Matar and anor v Zeineddine
[2008] NSWWCCPD 51
•19 May 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Matar and anor v Zeineddine [2008] NSWWCCPD 51
APPELLANT: Mohamad Matar and Barinhan Matar
RESPONDENT: Jawdat Zeineddine
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC6379-07
DATE OF ARBITRATOR’S DECISION: 20 November 2007
DATE OF APPEAL HEARING: 17 April 2008
DATE OF APPEAL DECISION: 19 May 2008
SUBJECT MATTER OF DECISION: Loss of use of sexual organs as a result of a psychological injury; whether employment must be a substantial contributing factor to a consequential loss; assessment of credit; weight to be attached to medical reports containing inaccurate histories; application of Paric v John Holland (Constructions) Pty Ltd [1985] 59 ALJR 844 and Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:Oral
REPRESENTATION: Appellant: Bartier Perry
Respondent: Carroll & O’Dea
ORDERS MADE ON APPEAL: Paragraphs one, two and five of the Arbitrator’s determination of 20 November 2007 are revoked and the following orders made in their place:
“1. As a result of an assault received in the course of his employment with the Respondent on 9 December 1999 and to which his employment was a substantial contributing factor, the Applicant sustained a psychological injury.
2. As a result of the psychological injury referred to in paragraph one above, the Applicant has suffered a loss of use of his sexual organs.
5. The Approved Medical Specialist is, for the purpose of assessing whether any deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 is appropriate, referred to the entry of 20 October 1999 in the clinical notes produced by NAS Advanced Medical Centre.”
Paragraphs three, four and six of the Arbitrator’s determination, and the Arbitrator’s certification regarding costs, are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND
Jawdat Zeineddine (‘the Respondent Worker’) was born in Lebanon in 1967 and is currently 41 years of age. He came to Australia in about 1994 and started work as a taxi driver, having worked as an electrician in Lebanon. At about 9pm on 9 December 1999 he was working as a taxi driver for Mohamad and Barinhan Matar (‘the Appellant Employer’, wrongly sued as “M & B Mattar”) at the Warrawong taxi rank when a man approached his taxi and held a knife to his neck and said, “I want to kill you”. After a struggle that lasted about 30 or 40 seconds, the assailant ran off. At about 10pm Mr Zeineddine attended at Port Kembla Hospital where he was treated for a “small scratch to [his] neck”. The incident was reported to the Port Kembla police later that night.
Mr Zeineddine continued working but found it increasingly difficult to deal with members of the public. He feared he would be assaulted again and was shaky, frightened and extremely agitated (Mr Zeineddine’s statement 1 August 2007, paragraph nine).
On 16 February 2000, Mr Zeineddine took an overdose of medication and was taken to Wollongong Hospital by ambulance at 3am and discharged at 10:40am. He was again taken to hospital by ambulance at 6:40am on 17 February 2000, after he overdosed and cut his stomach and left wrist in a second suicide attempt that morning. The psychiatric registrar examined him and took a history that he had been unwell with headaches and stomachaches, but also had “another problem that is vexing [sic] him for one UR [sic, possibly ‘YR’] but refuses to talk about it”. Nursing notes dated 18 February 2000 refer to the incident on 9 December 1999, as do the notes by Dr Chandra (taken on the same day, with an interpreter) who also recorded that Mr Zeineddine was in a state of fear and felt helpless. As a result he turned to alcohol to cope. Dr Chandra formed the impression that Mr Zeineddine had posttraumatic stress disorder (‘PTSD’). He prescribed zoloft, an anti-depressant, and discharged Mr Zeineddine at 2pm on 18 February 2000 for follow up with his local doctor.
Mr Zeineddine saw Dr Dhawan, his general practitioner, on 18 and 22 February 2000 and gave the above history. Dr Dhawan saw him again on 25 February 2000 with an interpreter when he took a more detailed history of the assault on 9 December 1999 and that after the assault Mr Zeineddine was scared of driving his taxi, especially at night, but continued to drive to provide for his family. At that stage, Mr Zeineddine was married with two children. Because of his fears and anxieties, he stopped driving taxis on about 11 February 2000. He complained of insomnia and excessive consumption of alcohol. The doctor issued a WorkCover medical certificate dated 25 February 2000 and Mr Zeineddine completed a claim form on the same day.
His claim was accepted and voluntary compensation continues to be paid.
On 16 April 2007, Mr Zeineddine’s solicitors, Carroll & O’Dea, made a claim on his behalf for lump sum compensation in respect of a 70% loss of sexual organs based on a report from Dr Lowy dated 29 March 2007. The insurer failed to determine the claim within the time required by the legislation and Mr Zeineddine filed an Application to Resolve a Dispute (‘the Application’) in the Commission on 22 August 2007 in which he described his injury as “Psychological, Stress, Anxiety, Secondary Impotence and Loss of Libido” and claimed lump sum compensation as per the letter of 16 April 2007.
By its Reply filed on 12 September 2007, the Appellant Employer sought leave to dispute that:
(i)Mr Zeineddine suffered any injury to his sexual organs as a result of the incident on 9 December 1999;
(ii)the incident on 9 December 1999 was a substantial contributing factor to any alleged injury to his sexual organs or any alleged sexual dysfunction;
(iii)Mr Zeineddine suffers any permanent loss of use of his sexual organs as a result of the incident on 9 December 1999, and
(iv)that Mr Zeineddine suffers from impotence.
The Reply also indicated that as there was a lack of contemporaneous complaints of sexual dysfunction by Mr Zeineddine to any treating doctor, the Appellant Employer would seek leave at the teleconference to issue Directions for Production on his treating doctors. At the teleconference on 26 September 2007, the Arbitrator gave leave for such Directions for Production to be issued. In response to those Directions for Production, clinical notes were produced and tendered from NAS Advanced Medical Centre. Those notes indicate that Mr Zeineddine attended on 20 October 1999 (about six weeks prior to the assault on 9 December 1999) when the following entry is recorded: “fungal rash – groin – viagra 50 for erectile dysfunction”. The significance of this entry is a critical issue in the case.
The matter proceeded to arbitration on 30 October 2007. In a reserved decision delivered on 20 November 2007, the Arbitrator found in favour of Mr Zeineddine and made the following determinations in his Certificate of Determination of that date:
“1.The Applicant sustained injury to his sexual organs arising out of his employment with the Respondents.
2.The Applicant’s employment with the Respondents was a substantial contributing factor to the injury determined at Paragraph 1 above.
3.The matter is remitted to the Registrar for referral to an Approved Medical Specialist.
4.The Approved Medical Specialist shall be requested to assess whether the Applicant has sustained a loss of use of his sexual organs, having regard to a date of injury of 9 December 1999.
5.The Approved Medical Specialist is, for the purposes of assessing whether any deduction pursuant to s.323 of the Workplace Injury Management and Workers Compensation Act 1998 is appropriate, referred to in the entry of 19 March 2003 [sic] that appears in the notes produced by NAS Advanced Medical Centre.
6.The Respondents are directed to pay the Applicant’s costs as agreed or assessed, subject to the certification provided below.
Certification regarding Costs:
I certify that the matter is, having regard to the detailed analysis that the representatives were required to perform in relation to the medical reports and clinical notes, complex, and that the representatives are respectively entitled to an uplift on their costs of 15 %.”
By an appeal filed on 18 December 2007, the Appellant Employer seeks leave to appeal the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
There is no issue that the thresholds in section 352(2) are satisfied
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
FRESH EVIDENCE
The Respondent Worker seeks to tender, as fresh evidence on appeal, copies of entries in his passport, which, he claims, indicate that he was in Lebanon between 4 November 2002 and 14 April 2003. Whether Mr Zeineddine was in Australia in this period has assumed some significance in the case. The Appellant Employer tendered at the arbitration (without objection) Mr Zeineddine’s clinical notes from the medical practice NAS Advanced Medical Centre. An entry appears in those notes on 19 March 2003 that appears to read “worried about AIDS” and “last sex activity +- 3/12”. Included in the notes is a laboratory report from Medlab Australia for Jawdat Zeineddine giving a collection date of 19 March 2003 and negative test results for hepatitis B and C and for HIV – 1 and 2. It was then submitted by the Appellant Employer that this entry confirms that Mr Zeineddine engaged in sexual intercourse three months prior to 19 March 2003 and, therefore, his history to Dr Lowy that he had not engaged in sexual intercourse at all since 9 December 1999 was false (see Arbitrator’s Statement of Reasons for Decision (‘Reasons’), paragraph 22). The Appellant Employer puts the same argument on appeal. It is in an attempt to rebut this argument that the Respondent Worker now seeks to introduce evidence of the contents of his passport.
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
The Court of Appeal considered the introduction of fresh evidence on appeal in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158, (2007) 4 DDCR 634 (‘Haider’) where Basten JA referred to Akins v National Australia Bank (1994) 34 NSWLR 155 (‘Akins’) and other authorities. In Akins, Clarke JA (Sheller JA and Powell JA agreeing) stated at 160 that three conditions need to be met before “fresh evidence” can be admitted:
“These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.”
However, in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 Heydon JA stated at [15]:
“Even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?”
Applying these principles in the present matter, I make the following observations:
(a)there is no evidence that Mr Zeineddine’s passport could not have been obtained at the time of the arbitration. It is his document and I infer that it was accessible to him at that time. The fact that the Appellant Employer disputed Mr Zeineddine’s history of not having had sex since 1999 was always in issue in the case and was first raised in the Reply. The clinical notes from NAS were filed and served on 26 October 2007. It was obvious that the clinical notes were of critical importance and that they were inconsistent with Mr Zeineddine’s evidence. If Mr Zeineddine was not in the country in March 2003, as his passport suggests, he could and should have tendered his passport and sought to give oral evidence on this issue. He did neither of these things and there is no explanation for this omission;
(b)the evidence in the passport does not raise a high degree of probability that there would be a different result if it were admitted on appeal, but provides evidence that rebuts an argument that has already been rejected by the Arbitrator, and
(c)the evidence in the passport is credible on the issue of whether Mr Zeineddine was in Australia on 19 March 2003, but it does not answer any of the other issues that arise from the clinical notes that may well impact on Mr Zeineddine’s credit.
In all the circumstances, and having particular regard to the fact that no explanation has been offered as to why the passport (or extracts from it) was not tendered at the arbitration, I am not satisfied that it is just to allow the document into evidence on appeal. This conclusion is reinforced by the fact that the Arbitrator rejected the Appellant Employer’s argument about the relevance of the entry on 19 March 2003 in any event. Therefore, the interests of justice do not require that the passport be admitted on appeal.
Further, it cannot be overemphasised that arbitrations are not a trial run where parties can see how things turn out and then attempt to introduce on appeal evidence that was readily available at the time of the arbitration.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34, (2006) 4 DDCR 358 (‘Zheng’) where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to provide an adequate analysis of all the relevant evidence in relation to the disputed issues of “injury” and “substantial contributing factor” and therefore failing to exercise his function fairly and according to law;
(b)failing to properly consider the relevant evidence and the weight of the evidence;
(c)failing to determine the matter properly and according to law because he did not give a clear or logical explanation of the reasons why some evidence was preferred over other evidence and failing to properly consider credit issues;
(d)accepting expert medical opinions based on important alleged facts which were proved to be false by other admissible evidence, and
(e)finding in favour of Mr Zeineddine on the issue of “injury” and “substantial contributing factor” when that finding was against the evidence and the weight of the evidence.
SUBMISSIONS
The Appellant Employer submits:
(a) the Arbitrator failed to consider or deal with a significant number of inconsistencies and implausibilities in Mr Zeineddine’s evidence and failed to properly consider the Appellant Employer’s submissions in relation to Mr Zeineddine’s credit;
(b) in none of the reports or clinical notes tendered in evidence is there any reference to Mr Zeineddine suffering any sexual dysfunction until the report of Dr Attia-Soliman dated 12 February 2007. By that time, Mr Zeineddine’s solicitors had already scheduled an appointment with Dr Lowy. There is no credible explanation from Mr Zeineddine as to why he failed to seek treatment from his treating doctors for his alleged sexual dysfunction over a period of seven years from 1999. He did complain to his doctors of many other conditions, including skin conditions, haemorrhoids, diverticulitis, headaches, renal colic, dermatitis and a sore throat. It is almost inconceivable that total impotence and sexual dysfunction would not warrant any mention to any of Mr Zeineddine’s doctors over a seven-year period and be viewed as a matter of “relatively subordinate concern considering the extremes of distress which were the subject of treatment” (Reasons, paragraph 28). Mr Zeineddine provided no explanation for the fact that he did not mention his sexual dysfunction until 2007. Apart from the period between February and April 2000, there is no evidence in the clinical notes of ongoing suicide attempts, suicidal thoughts, or extremes of despair after April 2000;
(c) the Arbitrator did not properly deal with the Appellant Employer’s submission that the histories provided to Drs Lowy and McMahon of no prior sexual dysfunction and to Dr McMahon that prior to the assault he enjoyed sexual intercourse most days of the week without restriction, were untruthful and, therefore, the doctors’ opinions could not be given any weight;
(d) the Arbitrator dealt with the entry in the NAS clinical notes for 19 March 2003 by reference to Dr McMahon’s history that since separating from his wife Mr Zeineddine had attempted intercourse only once with the assistance of viagra but was unable to achieve a sufficient erection for penetration (Reasons, paragraph 29). The Arbitrator also noted that Mr Zeineddine was afflicted by a psychiatric illness and his fears need not have been rationally founded (Reasons, paragraph 29). This is an unsatisfactory conclusion because the clinical notes do not refer to Mr Zeineddine ever being given a script for viagra and there is no evidence that he was psychotic or hallucinogenic from December 2002 to March 2003 such that he might have had an irrational fear about AIDS. The Arbitrator’s statement was speculative and unsupported by any evidence;
(e) the Arbitrator has “cherry-picked” pieces of evidence that appear to be tenuously or partly consistent with Mr Zeineddine’s story and has ignored other pieces of evidence which contradict his story;
(f) the Arbitrator’s statement at paragraph 30 of his Reasons that Mr Zeineddine’s complaint that he no longer experiences morning erections is not contradicted by any other evidence was an inadequate analysis of the evidence. The clinical notes from 2000 to February 2007 did not provide any contemporaneous support for Mr Zeineddine’s allegation;
(g) the history of no prior sexual dysfunction (given to Drs Lowy and McMahon) is contradicted by the clinical notes produced by Dr Gaing (the successor to Dr Dhawan) of sexual dysfunction in October 1999 resulting in the prescription of viagra;
(h) the history that Mr Zeineddine had no prior psychological condition (given to Drs Lowy and McMahon) is contradicted by the clinical notes produced by Port Kembla Hospital of attendances for anxiety problems on 4 and 15 October 1999, 6-8 weeks before the assault;
(i) there is no suggestion in the clinical notes in evidence that Mr Zeineddine was prescribed viagra after 9 December 1999;
(j) the Arbitrator failed to properly consider the submissions about Mr Zeineddine’s credit. When Mr Zeineddine attended at hospital in mid February 2000 because of a suicide attempt, his history was of financial problems, conflict at home, missing his family in Lebanon, family losses and stressful situations driving taxis. It was not until the third day when he saw a social worker that he first mentioned the assaulted on 9 December 1999. When he attended at Port Kembla Hospital on 9 December 1999, there was no record of him being agitated or traumatised, or being given an injection to sedate him;
(k) the Arbitrator should have found Mr Zeineddine to be an unreliable witness and should have therefore turned to the contemporaneous histories in the clinical notes to determine his symptoms at a particular time;
(l) Drs Lowy and McMahon based their opinions on the following histories, which were untrue:
(i)Mr Zeineddine had normal sexual function before 9 December 1999;
(ii)Mr Zeineddine had no psychological problems before 9 December 1999;
(iii)Mr Zeineddine has been unable to achieve an erection sufficient for penetration since 9 December 1999, and
(iv)Mr Zeineddine was prescribed viagra for his sexual dysfunction between 1999 and 2006.
As a result, their opinions cannot be given any or any significant weight (Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR 844 (‘Paric’)), and
(m) the Arbitrator’s finding was against the weight of the evidence.
The Respondent Worker submits:
(a)before an Arbitrator’s decision can be revoked, it must be demonstrated that it contains an error of fact, law or discretion. The error must be such that but for it a different decision should have been made;
(b)the weight to be given to evidence properly admitted is a matter for the Arbitrator and the Arbitrator’s discretion should not be overturned unless it can be shown that he or she demonstrably failed to exercise the discretion fairly and lawfully (Jennifer Tyack formerly trading as Country Kidz v Cain [2007] NSWWCCPD 119 at [98]);
(c)the Appellant Employer has failed to establish that the Arbitrator exercised his discretion in a manner that was unfair or unlawful;
(d)the Arbitrator adequately dealt with the absence of complaint of sexual dysfunction at paragraphs 26-28 of his Reasons. He concluded that Mr Zeineddine’s symptoms associated with his PTSD adequately explained the absence of any reference to sexual dysfunction to the doctors until 2007;
(e)the evidence demonstrates:
(v)Mr Zeineddine experienced symptoms of depression, a preoccupation with a fear of being attacked, frustration and anger after the assault on 9 December 1999;
(vi)men can experience a high degree of sexual negativity following a previous sexual failure (Dr McMahon 6 August 2007), and
(vii)Mr Zeineddine exhibited symptoms of sexual avoidance;
which all indicate that the Arbitrator’s findings in respect of Mr Zeineddine’s credit were well founded and do not display an exercise of discretion that was demonstrably unfair or unlawful;
(f)it is conceivable that Mr Zeineddine would avoid discussing sexual dysfunction if it involved re-living the traumatic events of 9 December 1999;
(g)if the worker could discuss sexual dysfunction with his general practitioner before 9 December 1999 but not after, it was not unreasonable for the Arbitrator to conclude that it was as a result of the PTSD;
(h)the Arbitrator’s finding that some proportion of the diagnosed sexual dysfunction can be attributed to the incident of 9 December 1999 was not unreasonable and he correctly stated that the extent of that loss must be determined by an Approved Medical Specialist (‘AMS’);
(i)the Arbitrator adequately analysed the entry on 19 March 2003 in the clinical notes and determined the weight to be attributed to it accordingly. Mr Zeineddine’s sexual activity (set out in his statement and in Dr McMahon’s report) is not inconsistent with the note on 19 March 2003, especially when the nature of the sexual activity referred to in the notes is not known. A reasonable person may well be concerned about contracting AIDS through means other than sexual intercourse;
(j)as the Appellant Employer did not cross-examine Mr Zeineddine, any submission on credit cannot be taken into consideration on appeal (Browne v Dunn (1894) 6 R 67). The Appellant Employer has breached the rule in Browne v Dunn by failing to cross-examine Mr Zeineddine and “allow him to explain any alleged irregularity in the history referred to in the medical reports and clinical notes” (Respondent Worker’s submissions 13 February 2008, paragraph nine). The employer should have taken Mr Zeineddine through all the relevant entries in the medical records and afforded the worker the opportunity to reply to each allegation. Having not done so it is prevented from alleging any credit issue on appeal;
(k)the Arbitrator dealt with the Port Kembla Hospital notes for the period October 1999 to February 2000 at paragraph 23 of his Reasons. The notes clearly demonstrate that Mr Zeineddine was traumatised by the incident on 9 December 1999. Bearing this in mind, the Arbitrator was entitled to conclude that the worker’s credibility did not turn on alleged discrepancies in these notes;
(l)though there were some discrepancies in the history provided to Drs Lowy and McMahon, there was a “fair climate” for the acceptance of their opinions by the Arbitrator Paric and Brady v Commissioner of Police (2003) 25 NSWCCR 58 (‘Brady’));
(m)the notes from NAS of 19 March 2003 either have no probative value, or do not contradict his Mr Zeineddine’s evidence that he was unable to achieve an erection sufficient for penetration subsequent to the incident on 9 December 1999;
(n)any alleged inaccuracy regarding the prescription of viagra is a matter that could only have been clarified through cross-examination of Mr Zeineddine. The reference in Dr McMahon’s report to viagra being provided by the family doctor may not necessarily have shown up in the clinical notes because it was provided to the worker as a free sample;
(o)the reference to “anxiety” in the Port Kembla Hospital notes in 1999 cannot necessarily be described as a “psychological problem”, thus Mr Zeineddine’s history is not inaccurate;
(p)the Arbitrator was entitled to give weight to the link between PTSD and sexual dysfunction as opined in the reports of Drs Lowy and McMahon. In considering these medical reports in conjunction with the other medical evidence and Mr Zeineddine’s evidence, the Arbitrator’s conclusion was not unreasonable, and
(q)if there is an error, the employer has not established that but for it a different result should have been reached.
The Appellant Employer filed further submissions in reply on 29 February 2008 and these have been carefully considered, along with all of the oral submissions made on 17 April 2008.
DISCUSSION AND FINDINGS
The Arbitrator stated the issues for determination (at paragraph 8 of his Reasons) to be:
(a)has the Applicant suffered an injury to his sexual organs as a result of the incident on 9 December 1999, and
(b)was the Applicant’s employment a substantial contributing factor to any injury to his sexual organs that may be determined as a result of the incident on 9 December 1999.
It is agreed that the Arbitrator erred in stating the issues in this way. Mr Zeineddine is not claiming that he injured his sexual organs on 9 December 1999. He alleges that, as a result of the assault on that night, he suffered and continues to suffer from PTSD and depression and that the assault and consequential psychological condition has resulted in a loss of use of sexual organs. Employment must be a substantial contributing factor to the “injury”, not the incapacity or loss resulting from the injury (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725 (‘Rootsey’)). The “injury” in the present matter is the assault and the psychological condition it has caused. Therefore, Mr Zeineddine must prove that his employment was a substantial contributing factor to the assault and that his loss of sexual function is “the result of an injury” (see section 66 of Workers Compensation Act 1987 (‘the 1987 Act’) as saved by clause 2 Schedule 6 Part 18C of that Act). In other words, to succeed Mr Zeineddine must establish that his alleged loss of use of sexual organs is the “result of” (or, has “resulted from”) his injury, not that his employment was a substantial contributing factor to the loss.
The test of causation in a claim for lump sum compensation is the same as it is for a claim for weekly compensation, namely, has the loss “resulted from” the relevant work injury (see Sidiropoulos v Able Placements Pty Ltd (1998) 16 NSWCCR 123 approved in Rail Services Australia v Dimovksi & anor [2004] NSWCA 267; (2004) 1 DDCR 648).
The Court of Appeal considered the “results from” test in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (‘Kooragang’) where Kirby P (as he then was) said at 463-4:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury...is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
Though the Arbitrator has posed the wrong question, I do not believe this error makes any difference to the end result. He has applied, and found Mr Zeineddine to have satisfied, the more demanding test of “substantial contributing factor” instead of the “results from” test.
Turning to the Appellant Employer’s grounds of appeal, I do not accept that the Arbitrator failed to deal with the inconsistencies in the Respondent Worker’s case. In reality, the Appellant Employer’s complaint is that the Arbitrator failed to deal with the inconsistencies in the way it wanted.
The Arbitrator reviewed the medical evidence at paragraphs 11 to 17 of his Reasons. The Appellant Employer does not dispute that Mr Zeineddine suffered and continues to suffer the effects of a psychological injury as a result of the assault on 9 December 1999. The weight of the evidence clearly supports the Arbitrator’s conclusion (at paragraph 31 of his Reasons) that Mr Zeineddine suffers from PTSD and that that condition is “plainly attributable to the attack on the Applicant in December 1999”. This conclusion is not challenged on appeal.
The Arbitrator considered the Appellant Employer’s arguments, and the evidence in support of them, at paragraphs 18 to 23 inclusive of his Reasons. The essence of the Appellant Employer’s argument is that the Arbitrator erred in accepting Mr Zeineddine’s claim that his sexual dysfunction resulted from the assault because:
(a)contrary to the history he gave to Drs Lowy and McMahon, he did suffer from sexual dysfunction before the assault and, in the light of this false history, Mr Zeineddine’s claim should not be accepted without independent corroboration, which is lacking as no doctor has any record of Mr Zeineddine complaining of loss of sexual function between December 1999 and February 2007;
(b)Mr Zeineddine also gave a false history of not having had sexual intercourse since the assault when, according to the notes from NAS, he had sex in March 2003 and requested an AIDS test, and
(c)these false histories mean that the evidence from Dr Lowy cannot be accepted and Mr Zeineddine’s claim must be rejected.
The Arbitrator did not consider Mr Zeineddine’s failure to seek attention for his sexual dysfunction indicated he did not have the problem (Reasons, paragraph 25). He noted that the incident of 9 December 1999 affected Mr Zeineddine in a “drastic manner” with evidence of self-mutilation, suicide attempts, abuse of alcohol, and bouts of anger (Reasons, paragraph 26). This observation was consistent with the evidence. The Appellant Employer counters this by saying that apart from the period from February 2000 to April 2000 there is no evidence of ongoing suicide attempts or thoughts or extremes of despair.
The Appellant Employer’s submission overlooks the serious nature of Mr Zeineddine’s illness and its impact on his life. The fact that there is no evidence of suicide attempts after April 2000 does not diminish the impact of the condition. The fact that voluntary weekly compensation continues to be paid (I assume at the maximum statutory rate) testifies to the significant and chronic nature of the injury. The report of Dr Attia-Soliman dated 26 March 2006, recorded Mr Zeineddine’s presenting problems as follows:
“Mr Zeineddine presented with the biological features of depression. Since the assault he was unable to get back to his work because of fear of being attacked again. He suffered nightmares about being attacked, which subsequently deceased. However, he felt depressed and isolated. He could no cope with daily life problems. He became irritable, forgetful and can’t concentrate. He has lost interest in daily activities. He attempted suicide twice by smashing a bottle and slashing his wrists.”
Under “His Current Presentation”, the doctor recorded:
“The above symptoms have led to separation and divorce from his wife, i.e. he has lost his job, family and house. He now lives alone in a granny flat at the back of his brother’s house. He became very angry to the extent that he through a fridge from the window. He is so terrified that he can’t sleep without a knife under his pillow. His young sister-in-law reported that she is afraid of his angry outbursts, which it seems no one is able to control. He is disorganised and forgetful. There is no proper supervision of his medication.”
Under “Mental State Examination”, Mr Zeineddine was noted to have a depressed affect and angry tone of voice, saying “there is nothing that pleases me or makes me happy. I am not motivated to do anything.” He had “irrythmatous [sic, erythematous – abnormal redness of the skin due to local congestion] sweaty palms, tremulous hands” and his speech was pressured but coherent.
Having regard to this evidence, and the other evidence in the case to a similar effect, the Arbitrator’s conclusion that the assault affected Mr Zeineddine in a “drastic manner” was open on the evidence and was clearly a matter the Arbitrator was entitled to take into account in his assessment of the claim. In respect of Mr Zeineddine’s failure to mention his sexual dysfunction to a medical practitioner until 2007, it must be remembered that the question to be answered is not whether Mr Zeineddine injured his sexual organs in the course of his employment on 9 December 1999, but whether as a result of that injury (the assault and consequential psychological condition) he has suffered a loss of use of his sexual organs. If the former were the question to be answered, the unexplained lack of complaint about such an injury for such a long period would almost certainly prove fatal to any claim. However, the lack of complaint in the present matter needs to be assessed in light of the fact that Mr Zeineddine is claiming a secondary or consequential loss, and in the light of his significant psychological condition. In these circumstances, the Arbitrator’s conclusion that Mr Zeineddine’s sexual dysfunction would rank as “a matter of relatively subordinate concern considering the extremes of distress which were the subject of treatment” (Reasons, paragraph 28) was open on the evidence and discloses no error.
In respect of the evidence of Mr Zeineddine’s apparent complaint of sexual dysfunction before the assault (see paragraph [8] above), the Arbitrator did not regard that evidence as “contradicting the Applicant’s case that he currently suffers from sexual dysfunction that is consequent upon his post-traumatic stress disorder” (Reasons, paragraph 27). He considered the evidence of the complaints recorded in the clinical notes on 20 October 1999 to be relevant to whether Mr Zeineddine had any pre-existing sexual dysfunction, a matter to be assessed by an Approved Medical Specialist (‘AMS’). This approach discloses no error. I do not accept the Appellant Employer’s submission that the presence of a prior complaint of sexual dysfunction means that the current claim must be dismissed. If a worker claimed compensation for a back injury, evidence of prior back pain would not automatically destroy a claim for lump sum compensation as a result of the work injury but it would certainly be most relevant to an assessment of the worker’s credit and to the assessment of whether any loss had resulted from the injury or from a pre-existing condition.
In the absence of evidence of the nature and extent of the prior sexual problem that prompted Mr Zeineddine to seek a prescription for viagra in October 1999, the Arbitrator’s conclusion was open to him and discloses no appealable error. The evidence fell well short of establishing that all of Mr Zeineddine sexual dysfunction problems pre-dated the assault and that, as a result, his claim should be dismissed. Once it is established, on the balance of probabilities, that Mr Zeineddine’s complaints of sexual dysfunction resulted from the established work injury, he is entitled to have the assessment of any loss resulting from that assault determined by an AMS. That is all the Arbitrator had to determine and, given that Mr Zeineddine was not cross-examined, he was entitled to reach a conclusion in favour of Mr Zeineddine.
The fact that Mr Zeineddine apparently gave a false history to Drs Lowy and McMahon that he had no sexual problems before 9 December 1999 did not mean that his claim could not be accepted without corroborative evidence. It required that the claim be carefully assessed to determine its reliability. The Arbitrator did that and noted Dr McMahon’s evidence in his report to the Appellant Employer’s insurer dated 6 August 2007 that it is “likely” that Mr Zeineddine is suffering from a PTSD complicated by major depression and that his sexual dysfunction is “directly related to that disorder and the associated depression”.
The Appellant Employer discounts the opinions of Drs Lowy and McMahon on the ground that they are based on incorrect histories and therefore, it is submitted, should not be given any weight. The histories recorded by Drs Lowy and McMahon are said to be incorrect in four respects:
(a) that Mr Zeineddine had normal sexual function before 9 December 1999;
(b) that Mr Zeineddine had no psychological problems before 9 December 1999;
(c) that Mr Zeineddine has been unable to achieve an erection sufficient for penetration since 9 December 1999, and
(d) that Mr Zeineddine was prescribed viagra for his sexual dysfunction between 1999 and 2006.
It is true that Mr Zeineddine’s history that he had normal sexual function before 9 December 1999 is open to doubt because of the entry in his general practitioner’s notes on 20 October 1999. However, the nature and extent of the problem Mr Zeineddine experienced in October 1999 is not explained in the evidence and he was not cross-examined about it.
The history that Mr Zeineddine had no psychological problems before 9 December 1999 is said to be false because the clinical notes from Port Kembla Hospital record attendances on 4 and 15 October 1999 for anxiety problems. I do not accept that the history of no psychological problems before 9 December 1999 is false in any relevant sense. The entry in the Port Kembla Hospital notes for 4 October 1999 refers to Mr Zeineddine’s presenting problem as being “Headache/Nausea/Anxiety”. The notes conclude with “Anxiety episodes – exacerbated by social circumstances ↑ tea & ↑ smoking” with a recommendation that Mr Zeineddine see his general practitioner if his symptoms persist. Mr Zeineddine attended hospital again on 15 October 1999 complaining of “Headache /vomiting”. I do not accept that these attendances justify the Appellant Employer’s submission that Mr Zeineddine’s history to Drs Lowy and McMahon of no prior psychological problems was false. As at October 1999, Mr Zeineddine performed his normal work without restriction. A complaint of “anxiety episodes”, without more, falls well short of establishing a ‘psychological condition’ such as to undermine the opinions of Drs Lowy and McMahon in the way suggested by the Appellant Employer.
The history that Mr Zeineddine has been unable to achieve an erection since the assault is said to be false because the clinical notes from his general practitioner include the following entry on 19 March 2003: “worried about AIDS - last sex activity + - 3/12 y”. The sexual activity referred to is not identified and neither party sought to clarify the issue by calling further evidence. The Appellant Employer submits that this entry confirms that Mr Zeineddine engaged in sexual intercourse at some time after 9 December 1999. In the absence of evidence explaining the significance of this entry and elaborating on the nature of the sexual activity involved, I do not accept the Appellant Employer’s submission that this entry conclusively establishes that Mr Zeineddine engaged in intercourse after 9 December 1999, contrary to his history to Dr Lowy. The cause of Mr Zeineddine’s concern about AIDS is not clearly identified in the evidence and in these circumstances the Arbitrator was not in error in giving this entry little weight. Even if it is accepted that, contrary to his evidence, Mr Zeineddine did engage in sexual intercourse after 9 December 1999 that fact does not destroy his claim but it is certainly an important factor to be taken into account in determining the extent of any loss of use of sexual organs he may have. However, it was not for the Arbitrator to determine the extent of Mr Zeineddine’s loss, but merely to determine if that claim should be referred to an AMS for assessment.
It is argued that the history that Mr Zeineddine was prescribed viagra for sexual dysfunction between December 1999 and 2006 is false, as the relevant clinical notes make no reference to such a prescription. It is correct that the general practitioner’s notes make no reference to Mr Zeineddine being prescribed viagra after 9 December 1999. However, the evidence is that a sample of viagra was given to Mr Zeineddine by his general practitioner, presumably without a prescription. This evidence is found in a letter of particulars from Mr Zeineddine’s solicitor dated 27 September 2007. Again, this evidence was not challenged in cross-examination. The relevant history in Dr Lowy’s report of 29 March 2007 is at page two, which reads: “He has tried Viagra provided by [his] family doctor, which only results in a flushing of his face with no erectile response” (emphasis added). Dr Lowy did not suggest that the viagra was provided by way of a prescription. I do not believe this issue impacts in any way on the weight to be attached to the medical evidence in the case.
Therefore, of the four allegedly false factual matters referred to by Drs Lowy and McMahon, only one may well be inaccurate, namely, the allegation that Mr Zeineddine had normal sexual functioning before 9 December 1999. The question is whether that inaccurate history has so undermined the doctors’ opinions that the Arbitrator erred in not making an award for the Appellant Employer.
In support of its position, the Appellant Employer relies on Paric. In that matter it was argued that several medical experts for the employer had based their conclusions on inaccurate histories and, therefore, the trial judge should not have accepted their opinions. In the NSW Court of Appeal (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505) Samuels JA (Hutley and Priestley JJA agreeing) said, at 509-510:
“It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.”
The High Court ([1985] 59 ALJR 844) unanimously dismissed the worker’s further appeal stating, at 846:
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence: Ramsay v Watson (1961) 108 CLR 642. But that does not mean that the facts proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels JA in the Court of Appeal…to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”
The Court of Appeal further considered this issue in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 where Heydon JA (as he then was) said at [64]:
“The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are ‘sufficiently like’ the matters established ‘to render the opinion of the expert of any value’, even though they may not correspond ‘with complete precision’, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd (at 846; 87). One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.”
Applying the above principles to the present matter it is my view that the critical history recorded by Drs Lowy and McMahon was sufficiently like the matters established in the evidence to render their opinions of value even though the histories were inaccurate in respect of Mr Zeineddine’s past sexual functioning.
The critical history recorded by Dr Lowy was that:
(a)on 9 December 1999 Mr Zeineddine was assaulted in the course of his employment;
(b)as a result of that assault he has been diagnosed with PTSD, has attempted suicide on three occasions, and he remains on workers compensation benefits;
(c)as a result of the changes in his mental state after the assault, his wife divorced him and he now lives in a cabin in the backyard of his brother’s home;
(d)he receives regular psychological help;
(e)he continues to be unwell and suffers from depression;
(f)he remains on medication for his psychological condition;
(g)he no longer wakes with erections in the morning, and
(h)he is unable to achieve an erection or engage in sexual intercourse.
Dr McMahon took a similar history but did not have the benefit of seeing the treating doctors’ reports. Nevertheless, his impression as a non-psychiatrist was that Mr Zeineddine was suffering from PTSD associated with a major depressive illness. Whilst Dr Lowy recorded that Mr Zeineddine had not engaged in sexual intercourse at all since the assault, Dr McMahon recorded that Mr Zeineddine “experienced progressing worsening difficulties with achieving an erection sufficient for intercourse” following the incident. Dr McMahon recorded that Mr Zeineddine attempted intercourse on an occasional basis and progressively developed a pattern of sexual avoidance due to his frustration with repeated attempts and failure. In the absence of cross-examination, it is impossible to determine which history is correct though I note that Dr Lowy’s history is consistent with paragraph 12 of Mr Zeineddine’s statement of 1 August 2007. Dr McMahon also recorded that Mr Zeineddine does not have a regular or casual sexual partner and has developed a pattern of relationship avoidance due to frustration and negativity imposed by his sexual dysfunction.
Medical examination did not reveal any physical cause for Mr Zeineddine’s sexual dysfunction and Dr Lowy concluded that the problem was “entirely due to Mr Zeineddine’s psychological state”. Dr McMahon concluded (at page four) that:
“Men with chronic depression can either alone, or as part of a post traumatic stress disorder, often experience sexual dysfunction, particularly erectile dysfunction. Although I am not a psychiatrist, my impression is that Mr Zeineddine is suffering from a post traumatic stress disorder, associated with major depression. I am of the opinion that his sexual dysfunction is related to his probable post traumatic stress disorder and associated depression.”
Dr McMahon added at page five that:
“In as much as Mr Zeineddine appears to be still substantially disabled from a psychological point of view more than eight years after the incident, the prognosis for recovery must remain guarded. My opinion regarding prognosis for recovery of his post traumatic stress disorder is not expect [sic, expert] as I am not a psychiatrist. The prospect for recovery of his sexual dysfunction is likely to parallel resolution of his post traumatic stress disorder and if the latter is protracted, it is reasonable to speculate that his sexual dysfunction will be prolonged.”
Having regard to the histories recorded by Drs Lowy and McMahon, and having particular regard to Mr Zeineddine’s diagnosis of PTSD and depression, I reject the Appellant Employer’s challenge based on the principles discussed in Paric. The histories recorded by the doctors provided a “fair climate” for the acceptance of their opinions that Mr Zeineddine has, on the balance of probabilities, suffered some loss of use of his sexual organs as a result of his clearly established psychological injury. However, the inaccurate history recorded by Drs Lowy and McMahon about Mr Zeineddine’s pre-injury level of sexual functioning is certainly relevant to the question of whether Mr Zeineddine suffered any pre-existing loss of use of his sexual organs. An AMS, not an Arbitrator, must determine that question. That inaccurate history would have made it impossible for an Arbitrator to accept Dr Lowy’s opinion (that Mr Zeineddine has a 70% loss of use of his sexual organs) with no reduction for a pre-existing condition. However, that issue does not arise because quantification of Mr Zeineddine’s loss and any deduction for a pre-existing condition is not a matter for an Arbitrator but must be undertaken by an AMS.
I do not accept that the Arbitrator “cherry-picked” pieces of the evidence that appeared to be tenuously or partly consistent with Mr Zeineddine’s story and has ignored other pieces of evidence that contradict it. The Arbitrator assessed all of the evidence and accepted that Mr Zeineddine suffers from sexual dysfunction as a result of his accepted work injury and consequential PTSD (Reasons, paragraph 31). The evidence from Mr Zeineddine and Drs Lowy and McMahon provided ample support for that finding, which the Arbitrator made on the basis of the more demanding test that employment was a “substantial contributing factor” to the claimed loss, when Mr Zeineddine only had to establish that his loss was a “result of” (“resulted from”) his injury (Kooragang). The Arbitrator was required to make “a common sense evaluation of the causal chain”. Applying that test, the Arbitrator’s finding, based as it was on logical and probative evidence linking Mr Zeineddine’s sexual dysfunction with his PTSD, is unassailable and discloses no error.
Similarly, I do not accept that the Arbitrator failed to properly consider the attack on Mr Zeineddine’s credit and erred in not finding that Mr Zeineddine was an unreliable witness. Given that Mr Zeineddine was not cross-examined, it was for the Arbitrator to assess the claim and, the issues raised, as best he could in the light of all the evidence presented. Whilst the evidence was unsatisfactory in several respects, the Arbitrator made his determination on the basis of the logical and probative evidence (from Drs Lowy and McMahon) that supports a connection between Mr Zeineddine’s undoubted PTSD and his sexual dysfunction. That was the extent of the finding required of the Arbitrator, as he had no power to determine the quantum of that loss. Even if the Arbitrator had found Mr Zeineddine to be an unreliable witness, such a finding would not necessarily have destroyed the logical and probative force of the evidence from Drs Lowy and McMahon. The Arbitrator also placed some weight on the fact that Dr McMahon’s conclusions “coincide with those of Dr Lowy” (Reasons, paragraph 26) and he properly took into account the fact that Mr Zeineddine’s evidence to Drs Lowy and McMahon regarding his difficulty in achieving an erection was not contradicted (Reasons, paragraph 28). The Arbitrator was entitled to place weight on those matters and his assessment of the evidence discloses no appealable error.
OTHER MATTERS
The parties have made extensive submissions on the relevance of the Appellant Employer’s failure to cross-examine Mr Zeineddine at the arbitration. Whilst it is not essential for the resolution of the appeal, it is appropriate that I make some observations about those submissions.
It is argued by Mr Zeineddine that as he was not cross-examined the Appellant Employer is not permitted to make any submissions on credit on appeal (Browne v Dunn (1894) 6 R 67). That is not correct. As there is no automatic right to cross-examine in the Commission the failure to do so does not prevent a party from making submissions on issues of credit (or other issues), provided those issues have been fairly and adequately ‘flagged’ or raised in the evidence and the worker has had a reasonable opportunity to respond to them (see Prestige Property Pty Ltd v Rafiq [2006] NSWWCCPD 355 at [30] and [31] and Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3 at [56] to [59]).
The Appellant Employer’s legal representative made a “forensic decision not to apply for leave to cross-examine the worker given the unsatisfactory state of the worker’s evidence” (Appellant Employer’s Submissions in Response 7 April 2008, paragraph 29). I agree that the evidence was (and remains) in an unsatisfactory state with several issues not properly explored or explained. However, that does not mean the Appellant Employer had to succeed. The Arbitrator was left to determine several difficult issues relating to Mr Zeineddine’s credit without those issues having been tested by cross-examination. In those circumstances the Arbitrator was not in error in accepting Mr Zeineddine evidence, supported as it was by the logical and probative evidence of Drs Lowy and McMahon. Given that the Appellant Employer chose not to challenge Mr Zeineddine’s evidence at the arbitration by way of cross-examination, it faced a more “difficult task” (per Heydon JA (Santow JA agreeing) in Manly Municipal Council v Skene [2002] NSWCA 385 at [20]- [23]), though certainly not impossible, in challenging the Arbitrator’s decision on appeal on the ground that the Arbitrator did not make the adverse findings as to Mr Zeineddine’s credit that it urged.
Whilst a party must seek leave to cross-examine in the Commission, the ‘Guideline for the Practice of Conciliation/Arbitration Process’ published by the Commission, expressly notes that cross-examination may be allowed in circumstances where “contradictory evidence requires to be clarified or tested”. The circumstances where cross-examination may be allowed were fully discussed in the decision of Acting Deputy President Snell in Electrolux Home Products Pty Limited v Richey & Email Limited [2006] NSWWCCPD 242.
A further issue relates to whether the Arbitrator’s determination was a “decision of an interlocutory nature” (section 352(8) of the 1998 Act). Neither party has addressed this issue; presumably because of the way the Arbitrator posed the issue for determination (see [32] above). However, given that “injury” (the assault and the consequential psychiatric condition) was not in issue, it is strongly arguable that the Arbitrator’s decision was interlocutory in nature because it did not finally determine any rights but merely determined that the matter could proceed to assessment by an AMS. As this issue has not been the subject of any submissions, I express no concluded view about it save to remind the parties that there is no right of appeal against an interlocutory decision by an Arbitrator.
CONCLUSION
It follows from the above analysis that, subject to the correction of the Arbitrator’s error in finding that employment was a substantial contributing factor to the loss of use of sexual organs, I do not accept the Appellant Employer’s challenge to the Arbitrator’s substantive determination that the matter be remitted to the Registrar for referral to an AMS for assessment of Mr Zeineddine loss of use of sexual organs.
The parties agree that the Arbitrator erred at paragraph five of his determination where he referred the AMS to the clinical notes of 19 May 2003 and that the correct reference should be to the clinical notes of 20 October 1999.
DECISION
Paragraphs one, two and five of the Arbitrator’s determination of 20 November 2007 are revoked and the following orders made in their place:
“1.As a result of an assault received in the course of his employment with the Respondent on 9 December 1999 and to which his employment was a substantial contributing factor, the Applicant sustained a psychological injury.
2.As a result of the psychological injury referred to in paragraph one above, the Applicant has suffered a loss of use of his sexual organs.
5.The Approved Medical Specialist is, for the purpose of assessing whether any deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 is appropriate, referred to the entry of 20 October 1999 in the clinical notes produced by NAS Advanced Medical Centre.”
Paragraphs three, four and six of the Arbitrator’s determination, and the Arbitrator’s certification regarding costs, are confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
19 May 2008
I, EMMA LETHBRIDGE-GILL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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