Deen v Sheipouri & WorkCover Authority of NSW

[2007] NSWWCCPD 177

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE 

COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Deen v Sheipouri & WorkCover Authority of NSW [2007] NSWWCCPD 177

APPELLANT:  Adam Deen

FIRST RESPONDENT:  Abdul Karim Sheipouri

SECOND RESPONDENT:  WorkCover Authority of NSW

FILE NUMBER:  WCC11261-06

DATE OF ARBITRATOR’S DECISION:          21 March 2007

DATE OF APPEAL DECISION:  9 August 2007

SUBJECT MATTER OF DECISION:                Treatment of the evidence

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Keir & Associates Solicitors

First Respondent: Sparke Helmore Lawyers

Second Respondent: F Daniel & Associates Solicitors

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 21 March 2007 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.

The Respondents are to pay the Appellant, Mr Deen’s costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 16 April 2007, Adam Deen sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 21 March 2007. The Respondents to the appeal are Abdul Karim Sheipouri and the WorkCover Authority of NSW. Mr Sheipouri did not have workers compensation insurance at the time of the alleged injury.

1. Mr Deen (formerly Habib Nazom Alea ALSA’IDY) was born in Iraq on 1 July 1975 and is aged 32. He arrived in Australia in February 2001 and is a permanent resident. Mr Deen claimed that he commenced employment as a painter for Mr Sheipouri in October 2003, and that, on 31 October 2003, while painting a window of a house at Rosebank Avenue, Epping, he fell from a small ladder injuring his right arm and elbow.

1. By letter dated 9 November 2005, Mr Deen’s solicitor made a claim for workers compensation on Mr Sheipouri who, as stated, was uninsured, and on the Uninsured Liability and Indemnity Scheme administered by the WorkCover Authority. The initial claim was for medical treatment expenses and compensation for permanent impairment and pain and suffering. This was later amended to include a claim for weekly compensation.

1. On 25 July 2006, the Commission registered Mr Deen’s ‘Application to Resolve a Dispute’ in respect of his claim. The WorkCover Authority filed a ‘Reply’ on 4 August 2006. When the Arbitrator conducted a conciliation conference with the parties on 16 November 2006, she discovered that, on the advice of the Commission, Mr Sheipouri had not lodged a ‘Reply’. The matter was therefore adjourned until 14 December 2006. Mr Sheipouri subsequently lodged a ‘Reply’ on 1 December 2006. When, on 14 December 2006, conciliation proved unsuccessful, the Arbitrator conducted an arbitration hearing. The Arbitrator’s decision, issued on 21 March 2006, is set out below.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 21 March 2007, records the Arbitrator’s orders as follows:

“1. Award in favour of the Respondent.
2. No order as to costs.”

1. In the Statement of Reasons for her decision, the Arbitrator said, at paragraph 25:

“In my view it is impossible to come to any conclusion with respect to this claim. The applicant bears the onus of supporting his case, and I do not believe he has done so. The inconsistencies are too great in the fundamental areas, ie date of injury and whether the injury occurred at work or somewhere else. There was certainly some type of incident as confirmed by Mr Sheipouri, but what date it occurred on and whether it lead to the injury claimed is impossible to ascertain. The two statements of the Applicant, the statement of Mr Malekchahe, and also the statement of Mr Sheipouri do not provide a narrative from which it is possible to make reasonable findings. The lack of any medical evidence for the period between the Applicant’s attendance at Auburn Hospital Emergency Unit and the initial consultation with Dr Abbas Al Taiff on 1.3.04 is also a cause of concern, and the clinical notes or reports may have assisted with confirmation of the events alleged to have occurred either in October or November 2003. One possibility is that the Applicant injured his elbow in October 03 and after resting it for a couple of weeks, commenced work with the First Respondent, temporarily aggravating it in late November 03, as opined by Dr Bauze. Another possibility is that the Applicant commenced work in early October 03, and injured his right elbow on 31 October 03 during the course of his employment. There is insufficient reliable and consistent evidence to enable me to make a finding on the balance of probabilities that the incident and injuries as contended by the Applicant occurred as claimed.”

1. The Arbitrator therefore concluded that Mr Deen had failed to establish his claim.

ISSUES IN DISPUTE

1. The grounds of appeal identified by Mr Deen’s solicitor are as follows: the Arbitrator (1) failed to make findings of fact, (2) failed to provide proper reasons for her decision, (3) failed to make a decision, (4) took into account evidence neither the subject of the dispute nor the subject of submissions, (5) raised issues in her decision without giving the Applicant the opportunity to make submissions on those issues, (6) failed to properly consider the evidence, and (7) failed to consider the fact that neither the Applicant nor Mr Malekchahe was cross-examined. The parties’ submissions are discussed below.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. I have had regard to Practice Directions Numbers 1 and 6, the documents before me, and the submissions by the parties. The Respondents submit that the appeal can be determined on the papers. Mr Deen’s solicitor submits that because the Arbitrator failed in her duty to decide the dispute and failed to provide the Applicant with an opportunity to call evidence or make submissions relating to issues first raised by the Arbitrator in her decision, the appeal should not be dealt with on the papers. Nevertheless, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

LEAVE

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the amount of compensation at issue is at least $5,000 and comprises the whole of the amount in dispute, the Arbitrator having made an award in favour of the Respondents. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.

FRESH EVIDENCE

1. Mr Deen’s solicitor seeks to introduce fresh evidence. ‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:

“(6)     Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”

1. Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:

“New Evidence

Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.

In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”

1. Practice Direction No 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:

   “ -a schedule of the new evidence,
     -a copy of the new evidence,
     -a brief outline of the new evidence and the reasons why it was not given in the
      proceedings before the Arbitrator, and
     -submissions why the new evidence should be admitted.”

1. Mr Deen’s solicitor seeks to introduce the following new evidence: (1) a further statement by Mr Deen dated 11 April 2007, (2) a further statement by Mr Malekchahe dated 11 April 2007, (3) clinical notes of Dr Said (with translation attached), and (4) report of Dr Machart dated 1 April 2004. Mr Deen’s solicitor states that the two statements were not provided in the proceedings before the Arbitrator because the issues raised in them were not brought to the attention of Mr Deen until the Arbitrator delivered her decision. Mr Deen’s solicitor contends Dr Said’s clinical notes address a concern raised by the Arbitrator in her decision, not raised at the hearing - that she did not accept that Mr Deen had been seen by a general practitioner prior to his seeing Dr Al Taiff in January 2004 [sic – March 2004]. With regard to Dr Machart’s report dated 1 April 2004, this relates to a comment made by the Arbitrator at paragraph 24 of her decision as to why Dr Al Taiff had not mentioned that he referred Mr Deen to Dr Machart. This was not raised by the Arbitrator at the hearing. Had it been, the report would have been tendered.

1. The Respondents oppose the admission of new evidence. Mr Sheipouri’s solicitor states that all the above evidence could have been provided prior to the hearing. Moreover, Mr Deen’s solicitor has failed to establish the importance of leave to admit the new evidence being granted. Should leave be granted, Mr Sheipouri’s solicitor will seek leave to respond with new evidence. The WorkCover Authority submits there is no material to suggest that the new evidence was not available at the time of the arbitration hearing or could not have been discovered with reasonable diligence. Furthermore, there is nothing of such probative value that it would change the outcome of the case.

1. I have reviewed the transcript of the arbitration hearing. I note Counsel for Mr Deen told the Arbitrator, when she said she was going to swear in Mr Deen “in case we wanted to ask him some questions”, that he did not intend to call Mr Deen to give evidence (transcript pp 20-21). Mr Malekchahe was present at the hearing but was not called to give evidence (transcript p 21). I note the submissions by the two Respondents at the hearing, which quite clearly raised as issues the date of injury and the period during which Mr Deen was employed by Mr Sheipouri. The Respondents’ submissions were made before Mr Deen’s Counsel made his submissions and, while he addressed these issues, it would have been open to him to seek permission to call either Mr Deen or Mr Malekchahe to give evidence in order to clarify what had occurred. Counsel did not do so, and I am not persuaded that I should now grant leave to admit these two new statements in evidence.

1. With regard to Dr Said’s clinical notes, given that the Auburn Hospital Emergency Department clinical records were in evidence at the hearing, in my view Dr Said’s notes are of little probative value. A reading of Mr Deen’s statement dated 23 May 2006 indicates that it is Dr Faiz’s evidence that would have assisted in clarifying the sequence of events.

1. Finally, with regard to the report of Dr Frank Machart, Orthopaedic Surgeon, dated 1 April 2004, this seems of little probative value since Dr Machart does not record in his “History” the circumstances in which the fall causing Mr Deen’s injury occurred.

1. I am not therefore satisfied by Mr Deen’s solicitor’s submission that fairness requires that I should grant leave to introduce these four documents as fresh evidence.

SUBMISSIONS, DISCUSSION AND FINDINGS

1. The first ground of appeal is that the Arbitrator failed to make findings of fact, in so far as she failed to find, first, whether Mr Deen suffered an injury and, second, whether that injury occurred in the course of his employment. The Arbitrator found there was insufficient reliable and consistent evidence to enable her to make a finding as to whether the incident and injuries occurred as claimed by Mr Deen. Mr Deen’s solicitor points to the evidence of Mr Deen, Mr Malekchahe and the Auburn Hospital records in support of his contention that there was sufficient evidence to make such a finding.

1. Mr Sheipouri’s solicitor submits that the Arbitrator took into account all the evidence and submissions but was left with significant inconsistencies, particularly in Mr Deen’s accounts of what occurred. The WorkCover Authority submits the Arbitrator summarised the relevant evidence and submissions of the parties, and discussed the material before her. Ultimately, there were so many inconsistencies that the Arbitrator felt constrained to find as she did.

1. I have reviewed the evidence. As the WorkCover Authority points out in its submissions, it was agreed by the parties at the arbitration hearing that, based on the records of Auburn Hospital, Mr Deen suffered an injury to his right elbow on 31 October 2003 (transcript p 19). In my view, this is not adequately stated as a finding in the Arbitrator’s Statement of Reasons, although such a finding is clearly supported by those records. At issue, however, was whether there was a later injury, on or about 26 November 2003, which was the date first nominated by Mr Deen and his solicitor as the date on which the injury was claimed to have occurred.

1. I note the x-ray report of Dr Graeme Shirtley, dated 26 November 2003, in which he stated that a bony fragment in the radio-humeral joint “does not appear to have altered significantly since the initial films of October 2003”. In my view, this comment strongly suggests the x-ray of 26 November 2003 was a follow up to the initial x-ray of 31 October 2003, referred to in the Auburn Hospital records. This is consistent with the explanation given by Mr Deen in his supplementary statement dated 23 May 2006, that he mistakenly took the date of the accident to be the date of the second x-ray, believing this to be the first x-ray he had at Auburn Hospital. I note that Dr Max Ellis, Surgeon, in his report dated 27 October 2005, in the section of the report on the “History of Injury”, recorded that the injury occurred on 26 November 2003. However, this report pre-dated the date the ‘Application to Resolve a Dispute’ was filed with the Commission in which the same mistake was made. The same comment can be made of the report of Associate Professor Robert Bauze, Orthopaedic Consultant, dated 30 March 2006, and his record that he was told by Mr Deen that the injury occurred on 26 November 2003. Remembering that Mr Deen’s first language is not English and given, it would appear, that he has no records of his alleged employment with Mr Sheipouri who never issued him with any relevant documentation, Mr Deen’s explanation for his mistake is not incredible. The statement of Mr Malekchahe dated 29 August 2006, though short on detail, supports Mr Deen’s amended account of the relevant events.

1. I am satisfied from my review of the evidence that the Arbitrator made an error of fact by failing to make a finding about when the claimed injury occurred. I therefore intend to set aside the Arbitrator’s decision on this ground, and it is appropriate that I remit the matter to a different arbitrator to determine the matter afresh.

1. The Arbitrator’s failure to make a finding as to when Mr Deen suffered the injury to his right elbow seems to have clouded her addressing the second issue, which was whether the injury arose out of or in the course of his employment with Mr Sheipouri (in accordance with section 4 of the Workers Compensation Act 1987). If Mr Deen suffered only one injury, on 31 October 2003, the question then is whether, at that time, Mr Deen was employed by Mr Sheipouri, and whether the injury arose out of or in the course of his employment. I note the Auburn Hospital records state that Mr Deen said he “fell from 1.5m height while on ladder at home”. However, in his statement dated 16 February 2006, Mr Deen said, at paragraph 27:

“After I was injured, Abdul [Mr Sheipouri] told me to tell the people at the hospital that I fell down at home, because if I told them I was injured at work, I would lose everything. My friend advised me to tell the truth, but I said no that I could not say that, because my boss had told me not to say that I was injured at work. The people at the hospital could tell that I had been working, because I had paint all over me. At the time of the injury, I did not know about compensation of the work cover [sic].”

1. Mr Sheipouri, in his statement dated 4 March 2006, acknowledged that “Habib worked for me for about 10 days” (paragraph 9), and that in the course of that work there was an occasion when Mr Deen claimed to have fallen off the ladder. Mr Sheipouri said that on the morning of the incident, he was working inside the house when he heard Mr Deen calling out. He went outside to find paint all over the ground and over the wall. He did not believe that the paint would get everywhere like that if Mr Deen had fallen off the ladder. He did not believe that Mr Deen had fallen off the ladder and injured himself (paragraph 18). Mr Sheipouri’s account is different in some important respects to that of Mr Deen, for example, as to whether Mr Deen was an employee, the number and sequence of days worked, how much Mr Sheipouri paid Mr Deen, and how Mr Deen got from the house where the alleged accident occurred to Epping Station.

1. My overall impression is that further factual analysis was required and that the Arbitrator would probably have benefited from hearing oral evidence, for example from Mr Deen, Mr Malekchahe and Mr Sheipouri.

1. The second ground of appeal is that the Arbitrator failed to give proper reasons. Mr Deen’s solicitor submits that the Arbitrator “should have undertaken a critical and comprehensive analysis of the whole of the evidence and explained why despite its content ... it was insufficient”. Mr Sheipouri’s solicitor submits the Arbitrator adequately explained the basis for her decision. The WorkCover Authority submits that lengthy or elaborate reasons are not required but rather the essential grounds on which the decision rests should be articulated (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, at 280); in this instance, “it is abundantly clear why the Arbitrator decided as she did”.

1. In my view, the Arbitrator adequately articulates the reasons for her decision. She reviews the evidence and submissions and, in particular, discusses the perceived inconsistencies that lead her to finding that it was “impossible to come to any conclusion with respect to this claim”. I therefore reject this ground of appeal. However, in my view, as indicated above, it was her analysis of the evidence that lead her to make an error of fact.

1. The third ground of appeal is that the Arbitrator failed to make a decision when there was sufficient evidence to enable her do so. Both Mr Sheipouri’s solicitor and the WorkCover Authority submit that the Arbitrator did make a decision, which was that the Applicant had failed to establish his case on the balance of probabilities. At paragraph 26 of her Statement of Reasons, the Arbitrator summarised the resolution of the issues in dispute by finding that “the Applicant has failed to establish his claim”. I agree with the Respondents’ submissions – the Arbitrator did make a decision - and reject this ground of appeal. 

1. The fourth ground of appeal is that the Arbitrator took into account evidence that was neither the subject of the dispute nor of submissions. Mr Deen’s solicitor points to the Arbitrator’s discussion of inconsistencies in the evidence which were not specifically raised by her during the course of the hearing. Both Respondents note that the Arbitrator invited all parties to make submissions on the evidence as they saw fit, and it was open to Mr Deen’s Counsel to deal with any obvious inconsistencies in the evidence. I agree. In my view, there is no substance to this ground, which I therefore reject. I note Mr Deen’s Counsel had the benefit of hearing submissions from the representatives of the two Respondents before making his submissions.

1. The fifth ground of appeal is that the Arbitrator did not give the Applicant an opportunity to make submissions on issues raised. Mr Deen’s solicitor refers to examples of this error raised in relation to the fourth ground of appeal. As the Respondents note, this ground has already been addressed above and I reject it.

1. The sixth ground of appeal is that the Arbitrator failed to properly consider the evidence. Mr Deen’s solicitor’s submissions on this ground are closely related to those in relation to the first ground on which I have found the Arbitrator made an error of fact. In my view, there is no need for me to revisit the Arbitrator’s consideration of the evidence.

1. The seventh and final ground of appeal is that the Arbitrator failed to consider the fact that neither the Applicant nor Mr Malekchahe was cross-examined. I note that while the worker bears an onus of proof to establish that he received the injury in respect of which his claim is made, and in the course of or arising out of his employment (Bryer v Metropolitan Water, Sewerage & Drainage Board (1939) 39 SR (NSW) 321, at 331-333 (per Jordan CJ)), in my view, in this instance, the Arbitrator should have made a closer analysis of the evidence and factual issues. As stated above, the appropriate outcome is for the decision to be set aside and the matter to be remitted to a different arbitrator for redetermination in accordance with these reasons.

DECISION

1. The decision of the Arbitrator dated 21 March 2007 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.

COSTS

1. The Respondents are to pay are to pay Mr Deen’s costs of this appeal.

Robin Handley

Acting Deputy President  

9 August 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE