Ivsic v The Croatian Club Limited - [2010] NSWWCCPD 105

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Ivsic v The Croatian Club Limited [2010] NSWWCCPD 105
APPELLANT:		Ivan Ivsic
RESPONDENT:		The Croatian Club Limited
INSURER:		CGU Workers Compensation (NSW) Limited
FILE NUMBER:		A1-1463/10
ARBITRATOR:	Ms J David
DATE OF ARBITRATOR’S DECISION:		26 May 2010
DATE OF APPEAL DECISION:		29 September 2010
SUBJECT MATTER OF DECISION:		Worker; s 4 of the Workplace Injury Management and Workers Compensation Act 1989, and contract of employment.
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	P K Simpson & Co
Respondent:		Moray & Agnew
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 26 May 2010 is confirmed.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 23 June 2010, Ivan Ivsic (the appellant), sought leave to bring an Appeal Against Decision of Arbitrator in the Workers Compensation Commission (the Commission) against a decision dated 26 May 2010.

The respondent to the appeal is the Croatian Club Limited (the respondent).

Mr Ivsic alleges that he sustained two injuries while working for the alleged employer. The first of these occurred on 20 April 2007, when he alleges injuries to his neck, back, anxiety and/or depression arising out of falling whilst climbing out of a large metal garbage bin. The second incident pleaded is alleged to have occurred on 25 April 2007, when Mr Ivsic again injured his neck, back and suffered from anxiety and/or depression as a result of lifting, with an alleged co-worker, a plastic garbage bin full of waste food whilst attempting to empty it into a larger metal bin.
On 13 December 2007 and again on 27 February 2008, Mr Ivsic’s solicitor made a demand from the employer for weekly compensation at the rate of $70 per week from 25 April 2007 to date and continuing. The sum of $14,231 in respect of a 10 per cent whole person impairment under s 66 and the sum of $30,000 under s 67 were also claimed. Mr Ivsic also claimed compensation for medical expenses under s 60.
On 4 July 2008, CGU Workers Compensation (NSW) Limited (CGU) issued a notice pursuant to s 268 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Section 268 requires the insurer to notify a claimant of any reasonable excuse for not commencing weekly payments after initial notification of an injury. CGU declined to accept provisional liability on the basis of insufficient evidence of Mr Ivsic’s status as an employee of the respondent.
On 23 February 2010, Mr Ivsic filed an Application to Resolve a Dispute (the Application) in the Commission claiming weekly compensation, lump sum compensation under ss 66 and 67, and compensation for medical expenses pursuant to s 60, in accordance with his solicitor’s letter of demand. Mr Ivsic relied on the injuries alleged to have been sustained on 20 April 2007 and 25 April 2007. He also alleged injury to his neck, back, anxiety and/or depression as a result of the nature and conditions of his employment between 15 February 2007 and 25 April 2007. On 17 March 2010, the respondent filed a Reply. It denied employing Mr Ivsic.
The Commission listed the matter for conciliation and arbitration on 26 May 2010. At the arbitration, Mr Ivsic abandoned his claim for weekly benefits, but pressed his claim in respect of lump sum compensation and medical expenses. There was no oral evidence at the hearing. Both parties were represented by counsel, who made submissions that were received by the Arbitrator. At the conclusion of the proceedings, the Arbitrator delivered an extempore decision, in which she found for the employer, because she was not satisfied Mr Ivsic had discharged the onus of proving that there existed an employment contract between himself and the respondent. It is from this decision that Mr Ivsic now seeks leave to appeal.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 26 May 2010 records the Arbitrator’s orders as follows:
“1. That the applicant discontinues the weekly benefits claim.
2.   That the requirement to lodge a Notice of Discontinuance be dispensed with.
3. Award in favour of the respondent in respect of the applicant’s claim for expenses under s 60 of the Workers Compensation Act 1987.
4.   An order in favour of the respondent in respect of the applicant’s claim for lump sum compensation under s 66 and s 67 of the Workers Compensation Act 1987.
5.   No order as to costs.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred:
(a) in finding that Mr Ivsic was not employed by the respondent;
(b) in finding that the applicant’s employment was a substantial contributing factor to his injury;
(c) in finding that the applicant was not injured on 20 April 2007 and 25 April 2007 and failing to give proper weight to the evidence in the applicant’s statement;
(d) by misdirecting herself as to the evidence before her, and
(e) by entering an award that was against the evidence.

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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 submissions 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.

LEAVE

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.

The appeal was lodged on 23 June 2010, within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.

The monetary thresholds in s 352(2) are met.
Leave to appeal is granted.

FRESH EVIDENCE

Neither party seeks to rely on new or additional evidence on appeal.

EVIDENCE

Mr Ivsic

Mr Ivsic filed a signed statement of evidence dated 22 February 2010.
In 1985, he was injured in a motor vehicle accident. He suffered head and other orthopaedic injuries.
The year after the accident, in 1986, he became a member of the Croatian Club Limited, the respondent in these proceedings. At that point, he recalled having difficulty with his memory, in particular, remembering people’s names. He became known amongst patrons of the club as “Domobran”.
Prior to Christmas 1992, Mr Ivsic commenced living in premises owned by the club and located next door to it. He frequented the club on a daily basis. In 2003, Mr Ivsic obtained accommodation in Fairfield, after which time he visited the club usually twice a week, on Fridays and Sundays.
Mr Ivsic states that, on an occasion which he recalled was about one week to 10 days after his birthday on 11 February 2007, he sought and was offered employment at the club. He states that this occurred following a conversation with Josip Jaksic, whom he knew as the president of the Croatian Club. He states that Mr Jaksic said:
“All right, Domobran, you have a job. You can start work. Come every day and work for a couple of hours. You can clear the bottles and cans from the car park and whatever rubbish you can find from the car park area. Tuesdays and Wednesdays are not that important. You don’t have to come in on those days. You can stay at home. Go and see the manager each week and he’ll give you $50.”
Prior to this conversation, Mr Ivsic had never done any work at the Croatian Club.
Several days later, after collecting rubbish in the car park, Mr Ivsic approached Mr Jaksic, who was then in the company of another man at the bar. Mr Ivsic alleged that Mr Jaksic said, “This is Domobran. He works here. When he asks, give him every week $50. Domobran, this is Steve Thomas, he’s the general manager”.
Thereafter, Mr Ivsic alleges that he worked Saturdays, Sundays, Mondays, Thursdays and Fridays between 10.00 am and midday. He states that, from time to time, he was given directions from Steve Thomas to do certain work around the club, including hosing the concrete rubbish area. Mr Ivsic states that, on one occasion, he accompanied Mr Jaksic to a shop where they purchased a portable pump which Mr Ivsic later used to spray weedkiller around the boundary fence of the club and on a bamboo clump he had previously cut down.
Mr Ivsic states that, from time to time, the receptionist at the club would call him and ask him to come in on a Saturday or Sunday to assist with the cleaning if there had been a function the previous night. He states that, on the Easter long weekend in 2007, he received such a call from the person he knows as “Jenny”, who asked him to attend at the club to clean rubbish in the car park and around the bins, which he did.
Mr Ivsic alleges that, a few weeks prior to 20 April 2007, he had a discussion with Steve Thomas, who, whilst pointing to the industrial waste bins, the contents of which included numerous cardboard cartons, instructed Mr Ivsic to jump into the industrial waste bins, rip up the boxes and flatten them. Mr Ivsic states that, over the next few days, he saw cardboard containers continue to be stacked in the industrial waste bins and he continued to climb into the bins and flatten the cartons.
On 20 April 2007, at about 12.15 pm, Mr Ivsic was attempting to climb into one of the industrial waste bins which was half-filled with cardboard cartons. There was no ladder. He stepped on the concrete kerb and placed both hands on top of the bin, raising his leg about a metre onto a rib on the bin (used to fit the tines of a loading mechanism). He straddled the bin and lowered himself into it. After flattening the cardboard cartons and whilst attempting to exit the bin, Mr Ivsic alleges that he was injured. He states that while reversing the procedure I have identified, his leg slipped off the rib on the side of the bin and he fell “on my back, my left elbow, my lower back between my waist and tailbone, and I hit my head on the pavement, although the hit was not too hard”.
Mr Ivsic stated that, after the fall, he had pins and needles in his arms, extending into the fingers of each hand. He did not report the accident. He completed his work and went home. He believed the pain would be temporary. He continued working, cleaning up rubbish in the car park and doing some gardening work. On 25 April 2007, Mr Ivsic arrived at work between 10.00 pm [sic] and 10.30 pm [sic]. It was Anzac Day. He noticed a number of bins near the industrial waste bins. He described them as 50 cm in diameter at the top and 30 cm in diameter at the bottom, with a plastic handle on each side. There were more than 10 bins. He emptied the contents of some of the bins unassisted, but others were too heavy. They contained meat cuts or offcuts of meat. He spoke to an employee whom he knew as “Mandy” and asked for some assistance. Later, another girl, whom he knew as “Davorka” came out of the club and emptied rubbish into the bins. He again asked for assistance, following which another staff member, “Anna Roknic”, came out. Together, they grabbed one of the bins, grabbing one handle each, and emptied the contents into the industrial bin. They emptied four to five such bins, but, whilst attempting to empty another bin with Miss Roknic, he felt a severe pain in his shoulders and back, and he fell onto his buttocks.
Mr Ivsic states that he was paid $50 each week in cash after finishing work on a Friday, usually by the club manager, Steve Thomas. In addition to the $50, “Josip Jaksic gave me additional money. On one such occasion, I was given an extra $20 for helping to clean up after a function when local politicians attended the club.” On another occasion, he was given $20 for clearing a bamboo clump in the grounds of the club.
Mr Ivsic did not report the injury he sustained on 25 April 2007. He went home and rested. The following day, he saw Dr V Jakovac of Cabramatta. Dr Jakovac referred Mr Ivsic to a specialist, Dr V Maniam at Bankstown.
Mr Ivsic states that, on 28 April 2007, he was informed by, Josip Jaksic that there would be no further work for him. He has not been back to the Croatian Club since that time. Mr Ivsic is in receipt of social security benefits in respect of the injury sustained in the motor vehicle collision in 1985.

Josip Jaksic

In a statement dated 27 April 2009, in response to Mr Ivsic’s statement, Mr Jaksic stated that he had never asked Mr Ivsic to perform any work for the respondent. At no time was he an employee of the respondent. Mr Jaksic stated that Mr Ivsic appeared to be a homeless person. He was considered a nuisance and his attendance at the club annoyed guests and employees.
Mr Jaksic denied the suggestion that Mr Ivsic had reported any injury to him. He stated no employee of the club had ever been paid in cash, confirming that records are kept of all wages paid to each employee. He also stated that Mr Steve Thomas was employed as a general manager for about one year until about mid-2007, but his current whereabouts are unknown.

Mr Jaksic provided a further signed statement dated 8 April 2010. He was the president of the Croatian Club in 2007, 2008 and 2009. He denied offering Mr Ivsic employment at the Croatian Club. He states that the club employs Mr Daniel Vella to undertake cleaning and garden maintenance around the club. He is paid $350 per week. Mr Jaksic denied the alleged conversation between himself, Mr Ivsic and Mr Thomas alleged to have occurred in February 2007 regarding the payment to Mr Ivsic of $50 per week.
In so far as Mr Ivsic alleges that he started work at around 10.00 am and worked until midday, Mr Jaksic states that the club does not open until 12.00 midday, and staff usually do not start work until that time. Mr Jaksic denies ever having attended a shop in the company of Mr Ivsic for the purposes of purchasing gardening equipment.
Mr Jaksic rejected the suggestion that he ever gave Mr Ivsic money for working at the club. He denied the suggestion that Mr Ivsic had attended the club to clean up after a function involving local politicians. He stated that there were occasions, however, when he did give Mr Ivsic money. He said, “The only time I give Ivan any money, maybe $10 or $5 here and there many times, as I felt sorry for him and he said he had no money to buy drinks, and I did not want him asking and annoying the bar staff or patrons for money, so I gave him my own personal money”.
On one occasion, Mr Jaksic recalled Mr Ivsic complaining that he had won $1,000 playing poker machines which had been stolen from him by the club vice-presidents. Tom Milinich and Peter Frinov. The complaint was investigated and found to be untrue. Mr Ivsic had not won any money on the poker machines as alleged.
The allegation that Mr Ivsic’s employment was terminated on 28 April 2007 is also denied. Mr Jaksic did agree that Mr Ivsic was told he was no longer welcome at the club, as a result of certain unspecified litigation.
The suggestion that Mr Ivsic was employed by the club is untrue. He has never been employed by the club and has never been placed on its payroll.

Jennifer Boskovic

Ms Boskovic is the receptionist at the Croatian Club. She provided a signed statement dated 29 March 2010. Ms Boskovic had been employed by the club for 10 years. She is a part-time receptionist. She knew Mr Ivsic as a member of the club.
In the early part of 2007, she worked Saturdays and Sundays, and possibly Mondays and Tuesdays.
Ms Boskovic states that she knows personally all of the workers in the club and states that Mr Ivsic was never employed by the club. Her job includes reviewing the bundy cards to calculate hours worked by all employees. Mr Ivsic never had a bundy card and she never saw him working at or around the club.
Ms Boskovic states that she was aware that Mr Ivsic frequently complained of having no money and frequently asked people for money. On the occasions that he asked Ms Boskovic for money, she refused, stating that she was not permitted to give money to members of the club. Ms Boskovic denies the suggestion that she contacted Mr Ivsic to request him to attend at the club for the purposes of undertaking cleaning work. She does not recall seeing him at the club on a daily basis, recalling only that he was a regular patron on Saturdays in the public bar.
There were occasions when members of the club would volunteer to pick up rubbish in the car park from time to time, and occasionally would clean tables, but this was entirely volitional.

Ana Roknic

Ms Roknic is employed by the Croatian Club as a cook. She has been so employed for 15 years. She states that Mr Ivsic is not employed by the club. To her knowledge, many people help in the club, but are not employed by it.
In so far as the alleged injury on 25 April 2007, Ms Roknic stated:
“There are garbage bins at the back of the Croatian Club which we do fill and empty into the large industrial bin. I can say that I remember one day and only one time that I helped Domobran pick up a normal bin and tip it into a large industrial bin. It was only one time and one bin and that was it. At that time he did not fall over and I did not see anything like he has described [referring to Mr Ivsic’s statement].” (emphasis added)
Mrs Roknic stated that, apart from the incident on 25 April 2007, she had not seen Mr Ivsic working at the club, but added that she works in the kitchen and doesn’t see many people.
She went on to state that, if he had hurt himself, she would have recalled it.

Vesna Stolnik

Ms Stolnik provided a signed statement dated 1 April 2010. She stated she has been employed by the respondent for about eight years, although she did not specify in what capacity. At the time of the alleged events, she was working three days per week.
Although she does not know Mr Ivsic personally, she states that she has seen him at the club frequently. So far as she was aware, he was not an employee of the club. She has never seen him working in or outside the club.
She denied she had ever contacted Mr Ivsic to request him to come to the club to undertake any work in or around the club’s premises. She was unaware of any discussion by anyone at the club to the effect that Mr Ivsic worked there.

Jozo Rezo

Mr Rezo provided a signed statement of evidence dated 4 March 2010. Mr Rezo is a regular patron of the Croatian Club. He recalled an occasion in about February 2007 in the car park where he observed Mr Ivsic “working picking up rubbish, including some empty bottles”. He added that, on many occasions when he attended the club, he noticed Mr Ivsic working outside the club.
Mr Rezo stated that, on an occasion in March 2007 at the Riverwood Sports Club, Mr Ivsic, said, “I have to get to work at the Croatian Club on Saturday, Sunday and on public holidays. I need to buy a pushbike because buses don’t run regularly on weekends and public holidays”. Subsequently, Mr Rezo loaned Mr Ivsic a pushbike.

Steve Sacac

Prior to 1994, Mr Sacac had been a regular patron at the Croatian Club. In 1994, he had a dispute with the club over the alleged disappearance of the sum of $1,000 he had paid to become a life member.
Mr Sacac was in the habit of drinking at the Riverwood Sports Club with Mr Ivsic and Mr Rezo. He stated that, in about February 2007, Mr Ivsic ceased coming to the Riverwood Sports Club for their regular afternoon drinks.

In February 2007, at the Riverwood shopping centre, in conversation with Mr Ivsic, Mr Sacac said, “Where have you been lately? You have not been down to Riverwood Sports Club”. Mr Ivsic replied by saying, “I’ve been working as a cleaner at the Croatian Club”. Mr Sacac states that he did not see Mr Ivsic at the Riverwood Sports Club between February and April 2007. In late April 2007, Mr Ivsic told him that he had been injured at the Croatian Club when he fell off a bin and whilst lifting a heavy bin with another person.

Sandra Taylor

Sandra Taylor provided a signed statement dated 16 July 2008. Ms Taylor is the finance manager of the respondent. She has been employed by the respondent since January 2003 and is responsible for keeping records of staff, including wages, employment details, injury reports, and compensation claims for 50–55 workers, including casual and permanent employees.
Ms Taylor stated that there are two to three casual staff members who set up for functions on weekends and assist with cleaning up. They are young men about 17–20 years old and include Lubric Leon, Robert Popovic, Stjephan Curkovic and others. She stated that Mr Ivsic is not one of these casual staff members and is not an employee of the respondent.
The outside cleaning is carried out after weekend functions. It is only done late on Sunday or on a Monday morning. There is no outside cleaning, such as emptying garbage bins, done during the rest of the week.
The respondent maintains an injury/accident recording system where any injury suffered by a person at the club is recorded in an accident book. Ms Taylor checked the book and found no entry for Mr Ivsic. There were no entries for incidents occurring on 20 or 25 April 2007.

Radiological evidence

The radiological evidence is conveniently summarised in the report of Dr David Millons dated 29 March 2010.
“11 March 1986
X-rays cervical spine (report only seen)
Well marked osteospondylitic changes at C5-6-7 with lesser changes at C4-5.
Narrowing of the disc space most pronounced at C6-7.
X-rays left shoulder
Normal.
X-rays lumbar spine
Well marked narrowing of the L5-S1 intervertebral disc. Spurs have formed at the margins of the joint with early subchondral sclerosis.
30 May 2002
X-rays cervical spine (report only seen)
Restricted range of movement. C6-7 is slightly narrowed.
CT cervical spine
Posterior osteophytes are noted at C2-3. There has been a prominence of the C2-3-4-5-6 discs.
26 April 2007
X-rays lumbar spine (seen)
There are quite marked degenerate changes at L5-S1 with disc space narrowing and marginal reactive change. There are degenerate changes in the facet joints at L4-5-S1. There is some lipping on the upper margins of L3 and L4.
X-rays sacroiliac joints
Normal.
17 July 2007
CT scan lumbar spine L1 through S1 (seen)
There is some bulging of the L2-3-4-5 discs. At L5-S1 the gas [sic-disc] is degenerate with intradiscal gas. The disc bulges posteriorly causing some narrowing of the exit foramina.
22 January 2008
X-rays cervical spine (seen)
Degenerate changes are noted at C5-6-7 with some disc space narrowing, particularly at C6-7. There is no significant narrowing of the exit foramina.
X-rays left shoulder
Normal.
Ultrasound left shoulder
There is some thickening of the subacromial/subdeltoid bursa but no abnormality is noted in the rotator cuff.

14 January 2009
CT scan cervical spine (seen)
C2-3: Minor posterocentral disc bulge.
C3-4: Minor posterocentral disc bulge.
C4-5-6: No significant disc bulge.
C6-7: Anterior osteophyte formation. No significant posterior disc bulge.
C7-T1: No significant disc bulge.
The findings are consistent with some mild degenerative change.”

Dr Terry Kwong

Dr Kwong is a consultant physician and rheumatologist to whom Mr Ivsic was referred by his solicitor. He provided a report dated 23 October 2007. Dr Kwong noted complaints of continuing back and neck pain as a result of the injuries alleged to have occurred on 20 and 25 April 2007. He noted that Mr Ivsic had been involved in a motor vehicle accident in 1985 and had sustained a significant brain injury. He also suffered a fractured skull and fractured right clavicle. Mr Ivsic has been on a disability pension since 1993. He denied any significant back pain before commencing employment at the Croatian Club. Dr Kwong diagnosed a lumbar strain and an aggravation of cervical spondylosis. He formed the view that Mr Ivsic was unfit for any form of employment. He felt that his “current condition” was work-related and his employment was a substantial contributing factor. He listed his current complaints as constant low back pain, worse with walking and exertion, intermittent pain in both legs and paraesthesia in the toes and fingers, and constant stiffness in the neck. He assessed Mr Ivsic as suffering a 10 per cent whole person impairment.

Dr Vijay Maniam

Dr Maniam is an orthopaedic surgeon to whom Mr Ivsic was referred by his general practitioner, Dr Jakovac.
In a brief report dated 23 May 2007, Dr Maniam noted that Mr Ivsic had been suffering from pain in the lumbar spine for a prolonged period. He initially saw him for that condition in August 1995, but x-rays and CT scans obtained at that point did not reveal any abnormality. It was determined that he was suffering from a musculoligamentous strain, with aggravation of underlying degenerative disease.
Mr Ivsic’s symptoms gradually deteriorated and, in April 2002, repeat CT scans revealed an L5/S1 degenerative disc impinging on the S1 nerve root. He was treated conservatively with analgesics and anti-inflammatory medication.
On 18 May 2007, he was reviewed again and indicated that he had sustained a fall and then subsequently, several days later, fell again on his back. This, Dr Maniam noted, aggravated the lumbar spine symptoms. He noted that recent x-rays demonstrated a degenerate L5/S1 intervertebral disc. The examination exhibited restricted movements in the lumbar spine and tenderness at L5/S1, but no neurological deficiencies. Dr Maniam recommended anti-inflammatory medication.

Dr David Millons

Dr Millons is an orthopaedic surgeon who provided a forensic report dated 24 March 2010 at the request of the employer.
Dr Millons obtained a detailed history of Mr Ivsic’s employment history, the injuries sustained in 1985 in the motor vehicle accident, and the two injuries alleged to have occurred in April 2007. He provided details of his examination and review of the radiological investigations. He formed the view that Mr Ivsic suffered from an aggravation of degenerative changes of his neck and back as a result of a fall on 20 April 2007. He also suffered an aggravation of degenerative changes of the lower lumbar region as a result of the incident on 25 April 2007, but felt that the aggravation was not substantial.
Dr Millons noted that Mr Ivsic had been carrying problems with his neck and back over the years and had seen Dr Maniam for treatment. The problems with his neck and back had been documented radiologically. He felt that the problems reported by Mr Ivsic in his neck and back reflected those long-term degenerative changes, rather than specifically reflecting either of the incidents described by him in 2007, the effects of which, he thought, would have settled within a few weeks at most.
Dr Millons stated “hypothetically” that Mr Ivsic was only suited to work of a light, part-time nature, perhaps a couple of hours a day, avoiding excessive bending, lifting or working in awkward or confined spaces. He thought that he might be able to handle some light cleaning duties, such as those that he was doing at the club, but doubted that he could do much more than that. He stated that any restrictions placed on him were as a result of the longstanding problems he has with his neck and back.
Dr Millons accepted that there may have been a period of incapacity for a few weeks after those incidents, but considered any restriction in Mr Ivsic’s working capacity related to the underlying problems and did not emanate from either incident in April 2007. He assessed a whole person impairment of 11 per cent.

Mr Ivsic’s alleged delusional state

The employer submitted to the Arbitrator that Mr Ivsic suffered from a longstanding psychological condition which included delusional and paranoid features. The employer cites the following examples in support of its submission:
·   An MRI performed in 1992 showed post-traumatic gliosis of the antero-inferior aspects of the right and left frontal lobes, more prominent on the left. He had been prone to seizures, the last occurring in 1993, during which he would become elevated and then black out, losing time for several hours
·   An extract from the Bankstown Hospital emergency department records for 23 February 1996 indicates that Mr Ivsic gave a history that someone was trying to poison him, and that he was insisting on an analysis of soft drink that he had brought with him to the hospital.
·   Dr M Coffey from the Bankstown Mental Health Team wrote a report addressed to “Bankstown Health Service” on 22 February 1999 where he confirmed that he had been treating Mr Ivsic for a delusional disorder, with a background history of paranoid personality disorder, alcohol abuse and a closed head injury. He confirmed the CT scan evidence of post-traumatic gliosis of both frontal lobes. He reported persistent persecutory ideas connected with his compensation claim and previous assault.
·   A report from Dr Craig Presgrave, Mr Ivsic’s treating neurologist, dated 12 July 2002 to Dr Maniam, in which Dr Presgrave noted a history of seizures following the injuries sustained in the motor vehicle collision.
·   In a further report from Dr Presgrave to Dr Maniam dated 1 August 2002, it was noted that Mr Ivsic reported an episode of disorientation and amnesia for a period of six hours. He suggested to Dr Presgrave that he had been drugged by people who were fabricating evidence for his insurance claim. He also reported episodes at his bank, where he became confused when signing his name.
·   Dr Jakovac’s handwritten clinical notes reveal that, on 7 May 2003, Mr Ivsic reported having found himself in a “strange place”.
·   In a report dated 22 September 2005, Dr Ann Stephenson, psychiatrist, in a report to Dr Jakovac, recorded a history of Mr Ivsic insisting that his drinks had been spiked, and a belief that evidence was being fabricated against him. She said, “Mr Ivsic describes a complex delusional system involving misdiagnosis of his condition, causation of his seizures, sexual assault and application for re-opening his claim with regard to the accident”.
·   On 23 April 2007, Dr Jakovac’s notes state “Apparently week before Easter won $1,000 and find himself at home and had only $160 lately had no amnesia worry what had happened”.
·   On 26 April 2007, Dr Jakovac’s notes indicate that Mr Ivsic reported having been drugged after the 25 April 2007 incident.

· In a further report dated 14 July 2009 from Dr Craig Presgrave to Dr Jakovac, Dr Presgrave noted that Mr Ivsic had recently been investigated for the presence of Parkinson’s disease or parkinsonian syndrome. Ultimately, it was determined that he was not suffering from those conditions. Dr Presgrave confirmed that Mr Ivsic continued to take Epilim.

THE ARBITRATOR’S DECISION

The Arbitrator gave an extempore decision following the arbitration hearing on 19 May 2010 (with a Certificate of Determination issuing on 26 May 2010). The Arbitrator found that she was not satisfied, on the balance of probabilities, that Mr Ivsic was employed by the Croatian Club. The Arbitrator weighed the fact that the president and finance manager of the club categorically denied that Mr Ivsic had been employed by the club. I infer from her Reasons that she found that the alleged earnings of $50 per week, given that Mr Ivsic alleged he was required to perform up to 10 hours of work per week, was so low as to militate against a finding that a contract of employment existed.
The Arbitrator noted that Dr Jakovac’s clinical notes recorded that, on 23 April 2007, Mr Ivsic had visited the surgery and had reported that he had won $1,000 in cash, but could not account for the bulk of it after returning home. He made no mention of having sustained an injury on 20 April 2007. The Arbitrator noted that Mr Ivsic did not make any claim for compensation until 12 January 2009.
The Arbitrator was not satisfied that, even if employment had been established, there was any evidence of anxiety or depression. In so far as the neck and back are concerned, the Arbitrator found that, if injury had been proved in respect of incidents occurring on 20 and 25 April 2007, at most, it would have resulted in an aggravation of an underlying degenerative condition in the lumbar and cervical spine. The Arbitrator concluded that there should be an award for the respondent.

SUBMISSIONS

Appellant’s submissions

The appellant alleges that the Arbitrator failed to take into account:
(a)     Mr Ivsic’s evidence regarding the formation of a contract of employment (page 48 of the Application);
(b)     Mr Rezo’s evidence that, in or about February 2007, he saw Mr Ivsic working in the car park and noticed him working outside the club on many occasions;
(c)     Mr Rezo’s evidence of his conversation with Mr Ivsic regarding Mr Ivsic working at the club on Saturdays and Sundays, and needing a pushbike to get to work, and
(d)     the evidence of Ana Roknic concerning her recollection of assisting Mr Ivsic on one occasion empty a normal bin into a large industrial bin.
A submission is made concerning the Arbitrator’s treatment of the evidence of the president, Mr Jaksic, and the finance manager, Sandra Taylor. Whilst it is not clear from the appellant’s submissions, I infer that it is submitted that the Arbitrator placed undue weight on the evidence of the president because, as president of a large club, he could not be expected to know every employee of the club. In respect of the evidence of Ms Taylor, it is submitted that she could not be expected to know that Mr Ivsic received payments in cash, as those payments were made by Steve Thomas, the general manager or assistant manager of the club. The appellant submits that this submission is supported by the absence of a statement by Mr Thomas.
The appellant submits that the Arbitrator erred in not finding that Mr Ivsic was a worker, such a finding being contrary to the evidence of Mr Rezo and Ms Roknic.
The appellant submits that the Arbitrator erred in not finding that Mr Ivsic was injured on 20 April 2007 and 25 April 2007:
(a) due to the fact that Mr Ivsic did not report the accident because he thought its effects would be temporary;
(b) Dr Jakovac’s notes of 26 April 2007 include a history which is consistent with back injury being sustained on 25 April 2007, and

(c) Dr Maniam’s history obtained on 18 May 2007 is consistent with Mr Ivsic’s allegations of an initial fall followed several days later by the history of a subsequent fall injuring his back.

The appellant submits that the Arbitrator “has not taken into account” the evidence of Dr Kwong, in particular, his opinion that the condition is work-related.
The appellant further submits that the injuries described by Mr Ivsic were sufficient to cause aggravation of a previously asymptomatic degenerative condition in the neck and back. In those circumstances, the Arbitrator must refer the claim for whole person impairment to an approved medical specialist (WorkCover Authority NSW v Evans [2009] NSWWCCPD 95).

Respondent’s submissions

The respondent submits:
·        The preponderance of evidence is such as to negate the effect of any evidence given by Mr Ivsic’s friend, Mr Jozo Rezo.
·        The preponderance of evidence is such as to negate Mr Ivsic’s allegations, particularly having regard to his clinical history as revealed in his GP’s notes.
·        The only evidence of cash payments to Mr Ivsic are found in his statement.
·        The absence of a statement of Mr Thomas is explained by his current whereabouts being unknown.
·        The evidence of Ana Roknic that she assisted Mr Ivsic on one occasion does not of itself substantiate an allegation of “employment”.
·        The respondent relies on the evidence of Sandra Taylor concerning the employment of Lubric Leon, Robert Popovic and Stjephan Curkovic and others as employees of the club responsible for weekend set-up of functions and subsequent cleaning duties. Her evidence confirmed that Mr Ivsic was not one of the club’s employees.
The respondent relies on Mr Jaksic’s evidence to the effect that Mr Ivsic was not an employee of the respondent. He appeared to be a homeless person who attended the club from time to time. There was never any discussion concerning his employment by the club. He was considered by Mr Jaksic to be a nuisance and not a guest or employee. He felt sorry for Mr Ivsic and occasionally gave him small amounts of money “to help him out”. He regarded the payments as a personal gift. The club records do not reveal Mr Ivsic being an employee. No employees were ever paid in cash. At no time did Mr Jaksic ask Mr Ivsic to perform any work for the club.
The respondent relies on the evidence of Jennifer Boskovic, who confirmed that Mr Ivsic was never an employee of the club, but was well-known for asking people for money. She denied Mr Ivsic’s allegations that she had contacted him to attend the club to undertake cleaning activities.
Ms Roknic confirmed that, on one occasion, she helped Mr Ivsic put a bucket of rubbish into a large industrial bin, but she denied he sustained any injury on that occasion

Vesna Stolnik denied that Mr Ivsic was employed at the club.
The respondent submits that the respondent’s statements contain material that accords with what is found in the GP’s clinical notes, ie, the appellant in vague and confused terms tells his GP of winning money on poker machines and of being assaulted and/or robbed and the fact that he was contemplating bringing a claim against an insurance company with respect to an unspecified issue and would receive a large payout as a consequence.
The respondent submits that the Commission would not be satisfied that the applicant has established the existence of an employment relationship.

Issues for determination
1. Was there a contract of employment in existence?
2. Was Mr Ivsic injured as alleged?

3. Are the effects of any injuries, or the aggravating effects on pre-existing conditions, continuing?

Was a contract of employment entered into?

It is a fundamental fact that, for there to be an employment relationship, there must be a contract of employment. Mr Ivsic must establish that the arrangements between him and the club are such as to evidence an intention by the parties to enter into legal relations (Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197 at 201).
The factors in favour of a finding that a contract of employment was in existence are:
· Mr Ivsic clearly stated at [21] that a contract was entered into and provided details as to where and when it was entered into and as to its terms.
· Mr Ivsic stated that for several months he undertook duties that were consistent with the alleged contract of employment and received payment of $50 per week in cash.

· Ms Roknic stated that, in respect of the injury alleged to have occurred on 25 April 2007, she assisted Mr Ivsic to tip rubbish from a smaller bin into a large industrial bin.

· Mr Rezo stated that he saw Mr Ivsic in about February 2007 picking up rubbish and empty bottles in the car park. He confirmed Mr Ivsic’s statements to him in March 2007 to the effect that he was employed at the Croatian Club and provided him with the use of a pushbike to enable him to get to and from the club on weekends in the absence of adequate public transport facilities.

· Mr Sacac’s statement to the effect that, between February and April 2007, Mr Ivsic stopped frequenting the Riverwood Sports Club, stating that Mr Ivsic told him he had undertaken employment as a cleaner at the Croatian Club.

For the following reasons, I do not accept that activities undertaken by Mr Ivsic around the club premises were performed under a contract of employment with the respondent.
Mr Ivsic is a man who suffered a significant brain injury in a motor vehicle accident in 1985. He has been prone to seizures thereafter, with episodes of amnesia. Since 1999, Mr Ivsic has been treated from time to time for a delusional disorder, with a history of paranoid personality disorder, alcohol abuse and the effects of his brain injury.
The effects of the brain injury on Mr Ivsic suggest that his evidence needs to be carefully considered and weighed with all of the surrounding evidence to test its reliability.
Mr Jaksic denied the alleged conversation in February 2007 with Mr Ivsic said to have given rise to the contract of employment. He denied that Mr Ivsic had ever been an employee of the respondent, and said that he had never been requested to do any work for the club.
There are a number of reasons why Mr Jaksic’s evidence ought to be preferred to that of Mr Ivsic. Mr Jaksic regarded Mr Ivsic as a nuisance, and his presence at the club annoyed patrons and staff. Mr Jaksic gave Mr Ivsic small amounts of money from time to time as a gift because he felt sorry for him and to stop him from annoying patrons and bar staff by asking for money.

Other evidence that would militate against accepting that there was a contract of employment included the employment by the respondent of three casual employees, Mr Leon, Mr Popovic and Mr Curkovic, who undertook duties of setting up for weekend functions and cleaning up after them. It would have been illogical for the respondent to “employ” Mr Ivsic in the circumstances he alleged, when there were already several staff employed by the respondent who could have undertaken the duties he claims he was employed to do.
The absence of any employment records for Mr Ivsic is another relevant factor. There were no bundy cards for him, as there were for other staff members. If Mr Ivsic had been employed on a permanent basis, there is no apparent explanation for why he was exempted from the formalities that applied to other staff.
Ms Roknic denied that Mr Ivsic was employed by the club, although I accept that her employment in the kitchen may have impeded her capacity to observe what was going on in and around the club.
Ms Boskovic confirmed Mr Jaksic’s evidence regarding Mr Ivsic’s propensity to ask staff for money. I infer that Ms Boskovic is the person referred to by Mr Ivsic as “Jenny” at [25]. Ms Boskovic specifically denied Mr Ivsic’s allegation that it was she who called him and asked him to attend the club over the Easter long weekend in 2007. Ms Stolnik also denied ever asking Mr Ivsic to attend the club to clean up after functions.
In my view, Mr Ivsic’s reliability as a witness was adversely affected by the findings of an investigation of his complaints of having cash stolen from him, the proceeds of alleged poker machine winnings. When his complaints were investigated, it was discovered that the funds had not been won as alleged, and his complaints were found to be unsubstantiated. His report to his doctor soon after that incident suggested that Mr Ivsic suffered a degree of confusion over this incident.
The respondent submitted to the Arbitrator and on appeal that the worker’s presentation is consistent with him suffering from a confused and delusional state, giving rise to a perception by him of an employment relationship. Mr Ivsic has a long history of paranoia, delusions and amnesia. At about the time of the alleged injury on 20 April 2007, Mr Ivsic appears to be either amnesiac or confused about his alleged poker machine winnings. His report to his general practitioner on 26 April, the day after the Anzac Day incident, is highly suggestive that he was delusional at that time, reporting that he had been drugged.
In the absence of the corroborative evidence of Ms Roknic as to the events of 25 April 2007 and the evidence of Mr Rezo, I would have no hesitation in finding that there was no contract of employment in existence between Mr Ivsic and the club. Their evidence lends weight to his allegations that he was indeed undertaking activities around the club. However, weighing all of the evidence, and accepting that Mr Ivsic may well have assisted Ms Roknic on 25 April 2007, I am not persuaded that that assistance was pursuant to a contract of service. Whilst Mr Ivsic may have assisted from time to time (as confirmed by Ms Roknic’s evidence), that does not establish that he did so pursuant to a contract of service.

It is probable that the evidence of Mr Steve Thomas, whom the worker states was responsible for providing him with weekly cash payments, may have assisted in resolving the issue of whether Mr Ivsic was employed by the respondent. Regrettably, Mr Thomas’s current whereabouts are unknown. Consequently, he has not provided a statement or given evidence, and I draw no adverse inference from that fact.
The Arbitrator drew an inference that the terms of the alleged contract were inherently improbable, requiring the worker to work for up to 10 hours per week for the modest sum of $50. That finding was open to her on the evidence, and I agree with it.
Given the effects of Mr Ivsic’s brain injury, I have doubts as to the reliability of his evidence. In contrast, Mr Jaksic’s evidence is clear and logical, and, in my view, is to be preferred. Having reviewed all of the evidence, I have come to the conclusion that the Arbitrator was correct to find, on the balance of probabilities, that there was no contract of employment between Mr Ivsic and the respondent. It may well be that Mr Ivsic felt obligated to undertake tasks around the club from time to time, and did so in recognition of receiving small cash gifts. Although Mr Ivsic may have understood these to be wages, clearly they were not. There is no corroborative evidence that Mr Ivsic in fact received cash payments each week and I do not accept that he did.

I accept that Mr Jaksic gave Mr Ivsic money from time to time. However, I accept Mr Jaksic’s evidence that that money was a gift so Mr Ivsic could buy drinks, and to prevent him from annoying club members. Those payments were not payments made in consideration of Mr Ivsic working at the club. I therefore do not accept that any contract of employment existed between the respondent and Mr Ivsic. To the extent that Mr Ivsic may have cleaned up from time to time, he did so as a volunteer, not as an employee of the club.

Having found that Mr Ivsic was not employed by the respondent, it is unnecessary to consider the remaining issues in dispute. However, if I am wrong on the employment issue, then I make the following additional findings.

Injury 20 April 2007

Mr Ivsic states that, on 20 April 2007, he fell whilst attempting to extricate himself from an industrial waste bin in which he had been compacting cardboard cartons. There were no witnesses to the incident. Mr Ivsic does not allege he was incapacitated as a result of the alleged injury. He did not report the incident until he filled in a claim form on 12 January 2009. He stated that, at the time of the injury, he believed its effects would be temporary, and he continued working.
When Mr Ivsic visited his general practitioner on 23 April 2007, just days after the alleged incident, he made no reference to it at all. In the absence of any objective evidence to corroborate Mr Ivsic’s belated complaints of injury on that occasion, I am not satisfied that Mr Ivsic has discharged the onus of proof that he was injured in the circumstances as he alleges on 20 April 2007.

Injury 25 April 2007

On 25 April 2007, Mr Ivsic alleges that he was injured whilst emptying the contents of a garbage bin into a larger industrial waste bin. He stated that, on this occasion, he was being assisted by Ana Roknic. Ms Roknic confirmed that there was an occasion when she assisted Mr Ivsic to empty waste bins in the manner described by him, but she stated that, on that occasion, Mr Ivsic did not complain of having suffered an injury. When he attended his general practitioner on 26 April 2007, he stated that he was suffering from back pain from “moving rubbish in club”.
I am satisfied on the evidence of Mr Ivsic and Ms Roknic that Mr Ivsic was injured in the circumstances as alleged on 25 April 2007, save that he performed that activity as a volunteer, not as an employee.

Allegation of anxiety and depression

In his application, Mr Ivsic pleaded that, in addition to the injuries to his neck and back, he suffered anxiety and/or depression as the result of the nature and conditions of employment. There was no evidence at all in relation to that allegation and I am not be satisfied that Mr Ivsic has suffered anxiety and/or depression as a result of his injuries or the nature and conditions of his employment.

Are the effects of the injuries continuing?

Mr Ivsic relies on the evidence of Dr Terry Kwong, his treating orthopaedic surgeon, who expressed the view that, as a result of the injuries alleged to have occurred on 20 and 25 April 2007, Mr Ivsic suffered a lumbar strain and an aggravation of cervical spondylosis. Dr Kwong considered the condition “work-related”. He acknowledged the existence of the radiological evidence of longstanding degenerative changes in Mr Ivsic’s neck and back, yet he did not explain why, given the diagnosis of a simple lumbar strain and an aggravation of the degenerative changes in the neck, the effects of those conditions should be accepted as ongoing.
Dr Maniam noted that Mr Ivsic had been suffering from pain in his lumbar spine for a prolonged period. He considered that Mr Ivsic suffered from a musculoligamentous strain and an aggravation of underlying degenerative disease. Dr Maniam considered that the injuries sustained in April 2007 aggravated the lumbar spine symptoms. He recommended conservative treatment and anti-inflammatory medication.

Dr Millons formed the view that Mr Ivsic suffered from an aggravation of degenerative changes of his neck and back in the fall on 20 April 2007. He considered that he suffered an aggravation of degenerative changes in his lower lumbar region as a result of the incident on 25 April 2007, but felt that the aggravation was not substantial. He considered that the complaints of both neck and back pain were the result of long-term degenerative changes, rather than specifically reflecting either of the incidents described in 2007, which he thought would have settled within a few weeks at most.
The Arbitrator found that, if injury had been proven, at most it would have resulted in an aggravation of the underlying degenerative condition in the lumbar and cervical spine.

There is no dispute on the medical evidence that Mr Ivsic suffered from a lumbar strain and/or an aggravation of pre-existing degenerative changes in his lumbar and cervical spine in April 2007. However, Mr Ivsic had been receiving treatment for those degenerative changes for many years from Dr Maniam. The radiological investigations confirm the presence of degenerative changes in the neck and back which, according to Dr Millons, have not changed greatly over the years.

Taking all the medical evidence into account, I would prefer the evidence of Dr Millons that such problems as Mr Ivsic may now be suffering in his neck and back are likely to reflect those long-term degenerative changes, rather than the effects of the alleged injuries. I would therefore not be satisfied that the effects of the alleged injuries sustained in April 2007 are continuing. I agree with the Arbitrator’s conclusions in that respect.

CONCLUSION

Having conducted a review on the merits, I conclude that the Arbitrator was correct to find that the appellant was not employed by the respondent. The Arbitrator’s conclusion that there is an award for the respondent is the true and correct decision on the evidence.

DECISION

The decision of the Arbitrator dated 26 May 2010 is confirmed.

COSTS

No order as to costs of the appeal.

Judge Keating
President
29 September 2010

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

ASSOCIATE