Amad Al-Aedani v G & S President Pty Ltd
[2006] NSWWCCPD 166
•31 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Amad Al-Aedani v G & S President Pty Ltd [2006] NSWWCCPD 166
APPELLANT: Amad Al-Aedani
RESPONDENT: G & S President Pty Ltd
INSURER:Employers Mutual Indemnity
FILE NUMBER: WCC 2335-05
DATE OF ARBITRATOR’S DECISION: 14 July 2005
DATE OF APPEAL DECISION: 31 July 2006
SUBJECT MATTER OF DECISION: Weight of the evidence
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: Gerard Malouf & Partners
Respondent: Church & Grace
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 14 July 2005 is confirmed.
No order is made as to the costs of the appeal.
BACKGROUND TO THE APPEAL
On 5 August 2005 Amad Al-Aedani (‘Mr Al-Aedani’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 14 July 2005.
The Respondent to the Appeal is G & S President Pty Ltd (‘G & S President’).
Mr Al-Aedani was born on 12 December 1969 and is 36 years of age. He is single and claims no dependents.
Born in Iraq, Mr Al-Aedani came to Australia in 1999/2000. He commenced employment with G & S President in July 2003. Before starting with this employer he worked as a forklift driver/storeman for an employer called Captain Lighting for approximately eight months. Prior to that he did some casual work as a storeman for a firm known as Clean Head Gas.
At G & S President Mr Al-Aedani was employed as a storeman working a 38 to 40 hour week.
On 12 December 2003 Mr Al-Aedani was picking up a truck battery at work. It weighed approximately 50kgs and had a handle on each side. Whilst lifting the battery, one handle broke causing Mr Al-Aedani to fall on his side. He injured his neck, right arm, lower back, right leg and right ankle.
Mr Al-Aedani caught a taxi to his general practitioner, Dr Selim, who referred him for x-ray and CT scan of the injured areas and certified him unfit for work. Mr Al-Aedani continued to be off work at the time of the arbitration hearing.
Workers compensation benefits were paid, however, liability was denied on 1 March 2004 on the basis that Mr Al-Aedani was fit to resume pre-injury duties. Weekly compensation was paid to 13 March 2004.
On 15 February 2005 proceedings were commenced in the Commission by Mr Al-Aedani for weekly benefits of compensation, medical expenses and permanent impairment. An arbitration hearing took place on 28 June 2005 resulting in a Certificate of Determination being issued on 14 July 2005. The Arbitrator entered an Award in favour of the Respondent and Mr Al-Aedani has appealed against that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 14 July 2005 records the Arbitrator’s orders as follows:
“1. Award in favour of the Respondent.
2. No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
1.Whether the Arbitrator erred in his findings of fact; and
2.whether the Arbitrator erred in his application of the evidence.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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 submission by both 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Even though there was no award of compensation, the appeal is still allowed (Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD5) and accordingly I grant leave to appeal.
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.”
Practice Direction Number 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Mr Al-Aedani seeks to introduce fresh evidence in the form of a copy of an envelope from the X-Ray Centre Pty Ltd which sets out Mr Al-Aedani’s name, referral from Dr Selim on 12 December 2003 and refers to examination of the lumbar spine, pelvis and right hip. It is stated that the original films are in Mr Al-Aedani’s possession and are available for immediate production.
Mr Al-Aedani submits that the x-ray of 12 December 2003 was not available at the date of the Arbitration hearing and that its acceptance at this stage will not prejudice G & S President.
G & S President submit that they did not receive a copy envelope attached to the submissions served on them by Mr Al-Aedani, however, it is inappropriate to introduce evidence in this way at this stage of the proceedings.
The existence of the x-rays or CT scans was a central issue at the Arbitration hearing. The Arbitrator gave leave to Mr Al-Aedani to give oral evidence on the issue and at page 6(l) of the Decision stated:
“As the Arbitrator I pursued the inquisitional approach and elicited answers to the effect that the Applicant, who was straightforward and candid, believed that he had had “three or four” x-ray or C.T. Scans, all of which were at home.”
The x-rays were also sought by doctors who examined Mr Al-Aedani on behalf of G & S President. Dr Hughes who examined him on 15 January 2004 at the request of G & S President commented that “he left his x-rays at home, which is not helpful”. A copy of this medical report from Dr Hughes was served on Mr Al-Aedani by G & S President as an annexure to their Reply in early March 2005.
I am not satisfied that this evidence could not reasonably have been obtained and tendered at the arbitration hearing and that the exclusion of the photocopy of the envelope will cause a substantial injustice in this case.
The application to admit fresh evidence on appeal is refused.
EVIDENCE
The Arbitrator in his Reasons for Decision concluded that Mr Al-Aedani suffered from some ongoing incapacity, however, he was not satisfied on the balance of probabilities that such incapacity was related to his employment injury with G & S President.
Mr Al-Aedani on the day of the accident consulted Dr Selim. In his medical report of 15 March 2004 Dr Selim, after recording injury to the right arm, lower back, right leg, right ankle and cervical spine pain that radiated to both arms, noted the following on examination:
“Examining Mr Aedani [sic] on 12/12/2003, he was suffering tenderness on the neck area with restricted movements, right arm tenderness, right leg pain and weakness with persistent normal movement and reflexes.
He also had tenderness in the right hip and right ankle, which was swollen with limitation of movement.”
In a medical certificate dated 12 December 2003, Dr Selim diagnosed a musculo-ligamentous injury of the back and certified Mr Al-Aedani as unfit to work from 12 December 2003 to 19 December 2003. Dr Selim saw Mr Al-Aedani on five occasions, the last being 2 January 2004.
Mr Al-Aedani then came under the care of Dr Sue Nour, from the same practice as Dr Selim. There are a number of medical certificates in evidence from Dr Nour, the first dated 14 February 2004 and diagnosing “lower back pain. R ankle. Soft tissue injury”. In later medical certificates Dr Nour diagnosed “lumbar disc L4/5”.
On 15 January 2004, Mr Al-Aedani was examined by Dr Lloyd Hughes, Consultant Orthopaedic Surgeon, at the request of G & S President. This doctor noted that Mr Al-Aedani had the following symptoms:
“He has a slight back ache on and off during the day. His back aches if he sits for a long time. His right ankle is still a bit sore.”
On examination Dr Hughes noted the following:
“He walked normally without any apparent discomfort and moved his lumbar spine freely in the examination room. He walked without any limp.
Examination of his back revealed a good range of lumbar spine movements and I note that he was able to reach to his ankles with his outstretched fingertips on forward lumbar flexion without any tilt of the lumbar spine or spasm of the sacrospinalis muscles. There was no apparent pain on movements and there was no pain on lateral flexion and extension of the lumbar spine which was unrestricted. Straight leg raising was full and painless on both sides and the neurological examination of the lower limbs was normal. There was no back tenderness present.
Examination of his right ankle revealed no swelling or deformity and full painless movements were present although there was slight tenderness over the lateral ligaments.”
Dr Hughes was of the opinion that Mr Al-Aedani “…has recovered from injuries sustained in the incident at work on 12 December 2003 and he is fit to resume his work as a storeman”.
On 27 January 2004 Mr Al-Aedani was examined by Dr Price, Occupational Health Physician, on behalf of G & S President. This doctor recorded symptoms of low back pain that comes and goes, but it is worse when he awakens in the morning. On examination the doctor recorded “forward flexion was such that his fingertips could reach halfway between his knees and ankles…and straight leg raising on the left and right to 70 degrees”. Dr Price diagnosed “…an acute strain and musculoligamentous sprain of the lower lumbar region. He may have also suffered a very minor sprain of the right ankle”. Dr Price was of the opinion that Mr Al-Aedani “…should have fully recovered in a further four weeks time from any ongoing minor discomfort”.
As stated above, Dr Selim law saw Mr Al-Aedani on 2 January 2004 and in his report which I have referred to above stated:
“Mr Aedani [sic] was sent to x-ray, CT scan of the injured areas. No abnormality was detected.”
When Mr Al-Aedani saw Dr Hughes on 16 January 2004, the doctor recorded:
“He left his x-rays at home, which is not helpful”.
Again when Mr Al-Aedani saw Dr Price on 27 January 2004, the doctor recorded:
“He reported that he had x-rays of his back and right ankle that he did not bring with him.”
A major issue at the Arbitration hearing involved the x-ray and CT scan of the injured areas that Dr Selim sent Mr Al-Aedani to and noted in his report showed no abnormality. The Arbitrator gave leave to Mr Al-Aedani to give oral evidence on this issue and although Mr Al-Aedani’s memory was not clear he stated he had three or four x-ray or CT scans, all of which were at home.
Mr Al-Aedani had a CT scan of his lumbar spine taken on 4 March 2004 which was after he saw Dr Hughes on 15 January 2004 and Dr Price on 27 January 2004.
On 31 May 2004 Mr Al-Aedani was examined by Dr Peter Conrad at the request of his solicitors. This doctor recorded that Mr Al-Aedani continues to have pain in his back, which radiates down the right leg and that “…he finds it difficult to stand or sit for long periods of time, bend or lift anything heavy” and has difficulty doing a lot of walking or going up and down stairs. On examination the doctor recorded lumbar spine flexion with hands to knees and straight leg raising of 40 degrees on the right leg and 60 degrees on the left leg.
Dr Conrad, having the CT scan of the lumbar spine dated 4 March 2004, was of the opinion:
“This man was involved in an accident on 12 December 2003. As a result, he sustained a back injury associated with a 2-level disc protrusion as shown on the CT scan, which may need to be confirmed by an MRI scan.”
Mr Al-Aedani again saw Dr Hughes on 20 April 2005. The doctor recorded:
“He told me that the pain in his lower back has become worse since I saw him and there is pain present all day, every day. There is also pain radiating down his right leg now. He cannot do any work at all and is very restricted in all his normal daily activities. His right ankle is only sore occasionally now.”
On examination Dr Hughes noted:
“On this occasion he did not walk normally and appeared to be in considerable discomfort and not being able to move his lumbar spine freely in the examination room and when getting on and off the examination couch.
He appeared to be able to reach only to his knees with his outstretched fingertips on forward flexion lumbar flexion. He did not reverse his lumbar lordosis, there being spasm in the sacrospinalis muscles. Lateral lumbar flexion and extension were considerably restricted. He complained of pain at straight leg raising at 20 degrees on both sides.”
Dr Hughes had the benefit of the CT scan dated 4 March 2004 and was of the opinion:
“This man’s presentation is entirely different from the presentation at my previous examination of him on 15 January 2004 when I found no abnormality at all in his back. It was my opinion he was not suffering from any injury or disability.
On this occasion he presented as being considerably disabled and may be suffering from a lumbar intervertebral disc protrusion particularly in view of the CT scan findings of 4 March 2004 which I note is dated some three months after I examined him.
In view of the above it appears that he may have developed a lumbar disc lesion following my examination of him previously and the conclusion is that this present condition is not related to any incident at work on 12 December 2003. He has also recovered from any injury to his right ankle as the examination on this occasion revealed no abnormality.”
At the Arbitration hearing, the next central issue involved the marked difference that Dr Hughes recorded on examination between when he first saw Mr Al-Aedani and when he next saw him. The Arbitrator again granted leave for Mr Al-Aedani to give oral evidence on this issue at the arbitration. Mr Al-Aedani explained that because the insurer stopped paying for physiotherapy and swimming, his condition deteriorated and therefore when he saw Dr Hughes on the second occasion his back was worse.
SUBMISSIONS AND FINDINGS
Mr Al-Aedani’s solicitors have prepared lengthy submissions in support of the appeal. Part of those submissions refer to the Arbitrator failing to take into account a medical report of Dr Nour dated 18 March 2005. This medical report was served on G & S President approximately two days before the Arbitration hearing and when Counsel for Mr Al-Aedani sought to tender it in evidence, it was objected to by G & S President and after lengthy submissions rejected by the Arbitrator. I note there is no appeal from that decision of the Arbitrator and having read the transcript of the submissions by both parties on the question of admissibility and the reasoning for its rejection by the Arbitrator, I see no error in the exercise of his discretion.
Mr Al-Aedani submits that the Arbitrator erred in forming the view that there was in existence a CT scan of his back prior to the scan of 4 March 2004 and this resulted in the Arbitrator reaching the wrong conclusion. At paragraphs 16(i) to (m) the Arbitrator stated:
“i)This suggests Dr Selim’s knowledge of a C.T. Scan indicating no abnormalities and that the Scan was taken on or after the 12th December, 2003, (when Dr Selim first saw the Applicant) and prior to the 4th March, 2004.
j)In the absence of evidence to the contrary an inference can be drawn to the effect that there was a clear C.T. Scan after the Applicant’s injury. The Applicant’s submissions as regards his condition worsening because he no longer had the benefit of physiotherapy and swam less frequently, would not explain the pathology in the March Scan, in such an instance.
k)Given the lateness of the emergence of this issue and its unusual nature, it was agreed that oral evidence ought be sought from the Applicant on this issue.
l)As the Arbitrator I pursued the inquisitional approach and elicited answers to the effect that the Applicant, who was straightforward and candid, believed that he had had “three or four” x-ray or C.T. Scans, all of which were at home.
m)He was of the view that he had “probably” had two C.T. Scans, but the Applicant’s most frequent answer to questions was “I don’t remember” in which regard he again appeared to be genuine.”
The Arbitrator made no finding as such, but referred to the “…strong inference that there was a C.T. Scan of the Applicant’s back, one of the injured areas referred to by Dr Selim at some time between the 12th December, 2003, and the 2nd January, 2004 and that “no abnormality was detected”.”
G & S President submit that it was open to the Arbitrator to find on the balance of probabilities that Mr Al-Aedani had undergone a CT scan of his low back on the day of his injury along with at least one other diagnostic investigation and that it was possible that one of the investigations was an x-ray and CT scan of the low back.
I have closely examined the medical evidence, the transcript and other material that was before the Arbitrator and can find no fault in the inference drawn from the evidence. This evidence included:
·Dr Selim’s report of 15 March 2004 that he sent Mr Al-Aedani to x-ray, CT scan of the injured areas and detected no abnormality.
·Dr Conrad’s report of 1 June 2004 where he notes that Mr Al-Aedani “…attended his GP, Dr Now [sic] and had a CT scan and x-rays of his back and ankle.
·The evidence of Mr Al-Aedani that he had three or four x-rays or CT scans that were all at home.
Mr Al-Aedani submits that the Arbitrator incorrectly inferred from Dr Selim’s report of 15 March 2004 that he had no abnormality with his back prior to the CT scan being taken on 4 March 2004.
As stated above, liability was denied on 1 March 2004 as a result of the medical examinations of Dr Hughes and Dr Price, where they were of the opinion that Mr Al-Aedani was fit to resume pre-injury duties. The Arbitrator accepted that Mr Al-Aedani suffered from some incapacity after the CT scan of 4 March 2004, but was not satisfied on the balance of probabilities that his incapacity was related to the injury he suffered at G & S President on 12 December 2003.
The conclusion reached on this issue was a question of fact for the Arbitrator. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73 at paragraph 40 should be borne in mind:
“Interference with an Arbitrator’s discretionary judgment as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
Having considered all of the evidence in this matter, including the transcript of the proceedings, I can find no error in the Arbitrator’s decision. The Arbitrator not only relied on the evidence of Dr Selim but took into account:
·the evidence of Dr Price that Mr Al-Aedani should have fully recovered in four weeks after the medical examination on 27 January 2004, together with the result of the medical examination of Mr Al-Aedani;
·the evidence of Dr Hughes that Mr Al-Aedani had fully recovered and was fit to resume his work as a storeman, together with the result of the doctor’s examination of Mr Al-Aedani;
·the medical certificate of Dr Nour of 14 February 2004 where she diagnoses soft tissue injury; and
·the failure of Mr Al-Aedani to produce the results of the radiological examinations which he stated he has at home.
G & S President tendered into evidence a commentary on a video depicting Mr Al-Aedani working and carrying tools, on two separate occasions, at a building site. Mr Al-Aedani submits that the Arbitrator, without having satisfied himself that the person on the video tape was him, referred to the person being Mr Al-Aedani. He further submits that the video when viewed shows a man who is clearly not Mr Al-Aedani.
At page 7(bb) to (dd) of the decision the Arbitrator stated:
“(bb)As regards the possibility of further injury the Respondent did have in evidence a commentary on a video depicting the Applicant working and carrying tools, on two separate occasions, at a building site.
That evidence would be consistent with the Applicant having placed himself in a situation where a further injury was more likely than if he had not been attending to any such work.
(cc)It was not emphasised in submissions and doubtless this is because it probably would not demonstrate any greater capacity for work than the WorkCover Certificates from the Applicant’s treating doctor, Dr Nour, conceded anyway.
(dd)This evidence does not concern me in the context of whether a second injury was suffered after the 12th December, 2003. Opportunity is not fact. If a finding was made in favour of the Applicant however it could be relevant to capacity to work.”
The Arbitrator clearly did not take the video evidence into account when determining the issue of whether Mr Al-Aedani’s incapacity was related to the injury he suffered at G & S President on 12 December 2003. The Arbitrator stated it was only relevant “…if a finding was made in favour of the Applicant”. As a finding was not made in Mr Al-Aedani’s favour, the issue of the video is superfluous.
Having read all of the evidence and the transcript I can see no error in the Arbitrator’s findings of fact or in his application of the evidence. It was reasonably open to the Arbitrator to arrive at the decision that he did and I find accordingly.
DECISION
The decision of the Arbitrator dated 14 July 2005 is confirmed.
COSTS
No order is made as to the costs of the appeal.
Julian Martin
Acting Deputy President
31 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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