Khatawi v Australian Glazing Solutions Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Khatawi v Australian Glazing Solutions Pty Ltd [2023] NSWPIC 355
APPLICANT:	Hamad Khatawi
RESPONDENT:	Australian Glazing Solutions Pty Ltd
Member:	Catherine McDonald
DATE OF DECISION: DATE OF AMENDMENT:	21 April 2023 19 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; left knee injury; injury not reported and disputed by employer; lack of note of injury by general practitioner; Nominal Defendant v Clancy; need for logical and probative evidence; Onesteel Reinforcing Pty Ltd v Sutton; credit issues with respect to respondent’s evidence; Malco Engineering Pty Ltd v Ferriera, Brines v Westgate Logistics Pty Ltd; no medical evidence obtained by insurer; Held – award for the applicant for weekly compensation and section 60 expenses.
determinations made:	The Commission determines: 1. The respondent is to pay the applicant weekly compensation: a. pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act) from 8 January 2022 to 8 April 2022 at the rate of $1,187.50 per week, and b. pursuant to s 37 of the 1987 Act from 9 April 2022 to date and continuing at the rate of $1,000 per week. 2. The respondent is to pay the applicant’s s 60 expenses. 3. The decision is amended in paragraphs 5 and 95 pursuant to s 57 of the Personal Injury Commission Act 2020.

STATEMENT OF REASONS

BACKGROUND

Hamad Khatawi was employed by Australian Glazing Solutions Pty Ltd (AGS) when he suffered an injury in December 2021. He claims weekly compensation and medical expenses in respect of an injury caused when he was carrying a heavy glass door with a colleague. He says that his left leg slipped, causing his left knee to twist and that he suffered injuries to his left and right knees and right ankle and a consequential condition in his lumbar spine.
Australian Glazing denies that Mr Khatawi suffered an injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a preliminary conference on 21 February 2023, the Application to Resolve a Dispute (ARD) was amended to plead that Mr Khatawi suffered a consequential condition in his lumbar spine.
The claim was listed for conciliation conference and arbitration hearing on 27 March 2023 when Mr Morgan of counsel appeared for Mr Khatawi and Ms Goodman of counsel appeared for AGS.
The claim in the ARD was further amended to:
(a) plead the date of injury as “on or about 8 December 2021”, and
(b) in the injury description, to delete everything after the close bracket in the third line so that the only injury with which the Commission is concerbed is the injury to Mr Khatawi’s left knee.
I was informed that Mr Khatawi sought only a “general order” for s 60 expenses and was not actively pursuing surgery proposed by A/Prof Papantoniou to his left knee.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply;
(c)    Mr Khatawi’s Application to Admit Late Documents dated 16 March 2023, and
(d)    AGS’s Applications to Admit Late Documents dated 6 March and 21 March 2023.
There was no oral evidence.
Mr Khatawi signed his statement on 5 September 2022. It is substantially similar to a statement provided to AGS’s factual investigator dated 9 June 2022, though more detailed.
Mr Khatawi said that he began working with AGS in 2021 as an installer of aluminium windows and doors. He commenced on a trial basis for three months and was given on the job training. At the end of the training period he started to receive $1,250 each week in his pocket being $500 paid and recorded on his payslip and $750 paid in cash. He worked full time on five days per week and sometimes worked overtime for which he would be paid cash. He worked in a two person team as an installer.
On 7 December 2021 a member of another team (Jonas Pacevicius) who was responsible for delivery was away and he was asked by his supervisor to work in his role. The supervisor on site was Kadhum Kawari. And the other worker was away Mr Kawari asked Mr Khatawi to work with Saliba Shammo and carry the windows and doors. Mr Khatawi said he told the supervisor that he not have strength in his left arm to carry the heavy weights because of a previous injury.
Mr Khatawi went to level 6 or 7 of the job site where he found dozens of doors and windows which were stacked and ready to be moved around the level. He attached a photograph of the doors at that job site. He said that his work as an installer does not require him to lift and manoeuvre the heavy frames which contain double glazed glass. His usual work involves preparing the frames for the doors and the sliding tracks, applying silicon and cleaning – preparing the area so that the delivery team can carry the doors and put them into the frame.
On the day of the injury, Mr Khatawi was working on a residential building at Hurstville. He said that as he was manoeuvring the door with Mr Shammo onto a raised section between the unit and its balcony, his left leg slipped and his left knee twisted violently. He dropped the door and Mr Shammo had his hand caught and sustained a laceration. Mr Khatawi said that he could not walk and that Mr Shammo helped him to a pile of gyprock sheets where he sat and elevated his leg. He rested for some time before attempting to put pressure back on his knee. He pushed through and worked for the rest of the day.
Over the next few weeks Mr Khatawi continued to work with difficulty and the pain was constant but controlled. He did not tell his employer about the injury because he was worried about losing his job and he was hopeful of a pay increase. He continued to work until 7 January 2022.
Mr Khatawi said that a few weeks later he went to see Dr Gregor at Fairfield Chase Medical and Dental Centre. His knee was swollen and he was referred for an X-ray and an ultrasound and he developed an infection. He was then referred for an MRI scan. Mr Khatawi said that he also has pain in his back, right knee and both ankles but his main problem is his left knee.
Mr Khatawi started to see a new general practitioner Dr Marcus at Edmonton Park. Dr Marcus referred Mr Khatawi for an injection into his left knee and to A/Prof Papantoniou who has provided a second injection into his knee. Mr Khatawi was also referred to Dr Hanna, a chiropractor and rehabilitation consultant.
Mr Khatawi said that he did not make a claim because he did not know that he had a right to bring a claim. He made a claim after speaking to a friend. He said that he attempted to work after leaving AGS – working for a period of about 10 days in January and two or three days in May but he was unable to continue.
Mr Shammo provided a short statement on 24 May 2022. He said that he personally witnessed this decays injury whilst lifting a heavy aluminium frame at work on 7 December 2021 he said that he was carrying one side of the door and Mr Khatawi was carrying the other side. Mr Khatawi slipped and dropped the door and it caused Mr Shammo’s hand to jam between two of the door panels. He could see that Mr Khatawi was in a lot of pain and helped him to a pile of gyprock where he sat down for a while. After some time, he continued to work. Mr Khatawi stopped working for the company a short time later.
Raouf Hamdamnia provided a short statement dated 21 August 2022. He said that he was present when Mr Khatawi was lifting glass door panels and injured his knee and back. He was present on 7 December 2021. He said that he also witnessed Kasen, the supervisor, ask Mr Khatawi to lift the doors and Mr Khatawi told him that he could not do this as he had a problem with his left hand but Kasen said to Mr Khatawi that he was to lift the panels anyway.
Mr Khatawi prepared a further statement dated 8 March 2023. He said that when nominating the date of injury on 7 December 2021, he had inadvertently relied on a text message which he had misread. He attached to chain of text messages received from his supervisor whilst working for AGS. The text messages were sent each day and told him what work site to be at on the following day. He said he misread that he was working at Hurstville on 7 December 2021 and that he was in Lane Cove on that day. He said that his injury occurred at Hurstville and therefore believes that it happened on 8 or possibly 9 December 2021. The text messages show that Mr Khatawi was asked to work at Hurstville on 8, 9 and 10 December.

AGS’s evidence

AGS relied on a statement signed by its Human Resources and Finance Manager Teneile Shaw on 6 July 2022. Ms Shaw said that Mr Khatawi was employed as a Window Team Member Level 1 on a casual basis. He was paid $25 per hour and earned approximately $500 per week.
Ms Shaw said that Mr Khatawi was working under direction of team leader Kadhum Kawari and with Jonas Pacevicius. She said that on 7 December 2021 the team was working at Hurstville and that Mr Khatawi was asked to perform his normal tasks moving material around the job site. She said that he did not tell Mr Kawari or anyone on the management team about a problem with his left arm. Ms Shaw said that on 7 December 2021 Mr Shammo was part of a four man crew that included Mr Pacevicius and Mr Kawari but Mr Shammo did not report any injury to his hand. She said that Mr Khatawi would not have been manoeuvring the door frame which would have been done by Mr Pacevicius and Mr Shammo. Ms Shaw said that Mr Khatawi did not report an injury. His employment was terminated because several major projects were delayed or cancelled and there was no work available for him.
Ms Shaw said that she had been advised by staff that social media post suggested Mr Khatawi was working. In June 2022 she received an anonymous letter “allegedly written by one of our employees” which stated that employee’s view of Mr Khatawi’s claim. The letter is attached to her statement and said that the writer knew of two places that Mr Khatawi had worked “after quitting his job in your company.” She said that two other staff members received telephone calls saying that Mr Khatawi’s claim was fraudulent and that she was present during one of the calls.
Ms Shaw responded to an email request for information by a factual investigator. She said that Mr Khatawi commenced working on 16 October 2021 and ceased on 7 January 2022. He worked 20 hours per week. The claim was lodged on 13 May 2022. At the beginning of April, Mr Khatawi contacted the company and asked if there was any work available.
On 6 January 2022 Mr Sbeanaty, a director of AGS wrote to Mr Khatawi and said:
“Due to a dramatic change within the industry and some of our projects being put on hold, we are unable to continue your employment at this time with Australia Glazing Solutions.
Your final day with the company will be Friday 7th January 2022.
We would like to thank you for your hard work and commitment to Australian Glazing Solutions. We will be in touch when our projects begin again to see if you are available.”
Kadhum Kawari provided a very short statement dated 24 February 2023 in which he said that “as previously mentioned in my last communications and statement” he was unaware of Mr Khatawi suffering an injury and did not have any recollection of Mr Khatawi discussing previous injuries. He said:
“On the said date of incident, 7th December 2021, I was not even working on the same site as Hamed. He was working at our project in Lane Cove NSW and I was working at another project at Hurstville NSW.”
There is no earlier statement or other communication from Mr Kawari in the file.
Ms Shaw prepared a further statement dated 24 February 2023. She said that company records showed that Mr Khatawi was working with Mr Pacevicius, Mr Shammo and Mr Kniuksta at Lane Cove on 7 December 2021 and she attached the timesheets. She said that due to the company’s requirements during the pandemic, all timesheets were to be accompanied by a photograph showing the workers on site and that a photograph on that day shows those four workers. She said that “if required” she can provide timesheets and photographs on subsequent days which do not show bandages or braces on Mr Khatawi’s legs.
A “sign in and sign out sheet” for 7 December 2021 is headed “Kira Lane Cove” and contains entries for David, Hamed, Saliba and Jonas. It is accompanied by a blurry photograph of four men. The date and location also appear under the photograph.
Ms Shaw said:
“At the beginning of December to assist Hamed with some financial issues he was having the Director of the company agreed to pay Hamed's wages in a split form, $500 through our payroll system and $750 cash. This only occurred for a short period of time to assist him through tough time.”
On 8 March 2023, AGS’s solicitor wrote to Ms Shaw confirming a telephone call and noting the contents of Mr Khatawi’s supplementary statement. In response, Ms Shaw said that Mr Khatawi was working at Hurstville on 8 and 9 December 2021 “as per photos attached”. She said that “as per photos attached” Mr Pacevicius was working on those days but was not working at Hurstville.
The first photograph is captioned “Sorry wrong photo Hurstville 8-12-21” and shows eight men in a “selfie” taken by a man in front with seven men behind him. Superimposed on the photograph are what appear to be two photographs of a sign on and off sheet which lists nine given names and shows that Hamed worked on that day as did Raouf and Kazen.
The second photograph appears to have been taken in the same way. It has no caption and shows seven men. Eight names including Hamed appear on a superimposed time sheet. The date is cut off but may be 9 December 2021. Mr Khatawi’s name is listed on a timesheet for 10 December 2021 which is captioned “10/12/21 Hurstville Jacob and hamed no lunch”.
A further photograph headed “AGS – Terence” shows a timesheet for 10 December 2021 at a location where “Jonas” and “Saliba” worked and a photograph of four men. It is captioned “SJ – Hurtsville>> Liverpool” and “TG-Liverpool.”
A fourth photograph shows six men. A timesheet for 8 and 9 December 2021 shows six names including Saliba and Jonas. A hand drawn line appears which appears to strike through the entry for Saliba.

Medical evidence

The first time Mr Khatawi went to Fairfield Chase Medical Centre following the injury was on 1 February 2022 when he complained of pain in his anal region. That visit led to treatment by Dr MacKenzie, including emergency admission for incision and drainage of a perianal abscess on 24 February 2022. The last report from Dr MacKenzie is dated 21 March 2023 when he recommended that Mr Khatawi be waitlisted for examination under anaesthetic to consider if there was an underlying fistula.
On 18 April 2022 Mr Khatawi told Dr Gregor during a telehealth consultation that he had had pain below his left patella for the last three days. Dr Gregor noted that there was no fall and no trauma. Mr Khatawi attended the surgery on the same day and a tubi grip bandage was applied. On 23 April Dr Gregor diagnosed prepatellar bursitis and referred Mr Khatawi for an ultrasound and an X-ray. Mr Khatawi saw Dr Gregor about his knee again on 23 April and 5 May when he was referred for an MRI scan.
Dr Khatawi saw Dr Hanna, chiropractor, on 10 May 2022 in respect of the abscess – which he attributed to work – and a left knee injury from lifting doors and windows. Mr Khatawi saw him regularly until September 2022.
Dr Hanna prepared a report dated 11 November 2022 in which he said that Mr Khatawi suffered an injury on 7 December 2021 lifting heavy aluminium door frames. He sustained injuries to his lumbar spine, bilateral knees and bilateral ankles. He considered that employment was a substantial contributing factor to the injuries due to the repetitive lifting carrying of heavy aluminium frames.
Mr Khatawi began to consult Dr Marcus on 20 May 2022.
Dr Marcus provided two certificates of capacity dated 20 May 2022. In the first he said that Mr Khatawi had no current work capacity as a result of an injury on 7 December 2021. The cause of injury was described as:
“Was lifting heavy glass panels into frame, when his knee pivoted and twisted under the weight of the panel. Panel was being lifting with co worker Mr Saliba.”
In the second certificate of the same date, Dr Marcus described the cause of injury as:
“States for the last 6-12 months has been having increasing pain in his left knee secondary to very heavy lifting and twisting at work. States window frames are
50-100kg heavy and he has to pivot all the time under strain. As a result he has developed knee pain.”
Dr Marcus’ notes do not appear in the file and the difference between the certificates is not explained.
Dr Marcus described his treatment in a report to AGS’s insurer on 22 June 2022. He said that he first saw Mr Khatawi on 20 May 2022 and obtained a history of an injury when trying to lift some heavy aluminium frames with his colleague Mr Saliba. Dr Marcus said that Mr Khatawi had gone to his general practitioner who did not deal with workers compensation injuries. An MRI scan showed suprapatella bursitis, a minimal intrasubstance tear of his ACL, a horizontal tear of the medial meniscus, grade 4 osteochondral injury to the posterior weight-bearing surface the lateral femoral epicondyle and a chronic Baker’s cyst. Dr Marcus recommended an ultrasound guided injection for temporary pain relief and referred Mr Khatawi to A/Prof Papantoniou. The injection provided some temporary relief.
On 8 June 2022 Mr Khatawi complained that his right knee and ankle was sore and the pain was increasing since the injury. Examinations of his right knee demonstrated tenderness of the lateral aspect overlying the lateral collateral ligament. When MRI scan on 16 June 2022 showed a mild ACL strain and a non-specific lateral femoral condyle osteochondral injury.
Examination of Mr Khatawi’s right ankle was consistent with a ligamentous injury and an outro sound showed a “complete tear ATFL, CFL sprain and tibialis posterior tenosynovitis”. On 17 June 20 22 Mr Khatawi raised concerns about his left ankle and examination was suggestive of mild synovitis. He referred Mr Khatawi for an ultrasound.
In answer to the insurer’s questions (which are not set out) Dr Marcus said that they left knee injury was clearly injured during work “and tested to buy his colleague.” He said that the injury was consistent with a twisting injury under a heavy load and that the right knee and ankle conditions may be “secondary injuries due to the chronicity of Hamad’s injuries and lack of treatment so far.” Dr Marcus referred Mr Khatawi for ultrasound guided injections to his right knee and ankle and recommended physiotherapy. He said that Mr Khatawi was not fit to work, also noting that he had poor English and few transferrable skills.
Dr Marcus expressed the same opinions in a report to Mr Khatawi’s solicitors on 24 September 2022. He considered that surgery proposed by A/Prof Papantoniou was appropriate and necessary.
The only certificates of capacity in the file state that Mr Khatawi has no current work capacity.
A/Prof Papantoniou saw Mr Khatawi on 3 August 2022. He saw Mr Khatawi with an interpreter and recorded that he worked as a glass installer for five or six months before suffering an injury. The history he set out is consistent with Mr Khatawi’s statement. He noted that Mr Khatawi continued to complain of medial and lateral left knee pain and that he has difficulty walking safely. A/Prof Papantoniou said that X-rays of Mr Khatawi’s left knee were essentially normal but an MRI scan showed a cleavage tear of the medial meniscus and a large osteochondral injury to the lateral femoral condyle. He recommended non-operative treatment with at least one more steroid injection. He recommended surgery if the pain returned being left knee arthroscopy, partial medial meniscectomy, chondroplasty and microfracture technique.

AGS’s insurer did not obtain any medical evidence – either with respect to causation or Mr Khatawi’s capacity.

Dispute notices

AGS’s insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 26 July 2022. While a number of disputes are raised, the notice relates only to the claim that Mr Khatawi suffered a perianal abscess. The insurer noted that Dr Marcus said that the abscess was not related to work.
The second s 78 notice is dated 16 August 2022. The insurer referred to the certificate with the history of pain for 6 to 12 months and noted that it was inconsistent with Mr Khatawi’s statement. It referred to the factual investigation report which “displayed that you would not have been lifting the aluminium glass door on the date of the injury…”
A review decision dated 2 December 2022 summarised the material provided and noted that Dr Hanna’s opinion as to causation was inconsistent with that of A/Prof Papantoniou and Dr Marcus. it said that the available medical evidence did not provide a “determinative opinion” regarding the causation of his knee injury. it noted that the factual investigation did not support the claim that Mr Khatawi had suffered an injury, particularly because Mr Shammo did not report an injury to his hand.

SUBMISSIONS

Mr Morgan said that, while there was a dispute as to whether Mr Khatawi suffered an injury, AGS had not advanced any medical case to show that the pathology observed by A/Prof Papantoniou was not related to an injury.
Mr Morgan said that Mr Khatawi was candid that he had been out of work for a number of years. His payslips show that he was paid $500 per week every week that he worked and that he had worked 20 hours per week. Mr Morgan said this raised serious concerns about the employer’s business in that it sought to fudge and deceive in respect of the employment relationship. He submitted that should give me pause for thought about accepting AGS’s evidence that no injury was suffered. Mr Khatawi worked in a two person team and, after training, said that he was paid $1,250 including $750 in cash.
Mr Morgan summarised Mr Khatawi’s statement. He said that, despite the incorrect date, the statements of Mr Shammo and Mr Hamdamnia were credible with respect to the detail of the incident.
With respect to the photographs attached to Ms Shaw’s email dated 10 March 2023, Mr Morgan noted that there was no explanation for the caption “sorry, wrong photo” and the discrepancies between the number of men shown in the photographs and the names on the timesheets. He said that the state of the evidence from AGS was poor in circumstances where it was asserting that Mr Khatawi made the injury up and that the photograph and timesheets were virtually useless.
Mr Morgan noted that the only statement was that of Ms Shaw which attached payslips showing that tax was paid on earnings for 20 hours per week but accepted that Mr Khatawi worked varying hours. The statement made allegations of secondary employment without basis and was comprised of hearsay and scuttlebutt. There was no detail surrounding the anonymous calls said to have been made about Mr Khatawi, such as a file note. Mr Morgan observed that the anonymous letter was neatly typed. He said that the evidence smacked of a post facto attempt to attack Mr Khatawi and that it was scurrilous and not credible. Mr Morgan highlighted that when Ms Shaw was asked again about Mr Khatawi’s earnings for the purpose of her second statement, she accepted that Mr Khatawi had been pain $750 per week in cash, without describing the time period for which the payments were made. She agreed with what Mr Khatawi said in his first statement about his earnings.
Mr Morgan said that Mr Khatawi’s case with respect to injury and incapacity was not challenged and that his evidence was corroborated at every opportunity. He said that I would award weekly compensation and make an order for s 60 expenses in respect of Mr Khatawi’s left knee injury.
Ms Goodman said that injury was very much in issue and the date of the injury was significant. Mr Khatawi started work in October, not long before he said he suffered an injury. He specifically says that Mr Pacevicius was away and that the supervisor was Kadhum Kawari.
Mr Khatawi said that Mr Shammo was present. Mr Shammo provided a statement in which he nominated the date of 7 December 2021 but was not given the opportunity to say why he nominated that date. The circumstances he described were in accordance with Mr Khatawi’s statement. Ms Goodman noted that Mr Hamdamnia also said he was present on 7 December and that the supervisor was Kasen, whom he referred to on two occasions. She said I would give those statements no weight.
Ms Goodman noted that Mr Khatawi had seen his general practitioner on a number of occasions after the alleged date of injury but had not mentioned any condition in his left knee until April when he said he had pain for three days. In May 2022, Mr Khatawi changed doctors. He was referred to Dr Papantoniou who recorded a history consistent with that on which Mr Khatawi relies.
Ms Goodman took me to the material in the Reply and the photographs provided after the change in the date of injury relied on. She said I would accept that the photographs were taken on the site at Hurstville and that Mr Shammo was not there on 8 and 9 December. Ms Goodman said that I would not be satisfied that Mr Khatawi had injured his left knee at work on or about 8 December 2021 for that reason and because of the lack of a history of injury to Dr Gregor.
In reply, and in respect of Mr Shammo’s presence on the site, Mr Morgan highlighted Mr Khatawi’s evidence that there were two groups of workers – those who delivered and those who installed. He said that the fact that Mr Shammo had not reported an injury was immaterial when his evidence that his hand was jammed in the door is consistent with that of Mr Khatawi.

FINDINGS AND REASONS

The standard of proof on the balance of probabilities was described by the Court of Appeal in Nguyen v Cosmopolitan Homes (Nguyen).[1] McDougall J, with whom the other members of the Court agreed, said:[2]
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[1] [2008] NSWCA 246.
[2] At [55].
Mr Khatawi’s evidence is that he suffered an injury when he slipped while delivering doors, a task which was not normally part of his role. Leaving aside the issue about the date of injury, his evidence is that he suffered an injury while working with Mr Shammo.
Mr Shammo agreed that the injury occurred and his statement is consistent with that of Mr Khatawi. Mr Shammo also agreed that his hand was jammed between doors when Mr Khatawi slipped. He did not say that he suffered an injury to his hand. Ms Shaw said that he did not make a claim for compensation but that is immaterial. It is likely that the workers who carry the doors around work sites would experience bumps and scrapes for which they would not make a claim. A/Prof Papantoniou recorded that Mr Khatawi’s co-worker suffered a bruise to his hand. It is unlikely that a labourer would report an injury or make a claim for a bruise.
Mr Hamdamnia also supports Mr Khatawi’s account of what happened on the day of the injury. His evidence differs as to the name of the supervisor.
The statements from Mr Shammo and Mr Hamdamnia were obtained more than a year and a half after the injury which may explain the discrepancies in the detail. There was unlikely to be any need for Mr Khatawi to ask them to recall the events until AGS’s insurer had declined the claim in August 2022.
Mr Khatawi said that the injury occurred at AGS’s site at Hurstville. He explained why he was confused about the date and attached the text messages which explain his confusion.
Mr Khatawi did not make an immediate complaint in respect of the injury to his knee and continued to work. He said that he was worried about losing his job and was hoping for a pay rise and he said that he pushed through the pain he was suffering. Soon after ceasing work he suffered an intercurrent condition for which he required surgery. The last report from Dr MacKenzie is dated 21 March 2022 at which time he proposed a further investigation. Mr Khatawi said in his statement that he did not seek medical advice about his knee for a few weeks.
In Nominal Defendant v Clancy[3], Santow JA said:
“While clinical notes, … , may in common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive … clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document. It is fair to say a report to another doctor [or a medico-legal report] is likely to have been written with more deliberate consideration than rough notes.”
[3] [2007] NSWCA 349.
That statement is relevant to a consideration of Dr Gregor’s notes. Mr Khatawi made the first complaint about his knee to Dr Gregor on 18 April 2022 in a telehealth consultation. Dr Gregor did not record the cause of the pain other than to say there was no fall and no trauma. They contain information about respiratory symptoms for which Mr Khatawi had not sought treatment. The examination refers to Mr Khatawi’s hip rather than his knee. After investigations, Mr Khatawi began to see Dr Marcus who noted that his former general practitioner did not deal with work injuries. Those factors all go some way to explaining the lack of a history of the injury in Dr Gregor’s notes. They were written in the context of what appears to be a busy general practice for the purpose of treatment.
Mr Khatawi began to see Dr Marcus in May 2022 and gave a history of the injury, including that he was working with “Saliba”. In one of the certificates of capacity dated 20 May 2022 Dr Marcus said that Mr Khatawi had noted pain for 6 to 12 months. By the time of the consultation it was in fact six months since the date of injury. A/Prof Papantoniou also had a consistent history of the injury.
While there is a gap between the date of the injury and Mr Khatawi’s first complaint to a doctor, there is a consistent explanation for that delay. AGS did not rely on the notice provisions in s 254 of the 1998 Act – there is no evidence that it was prejudiced by Mr Khatawi’s failure to give notice before his employment was terminated and he said that he was not aware of his rights with respect to compensation.
AGS has sought to lead evidence to persuade the Commission that the injury did not occur. The rules of evidence do not apply[4] but the following observation by Allsop P in Onesteel Reinforcing Pty Ltd v Sutton[5] concerning the legislation relevant to the former Workers Compensation Commission is apt:
“The relationship between the rules of evidence and hearings by the Commission is made clear by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the ‘WIM Act’), s 354. The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material: R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 359-360; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at 418 [91]; Amaba Pty Ltd v Booth [2010] NSWCA 344 at [23]; Evans v Queanbeyan City Council [2011] NSWCA 230 at [109]; and the cases referred to in NADH of 2001 v Minister for Immigration and Multicultural Affairs [2004] FCAFC 328; 214 ALR 264 at [12].
Rule 15.2 of the Workers Compensation Commission Rules 2010, provides that evidence should be logical and probative, be relevant to the facts in issue and the issues in dispute, not be based on speculation or unsubstantiated assumptions, nor should it be in the form of unqualified opinions. The relationship between these requirements and lawful discharge of power at general law based on relevant material need not be explored. It suffices to say that Rule 15.2 represents a sound approach for the reliable disposition of important cases for individuals. It is not a reintroduction of the rules of evidence. Were the rule to be such a reintroduction, it would confront the inconsistency of the statute (in s 354). Thus, when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.”
[4] Personal Injury Commission Act 2020 s 43.
[5] [2012] NSWCA 282 at [2]-[3].
The substance of r 15.2 is now r 73 of the Personal Injury Commission Rules 2021.
The factual evidence on which AGS relies should be considered in light of those principles. While there is no impediment to the Commission relying on hearsay evidence generally, that evidence must be logical and probative. I am not satisfied that the evidence on which AGS relied fulfilled that requirement.
AGS made statements about Mr Khatawi’s earnings in two ways – pay slips which said that he earned $25 per hour for 20 hours per week and a statement from Ms Shaw dated 6 July 2022, prepared in response to the claim. At the beginning of the statement, she said that the statement was true to the best of her knowledge and belief and that she made it knowing that she may be liable to prosecution if she had wilfully stated anything she knew to be false or did not believe to be true. While those words were no doubt included by the investigator, it is to be presumed that Ms Shaw had read them before signing her statement.
Mr Khatawi’s evidence in his statement dated 5 September 2022 was that he was paid $500 per week as recorded in the pay slip plus $750 per week in cash and that he worked full time. When provided with that information, Ms Shaw agreed in that Mr Khatawi had in fact been paid $500 through the payroll system and $750 cash. She said that only occurred for a short time but did not specify the period.
The fact is that Ms Shaw’s initial evidence was incorrect and further information was only provided in response to Mr Khatawi’s evidence. Ms Shaw did not provide any reason for the significant change in her evidence – she did not suggest that she had only recently become aware of the cash payment. The only conclusion I can draw is that the evidence Ms Shaw gave in her first statement was knowingly incorrect.
In Malco Engineering Pty Ltd v Ferriera[6] Handley JA said:
“... the perjury by the worker required the trial judge to carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of his evidence may have been acceptable because it was confirmed by other independent or objective evidence. However where the worker’s evidence was not independently supported it clearly had to be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings.”
[6] (1994) 10 NSWCCR 117.
Keating P cited that decision in Brines v Westgate Logistics Pty Ltd[7] and said:
“Where a worker has given untruthful evidence the Arbitrator must carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of the evidence may have been acceptable because other independent or objective evidence confirmed it. However, where a worker’s evidence was not independently supported it clearly must be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings (see Malco Engineering Pty Ltd v Ferreira and others (1994) 10 NSWCCR 117 and Divall v Mifsud (2005) NSWCA 447). The Arbitrator in assessing the credit issues was clearly conscious of the legal principles involved.”
[7] [2008] NSWWCCPD 43 at [78].
There is no reason why the evidence of a respondent in Commission proceedings should not be assessed in the same way. Because of Ms Shaw’s evidence about payment and the apparent attempt in the payslips to conceal cash payments, care should be taken to assess whether AGS’s other evidence should be accepted. Ms Shaw’s gratuitous comment that no bandage or brace can be seen on Mr Khatawi’s leg in the photographs does not enhance her credit.
The evidence from Ms Shaw about an anonymous letter and phone calls received after the claim was made saying that Mr Khatawi was working appears to be given in an effort to discredit him. There is no detail about the extent of the work Mr Khatawi was said to have undertaken after leaving AGS. The anonymous letter is undated. Mr Khatawi said in his statement dated 9 June 2022 (prepared before that of Ms Shaw) that he did attempt to return to work for a few days after he left AGS but he could not continue. In those circumstances, the anonymous communications are irrelevant.
The evidence from AGS as to where work was undertaken and on which days is also unhelpful. I accept that Mr Khatawi’s statement dated 8 March 2023 was served late. However, it was served more than two weeks before the conciliation conference and arbitration hearing.
Ms Shaw’s communications do not reflect the care and attention that should be given to documents prepared for any kind of legal proceedings in which decisions will be made which impact significantly on the parties’ rights. In February 2023 Ms Shaw provided the photograph and timesheet for 7 December 2021 which showed that Mr Khatawi worked at Lane Cove on that day. The photograph showed four people and the label on the text message matches the date and location printed on the timesheet. While Ms Shaw said that the photographs were required “due to company covid requirements” she did not explain how the screenshots of photographs and timesheets were put together, by whom they were sent and by whom they were received. No other documents were provided at that time.
The lack of explanation about how the documents were prepared is important in respect of the other text messages containing photographs and text messages. The first is captioned “Sorry wrong photo Hurstville 8-12-21.” A two page timesheet superimposed on a photograph eight men contains nine names. In the absence of an explanation as to how it was prepared (including why the timesheet is placed on top of the photograph and not photographed separately as on 7 December), the only conclusion I consider can be safely drawn from it is that Mr Khatawi worked on 8 December and that he worked on the same site as Kasen and Mr Hamdamnia (though his name appears on a separate sheet). It is consistent with Mr Hamdamnia’s evidence that Kasen was at Hurstville on the date of the injury.

The following page shows seven men and eight names with an indistinct date. No effort was made by Ms Shaw or anyone else on behalf of AGS to provide evidence identifying the men in the photographs. Another photograph is said to show Mr Shammo and Mr Pacevicius at another location and date but the lack of explanation of the words on the message means that the evidence in the photographs carries no weight. It suggests some movement by Mr Shammo and Mr Pacevicius between Hurstville and Liverpool but does not explain what occurred. Ms Shaw’s reference to “as per the photographs attached” is not an explanation and the screen shots are not probative.
Mr Kadhum Kawari’s statement provides little assistance and there is no explanation in AGS’s evidence for his reference to a previous statement. The statement does nothing more than confirm that Mr Khatawi was not at Hurstville on 7 December and record that Mr Kawari did not recall him suffering an injury. That is not surprising when Mr Khatawi said that he did not report the injury because he feared losing his job and was hoping for a pay rise.
There is no evidence apart from that of Ms Shaw which deals with the tasks which were being undertaken at the relevant jobsites.
I am not persuaded in the way described in Nguyen by AGS’s evidence. I accept the evidence of Mr Khatawi that he was working at Hurstville on 8 December 2021 and carrying doors when he suffered an injury to his left knee.
AGS’s insurer relied solely on the factual investigation and the brief documents prepared by Ms Shaw to deny the claim in its entirety. The insurer did not obtain any medical evidence as to whether the injury was consistent with the stated cause. Dr Marcus and A/Prof Papantoniou both said that the condition of Mr Khatawi’s left knee is consistent with the stated cause. The only available evidence is that the treatment taken and proposed is reasonably necessary as a result of the injury.
The insurer also did not obtain any evidence as to Mr Khatawi’s capacity. That is a surprising omission, considering the extent of the compensation claimed and the proposal for surgery. Ms Goodman did not make any submissions about the award I would make if I found in favour of Mr Khatawi – not could she, based on the available evidence. The evidence of Mr Khatawi’s treating doctors as to capacity is unchallenged. In those circumstances, I can only award compensation on the basis that Mr Khatawi has no current work capacity.
I am satisfied that Mr Khatawi’s pre-injury average weekly earnings were $1,250. He is entitled to compensation of $1,187.50 being 95% of that amount for the first 13 weeks and $1,000 (80% thereafter).
AGS is to pay Mr Khatawi weekly compensation:
(a) pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act) from 8 January 2022 to 8 April 2022 at the rate of $1,187.50 per week, and
(b) pursuant to s 37 of the 1987 Act from 9 April 2022 to date and continuing at the rate of $1,000 per week.
AGS is to pay Mr Khatawi’s s 60 expenses.

[2023] NSWPIC 355

19 July 2023