Alikhani v A & K Insulation Pty Limited
[2009] NSWWCCPD 126
•8 October 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Alikhani v A & K Insulation Pty Limited [2009] NSWWCCPD 126 | ||||
| APPELLANT: | Peyman Alikhani | ||||
| RESPONDENT: | A & K Insulation Pty Limited | ||||
| INSURER: | Gallagher Bassett Services Workers Compensation NSW | ||||
| FILE NUMBER: | A1-2703/09 | ||||
| ARBITRATOR: | Mr J Wynyard | ||||
| DATE OF ARBITRATOR’S DECISION: | 16 June 2009 | ||||
| DATE OF APPEAL DECISION: | 8 October 2009 | ||||
| SUBJECT MATTER OF DECISION: | Injury; causation; onus of proof; application of principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Malouf Solicitors | |||
| Respondent: | Moroney Lawyers | ||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 16 June 2009 is confirmed. | ||||
| Each party is to pay his or its own costs of the appeal. | |||||
BACKGROUND
The worker, Mr Alikhani, started work as a labourer for A & K Insulation Pty Limited (‘A & K’) on 8 January 2008. In the course of his employment on 11 January 2008, he was working on the roof of a house at Granville when he fell through the ceiling and landed on the kitchen floor approximately 2.5 metres below.
As a result of his fall, he alleges that he injured his head, neck, back, right arm and both knees. The insurer admits that Mr Alikhani injured his head, neck, back and right arm, but disputes that he injured either knee.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 8 April 2009, Mr Alikhani claimed lump sum compensation in the sum of $36,437.50 as a result of a 22 per cent whole person impairment said to have resulted from his injuries. He also claimed $35,000.00 in respect of pain and suffering.
The Commission listed the matter for conciliation and arbitration on 12 June 2009. The case could not be resolved and the only issue for determination was whether Mr Alikhani had injured his knees in the fall. After hearing lengthy submissions, the Arbitrator delivered an ex tempore decision in which he found in favour of A & K. The Commission issued a Certificate of Determination on 16 June 2009 in the following terms:
“The determination of the Commission in this matter is as follows:
1. Award in favour of the respondent in relation to the claim for both lower extremities.
2. I remit this matter to the Registrar for referral to AMS on the following bases:-
i)Date of Injury: 11-1-08
ii)Matters for assessment: Cervical spine, lumbar spine, right upper extremity, skin and scarring.
iii)Method of assessment: Whole Person Impairment
iv)Evidence:-
a.Application to Resolve a Dispute plus attached documents except the report of Dr Bertucen;
b.Reply plus attached documents.
Note: the AMS is not required to assess the applicant’s lower extremities
3. No order as to the costs of the arbitration.”
By an appeal filed on 13 July 2009, Mr Alikhani seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the quantum in issue on appeal is in excess of $5,000.00 and that the thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
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 Numbers 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.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) 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 the leave of the Commission.”
Mr Alikhani seeks to tender on appeal, as fresh or additional evidence, a further statement signed by him on 6 July 2009. It is submitted that this “new evidence” should be admitted in order to afford natural justice to the Appellant and as a matter of procedural fairness. It is claimed that the Arbitrator refused leave at the arbitration to allow the further evidence and that the new evidence “goes to the heart of the issue appealed against and is required for completeness of the evidence.”
It is said that the new evidence was not included in the evidence before the Arbitrator because “the Appellant did not appreciate the significance of the evidence attached to the issue and had forgotten to include the submissions in his original statement, as it was a discreet [sic] point.”
These submissions are misleading and incorrect. The Arbitrator specifically enquired of Mr Alikhani’s counsel at the arbitration if he wished to call any oral evidence and counsel responded “No, I don’t think so” (T3.32-36). The matter then proceeded with submissions from both sides.
The explanation as to why the evidence in Mr Alikhani’s statement of 6 July 2009 was not included in the evidence before the Arbitrator is completely unsatisfactory and unconvincing. Effectively, the submission amounts to an admission that the case was not properly prepared in the first place. The insurer had always placed in issue the question of whether Mr Alikhani had injured his knees in the fall on 11 January 2008 and that was the issue in dispute at arbitration. To state, as has been stated on appeal, that Mr Alikhani’s solicitor “forgot to include” the evidence in his original statement is an extraordinary statement.
Notwithstanding the unsatisfactory nature of the explanation given for seeking to tender what is effectively additional evidence on appeal, having regard to the decision of Basten JA in Haider v JP Morgan Holdings Australia trading as JP Morgan Operations Australia Ltd [2007] NSWCA 158 I have determined that it is in the interests of justice that Mr Alikhani’s statement of 6 July 2009 be admitted into evidence. However, parties are reminded, yet again, that arbitrations are not a trial run where parties can run unprepared cases in the expectation that fundamental evidentiary issues can be corrected on appeal. All relevant evidence must be called at the arbitration stage of the proceedings. The admission of fresh or additional evidence on appeal is only allowed by leave in the appropriate case, not as of right.
THE EVIDENCE
Mr Alikhani’s evidence is set out in his first statement of 19 January 2009 and in his supplementary statement of 6 July 2009. His first statement recounts that he was working on the roof of a private residence at Granville on 11 January 2008 when he fell through the ceiling and landed on the kitchen floor approximately 2.5 metres below. As a result of the fall, he was rendered unconscious and he fractured his right arm and sustained injuries to his neck and back. His statement also asserts that he injured both legs and both of his knees.
In his supplementary statement of 6 July 2009, Mr Alikhani adds that he had no problems with his knees before the accident and that he was generally fit and healthy and that he has not had any accidents or injuries to his knees after the work accident. He also adds that as he was falling he struck a table before landing on the floor. He claims that he recalls that when he was in hospital his right knee was bruised and tender. However, as he had fractured his right arm and was in a lot of pain and had been given strong pain relieving medication, he “did not really notice any pain in [his] knees initially because [his] arm was the main focus of [his] injuries and was causing [him] excruciating pain” (supplementary statement 6 July 2009 at paragraph 4).
His supplementary statement adds that he had a lot of other problems as a result of the injuries sustained in his fall. He referred to experiencing psychotic type hallucinations as a result of his medication and being “quite depressed in general”. He states that a couple of months later he noticed that his knees were very stiff and he could feel them grinding when he walked. His right knee especially makes a cracking noise when he sits or stands for too long or tries to squat. He told his general practitioner, Dr Saeed, about the problems he was having with his knees and he was referred to Dr Mahony, orthopaedic surgeon, who confirmed there was a problem with his knees but did not recommend any treatment. He continues to experience discomfort in his knees. The right knee in particular feels very stiff and unstable, especially in cold weather. He has not had any other accidents or injuries other than his accident on 11 January 2008.
After his fall, an ambulance took Mr Alikhani to Westmead Hospital where he was admitted until 14 January 2008. After his discharge from hospital he came under the care of Dr Hoe, orthopaedic surgeon, and was readmitted to hospital on 12 February 2008 for a plate to be fitted to his right humerus.
In his first statement, Mr Alikhani complained of experiencing pain in his shoulder, neck and back, but made no mention of continuing pain in his knees.
Medical evidence
The evidence includes a “general surgery discharge summary” from Sydney West Area Health Service relating to Mr Alikhani’s admission to Westmead Hospital between 11 and 14 January 2008. That summary is of limited assistance, as it includes no notes as to Mr Alikhani’s presenting complaints or his complaints on discharge.
The evidence also includes Dr Saeed’s notes, which include an entry on 17 January 2008 that sets out in detail the circumstances of Mr Alikhani’s fall. Whilst the notes refer to a fracture of the right humerus and to back pain, they make no reference to any injury to either knee in the fall.
Mr Alikhani underwent x-rays of his right arm and lumbo-sacral spine on 21 January 2008 and saw Dr Hoe. Dr Hoe reported to Dr Saeed on 21 January 2008 and took the following history from Mr Alikhani:
“Your patient Mr Alikhani was referred to me by Westmead Hospital following a fracture of his right humerus sustained at work on 11 January 2008 when he fell through a ceiling from a height of two metres. He landed on his buttock on the edge of a kitchen table. There was a short period of loss of consciousness. In the hospital he was found to have a fracture of his right humeral shaft for which he was placed in a plaster U-slab. He also had a CT scan of the head which was clear.”
Dr Hoe recorded that Mr Alikhani complained of pain at the tip of his right elbow due to the plaster slab and of low back pain, especially when he sat down or rose from a chair. He diagnosed a fractured shaft of the right humerus and a soft tissue injury of the lumbo-sacral spine and anticipated significant shoulder and elbow stiffness following immobilisation. Dr Hoe discussed the advantages of internal fixation and Mr Alikhani agreed to proceed with that procedure at Westmead Private Hospital on 12 February 2008.
Also in evidence is a document headed “ED Discharge Summary” from Westmead Hospital dated 29 January 2008. This document confirms that Mr Alikhani presented for the fifth time since his accident on 11 January 2008 and that his pain was not well controlled. He was anxious to have surgery to his right arm sooner rather than later. His analgesics included oxynorm and Panadeine Forte.
Dr Hoe reported again to Dr Saeed on 5 February 2008. He noted that Mr Alikhani complained of severe pain at the fracture site and he required oxycontin every four hours. After the surgery on 12 February 2008, Mr Alikhani was discharged on 13 February 2008 and commenced physiotherapy on 14 February.
Mr Alikhani saw Dr Hoe again on 20 February 2008 when it was noted that he was progressing satisfactorily following his surgery.
On referral from Dr Saeed, Mr Alikhani underwent cervical spine x-rays on 16 April 2008 and a CT scan of the cervical spine on 24 April 2008.
Mr Alikhani underwent a bone scan on 12 May 2008. The fracture site of the right humeral shaft was noted, together with increased activity in the lower cervical spine. Further x-rays of the right humerus were taken on 13 May 2008.
Dr Saeed referred Mr Alikhani to Medhat Metry, psychologist, for psychological assessment and treatment in May 2008. Mr Metry reported on 28 May 2008 that Mr Alikhani said he suffered from pain in his “back, neck and right arm”.
Dr Saeed referred Mr Alikhani to Dr Benjamin, consultant psychiatrist on 5 June 2008. The referral letter refers to Mr Alikhani sustaining a work injury and having “neck pain radiating to [the] shoulder with post traumatic stress disorder”.
Dr Benjamin reported to Dr Saeed on 23 July 2008 that Mr Alikhani fell off a roof and broke his arm. His arm was placed in plaster, but he underwent an open reduction and internal fixation after one month. He continued to complain of “pain in his right elbow, shoulder, neck and back.” Dr Benjamin noted that Mr Alikhani’s affect was depressed and that he was “pre-occupied with his right arm and shoulder pain and he felt pessimistic about the future of his health.”
Dr Benjamin’s hand written notes state that Mr Alikhani hit his right elbow on a table in his fall and that he also hit the back of his head and lost consciousness. Dr Benjamin took a detailed note of Mr Alikhani’s continuing pain in his right elbow and shoulder, and of a neck and back “problem”.
Dr Saeed referred Mr Alikhani to Dr Mahony in or about September 2008. Dr Mahony first examined Mr Alikhani on 15 September 2008 when he took a history of the fall at work and that the worker was taken by ambulance to Westmead Hospital with the following injuries:
(1) A head injury.
(2) An injury to his neck.
(3) A fracture of the right humerus.
(4) An injury to his low back.
Dr Mahony also noted that plaster was applied to Mr Alikhani’s right arm and that he later underwent an open reduction with fixation of the right humerus at the hands of Dr Hoe.
Under “Present Complaints” Dr Mahony noted a complaint of pain in the back of the neck which radiated to the occipital area, to the right shoulder and right elbow, pain in the right upper arm with a feeling of pins and needles in the right arm, pain in the mid and lower back with occasional radiation to both knees, and “pain and weakness of the right knee.” On examination of the lower limbs, there was complaint of tenderness on palpating the medial articular margins of the patella. Knee movements, however, were normal and ligaments intact.
Dr Mahony concluded:
“Mr Alikhani has developed symptoms referrable to a cervical strain with nerve root irritation affecting the right upper limb as well as a capsulitis of his right shoulder and generalised strain of the right elbow as well as mid and low back strain with nerve root irritation affecting the lower limbs, particularly the right lower limb as well as chondromalacia of the patellae.”
Mr Alikhani saw Dr Medhat Guirgis, consultant orthopaedic surgeon, at the request of his solicitors at the end of 2008. In a report dated 10 December 2008, Dr Guirgis noted the subject fall and that Mr Alikhani had been admitted to hospital and undergone surgery to his right arm. He added, “in that accident he sustained injuries to his neck, right shoulder, right humerus, back, and knees”. He stated that since the fall Mr Alikhani continued to complain of, among other things, “pain, clicking and a sense of weakness and stiffness in his right and left knees”. Dr Guirgis diagnosed post traumatic symptoms in the knees caused by “contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures”.
Dr Saeed reported to A & K’s insurer on 6 February 2009. He recorded Mr Alikhani’s injuries as follows:
“Mr Alikhani is suffering from injuries sustained due to his fall through the roof that he was working on. The injuries are [a] fracture of his distal shaft of [the] right humerus which was treated with open reduction and internal fixation, and it is in the healing process. Injuries to the right shoulder with evidence of adhesive capsulitis, and arthritic changes in the glenohumeral joint and left acromioclavicular and SCJS joint. Injuries to his neck with evidence of facet joint arthropathy involving multiple levels from C4 to C7 on both sides. He was also suffering from [a] back strain with radiculopathy radiating to the legs. These are complicated with post traumatic stress disorder as a common outcome of multiple injuries causing chronic pain and disabilities. The final diagnosis of Mr Alikhani’s injuries is not clarified yet it will depend on further investigations and follow-ups.”
Dr Saeed confirmed in his report that he first saw Mr Alikhani after the fall on 17 January 2008. All attention was given to the fractured arm, but Mr Alikhani still complained of back and neck pain with general symptoms of dizziness and blurring of vision. After the operation, the right arm pain settled and the doctor reduced his level of analgesics and Mr Alikhani “started to complain from [sic] right shoulder, neck pain and back pain” which was investigated further.
After referring to the worker’s psychological problems, Dr Saeed noted that Mr Alikhani saw Dr Mahony on 30 September 2008 after a referral for his lower back pain.
On behalf of the insurer, Dr Bodel, orthopaedic surgeon, reviewed Mr Alikhani on 25 November 2008. In a report of the same date, Dr Bodel took a history that the worker fell somewhere between five and six metres through the roof of a house and was knocked unconscious. Under “Current Complaints”, Dr Bodel took no history of knee pain, but did record a complaint of pain radiating into the right buttock and thigh. Dr Bodel listed all radiological investigations undertaken up to November 2008. Those investigations did not include any x-rays of the knees. Dr Bodel recorded no history of any injury to or symptoms in Mr Alikhani’s knees and did not examine his knees.
THE ARBITRATOR’S REASONS
The Arbitrator delivered an ex tempore decision in which he agreed with submissions by counsel for the employer that the references by Drs Mahony and Guirgis to the knees lacked the essential explanation to “connect the occurrence of the knee problem with any result of the injury” (T22.46). He felt that the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’) were applicable because he was unable to work out the appropriate “facts and circumstances” upon which either Dr Mahony or Dr Guirgis maintain any link between the knee problem and the fall, particularly when there was no contemporaneous complaint about the knee problem. The Arbitrator did not accept Dr Guirgis’ opinion as it was based on a history of knee complaints, “all the way through”, which was incorrect (T22.56).
In view of the fact that Mr Alikhani’s assertion that he injured his knees was not corroborated by any contemporaneous document, particularly from his general practitioner, and in view of the fact that Mr Alikhani’s statement was made one year after the fall, he was unable to find that its probative force outweighed the problems with the case. In effect, he was not satisfied that Mr Alikhani had discharged the onus of proof.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) failing to properly exercise his functions as the “trier” [sic] of fact and failing to make a valid determination as required;
(b) failing to provide any adequate reasons for his decision;
(c) finding that Mr Alikhani did not suffer an injury to his lower extremities arising out of his employment with A & K because there was insufficient evidence to satisfy the evidentiary onus;
(d) finding against Mr Alikhani on the basis that the report of Dr Guirgis failed to link the work injury to the impairment of the lower extremities, and
(e) finding that the causal link between the injury and the impairment had been broken.
SUBMISSIONS, DISCUSSION AND FINDINGS
Mr Alikhani submits that the Arbitrator:
(a) failed to make a valid determination on the issue of injury to the knees;
(b) failed to carry out his functions in applying the relevant tests enunciated in the legislation and in the case law in that he failed to evaluate all of the evidence and come to a decision as to “both the existence of injury and the cause of injury, as he was required to do”;
(c) the Arbitrator made no attempt at all to consider whether the worker could have sustained an injury to his knees as a result of the fall on the balance of probabilities and on the evidence before him. The Arbitrator did not give any, or any adequate, explanation or reasons for finding against the worker;
(d) there was no suggestion by A & K that the injury was caused by any other event or could have been explained in any other way. There was no evidence before the Arbitrator upon which he could have made a finding that an injury to the knees was caused by anything other than the work accident;
(e) A & K did not provide any evidence to contradict or put in question the cause of injury. The only evidence before the Arbitrator was the evidence from Doctors Mahony and Guirgis that there was injury to the knees and the Arbitrator’s task was to determine whether the work injury was a substantial contributing factor to the injury;
(f) a common sense approach to the evidence would result in a finding that when a person falls from a roof through a gyprock ceiling to the floor and hits a table on the way, it is probable that trauma could be caused to the knees, particularly when there is no conflicting evidence of any other possible cause of injury;
(g) reliance is placed on Supair Pty Limited v Sweeney (2000) 20 NSWCCR 514; [2000] NSWCA 319 (‘Sweeney’) which states that where the cause of injury is disputed in section 9A, the employer must produce evidence to show that the injury would have occurred in any event. The onus is therefore on the employer to provide evidence or in the alternative an explanation for the cause of injury;
(h) the Arbitrator wrongly applied Makita to the reports from Drs Mahony and Guirgis in that he has treated the question of “cause of injury” to the worker’s knees as a scientific conclusion requiring detailed explanation by an expert whereas it is a question of fact before the Arbitrator himself. Therefore, the factual finding of causation of injury was not one that Dr Guirgis was required to make and the ultimate finding of fact was one the Arbitrator had to make, and
(i) the Arbitrator erred in finding that the delay of eight months in reporting complaints of injuries to the knees constituted a break in the causal chain in the circumstances. Mr Alikhani sustained multiple serious injuries that caused severe pain and discomfort. As a result, he was given strong pain relieving medication and developed a serious psychiatric condition. Any delay in reporting the knee symptoms was due to the masking of the injury symptoms by the worker’s medication and as a result of the preoccupation with the more serious injuries and conditions Mr Alikhani experienced.
Mr Alikhani’s submissions are confused, misguided and, to the extent that they seek to reverse the onus of proof, wrong. The issue is whether Mr Alikhani injured his knees in the fall and, if so, whether his employment was a substantial contributing factor to that injury.
Mr Alikhani’s submissions seem to proceed on the flawed assumption that because he fell about two metres he must have injured his knees. The evidence is that Mr Alikhani fractured his right arm and injured his low back in the fall and subsequently developed symptoms in his neck and right shoulder. It is not disputed that the neck and right shoulder symptoms have resulted from the injuries sustained in the fall.
I do not accept that the Arbitrator failed to evaluate the evidence and failed to come to a decision as to the existence of injury and the cause of injury. The Arbitrator clearly considered the evidence from the worker and Drs Mahony, Guirgis and Saeed and concluded that that evidence did not outweigh the problems “as far as the applicant establishing the claim for both lower extremities” (T23.24). In other words, the Arbitrator was not satisfied that Mr Alikhani had established his case.
If I am wrong on this issue and the Arbitrator did fail to evaluate the evidence, having carefully reviewed all of the evidence, the submissions before the Arbitrator, and the submissions and additional evidence on appeal, I am not satisfied that Mr Alikhani has established a case that he injured his knees in the fall on 11 January 2008 and I reach the same conclusion as that reached by the Arbitrator. Nor am I satisfied that Mr Alikhani’s knee symptoms have resulted from the fall or the other injuries he sustained in the fall.
The evidence unequivocally establishes that Mr Alikhani’s first complaints were of injury to his right arm and low back. Whilst the hospital discharge summary confirms the fracture to the right arm, I place little weight on that document because it is obviously incomplete. However, Dr Saeed’s clinical note of 17 January 2008 is quite detailed. It refers to the right arm fracture and a low back injury but makes no reference to any knee injury. That omission from Dr Saeed’s notes is repeated in his comprehensive report to the insurer dated 6 February 2009. Based on Dr Saeed’s notes and report, and on the history of treatment given to Mr Alikhani in the eight months after the fall, I am comfortably satisfied that Mr Alikhani made no complaint of pain in his knees to any doctor until he saw Dr Mahony on 15 September 2008.
I have had careful regard to Mr Alikhani’s evidence in his supplementary statement of 6 January 2009 and I reject his evidence that he recalls his right knee being bruised and tender whilst he was in hospital and that he complained to Dr Saeed about having problems with his knees. That evidence is clearly a recent invention that is not supported by any contemporaneous notes, reports or investigations. Dr Saeed’s notes and, in particular, his four-page report of 6 February 2009 are detailed and comprehensive and carefully record Mr Alikhani’s complaints and the investigations undertaken to treat those complaints. They make no reference to any knee pain or knee injury, yet are meticulous in recording his extensive physical and emotional problems. In view of this fact, I do not accept that the doctor failed to record complaints of knee pain. Rather, I find that Mr Alikhani made no such complaint.
In these circumstances, Mr Alikhani has failed to discharge the onus of proof that he carries of establishing that he injured his knees in the subject fall and the employer carries no onus to explain the reason for Mr Alikhani’s current knee symptoms.
It is true that the question of causation is not solely a question for medical experts. An inference of causation may be drawn from all of the circumstances in the case if the tribunal of fact is satisfied, on the balance of probabilities, that a particular work incident caused a certain physical condition. In this case it is alleged that Mr Alikhani suffered an injury to his knees as a result of his fall. The evidence not only does not support that conclusion but it is strongly against it.
The only evidence of a connection between the fall and an injury to the knees comes from Mr Alikhani in his statements given 12 and 18 months after the event. As his evidence is contrary to the histories he gave to all his treating doctors, I do not accept his belated assertion that he experienced knee pain in hospital. Mr Alikhani concedes in his second statement that he noticed “a couple of months later” that his knees were stiff and grinding. There is no explanation of why, if he injured his knees in the fall, his symptoms would commence in that fashion a couple of months later. The only possible support for Mr Alikhani’s claim is from Dr Guirgis or Dr Mahony.
Dr Mahony’s evidence is unpersuasive because he took no history of Mr Alikhani injuring his knees in the fall, but only that he complained of knee pain at the examination on 15 September 2008. Dr Mahony did not note when the knee symptoms were alleged to have commenced and he made no attempt link those symptoms with the fall but merely concluded that Mr Alikhani has chondromalacia of the patellae. In the absence of an explanation of the connection between the chondromalacia of the patellae and the fall, his report is of no probative value (see Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 (‘Hevi Lift’); South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 42 (‘Edmonds’)).
Dr Guirgis’ evidence is also of no probative value as it clearly breaches the principles in Makita. It is based on the false assumption that Mr Alikhani injured his knees in the fall and that he has complained of pain, clicking and a sense of weakness in his knees ever since the fall. That history is contrary to my finding that Mr Alikhani did not injure his knees in the fall and did not complain of any knee symptoms until he mentioned symptoms, without suggesting that he had injured his knees in the fall, to Dr Mahony on 15 September 2008.
I do not accept that a common sense approach to the evidence leads to the result that it is probable that the fall resulted in trauma to the knees. Cases must be decided on the evidence. The evidence overwhelmingly establishes that Mr Alikhani did not complain of knee symptoms to any of his several treating doctors, or to Mr Metry, until he saw Dr Mahony on 15 September 2008. Dr Saeed provided a comprehensive summary of the history of Mr Alikhani’s complaints and the many investigations undertaken as a result of those complaints. None of his complaints, or any of the investigations, lend any support to the proposition that Mr Alikhani injured his knees in the fall.
The submission that A & K did not provide any evidence to contradict the cause of injury seeks to reverse the onus of proof. It is not for A & K to disprove injury and it is of no consequence that the employer and the homeowner did not give evidence. In any event, Mr Alikhani’s submission is incorrect. A & K relies on the evidence from Dr Saeed to establish a lack of complaint of knee pain at any time in the several months after the fall. That evidence is persuasive evidence against Mr Alikhani’s proposition.
The obligation to give reasons is satisfied if an Arbitrator states the basis for his conclusion (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). The basis for the Arbitrator’s conclusion in the present case could have been expressed in more detail, but the essential reason for his decision is clear. Given the lack of contemporaneous evidence of complaint of knee pain, he did not accept that Mr Alikhani injured his knees in the fall. If the Arbitrator’s reasons were inadequate, having carefully reviewed the evidence and submissions by both parties, I have reached the same conclusion for the additional reasons given in this decision.
Contrary to Mr Alikhani’s submissions, Dr Mahony’s evidence does not support a finding on injury. Dr Mahony expressly noted that Mr Alikhani injured his head, neck, right humerus and low back. His failure to record any injury to the knees in the fall is significant and is consistent with Dr Saeed’s notes and the investigations conducted in the several months after the fall. In the absence of a finding of injury to the knees at the time of the fall and in the absence of any explanation linking the much later development of knee symptoms with the fall, Dr Mahony’s findings on examination are of no probative value.
As the Arbitrator was not satisfied Mr Alikhani had injured his knees in the fall it was not necessary for him to consider the terms of section 9A of the 1987 Act. In circumstances where it has been found that Mr Alikhani did not injure his knees in the fall, Sweeney is of no relevance.
The submission that the Arbitrator failed to carry out his fact-finding function is without merit. The Arbitrator did not accept that Mr Alikhani injured his knees in the fall. Having conducted a detailed review on the merits, neither do I.
The Arbitrator did not wrongly apply the Makita principles to the question of cause of injury. He considered the evidence and concluded that Mr Alikhani had not established his case. For the reasons given in this decision, I agree with that conclusion.
The submission that Mr Alikhani’s pain relieving medication masked the development of knee pain is unconvincing and unsupported by any persuasive evidence or reasoned argument. Dr Saeed observed at page two of his report of 6 February 2009 that the dose of analgesics was reduced after the right arm operation and that Mr Alikhani started to complain of right shoulder, neck and back pain. Those complaints were then investigated further in April, May and June 2008. Dr Saeed did not record any complaint of knee pain at that stage or later.
The Arbitrator did not find that the delay of eight months in reporting knee pain was a break in the causal chain, as Mr Alikhani has submitted. There is no causal chain because it has not been established that Mr Alikhani injured his knees in the fall.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I have concluded, for the reasons given in this decision, that the Arbitrator’s determination is correct.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 16 June 2009 is confirmed.
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
8 October 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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