Drar v EDS Business Services Pty Ltd - [2010] NSWWCCPD 63

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Drar v EDS Business Services Pty Ltd [2010] NSWWCCPD 63
APPELLANT:		Kebra Drar
RESPONDENT:		EDS Business Services Pty Ltd
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-8784/09
ARBITRATOR:	Mr R Bell
DATE OF ARBITRATOR’S DECISION:		3 March 2010
DATE OF APPEAL DECISION:		7 June 2010
SUBJECT MATTER OF DECISION:		Injury; aggravation of disease; credit issues; failure to consider relevant evidence; failure to consider and determine claim pleaded; relevance of failure to cross-examine; application of principles in Browne v Dunn (1894) 6 R 67 to proceedings in the Commission
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Steve Masselos & Co
Respondent:		TurksLegal
ORDERS MADE ON APPEAL:		Paragraphs four and five of the Arbitrator’s determination of 3 March 2010 are revoked and the following orders made in their place: “4. The applicant worker suffered an injury to her lumbar spine and right upper extremity (right shoulder) in the nature of an aggravation of a disease and a secondary psychological injury as a result of bending and lifting in the course of her employment with the respondent employer between 1 May 2006 and 15 May 2007. 4A.The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the whole person impairment as a result of injury to the worker’s lumbar spine and right upper extremity (right shoulder). The deemed date of injury is 15 May 2007. 5. Pursuant to section 60 of the Workers Compensation Act 1987, the respondent employer is to pay the applicant worker’s hospital and medical expenses for her physical and psychological injuries upon production of accounts or receipts. 5A. The respondent employer is to pay the applicant worker’s costs, as agreed or assessed.” Paragraphs one, two, three and six of the Arbitrator’s determination are confirmed. The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200.00 plus GST.

BACKGROUND

The appellant worker, Kebra Drar, started work with the respondent employer, EDS Business Services Pty Ltd (‘EDS’), as a material handler in May 2006. EDS is an outsourcing company that assists other companies with distribution and logistics. Ms Drar’s duties required her to pick and pack various products in preparation for distribution.
She alleged in her statement that she began to feel pain in her lower back and right shoulder in June 2006. She had three or four days off work in late July 2006, but did not produce a WorkCover certificate. Between 2 October and 11 November 2006, Ms Drar travelled to Africa for her daughter’s wedding.
Ms Drar alleged that her back and right shoulder pain increased when she lifted 111 boxes on a particular day in April 2007. She was certified fit for suitable duties on 14 May 2007 and then certified unfit for work on or about 17 May 2007.
She submitted a claim form on 6 June 2007. The respondent’s workers compensation insurer, CGU Workers Compensation (NSW) Limited (‘CGU’), accepted provisional liability on 14 June 2007. After obtaining a medical report from Dr Rowe, orthopaedic surgeon, dated 25 July 2007, CGU disputed liability from 1 August 2007.
Essentially, CGU disputed that Ms Drar had received an injury in the course of or arising out of her employment with the respondent and, if she had received an injury, that her employment had been a substantial contributing factor to that injury.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 28 October 2009, Ms Drar claimed weekly compensation from 14 July 2007 to date and continuing, hospital and medical expenses, and lump sum compensation in respect of a 19 per cent whole person impairment as a result of injury to her lumbar spine and right upper extremity. The Application initially provided four separate “injury details”. They were:
(a)back injury due to lifting 16 kg postal bags (20 to 40 per day) on 28 July 2006;
(b)low back and right shoulder injury due to lifting 111 boxes weighing 10 to 15 kilograms each in late April 2007;

(c)injury to the lumbar spine and right upper extremity as a result of packing and lifting postal bags and boxes between 1 May 2006 and 15 May 2007 (deemed date of injury 15 May 2007), and

(d)reactive depression and anxiety as a result of her physical impairments with a date of injury of 28 July 2006 to 15 May 2007.

The Commission listed the matter for conciliation and arbitration on 3 February 2010. Counsel for Ms Drar, Mr M Perry, amended the Application to delete injuries (a) and (b) above and to delete the claim for weekly compensation. The matter proceeded with submissions from both sides, but neither party called any oral evidence.
In a reserved decision delivered on 3 March 2010, the Arbitrator determined that the weight of the evidence was that the worker “should not be accepted as a truthful witness” (Statement of Reasons (‘Reasons’) at [28]). He was therefore “unable to find to the required standard that the claimed injuries arose out of or in the course of the employment with the respondent” (Reasons at [28]).
The Commission issued a Certificate of Determination on 3 March 2010 in the following terms:
“The determination of the Commission in this matter is as follows:

1. That the application for weekly payments of compensation is
discontinued.

2.That the Application is amended at Part 4 to delete ‘Injury 1’ and ‘Injury 2’ and to amend ‘Injury 3’ to read, ‘period of employment from 1 May 2006 to 15 May 2007 (deemed date 15 May 2007).

3.The body parts claimed are amended to read: ‘Lumbar spine; right upper extremity’

4. Award in favour of the Respondent.
5. No order as to costs.

6.I certify this matter as complex for the purposes of Schedule 6, Table 4, Item 4, of the Workers Compensation Regulation 2003; there is to be 20% increase to the costs applicable to both parties.

Reasons for certification as to complexity:

The applicant submitted that the matter is complex for costs purposes due to the difficult factual issues as to injury. I agreed with their submissions for the reasons given at the conference, and consider that the increase should be in this instance 20% pursuant to Schedule 6, Table 4, Item 4.”

In an appeal filed on 29 March 2010, Ms Drar sought leave to appeal the Arbitrator’s determination.

LEAVE TO APPEAL

Monetary threshold

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

I grant leave to appeal.

ON THE PAPERS

Section 354(6) of 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.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

THE EVIDENCE

Ms Drar

Ms Drar’s evidence is set out in her statement dated 12 December 2008. She was born in Eritrea in 1963. She completed her schooling in that country up to the age of 17 (equivalent to Year 12 in Australia), after which she worked in hairdressing and an office. She came to Australia in December 2001.
Ms Drar started work in EDS’s warehouse on 1 May 2006. She described her duties in the following terms (at [6]):
“My job at EDS involved a considerable amount of heavy lifting of bags such as knife sets in wooden blocks and kitchen products, exercise balls, foam mattresses and boxes packed with cosmetics. All bags weighed about 16 kg and had to be picked up and taken to be weighed between 20 to 50 times a day. I then had to lift up and pack the boxes into a cage.”

She said that she began to feel pain in her lower back and right shoulder in June 2006. She attended her local doctor, Dr Parvin, who gave her an “ordinary certificate for three to four days off work”. As a result of that certificate, she was placed in the dispatch department for a few days. Working in the dispatch department included some lifting and twisting, but not as frequently as previously. Her back continued to hurt, but she was able to work on full duties. She stated that her supervisor, the first aid officer and the team leader were all aware of her injury.
When big “New Zealand orders” came in, she was required to weigh and lift the product into several cages. She said they were very heavy, “minimum of 16 kg each”. She told her team leader, Krishna Vanapalli, that she could not complete the order because she had back pain. He allegedly said to her that if she refused to do it, with the new industrial laws, she might lose her job.
In September 2006, Ms Drar was placed in inventory control and the dispatch area. She took leave from 2 October 2006 until 11 November 2006 to travel to Africa for her daughter’s wedding. On her return, she was assigned to the section known as “North American Kiosk” (‘NAK’). That section involved a lot of “picking and packing and heavy repetitive lifting of up to more than 100 boxes a day”. Ms Drar said that she continued that work “with great difficulty” until 15 May 2007 when she told the team leader, “Ganesh”, that she was unable to continue lifting. Ganesh told her that there were no other jobs available for her and that she would have to speak with Moshe Ezekiel, the operations and logistics manager.

Ms Drar stated that in April 2007, she lifted 111 boxes in one day, which caused an increase in her back and right shoulder pain. She advised Mr Vanapalli and Mr Ezekiel. On 14 May 2007, her general practitioner, Dr Thakkar, certified her fit for suitable duties for four hours per day five days per week. She handed that certificate to Leon Kem, the distribution manager, and partly completed an incident report with the chairperson of the Occupational Health and Safety Committee, Auckland Auimatagi, on 14 May 2007.
Before completing the incident report form, Mr Ezekiel called her into his office. He was very angry with her and demanded to know why she had completed a WorkCover certificate. He sent her home saying, “I don’t want you here for four hours. Go home until the doctor says you are fit for work”. He also said, “Do you think I’m stupid to accept the certificate and lose my job.” Ms Drar saw Dr Thakkar again the following day and he certified her unfit for work. She said she had great difficulty obtaining the name of the respondent’s workers compensation insurer from Mr Ezekiel.
Ms Drar completed a claim form on 6 June 2007 in which she described the “incident” as follows:
“28 July 2006: lifting 16 kg postal bags 20-40 per day caused gradual onset of back pain. Back pain continued. In late April 2007 111 boxes lifted weighing 10-15 kg.”

In the same document she described the “injury” in the following terms:
“Late April and into May 2007 back pain more severe. Now also pain in right leg and shoulder.”

She advised that the incident had been witnessed by “Krishna Vanapalli and Toline [sic] Taianoa”. She said the incident had been reported to Mr Vanapalli.

Leon Kem

Mr Kem was the respondent’s distribution manager. He described EDS as an “outsourcing company” that assisted other companies in logistics. It picks and packs products. He confirmed that Ms Drar had been hired as a material handler. Her duties involved picking, packing and dispatching “kitting product, returns, primarily cosmetic products”.
He recalled that on 4 May 2007, Ms Drar stated that she had a doctor’s appointment for 9 May 2007 and that she had to take the day off. He told her she would need to put in a leave form. He received a phone call from her on 9 May when she said, “I am going to the doctor, I will be in tomorrow”. He said, “What is wrong?” She replied that “I hurt my back a couple of weeks ago I have a sore back”. He questioned why she had not “log [sic] and [sic] incident report?” to which she responded that she was “unaware that one needed to be filled out.” He said to her “but you are on the OH&S committee” to which she replied, “I didn’t know”.

Mr Kem asked Ms Drar for a medical certificate on 10 and 11 May 2007, but she did not have one. He placed her on light duties on both those days placing labels on boxes instead of picking and packing products.
Mr Kem again asked the worker for a medical certificate on the morning of Monday 14 May 2007. She responded that she would get one. On the afternoon of 14 May, he again said to her that he needed a medical certificate and that she had to get it for him that day. Ms Drar responded, “I received the injury in 2006 lifting boxes”. He then called over the OH&S chairman, Auckland Auimatagi, and told him that the worker had just said she hurt her back packing boxes in 2006. He asked Mr Auimatagi to “log an incident report for June of 2006, as no one was aware of this incident”.
Mr Auimatagi completed an accident/incident report and investigation form on 15 May 2007. The following appears under “description of accident/incident”:
“While bagging New Zealand manifest in early July ‘06 started to feel pain in lower back and shoulders in formed [sic] Tolini and Krishna of back pain then visited Doctor. Then reassured [sic] back pain when asked to by box and picked NAK orders and informed Ganesh end of May ‘07 then spoke to Moshe. Started physio 9/05/07. Told by physio not to perform heavy lifting.”

Under the heading “describe investigation steps taken”, Mr Auimatagi wrote:
“Spoke with Kebra and team leaders Tolini/Krishna/Ganesh. Boxe’s [sic] that were packed by Kebra in the NAK area weigh [sic] @ 16.66 kg – the heaviest box - and NZ bags are 15 kg and under. However while picking NAK she had assistance either by [sic] Tarek or Ganesh.”
Mr Kem stated that the worker produced a WorkCover certificate on 15 May 2007 restricting her to light duties from 14 May until 14 June 2007. She worked for four hours on 15 May and then left the worksite and had not returned since.
Dr Thakkar’s certificate of 14 May 2007 described the injury as having occurred as follows:
“Gradually developed low back pain & right shoulder pain because of heavy lifting July 2006.”
Mr Kem expressed “concerns about the nature of the claim”. His main concern was that the worker said she injured her back in June 2006, but she worked for 10 months since that time without saying “one word to anyone” at the employer’s premises. Had she mentioned her problem, she would have been put on light duties straight away, as happened in May 2007.
In respect of the worker’s claim form (described by Mr Kem as the “CGU certificate”), he denied that she lifted postal bags because women did not work in the postal dispatch area. The respondent made a point in the workplace that workers were not to lift heavy items and were to seek assistance from a work colleague. He also stated that, though the claim form referred to “a bad leg and shoulder”, no report had been made of those body parts to the respondent.
At the time when the worker says that she sustained her injury, the respondent had an “HR person, Bill Smith” on site for six months and all staff knew that they could discuss work-related issues. Mr Smith advised extensively about all sorts of matters. The worker spoke with Mr Smith and knew of his presence on the site. He used to go through the pay summaries with the workers.

Moshe Ezekiel

Mr Ezekiel was the respondent’s service delivery executive. He said that, after Ms Drar returned to work in January 2007, after having had time off over Christmas and New Year for medical treatment unrelated to this claim, she requested light duties because she was recovering from her treatment. After a period on those duties, she was placed on the NAK at her own request. The NAK involved picking stock, but Mr Ezekiel described it as “light duties” as there was no heavy lifting.
Mr Ezekiel was aware that the worker went to Africa in 2006. He added that, on her return, she showed “photos of going down rapids in Africa, riding camels, elephants, going on safari”. He was “taken aback” when she made her claim alleging that the injury occurred on 28 July 2006.
Just prior to this matter “coming to light”, the worker saw Mr Ezekiel in his office and said she had hurt her back. He asked her if there was an incident report for it, to which she allegedly replied, “It had nothing to do with here”. Mr Ezekiel then spoke with Mr Vanapalli and asked him to move the worker from the NAK. She was to be moved to the dispatch area, which merely involved putting invoices into boxes and fixing address labels. Mr Ezekiel telephoned the worker’s doctor to “verify what Kebra was capable of in the workplace”. He was “dismissed by the doctor” who said that he did not need to know exactly what the worker could do.
Mr Ezekiel added that the respondent has very rigid OH&S policies and that the worker was “part of the team from day one”. She was readily able to identify issues in the workplace and was a “very big voice” on the OH&S committee. For her to state that she did not know about submitting an incident log was “absolutely outrageous as it was raised at every meeting and made very clear that when an incident occurred in the workplace they [sic] were to be logged”. He was “staggered” by the claim.

Krishna Vanapalli

Mr Vanapalli has worked as a dispatch team leader with the respondent since April 2006. He supervised the worker. He confirmed that she worked in various sections in the warehouse, none of which required “excessively physical work”. NAK could be “more physical”, with stock having to be placed on a pallet and a “hand truck” having to be used. However, it was “not excessive” and, if required, the worker could always ask for help.
Mr Vanapalli denied that the worker complained to him of having had lower back pain whilst working on the “New Zealand manifest”. The New Zealand manifest was where cosmetic boxes were “bagged up” for international shipment. Women did not work in that area of dispatch. He added that boxes in that area only weighed in the vicinity of 10 to 15 kilograms.
Mr Vanapalli stated that “more recently” the worker approached him at the warehouse and said she had back pain. He directed her to stop what she was doing and see her supervisor, Ganesh. Mr Ezekiel then told him that Ms Drar would not be working in the NAK area and she would only be doing light duties.

Ms Drar’s evidence in response

The worker’s statement of 12 December 2008 included the following response to the respondent’s witness statements:

(a)she disputed that her work description did not require her to lift “great weight” (Mr Kem’s statement at [16]) and said that she had to lift weights “of a minimum of 16 kilograms repetitively”;
(b)she denied Mr Ezekiel’s suggestion that, after she returned from Africa, she showed “photos of going down rapids in Africa, riding camels, elephants, going on safari”. She said she went to Ethiopia for her daughter’s wedding, but did not participate in the activities alleged by Mr Ezekiel. She added that there were no such animals in Ethiopia;

(c)she denied saying to Mr Ezekiel that her back pain “had nothing to do with here”, and

(d)she was a hard worker who was well respected and had won awards and received favourable appraisals.

Ms Drar also relied on statements from Christopher Coombs and her daughter Ms Azagh. Mr Coombs spent four weeks with the worker in Ethiopia in October 2006. He was with her and her family every day and they did not travel outside Addis Ababa. He said that Ms Drar “definitely did not take part in any reckless activity, or thrill sports”. Prior to his trip to Africa, Mr Coombs was “aware” of Ms Drar “sustaining a back injury”. He added, “Further conversation revealed, this injury was sustained at work due to lifting activities or warehouse duties”. Ms Drar spoke to him about asking her boss to change her duties so as not to aggravate her condition.
Ms Azagh also travelled to Ethiopia in 2006 for her sister’s wedding. She stayed for four weeks. She was “taken aback” by the allegation that her mother participated in activities such as riding elephants and camels and going on safaris, and stated that there are no such activities in Addis Ababa. Ms Azagh added that “prior to the trip I was aware of my mother’s back injury sustained at work due to heavy lifting and warehouse duties”.
Ms Drar also relied upon a performance assessment completed by Mr Ezekiel on 8 December 2006 in which he described her as “extremely hard working” and as an “outstanding employee on the distribution floor”. He added:
“Her drive has helped us to be successful in all aspects of the operation. Kebra is a very popular staff member on the floor and all staff look to her for direction and advise [sic]. Kebra has been involved in all aspects of distribution from dispatch to kitting and now to NAK. She has excelled in all functions. I can safely say without Kebra’s help and support we would not have been able to achieve what we have. Well done Kebra and Thank You for your outstanding efforts.”
In addition, Ms Drar received a “Top Gun Award” for “Excellence in Inventory Control” on 19 September 2006. This award was signed by Mr Ezekiel and Mr Kem.

Medical evidence

Clinical notes from Dr Parvin, general practitioner, reveal that the worker attended on him because of back pain in November 2005. The doctor referred her for a lumbosacral x-ray, which revealed no focal vertebral or disc abnormality.
Ms Drar again saw Dr Parvin on 24 July 2006. The doctor’s notes for that attendance refer to a complaint of thoracic and low back pain for one week. The doctor prescribed medication and physiotherapy. Ms Drar attended again on a date after 24 July but before 30 July 2006 complaining of low back pain. The doctor prescribed Panadeine Forte and Voltaren.
Ms Drar attended again on 30 July 2006. Unfortunately, the doctor’s notes for this attendance are difficult to decipher, but there appears to be a reference to back pain. In addition, Dr Parvin referred the worker to Professor Manolios on 30 July 2006. The handwritten referral note referred to Ms Drar having presented with “thoracic & low back pain”.
Dr Parvin provided the worker with a note dated 24 September 2006, presumably for the purpose of her trip to Africa, which stated that Ms Drar suffered “osteoarthritis of her back” and was taking glucosamine, Nurofen and other medication while travelling.
Clinical notes from a physiotherapist at Auburn District Hospital dated 9 May 2007 recorded “impression/LBP associated [with] repetitive lifting & poor abdominal support”. The notes for 30 May 2007 also referred to a complaint of shoulder and neck pain. Physiotherapy continued throughout 2007, but without relief of symptoms.
Ms Drar first saw Dr Thakkar on 14 May 2007. In a report dated 8 September 2009, Dr Thakkar recorded the following history:
“She said that she had been working for EDS warehouse for nearly 1 year. Her work involved constant lifting and bending. She apparently lifted approximately 16 kg boxes of cosmetics on and off the machine, on average about 100 boxes per day.
She started having pain in both her shoulders, upper and lower back, which gradually became worse. She had some X-Rays and physiotherapy organised after 7 months wait. She had physiotherapy at Auburn Hospital. She was also taking Glucosamine and chondroitin tablets, and panadeine forte as she could not take NSAIDS because of gastritis.
CT scan and X-Rays showed L5/S1 central disc protrusion and degenerative changes in AC joint R shoulder.”
Dr Thakkar referred the worker to Dr Maniam, who organised hydrotherapy and stronger analgesics (Tramal). Ms Drar’s condition did not improve and Dr Thakkar referred her to the pain clinic at Westmead Hospital.
Dr Thakkar related a telephone call she received on 16 May 2007 from Mr Ezekiel. The doctor said that Mr Ezekiel was “strongly adamant that Kebra could NOT have had this injury from her work”. He was “rather arrogant and rude on the phone and hung up abruptly”. The doctor added that the worker said Mr Ezekiel had made racist remarks to her.
A lumbar spine CT scan dated 15 May 2007 revealed a broad-based central disc protrusion at L5/S1 with severe facet arthrosis bilaterally, resulting in left-sided mild foraminal stenosis. An x-ray of the right shoulder of the same date showed the AC joint to be mildly degenerated.
Ms Drar saw Dr Maniam on 29 May 2007. He took the following history:
“EDS is a cosmetic distribution company. She [Ms Drar] would pick and pack and there is a lot of lifting and repetitive movements.
On 28/7/2006 as a consequence of the conditions of her work she developed lumbar spine pain and right shoulder pain.
She took a break between 28/7/2006 and 31/7/2006 and then resumed work. She was treated with physiotherapy in that period. The symptoms did not improve.
She also recounted about the fact that she had to move on that particular day more than 100 boxes.
On resuming work she was given lighter duties. However, she was not coping well and she asked the administration for reduced hours. The company did not accept and she kept working in a full time capacity.
On 15/5/2007 she sustained further injuries to the right shoulder and back as a result of her work activity. She quit on that day.”
On her initial presentation, the worker complained to Dr Maniam of “ongoing pain in the thoracolumbar spine of mild to moderate intensity” with the lumbar spine symptoms radiating into the right leg. She also complained of right shoulder pain of moderate intensity with stiffness and moderately restricted movements.
In his medicolegal report of 24 July 2009, Dr Maniam concluded that Ms Drar had an impingement in her right shoulder and a disc protrusion at L5/S1 associated with severe facet joint arthrosis, resulting in compromise of the left S1 nerve root. Ms Drar denied having experienced any problems in her right shoulder or lumbar spine in the past. All her problems commenced after she started work with EDS and Dr Maniam therefore concluded that “attributability” was reasonable and that her presentation was “concordant with the clinical diagnosis”. He considered that her occupation had been a substantial contributing factor.
A right shoulder ultrasound on 8 June 2007 revealed degenerative changes in the acromioclavicular joint. An MRI scan of the right shoulder on 17 August 2007 revealed tendinopathy at the anterosupraspinatus.
Dr Rowe examined Ms Drar at the request of the respondent on 24 July 2007 and reported the following day. He took a history that her employment involved her “lifting and packing bags up to 16 kg in weight”. After about two and a half months working in the job, she noticed discomfort across the lower back and a vague discomfort over her right upper arm and shoulder. She saw Dr Parvin, who prescribed medication and referred her for x-rays. Dr Parvin also referred her for physiotherapy, but that treatment only began in “April 2007”. In any event, the physiotherapy had not been of any benefit. Ms Drar denied any previous back troubles apart from low back discomfort during menstruation. There was no history of any previous trouble with her right shoulder.
Dr Rowe concluded that the worker had developed non-specific symptoms after just two and a half months into her employment with EDS. She had evidence of degenerative changes at the lumbosacral level of her spine, consistent with age and constitutional factors. He thought it was difficult to reconcile her pathology with her symptoms of constant unremitting pain. It was difficult to offer an organic explanation for her right shoulder symptoms. He thought the “overwhelming aspect of her current presentation” was that of “non-organic factors”. He thought her main problem was depression. On the balance of probabilities, her employment was not a substantial contributing factor (in regard to her current presentation). There was no evidence of aggravation of pre-existing pathology.
On referral from Dr Thakkar, Ms Drar saw Medhat Metry, consultant psychologist, on 12 September 2007. Mr Metry took a history that Ms Drar sustained a work-related injury to her lower back as a result of her work conditions, which involved constantly bending and lifting cosmetics packages weighing approximately 15 to 16 kg. Ms Drar reported that she suffered from persistent back pain and pain in her right shoulder and right leg.
Ms Drar attended for further physiotherapy at Westmead Hospital on 15 October 2007. The physiotherapist’s clinical notes include the following history:
“LBP began last yr and of [sic] July when lifting at work. Continued job until May this yr”.
The notes also referred to a previous episode of low back pain, but provided no details of that episode. The diagrams included in the notes clearly identify the low back, right leg and right shoulder as the areas of complaint.
Dr Endrey-Walder, general and trauma surgeon, examined Ms Drar for medicolegal purposes at the request of her solicitors on 27 November 2007. In his report of the same date, Dr Endrey-Walder recorded that the worker’s duties, picking and packing orders of cosmetics, involved “a lot of bending and lifting weights up to 16 kg”. She would lift up to 40 bags a day, each weighing around 15 to 16 kg. In mid-July 2006, she experienced a “gradual build up of lower back pain while handling heavier objects”. Ms Drar denied having ever complained of upper back pain, stating that she only ever had pain across the lower lumbar region. Ms Drar had no recollection of having ever been referred to Professor Manolios or having ever seen the Professor.
Ms Drar had a few days off work at the end of July 2006 after her initial consultation with Dr Parvin, but then resumed her normal duties. She only managed by taking Nurofen Plus. Dr Endrey-Walder noted the history recorded by Dr Thakkar in his WorkCover certificate of 14 May 2007. Ms Drar denied having had any back or right shoulder problems prior to July 2006.
Dr Endrey-Walder concluded that Ms Drar had suffered soft tissue injuries to her low back and right shoulder “as a consequence of the nature and conditions of her daily work at EDS”, which was physically demanding, requiring repetitive bending, lifting weights up to 15 to16 kg repeatedly and reaching up on shelves with the right arm. He added:
“I believe that this lady suffered injuries and aggravations to the degenerative facet joints of her lumbo-sacral articulation, and she is likely to have also aggravated some previously silent disc degenerative changes at the lumbo-sacral level, where there is suggestion of some possible impingement of the left S1 nerve root.”
In respect of Dr Rowe’s report, Dr Endrey-Walder noted that Dr Rowe’s history was “very similar and perfectly compatible” with Ms Drar’s testimony to him, which suggested a degree of consistency in her presentation. Ms Drar acknowledged that she had previously had a back x-ray to exclude lumbar back pathology when she had “peri-menstrual backache”. That backache was of a “different quality” from her backache since the work injury.
Dr Clark, consultant forensic psychiatrist, examined Ms Drar at the request of her solicitors on 5 February 2009 and reported on 17 March 2009. He took a history that, in mid-July 2006, Ms Drar started to complain of back pain while lifting. On 24 July 2006, the pain had become worse, such that she was taking medication. She was then certified fit for light duties. She was put on four hours light duties per day, but eventually certified unfit for work on 16 May 2007. It appeared that she had developed an injury in the cosmetic warehouse due to repeated heavy lifting. She also developed persistent shoulder pains. She told Dr Clark that she was “scared of her employers, the team leader having threatened to put her back to work full time”. Dr Clark diagnosed Ms Drar to be suffering from reactive depression/anxiety as a result of her physical injuries.
Ms Drar attended the spine clinic at Westmead Hospital on 4 March 2009. In a report from Dr McMaster, staff specialist, dated 16 April 2009, it was noted that the worker gave a “two year history of low back pain following some kind of work injury”. Following that, she developed pain which radiated down the right leg in her right foot.

THE ARBITRATOR’S REASONS

In a reserved decision delivered on 3 March 2010, the Arbitrator made the following findings:
(a)he did not accept that Ms Drar had advised her employer of her injury in July 2006. Though she was certainly suffering from symptoms in her back at that time, there was “nothing contemporaneous to establish a connection with work” (Reasons at [21]);
(b)he accepted the respondent’s witnesses, who all said that they were unaware of any injury before May 2007;
(c)he noted that there was no statement from Ms Drar’s “workmate ‘Tolini’” to whom she alleged she reported the injury in July 2006 and who was mentioned in the initial report of 15 May 2007;
(d)he found Ms Drar’s evidence to be unsatisfactory and he treated the “remainder of her statement with care” (Reasons at [21]);
(e)he did not accept the opinion of Ms Drar’s daughter that she was “aware of my mother’s back injury sustained at work due to heavy lifting and warehouse duties” because it was of “very little probative value” (Reasons at [21]);
(f)based on the evidence of the performance assessment in December 2006, Ms Drar was clearly an employee who was “highly thought of by the employer” (Reasons at [22]);
(g)he did not accept that Ms Drar failed to tell her employer about a work injury in July 2006 because she was scared. She misled the Commission with her evidence;
(h)given that finding as to Ms Drar’s credit, he accepted Mr Ezekiel’s statement that Ms Drar told him that the injury “had nothing to do with here” (Reasons at [23]);
(i)he did not accept her version of events about her trip to Ethiopia (Reasons at [24];
(j)he accepted that the first report of any injury to Ms Drar’s supervisors was in May 2007;
(k)there was no “corroboration of any report of [a] work injury before 15 May 2007” (Reasons at [26]) and there was no treatment apparent following the consultations with Dr Parvin in July 2006;
(l)the medical evidence was “subject to the history given by Ms Drar” and he found her evidence required corroboration before being accepted. Though Ms Drar’s doctors supported a work injury, their opinions were dependent upon histories provided by Ms Drar, whose evidence he found unreliable. Therefore, there was not a “fair climate” for the acceptance of their opinions as to the connection between the worker’s complaints and her work with the respondent (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505), and
(m)the weight of the evidence was that Ms Drar should not be accepted as a truthful witness. He was therefore unable to find that the claimed injuries arose out of or in the course of employment with the respondent.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:

(a)failing to take into account the worker’s case that the injuries to her back and right shoulder were caused by the nature and conditions of her employment between 1 May 2006 and 15 May 2007, and/or were a disease of gradual process which were aggravated by those nature and conditions with the deemed date of injury being 15 May 2007;
(b)failing to take into account the worker’s medical evidence in relation to her claim that she sustained an injury as a result of the nature and conditions of her employment and/or the aggravation of a disease of gradual process;

(c)failing to properly assess the worker’s evidence, particularly in circumstances where the worker and the lay witnesses providing statements in support of the worker’s case were not cross-examined (Browne v Dunn (1894) 6 R 67);

(d)the way he dealt with the absence of any statement of evidence from another of the respondent’s employees known as “Tolini” (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298);

(e)failing to properly assess the lay evidence from the worker’s daughter, Christopher Coombs and Elias Beyene either because:

(i)no or no adequate reasons were given for rejecting such evidence; and/or;
(ii)such evidence was rejected because the worker’s evidence was rejected; and/or
(iii)the worker’s daughter’s statement was of “very little probative value” because she was not medically qualified;

(f)failing to take into account and resolve and/or reconcile his concerns regarding the statements by the respondent’s witnesses, Messrs Ezekiel and Kem, before ultimately finding that the worker “should not be accepted as a truthful witness”;
(g)taking into account an irrelevant consideration in finding that the lack “of any OH&S forms or any of the actions that were taken in May 2007” mitigated against the case or credit of the worker;

(h)taking into account an irrelevant consideration when he found that the “enthusiastic performance appraisal and award in December 2006” also mitigated against her credit and case;

(i)failing to take into account a relevant consideration in favour of the worker’s credit and case, namely, the “Top Gun Award” received by the worker in 2006 and the “EDS Performance Assessment” dated 8 December 2006 given by Mr Ezekiel in respect of the worker’s work performance;

(j)failing to take into account relevant considerations militating in favour of the worker’s case and credit, namely, the time the worker took off work in about late July 2006 after seeing Dr Parvin in respect of a back complaint, and the notes of Dr Parvin in respect of the attendances on 24, 26 and 30 July 2007, and

(k)failing to take into account the notes from Auburn District Hospital Physiotherapy Department.

SUBMISSIONS, DISCUSSION AND FINDINGS

Essentially, Ms Drar’s complaint is that the Arbitrator failed to properly consider whether her injuries to her back and right shoulder were caused by the nature and conditions of her employment with the respondent between 1 May 2006 and 15 May 2007. In support of this point, it was submitted that the Arbitrator erred in failing to consider relevant evidence said to support the claim.
The respondent has made the following submissions in support of the Arbitrator’s conclusions:
(a)the Arbitrator was well aware that Ms Drar alleged that she received an injury as a result of the nature and conditions of her employment between 1 May 2006 and 15 May 2007;
(b)the Arbitrator referred to the inconsistencies in the worker’s version of events, which went to the issue of her credibility as a witness;

(c)the Arbitrator’s acceptance of the evidence from the respondent’s three lay witnesses, who all stated that they were unaware of Ms Drar having sustained an injury before May 2007, went to the issue of the worker’s credibility. The lack of evidence to corroborate the worker’s version of events went to the question of whether she in fact sustained an injury to her lumbar spine and right shoulder during the course of her employment between 1 May 2006 and 15 May 2007;

(d)there is no documentary evidence to support the worker’s contention that, at the very least, she was having difficulties with her back and right shoulder in the context of performing her duties with the respondent;

(e)the first contemporaneous account by the worker of any work-related injury to any medical practitioner was not until 14 May 2007;

(f)Dr Rowe’s history does not support the worker’s allegation of having sustained an injury to her back and right shoulder as a result of the nature and conditions of her employment between 1 May 2006 and 15 May 2007;

(g)the Arbitrator expressly considered the history provided by Dr Thakkar;

(h)Dr Endrey-Walder’s opinion should be treated “with caution” as it was based on a history provided by the worker, which was unreliable (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’));

(i)whilst the physiotherapist’s notes from Auburn District Hospital recorded Ms Drar complaining of back pain on “5 May 2007”, nowhere in that entry is there a reference to Ms Drar developing pain as a result of heavy lifting in the course of her work. Therefore, those notes were insufficient for a conclusion to be drawn that Ms Drar’s low back symptoms developed as a result of the nature and conditions of her employment;

(j)there is no legal right to cross-examine witnesses in the Commission (Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’)) and Ms Drar’s counsel made no application to cross-examine the respondent’s witnesses. There was no necessity for cross-examination in the present case, as Ms Drar was well apprised of all the issues in dispute because of the content of the section 74 notice issued by CGU and had ample time to address those issues. Cross-examination was not essential (as a matter of fairness to Ms Drar);

(k)though the Arbitrator referred to Tolini as Ms Drar’s “workmate”, it is clear that he intended to refer to Tolini as a work colleague. With a reference to the absence of any evidence from Tolini, the Arbitrator’s point was that the lack of any evidence to corroborate the worker’s version of events, especially with regard to the reporting of any injury in July 2006 and again in April 2007, went to the issue of her credibility;

(l)the respondent’s lay witnesses all disputed the worker’s allegation that she was required to undertake heavy lifting in the course of her employment;

(m)Ms Drar is not entitled to draw an inference based on Jones v Dunkel due to the absence of a statement in a factual investigation;

(n)with respect to the evidence from Ms Drar’s daughter, an inference can be drawn that, given that the statement was provided by Ms Drar’s daughter, who could hardly be considered an impartial witness, its contents should be treated with caution. The same could be said of the statements from Mr Beyene and Mr Coombs, who were both friends of Ms Drar. This evidence should be considered in the light of other available evidence, which demonstrated a lack of contemporaneous reporting of any work injury between 1 May 2006 and 15 May 2007;

(o)the somewhat negative tone of Mr Ezekiel’s statement can be explained, to an extent, by his disappointment with Ms Drar in having taken the steps that she took, especially considering that he regarded her as a good employee;

(p)Mr Kem may have slightly overestimated the leave Ms Drar took at the end of 2006, but that needs to be balanced against the entirety of his statement, which was “fairly accurate”. Ms Drar’s assertion that she experienced an increase in back and shoulder pain when she lifted 111 boxes on a day in April 207 was clearly inconsistent with the respondent’s evidence that she was not required to lift boxes in that fashion;

(q)there is no corroboration of any report of a work injury prior to early May 2007. This is supported by the absence of a work-related complaint to Ms Drar’s physiotherapist in May 2007 and the lack of complaint about a work problem to Dr Parvin in July 2006. In addition, Ms Drar apparently received no treatment following her consultations with Dr Parvin in July 2006;

(r)there was more than enough evidence for the Arbitrator to question Ms Drar’s credibility as a witness and to treat the whole of her evidence with caution;

(s)the lack of any OH&S forms or contemporaneous reporting of injury between May 2006 and May 2007 clearly militated against Ms Drar’s case;

(t)Ms Drar’s positive performance appraisal demonstrated that, as at December 2006, she was not experiencing any problems undertaking her regular duties at work or, at the least, that the respondent had not been made aware of such problems. The evidence overwhelmingly suggests that Ms Drar made no contemporaneous report of a work injury until May 2007. The most likely inference to be drawn from this is that Ms Drar did not sustain a work injury;

(u)though Ms Drar took “personal leave” from 28 July 2006 to 31 July 2006, there is no evidence to suggest that she took leave due to a work-related injury. She produced no medical certificate and Dr Parvin’s medical notes make no mention of her having sustained a work injury;

(v)given that Ms Drar was clearly an employee highly thought of by the respondent in December 2006, it is difficult to accept that she failed to tell her employer about a work injury in July 2006 because “she was scared”;

(w)the point about Dr Parvin’s clinical notes is that they make no reference to Ms Drar suffering from problems at work. Whilst this, in itself, is not determinative of the issue, it is supportive of the respondent’s witnesses;

(x)whilst the notes from Auburn District Hospital indicate that Ms Drar complained of back pain in May 2007, there is no evidence that the complaint was made in the context of her work duties. In addition, there is no reference in the notes to Ms Drar suffering from right shoulder symptoms, and

(y)based on the above, the respondent submitted that the Arbitrator’s decision should be confirmed.

The Arbitrator did not accept that Ms Drar had received an injury. That was mainly, but not wholly, because her assertion that she injured her back in 2006 was not only uncorroborated but was inconsistent with the evidence from Messrs Kem, Ezekiel and Vanapalli. However, whilst their evidence was obviously important, it had to be weighed against all of the surrounding evidence. I agree with the Arbitrator that the inconsistency between Ms Drar’s evidence and the evidence from the respondent’s lay witnesses required that her evidence be considered with some care. However, for the reasons set out below, I accept Ms Drar’s submission that the Arbitrator failed to consider all of the relevant evidence and, to the extent that he considered it, he failed to give adequate reasons as to why he rejected some and accepted other evidence. In these circumstances, the matter must be re-determined. As the Arbitrator heard no oral evidence, I am in as good a position to conduct that re-determination and that is the course I propose to adopt.

Contrary to the respondent’s submissions, I do not accept that the Arbitrator properly or fairly considered the worker’s allegation that she received an injury as a result of the bending and lifting required in her employment with the respondent between 1 May 2006 and 15 May 2007. Merely referring to the nature of the claim pleaded did not amount to a proper consideration of the merits of the claim. The Arbitrator focused attention predominantly on the alleged reporting of back symptoms in July 2006. Though he found that Ms Drar had not reported her symptoms at that time, that did not necessarily mean that her case failed. It required, as the Arbitrator properly acknowledged, that the remainder of her evidence be treated “with care”. That meant that her evidence had to be analysed in light of the surrounding objective evidence. That is something the Arbitrator failed to do.

I do not accept the respondent’s assertion that there was no documentary evidence that Ms Drar was having difficulties with her back in the context of her work duties. The evidence from Auburn District Hospital (not referred to by the Arbitrator) confirmed that the worker complained on 9 May 2007 (wrongly referred to as 5 May 2007 in the respondent’s submissions) about low back pain associated with repetitive lifting. There is no suggestion that Ms Drar performed repetitive lifting anywhere other than in the course of her employment with the respondent. In these circumstances, this evidence is significant and leads to the compelling conclusion that, on the balance of probabilities, the symptoms developed as a result of Ms Drar’s duties with the respondent. This is corroborated by Mr Vanapalli who stated that, on an unidentified date (presumably in May 2007), Ms Drar complained to him of back pain at work.
That the first complaint to a doctor of a work-related injury was not until 14 May 2007 is not determinative against the worker. What is more significant is that the medical histories are essentially consistent. Dr Thakkar took a history that the work involved “constant bending and lifting”, Dr Maniam took a history that the work involved “a lot of lifting and repetitive movements”, and Dr Endrey-Walder recorded that “picking and packing orders of cosmetics” involved “a lot of bending and lifting weights up to 16 kg”. Both Dr Maniam and Dr Endrey-Walder concluded that Ms Drar’s injury had resulted from her employment and that her employment was a substantial contributing factor to that injury.
The history that Ms Drar’s symptoms began at work when lifting was also confirmed in the Westmead Hospital physiotherapy notes dated 15 October 2007 (see [66] above).
The history that Ms Drar’s work required her to repetitively lift boxes weighing up to 16 kg was essentially confirmed in Mr Vanapalli’s statement (at [7]) where he said that NAK “can be more physical with having to put stock on the pallet and use the hand truck”. Mr Kem also confirmed that the worker’s duties required her to pick and pack products. He added that even the light duties (putting labels on boxes and closing boxes) might involve turning and lifting. The accident/incident report form confirmed that boxes packed in the NAK area (an area in which Ms Drar definitely worked) weighed 16.66 kg. That Ms Drar may have had assistance in that area is not to the point. Though there is some uncertainty about whether Ms Drar worked in the postal dispatch area or on the “New Zealand manifest”, I am comfortably satisfied that the work she performed, whether in those areas or other areas of the warehouse, required her to repetitively lift boxes weighing up to 16 kg. It follows that the histories recorded by Drs Maniam and Endrey-Walder provided a fair climate for the acceptance of their opinions (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] NSWLR 505 at 509-510) and that I do not accept the respondent’s Makita submission to the contrary.
Whilst Dr Rowe found it difficult to reconcile Ms Drar’s pathology with her complaint of unremitting symptoms, his history of the onset of those symptoms and the nature of Ms Drar’s duties was, as Dr Endrey-Walder noted, essentially consistent. That consistency is a relevant factor in determining the reliability of Ms Drar’s claim. Apart from noting the consistency in his history, I do not accept Dr Rowe’s evidence. His conclusion that Ms Drar’s employment was not a substantial contributing factor to her “current presentation” involved an incorrect application of section 9A of the 1987 Act. Further, Dr Rowe seems to have (wrongly) placed considerable weight on the lack of a “specific accident or incident”. The absence of such an accident or incident does not mean that Ms Drar did not receive an injury. In short, his approach to the assessment of the claim was flawed and his conclusion inconsistent with the objective evidence in the CT and MRI scans.

The evidence from Messrs Kem, Ezekiel and Vanapalli is obviously inconsistent with the worker’s evidence that she complained about her symptoms in 2006. The consistency of their evidence and the lack of any documented complaints at work in 2006 strongly suggests that they were correct in their assertion that Ms Drar did not complain to them about her back in 2006. Nevertheless, the acceptance of their evidence on whether Ms Drar complained about symptoms in 2006 does not determine the case. However, it raises an issue as to the reliability of Ms Drar’s evidence that requires that the rest of the evidence be carefully assessed to determine its consistency.
Dr Parvin’s notes are a twin-edged sword. They corroborate Ms Drar’s evidence that she had back symptoms in July 2006, but they make no mention of the cause of those symptoms. The unexplained lack of a reference to Ms Drar’s work is troubling. On the other hand, the notes did not suggest some non-work cause for her symptoms. Whether Ms Drar mentioned her work to Dr Parvin and the doctor merely failed to note it is possible, but unlikely. That he did not issue a WorkCover certificate suggests that Ms Drar did not mention her work as a cause of her symptoms. Why she did not do so is not explained.
The 2006 symptoms must be seen in context. They were merely one part of a history that covers one year. The case does not rise or fall on the failure to report those symptoms to her employer at that time. The relevance of, and weight to be attached to, the 2006 symptoms is diminished when one considers that Ms Drar worked on until May 2007 and that in December 2006 she was described as an “extremely hard working” and “outstanding” employee. Therefore, whilst I accept that Ms Drar had back symptoms in July 2006 and that, on balance, those symptoms resulted from her work with the respondent, it is unlikely that they were serious or significantly disabling. At most, they only put her off work for three days. I am unable to explain why she did not report her symptoms at that time.
Ms Drar’s Browne v Dunn submission (that the Arbitrator erred in finding that Ms Drar could not be accepted as a truthful witness in circumstances where she had not been cross-examined) demonstrated a fundamental (but common) misunderstanding of the Commission’s procedures. In rejecting a similar submission in Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3, I said (at [56] to [63]):
“56. In normal circumstances, a court will be inclined to disregard a submission on evidence that was not tested by cross-examination (per Glass JA in Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219 at 225C (‘Seymour’), citing Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 at 370). The ‘rule’ in Browne v Dunn is not a rule of evidence but is a rule of procedural fairness ‘designed to prohibit the unfair conduct of trials’ (Seymour at 225B). It requires that, unless notice has been clearly given of the cross-examiner’s intention to rely upon certain matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence (Archer v Richard Crookes Constructions Pty Ltd (1997) 15 NSWCCR 297). It does not require that matters about which notice has already been given be put in cross-examination (Daw v Toyworld Pty Ltd [2001] NSWCA 25; (2001) 21 NSWCCR 389).
57. In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Hunt J (at 18F) identified two aspects of the ‘rule’ in Browne v Dunn. The first was described as ‘a rule of practice or procedure, based upon general principles of fairness’; the second was described as ‘a rule relating to the weight or cogency of the evidence’ (see also State Rail Authority of NSW v Brown [2006] NSWCA 220 per Basten JA at [54]). Neither ‘rule’ can be strictly applied in the Commission because all evidence must be filed with the Application or the Reply and there is no automatic right to cross-examine. Late evidence is only allowed by leave if it is in “the interests of justice” (see Workers Compensation Commission Rules 2006 Part 10 Rule 10.3). The issues to be determined are, or should be, set out in those documents or at the teleconference stage of the proceedings.
58. In a claim heard by the former Compensation Court of NSW the Court of Appeal held that the ‘practical rule of fairness enshrined in the Browne v Dunn principle’ required that suggested contradictions in the worker’s history should have been put to the worker before they were used as a basis for challenging the truth of the worker’s evidence (Boston Clothing Co Pty Ltd v Margaronis (1992) NSWLR 580 per Kirby P at 590, Waddell A-JA and Samuels JA agreeing).

59. However, the Commission operates under totally different rules and procedures to those applicable to the former Compensation Court of NSW. The Commission is not bound by the rules of evidence and its proceedings are to be conducted with as little technicality as the proper consideration of the matter permits (section 354(1) of the 1998 Act). The Commission has a wider range of discretionary choices about the procedure appropriate for a particular case than existed under earlier legislation that governed the Compensation Court (Zheng at [22]).
60. Bryson JA added in Zheng, at [25]:
“The requirements of the rules for information to be lodged in advance and for statements revealing the cases of parties to be made in advance, taken with the width of the sources of information on which the Commission is authorised to act and the ways in which it is authorised to proceed, mean that assumptions upon which common law trials are conducted should not be readily carried over when testing contentions that a hearing before an Arbitrator was not conducted in a fair way.”

61. His Honour added that the ‘environment of contestation and the confrontational methods of the common-law trial would not usually be appropriate’ though there may be ‘issues of kinds which it is appropriate to deal with in that style’.
62. In Re Minister of Immigration and Multicultural Affairs; Ex Parte Applicant s154/2004 (2003) 77ALJR 1909; [2003] HCA 60 the High Court considered the application of the rule in Browne v Dunn to the Refugee Review Tribunal. The Court noted that section 420(2) of the Migration Act 1958 (Cth) exempts the Tribunal from being bound by ‘technicalities, legal forms or rules of evidence’. This provision is in strikingly similar terms to section 354(1) of the 1998 Act. Gummow and Heydon JJ (Gleeson CJ agreeing) stated at [56] that ‘the rule has no application to proceedings in the Tribunal’. Their Honours then quoted section 420(2) and added:
‘The purpose of a provision such as s420(2) is to free bodies such as the Tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate.’

63. The Commission’s rules requiring evidence to be filed with the Application or the Reply and the fact that cross-examination is not allowed as of right mean that the potential consequences of non compliance with the ‘rule’ in Browne v Dunn are significantly diminished in proceedings in the Commission. In any event, the ‘rule’ is not a rule of law but one of fairness that goes to the weight and cogency of the evidence concerned.”

The above analysis is consistent with Adamson v Ede [2009] NSWCA 370, where Campbell JA (Giles and Hodgson JJA agreeing) said (at [62]):
“62 The interaction between established court procedures and the playing out of the requirement of natural justice in a court is illustrated by the way the rule in Browne v Dunn will not require a witness’ account to be challenged explicitly in cross-examination if other procedural steps in a case have given the witness notice that his or her account will be challenged in particular ways: West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 at [97]-[98] and cases there cited; Thomas v Wan Den Yssel (1976) 14 SASR 205 at 207 per Bray CJ (with whom Jacobs and King JJ agreed); Lazarevic v State of Western Australia [2007] WASCA 156 at [17]- [20] per McLure JA (with whom Wheeler JA and EM Heenan AJA agreed).

Ms Drar’s evidence as to the reporting of her symptoms in 2006 was expressly challenged by the respondent’s witnesses in circumstances where Ms Drar had the opportunity to respond and did so. Though she was not cross-examined, no question of non-compliance with the principles in Browne v Dunn arose and it was open to the Arbitrator (or a Presidential member on appeal) to accept or reject her evidence. The submission by Ms Drar’s counsel on appeal was without foundation and, given that the Commission has been operating for more than eight years, more than a little surprising.
I accept the respondent’s submission that, though the Arbitrator referred to Tolini as Ms Drar’s “workmate”, he did so in the sense that she was a work colleague. However, I do not accept that it was appropriate for the Arbitrator to draw a Jones v Dunkel inference against Ms Drar because she did not call Tolini. It was not essential for the worker to prove that she reported her symptoms to Tolini, though evidence from Tolini would certainly have been relevant. In a case where the respondent denied the worker’s allegation that she reported her symptoms in 2006, I would have thought that it would be “more natural” for the respondent to have called Tolini to rebut the worker’s allegation (Manly Council v Byrne & Anor [2004] NSWCA 123 at [71] and [72]). The respondent is more likely to have had the contact details for Tolini, rather than the worker. CGU commissioned an extensive factual investigation into the claim, but the investigators took no statement from Tolini and offered no explanation for not doing so. In the absence of an explanation for the absence of any evidence from Tolini, the inference to be drawn, if any, is that Tolini would not have advanced the respondent’s case. This is not, however, a critical point in my overall analysis of the evidence and I do not base my conclusion on the absence of evidence from Tolini.
I do not accept the respondent’s submission that all of its lay witnesses disputed the worker’s allegation that she was required to undertake heavy lifting. I have already referred to Mr Vanapalli’s statement about the physical nature of the work in the NAK section and to Mr Kem’s evidence (see [83] above). That evidence was partly confirmed by the accident/incident report form. The evidence is clear that the worker’s normal duties required repetitive lifting and that, even the light duties, involved turning and lifting. Whether the weights were above 16 kg, and could be described as “heavy”, is of no consequence. I am comfortably satisfied that Ms Drar’s normal duties involved lifting boxes that weighed up to 16 kg and, on the evidence, that is the activity that caused her injuries.
The evidence from Ms Azagh dealt with two issues; first, the trip to Africa and, second, whether Ms Drar had received an injury at work prior to that trip. On the first issue, Ms Azagh’s evidence was logical and persuasive, and was corroborated by Mr Coombs. I accept that Ms Drar did not engage in the activities suggested (by inference) in Mr Ezekiel’s statement. Even if she had engaged in such activities, there is no evidence that she injured herself as a result. The trip to Africa was of limited, if any, relevance. On the second issue, the evidence from Ms Azagh and Mr Coombs was no more than a bald assertion that they were “aware” that Ms Drar had sustained a back injury due to her work at the warehouse. They gave no explanation of the basis of their knowledge. In the absence of more detailed evidence from them, their evidence on this issue was of little probative value.
I accept Dr Thakkar’s evidence that Mr Ezekiel was arrogant and rude when he spoke to the doctor on 16 May 2007. Though his behaviour reflects poorly on him, it does not assist me in resolving the issues in dispute.
The respondent has conceded that Mr Kem may have overestimated the leave Ms Drar took at the end of 2006. The leave records confirm that his evidence was wrong on this issue. That is not decisive, but suggests that he did not take an objective view of the situation and did not check the records before giving his statement.
The submission that Ms Drar’s evidence of having lifted 111 boxes on a day in April 2007 was clearly inconsistent with the respondent’s evidence that she was not required to lift boxes in that fashion is not persuasive. The respondent’s witnesses have conceded that Ms Drar’s duties required her to lift boxes. On Mr Kem’s evidence, even the light duties may involve turning and lifting. The very essence of the job involved packing and lifting boxes. The suggestion that it did not is untenable. Whether Ms Drar lifted 111 boxes on a particular day in April 2007 (or some lower number) is not critical to the outcome of the case. The evidence comfortably satisfies me that she did lift boxes in the course of her employment and that, as a result, she developed symptoms in her back and right shoulder.
The absence of a reference to work in Dr Parvin’s notes is not decisive. The submission that Ms Drar apparently received no treatment following her consultations with Dr Parvin in 2006 was not accurate. Dr Parvin prescribed Panadeine Forte and Voltaren, and suggested physiotherapy. Dr Parvin’s note of 24 September 2006 confirms that Ms Drar was still taking Nurofen at that time. That she took Nurofen in 2006 is also confirmed by Dr Endrey-Walder’s history. Why Ms Drar did not have physiotherapy before May 2007 is not properly explained in the evidence, but not determinative.
I agree with the respondent’s submission that there was “more than enough evidence” for the Arbitrator to question Ms Drar’s credibility. However, the worker’s appeal is not solely based on the credibility finding, but on the basis that the Arbitrator failed to properly consider all the relevant evidence and weigh that evidence to determine whether Ms Drar had received an injury as a result of her duties between May 2006 and May 2007. As I explained above, that complaint is made out.
I agree that the lack of any OH&S forms or contemporaneous documents confirming a report of injury between May 2006 and May 2007 does militate against Ms Drar’s case. Had her case been based solely on an injury in July 2006, the lack of any contemporaneous documents confirming Ms Drar’s complaints at that time may well have been important. The present case, however, is based on the work she performed over a much longer period.
Ms Drar’s positive performance appraisal in December 2006 demonstrated that, whatever problems she had in July 2006, they were not restricting her in the performance of her duties. Whilst this tends to confirm that she had not complained about having injured her back before May 2007, I do not accept the respondent’s submission that the likely inference is that Ms Drar did not receive any injury. The outstanding performance appraisal confirms that Ms Drar was a good and conscientious worker who was unlikely to have fabricated a story about a back injury as a result of her duties.
I do not accept Mr Ezekiel’s evidence that Ms Drar said, in reference to her back, “it had nothing to do with here”. This statement is completely contrary to the worker’s evidence on every other occasion when she has recounted her symptoms and is inconsistent with all of the medical histories.
Given Ms Drar’s excellent performance appraisals (which reflected favourably on her credit), the nature of her duties (which undoubtedly required lifting boxes), the report of back pain due to lifting at the Auburn District Hospital on 9 May 2007, the report of low back pain at work recorded by Westmead Hospital on 15 October 2007, and the the histories and conclusions by Drs Thakkar, Maniam and Endrey-Walder, I am comfortably satisfied that Ms Drar injured her back and right shoulder in the course of her employment with the respondent between 1 May 2006 and 15 May 2007.

CONCLUSION

Having conducted a detailed review of the evidence and submissions, I have concluded that the true and correct position is that Ms Drar received an injury to her back and right shoulder as a result of the nature and conditions of her employment with the respondent between 1 May 2006 and 15 May 2007. The injury was, based on the evidence of Drs Endrey-Walder and Maniam, in the nature of an aggravation of a disease, namely degenerative facet joint arthrosis and disc degeneration in the lumbar spine, and degenerative changes in the acromioclavicular joint of the right shoulder. I am satisfied that Ms Drar’s employment was a substantial contributing factor to that aggravation. Based on the medical evidence, and Ms Drar’s evidence of her continuing symptoms, I am satisfied that the effect of the aggravation is continuing. Her first day of incapacity relevant to the claim was 15 May 2007 and that is the deemed date of injury for the purpose of section 16(1)(a)(i) of the 1987 Act.

Neither side has made any submissions about Ms Drar’s psychological condition. Based on Dr Clark’s unchallenged evidence, I accept that Ms Drar has developed reactive depression/anxiety as a consequence of, or secondary to, her physical injuries. As it is a secondary psychological injury, Ms Drar has no entitlement to lump sum compensation for any impairment that may have resulted from it (section 65A of the 1987 Act). However, she is entitled to her reasonably necessary medical expenses for treatment of that condition.

DECISION

Paragraphs four and five of the Arbitrator’s determination of 3 March 2010 are revoked and the following orders made in their place:
“4.The applicant worker suffered an injury to her lumbar spine and right upper extremity (right shoulder) in the nature of an aggravation of a disease and a secondary psychological injury as a result of bending and lifting in the course of her employment with the respondent employer between 1 May 2006 and 15 May 2007.
4A.The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the whole person impairment as a result of injury to the worker’s lumbar spine and right upper extremity (right shoulder). The deemed date of injury is 15 May 2007.
5.Pursuant to section 60 of the Workers Compensation Act 1987, the respondent employer is to pay the applicant worker’s hospital and medical expenses for her physical and psychological injuries upon production of accounts or receipts.
5A.The respondent employer is to pay the applicant worker’s costs, as agreed or assessed.”

Paragraphs one, two, three and six of the Arbitrator’s determination are confirmed.

COSTS

The respondent employer is to pay the applicant worker’s costs of the appeal, assessed at $2,200.00 plus GST.

Bill Roche
Deputy President

7 June 2010

I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE