Alazzawy v DND Group Pty Ltd t/as Topline Finish - [2015] NSWWCCPD 26

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Alazzawy v DND Group Pty Ltd t/as Topline Finish [2015] NSWWCCPD 26
APPELLANT:	Mohenned Alazzawy
RESPONDENT:	DND Group Pty Ltd t/as Topline Finish
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-2541/14
ARBITRATOR:	Mr G Egan
DATE OF ARBITRATOR’S DECISION:	7 January 2015
DATE OF APPEAL DECISION:	27 April 2015
SUBJECT MATTER OF DECISION:	Personal injury; s 4(a) of the Workers Compensation Act 1987; suggested error of law being application of the wrong test; causation of injury; discharge of onus of proof; error of fact not made out
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Koutzoumis Lawyers
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	The Arbitrator’s findings and his orders found in paragraphs one and two of the Certificate of Determination dated 7 January 2015 are confirmed.

BACKGROUND

Mr Mohenned Alazzawy, who was born in Iraq in 1974, arrived in Australia in 2001. He commenced work as a painter with DND Group Pty Ltd t/as Topline Finish (the respondent) on an unspecified date in early 2004. He continued in that work until a date, which is uncertain on the evidence, in 2006. He alleged that he received injury to his back arising out of or in the course of that work. The evidence is silent as to Mr Alazzawy’s activities in this country before his commencement of work with the respondent.
Mr Alazzawy’s allegation of injury was that, as a result of the “nature and conditions” of his work with the respondent, he suffered injury to his lumbar spine. It is not in dispute that there had been no notice of such injury given by Mr Alazzawy to the respondent until a claim was made for lump sum compensation and medical expenses on 31 January 2012. The respondent has not placed reliance upon the notice provisions in the relevant legislation by way of defence to the claim.
The respondent’s insurer requested further particulars of the claim in correspondence dated 15 February 2012 addressed to Mr Alazzawy’s solicitors. A reply to that request was forwarded to the insurer on 6 June 2013. The delay in responding to that request was not explained.
The respondent failed to determine the claim and no notice concerning reasons for declinature was provided by the insurer to Mr Alazzawy as is required by the terms of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Mr Alazzawy commenced these proceedings by filing an Application to Resolve a Dispute with the Commission on 21 May 2014. That Application sought orders in respect of lump sum compensation and medical expenses.
A Reply to the Application was filed on behalf of the respondent on 10 June 2014. That Reply, at Part 3, acknowledged that there had been a failure to determine the claim. Leave was sought in that document to raise no less than 11 defences to the claim, including a denial of the occurrence of injury. It seems that, subsequently, Mr Alazzawy amended the date of injury as being “1 January 2006”. No reliance was placed upon the disease provisions of the Workers Compensation Act 1987 (the 1987 Act).
On 10 July 2014, during the course of a telephone conference conducted by an arbitrator, the respondent was granted leave to dispute the occurrence of injury as alleged; to dispute that employment was a substantial contributing factor to injury, and to argue that, should injury be determined in Mr Alazzawy’s favour, such injury was in the nature of a disease.
The matter came before Arbitrator Gerard Egan for conciliation and arbitration on 26 August 2014. Following argument concerning admission of evidence, the matter was adjourned. The procedural history thereafter included a further telephone conference and the matter was fixed for conciliation and arbitration on 27 November 2014. Mr Alazzawy failed to appear on that date. A further telephone conference was conducted on that day which was attended by Mr Alazzawy’s solicitor and by Ms Wood of counsel, in person, on behalf of the respondent. Directions requiring the filing of written submissions were made by the Arbitrator.
Written submissions were filed on behalf of the parties and the Arbitrator determined the dispute on the papers as is permitted by s 354(4) of the 1998 Act. A Certificate of Determination was issued on 7 January 2015 which was accompanied by a Statement of Reasons. That Certificate of Determination records the following:
“The Commission determines:
1. The applicant is granted leave to further amend the Application to Resolve a Dispute in Part 4 by deleting the date of injury and replacing with ‘on or about 1 January 2006’.
2. Award for the respondent in relation to the applicant’s claim, for injury to his back (lumbar spine) arising out of or during the course of this employment with the respondent.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The grounds of appeal upon which Mr Alazzawy relies are stated in submissions as follows:
“(a) The Arbitrator made an error of law by applying the wrong test when determining whether the appellant sustained a ‘personal injury’ to his back; and
(b) The Arbitrator made an error of fact by finding that the appellant did not sustain a work-related injury to his back having applied the wrong test referred to in (a) above and only determining whether the applicant sustained a ‘discal’ injury to his back.”

THE EVIDENCE BEFORE THE ARBITRATOR

The documentary evidence which was before the Arbitrator is noted between [28] and [30] of his Reasons. I note that the description of documents tendered in Mr Alazzawy’s case includes reference to the Application to Admit Late Documents dated 25 August 2014 which had attached a further statement of Mr Alazzawy made on 18 August 2014. That evidence was objected to by the respondent as noted by the Arbitrator at [11] of Reasons and a ruling was made that the statement was not admitted into evidence. Notwithstanding that ruling, the Arbitrator made reference to the evidence in that statement in the course of his determination. Neither party has raised this matter on appeal. Given that the content of that statement addresses matters similar to those subsequently stated by Mr Alazzawy, and my conclusion reached on this appeal, I do not consider that any material prejudice arises by reason of the Arbitrator’s reference to that document.
Mr Alazzawy relied upon a report of Dr James G Bodel, orthopaedic surgeon, dated 20 September 2011. Dr Bodel had been qualified by Mr Alazzawy’s solicitors to provide a report for this litigation. A history is recorded by Dr Bodel of gradual onset of right sided lower back pain whilst Mr Alazzawy was undertaking his painting work. Mr Alazzawy reported to Dr Bodel that he was experiencing right buttock and thigh pain. Dr Bodel had access to no radiological studies, but had seen the clinical notes of Mr Alazzawy’s general practitioner, Dr Wu.
Dr Bodel expressed the opinion that “the injuries are a probable disc injury at the lumbosacral junction caused by the nature and conditions of [Mr Alazzawy’s] work”. A whole person impairment of seven per cent was assessed by Dr Bodel.
The clinical notes of Dr Wu’s practice concerning many consultations which occurred between 23 May 2004 and 18 July 2011, are in evidence. The matters there recorded are discussed below.
There is in evidence a copy of correspondence dated 31 January 2012 from Mr Alazzawy’s solicitors to the respondent’s insurer, in which notice of claim was given. That correspondence enclosed copies of an undated injury claim form which related to an alleged lumbar spine injury caused by the “nature and conditions of employment from in or about 2004 to 2006”. The tasks being performed at the time of injury were described as “painting and manual labour”. Also attached to the solicitor’s correspondence, was an undated permanent impairment claim form which made reference to injury to the lumbar spine caused by nature and conditions of employment from in or about 2004 to 2006. The date of injury in that form was nominated as 1 January 2006.
A letter dated 15 February 2012 from the respondent’s insurer addressed to Mr Alazzawy’s solicitors and a reply dated 6 June 2013 are in evidence. There is no explanation found in the reply for the delay in responding to the insurer’s correspondence. It is to be noted that the solicitor’s reply enclosed tax returns of Mr Alazzawy in respect of the years ending June 2005 and June 2006. Those copies are not in evidence. It is also noteworthy that the particulars provided by the solicitors included advice that Mr Alazzawy had undergone physiotherapy treatment at the Bankstown medical centre but that he was unable to recall the name of the service provider. The correspondence states that investigations would be conducted and advice “in due course” would be given concerning those matters. There is no evidence as to the identity of the physiotherapist before the Commission.
In evidence there is a statement made by Mr Alazzawy on 18 July 2014. That statement was filed at the direction of the Commission during the course of a teleconference which was conducted in July 2014. Mr Alazzawy stated that he was fit and healthy before he commenced work with the respondent “in or about early 2004”. He stated that his usual hours were 8.00 am to 4.00 pm Monday to Friday and that he also worked overtime on Saturdays. His duties required him to sand wardrobe and kitchen doors, using an electric hand held machine, which he subsequently painted. The wardrobe doors were “very large, wide, heavy and awkward to move around”. The wardrobe doors required two people to move them but Mr Alazzawy said that “more often than not [he] moved the doors on [his] own”. Mr Alazzawy described his work as being “very heavy work and [it] required me to stand all day, bend and twist all the time. The size of the doors made it difficult to move them without twisting and bending”.
Mr Alazzawy proceeded to state that “sometime in about the middle of 2004” he started to notice pain in his lower back and around his sides. He continued working until he could not handle the pain and then consulted Dr Wu, his general practitioner. He continued to consult Dr Wu until she left the medical practice, following which he consulted Dr Kaur.
Mr Alazzawy said that he recalls being sent by Dr Wu to have a CT Scan done “in about July/August 2004”. The drug Tramal was prescribed by Dr Wu. Mr Alazzawy stated that he continued to work his usual hours even though he was in constant pain. Mr Alazzawy attended a local physiotherapy centre, which is not identified in that statement, and he also underwent acupuncture treatment. He stated that in or about January 2006 he could no longer continue with the job and he left. Since leaving the respondent, he has worked as a security guard/bouncer for ABS Security. That work is not “heavy work”, his duties were to stand at the door and check identification as customers entered the premises. In July 2007, he was assaulted and suffered a broken nose but did not receive any other injury, in particular, did not suffer any injury to his back. Mr Alazzawy left the security job in about May/June 2011, following which he commenced work as a truck driver. He stated he still experiences pain in his back on a regular basis.
There is a second statement made by Mr Alazzawy on 11 November 2014 which was attached to an Application to Admit Late Documents dated 12 November 2014. Mr Alazzawy stated that he had been provided with a copy of the clinical notes from Dr Wu’s practice. Reference is made to an entry on 30 November 2007 which states “low back pain recurrent due to the nature of his job which involves heavy lifting. Also has injured his lower back doing tai quando [sic]”. Mr Alazzawy states that he recalled informing Dr Wu that his back pain was continuing as a result of the heavy lifting he was doing whilst working for the respondent. He further states that he recalls telling Dr Wu that he was trying to continue with tae kwon do but could not do so because of back pain.
Mr Alazzawy referred to an entry in the clinical notes dated 16 July 2008 which records “has run out of Tramal for low back pain works as a security guard has had a flare up of his back pain”. Mr Alazzawy stated that he recalled telling Dr Wu that, due to having no painkillers, his back pain had increased.
A Complying Agreement dated 20 August 2010 relating to a previous hearing loss claim made by Mr Alazzawy was admitted into evidence. That agreement recorded the date of relevant hearing loss injury as being 1 January 2006.
The respondent tendered in evidence a copy of correspondence dated 10 June 2010 from the respondent to its insurer. That correspondence relates to a claim, the number of which is different to the claim number relevant to the back injury, and the content of the correspondence appears to relate to a claim for industrial deafness. The correspondence confirms that Mr Alazzawy’s duties were sanding, cleaning and other general duties. Mr Alazzawy was employed on a causal basis and was not consistently employed. His last date of employment was stated to have been 21 August 2006. It is recorded in that correspondence that Mr Alazzawy worked “approximately 30 hours per week”. Other particulars in that correspondence relate to alleged noise exposure.
In evidence there is a letter dated 17 August 2010 from Mr Alazzawy’s solicitors to the insurer. That correspondence related to a claim which had apparently been made by Mr Alazzawy in respect of alleged industrial deafness.
The respondent tendered in evidence a report from Mr Alazzawy’s general practitioner, Dr Surinder Kaur, dated 19 August 2014. The text of that report is as follows:
“Mr Alazzawy has been my patient since 2009, consulting for chronic back pain on and off, ongoing problem since 2004, and other medical conditions not related to his back. According to him he injured his back in 2004 when he was working for Topline Finish, lifting heavy doors at work, and he consulted multiple doctors here asking for painkillers Tramal SR.
He left that job and joined a security job after two years. He has consulted four doctors here regarding aggravation of his existing back pain. Those doctors are not working here anymore. He was prescribed Tramal SR when he wanted. At one stage there was an issue that he might be a drug seeker or getting addicted to Tramal.
I am sorry there is no record of his x-ray of spine or other investigations related to his back injury. He was not referred to any specialist from here.
Now he is working as a truck driver. I have twice done his medical form for RTA. No back pain was mentioned by him.
I hope this report information is sufficient for his case.”

SUBMISSIONS BEFORE THE ARBITRATOR

Written submissions were presented on behalf of each party. Mr Alazzawy summarised the factual background to the claim. It is made clear in those submissions that Mr Alazzawy placed no reliance upon the disease provisions found in the 1987 Act. Particular attention was given to the evidence relating to Mr Alazzawy’s last day of employment. This matter was of significance given the circumstance that there had been a change of insurer of the respondent during the course of 2006. Reliance was placed upon the contents of the Complying Agreement referred to at [25] above in support of a submission that the last date of employment was in fact 1 January 2006.
Reference was made in submissions to the evidence of the occurrence of injury as found in Mr Alazzawy’s statements. Reference was also made in the course of argument to the contents of the clinical notes of Dr Wu’s practice. It was argued that there was “sufficient probative evidence to establish, on the balance of probabilities, a positive finding in respect of causation, that [Mr Alazzawy] sustained an injury to his lumbar spine as a result of the nature and conditions of his employment…”. It is further argued that Mr Alazzawy had explained in his statement dated 11 November 2014 the circumstances which gave rise to the recording of particular matters found in the clinical notes. Reference was made to the decision of Mason v Demasi [2009] NSWCA 227 in support of the submission that Mr Alazzawy’s evidence should not be “discounted” by reason of the evidence found in the clinical notes. It was submitted that there should be a finding of injury and that employment was a substantial contributing factor to that injury.
The submissions put on behalf of the respondent directed attention to the question as to the correct date of Mr Alazzawy’s last day of employment. Reliance was placed upon the evidence found in correspondence produced by the respondent noted at [26] above in support of the argument that Mr Alazzawy “did not cease work until 21 August 2006 at which time [the insurer was] no longer the insurer on risk”. An argument was advanced that if there was any entitlement to compensation, the disease provisions of the legislation were relevant and that the deemed date of such injury should be the date of claim which was said to be 31 December 2012. In the alternative, it was argued that the correct deemed date of injury was 21 August 2006.
The balance of the submissions addressed the deficiencies in the evidence so far as proof of causation of injury was concerned. Emphasis was placed upon Mr Alazzawy’s failure to make any claim until “eight [sic] years after he had ceased work with the respondent”.
Submissions in reply were provided on behalf of Mr Alazzawy. Those further submissions repeated the arguments advanced earlier.

THE ARBITRATOR’S DETERMINATION

The Arbitrator’s Reasons commence with a summary of the unsatisfactory manner in which these proceeding had been conducted. The principal matter in dispute was identified by the Arbitrator as being whether Mr Alazzawy had suffered injury as alleged. It was noted that Mr Alazzawy “specifically eschewed reliance upon any allegation that the injury constituted a disease caused or aggravated by the employment (s 4(b)(ii) of the 1987 Act)” (Reasons [27]).
The Arbitrator proceeded to thoroughly summarise the documentary evidence that was before him and those submissions put on behalf of each party.
The Arbitrator dealt, firstly, with the question as to what was the correct date of Mr Alazzawy’s last day of employment. A finding was made that such date was 1 January 2006. The Arbitrator, when considering the question as to whether the onus of proof had been discharged by Mr Alazzawy concerning the occurrence of injury, addressed the deficiencies in the evidence including the absence of any radiological evidence, the absence of evidence as to physiotherapy treatment and the absence of contemporaneous records which might establish “a connection between [Mr Alazzawy’s] work with the respondent and his frequent reports of back pain and prescriptions for Tramal”. The Arbitrator acknowledged that caution should be exercised when drawing inferences from entries found in medical records, such as Dr Wu’s clinical notes. Following further discussion of the evidence and consideration of the entries found in the clinical notes, as well as the evidence of Dr Bodel, the Arbitrator made findings, which are noted at [43] below, and the award as is recorded in the Certificate of Determination noted at [9] above was then entered.

DISPOSITION OF THE APPEAL

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The case presented before the Arbitrator alleged that, by reason of the day to day physical demands of his work, Mr Alazzawy suffered a “personal injury” within the meaning of s 4(a) of the 1987 Act. That allegation suggested repeated micro traumata affecting the spine which, on Mr Alazzawy’s case, had caused a discal injury at the lumbosacral level as diagnosed by Dr Bodel.

Ground (a)

It is argued in support of ground (a) that the Arbitrator erred in law in “applying the wrong test” when determining the question as to the occurrence, or otherwise, of such personal injury.
Mr Alazzawy seeks to emphasise in argument the Arbitrator’s apparent acceptance that the relevant work duties “probably placed some stress on [Mr Alazzawy’s] spine” (at [90] of Reasons). Having so concluded the Arbitrator failed, it is argued, “to consider whether there was evidence of a ‘sudden identifiable pathological change’ in Mr Alazzawy’s lower back” and whether there was a “sufficient causal nexus between the pathological change and [Mr Alazzawy’s] employment” to permit a finding of relevant “personal injury”.
The Arbitrator’s reasoning concerning the issue of “injury” is found between [90] and [113] of his Reasons. The issue before the Commission was correctly identified by the Arbitrator immediately following his acceptance of probable stress upon the spine arising from Mr Alazzawy’s work as being:
“… whether or not those probable stresses have led to an injury for the purpose of s 4(a)”.
Following a careful summary and evaluation of the evidence, the Arbitrator expressed the following conclusion:
“I am not sufficiently persuaded that the symptoms [Mr Alazzawy] complained of from June 2004 onwards, is a discal injury, or that it arose out of or during the course of his employment. It follows that I am also unable to conclude that [Mr Alazzawy’s] employment was a substantial contributing factor to any condition from which he may suffer.”
Whilst the manner in which the first sentence of the finding noted immediately above may have been more clearly expressed, it is abundantly clear from the manner in which the evidence as a whole had been evaluated by the Arbitrator, that he had concluded that the evidence was incapable of persuading him that the symptoms complained of by Mr Alazzawy had been caused by injury arising out of or in the course of the relevant employment. The Arbitrator appears to have gone further and rejected the diagnosis of discal injury.
The controversy before the Arbitrator in the present matter concerned the existence or otherwise of a causal nexus between the work duties and the back pain complained of by Mr Alazzawy to his general practitioner. It was recorded by the general practitioner on 14 June 2004, that is three weeks after the first recorded consultation, that Mr Alazzawy wanted a prescription for the provision of Tramal, a pain killing analgesic which, it was recorded in the notes, Mr Alazzawy had been “given in the past”. During a consultation on 30 June 2004, the attending medical practitioner recorded “chronic back pain” and Tramal was again prescribed.
The Arbitrator was not addressed concerning the occurrence of a “sudden identifiable pathological change” arising out of or in the course of employment. The term “sudden identifiable pathological change” was first stated by Kitto J in Darling Island Stevedoring and Lighterage Co Ltd v Hussey [1959] HCA 55; 102 CLR 482 (Hussey) in the context of an examination of the term “personal injury” as it appeared in s 6(1) of the former Workers Compensation Act 1926. The High Court was there dealing with the occurrence of death of a worker as a result of heart failure whilst on a relevant journey.
The High Court in Hussey was concerned to determine whether the sudden identifiable pathological change (heart failure) could, as stated by Kitto J, “properly be described as a personal injury not being a disease” (at 508).
The present matter concerned, as earlier noted, an allegation of microtraumata causing disc injury, each individual traumatic event constituting injury being a personal injury within the meaning of s 4(a) of the 1987 Act. That allegation was rejected by the Arbitrator. Among the reasons stated for the absence of “persuasion” were, as found, numerous deficiencies in the evidence which included:
(a)     the unexplained entry in the clinical notes concerning Tramal being “previously” given;
(b)     the notation of “chronic back pain” in June 2004 in the notes in the absence of evidence concerning the earlier prescription of Tramal;
(c)     the absence of the CT scan results;
(d)     the absence of identification of the physiotherapist and of any evidence from such professional;
(e)     failure to identify the specialty of Dr Gorman to whom Mr Alazzawy had been referred in February 2005 in the context of complaint of back pain;
(f)      the absence of any evidence of contemporaneous complaint being made to the respondent, and
(g)     the inadequate explanations given by Mr Alazzawy concerning the entries in the clinical notes in November 2007 concerning history of “low back pain recurrent due to nature of his job which involves heavy lifting” and injury of lower back “doing tai quando [sic]”.
The Arbitrator’s process of reasoning leading to his fact finding does not, in my opinion, demonstrate that a “wrong test” was applied and I reject Mr Alazzawy’s submission that relevant error of law has been committed. The task before the Arbitrator required an examination of the evidence to determine whether such was sufficient to satisfy the Commission, on the balance of probabilities, that the undisputed painful symptoms were relevantly caused by the work performed between 2004 and 2006. That onus was found not to have been discharged. The question as to the weight and persuasiveness of the evidence was one to be determined by the Arbitrator. No relevant error of law has been made out. Ground (a) is rejected.

Ground (b)

The Arbitrator’s factual conclusion as to the issue of injury was challenged upon the basis that such conclusion was reached following application of the wrong test. It is put that, had the Arbitrator “properly carried out his task and applied the correct test, the outcome would have been favourable to [Mr Alazzawy] because [Mr Alazzawy] is not simply required to establish that he sustained a discal injury to his back, rather that he received an injury to his back as a result of his employment”.
Given my conclusion concerning the absence of any error of law in the Arbitrator’s reasoning concerning the occurrence of injury, it follows that the suggestion of factual error occasioned by the application of the wrong test must be rejected. It is not suggested that factual error as described by Barwick CJ in Whiteley Muir and Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 has been committed. That is, that (at 506):
“Material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
Ground (b) must be rejected.

DECISION

The Arbitrator’s findings and his orders found in paragraphs one and two of the Certificate of Determination dated 7 January 2015 are confirmed.

Kevin O'Grady
Deputy President

27 April 2015

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE