El-Chami v DME Engineering Services Pty Limited - [2019] NSWWCCPD 35

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	El-Chami v DME Engineering Services Pty Limited [2019] NSWWCCPD 35
APPELLANT:	Omar El-Chami
RESPONDENT:	DME Engineering Services Pty Limited
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-5145/18
ARBITRATOR:	Mr J Isaksen
DATE OF ARBITRATOR’S DECISION:	29 November 2018
DATE OF APPEAL DECISION:	18 July 2019
SUBJECT MATTER OF DECISION:	Whether Arbitrator was correct to find that the applicant had not made out any case of incapacity as a result of injury between date of cessation of payments of compensation on 24 August 2015 and 26 June 2017 when period of claim closed
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	On the papers
REPRESENTATION:	Appellant:	Sanford Legal
Respondent:	Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination of 29 November 2018 is confirmed.

INTRODUCTION

The appellant worker appeals from a decision of an Arbitrator finding that he had not made out a case of total or partial incapacity for work between 24 August 2015 and 26 June 2017 as a result of an injury it was common ground he suffered in the course of his employment with the respondent on 15 May 2015. The respondent conceded that incapacity existed up until its cessation of payments pursuant to a s 74 Notice on 24 August 2015, and the appellant did not press his claim beyond 26 June 2017. On 27 June 2017 the appellant suffered serious injuries in a motor vehicle accident unrelated to his employment with the respondent or to the conceded injury of 15 May 2015 and was thereafter unable to work in any event.
The Arbitrator held that the claim for weekly benefits during the period just mentioned failed. However the Arbitrator was satisfied that the medical treatment the appellant had undergone, for which the respondent had also denied liability, was reasonably necessary as a consequence of the injury, as was the need for medication he was prescribed and took.
As can readily be appreciated, the Arbitrator’s decision thus amounted to one that the appellant had some acceptable level of continuing difficulty flowing from his injury such as to create a need for some medical expense, but not sufficient to produce any relevant incapacity for work.

BACKGROUND

The appellant’s case was that on 15 May 2015 he sustained injury to his neck, right shoulder, right arm, upper and lower back and consequential depression as a result of the injury he suffered in the course of his employment with the respondent.
It was not in dispute that on the afternoon of 15 May 2015, in the course of his employment with the respondent as a rigger, which employment he had held on a casual basis since early February 2015 subject to a three week honeymoon in late April and early May, he was struck by a heavy steel beam which was suspended from a crane whilst he was standing in a cherry picker. However, the particular parts of his body that were affected by that injury and the nature and extent of the injury were in issue.
Following his injury on 15 May 2015, the appellant attended the employer’s first aid office and complained of neck pain and headache. There he was given a neck brace, before going to Sydney Hospital for further medical treatment on 16 May 2015. The appellant first consulted his general medical practitioner, Dr Suraj Vij, on 18 May 2015. He gave the doctor a history consistent with his injury and made complaints of injury to the left side of the neck, with severe pain in the right side of the neck, back of chest and lower lumbar region. This had been accompanied since 17 May with “… tingling in right fingers, feels heavy in right arm, whole head is throbbing with severe right sided neck pains.”
Dr Vij promptly referred the appellant to a neurosurgeon, Dr Simon McKechnie, who first saw him on 28 May 2015. An urgent MRI of the cervical and lumbo sacral spines was arranged and took place on 9 June 2015. It was negative in respect of both areas in the sense that it showed no sign of acute injury. There was no condition raising any prospect of surgery and it became common ground that apart from the psychological or depressive condition the appellant’s physical condition involved soft tissue injuries. I read the submissions on this appeal as also constituting common ground in that regard.
Dr McKechnie and Dr Vij saw the appellant regularly thereafter. Dr Vij furnished medical certificates of incapacity, and the appellant also underwent treatment by way of physiotherapy and the prescription of medication.
As abovementioned, liability in respect of the appellant’s incapacity for work certified to by his treating doctors and in respect of his medical treatment was accepted by the respondent for a period of about 3 months. On 2 July 2015, the respondent had the appellant medically examined by a neurosurgeon, Dr Neil Cochrane, and on 29 July 2015 by an orthopaedic surgeon, Dr John Watson. These doctors produced reports dated respectively 15 and 29 July 2015.
As already mentioned, on 24 August 2015 the respondent declined further liability, in part on the strength of these reports, although I think it is correct to say that probably more reliance was placed upon the report of Dr Watson. So far as the opinion of Dr Cochrane is concerned, at least my reading of his report is that from the point of view of his speciality, he could not explain the appellant’s inability to work, but on the strength of his complaints, which he thought might be within the province of a psychiatrist, he acknowledged that there could be relevant incapacity.
The Arbitrator heard the claim on 22 November 2018 and with admirable dispatch delivered comprehensive reasons for his determination of the claim on 29 November 2018,[1] giving the decision to which I have referred in para [2] above.
[1] El-Chami v DME Engineering Services Pty Ltd [2019] NSWWCC 297 (Reasons).

THRESHOLD MATTERS

So far as I can see, there is no dispute that the threshold requirements of s 352(3) and (4) of the Workplace Injury Management and Workers Compensation Act 1998 have been met.

ON THE PAPERS

The parties are in agreement that this appeal may be dealt with “on the papers” and I am satisfied that this is so.

FRESH EVIDENCE

Neither party sought to lead fresh evidence upon the appeal.

ISSUES IN DISPUTE

Upon my consideration of the material before me, I think the real issue in this appeal is whether the Arbitrator erred in holding that the appellant had not proved that he had “no capacity” for work between the claimed period of 24 August 2015 to 26 June 2016 as a result of the injury of 15 May 2015 (or at all). Para [99] of his reasons could be read as a blunt rejection of the allegation of incapacity for any reason, but the context must be the allegation of incapacity brought about by the injury of 15 May 2015. There are some issues relevant to this critical finding, namely whether the Arbitrator erred in holding that the appellant had not proved that on 15 May 2015 he sustained injury to his right shoulder rather than suffering some shoulder pain referable to this neck trauma;[2] and in holding likewise that there had been no discrete injury to the right arm.[3] In respect of the appellant’s depressive condition, an issue arises as to whether the Arbitrator erred in holding that the appellant had not proved a causal connection between the injury and that condition, nor that the condition was productive of incapacity for work.[4]
[2] Reasons, para [74].
[3] Reasons, para [77].
[4] Reasons, para [89].

EVIDENCE

The appellant relied upon the material lodged with his Application to Resolve a Dispute registered on 3 October 2018 and with his subsequent Application to Admit Late documents. (The latter was confined to his prescription history report from his pharmacist who supplied his medication.)
Given the nature of the claim, effectively for an alleged closed period of incapacity for work, the important evidence was that bearing on the period in issue. It comprised the appellant’s statement dated 27 February 2018[5] and various medical reports and certificates, not just those which came into existence during the period, but medical evidence said to be relevant to the appellant’s condition during it. This medical evidence included the certificates, in particular those of Dr Vij to which I have earlier referred, his clinical notes of his consultations with and examinations of the appellant, the discharge summary from Sydney Hospital, radiological reports, serial reports from Dr McKechnie, and reports obtained on a medico-legal basis from Dr Bertucen, a psychiatrist, and Dr Abraszko, a spinal surgeon and neurosurgeon.
[5] Pages 250–1 of the material appended to his Application to Resolve a Dispute (ARD).
The respondent relied upon the material lodged with its Reply to the appellant’s Application, and there was considerable overlap between the documentary medical evidence it advanced and the documentary medical evidence advanced by the appellant. The respondent relied upon the medico-legal reports of Drs Cochrane and Watson abovementioned and upon the radiological reports, certificates of Dr Vij and serial reports of Dr McKechnie in respect of the appellant.
For reasons which I shall give below, I do not think it is necessary to rehearse the content of this evidence in detail. I will advert briefly in due course to the Arbitrator’s reasons, but I think it is fair to say at this point that the Arbitrator reviewed the relevant evidence in an analysis which dealt both with the effect of the evidence on its face and whether its purported face value was appropriately underpinned by explanation and/or medical reasoning.
Accordingly, I think it is sufficient to give my own understanding of the evidence relied upon by the parties from my perusal and consideration of it, which is as follows.
For the appellant, in para [8] of his statement, he asserted that he sustained injuries to his neck, chest, right shoulder, right arm and hand, back and psychological/psychiatric injuries, and he added in para [9] that after the injury happened he was in shock. He outlined having come under the care of Dr Vij and Dr McKechnie. In regard to the period effectively commencing upon the denial of further liability on 24 August 2015, he said in para [17] that he “… was not physically or psychologically ready to return to work …” at that stage. He said that the injury upon which he relied “… was the third incident I had at work in short space of time. I did not lodge any claims for the earlier two incidents. But I had serious questions in my mind in relation to my safety on the job site which mentally affected me.” He went on to refer to his taking of medication and treatment by way of physiotherapy, hydrotherapy, acupuncture and being referred to a psychologist, without indicating the period or periods of time to which these responses to his injury and complaints related. I think it is fair to say that his statement supported his claim both by reference to physical and psychological injury, but certainly as to the latter, his statement could only be taken to refer to his understanding of his psychological state.
So far as the medical evidence relied upon by the appellant is concerned, I think it is fair to say that the clinical notes of Dr Vij do not clearly suggest discrete or specific injuries to parts of the appellant’s body other than his neck and low back, as distinct from trauma by way of a blow to the neck and possible symptoms elsewhere in the body consequent upon that trauma but without direct injury to those other areas. I think it is also fair to say that the serial reports of Dr McKechnie disclose no objective clinical problem as distinct from continuing complaints made by the appellant that are recorded by the doctor and made the subject of advice about treatment and management.
In short, as I would understand the import of the evidence of Dr McKechnie as the treating neurosurgeon, the appellant presented to him with subjective complaints which were not reflected in or explained by radiological or clinical findings of abnormality. Accordingly, it is not difficult to see why the respondent also wished to put the serial reports of this doctor before the Arbitrator, nor why the parties adopted common ground to the effect that the appellant’s physical state involved soft tissue injury.
The medico-legal reports of Dr Bertucen and Dr Abraszko require, to my mind, separate comment.
As to the former, I construe the doctor as saying that whatever impact the appellant’s psychological condition may have had before mid-2016, by that stage it was resolved: see the second paragraph under the heading “Psychological Sequelae” on page 3 of his report of 12 April 2018 and his answer to question 3 on page 4. Then when one comes to consider the doctor’s evidence as to any adverse impact upon his capacity for work owing to psychiatric injury flowing from the injury relied upon, in his answer to question 4 on page 5 of his report, the doctor said that “The psychological effects of the May 2015 incident appear to have resolved sometime around mid-2016”. In answer to question 9, he said that the appellant “… was fit for employment in his pre-injury occupation (from the psychological perspective) probably from February 2016 until June 2017.”
Dr Bertucen was speaking on the strength of a consultation with the appellant on 11 April 2018, and so far as I can gather from his report, he offers no explanation of why the psychological effects of the 15 May 2015 injury ceased to trouble the appellant in February 2016 and does not reconcile that view with his earlier-expressed view that I have noted above that mid-2016 was the period of effective resolution. Implicit in this is that there is no explanation of why and to what extent psychological problems persisted between August 2015 and February or June 2016.
Dr Abraszko provided reports dated 12 June 2018 and 15 August 2018.[6] (I take an undated report giving an assessment of 5% WPI from the injury of May 2015 to be part of the earlier report.)
[6] ARD, pp 9–15.
I regard the first report as the important one, and my impression of it is that it is not materially different in the view it propounds of the appellant from the opinion of Dr McKechnie. No significant radiologically or clinically detected abnormalities are disclosed and to the extent that the report is supportive of the appellant’s claim it involves an acceptance of his subjective complaints.
Turning to the evidence relied upon by the respondent, I think it is clear enough that it comes to this: the certificates and serial reports of Drs Vij and McKechnie respectively limit the extent of the appellant’s injury as to discrete or specific location and objective clinical significance; the report of Dr Cochrane of 15 July 2015 gives no clinical or objective support to the appellant but leaves open the possibility of some psychologically added problem or functional overlay; and the report of Dr Watson of 29 July 2015 is squarely opposed to any conception of incapacity for work on orthopaedic grounds, the doctor expressing the view that the appellant’s complaints may be explained upon the basis of abnormal illness behaviour, something outside his area of expertise.

THE ARBITRATOR’S REASONS

I do not think it is necessary to discuss these at length. I think it is sufficient to say:
(a) in paras [15]–[61], the Arbitrator reviewed the evidence, chiefly the medical evidence from all sources, but also the appellant’s statement, in his discussion of each party’s case before him. (This part of the Arbitrator’s reasons also outlines the competing submissions of counsel for the appellant and the respondent).
(b) in paras [62]–[105] (pages 10–14) of his reasons, the Arbitrator gave reasons for his determination of the claim. I have averted above to the paragraphs in which he made his adverse findings. (He also made a positive finding of discrete low back injury, rejecting the respondent’s submission on that issue.)
The way in which the Arbitrator came to his critical findings I think appears quite clearly from his reasons. It can be summarised by saying that he was not satisfied that the medical evidence supported the proposition that there had been an injury to the appellant’s upper back (unlike his lower back); that the depression when it emerged in June or August 2015 was not explained by the medical evidence as being causally related to the injuries sued upon; and there was no opinion that was explained or justified in the medical evidence to the effect that the appellant’s depression was incapacitating or having an adverse effect upon his capacity for work.[7] Further, the Arbitrator took the view that the serial medical certificates from Dr Vij were substantially uninformative and did not explain the link between the unfitness being certified to and the alleged consequences of the appellant’s injury, and he took much the same view[8] of Dr McKechnie’s reports in relation to the appellant’s physical complaints. However, specifically in relation to the certificates of Dr Vij, the Arbitrator drew support for his conclusion that they were not informative enough to constitute cogent evidence[9] by reference to authority in this jurisdiction, namely DHL Exel Supply Chain (Australia) Pty Limited v Hyde,[10] Gardener v Sauer’s Bakehouse Pty Limited,[11] and Greif Australia Pty Limited v Ahmed.[12]
[7] See in particular paras [78]–[88], pages 11–12.
[8] Reasons [92]–[93].
[9] Reasons [91]–[98].
[10] [2011] NSWWCCPD 22.
[11] [2018] NSWWCCPD 49.
[12] [2007] NSWWCCPD 229; 6 DDCR 461.
To reiterate: it was on this reasoning, which seems to me to have at its heart the inconclusiveness and inadequacy of explanation and expression in the appellant’s medical evidence, as well as in his own statement, that the Arbitrator found against the appellant in respect of his claim for weekly payments. There is no statement to the effect that the Arbitrator preferred the evidence of Drs Cochrane and Watson, especially that of Dr Watson which I would regard as the most adverse to the appellant. But I think the evidence of those two doctors, of which the Arbitrator was clearly conscious, can fairly be seen as reinforcing the uncertainties about the nature and extent of the appellant’s complaints and their connection with the injury because of the emphasis they place on functional overlay and abnormal illness behaviour.

GROUNDS OF APPEAL

The appellant raised five grounds of appeal, as follows:
(a)“The Arbitrator erred in failing to draw available inferences from medical and lay evidence before him supporting the event of injury relied upon (15-5-2015) as the probable cause of the appellant’s secondary depression from June 2015. (Reasons 81)”
(b)“The Arbitrator erred in failing to properly consider the medical evidence or misdirected himself in relation to the medical evidence when he did not analyse it in conjunction with available inferences to be drawn from it and lay evidence supporting the event of injury relied upon (15-5-2015) as the probable cause of the appellant’s secondary depression from June 2015. (Reasons [79] to [88]) (Seltsam Pty Ltd v McGuiness[13])”
(c)“The Arbitrator erred in failing to exercise his discretion to give proper weight to the appellant’s treating doctor, Dr Vij and the only psychiatric opinion before him (Dr Bertucen) which when analysed with available inferences from lay and medical evidence supported the appellant’s depression as caused by the injury event relied upon (15-5-2015). (Reasons [79] [80] [82] [83] [84] [85] [87] (Seltsam Pty Ltd v McGuiness)”
(d)“The Arbitrator erred when misdirecting himself so as to apply too strict a test for the acceptance of evidence supporting causation of the appellant’s secondary psychological injury and thus failing to so determine that the condition was caused by the work injury.”
(e)“The [A]rbitrator erred in rejecting medical opinion evidence supporting ‘no capacity’ as a result of the appellant’s soft tissue injuries and secondary psychological injury and in finding that such evidence was not of a standard required to support causation. (Reasons [88] & [98] & [99] – Nguyen v Cosmopolitan Homes[14])”
[13] [2000] NSWCA 29; 19 NSWCCR 385 (Seltsam).
[14] [2008] NSWCA 246 (Nguyen).

SUBMISSIONS ON APPEAL

The appellant furnished written submissions in support of each ground, but I think it is no disservice to them to say that they collectively reduced themselves to the central proposition that the Arbitrator was wrong to regard the appellant’s proofs as lacking sufficiently persuasive explanation or reasoning so as to demonstrate how his complaints were linked to the injury and how they translated into the appellant’s incapacity for work during the relevant period. The argument was developed by reference to a number of well-known authorities, the legal propositions or principles from which are themselves well-known because of the general familiarity with the cases.[15] They establish that if the medical evidence admits only of a possibility of causation, nonetheless a decision-maker like the Arbitrator can find causation on the probabilities by reference to the totality of the evidence including that medical evidence, and that inferences may be drawn on the strength of direct evidence which can be taken into account and acted on as part of the evidence.
[15] Nguyen, [60]–[61]; Seltsam [83], [95] and [96].
Put another way, I think that the appellant’s case on this appeal relies upon an argument that there was sufficient evidence before the Arbitrator to enable him to arrive at the opposite conclusion as regards an entitlement to weekly compensation, and that in determining not to do so he applied too exacting or rigorous a standard.
Although not expressly said to be, this is probably a reference to the principle stated in Drca v KAB Seating Systems Pty Ltd.[16] That case was recently discussed in Elsamad v Belmadar Pty Ltd[17] and Estate of Clarke v State of New South Wales (Greystanes Disability Services).[18] The principle can be expressed as follows: the expression “comfortably satisfied” is stronger and more stringent than “satisfied on the balance of probabilities”. Thus where a fact finder is “comfortably satisfied” he or she is a fortiori satisfied on the balance of probabilities. But the corollary is that for a fact finder to say he or she is not comfortably satisfied of a matter of fact makes it likely that the party contending for the relevant finding was subjected to a too exacting standard and therefore required to satisfy an erroneous burden of proof. However, I do not think the Arbitrator applied too exacting a standard in determining whether a causal connection between the appellant’s alleged depression and the injuries he suffered existed. Even if he did, there still remained a question as to whether the connection was made out on the correct standard and if so, whether the depression was relevantly incapacitating. The Arbitrator found against the appellant on this last issue, and it is not suggested that in doing so his approach was too rigorous or exacting.
[16] [2015] NSWWCCPD 10.
[17] [2019] NSWWCCPD 22.
[18] [2019] NSWWCCPD 29.
The respondent’s submissions, not surprisingly, supported the Arbitrator’s decision according to its terms. This comes down to a submission that the view taken by the Arbitrator was well open to him and is to be seen as correct.
To the extent that the respondent’s submissions adverted to authority, they proceeded from the premise, undoubtedly correct, that the learned Arbitrator’s decision was relevantly a factual one. From that starting point the respondent called in aid some well-known cases discussing the appellate process (by which I mean the appropriate approach for an appellate decision-maker to take in giving consideration to a first instance factual decision): Branir Pty Limited v Owston Nominees (No 2) Pty Limited,[19] cited by Keating P in Andersen v J & M Predl Pty Limited,[20] who also in Andersen cited Northern NSW Local Health Network v Heggie.[21]
[19] [2001] FCA 1833; 117 FCR 424.
[20] [2018] NSWWCCPD 40 (Andersen).
[21] [2013] NSWCA 255.
The respondent’s submissions ask one to take from them and the cases they rely upon the proposition, also undoubtedly correct, that where a decision under scrutiny is factual and there can be seen to be legitimate competing interpretations of the evidence available, respect should be accorded to the views of the first instance decision-maker, and an appellate tribunal should not interfere because, if charged with the obligation of first instance decision, it would or would probably have reached a different view. Rather the decision should only be set aside or varied if the appellate tribunal is satisfied that error has been made out.

CONSIDERATION AND CONCLUSION

In what I have said above I have expressed some views upon the evidence, the Arbitrator’s reasons, and the force of the submissions of the parties to this appeal. What follows should be read in conjunction with those views.
Essentially for the reasons advanced for the respondent in support of the Arbitrator’s decision, I am not satisfied that it displays error. In so saying, I should also say that I accept that it is possible to discern in the evidence a contrary view which might have been arrived at by the Arbitrator but was not. But to my mind, had he taken the opposite view and awarded compensation for the closed period of alleged incapacity that was before him, his conclusion would have been much more fragile and open to complaint than the one he came to.
In holding that the Arbitrator did not fall into error I have not only been conscious of the submissions advanced upon the appellant’s behalf, which to my mind do all that could have been done to champion the competing view, but ultimately come down to a complaint about losing the case upon the basis that “there was enough there to succeed and the result should have been different”. I have also been conscious of a couple of particular considerations, which I address below.
The first is that the appellant in his submissions challenged the Arbitrator’s criticism of Dr Vij’s written evidence, namely his medical certificates and clinical notes. What I took from the challenge to the Arbitrator’s reasoning was the argument, with which I think many people would feel sympathy, that after all the doctor was a busy practitioner and briefly expressed medical certificates and clinical notes are the norm. To expect otherwise is to put the bar too high. Reference could be made to the printed format of the NSW WorkCover certificates used on an everyday basis by general medical practitioners and used by Dr Vij here, which include on the second page, in the box dealing with “Capacity”, an instruction adjacent to the next nominated review date, that if either the review date is further away than 28 days or the incapacity being certified to is greater than 28 days – I regard the instruction as somewhat ambiguous – then “clinical reasoning” should be provided. It might be said to be a bit harsh to criticise Dr Vij for not giving elaborate reasoning when the instruction on the form was not chronologically invoked, but the considerations I have just mentioned about Dr Vij’s written materials are not in my opinion sufficient to demonstrate error in the Arbitrator’s evaluation of those materials.
Secondly, it might be thought that there is an internal inconsistency in the Arbitrator’s reasoning and his decisions on the claim for weekly benefits on the one hand and the claim for medical expenses on the other. If the expense of medical treatment were justified including throughout the period covered by the claim for weekly payments, does that not indicate that the appellant was suffering genuine symptoms, and tip the balance in favour of the view that he was incapacitated during some or all of the period of his claim for weekly benefits? The Arbitrator does not deal with this, no doubt because the case was not presented to him in such a fashion as to require consideration of it. But in my opinion common sense and human experience, coupled with my own long experience of the decision of workers compensation cases, clearly shows that there is no fatal inconsistency or error involved. It is by no means uncommon for people to be fit enough to work or go about particular activities whilst at the same time reasonably requiring a level of treatment and medication. This argument does not detract from the correctness of the Arbitrator’s decision.
For these reasons, the appeal should be dismissed and the determination of the Arbitrator confirmed.

DECISION

The Arbitrator’s Certificate of Determination dated 29 November 2018 is confirmed.

Larry King SC

ACTING DEPUTY PRESIDENT

18 July 2019