Chahine v Wallace Concrete Pumping Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Chahine v Wallace Concrete Pumping Pty Ltd [2021] NSWPIC 216
APPLICANT:	Hani Chahine
RESPONDENT:	Wallace Concrete Pumping Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	30 June 2021
CATCHWORDS:	WORKERS COMPENSATION Permanent impairment compensation; whether applicant suffered injury by way of epileptic episode and to right upper extremity as a result of workplace fall; respondent alleges applicant staged fall; Held- applicant discharged his onus of proof that he suffered workplace injury to his nervous system and to his right shoulder as a result of the fall; the respondent’s allegation of the applicant staging a fall is not made out; matter remitted to the President for referral to a Medical Assessor to assess whole person impairment to the right upper extremity and the nervous system.
DETERMINATIONS MADE:	1. The applicant suffered injury to his right upper extremity and nervous system in the course of his employment with the respondent on 29 April 2019. 2. The matter is remitted to the President for referral to a Medical Assessor to assess the permanent impairment arising from the following: Date of Injury: 29 April 2019. Body Systems Referred: Right upper extremity (shoulder), nervous system. Method of Assessment: Whole person impairment. 3. The documents to be referred to the Medical Assessor to assist with the determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attached documents; (c) Reply and attached documents; and (d) respondent’s Application to Admit Late Documents dated 24 May 2021 and attached documents.

STATEMENT OF REASONS

BACKGROUND

On 29 April 2019, Hani Chahine (the applicant) was working on a building site at Zetland in the course of his employment with Wallace Concrete Pumping Pty Ltd (the respondent). While waiting for a concrete truck to attend the site, the applicant was standing in the vicinity of several co-workers when he fell into a ditch adjacent to the area where the concrete pouring was taking place.
The precise circumstances of the applicant coming to fall are in issue, as are both the reasons for that fall and the consequences of it. The applicant argues the fall caused him to suffer both an injury to his right upper extremity (shoulder) and an epileptic episode, the latter of which is something he had previously experienced on a number of occasions after suffering head knocks.
The respondent denies liability pursuant to two dispute notices on the basis the applicant failed to disclose his pre-existing epilepsy and that the injury to the right shoulder “was intentionally self-inflicted”. The respondent also alleges the applicant suffers no impairment as a result of any injury.

ISSUES FOR DETERMINATION

The parties agree that the only matter in issue is whether the applicant suffered injury to his right shoulder and to his nervous system by way of an epileptic episode. The respondent alleges the applicant deliberately staged a fall in order to either mimic the effects of an injury or to cause an injury.

PROCEDURE BEFORE THE COMMISSION

The parties attended a hearing on 11 May 2021 and 27 May 2021. 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.
At the hearing, Mr B Carney of counsel instructed by Mr C Ktenis appeared for the applicant and Mr R Hanrahan of counsel instructed by Mr D Kim appeared for the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents, and

(c) Respondent’s Application to Admit Late Documents (AALD) dated 24 May 2021.

Oral evidence

The applicant was cross-examined at length by Mr Hanrahan as to both the circumstances of the fall and his history of epileptic episodes. As part of that cross-examination, the applicant was shown dash cam footage of the fall at issue.
The applicant gave evidence that he is prescribed Dilantin and Tegretol for epilepsy. He recounted a history of having fallen from a two-storey building at the age of eight.
When asked whether he suffered seizures every couple of months, the applicant stated he had seizures approximately once or twice per year, associated with bumps or injury to his head.
The applicant confirmed in cross-examination that he had made a previous claim with another employer when he suffered a seizure after being struck on the head by a metal pipe. He admitted he was aware that being struck in the head could trigger a seizure.
The applicant confirmed in cross-examination, that he signed a declaration before starting work with the respondent to the effect that he did not suffer any pre-existing health issues. He stated he did not believe his history of epileptic episodes was relevant, given he only suffered from those seizures after being struck in the head.
Some cross-examination by Mr Hanrahan went to the precise date on which the applicant started employment with the respondent. Aside from the suggestion that this went to the applicant’s credibility as a witness, I did not believe this is an issue of direct relevance to the case, given there is no suggestion the applicant was anything other than a worker at the date of the alleged injury.
The applicant denied in cross-examination that he failed to take his anti-epilepsy medication on the date of his fall. He was cross-examined on whether, in the lead up to his fall, he had been worried about not being given leave for the following day to attend Court. It was suggested by Mr Hanrahan that the applicant had been refused permission to have the day off, and this prompted him to feign injury to avoid going to Court.
The difficulty with that line of cross-examination and the submission which was made in support of it is that Mr Wallace, who the respondent alleges denied the applicant the proposed day off on 30 April 2019, says in his statement, he told the applicant nothing more than that he would need to complete a form to apply for a day off. Mr Wallace’s evidence does not go so far as to even suggest the applicant would not be given leave if he applied in writing for it.
During the course of cross-examination, the applicant was shown dash cam footage of his fall. He agreed he was looking back and forth around the area where he was standing immediately before the fall, and said he was doing so because he was looking for a concrete truck which he and his co-workers were expecting to arrive so the next pour of concrete could take place.
The applicant rejected suggestions he was dizzy before his fall and said after he stumbled that he struck his shoulder and head, tried to get up and felt dizzy and fell back down. He said he believes he fell because the sand under his feet gave way. No evidence has been called by the respondent from the applicant’s co-workers who were in the immediate vicinity of the fall to counter this suggestion by him.
Mr Hanrahan suggested to the applicant he was fabricating the circumstances of the fall to obtain compensation, a suggestion rejected by the applicant. The applicant denied Mr Hanrahan’s suggestion he was exaggerating by describing the fall as “severe”.
Lastly, Mr Hanrahan suggested to the applicant he used the opportunity presented to him at work to fall and to induce a seizure so he would not have to attend Court the following day. The applicant rejected that suggestion out of hand.

FINDINGS AND REASONS

Injury

For the following reasons, I find the applicant suffered injury to his right upper extremity and to his neurological system by way of an epileptic episode as a result of the fall on 29 April 2019.
The respondent has submitted the applicant deliberately fell in order to facilitate an epileptic seizure with a view to either avoiding a Court appearance the following day or to obtain worker’s compensation. I reject the respondent’s submission that the applicant was looking around at other workers as part of a plan to stage a fall. In my view, the video evidence shows nothing more than the applicant walking around a busy work site then stumbling and falling, all while in the vicinity of at least six other people.

I accept Mr Carney’s submission that the dash cam footage shows the applicant’s foot giving way, and him falling into the ditch adjacent to the area of the concrete pour. There is no evidence provided by any of the applicant’s co-workers who were present on the date of injury to contradict his assertion that they were waiting the arrival of another concrete truck in order to commence another pour. Indeed, no evidence has been led by the respondent from any of the applicant’s co-workers, noting there were six of whom can be seen on the dash cam footage; one of whom was no more than a metre away from the applicant at the time of his fall.

Instead, Mr Wallace provided a statement in relation to the applicant’s fall. I note he was not present at the accident site and he does no more than provide a commentary on the dash cam footage. As such, I find his evidence surrounding the fall itself of very limited utility. Mr Wallace is in no better position to comment on the lead up to and mechanism of the applicant’s fall than any other person watching the video.

In any event, Mr Wallace’s view that the applicant was “looking around to see if someone was watching and fake the fall” is rejected. As already noted, there were no fewer than six lay witnesses in the immediate vicinity of the applicant’s fall, yet the respondent has not provided any evidence from them, nor any explanation as to why no statements from those workers are in evidence. Instead, the respondent’s owner and director has sworn a statement which, in terms of the actual mechanism of injury, does no more than provide commentary and lay opinion on the incident at issue. To put it mildly, it is unusual to rely on evidence of that nature in support of what is tantamount to an allegation of fraud in circumstances when there are half a dozen actual witnesses to the fall and to the condition of the area where the applicant fell who are not called to give evidence.
Mr Wallace’s contention, and the respondent’s submission, that the applicant was looking around for an opportunity to stage a fall stands in contrast with the film itself. The applicant’s fall takes place soon after a co-worker comes and stands adjacent to him. If the applicant was waiting to “fake” a fall, it seems to me counterintuitive that he would wait until a witness was standing what appears to be no more than a metre from him before “faking” the fall.

The film of the incident shows the applicant observing his co-workers working on wet concrete. In my view, there is nothing in the film which demonstrates the applicant contriving a fall. He appears in my view to stumble then fall down an embankment. Likewise, his looking around in the lead up to the fall is insufficient to satisfy what is, on the part of the respondent, essentially an allegation of fraud. The applicant states he was looking around from time to time as he was awaiting the arrival of another concrete truck. No evidence from anyone else at the work site has been called to contradict the assertion that a truck was due to shortly arrive on the scene.

The applicant was in a dynamic work environment surrounded by colleagues. His evidence is he was waiting for another cement truck to arrive and that is why he was looking around from time to time, in between watching what his colleagues were doing. The only evidence to contradict this version of events is Mr Wallace who, as already noted, was not even present and has provided an unqualified opinion of events based on having viewed the dash cam footage of the fall after it took place.

If the applicant’s version of events concerning waiting on the arrival of another cement truck to arrive was to be contradicted, that could reasonably have been done by providing a statement from one or more of the applicant’s co-workers to the contrary. Instead, there is no evidence to contradict the applicant’s version of events as to the reason why he was standing around waiting and looking around the worksite. Indeed, there is no evidence at all offered by the respondent from any other worker on the site.

Mr Hanrahan submitted the applicant deliberately fell to avoid going to Court the following day. He also submitted the applicant deliberately fell in order to claim compensation. I reject those submissions for the following reasons.

Firstly, as already noted, there is no evidence the applicant’s request for leave for 30 April 2019 had been rejected. Secondly, the evidence discloses the applicant has suffered previous seizures following head impact, and had always returned to work. Indeed, Mr Wallace noted at [41] of his statement that the applicant received a medical certificate as early as 7 May 2019 stating he could return to work. In my view, the obtaining by the applicant of such a certificate hardly suggests the actions of a malingerer or someone feigning injury to obtain worker’s compensation.

In his submissions, Mr Hanrahan resiled from the earlier position taken by the respondent that the applicant had suffered a seizure which prompted his fall (recording of hearing on 27 May 2021 at 1:38:00). Rather, Mr Hanrahan stated the respondent’s case was the applicant stumbled down the sandbank, “perhaps intended to fall down the sandbank” given the way he looked around so many times in the lead up to the fall. He suggested the applicant did so against a background of non-compliance with the applicant’s anti-epilepsy medication and that he slipped intentionally to avoid going to Court the following day (recording 27 May 2021 at 1:40:00).
The respondent also submitted the epileptic episode is a disease process and therefore the applicant has failed to prove his employment was the main contributing factor to it, rather than a substantial contributing factor.

I reject that submission on two bases.
Firstly, an applicant is able to rely on injury simpliciter despite the existence of a disease, as was highlighted in the High Court decision of Zickar v MGH Plastic Industries Pty Ltd [1996] 187 CLR 310 (Zickar). In that case, the worker suffered brain damage due to the rupture, at work, of a congenital aneurysm. The congenital condition could be characterised as a disease, however, that would not have satisfied the requirements of cause (b) of the definition in section 4 of the Workers Compensation Act 1987 (the 1987 Act) as it then was.
The worker succeeded in the High Court on the basis that the rupture itself could be described as an injury simpliciter. The Court held that the presence of the disease did not preclude reliance upon that event as a personal injury. Toohey, McHugh and Gummow JJ agreed with the passage in Accident Compensation Commission v McIntosh [1991] 2 VR 253 that, “It is nonetheless a rupture – something quite distinct from the defect, disorder or morbid condition, which enables it to occur”.
The terms “personal injury” and “disease” are not mutually exclusive categories. A sudden identifiable physiological or pathological change to the body brought about by an external or internal event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the injury being a personal injury.
Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 at [29] (Dayton); McMahon v Lagana [2004] NSWCA 164 (McMahon) at [32]) to be decided after a consideration of all the evidence. See also Workcover Authority of NSW v Walsh [2004] NSWCA 186.
It is also important to note that the employment must be “a” substantial contributing factor to the injury, not “the” substantial contributing factor. The Court held in Mercer v ANZ Banking Corporation [2000] NSWCA 138 that there may be more than one substantial contributing factor to a single injury, of which employment only need be one (at [16]). The Court also excluded the relevance of a predisposition or susceptibility to injury, Mason P saying:
“Section 9A does not require that the employment must be ‘the’ substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition (cf University of Tasmania v Cane (1994) 4 Tas R 156).” (at [27])

In this case, it is the fact that the fall and the applicant striking his head which is clearly a substantial contributing factor to the subsequent epileptic fits. To the extent there is a relevant disease process in this matter, it is the underlying epilepsy, to which employment is neither a substantial contributing factor, or the main contributing factor.
In my view, accepting the applicant as I do, and taking into account the respondent’s submission it does not assert the applicant’s fall was caused by a fit, it is sufficient to find the applicant’s employment with the respondent was a substantial contributing factor to the epileptic episode, not the main contributing factor, as the head strike caused by the fall was an injury simpliciter.
However, even if the respondent is correct and employment must be the main contributing factor to the injury, I find that it is so for the following reasons.
The applicant maintains he had been taking his epileptic medication, however, even if he was not doing so, it was in my opinion the fall at work which was the main contributing factor to the epileptic episode. The applicant’s evidence concerning the onset of epileptic episodes is that he suffered them following head strikes. That appears consistent with the medical material, both contemporaneous and medico legal.
The respondent, having submitted in part the applicant sought to fall so he could prompt a head injury and consequential seizure, cannot in my view then deny such a head injury was the main contributing factor to the seizure suffered. Additionally, if the seizure is to be considered part of the disease process, it is an aggravation of the underlying epileptic condition rather than an underlying disease process itself (see Zickar above).
When examining the question of main contributing factor in cases involving aggravation, it is the causative factors to the aggravation which must be examined, not the causes of the underlying condition. There is a long line of authority to this effect, such as the decision of Arbitrator Harris (as he then was) in Ariton Mitic v Rail Corporation of NSW (Matter number 8497 of 2013, 8 April 2014). That approach has been consistently followed in decisions, such as Mylonas v The Star Pty Ltd [2014] NSWWCC 174 and Egan v Woolworths [2014] NSWWCC 281.
In Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88 (Cant), Burke CCJ applied the High Court decision in Federal Broom Co Pty Ltd v Semlitch (1963) 110 CLR 626 (Semlitch) and noted:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.” (at [17])

Snell DP dealt with the nature of the test for “main contributing factor” AV v AW [2020] NSWWCCPD 9. At [66], the Deputy President said:

“66. I have previously expressed the view that the test of ‘main contributing factor’, inserted into the definition of ‘injury’ in s 4(b) by the 2012 amendments, is more stringent than the test applicable pursuant to s 4(b) in its previous form, which was subject to s 9A of the 1987 Act.[97] There may be more than one ‘substantial contributing factor’. “Section 9A requires that the employment concerned be a substantial contributing factor to the injury. That use of the indefinite article admits of the possibility of other, and possibly non-employment-related, substantial contributing factors.”[98] (emphasis in original). On the other hand, the requirement in s 4(b) inserted by the 2012 amendments, that employment be “the main contributing factor” (emphasis added) permits the existence of only one such factor. The requirement of ‘the main contributing factor’ involves a more stringent connection with the employment than the requirement of a ‘a substantial contributing factor’ that applied to ‘disease’ injuries prior to the 2012 amendments” …

70. In Awder Pty Limited t/as Peninsular Nursing Home v Kernick, I expressed the view that whether ‘substantial contributing factor’, for the purposes of s 9A of the 1987 Act, was satisfied was “a question to be decided on the evidence overall, including a consideration of the matters described in section 9A(2). It is not purely a medical question.” That view was applied by Keating P in Hogno v Fairfax Regional Printers Pty Limited and by Roche DP in Villar v Tubemakers of Australia Pty Ltd. The test of ‘main contributing factor’, like that of ‘substantial contributing factor’, involves a broad evaluative consideration of potential competing causative factors. It should be decided on the evidence overall and is not purely a medical question.
71. In El-Achi Roche DP, considering the application of the test in s 4(b)(ii) in its current form, said:
“That a doctor does not address the ultimate legal question to be decided is not fatal (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [194] to [199] and [203]). In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.” (emphasis added)
72. I agree with the above passage from El-Achi. The Deputy President in El-Achi also referred, in my view correctly, to the ‘main contributing factor’ test as “one of causation”. This is consistent with the discussion of s 9A of the 1987 Act by the Court of Appeal in Badawi v Nexon Asia Pacific Pty Limited. Their Honours referred to the “causative element” of the test in s 9A. It is consistent with the discussion in State of New South Wales v Rattenbury in which Roche DP, dealing with s 4(b) after the 2012 amendments, discussed whether ‘main contributing factor’ was satisfied, by reference to whether there were competing causal factors to the relevant ‘disease’ injury.
73. In Bradley, a case involving s 4(b)(ii) in its current form, King SC ADP referred to the question posed by an Arbitrator, “whether or not ... the [worker’s] work throughout his working life as a painter and decorator had been the main contributing factor to the aggravation of his shoulder disease”. The Acting Deputy President described this question as the correct one.”

As the Deputy President noted at [76], where a relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. It is necessary to consider firstly whether there were competing causal factors (employment and non-employment related) of the aggravation, and in considering those relevant contributing factors, whether employment represented the main one.
I am satisfied, applying a common sense evaluation of the evidence with regards to causation pursuant to the decision in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, that the main contributing factor to the epileptic seizure suffered by the applicant was the head injury suffered in the fall which occurred on 29 April 2019. It was the fall suffered by the applicant in the course of his employment which led to the head injury and which sparked the epileptic episodes after it. There is no issue the applicant suffered underlying and pre-existing epilepsy, but as already stated, the injury by way of seizure is an aggravation of that condition, and accordingly the relevant factual exercise is to examine the evidence on a common-sense basis to determine the main contributing factor to the aggravation, not to the underlying condition itself. The only substantive evidence of what happened in the fall is that of the applicant, who recounts in his statement and in cross examination that he suffered seizures after striking his head in the fall.
Mr Wallace’s evidence does not provide any insight into whether the applicant struck his head in the fall, and nor could it, given the applicant’s landing is obscured from view in the dash cam footage. As already noted, there is no statement evidence from the applicant’s
co-workers on site which in anyway contradicts his version of the injuries suffered in the fall.
That version is also supported by the ambulance report, which refers to the applicant suffering epileptic seizures following a “witnessed fall”. That document is plainly cotemporaneous to the fall and is the first recorded recounting of the applicant’s injury after the fall took place. It supports the applicant’s version of events. Although later clinical entries refer to the possibility of a seizure causing the fall, the applicant’s evidence and the ambulance notes contradict this position, which in any event appears to me to be an attempt by the clinician to determine the cause of the fall, rather than a recounting of any history given to them by the applicant at the hospital. In any event, as already noted, the respondent surrendered the position that the applicant may have suffered a seizure which caused his fall.
In relation to the right shoulder injury, having found for the applicant of the mechanism of the fall, it follows I find in his favour concerning the right shoulder injury. The respondent’s section 78 notice alleged the right shoulder injury was intentionally incurred, whilst
Mr Hanrahan submitted the Royal Prince Alfred Hospital (RPA) documents demonstrated the absence of any radiographic study to the right shoulder, suggestive of no injury having been suffered. However, the documents do show (Reply p145) that the applicant complained of bilateral shoulder tenderness on the day of injury and was discharged with a plan for a right shoulder x-ray.
The applicant told the various doctors in the case that his impact in the fall involved his right shoulder. He complained of pain immediately in that body part, including to his general practitioner and at RPA. General practitioner Dr Islam diagnosed subacromial bursitis in the right shoulder, and recommended an injection to it. That injection took place, however, according to the applicant it provided no benefit and in fact made his shoulder feel worse. The fact of contemporaneous complaint of right shoulder injury is consistent with both the RPA discharge notes and the medical certificate of Dr Sellathurai, general practitioner, dated 6 May 2019. It cannot, in my view, be suggested the right shoulder symptomology is a matter of recent invention.
The fact that Dr Mellick, independent medical examiner (IME) for the respondent found no identifiable whole person impairment to the right shoulder does not preclude a finding of injury to that body part. Indeed, Dr Mellick acknowledges the applicant underwent an injection to the right shoulder, and although he found no impairment, he does not go so far as to find there was no injury to the applicant’s right upper extremity to begin with.
On balance, the preponderance of the medical evidence supports the findings of injury to both the right shoulder and to the nervous system by way of an epileptic seizure as a result of the fall on 29 April 2019. Accordingly, the matter will be remitted to the President for referral to a Medical Assessor to determine the applicant’s whole person impairment, if any, to those body parts.
In finding in favour of the applicant, I reiterate that I reject the respondent’s submission he fabricated the fall to mimic the effects of a seizure afterwards, or that he was prepared to accept the consequences of bringing about a seizure in order to avoid attending Court the following day or to claim workers compensation.
Allegations of the kind raised by the respondent in this matter are extremely serious, and in my view it is concerning they are raised based on what can best be described as extremely tenuous lay evidence from Mr Wallace, who was not even present, and because the applicant did not disclose his epilepsy when he applied to work with the respondent.
It also seems to me that a respondent in this position cannot have it both ways. It cannot on one hand allege an applicant is an unreliable witness who stages his accident and fabricate symptoms in order to malinger, while at the same time allege that the reason for the same applicant’s unreliability is that he omitted to mention an illness in order to obtain employment. Moreover, the applicant attempted to return to work within two weeks of the accident. Both his applying for work with the respondent and his rapid return to work are, in my opinion, hardly the actions of a malingerer.
Additionally, and importantly, the applicant was observed in hospital having further seizures after the fall, and the ambulance case description (Reply p112) notes seizures after the fall, which were witnessed by co-workers. None of whom were called to give evidence or provided a statement.
In my view, the evidence in this matter is overwhelming. The applicant suffered a fall in the course of his employment with the respondent on 29 April 2019. He suffered seizures after that fall, which was the main contributing factor to the seizures. In my view, the applicant has satisfied the onus on the balance of probabilities that the injury to his nervous system and to his right upper extremity took place. By contrast, the respondent has fallen short of proving its allegations of what is essentially fraud against the applicant for the reasons which I have already set forth.
It is trite to say that the evidence relied upon by the respondent in support of an allegation that an injured worker fabricated or staged an accident can also be used as evidence on the primary question of whether the applicant has satisfied his onus of proof in establishing an injury took place. I have taken the evidence put forth by the respondent into account in finding in favour of the applicant on the question of injury, for which he bears the onus. In doing so, I have also taken into account the respondent resiling from its position that the applicant suffered a seizure which caused the fall, as opposed to the fall causing him to suffer a seizure.

SUMMARY

For the above reasons, the matter will be remitted to the President for referral to a Medical Assessor to determine the level of whole person impairment suffered by the applicant to his nervous system and right upper extremity (shoulder).

[2021] NSWPIC 216

30 June 2021