Rail Corporation New South Wales v Arja - [2009] NSWWCCPD 151

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Rail Corporation New South Wales v Arja [2009] NSWWCCPD 151
APPELLANT:		Rail Corporation New South Wales
RESPONDENT:		Abdul Rehman Arja
INSURER:		Self Insured
FILE NUMBER:		A1- 1548/09
ARBITRATOR:	Mr G Adelstein
DATE OF ARBITRATOR’S DECISION:		4 August 2009
DATE OF APPEAL DECISION:		30 November 2009
SUBJECT MATTER OF DECISION:		Withdrawal of admissions; review of findings as to credit of witness; duration of incapacity; liability for lump sums
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Hicksons
Respondent:		Gajic & Co
ORDERS MADE ON APPEAL:		Paragraphs one and three of the Arbitrator’s determination of 4 August 2009 are revoked. Those orders are to be substituted with the following orders:
“1. Award for the respondent in respect of the applicant’s claims for lump sum compensation brought pursuant to sections 66 and 67 of the Workers Compensation Act 1987.
3. Award for the applicant in respect of his claim for weekly payments as follows:
(i) $720.00 per week from 1 May 2005 to 30 October 2005 (section 36);
(ii) $340.90 per week from 1 November 2005 to 31 March 2006 and $347.90 per week from 1 April 2006 to 8 August 2006 (section 37), and
(iii) $270.00 per week from 9 August 2006 to 25 February 2009 (section 40).
The respondent is to have credit in respect of weekly payments made.”
Paragraphs 2, 4 and 5 of the Arbitrator’s determination dated 4 August 2009 are confirmed.
The appellant to pay Mr Arja’s costs of this appeal.

BACKGROUND TO THE APPEAL

Mr Abdul Rahman Arja, who is 26 years of age, was employed as a customer service officer with the Rail Corporation NSW (‘the appellant’). He commenced that employment on 21 June 2004 and was, at relevant times, working at Sydenham Station and, thereafter, Liverpool Station in metropolitan Sydney.

Mr Arja alleges that he has suffered psychological injury as a result of three separate injuries received in the course of his employment on 12 March 2005, 28 July 2006 and 9 February 2007. On the first of those dates Mr Arja alleges that he was assaulted by a drunken passenger and on the latter two occasions he alleges that he was subjected to threatening and intimidating behaviour by passengers utilising the appellant’s rail services.

Mr Arja, as a result of the assault which occurred in March 2005, sustained minor physical injuries involving grazed knuckles to his left hand and some ligamentous injury to his left knee. Those physical injuries resolved within approximately two weeks following which he returned to full duties. The chronology thereafter is unclear. This is so because of conflict between dates stated by Mr Arja in evidence and a chronology that was narrated by counsel at the hearing. It seems he continued working until 1 June 2005 when, by reason of anxiety and other symptoms, he ceased work.

Mr Arja attempted a return to work in January 2006 (two days) and May 2006 (two weeks). He took annual leave commencing 5 June 2006.

Mr Arja returned to work at Liverpool station on 28 July 2006 however ceased work that day following his experience of the aggressive behaviour of a passenger.

On 4 February 2007 Mr Arja returned to limited hours duty. On 9 February 2007 at Liverpool station he was subjected to abusive and intimidating conduct of a passenger which caused him to seek treatment from his general practitioner Dr Khan. He was absent from work from 23 March 2007. His services were terminated by the appellant on 12 December 2007. He has not resumed regular employment since.

A dispute arose between Mr Arja and the appellant concerning his entitlement to compensation benefits. Proceedings, being matter number 9288 of 2007, were commenced in the Workers Compensation Commission (‘the Commission’) seeking an award in respect of weekly payments, lump sums and medical expenses. The claim, after it came before an arbitrator, was referred for assessment by the Registrar to an Approved Medical Specialist, Dr Julian Parmegiani, psychiatrist, who examined Mr Arja on 27 May 2008. A Medical Assessment Certificate (‘MAC’) issued on 30 May 2008. It was the view of Dr Parmegiani that Mr Arja had not reached “maximum medical improvement” and an assessment was not made by that practitioner as to whole person impairment. It appears that Mr Arja did not pursue his claims for weekly payments and medical expenses. In the circumstances the Registrar issued a Certificate of Determination noting that the claim was not “fully ascertainable” and liberty was granted to the parties to apply to recommence proceedings at an appropriate time.

The present proceedings were commenced by way of filing an Application to Resolve a Dispute (‘Application’) on 1 March 2009. That Application alleged entitlement to weekly compensation from 1 June 2005 to 8 August 2006 and from 14 April 2007 to date. Medical, hospital and other like expenses were claimed in that Application as were lump sums in respect of whole person impairment resulting from psychological injury.

The dispute came before an arbitrator for conciliation/arbitration on 15 July 2009 at which time each party was represented by counsel. The matter proceeded to hearing and the Arbitrator reserved his decision. A Certificate of Determination issued on 4 August 2009 and that Certificate was accompanied by a Statement of Reasons (‘Reasons’).

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 4 August 2009 records the Arbitrator’s orders as follows:

“The Commission determines:
1. The matter is to be referred back to the Commission to enable the Registrar to refer the matter off to an Approved Medical Specialist. As Dr Parmegiani has previously provided a report, it is appropriate that Dr Parmegiani be again invited to consider Mr Arja’s matter.
2. With regard to the medical expenses, I order the Respondent pay the Applicant's Section 60 expenses in the sum of $1,609.60.

3. I order the Respondent pay weekly compensation to the Applicant as follows:-
3.1.1The first 26 weeks from 1 June 2005 the Respondent is to pay the Applicant's weekly benefits at the rate of $720.00 per week.

3.1.2For the period 1 December 2005 to 8 August 2006 and 14 April 2007 to date and continuing the Respondent is to pay the Applicant's weekly benefit at the maximum statutory rate for a single male.

4. I order the Respondent pay the Applicant’s costs to be assessed if not agreed. I consider an appropriate uplift in the circumstances is 25% which I allow.
5. In addition I make an order that the two Arbitrations are to be treated as separate events for the purpose of Clause 9, Schedule 6 and I certify that they are to be two separate events for the purpose of costing.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

An Application seeking leave to appeal against the decision of the Arbitrator was filed on behalf of the appellant on 31 August 2009.

ISSUES IN DISPUTE

The issues in dispute on this appeal involve questions as to whether the Arbitrator has erred in the following respects:

(i) by awarding weekly compensation to Mr Arja;
(ii) in failing to give reasons or adequate reasons for his acceptance of the opinions of particular expert medical witnesses;

(iii) in his determination of the nature and extent of incapacity suffered by Mr Arja;

(iv) in failing to correctly apply the principles concerning entitlement to compensation as stated in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’);

(v) in failing to properly evaluate the credibility of Mr Arja’s evidence and that of the expert medical witnesses with respect to the question of the existence of and extent of any incapacity suffered by him, and

(vi) failing to allow credit to the appellant in respect of voluntary payments made.

The issues as outlined above are taken from the written submissions furnished on behalf of the appellant in support of this appeal.

It is to be noted that, whilst Mr Arja has taken no steps to seek leave to appeal the decision of the Arbitrator, it is asserted at [7] of submissions opposing the appeal that the Arbitrator has “…erred in not finding that Arbitrator Duncombe’s direction of 31 March 2008, at page 277 of the Appeal bundle, constitute [sic] res judicata or issue estoppel on the issues of injury (s. 4) and substantial contributing factor (s. 9A)”.

The background to Mr Arja’s complaint concerns argument before the Arbitrator as to the effect in law of matters noted in the direction issued by Arbitrator Duncombe on 31 March 2008. The relevant portion of that direction is as follows:

“2. There no longer being any issues of liability in respect of s.4 and s.9A of the Workers Compensation Act 1987, the matter is remitted to the Registrar for referral to an Approved Medical Specialist for an assessment of Whole Person Impairment as a result of psychological injury on 12 March 2005, 28 July 2006 and 9 February 2007.”

It is proposed to address Mr Arja’s complaint as a preliminary issue for determination in the course of these reasons and that appears below.

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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 Numbers 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.

LEAVE

There is no dispute between the parties concerning threshold requirements as prescribed by section 352 of the 1998 Act.

The appeal having been lodged within the time prescribed by that section and the fact that the monetary threshold prescribed by that section has been met, together with a consideration of the arguments raised on appeal, lead me to conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.

PRELIMINARY MATTERS

The proceedings conducted before the Arbitrator were recorded and a transcript of the hearing has been produced, copies of which have been provided to the parties (‘transcript’).

The transcript records submissions by counsel and it is clear that the appellant sought to dispute the occurrence of “injury” in terms of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’) concerning the allegation of assault on 12 March 2004. The appellant had tendered in evidence a DVD disc which recorded a confrontation between Mr Arja and an unknown person at Sydenham station on that date. The original recording had been produced by closed circuit television cameras (cctv) installed at the station.

It was the appellant’s argument that the recording demonstrated that Mr Arja was the “aggressor” during the altercation and that his conduct had taken him outside the course of his employment. Reliance was placed upon the decision of Armitage J in Makko v Bullock Manufacturing Pty Ltd (1997) 15 NSWCCR 308 (‘Makko’).

It was argued by counsel on behalf of Mr Arja that the matters found in the Commission’s Direction dated 31 March 2008 as set out in [15] above record an admission of liability on behalf of the appellant, and that in the circumstances it was estopped from denying the allegation of injury at the hearing. Reliance was placed upon a number of authorities including Rail Services Australia v Dimovski & anor [2004] 1 DDCR 648 (‘Dimovski’) and Seaib v Hays Personnel Services (Aust) Pty Ltd [2008] NSWWCCPD 36 (‘Seaib’).

The Arbitrator ruled in favour of the appellant concerning this matter of dispute and permitted withdrawal of the admission which was said to be recorded in the terms of the Direction. The Arbitrator’s reasons for that ruling appear between [22] and [42] of Reasons.

The Arbitrator proceeded to consider the evidence and argument advanced concerning the issue of “injury” and concluded that the “…assault occurred as a result of something within the course of his employment and the injuries sustained are compensable” (at [52] of Reasons).

I respectfully agree with the Arbitrator that the matters as recorded in the Commission’s Direction dated 31 March 2008 include a notation of an admission of “liability in respect of s. 4 and s. 9A” of the 1987 Act. I also agree with the Arbitrator’s conclusion that the appellant be permitted to withdraw such admission. I so conclude having regard to the matters of principle concerning the withdrawal of admissions as discussed by the Brereton J in Hill End Gold Ltd v First Tiffany Resource Corp [2008] NSWSC 866 (‘Hill End’) where the decision of Santow J in Drabsch v Switzerland General Insurance Co Ltd (NSWSC, 16 October 1996, unreported) (‘Drabsch’) is cited. His Honour noted that the summary of relevant principles as stated by Santow J “…has been repeatedly endorsed”. That summary is as follows (at 7-8):

“1. Where a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission, especially at appeal, should not be freely granted; Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 per Rogers CJ Comm D, followed in IOL Petroleum Ltd v O'Neill per Young J (Young J, 17 November 1995, unreported) and Apex Pallett Hire Pty Ltd v Brambles Holdings Ltd (full Supreme Court of Victoria, 8 April 1988, unreported), and in that respect not following H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 at 703.
2. The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guideline being that the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded; IOL Petroleum Ltd v O'Neill (above), in the context of withdrawing a concession made before the Registrar.
3. Where a court is satisfied that admissions have been made after consideration and advice such as from the parties' expert and after a full opportunity to consider its case and whether the admissions should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn; Coopers Brewery Ltd v Panfida Foods Ltd (above) at 745 and 748. Thus a court will not lend its approval to the withdrawal of admissions where, by analogy with the making of amendments, this is actuated by purely tactical reasons; compare Devae Prufcoat Pty Ltd v Altex Industrial Paints Ltd (Cole J, 15 March 1989, unreported).
4. It will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters. Irrespective of whether the admission has or has not been formally made, leave may be refused if the other party has changed its position in reliance upon the admission; H Clark (Doncaster) Ltd v Wilkinson (above), in that respect not doubted.
5. Following Cohen v Mc William and Anor (1995) 38 NSWLR 476, a court is not obliged to give decisive weight to court efficiency, such that a party who wishes to defend its claim is entitled to a hearing on the merits, with costs orders being available as a means of compensating the other party for any costs thereby unnecessarily incurred or not fairly visited on the other party.”

In the present matter it was counsel’s argument that the content of the cctv recording raised questions as to facts as alleged by Mr Arja. It is not clear from the evidence as to when the appellant became aware of the content of that recorded material however, as noted by the Arbitrator at [33], a great deal of “new” evidentiary material had come into the hands of the appellant since the making of the Direction. That material raised a question as to whether the appellant’s admission of injury “was made inadvertently or without due consideration of material matters” as noted by Santow J in Drabsch (point 4 above). The Arbitrator was correct to permit withdrawal of the submission in those circumstances.

I have taken time to consider this aspect of the dispute between the parties given the argument advanced on behalf of Mr Arja that the appropriate course on hearing was to simply refer the lump sum claim for assessment by an Approved Medical Specialist (‘AMS’) in accordance with the provisions of Part 7 of the 1998 Act. Had the Arbitrator acquiesced in that suggestion the question of injury could not have been agitated and the only matters remaining for determination by the Arbitrator were the question of incapacity, entitlement, if any, to weekly compensation and the appellant’s liability, or otherwise, to pay medical and associated expenses. Those liability issues were not affected by the suggested admissions and should properly be determined before any referral to an AMS (see Guideline – The Practice of the Concilliation/Arbitration process in the Workers Compensation Commission – 2009). That this procedure was not followed in matter 9288 of 2007 is not explained.

Circumstances have changed since the determination made by the Arbitrator given the terms of submissions put on this appeal ( at [9] and [10]) :

“9. The appellant does not contest the Arbitrator’s finding that the applicant suffered a psychological injury as a result of the events occurring on 12 March 2005, but submits that in accordance with Dr Samuell’s opinion, the applicant had recovered by the time voluntary payments of weekly benefits were terminated on 21 June 2007. The appellant submits that the Arbitrator fell into error in accepting the applicant had ongoing incapacity entitling him to workers compensation benefits pursuant to s40 and the cost of any treatment pursuant to s60 Workers Compensation Act 1987 [the 1987 Act].
10. The respondent also does not contest the Arbitrator’s findings that the “second and/or third incidents” may have exacerbated the underlying condition. The respondent paid voluntary weekly compensation benefits and medical and related expenses in relation to incapacity following those incidents up until 21 June 2007. Further liability was declined at that stage based upon the opinion of Dr Samuell (s74 notice, p408).”

It is clear from the matters noted above that the appellant no longer disputes the occurrence of “injury” in terms of the 1987 Act having been received by Mr Arja on 12 March 2005 and subsequently on 28 July 2006 and on 9 February 2007. The central issue in dispute between the parties remains the question as to whether Mr Arja was incapacitated as a result of those injuries beyond 21 June 2007. That question, being a matter which goes to the determination of the appellant’s liability may, in my opinion, be agitated on this appeal, as it would have been before the Arbitrator regardless of his ruling concerning withdrawal of the admissions.

EVIDENCE

The documentary evidence relied upon by the parties is noted at [10] of Reasons. There was no oral evidence taken before the Arbitrator. Included among that evidence were recordings on DVD of surveillance conducted by a firm of insurance investigators, Lyonswood Investigations and Forensic Group, of Mr Arja’s activities on various dates. It is apparent from the content of the transcript that those recordings had been viewed by the Arbitrator prior to the hearing. Also included among the material was a DVD recording of the cctv record referred to in [22]. That recording was viewed by the Arbitrator at the hearing.

Mr Arja relied upon two written statements made by him. The first dated 23 November 2007 and the second dated 23 February 2009. In the first of those statements Mr Arja records that he is a single man with no dependants. He completed his schooling to “half way through year 10” following which he worked as an auto-electrician for about one year. He then commenced working as a motor trimmer. He did that work for three years. He then commenced employment with the appellant. His duties were described in that statement and those included dealing with inquiries by the public, assisting disabled passengers, making announcements, answering the telephone and generally maintaining the cleanliness of the platform.

Mr Arja describes the events of 12 March 2005 when a passenger, who appeared to be drunk, began to scream at him. It is stated that efforts were made to calm the individual but that he went “crazy”. Threats were made by that individual and Mr Arja describes in detail the manner in which he was assaulted. He states that he was shocked and frightened. He had suffered an injury to his wrist and to his leg. Mr Arja had approximately two week off work during which time he was paid sick leave. He then returned to work but was “feeling terrible”. Mr Arja says he was “very tense” and was unable to relax. He states that he did his best to work but found it “very hard”.

Mr Arja states that he was informed that he was to be sent to Liverpool train station. No date is specified in his statement however it is agreed between the parties that he was informed of that transfer on 15 May 2005 and the transfer was to take place on 17 July 2005. Mr Arja did not want to be transferred to Liverpool because it is “heaps dangerous there”.

At that time Mr Arja was troubled by the “attack” which repeated itself in his head “over and over again”.

The statement includes imprecise detail concerning absences from work however it is recorded that on 28 July 2006 as he was working alone Mr Arja was threatened by a passenger. Those threats disturbed Mr Arja and he consulted Dr Khan and was referred to a counsellor and given medication. It is stated that he was absent from work for five months thereafter. During that time he had difficulty sleeping, had nightmares and would awaken “…sweating and would talk to myself.” Mr Arja remained inside his home for many hours after ensuring that all doors and windows were locked. He ceased communicating with his parents with whom he was living and lost his appetite and ability to concentrate. It is stated that his mind was “just racing”.

Mr Arja on occasions wanted to leave the house and would drive by himself. He continued to consult Dr Khan and continued to take medication as prescribed.

Mr Arja returned to work, it was agreed at the hearing, on 4 February 2007 working limited hours. His statement records that he was then doing two hours per day. It is stated that on 9 February 2007 whilst working at Liverpool train station a woman “started going crazy” at Mr Arja. The woman screamed and threatened him. This behaviour caused him to feel “so bad”. Mr Arja sought further treatment from Dr Khan. Mr Arja had some more time off work then returned to office work. It is agreed between the parties that he ceased work with the appellant on 23 March 2007 and has not returned since.

Mr Arja, following suggestions made to him, registered a business known as “Showtime Custom Interiors”. He was informed by the appellant that he was to be retired on medical grounds. It is agreed by the parties that his employment was terminated on medical grounds on 12 December 2007.

Mr Arja’s statement includes a number of paragraphs which are in response to the matters recorded in a medical report compiled by Dr Samuell dated 4 August 2005. This evidence is addressed below. The statement proceeds to record that Mr Arja’s business was established and that he had about eight to ten customers as at that time. The jobs performed would be charged at about $300.00 to $500.00, depending on the size of the job. On average each job would take about two to three weeks. Mr Arja has received no income other than that received through the business. As at the date of the statement Mr Arja continued to consult Dr Khan and was using medication as prescribed which included Endronax and Zoloft.

The second statement dated 23 February 2009 records that Mr Arja had been consulting Dr Pickering, psychiatrist and had consulted him on three or four occasions as at that date. It is stated that Mr Arja was no longer living with his parents but resided in an office that belonged to his father. That had been the case for the “last twelve months”.

Mr Arja states that he drives around Punchbowl during the day at which time he feels he must “have to keep moving”. He then returns to the office and sits looking at the wall or plays with his telephone. When he feels like eating he may go back home to obtain food and eat it back at the office. It is stated that he does not feel like driving every day and sometimes he remains in the office and “thinks”. He finds driving allows him to stop thinking about the things that happened whilst working for the appellant. Mr Arja states that he does not have bed at the office but has pillows and a blanket which he uses. It is stated that he does not received money from Centrelink.

There is a further statement made by Mr Arja which is dated 19 May 2009 admitted into evidence following an Application to Admit Late Documents. That statement is substantially a response to evidence adduced by the appellant and it is convenient to address the content of that statement following an outline of the evidence relied upon in defence of the claim.

Medical evidence tendered by Mr Arja

The following reports were in evidence before the Arbitrator:

(i)      Report of Dr Leonard Lee, consultant medico-legal psychiatrist dated 19 March 2007. Dr Lee records Mr Arja’s complaints as including anxiety, insomnia, nightmares, depression, impaired concentration and markedly reduced ability to work since an assault on 12 March 2005 with subsequent aggravations in July 2006 and February 2007. Dr Lee records relevant history in that report and notes that Mr Arja believes that he “cannot return to his old job because of constant anxiety.” That practitioner recorded that Mr Arja rarely socialises, sometimes misses meals, is unable to catch public transport due to anxiety, has markedly poor concentration and has difficulty following simple instructions at work where “he tends to fall asleep”. Dr Lee, who had been qualified by Mr Arja’s solicitors for the purpose of providing a medico-legal report, expresses the view that Mr Arja “suffers from chronic post traumatic stress disorder”. That disorder had been caused by the initial injury in 2005 and aggravated by the two subsequent incidents. As a result of the assault Mr Arja “… has chronic anxiety, impaired concentration, reduced ability to travel, socialise, concentrate and work.” It was Dr Lee’s view that the disorder was “severe”. The opinion was expressed that he was “…only fit for markedly reduced employment” and the view was expressed that there was some concern that he would not be able to continue working. A “permanent impairment” of 41 per cent was assessed by Dr Lee.
(ii)     Dr I Khan, general practitioner has issued a large number of WorkCover NSW medical certificates including one dated 2 April 2007 which included a diagnosis of “psychological injury with anxiety, post-traumatic stress, reactive depression”. Dr Khan certified, with respect to his fitness for work, that Mr Arja had “reached maximum medical improvement and is fit for permanently modified duties from 2 April 2007”.
(iii)   Reports from Ms Wendy Sawtell, clinical psychologist dated 16 August 2006, 4 January 2007 and 16 May 2007. Those reports recorded relevant history and symptoms reported by Mr Arja as well as the results of a number tests. Ms Sawtell’s findings were that reported symptoms were consistent with a diagnosis of chronic post-traumatic stress disorder with secondary depression in accordance with the Diagnostic and Statistical Manual of Mental Disorders, 4^th edition Text Revised (DMS IV – TR, 2000).
(iv)   A Psychological Assessment made by Mr John Raue, clinical psychologist dated 3 October 2006 included a diagnosis of post-traumatic stress disorder.
(v)     Two short reports from Dr Brian Marshal, general practitioner dated 17 January 2006 and 23 February 2006 together with a number of medical certificates issued by that practitioner were in evidence. Dr Marshal’s diagnosis was that of post-traumatic stress disorder and phobic anxiety (resolving) resulting from the subject assault. In the report dated 23 February 2006 Dr Marshal noted that Mr Arja’s “…condition is improving and I anticipate that he will make a full recovery and return to work.” It is noted as “important” that Mr Arja’s complaint be recognised as genuine, and Dr Marshal observed that it was “unfortunate that a senior Rail Corp employee advised him not to make the matter official…” when the matter was reported.
(vi)   A report dated 19 September 2006 from Dr Christopher Aristides Canaris, consultant psychiatrist, was in evidence. That report was addressed to Dr Khan. That practitioner records the history and complaints as well as detail of the treatment and medication and stated – “Overall, he presented as an anxious man and I though [sic, thought] his presentation was consistent with the diagnosis of a recurrence of post-traumatic stress disorder.” Dr Canaris noted that Mr Arja had not returned for a scheduled appointment.
(vii)     A report from Dr Klaas Akkerman, psychiatrist, dated 17 April 2007 addressed to the appellant was in evidence. This report records that Dr Akkerman had first examined Mr Arja on 12 December 2006. The report relates to a reassessment which followed a second consultation which occurred on 17 April 2007. That report records relevant history, symptoms and treatment and Dr Akkerman expressed the view that Mr Arja “…now suffers from Major Depression. His Post Traumatic Stress Disorder symptoms have settled down. His mood is very low. He needs further treatment.” Dr Akkerman recommended a transfer “…to Punchbowl or Whiley (sic) Park”. It was Dr Akkerman’s view that, because this was a different area Mr Arja “would be able to return to pre-injury duties”. It was also observed – “If he were to continue at Liverpool station, and if Dr Khan’s observations are indeed correct, it is inevitable that he will have further problems and that he will be targeted further. If he were to work at Liverpool station the need for modified duties, more likely than not, will be permanent.”
(viii)   A medical certificate dated 16 December 2005 issued by Dr B. Chugh, general practitioner, was in evidence. Dr Chugh certified that Mr Arja was suffering from post-traumatic stress disorder and was unfit for work from 16 December 2005 to 16 January 2006.

(ix) A Medical Assessment Certificate (MAC) issued by Dr Julian Parmegiani dated 30 May 2008 was in evidence. It was Dr Parmegiani’s opinion that Mr Arja presented with a post-traumatic stress disorder, complicated by a major depressive disorder. It was that practitioner’s view that Mr Arja was in need of psychiatric treatment and that he had not reached maximum medical improvement. No assessment of permanent impairment was made given that Mr Arja’s psychiatric injuries had not stabilised.

(x) Two reports by Dr John D. Pickering date 21 October 2008 and 1 June 2009 were in evidence. The first of those reports records that Dr Pickering was Mr Arja’s treating psychiatrist following referral by Dr Khan. The first consultation occurred on 12 September 2008. Under the heading “Mental State Examination” Dr Pickering recorded – “Mr Arja presented as a young man of stated age, unshaven. His arms were folded defensively and he did not impress as particularly engaging. The rapport through the interview was quite poor. He impressed as extremely anxious, depressed and angry.” Dr Pickering’s overall impression was “…one of genuiness of his symptomology.” A diagnosis of chronic post-traumatic stress disorder was recorded in that report. It was also noted that Mr Arja “also has major depressive disorder”. It is noted by Dr Pickering that Mr Arja’s disturbance had caused a marked impairment in social and occupational functioning to the point were he does not mix with others, avoids his family and is unable to continue working. Dr Pickering attributes the disorder as diagnosed to the circumstances of the assault in March 2005. That disorder was exacerbated by the second incident which is recorded in the history.
(xi) An earlier report by Dr Pickering dated 12 September 2008 addressed to Dr Khan was produced by Dr Pickering together with his clinical notes in response to a direction for production. That report contains a summary of relevant history and the diagnosis that is expressed in the later report dated 21 October 2008. Dr Pickering also made the following general observations in the course of his report to Dr Khan:

“At the bottom of all this, he is a man that is too proud to talk to his family, and there may well be cultural issues involved here. He has refused to get social security even though it should be reimbursed when his workers compensation comes through. At this point of time Abdul is his own worst enemy, because of the proud stubborn approach he has taken to the administrative aspects of his problem such as where he lives and how he supports himself, he has dug himself into a hole from which he sees no escape because he is cutting himself off from the resources that he needs to live reasonably normally. Unfortunately, it will be extremely difficult to help him so long as he maintains that position. He is potentially helpable, but only if he is prepared to swallow his pride and do things such as go to the Social Security to try to get himself some money. He may be able to resurrect something out of this in the long run. In the meantime, his court case cannot go ahead because the opinion of the Court-appointed psychiatrist was that it was too early to sort things out because his condition had not stabilised. Unfortunately we have a circular situation in which he cannot stabilise until it is settled and he cannot settle until his condition has stabilised.”

(xii) A report of Dr Pickering date 1 June 2009 addressed to Mr Arja’s solicitors is in evidence. That report, in part, deals with matters raised in a report provided by Dr Doron Samuell, psychiatrist, dated 9 March 2009 which is in evidence before the Commission. Those matters are not directly relevant to the issues raised on this appeal however it is to be noted that Dr Pickering states that he has not seen the surveillance of Mr Arja that Dr Samuell has seen, nor has he seen the reports by other psychiatrists (Drs Christopher Canaris, Julian Parmegiani, Leonard Lee, and Klaas Akkerman), or the psychologist Wendy Sawtell. Dr Pickering also makes the observations that it is “…self-evident that no one, psychiatrist or otherwise can confirm or otherwise a subjective symptom. One has to take into account that patient’s often make statements which need to be tempered or interpreted eg to say that they cannot relate to anyone may be an overstatement of the situation, and often needs to interpreted as a decreased or indeed substantially decreased interaction with others and well below the level of function enjoyed pre-morbidly.” Dr Pickering also states that he is perplexed by the statements by Dr Samuell concerning the unexplained persistence of symptoms. It is Dr Pickering’s view as expressed in that report that symptoms as diagnosed in Mr Arja’s case may persist indefinitely.
(xiii) A report from Mr John Raue, clinical psychologist, dated 3 October 2006 was in evidence before the Arbitrator. That lengthy report details relevant history and includes an expression of opinion concerning diagnosis that Mr Arja “… fulfils the criteria for a diagnosis of Post Traumatic Stress Disorder.” That report purports to deal with the operation of sections 9A and 11A of the 1987 Act in the context of the facts as recorded. Mr Raue observed in the course of expressing his opinion that the determination of a definitive diagnosis was difficult. It is further stated – “Mr Arja’s description of symptoms seems dramatic and disproportionate to the events, even though they were threatening and frightening. His reaction to the recent events is coloured by anger at what he perceives as lack of support and, if anything, active interference in his recovery from a previous incident. His employers report a very different view of this and see the fact that Mr Arja did not report great stress over the previous incident until a transfer was proposed as significant.”

(xiv) There is a Medical Statement signed by Dr Pickering on 21 October 2008 which bears the letterhead of First State Super. That document includes a note by Dr Pickering that Mr Arja is “not fit for work requiring public dealing”. It was further stated by Dr Pickering that, in his opinion, Mr Arja “will never be able to be employed in his normal occupation due to this incapacity” and further “will never be able to be employed in any form of paid occupation due to this incapacity”. The diagnosis appears at paragraph five as being “psychological injury with anxiety, post traumatic stress disorder, depression.”

Mr Arja tendered in evidence a copy of his employer’s statement concerning Total and Permanent Disability Claim addressed to First State Super (Metlife). That document is dated 12 December 2008 and relates to a claim arising from “medical retirement” stated to be effective 13 December 2007. The condition causing cessation of work was stated as being “post traumatic stress disorder”. I note that there is no evidence before the Commission concerning the outcome of this claim.

Mr Arja tendered a number of documents, medical records, a job description and other material. Not all those documents are relevant to the issues raised on this appeal, however where relevant reference is made to them below.

Appellant’s Evidence

The appellant relied upon the evidence of Dr Doron Samuell, psychiatrist, as it appears in reports dated 4 August 2005, 5 September 2006, 21 May 2007 and 9 March 2009. In the first of those reports Dr Samuell records all relevant history to that time and stated – “he did not describe any significant symptoms of post traumatic stress disorder. He gave me the impression that he was angry about the workplace changes. He was also angry about the initial incident not being considered a compensable injury.” Dr Samuell considered that Mr Arja was fit to work and, in particular, did not consider him to be disabled.

Dr Samuell’s report of 5 September 2006 records the history of the second injury as alleged by Mr Arja. Dr Samuell stated – “whilst the incident that Mr Arja most recently described is concerning, it is unclear how much of Mr Arja’s reaction to that incident is constitutional in nature, and how much is the product of a psychological condition. Taken at face value, Mr Arja has had an extremely significant emotional reaction to the events that he described.” Dr Samuell notes that he lacks sufficient information to enable a definitive assessment to be made and no diagnosis was specified. It was stated by that practitioner – “a diagnosis of an adjustment disorder with anxious mood would fit with Mr Arja’s claim. As stated above, however, I have not ruled out that his personality is the primary cause of his difficulties.” Dr Samuell placed a restriction that Mr Arja should not work in circumstances where he has direct contact with the public.

The report of Dr Samuell dated 21 May 2007 records an updated history and it is noted that, since Dr Samuell’s last consultation, there had been a diagnosis of post traumatic stress disorder expressed by others. Dr Samuell stated that he continues to have considerable doubt about Mr Arja’s condition and noted that it was difficult “… to know why he would be so pre-morbidly vulnerable. The evidence for pre-morbid vulnerability simply does not exist.” Dr Samuell expressed the view that the assaults as described by Mr Arja lacked sufficient explanatory value for his ongoing alleged incapacity. It is further stated that it was possible that Mr Arja was depressed and in an undertreated state. It was Dr Samuell’s view that Mr Arja’s depression was likely to be constitutional rather than the product of external events. Later in the report Dr Samuell confirms a diagnosis of major depression. It was that practitioner’s view that Mr Arja was partially incapacitated for work but that that incapacity was not caused by any work related disability.

A letter dated 20 July 2007 from Dr Samuell to the appellant contained an acknowledgment that Dr Samuell had viewed “video surveillance” of Mr Arja. Dr Samuell observed that the history as taken earlier was “… not in keeping with his appearance in the surveillance.” Dr Samuell makes the further observation – “because psychiatric diagnoses are almost entirely reliant on the credibility of the claimant and the subjective reporting, I do not think the claimant can be relied upon in this case. He appears to have misrepresented his level of activity to me.” A report by Dr Samuell dated 9 March 2009 was in evidence before the Arbitrator. Dr Samuell notes that he has viewed “extensive video surveillance” with accompanying documentation as well as numerous medical reports from his colleagues Drs Canaris, Parmegiani, Lee and Akkerman as well as a report from Ms Wendy Sawtell, psychologist. Dr Samuell re-examined Mr Arja on 25 February 2009 for the purposes of that report. Mr Arja, in the course of updating the relevant history, is recorded as stating that he had not worked in any capacity at all for over 12 months and that he has had “no business dealings at all”. Mr Arja reported that his brother “tried to help him” and wanted to help set him up in a business in the car industry. He named the business as Fiarano Cars but stated that “it fell through”. He stated further that his brother had set up a website but that he himself “didn’t do anything”. He further stated, as reported by Dr Samuell, that he “did nothing with the business”. Mr Arja denied taking any holidays at all and told Dr Samuell that he had not left the country in the last twelve months and extended this assertion to the last time that he was assessed by Dr Samuell. That report records Mr Arja’s mood was “down a lot of the time”, that he had ongoing sleep disturbance, that he feels anxious around people, that he is never happy and that he doesn’t do much.

Dr Samuell noted that he had observed Mr Arja “interact freely with others on many occasions and drive a spectacular looking exotic car” and had been informed that Mr Arja was the director of a supercar business. That practitioner observed that whether the business was commercially successful or not is irrelevant and that it was self evident that Mr Arja “has misrepresented his level of functioning to me yet again and it remains a curiosity to me why my colleagues do not share this concern.” Dr Samuell had earlier made particular reference to the views expressed by Dr Parmegiani. Dr Samuell expressed the view that Mr Arja’s response to the incidents at work is “of questionable authenticity.” The view was expressed that Mr Arja does not appear to be unable to work in the capacity of a customer service attendant. Dr Samuell noted inconsistencies between the suggested life of an invalid and Mr Arja’s involvement with a business. It was stated that Mr Arja could be working as a customer service attendant immediately should he wish to do so.

A number of investigation reports compiled by Lyonswood Investigations and Forensic Group were tendered in evidence on behalf of the appellant. Those reports contained summaries of activities of Mr Arja on two days in December of 2006, seven days in 2007 and fifteen days in 2008. The last day on which surveillance was carried out was 1 November 2008. Accompanying those reports were a number of DVD discs which contain recordings of some of the activities noted in the reports. I have viewed that DVD disc which is noted “edited surveillance footage”. It appears from the transcript that this disc was prepared for convenience in that it compresses those matters observed and recorded to a reasonable length. It appears that the appellant has made available the original DVD discs both to the Commission and Mr Arja’s representatives. Detail of matters relevant as recorded in the DVD is discussed hereunder.

There were a number of copies of cctv footage recorded on DVD discs concerning activity occurring at Sydenham station on 12 March 2005. That recording was viewed by the Arbitrator at the hearing and I have taken the opportunity to view that recording. Reference to the matters recorded is made in the course of discussion hereunder.

The appellant tendered in evidence an extract from the records of the Australian Securities and Investments Commission concerning the Australian proprietary company known as Fiarano Supercars Pty Ltd. That record reveals that the company was registered on 4 June 2008, the registered address was unit 3, 111 Bonds Rd Riverwood NSW 2210. The names of the directors are recorded as being Mr Vanh Han Trang of Villawood and Mr Arja whose address is recorded as being 45 Arthur St Punchbowl. Both directors were appointed on 4 June 2008.

A number of documents downloaded from the internet were tendered on behalf of the appellant. Those documents included copies of exchanges concerning the abovementioned company on a chat forum known as “FerrariChat”. Also tendered was a copy of a letter downloaded from the net on the letterhead of “Fiarano Supercars” which describes the nature of the business and signed by A. Arja CEO Fiarano Supercars Pty Ltd.

The appellant tendered a number of other documents which are not directly relevant to the issues raised on this appeal however reference, if needed, is made to such documents hereunder.

By an Application to Admit Late Documents filed on 22 May 2009 Mr Arja sought successfully to tender a supplementary statement which he made on 19 May 2009, a statement of the same date made by Mr Soubhi Arja, a credit card statement dealing with an account held by Mr Soubhi Arja, documents downloaded from the internet from a site known as “FerrariChat.com” and an extract from the records of the Australian Securities and Investments Commission.

Mr Arja’s supplementary statement refers to Mr Soubhi Arja who is identified as a second cousin who has been known to Mr Arja throughout his lifetime. It is stated that there is a close relationship between Mr Arja and his cousin and that “Soubhi is one of the few people that I have been able to talk to about my injuries.” It is stated that Soubhi Arja “… was going to put me down as a director of a business called Fiarano Supercars. Mr Arja was told that there would not be much for him to do but that it would keep his mind occupied. Mr Arja was also told that Mr Trang was to be a director. Mr Trang is a friend of Mr Arja, however he is “closer with Soubhi”.

Mr Arja states that he attended a workshop in Bonds Road Punchbowl “when I felt up to it or when Soubhi called me”. Mr Arja states that when there he would “sit in an office upstairs or watch Sam work on cars”. His practice was to stay there for a couple of hours. It is further stated that the Fiarano website was closed down in March 2009 and that the business was closed. Mr Arja stated that he wished to present himself as a “businessman” and it was for that reason he carried a “laptop bag”. He stated that he wanted people to “think that I was successful”.

Mr Arja states that he “loved driving the red Ferrari” which vehicle was owned by Dan Trang who is a brother of Vanh Trang. He states that he felt he was being respected “because I drove a Ferrari”.

In his statement Mr Soubhi Arja states that the Fiarano business was his idea. It is stated that the reason for opening the business was to “help Abdul through the ordeal that he was going through.” It was hoped to get his mind off “the things he was going through”. It was his decision to nominate Mr Arja as a director which “made him extremely happy”. His friend Mr Vanh Trang was “put down as a director too”. Mr Trang had an excellent knowledge of exotic cars however had “minimal input into Fiarano Supercars”. It was stated that no accounts were ever opened and no moneys were ever borrowed and no sales were made. It was Mr Soubhi Arja who paid for the establishment of the website.

It was Soubhi Arja who arranged that Mr Abdul Arja was to drive a Ferrari. This arrangement made Abdul “very happy”. The car belonged to Dan Trang the brother of Vanh Trang. That Ferrari was in Mr Soubhi Arja’s possession before it was registered and he had done some work on it at his workshop. It is further stated that the business never “worked out” and was deregistered. The website was closed.

It was Mr Soubhi Arja’s idea that Abdul Arja travel overseas and he arranged to finance those trips for Abdul Arja. Abdul was in Malaysia for about one week and travelled to London where he remained for two weeks. No date is specified in the statement concerning that trip. It is further stated that Abdul Arja was again in London for approximately two weeks in late 2008. Mr Soubhi Arja paid for the airfares.

The extract from ASIC records that the company Fiarano Supercars Pty Ltd ceased to exist on 6 April 2009.

A statement from Westpac relating to a credit card held by Mr Soubhi Arja includes a record of payment to Netregistry Pty Ltd of Chippendale. It was this company which Mr Soubhi Arja said had been paid by him to set up the Fiarano website. The balance of the documents under cover of the Application to Admit Late Documents are not directly relevant to the issues on this appeal.

SUBMISSIONS

As noted above an argument was advanced by the appellant’s counsel in the course of submissions before the Arbitrator that the cctv record of the altercation between the unnamed passenger and Mr Arja on 12 March 2005 demonstrated that Mr Arja was “the aggressor”. Acceptance by the Arbitrator of that argument would lead to a conclusion that the injury alleged was not received in the course of employment within the meaning of section 4 of the 1987 Act. That matter is no longer an issue between the parties however the appellant’s arguments concerning the description of that altercation given by Mr Arja to the various medical witnesses remains to an extent relevant on this appeal given the challenge raised concerning credibility of Mr Arja.

It was argued by counsel that Mr Arja distorted the events at Sydenham station on the night in question when giving histories to the doctors who had treated him or examined him for the purposes of the proceedings. The Arbitrator’s attention was drawn to the histories as recorded by Drs Lee, Pickering and Parmegiani in support of the proposition that Mr Arja had “distorted” that which had occurred during the alleged assault.

The appellant argued that the evidence including medical records, the reports of the medical witnesses and the surveillance material demonstrated that there was a significant contrast between the manner of his presentation before the doctors, his asserted symptoms and those matters which were to be seen in the surveillance films. The Arbitrator’s attention was drawn by counsel to the documentary evidence concerning the establishment of the business which tends to contradict matters as stated by Mr Arja to the various medical practitioners. The general thrust of the appellant’s submissions was that the evidence demonstrates that the medical witnesses were misled as to Mr Arja’s mental state and as to his capacity to interrelate with others and pursue day to day activities. The point was made that the evidence confirms that Mr Arja has travelled overseas during the period of this claim and that Dr Samuell had been misled by Mr Arja when history was taken in 2009.

Counsel appearing for Mr Arja argued before the Arbitrator that the appellant was bound by its admissions as noted in the Commission’s Direction made on 31 March 2008.

Reliance was placed on Mr Arja’s counsel upon the opinions as expressed by the medical practitioners including Dr Akkerman concerning the diagnosis of post traumatic stress disorder. It was further argued that the evidence concerning establishment of the business is of no relevance given that there is no suggestion that the business ever functioned.

The appellant’s submissions on this appeal suggest error on the part of the Arbitrator in accepting the opinions of medical witnesses each of whom had based their opinions upon what is described as “uncorroborated symptoms”. It was argued that the surveillance film in evidence demonstrates a contrast between Mr Arja’s day to day activities and the manner of his presentation to the various medical practitioners. It is put that Dr Samuell was the only practitioner “who had the full history of the applicant’s activities”. It is argued that the Arbitrator erred when he found (at [77]) – “… there is nothing that lends itself to suggest conduct by [Mr Arja] grossly inconsistently (sic) with the way in which he has presented to the doctors”.

It is accepted that the medical evidence supports a conclusion that Mr Arja “suffered from psychological injury” but it is argued that the “objective probative evidence” needs to be considered and that the opinion of Dr Samuell would be preferred given that he, among the doctors, was the only expert medical witness with knowledge of all relevant facts.

Submissions address the manner in which the Arbitrator determined the question of incapacity and it is put that errors were committed when determining quantum of entitlement to weekly compensation in respect of ongoing partial incapacity. As noted above, the appellant no longer contests Mr Arja’s allegation of injury on 12 March 2005 and the subsequent aggravations.

The appellant suggests error on the part of the Arbitrator in failing to “give credit to the appellant for payments of benefits already made”.

Mr Arja, in submissions put on this appeal, suggests error as noted in [70] above. Nowhere in those submissions is there any acknowledgment by Mr Arja of the concessions made by the appellant as noted at [30] above. Given that those concessions have been made by the appellant I agree with Mr Arja’s argument that the evidentiary material that came into being after the making of the admissions before Arbitrator Duncombe, namely the additional surveillance and the report of Dr Samuell, “goes to incapacity”.

Mr Arja argues that the surveillance film is generally “not at odds” with his evidence as found in the supplementary statement made on 23 February 2009. Concerning Mr Arja’s driving activities reliance was placed upon the apparent acceptance by Dr Parmegiani that Mr Arja’s belief that he was being followed explained his erratic driving and disregard of red lights.

Submissions highlight that all the medical witnesses with the exception of Dr Samuell conclude that Mr Arja has suffered ongoing psychological disorder as a result of the subject injuries.

It is argued that Mr Arja’s failure to pursue treatment with Dr Canaris may be explained upon the basis that he was unable to afford payment of ongoing treatment. Attention is drawn by Mr Arja to the Arbitrator’s apparent acceptance of Dr Canaris’ opinion and the statement by the Arbitrator (at [65]) – “That one report, a snapshot as at 19 September 2006, suggests a troubled soul in need of medical attention and struggling with life.”

At [15] of written submissions Mr Arja seeks to explain his travel activities with the assertion that he travelled to destinations with which, by reason of family connections or prior visits, he was familiar and that his “… travel was of relatively short duration.” Reference is made to the statement of Soubhi Arja concerning the background of Mr Arja’s overseas travel. It is noted in submissions that Mr Arja was “initially reluctant to travel” and that the family funded those trips.

Mr Arja seeks to support the reasoning of the Arbitrator as found at [56] and [57] concerning the variation and inconsistency of histories as recorded by the medical practitioners. The Arbitrator’s conclusion that that variation was explicable having regard to the fact that Mr Arja suffered from a psychological condition should, it is submitted, be accepted.

Mr Arja seeks to support the Arbitrator’s process of reasoning concerning evaluation of his reliability as a witness as is expressed at [77] of Reasons.

Mr Arja argues that the Arbitrator was correct to prefer the views of Drs Pickering, Lee Akkerman and Canaris to that of Dr Samuell. The evidence of Dr Samuell was the subject of criticism in the course of submissions and it is argued that that practitioner “… incorrectly utilises his interpretation of the surveillance footage to discredit the worker.” It is noted that there is accord between the expressed views of the Arbitrator and those of Dr Parmegiani concerning some portions of the surveillance footage. It is further argued that, at the time of Dr Pickering’s last report dated 9 March 2009, that practitioner was aware of those matters taken into account by Dr Samuell including conduct of the car business, the driving activities of Mr Arja and his interaction with others as demonstrated in the surveillance footage. Dr Pickering in that report states “… one has to take into account that patients often make statements that which [sic] need to be tempered or interpreted.” It is argued that Mr Arja’s diagnosis requires acceptance of Dr Pickering’s assessment of his conduct and statements. Reference is made to the content of Dr Pickering’s reports and it is put that the Arbitrator’s preference for Dr Pickering’s view to that of Dr Samuell’s was open to him.

It is argued that Mr Arja’s efforts to return to his employment following each of the incidents relied upon should be taken into account when Dr Samuell’s views are being assessed.

The Arbitrator’s approach to the quantification of weekly entitlement to compensation payments is supported in Mr Arja’s submissions ([26] – [29]).

DISCUSSION

As earlier noted the appellant does not dispute the occurrence of injury on the three separate dates particularised in Mr Arja’s original Application. It is also accepted by the appellant that, as a result of the first incident, he suffered a psychological injury and that that injury was exacerbated by the occurrence of the two subsequent incidents. Reliance is placed upon the opinion of Dr Samuell in support of the proposition that Mr Arja had recovered from the effects of those injuries by 21 June 2007.

I have attempted to summarise the evidence of Dr Samuell between [48] and [52] above. It may be seen from that summary that Dr Samuell in July 2007 expressed doubt that Mr Arja could be “…relied upon in this case”. That expression of doubt was founded upon a contrast between matters reported during history taking and those matters displayed in the “video surveillance”. It was Dr Samuell’s view that Mr Arja had misrepresented his level of activity.

The summary of Dr Samuell’s evidence reveals that further surveillance film and other material had been examined prior to furnishing the report of 9 March 2009. It was in that report that Dr Samuel again expresses doubt as to the authenticity of Mr Arja’s alleged incapacity. That practitioner stated that Mr Arja did not appear to be unable to work in the capacity of a customer service attendant and expressly stated that he “could be working as a customer service attendant immediately should he wish to do so.” It is clear from the terms of that report that Dr Samuell’s opinion is based upon surveillance film he had viewed.

The appellant’s challenge to the credit of Mr Arja which was mounted before the Arbitrator was rejected. It was necessary for the Arbitrator to give particular attention in his Reasons to the appellant’s arguments directed to the question of “injury”. That issue need not concern the Commission on this appeal. Having regard to the medical evidence before the Commission the appellant has, properly in my view, conceded that Mr Arja received injury and that he suffered subsequent exacerbation of that injury. The real issue raised on appeal is the correctness or otherwise of the Arbitrator’s conclusion that incapacity resulting from that injury and its exacerbation gave rise to incapacity which persists to the present time.

The appellant’s attack upon the credibility of Mr Arja was founded upon a number of bases including the suggested exaggeration and inconsistency on Mr Arja’s part when giving relevant history to the various medical practitioners. The appellant also relied upon Mr Arja’s failure to follow up treatment with Dr Canaris. General references were made during the course of submissions before the Arbitrator to Mr Arja’s manner of driving, his driving record and other factors. In my opinion none of those latter matters either alone or in combination are of sufficient significance to raise doubt concerning the credit worthiness of Mr Arja. A more troubling aspect of the evidence presented by the appellant is the content of the surveillance film. I have seen that material, the content of which raises considerable doubt as to the reliability of Mr Arja as an historian and, more particularly, whether his statements can be relied upon as foundation for the opinions as expressed by the medical practitioners.

The appellant’s challenge to Mr Arja’s credit gives rise to particular problems on this appeal given the Arbitrator’s acceptance of his evidence and, secondly, the nature of the proceedings.

The hearing before the Arbitrator was conducted “on the papers”. In those circumstances there has been no direct challenge to Mr Arja by way of cross-examination founded upon the matters apparently revealed in the surveillance film. This appeal requires review on the merits and such review may extend to an evaluation of the correctness or otherwise of the Arbitrator’s conclusion as to the credit of Mr Arja.

The approach to be adopted by the Commission in the present circumstances may be guided by those matters stated by the full court of the Federal Court of Australia in Cabal v United Mexican States (2001) 108 FCR 311 at [223] and [224] which was cited in the course of discussion by Hodgson JA in Costa and Another v The Public Trustee of NSW [2008] NSWCA 223 (‘Costa’):

“[223] The principles which govern the review by a Full Court of primary judge's findings of fact are as stated in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. See also Abalos v Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167; Devries v Australian National Railways Commission (1933) 177 CLR 472; and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588. In general on an appeal by way of rehearing from a judge sitting without a jury an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge. However once having reached its own conclusion it will not shrink from giving effect to it.
[224] Notwithstanding the fact that the learned primary judge's review was conducted on the papers, and without any opportunity to consider the demeanour of the witnesses, the weight to be accorded to the evidence of the experts was primarily a matter for his Honour to determine. This Court can consider whether he fell into appealable error in that regard but it will not approach that evidence as though this were a rehearing de novo in which his Honour's views count for nought. If, after giving full weight to his Honour's views, we are persuaded that the conclusions which he reached were erroneous we must set aside his finding of fact. We cannot however simply substitute for his Honour's findings of fact those findings which we would have made had we been the judges on review who determined this matter at first instance.”

The Commission may also be guided, in my view, by the practice of the courts in such cases as has been expounded by the High Court of Australia in Fox v Percy [2003] 214 CLR 118 (‘Fox’) where the subject of debate was the proper approach of an appeal court when rehearing a matter in which findings have been made with respect to credit of a witness. With respect to that matter it was observed in the joint judgment of Gleeson CJ, Gummow and Kirby JJ (at [29]):

“In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusion.”

There is no less need for caution in reviewing the Arbitrator’s findings by reason of the fact that as Mr Arja did not give oral evidence, there can be no suggestion that reliance was placed by the Arbitrator upon the his demeanour when reaching his conclusion concerning his reliability as an historian and credibility as a witness.

As I have observed earlier, it is the surveillance film and the inferences that may be drawn from it that requires attention on this appeal. It is unfortunate that this important evidence was the subject of consideration by the Arbitrator in but two paragraphs of his otherwise comprehensive statement of reasons. It was stated at [76] and [77]:

“76. It is clear that Dr Samuell stands alone in his non acceptance of Mr Arja. I need to weigh Dr Samuell's opinions with the preponderance of views. Whilst I accept that where there is evidence of unreliability (as there is here) there may be reason to doubt an opinion based solely on the impression created by the so called injured party, here treating doctors have independently viewed symptoms, which they did not find feigned or manufactured. Dr Samuell appears to rely upon his own questioning of Mr Arja which appears to be at variance with the way other doctors have approached the matter. Additionally, he has relied heavily on other material, including surveillance material. In a report of 20 July 2007, Dr Samuell specifically comments on video surveillance which was made available to him relevant to the day to day activities of Mr Arja. He contrasts that with answers given by Mr Arja to suggest a misrepresentation. Mr Arja had told Dr Samuell that he “goes for drives alone, eats and constantly thinks”.
77. From the surveillance material that has been made available to the Commission there is nothing that lends itself to suggest conduct by Mr Arja grossly inconsistently with the way in which he has presented to the doctors. Dr Samuell concluded that the comments were contrary to the surveillance, such as to suggest active misrepresentation. Dr Samuel further concludes that because psychiatric diagnosis is almost entirely reliant on the credibility of the Claimant and subjective reporting, he does not think the Claimant can be relied upon in this case. Mr Arja appears to have misrepresented his level of activity to Dr Samuell.”

It may be seen that the Arbitrator has rejected the appellant’s argument that the surveillance film demonstrates behaviour which significantly contrasts with the manner in which he presented to the medical practitioners and the history given by him to those who conducted examinations. The Arbitrator has expressed the view that nothing comprised in the surveillance suggests conduct which is grossly inconsistent with the manner in which he presented to the medical practitioners. That view has been expressed without any clear statement of reasons nor accompanied by any analysis of that which was demonstrated in the films. In the circumstances I have formed the view that the Arbitrator’s conclusion concerning the relevance or otherwise of that surveillance material requires review.

Having viewed the edited version of the surveillance film, I state at the outset that my immediate and lasting impression was that there exists a stark contrast between Mr Arja’s general behaviour and presentation found on the film and those observations and historical notes recorded by the medical practitioners in the various reports in evidence.

The surveillance conducted by the investigators took place between 5 December 2006 and 1 November 2008. During that period those conducting the enquiries attended the vicinity of Mr Arja’s residence on 24 separate days. It is notable in my opinion that Mr Arja was sighted on 18 of those 24 days. That fact is notable having regard to Mr Arja’s description of his activities. By way of example he reports to Dr Canaris in September 2006 – “I don’t go out, I don’t go out of my room, I bring the family back down with the way I feel; financially, I am back to square one as well.” The surveillance records that Mr Arja was quite active on 5 and 6 December 2006 on which days he was observed and recorded driving in the Punchbowl and Riverwood areas, attending a recreational park at Riverwood where he was occupied on his mobile telephone. The manner of Mr Arja’s driving was described as being “erratic” and he was observed to travel through several red lights. He was also observed attending the office of Western Money Union in Moore Street, Liverpool where he appeared to be attending to business in conversation with a teller. It must be acknowledged that these sighting occurred some 13 weeks after the first and only consultation with Dr Canaris on 29 August 2006. It must also be acknowledged that Mr Arja has stated that his speeding was caused by his fear that he was being followed (Statement dated 23 November 2007 of Mr Arja at [87]). Dr Samuell recorded, following consultation on 28 August 2006, that Mr Arja had stated that he was “doing nothing”. He also recorded that Mr Arja trained at the gym “six days per week”. He denied that he meets up with his friends and stated that he gets nervous going out because he feared attack.

Dr Parmegiani recorded during the consultation with Mr Arja on 27 May 2008 that he was “…depressed, withdrawn and unmotivated.” It was also noted that Mr Arja did not undertake social or recreational like activities, had lost interest in assembling model aeroplanes and no longer went out with friends on weekends. He did not visit cinemas, clubs or restaurants. Mr Arja was observed by the investigators on 10 separate days during the course of 2008. The first of those days was 1 August 2008, the last 9 October 2008. There were three separate days during that year when the investigators attempted to locate Mr Arja but were unsuccessful. His activities as noted in the investigation report and recorded on the DVD disc reveal conduct on the part of Mr Arja that can be described only as very active. His appearance without exception in the recorded material may be described as particularly well groomed. Mr Arja had numerous exchanges with his associates both adults and children and appeared on occasions to behave in a relaxed and jovial manner and conducted himself playfully with children. He was observed to drive a variety of motor vehicles, all well maintained, including, on five separate days, a high powered late model red Ferrari sports vehicle. Mr Arja, on 3 October 2008 was observed and recorded carrying a laptop computer bag over his shoulder, using a mobile phone and driving the sports vehicle. He drove to Bay Street Brighton Le Sands where the vehicle was parked and he joined a crowd that was present on the corner of the Grand Parade. Later that day Mr Arja drove that vehicle to the city and visited various areas including Double Bay, Rose Bay, Vaucluse, Watsons Bay and then to Kings Cross. Mr Arja was observed arriving back at Brighton Le Sands in the vehicle at approximately 9.20 pm. It is these activities which appear to starkly contrast with his manner of presentation to Dr Pickering as noted above at [45(x)].

The Arbitrator, at [60] of reasons notes Dr Pickering’s diagnosis that Mr Arja was suffering from chronic post traumatic stress disorder with major depression. He proceeds to state:

“This led Dr Pickering to conclude that Mr Arja is suffering from chronic post traumatic stress disorder with major depression, such as to satisfy DSM IV diagnostic criteria. Dr Pickering then looks at the specific indicia to satisfy DSM IV and finds the objective symptoms such as disturbance of sleep, irritability, difficulty concentrating, hyper vigilance and exaggerated startle response, all as being consistent with a PTSD condition. As these symptoms had existed for more than one month they satisfied the diagnosis.”

It may be seen that the Arbitrator has characterised the symptoms noted by Dr Pickering as being “objective”. In so stating the Arbitrator has erred. It is those symptoms as reported by Mr Arja which are subjective and incapable of being established objectively. Dr Samuell has made it clear in his reports that one is entirely dependent upon the veracity of complaints of a subjective nature for diagnostic purposes. The need for that reliance is acknowledged by Dr Pickering in his report of 1 June 2009 when he states – “This writer has not seen evidence that Mr Arja has misrepresented his level of functioning. It is however self-evident that no one, psychiatrist or otherwise, can confirm or otherwise a subjective symptom.” As earlier noted Dr Pickering had not viewed the latter relevant surveillance film.

The Commission is often confronted with the task of evaluating the evidentiary weight of surveillance material in the course of determining disputes which come before it. Great caution has, in the past, been exercised by the Commission, and the Compensation Court before it, in placing reliance upon such material when assessing questions of an applicant worker’s credibility. I have attempted to adopt that cautious approach to the material which is before the Commission in the present case and have reached the conclusion that the recorded material relevantly contradicts the matters stated by Mr Arja to the Commission in his first statement and his presentation and reporting of symptoms to the various medical witnesses. The supplementary statement made by Mr Arja attempts to explain his activities, however it is clear that such explanation has followed revelation of the material accumulated by the appellant, and the weight of his subsequent evidence must be assessed with the understanding that it is by way of reply. None of the activities had been volunteered by Mr Arja prior to revelation of the appellant’s material which occurred in accordance with practice concerning “front end loaded” presentation of evidence.

The weight of Mr Arja’s evidence must also be assessed having regard to the contradiction between his statements concerning holidays/travel to Dr Samuell and the subsequent revelation and acknowledgement by Mr Arja that he had been overseas during his alleged period of incapacity, which trips included two flights to London.

Injury has been conceded by the appellant and compensation has been paid to 27 June 2007. I have concluded that it is probable that, as a result of the injury and subsequent exacerbations, Mr Arja did in fact suffer the condition of post traumatic stress disorder as diagnosed by Dr Canaris in September 2006. That condition caused incapacity and Mr Arja required medical treatment. There is in evidence a letter from RailCorp addressed to Mr Arja’s solicitors outlining those benefits which have been paid by way of weekly payments up to 14 April 2007. There is no evidence of the quantum of subsequent payments.

It is apparent that I have reached a very different view to the Arbitrator concerning the relevance of the surveillance film and the weight that one must give to the evidence of Mr Arja. I have found error on the part of the Arbitrator concerning his characterisation of matters reported by Mr Arja to the doctors. In those circumstances, and guided by the authorities including those observations to be found in Costa, I conclude that it is probable that Mr Arja had made a complete recovery from the condition earlier diagnosed by, at the latest, 25 February 2009, on which date he was examined by Dr Samuell. Dr Samuell expressed the view (at page 9 of report dated 9 March 2009) that Mr Arja “…does not appear to me to be unable to work in the capacity of a customer service attendant.” I conclude that the matters reported by Mr Arja to the doctors, certainly after mid 2007, were either exaggerations or untrue and misleading.

My finding concerning the duration of Mr Arja’s incapacity reached in the course of this review requires that the Arbitrator’s award with respect to weekly compensation be revoked. In the circumstances it is unnecessary to examine in detail the Arbitrator’s reasons as expressed for the manner in which Mr Arja’s entitlement has been assessed. It is, however, important to note that the Arbitrator has failed in the course of his reasons to make any express finding as to the extent of incapacity at relevant times. Whilst reference is made by the Arbitrator to the decision of Mitchell, it appears that his conclusion is that Mr Arja’s incapacity at relevant times was one of total incapacity. His reasoning, particularly at [89] of reasons, is such as to demonstrate error and constitutes a further basis for a need for review and correction.

I have earlier noted that there is uncertainty as to the relevant chronology concerning Mr Arja’s absences from work and the incomplete record of details of payments made voluntarily by the appellant in respect of weekly payments. In the circumstances it is proposed to address the question of incapacity and any entitlement from 1 June 2005 to March 2009. The fact that some payments have been made may be addressed by including an appropriate order that the appellant have credit in respect of payments made.

The medical evidence, with the exception of the views expressed by Dr Chugh and Dr Pickering, suggest that Mr Arja was partially incapacitated at relevant times. However, founded upon my acceptance of Mr Arja’s complaints made up until August 2006 as found in his evidence and as recorded by the various medical practitioners I am of the view that it is reasonable to conclude that Mr Arja was totally incapacitated up until 9 August 2006. It was on that date that his general practitioner Dr Khan certified that he was fit for suitable duties. A certificate issued by Dr Khan on 12 September 2006 certified that Mr Arja was fit for suitable duties being work where direct dealings with the public could be avoided for unrestricted hours per day four days per week. Dr Lee in his report of March 2007 expressed the view that Mr Arja was fit for restricted duties for 10 hours per week.

It appears that the parties had agreed before the Arbitrator that the relevant current weekly wage rate was $720.00. It follows that, on the findings as I have attempted to summarise above, Mr Arja is entitled to an award at the rate of $720.00 per week from 1 May 2005 to 30 October 2005 pursuant to section 36 of the 1987 Act. His entitlement in respect of total incapacity thereafter is at the rate of $340.90 per week until 31 March 2006 and at the rate of $347.90 until 8 August 2006.

It is apparent that I have rejected the views expressed by Dr Pickering in his reports as I have summarised earlier. It will be clear that the basis upon which I have rejected that practitioner’s views concerning incapacity is the lay evidence presented by the appellant being the surveillance material. The subjective complaints upon which that practitioner relied to form his views have been demonstrated to be unreliable and, in all probability, untrue.

A determination of Mr Arja’s entitlement in respect of partial incapacity is to be determined having regard to those principles which are expounded in the decision of the Court of Appeal in Mitchell. The first step is to determine the probable earnings of Mr Arja but for injury during the relevant period. There is no evidence of probable earnings before the Commission. In the circumstances, for the purposes of calculation of any entitlement, I will treat the agreed current weekly wage rate of $720.00 as representing probable earnings in terms of section 40(2)(a).

The Commission is bound to determine the average weekly amount which Mr Arja had earnt during the relevant period or would then have been able to earn in some suitable employment. There is evidence that Mr Arja conducted an upholstery business. There is no evidence as to the earnings of that business apart from an approximation of earnings made by Mr Arja and noted earlier in this determination. There is evidence that Mr Arja was concerned with the conduct of the business being the sale of motor vehicles and that he was the registered director of a company concerned with such trade. Mr Arja has stated in evidence that that business came to nothing. There have been various assessments as to work capacity from time to time by the doctors who have examined Mr Arja however there is no common thread which would indicate a demonstrated ability to earn.

Dr Khan was of the view that since August 2006 Mr Arja was fit for restricted duties. Those restricted duties were expressed as being, as at September, working four days per week. By 19 September 2006 Dr Khan considered Mr Arja fit for suitable duties four hours a day five days a week. Dr Khan’s view as expressed in a certificate dated 8 October 2007 was that Mr Arja was fit for six hours work per day five days per week. All those certificates as to capacity issued by Dr Khan required that he have no dealings with the public. Doing the best I can with the material which is before the Commission concerning the question of Mr Arja’s ability to earn I conclude that he would at relevant times have had the capacity to work in the field of motor trimming or an allied trade, or in unskilled work on a full-time basis in any occupation not requiring contact with the public. Such work is not readily available and it may be assumed that there would be periods when such employment could not have been attained had he wished to seek it. In the circumstances it is appropriate to assess Mr Arja’s ability to earn between 10 August 2006 and 25 February 2009 as being $450.00 per week.

The arithmetic difference between Mr Arja’s probable earnings and ability to earn is $270.00 per week. That sum represents Mr Arja’s prima facie entitlement to weekly benefits pursuant to section 40. I am not satisfied that there are any grounds upon which the Commission’s discretion to vary that prima facie entitlement may properly be exercised. In the circumstances Mr Arja is entitled to an award in the sum of $270.00 per week from 10 August 2006 to 25 February 2009 pursuant to section 40.

Mr Arja is entitled to an award in respect of his claim for medical hospital and associated expenses and accordingly the Arbitrator’s orders with respect to that head of claim are to be confirmed.

Given the conclusions expressed above that the consequences of injury had ceased at the latest by 25 February 2009 the appellant can have no liability in respect of Mr Arja’s claim brought pursuant to sections 66 and 67 of the 1987 Act. In those circumstances there is to be no referral by the Registrar to an AMS for assessment. The appellant is entitled to an award in respect of that head of claim. The appellant is also entitled to credit in respect of weekly payments made to date.

DECISION

Paragraphs one and three of the Arbitrator’s determination of 4 August 2009 are revoked. Those orders are to be substituted with the following orders:

“1. Award for the respondent in respect of the applicant’s claims for lump sum compensation brought pursuant to sections 66 and 67 of the 1987 Act.
3. Award for the applicant in respect of his claim for weekly payments as follows:

(i)$720.00 per week from 1 May 2005 to 30 October 2005 (section 36);
(ii)$340.90 per week from 1 November 2005 to 31 March 2006 and $347.90 per week from 1 April 2006 to 8 August 2006 (section 37), and
(iii)$270.00 per week from 9 August 2006 to 25 February 2009 (section 40).

The respondent is to have credit in respect of weekly payments made.

Paragraphs 2, 4 and 5 of the Arbitrator’s determination dated 4 August 2009 are confirmed.

COSTS

The appellant has succeeded, in part, with respect to this appeal. Mr Arja has retained an award, the quantum of which is moderately substantial. I further note that the appellant, following the Arbitrator’s determination, has conceded the occurrence of injury as alleged. Having regard to all the circumstances I consider it appropriate that the appellant pay Mr Arja’s costs of this appeal and I so order.

Kevin O’Grady
Deputy President
30 November 2009

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O”GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE