Pathways Health (Killara) Pty Ltd v Molana
[2008] NSWWCCPD 86
•12 August 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Pathways Health (Killara) Pty Ltd v Molana [2008] NSWWCCPD 86 | ||||
| APPELLANT: | Pathways Health (Killara) Pty Ltd | ||||
| RESPONDENT: | Maziar Molana | ||||
| INSURER: | CGU Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | WCC75-08 | ||||
| DATE OF ARBITRATOR’S DECISION: | 14 April 2008 | ||||
| DATE OF APPEAL DECISION: | 12 August 2008 | ||||
| SUBJECT MATTER OF DECISION: | Injury; weight of evidence; failure to consider evidence. | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Bartier Perry | |||
| Respondent: | Keddies Lawyers | ||||
| ORDERS MADE ON APPEAL: | Time to appeal is extended until 13 May 2008. The Arbitrator’s determination dated 14 April 2006 is revoked and the following orders made: “1. Award for the respondent employer. 2. No order as to costs.” | ||||
| No order as to costs of the appeal. | |||||
INTRODUCTION
This appeal concerns whether the worker, Maziar Molana, injured his left elbow at work for Pathways Health (Killara) Pty Ltd, the owner of an aged care facility known as Killara Gardens. He alleges that his injury occurred on Thursday, 2 February 2006 when, while working in Pathways’ kitchen, a large commercial frying pan fell from a hook and struck his left elbow. The exact circumstances of the injury are disputed and are considered in detail below. The employer has always denied that any incident with a frying pan occurred in its kitchen on 2 February 2006 and has always disputed liability.
The matter proceeded to arbitration on 19 March 2008 and, in a reserved decision delivered on 14 April 2008, a Commission Arbitrator found in favour of Mr Molana on all issues.
By an appeal initially filed on 12 May 2008 but rejected by the registry and re-filed, out of time, on 13 May 2008, Pathways seeks leave to appeal the Arbitrator’s determination.
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’).
It is not disputed that the thresholds in paragraph 352(2) are satisfied.
Time
The appeal was initially filed in time on 12 May 2008 but was rejected because Part 3 and Part 4 had not been signed and the Arbitrator had not been identified. It was re-filed on 13 May 2008, one day out of time. The employer seeks to extend time in which to appeal.
An extension of time in which to appeal is governed by Rule 16.2(11) of the Workers Compensation Commission Rules 2006, which provides:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
In support of its application to extend the time in which to appeal, the employer submits:
(a)the appeal is only one day out of time;
(b)there is no prejudice to Mr Molana by the late filing of the appeal;
(c)it will suffer great prejudice if it lost the right to appeal;
(d)it has a strongly arguable case, and
(e)it will suffer a demonstrable and substantial injustice if the right to appeal is lost.
Mr Molana does not oppose the extension of time.
I am satisfied that exceptional circumstances exist, and that for the employer to lose the right to appeal would work demonstrable and substantial injustice.
I extend the time to appeal until 13 May 2008 and I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Number 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 14 April 2008, records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant weekly payments of compensation:
(i)from 31 March 2006 to 28 March 2007 at the rate of $681.33, pursuant to section 38 of the 1987 Act:
(ii)from 29 March 2007 to date at the maximum statutory rate for a single worker with no dependents, as adjusted, pursuant to sections 40 and 37 of the 1987 Act.
2. Such payments to continue on accordance with the Acts.
3. That the Respondent pay the Applicant’s s60 of the Act expenses on production of accounts or receipts.
4.That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator:
(a)failed to provide an adequate analysis of the relevant evidence on the question of whether the alleged injury occurred;
(b)failed to consider all the evidence and the weight of the evidence;
(c)failed to give a clear or logical explanation of the reasons why some evidence was preferred over other evidence, and
(d)made a finding in favour of Mr Molana that was against the evidence and the weight of the evidence.
NATURE OF A REVIEW
The Court of Appeal considered the nature of a ‘review’ under section 352 of the 1998 Act 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.”
McColl JA approved this passage in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [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]). Thus, on review, a Presidential member is not bound by an Arbitrator’s discretionary decision, but can reach his or her own conclusion.
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; (2007) 5 DDCR 287 (‘Chemler’) 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.”
I intend to apply the above principles in the matter before me.
THE EVIDENCE
Mr Molana was born in 1949 and is currently 59 years of age. He came to Australia in about 1978 and started work at Pathways as a kitchen hand/handyman/cleaner at its aged care apartments on 5 November 2005. His duties included preparing meals and trolleys for residents, setting trays, serving meals, washing dishes, cleaning and setting dining tables.
He alleges that on 2 February 2006 he was preparing breakfast for residents when a frying pan fell onto his left elbow. The circumstances of the incident are set out at paragraphs six and seven of his statutory declaration dated 1 August 2006:
“6.The accident occurred when I was reaching for a ladle to stir the porridge. The ladle was hung up on a hook on the wall. I recall holding an item in my left hand as well. A large frying pan was hanging in front of the ladle. I needed to move the frying pan with my right hand and as I was attempting to do so, the frying pan fell directly on to the back of my left elbow.
7.The frying pan was a huge, white and heavy pan and was a commercial use frying pan. It weighed between twelve and fifteen kilograms and had a long handle.”
Mr Molana states that at the time of the injury he felt “a sharp pain” to his elbow, but, as he was worried about the residents, and was working to a strict schedule, he had no time to seek medical attention. He also states that at the time of the injury he was the only person in the kitchen, but he “later” spoke to the “chef on duty” about the accident. He does not now recall the chef’s name and says that the chefs are constantly changing. He does recall that the chef to whom he spoke was of Yugoslavian appearance and that the chef said, “You will have to take care of yourself”.
Mr Molana initially stayed at work performing his usual duties. He dealt with the consequences of the alleged injury at paragraph 13 of his statutory declaration:
“13.After days of battling the pain, I felt I could no longer cope with my injury. I attended my local GP, Dr Sandy Collings about two weeks later. My solicitors have requested a report from Dr Collings to confirm the nature of my injury and details of the accident.”
On 15 February 2006, Mr Molana attended on Dr Collings for personal reasons, but the doctor’s notes make no mention of any elbow symptoms.
Mr Molana again attended on Dr Collings on 9 March 2006 when the doctor recorded:
“Rash on lower forehead and nose and cheeks – first noticed last week. May be slightly itchy.
Left elbow accidentally hit by a large frying pan whilst at [a] new job (taken 5 or 6 months ago) involved in aged care facilities – required to carry heavy cleaning chemicals – [he] was loading dishwashing liquid into dispenser. Short-lived pain, thought little of it. Some time later noticed pain over left lateral epicondyle with forearm flexing, especially if carrying heavy objects > 10 kg. Has stopped lifting heavy objects with left arm.
Reason for vist:
Acne rosacea - > Rozex creasm; L lateral epicondylitis - > x-ray”
Mr Molana saw Dr Collings on a number of occasions in March 2006. The notes record, so far as is relevant to this claim:
17 March 2006: “Pain over lateral aspect of elbow is easing.”
22 March 2006: “Unable to lift blankets and doonas with left elbow
Relates to hit by frypan
…
Referral to North Shore Radiology for U/S left elbow.”
31 March 2006: “Discussed ultrasound of left elbow region: tendinosis origin of common extensor tendon.”
Mr Molana last worked for Pathways on 31 March 2006.
He formally reported the incident to the employer’s Assistant Director of Nursing (‘ADON’), Fiona Flood, on 3 April 2006, when he presented a WorkCover certificate from Dr Collings dated 31 March 2006. The certificate described the injury as having occurred as follows:
“Increasing pain in L elbow dating from being hit on 2/2/06 by frypan in kitchen at work”
The employer’s “First Notification of Injury” form, dated 3 April 2006, and signed by J M Roach, states:
“When asked by ADON Moziar stated no particular incident caused pain in L elbow. On WorkCover certificate Moziar stated he was hit 2/2/06 by fry pan in kitchen at work on Lt elbow.”
Mr Molana also saw Dr Collings on 3 April 2006 and the doctor’s notes record:
“Presented WorkCover certificate to employer – some upset with junior female staff member’s comments but boss Jason sent Maziar home on Saturday and Monday until situation can be assessed.
…
Management:
For referral to orthopaedic surgeon for further assessment re 8 mm tears in tendon.
Supportive counselling re work colleague treatment.”
On 6 April 2006, Mr Molana presented to the emergency department at Royal North Shore Hospital. The report from Dr Ho, resident medical officer, is unusual as it describes the presenting problem as “BILAT SHOULDER PAIN/NECK PAIN”, but the diagnosis as “ELBOW PAIN”.
At some stage, Mr Molana came under the care of Dr Hassim, general practitioner, at Darlinghurst. In a report dated 21 July 2006, Dr Hassim certified that Mr Molana had received treatment for left upper limb pain as a result of an injury sustained at work on 2 February 2006. He prescribed panadine forte and also noted wasting in the left upper limb.
Ms Flood completed a hand written note on 11 April 2006, in which she sated:
“Moziar presented a workcover NSW medical certificate to ADON on 3 April 2006.
Nil previous knowledge of injury or incident before 3/4/06 by any Killara Gardens personnel.
On 3/4/06am Moziar stated there was no particular incident that had led to his injury.
He thought it was due to his current duties.
3/4/06pm when asked about incident reported on work cover certificate Maziar stated incident had slipped his mind he forgot to mention it to ADON. Maziar was unable to stat [sic] any details about incident.
At first he stated he hit himself on the elbow, then he stated the chef Brian had hit him on the elbow, latter [sic] he stated another member of staff had done it but he wasn’t sure who it was.
Maziar stated Brian Campbell was aware of the incident. Upon questioning Brian had no knowledge of any incident and had not noticed any physical problems with Maziars Lt arm. Furthermore Brian was not on duty the day the incident occurred.
No staff have any knowledge of the incident on work cover certificate.”
In his claim form completed on 1 May 2006, Mr Molana described the incident and injury as follows:
“During the day a large frying pan falling on my left arm and me at left elbow and I felt sharp pain.
Because of nature of task of lifting heavy pack of sugar (25kg) flour (25kg) drum of oil (20 litre) and ext [sic] and non stop from 6:3—2pm running from side to another makes it impossible to be conscious [sic] all the time.”
Mr Molana nominated the witness to the incident as “chef”, but gives no name.
The insurer arranged for a factual investigation, which was completed on 18 May 2006. The investigators took statements from several co-workers. Ms Flood’s statement of 10 May 2006 confirms her note of 11 April 2006. She said:
“13.On Monday 3.4.06 he [Mr Molana] came in to see me but not to present for work he presented a workcover medical certificate and I asked what the certificate was about and he said his left arm was sore.
14.I asked him why and how his left arm was sore (he is right handed as far as I know). He said nothing happened it is just from all the work he has had to do over the past few months. I questioned him as to whether there was a particular incident and he said there was not. At that time I had not thoroughly read the certificate where it mentioned the incident on 2.2.06.
15.He said he was fit for suitable duties from 1.4.06 to 7.4.06 as per medical workcover certificate. I explained that in his role there were no suitable duties where he could not use his left arm.
16.After he left I read the certificate and noted it was due to an incident in [the] kitchen so I rang him up to discuss this and asked him why he had not told me and he stated it had slipped his mind.
17.I asked him about the incident and at first he was not able to give me any details of the incident. I asked him how he was hit from the frypan and he said he had hit himself on the elbow. Upon further questioning I asked him how he hit himself and he then stated the chef Brian had hit him with the frying pan on the elbow. When I tried to get more information about the incident he became more flustered and verbally aggressive and could and would not supply any further more [sic] information about the incident relating to time and other witnesses and exactly how it occurred. There was no mention of any frypan falling from a hook on the kitchen wall.”
Mr Molana does not recall saying that the chef he spoke to was Brian. As a result of her conversation with Mr Molana, Ms Flood made enquiries of the chef, Brian Campbell, who had no knowledge of the incident, as he did not work on Thursdays. She also spoke to Tom Jukic, the chef on duty on Thursdays, who had no knowledge of the incident. She also spoke to other staff members who had no knowledge of any incident on 2 February 2006.
When Mr Molana brought in his next certificate (dated 3 April 2006) Ms Flood asked him why he had not reported the injury before 3 April 2006. He allegedly said nothing initially and then changed the subject. When asked again, he said he did not know how to report an injury. When Ms Flood reminded him that he had received numerous orientations and education about OH & S and manual handling he became flustered and verbally aggressive. Ms Flood also informed Mr Molana that Brian Campbell had not been at work on 2 February 2006 and Mr Molana replied that it must have been someone “who was walking past him he was not sure and could not recall who it was”.
The investigators also took statements from Tom Jukic and Brian Campbell. Mr Jukic denied having any knowledge of any incident or injury involving Mr Molana until he (Mr Jukic) returned from one week’s leave in early April 2006, by which time Mr Molana had already reported the incident to Ms Flood and ceased work. Mr Jukic explained that there are two hooks on the kitchen wall, but they are only light enough to take tea towels or oven mitts, not frying pans. He said the only large frying pan in the kitchen is about 40 centimetres in diameter and 10 centimetres deep with handles on each side. It is kept under the preparation bench and used to fry veal and steaks. According to Mr Jukic, it is not used on Thursdays and, after checking his menu chart for 2 February 2006, it was not used on that day. He did not recall seeing or hearing any frying pan fall onto the floor on 2 February 2006 and he did not notice Mr Molana showing any sign of discomfort.
Mr Campbell confirmed that he did not work on 2 February 2006, and that the frying pans are not hung on hooks on the kitchen walls, but are kept on a shelf under the preparation area. The hooks are used for spoons and whisks. He denied bumping Mr Molana with a frying pan. On a date Mr Campbell could not recall, Mr Molana asked him, “Do you recall when I hurt my elbow?” to which he replied, “No”. He described Mr Molana as a good worker, but he did not notice him working with any limitation or problem with his arm at any time.
Statements were also taken from Claudia Hawkins, cook, Jason Dick, assistant manager, Karen Fail, kitchen hand, and Linda Ngamotu, cleaner, who all deny any knowledge of Mr Molana injuring his elbow, or of him having any restriction at work as a result of any problem with his elbow. Ms Ngamotu supervised Mr Molana’s duties as a cleaner. She observed that he performed his work without difficulty until she stopped supervising him on 29 March 2006, when he ceased cleaning work. Ms Hawkins, worked with Mr Molana on Saturday shifts. She states that on 25 March 2006, Mr Molana mentioned he had a sore left shoulder and, as he rubbed it, he said “it happened here during handyman work”. Ms Fail said that Mr Molana helped her to empty the bain-marie about two weeks before he left, but he made no mention of his elbow.
Mr Molana underwent an ultrasound on 29 March 2006, which revealed “tendinosis of the common extensor tendon on the left with hypoechoic change within the tendon and a linear split over a segment of approximately 8mm”. Similar changes were noted on the right side.
Mr Molana also relied on reports from Dr Collings dated 16 December 2006, and Dr Conrad dated 4 September 2006 and 20 April 2007. Dr Collings recorded that Mr Molana’s left elbow was accidentally struck by a frying pan that fell from its hook on the kitchen wall on 2 February 2006. The doctor also noted that Mr Molana’s duties required him to lift 25 to 30 kilogram drums of washing and cooking oil and other foodstuffs. The pain was initially severe but short lived. He later noticed pain over the left elbow when lifting objects weighing over 10 kilograms. The pain continued to increase in severity, resulting in him presenting at the surgery on 9 March 2006. At review on 31 July 2006, Mr Molana complained of diffuse left arm pain from the shoulder to the forearm with “parasethesia” [sic, paraesthesia] medially along the forearm and ulna digits as well as reduced grip strength.
Dr Collings arranged for Mr Molana to see Dr Hughes, orthopaedic surgeon, on 22 August 2006. Dr Collings’ clinical notes have the following entry on 22 August 2006:
“Phone call from Dr Hughes
Neuropathic pain, tender everywhere
Advised to have an MRI scan of cervical spine to exclude disc lesion.
Recommends nerve conduction studies and then to see hand surgeon or neurosurgeon if any nerve anomalies.
Pain symptoms and pain behaviours are worrying – volition is not full and prognosis is poor. May well be a regional pain syndrome whereas the original problem was clearly only at the elbow.
Does not think surgery for the epicondylitis would help. Thinks he has some tendinosis.
Later picked up his jacket with a clenched fist but refused to have active movement when tested – many inconsistencies in the examination.
Finding of the tear is almost ‘normal’ for his age.
Ultimately would need to see the pain management team at RNSH if pain persists.”
A cervical MRI scan showed cervical spondylosis with narrowing of the lateral recess and neural foramina at C5/6 and C6/7. Mr Molana was also referred to a rheumatologist and a neurosurgeon.
Dr Collings felt the bilateral tendinosis was likely to resolve with avoidance of heavy lifting and repetitive use of the left arm. The cervical spondylosis with compromised nerve roots was a more serious problem and may require surgical decompression.
On the issue of causation, Dr Collings believed that the initial short-lived left elbow pain was a consequence of the direct hit by the falling frying pain, but added:
“The absence of a fracture would indicate this was a trivial injury, although it is possible the trauma of the blow to the left elbow did cause some damage to the common extensor tendon.
The bilateral nature of the tendinosis demonstrated on ultrasound, however, would suggest other features of the job, such as lifting 25-30 kilogram drums, and repetitive movements such as sweeping, were likely factors in the development of the lateral epicondylitis.” (emphasis added)
Dr Conrad examined Mr Molana on 31 August 2006 and took the following history:
“His accident occurred on 2 February 2006. He said that a large commercial frying pan fell from an upper shelf. He thinks it may have weighed about 10kgs and hit his left elbow. He attended his General Practitioner, Dr Collings and x-rays and an ultrasound were taken of the elbow. No fractures were seen. He continued working in pain until 30 March 2006. He then stopped work, because of his elbow pain. He was not given physiotherapy, although recommended by his General Practitioner, as the insurance company declined to pay for it. He was referred to Dr Hughes, an Orthopaedic Surgeon. A Nerve Conduction Test has been ordered and an MRI scan, but these have not been done yet. He is still under the care of Dr Hughes.”
He diagnosed Mr Molana as having sustained a traumatic lateral epicondylitis and extensor tendonitis as a result of the accident on 2 February 2006. In his report of 20 April 2007, the doctor stated that the accident on 2 February 2006 was the “sole cause” of Mr Molana’s whole person impairment, which he assessed at 8%.
On behalf of Pathways, Dr Bhattacharyya and Dr Ehrlich examined and reported on Mr Molana. In his report of 24 April 2006, Dr Bhattacharyya took the following history:
“On 2.2.06 he was at work and he was working in the kitchen when a huge frying pan fell on his left arm. He feels that it fell from a hook on the wall. He felt immediate pain. A couple of days later he saw Dr Sandy Collings who advised x-rays. However the pain in the arm continued. He subsequently had an ultrasound examination of the left elbow and he has now been referred to Dr Hughes on 22.6.06.” (emphasis added)
Dr Bhattacharyya diagnosed tennis elbow, “consistent with the history provided” (page four). The insurer then provided Dr Bhattacharyya with a copy of the factual investigation report referred to above (see [37] above). Based on the information in the factual investigation, Dr Bhattacharyya stated in a supplementary report, dated 26 May 2006, that the injury was not consistent with the history provided to him by Mr Molana and that the injury did not occur in the manner described and, therefore, employment was not a substantial contributing factor to it.
Dr Ehrlich reported on 31 July 2007. He took a history that a heavy frying pan dropped from a shelf and landed on Mr Molana’s left elbow. He continued working, though he was in pain, because he needed the job. Mr Molana said he was much better and had no pain at the time of the examination, but felt there was a loss of strength.
THE ARBITRATOR’S DECISION
In his Statement of Reasons for Decision (‘Reasons’), the Arbitrator noted Ms Flood’s evidence in her statement, which he felt was inconsistent with the statement attributed to her in the “First Notification of Injury” form completed by J M Roach. He also referred to Dr Collings’ notes for 3 April 2006 that recorded Mr Molana as being “upset with junior female staff member’s comments”. He concluded that there was “some friction” between Ms Flood and Mr Molana that may have caused some miscommunication, “which left Ms Flood with a mixture of impressions about what Mr Molana actually said. At no time before or since is there any evidence of any such change in his statement of events” (Reasons, paragraph 17). After referring to Dr Conrad’s incorrect history (that the pan fell from an upper shelf) as an “error in transcription”, the Arbitrator then stated that “For these reasons I do not accept Ms Flood’s evidence that Mr Molana gave conflicting versions of the mechanism of injury to her”.
Dealing with the statements from the other co-workers, the Arbitrator concluded that they were “indicative that no-one recalls being told by Mr Molana about the frypan incident” (Reasons, paragraph 18). He acknowledged Mr Dukic’s evidence that the two hooks on the kitchen wall were only suitable for tea towels. He then considered the copy photographs attached to the factual investigation. “Photograph One” appears to confirm Mr Dukic’s evidence. However, in the Arbitrator’s opinion, “Photograph Two” showed ladles hanging from hooks and, though he conceded that it was not clear, what appeared to be a round object “like a frying pan” (Reasons, paragraph 18). He inferred that the area in the second photograph was the area Mr Molana referred to when he said he reached for a ladle on the wall. He therefore concluded that the photograph offered general support for Mr Molana’s contention that the pan was hanging near the ladle for which he reached, and he accepted Mr Molana’s evidence that a pan was hanging from a hook “on or near the wall”. He felt there was no evidence to directly contradict Mr Molana’s account on this issue.
The Arbitrator did not find it “troubling” that Dr Collings did not record any elbow pain at the consultation on 15 February 2006, as Mr Molana was troubled about his security and it was 13 days after the incident when he attended Dr Collings over an unrelated health issue. The Arbitrator felt that the absence of a complaint about his elbow on 15 February 2006 was consistent with Mr Molana’s worry about the impact a work injury might have on his job and was consistent with a natural hope that the injury would resolve.
The Arbitrator did not feel there was a conflict between Mr Molana’s statement at paragraph 13 of his statutory declaration (set out at [24] above) and Dr Collings’ entry on 9 March 2006 (set out at [26] above). He interpreted Mr Molana’s statement that “After days of battling pain” to be a general one about the injury not resolving over time.
The Arbitrator found Dr Collings’ reference to Mr Molana experiencing pain from carrying heavy objects not to be inconsistent with Mr Molana’s version of the mechanism of the injury (Reasons, paragraph 23).
Taking all the evidence into account on the “mechanism of injury”, the Arbitrator found Mr Molana’s credit to be undamaged and he accepted his account that he was struck by a large frying pan, which fell on him in Pathways’ kitchen on 2 February 2006, and that he felt sharp, short-lived pain, and subsequently experienced pain in the elbow when lifting heavy objects (Reasons, paragraph 24).
SUBMISSIONS
Pathways submits:
(a)whilst the Arbitrator referred to Ms Flood’s statement of 10 May 2006 and the Notification of Injury Form, he failed to refer to her hand written statement of 11 April 2006 (set out at [34] above);
(b)the Arbitrator was wrong to conclude that the “junior staff member” referred to in Dr Collings’ entry of 3 April 2006 (set out at [31] above) was Ms Flood (Arbitrator’s Reasons, paragraph 16). Ms Flood is a 44-year-old Assistant Director of Nursing whose duties included supervision of Mr Molana from 9 March 2006. It follows there was no basis to conclude that there was any tension between Mr Molana and Ms Flood which caused a “miscommunication”, as found by the Arbitrator. It could be inferred that the junior staff member was Ms Nogamotu;
(c)Ms Flood’s statement of 11 April 2006 is consistent with her statement of 10 May 2006, and there was no proper basis for the Arbitrator to reject her evidence that Mr Molana gave her conflicting versions of the mechanism of injury;
(d)the Arbitrator erred in saying that there was no evidence of any “change in his [Mr Molana’s] statement of events” (Reasons, paragraph 17). The Arbitrator failed to consider the conflicting accounts of injury recorded in the The Application to Resolve a Dispute (‘the Application’) filed by Mr Molana on 9 January 2008, Mr Molana’s statutory declaration, and his different accounts to the doctors;
(e)it was against the weight of evidence for the Arbitrator to conclude that Dr Conrad made an error in transcription when he recorded that the “pan fell from an upper shelf”, as that was the account given in the Application filed in the Commission and it accords with Dr Ehrlich’s history;
(f)the Arbitrator’s finding at paragraph 24 of his Reasons failed to provide sufficient detail of the mechanism of injury, where that mechanism was in issue;
(g)the Arbitrator’s summary of the evidence of the co-workers’ statements was “misrepresentative” of the evidence, as they did not say they did not “recall” being told about the frying pan incident. Their evidence contradicts Mr Molana’s evidence that he told a young chef of Yugoslavian appearance about his injury and that he worked on despite severe pain;
(h)the inconsistencies about the details of the frying pan, and from where it fell, are more likely to occur when a worker has fabricated an event and an allegation of injury;
(i)the Arbitrator failed to consider the evidence of Mr Jukic and Mr Campbell, which contradicts Mr Molana’s account of the frying pan hanging on the wall;
(j)the pan referred to in Photograph Two does not fit the description given by Mr Molana of a “huge” “commercial use frying pan” weighing between 12-15 kilograms. It is glaringly improbable that the hooks in Photograph Two could have supported a 12-15 kilogram object. Mr Jukic’s evidence is that the only large frying pan used in the kitchen was a 40cm pan with small handles at the side. The Arbitrator failed to consider these inconsistencies;
(k)Mr Molana’s history of seeing Dr Collings on 15 February 2006 and not mentioning his injury of 2 February 2006 is inconsistent with his account in his statutory declaration. Mr Molana’s account of sharp pain immediately following the injury on 2 February 2006, followed by “days of battling the pain” and feeling he could no longer cope with his injury and attending his general practitioner about two weeks later, is not borne out by the evidence. Mr Molana’s evidence at paragraph nine of his statutory declaration implies that he was in such pain that he would have consulted his doctor immediately following the alleged injury had he not been so busy at work. However, when he saw his doctor on 15 February 2006, he made no mention of his elbow;
(l)Dr Collings’ history on 9 March 2006 (set out at [26] above) is inconsistent with a frank injury on 2 February 2006 that caused severe pain;
(m)the Arbitrator failed to give sufficient reasons for preferring the opinion of Dr Conrad on the issue of injury over that of Dr Collings;
(n)in circumstances where the Arbitrator identified two possible ‘errors’ in Dr Conrad’s reports, he failed to give proper reasons for preferring the opinion of Dr Conrad over that of Dr Ehrlich and Dr Collings;
(o)the Arbitrator did not base his preference for Dr Conrad’s opinion on a logical analysis of the evidence. Dr Collings took a history on 9 March 2006 of pain following carrying heavy objects at work. That history is consistent with the findings on ultrasound of bilateral tendinosis, and
(p)the Arbitrator’s conclusion is against the weight of the evidence.
Mr Molana submits:
(a)when the Arbitrator’s reasons are read in conjunction/context with the transcript, the Arbitrator’s line of reasoning can clearly be determined;
(b)the Arbitrator clearly explicated his reasons for his findings;
(c)the Arbitrator accepted the explanation for Mr Molana’s apprehension in reporting his injury to Ms Flood;
(d)the Arbitrator’s determination is reasonable when read in context with the evidence annexed to the Application and the transcript of the arbitration;
(e)the Arbitrator did not accept Pathways’ investigative report and witness statements as reliable. The statements, when viewed in the context of the photographs attached to the investigators report, clearly indicate disparity between those accounts. Pathways now seeks to re-state its case in its submissions on appeal and such an approach is beyond the ambit of the appeal process, and
(f)the Arbitrator properly and coherently disclosed reasons for his determination.
I have found Mr Molana’s submissions on appeal of limited assistance, but I have carefully read and considered his more detailed submissions at the arbitration.
DISCUSSION AND FINDINGS
The above analysis reveals that the Arbitrator failed to consider an important part of the evidence, namely, Ms Flood’s statement of 11 April 2006. A failure to refer to evidence that is material to critical findings demonstrates that the Arbitrator erroneously overlooked or discarded such evidence (Najdovski v Crnojlovic [2008] NSWCA 175 at [21] citing Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444 and Whalan v Kograh Municpal Council [2007] NSWCA 5 at [36] and [40]). In addition, he incorrectly concluded that the statements from the other co-workers were “indicative that no-one recalls being told by Mr Molana about the frypan incident”. The statements from the co-workers did much more than that; they directly contradicted Mr Molana’s evidence in several key respects (see [40] to [42] inclusive above).
These errors require that the matter be re-determined. Whilst the evidence raises significant credit issues, neither party called oral evidence and, in these circumstances, I am in as good a position as an Arbitrator to re-determine the matter, and that is the course I propose to adopt.
There are a number of difficulties with Mr Molana’s evidence that require his claim be carefully assessed, to determine its consistency and validity. First, he gave several different versions as to how the incident on 2 February 2006 occurred. They are:
(a)his “Left elbow [was] accidentally hit by a large frying pan whilst at [a] new job…[he] was loading dishwashing liquid into dispenser” (Dr Collings’ clinical notes, 9 March 2006);
(b)when he reported the incident to Ms Flood on 3 April 2006, he gave four different explanations: first, that there was no particular incident and that he thought his problem was due to his current duties, second, he hit himself on the elbow, third, the chef Brian hit him on the elbow, and, fourth, another staff member had done it;
(c)to reach a ladle hanging from a hook on the wall, he moved a frying pan hanging in front of the ladle with his right hand and, as he did so, the frying pan fell onto the back of his left elbow (Mr Molana’s statutory declaration, 1 August 2006, paragraph six);
(d)that a frying pan fell from its hook on the wall and hit his left elbow (Dr Collings’ report of 16 December 2006);
(e)during the day a large frying pan fell on his left arm and left elbow and he felt sharp pain (Mr Molana’s claim form 1 May 2006), and
(f)that a frying pan fell from a shelf and hit his left elbow (Dr Conrad, 31 August 2006 and Dr Ehrlich 31 July 2007).
Whilst these variations are not, on their own, determinative of the claim, they raise doubts as to the overall reliability of Mr Molana’s evidence.
Second, Mr Molana’s explanation as to the reporting of the incident is also unsatisfactory. He claims that he spoke to a chef “of Yugoslavian appearance”, who said, “You will have to take care of yourself” (Mr Molana’s statutory declaration, paragraph 12). Ms Flood’s evidence is that Mr Molana said that Brian (a reference to the chef Brian Campbell) was “aware of the incident”. In his statutory declaration, Mr Molana said he did not recall saying he had reported the incident to Brian (paragraph 10). After speaking to Mr Molana on 3 April 2006, Ms Flood spoke to Brian Campbell to see if he corroborated Mr Molana’s claims. This tends to confirm that Mr Molana had mentioned “Brian” in the conversation with Ms Flood on 3 April 2006. Mr Campbell told her, as he has later confirmed in his statement, that he had no knowledge of the incident. This is not surprising, as he was not at work on 2 February 2006.
I do not accept Mr Molana’s claim that he reported the incident to a chef “of Yugoslavian appearance”. The only other chef to whom the incident might have been reported, Mr Jukic, who did work on Thursday, 2 February 2006, said he was unaware of any injury, as Mr Molana had not complained to him. Mr Jukic, described Mr Molana as a good worker and a person with whom he had no problems. Given this comment, there is no reason to disbelieve Mr Jukic and I accept his evidence over Mr Molana’s evidence.
Given the evidence of Mr Jukic and Mr Campbell, which I accept, I do not accept Mr Molana’s claim that he reported any incident with a frying pan prior to 3 April 2006.
On the question of why Mr Molana did not report the incident to the registered nurse, or the assistant registered nurse, he said he was not “oriented” in such procedure and was only told about it in March 2006 when a bleaching incident happened (see Mr Molana’s claim form 1 May 2006). Ms Flood claims in her statement of 10 May 2006 that Mr Molana had numerous orientations and education about OH & S and manual handling.
Several documents dealing with Mr Molana’s induction and training are attached to section D of the investigator’s report. Mr Molana signed a document headed “Orientation Check list for Employees” on 7 March 2006. A further hand written document headed “Manual Handling”, dated 6 April 2006, and signed by D Goodwin, states that Mr Molana was oriented in all aspects of manual handling on 17 March 2006. D Goodwin completed a further “Manual Handling Orientation Checklist” on 5 April 2006, some days after Mr Molana had ceased work. Whilst Mr Molana’s name appears at the top of this document, he has not signed or dated it. On 11 April 2006, Ms Flood prepared a further document headed “Maziar Molana Orientation Details”, suggesting that Mr Molana was given “orientation kitchen hand, 30/11/05; 1530 and 1/12/05, 0630 to 1430” and “orientation maintenance 26/1/06; 0810” with further orientation on 9 and 13 March 2006. No documents have been tendered as to the nature of the “orientation” provided in November and December 2005.
The evidence of Mr Molana’s “orientation” with Pathways is unsatisfactory and establishes that several of the documents relating to it were prepared after he reported his injury on 3 April 2006. The documents do not satisfy me that Mr Molana had been properly instructed, before 2 February 2006, of his obligation to report any injuries to the registered nurse. Nevertheless, the orientation checklist completed on 7 March 2006 suggests that “Routine Reporting” was an item covered at that time.
However, the position is further complicated by Mr Molana’s statutory declaration. He said (at paragraph nine) that, though he suffered a sharp pain in his elbow at the time of the incident, he was worried about the residents, was working to a strict schedule and had no time to seek any medical attention. He made no mention of not knowing he had an obligation to report injuries, but claimed he had reported it by speaking to the chef of Yugoslavian appearance. As noted above, I do not accept that he made any complaint of injury to either chef. He then added that “after days of battling pain” he felt he could no longer cope and he saw Dr Collings “about two weeks later”.
This history is inconsistent with the objective evidence. Mr Molana sought medical attention for an unrelated condition on 15 February 2006. The fact that he made no mention of his elbow at that appointment suggests that either the 2 February 2006 incident did not occur, or, if it did occur, it was of no great consequence. Dr Collings’ notes record that on 9 March 2006 Mr Molana said the pain from the frying pan incident was “short-lived” and he “thought little of it”. In her report of 16 December 2006, Dr Collings described the incident as a “trivial injury”, though it was possible the blow to the elbow did cause some damage to the common extensor tendon. Given Mr Molana’s attendance on Dr Collings on 15 February 2006, and the lack of complaint of elbow pain on that day, I do not accept that the pain Mr Molana ‘battled with’ for days prior to seeing Dr Collings was the pain caused by any incident on 2 February 2006. Even if Mr Molana did experience pain in his elbow on 2 February 2006, the consequence of that injury was only “short-lived” and the result of a “trivial” incident from which he most likely recovered within a short time, certainly by 15 February 2006, when he saw Dr Collings and made no complaint about his elbow.
I note Mr Molana’s evidence that he “could not afford to quit work at the time”, he enjoyed his work and was an honest and dedicated worker (statutory declaration, paragraph 14). His statutory declaration does not identify “the time” to which he was referring. Whilst this evidence may explain why Mr Molana worked from 9 March 2006 until 31 March 2006, it does not explain the lack of complaint to Mr Jukic in February 2006 or to Dr Collings on 15 February 2006. The only reasonable conclusion is that either Mr Molana did not injure his elbow on 2 February 2006, or, such injury was only a trivial one from which he recovered by 15 February 2006.
In respect of the conversation with Ms Flood on 3 April 2006, Mr Molana’s only response is to rely on Dr Collings’ notes that record “some upset with [a] junior female staff member’s comments but boss Jason sent Maziar home on Saturday and Monday until situation can be assessed”. Mr Molana did not deal with this issue in his statutory declaration. The evidence is that, as at April 2006, Ms Flood was 44 years of age and, as the Assistant Director of Nursing, she could not fairly be described as a “junior” staff member. It therefore seems unlikely that the “upset” Dr Collings referred to was the conversation Mr Molana had with Ms Flood on 3 April 2006. In the absence of any proper explanation from Mr Molana as to the matters in Ms Flood’s statements, and given the inconsistencies in Mr Molana’s claim and the consistency between Ms Flood’s statement of 11 April 2006 and her statement of 10 May 2006, I prefer and accept her evidence that Mr Molana initially made no mention of the 2 February 2006 incident when he reported to her on 3 April 2006, and that he then gave several different and inconsistent explanations for how the frying pan came into contact with his elbow.
Third, Mr Molana’s description of the frying pan is at odds with Mr Jukic’s evidence, which I accept, as to the kind of frying pan used in the kitchen. Mr Jukic states that the only large frying pan he uses is a large cast iron pan about 40 centimetres in diameter and 10 centimetres deep with small handles on the side, which is kept under the preparation bench below waist height. He says this pan is not used on Thursdays. This evidence raises further doubts about Mr Molana’e evidence, as he describes the frying pan that struck him as a huge, white, heavy, commercial use pan with a long handle.
Fourth, the evidence establishes, and I find, that Mr Molana performed his normal duties without any restriction or complaint until he ceased work on 31 March 2006. Whilst I accept that he complained to Dr Collings through March 2006 of pain in his elbow, for the reasons set out above, I do not accept that those symptoms resulted from any incident at work on 2 February 2006.
Fifth, Mr Molana’s medical evidence case is unconvincing. Dr Collings confirms that the hit from the frying pan (if it occurred) was a trivial injury. Whilst she conceded that it was possible that a blow to the elbow did cause damage to the common extensor tendon, she added that the bilateral nature of the tendinosis demonstrated on ultrasound would suggest other features of the job were “likely factors in the development of the lateral epicondylitis” (emphasis added). This report provides some support for a claim based on the nature and conditions of employment, but no such claim is alleged in the Application.
Dr Conrad recorded that, contrary to Mr Molana’s version in his statutory declaration, the frying pan fell from an upper shelf. That error would not necessarily be of any great consequence, if other evidence established that Mr Molana did strike his elbow on a frying pan at work on 2 February 2006 and that, as a consequence, he continued to experience pain until he sought medical treatment and finally ceased work at the end of March 2006. However, as the above analysis reveals, the other evidence does not establish such a history, but undermines it. Therefore, I do not accept Dr Conrad’s conclusion that Mr Molana sustained a traumatic lateral epicondylitis as a result of an incident at work on 2 February 2006.
I do not accept Dr Conrad’s statement in his report of 20 April 2007, that Dr Collings’ assertion about the bilateral nature of the condition is “unsubstantiated”. The ultrasound provided clear support for Dr Collings’ opinion and I accept that the condition does affect both Mr Molana’s elbows and that this further diminishes the likelihood that he sustained an injury on 2 February 2006, as he claims.
In favour of Mr Molana is the evidence in photograph two where an object that looks very much like a frying pan is seen to be hanging from a hook in Pathways’ kitchen. Before dealing with this evidence, I should comment that it is most unsatisfactory that Pathways did not produce the original of this photograph. As the photo tendered is a poor quality black and white copy, it is very difficult to interpret. Doing the best I can, I do not believe the object in the photo meets the description of the frying pan given by Mr Molana, even if that description was accurate. In any event, even allowing Mr Molana the most favourable interpretation of the photo, it only establishes that his claim is possible, not probable. I do not believe the photo overcomes the significant issues identified above.
CONCLUSION
Given the above issues, namely, the lack of complaint of injury to Mr Jukic, the lack of complaint of elbow symptoms to Dr Collings on 15 February 2006, Mr Molana’s inconsistent descriptions of the incident, Mr Molana’s unexplained and inconsistent accounts of the incident to Ms Flood, the ultrasound evidence of bilateral epicondylitis, and the fact the Mr Molana performed his normal duties until 31 March 2006, I am not satisfied that Mr Molana has discharged the onus of proof necessary to establish that he injured his elbow at work with Pathways on 2 February 2006.
In the alternative, if Mr Molana did injure his elbow as alleged on 2 February 2006, I am satisfied, on the basis of Dr Collings’ evidence, that any such injury was “trivial” and its effects were only “short-lived”, and, as a consequence, I am not satisfied that his current condition has resulted from that injury.
As a result, there must be an award for Pathways.
DECISION
The Arbitrator’s determination dated 14 April 2006 is revoked and the following orders made:
“1. Award for the respondent employer.
2. No order as to costs.”
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
12 August 2008
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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