Weir Warman Limited v Naji
[2007] NSWWCCPD 12
•16 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Weir Warman Limited v Naji [2007] NSWWCCPD 12
APPELLANT: Ahmad Naji
RESPONDENT: Weir Warman Limited
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC4986-06
DATE OF ARBITRATOR’S DECISION: 25 August 2006
DATE OF APPEAL DECISION: 16 January 2007
SUBJECT MATTER OF DECISION: Weight of evidence
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Deacons
Respondent: Beilby Poulden Costello
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 25 August 2006 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 15 September 2006 Weir Warman Limited (‘the Appellant Employer/Warman’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 25 August 2006.
The Respondent to the Appeal is Ahmad Naji (‘the Respondent Worker/Mr Naji’).
Mr Naji was born in Syria on 14 July 1958. He has worked as a fitter and turner the whole of his working life. He came to Australia in 1990 and started work with the Appellant Employer in 2002. He worked for six days per week working Monday to Friday 2pm to midnight and 5am to 5pm on Sundays. His duties required him to assemble pumps.
On 5 July 2004 he was performing his normal duties when he was struck on the back of the head by a swinging hand control device used to operate a crane. As a result of the blow Mr Naji fell forward and grabbed a metal bar in front of him but did not fall to the ground. He did not lose consciousness but had severe pain in his head and dizziness. The incident was reported and he attended on first aid where ice was applied and he was given panadol.
Whether Mr Naji returned to work on the night of the incident is the subject of conflicting evidence. Later that night he went home and he visited his general practitioner, Dr Aziz, on 6 July 2004 when he was noted to have mild tenderness at the back of his head. Mr Naji has remained off work since the incident. His claim for compensation was accepted and he was paid compensation until his claim was declined by letter dated 16 May 2005. Weekly compensation continued until 27 May 2005.
An Application to Resolve a Dispute (‘the Application’) was file in the Commission on 28 March 2006 claiming weekly compensation from 27 May 2005 and lump sum compensation in respect of a 28% whole person impairment. The injury described in the Application is ‘head injury’.
By its Reply filed on 10 April 2006 the Appellant Employer disputed the claim for weekly compensation on the ground that Mr Naji was, at least, fit to return to suitable duties on a full time basis and had not complied with the return to work program. Reliance was also placed on surveillance video, which was said to question Mr Naji’s level of incapacity.
The matter was listed before a Commission Arbitrator for conciliation and arbitration on 3 August 2006 when it could not be resolved and proceeded to Arbitration hearing. At the hearing Mr Naji and his wife gave oral evidence and were cross-examined. In a reserved decision the Arbitrator found in favour of Mr Naji.
The Appellant Employer seeks leave to appeal that decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied.
The whole of the compensation awarded is challenged on appeal. Therefore, the threshold in section 352(2)(b) is also satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
PRELIMINARY MATTERS
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.”
The Appellant Employer seeks an oral hearing of the appeal in order to “take the Commission through the video surveillance that was shown before the Arbitrator” and “in order to re-conduct cross-examination of the applicant”. The video surveillance that was before the Arbitrator is before me and there is no need for an oral hearing so that I am ‘taken through it’. I have viewed the video and will refer to it in my decision where appropriate.
On the question of further cross-examination it should be noted that a review under section 352 of the 1998 Act is not a hearing de novo and is not a rehearing (The King Island Company Limited v Deery [2005] NSWWCCPD 1 at [19] (‘Deery’). An appeal will, except with leave (which will only be granted to avoid substantial injustice), normally be conducted on the papers that were before the Arbitrator. There is no justification for requiring the Respondent Worker to be cross-examined again on review.
I do not believe that an oral hearing is required in this matter.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent Worker that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 25 August 2006, records the Arbitrator’s orders as follows:
“1.An award for the Applicant pursuant to s40 of the Workers Compensation Act 1987 in the amount of $392.00 per week from 27 May 2005 to date such payment to continue in accordance with the provisions of the Act;
2.An award for the Applicant in respect of the claim for payment of expenses pursuant to s60 of the 1987 Act.
3.The claim pursuant to s66 of the 1987 Act be referred to an Approved Medical Specialist.
4.The Respondent to pay the costs of the Applicant as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)indicating that her preference was to rely on the documents in evidence in making her determination when all evidence, both oral and written, should be considered before reaching a decision;
(b)failing to place any emphasis on Mr Naji’s “obvious falsehood to Dr Jamieson” about his inability to drive his car as at 15 July 2004;
(c)failing to place any weight on the report of Dr Benjamin dated 5 July 2005;
(d)failing to place any weight on the video surveillance and surveillance reports tendered in evidence;
(e)finding Mr Naji to be incapacitated for work, and
(f)failing to find Mr Naji to be fit for work.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In Deery it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
Before an Arbitrator’s decision will be revoked on review it must by demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 79; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
The Arbitrator stated at paragraph 27 of her Statement of Reasons for Decision (‘Reasons’):
“The evidence of Mr. Naji, both written and oral, was vague. It is also unreliable and inconsistent for reasons I do fully comprehend. Consequently my preference is to rely on the documents, in evidence, in making this determination.”
The Appellant Employer submits that this approach has lead the Arbitrator into error as both written and oral evidence should be considered by an Arbitrator when making a determination. It is argued that Mr Naji’s oral evidence highlighted deficiencies with respect to his credibility. The exact nature and extent of those deficiencies is not identified. I have carefully read the transcript and agree with the Arbitrator’s assessment that Mr Naji’s evidence was unreliable and inconsistent. However, that is a reason for an Arbitrator to be more circumspect when assessing the weight to attach to that evidence and to look to independent evidence to assist in assessing the claim. When a worker’s evidence is unreliable an Arbitrator is required to carefully assess the rest of the evidence to determine whether it provides support for the claim made (Malco Engineering Pty Ltd v Ferreira & others 10 NSWCCR 117). The Arbitrator was alert to that fact and that is what she did when she said that her preference was to “rely of the documents”. That approach does not disclose any error but indicates the Arbitrator properly considered the matters before her and assessed all the evidence, as she was required to do.
After referring to Mr Naji’s evidence being vague and unreliable the Arbitrator referred to the following evidence:
·Mr Naji attended on Dr Aziz on 6 July 2004;
·on 16 July 2004 Mr Naji suffered a ‘seizure’ on Hawkesbury Road, Parramatta and was taken by ambulance to Westmead Hospital;
·the ambulance was called to Hawkesbury Road by an unknown member of the public;
·the Ambulance Service Incident Detail Report indicates that the ambulance responded to “a patient who has had a fit. The patient is a 40 year old male who is unconscious and breathing” (Reasons paragraph 29);
·the Ambulance Service ‘Patient Health Care Record’ recorded the following history: “…patient collapsed and fitting. O/A patient lateral on footpath. Post……therapy commenced. Passer By stated patient was leaning on fence when patient fitted………for approx 5-10 minutes……………work injury 5/7/04……responded to verbal stimuli but not speaking. Responded to painful stimuli……..uncooperative….motor sensory assessment. Administered…Patient transported to hospital.” (Reasons paragraph 29);
·brain scans did not reveal any abnormality;
·it was suggested by Dr Bleasel, neurosurgeon, that the episode on 16 July 2004 was a ‘pseudo seizure’;
·the clinical notes from Dr Aziz disclosed that Mr Naji attended on numerous occasions from 6 July 2004 to 19 April 2006 and “consistently complained of headaches, dizziness and nausea” (Reasons paragraph 31);
·Mr Naji was involved an a car accident on 22 August 2004 in which he fractured several ribs and suffered a contusion to his right kidney (Reasons paragraph 33);
·on 26 October 2004 Mr Naji suffered chest pain and was taken by ambulance to Blacktown Hospital (Reasons paragraph 35);
·Mr Naji was under surveillance on 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29, 31 July, 1 and 6 August 2004 and 11 April 2005 (Reasons paragraph 36);
·video taken of Mr Naji on 7, 8 and 15 July 2004 was shown at the Arbitration hearing. This video was described by the Arbitrator as follows at paragraph 36 of her Reasons:
“7 July 2004 – shows Mr. Naji driving a motor vehicle on separate occasions, in heavy traffic, with no obvious discomfort.
8 July 2004 – shows Mr. Naji conducting a service of a motor vehicle including changing a rear wheel of the vehicle.
15 July 2004 – Mr. Naji attended a medical examination at Hurstville. The video shows Mr. Naji leaving the surgery and then standing beside his vehicle for some minutes before departing the area.”
·Mr Naji was advised by medical practitioners not to drive a car after 16 July 2004 (Reasons paragraph 38);
·attempts at rehabilitation were complicated by Mr Naji’s insistence he could not drive or take public transport as it was necessary for him to change buses something Dr Aziz thought, as at March 2005, he could not do (Reasons paragraph 38);
·the medical evidence from the Appellant Employer was to the effect that Mr Naji’s injury was minor (Reasons 39);
·Dr Grant, neurosurgeon qualified by the Appellant Employer, expressed the view in his report of 15 December 2004 that Mr Naji was only fit for restricted duties (Reasons paragraph 39);
·after viewing video evidence provided to him Dr Grant stated in his report of 30 March 2005 that “it was not possible to support the idea that he would suffer from headaches and dizziness of which he complained when…reviewed in December 2004” (Reasons paragraph 39);
·Dr Reid, neuropsychologist qualified by the Appellant Employer, assessed Mr Naji on 16 September 2004 (report dated 6 October 2004) and concluded that:
“His complaints are in keeping with the acute effects following a mild head injury. Considering the time since his head injury it is felt that symptoms will improve with the passage of time. There is no apparent reason for any exacerbation of his symptoms and with time and reassurance and a rapid return to work programme, his symptoms should diminish.” (Reasons paragraph 39)
·Dr Aziz considered that Mr Naji was suffering from Abnormal Illness Behavour and may have been exaggerating his symptoms but assessed him to be fit for suitable duties (Reasons paragraph 40).
The Arbitrator then made the following findings:
·by reference to Gould’s Medical Dictionary and Dr Bleasel’s evidence, though the episode on 16 July 2004 may have resembled a seizure it was not, in the strict medical sense, a seizure though it was a genuine and real event (Reasons paragraph 30);
·the event on 16 July 2004 was a real and genuine episode which had a casual connection to the injury on 5 July 2004 (Reasons paragraph 32);
·the episode of chest pain on 26 October 2004 had no connection with the interview conducted with Mr Naji by investigators on 12 October 2004 and was more likely connected to the car accident on 22 August 2004 (Reasons paragraph 35);
·the activities shown in the video surveillance on 7 and 8 July 2004 were not excessive and did not assist the Appellant Employer (Reasons paragraph 37);
·the submission by the Appellant Employer that Mr Naji was aware he was under surveillance was “implausible” and whilst Mr Naji stood beside his car and appeared to be “looking around” for some minutes the Arbitrator was not prepared to draw the conclusion sought by the Appellant Employer (Reasons paragraph 37);
·even if Mr Naji knew he was under surveillance the Arbitrator did not accept that the seizure on 16 July 2004 was a conscious and deliberate reaction to that knowledge (Reasons paragraph 37);
·given the “timelines and the claim by Mr Naji that symptoms became more severe as time passed” she was not convinced that Dr Grant’s comments in his report of 30 March 2005 were compelling (Reasons paragraph 39);
·Mr Naji’s complaints of dizziness, headaches and nausea were genuine but exaggerated (Reasons paragraph 43);
·Mr Naji cannot perform his pre-injury duties but could perform light duties full time (Reasons paragraph 44);
·probable earnings but for the injury were agreed at $1,142.00 per week;
·Mr Naji’s alibility to earn in some suitable employment was $750.00 per week;
·there were no reasons to exercise her discretion to reduce the difference between $1,142.00 and $750.00, and
·Mr Naji was entitled to an award of $392.00 per week from 27 may 2005 to date and continuing.
The Appellant Employer complains that the Arbitrator failed to place any emphasis on Mr Naji’s “obvious falsehoods to Dr Jamieson”. In his report of 15 July 2004 Dr Jamieson recorded that Mr Naji “claims that he can do very little work at all; he cannot drive his car because of Panadiene Forte medication that was suspended yesterday”. The video surveillance established that Mr Naji drove his car on the days leading up to 15 July 2004 and immediately after seeing Dr Jamieson. The Arbitrator did not make a specific reference to Dr Jamieson’s evidence but she did refer to and consider the video. On reading the Arbitrator’s Reasons as a whole I do not believe it can be concluded that she ignored evidence that was adverse to the Respondent Worker’s credit. Her statement that Mr Naji’s evidence was “unreliable and inconsistent” indicates she was aware of and took into account the credit issues on which the Appellant Employer relied at the hearing. It was because of those issues that she preferred to rely on the documents in making her determination. This approach implies that the Arbitrator had formed an adverse view of Mr Naji’s credit but found support for his claim in the documentary evidence. That approach was open to her and discloses no error of law, fact or discretion.
The Appellant Employer’s submission that “the reliability of all medical reports is underpinned by the truthfulness of the interviewee/patient” (Appellant Employer’s submissions paragraph (b)) is perfectly valid. However, the Arbitrator did not rely on Dr Jamieson’s opinion in reaching her conclusion. No submission has been made that the histories recorded by the Respondent Worker’s doctors were false. The Arbitrator correctly refers to the fact that the video taken after 16 July 2004 did not show Mr Naji performing any activity of note (Reasons paragraph 18).
In respect of the video evidence the submission is made that “when one views the surveillance reports, one gets the distinct impression of a man who moves quite freely, with little or no limitation in his movement or posture and with no evidence of discomfort” (Appellant Employer’s submissions paragraph (c)). I have viewed all five and a quarter hours of the video evidence. The submission misunderstands the nature of the injury sustained. Mr Naji is not alleging he sustained a back injury but is alleging that he suffers from headaches, dizziness and nausea. It also ignores the fact that the video taken after the seizure on 16 July 2004 corroborates Mr Naji’s evidence the he has been generally inactive in that period. Further, it ignores the fact that neither injury nor incapacity up to 27 May 2005 was in issue in the case.
It is submitted that it is significant that the Arbitrator failed to place any weight on the evidence of Dr Benjamin in his report of 5 April 2005 where he said:
“I felt that the Mr Naji has been highly unrealistic and that he was exaggerating the severity and impact of his ‘dizzy spells’. I also felt that he was frequently inconsistent and evasive in his replies. The possibility of Abnormal Illness Behaviour and/or Malingering should be strongly considered in his case.”
The Arbitrator referred to Dr Benjamin’s report at paragraph 23 of her Reasons. Dr Aziz refers to and comments on Dr Benjamin’s opinion. At paragraph 40 the Arbitrator refers to and seems to accept Dr Aziz’s opinion that Mr Naji was suffering from Abnormal Illness Behaviour, was exaggerating his symptoms and had a poor attitude. She did not accept Dr Aziz’s opinion in his medical certificate dated 11 February 2005 that Mr Naji was only fit for part time light duties but found, because of the evidence of exaggeration, that he was fit for full time light duties. I therefore reject the submission the Arbitrator failed to place any weight on Dr Benjamin’s evidence. I believe she took that evidence into account along with all of the other evidence in reaching a balanced conclusion.
The Commission in several decisions has considered the weight and relevance to be attached to evidence properly admitted before an Arbitrator. In Rohloff v Diacut Pty Limited (in Liquidation) [2005] NSWWCCPD 17 at [26] it was held:
“It is only where the Arbitrator can be said to have failed to exercise his discretion fairly and according to law that his decision should be overturned. This occurs where the Arbitrator has acted upon a wrong legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts or 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, Re National Roads and Motorists’ Association Ltd [2003] FCAFC 206 at [21] to [21]).”
In Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24 it was noted:
“As stated in South Western Sydney Area Health Service v Edmonds [2005] WCCPD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur when an Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or 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 In the Matter of National Roads and Motorists Association Ltd [2003] FCFA 206 at [21]). (per Byron DP at [54])
In Knight v Eyles Nominees Pty Limited t/as Processed Forest Products [2004] NSWWCCPD 73 it was held:
“Interference with an Arbitrator’s discretionary judgment as to the weight of evidence should only be done where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully. In my view this is such a case. The Arbitrator has not, in her reasons, given a fair or accurate account of the evidence that was before her.” (at [40])
Applying the above authorities I do not believe the Arbitrator has acted on some wrong legal principle or has failed to exercise her discretion fairly and according to law. She has not allowed irrelevant considerations to influence her decision or made a material mistake as to the facts or failed to take into account relevant and material considerations.
It follows that I do not believe the Arbitrator has made an error of law, fact or discretion and her decision is confirmed.
DECISION
The Arbitrator’s decision dated 25 August 2006 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
16 January 2007
I 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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