Devi v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Devi v Workers Compensation Nominal Insurer (iCare) & others [2022] NSWPIC 389
APPLICANT:	Saleshani Devi
FIRST RESPONDENT:	Neha Anushka Kumar t/as Krazzy Snacks and Catering
SECOND RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
MEMBER:	Paul Sweeney
DATE OF DECISION:	19 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Worker claims compensation from uninsured employer and the Nominal Insurer; employer alleges that worker had ceased to be employed by her three months before the date of injury; employer unrepresented at the arbitration hearing; factual issue of employment resolved by acceptance of the evidence of the worker and her witnesses in preference to the respondent and her witnesses on the employment issue; conversely, worker not accepted as to the nature of her injuries; Held – award for the worker for weekly payments and medical expenses against the first respondent; Nominal Insurer to pay the award and be reimbursed by the first respondent.
DETERMINATIONS MADE:	1. The applicant suffered injury to her right shoulder and right knee arising out of and in the course of her employment with the first respondent on 26 March 2020. 2. As a result of that injury the applicant had no current earning capacity from 27 March 2020 to date and continuing. 3. At the date of the injury the first respondent was not insured under a policy of insurance in respect of its liability to pay compensation under the Workers Compensation Act 1987 (the 1987 Act). 4. It is conceded by the second respondent that at the time of injury the applicant’s pre-injury average weekly earnings was $840. 5. Award for the applicant against the first respondent for weekly compensation at the rate of $798 per week pursuant to section 36 of the 1987 Act from 27 March 2020 to 26 June 2020 and at the rate of $672 per week pursuant to section 37 from 27 June 2020 to date and continuing. 6. Award for the applicant against the first respondent in respect of medical and hospital expenses pursuant to section 60. 7. Order the second respondent to pay the compensation awarded against the first respondent from the Workers Compensation Insurance Fund established under section 154D of the 1987 Act. 8. Order that the first respondent reimburse the Nominal Insurer for amounts paid out of the Workers Compensation Insurance Fund in respect of compensation awarded against it in [5] and [6] above.

STATEMENT OF REASONS

BACKGROUND

By an Application to Resolve a Dispute (the Application), Saleshani Devi (the applicant) claims compensation from Neha Anushka Kumar (the first respondent). She alleges that on 26 March 2020 she suffered injury to her right shoulder, neck, back and right knee in the course of her employment.
As the first respondent did not have a policy of insurance indemnifying her in respect of liability to pay compensation under the Workers Compensation Act 1987 (the 1987 Act) at the time of the alleged injury, the applicant has joined the Nominal Insurer (the second respondent) in accordance with s 140 of the 1987 Act.
The first respondent is not legally represented. She has not been present at any of the conferences or arbitration hearings appointed by the Personal Injury Commission (the Commission) in this matter. Her son, Avinesh Thakur, appeared at the conciliation conference and arbitration hearing conducted audio visually on 14 April 2022. I will refer to the issue of representation further below.

PROCEDURE BEFORE THE COMMISSION

By these proceedings, the applicant claims weekly compensation from the date of the alleged injury, an order indemnifying her in respect of her medical and hospital expenses, and permanent impairment compensation as a result of injuries to her right shoulder, neck and right knee.
By a series of notices pursuant to s 78 of the 1987 Act, the second respondent disputed liability to pay compensation. It denied that the applicant was employed by the first respondent on 26 March 2020. It also denied that the applicant suffered the injuries alleged in the Application and, alternatively, asserted that she was not incapacitated and entitled to the compensation claimed in the application.
The matter has a lengthy procedural history which commenced with a telephone conference on 22 February 2022. At that telephone conference, both the applicant and the second respondent were represented by solicitors. At the conclusion of the conference, I fixed the matter for a conciliation conference and arbitration hearing to be conducted audio- visually on 14 April 2022.
I made orders that the parties should advise the first respondent of the hearing date by registered mail forwarded to her business address and also by email to the email address of Avinesh Thakur, her son. The correspondence was to enclose the entirety of the evidence in the matter and to inform the first respondent that if she was not represented in person or by a lawyer at the hearing an award of compensation may be made against her.
At the arbitration hearing on 14 April 2022, Mr Moffet of counsel represented the applicant and Mr Baker of counsel represented the second respondent. While the first respondent did not appear in person, her son, Avinesh Thakur, appeared and sought leave to represent her.
During the conciliation phase there was some discussion of the evidence before the Commission. Mr Baker suggested to Mr Thakur that the first respondent’s legal position may be enhanced by appointing a lawyer who could adduce evidence from the various witnesses in the matter in the form of signed statements.
Ultimately, Mr Thakur made an application for an adjournment on the basis that the first respondent wished to appoint a lawyer to represent her in these proceedings. While
Mr Moffet formally opposed the application, the interests of justice dictated that the adjournment be granted. While the adjournment may have been inconvenient from the point of view of the Commission and the applicant, it provided an opportunity for the first respondent to refute the claim or to diminish the compensation that she may ultimately be ordered to pay. Accordingly, I vacated the matter and stood the proceedings over for a telephone conference on 16 May 2022.
On 16 May 2022, the applicant was represented by counsel, Mr Moffet, and the second respondent by its solicitor. There was no appearance for the first respondent. Importantly, no further evidence had ben adduced by the first respondent. Accordingly, I set the matter down for an arbitration hearing on 27 June 2022. I again directed that both solicitors serve details of the date and place of hearing on the first respondent’s solicitors by post and email.
When the matter came on for conciliation and arbitration on 27 June 2022, the applicant and second respondent were represented as before. There was no appearance for the first respondent. While I had no doubt that the first respondent was aware of the date and place of hearing, I rang the mobile phone of Mr Avinesh Thakur prior to the commencement of the arbitration and left a message on his phone that the arbitration hearing in the matter was about to commence and, if he wished to make any submission, he should contact me as soon as possible. He did not ring back.
Counsel informed me that it was not possible to reach any resolution of the threshold issues of employment and injury in the matter. In any event, it was unlikely that could be done without the consent of the first respondent. As there was no appropriate basis for conciliation, the matter proceeded to an arbitration hearing.
While it had been envisaged on the first occasion that witnesses would be cross-examined by counsel for both the parties represented, the absence of the second respondent, her husband and Avinesh Thakur made that course impractical. Accordingly, the matter proceeded on the basis of the oral submissions of counsel.

EVIDENCE

The evidence before the Commission is as follows:
(a)    the Application and the documents attached;
(b)    the Reply and the documents attached;
(c)    Applications to Admit Late Documents (AALD) dated 25 January 2022, 6 April 2022 and 22 June 2022, and
(d)    a signed statement of Lloyd Lindsay Harding received by the Commission on 9 June 2022 and a signed statement of Kata Harding also received by the Commission on 9 June 2022.
At the commencement of the arbitration hearing Mr Moffet objected to the signed statements of Lloyd and Kata Harding on grounds relating both form and to substance. They had not been served on the applicant under cover of an AALD. The documents having been forwarded to the Commission at a very late stage precluded the applicant from issuing and serving summonses for the Hardings to attend for cross-examination at the arbitration hearing.
While there was considerable force in this submission, in view of the fact that the first respondent was unrepresented, I ruled after considerable hesitation that the preferable course was to admit these documents. It was open to Mr Moffet to make any submission he wished during the arbitration hearing as to the weight to be given to the documents in the circumstances of the case.
Before the commencement of submissions, Mr Moffet called for a report of
Dr John Bentivoglio, an orthopaedic surgeon, who had examined the applicant at the request of the solicitor for the second respondent. That report had not been served upon the applicant’s solicitor. As the report had been obtained after the issue of the final s 78 Notice in the matter, I ruled that it was subject to legal professional privilege. Plainly, however, an inference could be drawn that Dr Bentivoglio’s opinion did not assist the first respondent on any of the legal issues before the Commission.

SUBMISSIONS

The submissions of the parties are recorded and I do not propose to reiterate in these short reasons each of the arguments of counsel. Mr Baker submitted that the evidence of the applicant was both vague and unreliable. Her account of the injury contained numerous inconsistencies; her assertion of the nature of her injuries was nor borne out by the contemporaneous medical evidence; and several of the witnesses who she had nominated in her statement declined to support her version of events.
Mr Baker highlighted the fact that the applicant stated that she did not perform retail functions in her statement but allegedly served the witness, Anil Chand, when he came to the premises. Similarly, while she said that she played no part in the distribution of product that is what she was doing at the time she says that she was injured. Thirdly, he addressed anomalies in the applicant’s description of how the injury occurred.
It was common ground that the applicant had performed work for the first respondent prior to 26 December 2019. However, there was no acceptable evidence that the applicant had returned to work for the first respondent in February 2020. There was no acceptable evidence that the applicant had returned to work in February 2021. Certainly, there was no documentary evidence to support this assertion. The bank records produced by the applicant at the arbitration hearing demonstrated that she had worked for another employer prior to recommencing work with the first respondent. She had not disclosed this in her written evidence. The pattern of deposits in those accounts was not consistent with an assertion that she was receiving wages from the first respondent.
Further, the applicant had not called or adduced evidence from the wife of the witness,
Mr Anil Chand, who asserted that he saw the applicant fall on 26 March 2020 and that his wife was in the car with him at the time. Mr Chand was a “solitary witness” in the applicant’s case.
Mr Baker took the Commission carefully through the records of the hospitals and medical practitioners who had treated the applicant following the alleged incident on 26 March 2020. He submitted that there was no contemporaneous evidence that the applicant suffered injury to her neck or back in an incident on 26 March 2020 and very little evidence that the applicant had suffered an injury to her right knee.
Mr Moffet accepted that the evidence in connecting an incident at work with injury to the applicant’s lumbar spine was tenuous. However, he pressed the other body parts. He submitted that if the applicant had determined to perpetrate a fraud on the first respondent, as Mr Baker alleged, her attempts to do so were a fiasco. Why, for example, would the applicant nominate several witnesses to the injury, who were not present, at the time. That was not consistent with common sense. It was more probably that the applicant nominated witnesses who were present at the time and who she hoped might support her version of events.
Mr Moffet placed considerable reliance on the fact that the applicant and her husband produced telephone records which proved telephone calls made to her by the first respondent and her husband about the time of the alleged injury. The first respondent’s failure to address the records was a substantial flaw in her case. The telephone calls between the first respondent and her husband and the applicant in or around the time of the incident were consistent with a relationship between the applicant and the first respondent and consistent with the alleged injury occurring at work.
Mr Moffet submitted that contrary to the submission of Mr Baker the medical evidence in the applicant’s case suggested that she was totally incapacitated for work. The failure to adduce evidence from Dr Bentivoglio on this issue necessitated an acceptance of that evidence.
It will be necessary to return to the submissions of counsel in attempting to resolve the issues in dispute. It is first necessary, however, to set out the critical evidence relied upon by both parties who made submissions at the arbitration hearing. What follows is not intended to be a comprehensive survey of all of the evidence. Rather, I set out the salient points of the evidence of some of the witnesses so that the parties can understand the way in which the Commission has resolved the dispute.

The applicant

By a signed statement dated 8 December 2021, the applicant says that she commenced working for the first respondent at Krazzy Snacks and Catering in or around March 2018. She worked from their premises at 4B Lyn Parade Prestons NSW. She states:
“My manager was Ravindra Kumar and my supervisor was his wife, Neha Anushka Kumar. Their son, Avinesh Thakur was involved in the business administration and delivery and distribution side of things.”
The applicant says that she worked full-time hours five days per week with some weekend work if required. She says that her work involved the cooking and preparation of 15 or 16 varieties of Indian snacks and putting them into boxes. These were picked up by distributors and taken to various Indian stores. The first respondent, however, also catered for weddings and parties.
The applicant says that she was paid $60 per day cash in hand irrespective of the hours that she worked. She was not given a payslip and moneys were not paid into her bank account. The applicant says that she was advised of the hours that she was to work by telephone call or alternatively, they would inform her at work what her hours would be during the following few days.
In December 2019, the applicant spoke to the first respondent and her husband and requested a pay increase to $840 per week and that the moneys be paid to her bank account as she needed to apply for a loan and had to show that “I had a job”. She states that she was told that they could not afford a pay increase and she stopped working for them.
The applicant says that in January 2020, the first respondent approached her husband and asked for her to come back to work. She was told that she would be paid “properly”. She says that she was happy to “give it another go”. She states that she recommenced work on Monday 3 February 2020. She states on the following Friday she was paid $110. She continues:
“This problem kept on going on and on for the weeks to follow. Each time I asked him about it and when he would put my wages in the bank account, he would say ‘I will do it next week’.”
The applicant states that the following persons were aware of her working for the first respondent:
·        A co-worker named Joseph who was being paid $70 cash per day;
·        Sheerin Singh – a customer of the business;
·        Dhiren Singh – also a customer of the business;
·        Liaqat Khan, her husband;
·        Lloyd and Kata Harding who were at the business office at Krazzy Snacks and Raji Bupta, their boss, and
·        Geeta Chand and her husband Anil Chand who saw her fall.
The applicant says that on 26 March 2020 the distributors van did not come to the premises and Ravin asked her to help with loading his van. She states:
“The van needed to be loaded with the food and he asked me to help with the loading. This was the first time I had been asked to help to load the van.”
The applicant continues that she dragged two large boxes weighing 20kg across the concrete floor to a position adjacent to the van. She placed the boxes in the rear of the van and pushed them towards the front. However, she was unable to close the back door of the van. In order to carry out this task she stood on a 4-wheel trolley and reached up to pull the back door of the van down. Whilst doing this she “over-balanced and fell off the trolley and landed on her right side”. She states that she hurt her right leg, right knee, right hip, right arm/shoulder, neck and lower back. She states that she screamed when she fell and Ravin asked her:
“What happened? Did you fall?”
The applicant says there were CCTV cameras nearby which would show her working and which may have captured her fall. She states that she reported the injury to the first respondent in the presence of Ravin. When she asked to be taken to hospital, Ravin allegedly stated that he could not take her to hospital “because he would be in big trouble and could get fined $20,000”. He said that she should contact her husband who could pick her up from the factory. He also told her “not to tell anybody that I was injured at work”.
As the applicant could not get her husband on the phone, Ravin and the first respondent put her in the van and took her to their home. Subsequently, her husband picked her up and took her to Mt Druitt Hospital.
The applicant states that the first respondent called her later that day and again on 28 and
29 March 2020. She continues:
“On 29 March 2020 I asked her to pay me and she said at first she could not afford it and then she said she would give me $200 a week while I was off. She also said that she did not have liability insurance because it got too expensive. She said that she was not going to pay my expenses and I never received any money from her and she has not called me since.”
The applicant says that she has been unable to return to work since the injury. She states that she has a “significantly reduced range of motion in the right shoulder”. She has a painful knee and right hip and her lower back is stiff and painful. She says that she is unable to work.

Anil Chand

Mr Chand says that he is an “occasional customer” of the first respondent and that his mechanic is across the road from the first respondent’s premises. He states that the applicant would often serve him when he went there. He states that on 25 March 2020, after he dropped his car off to the mechanic, he purchased snacks from the first respondent. He says that he was served by the applicant.
Mr Chand states that on the following day 26 March 2020, he came back to pay his mechanic for the services in respect of his car. He continues:
“I saw Saleshani putting boxes into the back of the delivery van. There was a driver in the front seat. I saw Saleshani falling down on the ground from behind the van. There was a lady from inside the snacks factory who came to pick up Saleshani from the ground. There was a driver inside the car and he didn’t get out of the car. I was in a rush and I needed to go back to do something else and so I continued on my way. I saw Saleshani was not on her own so I assumed she was going to be taken care of.”

Mr Chand says that some months later he saw the applicant at Hoxton Park and asked her why she was not working at Krazzy Snacks. At that stage she told him that she was unable to work because of her injuries resulting from the fall. Mr Chand says that:
“I told her that I saw the event happen with my own eyes. I saw Saleshani fall. I told her that if she needs me to say I am a witness for anything I can say because I saw it happen.”

Liaqat Maqbool Khan

Mr Khan is the applicant’s husband. He states that in January 2020 the first respondent told him “please send her back to work for us”. He replied that “we would think about it and discuss about it”.
After discussing the matter at home the applicant said that she was willing to give it another go as she needed the money. He states that the applicant recommenced work on 3 February 2020.
Mr Khan states that on 26 March 2020, he finished his bus driving shift at 1pm or 1.30pm. After visiting Aldi to do the grocery shopping, he returned to his car and found that he had four missed calls from his wife. He attaches a copy of a document that is said to be the applicant’s phone records. When he contacted the applicant the first respondent answered the phone and informed him that the applicant had fallen and hurt herself. She told him to “come quickly to her place where she was living and to take her to hospital”. He continues that:
“I then went to go and pick up Saleshani from Ravindra and Neah’s home and took her to Mt Druitt Hospital initially and then drove her to Blacktown Hospital when they told us to go there.”

The first respondent

In a statement taken over the telephone Ms Kumar says that the applicant commenced employment with her business in March 2018 and finished in December 2019. She continues:
“Our busy period is from June up to the end of November and in those months she worked 20-22 hours a week and at other times 12-15 hours a week. She worked Monday to Friday. I have no records kept about Saleshani so I am not able to provide a personal file for her.”
Ms Kumar acknowledges that the applicant was paid “cash in hand”: “she worked as a casual and was on call when we needed her”.
In respect of the injury Ms Kumar states:
“The first time I became aware of the injury being claimed was when I received a telephone call from a neighbour in the shop across from us, “Katha” at “Chasers Snacks” on 0450623303/0470659327 where Saleshani also worked. It was the early part of this year 2020, between 16 to 20 April 2020. I was told that Saleshani originally said that she had hurt her shoulder at home but now she was saying that she hurt it at work but she was not working for me and had not worked for us since December 2019. Saleshani called me a couple of times around April/May 2020 but I did not answer her calls.”
Ms Kumar reiterates that as the applicant finished working for the first respondent in December 2019 she could not have injured her right shoulder working for it on 26 March 2020.

Ravin Kumar

Mr Kumar says that he is not employed in the business although he will occasionally go and sit in the office or accompany the casual drivers as a passenger while they make deliveries of products.
Mr Kumar also records that the applicant had an argument with his wife about what she was being paid in December 2019 and “stopped working for us because we could not pay her what she wanted”. He continues:
“I am able to say that Saleshani has not worked in the business since December 2019.
As far as her injury is concerned she said it happened on 26 March 2020 while she was working for us. That is not right because she was not working for the business at that time and had not been working with us since December 2019.
A person named Katha from ‘Chasers Snacks’ across the road from us called my wife in April 2020, and told her Saleshani Devi had a fall at home and hurt her right shoulder and then after that Saleshani changed her story to say that she had hurt it at work while working for us.”
Mr Kumar reiterates that the applicant could not have suffered an injury on 26 March 2020 “because she was not there and not working for us”.

Avinesh Kumar Thakur

By a statement initially taken over the telephone on 23 June 2020, Mr Thakur, the son of the first respondent, states that while he is employed as a courier driver he assists his parents with the running of Krazzy Snacks and Catering.
Mr Thakur says that he first met the applicant in March 2018 after she commenced work with the first respondent. He states that he discussed wages with her and “we agreed on $16.50 per hour cash in hand with no tax or superannuation being paid for her by the business”. He continues:
“She agreed to that and worked a minimum of 12-15 hours per week in the quiet period and in the busy period from June 2019 to November 2019 she was working between 20-22 hours a week.”
In December 2019, the applicant asked for more money and was told that the business could not afford it. She had not worked for the first respondent since that time.
Mr Thakur also states that he was first made aware that the applicant was injured when he was told by his mother that Katha had called and informed her that the applicant had told her conflicting stories as to how she was injured. He states:
“I did nothing about it because I knew that was a total lie because she had not worked for us since December 2019. I told my mother not to worry about it and if it went further I would look after it.”
Mr Thakur also records that at the time she left the applicant was very upset and said words to the effect:
“I will see that you guys pay for this.”
He also states:
“The story she has told is very good as far as the equipment because we have the trolley and we have the Van and sometimes my father did deliveries and she would sometimes help him because he was on a walking stick and could not bend down so she has the story very good, and I would give her 100%. The only problem for her is that it never happened.
I don’t know how she hurt her shoulder but it was not while she was working for us. She finished in December 2019 and has never worked in the factory again.”

Lloyd Lindsay Harding

By a statement that was initially unsigned Mr Harding states that he has been to the applicant’s home on several occasions. He commences by stating that he does not “have a high opinion of Ms Devi and her practices”. He recounts an incident whereby he made representations to the RTA on her behalf on her assurance that she was not driving a vehicle when infringement notices were issued. He states that he was threatened with Court action as a consequence of his representations. He says:
“I had believed what she told me and it turned out to be all lies.”
Mr Harding continues:
“So when her husband Liaqat Khan asked me to help them out with this story about falling over at Kumar’s factory I said ‘Listen mate she got me in enough trouble with revenue collection telling me lies about the car’. He said ‘oh the car’s gone, we sold it to the wreckers’.”
Mr Harding says that in January of 2020 Raji Bupta, the proprietor of Chasers Snacks required a cook. As Mr Harding knew that the applicant was not working at the first respondent any more he arranged for her to “trial with Raji but for some reason he did not employ her”.
He states that this period of employment was “after she suffered an injury to her right shoulder”. He says that when her husband approached him and asked him to be a witness to the fact that the applicant had fallen over and injured her right arm, he angrily replied:
“Listen mate, what type of document has this woman got? Is she your first wife?”
He said:
“No, she has only got permanent residency.”
I said:
“Well why is she running around telling everyone she has got citizenship? You told me that she fell over at home cooking … in the kitchen and now you want me to tell lies for her and say she did it at work.”
Mr Harding asserts that the applicant told him that if he would not give evidence on her behalf “she was going to tell the taxation department I had been working at Chasers”. He states:
“She told me in the first place that she fell over at home and her husband told me she fell over in the kitchen cooking … which is an Indian dish and then within a few days her husband comes to me/calls me and wants me to say that she fell over at work in the factory across the road.
Saleshani Devi used to call my wife almost every day and since I told them straight I would only be telling anyone who asked the truth, what she has told me and her husband had told me the same thing that she fell over at home, they have not spoken to us since.
I am not close to the old people, the Kumrs but I have never known them to do anything wrong. I really just know them to say hello.”

Kata Harding

By a statement which was initially unsigned dated 15 July 2020 Mrs Harding states that she is unemployed but she sometimes went to help Raji Bupta at Chasers Foods at
6 Lyn Parade, Prestons. She recounts that after ceasing work for the first respondent in December 2019 she and her husband suggested to Mr Bupta that they give the applicant a trial as a cook. Mr Bupta employed her for two weeks but her employment did not continue.

DISCUSSION AND FINDINGS

Employment

Plainly, the question of whether the applicant was working for the first respondent on 26 March 2020 is entirely factual. If she was present and injured as alleged, she was working pursuant to a contract of service.
At the arbitration hearing. Mr Baker emphasised that several of the witnesses nominated by the applicant as able to advance her case had declined to provide statements to the investigator appointed by his client. The investigator noted the following:
(a)Shirin Singh initially agreed to provide a statement to the investigator but subsequently advised that she did not wish to be involved. She told the investigator that she was sure that the applicant worked for the respondent in 2019 but was not able to say whether she worked there again in 2020;
(b)Dhrin declined to provide a statement saying he did not “see anything”. He terminated the conversation and refused to respond to the investigator’s further calls;
(c)Mr Raji Bupta of Chasers Food agreed that he had employed the applicant for a trial over two weeks in January 2020 but decided “she was not the person for the job”. He said that he was unable to say whether she returned to work for the first respondent after the trial, and
(d)while the investigator prepared a draft statement for Mr Harding on the basis of information he furnished, on 14 July he “declined to go ahead with the statement”.
I doubt whether the fact that some of the witnesses nominated by the applicant stated they did not wish to become involved in litigation or could not provide relevant information can be determinative of the issue of whether the applicant was in the course of her employment when she was injured on 26 March 2020. I appreciate that the failure to adduce evidence from any relevant witness may give rise to inferences in accordance with the reasoning in Jones v Dunkel 101 CLR 298. Similarly, the absence of evidence from a critical witness may necessitate a finding that a party has not discharged the onus of proof on a particular issue or in respect of the case generally. I doubt that either of these principles are relevant in this case.
Patently, there remains a significant conflict of evidence between the applicant, her husband, and Mr Chand, on the one hand and the first respondent, her husband, son and Mr Harding on the other. Resolution of the dispute is made more difficult, in my opinion, by the absence of a cross examination. While Mr Baker alleged numerous inconsistencies in the evidence of the applicant he did not seek leave her to cross-examine her. While Mr and
Mrs Harding had been issued with the summonses to attend for the earlier arbitration hearing this had, understandably, not been done for this arbitration. At the time the matter was set down, there was no indication that the first respondent would put on further evidence.
Then, of course, the applicant, her husband and Mr Kumar did not attend the hearing. The first respondent and her husband had taken no part in the proceedings at all. They were not, therefore, available for cross examination on the statements.
During the arbitration hearing, I asked counsel whether I should draw any inferences from the first respondent’s failure to attend the hearing. Mr Baker submitted that it was regrettable but might be explained by the fact she had apparently been told that the second respondent would do all that could be done to defend the matter on her behalf. Mr Moffet submitted that the failure of the first respondent to attend the hearing and make herself available for cross examination should be contrasted with presence of the applicant and her husband at the arbitration hearing. The Commission would read the first respondent’s evidence more critically for that reason.
These evidentiary issues are, of course, peculiar to the procedure in the Commission and to the procedure in Pt4, Div. 6 of the 1987 Act for making, litigating and enforcing claims against an uninsured employer. Common law authorities on the conduct of litigation are unlikely to illuminate the issue. While I believe there is some force in Mr Moffet’s argument,
I doubt that it can be determinative of the case. The outcome must depend upon an analysis of the evidence.
In view of the diametrically opposed evidence in support of the respective cases, I was momentarily attracted to the idea of resorting to the onus of proof to determine the case. However, on reflection this is the case where there the applicant was either at work or was not at work on the day of the alleged injury. No other hypothesis is advanced: cf Rhesa Shipping Co SA v Edmunds (“The Popi M )[1985] 1 WLR 948. It is incumbent upon the Commission to determine the issue on the available evidence.
As I indicated at the arbitration hearing, I have grave reservations about the written evidence of Mr Harding. As Mr Moffet submitted his unsigned draft statement was prepared by another person, possibly an insurance investigator, after a discussion with him. He initially refused to sign this statement. However, on 9 June 2022, Mr Thakur forwarded a signed copy of parts of the statement to the Commission electronically.
The signed version of the statement is plainly incomplete. It has only two pages which contain paragraphs 1 to 5, part of 18, and 19 to 24 of the original statement. It contains ellipses in paragraph 18 and 22, which, at least, suggest that the document has not been carefully read prior to signature. Mr Baker suggested that the fragmentary nature of the statement may have resulted from the photocopying process. But it is also consistent with less innocuous explanations.
There is no evidence of the circumstances in which Mr Harding signed the statement or why he changed his mind about involvement in the case. The former is important. This is not a statement signed by a witness in a solicitor’s office or returned to a solicitor’s office by the witness. It was obtained and forwarded by a person who is also a witness in the case and, undoubtedly, has an interest in the outcome of the litigation. The witness previously indicated that he would not sign it. These circumstances require an explanation.
Thirdly, there is obvious factual error in the statement. In the statement it is said that the applicant worked for Mr Gupta after her shoulder injury with the first respondent. This is plainly incorrect and raises questions about the accuracy of the remainder of the statement. Accordingly, I have concluded that the evidence of Mr Harding is of little value in determining the issues in dispute. Mrs Harding’s evidence is afflicted with some of the same difficulties. However, as she does not directly address the critical matters in issue, it is unnecessary to further consider the weight to be given to her evidence.
In my opinion, many of the criticisms levelled at the applicant’s account of the mechanical circumstances of the injury are not made out. It is not surprising that she was assisting in the first respondent husband on the day of the alleged injury. Mr Thakur concedes that his father sometimes performed the deliveries and that the applicant sometimes assisted him in loading the truck. He states that she has accurately described the equipment used and the nature of the work. However, she was not there at the time.
I have reached the conclusion that the applicant’s account of the injury is more consistent than that pressed by the respondents. I do not completely reject Mr Baker’s criticism of the applicant’s reliability. In my opinion her evidence that she has developed pain at multiple sites on the right side of her body raise considerable doubts about the reliability of her account of post injury symptoms.
There are two aspects of the evidence in respect of injury that weigh in favour of the applicant’s contention. First, the applicant and her husband annex excerpts from their mobile phone records to the statements. The applicant indicates that the first respondent rang her on several occasions in the period surrounding the accident but has not rung her since. The phone records are by no means unambiguous but the applicant’s evidence is relatively straightforward. She has written the first respondent’s first name against a telephone number of the records The applicant was not cross-examined at the arbitration hearing to suggest that her understanding of the records was incorrect.
The applicant states that she was rung by the first respondent on many occasions in March 2020. Immediately before the alleged injury, she was rung on the 23 March 2020. After the injury, she was rung on 27 March, 28 March and 29 March 2020. These telephone calls, of course, may have merely consisted of social chat. But they are also consistent with the applicant’s evidence that the first respondent would contact her as to when she was to next work. Further, if the first respondent did not know that the applicant was injured as she appears to assert, what was the purpose of the calls on 27, 28, and 29 March 2020. The evidence, in my opinion, requires a response from the first respondent as to whether and why she made these telephone calls to the applicant. The absence of a response diminishes the force of her evidence.
The applicant also indicated in statement that there was a CCTV footage which would demonstrate her working for the first respondent and which may record the injury. This evidence is also not specifically refuted by the first respondent or her witnesses. While this evidence is of lesser force than the telephone records, it reinforces my view that the respondent’s evidence has not adequately addressed aspects the applicant’s case.
Secondly, there is the evidence of Mr Chand. It is true that it is unsupported by a statement from his wife who was allegedly present with him at the time of the injury. There are other obvious criticisms that can be made of the circumstances in which Mr Chand made his statement. He fortuitously revealed himself as a witness to the injury some eight months after its occurrence, at a time when the applicant had not obtained the hoped for corroboration from other witnesses. Mr Baker suggested that was a serious conflict between the evidence of Mr Chand and that of the applicant as to whether she served in the respondent’s product at the shop. I doubt, however, that the applicant’s evidence that she worked preparing the product can be interpreted to mean that she never ever engaged with a customer.
While many of the witnesses in this case have an undoubted interest in the outcome, that is not true of Mr Chand. On reflection, I have chosen to accept his evidence.
While the applicant did not give a precise account of the circumstances of the injury at the Mount Druitt or Blacktown Hospitals by 7 April 2020, she informed Dr Rizvi that she had fallen at work and that she had already instructed a solicitor. To the extent that the respondent’s argument suggests recent invention, this evidence would deflect such an attack.

A consideration of these matters leads to the conclusion that I prefer the account of the applicant and her husband on the employment and injury issues to the account of the first respondent, her husband and son, Avinesh Thakur. I should add that the version of events propounded by the first and second respondents is astonishing. It is difficult to believe that the applicant, her husband, and Mr Chand would conspire to fraudulently assert that the applicant was injured at the premises of an employer where she had not worked for three months. Accordingly, I find that the applicant was employed by the first respondent on
26 March 2020 pursuant to a contract of service.

The applicant’s injuries

The next issue is the nature of the injuries sustained by the worker. While I have accepted the applicant’s evidence in respect of employment, I do not accept that she sustained multiple injuries as she alleges in her statement. In order to resolve this issue it is necessary to briefly consider some aspects of the contemporaneous medical evidence. Again, what follows is not a comprehensive survey of that evidence.
Following the injury, the applicant presented to Mt Druitt Hospital at approximately 5.18pm. X-rays revealed a comminuted and mildly impacted fracture of the right shoulder. The history recorded in the Discharge Transfer summary is as follows:
“51 y.o female with right shoulder injury.
Slipped and fell this afternoon.
Landed on right arm.
Denied injury to other areas, denied injury to head or LOC.”
The applicant presented holding her right arm in abduction and unable to lower her arm down. She was treated with morphine and referred to radiology. After a collar and cuff were applied, she was transferred to Blacktown Hospital for orthopaedic review.
The Discharge Summary of the Blacktown Hospital records that the applicant presented on the evening of 26 March 2020 with a right proximal humerus fracture. It noted that she had been transferred from Mt Druitt Hospital “after mechanical fall and landing on right shoulder”. She wished to be treated non-operatively. She was discharged non weight-bearing for six weeks and for follow-up in the fracture clinic in two weeks. She was to see her general practitioner in three days to assess intercurrent health problems.
On 30 March 2020, the applicant saw Dr Rizvi and reported that she had a fall and fractured her humerus. Consonant with the observations made in the Discharge Summary, it was noted that her diabetes was poorly controlled. The applicant was treated for her shoulder with Panadol Osteo and Endone.
On 7 April 2020, Dr Rizvi noted that the applicant’s injury occurred at work and that the matter was in the hands of her solicitor. At that consultation, less than two weeks following the injury, the applicant also complained of pain in her right knee. The doctor noted bruising on examination and recorded that it was “ok”.
On 19 April 2020, Dr Rizvi recorded that the applicant’s pain was slightly better. He noted that she had seen a specialist and was advised to undertake physiotherapy. The doctor completed a WorkCover Certificate, which described the injury as fracture proximal right humerus and referred the applicant for physiotherapy.
On 27 April 2020, Dr Rizvi noted that the applicant had:
“Surgery consultation
Seen specialist last week.
Still in pain.
See him next week.
Was working on cash, worried if WorkCover will be accepted.
Examination:
Ok.”
On 19 May 2020, the applicant saw Ann-Marie Chick in respect of the fractured humerus. On examination she had the restriction of right shoulder movement and tightness in the biceps region. No other complaint is recorded in the physiotherapist’s letter of the 26 May 2020.
By a second report, dated 25 September 2020, Ms Chick reported to him that she had treated the applicant on five occasions and needed further treatment to improve the range of movement in her shoulder
The notes of the Rooty Hill Medical Centre record that the applicant’s progress throughout 2020 and 2021. On 7 June 2020, Dr Rizvi recorded that the pain was slightly better and wrote a referral letter to the specialist, presumably Dr Thomas, the orthopaedic surgeon who treated the applicant for her right shoulder fracture.
Thereafter, many of the consultation notes deal with the intercurrent medical issues unrelated to the fall at work. on 1 February 2021 Dr Rizvi saw the applicant for a general check-up in respect of diabetes. The doctor also recorded “pain right arm and shoulder fracture last year humerus”.
On 27 May 2021, the applicant complained of pain in the low back radiating to the right leg. Then, on 9 December 2021, Dr Rizvi records that the applicant had pain in neck and right arm, which she stated she had “ been having for long”.
On 30 November 2020, the applicant saw Dr Mohammed Assem, a rehabilitation specialist at the request of her then solicitor. Although it is not clear that the applicant complained of neck pain as a result of the injury, Dr Assem recorded the following examination findings:
“Mrs Devi is a 51-year old right hand dominant lady who fell onto her right side sustaining a soft tissue injury to her neck causing neck pain and stiffness with asymmetry of movement and muscle guarding. She also sustained a comminuted and mildly impacted fracture through the humeral head with slight anterior inferior subluxation of the humeral head in relation to the glenoid. She was treated conservatively with immobilization in a sling. She continues to have pain and stiffness involving her neck and right shoulder associated with a restriction in movement. She has difficulty lifting items weighing more than 2kg with her injured right arm.”
On 18 March 2021, the applicant saw Dr Endrey-Walder, a general surgeon, at the request of her solicitor. He recorded a comprehensive history of the applicant’s injury year and her progress over the previous 12 months. He also reviewed the clinical notes made available to him for the purpose of his assessment. He recorded no history of back or neck pain following the injury. He expressed the following opinion:
“Ms Devi suffered an impacted, comminuted fracture of the neck of the right humerus causing a degree of subluxation at the Gleno-femoral joint in the accident described. She also suffered injury to the patella-femoral joint of her right knee as evidenced by scarring from the fall”
Following his examination, Dr Endery-Walder noted that the applicant performed a “physique and age-appropriate range of movement of the neck without aggravation”.
The doctor saw the applicant again on the 22 December 2021. On that occasion he stated that:
“it is my understanding from your introductory letter that Ms Debbie continues to complained of injury to the ‘right side of her body’ from the fall at the workplace, over and above the right shoulder and the right knee.
Dr Endrey-Walder noted that the applicant had treatment underwent a CT scan of her lumbar spine on 2 June 2021 and a CT scan of the cervical spine of 9 December 2021. He expressed the following opinion:
Today I I heard her complaining of right-sided neck and lower back pain for which he has had radiological investigations.
He expressed the opinion that the applicant may have some referred pain from her damaged shoulder to the neck.
No specific pathology is identified at the cervical spine except for age-appropriate spondylotic changes, in the lower back the CT scan highlighting facet joint pathology at the lower levels.”
Dr Endrey-Walder made the following observations in respect of the applicant’s neck:
“No specific pathology is identified at the cervical spine except for age appropriate
spondylotic changes, in the lower back the CT scan highlighting facet joint pathology at the lower two levels. On physical examination there was clear evidence of your client having asymmetrical restriction in rotation of the head, not identified at my previous
assessment, this likely relating to referred pain from her damaged shoulder to
the neck.”
Dr Rizvi wrote a report on 14 December 2021 which included the following:
“She also suffered right shoulder injury and multiple soft tissue injuries on the same side of body. Since then I have seen her for multiple issues like pain in right arm, shoulder and right side of neck, anxiety and stress that arc related directly or indirectly to her injury. She states that injury was sustained at work when had a fall. There had no pre- existing condition to my knowledge that could have to her suffering in terms of pain and stress.”
The applicant alleges in her statement that she suffered injury to her right shoulder, right knee, right hip neck and lower back in the incident. At his second consultation,
Dr Endrey-Walder recorded that she was complaining of symptoms “along the whole right side of her body”. The latter assertion is plainly inconsistent with the contemporaneous medical evidence. As I have indicated, it raises significant doubts as to the reliability of the applicant’s evidence in respect of the injuries which she sustained in the incident of the
26 March 2020.
There is no reference to low back pain in the contemporaneous medical evidence for more than 12 months after the injury. The first reference to back pain in the records of her general practitioner is the entry of 27 May 2021. Following a complaint of back pain on this occasion, the applicant underwent a CT scan of her lower back. There is nothing in Dr Rizvi’s short report to suggest a connection between the complaint and the incident at work. There is no explanation for the absence of a recorded complaint in the clinical record over a period of 12 months and there is no explanation in the medical evidence as to why back pain caused by the incident should commence so long after it. The complaint of pain in the entire right side of the body suggests the possibility of a psychological cause for the applicant’s complaints.
The issue of the relationship of the applicant’s neck pain to the injury is not so clear-cut. Neck pain was first recorded in the report of Dr Assem dated 3 November 2020. Nonetheless, there is no reference to it before that date in the certificates, referrals or clinical notes of Dr Rizvi, in the notes of Ms Chick, the physiotherapist, or in the notes of the
Mount Druitt or Blacktown Hospitals.
As I have reservations about the reliability of the applicant’s account of the development of her symptoms following the injury, I have concluded that she has not proven a connection between the injury and her neck pain. Mr Baker referred to a solitary episode of neck pain recorded in the notes of Mount Druitt Hospital in 2015 but I doubt that this is of significance either on the issue of the applicant’s credit or on the question of the causation of her neck pain. However, the absence of a complaint of neck pain in clinical record in the seven months following the incident militates against a finding in her favour on this issue.
No substantial argument was put that the applicant suffered a secondary or consequential medical condition of her neck at the arbitration hearing. In any event there is no real medical support for such a contention. Dr Endrey-Walder, who reported a normal range of movement of the neck with no complaint of pain on his first examination, opined in his second report that the applicant may have referred pain in the neck from shoulder. It is not entirely clear whether that would give rise to an “injury”. However, irrespective of the cause of the neck pain I do not accept that it results from the work injury. There is no evidence why referred pain to the neck would commence many months after the injury. Accordingly, I find that the applicant suffered injury to her right shoulder and right knee in the incident of 26 March 2020.
As Dr Endrey-Walder assessment of whole person impairment in respect of the applicant’s right upper extremity (shoulder) and right lower extremity (knee) does not surpass the s 66 threshold I do not propose to refer the s 66 claim to remit the s 66 claim to the President for referral to a Medical Assessor.

Incapacity

When Dr Assem saw the applicant in November 2020, he expressed the opinion that she remained for “practical purposes totally and permanently” unfit for work. On 14 December 2021, Dr Endrey-Walder stated that he agreed with that assessment. It is not entirely clear why the injuries suffered by the applicant totally incapacitated for work more than two years after the accident at work. Mr Baker submitted that as a matter of common sense it was unlikely that she remained totally unfit. However, the issue must be largely determined on the medical evidence. The respondent has not adduced evidence from its qualified orthopaedic surgeon. In those circumstances, I propose to accept the evidence of the applicant’s doctors. I find that the applicant had no residual earning capacity from the time of the injury to the present.
I propose to make the following findings and orders:
(a)    the applicant suffered injury to her right shoulder and right knee arising out of and in the course of her employment with the first respondent on 26 March 2020;
(b)    as a result of that injury the applicant had no current earning capacity from
27 March 2020 to date and continuing;
(c)    at the date of the injury the first respondent was not insured under a policy of insurance in respect of its liability to pay compensation under the 1987 Act;
(d)    it is conceded by the second respondent that at the time of injury the applicant’s pre-injury average weekly earnings was $840;
(e)    award for the applicant against the first respondent for weekly compensation at the rate of $798 per week pursuant to s 36 of the 1987 Act from 27 March 2020 to 26 June 2020 and at the rate of $672 per week pursuant to s 37 from
27 June 2020 to date and continuing;
(f)    award for the applicant against the first respondent in respect of medical and hospital expenses pursuant to section 60;
(g)    order the second respondent to pay the compensation awarded against the first respondent from the Workers Compensation Insurance Fund established under section 154D of the 1987 Act, and
(h)    order that the first respondent reimburse the Nominal Insurer for amounts paid out of the Workers Compensation Insurance Fund in respect of compensation awarded against it in [e] and [f] above.

[2022] NSWPIC 389

19 July 2022