Greif Australia Pty Ltd v Ahmed

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*Reported Decision: Greif Australia Pty Ltd v Ahmed* (2007) 6 DDCR 461 STATUS: Reconsideration: This decision is a reconsideration of the decision in Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 195**
CITATION:		Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 229
APPELLANT:		Greif Australia Pty Limited
RESPONDENT:		Rashid Ahmed
APPLICANT FOR RECONSIDERATION:		Rashid Ahmed
INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		WCC2-07
DATE OF ARBITRATOR’S DECISION:		26 April 2007
DATE OF APPEAL DECISION:		14 September 2007
DATE OF RECONSIDERATION:		22 November 2007
SUBJECT MATTER OF DECISION:		Reconsideration under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; fresh evidence; onus of proof; medical evidence; matters not raised at the arbitration.
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore
Respondent:	Buttar Caldwell & Co
ORDERS MADE ON APPEAL:		Having reconsidered the decision of Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 195, the findings and orders made in that matter are confirmed and the Respondent Worker’s reconsideration application is dismissed.
No order as to costs of the reconsideration application.

BACKGROUND TO THE APPLICATION

This matter was the subject of an appeal and determination by me on 14 September 2007 (Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 195 (‘Greif No 1/the appeal’)). The background to the matter is set out in Greif No 1 at [3] to [9], which I set out below:

“3.Mr Ahmed is a 50-year-old man who was employed by Greif Australia Pty Ltd from 1989 as a machine operator/leading hand. His duties included driving a forklift, filling hoppers with 25-kilogram bags, cleaning out rubbish, lifting 30-kilogram moulds, quality control and lifting loads of more than 20-kilograms throughout the day.

4.Whilst working the night shift on 17 March 2005 Mr Ahmed felt a click and severe pain in the right side of his neck when he lifted a 60-litre drum filled with rubbish onto a pallet positioned four feet above the ground. The following morning he consulted his general practitioner, Dr Khoo, who prescribed analgesics and gave him a medical certificate for time off work due to “soft tissue injury of right shoulder” (medical certificate, 18 March 2005). Dr Khoo also referred Mr Ahmed to Dr Elliott, orthopaedic surgeon, who saw him on 24 March 2005, arranged an MRI scan of the cervical spine and referred him to Professor Dan, neurosurgeon. The MRI scan dated 12 April 2005 revealed a large right-sided posterolateral protrusion of the C5/6 disc with a small left posterolateral protrusion of the C6/7 disc.
5.On or about 12 May 2005 Mr Ahmed took painkillers in the afternoon for his neck and shoulder and went to sleep because he was feeling lethargic. He slept through the evening and, as a result, did not take any medication that night. When he woke the next morning he felt pain in his back and was unable to get out of bed (Mr Ahmed’s statement 2 April 2007, paragraph eight). He saw Dr Khoo on 13 May 2005 who noted Mr Ahmed’s low back pain. In July 2005 Mr Ahmed was out shopping at Doonside Shopping Centre when he felt pain in his hip. He immediately visited the nearest doctor.

6.On 11 October 2006, Mr Ahmed’s solicitor claimed lump sum compensation in the sum of $62,500.00 in respect of a 34% whole person impairment together with compensation for pain and suffering. The Appellant Employer’s insurer, Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’) arranged for Mr Ahmed to be examined by Dr Isbister, orthopaedic surgeon, on 21 November 2006. Dr Isbister considered that the Respondent Worker had not yet reached maximum medical improvement. On the basis of the report by Dr Isbister, by letter dated 6 December 2006 Allianz declined to make any offer of settlement.

7.On 9 January 2007 Mr Ahmed filed an Application to Resolve a Dispute (‘the Application’) in the Commission claiming lump sum compensation as a result of injury to his neck, back, right shoulder, left shoulder, right arm, right hand and depression as a result of the lifting incident on 17 March 2005. It was also argued at the arbitration that Mr Ahmed sustained injury as a result of the nature and conditions of his employment. By its Reply filed 24 January 2007 Greif disputed liability for all injuries claimed on the ground that, among other reasons, employment was not a substantial contributing factor to the injury or injuries. [The Reply also disputed ‘injury’ to Mr Ahmed’s back.]

8.The matter was listed for conciliation and arbitration before a Commission arbitrator on 18 April 2007. The parties ultimately agreed that Mr Ahmed injured his cervical spine and right upper extremity on 17 March 2005. The Arbitrator had to determine whether Mr Ahmed also injured his lumbar spine on 17 March 2005 (T4.48) or as a result of the nature and conditions of his employment (T4.57).

9.In an ex tempore decision the Arbitrator found in favour of Mr Ahmed on the issue of injury to the back and remitted the matter to the Registrar for referral to an Approved Medical Specialist for whole person impairment assessment as a result of injury to the cervical spine, right upper extremity and lumbar spine.”

The Appellant Employer appealed against the Arbitrator’s decision. For reasons set out in Greif No 1, I upheld the appeal and revoked the Arbitrator’s determination so far as it related to Mr Ahmed’s alleged lumbar spine injury. Essentially, I determined that the Arbitrator had erred in finding that Mr Ahmed’s back condition had resulted from the injury on 17 March 2005 in circumstances where Mr Ahmed did not complain to a doctor of any back pain until 13 May 2005.

By letter dated 28 September 2007 and filed with the Commission on 2 October 2007 the Respondent Worker seeks a reconsideration of my decision under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The application is supported by an additional medical report from Dr Adler dated 22 September 2007 and submissions filed on 2 and 17 October 2007 and 1 November 1007.

The Appellant Employer opposes the application and relies on submissions filed on 31 October 2007.

PRELIMINARY MATTERS

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.”

The parties have made no submissions on whether the reconsideration should be dealt with on the papers or in an oral hearing. Having regard to the extensive written submissions before me, 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.

ISSUES IN DISPUTE

The issues in dispute in the application for reconsideration are whether:

(a)the report of Dr Adler of 22 September 2007 is ‘fresh evidence’ to justify a reconsideration (‘fresh evidence’);

(b)the Commission had jurisdiction to deal with the ‘causation issue’ in circumstances where no notice had been issued under section 74 of the 1998 Act (‘jurisdiction’);

(c)a Presidential member of the Commission has power to “sift through the medical evidence and provide his preferred opinion when there is a medical dispute” (see Respondent Worker’s submissions 2 October 2007, paragraph two) (‘power on review’);

(d)Mr Ahmed was denied the opportunity to have his medical dispute referred to and determined by an Approved Medical Specialist (‘AMS’) (‘procedural unfairness’);

(e)the assessment of Mr Ahmed’s back and whether the injury to the back is related to his employment and/or is degenerative should be referred to an AMS (‘referral to AMS’);

(f)a Presidential member is “invested with the power to substitute a decision of a medical practitioner and prefer one over the other” (Respondent Worker’s submissions 2 October 2007, paragraph five) (‘power on review’);

(g)I erred in not referring the assessment of Mr Ahmed’s back to an AMS (‘power on review’);

(h)the frank injury on 17 March 2005 was the “catalyst” for Mr Ahmed’s lumbar spine condition (‘causation’);

(i)the Appellant Employer carried the onus of proof that without the work injury on 17 March 2005 Mr Ahmed’s lumbar spine condition would have occurred regardless (‘onus of proof’);

(j)I erred by taking into account irrelevant considerations (‘causation’);

(k)Mr Ahmed’s evidence had to be accepted because he was not cross-examined and his evidence was not disputed (‘failure to cross-examine or dispute evidence’);

(l)I erred in not inferring, on the balance of probabilities, that Mr Ahmed’s back condition occurred or was aggravated by the injury on 17 March 2005 (‘causation’);

(m)failure to initially notify is a bar to receiving compensation (‘notice of injury’);

(n)I was in error in rejecting Dr Isbister’s opinion (‘medical evidence’);

(o)a medical opinion should be disregarded solely on the basis that the history in it is inaccurate (‘medical evidence’);

(p)the Appellant Employer’s medical reports were based on medical evidence or only on “scientific opinions” (Respondent Worker’s submissions 2 October 2007, paragraph 14) (‘medical evidence’);

(q)I erred in relying on the opinion of Dr Mastroianni (‘medical evidence’);

(r)I erred in not considering certain evidence (‘failure to consider evidence’);

(s)I erred by rejecting Mr Ahmed’s evidence and explanation as to “the delay of the symptomology” [sic] (Respondent Worker’s submissions 2 October 2007, paragraph 18) (‘rejection of Mr Ahmed’s evidence’);

(t)the Appellant Employer’s medical case was “speculation” (Respondent Worker’s submissions 2 October 2007, paragraph 20) (‘medical evidence’), and

(u)I erred in failing to make an adverse finding against the Appellant Employer for its failure to deny liability for approximately two years (‘failure to deny liability’).

On 2 October 2007 I issued the following Direction to the parties:

“1. The parties are directed to the decisions of Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141, Nan v Country Road Freight Services Pty Limited [2006] NSWWCCPD 160 and the principles and authorities relating to reconsiderations discussed in those cases.
2. The Respondent Worker is directed to file and serve on or before 4.30pm on Tuesday 16 October 2007 a document setting out the grounds on which the reconsideration is sought and submissions in support of that application.
3. The Appellant Employer is to file and serve on or before 4.30pm Tuesday 30 October 2007 submissions in response.”

DISCUSSION AND FINDINGS

Reconsiderations Generally

The reconsideration power is found in section 350(3) of the 1998 Act. Section 350 states:

“350 Decisions of Commission
(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2) A decision of or proceeding before the Commission is not:
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.

(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”

The reconsideration power has been considered in several cases. Hilliger v Hilliger (1952) 52 SR (NSW) 105 (‘Hilliger’) concerned a power under the Landlord and Tenant (Amendment) Act 1948 – 1951 to vary, discharge or rescind any order previously made in proceedings taken by a lessor for possession. In considering the use of the power Street CJ said at 108:

“I see no reason for limiting the generality of the words used in the section, and whether the question be one of fact or one of law, if the circumstances warrant it, I think that there is power in the Court to entertain an application for variation or rescission so long as the original order is current, and to make such order in the way of variation or rescission as to it may seem proper. It is important, naturally, to keep well in mind the distinction between the existence of the power and the occasion of its exercise, and courts should not lose sight of the general rule that public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the Legislature intended to leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties.” (emphasis added)

In Hardaker v Wright & Bruce Pty Limited (1962) 62 SR (NSW) 244 (‘Hardaker’) the Court of Appeal considered the reconsideration power contained in section 36(2) of the Workers Compensation Act 1926 (‘the 1926 Act’), which was in identical terms to section 350(3) of the 1998 Act. Owen and Walsh JJ referred to the reconsideration power being “expressed in extremely wide terms” (at 248). Their Honours quoted and applied the above passage from Hilliger, adding at 249:

“Thinking, as we do, that these observations are applicable in relation to s. 36(2), we find no ground for holding, as a matter of law, that the Commission was not entitled to reconsider the original award of 22^nd April, 1953. Such reconsideration is not necessarily limited to an examination of changed circumstances, or of fresh evidence concerning the original circumstances. It may, in a proper case, extend to considering whether an error has been made, whether of fact or of law, and to making such new or altered award as the circumstances, when thus reconsidered, appear to require.”

In Schipp v Herfords Pty Limited [1975] 1 NSWLR 412 (‘Schipp’) Samuels JA, discussing the power conferred by section 36(2) of the 1926 Act, said at 424E:

“It is clear that the authority conferred by this provision is a discretionary one, and permits the Commission to review, and correct, errors of both fact and law: Hardaker v Wright & Bruce Pty Ltd.”

His Honour added (at 426C) that section 37 of the 1926 Act (which provided a right of appeal on errors of law to the Supreme Court (see now section of the 353 of the 1998 Act)) clearly intended that the primary mode of challenge to errors of law was to be by appeal to the Supreme Court.

The case of Maksoudian v J Robins & Sons Pty Limited (1993) 9 NSWCCR 642 (‘Maksoudian’) is also instructive. In that matter Bishop J considered a reconsideration application based upon fresh evidence. His Honour said at 645:

“The legal basis for a reconsideration for an award of the Court as laid down in section 36 of the previous legislation and section 17 of the present is well settled. There is no doubt that the discretion of this Court to reconsider is wide and far reaching. The task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. The cases do not comprehensively indicate how the Court is to approach this task, but it does seem that two broad requirements are laid down. The first of these is that the material leading to an application for reconsideration must be what can broadly be described as ‘fresh evidence’, namely material that with reasonable diligence could not have been put before the Court at the time of the original proceedings and the application for reconsideration has to move with appropriate speed and diligence to bring that matter to the Court's attention. The second point is that the fresh evidence must be of such a nature that if it had been before the Court when the original proceedings were heard it would more likely than not have affected the outcome of the proceedings: Hardaker v. Wright & Bruce Pty Ltd (1962) 62 SR (NSW) 244 and Hilliger v. Hilliger (1952) 52 SR (NSW) 105.” (emphasis added)

Curtis J in Blackwell v North Broken Hill Ltd (1998) 17 NSWCCR 237 (‘Blackwell’) said at [8]:

“The authorities upon s 36 generally restricted reconsideration to reopening awards upon the discovery of fresh evidence, it being necessary to show that with reasonable care and diligence, that evidence could not have been brought forward in the original proceedings.” (at [8])

In Galea v Ralph Symonds Pty Limited (1989) 5 NSWCCR 192 (‘Galea’) O’Meally J said at 201:

“There is a distinction between fresh evidence and more evidence. The evidence of Dr Ellis is that degenerative changes have progressed with the effluxion of time. His initial opinion was that they were aggravated by her work; later that they were caused by it. Degenerative changes inevitably and inexorably progress and Dr Ellis’ opinion cannot accurately be described as fresh evidence; it is more evidence.

Even if it could properly be said that fresh evidence were now available the applicant must satisfy me that that evidence was not discoverable by the exercise of reasonable diligence at the time of the hearing before Williams J and that if believed would be at least a determining factor in the outcome of the case.”

Whilst the authorities of Galea and Blackwell must be read in the light of section 354(3) of the 1998 Act which provides that the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, I believe they still provide the appropriate guidance for determining whether fresh evidence is admissible in a reconsideration application under section 350(3) of the 1998 Act.

However, ‘fresh evidence’ is not the only basis on which a reconsideration application may be made. It may also, in the proper case, extend to considering whether an error of fact or law has been made (Hardaker and Schipp). In Bluescope Logistics Co Pty Limited (formerly BHP Transport & Logistics Pty Limited) v Finlow [2006] NSWWCCPD 338R the successful reconsideration application was based on a change in the law within days of the original decision being made.

In the present matter the application for reconsideration is based on ‘fresh evidence’ (the report of Dr Adler dated 22 September 2007) and on several alleged errors of fact and law. I will attempt to deal with each of the issues identified at paragraph [7] above.

Fresh Evidence

It is submitted that Mr Ahmed should be allowed to rely on fresh evidence in the form of an additional medical report from Dr Adler dated 22 September 2007 (‘the 2007 report’), on the following grounds:
(a)no prejudice will be caused to the Appellant Employer but the exclusion of the report will cause substantial prejudice to him;
(b)the Commission is set up as the “friendly jurisdiction assisting the worker rather than causing prejudice to the applicant”;

(c)the principles of natural justice will be violated if the fresh evidence is not allowed since the report raises issues “about the basis upon which the Deputy President made his decision”;

(d)the fresh evidence is crucial to the request for reconsideration as it addresses the reasons given in Greif No 1 about the problems with Dr Adler’s initial report;

(e)for the “entire gamut of the matter to be decided in this second attempt and in [the] interest of justice, the evidence should be allowed”;

(f)it will be unjust, unfair and unreasonable to refuse the evidence sought to be relied upon;

(g)the evidence was not available at the arbitration or the appeal but in view of the reasons in Greif No 1 it became necessary, in the interests of justice, to obtain a response from Dr Adler, and

(h)reliance is placed on the decision of Nan v Country Road Freight Services Pty Limited [2006] NSWWCCPD 160.

The Appellant Employer submits that the report from Dr Adler should not be admitted because:

(a)the Respondent Worker has not complied with Part 10 Rule 10.3 of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’) in respect of service of documents and it would not be in the interests of justice to allow the report into evidence as the Appellant Employer is not able to obtain a medical opinion in response to the issues now raised by Dr Adler;

(b)the history in Dr Adler’s report of 22 September 2007 is contrary to all other evidence in relation to the onset of Mr Ahmed’s back symptoms;

(c)with reasonable diligence the Respondent Worker could have obtained Dr Adler’s supplementary report prior to Greif No 1;

(d)the report would not be likely to lead to a different result as the weight of evidence does not support the history taken by Dr Adler or his opinion, and

(e)the intent of section 350 of the 1998 Act is not to allow a party to obtain evidence after a matter is decided with the intention of contradicting the reasons given by a Deputy President.

To understand the application to rely on fresh evidence it is necessary to consider the content of Dr Adler’s earlier report, dated 22 September 2006 (‘the 2006 report’). That report set out Dr Adler’s history at page two:

“ONSET OF INJURY
On 17 March 2005, Mr Ahmed was lifting bins full of rubbish, these being 60 litre drums. There was no one to assist him and he therefore lifted these on his own. He first lifted a bin that was half full, approximately 15kg load, and did this three times on his own, lifting it onto a pallet approximately four feet of [sic] the ground. A forklift held the pallet off the ground. He pulled the bin up to the pallet, and as he did so, experienced the onset of right sided neck pain and a clicking sensation. He was working on the nightshift, and the following morning consulted his general practitioner, Dr Khoo. He was then referred to Dr Elliott, orthopaedic surgeon a week later, who arranged a cervical MRI.
SUBSEQUENT PROGRESS
Dr Elliott referred Mr Ahmed to Dr Dan, neurosurgeon, in May 2005, who suggested that surgery might be appropriate but Mr Ahmed was cautious about proceeding. Mr Ahmed was experiencing neck pain that radiated into the right shoulder, with paraesthesias [sic] in the right hand involving the middle ring and little finger. He attended physiotherapy intermittently.
He also developed low back pain approximately five weeks after the lifting accident when walking in a shopping centre. He suddenly could not feel his right leg. He did consult Dr Pham, a general practitioner working in a medical suite in the shopping centre. X-rays of the back were arranged. Mr Ahmed states that he did inform his own general practitioner, soon after the lifting accident that he had some back pain, but this worsened at the time when walking in the shopping centre. He was then referred to Dr Kanangra, rheumatologist at Concord Hospital, who recommended that he continue with physiotherapy. In August 2005 he experienced severe exacerbation of back pain, numbness in the right leg, with right leg pain. He attended Blacktown Hospital Casualty.” (emphasis added)

Under ‘Diagnosis’ in the 2006 report the doctor stated “Additionally, Mr Ahmed developed low back pain, following the lifting accident, that deteriorated suddenly with right sciatica developing five weeks later.” Under ‘Causation’ Dr Adler concluded at page eight:
“He was exposed to repetitive heavy lifting, often handling 25kg bags when filling the hopper.
The cervical and lower lumbar disc injuries, as well as the right shoulder traumatic acromioclavicular subluxation are a result of the repeated exposure to this heavy lifting activity, which was conducted without assistance.” (emphasis added)

It can be seen that Dr Adler took no history of Mr Ahmed injuring his low back at work on 17 March 2005. His history was that Mr Ahmed informed his general practitioner “soon after the lifting accident that he had some back pain” and that he developed low back pain “approximately five weeks after the lifting accident”. Precisely when Dr Adler understood that Mr Ahmed informed his general practitioner he had some back pain is not known, but Dr Khoo’s notes make no reference to low back pain until 13 May 2005.

In the 2007 report the doctor refers to having been sent almost 100 pages of reports by Mr Ahmed’s solicitor including a copy of my decision in Greif No 1. It is not known what question or questions Dr Adler was asked or what, if anything, he was asked to assume, but his report states:

“1.The delayed onset of back pain: The history I obtained from Mr Rashid [sic] was that he did inform his own general practitioner, soon after the lifting accident that he had some back pain, but it was mild, overshadowed by the more severe cervical symptoms. The back pain though worsened about five weeks later. So I have no history of delay, but one of continuity from the time of the accident and later deterioration.
The history obtained from Dr Isbister is similar, referring to back pain at the time of the accident of 17.3.05. He does not refer to back pain starting after a delay. The history taken by Dr Mastroianni is the same report 26.2.07. “some four or five weeks after the incident in about mid May … he had back pain”. I note that much is made of errors in my dates in the WCC Arbitrator report on pg 14, point 45. However the dates, or place hardly matter. The fundamentals are that he developed low back pain at the time of the lifting accident, there was a four to five week delay, and this deteriorated with late onset sciatica. This I would strongly suggest is the characteristic path of an evolving disc protrusion. The progression of central back pain to sciatica over some time is ‘textbook’ progression of a disc protrusion. There is nothing unusual about this. There is no inconsistency with the clinical and radiological information available.
2.I did not have available an exact chronology and had to rely on Mr Rashid’s [sic] recollections. So some chronological error was introduced in my report. I cannot see that that would alter the fundamentals.
I trust this is of assistance in this matter.” (emphasis added)

Dr Adler’s 2007 report is not fresh evidence but merely an attempt to reconstruct his history. It is ‘more evidence’. In any event, had the report been available at the appeal it would not have made any difference to the result. Dr Adler seems to now assume Mr Ahmed “developed low back pain at the time of the lifting accident” on 17 March 2005 and, therefore, there was no delay in the onset of back pain. That was not the history recorded by Dr Adler in his 2006 report. In any event, that history (that back pain was experienced at the time of the lifting accident on 17 March 2005) is patently incorrect.

The first certificate from Mr Ahmed’s general practitioner, Dr Khoo, is dated 18 March 2005. It refers to Mr Ahmed suffering a “soft tissue injury to his right shoulder” while lifting a 60-litre drum full of rubbish. Dr Khoo’s clinical notes on 18 March 2005 refer to “lifting at work – heavy lifting of 60 litre drum, strained (R) shoulder”. The first mention by Dr Khoo of back pain is in the certificate of 13 May 2005 but there is no report by the doctor attempting to link that pain with the injury on 17 March 2005. The doctor makes no mention of back pain in any of the eight WorkCover medical certificates he issued to Mr Ahmed between 18 March 2005 and 13 May 2005.

In his statement of 2 April 2007 Mr Ahmed said that on 17 March 2005 he was lifting a 60-litre drum filled with rubbish. After he lifted the third drum he felt something click in his neck and felt severe pain on the right side of his neck (Mr Ahmed’s statement 2 April 2007, paragraph five). He made no mention of any back injury or back pain. He then referred to seeing Dr Khoo who referred him to Dr Elliott because of his neck and shoulder symptoms. An MRI scan was performed on his cervical spine on 12 April 2005. Mr Ahmed’s statement continues at paragraph eight:

“8.On or about 12 May 2005 I took my pain killers in the afternoon and went to sleep because I was feeling lethargic. I slept right through and as a result I did not take my evening dose of pain killers. The next morning I was in so much pain especially in my back that I could not get out of bed. I took some pain killers and rested.”

Mr Ahmed then saw Dr Khoo on 13 May 2005 complaining of back pain. His statement continues that on or about 1 July 2005 he was at Doonside Shopping Centre when he felt numbness in his hip area and his wife took him to the nearest medical centre. This may be the episode that Dr Adler records as having occurred “approximately five weeks after the lifting accident when walking in a shopping centre” (see Dr Adler’s 2006 report). The doctor was wrong to suggest that that incident happened five weeks after the lifting incident. On Mr Ahmed’s evidence the shopping centre incident happened several weeks after the development of back pain at home on 12 May 2005.

Mr Ahmed’s case before the Arbitrator was conducted on the assumption (correct, in my view) that he did not report his back pain to a doctor until May 2005, about two months after the lifting incident (T5.32-35). It is not now open to suggest otherwise in ‘fresh evidence’ which, if accepted, would contradict Mr Ahmed’s own evidence as well as the basis on which his case was conducted at arbitration.

Considering the above evidence and having particular regard to the test for ‘fresh evidence’ stated by Judge Bishop in Maksoudian, I do not believe that the 2007 report from Dr Adler can be characterised as fresh evidence. A distinction must be drawn between ‘fresh evidence’ and ‘more evidence’. Dr Adler’s 2007 report is more evidence, not fresh evidence. It attempts to raise a case inconsistent with that presented by Mr Ahmed at the arbitration and that is contrary to established authority that a party is bound by the conduct of his or her case at the initial hearing (see University of Wollongong v Metwally & Ors (No 2) [1985] HCA 28; [1985] 59 ALJR 481 at 483 (‘Metwally’), Multicon Engineering Pty Ltd v Federal Airports Corporation (2000) 47 NSWLR 631 at 645 and 646 (‘Multicon’) and Coulton v Holcombe (1986) 162 CLR 1 at 8 (‘Coulton’)).

If I am wrong on this issue and the 2007 report can be regarded as ‘fresh evidence’ that should be admitted into evidence on the reconsideration application, it is appropriate that I consider the content of the report in the context of the reconsideration application and that is what I have done below under ‘medical evidence’.

Jurisdiction

It is submitted that the Commission had no jurisdiction to deal with the issue of causation (of Mr Ahmed’s back condition) because the Appellant Employer never issued a notice under section 74 of the 1998 Act denying liability for Mr Ahmed’s back injury. As a consequence, the Commission should not have listed the matter for teleconference and the matter should have been automatically referred to an AMS for assessment under section 293 of the 1998 Act. An adverse finding should not have been made against the Respondent Worker, as the Appellant Employer had not denied liability in accordance with the legislative requirements. There should, it is argued, be a presumption in favour of the Respondent Worker and his case did not need to specifically deal with the evidentiary issues that were identified by me in Greif No 1.
Section 74 was amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (‘the amending Act’), which also added sections 287A and 289A. Section 289A provides:

“289A Further restrictions as to when a dispute can be referred to Commission

(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if:
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.

(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”

Subject to the following transitional provisions, the above amendments took effect on 1 November 2006. The transitional provisions introduced at the same time provide in clause 2 of Schedule 6 Part 18J of the Workers Compensation Act 1987 (‘the 1987 Act’):

“Application of claim review provisions

(1) In this clause:
‘claim review provisions’ means sections 287A and 289A of the 1998 Act, as inserted by the amending Act.
(2) The claim review provisions apply in respect of a claim for compensation made before the commencement of section 287A as follows:
(a) the provisions apply to a claim for which a notice under section 54 of this Act, or section 74 of the 1998 Act, is given after that commencement,
(b) the provisions apply to any other claim referred to the Registrar for determination by the Commission after the end of the period of 6 months after that commencement.” (emphasis added)

The present claim for compensation was made by letter on 11 October 2006 and declined by letter from Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’) dated 6 December 2006. It is not disputed that Allianz did not issue a notice purporting to comply with the amended provisions of section 74. Mr Ahmed’s Application to Resolve a Dispute was registered with the Commission on 3 January 2007. Therefore, as Mr Ahmed’s claim was referred to the Registrar for determination by the Commission before 1 May 2007 (that is, before “the end of the period of 6 months after” the commencement of the amending Act) and as no section 74 notice was served, the new notice provisions do not apply.

If I am wrong in the above interpretation of the transitional provisions there are two further reasons why I reject the Respondent Worker’s submissions on this point. First, this issue was not raised at the arbitration or at the appeal in Greif No 1. The issue of whether Mr Ahmed injured his back at work on 17 March 2005 was raised in the Appellant Employer’s Reply filed on 24 January 2007 and the arbitration was conducted on the basis that that was the issue in the case. Counsel represented Mr Ahmed at the arbitration and took no objection to the issue being heard and determined by the Arbitrator. Therefore, if Mr Ahmed had a right to argue that the absence of a section 74 notice prevented the Commission from hearing the matter (which, in my view, he did not) he waived that right by not objecting at the arbitration. Mr Ahmed is bound by the conduct of his case at the arbitration (Metwally, Multicon and Coulton).

Second, section 289A(4) of the 1998 Act provides that a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion “that it is in the interests of justice to do so”. No application was made under section 289A(4) because no objection was taken to the issue of whether Mr Ahmed injured his back being heard and determined by the Arbitrator. If such an application had been made it would most likely have succeeded because the issue of causation of Mr Ahmed’s back pain was a very real dispute in the case and it was “in the interests of justice” that it be determined.

The Commission was and is properly seized of jurisdiction to determine the matter. A dispute arises in the circumstances set out in section 289 of the 1998 Act. Those circumstances include the situation where there has been a failure to make a reasonable offer of settlement (section 289(3)) or a failure to determine the claim as and when required by the 1998 Act (section 289(3)(c)). That failure may arise for any one of several reasons. In the present matter no offer of settlement was made and the claim was not determined because the insurer concluded that Mr Ahmed’s injuries had not reached maximum medical impairment. Mr Ahmed disputed that opinion and filed an Application with the Commission in which he claimed lump sum compensation in respect of his “neck, back, right shoulder, left shoulder, right hand, right arm”. The Appellant Employer filed a Reply disputing liability. It was therefore appropriate for the matter to be referred to and determined by the Commission.

Power on Review

The Respondent Worker submits that:

(a)a Deputy President does not have the power to “sift through the medical evidence and provide his preferred opinion when there is a medical dispute” (Respondent Worker’s submissions 2 October 2007, paragraph two). As a result, the medical dispute can only be referred to either an AMS or a Medical Appeal Panel. It is said that this is a jurisdictional error and must be corrected;

(b)as an alternate argument, it is said that Mr Ahmed’s claim in respect of his neck and right shoulder must be referred for assessment to an AMS and there is no reason why such assessment cannot include the assessment of the back and whether the injury to the back was related to Mr Ahmed’s employment and/or degenerative changes, and

(c)further, a Deputy President “is not invested with the power to substitute a decision of a medical practitioner and prefer one over the other” (Respondent Worker’s submissions 2 October 2007, paragraph five). The entire procedure “has been overhauled with the sole objective of such matters to be finally determined by AMS doctors”. To some extent the judicial powers of the Commission have been withdrawn in respect of medical disputes and granted to doctors and Arbitrators “together through a referral process to AMS doctors”. I erred in not referring the matter to a medically qualified person and deciding the issue in “absolute terms resulting in a 0% whole person impairment” to Mr Ahmed in respect of his back. Even if the allegation of the Appellant Employer was accepted, “the medically qualified AMS doctors or the appeal panel could have decided the issue of apportionment of the back injury and partially imputing the same to the work related injury”.

I do not accept the above submissions. They fail to recognise that the Commission must determine issues of liability before medical disputes are referred to an AMS for assessment of whole person impairment. Sections 293(3)(a) and 321(4) of the 1998 Act expressly prevent the Registrar from referring any medical dispute to an AMS “where liability is an issue and has not been determined by the Commission”. The same conclusion was reached in Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 at [45]. In the present matter the Appellant Employer disputed liability for Mr Ahmed’s alleged back injury on the ground that there was no such injury. That issue was squarely raised in the Reply and extensively argued (without objection) at the arbitration and in Greif No 1.

My decision in Greif No 1 did not “substitute a decision of a medical practitioner and prefer one over the other”. I determined the primary issue of liability and concluded that Mr Ahmed did not injury his back at work on 17 March 2005 or as a result of the nature and conditions of his employment with Greif. That determination required a consideration of all of the evidence, not just the medical evidence.

A Presidential member’s power on review were recently considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:

“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”

Further, this issue was not argued in Greif No 1 and there is no justification for raising it in the current reconsideration application. If it alleges an error of law, then the appropriate procedure is to appeal to the Court of Appeal.

Procedural Unfairness

It is submitted that the decision results in procedural unfairness and withdrawal of the opportunity for Mr Ahmed to have his medical dispute determined by an AMS. Since Mr Ahmed succeeded before the Arbitrator “the natural corollary to a successful decision in appeal by the appellant employer, without conceding, ought to have [sic] remitted the matter back to the arbitrator for him to have the issue of the back to be determined by [an] AMS to preserve and guarantee the right of appeal against an adverse decision by an AMS to the Medical Appeal Panel” (Respondent Worker’s submissions 2 October 2007, paragraph three). Further, it is argued that it was procedurally unfair for me to decide, “effectively a medical dispute, without it having been resolved by independent medical evidence”. Deprivation of an opportunity to have the matter decided by medically qualified persons, it is argued, amounts to a procedural error and therefore merits review.

This submission fails to acknowledge that the issue before the Arbitrator, and before me on appeal, was a liability issue: did Mr Ahmed injure his back on 17 March 2005 or as a result of the nature and conditions of his employment with Greif? The Appellant Employer challenged the Arbitrator’s finding on that issue and I upheld its challenge. No issue of procedural fairness arises. Once liability is determined against a worker, there is then no medical dispute to be referred to an AMS for assessment.

Causation

The Respondent Worker submits that:

(a)the frank injury on 17 March 2005 was the catalyst for Mr Ahmed’s lumbar spine condition, which is reflected in the radiology. But for the frank injury, Mr Ahmed would have continued his employment with the Appellant Employer (Respondent Worker’s submissions 2 October 2007, paragraph six);

(b)the AMA Guides 5^th edition support the Respondent Worker’s submission that if his condition was degenerative then the clinical signs prior to 17 March 2005 would have “agreed” with the serious complaints in his back;

(c)at no stage before the injury did Mr Ahmed’s clinical symptoms “agree” with his current lumbar spine condition;

(d)I erred by taking into account irrelevant considerations by “failing to consider that bulging discs can occur as a result of a ‘trauma’ or with the increase in a person’s age” (Respondent Worker’s submissions 2 October 2007, paragraph eight);

(e)the Appellant Employer has failed to prove that such a ‘significant’ injury could have deteriorated so suddenly and without cause, “that it was not related to the frank injury sustained at work”;

(f)the Appellant Employer failed to prove that Mr Ahmed suffered from an incident after the work injury, which caused his sudden serious back condition, and

(g)if it can be inferred from the facts and evidence that Mr Ahmed’s back condition occurred or was aggravated by the workplace injury on 17 March 2005, then a decision must be made in his favour.

I do not accept the above submissions. The relevance of the lifting incident at work on 17 March 2005 was a matter to be determined in the light of all the evidence. A finding that the incident on 17 March 2005 was the catalyst for Mr Ahmed’s lumbar spine condition is dependent on a finding that he sustained an injury to his lumbar spine on that day. My finding in Greif No 1 was that he did not. The assertion that but for the frank injury on 17 March 2005 Mr Ahmed would have continued his employment with Greif is correct, but overlooks the fact that the eight medical certificates produced between 18 March 2005 and 2 May 2005 all declared Mr Ahmed to be unfit because of his undisputed neck and shoulder injury. Mr Ahmed went off work because of his neck and shoulder injury, not because of any back injury or pain.

No submission was made on appeal about the relevance of the AMA Guides. Those guides expressly acknowledge that the prevalence of disc bulges and herniations increases with age. That does not advance Mr Ahmed’s case but provides support for the Appellant Employer’s case. Mr Ahmed had back symptoms on various occasions prior to 17 March 2005 (see Dr Khoo’s notes). Whether his earlier symptoms “agreed” with the imaging findings in 2005 was not determinative of the issue before me in Greif No 1.

I do not understand the submission that I erred by taking into account irrelevant considerations by “failing to consider that bulging discs can occur as a result of a ‘trauma’ or with the increase in a person’s age”. The relevance of the radiological evidence is discussed below under ‘medical evidence’.

The submissions at paragraph at [47] (e) and (f) above attempt to reverse the onus of proof and are discussed below under ‘onus of proof’.

There is no basis for the submission that there had to be a decision in favour of Mr Ahmed.

Onus of Proof

The Respondent Worker argues that:

(a)the Appellant Employer’s submission that Mr Ahmed carried the onus to prove the condition was work related was misleading as it too had an onus to prove Mr Ahmed’s back condition was related to ‘another’ condition. Reliance is placed on Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 (‘Watts’) and Brown v Lewis [2006] NSWCA 87 (‘Lewis’);

(b)it can be inferred from the facts and the evidence that Mr Ahmed’s back condition arose as a result of the workplace injury in March 2005;

(c)the Appellant Employer must prove that without the frank injury at work Mr Ahmed’s “lumbar spine condition would have occurred regardless” and it has not proved that “especially as it is not disputed that the Respondent Worker was fit for heavy duties prior to the incident in March 2005” (Respondent Worker’s submissions 2 October 2007, paragraph seven), and

(d)the Appellant Employer failed to prove the ‘sudden’ serious deterioration in Mr Ahmed’s back was related to a degenerative condition;

In Lewis, Mason P stated at [83], “the plaintiff bears the ultimate onus of proof. In some matters there may be a shifting of the evidentiary onus (eg Watts v Rake (1960) 108 CLR 158) but the ultimate persuasive onus remains with the plaintiff.” In the Commission, the ultimate persuasive onus remains with the applicant worker (Mr Ahmed). However, where the worker has made out a prima facie case that his or her condition has resulted from a compensable work injury and that employment was a substantial contributing factor to that injury, the onus of adducing evidence that the condition has resulted from some pre-existing condition rests with the employer (see Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden (1965) CLR 114 164 at 168 (‘Purkess’)). Their Honours added that in the absence of such evidence a plaintiff would be entitled to succeed “if his evidence be accepted” (at 168).

The concurrent operation of Watts and Purkess, with MalecvJ.C. Hutton Pty Ltd (1990) 169 CLR 638, was considered by Spigelman CJ in State of New South Wales v Burton [2006] NSWCA 12 where his Honour quoted, with apparent approval, the following passage by Professor Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [1.9.14]:

“Neither Watts v Rake nor Purkess v Crittenden was referred to in Malec v J C Hutton Pty Ltd. To reconcile these different lines of authority, it is necessary to say that the plaintiff must prove on the balance of probabilities that the defendant’s negligence did contribute materially to the present symptoms (this is the legal onus that rests on the plaintiff). Once that is satisfied, there is an evidential onus on the defendant of proving that the alleged pre-existing or subsequent natural condition did exist and that this condition in its natural progression would have produced similar symptoms. If the defendant is unable to satisfy the evidential burden, the court will reduce the plaintiff’s damages for contingencies to no greater extent than in the ordinary case. If, however, the defendant shows that there was a real chance that the plaintiff would have developed similar symptoms from a natural condition attaching to the plaintiff, the court will make a greater reduction than normal to reflect this increased chance.”

In the present matter, I was not and am not satisfied that Mr Ahmed established a prima facie case that he injured his back either on 17 March 2005 or as a result of the nature and conditions of his employment. My reasons are set out at paragraph [43] to [49] inclusive in Greif No 1 and are explained further at [63] to [75] below. If I was wrong in making that finding, I am comfortably satisfied that the evidence of Dr Mastroianni has discharged any evidentiary burden carried by Greif. My acceptance of Dr Mastroianni’s evidence means that Mr Ahmed must fail with his claim for compensation, so far as his back is concerned.

I reject the Respondent Worker’s submissions on this issue as it seeks to reverse the onus of proof which at all times remained on him.

Failure to Cross-Examine or Dispute Evidence

It is submitted that as the Appellant Employer did not cross-examine Mr Ahmed or dispute his evidence, his evidence must be accepted. Reliance is placed on the decision of Menzies J in Watts at 163. It is argued that Mr Ahmed was fit and able to work in heavy duties until his accident in March 2005 and I failed to take that evidence into consideration when determining liability.

The Appellant Employer’s legal representative did not cross-examine Mr Ahmed because Mr Ahmed’s statement (referred to above at [28]) did not assert that he experienced back pain on 17 March 2005. Mr Ahmed’s counsel conceded at the arbitration that in order to succeed his client had to “convince you [the Arbitrator] of a causal connection between a [sic] March incident, when the first report to a doctor isn’t until May, so we’ve got a time lapse of two months” (T5.33). Cross-examination in the Commission is by leave. In the light of the statement by Mr Ahmed’s counsel it is hardly surprising that no application was made to cross-examine. There is nothing in the decision of Menzies J in Watts that supports the Respondent Worker’s submission on this point. Mr Ahmed’s claim in respect of his back was clearly disputed in the Appellant Employer’s Reply and its evidence. That issue was fully argued before the Arbitrator and on appeal before me.

The fact that Mr Ahmed was performing his normal duties up to 17 March 2005 was not determinative of the claim. He did not stop work because of any back symptoms but because of his neck and shoulder injury. I reject the submission that Mr Ahmed’s evidence had to be accepted.

Notice of Injury

It is submitted that Mr Ahmed’s failure to initially notify the Appellant Employer of his back pain is not a bar to receiving compensation. It has never been suggested that the failure to notify the Appellant Employer immediately of the back pain was, in the circumstances of the present case, a bar to recovering compensation. Whilst there may be many cases where a failure to give notice of injury in accordance with the time limits set in the legislation may create a bar to the recovery of compensation that issue does not arise in the present matter.

Medical Evidence

The Respondent Worker submits:

(a)the Appellant Employer’s medical evidence should have been considered “mere speculation”;

(b)I failed to apply the principles set out in Coffs Harbour Ex-Services Club Ltd v Haughey [2007] NSWWCCPD 100 (‘Haughey’);

(c)it was open to infer from Dr Isbister’s opinion a causal connection between the accident and Mr Ahmed’s back condition;

(d)there is a conflict of opinion between the two reports tendered by the Appellant Employer. I should not have rejected the opinion of Dr Isbister. Neither Dr Isbister nor Dr Mastroianni considered the issue of the late onset of sciatica. Their failure to address that issue was an error of fact and no reliance should be placed on their opinions;

(e)a medical report should not be disregarded solely on the basis that the history may be inaccurate;

(f)I erred when I failed to consider the medical opinion of Dr Adler, who diagnosed late onset sciatica;

(g)the Appellant Employer’s medical reports are not based upon medical evidence but are “only scientific opinions”. Any hypothesis of the cause of Mr Ahmed’s back condition should be considered speculative and should not be relied upon (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (‘Edmonds’));

(h)it can be logically inferred that a frank injury which caused serious trauma to Mr Ahmed’s neck and shoulder would also affect his back;

(i)Dr Mastroianni’s opinion cannot be relied upon as he concludes that Mr Ahmed’s back condition is degenerative though he failed to provide an explanation for that opinion. Reliance is placed on Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705;

(j)reliance is placed on the medical certificates of Dr Khoo and Dr Kheeray which confirm that Mr Ahmed’s back injury is related to the frank injury on 17 March 2005, and

(k)the sole reason Dr Mastroianni rejected Mr Ahmed’s claim for the back was because of the “alleged ‘delay’ in symptomology” [sic]. He failed to consider the fact that Mr Ahmed did his heavy normal duties prior to the injury and since his injury he took strong pain medication for his symptoms. Dr Mastroianni did not determine whether “analgesics could have masked any symptomology [sic] in the back and his opinion should not be relied upon.”

Dr Mastroianni’s opinion was not “mere speculation”. The doctor explained why the development of back pain in May 2005 was not consistent with an injury to the neck that occurred some months earlier. The explanation was; had Mr Ahmed sustained a back injury on 17 March 2005 he would have developed symptoms well before May 2005 (Dr Mastroianni’s report 18 August 2005, page four; quoted in Greif No 1 at [38]). The doctor confirmed that Mr Ahmed had no symptoms in his back when he examined him on 5 May 2005 and concluded that the back pain was “due to degenerative lumbosacral disc disease which became symptomatic in May though he gave no history of any specific incident”. That explanation was plausible and logical. I accepted it in Greif No 1 and no evidence or argument has been advanced in the reconsideration application to indicate that I was wrong to do so.

There are no principles in Haughey’s case that advance Mr Ahmed’s claim. Each case must be assessed on its own facts.

Dr Isbister’s opinion was considered at paragraph [35] in Greif No 1. It was based on a patently false history and the doctor’s conclusion was therefore of limited, if any, probative value. The Arbitrator discounted it because of its incorrect history (T18.48) and so did I.

There is a difference of opinion between Dr Isbister and Dr Mastroianni. That difference is explained by the fact that Dr Isbister had an incorrect history. That does not advance Mr Ahmed’s case.

Dr Mastroianni did refer to Mr Ahmed’s complaints of back pain and “severe radicular symptoms”. However, clinically he found no objective evidence of radiculopathy. At page five of his report of 18 August 2005 he referred to Mr Ahmed having “back pain and non-verifiable radiculopathy”. He then stated, “the condition was not a result of the injury in March 2005”. The doctor’s reference to “the condition” is a clear reference to the alleged radiculopathy. For the reasons set out in Greif No 1, I accept Dr Mastroianni’s conclusion on causation.

In Makita, Heydon JA noted at 744 that an expert’s conclusion must have some rational relationship with the facts proved. In the present matter Dr Adler’s history was incorrect on the question of when Mr Ahmed’s back pain started. That significantly reduced the weight to be attached to it.

I carefully considered Dr Adler’s opinion in Greif No 1. Though I do not believe his 2007 report is ‘fresh evidence’ for the purposes of the reconsideration application, I have also considered his opinion in that report. For the reasons set out at paragraphs [26] to [31] above, Dr Adler’s 2007 report makes no difference to the conclusion I expressed in Greif No 1. His opinion about the delayed onset of sciatica is dependent on his acceptance of a history that Mr Ahmed’s back pain started on or about 17 March 2005. That history is wrong and, as a result, his conclusion is flawed and of little, if any, probative value.

I reject the submission that the Appellant Employer’s medical reports were not based on medical evidence but were “only scientific opinions”. Dr Mastroianni based his opinion on his history, his findings at examination, the radiological reports, and his knowledge and experience as a medical practitioner and consultant occupational physician. Having examined Mr Ahmed on several occasions, including both before and after the development of his back pain, Dr Mastroianni was well placed to express an opinion on the cause of Mr Ahmed’s back condition. I therefore reject the submission that Dr Mastroianni’s opinion was speculative and should not have been accepted.

There is no basis for the submission that it can be logically inferred that a frank injury that caused serious trauma to Mr Ahmed’s neck and shoulder would also affect his back and I do not accept it. It is certainly possible that a lifting incident could cause an injury to the neck and the back. Whether that has happened in any particular case depends on the evidence. In the present matter there is no basis for ‘inferring’ that the trauma to Mr Ahmed’s neck also injured his back. I have no hesitation in concluding that Mr Ahmed did not injure his back on 17 March 2005 or as a result of the nature and conditions of his employment with the Appellant Employer.

I reject the submission that Dr Mastroianni failed to provide an explanation for his opinion that Mr Ahmed’s back condition is degenerative. At page four of his report of 18 August 2005 the doctor stated, after considering the history and radiological reports, that Mr Ahmed’s back pain was due to “degenerative lumbosacral disc disease which became symptomatic in May though he gives no history of any specific incident”. As a medical expert, Dr Mastroianni was entitled to express that opinion. I find it persuasive and I accept it.

Dr Mastroianni considered and commented on the CT report of 1 July 2005, which showed disc bulging at L2/3, L3/4 and L4/5. He noted, consistent with Mr Ahmed’s evidence in his statement of 2 April 2007, that Mr Ahmed gave no history of an injury to his back in March 2005 and that “there were no complaints of any back symptoms then” (Dr Mastroianni 18 August 2005, page two). He also noted Mr Ahmed’s history of starting to feel some back pain in the second week of May 2005 and of waking up in severe pain on 13 May 2005. Under ‘opinion’ the doctor concluded:

“Today he complains of back pain which started in May. There were no incidents or injuries. There was a gradual development of back pain over a week and on one particular day he woke up in more pain. Investigations show lumbosacral disc pathology of a degenerative nature. This could have been aggravated in the way he moved or slept.”

The medical certificates from Dr Khoo and Dr Kheeray were considered in Greif No 1 at paragraphs [44] and [45]. For the reasons stated in that decision, the certificates relied on do not overcome the difficulties Mr Ahmed faces on the causation issue.

The delay in the commencement of Mr Ahmed’s back pain was not the only reason Dr Mastroianni rejected the claim, though that reason was sufficient in itself. He also rejected it because Mr Ahmed did not give a history of injuring his back on 17 March 2005. It was never suggested to Dr Mastroianni that Mr Ahmed injured his back on 17 March 2005 and that the effect of that injury was masked by the medication taken for his neck and shoulder. His failure to deal with the ‘masking’ argument is perfectly understandable: that argument was never fully articulated until the arbitration. His failure to deal with it is of no consequence, especially in circumstances where that argument has no merit.

Failure to Consider Evidence

It is submitted that I failed to consider the following evidence “which may be considered an error of fact as irrelevant considerations were taken into account” (Respondent Worker’s submissions 2 October 2007, paragraph 17):

(a)the claim form dated 2 May 2005;

(b)since May 2005 all Workcover medical certificates listed the back as an injury arising from the workplace incident of 17 March 2005;

(c)the CT scan of the lumbar spine did “not state the bulges and nerve impingement were likely to be a degenerative condition”;

(d)Mr Ahmed’s uncontradicted evidence “relates the complaints in his back to his workplace injury on 17 March 2005”;

(e)Dr Habib and Dr Adler support Mr Ahmed’s claim on causation, and

(f)Dr Isbister did not deny that Mr Ahmed’s back was not injured as a result of the work injury.

It is correct that I did not refer to Mr Ahmed’s claim form dated 2 May 2005, which refers to “neck, back, right shoulder, right arm, right hand”. Neither the Arbitrator nor either of the parties referred to the claim form at the arbitration. Neither party referred to it on appeal. In particular, the Respondent Worker did not challenge the Arbitrator’s statement at T17.13 that Mr Ahmed did not “tell me or anybody else that he noticed pain in his back prior to what happened on 12 May 2005”.

Nevertheless, my failure to refer to the claim form was an omission that requires careful consideration in the reconsideration application. In considering the significance of the claim form I have had regard to all of the evidence, including Mr Ahmed’s statements of 2 April 2007 and his unsigned statement attached to his Application to Resolve a Dispute filed on 2 January 2007. Both statements refer to Mr Ahmed experiencing a click and severe pain in his neck when lifting a drum on 17 March 2005. Dr Khoo recorded a similar history when he saw Mr Ahmed on 18 March 2005 (see paragraph [26] above). It is quite possible that the claim form is a reference to Mr Ahmed starting to experience back pain in early May 2005, as suggested in Dr Mastroianni’s history, which then deteriorated on 12 May 2005 while he was at home in bed. In these circumstances the reference to “back” in the claim form makes no difference to the conclusion I reached in Greif No 1.

In respect of the other matters listed at paragraph [76] above I note:
i.the significance of the medical certificates on and after 13 May 2005 was considered at paragraph [45] of Greif No 1 and I confirm the opinion I then expressed about them;
ii.the evidence that Mr Ahmed has degenerative changes in his back is found in Dr Mastroianni’s reports and is based on his assessment of the radiological evidence;
iii.Mr Ahmed’s evidence as to the cause of his back pain was dealt with at paragraph [43] of Greif No 1 and I confirm the opinion I then expressed about his evidence;
iv.Dr Habib’s evidence was dealt with at paragraph [36] in Greif No 1 and I confirm the opinion I then expressed about his evidence;
v.Dr Adler’s evidence was considered at paragraphs [29] to [33] in Greif No 1 and has been reconsidered above with his 2007 report, and
vi.Dr Isbister’s evidence was considered at paragraph [35] in Greif No 1 and I confirm the opinion I then expressed about his evidence.

Rejection of Mr Ahmed’s Evidence

The Respondent Worker relies on Toll Pty Ltd v Bartimote [2007] NSWWCCPD 153 (‘Bartimote’). The Acting Deputy President in that case said at [83] “Based upon this history of the onset of neck symptoms, which is consistent with the relevant treating medical material, I cannot be satisfied the Respondent Worker sustained injury to his neck in the incident of 18 November 1998”. It is then argued that Mr Ahmed “felt pain approximately five weeks from the date of injury, as he was taking strong pain killers in relation to his neck and shoulder injuries” (Respondent Worker’s submissions 2 October 2007, paragraph 17). The authority of Bartimote does not support Mr Ahmed’s claim. Mr Bartimote failed in his claim for compensation for the alleged injury to his neck because of the delayed onset of neck symptoms.

It is argued that Mr Ahmed put forward a “logical and probative explanation as to the delay of symptomology [sic] in his back, being the heavy medication he was taking for his neck and shoulder injury” (Respondent Worker’s submissions 2 October 2007, paragraph 18) and the Appellant Employer failed to discredit or rebut such “submission and the Arbitrator was correct in making the inference about the effect of such medication”. This issue was dealt with at paragraph [48] of Greif No 1 and I remain of the view I expressed at that time. The theory that Mr Ahmed’s medication “masked” the symptoms in his back was conceded by Mr Ahmed’s counsel to be a “hypothesis” (T16.32). There was and is no probative evidence to support the hypothesis. I do not accept it. At no stage did the Appellant Employer concede this point. Liability for Mr Ahmed’s back condition was always in issue before the Arbitrator.

It is submitted that I erred at paragraph [47] of Greif No 1 where I said, among other things, “the unexplained absence of low back symptoms between 17 March 2005 and 13 May 2005 is fatal to Mr Ahmed’s claim”. As explained above, in light of the claim form, it would have been more accurate if I had said “the unexplained absence of low back symptoms between 17 March 2005 and early May 2005”. However, for the reasons already given I do not believe that error makes any difference to the end result.

It is submitted that I erred when I rejected Mr Ahmed’s “evidence and explanation as to the delay of the symptomology [sic] in the back”. It is said that all parties, including the Arbitrator, accepted the “uncontradicted evidence” of Mr Ahmed and as Mr Ahmed was not cross-examined his evidence should have been accepted in relation to the delay in “symptomolgy” [sic]. I reject these submissions. Mr Ahmed’s evidence fell well short of establishing that he injured his back on 17 March 2005 but failed to notice the symptoms because of his medication. His counsel raised the ‘masking’ argument at the arbitration. No persuasive evidence supported that argument. All parties accepted the concession made by Mr Ahmed’s counsel that the first complaint of back pain to a doctor was on 13 May 2005, about two months after the injury (T5.35). That concession does not mean that Mr Ahmed’s current assertion that his back pain has resulted from the incident on 17 March 2005 must be accepted. To the contrary, it means the evidence must be examined carefully to determine if the lumbar back condition has resulted from that incident or the nature and conditions of his employment. That is what I did in Greif No 1 and, having reconsidered the matter and taken into account the evidence from Dr Adler in his 2007 report (though, in my view, it is not fresh evidence) and in the claim form, I firmly adhere to the conclusion I reached in that decision.

I have already dealt with the cross-examination issue at [59] above.

The Respondent Worker relies on the report from Dr Eun from Blacktown Hospital dated 9 August 2005 [sic, 8 September 2005], which, it is argued, supports the argument that strong pain medication masked Mr Ahmed’s back pain. Mr Ahmed attended at the Blacktown Hospital emergency department on 8 September 2005 complaining of a back injury a “few months ago” and of an exacerbation of chronic back pain. He was given panadeine forte with good relief. The question before me is whether the absence of any mention of back pain from 17 March 2005 until early May 2005 can be explained by the fact that in that period Mr Ahmed was taking medication for his neck and shoulder injury. The report from Dr Eun does not address that issue and I therefore do not accept the Respondent Worker’s submission.

Failure to Deny Liability

The Respondent Worker submits I should have entered an adverse finding against the Appellant Employer for its failure to deny liability for approximately two years. I reject this submission. The issue of liability for Mr Ahmed’s alleged back injury was raised in the Reply. No objection was taken at the arbitration to it being argued and no objection was raised at the appeal. The issue of liability for the back condition was irrelevant up to the time of the claim for lump sum compensation because Mr Ahmed’s claim had been accepted and he was being paid voluntary weekly compensation as a result of his neck and shoulder injury. In these circumstances the Appellant Employer was entitled to argue that Mr Ahmed did not injure his back at work on 17 March 2005 or as a result of the nature and conditions of his employment and that he has no entitlement to lump sum compensation in respect of his back condition.

Further Submissions

In response to the Direction issued on 2 October 2007 (see paragraph [8] above), the Respondent Worker filed further submissions on 17 October 2007. Those submissions may be summarised as follows:

(a)the Respondent Worker has filed a holding appeal pending the present application for reconsideration. Section 367 of the 1998 Act states that the Commission must provide a fair and cost effective system for resolution of disputes to all parties. By going to the Court of Appeal Mr Ahmed will incur substantial costs and it is therefore unjust for the Commission not to review a decision which contains errors of fact, law and discretion;

(b)reliance is placed on section 33 of the Interpretation Act 1987;

(c)the principle of issue estoppel and res judicata do not prevent a reconsideration under section 350(3) of the 1998 Act;

(d)Mr Ahmed is seeking a “review as it is submitted the decision of the Deputy President ‘is affected by some legal, factual or discretionary error’”;

(e)reliance is placed on the decision of Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (‘Samuel’);

(f)the current matter is “still pending and finality has not been reached”;

(g)an application for reconsideration is a statutory right and to refuse that right is an error of law;

(h)reliance is placed on Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149 (‘Riverina Wines’);

(i)the supplementary report of Dr Adler of 22 September 2007 could not have been obtained in the first application as it responds to various issues raised in Greif No 1. It is argued that the further opinion of Dr Adler may lead to a different result;

(j)an application for a reconsideration provides Mr Ahmed with a cheap alternative to an appeal to the Court of Appeal. Should the reconsideration be rejected, an appeal will be filed with the Court of Appeal;

(k)section 354(3) of the 1998 Act states that the Commission is to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. Accordingly, a refusal to reconsider the decision in Greif No 1 may be viewed as being contrary to equity, good conscience and the substantial merits of the matter;

(l)the decision in Greif No 1 failed to consider the legal maxim allegans contraria non est audiendus (a person who alleges contrary things is not to be heard) and failed to consider the Appellant Employer’s conduct prior to the filing of its Reply. The Appellant Employer’s failure to deny liability for the back claim should be “considered an acceptance implied by any express mention to the alternative”;

(m)if I refuse to consider the reconsideration application the principles of natural justice will be violated, and

(n)the facts in the current case “veritably and justifiably allow the appellant [sic] to seek reconsideration, the grounds on merit have already been submitted and same goes towards jurisdiction and powers of the Deputy President and therefore merit entertainment under s350”.

The Respondent Worker’s further submissions filed on 17 October 2007 are considered below. Adopting the same paragraph numbering set out in paragraph [87] above I make the following findings and comments:

(a)it is noted and accepted that the Commission has a statutory obligation to provide a “fair and cost effective system for the resolution of disputes under the Workers Compensation Acts” (section 367(1)(a) of the 1998 Act). In order to meet the Commission’s obligations, I have devoted substantial time to this reconsideration application;

(b)it is accepted that the reconsideration power must be applied in a way that promotes the purpose of the legislation. However, the provision is not to be used as an open invitation for a party to have a second go because he or she does not like the result. As explained in the authorities referred to earlier in this decision, there must be a sound basis for seeking a reconsideration and whether relief is granted or not is in the discretion of the Arbitrator or Presidential member from whom the reconsideration is sought;

(c)the principles of issue estoppel and res judicata do not apply to prevent the Commission from reconsidering any previous decision (Bruce v Grocon (1995) 11 NSWCCR 247);

(d)as discussed in Samuel, it is accepted that the reconsideration power gives the Commission a wide discretion to reconsider its previous decisions. However, the use of that discretion is subject to the facts in each case;

(e)it is accepted that the current matter is still pending in that Mr Ahmed’s lump sum compensation for his neck and shoulder injuries have not yet been assessed by an AMS. That makes no difference to the merit of the reconsideration application;

(f)the authority of Riverina Wines has no application to an application for reconsideration under section 350(3) of the 1998 Act;

(g)it is not appropriate to obtain additional evidence after an adverse finding in an attempt to remedy the defects in a party’s case highlighted by that finding. All relevant evidence should normally be presented at the original hearing. In any event, I have carefully considered Dr Adler’s 2007 report and it has not altered my opinion;

(h)the Respondent Worker is entitled to pursue an appeal to the Court of Appeal. The fact that a right of appeal is available and that it is restricted to errors of law is one factor to be taken into account in the exercise of the discretion under section 350(3) of the 1998 Act. The fact that that right of appeal against a Presidential member is restricted to errors of law is a matter that I took into account in conducting the reconsideration;

(i)it is accepted that section 354(3) of the 1998 Act requires that the Commission “act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. The present matter has been determined on that basis;

(j)I reject the Respondent Worker’s reliance on the maxim allegans contraria non est audiendus. This doctrine has no application in the present matter. The issue to be determined was before the Arbitrator and before me on appeal and the Respondent Worker had every opportunity to answer the Appellant Employer’s arguments;

(k)I do not believe either party has been denied natural justice. The reconsideration application has been heard and determined on its merits, and

(l)the reconsideration application has been heard and determined.

Submissions in Response

Notwithstanding that no leave was given, the Respondent Worker filed further submissions on 1 November 2007 purporting to respond to the Appellant Employer’s submissions filed on 30 October 2007. These submissions purport to reserve to the Respondent Worker the right to file more submissions within 14 days of 31 October 2007. No further submissions have been filed since 1 November 2007.

The Respondent Worker submits:

(a)the requirement of the insurer to issue a notice disputing liability arises under the 1998 Act, not under the WorkCover Guidelines as submitted by the Appellant Employer;

(b)allowing the Appellant Employer to change the nature of the dispute once the Application is filed in the Commission is contrary to the Commission’s objectives set out in section 367 of the 1998 Act;

(c)the Application filed with the Commission was to determine whether maximum medical improvement had been reached and it should have been referred to an AMS and not determined by an Arbitrator;

(d)because the only issued raised by the insurer was whether Mr Ahmed’s condition had stabilised, the Commission was not entitled to hear or determine the dispute (section 289(5));

(e)the Commission must draw an adverse inference from the conduct of the Appellant Employer and issue orders in accordance with the statutory scheme, and

(f)in the interest of justice and fairness, the Commission must take into consideration the Appellant Employer’s conduct and its failure to deny liability until it filed its Reply despite having Dr Mastroianni’s report in its possession since August 2005.

These submissions merely repeat the submissions previously made by the Respondent Worker in the reconsideration application. I reject them for the reasons set out earlier in this decision. The interests of justice require that matters in the Commission be determined on their substantial merits. That has happened in this matter.

CONCLUSION

Whilst every issue raised in the present matter has been carefully considered and determined according to its merits, parties should be aware that the reconsideration power is not an open ended invitation to seek to again agitate issues that have already been decided against them. Nor is it an opportunity to present arguments that were not presented, either through choice or oversight, at the original hearing. A mistake by a legal adviser is not a ground for reconsideration (Self v A Cook & Sons Pty Limited [1965] WCR 88; Hurst v Goodyear Tyre & Rubber Co (Australia) Limited [1953] WCR 29). Parties are bound by the conduct of their case at the original hearing (Metwally, Multicon and Coulton).

The present reconsideration application is without merit and is dismissed for the reasons set out above.

DECISION

Having reconsidered the decision of Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 195, the findings and orders made in that matter are confirmed and the reconsideration application is dismissed.

COSTS

No order as to costs of the reconsideration application.

Bill Roche
Deputy President
22 November 2007

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

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Citations

Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229

Most Recent Citation

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Cases Citing This Decision

23

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Cases Cited

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Statutory Material Cited

0

Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 195

Bluescope Logistics Co Pty Limited (formerly BHP Transport & Logistics Pty Limited) v Finlow [2006] NSWWCCPD 338

Metwally v University of Wollongong [1985] HCA 28

[2007] NSWWCCPD 229

14 September 2007