Bohdanyuk v X-Build Constructions Pty Ltd - [2014] NSWWCCPD 63

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Bohdanyuk v X-Build Constructions Pty Ltd [2014] NSWWCCPD 63
APPELLANT:	Mykola Bohdanyuk
RESPONDENT:	X-Build Constructions Pty Ltd
INSURER:	GIO General Ltd
FILE NUMBER:	A1-8052/13
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	27 June 2014
DATE OF APPEAL DECISION:	7 October 2014
SUBJECT MATTER OF DECISION:	Challenge to refusal to allow amendments to add additional injury and claim for lump sum compensation; injury; challenge to finding that worker had not discharged the onus of proof; weight of evidence; assessment of evidence
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Shine Lawyers
Respondent:	Hicksons Lawyers
ORDERS MADE ON APPEAL:	1. The Senior Arbitrator’s determination of 27 June 2014 is confirmed. 2. No order as to costs.

INTRODUCTION

This appeal raises two issues. The first is a challenge to an Arbitrator’s interlocutory decision to refuse the worker’s application to amend the claim to allege an additional injury and to claim additional hospital and medical expenses and lump sum compensation. Second, the appeal challenges a factual finding that the worker suffered no injury to his back and, as a result, suffered no incapacity for work. For the reasons explained below, the appeal is unsuccessful.

BACKGROUND

The appellant worker, Mykola Bohdanyuk, started work as a bricklayer with the respondent employer, X-Build Constructions Pty Ltd (the respondent), in February or March 2012. While performing his usual duties on 17 May 2012, he suffered a severe laceration to his left thigh when he slipped and fell from scaffolding. An ambulance took him to Concord Hospital where he received eight stitches to his wound and he was allowed home. This injury is not disputed.
After about a week off, Mr Bohdanyuk returned to work on his usual duties at a new site at Hoxton Park. What happened after his return to work, which relates to Mr Bohdanyuk’s alleged back injury, which the respondent disputed, was the subject of sharply conflicting evidence.
The exact dates of the events that followed Mr Bohdanyuk’s return to work were never clarified in the evidence. Consequently, the evidence from both sides is less precise than one would have expected in a case where the respondent strongly disputed injury.
Mr Bohdanyuk’s version was that, because it was wet, the labourers had not sorted all the building blocks needed to build a retaining wall at the Hoxton Park site. As a result, everybody had to pass the blocks, which weighed over 10 kilograms, from one to the other. Because Mr Bohdanyuk was trying not to put weight on his left leg, he put most of his weight on his right leg. He said that, after he passed the blocks, he felt pain in his back and had trouble bending over.
Mr Bohdanyuk contended that other workers saw that he was in pain and said that he should rest. Not thinking it was serious, and because it was near finishing time, Mr Bohdanyuk kept working. When he finished work, Mr Bohdanyuk tried to sit in his car but could not bend his back properly. He said that, when he got home, he had trouble getting out of his car. He said he had pain when he bent to take his shoes off and was unable to sleep.
The next day, Mr Bohdanyuk said that he attended work (because he did not have a phone number for the workers at the site) and told them that he was “sick” and unable to work. He added that “they saw how I was unable to walk”. (It seems to have been agreed at the arbitration that this was on or about 28 May 2012, though even that is unclear.) He did not think it was serious and thought he would recover with rest. He said that his back did not get any better and that he could not move or drive without pain in his back.
At the insistence of his mother, Mr Bohdanyuk saw his general practitioner, Dr Tomka, on 2 October 2012. A CT scan on 13 October 2012, revealed disc bulges at L3/4, L4/5 and L5/S1.
On 13 November 2012, Mr Bohdanyuk completed a claim form in which he said that he injured his left thigh and back. He described the fall that occurred on 17 May 2012, in which he injured his left thigh, and added, with respect to his alleged back injury:
“Thereafter due to extra weight bearing on R leg & due to nature and conditions of work (eg heavy lifting) problems developed with back”
The respondent’s version of what happened on Mr Bohdanyuk’s return to work, after time off for the laceration, was quite different. David Wright, a director and co-owner of the respondent, conceded that Mr Bohdanyuk injured his left thigh on 17 May 2012, but disputed that he suffered any injury to his back. He said that Mr Bohdanyuk was a bricklayer and it was not part of his duties to move bricks. He did not see Mr Bohdanyuk moving or stacking blocks. It was too wet to work on a couple of days and he told the workers not to work on those days (Mr Wright did not give the dates for this). The blocks had been moved into position in pallets by a backhoe and the labourer had broken out the pallets and stacked the blocks on the ground beside the retaining wall Mr Bohdanyuk was constructing.
Mr Wright said that he noticed Mr Bohdanyuk came to work smelling of alcohol in the morning and would leave the site at lunchtime and return to work smelling of alcohol (no date is recorded for this). In addition, Mr Bohdanyuk had stopped wearing his vest and hardhat (personal protection equipment (PPE)). Mr Wright told Mr Bohdanyuk that the head contractor had mentioned this a couple of times and that he had to wear his PPE.
By the end of the week, having given Mr Bohdanyuk numerous warnings about wearing his PPE, which he disregarded, as well as the alcohol issue, Mr Wright terminated Mr Bohdanyuk’s employment. At that time, according to Mr Wright, Mr Bohdanyuk was “walking, bending and moving normally without any apparent physical difficulty”. Mr Bohdanyuk had not told Mr Wright anything about his back pain or injury and, until he was dismissed, he was doing his full normal duties laying blocks that weighed 7.7 kilograms.
On 27 September 2013, Mr Bohdanyuk’s former solicitors (Taylor and Scott) filed an Application to Resolve a Dispute (the first Application) in the Commission. It alleged that he injured his low back and left thigh and claimed weekly compensation from 17 May 2012 (later amended to 29 May 2012) to date and continuing. The injury was described as having been caused as follows:
“The Applicant was laying bricks on a scaffold when his foot slipped and his left thigh struck the metal part of scaffolding. Thereafter[,] due to extra weight bearing on his right leg and due to the nature and conditions of his employment[,] in particular heavy lifting and twisting while stacking concrete blocks, problems developed with his back.”
Attached to the first Application was a report from Dr Collins, specialist qualified by Mr Bohdanyuk’s solicitors, dated 9 April 2013. Dr Collins diagnosed Mr Bohdanyuk to have suffered, as a direct result of the accident, a laceration to his left thigh, musculo ligamentous degenerative change of the lumbar spine with a work related aggravation, and an injury to the left shoulder. He assessed Mr Bohdanyuk to have a combined whole person impairment of 12 per cent, made up of four per cent for the lumbar spine, three per cent for the left lower limb (due to wasting) and three per cent for the left upper extremity (due to a loss of abduction).
With respect to the left shoulder, Dr Collins recorded that Mr Bohdanyuk’s pain came on after he had had the back pain for about a year and that Mr Bohdanyuk did not know why he developed pain in his left shoulder. (The report from Dr Collins seems to be the first mention of any left shoulder problem.)
In a reply filed on 21 October 2013, the respondent disputed that Mr Bohdanyuk had injured his back and disputed that he had any incapacity for work.
On 25 October 2013, the insurer issued an amended s 74 notice in which, among other things, it disputed that Mr Bohdanyuk had injured his back or left shoulder and disputed that he had any incapacity or any entitlement to compensation under s 66 of the Workers Compensation Act 1987. Notwithstanding the contents of Dr Collins’ report of 9 April 2013, as at 25 October 2013, Mr Bohdanyuk had not alleged that he injured his left shoulder at work with the respondent and had made no claim for lump sum compensation under s 66.
On 29 October 2013, Taylor and Scott, wrote to the respondent’s solicitors, Hicksons Lawyers, stating, among other things:
“We note that liability has been denied in relation to our Section 66 claim and in the circumstances we assume you have no objection to us amending our Application to now include that Section 66 claim in the current proceedings. Please advise.
Furthermore, we wish to make a Section 60 claim and are obtaining details of accounts/receipts and of course any HIC charge owing. Although Section 60 expenses do not appear to have been specifically referred to in the Amended Section 74 Notice, liability for same has of course previously been denied in the Notice of 4 October. Once more we assume you have no objection to us including same in the current proceedings. Please advise.”
The reference to the denial of liability for the s 66 claim was a reference to the insurer’s denial of liability for such a claim in its s 74 notice of 4 October 2013. However, as at that date, Mr Bohdanyuk had not made a claim under s 66.
On 14 March 2014, Taylor and Scott wrote to Hicksons advising that they would be seeking leave to amend the pleadings to include “left shoulder in Part 4 of the ARD”, noting that the respondent should not be prejudiced because the allegation of a left shoulder injury was “partly dealt with in our expert’s evidence from Dr Collins” and that the s 74 notice referred to “such allegation” and that the denial of liability had been extended to the left shoulder.
At a teleconference conference on 17 March 2014, the Senior Arbitrator recorded in the Teleconference Outcomes form that there was no issue about the laceration to Mr Bohdanyuk’s left leg, but a big issue “n & c thereafter – hurt back and shoulder?”. The Senior Arbitrator gave leave to issue a Direction for Production on Ngatuaine Kimi Ben, a masseuse who Mr Bohdanyuk had seen for his back, and listed the matter for arbitration before her on 20 June 2014.
On 16 June 2014, Taylor and Scott prepared an amended Application to Resolve a Dispute (the amended Application) which they attached to an Application to Admit Late Documents of the same date. It seems this document was filed with the Commission on 18 June 2014, though there is no sealed copy in the file. Nevertheless, the Senior Arbitrator received it on 19 June 2014, the day before the arbitration.
The amended Application sought to add an injury to the left shoulder, alleged to have been received when Mr Bohdanyuk “developed pain in the left shoulder due to the nature and conditions of employment as a brick layer”. It also, for the first time, particularised a claim for lump sum compensation of 12 per cent, which was alleged to be for the “lumbar spine and left shoulder”. It included a claim for hospital and medical expenses, particularised only as “Medicare charge”. The documents attached to the amended Application are the same as those attached to the first Application.
At the arbitration on 20 June 2014, counsel for the respondent, Mr Halligan, objected to Mr Bohdanyuk relying on the amended Application. In response, counsel for Mr Bohdanyuk, Mr Lucas, submitted:
“Your Honour [sic], I’m nominally asked to press it, I understand my friend’s difficulty.”
The Senior Arbitrator rejected the application to rely on the amended Application and the matter proceeded on the first Application, though that document was amended to seek a general order for the payment of hospital and medical expenses for the back and left leg laceration (T11.14 – 20 June 2014).
After hearing detailed submissions from both counsel, the Senior Arbitrator delivered an oral decision on 26 June 2014 in which she found that Mr Bohdanyuk had not suffered any injury to his back and had no incapacity as a result of the accepted injury to his left thigh.
On 27 June 2014, the Commission issued a Certificate of Determination in the following terms:
“The orders made are as follows:
1.Award for the respondent in respect of the allegation of injury to the lumbar spine.
2. Award for the respondent in respect of the claim for weekly compensation.
3.Award for the respondent in respect of the claim for section 60 expenses other than any treatment expenses relating to the injury to the left thigh on 17 May 2012.”
In an appeal filed by new solicitors, Shine Lawyers, Mr Bohdanyuk seeks to challenge the refusal to allow him to rely on the amended Application and the finding that he suffered no injury to his back.

ON THE PAPERS

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

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Senior Arbitrator erred in:
(a) failing to provide adequate reasons for her rejection of the Application to Admit Late Documents (the late documents/amendment), and
(b) failing to provide a clear finding on the issue of causation or adequate reasons that Mr Bohdanyuk “did not suffer from a frank injury or an injury subject to the nature and conditions of [his] employment” (the back injury).

THE LATE DOCUMENTS/AMENDMENT

Submissions

Mr Bohdanyuk’s solicitor, Eric Kranz, submitted that the Senior Arbitrator failed to address the fact that the amended Application contained the same documents as had been filed with the first Application and that the only amendments were to “the amounts and heads of damage being claimed” and that her reasoning was inadequate.
Mr Kranz added that the Workers Compensation Commission Rules 2011 (the Rules) permit the Commission to give leave to a party to “amend any document lodged by the party in the proceedings if the Commission considers the amendment to be necessary for the avoidance of injustice” (Pt 4 r 4.2(1)). He contended that the amendments sought were necessary for the avoidance of injustice, because both “changes formed a major part of [Mr Bohdanyuk’s] claim for benefits”. Not allowing the amendments caused Mr Bohdanyuk to be “severely disadvantaged in his options for pursuing relief for the injuries resulting from the subject incidents”.
Mr Kranz also relied on Pt 10 r 10.3(3) of the Rules, which provides that the Commission may, if satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would otherwise be prevented from introducing because of the operation of sub-r (2). He submitted that the rejection of the amended Application has resulted in a clear injustice to Mr Bohdanyuk because the respondent had notice since 29 October 2013 of his intention to amend the pleadings to include further heads of damage.
Mr Kranz argued that Mr Bohdanyuk’s “injustice and the [r]espondent’s actual notice of the intention, overarches the [r]espondent’s alleged prejudice, as described by the [Senior] Arbitrator”. He further contended that the Senior Arbitrator failed to provide any detailed reasoning behind the decision to reject the amended Application. By rejecting the amended Application the Senior Arbitrator caused Mr Bohdanyuk’s unresolved shoulder injury not to be addressed with respect to causation and impairment, and any medical expenses relating to the same not to be addressed. This caused Mr Bohdanyuk a “major injustice by not allowing the full issues of the claim to be heard before the Commission”.
The respondent’s solicitor, William Pardy, submitted that the refusal to allow Mr Bohdanyuk to rely on the amended Application was an interlocutory order. He contended that leave to appeal that order, which is required by s 352(3A), should not be granted because Mr Bohdanyuk is:
“not prevented from filing a fresh application in relation to any injury to the left shoulder and a claim for lump sum compensation in respect of the left thigh and/or left shoulder, and therefore, granting leave is ‘neither necessary nor desirable for the proper and effective determination of the dispute’.”
In the event that leave to appeal is granted, Mr Pardy submitted that the Senior Arbitrator did not err in rejecting the amended Application because:
(a)     the document was not filed until the afternoon of 18 June 2014;
(b)     Mr Bohdanyuk provided no reasons for the delay in filing the amended Application;
(c)     Mr Bohdanyuk had an adequate opportunity, at the teleconference on 17 March 2014, to seek leave to amend the Application but did not do so;
(d)     it was within the Senior Arbitrator’s discretion to refuse to grant leave to Mr Bohdanyuk to rely on the late documents, or to amend the Application;
(e)     Mr Bohdanyuk made a forensic decision to proceed on the Application, as originally pleaded, and it was open to him to have discontinued the matter, or seek an adjournment, so he could proceed on the amended Application;
(f)      Mr Bohdanyuk is not entitled to revisit this issue on appeal in circumstances where it was decided to run the matter on the first Application;
(g)     the decision does not affect Mr Bohdanyuk’s final rights with respect to any claim for compensation in respect of the left shoulder injury or a claim for lump sum compensation in respect of the left thigh injury, and
(h)     as the issue of injury to Mr Bohdanyuk’s back was determined in the respondent’s favour, Mr Bohdanyuk has no entitlement to lump sum compensation in respect of any injury to the back under s 66.

Discussion and findings

I do not accept Mr Kranz’s submissions.
First, the basis on which the Senior Arbitrator’s ruling has caused Mr Bohdanyuk to be disadvantaged in his options for pursuing relief for his injuries, and therefore suffer an injustice, has not been explained. Given the concession by Mr Pardy that Mr Bohdanyuk is free to pursue his claim for the alleged injury to the left shoulder, there is no disadvantage or injustice to him. He can bring a separate claim for the left shoulder and, in light of Mr Pardy’s formal concession on appeal, the respondent will not be entitled to rely on Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589.
Second, the claim for hospital and medical expenses were not properly particularised in the amended Application and it is again difficult to see what disadvantage or injustice Mr Bohdanyuk has suffered by the ruling refusing the amendment to claim them. In respect of the alleged injury to the back, and the agreed injury to the left thigh, the Senior Arbitrator allowed the first Application to be amended to make a general claim for s 60 expenses. As the claim for the back failed, the entitlement to s 60 expenses for that injury also failed. It is not known if there are any medical expenses for the left shoulder. None have been particularised.
Third, the claim for lump sum compensation under s 66 was said to be for the injury to the lumbar spine and left shoulder. As Mr Bohdanyuk failed to establish that he injured his lumbar spine, and as the appeal against that finding is unsuccessful, any claim for lump sum compensation for that part of his body also fails. It follows that the refusal to amend to claim lump sum compensation is of no consequence.

As Mr Pardy has conceded, as a claim for the alleged injury to the left shoulder may be brought in subsequent proceedings the claim for lump sum compensation for that injury can also be considered at that time. However, in light of the amendments introduced by the Workers Compensation Legislation Amendment Act 2012, it is difficult to see how such a claim could succeed.
Fourth, as Mr Pardy submitted, the Senior Arbitrator’s ruling, at least with respect to the alleged injury to the left shoulder, was an interlocutory order that did not finally determine the parties’ rights (Licul v Corney [1976] HCA 6; 180 CLR 213 at 443–4). Granting leave to appeal that order, and allowing the appeal, will give Mr Bohdanyuk nothing more than the opportunity to have that part of the claim determined by another Arbitrator. In light of Mr Pardy’s concession on appeal, that can be achieved by making a new claim supported by appropriate evidence, which I note is currently lacking (Mr Bohdanyuk having given no evidence in either Application that he injured his left shoulder working for the respondent).
It important to note, however, that it is not necessary to seek leave to appeal all interlocutory rulings or orders. An interlocutory order that affects the final result can be challenged, as of right, in an appeal against the final decision (Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22 at [4]–[7]; 209 CLR 478 at 482–484 per Gaudron, McHugh and Hayne JJ), assuming that the monetary thresholds in s 352(3) are satisfied. In other words, a worker is entitled to challenge an interlocutory order that has affected the final outcome without having to seek leave to do so.
However, in the present case, the Senior Arbitrator’s ruling with respect to the proposed amendments to add an injury to the left shoulder has not affected the final outcome. That is because the alleged injury to the left shoulder is a separate and discrete issue that is independent of the outcome for the back injury. Similarly, the refusal to allow the amendments to claim medical expenses and lump sum compensation has not affected the final outcome. It follows that, in the unusual circumstances of the present case, leave to appeal the refusal to allow the amendments is necessary.
The Commission is not to grant leave to appeal unless of the opinion that determining the appeal is necessary and desirable for the proper and effective determination of the dispute (s 352(3A)). As the claim for the left shoulder can be pursued separately in any event, and as the evidence currently attached to the first Application (and indeed the amended Application) does not properly deal with the alleged left shoulder injury, it is not necessary or desirable for the proper and effective determination of the dispute that leave to appeal be granted.
Fifth, Mr Kranz’s reliance on Pt 10 r 10.3(3) is misplaced. That provision relates to an injustice from the refusal to admit late documents into evidence. While this ground of appeal has been framed as a challenge to the rejection of the Application to Admit Late Documents, the substance of the challenge is the refusal to allow Mr Bohdanyuk to rely on the amendments in the amended Application. Thus, Pt 10 r 10.3 has no application. This conclusion is reinforced when one considers that the amended Application relied on no material that had not already been attached to the first Application.
As noted above, though Mr Kranz repeatedly referred to Mr Bohdanyuk suffering an injustice he did not identify that injustice. In light of Mr Pardy’s concession, the “unresolved shoulder injury” can be litigated in a fresh claim, if that is considered appropriate. There is therefore no injustice. Moreover, given that Mr Bohdanyuk’s evidence, in both the first Application and the amended Application, made no reference to any left shoulder injury, it is difficult to see how he expected to succeed with that claim before the Senior Arbitrator.
Last, while I agree that the Senior Arbitrator did not give extensive reasons for her ruling, an Arbitrator’s obligation to give reasons depends on the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (Clarke JA and Hope AJA agreeing) and, in particular, must be considered in the light of the issues raised for consideration by the parties (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 11 at [22]).
In the present matter, the only submission Mr Lucas made in support of the amendments was that he was “nominally asked to press it” and that he “understood” Mr Halligan’s “difficulty”. It was in this context that the Senior Arbitrator’s reasons must be considered. In her oral reasons of her decision in the substantive matter, delivered on 26 June 2014, the Senior Arbitrator said that, “given the extent of the amendments and the matters referred to therein” (T6.1 – 26 June 2014), she accepted the respondent’s submissions as to prejudice and rejected the admission of the document (and, effectively, the application to amend). In light of the rather indifferent way Mr Lucas pressed the application, the Senior Arbitrator’s reasons were adequate in the circumstances.

THE BACK INJURY

Submissions

Mr Kranz submitted that:
(a)     the Senior Arbitrator placed “undue weight” on the evidence from Mr Wright and, in turn, insufficient weight on Mr Bohdanyuk’s medical and liability evidence;
(b)     the Senior Arbitrator placed insufficient weight on the evidence in the report from Dr Collins, which provided “direct comment on causation and current fitness for work, which the [Senior] Arbitrator failed to mention in her reasons”;
(c)     in “the absence of any supportive medical evidence, … the [r]espondent had not discharged its duty to disprove [Mr Bohdanyuk’s] matter”. The “question of Dr Collins’ opinion had not been addressed by the [r]espondent” and was “disregarded in the [Senior] Arbitrator’s findings”;
(d)     the Senior Arbitrator’s decision to “place overt weight on [Mr Wright’s] statement did not take into consideration [Mr Bohdanyuk’s] vulnerable position, namely, that he displays minimal skills and opportunity of re-employment, particularly due to his physical incapacities and his language difficulties”;
(e)     the Senior Arbitrator ought to have considered Mr Bohdanyuk’s incapacities in more detail when making her determination;
(f)      the Senior Arbitrator placed no or insufficient reliance on the letter from Mr Bohdanyuk’s massage therapist, Ms Ben, detailing that Mr Bohdanyuk had been in receipt of massage therapy sessions since June 2012 and continuing. Had this evidence been considered in its full effect, “it would have shown a direct causal link between the stated date of injury and the ongoing disabilities”;
(g)     the Senior Arbitrator’s reliance on Mr Wright’s references to Mr Bohdanyuk smelling of alcohol and not wearing his PPE provided no “avenues of clarity or relevance on the issue” and should not have contributed to the Senior Arbitrator’s decision. These matters were not proven and did not discredit Mr Bohdanyuk’s claim and “should not have been accepted by the [Senior] Arbitrator”, and
(h)     the Senior Arbitrator’s findings were not supported by evidence. In the alternative, Mr Wright’s evidence failed to disprove Mr Bohdanyuk’s claim. On the balance of probabilities, Mr Bohdanyuk sustained a work related laceration injury to his left thigh, which, as a result of overcompensation, occasioned an injury to his low back and left shoulder.

Discussion and findings

Mr Kranz’s submissions are completely misconceived and are rejected.
Exactly how the Senior Arbitrator placed “undue weight” on the evidence from Mr Wright and insufficient weight on Mr Bohdanyuk’s medical and liability evidence has not been explained in any meaningful way.
In a detailed and well-reasoned decision, the Senior Arbitrator reviewed the relevant evidence from both sides. She referred extensively to Mr Bohdanyuk’s statement and to the evidence from Dr Tomka and Dr Collins. Her ultimate finding was that Mr Bohdanyuk failed to make out his case (T12.28 – 26 June 2014). That conclusion was open to her and disclosed no error.
The complaint that the Senior Arbitrator placed insufficient weight on the evidence from Dr Collins is unsustainable. The Senior Arbitrator referred extensively to Dr Collins’ evidence, which essentially recounted Mr Bohdanyuk’s history and concluded that Mr Bohdanyuk had “musculo ligamentous degenerative change of [the] lumbar spine with aggravation, which in my opinion is work related”. The acceptance of that opinion depended on an acceptance of Mr Bohdanyuk’s (contested) version of what happened.
The respondent addressed Mr Bohdanyuk’s case, including his medical case from Dr Collins, by calling evidence that the underlying assumptions in Dr Collins’ report were incorrect. Therefore, the evidence from Dr Collins carried no weight. Contrary to Mr Kranz’s submission, the Senior Arbitrator did not disregard the evidence from Dr Collins. She did not accept it because she did not accept Mr Bohdanyuk’s evidence. In these circumstances, the Senior Arbitrator was not required to deal further with Dr Collins’ evidence.
The contention that the respondent had not “discharged its duty to disprove [Mr Bohdanyuk’s] matter” reverses the onus of proof. It was not for the respondent to disprove Mr Bohdanyuk’s allegations, it was Mr Bohdanyuk to prove his case. He failed to do so.
The submission that the Senior Arbitrator’s decision to place “overt weight” on Mr Wright’s statement did not take into account Mr Bohdanyuk’s vulnerable position is untenable. Mr Lucas made no submission at the arbitration that Mr Bohdanyuk was in a vulnerable position and, therefore, his evidence should be preferred to Mr Wright’s evidence. Indeed, Mr Lucas made no criticism of Mr Wright’s evidence. He did refer to Mr Bohdanyuk’s limited English, but that was in the context of assessing his incapacity (T22.29 – 20 June 2014) and was of no relevance to the injury issue.
The Senior Arbitrator noted Mr Wright’s evidence and (correctly) observed that Mr Bohdanyuk had failed to address the matters in it, notwithstanding that the respondent had filed and served Mr Wright’s evidence in October 2013. She added that she had no reason to question or challenge Mr Wright’s evidence as to the circumstances of Mr Bohdanyuk’s return to work, the type of work he did, or his reasons for dismissing him in late May 2012. Those observations were open on the evidence and disclosed no error.
The submission that the Senior Arbitrator ought to have considered Mr Bohdanyuk’s incapacities in more detail, when making her determination, makes no sense. This ground of appeal has challenged the Senior Arbitrator’s finding that Mr Bohdanyuk did not injure his back. The incapacity that resulted from that injury is a different issue that only arises if Mr Bohdanyuk can establish that he injured his back, there being no argument that he has an incapacity from the laceration to his left thigh.
The submission that the Senior Arbitrator placed no or insufficient reliance on the evidence from Ms Ben is without merit and does not establish error. The Senior Arbitrator quoted the whole of Ms Ben’s report, dated 10 March 2014, which said:
“1) I initially massaged the back of Mykola Bohdanyuk several times a week starting June 2012
2) Currently Mykola Bohanyuk will see me when he is having back pains which are now less often.”
In the absence of Ms Ben recording a history as to the cause of Mr Bohdanyuk’s back pain, her report was of limited probative value and the Senior Arbitrator did not err in not relying on it as evidence that Mr Bohdanyuk suffered the injury he alleged. Contrary to Mr Kranz’s submission, Ms Ben’s evidence did not provide a “direct causal link between the stated date of injury and the ongoing difficulties”.
While it is correct that the Senior Arbitrator referred to Mr Wright’s evidence that Mr Bohdanyuk had not been wearing his PPE and smelt of alcohol, nowhere did she say or imply that that evidence was determinative of the injury issue or that she used it to discredit Mr Bohdanyuk. Mr Kranz’s submission, made with no reference to the Senior Arbitrator’s reasons, was without substance.
Last, the submission that the Senior Arbitrator’s findings were not supported by evidence involves a fundamental misunderstanding of the Senior Arbitrator’s reasons. At the risk of some repetition, those reasons were:
(a)     Mr Bohdanyuk did not tell Dr Tomka about any problems with his back until October 2012 and did not mention any connection with his employment until November 2012 (T12.1 – 26 June 2014);
(b)     Dr Tomka’s history was that Mr Bohdanyuk injured his back at the same time that he injured his left leg, which was inconsistent with Mr Bohdanyuk’s claim that he developed back problems because of the nature and conditions of his employment after the leg injury and because of favouring his injured left leg (T12.10 – 26 June 2014);
(c)     Mr Bohdanyuk failed to address the matters raised by Mr Wright (T12.17 – 26 June 2014);
(d)     the Senior Arbitrator had no reason to question or challenge Mr Wright’s statement as to the circumstances of Mr Bohdanyuk’s initial injury on 17 May 2012, his return to work, the type of work he did (on his return to work), and Mr Wright’s reasons for dismissing Mr Bohdanyuk (T12.22 – 26 June 2014);
(e)     the Senior Arbitrator was “reinforced” (T12.28 – 26 June 2014) in her view that Mr Bohdanyuk had failed to make out his case by his evidence that he had severe pain, that he was “not able to move without pain” in his back, that he could not drive without pain, that he could not bend, and that his back did not improve. This was because, in her view, it “defie[d] logic” (T12.33 – 26 June 2014) that if anyone was in such “serious pain” (T13.1 – 26 June 2014) for five months or more he would not consult a doctor;
(f)      there was no evidence from Concord Hospital (or other medical evidence) that Mr Bohdanyuk was not required to weight bear (on his left leg) (T13.12 – 26 June 2014). Mr Bohdanyuk having returned to work after a short period (after the laceration) suggested that his wound had healed, and
(g)     Mr Bohdanyuk’s evidence was contradicted by Mr Wright (T13.26 – 26 June 2014).
For the above reasons, the Senior Arbitrator was not satisfied that Mr Bohdanyuk had made out his case that he injured his back, either as a result of the “frank injury to his left thigh on 17 May 2012” or “as a result of the nature and conditions of his employment” (T12.4 – 26 June 2014). This conclusion followed logically from the above analysis.
In summary, the Senior Arbitrator concluded that Mr Bohdanyuk had not discharged the onus of proof. That conclusion was open and disclosed no error. It followed from “the contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy [2003] HCA 22 at [31]; 214 CLR 118).

CONCLUSION

The appeal was misconceived, attempted to reverse the onus of proof and involved a fundamental misunderstanding of the appeal process and a sustained failure to consider the Senior Arbitrator’s reasons.

DECISION

The Senior Arbitrator’s determination of 27 June 2014 is confirmed.

COSTS

No order as to costs.

Bill Roche
Deputy President

7 October 2014

I, JACQUELINE HAGGER, 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