Express Skips NSW Pty Ltd v iCare Workers Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Express Skips NSW Pty Ltd v iCare Workers Insurance [2023] NSWPIC 312
APPLICANT:	Express Skips NSW Pty Ltd
RESPONDENT:	iCare Workers Insurance
Member:	Kerry Haddock
DATE OF DECISION:	30 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application by uninsured employer in respect of notice issued by respondent pursuant to section 145(1); applicant disputed that the worker had sustained injury to right foot as alleged; applicant referred to video evidence obtained by the worker’s flat mate that was not in evidence, but that purportedly showed the worker walking around at home; evidence that the worker told his flat mate, who was also a colleague, on the day of the injury that he had injured himself and was leaving; worker’s flat mate declined to provide statement; contemporaneous medical evidence that worker’s foot was swollen, and X-Ray showed fracture; applicant did not rely on any medical evidence; Held – worker sustained injury to his right foot arising out of or in the course of his employment with the applicant on 21 September 2021; payment of weekly benefits and medical expenses by respondent were appropriate and reasonably necessary, respectively; applicant to pay respondent the sum of $39,612.35, in accordance with notice dated 17 January 2023, issued pursuant to section 145(1).
determinations made:	The Commission determines: 1. The applicant is to pay to the respondent the sum of $39,612.35, in accordance with the notice dated 17 January 2023, issued pursuant to s 145(1) of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Express Skips NSW Pty Ltd (Express Skips), did not at the relevant time hold a workers compensation insurance policy.
The worker, Sountharararhah (Rasa) Somasuntharam, was employed by the applicant as a labourer/cleaner/yard worker/sorter. He claims to have sustained injury to his right foot on 21 September 2021, a claim that the applicant disputes.
The worker lodged a report of incident or injury (the report) on Insurance and Care NSW (iCare) on 28 October 2021.
The report stated that on 21 September 2021, at 7:30am, the worker was carrying heavy planks of wood, as instructed by “Abdul”, and slipped. His right foot inverted and he developed severe pain and swelling. He was unable to work and was admitted to Westmead Hospital Emergency (Westmead).
The worker described the injury as “right foot 5^th metatarsal tuberosity fracture”. He could not walk and had had to arrange a taxi or Uber to travel to his general practitioner (GP).
The worker’s average weekly wage was $1,180 per week, for 44 hours per week, including Saturdays from 7.30am to 1.30pm.
By letter dated 3 November 2021, iCare advised the worker that it had a reasonable excuse not to commence provisional weekly payments of compensation. The reason was that it had been unable to verify that he was an employee of Express Skips. He was requested to provide evidence of his employment.
The worker completed a Worker Claim Form (the claim form) on 4 November 2021.
The worker stated that on 21 September 2021, he was asked by the employer to carry some heavy planks of wood. His right foot inverted and he developed severe pain and swelling and was unable to continue working. His injury was a right foot “5” metatarsal fracture.
The worker had reported his injury to “Abdul and Ousama Kassem – managing director.”
By letter dated 24 November 2021, iCare advised Mr Ousama Kassem of Express Skips that it would commence payment of weekly compensation for up to 12 weeks, and medical expenses of up to $10,000 on the basis of provisional liability. It had determined that the worker’s pre-injury average weekly earnings (PIAWE) were $675, based on banking statements.
On 8 June 2022, iCare issued the applicant with a notice pursuant to s 145(1) of the Workers Compensation Act 1987 (the 1987 Act). It required reimbursement of the sum of $18,983.71, paid to, for or on behalf of the worker.
On 7 September 2022, iCare issued the applicant with a second notice pursuant to s 145(1) of the 1987 Act, seeking reimbursement of $25,690.85.
On 3 November 2022, iCare issued the applicant with a third notice pursuant to s 145(1) of the 1987 Act, seeking reimbursement of $31,353.55.
On 9 December 2022, iCare issued the applicant with a fourth notice pursuant to s 145(1) of the 1987 Act, seeking reimbursement of $36,736.35.
Finally, on 17 January 2023, iCare issued the applicant with a fifth notice pursuant to s 145(1) of the 1987 Act, seeking reimbursement of $39,612.35.
The applicant lodged a Miscellaneous Application (the Application) on 13 February 2023. It sought “reimbursement of all payments/invoices and withdrawal of any penalties to Express Skips NSW”.
The applicant’s submissions in support of its claim were that “Video evidence has been supplied to all insurance investigators and can be emailed over if required.”
In the section of the Application headed Injury Description/Cause of Injury and Death, the applicant stated: “Claims to have slipped over and fractured his foot, Sountharararhah has only provided 1 medical certificate with a return to [sic] date of 12/10/21 but Sountharararhah has not returned to work at all and had not returned any calls, hence abandonment of employment notice was sent out to him 04/01/2022.”
The respondent lodged its Reply on 8 March 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the worker sustained injury;
(b)    the extent of any incapacity for work as a result of injury, and
(c)    the reasonableness of payments made by the respondent.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was listed for preliminary conference before me on 16 March 2023. Mr Kassem appeared for the applicant, and Ms McPhan appeared for the respondent. Mr Butcher of iCare also attended. The conference was recorded, as the applicant was not legally represented.
The respondent advised that payments to the worker ceased in January 2023, and it did not believe he needed to be joined as a party to the proceedings.
There were some negotiations between the parties, and Mr Kassem advised that he wanted some time to consider Express Skip’s position. The matter was therefore adjourned and listed for further preliminary conference on 6 April 2023.
On 6 April 2023, the Commission received an email from Mr Ehab Ghabach, a lawyer representing the applicant. Mr Ghabach advised that, early that morning, his office had been advised that Mr Kassem had been admitted to hospital after a motor vehicle accident.
Mr Ghabach sought an adjournment of the conference for four weeks and advised that a copy of the relevant hospital/medical certificate would be provided upon its availability.
The respondent objected to the adjournment of the conference, which accordingly proceeded on 6 April 2023. Mr Ghabach appeared for the applicant, and Ms Browne appeared for the respondent. Mr Butcher attended.
Mr Ghabach advised that Mr Kassem had undergone surgery. He was therefore unable to provide instructions. However, Mr Butcher and Mr Kassem had been discussing settlement of the matter, and it appeared that it may be resolved, subject to Mr Ghabach obtaining instructions once Mr Kassem had sufficiently recovered. The parties agreed that a one to two week adjournment, to allow the negotiations to proceed, would be appropriate.
The matter was next listed for preliminary conference on 20 April 2023. Mr Ghabach had ceased to represent the applicant, and Mr Kassem appeared. Ms Browne appeared for the respondent. Mr Butcher attended. The conference was recorded.
The respondent advised that a Deed of Release had been sent to the applicant’s former solicitor, and had that afternoon been sent to the applicant. The applicant had advised that it could no longer afford the agreed amount and had ceased trading.
The parties requested that the matter be listed for conciliation/arbitration hearing and advised they would in the meantime continue their attempts to resolve the dispute.
The matter was listed for conciliation/arbitration hearing on 9 June 2023, by the Teams platform. Mr Kassem appeared for the applicant, and Ms Compton of counsel, instructed by Ms Browne, appeared for the respondent. Mr Butcher attended. Mr Kabbut attended as support person for Mr Kassem.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application to call oral evidence or cross-examine any party.

FINDINGS AND REASONS

Evidence of the worker, Sountharararhah (Rasa) Somasuntharam

The worker’s statement is dated 19 November 2021.
He was employed as a cleaner by Geta Skip Pty Ltd in 2016. The company transferred him to Express Skips. The management was the same for both companies.
The company collected refuse from building sites and returned it to a depot in Seven Hills. He was paid to sort it into various categories for recycling. He usually worked six days a week, but only a half day on Saturdays.
He was paid each week into his bank account. His wages were $800, and tax and superannuation were taken out. He was issued a payslip. He was also paid $580 a week in cash, paid to him by Ousama Kassem.
He had not had any previous WorkCover claims or suffered from any serious illness or injuries.
On 21 September 2021, he was working at the depot. He had been “tasked” to remove some wood planks “which was on a green bin”. He had removed it to the floor, which was in a road in the yard. He was picking up the planks from the road when he turned and suddenly felt a pain in his ankle. He did not know what caused the pain, “very severe”.
He was assisted by two co-workers, “Jeyam” and “Parki”. They are both also Sri Lankan. He did not think either spoke English. Mr Kassem spoke to [all of] them slowly in English so they could understand, and usually said the same words.
They (Jeyam and Parki) checked he was OK and continued to work while he limped to the lunchroom, where he applied ice to his ankle. “Abdul”, another manager, came to the lunchroom, told him to keep icing his ankle, and left.
The pain became worse, so he told Abdul he would go home. He managed to drive home but was in pain. When he got home the pain became even worse. He saw one of his neighbours in the street and asked him to take him to Bridgeview Medical Practice.
The doctor, Nalayini Sugirthan, sent him to be X-rayed. Upon receiving the results, she sent him to Westmead. He went to this practice because she speaks Sri Lankan.
At the hospital, the doctor said he thought he may have damaged ligaments or tissue in his ankle, and the recovery would be about two months. He was given a discharge document.
When he got home, he talked to a friend who suggested he go to Bennelong Medical Clinic, and he had been treated by Dr P[atrick] Khoury from that time. He had been issuing his certificates of capacity (COCs), which he had posted to Mr Kassem, who had not responded.
He should also state that he had been diagnosed with acute lumbar pain resulting from his work in general. “He” (assumed to mean his GP) had stated he would never be able to return to work due to nerve pressure in his back.
His ankle was still painful, and Dr Khoury had not recommended he could return to work. He had not been able to do any other work and had not worked. He had not been paid by WorkCover. He was receiving no income.

Evidence of Hasan Dzonlagic

Mr Dzonlagic is the applicant’s office manager. He has provided four statements, some of which do not relate to the injury which is the subject of the notice in this matter. There is also some repetition in the statements.
On 2 December 2021, Mr Dzonlagic stated that “Rasa” joined Express Skips when Mr Kassem’s previous company, Geta Skip, was split in February 2021. He was employed as a yard worker/sorter. He worked a 38 hour week and occasionally worked on Saturday mornings on an as needs only basis.
The worker was paid into his bank account. Each week he would [receive] approximately $650 a week after deductions. He received no other payments. He did not receive cash in hand.
Since February 2021, Rasa always worked at their yard at Seven Hills.
On 21 September 2021, he arrived at work at 8.00am and Rasa had already left. He had not signed on as required. He usually started at 7.00am.
He had been informed by other workers that the worker arrived at 7.00am, said he had hurt himself, and then left. He had not reported to management. Their on-shift manager informed him that Rasa had not informed him he was leaving, and he found this out after Mr Dzonlagic arrived.
He attempted to contact Rasa later that day, but he did not respond.
He managed to call the worker on 22 September 2021. He said he had slipped in the yard and had to go to the doctors. They held this conversation in English. It was his experience that “he can speak English when it suits him but will often claim to not understand when it is to his advantage”.
Rasa came to the office on 23 September 2021. He drove his own car. He saw him walk to the passenger side without his moon boot, open the door, and retrieve his crutch. He put the moon boot on and came to the office.
The worker handed in a discharge summary from Westmead. He told him he needed to complete an incident report. The worker took the incident report away. He walked to his car using the crutches, opened the back passenger door, took off his moon boot, and placed it with the crutch on the back seat. He then drove away. At the time, he believed the worker was being overcautious.
On 24 September 2021, he saw the worker’s car pull in but did not see him get out. He entered the office on crutches and returned the incident report. He asked the worker who drove him, and he said he drove himself.
The incident report had been completed by someone else. Rasa did not write well in English, and the address of the location of the incident was their other office.
On 1 October 2021, Rasa returned to the office and dropped off a COC. He asked if he was OK to drive. He said he was. He was suspicious, as the COC was not completed in this area. He asked Rasa to get a letter from his doctor to confirm he could drive.
Rasa returned on 13 October 2021 to provide another COC. As he was photocopying it, he noticed the “drive section” had not been completed. He asked if the worker had the letter confirming he could drive. He said he would take the form away and get it completed properly.
He asked the worker why he wanted to take the document away. He said, “because I am not hurt, I will cancel the claim”. The worker took his copy away and he retained the photocopy.
He rang Rasa on 3 November 2021 and asked if he was OK to attend the office. He said “maybe” and hung up. He had not had contact with him since then.
Express Skips did not employ anyone by the name of Abdul. Abdul was the previous partner on Geta Skip. They employed a manager called Alex, but he did not work on the morning of 21 September 2021. He commenced a shift in the afternoon. He would have no knowledge of this incident.
About three days after the alleged incident, a worker called Jeyakantharasi Basathraf told him Rasa was not injured and would openly walk around the home they shared. He asked “Jeyan” to get a movie on his phone of Rasa at home.
On 13 November 2021, Jeyan sent him a video of Rasa walking at home. The file was transferred using an Airplay App. He provided a copy.
Mr Dzonlagic’s second statement is dated 6 January 2022. Much of the statement is directed to a claim for a lower back and leg injury and is not relevant to this Application.
He commenced work with “the insured” [sic] in February 2021 and was currently its operations manager. The worker reported to him. He was the senior manager in the yard and was there every day.
He was not aware the worker had lodged a claim in respect to alleged lower back and leg injuries until he was told about the factual investigation.
Abdul Dhouk worked for Geta Skip but not for the applicant. There was no one by the name of Abdul employed at the applicant.
The worker was based at the yard at Seven Hills. He was required to undergo a pre-employment medical examination with Geta Skip and did not undergo further check or questionnaire with the applicant. He presented himself fit and well when he started in April 2021.
On 13 November 2021, he obtained two videos from Jeyan showing the worker was walking fine at home.
On 2 December 2021, he was contacted by a factual investigator and provided a statement.
The worker had not returned to work since 21 September 2021. Jeyan had mentioned he had secondary employment on a farm in Penrith, but he did not know the specifics.
Mr Dzonlagic’s third statement is dated 7 March 2022.
The worker, whom he knew as “Gazza” [sic], was a permanent part-time employee in the role of yard sorter and reported to him. He acted as senior manager in the yard. He was aware of the work completed and the equipment used, and of any incidents as reported to him.
The worker’s flatmate changed employment from Geta Skip to Express Skips at around the same time as the worker.
The worker had previously lodged a claim for lower back and leg injuries he alleged occurred during his employment with Express Skips. He had advised that a person named “Abdul” was his supervisor.
He had been advised that the worker had lodged a claim for injury to his right hand, that had been present for two years, against Express Skips.
The worker was not required to carry and move items around repeatedly in his work. He was mostly required to do sorting. The items he may have to lift would not weigh more than 5kg, but his work was primarily moving the items, not carrying them from one place to another.
There was a bobcat that picked up larger or heavier items, and trolleys available. They also had a forklift and excavator.
The worker had told him he had another job. His housemate said he was working on a farm.
Mr Dzonlagic’s fourth statement is dated 31 August 2022.
The owner of Express Skips is Ousama Kassem.
The worker commenced work with Express Skips on 6 April 2021 in the position of yard worker/sorter. He was no longer employed. He had not advised of his return to work and had been removed from the roster.
At the time of this claim, the worker’s duties were general yard work, cleaning, rubbish sorting, and removal. He worked a minimum of 16 hours per week and an occasional Saturday. His was classed as permanent part time.
The worker’s aptitude was good. His attitude was average. His sick leave record was good. Overall, he was regarded as an average worker.
He attended work at about 8.00am on 21 September 2021. The worker had not signed in at his start time of 7.00am. He was informed by Jeyan that the worker had arrived at 7.00am and stated he had hurt himself and left the premises. When Jeyan told him about the alleged injury he was laughing and stated no one witnessed the worker injure himself.
He spoke with the shift manager, Alex Dommas, and he said the worker had not informed him he was leaving or reported any injury. The worker was aware of this procedure as he had made other injury reports. He attempted to contact the worker, but he did not respond.
When the worker attended the workplace on 23 September 2021, he found it strange that he did not need assistance to move around his vehicle, but when he saw him, he could not put any weight on his ankle. He became suspicious of the injury, as the worker seemed to only be injured when he was face to face with him.

He noticed the incident report was contradictory to what the worker had advised about who administered first aid “by Abdul” and the different times. It stated at the top of the form that he was injured between 7:30am and 7:40am and in the description it stated he was injured at 9:02am. That time is not correct, due to his attendance at 8.00am.
Express Skips did not employ a male by the name of Parki or Abdul.
Alex, the manager on duty on 21 September 2021, stated that the worker did not sign in, receive first aid, or report any injury to him. Jeyan was working on 21 September 2022 [sic].
The worker had made a claim for injury to his right ankle on 21 September 2021. He was aware that the worker had added to his original injury when was interviewed by other investigators.
The worker did not report the injury to his right ankle to management, Ousama Kassem, as he did not work at the premises and was not in attendance that day.
The manager on duty was Alex Dommas. He stated that no injury was reported to him, and he was not aware the worker had left. The worker did not sign in, as per company policy, and he therefore could not guarantee he worked on this day. He was paid the minimum four hours for the day. Mr Dommas had since left the company, with no further contact details.
Jeyan had stated the worker was at work and left before 8.00am. He “flippantly stated” that the worker injured himself, and Jeyan laughed when he told him. He did not disclose what had happened or any further information on the injury. On 18 June 2022, Jeyan’s employment was terminated due to no further work in his field.
Westmead records showed the worker did not attend until 12:15pm on 21 September 2021 after allegedly leaving the workplace at 7:40am.

Evidence of Lisa Groth

Ms Groth is technical team leader, claim support services, at iCare.
Ms Groth sent an email to “ous” (assumed to be Mr Kassem) on 3 August 2022, having reviewed the video footage. She noted this was the first time it had been provided to iCare.
The video showed an unknown person walking. There was no date or time to determine when it was taken, nor was Ms Groth able to identify that the person in the videos was the worker.
Liability was accepted on the basis of medical evidence showing the worker attended for medical attention on 21 September 2021 and Mr Dzonlagic confirming he was an employee.
ICare had attempted to contact the employer on 29 October 2021, 1 November 2021, and 3 November 2021 (on a phone number provided) and messages were left. Its case manager was able to speak to “Ousama” on 3 November 2021.
On 3 November 2021, iCare sent via email (to the same email address) a notice to provide information, which did not appear to have been returned.
ICare arranged for a factual investigator to take a statement from Mr Kassem, but he advised that Mr Dzonlagic would be more appropriate. He confirmed the worker was an employee and joined the company around February 2021. There was no video evidence provided at the time. Jeyan was not willing to provide a statement.
Ms Groth noted Mr Kassem’s concerns but asked if he had any other evidence that supported his evidence of the worker misrepresenting his injury. She asked if there was any CCTV of the site on 21 September 2021. She would be happy to review his concerns on presentation of further evidence.
Upon Ms Groth’s review of the file, there was insufficient evidence to support that the worker was misrepresenting his injury and committing fraud.
Ms Groth advised that her decision to accept liability may be referred to the Commission and provided its contact details.

Medical evidence

Westmead Hospital

The discharge summary recorded that the worker attended Westmead on 21 September 2021.
The worker presented with a swollen sore right foot, following a trip over slippery ground, while carrying objects, at work (construction), leading to an inversion injury. He had gone to his GP. X-ray showed an undisplaced comminuted fracture of the fifth digit base of the metatarsal. The GP had referred him to Westmead.
The worker could weight bear but “extremely painful and limited”.
The impression was recorded as “R base of 5^th/little toe MT (metatarsal) undisplaced comminuted fracture (closed).”
The plan included “?CAM boot/non op mgmt/further imaging.” The worker was to “WBAT” (assumed to mean weight bear as tolerated) in a CAM boot.

Dr Patrick Khoury – GP

Dr Khoury recorded on 13 October 2021 that the worker had attended with right metatarsal fracture. He was given a workers compensation certificate.
On 20 October 2021, Dr Khoury recorded some healing on X-ray. The worker remained in significant pain. Dr Khoury prepared a referral to Dr Roderick Kuo. There is no evidence that the worker has consulted Dr Kuo.
Dr Khoury’s records include an X-ray report of Dr Ken Ho, dated 11 November 2021. The
X-ray had shown comminuted fractures at the fifth metatarsal tuberosity. There was progressive sclerosis, in keeping with healing, compared with the previous X-ray on 13 October 2021.
On 24 November 2021, Dr Khoury took part in a case conference with “Megan” (Ms Megan O’Brien) from iCare. They discussed the worker’s foot claim, and a new certificate until 24 November 2021 was issued. They also discussed his back claim, and “there will be a claim for his R hand also”. Each COC was to be updated based on each individual injury.
Dr Khoury issued a medical certificate on 15 December 2021. He recorded that the worker had three ongoing workers compensation claims. They were right foot fifth metatarsal fracture; acute on chronic low back pain – lumbar disc bulges at L4/5 and L5/S1 with nerve root compression; and right hand fourth finger Dupuytren’s contracture.
The worker’s most recent COCs had been submitted on the day of writing to the insurance company.
On 8 June 2022, Dr Khoury responded to a questionnaire submitted by iCare. It was only directed to the injury to the worker’s right foot.
Dr Khoury reported that the worker’s initial work related injury was a right foot fifth metatarsal fracture. However, he was now complaining of pain, worse with his first steps in the morning and with prolonged walking. He had had some tenderness of the sole of his foot, consistent with plantar fasciitis. This was a secondary diagnosis.
Dr Khoury opined that the worker’s employment was not “directly” the main contributing factor to plantar fasciitis. However, intrinsic foot muscle weakness secondary to the initial work related injury may have contributed.
The timeframe in which the worker would receive a pre-injury duties certificate on his right foot claim was 29 August 2022. He had not returned to work in any capacity.
The other barrier that was preventing a return to work was the worker’s other work related injuries. The main forms of physiotherapy had been to his low back, and he may not have been able to complete foot and back exercises at the same time.
The worker required a Tamil interpreter for all interactions, and assistance making bookings. He had developed co-existing depression in the past six months. He had pain associated with other musculoskeletal injuries: low back, shoulder, and hand.
Dr Khoury’s COC dated 29 June 2022 contains details of his treatment and attendances from 20 October 2021 to 29 June 2022.
It is not my intention to refer to every entry.
By 24 November 2021, the worker had pain in his right foot with walking/weight bearing, and only mild pain with standing and squatting. There was no pain with sitting. His bending was limited by back pain (separate injury). Driving was painful.
On 22 December 2021, the worker reported some improvement with foot pain. He had forgotten to do an X-ray but would do that today. Clinically he was improving and would go ahead with physiotherapy.
On 6 April 2022, the worker had pain in the lateral right foot, present when he walked for up to 90 minutes, and in the early morning on first steps. There was some tenderness surrounding the fourth and fifth metatarsal, pain with resisted eversion, dorsiflexion and single leg calf raise. He was to continue physiotherapy.
On 1 June 2022, the worker’s presentation was consistent with plantar fasciitis.
On 29 June 2022, Dr Khoury advised that the worker required podiatry, and requested approval for four sessions. The worker had capacity to work for six hours a day, five days a week, from 29 June 2022 to 27 July 2022, with restrictions.

Befit Physiotherapy

Ms Anita Vasudevan reported on 18 May 2022.
The worker had been having physiotherapy for his right foot fracture since 25 January 2022 and had had 13 sessions so far.
On initial assessment, the worker had significant foot pain with active inversion of the ankle at end range. He was unable to walk for more than 10 minutes without onset of pain (Visual Analogue Scale 7/10 when aggravated). There was tenderness on the fifth metatarsal bone and the fourth and fifth extensor tendons of the toes, implying muscle weakness affecting the worker’s balance.
Ms Vasudevan has detailed the worker’s treatment. He had made steady progress and was able to walk up to about one to two hours without onset of pain. He had no pain with active ankle movements in all directions. He still felt mild tenderness on the fifth metatarsal and extensor tendons. He also had early morning pain (6/10) that got better as he commenced walking.
The worker’s progress was slow due to additional complications of low back pain, limitation of left shoulder movement, and Dupuytren’s contracture of the right hand. He was unable to return to his pre-injury duties due to his inability to lift shoulder overhead and carry any weights. His low back and shoulder were being treated under another claim number.

Mr Paul Shim - podiatrist

Mr Shim reported to Dr Khoury on 3 July 2022.
Mr Shim recorded a history that on 21 September 2021, the worker was carrying some timber with both arms. He “tripped on something”, which led to right ankle lateral sprain. He had been seeing his physiotherapist weekly and was in a moon boot to immobilise and reduce the load for his right foot.
The worker was still getting pain along the dorsum and plantar aspect of the fourth/fifth metatarsal area and at the styloid process area. He was still unable to work due to the foot injury and wanted to return to work in the near future.
Mr Shim opined that the worker’s injury was the result of sudden excessive load and stress along the entire lateral part of the right foot. They could aim to address this with custom orthoses to give additional support.
Depending on the worker’s progress, he may require additional modifications to the shoe. He would require follow up appointments, to make adjustments as required. Once a good outcome was achieved, he would require another pair, with the same design in principle, but with steel cap boots for work.

SUBMISSIONS

The submissions have been recorded and a transcript is available, so I will briefly summarise the submissions.

Respondent

The respondent submitted that the amount it sought was a total of $39,612.35. The medical expenses related to consultations from 4 November 2021 to 4 January 2023; and weekly benefits from 24 November 2021 to 4 January 2023.
The respondent submitted there was no evidence to dispute the validity of the medical treatment. There was no evidence that any treatment was not in accordance with s 60 of the 1987 Act.
With respect to injury, the respondent referred to the Westmead discharge summary. It submitted there was no evidence to dispute that the injury occurred. There was a relevant
X-ray of the worker’s right foot.
The respondent submitted the applicant had provided no evidence to dispute the injury. There was pathology in terms of the X-ray. There was no alternate medical opinion. The injury was recorded contemporaneously. The worker provided a contemporaneous report.
The respondent referred to Dr Khoury’s COC indicating that the worker had no capacity for work from 20 October 2021. There was no medical opinion that he was fit for work when he was certified otherwise. The respondent referred to the rest of Dr Khoury’s evidence, which it submitted there was no reason to dispute.
The respondent submitted there was no reason or evidence to dispute the payments referred to in the list of payments. It submitted I would be comfortably satisfied that the worker sustained injury in accordance with the discharge summary and the COCs.
The respondent referred to Ms Vasudevan’s evidence. There was no evidence that the treatment was not reasonable, was not necessary, and was not undertaken in accordance with s 60 of the 1987 Act.
The respondent submitted that I would not be persuaded to accept the applicant’s statements regarding “injury” in circumstances where there was independent third party evidence from the hospital, a GP, and the physiotherapist.
The respondent submitted there was no evidence whatsoever to dispute that the worker sustained injury in accordance with s 4 of the 1987 Act. There was no evidence to support a conclusion that the payments made pursuant to ss 36 and 37 of the 1987 Act were not made in accordance with those provisions. The COCs were prima facie evidence of the injury.
The respondent referred to Mr Dzonlagic’s evidence, which it submitted went no further than providing a chronology. It contained various observations and statements of information that had been obtained from parties regarding whether the worker had been injured.
Mr Basathraf had not provided a statement. The respondent submitted I would not accept the evidence of what had been said by a third party when there was independent evidence from the GP and the hospital.
The respondent submitted there was no evidence to support anything other than a finding that the worker sustained injury on 21 September 2021, and that he was unfit for work thereafter.
The respondent submitted there was nothing in the worker’s statement that had been contradicted by the independent and third party evidence, and I would be satisfied to accept his evidence. Mr Dzonlagic was not there at the time of the accident and there was no evidence to dispute the mechanism of injury.
In reply to the applicant, the respondent reiterated that there were only the records before me. There was no video evidence and no records filed by the applicant to sustain many of its allegations.
The respondent submitted that Mr Dzonlagic did not state anywhere that the worker was not at work at the time. He stated that no one witnessed the worker injure himself, but it is clear from his evidence that Jeyakantharasi did. The worker’s presentation at the hospital, his statement, what was reported to Mr Dzonlagic, and what was provided to Dr Khoury, are consistent.

Applicant

The applicant referred to the worker’s statement. Mr Kassem submitted that he had never met the worker. He submitted that “these guys are lying” and he “just wanted to let that be clear”.
The applicant submitted that the worker claimed when he went to the hospital that he slipped on slippery ground, but “down the track on a different date” he said he was picking up some wood. So, it was “a bit confused if wood and slipping on the ground is the same.”
The applicant submitted that the worker said he was at work on that day, but there was no signed timesheet. That was Mr Dzonlagic’s evidence. This meant that the worker was not even at work or had sustained injury at work. Dr Khoury was an interested party because he got paid for certificates and was attended by the worker.
The applicant submitted that medical staff do not investigate whether the injury occurred. They just go off what the worker says to them on how he got injured. They do not know where he was.
The applicant submitted it had had a few investigators and it had asked the worker to give it a medical certificate and any information regarding the injury. It had tried to assist, even though it knew he was not working on that day, but the worker refused, ran away, and never answered phone calls.
The applicant submitted there were inconsistencies with the injury as per Dr Khoury’s statement on 8 June 2022.
The applicant submitted the insurer was relying on the hospital records, but no one had spoken to it. They offered for the worker to see their doctors – “nothing”. So, none of the evidence had been supplied at all. “Just an injury that was sustained and he says that happened at work.” There was no other evidence after the investigator Geoff Smith conducted investigations that the worker was injured at work.
The applicant submitted that the only thing we can get is that the medical staff are the only records that they have of the worker being injured “from the alleged party”. The worker had the opportunity to present his case with it but chose to run away, not answer its calls, and disappear. The tribunal wanted to use medical records of someone else. It “does not make sense” to Mr Kassem, who was “a bit confused”.
The applicant submitted that multiple statements from the operations manager had been dismissed, and multiple private investigators had investigated the matter. “That was ignored”. The onus was on the insurer to make proper investigation and ensure the injury occurred at work before making payments.
The applicant submitted that it was ignored and not listened to. It had tried its best “to sort of resolve the matter”. It had supplied video evidence that “someone should have from iCare that he was walking” which kept getting ignored.
The applicant submitted that “half its evidence” was moved, it moved offices and a lot of information was lost. It was “saying how unfair this is considering how many times we’ve had to waste…” It submitted a lot of the evidence was with iCare, “like the investigators’ reports, the ones that they sent out. How come they disappeared?”
The applicant put it “on the record” that it would be asking for the investigators’ reports “because they’ve got to be somewhere”.
In reply to the respondent, the applicant made submissions about “worker” which were irrelevant, it not being in issue that the worker was its employee.
The applicant submitted that the onus was on the insurer to ensure the worker was at work and during the course of his employment when his injury was conducted. There was always “Hussain” in the office, “no one’s at work and they have to sign in and magically…that day no one was there, and he got injured at work.”
The applicant submitted the insurer had relied solely on the words from the injured party. It had given a statement from its employees [sic], “what other statements do you want?”
The applicant did not dispute that the worker attended the hospital. It submitted that Dr Khoury even accepted that the mechanism of the injury was not consistent with the claim. However, the tribunal could not be satisfied that the injury was sustained at work. Thorough investigations are “onus on the insurer”.
The applicant finally submitted that “unless you can verify that he was at work that day and he sustained it at work I don’t believe how the onus is on us when we’ve got things in place. He hadn’t signed that timesheet.”

SUMMARY

Injury

I am satisfied that the worker sustained injury arising out or in the course of his employment with the applicant on 21 September 2021.
The evidence from Mr Dzonlagic is that when he arrived at work on 21 September 2021, he was told by Mr Basathraf that the worker had injured himself and had already left.
I do not believe that the fact that the worker had not signed the timesheet can be taken as evidence that he was not at work on the date of the injury. Mr Basathraf, on Mr Dzonlagic’s own evidence, said he was. Mr Basathraf has declined to provide a statement.
The worker has provided a statement about how the injury occurred.
The contemporaneous evidence establishes that the worker attended Westmead on 21 September 2021 and provided a consistent history. His right foot was observed to be swollen. An X-ray had confirmed a fracture of the base of his fifth metatarsal.

I do not believe anything turns on the fact that the worker stated that he was picking up planks when he turned and felt pain in his ankle, and Westmead recorded that he tripped on slippery ground. It also recorded that he was carrying objects at work. Apart from cases such as Davis v Council of the City of Wagga Wagga[1] and Mason v Demasi[2] that warn that inconsistencies between a witness’s evidence and clinical notes should be treated with caution, the descriptions of injury are not mutually exclusive.
[1] [2004] NSWCA 34.
[2] [2009] NSWCA 227.
Dr Khoury’s evidence is also supportive of the worker, as is that of Ms Vasudevan. The medical evidence is all one way.
The applicant has referred to video evidence, supposedly recorded by Mr Basathraf, on which it apparently sought to rely to impeach the worker’s credit.
The evidence is not before me, despite the applicant bringing this Application. Ms Groth apparently viewed it, and I have referred to her email to Mr Kassem. Even if it did show the worker walking around, and it was taken at some time after the injury, that would not establish either that the injury did not occur, or that he was not incapacitated for work. He did not suggest he was unable to walk, and neither did any of the practitioners who has treated him.

Incapacity and payments made

The evidence with respect to incapacity is also all one way. The applicant did not seek to rely on any medical evidence.
Dr Khoury issued a COC on 13 October 2021, certifying that the worker had a right foot fifth metatarsal fracture that occurred on 21 September 2021, when he was carrying some planks of wood and his right foot inverted.
The worker was certified as having no work capacity from 20 October 2021 to 3 November 2021.
As I have noted, Dr Khoury recorded on the COC dated 29 June 2022 the history of the worker’s treatment. At that stage, he was certified with capacity to work 30 hours per week with restrictions.
The applicant made no submissions as to the reasonableness of the payments made to, for, or on behalf of the worker, save that it may be assumed it did not accept that any payments should have been made, as it disputed that he had sustained injury.
The list of payments suggests that the respondent determined that the applicant’s PIAWE were $675 per week as it paid weekly benefits of $641.25 per week ($675 x 95%) pursuant to s 36 of the 1987 Act. The worker was paid varying amounts pursuant to s 37 of the 1987 Act. The list of payments indicates that his “current weekly earnings”, during periods when he was certified with current work capacity, were considered.
The evidence indicates that the applicant was paid appropriate weekly benefits.
The applicant appears to have received appropriate medical treatment, including from Mr Shim and Ms Vasudevan, and underwent necessary investigations. There is no evidence to suggest that it was other than reasonably necessary medical treatment, pursuant to s 60 of the 1987 Act.
The applicant has conceded that it did not hold a workers compensation policy at the date of the worker’s injury.
I have determined that the worker sustained injury to his right foot arising out of or in the course of his employment with the applicant on 21 September 2021. He was incapacitated for work during the period for which he was paid weekly benefits. The payments of weekly benefits and medical expenses made by the respondent were appropriate, and reasonably necessary, respectively.
The order is as set out in the Certificate of Determination.

[2023] NSWPIC 312

30 June 2023