Freedom Group Limited v Ferizovic-
[2008] NSWWCCPD 27
•29 February 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:Freedom Group Limited v Ferizovic [2008] NSWWCCPD 27
APPELLANT: Freedom Group Limited
RESPONDENT: Midho Ferizovic
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC6826-07
DATE OF ARBITRATOR’S DECISION: 8 November 2007
DATE OF APPEAL DECISION: 29 February 2008
SUBJECT MATTER OF DECISION: Error of law; sections 4 and 9A of the Workers Compensation Act 1987; combing the Arbitrator’s reasons for error; decision available to the Arbitrator on the evidence; exercise of function fairly and according to law; evidence and weight of evidence; adequacy of reasons for decision; whether statement of worker improperly taken; credit.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Bartier Perry
Respondent: Conomos & Spinak
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 8 November 2007 is confirmed.
The Appellant Employer is ordered to pay the Respondent Worker’s costs of this appeal.
BACKGROUND
On 6 December 2007 Freedom Group Limited (‘Freedom’), the Appellant Employer, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission, against a decision, dated 8 November 2007.
The Respondent Worker to the Appeal is Mr Midho Ferizovic.
The Insurer is Allianz Australia Workers Compensation (NSW) Limited.
Mr Ferizovic was born in Bosnia and arrived in Australia on 5 December 2001. Before coming to Australia he was employed as a public servant and as a police officer. He was unable to obtain employment in Australia until 7 August 2003 when he was employed by Freedom in its Doonside/Marayong factory as a storeman.
Mr Ferizovic says that he injured his back at work on “a Friday in August 2004 just before 10 am”. He claims in his statement dated 8 August 2007 that he was moving a huge glass top from a table that was about 2 metres long and half a metre wide. He said that the glass was “really heavy, maybe about 20-30 kgs”. As he lifted the glass on his own, he twisted to put the glass onto a mattress. He says that he felt a twinge of pain in his back. He then pushed the wooden table over onto its side and “felt immediate pain”.
The Arbitrator states at [3] of his ‘Statement of Reasons for Decision’:
“The Applicant claims to have suffered an injury to his lumbar spine, with pain radiating to his right leg. The injury is claimed to have occurred on or about 13 August 2004 for a frank injury to the back, and later until 4 November 2004 for a nature and conditions claim when the Applicant worker continued to work in his usual duties.
The Arbitrator goes on to say at [4]:
“The Applicant notified the Respondent of the injury on a date which is in dispute, however the issue of notice of injury itself is not in dispute.”
On 12 October 2006 the Insurer informed Mr Ferizovic that it denied liability for the continuing entitlement to weekly benefits, and it subsequently denied liability for the non-economic loss claims. On 22 November 2006 the Insurer ceased payment of weekly benefits compensation.
On 5 September 2007 Mr Ferizovic filed an ‘Application to Resolve a Dispute’ in the Commission. In due course the matter proceeded to an arbitral hearing before the Arbitrator following which a ‘Certificate of Determination’ dated 8 November 2007, was issued, together with the Arbitrator’s ‘Statement of Reasons for Decision’.
The Arbitrator’s decision has been appealed by Freedom.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 8 November 2007 records the Arbitrator’s orders as follows:
“1.Application is amended to claim weekly compensation from 23 November 2006 to date and continuing, for a worker with dependant wife and 2 children.
2.Respondent pay the Applicant weekly compensation pursuant to section 40 of the 1987 Act at the maximum statutory rate for a worker with dependant wife and 2 children from 23 November 2006 to date and continuing.
3.The Applicant’s claim for permanent impairment is remitted to the Registrar for appointment of an AMS for a date of injury 13 August 2004.”
The “Decision appealed against’ is set out in Freedom’s Appeal in the following terms:
“The appellant says that the findings of the arbitrator which were incorrect and should be revoked were as follows (contained in paragraphs 44, 47 and 50 of the Statement of Reasons for Decision):
(i)That on or about 13 August 2004 the applicant (worker) received an injury to his lumbar back arising out of or in the course of his employment with the respondent.
(ii)The applicant’s employment was a substantial contributing factor to his injury on or about 13 August 2004.”
Section 352 (1) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.”
I will therefore proceed on the basis that Freedom is appealing the Arbitrator’s decision, as set out in the ‘Certificate of Determination’ dated 8 November 2007, by reason that his findings that (i) Mr Ferizovic sustained an injury to his lumbar back arising out of or in the course of his employment with Freedom, and that (ii) employment was a substantial contributing factor to the injury, are incorrect.
ISSUES IN DISPUTE
The issues in dispute in the appeal are set out in Freedom’s five grounds of appeal, and may be summarised as follows:
1.the Arbitrator failed to provide an adequate analysis of the evidence in relation to injury, and therefore failed to exercise his function fairly and according to law;
2.the Arbitrator failed to properly consider the relevant evidence and the weight of evidence in relation to injury;
3.the Arbitrator failed to provide clear and logical reasons why some evidence was preferred over other evidence and therefore, his reasons were inadequate and he failed to determine the matter properly and according to law;
4.the Arbitrator failed to consider the improper way that Mr Ferizovic’s statement was obtained, in using his wife as the interpreter, in circumstances when she had already provided a statement as a witness in the matter, and further, he failed to consider issues of weight and credit in relation to Mr Ferizovic’s statement and evidence in these circumstances, in accordance with the principles in Day v Perisher Blue Pty Ltd (No 2) (2005) NSWCA 125, and
5.the Arbitrator’s finding in favour of Mr Ferizovic as to injury is against the evidence and the weight of the evidence, and constitutes an error of law.
ON THE PAPERS REVIEW
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.”
Freedom’s legal representatives filed its initial submissions on appeal with its Appeal Application, on 6 December 2007. Mr Ferizovic’s legal representatives filed his submissions on appeal with his ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ on 22 January 2008. The Notice of Opposition was filed late (see below under “PRELIMINARY MATTERS”).
On 17 December 2007, the Commission wrote to both parties in the following terms:
“We refer to the above matter and enclose a copy of the transcript of proceedings.
If you have indicated in your submissions on appeal that you have been unable to complete your grounds of and/or submissions on appeal for the reason that the transcript of proceedings had not been received by you at the date of lodgment, you are required to complete and lodge in the Commission, your final grounds and/or submissions on appeal and serve on all other parties to the appeal in accordance with Practice Direction No 6.
A copy of this letter has been sent to all other parties to the appeal.”
On 6 February 2008, Freedom’s legal representatives filed detailed supplementary submissions, and served a copy on Mr Ferizovic’s legal representatives.
.
On 14 February 2008, Mr Ferizovic’s legal representatives filed brief supplementary submissions, consisting of two paragraphs, but raising no new matters or issues. On 19 February 2008 more fulsome, written supplementary submissions in reply to Freedom’s detailed supplementary submissions were filed in the Commission, as part of Mr Ferizovic’s second or supplementary submissions. I note that these submissions raised no new issues, but the attention of the Commission was invited to the Commission’s decision in Mateus v Zodune Pty Ltd [2007] NSWWCCPD 227, should the Commission wish to consider it. Otherwise, the submissions of 18 February 2008 (filed on 19 February 2008) were confined to responding to Freedom’s supplementary submissions. All supplementary submissions filed by each party have been served on the other party.
Freedom’s legal representatives submit that the Appeal may be determined on the papers. Mr Ferizovic’s legal representatives make the following submission, in support of a face-to-face hearing:
“The Respondent has reservations that this matter should be dealt with ‘on the papers’. It is submitted that the Appellant has failed to properly refer to portions of the evidence and exchanges on the transcript (see the submissions below at paragraphs 10, 14, 16, 17, 50, 56 and 61). The Respondent’s concerns are heightened, as the Appellant will likely exercise its rights to provide submissions in reply.
It is otherwise noted that care has been taken by the Respondent to properly address the Appellant’s lengthy written submissions which are themselves based in part on a further lengthy document which is referred to but to which no specific submissions are made in this Appeal (see Appellant’s submissions at page 15 under the heading ‘Submissions in support of ground 5’ which adopt large extracts of previous written submissions handed to the Arbitrator after the Respondent had orally addressed).
The Respondent notes that given the Appellant’s lengthy submissions it is concerned that it has neglected to respond to a matter, which the Appellant may infer is a passive adoption. It is submitted that in these circumstances such inference should not be made. An oral hearing would provide the Respondent an opportunity to address a matter that the Commission may consider of more significance.”
Mr Ferizovic’s legal representatives have now had the opportunity to respond in writing to the further submissions made by Freedom’s legal representatives, as outlined above.
I have closely read all of the submissions of both parties, the transcript of proceedings before the Arbitrator, and all other relevant documents in this matter. In the determination of this Appeal, I take into account the reservations and concerns expressed by Mr Ferizovic’s legal representatives.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the extensive submissions by the parties, I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
I am satisfied that the amount of compensation at issue on appeal is at least $5000 and 20% of the amount awarded in the decision of the Arbitrator that is appealed against. Section 352 (2) of the 1998 Act is satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
PRELIMINARY MATTERS
Rule 16.2 (7) of the Workers Compensation Commission Rules 2006 (‘the Rules’) provides:
“(7)Where a party seeks to oppose an application referred to in subrule (1), or the appeal in respect of which the application is made, the party must, within 28 days of being served with the application, lodge and serve on the other parties notice of that opposition.”
The Appeal Application was served on Mr Ferizovic’s legal representatives on 13 December 2007.
However, the ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ was filed in the Commission and served on Freedom’s legal representatives on 22 January 2008, well outside of the 28 days required by Rule 16.2 (7). No reasons have been put forward for the late filing and serving of the Opposition.
Mr Ferizovic has failed to comply with Rule 16.2 (7).
Rule 16.2 (5) provides in part, that the party lodging an application (Appeal) must serve a sealed copy of it, including attachments, on all other parties to the proceedings.
In this matter, the Application was received in the Commission on 6 December 2007. According to a file note dated 7 February 2008, the Appeal was not registered until 16 December 2007, when sealed copies were returned to Freedom’s legal representatives for service. The file note does not disclose the reason or reasons for the delay by the Commission in returning the sealed copies to Freedom’s legal representatives.
However, Freedom’s ‘Certificate of Service” states that service of the Appeal Application was served on Mr Ferizovic’s legal representatives on 13 December 2007, three days before the sealed copies for service were provided to Freedom’s legal representatives, by the Commission. In these circumstances, while there is no argument about service, the copy that was served could not have been a sealed copy.
Freedom has failed to comply with Rule 16.2 (5).
In providing its ‘Submissions in Response to the Respondent’s Notice of Opposition and Submissions in the Appeal’, Freedom’s legal representatives advised by letter dated 6 February 2008, “A copy of the appellant’s supplementary submissions in reply was served on the respondent worker’s solicitors by facsimile on 6 February 2008 (copy of letter enclosed).”
Rule 16.2 (6) provides, “The appealing party must lodge a certificate of service within 7 days of the date of service, certifying service of the application on the other parties.”
Freedom’s legal representatives did not provide a ‘Certificate of Service’ to the Commission, in relation to the service of its supplementary submissions. Given that the supplementary submissions allowed by the Commission, are part of the Appeal Application, it is arguable at least that Rule 16.2 (6) applies. However, this point may not be so clearly established.
It is highly undesirable that parties fail to observe the procedures laid down in the Rules. Nevertheless, neither party in this matter has raised the failure to comply with the Rules, as an issue in these proceedings. While there is no indication of prejudice or undue disadvantage to either party by reason of these failures, lack of compliance with the Rules can be, and often is, raised by parties as a preliminary issue in dispute to be determined by a Presidential member, prior to the determination of the substantive issues. This situation is contrary to the letter and spirit of the Commission’s statutory objectives set out in section 367 of the 1998 Act, and is in most cases, avoidable.
However, having regard to the circumstances in this matter, and pursuant to Rule 1.6 (2) of the Rules, I hereby dispense with compliance with the requirements of the Rules, to the extent that there has been a failure by either or both of the parties, as set out above, to comply with any such requirements.
EVIDENCE BEFORE THE COMMISSION
The evidence that was before the Arbitrator is before me in this Appeal. Neither party has put forward any fresh or new evidence.
The Arbitrator lists the evidence before him in his Reasons, as follows:
“9.To the extent that it was logically probative and relevant to the facts and issues in dispute the following oral evidence was taken into account in making this determination (WCC Rule 15.2):
For the Applicant:
·Sworn evidence of the Applicant.
For the Respondent:
·Sworn evidence of Ata Akama.
Documentary Evidence
10.The documents attached to the Application and Reply were in evidence before the Commission and taken into account in making this determination, together with:
For the Applicant:
·Supplementary Statement of the Applicant dated 16 October 2007.
·The report of Dr Gliksman dated 25 September 2006 was rejected for a number of reasons including its lateness (on the day of the hearing) and the reasons given on the recording of the proceedings.
For the Respondent:
11.Documents attached to Application for Late Documents filed with the Commission 23 October 2007, namely WorkCover Certificates from Dr V Chin dated 19 November 2004 and 26 November 2004, Incident report form dated 8 November 2004 and documents produced under Direction by Pacific Medical Centre Physiotherapy Department (various).”
The Arbitrator summarises the injury and nature of the claim as follows:
“12.The Applicant is a 41 year old man with 2 dependent children.
13.He commenced employment with the Respondent on 7 August 2003.
14.On the alleged date of injury for the frank injury in August 2004, the Applicant says he was lifting a large piece of glass on a table on his own, placed it on a mattress, feeling a twinge in his back as he twisted to get it into place. He then pushed the table onto its side and felt immediate pain in his back. He took a break at work then returned to his duties. He says the pain moved to his buttocks and right leg the following week when at work. He continued to work until he says he could not continue working after consulting Dr Ratnam on 26 October 2004, who certified him unfit. He was certified unfit again by Dr Chin on 2 occasions in November 2004. He says in his Statement he gave the certificate to his supervisor Tom Storry or another person who was a supervisor. He lodged his Incident Report form through [sic] Katie Dinyes who also assisted in helping him to complete the form on or about 8 November 2004. He continued with treatment, physiotherapy and medication, and does so to up to date, on his oral evidence.
15.At the time of the injury the Applicant was earning approximately $600 per week according to the Application wages Schedule. The Respondent made no contrary claim in the Reply.
16.As a result of the Injury the Applicant claims weekly earnings for the period [sic] 23 November 2006, and the Parties agreed to amend the Application accordingly.”
As to the medical evidence, the Arbitrator states:
“17.The medical evidence for both Parties is summarised in the Findings and Reasons below.”
At [18] of his Reasons, the Arbitrator states, “Both parties made oral written [sic] submissions, which are recorded, and the Respondent also served written submissions.
It is convenient to note at this point that, at [19] of his Reasons, the Arbitrator states:
“One critical issue revolve [sic] around whether the Applicant in fact injured his back at work, or whether in fact he had injured his back outside work building a wall and carrying cement bags helping a friend build a wall.”
The detail of the evidence in this Appeal is referred to below, as necessary and appropriate, in dealing with the grounds of, and submissions on, appeal.
SUBMISSIONS, DISCUSSIONS AND FINDINGS
The written submissions on appeal, including the supplementary submissions, are lengthy and detailed. Of necessity, the written submissions in response are also somewhat lengthy and detailed. Reference is made to them as relevant, necessary and appropriate.
A Presidential member has a specific and limited role in the review of a decision of an Arbitrator. A review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616).
In this matter, Freedom must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Moreover, the error must be such that, but for it, a different decision should have been made in its place (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56 (‘Askin’); and Absolon v NSW TAFE [1999] NSWCA 311 (‘Absolon’)).
If the only conclusion open on the evidence available before an Arbitrator was the conclusion reached by him or her, then, notwithstanding an inadequate statement of reasons from which an appealable error has arisen, a Presidential member may reach that same conclusion and thereby determine the matter, without formerly revoking the decision, or remitting the matter to the same or another Arbitrator for determination afresh (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444 (‘Beale’); NSW Insurance Ministerial Corporation (formerly GIO of New South Wales) v Mesiti NSWCA, 1 December 1994, unreported. See also Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344, (22 September 2004)).
In considering an Arbitrator’s decision, the question is not whether one agrees with his or her view, but whether it was reasonably available to him or her to arrive at that view, based on the evidence (Swain v Waverley Municipal Council [2005] HCA 4; 79 ALJR 249; 213 ALR 249 (‘Swain’)). The High Court said in that case, per Gleeson CJ,
“The question for an appellate court is whether it was reasonably open to the jury [sic] to make an assessment unfavourable to the respondent, not whether the appellate court agrees with it.”
A Presidential member is not required to comb through the Arbitrator’s findings and reasons for decision in a search for error (Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259 (‘Wu Shu Liang’). To the extent that a review of the Arbitrator’s decision is founded upon assertions of demonstrable error, it will generally be sufficient if the relevant findings and reasons of the Arbitrator are demonstrated on a consideration of the decision, and the reasons for the decision, as a whole (Beale). In Beale Mason P, said at page 444:
“It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice.”
Nonetheless, in looking at the Arbitrator’s Reasons as a whole, any material inadequacies and errors must be identified and considered (Beale). However, the decision under review must be taken on its face, and reasoning must not be attributed to a decision-maker where it is not apparent (Burns v Lovett Building Co Pty Ltd (1995) 12 NSWCCR 332 at 336). The standard by which the adequacy of reasons may be determined is relative to the nature and context of the decision being made.
Freedom’s submissions deal with the first three grounds of appeal together, and Mr Ferizovic has responded accordingly, except that his submissions relate to these grounds as well as the fifth ground of appeal. Freedom’s supplementary submissions generally follow the order of Mr Ferizovic’s first submissions. Mr Ferizovics supplementary submissions are made in response to Freedom’s earlier supplementary submissions, and raise no new issues. Ultimately, the submissions of the parties purport to cover all five grounds of appeal.
The position of the parties
Freedom’s position is that Mr Ferizovic has brought “a fraudulent or disingenuous workers compensation claim” in this matter (see [2.7.17], page 9 of its first submissions on appeal), and submits that the Arbitrator has erred. Mr Ferizovic denies this and states at [30] of his first submissions on appeal, “The real issue is whether the Respondent [Mr Ferizovic] had established on the balance of probabilities, that the injury occurred in the course of his employment with the Appellant.”
Mr Ferizovic further submits at [2.6] of his first submissions, “It is noted that the Application to Appeal raises as a separate issue the finding of ‘injury’ and the finding of ‘substantial contributing factor’ (see Appellant’s submissions at paragraph 2.5). However, the Appellant has not submitted that if the Respondent succeeds on the issue of ‘injury’ as defined in the Workers Compensation Act 1987 (‘the Act’), then he should not succeed on the issue of s. 9A of the Act.”
Both issues were in dispute before the Arbitrator and it is his decision against which the appeal was filed. However, I note Mr Ferizovic’s submission at [2.6] of his first submissions that if he succeeds in establishing that injury occurred in the circumstances claimed by him, it follows that “he should succeed on the issue of substantial contributing factor.”
The issue of injury
As identified and/or addressed by the parties and the Arbitrator, the matter of injury, including in particular the circumstances in which it occurred, was the key issue in dispute before the Arbitrator. There is no dispute that Mr Ferizovic did suffer an injury at some time in the later months of 2004, but it is his claim that he sustained the injury in the way he describes, arising out of or in the course of his employment, that is disputed.
For the purposes of the proceedings in the Commission, Mr Ferizovic prepared a written statement dated 8 August 2007. He says at [6] of that statement that his duties with Freedom involved the assembly and disassembly of various pieces of furniture. He states that this was heavy and repetitive work involving “lifting glass tops to coffee tables, lifting and carrying furniture, squatting, bending and twisting in assembling and disassembling this furniture, and having to assist with the forklift driver putting furniture on and off his forklift to be conveyed around the warehouse. I often worked alone and carried weights of up to 30 kgs at any one time.” He states at [10] of his statement that he recalls injuring his back at work on a Friday in August 2004 “just before 10 am.” Relating this incident to other events around the time, Mr Ferizovic concludes that the date of injury was Friday 13 August 2004.
Mr Ferizovic states at [11] of his statement:
“On the Friday that I injured my back, I was moving a huge glass top from a table that was about 2 metres long and ½ metre wide. I believe this was a computer desk. The glass was really heavy, maybe about 20-30 kgs. As I lifted that glass, on my own, I twisted to put it onto a mattress. I felt a twinge of pain in my back. I then pushed the wooden table over onto its side and felt immediate pain in my back. I said aloud words like ‘Ouch’.”
He goes on to say at [12], “Because the factory has lots of furniture around, no-one was working very close to me and I do not believe anyone saw it happen.” Mr Ferizovic says that he went outside to have a cigarette and to try to relax. He states that he did not tell anyone “immediately that I had hurt myself. The other people in the factory also did not speak my language and I wasn’t very close to them.” He says at [13] that he returned to his duties after a short break as the factory was very busy and he wanted to keep his job. He was able to continue working until he finished work for the day. He then went on to describe the development of symptoms, indicating that he obtained advice about pain relief from Mr Miro Pejar, his manager, and saying that he eventually sought medical treatment from Dr Ratnam, his treating doctor, on 26 October 2004 at the insistence of his Mother.
Mr Ferizovic says at [17] he continued to perform his normal duties from the time of the incident until 9 November 2006 [sic – corrected at the arbitral hearing, to read 9 November 2004] when he ceased work. His duties involved “twisting, lifting and bending.”
At [18] – [22] Mr Ferizovic states:
“18.I took the medical certificate to my workplace. I think on the same day as I saw the doctor (26 October 2004). I provided that certificate to Tom Storry. I then went home. My ex sister-in-law, Kartica Dinjes, then came to my home either that day or the next day. She brought with her an incident report form and filled that document out. While I told her what to put in that document, it is in her writing apart from my signature at the bottom of the page. I have been shown the incident report form and agreed that the incident date and incident time both say ‘approximately’. This is correct as I was fairly sure it was 10 am that I injured my back but I was not exactly sure what date it happened. I am sure that I did it at work.
19.My ex sister-in-law also told me that I needed to go and see Dr Chin, the company doctor, and that the company could not accept the certificate from Dr Ratnam. She gave me Dr Chin’s details and told me that she wa [sic] conveying this message from Muro Pejar, my manager.
20.I went and saw Dr Chin who referred me to see Dr Elliott.
21.Since seeing Dr Chin I have had some time off work and I have had a number of surgical procedures. I remain with sever [sic] pain in my back and leg but I am [sic] to do some work.
22.I did not receive any injury playing any sports or in a motor accident or in any other way. I know that it was only at work that I first felt pain in my back and this was after lifting heavy items. There was no other cause for my back injury.”
Mrs Amira Ferizovic, Mr Ferizovic’s wife made a written statement dated 24 March 2007, some five months before the preparation of his written statement. She states:
“1. I am the wife of Midho Ferizovic the Applicant herein.
2.On 13th August 2004 being a date I recall because on 3rd August 2004 my younger son had surgery so my husband Midho stayed home to look after my son and to help.
3.The following Monday he went to work and promised the following Sunday to take me to buy a present for our anniversary. On the Friday he came home and said ‘I was fixing a table with a glass top and I felt terrible pain in my back’.
4.On the Sunday he gave me money because he said ‘I have bad pain in my buttock’. He went to work the next day but said prior to leaving home, ‘I have pain in my right leg and buttock’. Only then did I realise that it was serious and he was not just saying it to get me out of going shopping.
5.The next few days I realised how serious it was because our sex life ceased altogether and on the 20th August 2004 being our anniversary he said words to the effect ‘I can’t sleep with you in bed because of the pain’.
6.On some days he seems to be alright in that the pain is not to [sic] bad but then it always returns severely – my mother-in-law said when she visited ‘you cant go on like this, see a doctor’.”
Mr Ata Akama (otherwise known as Utah), a store man and fellow employee of Mr Ferizovic with Freedom in 2004, states in his written statement of 19 September 2006, at [10], that in about October/November 2004 he saw and spoke to Mr Ferizovic at work one Monday. He states in part:
“The claimant looked to be in discomfort. He was stopping and starting, and when stopping was holding his lower back and grimacing. I asked the claimant, ‘Are you OK’. The claimant nodded and replied, ‘I am fine’. The claimant looked to be in pain when he replied that he was fine. I then asked, ‘What did you get up to on the weekend’. He replied, ‘I was building a wall’. The claimant did not mention where he was building this wall. The claimant made mention as to the type of wall he was building, however, I cannot recall precisely today what he said in regards it – I seem to recall that he was building some type of retaining wall. The claimant advised that he was doing work with a friend (name and details unknown) and that the pair of them had performed the work ‘all day’. He then said, ‘I was carrying cement bags from the car to the back yard’. The claimant then said, ‘I have a sore back from this work’. I asked the claimant, ‘Are you going to be alright’. The claimant replied, ‘Yeah, I will be alright’. The claimant then resumed his quality control work.
Mr Akama went on to say at [11] of his statement that he was alone with Mr Ferizovic at the time of this conversation.
He further states at [14] of his statement that Mr Ferizovic made no mention of his work at Freedom “being the cause of his sore back, or a contributing factor”.
He concludes at [15] with the following comments:
“I can confirm that in the days that followed my conversation with the claimant the claimant appeared terrible at work. He did not look right. The claimant obviously had an injury to his back. He would walk around in a bent and stooped manner, was holding his back all the time and would grimace on his face. During these following days I did not have any further conversations with the claimant.”
Mr Ferizovic emphatically denies that this particular conversation ever occurred, and in the hearing before the Arbitrator, denies in answer to a question (at T 34, line 36), that he told Mr Akama that he was carrying cement bags from a car to a backyard when helping a friend build a wall over the previous weekend.
Both Mr Ferizovic and Mr Akama adhered to their stated positions with regard to this alleged conversation, in giving oral evidence before the Arbitrator. Mr Akama says that the conversation did occur. Mr Ferizovic says that it did not, and he denies both the fact and substance of the conversation. One of these versions is not correct.
I note that apart from some discrepancies about the actual date that he ceased working after the alleged injury, the history in medical reports and statements is reasonably consistent. There is a discrepancy in terms of whether he claimed to have lifted a glass top from a coffee table or a computer table. His claim that he kept working for two months despite his pain and that he sought medical attention at the insistence of his Mother, is made consistently. It is also apparent that Mr Ferizovic had no previous history of injury of the nature sustained around the relevant time. It is also not disputed that he underwent surgery and for some time, he could only work restricted hours.
There are some variations of detail throughout the documentation in this matter. Freedom refers to some of them. The reference to the glass top of a coffee table or a computer table is one such variation. Another example is a reference to lifting “a large glass table” in the report of Dr. M Pukanic, dated 14 December 2005. A further example is found in the report of Dr Grahame Mahony dated 30 January 2006, where he says that Mr Ferizovic “lifted a large coffee table with a glass top by himself”. In terms of the medical reports I accept that some variations in language, emphasis and detail may be expected as different medical practitioners, over time, review previous medical reports and take the history of a worker claiming injury. While these variations are noted and may be taken into account, they are not of themselves, determinative as to whether Mr Ferizovic sustained a work-related injury or not. I note also, that Mr Ferizovic states at [9], “I speak very little English and cannot read the English language. With Miro Pejar I can speak as he speaks my language.” I accept, as did the Arbitrator, that there were language difficulties.
Nevertheless, the parties remain in dispute about how, where and when the injury occurred, and Freedom’s position is that the injury to Mr Ferizovic’s back did not arise out of anything he did at work, nor it submits, was it sustained during the course of his employment.
The substantive submissions of the parties
Freedom introduces its first submissions by citing Jennifer Tyack formerly trading as Country Kidz v Cain [2007] NSWWCCPD 119 (‘Cain’), in which I made certain findings about an Arbitrator’s duty to consider and analyse the relevant evidence when assessing and deciding between conflicting evidence. In that matter Ms Cain claimed to have sustained an injury when climbing from a shop window over a barricade, variously described as lattice, cloth covered lattice, and a cloth covered board. The issue for Ms Cain is summarised at [88] and [89] of my Reasons in that matter:
“88.What emerges from the mass of evidence and submissions in this matter is that Ms Cain has given different versions and has herself, conveyed different impressions, as to how she fell, rather than whether or not she fell at all. While the fact that she did fall is disputed, Ms Cain is consistent in the fact that she did so, and claims to have sustained an injury arising out of or in the course of her employment.
89.Ms Cain’s statements that she clipped or caught her foot in the lattice “surrounding” the window, and that she clipped her foot on, and/or fell over the ‘lattice’ under the cloth on the centre-board, do not stand together. Both statements as to how she tripped, cannot be correct. From submissions made by her in this appeal Ms Cain recognizes this. Moreover, the photographs in evidence before the Arbitrator make this obvious as no other part of the window enclosure, other than the centre board, was covered with cloth, and there is no claim by Ms Cain that the photographs represent an arrangement that was any different at the time of the alleged incident.”
Moreover, there was no “lattice under the cloth on the centre-board” at all. It was a solid piece of board.
The various versions given by Ms Cain were not mere matters of detail or even descriptive variations of the incident. They were distinctly different and conflicting versions of what happened, and went to the heart of how she fell and whether indeed, she fell at all. The appeal was partly successful and the matter was remitted to the same Arbitrator to “provide a proper analysis of all of the relevant evidence of both parties, deal specifically with and make appropriate findings as to the inconsistencies in the evidence of Ms Cain as to how the alleged injury occurred, and provide brief but adequate written reasons for the decision, according to law.”
In the Appeal now before me, Freedom states in its first submissions:
“2.7.4The appellant submits that the arbitrator failed to provide an adequate analysis of all relevant evidence and failed to give proper consideration to the body of relevant evidence and the weight of that evidence and failed to give a clear or logical explanation of the reasons why some evidence was preferred over other evidence. The appellant submits that the arbitrator therefore failed to determine the matter according to law. That amounted to an error of law. Examples of these failures will be out set below.
2.7.5The arbitrator failed to consider or deal with a significant number of inconsistencies and implausibilities in the applicant’s evidence.”
Some of what then follows in the submissions, describes what occurred before the Arbitrator and what the Arbitrator said. It is largely background comment to the assertions and examples of error put forward by Freedom.
The first point is that “the arbitrator did not discuss the employer’s written submissions (paragraphs 2.2 and 2.10-2 and the employer’s oral submissions to the effect that in the incident report, the claim form (attached to the application) and in his history to Dr Mahony (on page 1 of a report dated 30 January 2006 which is attached to the reply), the applicant said he was lifting a coffee table or a coffee table with a glass top by himself when he injured his back.”
.
It is true that the Arbitrator made no specific mention of these paragraphs of Freedom’s written submissions in the proceedings before him. He says at [10] of his Reasons that all documents attached to the Application and the Reply, were in evidence before him and were taken into account.
While Mr Ferizovic’s account (as recounted not only by him but by others as well) does vary in terms of detail in relation to what exactly he claims to have lifted, the inconsistencies as to this may be distinguished from those in Cain where the inconsistencies were much more critical, in that they pointed to distinctly different versions of the same incident, giving rise to Ms Cain’s injury. That is not the case in this matter, where two separate and disputed incidents are alleged by the parties.
I note in the transcript (T 25, line 5), Mr Ferizovic states under cross examination, “No sir. You know, I know what a coffee table is and I know what this table was.” However, he was then asked, “Okay. Because you’ve worked in a furniture warehouse for some time you know what the different types of furniture are called, don’t you?” He responded, “Oh, no, and that’s why Miro was criticising me.” Freedom did not pursue or seek to clarify the point with Mr Ferizovic, notwithstanding that his response appeared to suggest some difficulty with furniture terminology. This is particularly relevant as Freedom now says at [2.7.9] of its first submissions on appeal, “The appellant submits that this type of inconsistency about the nature of the item being lifted at the time of alleged injury is much more likely to occur when a worker has fabricated an event and an allegation of injury.”
Having regard to the obvious language difficulties which hampered communication to some extent at least, and the fact that Mr Ferizovic spoke of the alleged incident to a number of different people over a period of time, it would be unsafe and unjust to find against him wholly on what appears to amount to a lack of precision in language and description. In some circumstances, the Arbitrator’s failure to deal specifically with this detail of Freedom’s submissions could be significant. However, in general it is not necessary for an Arbitrator [or a Presidential member for that matter] to refer in detail to the evidence of each and every fact in issue, nor each and every step in the reasoning process (Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour/Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424). The Arbitrator’s view that Mr Ferizovic had poor English skills is a reasonable one, notwithstanding Freedom’s opinion that his skills would have improved over time.
While the discrepancies of detail in this Appeal may have some bearing on the question of injury upon a wider consideration of the evidence, they fall short of the quite critical and unexplained discrepancies in Cain as to how the injury occurred in the context of the single incident in which it allegedly arose, in the particular circumstances of that matter. Moreover, there were no language difficulties in Cain.
The Arbitrator dealt with the issue of injury at some length in this matter, and arrived at certain conclusions, after a consideration of the evidence for and against Mr Ferizovic, including the circumstances in which the alleged conversation took place between Mr Ferizovic and Mr Akama, some two years or more after the incident described by Mr Ferizovic. Whether his conclusions were available to him or not, is another matter.
In terms of Freedom’s first point, I find that it has not demonstrated an error on the part of the Arbitrator that is fatal to his decision.
The next point relates to the conversation that Mr Ferivoc is alleged to have had with Mr Akama, describing a non-work related incident causing injury.
In his statement of 19 September 2006, Mr Akama indicated at [10] that the conversation in question occurred in “about October/November 2004”. His statement and his evidence under cross-examination before the Arbitrator related wholly to Mr Ferizovic’s alleged condition at that time, and the particular conversation in question. There was no reference at all by Mr Akama to an injury that allegedly occurred at work in August 2004. His evidence as to injury related to an injury that he says Mr Ferizovic claimed to have sustained outside of work, at a later time. Freedom says that the Arbitrator misunderstood its case, by reference to that distinction.
Mr Akama states that Mr Ferizovic had no apparent injuries when he commenced with Freedom in 2003. He makes no further reference to any injury sustained by Mr. Ferizovic until October/November 2004. The only other reference to Mr Ferizovic’s condition is found at T 41, lines 40-52 when he referred to Mr Ferizovic’s fitness, “during the time he hurt his back but after the operations.” Mr Akama claimed that he never saw Mr Ferizovic lift anything unduly heavy at work without assistance, but concedes that he could not deny that he could have done so. He did not know whether Mr Ferizovic worked weekends. He stated that he knew nothing of a work related injury and did not know that Mr Ferizovic had lodged a workers compensation claim in relation to a work-related injury in 2004.
Whether the alleged conversation took place as claimed by Mr Akama, or did not take place as claimed by Mr Ferizovic, the fact is that Mr Akama has given no evidence one way or the other, in terms of an alleged work related injury in August 2004. On his own admission, he knew nothing about it. Consequently, Mr Akama does not refute Mr Ferizovic’s evidence in that regard. The Arbitrator is correct in stating at [19] of his Reasons that Mr Akama’s evidence “does not go to the central question of injury in August 2004. It does go to the question of injury post frank injury in August 2004…”. Freedom submits that this comment by the Arbitrator was an “oversimplification or misconceived”. I disagree. The Arbitrator’s statement is factually correct.
Freedom states at [2.7.1] of its first submissions, “The Respondent maintained that no injury occurred in August 2004 and that the only possible injury suffered to the applicant’s back occurred outside of work in or about late October 2004 which coincided with the first time he saw a doctor about his back condition when he saw Dr Ratnam on 25 October 2004.” While Mr Akama’s evidence must be considered along with the rest of the relevant evidence, the fact remains that Mr Akama was unable to shed any light as to the claimed work-related injury of August 2004. He gave evidence of a conversation said to have taken place some months later, along his own observations of Mr Ferizovic at that point, about a separate incident unrelated to employment, claimed to have occurred at a later time.
The Arbitrator’s conclusion in that regard was correctly drawn from that evidence. Further reference is made to Mr Akama’s evidence, below.
The next point relates to whether Mr Ferizovic reported his injury to Mr Miro Pejar, the Warehouse Manager at Mr Ferizovic’s place of employment.
In his statement of 20 September 2006 Mr Pejar states that Mr Ferizovic was technically employed as a store man but was in fact performing quality control duties. These involved conducting visual inspections of pre-assembled products, looking for damage or defects. When not performing these duties, he says that Mr Ferizovic “performed simplistic general housekeeping tasks, such as sweeping.”
Mr Pejar states that Mr Ferizovic “went off work for a sore back in November 2004”, but he does not recall when he first knew that he had a sore back. He says, “I cannot provide any date or time period prior to November 2004 whereby I first learnt of the claimant having a sore/injured back.” However, he did state that prior to November 2004 he did notice that Mr Ferizovic was walking in a “bent and stooped manner”. He states, “he was obviously moving with restriction”. Mr Pejar approached Mr Ferizovic at some point and asked him how he sustained the injury. He does not recall Mr Ferizovic’s response. His impression is that Mr. Ferizovic may not have known himself how he sustained the injury. However, he says that he did volunteer information to Mr Ferizovic about how he could go about making a workers compensation claim. He recalls telling Mr Ferizovic that he should consult a doctor. He is not sure whether he told him to make an entry into the injury report book. He goes on to say at [21] of his statement:
“I deny that the claimant, when talking to me about his back injury, prior to going off work in November 2004, ever stated to me that he had injured his back lifting a coffee table or any other item(s). Never did he specify that his injury was as the result of a single workplace event. I can confirm that had the claimant reported such an event I would have remembered same.”
Mr Pejar denies that he “instructed” Mr Ferizovic to attend the Blacktown Medical Centre. He denies that he discussed with Mr Ferizovic about how he sustained the injury, following his return to work, but “I simply spoke to the claimant about his RTW plan, the progress of his injuries and the nature of work that he could and could not perform.”
Mr Ferizovic does not recall walking in a stooped fashion but remembers the pain that he was suffering in his leg. However, Mr Ferizovic did state that at some point he began to develop a limp. Mr Ferizovic says that this was “about a week or two after 13 August 2004.” He states that he spoke to Mr Pejar whom he had observed to be walking with a limp, also. He asked Mr Pejar about medication and he says that Mr Pejar wrote it down on a piece of paper and handed it to him. He says that when he spoke to Mr Pejar he felt pain in his leg and he did not know at that point that “this pain had come from my back. The pain was almost completely in my leg and buttock at that time.” This is consistent with Mr Pejar’s evidence.
Notwithstanding that Mr Pejar has stated emphatically that Mr Ferizovic did not specify that he had an injury by reason of a workplace incident, including lifting of a coffee table or any other item, he gives no reason why he volunteered advice to Mr Ferizovic as to the way he could make a workers compensation claim, that Mr Ferizovic should consult a doctor, and why it would have been relevant for Mr Ferizovic to “make an entry into the injury report book”. Moreover, his emphatic statement about what Mr Ferizovic did not specify, is made in the context of his contradictory statement that he could not recall Mr Ferizovic’s response, when he asked him how he came to be injured. Although Freedom submits that the conversation between Mr Pejar and Ferizovic occurred “in about late October or early November 2004”, Mr Pejar does not recall the date and time of that conversation, nor does he recall when he first came to know that Mr Ferizovic had a “sore back”. However, the evidence is that by the time Mr. Ferizovic went off work at around that time, Mr Pejar well knew that he had a problem with his back, as manifested by the soreness in his leg, and his conversation with Mr Ferizovic.
There are a number of inconsistencies as to detail between the accounts of Mr Pejar and Mr Ferizovic, however the quality of communication between the two men was apparently not an issue as they spoke the same language. Mr Pejar’s evidence is that the conversation did include amongst other things, a discussion about a workers compensation claim and the process for making such a claim. Mr Pejar does not advance any reason for specifically raising this matter with Mr Ferizovic, when according to him, Mr Ferizovic made no suggestion at all that he had sustained a work related injury. It begs the question. However, Mr Ferizovic’s own evidence as to his conversation with Mr Pejar is reasonably vague, perhaps again because of language difficulties, and it is not at all clear what was said, on his account of it. Mr Peraj’s evidence of it is clearer and more detailed, albeit somewhat inconsistent and incomplete.
I agree with Freedom that the Arbitrator’s comments at [20] of his Reasons about the details of the alleged non-work related injury are not particularly relevant, given that Mr Pejar does not recall what was said in conversation between himself and Mr Forizovic. However, as already observed, Mr Pejar’s evidence itself is not consistent, and was properly treated as such by the Arbitrator.
The next point Freedom raises is that the Arbitrator was incorrect when stating that Mr Akama was unable to explain why it took him two years to record the conversation between himself and Mr Ferizovic, for the benefit of his employer. The Arbitrator said at [22] of his Reasons, “I find that unusual behaviour for a supervisor.”
Mr Akama’s explanation is that he was not informed in 2004 that Mr Ferizovic had made a workers compensation claim and that after his return to work in 2005, he had no dealings of any substance with him. He also states that he did not report the fact or details of the conversation that he allegedly had with Mr Ferizovic about a non-work related incident, and that Mr Pejar did not discuss Mr Ferizovic’s claim or medical condition with him. However, Mr Akama does not explain why, upon discovering in 2005 that Mr Ferizovic had made a workers compensation claim, he did not come forward to inform his employer of his alleged conversation with Mr Ferizovic. He does say that he thought that Mr Pejar did not wish to discuss the matter with him.
Freedom does not submit that this is fatal to the Arbitrator’s decision, but opines that it “shows a tendency to ignore relevant evidence and to make findings and conclusions without considering the employer’s evidence and against the evidence or against the weight of the evidence.” I disagree, on the basis that Mr Akama knew at least in 2005 that Mr Ferizovic had made a workers compensation claim, but made no attempt to report the matter until late in 2006. It is obvious from his evidence that the potential significance of the matter is clear to him, and I agree with the Arbitrator that his inordinate delay in reporting “the subject conversation for the benefit of his employer is unusual behaviour for a supervisor”.
The next point is found in Freedom’s submission at [2.7.22] of its first submissions, “The appellant submits that there was no objective basis for the arbitrator to find that the applicant impressed him as a truthful witness if he examined the content of the applicant’s evidence and the manner in which it was given in an objective and thorough fashion.” Freedom further opines that Mr Ferizovic “was being deliberately confounding, disingenuous and evasive when answering those questions during cross-examination.”
Freedom’s sets out a number of examples at [2.7.22 - 2.7.24] of its first submissions on appeal, to illustrate its argument.
Freedom cites Fox v Percy [2003] 214 CLR 118, per McHugh J at 90:
“It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellate court from reversing a trial judge’s finding when it is based, expressly or inferentially, on demeanour. Those cases recognise – in accordance with a long line of authority – that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of a trial judge in acting on his or her impressions of the witness or witnesses. Recently in State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588, for example, this Court held that undisputed and documentary evidence was so convincing that no reliance on the demeanour of witnesses could rebut it.”
Freedom suggests that the Arbitrator did not state or infer that he based his decision on the demeanour of the witnesses. The Arbitrator observed that Mr Akama “presented as a straightforward witness” (see [19] of his Reasons) and that Mr Ferizovic “impressed me as a truthful witness” (see [24] of his Reasons). Otherwise, the Arbitrator discussed, commented upon and made findings on their evidence. Nothing that Freedom has raised points “decisively and not merely persuasively to error on the part of the [Arbitrator] in acting on his … impressions of the witness or witnesses.” However, he did not rely totally on his impressions of Mr Ferizovic in arriving at his decision.
Freedom puts forward a number of instances of “important evidence and submissions, which were not considered or discussed or analysed by the arbitrator in his reason for decision”.
First, is the discrepancy in terms of what it was that Mr Ferizovic said he lifted in August 2004, when he sustained the alleged injury. This has been dealt with above, and requires no further comment.
Second, are the alleged inconsistencies about the timing of the reporting of the alleged injury in the incident report form “(reported to Dr Ratnam on 26 October 2004)” and the claim form “(reported on 10 August 2004)” and to Dr Pukanic “(reported two weeks after it occurred, to his manager who ignored his complaints)”. Freedom further submits that Mr Ferizovic conceded under cross-examination that Mr Pejar did not ignore his complaint of symptoms. The Arbitrator makes it clear in [20] of his Reasons that he accepts that Mr Pejar and Mr Ferizovic discussed the symptoms. However, Mr Pejar cannot recall when that conversation occurred.
Dr Ratnam’s clinical notes of 26 October 2004 and his letter of 21 September 2006 in clarification to Freedom’s legal representatives are perplexing in the circumstances of this case, to say the least. The clinical notes reveal that Mr Ferizovic had back pain radiating to the leg. Dr Ratnam also records “work as a furniture removalist”. Mr Ferizovic’s legal representatives correctly observe at [32] of the first submissions on appeal, that his work duties were obviously discussed, to some extent at least. At this point, Mr Ferizovic knew that the source of his leg pain was injury to his back, and upon further medical tests and investigations that has proven to be the case, with surgery required.
The other notation in the clinical notes records “no h/o trauma”. By way of explanation, Dr Ratnam states in his letter of 21 September 2006, “In relation to the consultation on 25/10/04, from the history I found out there was no acute injury on a specific day, which has caused the back pain. This is my practice to write as ”No history of trauma” when there is no specific history.”
While it is clear enough that Mr Ferizovic discussed his employment duties with Dr Ratnam, it seems that he did not provide sufficient information to suggest that a particular incident gave rise to a specific work-related injury. However, the evidence of Mr Ferizovic, Mr Akama and Mr Pejar and an abundance of other medical evidence all substantiate that Mr Ferizovic had suffered an injury to his back (whether work-related or not). How and when the injury was sustained is disputed, not whether it was sustained.
Freedom relies upon Dr Ratnam’s clinical notes and the contents of his letter in its submission to support the proposition that a work-related injury was not sustained. However, Mr Ferizovic’s legal representatives correctly point out that there is no record in Dr Ratnam’s clinical notes of an alleged non-work related injury either. Whether the lack of history is the result of language difficulties, Mr Ferizovic’s reluctance to provide the details, or an error in recording the notes made by Dr Ratnam is not clear. Nonetheless, “no specific injury” at all is at odds with the evidence of both parties, including the medical evidence in this matter, notwithstanding the points of difference in that evidence.
I find further, that the Arbitrator did not err in providing an adequate explanation in the difficult circumstances of this matter, as to his acceptance and rejection of competing evidence; in his consideration of the evidence; in providing adequate reasons for his decision, and in determining the matter properly and according to law.
I find further, that the Arbitrator did not err in his consideration of the way in which Mr Ferizovic’s statement was obtained and in giving consideration to his statement and his evidence, and in his consideration of the statement of Mrs Ferizovic.
I find further, that the Arbitrator did not err in his consideration of the evidence and the weight of the evidence, in finding in favour of Mr Ferizovic on the issue of injury.
All grounds of appeal fail and accordingly, the appeal is not successful.
DECISION
The decision of the Arbitrator, dated 8 November 2007, is confirmed
COSTS
The Appellant Employer is ordered to pay the Respondent Worker’s costs of this appeal.
Gary Byron
Deputy President
29 February 2008
I MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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