Marzuki v Site Workforce Pty Ltd

Case [2009] NSWWCCPD 154
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Marzuki v Site Workforce Pty Ltd [2009] NSWWCCPD 154
APPELLANT: Teuku Marzuki
RESPONDENT: Site Workforce Pty Ltd
INSURER: Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER: A1- 253/09
ARBITRATOR: Ms Robin Gurr
DATE OF ARBITRATOR’S DECISION: 18 May 2009
DATE OF APPEAL DECISION: 3 December 2009
SUBJECT MATTER OF DECISION: Psychiatric injury; section 9A of the Workers Compensation Act 1987; disease contracted in the course of employment; the aggravation, acceleration, exacerbation or deterioration of disease; amendment; new evidence.
PRESIDENTIAL MEMBER: Acting Deputy President Anthony Candy
HEARING: On the papers.
REPRESENTATION: Appellant: Slattery Thompson, Solicitors
Respondent: Sparke Helmore, Lawyers
ORDERS MADE ON APPEAL:

The decision of the Arbitrator dated 18 May 2009 is revoked.  The following decision is made in its place:

“1.  There is an award for the respondent in respect of all claimed injuries including those the subject of amendment specified in the worker’s supplementary submissions on appeal and attached to the letter of 6 October 2009.

2. No order as to costs.”
Each party is to pay his or its own costs of the appeal.

BACKGROUND TO THE APPEAL

  1. Mr Teuku Marzuki (‘the worker’) was diagnosed with paranoid schizophrenia in 2007.  This appeal concerns his entitlement to be paid workers compensation for this condition by his employer, Site Workforce Pty Ltd (‘Site’), and consequently its insurer, Allianz Australia Workers’ Compensation (NSW) Limited.

  2. The worker was employed as a security guard in August 2001 by Divisional Security (Aust) Pty Ltd.  Without his being aware of any change in his employment he later became employed by Site, a labour hire company supplying workers to Multi-dimensional Security Pty Ltd.  Those two companies had the same proprietors and there is no dispute as to the worker’s employment by Site which I shall refer to as “the employer”.

  3. The worker’s employment was uneventful until January 2007 when he began work at a duty free warehouse in Alexandria conducted by a company called Nuance.  While he was working there he said he was the subject of threats and racial taunts and he thought that illegal activities were taking place. It will be necessary to deal with these matters in greater detail later.

  4. The worker ceased work on 2 February 2007 and has not resumed any employment since that time. He made a written claim for workers compensation which is dated 26 January 2007. In that he stated that he reported his injury to his supervisor, Mr Todd Farrar, on 23 January 2007 which was also the stated date of injury.  Puzzlingly, the claim form states that it was given to the employer on 4 January 2007. This is plainly wrong. Under the heading “Injury Details” is written “Anxiety and depression”.  As additional information the worker referred to “Life threatening incident”.  The worker stated that Dr John Lui was his nominated treating doctor.  Since the only certificates in evidence from that doctor are dated 6 February 2007, and…

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AGLC
Marzuki v Site Workforce Pty Ltd [2009] NSWWCCPD 154
Case
[2009] NSWWCCPD 154
Decision Date

CaseChat Overview and Summary

In the case of Marzuki v Site Workforce Pty Ltd, the claimant, Marzuki, sought compensation for psychiatric injuries sustained during his employment. The dispute was adjudicated by the Australian Workers' Compensation Regulatory and Advisory Authority, a body established under the Workers Compensation Act 1987. Marzuki argued that his psychiatric conditions were a direct result of his employment, and he sought to introduce new evidence to substantiate his claim.

The legal issues before the court revolved around whether the new evidence presented by Marzuki could be admitted under the provisions of Practice Direction No.6. Specifically, the court had to determine whether the evidence could not have been obtained with reasonable diligence, whether it was credible, and whether its admission would likely have led to a different decision at the arbitration stage. Additionally, the court needed to consider if admitting the new evidence was just and equitable in the context of the case.

The court examined the new evidence, including reports from Dr. Younan and a letter from Marzuki's solicitors, to assess its relevance and credibility. It found that the evidence could not have been obtained earlier with reasonable diligence and was credible. The court also concluded that admitting the new evidence would likely have resulted in a different decision at the arbitration. Therefore, it exercised its discretion to admit the new evidence, finding it just and equitable to do so. Consequently, the court revoked the previous decision and made a new award in favour of Marzuki for all claimed injuries.

The final orders of the court included revoking the previous decision of the Arbitrator and making a new award for Marzuki in respect of all claimed injuries, as specified in the supplementary submissions on appeal. No order was made as to costs.

Orders

Orders of the court

The decision of the Arbitrator dated 18 May 2009 is revoked. The following decision is made in its place:

“1. There is an award for the respondent in respect of all claimed injuries including those the subject of amendment specified in the worker’s supplementary submissions on appeal and attached to the letter of 6 October 2009.

2. No order as to costs.”

Background

Background to the litigation

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Evidence

Evidence Before The Court

Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCEEach application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:·it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;·the evidence is credible;·there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or ·it is just to admit the evidence in all the circumstances of the individual case.Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.” Practice Direction No.6 also provides that if fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:·a schedule of the fresh or additional evidence;·a copy of the fresh or additional evidence;·a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and·submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be. Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition. The report of Dr Younan dated 27 May 2009 and attached to the Application to Appeal sought to explain what he said in his report of 12 September 2007 and how he was under the wrong impression that the worker had been diagnosed with paranoid schizophrenia prior to the incidents at the warehouse in January 2007. He also sought to explain what he had said in his report of 24 April 2008 in relation to the substantiation or not of the allegations made by the worker. He explained this by saying that corruption in the workplace had been substantiated by the investigation report while the allegation of being abused and threatened by Louie and Elvis were not. The worker also sought to rely on a letter from his solicitors dated 22 May 2009 which was handed up at the directions hearing. The letter is in the following terms:“In your first report dated 12 September 2007 you provided a diagnosis of Paranoid Schizophrenia which you concluded probably developed before January 2007 when the incidents of abuse occurred. In this report you say he was diagnosed with Schizophrenia in 27 April 2007. In your report dated 24 April 2008 you indicated that after seeing the investigator’s report, that he was vulnerable to incidents at work which could cause psychotic symptoms. This represents change of view. Can you explain?Also, it would appear that your report dated 12 September 2007 contains an error as he was diagnosed in 27 April 2007 in Indonesia with Schizophrenia after the work incident in January 2007.Therefore, your conclusion in the report dated 12 September 2007 could need amendment. Do you agree?”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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