motor vehicle collision during the course of a periodic journey between his place of abode and place of employment on 4 March 2009.

SOLICITOR CERTIFICATION

In its application, Appeal Against Decision of Arbitrator, signed by the appellant’s solicitor, five grounds of appeal were identified. Several of those grounds of appeal were simply untenable at the outset and others were unsupported by any reasoned argument or authority. At the hearing, counsel for the appellant took the unprecedented step of withdrawing all of the grounds of appeal and substituting only one ground, as identified at [20]. I make no criticism of the appellant’s counsel, either at the arbitration or on appeal, who were not involved in the drafting of the appeal. I do, however, remind practitioners of their duty under s 352(7A) of the 1998 Act and s 345 of the Legal Profession Act 2004 when certifying reasonable prospects of success. I remind practitioners that certifying reasonable prospects of success without justification is capable of being unsatisfactory professional conduct (Beale v Walgett District Hospital [2009] NSWWCCPD 60.

DECISION

For the reasons given in this decision, the Arbitrator’s determination of 3 November 2010 is confirmed.

COSTS

I order that each party is to pay his or its own costs of the appeal.

Judge Keating

President
1 April 2011

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE