Belmon v Custom Carpets Pty Ltd
[2008] NSWWCCPD 126
•30 October 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Belmon v Custom Carpets Pty Ltd [2008] NSWWCCPD 126 | ||||
| APPELLANT: | David Belmon | ||||
| RESPONDENT: | Custom Carpets Pty Ltd | ||||
| INSURER: | Employers Mutual Indemnity (Workers Compensation) Limited | ||||
| FILE NUMBER: | WCC1788-08 | ||||
| DATE OF ARBITRATOR’S DECISION: | 11 July 2008 | ||||
| DATE OF APPEAL DECISION: | 30 October 2008 | ||||
| SUBJECT MATTER OF DECISION: | Evidence; credit issues; Arbitrator’s analysis and consideration of evidence | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Keddies Lawyers | |||
| Respondent: | Edwards Michael Lawyers | ||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s decision dated 11 July 2008 is confirmed. | ||||
| Each party is to pay his or its own costs of the appeal. | |||||
INTRODUCTION
Mr Belmon alleges that he injured his back on 5 December 2000, whilst working for a Mr Nissan, trading as Gandi Carpet Services. At that time, Mr Nissan was contracted, for the purpose of his trade or business, to Custom Carpets Pty Ltd (‘Custom Carpets’). As Mr Nissan was uninsured, Mr Belmon claimed against Custom Carpets as “the principle” under section 20 of the Workers Compensation Act 1987 (‘the 1987 Act’). I am satisfied that the pre-conditions for the application of section 20 have been met.
BACKGROUND
The matter has a long and unsatisfactory history in the Workers Compensation Commission that has resulted in three previous claims by Mr Belmon, arising out of the same facts, being either struck out or discontinued.
The present Application to Resolve a Dispute (‘the Application’) was registered in the Commission on 11 March 2008. It alleges that whilst working for Mr Nissan on 5 December 2000, Mr Belmon “noticed tension in his back which turned into sharp snapping pain. This was due to lifting and carrying more than ten rugs a day which weighed approximately 20-50 kilograms”. He sought lump sum compensation in respect of 30% impairment of his back and 20% loss of use of his left leg, together with compensation for pain and suffering under section 67 of the 1987 Act.
Whilst the Reply filed on 27 March 2008 disputed injury, employment, and whether employment was a substantial contributing factor to any injury, the case essentially revolved around whether Mr Belmon injured his back at work for Mr Nissan on 5 December 2000, or when he moved furniture at his home at about that time, as recorded in clinical notes from Fairfield Hospital dated 21 December 2000.
At the conciliation and arbitration on 26 June 2008, Mr Belmon gave oral evidence and was cross-examined. In a reserved decision, delivered on 11 July 2008, the Arbitrator found that the more likely scenario was that Mr Belmon injured his back at home and she made an award in favour of Custom Carpets.
By an appeal filed on 7 August 2008, Mr Belmon seeks leave to appeal the Arbitrator’s decision. The appeal concerns whether the Arbitrator properly analysed and considered all the relevant evidence, and whether she gave undue weight to an unsigned statement from Mr Nissan and, as a consequence, failed to determine the matter properly and according to law.
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’).
There is no dispute that quantum in issue in the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case, but the Arbitrator’s finding would result in the Mr Belmon receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
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 submission 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 11 July 2008, records the Arbitrator’s orders as follows:
“1.That there is an award for the Respondent.
2.That there is no order as to costs.”
EVIDENCE
Mr Belmon was born overseas in 1969. He came to Australia in 1998 and, he says, started work as a carpet layer for Mr Nissan on or about 20 November 2000. The work required constant bending and heavy lifting.
After working for one week, Mr Belmon started to experience “tension” in his back (Mr Belmon’s statement dated 8 October 2007, paragraph seven). He added:
“8.On 5 December 2000, the tension in my back continued during the morning and turned into sharp, snapping pain in the back region and down my left leg. It was only Gandi and I who performed the work. We were lifting approximately 10 carpets a day weighing from 20 kgs too [sic] more than 50kg[s] in weight.
9.I worked until just after lunch when I advised Gandi Nissan that I could no longer work as a result of the pain I was experiencing.
10.I had not suffered a back injury prior to my employment with Gandi Carpet Services and this was the first time I spoke to Gandi about any back pain.
11.I have seen an unsigned statement of Gandi Nissan taken on 12 April 2002 where he claims that prior to working for him I mentioned that I had a bad back. This is incorrect and if it were the case, Gandi would never have hired me as the nature of the work was extremely heavy and it was only him and I working together most of the time.
12.When I told Gandi that I needed to see a Doctor, he mentioned that he did not have insurance and not to let the doctor know that my injury was work related. He also mentioned that he was in a financially bad situation and I felt obliged to listen to him. We had a friendly relationship and I did not know the rules, so I agreed.
13.On 6 December 2000, I was continuing to experience the pain in my back and left leg and advised Gandi that I will not come to work that day.
14.On that day, I attended my family doctor, Dr Emil Guirgius and said I had been moving furniture. At the time, I did not think it was important to explain that my injury was work-related.
15.Initially Dr Guirgius recommended that I rest as he was of the opinion that it was a muscle strain however my pain continued. Dr Guirgius sent me for a CT Scan of my back and as a result recommended I undertake physiotherapy at the Fairfield Hospital.”
Mr Belmon says that he stopped working from 6 December 2000 and never returned to work with Mr Nissan. After stopping work, and with the help of physiotherapy, he noticed that his back pain seemed to improve.
On 20 December 2000, Mr Belmon attended at Fairfield Hospital where he underwent a CT scan that showed a central protrusion at L5/S1. He continued to attend Fairfield Hospital for physiotherapy and medication from December 2000 until February 2001. Mr Belmon asked Mr Nissan if he could ask Custom Carpets to pay for his physiotherapy and was told that they would not approve it. Mr Belmon also attended on a chiropractor at Fairfield for treatment on four occasions.
On 21 December 2001, Mr Belmon attended at Fairfield Hospital. The hospital notes record, so far as is relevant:
“Back pain 1/12 after lifting furniture
pain resolved
Recently started on Panadeine forte
NKA
HOPC
10/7 patient moved furniture at home
Developed back pain since increasing
in severity during past 3 days.
Seen LMO and started on Panadeine forte – advised LS CT.
Pain didn’t resolve hence presented to hospital.”
Mr Belmon first saw a solicitor on an unknown date in 2001 and was advised to tell Dr Emil Guirguis exactly what caused his back pain. He apparently did this and Dr Guirguis “was not happy as he said that Gandi was only trying to protect himself” (Mr Belmon’s statement, paragraph 23).
On referral from Dr Emil Guirguis, Mr Belmon saw Dr Teychenne on 2 March 2001. Dr Teychenne recorded the following history in his report of 2 March 2001, addressed to Dr Emil Guirguis:
“In November 2000 he was laying carpet bending over as he was laying the carpet when he developed pain over the lower lumbar spine. Two days later he noted pain extending into the left buttock and down the posterior aspect of the left thigh to the left calf.”
An MRI scan on 23 March 2001 revealed a mild disc protrusion at L4/5 compressing the left L5 nerve root and a small protrusion at L5/S1 with associated annular tear.
Mr Belmon started to look for suitable work and found employment with Workforce Handy International Pty Ltd, an employment agency, in July 2001. That company placed him with Metro Pty Ltd doing process work.
On 20 September 2001, Mr Belmon injured his neck, back, chest and abdomen in a car accident whilst being driven home from work by a friend. He attended on Dr Emil Guirguis who referred him to Dr Medhat Guirgis and Dr Teychenne. A separate claim was pursued in respect of that accident.
Mr Belmon underwent a laminectomy at the L4/5 level of his lumbar spine on 21 March 2002.
On 20 June 2003, Dr Medhat Guirgis, orthopaedic surgeon, took a history of the November 2000 work related lifting incident and concluded that it resulted in post-traumatic mechanical derangement of the lumbar area of Mr Belmon’s spine and that the car accident on 20 September 2001 resulted in a further sprain of the myofascial and ligamentous structures of the lumbar area of the spine.
Mr Belmon also relies on a report from Dr Davis, consultant in occupational medicine, dated 20 May 2004. Dr Davis recorded that Mr Belmon “bent to pick up a heavy roll of underlay at work and as he extended from this position he threw the roll over his shoulder when he experienced a sharp pain in the lower back”. He added that eventually “all his symptoms totally resolved” (page two) and he returned to work in August 2001 as a process worker. He then recorded a history of the September 2001 car accident. Under “Comment”, on page six, Dr Davis stated that there were no sciatic symptoms associated with the November 2000 incident and Mr Belmon’s symptoms resolved to the point where he was able to return to employment as a process worker. The car accident resulted in “problems in his lower back with the onset of overt sciatic symptoms and there was obvious extension of his disc protrusion”.
Mr Belmon also relies on further reports from Dr Teychenne dated 11 August 2004 and Dr Medhat Guirgis dated 22 October 2004.
Custom Carpets’ workers compensation insurer, Employers Mutual Indemnity (Workers Compensation) Limited (‘EMI’), instructed Milne & Associates Pty Ltd (‘the investigators’) to conduct an investigation into the claim in early 2002. In a report dated 15 April 2002, the investigators stated that they spoke to the managing director of Custom Carpets, Mr Gabriel, and to Mr Nissan and prepared draft statements, neither of which have been signed. Mr Gabriel stated that he wished to have his legal representative peruse the document. It is not known why Mr Nissan did not sign his statement.
Notwithstanding that the statements were unsigned, the report and the statements were admitted into evidence at the arbitration without objection from Mr Belmon’s counsel (T3.3). The factual investigation summarises the information in Mr Nissan’s unsigned statement (at pages three, four and five), as follows:
(a)Mr Nissan knew Mr Belmon as Isho Ibrahim;
(b)Mr Belmon started work for Mr Nissan’s carpet laying business in January 2000;
(c)when he initially started work for Mr Nissan, Mr Belmon mentioned that he had a sore back. There were times when Mr Belmon did not attend work as a result of his back pain;
(d)Mr Nissan paid Mr Belmon “cash in hand”, but he could not recall how much and was unable to provide any documentation to corroborate his payments;
(e)Mr Nissan did not deduct any tax from the payments he made to Mr Belmon;
(f)Mr Belmon only worked part time “when required”;
(g)Mr Belmon did not mention that he suffered a back injury whilst performing his duties for Mr Nissan;
(h)Mr Nissan terminated Mr Belmon’s employment “during the middle of 2000 due to the fact that Mr Belmon was not a reliable worker” and on many occasions did not show up for work, and
(i)there were no discussions between Mr Belmon and Mr Nissan about insurance.
Custom Carpets also relied on the histories in several medical reports that recorded different versions of the alleged incident on 5 December 2000, and its consequences:
(a)Dr Teychenne’s history in his report of 2 March 2001 that in November 2000 Mr Belmon was laying carpet bending over when he developed pain over the lower lumbar spine and noted pain down into his left buttock and down his left leg two days later;
(b)the hospital notes of 20 September 2001 that record “PMH – nil”. I assume that “PMH” refers to ‘past medical history’;
(c)Dr Medhat Guirgis’ history in his report of 9 November 2001 to Dr Emil Guirguis that, in the course of his duties as a carpet layer, Mr Belmon was “lifting a heavy carpet roll when he felt a snapping pain in his lower back”;
(d)Professor Nade’s history in his report of 2 July 2002, that Mr Belmon had been employed for about two weeks as a contractor for Custom Carpets and “towards the end of that period felt some soreness in the lower part of his back, with pain radiating towards his left leg. He said that there had been no specific incident that initiated the pain, but his job required him to lift some heavy carpets”;
(e)Dr Parameswaran’s history under “Previous Medical History” in his report of 11 October 2001, that while Mr Belmon was working as a carpet layer for two weeks “he developed low back pain at work. He says he gave up this job on the instructions of his general practitioner. He says he was taken to Fairfield Hospital and had three sessions of physiotherapy and chiropractic treatment on three occasions. He has had no further treatment for this. After some time he says the backache resolved”;
(f)Dr Khan’s history in his report dated 6 December 2001, that some time in December 2000, while doing repetitive bending and lifting when carpeting, he developed pain in the lower back over a period of “2-3 days”. He had a couple of treatments with physiotherapy, saw a chiropractor, and by “January 2000” [sic, 2001] “his back was fine”;
(g)Professor Dan’s history in his report of 31 January 2002, that Mr Belmon had a back injury in 1999 which caused pain “but that had resolved over a period of time”;
(h)Margo Doctor’s history in her Vocational Assessment Report dated 13 February 2002, that in November 2000 Mr Belmon was employed for two weeks lifting heavy carpet and experienced lower back pain. He attended a chiropractor, had physiotherapy at Fairfield Hospital and recovered after four months;
(i)Dr Marsh’s history in his report of 21 October 2004, that Mr Belmon injured his back in November 1999. There was “no precipitating incident but the pain came on at work”. He said he was working as a carpet layer, which was very heavy. He was off work a few days, had some physiotherapy and chiropractic treatment and his “pain settled completely and he had no ongoing problems. He denied having ongoing back problems at the time of the motor accident”;
(j)Dr Davis’ history in his report of 20 May 2004, that Mr Belmon “bent to pick up a heavy roll of underlay at work and as he extended from this position he threw the roll over his shoulder when he experienced a sharp pain in the lower back”. He added that eventually “all his symptoms totally resolved” and he returned to work in August 2001 as a process worker, and
(k)Dr Matheson’s history in his report of 16 March 2005, that Mr Belmon worked as a carpet layer in November 2000 when he began to get low back pain that he noticed, “when he woke in the morning”. It gradually worsened over the week of work and he was having difficulty continuing so he saw Dr Emil Guirguis. He had physiotherapy, saw a chiropractor and took medication. His condition settled over a nine-month period.
THE ARBITRATOR’S REASONS
The Arbitrator delivered a reserved decision on 11 July 2008. Because of the “credit issue” she considered it necessary to “look at the total picture including the medical reports associated with the claim for the mva later in 2001” (Statement of Reasons for Decision (‘Reasons’), paragraph 51). After setting out the medical histories in some detail, she noted and/or found:
(a)inconsistent dates of injury in the evidence (Reasons, paragraph 53);
(b)Mr Belmon had advised all but Dr Medhat Guirgis that his carpet laying injury had resolved prior to the car accident in September 2001 (Reasons, paragraph 54);
(c)at the oral hearing, Mr Belmon first said that the carpet laying injury had resolved completely and later said that such injuries never completely resolve (Reasons, paragraph 54);
(d)whilst there was no doubt that Mr Belmon injured his back some time in November or early December 2000, she found that he had “not proven his claim that the injury was employment related”. She added that “In arriving at this conclusion I have also had the benefit of seeing and hearing the Applicant during the course of the hearing” (Reasons, paragraph 59);
(e)after taking into account the fact that Mr Belmon’s English was limited in 2000, she preferred the evidence from Fairfield Hospital, which she stated was the “most compelling evidence available” (Reasons, paragraph 60);
(f)though Mr Belmon admitted that he had lied to both his general practitioner and to Fairfield Hospital, and provided reasons for his actions, she was “not entirely satisfied with those reasons” (Reasons, paragraph 61);
(g)she treated the unsigned statement from “Mr Nissan” with “some caution, [as] its contents did not corroborate Mr Belmon’s written and oral evidence in any manner except that Mr Nissan was uninsured” (Reasons, paragraph 61);
(h)in dealing with Mr Nissan’s statement (which Mr Belmon had to hand when he prepared his statement), Mr Belmon only denied that he had a bad back prior to commencing employment. Mr Belmon did not refute or challenge Mr Nissan’s assertions with respect to the lack of notification of the alleged injury, or the timeframe of employment not encompassing the alleged date of injury (Reasons, paragraph 61);
(i)she drew no adverse inference from the lack of a report or notes from Dr Emil Guirguis, nor the lack of evidence from Mr Belmon’s former solicitor who advised him to tell Dr Emil Guirguis the truth about his work injury (Reasons, paragraph 62), and
(j)the history to Dr Emil Guirguis and to Fairfield Hospital of either one or two incidents of back pain caused by moving furniture at home was, on the balance of probabilities, the more likely scenario “taking into consideration the admitted untruthfulness of the Applicant, the inconsistencies in his later histories to various doctors, and the contemporaneousness of the Fairfield evidence” (Reasons, paragraph 63).
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator:
(a)failed to provide an adequate analysis of the relevant evidence (‘analysis of the evidence’);
(b)placed undue weight on the unsigned and undated statement of Mr Nissan (referred to in the submissions and the evidence as ‘Gandi Nissan’, ‘Mr Nissan’ and ‘Mr Gandi’) and, as a consequence, wrongly rejected Mr Belmon’s evidence and failed to determine the matter, and the issue of credit, properly and according to law (‘Mr Nissan’s unsigned statement’ and ‘the credit issue’);
(c)gave reasons that were misconceived, as she placed undue weight on the unsigned statement of Mr Nissan and did not explain why that statement was preferred over Mr Belmon’s evidence (‘analysis of the evidence’), and
(d)failed to properly consider Mr Belmon’s oral evidence and his statement of 8 October 2007 (‘Mr Belmon’s evidence’).
SUBMISSIONS
Mr Belmon submits:
(a)the Arbitrator erred in law by accepting Custom Carpets’ investigative report and witness statements as reliable evidence, which she relied on in deciding not to accept his reasons for the histories recorded by his general practitioner and Fairfield Hospital;
(b)whilst the Arbitrator said that she treated Mr Nissan’s unsigned statement with “some caution”, she did not treat it with any caution at all but, in reliance upon the statement, she “negated the Applicant’s ‘written and oral evidence’”;
(c)by failing to analyse and discuss the body of the investigation report, the Arbitrator failed to provide an adequate analysis of the relevant evidence which she relied upon to dismiss his case;
(d)the Arbitrator failed to give proper consideration to the following matters:
(i)whilst Mr Nissan was being interviewed, Mr Gabriel entered the room on several occasions and interrupted the interview to speak to Mr Nissan in his native tongue;
(ii)Mr Nissan would only allow a minimal time for the statement to be taken and the investigators were unable to fully canvass all issues in the usual depth;
(iii)due to Mr Gabriel’s constant prompting, Mr Nissan only allowed minimal time for the interview, and
(iv)Mr Gabriel was less than co-operative with the investigator, stating that the interview was pointless. As a result, the investigator was unable to canvass the issues in the usual depth.
(e)the investigator’s report and the statements were unreliable and should have been given no weight because they were unsigned and because of the manner in which they were given;
(f)the Arbitrator did not provide an adequate analysis of Mr Nissan’s unsigned statement in the context of the investigator’s report. She failed to address, discuss or analyse the body of the report in any detail. If she had, the statement would have been given no weight;
(g)the Arbitrator failed to give a clear explanation of the reasons why she preferred the facts asserted in Mr Nissan’s unsigned statement over Mr Belmon’s evidence;
(h)by placing undue weight on the unsigned statement, the Arbitrator did not accept Mr Belmon’s version of events;
(i)the Arbitrator failed to properly consider and analyse Mr Belmon’s statement of 8 October 2007 and incorrectly said (at paragraph 61 of her Reasons) that “Mr. Belmon in his written statement makes no other comment with respect to Mr. Nissan’s statement (which he had to hand) other than that he did not mention to Mr. Nissan that he had a bad back prior to commencing employment”. In fact, Mr Belmon made several comments refuting and challenging Mr Nissan’s assertions as to injury, prior back pain and why he ceased work:
(i)at paragraph nine of his statement, Mr Belmon said “I worked until just after lunch when I advised Gandi Nissan that I could no longer work as a result of the pain I was experiencing”;
(ii)at paragraph 10 of his statement, Mr Belmon said “I had not suffered a back injury prior to my employment with Gandi Carpet Services and this was the first time I spoke to Gandi about any back pain”;
(iii)at paragraph 18 of his statement, Mr Belmon said “My employment was never terminated. I never received a letter of termination. I only stopped working for Gandi Carpet Services due to my back pain”.
(j)the Arbitrator ignored this evidence and this omission led the Arbitrator to incorrectly prefer the assertions of fact in Mr Nissan’s unsigned statement over Mr Belmon’s written and oral evidence and she failed to properly consider or even address his explanations for the histories recorded by the general practitioner and Fairfield Hospital, and
(k)the Arbitrator erred in finding against Mr Belmon on credit by failing to properly consider and analyse the relevant evidence and by placing undue weight on an unsigned statement.
Custom Carpets submitted to the Arbitrator that she would not accept Mr Belmon as a witness of truth (T27.45 and T31.36), would not be satisfied that Mr Belmon had discharged the onus of proof (T27.54), and there ought to be a finding that he suffered no injury (T36.22).
On appeal, Custom Carpets submit:
(a)the Arbitrator’s decision articulates her relevant factual considerations, her balancing of the relevant evidence and the process she applied in coming to the decision she made;
(b)the law to be applied to unsigned statements is that such statements may be the subject of an objection by a party so as to preclude it from being admitted into evidence. However, once admitted without objection it can be used by the decision maker for all purposes;
(c)reliance is placed on the decision of Arbitrator Charlton in Hadaway v Armstrong Solicitors & anor (unreported 7 June 2005 No. 553 of 2005);
(d)counsel for Mr Belmon did not object to the tender of the factual investigation “notwithstanding the fact that the statements are unsigned and undated” (T3.7);
(e)the investigator’s report and the unsigned statements were admitted into evidence, no doubt, as Mr Belmon’s counsel saw a forensic purpose in doing so, namely, resolving the question of worker. However, once in evidence the whole of the contents of the statements were before the Arbitrator for all purposes;
(f)the Arbitrator had the advantage of hearing Mr Belmon give oral evidence, both in chief and in cross-examination. She noted numerous inconsistencies in Mr Belmon’s case and, after having seen and heard him, she concluded that she did not accept his evidence. The Arbitrator was in the best position to determine issues of credit and the appeal process should not be used to overturn such an important decision, and
(g)the Arbitrator correctly considered all of the probative evidence before her and applied caution where necessary and articulated her reasons in a concise logical form.
DISCUSSION AND FINDINGS
Analysis of the Evidence
The Arbitrator carefully considered the issues and the evidence and gave detailed reasons for not accepting Mr Belmon’s claim. The Arbitrator did not accept the investigator’s report and the unsigned statements as “reliable evidence”, as Mr Belmon has submitted. She treated that evidence with “some caution” (Reasons, paragraph 61). That was essentially the approach submitted by Mr Belmon’s counsel, who urged her to treat Mr Nissan’s unsigned statement with “great caution” (T38.14).
Mr Belmon’s counsel appears to have made a forensic decision to not object to the admission of the unsigned statements. Once they were admitted, however, the Arbitrator was entitled to consider them and give them such weight she considered appropriate in the circumstances. Those circumstances included the unsatisfactory circumstances referred to by Mr Belmon at [33(d)] above, and noted by the Arbitrator at paragraph 46 of her Reasons. Mr Gabriel’s apparent interference with the interview process, the limited time allowed for the interview, and the fact that Mr Nissan’s statement was unsigned, all seriously diminished the weight to be attached to the assertions in it.
Nevertheless, the Arbitrator did not rely solely, or even mainly, on Mr Nissan’s unsigned statement as the basis for not accepting Mr Belmon’s reasons for giving what he now alleges was a false history to Dr Emil Guirguis and Fairfield Hospital. There were many reasons for not accepting Mr Belmon’s evidence:
(a)he failed to reliably establish a date of injury;
(b)he gave several inconsistent versions as to how he allegedly injured himself while working for Mr Nissan (see [30] above);
(c)contrary to his assertion in the present claim, he gave several histories to doctors in the car accident claim that he had fully recovered from the effects of the alleged injury with Mr Nissan (see [30] above);
(d)the hospital notes dated 20 September 2001 recorded his past medical history to be “nil” and made no reference to the alleged work injury;
(e)the Fairfield Hospital notes recorded two episodes of pain prior to his attendance on 21 December 2000. First, pain “1/12 after lifting furniture”, which resolved and, second, “10/7 patient moved furniture at home developed back pain since increasing in severity during past 3 days”. Notwithstanding these entries, Mr Belmon gave oral evidence that he only had one injury (T15.58 –16.2) and that that injury occurred while working for Mr Nissan, and
(f)Mr Belmon claimed in his statement that as a result of the CT scan on 20 December 2000, Dr Emil Guirguis recommended that he undertake physiotherapy at Fairfield Hospital (Mr Belmon’s statement, paragraph 15). The hospital notes do not indicate that he attended for physiotherapy, but merely state that he presented with back pain that had increased in severity over the past three days.
These matters seriously diminished the reliability of Mr Belmon’s story and provided a sound and proper basis on which the Arbitrator was entitled to conclude that he had not proven his case (Reasons, paragraph 59).
Given the inconsistencies and other matters referred to at [38] above, the Arbitrator was entitled to find against Mr Belmon and that was especially so in the absence of any corroboration of his claims. The Arbitrator correctly observed that the contents of Mr Nissan’s unsigned statement did “not corroborate Mr. Belmon’s written and oral evidence in any manner except that Mr. Nissan was uninsured”(Reasons, paragraph 61).
On the issues of notification of the alleged injury and why Mr Belmon ceased work, there was a clear conflict between Mr Belmon and Mr Nissan. It is correct that Mr Belmon only expressly dealt with Mr Nissan’s statement about prior back pain (which Mr Belmon denied), but other parts of his statement clearly took issue with Mr Nissan on all other matters, save for non-insurance. To the extent that the Arbitrator did not acknowledge that fact, she erred.
However, a close analysis of Mr Belmon’s statement reveals that, in respect of the alleged notification of injury, he merely said that he advised Mr Nissan that he could no longer work as a result of “the pain” he was experiencing (Mr Belmon’s statement, paragraph nine). He did not state that he reported a work injury to Mr Nissan and he did not give any description of how the pain occurred.
In respect of the “timeframe of the employment not encompassing the alleged date of injury”, Mr Belmon’s statement did engage that issue, but not by a direct reference to Mr Nissan’s statement. He referred to commencing work for Mr Nissan on or about 20 November 2000 and not returning to work because of his injury. However, other than this bald statement, he offered no cogent reason as to why his assertion should be accepted or would be likely to be accurate. In light of the other significant credit issues involved in the case, the Arbitrator’s error on this issue is of no consequence, as it makes no difference to the end result.
It follows, for the reasons stated above, that I do not accept that the Arbitrator’s reasons were misconceived or that she placed undue weight on Mr Nissan’s unsigned statement. The case was not as simple as Mr Belmon’s submissions suggest: it was not simply a matter of preferring Mr Nissan or Mr Belmon, and the Arbitrator (correctly) did not approach it on that basis. A proper assessment of the claim required an assessment and consideration of all of the evidence, in particular the medical histories, which were, in many respects, inconsistent with Mr Belmon’s claim.
Save for the matter mentioned at [41]above, the Arbitrator assessed all the relevant evidence and concluded that Mr Belmon had not made out his case. She clearly stated the reasons for her findings on the critical issue (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (at 270) per Mahoney JA (at 280) per McHugh JA) and those reasons were sound. Her conclusion was open on the evidence and I firmly agree with it.
Mr Nissan’s Unsigned Statement
Mr Belmon’s counsel chose not to object to Mr Nissan’s statement, but submitted that the Arbitrator would not be swayed by it and would treat it with “great caution”. The Arbitrator adopted that caution and did not base her decision on Mr Nissan’s unsigned statement, though she did refer to it. Instead, she properly assessed the case in the light of all the evidence (the “total picture”, Reasons, paragraph 51).
Mr Nissan’s evidence was only one piece of evidence in what was an unconvincing and inconsistent story by Mr Belmon. Had Mr Nissan’s evidence been excluded, the Arbitrator would still have been entitled to find in favour of Custom Carpets on the basis that, in light of the inconsistencies noted above, she was not satisfied that Mr Belmon had established his case. In conducting this review, I have placed little weight on Mr Nissan’s unsigned statement, save to observe, as did the Arbitrator, that it provided no corroboration of Mr Belmon’s assertions.
The Credit Issue
I do not accept that the Arbitrator failed to determine the matter of credit properly or according to law. She considered the evidence in detail. She explained why the “credit issue” required her to “look at the total picture including the medical reports”. She reached her conclusion having had the benefit of seeing and hearing Mr Belmon give oral evidence. Though Mr Belmon gave reasons as to why he had lied to Dr Emil Guirguis and Fairfield Hospital, she was “not entirely satisfied with those reasons”. That conclusion, with which I agree, was open to her and is not displaced by any other evidence that demonstrates it to be plainly wrong or contrary to incontrovertible facts or uncontested evidence (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118).
The only incontrovertible fact in this case is that, by 20 December 2000, Mr Belmon’s CT scan revealed pathology in his low back. There are no incontrovertible facts, however, as to the cause of that pathology.
Mr Belmon’s Evidence
I do not accept Mr Belmon’s submissions on this issue. The Arbitrator referred to Mr Belmon’s evidence in detail and correctly observed that the only contemporaneous evidence submitted by him in support of the alleged injury being work related was “self reported” (Reasons, paragraph 23). The other contemporaneous evidence was from Fairfield Hospital, which was contrary to Mr Belmon’s assertions. She referred to Mr Belmon’s claim that he acted on the advice of Mr Nissan, who was uninsured and in financial difficulty, and that his English was poor and that he did not understand his entitlements.
She then referred to Mr Belmon’s oral evidence, noting that he insisted that he experienced only one instance of back pain rather than the two noted by Fairfield Hospital and that after some treatment the pain resolved and went away completely prior to the car accident in September 2001 (Reasons, paragraph 28 and T19.15). Mr Belmon later denied that his pain went away completely (T21.12).
She then considered the substantial body of other evidence dealing with the alleged circumstances of the injury in November/December 2000 and whether or not Mr Belmon had recovered from that injury (Reasons, paragraphs 33 to 45). She also noted the circumstances in which the unsigned statements were taken (Reasons, paragraph 46) and that Mr Nissan and Mr Gabriel were family friends as well as business associates.
The Arbitrator correctly observed that Mr Belmon carried the onus of proving his claim (Reasons, paragraph 49) and that there were “serious inconsistencies” (Reasons, paragraph 50). Those inconsistencies raised significant doubts about the veracity of Mr Belmon’s claim and the weight to be attached to his evidence. The Arbitrator then referred to and dealt with those inconsistencies and concluded that she preferred the “contemporaneous evidence of Fairfield Hospital” as it was “the most compelling evidence available” (Reasons, paragraph 60). That conclusion was open to the Arbitrator and I agree with it.
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 am firmly of the view that the Arbitrator reached the correct conclusion. This is a case in which Mr Belmon’s credit was squarely challenged at the arbitration and the Arbitrator expressly acknowledged as much by her reference to the “credit issue” at paragraph 51 of her Reasons. Mr Belmon admitted that he gave false histories to both Dr Emil Guirguis and to Fairfield Hospital as to how he injured his back in November or December 2000. In such circumstances the Arbitrator was entitled to assess his evidence with some care to determine if it could be properly accepted. She did that by looking at the “total picture” and she concluded that there were other inconsistencies in Mr Belmon’s case such that she did not accept he had proven his case. I agree.
DECISION
The Arbitrator’s decision dated 11 July 2008 is confirmed.
COSTS
Each party is to pay his or its own costs of the appeal.
Bill Roche
Deputy President
30 October 2008
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.
ASSOCIATE
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