Harmouche v Pentagon Protective Services Pty Ltd
[2009] NSWWCCPD 2
•9 January 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Harmouche v Pentagon Protective Services Pty Ltd [2009] NSWWCCPD 2 | |||||
| APPELLANT: | Khourky Ali Harmouche | |||||
| RESPONDENT: | Pentagon Protective Services Pty Ltd | |||||
| INSURER: | GIO General Limited | |||||
| FILE NUMBER: | A1-4783-08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 23 September 2008 | |||||
| DATE OF APPEAL DECISION: | 9 January 2009 | |||||
| SUBJECT MATTER OF DECISION: | Injury; failure to properly determine issues in dispute | |||||
| PRESIDENTIAL MEMBER: | Acting President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | City Legal Solicitors | ||||
| Respondent: | Rankin Nanthan Lawyers | |||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 23 September 2008 is revoked and the matter is remitted for re-determination before a different Arbitrator. Costs of the first arbitration, and of the second arbitration, are to follow the event of the second arbitration. | |||||
| The respondent employer is to pay the appellant worker’s costs of the appeal. | ||||||
BACKGROUND
Mr Harmouche alleges that he received an injury to his neck and back on 30 November 2000 when two men assaulted him at Franklins Supermarket at Yagoona while he was working as a casual security guard with Pentagon Protective Services Pty Ltd (wrongly sued as Pentagon Protection Services) (‘Pentagon’). Whilst Mr Harmouche returned to work at Franklins the next day, he was told to go home and he has not returned to work for Pentagon since.
In March 2001, Mr Harmouche sought advice from a solicitor (Mr Sunna) and made a claim for victims’ compensation. Though Mr Sunna advised him he “had a worker’s compensation case” Mr Harmouche made no claim as he did not know what that was and he wanted to try and work and put everything behind him.
By a letter dated 24 September 2007, Mr Harmouche’s second solicitor (Mr Dikha) made a claim for lump sum compensation on his behalf from Pentagon’s workers compensation insurer, GIO General Limited (‘GIO’), in the following sums:
(a)$6,000 in respect of a 15% permanent impairment of the neck;
(b)$9,000 in respect of a 15% permanent impairment of the back;
(c)$3,750 in respect of 5% permanent loss of efficient use of the right leg at or above the knee;
(d)$17,050 in respect of a 12% whole person impairment, and
(e)$50,000 in respect of pain and suffering.
The reference to 12% whole person impairment is irrelevant as the injury occurred before 1 January 2002 and must therefore be assessed under the Table of Disabilities in force at the date of injury.
Based on an assessment by Dr Machart, orthopaedic surgeon, on 5 March 2008, that Mr Harmouche had no “impairment related to work” but had degenerative multilevel spondylosis, the GIO advised by letter dated 14 May 2008 that it would not be making an offer of settlement.
Mr Harmouche filed an Application to Resolve a Dispute (‘the Application’) with the Commission on 24 June 2008 alleging that he “was injured at work during an armed robbery when he was repeatedly stomped on whilst lying on the floor” and seeking lump sum compensation as particularised in the letter of 24 September 2007.
By its Reply filed on 1 July 2008, Pentagon confirmed that the matters disputed were those listed in the “dispute notice” attached. The only notice attached to the Reply was the letter from the GIO dated 14 May 2008.
The Commission listed the conciliation and arbitration proceedings for determination by an arbitrator on 10 September 2008. Mr Perry, of counsel, appeared for Mr Harmouche and Mr Benson, of counsel, appeared for Pentagon. The matter could not be resolved and the Arbitrator heard submissions and determined an important preliminary issue that, though it is not the subject of appeal, should be recorded.
The Arbitrator gave Pentagon leave to tender a section 74 notice dated 10 September 2008 (T21.20). That notice disputed whether:
(a)Mr Harmouche had made a claim within the prescribed time limit in section 65 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) (‘the section 65 issue’);
(b)Mr Harmouche sustained an injury arising out of his employment as required by section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’);
(c)employment was a substantial contributing factor to any injury (‘the section 9A issue’);
(d)Mr Harmouche had any entitlement to weekly compensation (though no weekly compensation was claimed);
(e)Mr Harmouche’s entitlement to medical expenses or related treatment under section 60 of the 1987 Act (though no medical expenses are claimed), and
(f)Mr Harmouche’s entitlement to lump sum compensation.
After admitting that document the Arbitrator declined to allow Pentagon to rely on the section 65 issue, but did allow it leave to “argue the position as regards section 4 of the Act” (T26.40). The Arbitrator did not indicate if he gave leave for Pentagon to dispute the other issues in its section 74 notice, in particular the section 9A issue.
The matter proceeded with Mr Harmouche being extensively cross-examined and counsel making lengthy submissions.
In a reserved decision delivered on 23 September 2008, the Arbitrator made an award in favour of Pentagon with no order as to costs.
By an appeal filed on 16 October 2008, Mr Harmouche seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
It is not disputed that the monetary thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE EVIDENCE
Lay Evidence
Mr Harmouche
Mr Harmouche tendered two statements, the first dated 5 September 2008 and the second said to be dated 10 September 2008. The second statement is said to have been signed and dated on 10 September 2008 (the first day of the arbitration), but the only copy in the Commission’s file is undated and unsigned. I have proceeded on the basis that this unsigned statement, headed “Supplementary Statement Made by Khourky Ali Harmouche”, is the statement that was in fact signed and dated on 10 September 2008.
Mr Harmouche’s evidence is that at about 8.00 or 8.30pm on 30 November 2008, he was standing near the cash registers at Franklins Supermarket, Yagoona, with his back to the door when a woman approached him and asked what time the store closed. Before he could answer, two men ran into the store. One put a knife to Mr Harmouche’s neck and the other put a knife to his back, as they yelled at him to get on the floor. As he was face down on the floor, one man put his leg on Mr Harmouche’s back and held a knife to his neck and took his wallet, money and mobile phone. The second man and the woman stole cash from the registers. One of the shop assistants was unable to open her register and Mr Harmouche called out “Give him the keys”. The man who had subdued Mr Harmouche grabbed him by the hair and “repeatedly stomped on” his “back” (Mr Harmouche’s first statement, paragraph 15). The man also pushed Mr Harmouche towards the ground, which Mr Harmouche resisted by pushing his head up. After an undisclosed period, the offenders ran off.
The police attended the store shortly after and Mr Harmouche gave a statement. Mr Harmouche received a cut lip in the incident. After the store manager attended to the cut, Mr Harmouche went home. He returned to the store the next day and spoke to the manager about his stolen personal property. The manager directed him to his boss at Pentagon.
After speaking on the phone to someone from Pentagon, Mr Harmouche left the store and travelled to Pentagon’s office at Harris Park where he spoke to Mr Ashy, the company’s managing director. Mr Harmouche explained what happened: how he was held at knifepoint and one of the offenders stomped on his back, and enquired if anything could be done about his personal effects. Mr Ashy said he could not do anything and that he had no more work for Mr Harmouche.
Mr Harmouche said that after the robbery he “became a very agitated person” and that his personal life was affected. He then added at paragraph 26 of his first statement that “Over the next few months my back started to hurt more and I went and saw my family doctor, Dr Noussair in late January or February 2001.”
He then saw a solicitor and made a claim for victims’ compensation. He added that “At the end of the claim the tribunal stated that there was no life lasting psychological impairment” (Mr Harmouche’s first statement, paragraph 29).
Despite being advised by Mr Sunna in March 2001 that he “had a workers compensation case” (Mr Harmouche’s first statement, paragraph 30), Mr Harmouche said he did not know what that was and that he wanted to try and work and put everything behind him.
In 2002, his back and neck started hurting more than previously.
Mr Harmouche remained unemployed until about August 2004, when he found a casual security position that involved 12-hour shifts, which he claims he could not sustain due to his injuries. He was in receipt of a disability pension.
In 2006 or 2007, Mr Harmouche approached Mr Sunna about making a workers compensation claim. Mr Sunna arranged for him to see Dr Deveridge, orthopaedic surgeon, on 17 April 2007. Mr Harmouche continued to see his regular general practitioner, Dr Noussair, and several other doctors. His solicitor made a claim for lump sum compensation on his behalf in September 2007.
Prior to the robbery, Mr Harmouche was healthy and had no back or neck problems. He now has trouble mowing the lawns at his house, working on his car, is unable to carry heavy fishing gear and cannot climb up and down rocks, has trouble putting on his socks, and has difficulty standing, sitting and walking prolonged periods.
In his supplementary statement, Mr Harmouche confirmed that he had no back or neck pain before 30 November 2000 and that he had previously pursued occupations that required him to stand for lengthy periods and, in some cases, bend and lift. He had never experienced difficulty or discomfort in performing those duties.
During the assault, the assailant pulled Mr Harmouche’s hair forcing his head up so that his back was arched causing pain in his neck. The pain was made much worse when the assailant attempted to turn Mr Harmouche’s head in an attempt to strike his face. The stomping referred to at paragraph 15 of Mr Harmouche’s first statement was on his low back and was done with great force. Each time the assailant’s foot struck him he felt pain.
After the assault, Mr Harmouche had great difficulty getting up “such was the pain” in his back and neck. On removing his shirt at home, he saw bruising on his low and mid back. He added at paragraph seven that “At this time the worst pain was in my neck” and at paragraph eight “From this time on, I have always had pain in my back and in my neck”.
When Mr Harmouche saw his manager the next day, his anxiety about the loss of his money and phone “was uppermost”. His back pain, at first less concerning than his neck pain, gradually worsened. He subsequently worked as a security officer with a different employer, noticing that his duties, particularly prolonged standing, caused him to suffer “as I had not prior to the assault”.
As this matter must be re-determined, I will not include a summary of Mr Harmouche’s oral evidence.
The Police Report
Mr Harmouche also relies on a Police Report dated 30 November 2007 and created by Senior Constable Walsh and updated by Senior Constable Davidson. The report essentially corroborates Mr Harmouche’s evidence as to the general circumstances of the robbery, namely, the presence of the woman and two men and the use of knives. As to the assault on Mr Harmouche, the report includes the following:
(a)the two men forced Mr Harmouche to lie on the ground, and
(b)as the female offender collected money from the cash registers, one of the men held Mr Harmouche on the ground with a knife to his neck.
Mr Ashy
Mr Ashy’s evidence, set out in his statement of 6 November 2007, may be summarised as follows:
(a)he is the managing director of Pentagon;
(b)Mr Harmouche worked with Pentagon as a casual security guard from 29 September 2000 until 1 December 2000, when no more work was available. A friend introduced him to Mr Ashy at a time when additional workers were required because of the Olympics. His duties were as a static guard at various premises;
(c)Mr Harmouche was a nervous type of person who moved about a lot and could not sit still;
(d)Mr Harmouche did not report any injuries, sickness or incident while at work for Pentagon. He worked his normal hours on 30 November 2000;
(e)if Mr Harmouche was the subject of a robbery and injured, he was told to call the police, give a statement to the police, report it to Pentagon, complete an incident report, and make an entry in the injury book (if injured), and
(f)no robbery or injury was reported to Mr Ashy by either Mr Harmouche or the police and there was no record of any injury in the injury book.
Medical Evidence
The medical evidence commences with clinical notes from Dr Noussair that include, so far as may be relevant to the current claim, entries relating to Mr Harmouche complaining of feeling stressed on 27 September 1999 and experiencing back pain after sudden movement and having tenderness in his thoracic spine on 19 February 2000.
The first attendance on Dr Noussair after 30 November 2000 was on 19 December 2000 when the notes record “Painful (L) knee – tender medial aspect of (L) knee joint”. Mr Harmouche attended again on 22 December 2000 when the notes record “X-ray osteoarthritis”.
The next entry is on 21 February 2001, which reads:
“30.11.00 was working as security officer at Franklins Yagoona – about 8.30pm – 3 people – 2 men + 1 woman → hold up – one introduced knife to his neck and another one to his back – pushed him to floor and one pushed him with his leg – Contin [sic] to push knife against neck – took everything [indecipherable] the other 2 people went to register he [word/s omitted] on the head by the other man → laceration on lower lip – they ran [words omitted] after taking the money from register → police came – reported [words omitted] since accident bad dreams, insomnia [word/s omitted] everytime recall the accident – anxiety nervous domestic problems because of [word/s omitted] been complaining of back pain since [word/s omitted] tender lower lumbar spine L3/4/5 all movement ↓”
Where I have noted that words have been “omitted” from Dr Noussair’s notes that is because the copy of the notes tendered in evidence has cut off the right hand side of the original entries.
The entry for 22 February 2001 reads “x ray lumbar spondylosis + narrowing of L5/S1 disc lesion – went [sic] to work as builder – cannot [sic] do his duties now Certif [sic] 22/2/2001 – 22/5-2001”.
The next entry is 15 May 2001, which reads “back, (L) knee pain”.
On 22 June 2001, the notes record “back pain – painful (L) knee fill review form for Centrelink”.
An entry in either late September or early October 2002 reads, “↑ back pain x ray thoracic spondylosis – electric feeling (R) arm – [indecipherable] x ray cervical spine”.
On 9 October 2002, the notes record “x-ray cervical spine – cervical spondylosis”.
Between 9 October 2002 and October 2004, Mr Harmouche attended on Dr Noussair on 13 occasions. In that period the only reference to back pain was on 5 November 2003 when the doctor recorded, “currently not working – c/o back pain – stiffness painful both shoulders – tender L3/4/5”.
On 26 February 2003, Mr Harmouche attended on Dr Noussair complaining of a bee bite to his right ring finger and of his right forearm. Dr Noussair referred him to Dr Bentivoglio, orthopaedic surgeon, however, perhaps because of an argument with Dr Bentivoglio’s secretary (see Dr Noussair’s note of “27 February 2002” [sic 2003]) Mr Harmouche did not attend an appointment arranged for 12 March 2003 (see Dr Bentivoglio’s letter of 14 March 2003).
On 5 October 2004, the notes record “back pain (L) sciatica”. Other entries on that date are indecipherable. There then follow 24 pages of notes from Dr Noussair with references to Mr Harmouche complaining of back pain, neck pain, pain in his coccyx, stress and anxiety, right sciatica (8 December 2005), numbness in his right arm, feeling weak and tired (1 May 2006), chest pain, domestic problems with his wife, right loin pain radiating to the right groin (19 July 2006), sore throat and congested chest, allergic reaction to a bee sting, on and off pain in the back of the left thigh, elbow pain and injuring his left hand with a screw driver.
In 2005, Mr Harmouche underwent further x-rays of his lumbar spine (12 January 2005), right hip (1 August 2005) and sacro-coccygeal spine (19 September 2005). He also had a CT scan of his lumbar spine on 17 December 2005, which revealed mild to moderately severe mid and lower spondylosis with osteophytosis, old Scheuermann’s disease, facet arthropathy, a left sided L5 pars defect, and a broadbased right lateral disc protrusion at L4/5 and similar but less marked changes at L3/4.
On 3 February 2006, Mr Harmouche attended on Dr Noussair complaining of increasing neck and back pain and was referred to Dr Bentivoglio, who saw him on 22 February 2006. In his report to Dr Noussair of 24 February 2006, Dr Bentivoglio recorded the following history:
“This gentlemen has had increasing neck and back pain since 2002. He always has some neck pain with radiation towards his shoulder and interscapular region. He also has a heaviness present in his right upper limb and numbness involving all fingers of his right hand if he rests his forearm on objects. With his back, he finds sitting to be more uncomfortable for him than standing. His symptoms are predominantly right sided with symptoms radiating to his right groin. They do not go into his lower limbs. Night pain is not a particular feature of his complaints.”
On examination, Dr Bentivoglio observed that Mr Harmouche had about two thirds normal range of movement in his cervical spine and about three quarters normal range of movement in his lumbar spine. Straight leg raising was 60 degrees in both legs and Mr Harmouche was generally tender over the lower lumbar region. Dr Bentivoglio noted the CT scan of 17 December 2005 revealed a small right-sided lateral disc lesion, though the significance of that finding was uncertain, as Mr Harmouche had no leg symptoms when Dr Bentivoglio examined him.
Mr Harmouche underwent an x-ray of his full spine and pelvis on 22 May 2006, which revealed a loss of disc height at C5/6 and mild spondylotic change, mild spondylotic changes at the thoracic and lumbar spines, but no sign of arthritis at the sacroiliac or hip joints. In addition, the fifth lumbar spine is “sacralised with a developmentally small L5/6 disc space”.
Dr Noussair provided a certificate to IOOF Life Track Superannuation (‘IOOF’) on 12 October 2006 diagnosing Mr Harmouche as suffering from “degenerative disc disease of the cervical and lumbar s [sic, spine] narrowing of L5/S1” since 30 November 2000. This was followed by a report from the doctor to Life Track Superannuation Fund on 16 October 2006 in which she said:
“Mr Harmouche has been suffering from neck and back pain for over six years. The last few months the pain [has] been getting worse and he has been complaining of back pain and right sciatica.
He used to work as a security officer and stopped working two years ago. Work duties involved prolonged standing which caused exacerbation of back pain.”
In January 2007, Dr Noussair referred Mr Harmouche to Dr Mahony for a second opinion. Dr Mahony saw him on 29 January 2007 and reported to Dr Noussair on 27 February 2007. Dr Mahony took the following history from Mr Harmouche:
“For about 2-3 years he has noticed pain in his neck which was associated with intermittent pain in his left hand.
He complained of low back pain, pain in his right groin and pain in his right foot. I understood these symptoms had been present for a matter of months.
He ceased work about 2-2 1/2 years ago. He worked as a security officer.”
Under “Opinion”, Dr Mahony concluded:
“Mr Harmouche has developed symptoms referrable to a cervical strain with nerve root irritation affecting the left upper limb as well as a low lumbar back strain with nerve root irritation affecting the right lower limb.”
Dr Mahony arranged for an MRI scan of Mr Harmouche’s lumbosacral spine on 20 February 2007, which revealed mild disc bulges at L3/4 and L4/5 and concluded that there were mild spondylotic changes at those levels.
Dr Mahony completed a certificate for IOOF on 8 March 2007 in which he stated that Mr Harmouche’s symptoms or injury first occurred “Prior to about 2-3 years prior to my initial consultation on 29/1/07”.
Dr Noussair prepared an undated report addressed to International SOS some time after the MRI scan of 20 February 2007. I assume, though it is not clear, that this report was prepared for the purpose of Mr Harmouche’s application for access to his superannuation benefits from IOOF. Dr Noussair stated:
“Thank you for your letter requesting a medical report on Mr Harmouche concerning his neck and back pain.
Mr Harmouche [has] been suffering from neck, back pain and right sciatica following an incident on 30/11/2000, when he was assaulted by three people while working as a security officer at Franklins.
Since the incident, he has been suffering from anxiety and stress and started to get easily upset about trivial things and had sleep disturbance.
He continued to complain of neck pain and numbness of [the] palm of the left hand. He had an EMG test of both upper limbs on 05/10/2001 which was normal.
Since 21/02/2003, Mr Harmouche started to complain of increasing pain of [his] left forearm and left elbow.”
Dr Mahony reported to Dr Noussair again on 9 March 2007, after having reviewed Mr Harmouche on 7 March 2007. He noted that Mr Harmouche’s symptoms continued and he repeated his previous opinion that Mr Harmouche had developed symptoms referrable to a cervical strain in association with degenerative changes as well as a lumbar strain in association with degenerative changes. He expressed no view as to the cause of the strain.
For medico-legal purposes, Mr Harmouche saw Dr Deveridge on 17 April 2007 (report 19 April 2007). Dr Deveridge took the following history:
“He was the victim of an armed robbery during the course of his employment in November 2000. His assailant held a kitchen knife to his neck and shoulder blade. He was then thrown to the ground and instructed to lie in a prone position, during which time he was repeatedly stomped on the back. The assailant then informed a female worker to open the cash register but she remained frozen to the spot. Your client advised her to do as instructed, but the assailant grabbed his head from behind and repeatedly pushed it forward causing a lip laceration. Police attended the scene of the robbery, but your client was not hospitalised. He was apparently employed on a casual basis and he requested further security work from his employer but he was told there was none available. He was out of work for an extended period although he did not receive any medical treatment until late 2002. He did find some more casual security employment and last worked in 2004 for about 5 months. He found the 12 hour shift too long, as he was required to stand for most of the time. He has not worked since and I understand that he is now on a disability pension.
Your client states that although his neck and back was [sic] injured in the initial assault, that he delayed medical treatment as he wanted to get on with his life. However, over the next few years the neck and back pain allegedly worsened, without any subsequent injury. He started seeing his general practitioner (Dr M Noussair of Punchbowl) and he was later referred to the orthopaedic surgeon.”
Under “Opinion”, Dr Deveridge assessed the following injuries and disabilities:
“1.Neck pain, stiffness and non-verifiable radicular complaints referred to the left upper limb – due to chronic musculo-ligamentous cervical strain injury and aggravation of early spondylosis most marked at C5/6.
2. Low back pain, stiffness and non-verifiable radicular complaints referred to the right lower limb – due to chronic muscular ligamentous lumbar strain injury with aggravation of underlying spondylosis including early disc lesions at L3/4 and L4/5.
The history is of neck and back pain developing after the assault of November 2000 and gradually worsening thereafter. If this history is accurate, and I have no reasons to doubt it, then the residual neck and back disabilities are attributable to work injury in November 2000 whilst employed by Pentagon Security. Subsequently slow deterioration of his spinal condition is consistent with the natural history, once injury and disability was established. Any aggravation of underlying changes is expected to be longstanding. There is no evidence of any prior or subsequent spinal injury or disability.
He appeared reasonably well motivated to remain at work as a security guard thereafter. He demonstrated his ability to work sporadically in this capacity until 2004. It is reasonable that the 12 hour shift was intolerable.”
Dr Noussair provided another certificate for IOOF on 23 May 2007 in which she stated the onset of Mr Harmouche’s symptoms or injury was 30 November 2000 and it was diagnosed on 21 February 2001. Her diagnosis was “narrowing of L5/S1 – disc lesion – cervical spondylosis – x-ray → 4/12/2002”. In response to the request for a “clinical summary of events leading to the patient’s current condition” (Part 6 of the certificate), Dr Noussair stated:
“lower back pain since an incident on 30/11/2000 when he was assaulted by 3 people while working as [a] security officer at Franklin[s].”
The doctor added that Mr Harmouche’s condition has been deteriorating.
Dr Mahony again examined Mr Harmouche in October, November and December 2007 and reported to Dr Noussair on 6 and 29 November and 20 December 2007. Dr Mahony noted Mr Harmouche’s symptoms had extended to include the elbows and the left leg. He repeated his previous opinions, but added that Mr Harmouche had symptoms “referable to melalgia paraesthetica of his left thigh” and symptoms “referrable to a right low bicipital tendonitis” and evidence of osteoporosis (see report of 20 December 2007).
Dr Machart, orthopaedic surgeon, examined Mr Harmouche on behalf of the GIO on 4 March 2008. Dr Machart recorded that the robbery occurred on “20 November 2000” [sic] and that Mr Harmouche had been working for Pentagon for five months at the time it occurred. He took the following history:
“The description of the injury was that there was an armed robbery conducted by two males and two females. Mr Harmouche was told to lie on the ground. A knife was held on his neck and shoulder. He was stamped upon two or three times on the middle of the back. His head was pushed into the ground, which caused a cut on the lip.
After the accident Mr Harmouche attended a police station and reported the incident. He has not returned to work.
He was aware of neck pain at the time of the injury. Pain was in the middle of the back and developed within one month. (He could not tell me exactly when.) He did not seek medical attention for one month. He saw Dr Mona Noussaid [sic].
He was off work for two years. He then resumed security work that he continued for one and a half years. He claimed that he could not continue because of ongoing symptoms.”
Under “Diagnosis”, Dr Machart concluded that Mr Harmouche has:
“1.Age-related degenerative spondylosis in the cervical spine.
2. Age-related degenerative changes in the lumbar spine.
3.No structural injury occurred on 30 November 2000 at the time of the stated incident.
The report of symptoms affecting multiple areas of the body, i.e., neck, back, both arms and both legs, is not consistent with the description of injury, and the subsequent progress. Specifically, he did not seek medical attention for some time after the injury. Back pain did not develop for some weeks after the injury. He was not hospitalised. There is no evidence of structural trauma.
He may have suffered bruises and ligament strain, from which, he should have recovered within a period of six weeks from the time of injury.
I do not have medical evidence that would suggest that there is structural damage, affecting several areas of the body, that stemmed from an incident which occurred nearly eight years ago, that would still be symptomatically evident and allegedly getting worse despite not working and despite having suffered no further injury.
In summary, my assessment is that there is no medical condition that was caused by the incident on 30 November 2000 that is still evident now.”
THE ARBITRATOR’S REASONS
The Arbitrator set out the parties’ submissions in some detail and made the following observations and findings in his Statement of Reasons for Decision (‘Reasons’):
(a)having pursued a victims compensation claim and made a claim on “Tower” (IOOF) and had various dealings with Centrelink, Mr Harmouche appears to have been reasonably alert to his rights (Reasons, paragraph 13);
(b)Mr Harmouche’s explanation that he did not pursue a workers compensation claim shortly after the incident because he wanted to get on with his life, did not appear to be consistent with his having pursued a victims compensation claim at that time (Reasons, paragraph 14);
(c)Mr Harmouche’s visit to Dr Noussair on 21 February 2001 was “a real difficulty with the Applicant’s claim”. First, Mr Harmouche limited his description of the physical violence in the incident to being pushed to the floor and being pushed with a leg. Second, there is nothing in “the report [sic, the clinical notes] to suggest any physical injury, other than with respect to his lip, as regards which there is no claim”. Though Dr Noussair referred to back pain, that had “previously been noted by her on 9 [sic, 19] February of that year” [sic, 2000]. Whilst it is clear that Mr Harmouche had a degenerative back condition, there was nothing to indicate that it was accelerated as a result of the incident. Third, there was no reference to neck pain and it comes on too late, in the absence of some better explanation, to be connected to the incident. Last, Dr Deveridge’s report is dependent upon the history given. That history was not consistent with the report given by Mr Harmouche to Dr Noussair and the failure to mention the incident in reports to other doctors “strengthens the view that there was no more violent [sic, violence] than Dr Noussair’s notes suggest (Reasons, paragraph 15);
(d)Pentagon submitted that Mr Harmouche’s success or failure depends upon his credit. Another way to put it might be to suggest that his success or failure depends upon which of his accounts with regard to the assault is more credible. The Arbitrator “had no difficulty in deciding that it is the account as recorded by Dr Noussair on 21 February 2008” [sic, 2001] (Reasons, paragraph 16);
(e)if Mr Harmouche did receive an injury as a result of the incident, the evidence would only support it being to his back. Whilst any degree of aggravation to his existing degenerative condition would be a matter for an Approved Medical Specialist (‘AMS’), there was no evidence before the Arbitrator which suggested “that any aggravation would be of such a degree or sufficiently long lasting as to be compensable” (Reasons, paragraph 17);
(f)the thrust of the evidence is that any minor aggravation to Mr Harmouche’s back ceased at some stage prior to late 2002 (Reasons, paragraph 18);
(g)Mr Harmouche obtained a Certificate II in security on 26 June 2001, less than seven months after the incident. The modules completed included a reasonably ambitious list of duties for a person with a damaged back and damaged neck (Reasons, paragraph 19);
(h)Dr Machart’s report is to be preferred to Dr Deveridge’s, the latter’s being subject to the history which, on the balance of probabilities, exaggerates the degree of violence in the incident (Reasons, paragraph 21), and
(i)on the basis of the above, Mr Harmouche did not suffer an injury as a result of the incident or has recovered form any aggravation suffered at the time of the incident (Reasons, paragraph 22).
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred:
(a)by failing to properly determine the issues in dispute;
(b)by exceeding his jurisdiction when making decisions that are required to be made by an AMS;
(c)in failing to refer the determination of the section 66 issues to an AMS;
(d)in finding that there was no evidence to suggest that Mr Harmouche had sustained an aggravation of such a degree or sufficiently long lasting as to be compensable, and
(e)by failing to expressly state whether Mr Harmouche’s evidence was accepted or rejected.
SUBMISSIONS
It is submitted on behalf of Mr Harmouche:
(a)the Arbitrator was obliged to determine, and failed to determine, the question of whether Mr Harmouche sustained an injury to his back and neck on 30 November 2000;
(b)the evidence compels a finding that Mr Harmouche did sustain an injury and the Arbitrator erred by not making that finding;
(c)the evidence is that the assailant stomped on his back in the course of the robbery and that Mr Harmouche had never, prior to the assault, suffered neck or back pain but has always suffered such pain since;
(d)both Dr Deveridge and Dr Machart concluded that Mr Harmouche has a permanent impairment of his neck and back, though they differ as to their assessments of the degree of impairment and as to its cause;
(e)the Arbitrator was bound to deal with the evidence in accordance with the principles enunciated by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 (‘Edmonds’);
(f)the Arbitrator did not say that Mr Harmouche was untruthful or identify aspects of his account that he rejected;
(g)the Arbitrator said he had “no difficulty” in accepting as credible the account recorded by Dr Noussair on 21 February 2001. That account was of injury to the low back. The Arbitrator did not reject Mr Harmouche’s account that his head had been “yanked back” when the assailant held him by the hair or that he had suffered from neck pain since the assault;
(h)the Arbitrator had no jurisdiction to decide the medical dispute (Haroun v Rail Corporation NSW & ors [2008] NSWCA 192), but he purported to address that issue when he said at paragraph 17 of his Reasons, “There is no evidence before me which suggests that any aggravation would be of such a degree or sufficiently long-lasting as to be compensable”;
(i)the Arbitrator erred in saying at paragraph 17 of his Reasons that there was “no evidence” when there was abundant evidence to suggest that Mr Harmouche had sustained an aggravation which was of such a degree or sufficiently long-lasting as to be compensable. That evidence included Mr Harmouche’s evidence that he was violently assaulted and has had symptoms in his neck and back since the assault, Dr Noussair’s note on 21 February 2001 that Mr Harmouche had back pain since the assault, Dr Noussair’s note of 22 February 2001, Dr Noussair’s statement in her report of 16 October 2006 that Mr Harmouche had suffered back and neck pain for over six years and Dr Deveridge’s evidence, and
(j)the Arbitrator did not say that he did not accept Mr Harmouche. If he rejected Mr Harmouche’s evidence it was incumbent on him to say so.
It is submitted on behalf of Pentagon:
(a)in light of the Arbitrator’s Reasons from paragraphs 12 to 21, the only reasonable interpretation that can be placed upon his comments at paragraph 22 is that he did not accept Mr Harmouche had sustained an “injury” within the meaning of section 4 of the 1987 Act;
(b)the Arbitrator adequately dealt with the evidence and his view of the evidence was open to him;
(c)in Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56 the Commission held that before an Arbitrator’s decision will be revoked on appeal it must be demonstrated that it contains or has resulted from an error of fact, law or discretion and such error must be such that, but for it, a different result should have been made;
(d)the Arbitrator was aware of the obligation for lump sum section 66 compensation to be determined by an AMS and he did not purport to make an assessment or determination of whole person impairment;
(e)the Arbitrator’s statement that there was “no evidence” (see Reasons at paragraph 17) should be read as meaning “there is no evidence before me which I accept which suggests that any aggravation would be of such a degree or sufficiently long lasting as to be compensable” (emphasis added);
(f)the Arbitrator was alive to there being an issue as to Mr Harmouche’s credibility and, at paragraphs 16, 18 and 19 of his Reasons, was critical of aspects of his evidence. The Arbitrator placed much reliance upon the history initially given by Mr Harmouche to Dr Noussair on 21 February 2001, the implication being that there had been an inexplicable amplification of symptoms thereafter, and
(g)though the Arbitrator’s Reasons are not lengthy and there are difficulties as to expression, it is clear from those Reasons that he considered the submissions made and briefly detailed the deficiencies in Mr Harmouche’s case such as led him not to be satisfied that Mr Harmouche sustained the injuries alleged. That was all that was required.
DISCUSSION AND FINDINGS
Adopting the paragraph numbers set out at [70] above, I make the following findings and observations:
(a)whilst I agree that the Arbitrator was obliged to determine the issue of injury, I do not accept that he failed to do so. He made a clear finding (at paragraph 22 of his Reasons) that Mr Harmouche had either “not suffered an injury as a result of the incident” or had “recovered from any aggravation suffered at the time of the incident”;
(b)the evidence does not, as has been submitted by Mr Harmouche on appeal, compel a finding that he injured his neck and back on 30 November 2000;
(c)the evidence that the assailant stomped on Mr Harmouche’s back is in his statements prepared in 2008, nearly eight years after the event, and is not corroborated by any contemporaneous evidence. The submission that Mr Harmouche had never suffered back pain prior to 30 November 2000 is incorrect (see Dr Noussair’s notes of 19 February 2000). It is not correct that Mr Harmouche has always suffered neck pain since the robbery. Dr Noussair’s notes suggest that the neck pain did not commence until 2002;
(d)the fact that both Dr Deveridge and Dr Machart both assessed Mr Harmouche to have an impairment of his back and neck is not determinative of the issue of injury, which the Commission must decide;
(e)whilst it is correct that the Commission is bound to determine cases in accordance with the principles enunciated in Edmonds, that case primarily concerned questions of bias and the weight to be attached to medical reports that expressed no more than bare conclusions. Its specific application to the present case was not explained in submissions, though it will be relevant when assessing the weight to be given to Dr Deveridge’s report if it is ultimately found that that doctor’s history was inaccurate;
(f)it is correct that the Arbitrator did not say that Mr Harmouche was untruthful or identify aspects of his account that he rejected. In view of the issues involved, the Arbitrator should have considered the evidence in detail and made findings as to which evidence he accepted and which evidence he rejected, rather than leaving it to be inferred from his ultimate finding. Whilst a Presidential member has the power on review to make such findings, for the reasons given below it is not appropriate that I make those findings in this case;
(g)it is correct that the Arbitrator said (at paragraph 16 of his Reasons) that he accepted the account recorded in Dr Noussair’s notes on 21 February 2001 as being “the more credible”. That account contradicted Mr Harmouche’s claim that his back had been “repeatedly stomped on” and that his head was forced up as a result of having his hair pulled. It also made no reference to neck pain. However, the notes included, it is submitted, an “account” of “injury to the low back”. That submission is not accurate. Dr Noussair’s notes of 21 February 2001 are incomplete because the right hand side of the page dealing with the critical entry on 21 February 2001 has been cut off on the photocopy tendered in evidence. The notes do not record a complaint of injury to the low back as a result of the assault, but record that Mr Harmouche complained of “back pain since…”. The word or words after “since” have been cut off in the copy tendered in evidence. Even if the full entry is “back pain since the incident”, it does not automatically lead to the conclusion urged by Mr Harmouche. An assessment is required of whether Mr Harmouche sustained an injury to his back within the meaning of section 4 of the 1987 Act on 30 November 2000. The Arbitrator clearly considered the answer to that question was “no”, but he was required to explain the basis for that conclusion (Hevi-Lift (PNG) Limited v Etherington [2005] NSWCA 42 at [100]). His failure to do so means that the matter must be re-determined. Whilst it is open to a Presidential member to re-determine factual issues on review, the significant credit issues in the present matter and the fact that I have not seen or heard Mr Harmouche give oral evidence, means that the appropriate course is for the matter to be re-determined before a different Arbitrator;
(h)it is correct that an Arbitrator has no jurisdiction to determine a medical dispute, however, whether a worker has sustained an “injury” within the meaning of section 4 of the 1987 Act is a matter exclusively within the Commission’s jurisdiction and must be determined before a matter is referred for assessment of the degree of impairment or loss, if any, as a result of that injury;
(i)the Arbitrator erred when he said at paragraph 17 of his Reasons that there was “no evidence” that suggested “that any aggravation would be of such a degree or sufficiently long lasting as to be compensable”. There is evidence on that issue and it was for the Arbitrator to consider and weigh that evidence with all the other evidence in the case to determine if Mr Harmouche sustained an injury within the meaning of section 4 of the 1987 Act. That is, did he suffer a “personal injury” (section 4(a)), or an injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease (section 4(b)(ii)). In circumstances where the Arbitrator did not review or consider all of the evidence, it is not appropriate to read the Arbitrator’s decision as if the words “which I accept” were included at paragraph 17 (as Pentagon has urged), and
(j)it is implicit in the Arbitrator’s ultimate finding that he did not accept Mr Harmouche’s evidence. However, for the reasons stated above, the matter must be re-determined before a different Arbitrator.
OTHER MATERS
First, the Arbitrator referred to a submission that Mr Harmouche’s evidence had to be accepted because he had not been cross-examined on certain issues (Reasons, paragraph 10(f)). The submission to the Arbitrator was not in the terms he recorded. After referring to the fact that Mr Harmouche had not been cross-examined on several aspects of his statements and noting that no one from Franklins was called to give evidence, counsel for Mr Harmouche submitted, “You would accept that it happened” (T61.33).
It is not the law that an Arbitrator must accept evidence that is not challenged in cross-examination. Cross-examination is not allowed as of right in the Commission and the rule in Browne v Dunn (1893) 6 R 67 therefore has limited application to its proceedings (see Quadi v the Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3 [56] to [58] and Matar and anor v Zeineddine [2008] NSWWCCPD 51 at [67] to [69]). Even where cross-examination is allowed by leave it does not follow that unchallenged evidence must be accepted. The Court of Appeal considered this issue in Elllis v Wallsend District Hospital (1989) 17 NSWLR 553 (‘Ellis’) where Samuels JA (Meagher JA agreeing) held (at 586E):
“The dictum in Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 is founded upon Browne v Dunn (1983) 6 R 67 and, in particular, upon what was said by Lord Halsbury (at 76-77). However, neither Precision Plastics Pty Ltd v Demir nor Browne v Dunn authorises any rule of law that a judge is bound to accept any evidence which is not challenged by cross-examination.”
A similar view is expressed in “Cross On Evidence”, seventh Australian edition, 2004, LexisNexis Butterworths, 2004, at page 543.
Second, the Arbitrator’s statement at paragraph 15(a) of his Reasons that Dr Noussair’s note of 21 February 2001 was “reasonably contemporaneous” was incorrect. Contemporaneous means, “existing or occurring at the same time” (Shorter Oxford Dictionary, 6th edition). In no sense could a doctor’s note taken almost three months after the event be considered to be contemporaneous with the event.
Third, the general preparation of this matter by the parties’ legal representatives was seriously deficient. How this matter proceeds at the re-determination is a matter for the parties and the second Arbitrator. However, the Arbitrator may be assisted in the determination of this claim if a full copy of Dr Noussair’s notes are obtained, together with the relevant police records (including any statement Mr Harmouche gave) and the documents relating to Mr Harmouche’s claim for victims’ compensation, together with such other material the parties consider relevant to the determination of the issues in dispute.
DECISION
The Arbitrator’s determination of 23 September 2008 is revoked and the matter is remitted for re-determination before a different Arbitrator. Costs of the first arbitration, and of the second arbitration, are to follow the event of the second arbitration.
COSTS
The respondent employer is to pay the appellant worker’s costs of the appeal.
Bill Roche
Deputy President
9 January 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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