Beto v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Beto v Workers Compensation Nominal Insurer (iCare) & Ors [2022] NSWPIC 533
APPLICANT:	Fredon Beto
FIRST RESPONDENT:	Fahkri Mansour
SECOND RESPONDENT:	Workers Compensation Nominal Insurer
PRINCIPAL Member:	Josephine Bamber
DATE OF DECISION:	27 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and lump sum compensation for injury alleged to have happened on 11 September 2019 at a property rented by first respondent and in the employ of the first respondent; conflicting witness statements and histories in medical records as to where injury occurred; Held – awards for first and second respondents because the applicant did not discharge his onus of proof that injury occurred at the property rented by the first respondent; findings that the applicant and various witnesses’ evidence was unreliable due to inconsistencies; Nguyen v Cosmopolitan Homes applied.
determinations made:	Award for the first and second respondents.

STATEMENT OF REASONS

INTRODUCTION

Fredon Beto, the applicant, alleges that he was employed by the first respondent, Fahkri Mansour, to replace plastic on greenhouses when on 11 September 2019 he slipped from a ladder and fell approximately three metres to the ground, landing on his back.
In these proceedings Mr Beto claims weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) and lump sum compensation in relation to injuries to his lumbar spine and thoracic spine pursuant to s 66 of the 1987 Act.
The Application to Resolve a Dispute (ARD) was amended to delete the reference to the claim for weekly compensation commencing on 8 September 2019 and amend that date to
8 September 2020.
The first respondent did not have a workers compensation policy as at 11 September 2019[1]. Accordingly, Mr Beto has made a claim against the second respondent pursuant to
[1] See AALD-1.
s 140(1)(a) of the 1987 Act. There is no evidence as to whether Mr Mansour is an exempt employer under s 155AA of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/ arbitration hearing before me on
12 May 2022. Mr Ross Stanton, counsel, instructed by Mr Zac Gabriel, solicitor, appeared for Mr Beto, who was present. Mr Fraser Doak, counsel, instructed by Mr Tim Ainsworth, solicitor, and Ms Barnsley from the Workers Compensation Nominal Insurer appeared for the second respondent. The proceedings were conducted on the MS Teams platform due to the COVID-19 situation.
Mr Beto’s solicitor has filed a Certificate of Service confirming that the ARD had been served on the first respondent. At my request the Personal Injury Commission (the Commission) wrote to the first respondent on 26 April 2022 to advise him of the conciliation/arbitration hearing date and I am advised the Commission has not received any communication from him. Additionally, the second respondent’s solicitor confirmed that his office had written to the first respondent to advise him of the telephone conference date and this conciliation/arbitration date and also provided him a copy of the pleadings. Despite these steps there has been no appearance by the first respondent.
A sound recording was made of the arbitration hearing, which is available to the parties. An issue arose during the hearing in relation to the calculation of the pre-injury average weekly earnings (PIAWE). Also the second respondent’s submissions could not be given in the available time. Therefore, directions were made regarding the filing of written submissions in relation to the PIAWE calculation, for the respondent’s submissions and submissions by
Mr Beto in reply.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Certificate of service;
(c)    Reply and attached documents;
(d)    Application to Admit Late Documents (AALD-1) dated 16 May 2022 filed by the second respondent attaching a statement of Mr Mansour dated 13 May 2020, insurance policy searches, email correspondence and s 78 notice dated 23
June 2020;
(e)    Application to Admit Late Documents (AALD-2) dated 30 May 2022 filed by the applicant attaching a further statement of the applicant dated 20 May 2022 and submissions in relation to PIAWE calculation dated 30 May 2022, and
(f)    Application to Admit Late Documents (AALD-3) dated 17 June 2022 filed by the second respondent attaching an email dated 15 June 2022 and annexures and submissions dated 17 June 2022.
It is noted that the direction for submissions made by me included a direction for the applicant to file submissions in reply to those of the second respondent, however I have been advised by the Commission that no such submissions were filed.

Oral evidence

There was no oral evidence.

ISSUES TO BE DETERMINED

There are a number of factual issues to be determined including the following:
(a)    was Mr Beto at the cucumber farm at Rossmore on 11 September 2019;
(b)    If so, was he performing work for Fakhri Mansour, and
(c)    was Mr Beto injured in the course of employment with Fakhri Mansour.
To determine these factual issues it is necessary to closely consider the evidence from a number of lay persons including from:
(a)    Mr Beto;
(b)    Marin Hermiz, Mr Beto’s wife;
(c)    Marwan Barkho, the man who Mr Beto says took him to the farm, introduced him to the employer and drove him home after the injury at the farm;
(d)    Fahkri Mansour, the alleged employer;
(e)    Sabeh Elazzi, the owner of the cucumber farm at 5 Wynyard Avenue Rossmore, and
(f)    Fadi Ochana, Mr Beto’s cousin who says he helped Mr Beto out of Mr Barkho’s van and spoke to the ambulance and hospital staff.
Also relevant are the contemporaneous documents from the Ambulance Service and Liverpool Hospital which have an account of him being injured at home.
If these issues are determined in Mr Beto’s favour, it is then necessary to calculate his entitlement to weekly compensation. There is an issue in relation to the calculation of the PIAWE figure.

FINDINGS AND REASONS

Mr Beto’s statements

On 18 February 2020 Mr Beto signed a claim form[2]. It is written in English, so it is not clear to me if he or someone else completed it because he does not speak English. The claim form says the employer is “unknown” and states the injury happened on 11 September 2019 at 12:00pm and it was reported to “Marwan, a driver”.
[2] ARD p 26.
On 4 March 2020 Mr Beto signed a claim form for the uninsured liabilities scheme[3]. He gives the employer’s name as “Fakhir”. This form was also completed in English and witnessed by Dr Amir.
[3] ARD p 32.
Mr Beto has provided several statements including dated 29 May 2020[4], 9 April 2021[5],
11 November 2021[6] and 20 May 2022[7]. In his first statement he states it was made with the assistance of an Assyrian interpreter as he does not speak English. He says his uncle, Naim Beeto, who has now died, had introduced him to Marwan Barkho. Mr Beto says it was
[4] ARD p 1.
[5] ARD p 8.
[6] ARD p 10.
[7] AALD-3 p 4.
Mr Barkho who informed him that there were jobs at the cucumber farm at 5 Wynyard Avenue, Rossmore.
He says the first day that he went to the cucumber farm was on 11 September 2019 and
Mr Barkho drove him there. He says Mr Barkho told him that Fakhri would pay him $12 per hour. At [49] he says that Mr Barkho introduced him to Fakhri and then he left.
At [35] of this statement Mr Beto says he only saw Fakhri that day, which was the day he had his injury. At [37] he provides a physical description of Fakhri. The investigator states in his report that “although this description is basic it loosely matches Fakhri Mansour who we have interviewed”[8]. At [41] he says that Fakhri told him to write down his hours and that he would pay him for the hours. Mr Beto says on that day he was supposed to work until 3pm and he arrived at 8.30am to 9am. At [43] Mr Beto states that Fakhri said to him that he would see how he worked and then he will determine if he will give him more work. He says Fahkri told him about the job and what he had to do, that he had to go and fix the plastic on the greenhouse.
[8] ARD p 132 [2.10].
At [47] Mr Beto says that Fakhri gave him the ladder and “and he showed us and then we go”. At [52] Mr Beto says the ladder was a straight ladder, which could be extended. He says he went up the ladder and his foot slipped, and he fell onto his back. He said he slipped on the plastic and there was nothing to hang onto. He said he was on the roof on the plastic when he fell. He said he feel about 2.5m to 3m to the ground.
Mr Beto says when he was on the ground he called out Marwan’s name. He said he asked for them to call an ambulance, but Fahkri said they could not and said for them to take him home. Mr Beto says he was put into a van and Marwan drove him home. He states that Marwan does not speak English and does not know how to call an ambulance.
At [66] Mr Beto says when he got home his wife called an ambulance and he went to hospital. He said he has tried to ring Marwan, but he has not taken his call. He says he has not seen Marwan or Fahkri since that day.
In his second statement he says at [9] on 11 September 2019 he was due to start his first day of work at 660 Twelfth Avenue Austral at a cucumber farm to repair greenhouses. He says he had been working for two hours when he fell and gives a similar version regarding the fall to his earlier statement. He says the boss and two work colleagues witnessed his fall and the boss asked a work colleague to take him home and refused to call an ambulance. He again says his wife called an ambulance from his home.
In his third statement Mr Beto states he has been informed that the ambulance and hospital records say he fell at home and hit his head on concrete. Mr Beto says this is not correct. He explains that he did not speak to the ambulance officers or hospital staff as he does not speak English. He says his cousin, Fadi Ochana, called and spoke to the ambulance people. He says his wife called Mr Ochana and he came to his house, and it was he who rang the ambulance as Mr Beto and his wife do not speak English.
In this third statement Mr Beto says when he and Mr Barkho arrived at the farm they had to wait a bit for Fakhri to arrive. He says Fakhri spoke to Mr Beto in Assyrian and said that he would pay him cash, $12 per hour to change the plastic on the greenhouses and he would need to use the ladder.
Mr Beto says when he fell Mr Barkho came to the scene and he called Fahkri, and he came within five minutes. Mr Beto says that Fahkri said to him that since he was not registered to work for him he could not tell anyone that he had the accident while working at the farm.
Mr Beto says Fahkri told him he had to tell people he had the accident elsewhere and that he could be in trouble if someone found out he was working for cash.
Mr Beto says he used Mr Barkho’s phone on the way home in the van to ring his wife to tell her what happened. He said she was at their home having coffee with their cousin Mariam Ochana and a friend. Mr Beto says when he arrived home Fadi Ochana was there, and he and Mr Barkho helped him out of the van. Mr Beto says he is not sure if it was his wife or
Mr Ochana who spoke to the ambulance people. He says he did not tell his wife to tell anyone he had not fallen at the farm. He said he did not speak to Mr Ochana about what happened. He says he went in the ambulance with his wife, but he did not talk to the ambulance officers, and he is unsure if his wife did. Mr Beto says when he arrived at the hospital he did not speak to the staff, and he does not know if his wife did.
Mr Beto says after he was discharged from hospital he saw Dr Amir, his general practitioner. He says he spoke to the doctor in Arabic, and he has been told the doctor recorded the fall happened on 16 September 2019 but that is not correct as he came out of hospital that day, and he fell on 11 September 2019. This third statement records it was made with the assistance of a NAATI interpreter.
In his final statement Mr Beto sets out his employment history. He refers to his work in Syria on a farm, migrating to Australia on 30 January 2015 on a refugee visa and becoming an Australian Citizen on 21 September 2021. Mr Beto commenced work with King furniture in July 2015 as a French polisher working 20 hours per week, earning $440 net per week. He was also in receipt of Centrelink payments of about $7 per fortnight. He says he ceased work on 23 December 2018 as he felt he was not being paid enough for the work he was doing. He then received Centrelink job seeker and was looking for work but had limited English skills.
He says when he was offered the work at the cucumber farm he understood he would work on a part time basis up to 20 hours per week. He said he was hoping the job would be long term and he wanted to work in a full time job.
He says since his accident at the beginning of 2021 he recommenced English classes online and he has received job seeker payments from Centrelink. He says he has not been able to look for work due to his injuries.

Marwan Barkho’s statements

Mr Barkho has given a statement dated 15 November 2021 using a NAATI interpreter. He says prior to 11 September 2019 he had known Fakhri Mansour for a number of years and he had done casual work for him picking cucumbers. He says Mr Mansour asked him to find some young people to do work on the greenhouses and so he asked Mr Beto. He says he picked Mr Beto up in the morning on 11 September 2019 and took him to the farm. They waited and Mr Mansour arrived, and he introduced Mr Beto to Mr Mansour. He says
Mr Mansour told Mr Beto he would pay him $12 per hour and he showed Mr Beto what work he needed him to do. Mr Barkho says he then went and had coffee elsewhere on the farm and he was not present during all of the discussions between Mr Beto and Mr Mansour.
He says he went and saw Mr Beto on the ground after his fall as did Mr Mansour. Mr Barkho said he did not call an ambulance as he does not speak English and he did not know how to do it. He says Mr Beto felt a bit better and asked if he could take him home in his van.
Mr Barkho says he made a statement dated 3 March 2020 which was witnessed by
Mr Beto’s wife, Marin Hermiz. He says he also made a statement to the insurance investigator, but he does not recall signing that statement. He says he has been told there are inconsistencies in his statements, and he says this is due to his lack of English.
The statement dated 3 March 2020 is on the letter head of “icare uninsured liabilities”.
Mr Barkho says “I was driving on another side of the Plastic House when I heard Fredon fall. I heard the noise and went to see and saw him on the floor…Fredon Beto was unconscious and was unable to move, was on his back”.
In an unsigned statement said to have been made on 22 April 2020 to the Workers Compensation Nominal Insurer’s investigator, Mr Barkho says he doesn’t work at the cucumber farm, and he goes there to get together with friends he has there. He says he knows Mr Beto through his uncle who is in Sweden, and he introduced Mr Beto to go and work at the farm. He says he was at the farm on 11 September 2019, but he did not see
Mr Beto fall as he was having coffee at the time. He said he heard he had a fall and went to help him. He said on the day of the injury Mr Mansour was supposed to pay Mr Beto and he thought Mr Mansour employed three to four people. He said he took Mr Beto home after his fall. He says he thought Mr Beto worked for a couple of hours before his fall.

Marin Hermiz’s statement

Ms Hermiz is the wife of Mr Beto. She has provided a statement dated 14 November 2021 which she says was given with the assistance of a NAATI accredited interpreter. She describes Mr Beto going with Mr Barkho on 11 September 2019. She says she was at a friend’s house, Najah Yousef and her cousin Marian Ochana was there as well. She said
Mr Beto telephoned and told her he had had an accident at work, but he was scared to say that is where the accident happened as he was not registered. Ms Hermiz says she called her cousin, Fadi Ochana, Mariam’s brother. She said Mariam did not speak much English. She said she told Mr Ochana what Mr Beto had told her and asked him to ring an ambulance. She states she told Mr Ochana to say the accident happened at home as she was worried her husband would get into trouble. She says Mr Ochana came to her home and from there called an ambulance.
She says her husband did not ask her to tell the ambulance people he fell at home instead of at work. She says she did not talk to the ambulance people, but Mr Ochana did. She says when she travelled in the ambulance with her husband she had a small conversation with the ambulance officers but not about how the accident occurred.

Fadi Ochana’s statement

Mr Ochana has provided a statement dated 29 September 2019[9]. He says he speaks good English as well as Assyrian and Arabic. His first cousin is Fredon Beto. He states on
[9] ARD p 18.
11 September 2019 he received a call from Ms Hermiz who said she was visiting a friend with his sister Mariam. He says Ms Hermiz told him that Mr Beto had been involved in an accident and needed an ambulance. He says he drove straight to Mr Beto’s home which was nearby.
After he arrived Mr Beto arrived in Mr Barkho’s van, and he helped Mr Beto out of the van, and they placed him on the concrete driveway on his back. He said Mr Beto was in excruciating pain and they did not talk. He says he then rang the ambulance and they asked what happened. He says he asked Ms Hermiz what happened, and she said to say Mr Beto was helping her with cleaning and was on a ladder and fell down. He said he told this to the ambulance people.
Mr Ochana said he went to the emergency department of Liverpool Hospital and stayed with Mr Beto and Ms Hermiz and assisted with the interpreting. He was asked by the hospital people what happened, and he says he told them what he had told the ambulance people.
Mr Ochana says a couple of days later when he was visiting at the hospital Ms Hermiz told him that Mr Beto had fallen off a ladder at the cucumber farm. He said he understood
Mr Beto was in receipt of Centrelink benefits and the work at the cucumber farm was on a cash basis. He said Ms Hermiz said they were scared and confused which is why she had told him to say Mr Beto fell from a ladder at home. Mr Ochana said he got upset and was angry that they made him tell a lie to the ambulance and hospital staff.

Fakhri Mansour’s statement

Mr Mansour gave a statement dated 1 June 2020 to the Workers Compensation Nominal Insurer’s investigator with the help of an Assyrian speaking friend[10]. Mr Mansour says he does not speak English. He states that he rents greenhouses at Rossmore, and he has to repair them. He says the business is a failure and the sale price of a box of cucumbers makes it not worth it as sometimes it does not cover his costs.
[10] ARD p 108.
In a statement said to have been made on 24 April 2020 but signed on 13 May 2020 given to the Workers Compensation Nominal Insurer’s investigator, Mr Mansour denies he was at the farm on 11 September 2019 and says he was not working that day[11]. He says Mr Barkho was working for him that day. He says he was unaware that Mr Barkho had asked Mr Beto to help him repair the greenhouses. At [32] he states “I do not really know what happened only that something happened and Marwan called me on the phone and told me. [33] The injured man was supposed to have fallen off the roof of the greenhouse. I do not know how it happened”. He denied employing Mr Beto.
[11] AALD-1 p1.

Sabeh Elazzi’s statement

Mr Elazzi in his statement to the Workers Compensation Nominal Insurer’s investigator dated 30 May 2020 says he operates the farm at 5 Wynyard Avenue Rossmore, and he owns the land. He says he rents out some of the greenhouses to Fakhri Mansour which he estimates at 10. He says Mr Mansour uses them to grow cucumbers and zucchinis and he is responsible for the repairs to the plastic on the greenhouses. Mr Elazzi says he knows
Mr Barkho who does some paid casual work for him. He says he does not think he
[12] ARD p 113.
(Mr Elazzi) was at the farm when Mr Beto fell, and the farm is five acres, and he may not hear about it. He denied ever meeting or knowing Mr Beto. At [23] he states, “it was about two to three days after the incident that Fakhri said to me that something happen to that man, but I do not recall now what was told to me[12]”.

Ambulance records

The Ambulance record states:
“fall from ladder O/A: 42yo male lying prone on concrete in driveway surrounded by family. NESB- via family interrpreting [sic] on scene- pt was standing on top rung of step ladder- approx 1.5m high, pt states foot slipped and he fell backwards stiking [sic] head on concrete- nil LOC, wife witnessed states pt was screaming immediately. family dragged pt from fallen position to under shade.[13]”
[13] ARD p 100.
The entry also states he denied cervical spine pain on palpation, and he denied pain/sensory deficit to legs. So it appears there must have been some communication with Mr Beto, albeit via a family member interpreting. The examination report noted he was “verbal- orientated” and “motor-obeys commands”. At all times he had a Glasgow Coma Score of 15, which is a normal score.
The ambulance report says the call was received at 12:20pm.

Liverpool Hospital records

It is noted on admission the history of the presenting complaint was “fell backwards from ladder at approx. 10am this morning, mechanical fall- nil dizziness/ lightheadness prior, approx. 1.5m high, associated head strike, nil LOC or acute confusion…was sitting prone when ambulance arrived”[14].
[14] ARD p 198.
In the notes, under “Level II Trauma,” a similar history is recorded noting he recalled all events[15]. In progress notes made on 11 September 2019 at 13:30 it is noted “NESB communicating with family[16]” and at 15:23 the nurse recorded “Story- 42 Y M BIBA from home, was standing on a step ladder 1.5m cleaning windows, has missed the step and fell backwards and hit the back of his head…”[17] On 12 September 2019 the progress note included a reference to “GCS 14/15 due to language barrier”[18]. GCS is Glasgow Coma Score. Also, on 12 September 2019 at 16:57 there is reference to the family being present and translating[19]. On 13 September 2019 it is noted “NESB- Arabic, family assisting with translation, patient speaks some broken English”[20].
[15] Reply p 12.
[16] Reply p 29.
[17] Reply p 22.
[18] Reply p 27.
[19] Reply p 28.
[20] Reply p 33.
On 17 September 2019 an occupational therapy assessment was recorded including that
[21] Reply p 48.
Mr Beto and his wife were receiving Centrelink benefits. Under the heading “employment status” it recorded “Unemployed; previously employed until late 2018, left due to left shoulder injury[21]”.

General Practitioner notes

On 20 September 2019 Mr Beto saw Dr Mazin Amir who recorded the entry that “had a fall on his back 16/9/19. Result in rib fracture and spinal fracture. T10, T11, L1 fracture left 7 rib fracture displaced and comminuted. Stay in hospital for few day. Now on TLSO brace”.[22] A referral was given to see Dr Abraszko, neurosurgeon[23]. The entry by Dr Amir does not refer to where the fall occurred, nor does he state this in his referral to Dr Abraszko. On 27 October 2019 Dr Amir refers to the injuries and states he issued a Centrelink Medical Certificate[24]. The Centrelink certificate of that date does not specify how or where Mr Beto injured himself.[25]
[22] ARD p 292.
[23] ARD p 317.
[24] ARD p 293.
[25] ARD p 318.
On 4 November 2019 Mr Beto saw Dr Benjamin Touma who has recorded “fall at work… advised to contact lawyers[26]”. This seems the first mention of a fall at work. However, it seems Mr Beto had consulted lawyers before then because in the Safe Work NSW records there is a copy of an email dated 31 October 2019 from Taylor Cull from Turner Freeman solicitors, copying in Juliana Nikolovski-Jimenez from Turner Freeman solicitors[27]. The records state the address originally given was 600 Twelfth Avenue Rossmore and it was changed to 65 Wynyard Ave Rossmore.
[26] ARD p 106.
[27] ARD p 50.

Dr Abraszko

Dr Abraszko is Mr Beto’s treating neurosurgeon. She saw him on 13 November 2019 with his wife and interpreter and in her report of that date records he had a fall from a ladder at work on the first day. She diagnosed a T10 spinous process fracture and wedging at T11 and compression fracture at L1. On 23 January 2020 the doctor reviewed Mr Beto and stated “he is working doing polishing, and this job requires frequent bending and lifting[28]. He is not fit for work for about 3 months”. It is not clear to me that the doctor meant he had been working doing polishing or rather his history was that he previously worked doing polishing.
[28] ARD p 194.
On 27 February 2020 Dr Abraszko reported that he was not fit to work as a polisher for three months[29]. He no longer needed to wear a brace. He was not fit to lift, bend or twist his lumbar and thoracic spine for another three to four months. She stated he was unfit to work. She thought his condition would gradually improve.
[29] ARD p 195.
On 15 July 2020 Dr Abraszko noted he had back pain and difficulties sitting. He also had difficulties lifting both shoulders above shoulder level. The doctor did not comment if this was accident related. I note Mr Beto had shoulder issues pre- the subject injury. A further report dated 20 August 2020 noted an MRI of the lumbar spine showed disc desiccation and slight instability at L4/5 and she said this was the reason for his pain[30].
[30] ARD p 242.
On 1 March 2021 Dr Abraszko provided a medico-legal report in which she does not deal with the pre-injury history of shoulder problems and appears to attribute them to the fall on
[31] ARD p 126.
11 September 2019. She also states before the injury Mr Beto was working doing polishing but does not record that he ceased that work. Mr Beto says in his first statement he stopped that work on 23 December 2018 and in his second statement he says his work at King French Polishing was doing carpentry work, although in his unsigned statement he says he did furniture polishing[31]. She also noted he should not undertake frequent twisting, lifting from the floor to waist level or lift more than 7kg or at waist height 10kg.
The records from Myhealth Edensor Park record Mr Beto had shoulder impingement syndrome on 5 November 2015[32]. There are also records in 2018.[33]
[32] ARD p 286.
[33] ARD p 286.

Dr Davies

Dr Davies, neurosurgeon, provided a medico-legal report for Mr Beto dated
[34] ARD p 222.
30 September 2020[34]. The report does not assist my determination of the liability issues as it was given long after the events in question. Dr Davies has a history of the accident happening when working on the greenhouses and he was taken home and his wife called the ambulance. He diagnosed fracture of the T10 spinous process and compression fractures at T11 and L1. Dr Davies states Mr Beto has difficulty with lifting and bending activities and he can only manage to walk for 30-40 minutes and tolerate sitting for one to one and a half hours before he has to move due to pain. His sleep is disturbed due to pain.
Dr Davies found Mr Beto unfit to undertake any work at that time. He stated he will not be able to return to the type of work on the day of the injury or to his previous work as a furniture polisher or farm work. The doctor found if further treatment led to improved functional capacity he might be able to return to some suitable duties but would need retraining in alternate light duties.

Dr Bentivoglio

Dr Peter Bentivoglio provided a medico-legal report for the Workers Compensation Nominal Insurer dated 9 December 2020. The doctor records a history from Mr Beto that he fell from a ladder at work on 11 September 2019. He said it was a three metre fall and the doctor notes the ambulance records suggest a 1.5m fall. However, it does not appear that the doctor asked Mr Beto about the records which state that the fall occurred at home. Given De Bentivoglio’s report was written well after the alleged injury, I find its contents do not assist me in making the factual determination in relation to the liability issues.
Dr Bentivoglio diagnosed Mr Beto sustained a fracture of T11 and L1 and of the spinous process of T10. He stated they are all work related. He assessed permanent impairment of a total of 21% combining the assessments for the thoracic and lumbar spines.
The doctor noted that Mr Beto had not worked since the injury, but he had tried to get another job but failed at all four interviews due to his back problem. He noted that Mr Beto takes Endone three tablets per week and oxycodone 10/5 one tablet per day and Tramadol 50mg every second day. He noted walking was restricted to 40 minutes and sitting to 60 minutes and he can drive short distances but does no home domestic duties. The doctor did not assess work capacity.

Safe Work NSW investigations

From page 41 to 81 of the ARD are copies of records from Safe Work NSW. It appears that Mr Beto’s solicitor on 31 October 2019 notified Safe Work NSW of the alleged incident but advised it occurred at 600 Twelfth Avenue Rossmore and then advised the correct address was 65 Wynyard Avenue Rossmore[35]. It was ascertained neither of these addresses were correct.
[35] ARD p 50.
It is very difficult to read the Safe Work records because the identity of individuals are redacted. On 25 November 2019 it appears the SafeWork investigator corresponded with someone in relation to Mr Beto’s allegations and the address is 3 Wynyard Avenue Rossmore[36]. In that correspondence the Safe Work inspector says his investigations revealed the height of the frame for the plastic cover is approximately 2.6 metres from the ground.
[36] ARD p 61.
The inspector’s notebook reveals on 11 November 2019 he attended 5 Wynyard Avenue Rossmore and made enquiries about Mr Beto’s alleged fall. Again due to the redaction it is difficult to make sense of the information. However, someone advised the inspector that:
“the exact location where he fell is not known as he was not asked. Groove and tongue plastic channel is used for securing the plastic. Fredo was asked to clean the gutter which is about 2.6m high. They access the gutter using step ladder.[37]”
[37] ARD pp 77 and 78.
Because of the redaction I consider it is unsound to draw any conclusion from these records.

Submissions

Mr Beto’s counsel made the following oral submissions:
(a)    the evidence from the first respondent confirms that he operated a business growing cucumbers at Rossmore using greenhouses;[38]
[38] See: Mansour statement AALD-1.
(b)    the photographic evidence shows greenhouses covered with worn out plastic[39] and also shows a ladder leaning against a greenhouse[40]. Counsel conceded that these photographs were taken at a different time to the alleged injury, but he submitted one could infer that the plastic surfaces would have required maintenance and that a large ladder, of the sort shown in the photograph, would have been needed to replace the plastic on the greenhouse. Counsel also submitted that the length of the ladder in the photograph is consistent with
Mr Beto stating he fell 3 m to the ground from the ladder. It was also pointed out that Mr Beto said he fell onto the ground and the surface of the area around the greenhouse is not concrete but soft ground;
[39] ARD p 175.
[40] ARD p 176.
(c)    the photograph of Mr Beto’s house shows there is a large grassy area around the house[41] with a concrete path around the outside of the property and a driveway with either concrete tracks for the car wheels to go on or dirt tracks. It is submitted that the house appears to be in a good state of repair. The backyard of the house is grass with a concrete area which is covered by an awning. Counsel submits that it is difficult to see how someone if using a ladder could fall on that concrete;
[41] ARD p 143.
(d)    it is submitted that Mr Beto’s description of how the accident happened is more consistent with a fall at the greenhouses rather than at his residence;
(e)    care needs to be taken when evaluating the statements of the lay persons because they have poor English skills, and more weight should be given to the statements which have an interpreter attesting that the statement has been translated to the author. Furthermore, some statements refer to an interpreter but only Mr Beto’s statement says it was given with a NAATI-accredited interpreter;
reliance was placed on the supplementary statement of Mr Beto dated
11 November 2021, given with the assistance of a NAATI interpreter.[42] Counsel draws attention to Mr Beto stating that he had been informed that the ambulance records and hospital records refer to him falling at home when he hit his head on concrete. Mr Beto states that he did not speak to the ambulance officers or to the hospital staff as he did not speak English. He adds that his wife had called his cousin, Fadi Ochana, to come over to his place and it was he who called the ambulance because he and his wife cannot speak English;
(f)    counsel referred to [7] of the same statement in relation to the work arrangements of Mr Beto. Mr Beto states that Mr Marwan Barkho was his friend for two years and he asked him to work at the farm with him. Mr Beto states he asked Marwan if he would be working for him, and he advised “no I would be working for Fakhri Mansour”. Mr Beto says that Marwan told him that Mr Mansour would pay him cash on an hourly basis, which he believed was to be $12 per hour;
(g)    it was submitted that Mr Beto had given evidence in his statement at [8] of attending the greenhouse property with Marwan and of meeting the first respondent. He says the first respondent spoke to him in Assyrian, told him he would be working for him and he would be paid $12 per hour and the work fixing the greenhouses would take four to five days. Mr Beto’s counsel submitted that Marwan had given evidence that he was paid $12 per hour for his work and so
Mr Beto’s evidence about the pay rate is consistent and was not “an invented figure”;
(h)    Mr Beto’s counsel also referred to his earlier statement dated 29 May 2020 which describes the circumstances surrounding the injury[43]. Mr Beto says after he fell off the ladder Marwan came over and called the first respondent who came to speak to him. Mr Beto says that the first respondent told him as he was not registered to work for him, he could not tell anyone he had the injury at the farm. Mr Beto says he was told since he was working for cash he would be in trouble if anyone found out. Counsel submitted even though this type of arrangement is irregular one could understand that Mr Beto, being a recent immigrant, could have been concerned about an implied threat to their work situation;
(i)    it was also submitted that at the time of the accident Mr Beto would have been in real pain and distress from his injuries and may have panicked somewhat and agreeing to travel to him home in the back of Marwan’s van and it is plausible that Mr Beto would have let others speak for him to the ambulance officers;
(j)    it was submitted that when people panic they say things which in hindsight are unwise, such as stating the injury occurred at home when it occurred at work;
(k)    counsel referred to Mr Elazzi’s statement and reference to Mr Mansour telling him two to three days later something had happened to Mr Beto, but he could not recall the details. Counsel submits that the context means they are talking about an event on the farm. It was submitted this is very important as Mr Elazzi is an independent witness, and
(l)    Mr Stanton also made submissions about deemed worker which are set out in the transcript.
[42] ARD p 10.
[43] ARD p 5.

Second respondent’s submissions

The second respondent’s submissions were provided in writing. It is submitted that Mr Beto’s evidence does not satisfy his onus of proof because of the inconsistencies in his evidence and the hospital records as well as the inconsistencies in the statements of Mr Beto, his wife, Mr Barkho and Mr Ochana. It is argued that all these witnesses are related to Mr Beto and Mr Barkho is a close friend and so their evidence should be treated more cautiously than that of an independent witness.
Secondly, it is argued that Mr Beto’s claim form dated 18 February 2020 says the identity of the employer is unknown yet in the statements he gives later he says he was introduced to Mr Mansour by Mr Barkho on 11 September 2019. It is submitted that therefore for him to write “unknown” for the employer on the claim form must undermine his credit because if
Mr Mansour was his employer it was known to him from the time of his injury.
It is submitted there are numerous inconsistencies such as:
(a)    Mr Beto states after he fell he called out for Mr Barkho, yet his evidence was that Mr Barkho had left after he introduced him to Mr Mansour. Counsel submits it is not believable that Mr Beto lying on the ground in pain after the fall would have called out to someone he knew was no longer there;
(b)    who called the ambulance, versions are given that Mr Beto’s wife did and also
Mr Ochana;
(c)    the address where Mr Beto went to work on 11 September 2019 was initially given in his statement dated 9 April 2021 as 660 Twelfth Avenue Austral which is several kilometres distant to Rossmore. Counsel submits no explanation has been given to this discrepancy;
(d)    In his second statement Mr Beto says his fall was witnessed by the boss and two work colleagues but he does not name them. Counsel also notes that Mr Beto states that the boss asked “a work colleague” to drive him home, yet in his earlier statement he said it was Mr Barkho who drove him home;
(e)    the ambulance and Liverpool Hospital records have a totally different version of how the accident occurred, being a fall at home from 1.5 m high. And at 15:53 on 11 September 2019 it is recorded he was cleaning windows at home when he missed a step and fell backwards from the ladder striking his head on concrete;
(f)    the note of Kate Smyth on 17 September 2019 in the Liverpool Hospital records states his employment status is “unemployed, previously employed until late 2018, left due to left shoulder injury”. Another entry on 16 September 2019 referring to his work status as “does not work- as per wife and patient”. Counsel submits these entries are not consistent with Mr Beto’s claim he was working at the time of the alleged injury;
(g)    Mr Beto gives more details about his discussion with Mr Mansour in his statement dated 11 November 2021 and has not explained why he omitted those details form his earlier statements. Counsel submits this suggests he is inventing his account as he goes along;
(h)    his statements have inconsistencies as to who came to his aid after his fall. In one he says it was witnessed by the boss and two colleagues and later he says Mr Barkho initially came to his aid;
(i)    at [34] of the submissions counsel argues Mr Beto’s statement that Mr Mansour said that Mr Beto would get into trouble if the accident at work was reported, because Mr Beto was not registered to work for him, lacks plausibility. Counsel argues that Mr Beto says he had only just met Mr Mansour and so Mr Mansour would not have known about Mr Beto’s Centrelink or immigration status;
(j)    Mr Beto’s account of his telephone call to his wife after he was injured does not marry up with her account of the call. Mr Beto says he did not tell his wife to say he had not fallen at the farm, yet she says he said to her he was scared to say the accident happened at work because he was not “registered”. Counsel submits at [76] the fear that Mr Beto would be in trouble because he was not registered cannot be accepted as there is no basis given as to why they thought he needed to be “registered”. Counsel notes the evidence about Mr Beto’s prior work for King Furniture did not include a reference to being “registered”;
(k)    counsel also points to inconsistencies in Mr Barkho’s statement because he says Mr Barkho says he was driving on the other side of the greenhouse when
Mr Beto fell. Counsel asks how could he have heard the fall. Counsel submits there is another inconsistency because in his second statement Mr Barkho said he was having coffee when Mr Beto fell and was not close to him;
(l)    he also draws attention to Mr Barkho’s statement that Mr Beto was unconscious after the fall, and that this is not the evidence of Mr Beto or mentioned in the medical records. Counsel also submitted that in the statement dated 22 April 2020 Mr Barkho does not even mention that Mr Mansour was present after the fall;
(m)     it was submitted that the Commission should have doubts about Mr Barkho’s competency in the English language because he made the statement dated
3 March 2020 in English and it was witnessed by Ms Hermiz who does not read or speak English. Counsel submits this suggests Mr Barkho has a command of English greater than he allows and calls into question his reason for not calling an ambulance because he could not speak English;
(n)    it was also submitted that Mr Barkho in his final statement says he was present when Mr Mansour was discussing paying Mr Beto $12 per hour, yet he had not included this information in his earlier statements. Counsel submitted the Commission should be very cautious accepting his evidence because he is a friend of Mr Beto;
(o)    it was submitted if Mr Beto was in fact performing work at the farm on
11 September 2020 it was not under a contract of service with Mr Mansour but some undisclosed arrangement with Mr Barkho. Counsel at [51] and [52] points to the contradictions about when Mr Barkho discussed with Mr Beto working at the farm. Counsel suggests that Mr Barkho had reason to assert that Mr Beto was working for Mr Mansour to avoid liability for an arrangement he made, and
(p)    finally, counsel submitted that the evidence of Mr Oshana and Ms Hermiz is inconsistent as to when and what she told him about the fall.

It is submitted that the evidence of Mr Beto, Ms Hermiz and Mr Ochana has to be viewed in light of the fact that they lied to the ambulance and hospital staff notwithstanding that they have purported to explain why they did this. And the reason they say they lied was to further Mr Beto’s interests by not revealing he was working when he believed he should not have been.
The second respondent relies on the statement of Mr Mansour who denies he employed
Mr Beto and also denies he was present on the site on 11 September 2019.
In response to Mr Stanton’s oral submissions that the photographs of Mr Beto’s home made it unlikely he would have used a ladder to a height of 1.5m. Counsel submitted it was incumbent for Mr Beto to put on some evidence about this.
In relation to Mr Elazzi’s statement that he had a discussion with Mr Mansour about Mr Beto being injured at the farm, counsel submitted Mr Elazzi could not recall the contents of the discussion. He submitted that even if there had been injury at the farm that does not prove employment by Mr Mansour.

DETERMINATION

Needless to say this matter is difficult to determine. Each witness has a reason to lie.
Mr Mansour does not have workers compensation insurance and he was allegedly paying below the minimum wage and the safety of persons working on a ladder at that height and the investigation by Safe Work NSW are possible reasons for him to lie. On the other hand Mr Beto wishes to obtain compensation for his injury. His wife and cousin, as the second respondent submits, are not independent. Mr Barkho is a friend of Mr Beto, but he seems to have some connections with those at the cucumber farm. The second respondent suggests that Mr Barkho may also seek to have Mr Mansour be cast as the employer to exculpate himself, should it be suggested he was the employer. None of these motives have been tested with the respective witnesses and I am loathe to speculate.
Clearly the evidence of Mr Beto and Mr Barkho is in conflict with that of Mr Mansour. They say Mr Mansour employed Mr Beto on 11 September 2019 and they say he was there and saw Mr Beto after he fell. Mr Mansour denies he was at the farm that day. He denies he knew Mr Beto, met Mr Beto or employed Mr Beto.
The only person who has some degree of independence is Mr Elazzi. He confirms he rents the greenhouses to Mr Mansour and Mr Mansour is responsible for maintaining them. But this is not a contentious fact as Mr Mansour does not cavil with this. Mr Elazzi says about two to three days after the incident Mr Mansour said to him something happened to Mr Beto. Unfortunately Mr Elazzi says he does not remember what he was told. Mr Beto’s counsel submitted that the context of this discussion with Mr Mansour meant they were speaking of an incident on the farm. That could be the case but equally Mr Mansour could have been relating gossip he heard about an incident occurring elsewhere. Without Mr Elazzi being more specific I find it is difficult to infer that Mr Mansour told him that Mr Beto fell on the farm. The second respondent also submits that even if Mr Beto did fall on the farm it does not prove Mr Mansour employed him.
Mr Elazzi says at [14] of his statement “Marwan Barkho is someone who I bring to help me as casual work, for one hour, 2 hours, sometimes half a day”. At [16] he says he pays Mr Barkho for that work. The statement is signed 30 May 2020 and he says at [17] “the last time he worked for me was about 3-4 days ago and he do some clean up work”. This information is at odds with Mr Barkho’s unsigned statement dated 22 April 2020 given to the same investigator for the Workers Compensation Nominal Insurer. Mr Barkho states he goes to the cucumber farm because he has a lot of friends there. He says, “I do not work there”. At [30] he states, “I have not been to the farm for a very long time”. This is at odds with
Mr Elazzi’s statement.
While this statement is unsigned it states it was given with the assistance of an Assyrian speaking interpreter. Mr Barkho says, in his statement signed on 15 November 2021, as he did not sign the statement given to the insurance investigator he does not know if what was written there was correct. The statement of 15 November 2021 is on the letterhead of
Mr Beto’s solicitors, and it was given with the assistance of a NAATI accredited interpreter. However, it is surprising that Mr Barkho was not then shown this earlier statement and specifically asked about the so called inconsistencies which he says he was told about, although he gives no detail as to them.
The second respondent has made submissions about the many inconsistencies in the respective witnesses’ statements. It strongly focuses on the Ms Hermiz’s account that
Mr Beto told her he was scared to say the accident happened at work because he was “not registered”. The respondent argues that this is a later made up reason to cover for the alleged lie being told to the ambulance and hospital that the accident happened at home. Although, as was submitted on Mr Beto’s behalf, it is plausible that recent immigrants may feel concerned about working for cash when recipients of government benefits.
I am mindful to approach the statements with caution because of English not being proficient for many of the witnesses. For instance, Mr Beto’s statement dated 29 May 2020 taken by the investigator was made by a phone interview, it says with the assistance of an Assyrian interpreter. But it is signed and witnessed but it does not state that an interpreter read the statement to Mr Beto when he signed it. His second statement does not say that an interpreter was used although Mr Beto says he needs an Assyrian interpreter. The third statement dated 11 November 2021 was made with the assistance of a NAATI accredited interpreter. His final statement dated 20 May 2020 says it was made with a NAATI accredited interpreter.
However, there are many factual inconsistencies that should have been explained. For instance, in the third statement Mr Beto says when he fell off the ladder at the farm Mr Barkho came to the scene initially and called Mr Mansour who came within a few minutes. Yet in the statement dated 9 April 2021 he said his boss and two work colleagues witnessed his fall.
I find it is concerning that inconsistencies in Mr Beto’s evidence have continued even past the hearing date. In his second statement he says he stopped work at King French Polishing due to a reduction in work, his employment ceased. However, Ms Smyth records in the Liverpool Hospital notes that he left his employment in late 2018 due to a left shoulder injury. Yet in his most recent statement dated 20 May 2022 he says he ceased work in 2018 as he felt he was not being paid enough for his work. This example of continuing inconsistency can only lead to the conclusion that Mr Beto is not a reliable witness.
In his most recent statement he says when he was offered the work at the cucumber farm he understood he would work on a part time basis up to 20 hours per week and he was hoping the job would be long term and he would be able to increase his hours beyond 20 hours per week. I regard this statement to be fanciful and self-serving.
As the second respondent submits, Mr Beto’s prior evidence is that he was told by
Mr Mansour that the job would take “4 or 5 days” and there is no other evidence to support Mr Beto’s comment in his statement dated 20 May 2022 that he had some hope or expectation that the job would become permanent. In his first statement he says at [43] that Fakhri would see how he works and then he will determine if he gives him more work. In his second statement at [9] he describes the work at the cucumber farm as a “trial”. In his third statement he says that Mr Barkho did not tell him how long the job would be for and at [8] he says Fakhri Mansour says the job would probably take four to five days.
To suggest he left a job paying $440 net per week for 20 hours work, which his counsel submits is the equivalent of $460 gross per week, because it did not pay enough and then he later accepts a job paying $12 per hour is in my view not credible. The job in 2018 was paying $23 gross per hour.
Furthermore, the general practitioner’s notes refer to shoulder impingement syndrome on
[44] ARD p 287.
[45] ARD p 292.
5 November 2015 and the clinical entries from 22 October 2018[44] to 7 January 2019[45] refer to left shoulder, left wrist and neck pain. This is consistent with Ms Smyth’s note that Mr Beto left his employment in 2018 due to left shoulder injury.
I have formed the impression that Mr Beto will say whatever he feels will advance his case, as the above evidence about his employment attests.
The second respondent has made powerful submissions about other inconsistencies made by Mr Beto which have not been explained such as the changing addresses being given for the location of the cucumber farm.
Mr Beto has the onus of proof. In my view he needed to properly explain the inconsistencies in his evidence. However, that would have not been necessarily fatal to his case if the other witnesses had provided reliable evidence. The second respondent has submitted that
Mr Barkho’s evidence also cannot be accepted. Two aspects of his evidence cause me concern about his reliability as a witness. In his statement dated 3 March 2020 he says
Mr Beto was unconscious after the fall. This is not consistent with Mr Beto saying after the fall he called out “Marwan, Marwan”. It is not mentioned in the ambulance and hospital records, which in fact record “nil LOC”. Secondly, Mr Barkho says he was driving on the other side of the greenhouse when he heard Mr Beto fall. He says, “I heard the noise and went to see and saw him on the floor”. Yet in his statement dated 22 April 2020 he says he was having coffee at the time of the fall and he heard he had a fall and went to help him.
Even the evidence of Ms Hermiz and Mr Ochana are at odds. She says at [11] of her statement:
“He [Mr Ochana] said what happened? I told him that my husband had an accident at work, but that he was scared to say that his accident happened at work since he was not registered. I told Fadi not to tell the ambulance people that my husband had the accident at work. I told Fadi to tell the ambulance people that my husband had the accident at home.”
Ms Hermiz recounts that she had this conversation while she was at her friend’s house. She says Mr Ochana then came to her house and telephoned the ambulance from there on his mobile phone.
Mr Ochana states he did receive a call from Ms Hermiz when she was at her friend’s house, and she told him that Mr Beto had been involved in an accident and to call an ambulance. But the impression he gives is that he did not ask or was given details then as to what happened because he says when the ambulance people asked what happened he asked
Ms Hermiz and she told him the fall happened at home. He did not call the ambulance until he was at Mr Beto’s house. Mr Ochana says he did not know until days later the accident happened at work, yet Ms Hermiz says, “I told Fadi not to tell the ambulance people that my husband had the accident at work”.
I simply cannot ascertain what is the true version of events as to where the fall occurred because of the unreliability of all of the witnesses.
Mr Beto’s counsel submitted that Mr Beto’s description of how the accident happened is more consistent with a fall at the greenhouses rather than at his residence. He submitted that the house appeared in good state of repair. However, the photograph of the front of the house is contained in the investigator’s report and states it is as at December 2015[46], so not close in time to the fall. There is no evidence from Mr Beto that the house was configured the same on 11 September 2019. Secondly, whether the house was in good state of repair is not determinative because the version of events given to the hospital was Mr Beto was cleaning the windows. It is not alleged he was repairing the house.
[46] ARD p 143.
That version of events does not say which windows were being cleaned at the time of the fall. The only photographs available are of the front and back of the house, not of the sides of the house, where there may be windows. Also, the version in the ambulance report states the family dragged Mr Beto “from fallen position to under shade”. At the front there appears to be two areas of shade one on the front right of the picture and the other on left side where the carport is.
The other aspect I find troubling is the version given in the ambulance record is very detailed for what we are now asked to believe was a hastily made up lie at the time conveyed by
Ms Hermiz to Mr Ochana to the ambulance officers. It has several facts. Mr Beto was standing on the top rung of a step ladder, it was approximately 1.5m high, his foot slipped, he fell backwards, he struck his head on concrete, he had nil loss of consciousness, his wife witnessed it, she says he was screaming immediately, and the family dragged him from the fallen position to under shade. The hospital note adds he was cleaning windows.
Mr Beto’s counsel submitted that there was a degree of panic in the situation and that it was understandable that Mr Beto and Ms Hermiz would have been concerned about their visa status or getting into trouble with the authorities and he submits that when people panic they say things which in retrospect are unwise. I consider the level of detail in the ambulance account belies a level of panic. I find it is a coherent, detailed account especially when compared to the later inconsistencies in the various witness statements.
The second respondent submits that Mr Beto needed to give evidence about the contention by counsel that it was unlikely the fall could have occurred as described at home. I accept this submission because counsel’s submissions are really just speculation without that evidence.
In Nguyen v Cosmopolitan Homes[47] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[47] [2008] NSWCA 246, Nguyen.
In Mr Beto’s case I have explained why, on the available evidence, I do not feel “an actual persuasion” of the existence of the fact that Mr Beto did fall at the cucumber farm on
11 September 2019. Accordingly, I find an award for the first and second respondents. It is not necessary that I deal further with the submissions relating to the identity of any employer, deemed employment or the calculation of PIAWE.

[2022] NSWPIC 533

27 September 2022