Mohsen v BLH New South Wales Pty Ltd
[2022] NSWPIC 144
•6 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Mohsen v BLH New South Wales Pty Ltd [2022] NSWPIC |
| APPLICANT: | Hossein Mohsen |
| RESPONDENT: | BLH New South Wales Pty Ltd |
| SENIOR MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 6 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION – Subject matter decision; findings of fact; applicant was injured as alleged. |
| DETERMINATIONS MADE: | 1. The applicant is a worker as defined by s 4 of the Workplace Injury Management and Workers Compensation Act 1998. 2. Employment was a substantial contributing factor to the injury pursuant to s 9A of the Workers Compensation Act 1987. 3. The parties are directed to file submissions in respect of capacity. |
STATEMENT OF REASONS
BACKGROUND
The applicant was employed by the respondent as a form worker.
Mr Mohsen claims on 17 March 2020 he was carrying a length of timber over his shoulder when he lost footing on debris and sawdust and fell heavily on his buttocks and lumbar spine.
The applicant claims injury to the lumbar spine, cervical spine, thoracic spine, left lower extremity, right lower extremity, right upper extremity and ribs. In addition, the applicant claims a psychiatric injury in the form of a post-traumatic stress disorder and adjustment disorder.
The claims of the injury occurred on the basement level of the building he was working in, that is level 4. The respondent disputes that the applicant was instructed or was working at this level on that day.
The applicant claims weekly compensation and reimbursement of incurred medical expenses.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) was the applicant a worker as defined by s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)?
(b) was employment a substantial contributing factor to the injury as required by s 9A of the Workers Compensation Act 1987 (the 1987 Act)?
PROCEDURE BEFORE THE COMMISSION
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 have 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
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply to the Application to Resolve a Dispute.
The matter was unable to proceed on the listed date as the parties spent the allocated time in negotiation. A direction was then made for written submissions to be filed and served. The applicant provided written submissions dated 23 February 2022 and the respondent on 27 February 2022.
The respondent’s case
The respondent essentially denies the applicant’s claim on the basis of a report from SureFact Australia Pty Ltd dated 27 April 2020.
Contained in that report are statements from Mr Vantol, Mr Petrovic and Mr Nguyen to the effect that no injury had occurred as claimed by the applicant and the circumstances of the injury as claimed by the applicant did not occur.
The factual dispute is of some significance and I will now outline the evidence in relation to that dispute.
The applicant’s evidence
The applicant has provided three statements in support of his claim the first dated 14 April 2020[1]. In that statement the applicant quite clearly identifies that he was at the time of injury moving pieces of wood when his right foot slipped on a wet surface, and he fell backwards and dropped the wood and hit his back on the plywood.
[1] Application page 1
The applicant identifies that it had been raining and the ground was slippery. He also identifies Mr Dororly as a witness to the incident.
He identifies being instructed to go to Level 4 by “Tom”.
The applicant’s second statement dated 6 August 2021[2] seems to confirm the applicant’s previous statements and the applicant also confirms that he did not report the injury to a representative from the respondent.
[2] Application page 9
In the applicant’s third statement dated 17 October 2021 he addresses the circumstances of the injury and explains why he was in the basement at the time of injury. He also addresses the evidence from Mr Vantol, Mr Nguyen and Mr Petrovic.
Statement of Mr Dororly
Mr Dororly has provided a statement which is annexed to the Application at page 16.
Mr Dororrly claims to have witnessed the applicants injurious event. Quite crucially
Mr Dororly confirms the applicant’s description of the circumstances in which he was injured. He agrees that the area they were working in was wet and that they were in the basement on level 4.His evidence is that they were instructed to go to that level by “Tom”, which is totally consistent with applicant’s evidence.
Adam Vantol
Mr Vantol has provided a statement which is annexed to the Reply at page 24. He is the operations manager for the Futureform Group. He states that the applicant would have been supervised by Mr Nguyen and Mr Petrovic.
Mr Vantol was unable to provide direct evidence in relation to the circumstances of where the applicant was working and the circumstances of the injury however, he ‘understands’ that the applicant would not have been required to work in the basement on the relevant day.
Mr Nguyen
Mr Nguyen’s statement is annexed to the reply at page 33.
Mr Newman was employed as a jump fall foreman, he gave the applicant directions in relation to his tasks and supervised him.
In relation to the index event, Mr Newman understands the applicant was working with Haysen Dorangi as his partner. He does not recall if it was raining on that day however comments that this was work ceases as it is unsafe.
Mr Nguyen refutes the allegation that the applicant was in the basement level for any reason. His evidence is that there was no work to be performed on the basement level and the only reason workers would goes to the basement level was for a smoking break or lunch.
Mr Nguyen makes positive comments in relation to the applicant and his capacity as a worker.
Mr Petrovic
Tom Petrovic’s statement is annexed to the reply at page 35. He was the site manager at the relevant time. He states that he has checked his work diary it was not raining on that day however was raining the day before.
Mr Petrovic states that the basement level 4 was sealed however concedes that water can go down the side of the building and penetrate that level.
Mr Petrovic refers to his diary which states that no one was meant to be working on level 4 on that date. The junk crew had finished that area long time ago and there was no formwork stored in that level. Mr Petrovic’s diary indicates that on the relevant day the team was working on the ground floor level pour.
Mr Petrovic confirms that the applicant did not report the injury in question. Simply put,
Mr Petrovic said that no one was meant to be working in the basement on that day however cannot provide direct evidence in relation to the applicant’s presence there or not and understandably relies upon his diary entries.
The claim form
The applicant completed a claim form[3] dated 18 March 2020. In that claim form the applicant says that the injury occurred on 17 March 2020 at 2pm. The injury occurred at the basement on level 4 whilst the applicant was performing formwork and that he was “carrying timber, slipped in wet plywood, fell backwards … injured his lower back, left leg, left knee and right rib side”. The applicant says that he did not formally report the injury to any person at the time of injury.[4]
[3] Reply page 16
[4] Reply page 19
The applicant identifies the place of injury in the claim form as the basement of level 4 and that with Tom Petrovic being the relevant employer representative.
Clinical notes of Dr Lim
Dr Lim is the applicant’s general practitioner and the applicant attended upon him on 18 March 2020.[5] Dr Lim records a history that the applicant complained that on 17 March 2020 he suffered a knee, right rib and back injury after slipping and falling while carrying a piece of timber at a building site.
[5] Application page 198
Meteorological records
The applicant has helpfully provided meteorological records which are contained in the Application at page 74. Those records confirm that on 15, 16 and 17 March 2020 there was significant rain on those dates. Indeed, on 15 March there were 10mm, on 16 March there were 15mm and on 17 March there were 10mm.
It should be observed that there is no evidence from by the respondent to challenge the records produced from the Bureau of Meteorology which quite clearly show that on the day of injury and the two days preceding there was significant rain. The only evidence to contradict these records is from the diary entry from Mr Petrovic which doesn’t indicate it rained on 17 March.
Factual consideration
The respondent says that the evidence of Mr Nguyen, Mr Petrovic and Mr Vantol should be generally accepted and that that should lead to a conclusion that the alleged incident did not occur as alleged by the applicant. In particular, Mr Nguyen’s evidence, who was the direct supervisor of the applicant at the time of the incident says that his team had been working in the jump form area on the ground level and level 1 not where the applicant was injured.
Mr Petrovic says that there was no reason for the applicant to be in the basement and that there was no reason for any work to be done on basement 4 at that time.The respondent submits that these three respondent witnesses ought to be accepted in preference to the applicant and Mr Dororly.
I do not agree with this submission. All three of the respondent’s witnesses do not provide direct evidence as to what they recall occurred on 17 March. Mr Vantol had no direct involvement with the applicant as didn’t Mr Nguyen. Mr Petrovic understandably relies on his diary but also has no direct recollection of the events on 17 March.
Against the evidence of these three witnesses is the evidence of not only the applicant but also Mr Dororly. Mr Dororly, an independent witness recalls the index event and provides evidence which is consistent with that of the applicant. To this end Mr Dororly’s evidence to my mind as an independent witness, who was working with the applicant, is in the best position and is most persuasive to my mind as to the circumstances of the tasks being performed and the state of the floor in question.
I also observe that the applicant’s evidence is also consistent with that of the general practitioner and the claim form.
The respondent raises issues of the applicant’s credit on the basis that he had not disclosed to doctors’ histories of any previous or similar injury, in particular Dr Gehr[6] and in his statement at paragraph 45 where he says he had not experienced any similar injury. Even though the applicant reported to Dr Hong, psychiatrist, that he was psychologically well prior to the alleged incident, there is evidence as disclosed in the respondent’s submissions at paragraph 27 onwards that the applicant had experienced significant trauma and associated symptomatology before the index event.
[6] Application page 34
I have considered this submission and am not persuaded that it erodes the applicant’s credit to the level sought. There is no doubt that the applicant had experienced lumbar and left knee pain before the pleaded event. He quite clearly refers to lumbar pain arising from previous employment as a butcher.[7] The applicant also describes trauma in his life before he arrived in Australia which must have had some effect upon him quite understandably. The applicant says however he did not have any incapacity arising from those injuries.
[7] Application page 9
The unchallenged evidence is that the applicant was clearly able to perform the physically challenging duties of a form worker from late October 2019 until the date of accident, namely 17 March 2020. If he had any incapacity arising from these pre-existing symptoms, then he would have been unable to complete the arduous tasks of a form worker.
Even though one could be critical of the applicant in not disclosing these pre-existing matters, it still leaves the evidence from Mr Dororly, which I find highly persuasive.
I, therefore, as a finding of fact, accept the applicant’s evidence as to the tasks being performed at the time of the injury at the basement level (or level 4).
Incapacity
There is a significant claim for weekly benefits from 25 May 2020 for total incapacity at the rate of $2,059.69 per week.
The respondent does not take issue with the pre-injury average weekly earnings claimed by the applicant, however in its written submissions makes a significant complaint regarding the applicant’s credit.
In paragraph four of the respondent’s submissions, they indicate that the primary issue for determination is whether the applicant was involved in an incident at work on 17 March 2020 as alleged. I have made findings of fact supporting the applicant’s allegations so far as injury is concerned.
It does not clearly appear, based on the submissions, whether incapacity is in issue.
Likewise, the applicant’s submissions focus on the factual challenge and not capacity.
In those circumstances I direct the parties to discuss the issue of weekly benefits in light of my findings of fact. They are to file proposed orders in respect of weekly benefits within seven days if agreement can be met.
If no agreement can be reached, the applicant is afforded seven days to put on short submissions in respect of incapacity, with the respondent to put on short submissions in reply within seven days following receipt of the applicant’s submissions.
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