Uyanik v Mavruk Construction Pty Ltd - [2011] NSWWCCPD 9

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Uyanik v Mavruk Construction Pty Ltd [2011] NSWWCCPD 9
APPELLANT:			Zafer Uyanik
RESPONDENT:			Mavruk Construction Pty Ltd
INSURER:			GIO General Limited
FILE NUMBER:			A1-4841/10
SENIOR ARBITRATOR:		Mr M Snell
DATE OF ARBITRATOR’S DECISION:			11 November 2010
DATE OF APPEAL DECISION:			24 February 2011
SUBJECT MATTER OF DECISION:			Causation; credit findings
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			On the papers
REPRESENTATION:			Appellant:	Thomas Booler & Co
Respondent:	Hicksons
ORDERS MADE ON APPEAL:			The Senior Arbitrator’s determination dated 11 November 2010 is confirmed. Each party is to pay his or its own costs of the appeal.

BACKGROUND

Mr Uyanik started work for the respondent employer, Mavruk Construction Pty Ltd (Mavruk), as a casual construction labourer on 15 October 2007. He alleges that, on 22 November 2007, he sustained various injuries when he fell from scaffolding while working for Mavruk on a building site at Castle Hill, about 70 km from Melbourne.
The parties have given sharply conflicting evidence about the circumstances of the fall and the events immediately following it. Though Mavruk’s insurer, GIO General Limited (GIO), made provisional liability payments until 15 February 2008, it disputed liability in a s 74 notice dated 4 June 2010 on the ground that Mr Uyanik had not fallen from scaffolding on 22 November 2007 and had not suffered any injury. In the alternative, it disputed that he suffered any incapacity or impairment as a result of the fall.
In an Application to Resolve a Dispute (the Application) registered in the Commission on 17 June 2010, and amended on 9 November 2010, Mr Uyanik sought weekly compensation in the sum of $1,000 from 16 February 2008 to date and continuing, lump sum compensation in respect of a 28 per cent whole person impairment (as a result of an alleged injury to his cervical and lumbar spines), and a general order for the payment of hospital and medical expenses.
Mr Uyanik alleged in the Application that he injured his back, neck, arms and legs in the fall, and had developed anxiety and depression. Though the Application was not amended and there is no specific reference to it in the transcript, it appears to be common ground that Mr Uyanik also alleged that he injured his ribs in the fall. This is consistent with the s 74 notice, which referred to Mr Uyanik’s claim in respect of injury to his “back, neck, ribs and head”.
The Commission listed the matter for conciliation and arbitration before Senior Arbitrator Snell on 9 November 2010. Neither side sought to call any oral evidence and the matter proceeded with submissions from counsel representing each side. In an extempore decision the Senior Arbitrator found, with “some hesitancy” (T36.8), that Mr Uyanik had fallen from scaffolding, but that his only injury was a fractured left eighth rib. He was not satisfied that there was any causal link between Mr Uyanik’s “complaints involving his back, neck, arms and legs and the fall” (T37.10).
The Senior Arbitrator made an award for Mavruk in the claim for weekly and lump sum compensation. He ordered Mavruk to pay the worker’s hospital and medical expenses for the injury to the left eighth rib up to and including 10 October 2009. The Commission issued a Certificate of Determination on 11 October 2010 in the following terms:
“The determination of the Commission in this matter is as follows:

1.That there be an award in favour of the Respondent on the Applicant’s claim for weekly compensation.
2.That there be an award in favour of the Respondent on the Applicant’s claim pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act).
3.That there be a general order for the payment of the Applicant’s expenses pursuant to section 60 of the 1987 Act, in respect of injury to the Applicant’s left 8^th rib only, up to and including 10 October 2008. Award for the Respondent on the Applicant’s claim pursuant to section 60 otherwise.
4.The Respondent is to pay the Applicant’s costs as agreed or assessed.”

In an appeal lodged on 8 December 2010, Mr Uyanik seeks leave to challenge the determination of 11 October 2010.

LEAVE

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

Monetary threshold

It is not disputed that the monetary thresholds in s 352(2) are satisfied.

Time

The appeal was lodged within 28 days of the decision in compliance with s 352(4) of the 1998 Act.
I grant leave to appeal.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

THE SENIOR ARBITRATOR’S REASONS

The Senior Arbitrator concluded that:
(a)     there were various discrepancies in the medical evidence with regard to Mr Uyanik’s complaints from time to time (T32.43);
(b)     he had great difficulty in accepting Mr Uyanik’s explanation for the lack of neck and back complaints in the cards (clinical notes), certificates and report of Dr Demdi (wrongly referred to as Dr Dendy in the transcript) (T32.44). It was apparent that Mr Uyanik was seeing Dr Demdi about a number of things, including the sequelae of the accident;
(c)     the first possible reference to neck complaints was in a report from Ms Holmes, rehabilitation consultant with Strategic Industry Solutions Pty Ltd, dated 18 January 2008 (T33.2). That complaint was many weeks after the accident and not picked up thereafter for some time in the material of other doctors. She had no reference to the low back complaints and had only a passing reference to the neck complaints in conjunction with the complaints concerning the jaw (T36.26);
(d)     leaving aside Ms Holmes’s report, the first convincing complaint of neck or back symptoms was in the report from Dr Ellis dated 18 April 2008, in the vicinity of five months after the accident (T33.11);
(e)     there were other inconsistencies in Mr Uyanik’s version of how the accident happened that had to be weighed in determining whether the accident happened at all (T33.17);
(f)      bearing in mind other inconsistencies in Mr Uyanik’s evidence, the Senior Arbitrator had difficulty in accepting Mr Uyanik’s evidence where it was contradicted by evidence from other persons (T33.53);
(g)     there was an inconsistency in the timing of the consultation with Dr Demdi (T34.1);
(h)     having regard to the inconsistencies in complaints relating to the neck and lower back and, in particular, to the significant gap in any significant complaints to the neck or lower back until they were eventually recorded by Dr Ellis in his report of 23 April 2008, he was not satisfied that Mr Uyanik’s neck and low back complaints resulted from the fall on 22 November 2007 (T36.17);
(i)      he was not satisfied that Mr Uyanik’s rib symptoms were incapacitating beyond 16 February 2008, the date to which compensation payments were made (T36.54), and
(j)      he was not satisfied there was any causal relationship between Mr Uyanik’s complaints involving his back, neck, arms and legs and the fall on 22 November 2007 (T37.9). The worker’s counsel did not press the “anxiety and depression” allegations (T37.15).

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Senior Arbitrator erred:
(a) in failing to make an award for Mr Uyanik for the injury to his neck and back and in making an award for Mavruk in relation to the neck and back, and
(b) in making an award for Mavruk for the neck and back on the basis that there was no complaint contemporaneous with or close in time to the date of injury to the chest.

SUBMISSIONS, DISCUSSION AND FINDINGS

Mr Uyanik’s solicitor submitted on appeal that:
(a)     Dr Mahoney gave evidence that the worker’s back and neck impairments arose as a result of a substantial fall of 1.5 metres and that the trauma suffered was consistent with the fall;
(b)     Mr Uyanik’s complaints of pain would, given the broken ribs, be masked by the chest pain;
(c)     the injuries to the neck and back have no other precipitating factor;
(d)     as the injuries to the neck and back were not the subject of “primary treatment”. they were less important to the doctors who initially treated Mr Uyanik;
(e)     the evidence from Mavruk’s doctors was that they were not convinced “that the neck and back were traumatically caused and merely the effects of degenerative change”. This scenario “does not account for the pain only being present after the accident and so being precipitated or aggravated by the fall”, and
(f)      this case differs from other cases that require corroborative evidence on injury to an additional body part because of the effect of masking (caused by the rib injury) and the fact that the injury to the ribs was to the same general part of the body as the back and neck, and so (the additional injuries) were easily overlooked at the time of injury.
Mr Uyanik gave evidence that he fell about two metres onto scaffolding components. He said that, as he fell, the left side of his face, jaw and head hit the scaffolding and he landed hard on his back and left side on metal components. He felt immediate pain in the left side of his chest and had difficulty breathing. He also felt pain in his back and neck and was dizzy from having hit his head.
There are several inconsistencies in Mr Uyanik’s case that led the Senior Arbitrator to reject his evidence that he injured his neck and back in the fall. In addition, the contemporaneous medical evidence from his general practitioner, Dr Demdi, does not support Mr Uyanik’s evidence that he felt pain in his back and neck at the time of or immediately after his fall.
Dr Demdi first saw Mr Uyanik after the accident on 25 November 2007. In his report of 14 February 2008, he recorded that Mr Uyanik complained of left chest wall pain for three days following a fall onto scaffolding. On examination, Mr Uyanik was tender across the left lower rib cage. Movements of the chest wall and deep breathing exacerbated the pain. Dr Demdi prescribed analgesia and certified the worker to be unfit until 22 December 2007, then fit for light duties until 15 February 2008, and fit for work from 16 February 2008. This report is consistent with Dr Demdi’s clinical notes and medical certificates.
Mr Uyanik also saw Dr Demdi on 26 November 2007, when the doctor noted that the x-rays revealed an undisplaced fracture of the left eighth rib with no penetration. He also recorded that Mr Uyanik was “having stresses in his relationship with wife”.
Mr Uyanik saw Dr Demdi on 28 November 2007, complaining of having trouble sleeping due to pain.
On 5 December 2007, Mr Uyanik again saw Dr Demdi, complaining of having trouble sleeping because of pain in his chest wall. Certain movements exacerbated the pain.
On 7 December 2007, Mr Uyanik saw Dr Demdi, complaining of constipation because of his medication. He still had pain. Dr Demdi certified Mr Uyanik unfit because of his left lower rib fracture.
On 17 December 2007, Dr Demdi certified Mr Uyanik to be fit for light duties from 22 December 2007 because of his rib fracture. Mr Uyanik also saw Dr Demdi for an unrelated matter on 17 December 2007.
On 2 January 2008, Dr Demdi again certified Mr Uyanik fit for light duties because of his rib fracture.
On 10 January 2008, Dr Demdi recorded that the worker’s chest wall pains were improving, but had not completely resolved. Mr Uyanik also complained to the doctor of an unrelated matter relating to a left upper molar. Dr Demdi wrote “medicare” next to this entry.
Dr Demdi saw Mr Uyanik again on 14 January 2008 about his left upper molar.
The entry in Dr Demdi’s notes for 18 January 2008 is difficult to read, but there is clearly no reference to neck or back symptoms. Dr Demdi certified Mr Uyanik fit for suitable duties (lifting up to five kg) from 21 January until 3 February 2008 because of his left lower rib cage.
On 1 February 2008, Dr Demdi recorded that the worker was improving and certified him fit for suitable duties (lifting up to 10 kg) from 3 February to 15 February 2008.
On 12 February 2008, Mr Uyanik saw Dr Demdi, stating that he had been involved in a domestic violence issue with his wife that morning and he had been struck on the right elbow by a hammer. Examination of the right elbow revealed mild swelling, but x-rays did not reveal any fracture.
On 14 February 2008, Dr Demdi recorded that Mr Uyanik’s rib fracture had “resolved”. He certified Mr Uyanik fit for his pre-injury work from 16 February 2008. Dr Demdi also referred to ongoing stresses with his partner, which would be going to court.
On 4, 10 and 25 March and 7 and 23 April 2008, Mr Uyanik saw Dr Demdi. He complained of depression due to stresses from his domestic circumstances. Dr Demdi prescribed antidepressant medication.
There are no further notes from Dr Demdi until 10 October 2008, when Mr Uyanik complained of intermittent pains at the site of his left rib fracture. X-rays confirmed that the fracture had healed.
On 14 November 2008, Dr Demdi stated that Mr Uyanik was due to have an MRI, but was claustrophobic and anxious. There is no evidence that Dr Demdi referred Mr Uyanik for the MRI.
On 9 January 2009, Mr Uyanik complained to Dr Demdi of lower back and neck pain. Dr Demdi recorded that the worker was seeing a specialist “in the management of his case and also pursuing compensation as he states it was a work related accident”. On examination, neck movements were painful, but there were no upper limb neurological deficits. Lower back movement (demonstrated) restricted flexion, but there were no lower limb neurological deficits. There was tenderness in the paravertebral muscles. Dr Demdi again noted Mr Uyanik had ongoing stresses with his wife and he provided counselling.
From 4 March 2009, Dr Mostaphazadeh, a doctor at the same practice as Dr Demdi, became Mr Uyanik’s main general practitioner. He recorded neck and back pain and the need for physiotherapy.
Mr Uyanik claims that he told Dr Demdi about his problems with his back, neck, jaw, left ear, dizziness, hearing, headaches and ringing in his ears, and that he repeatedly requested Dr Demdi to refer him to someone for them, but he “seemed uninterested and ignored” the requests. The Senior Arbitrator did not accept this evidence.
A review of Dr Demdi’s evidence reveals that he took no history of Mr Uyanik complaining of any neck or back symptoms until January 2009. Mr Uyanik has not suggested that he had any difficulty communicating with Dr Demdi. Given that Dr Demdi provided Mr Uyanik with counselling about his extensive domestic problems, it seems unlikely that such a problem existed. Dr Demdi’s notes, certificates and report do not support Mr Uyanik’s evidence. The significant discrepancy between Mr Uyanik’s evidence in his statement and the contemporaneous notes and certificates from Dr Demdi raises serious issues as to Mr Uyanik’s credit and reliability in general. The Senior Arbitrator was right to reject Mr Uyanik’s evidence that he told Dr Demdi about his neck and back symptoms in the days and weeks after the fall.
Dr Mahony’s evidence provides Mr Uyanik with no assistance. Dr Mahony based his conclusion on an assumption that Mr Uyanik injured his neck and back in the fall. He took no history of when the neck and back symptoms started. Dr Demdi’s evidence clearly establishes that Mr Uyanik did not injure his neck and back in the fall and that the symptoms in those parts of his body did not appear until well after the accident. Dr Mahony made no effort to deal with the delayed onset of neck and back symptoms because he did not have that history. Contrary to the submission on appeal, Dr Mahony did not say that the worker’s back and neck impairments arose because of a fall of 1.5 metres. It follows that Dr Mahony’s evidence is of no probative value on the issues before me.
The submission that Mr Uyanik’s chest pain would have “masked” his neck and back symptoms is unsubstantiated by any medical evidence or any logical analysis of the evidence. It was not a submission made at the arbitration and is inconsistent with Mr Uyanik’s evidence that he had neck and back symptoms from the time of the fall and that he told Dr Demdi about them. The objective evidence is inconsistent with any masking of the neck and back symptoms because of the rib pain. Mr Uyanik’s rib pain had substantially resolved by 14 February 2008, yet the first recorded complaint of back pain was not until April 2008.
The submission that the “injuries” to the worker’s neck and his back symptoms have no other precipitating factor is based on an assumption that is not justified on the evidence, namely, that Mr Uyanik injured his neck and back in the fall. The Senior Arbitrator was not satisfied that he had. Having conducted a review of the evidence, neither am I. If Mr Uyanik intended to submit that the symptoms in the neck and back have no other precipitating cause or explanation, I do not accept that submission. The evidence in the MRI scans is that Mr Uyanik has a degenerative disc bulge at L5/S1 in his lower back and disc degenerative disease at C5/6 and C6/7 in his neck. Those degenerative conditions are sufficient to explain Mr Uyanik’s complaints of neck and back symptoms. More importantly, to suggest that there is no other precipitating factor is to reverse the onus of proof, which remains with Mr Uyanik. He has not established that his neck and back symptoms have resulted from the fall.
The relevance of the submission that the injuries to the neck and back were not the subject of “primary treatment” is unclear. Mr Uyanik did not receive treatment for his neck or back until well into 2008 because he had not made any complaint of having injured those parts of his body until well after the fall. It was not a question of the neck and back symptoms being “less important”; they simply did not figure in Mr Uyanik’s complaints until 2008.
The reference to Mavruk’s doctors saying that they were not convinced that the neck and back symptoms were traumatically caused but were merely the effects of degenerative changes is simply wrong. Mavruk did not qualify any medical experts, but relied on the inconsistencies in Mr Uyanik’s case and the radiological investigations. The submission that the presence of degenerative changes does not account for the pain only being present after the accident, and so having been aggravated or precipitated by the fall, again ignores the very real credibility issues in this case.
The credit issues were not restricted to Mr Uyanik’s evidence about his complaints to Dr Demdi. Mr Uyanik gave inconsistent evidence about the circumstances immediately before the accident. He said (at [9]) of his statement that the scaffolding had been inspected by the WorkCover inspectors and passed as okay. He said that, when the inspectors left, Mehmet Mavruk removed some planking from the working surface of the scaffolding and told the worker to use the scaffolding to install some metal fittings against the side of the roof and top of the wall.

This evidence is to be contrasted with the history recorded by Ms Holmes in her report of 18 January 2008. She said that Mr Uyanik reported that the WorkCover representative reviewed the worksite and reported that the scaffolding was not safe and was not to be used. After the representative left, Mr Uyanik’s employer told him to use the scaffolding.
Mr Uyanik also gave inconsistent evidence about when he first saw Dr Demdi. In his statement, he said that Mehmet Mavruk drove him back to Sydney the day after the accident, that is, on Friday 23 November 2007, and that he saw his doctor at Auburn the same day. Dr Demdi’s notes confirm that Mr Uyanik did not attend until 24 November (when he did not wait to see a doctor) and that he saw the worker on 25 November. As the Senior Arbitrator acknowledged, this inconsistency was a small matter; however, it was another example of the inconsistencies that caused him to have doubts about accepting Mr Uyanik’s version of events. I agree with that analysis and the conclusion that flows from it.
In assessing Mr Uyanik’s credit, the Senior Arbitrator rightly placed weight on the contrast in Mr Uyanik’s presentation to Dr Ellis in April 2008 and November 2008. He noted that Dr Ellis found in April 2008 that Mr Uyanik’s neck movements were “full and pain free”. Back movements were restricted, but straight leg raising was full on each side with no abnormal neurological signs in the legs. However, in his November 2008 report, Dr Ellis again recorded neck movements to be full, but the limits of movement caused discomfort. Back movements were restricted, but, on this occasion, straight leg raising was restricted to 40 degrees on the right and was full on the left. Light touch sensitivity was diminished in the medial aspect of the left leg and foot. Mr Uyanik complained that the pain on this occasion spread to the left hip and the backs of both legs to the calves and that there was numbness and paraesthesia in the backs of the legs extending to the toes.
The submission that the injuries to the neck and back were easily overlooked because they were to the same “general part of the body” as the rib injury is untenable and unsupported by any reasoned argument or reference to the evidence. I do not accept it.
In “further submissions on appeal” filed on 16 February 2011, Mr Uyanik’s solicitor made the following additional points:
(a)     despite “inconsistencies” in the worker’s evidence, the Senior Arbitrator found for the worker on injury;
(b)     for no apparent reason, the Senior Arbitrator disregarded the evidence from Ms Holmes (who recorded a history of neck pain within two months of the fall);
(c)     the worker’s case is that Dr Demdi did not consider all of the worker’s complaints in detail, and
(d)     the Senior Arbitrator erred in not considering the effect of the evidence from Ms Holmes as to the complaint of neck pain.
It is true that the Senior Arbitrator found that Mr Uyanik fell from scaffolding in the course of his employment on 22 November 2007 and that he injured a rib in that fall. However, he did so with “some hesitancy” (T36.8) and despite his misgivings about the worker’s reliability, not because of an unreserved acceptance of the worker’s allegations. The Senior Arbitrator’s acceptance that the worker injured his eighth left rib did not mean that he was bound to accept all of Mr Uyanik’s complaints. That is especially so where Mr Uyanik’s evidence was inconsistent with objective contemporaneous evidence.
The submission that the Senior Arbitrator disregarded, or failed to consider, the effect of the evidence from Ms Holmes as to the complaint of neck pain is incorrect. At T30.4, he quoted the following passage from her report dated 18 January 2008:
“Mr Uyanik advised he also continues to experience headaches and stiffness to the left side of his neck and jaw.”

He noted (at T30.51) that, except for the evidence from Dr Ellis in April 2008, the earliest reference to neck complaints was in the report from Ms Holmes.
He added (at T33.4):
“it seems on the evidence overall that the first possible reference to neck complaints is that which appears in the report of Ms Holmes on – Ms Holmes dated 18 January 2008. The complaints in that regard involve a single complaint of pain involving the neck and jaw. The complaint’s not picked up thereafter for some time in the material of other doctors. There is, at that point, no complaint of back pain.
Leaving to one side that reference in Ms Holmes’ report, the first convincing complaint or [sic, of] neck or back symptoms is in the earlier of the reports of Dr Ellis dated the 18^th of April 2008. That, of course, is something between five and six months after the date of accident – in the vicinity of five months after the date of accident.”
He returned to the evidence from Ms Holmes at T36.22, where he said:
“The only possible quasi contemporaneous recording of complaints [of neck symptoms] that could be then found [is] in the report of Ms Holmes in January 2008, but that of course is still a matter of many weeks after the relevant accident, has no reference to the low back complaints and has only a passing reference to the neck complaints in conjunction with the complaints of the jaw.
Given the difficulties that I have with the Applicant’s credit, I am not satisfied the complaints involving the neck and back result from the injury which I have found to have occurred on 22 November. The Respondent’s insurer made voluntary payments on a provisional basis for relevant periods up to 16 February 2008 and it was from 16 February 2008 that the Applicant’s weekly claim commences.”

The Senior Arbitrator correctly noted that the first reference to neck symptoms was the evidence from Ms Holmes, which was “many weeks” after the accident. I agree with the Senior Arbitrator’s observation that Ms Holmes’s report had only a “passing reference to the neck complaints”. Such a history by a rehabilitation consultant falls well short of supporting Mr Uyanik’s allegation that he injured his neck in the fall. The Senior Arbitrator correctly placed no weight on the evidence from Ms Holmes in his assessment of the claim. Having considered all of the evidence on review, I have concluded that Ms Holmes’s evidence is unpersuasive and does not overcome the absence of complaints in the contemporaneous evidence from Dr Demdi.
The worker’s case – that Dr Demdi did not consider all of his complaints in detail – depends on an acceptance of his assertion that he complained to Dr Demdi about his neck and back in the days and weeks after the fall. The contemporaneous documentary evidence (see [19]–[32] above) contradicts that assertion and the Senior Arbitrator did not accept it. I agree with that conclusion.
This case turned on an analysis of the documentary evidence. That analysis revealed several significant inconsistencies in Mr Uyanik’s story that substantially undermined his claim. The Senior Arbitrator correctly concluded that, except for the rib injury, the effect of which had resolved by 10 October 2008, Mr Uyanik’s complaints had not resulted from the fall. I agree with that conclusion and the reasons given. This appeal was without merit and should never have been filed.

DECISION

The Senior Arbitrator’s determination dated 11 November 2010 is confirmed.

COSTS

Each party is to pay his or its own costs of the appeal.

Bill Roche

Deputy President
24 February 2011

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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