Raslan v American Express International Limited
[2006] NSWWCCPD 327
•29 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Raslan v American Express International Limited [2006] NSWWCCPD 327
APPELLANT: Fady Raslan
RESPONDENT: American Express International Limited
INSURER:QBE Worker’s Compensation (NSW) Limited
FILE NUMBER: WCC835-06
DATE OF ARBITRATOR’S DECISION: 16 May 2006
DATE OF APPEAL DECISION: 29 November 2006
SUBJECT MATTER OF DECISION: Determination of ‘injury’ under Section 4 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: Paul A Curtis & Co Solicitors
Respondent: McCulloch & Buggy
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 16 May 2006 is confirmed.
2. No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 9 June 2006 Fady Raslan (‘Mr Raslan’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 16 May 2006.
The Respondent to the Appeal is American Express International Limited (‘American Express’).
Mr Raslan was born on 20 March 1969 and is 37 years of age. He claims no dependents. He commenced employment with American Express in July 2002 as a Customer Service Consultant.
In about mid 2003, Mr Raslan alleges that he first noticed a sore back. His job involved prolonged sitting and the chair was very hard and had no back support. By December 2003, his low back pain had deteriorated and was very severe.
On 1 January 2004 Mr Raslan collapsed with severe back pain whilst on holidays. He returned to work with American Express in mid January 2004 and has continued at work with the occasional day off. An “incident report/early notification of injury” form was completed on 4 February 2004 and a claim for workers compensation benefits was lodged by Mr Raslan on 16 March 2004. Benefits were paid until 6 May 2005 when liability was denied.
Proceedings were commenced in the Commission on 20 January 2006 seeking lump sum compensation in respect of whole person impairment, medical expenses and weekly benefits compensation for three days in May 2005. An arbitration hearing took place on 12 April 2006 and Mr Raslan has appealed from the decision handed down by the Arbitrator.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 16 May 2006 records the Arbitrator’s orders as follows:
“1.The Applicant did not sustain any injury arising out of or in the course of his employment with the Respondent.
2.The Applicant’s employment with the Respondent was not a substantial contributing factor to any injury to his lumbar spine and left lower extremity.
3.The Application is accordingly dismissed.
4.There is no order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are that the Arbitrator determined the issues of injury and substantial contributing factor against the weight of the evidence.
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 submission 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal is at least $5,000.00 (section 352(2((a) of the 1998 Act).
No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5).
Accordingly I grant leave to appeal.
FRESH EVIDENCE
Neither party seeks leave to introduce fresh evidence.
PRELIMINARY
Mr Raslan asks in his submissions in support of the appeal:
“…that a determination be made that his employment with the Respondent was a substantial contributing factor to the injury he sustained to his lumbar spine and left leg and therefore that he sustained an injury arising out of or in the course of his employment with the Respondent.”
With respect to Mr Raslan, it would appear that he has the ‘cart before the horse’. Once Mr Raslan has established that he has suffered an injury, he then has the onus of proving that the injury arose out of, or in the course of employment. Once that has been established, the question of whether his employment was a substantial contributing factor to the injury comes into play.
At paragraph 40 of the decision the Arbitrator made this finding:
“I regard the absence of any reference to a work-related basis for the difficulties affecting the Applicant’s back and left leg in the clinical notes of the Applicant’s treating doctors, and in the Emergency Department Record of the Freemason’s Hospital, as indicating that the association was one made retrospectively by the Applicant. There is no contemporaneous evidence which supports the Applicant’s version that he regarded his back and leg pain in December 2003 to have arisen as a consequence of his work conditions. I am, in the circumstances not persuaded that the pathology affecting the Applicant’s lumbar spine and left leg arose out of or in the course of his employment with the Respondent. I am similarly not persuaded that the Applicant’s employment with the Respondent was a substantial contributing factor to such pathology. In this latter respect the debate between Dr Potter and Dr Searle is relevant.”
There was no dispute that Mr Raslan suffered an injury and as the Arbitrator stated at paragraph 12 of the decision; “All of the specialists who have provided opinions regarding the Applicant’s condition are in agreement that there is evidence of disc pathology. They differ in their opinions as to the cause of that pathology”.
EVIDENCE, DISCUSSION AND FINDINGS
Mr Raslan submits that the Arbitrator erred in preferring the opinion of Dr Potter over the opinion of Dr Searle. Although the Arbitrator did record a preference for Dr Potter, it was largely on the issue of substantial contributing factor. The Arbitrator did however have cause to consider the medical reports of Dr Searle, Dr Potter and Dr Bodel when weighing up the evidence on injury.
American Express submit in reply that the Arbitrator took considerable time to review the relevant medical and documentary evidence and noted the inconsistencies between that material and the histories recorded by Dr Potter, Dr Searle and Dr Bodel.
I agree with this submission by American Express. All three doctors examined Mr Raslan for the purposes of the arbitration. Dr Potter and Dr Bodel at the request of American Express and Dr Searle at the request of Mr Raslan’s solicitors. All three doctors were told by Mr Raslan that his back problems began in December 2003 and that he had no problems with his back prior to this time. As opposed to this Mr Raslan had set out in his statement that he first began to notice a sore back in mid 2003. The clinical notes of Mr Raslan’s general practitioner, Dr Grech, also recorded left lower back pain on 4 September 2003 and low back pain on 4 November 2003.
In his statement Mr Raslan records he travelled to Melbourne during his Christmas holidays and collapsed on 1 January 2004 with significant back pain and consequently was taken to Freemasons Hospital in East Melbourne. A similar history is recorded by Dr Searle, Dr Potter and Dr Bodel.
The clinical records from the Emergency Department of the Freemasons Hospital were in evidence at the arbitration hearing. They recorded Mr Raslan’s arrival on 1 January 2004 and as the Arbitrator set out in his decision in paragraphs 29 and 30, recorded a past history of “sciatica (L leg 2 yrs ago)” and information that:
·“From Sydney
·Back pain 10/7 ago
·Down left leg – ankle
·Getting nephew out of car - ? hurt something
·Attended illegible – severe pain
·Xray – ‘lower disc’ problem
·Drop foot on left
·Illegible”
Mr Raslan submits that the Arbitrator erred in failing to infer that Dr Steele, treating neurosurgeon, supported the causal link between the prolonged sitting at work and his back condition. In support of this submission Mr Raslan refers to a letter from Dr Steele to American Express workers compensation insurer seeking approval for a steroid injection. I fail to understand this submission as the onus is on Mr Raslan to satisfy the Commission on the balance of probabilities, that the injury he suffered arose out of or in the course of his employment. The letter from Dr Steele dated 6 August 2004 seeks approval for a steroid injection and encloses a copy of a letter sent to the referring doctor, Dr Grech. This letter to Dr Grech refers to an MRI scan and comments on the need for a steroid injection. There is no comment at all on causation.
Mr Raslan submits that a Jones v Dunkel inference should be drawn from the failure of Dr Bodel to assert that the disc pathology he suffers was not causally related to his workplace duties. As stated above Dr Bodel examined Mr Raslan on behalf of American Express and his report can be best described as neutral. Again I do not accept this submission by Mr Raslan as the onus is on him to make out his case.
At paragraph 28 the Arbitrator made this statement:
“Nowhere in the clinical notes is there any reference to the Applicant’s work circumstances as an explanation for his back pain. Had the Applicant provided Dr Grech with the version recorded in his statement of 10 December 2005, or the variation provided to Dr Bodel, Dr Potter and Dr Searle, Dr Grech can be expected to have noted the essential features of that version.”
Mr Raslan submits that the Arbitrator gave undue weight to the failure of Dr Grech to obtain a more accurate history. He submits that medical practitioners are notoriously unreliable in recording correct histories and in any event the medical certificates issued by Dr Grech suggest a causal link with employment because they record back and leg pain. It is further submitted by Mr Raslan that as he did not provide a history of work causes to Dr Grech, an inference should have been drawn that he was more concerned about his treatment than claiming workers compensation. In looking at the various WorkCover medical certificates from Dr Grech, the doctor has certainly ticked the box in most of those certificates that work is a substantial contributing factor, but on all certificates, except one, he has left blank how the injury occurred. On the one he has completed, he has stated “uncertain”.
Finally Mr Raslan submits that support for the opinion expressed by Dr Searle can be inferred from the reports of both Dr Bodel and Dr Steele, as neither doctor stated that the injury could not have occurred in the manner suggested by Mr Raslan.
As Deputy President Byron said in John Robinson t/as Robinson’s Pharmacy v King [2005] NSWWCCPD 39:
“The weight and relevance of the evidence is a matter in the discretion of the Arbitrator, upon due consideration of that evidence. In circumstances where it can be demonstrated that the Arbitrator has failed to exercise his discretion fairly and lawfully, the decision may be overturned. The circumstances in which this occurs are where the Arbitrator has acted upon a wrong legal principle, allowed irrelevant considerations to influence his decision, made a material mistake as to the facts or has failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and Re National Roads and Motorists Association Ltd [2003] FCAFC 206).”
Having considered the evidence in this matter, including the transcript of the proceedings before the Arbitrator, I am of the opinion that there is no error in the Arbitrator’s decision on the issue of injury. Mr Raslan did not give evidence at the arbitration hearing with a view to providing an explanation of the various matters referred to above, nor did he tender medical evidence from Dr Steele or Dr Grech on the issue of causation. As stated above the onus was on Mr Raslan and I agree with the Arbitrator that he failed to satisfy the Commission that his injury arose out of, or in the course of employment. Accordingly it is not necessary to consider the issue of substantial contributing factor.
DECISION
For the reasons stated above the decision of the Arbitrator dated 16 May 2006 is confirmed.
COSTS
No order as to costs of the appeal.
Julian Martin
Acting Deputy President
29 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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