Youshia v Storm International Australia Pty Ltd
[2009] NSWWCCPD 112
•8 September 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Youshia v Storm International Australia Pty Ltd [2009] NSWWCCPD 112 | |||||
| APPELLANT: | Nisan Youshia | |||||
| RESPONDENT: | Storm International Australia Pty Ltd | |||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1 –65/09 | |||||
| ARBITRATOR: | Ms J Conley | |||||
| DATE OF ARBITRATOR’S DECISION: | 18 May 2009 | |||||
| DATE OF APPEAL DECISION: | 8 September 2009 | |||||
| SUBJECT MATTER OF DECISION: | Injury; whether the worker’s evidence was sufficient to discharge the onus of proof | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Lex Fori Lawyers | ||||
| Respondent: | Goldbergs Lawyers | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 18 May 2009 is confirmed. | |||||
| No order as to costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
The Appellant worker, Mr Nisan Youshia, was employed by the Respondent, Storm International Australia Pty Ltd as a cleaner. He claimed that he injured his back at work on Thursday 31 July 2008 whilst using force to push a large industrial cleaning machine (the cleaning machine).
He continued at work the next day and all of the following week. He said that the pain then became unbearable so he consulted a doctor on Sunday 10 August 2008. He went to work on Monday 11 August 2008 but did not perform any duties. He has not resumed work since.
He made a claim on the Respondent’s insurer, Allianz Australia Workers Compensation (NSW) Ltd (‘Allianz’) on 22 September 2008. Payments were made on a provisional basis from that date to 5 November 2008.
By an Application to Resolve a Dispute (the ‘Application’) filed in the Commission on 7 January 2009, Mr Youshia sought weekly benefits from 1 August 2008 together with medical expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).
The parties attended a conciliation/arbitration hearing on 21 April 2009. No oral evidence was given, and the parties relied upon the documentary evidence and submissions recorded in a transcript of that date.
In her Statement of Reasons (‘Reasons’) delivered on 18 May 2009, the Arbitrator found that she could not be satisfied that the injury occurred on the date and in the manner alleged by Mr Youshia.
The Commission issued a Certificate of Determination on 18 May 2009 in the following terms:
“1. Award for the Respondent in respect of an injury to the Applicant’s back on 31 July 2008.
2. Award for the Respondent in respect of the claim for weekly compensation and medical expenses.
3. This matter is certified complex and the Respondent is entitled to an uplift of 15% on costs. Otherwise no order as to costs.”
It is from this decision that Mr Youshia seeks leave to appeal.
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 at issue on appeal satisfies the threshold requirements of section 352(2).
Leave to appeal is granted.
ISSUES IN DISPUTE
There is no doubt that the evidence as to the date and circumstances of Mr Youshia’s claimed injury was inconsistent. The Arbitrator ultimately concluded that Mr Youshia had failed to discharge the onus of proof upon him to establish that he suffered an injury at work on 31 July 2008.
The Arbitrator set out in considerable detail the nature and extent of the evidence, in particular, the various statements provided by a number of people. The medical evidence was also conflicting. The Arbitrator’s decision was based primarily on her interpretation of a report from a general practitioner, Dr Atto, dated 11 December 2008. The relevant extract is as follows:
“On 12/08/2008 Mr Nisan Youshia presented to tell me that he had low back pain for 3-4 days, worse with movements. He was tender over the left paralumbar muscles and over L4/5 and L5/S1. I diagnosed him as having muscle spasms and advised him to use hot packs, gentle massage and pain killers. Later on (my emphasis) he said that he saw a doctor in the Chase Medical Centre on 10 August 2008 and told him that on 31 July 2008 he has injured his lower back at work by pushing the cleaning machine.”
Mr Youshia submits that “later on” means “later on” during that consultation. The Arbitrator concluded that this was not the case, and that “later on” meant some time after the initial consultation. Because of what she described as “inconsistencies” in the histories given to all the doctors, she found that she could not be satisfied “…on balance that the Applicant sustained an injury to his back on 31 July 2008 as alleged.”
This issue is the main focus of Mr Youshia’s challenge to the Arbitrator’s determination. He submits that his interpretation of this report is correct, and provides “cogent and contemporaneous support” to his claim.
Resolution of this conflict requires careful consideration of all of the evidence.
THE EVIDENCE
Mr Youshia’s Evidence
In an initial statement dated 7 October 2008 to Allianz, Mr Youshia said that he had previously suffered a “muscle strain” in his back in November 2007 and had three days off work. He said that he injured his back on 31 July 2008 using the cleaning machine. He continued work despite severe pain in his back and left leg. He said that he told Mr Ismael that his back was “very bad” and also told a security guard “Mark.” He went to work the next day, Friday 1 August 2008 and worked in pain, which was very severe at home that night. He did not see a doctor. He said that he spent the next day lying on the floor all day. The next day his wife (who spoke English) took him to a Chinese doctor at Fairfield Chase who gave him a certificate to be off work from 4 to 8 August 2008. That night, he contacted his supervisor, Amir Ismael, and told him he had a certificate to be off work. Amir requested him to attend work the next day due to staff shortages. Amir collected him at home on Monday and took him to work where he slept for most of the day. On 25 August 2008 the managing director, Wilson Younan came to his home where Mr Youshia signed a letter of resignation from the company. Although Mr Youshia wrote words in Arabic saying he understood the contents of the letter of resignation, he said that at the time he did not understand that he was signing a letter of resignation. He cannot read English. He said that he never told his employer that he wished to resign.
That statement was translated into Assyrian which Mr Youshia said he “completely” understood.
In a supplementary statement dated 31 December 2008 he said:
“In my previous statement, I have stated that I suffered an injury to my back during the course of my employment on Thursday 31 July 2008 and as a result I consulted a Chinese doctor at the local Fairfield Chase medical centre on Sunday 3 August 2008. Unfortunately, at the time this statement was made (7 October 2008), I was on a lot of medications and could not recall all the dates correctly. However, now that I am on less medications and having made enquiries with my family doctor and the Fairfield Chase medical centre, it appears that I consulted the Chinese doctor at Fairfield Chase medical centre on Sunday 10 August 2008 and not Sunday 3 August 2008 as wrongly stated in my previous statement.
When I suffered the back injury on 31 July 2008, I continued working with the pain for the following week until the pain became unbearable and became apparent that I required medical attention. The reason why I continued working with the pain was because my employer did not have enough workers/cleaners at the time and insisted that I continue work despite my persistent complaints about my back condition.
On Sunday 10 August 2008 I attended my local medical centre at Fairfield Chase and saw the Chinese doctor who provided me with a medical certificate certifying me unfit for work due to my back condition. That night I contacted my supervisor, Mr Amir Ismael, and informed him that I would be unable to attend work the next day…due to my back condition…
Following the telephone conversation with Mr Ismael I received a call from my manager, Mr Johnny Nikola, ordering me to go to work the next day. I explained to him that I was physically unfit to work. I informed him that my back was in excruciating pain and would not be able to drive to work. My manager would not allow me to take a day off and insisted that I go to work the next day. He informed me that he would make arrangements with…Mr Ismael to drive me to work and back.”
The “Chinese doctor” referred to by Mr Youshia was Dr Than Aung. He wrote a short (undated) report confirming that he saw Mr Youshia on 10 August 2008 with “lower back pain.” In a medical certificate dated 10 August 2008, Dr Than Aung certified Mr Youshia unfit for work from 11 to 15 August 2008. His notes produced at the hearing contained the following entries:
“10-Aug-2008 Lower back since this morning
Happened once last November
No injury
Cleaner. Limited forward bending, extension and left lateral flexion…
17-Nov-2007 BACK INJURY
18-Aug-2005 Headache, dizziness…”
Mr Youshia consulted his usual doctor, Dr John Atto, on 12 August 2008. In a report dated 11 December 2008, Dr Atto said:
“On 12/08/2008 Mr Nisan Youshia presented to tell me that he had low back pain for 3-4 days, worse with movements. He was tender over the left paralumbar muscles and over L4/5 and L5/S1. I diagnosed him as having muscle spasms and advised him to use hot packs, gentle massage and pain killers. Later on he said that he saw a doctor in the Chase Medical Centre on 10/8/2008 and told him that on 31/7/2008 he has injured his lower back at work by pushing the cleaning machine.
On 18/08/2008 he said that he was still having low back pain, radiating to the left lower limb…”
In the balance of that report, Dr Atto set out sequentially the dates of consultations, complaints made, and treatment provided. Dr Atto’s clinical notes were also in evidence, but are of limited use since entries from 15 April 2008 to 29 September 2008 are blank other than what appears to be the doctor’s initials next to each consultation.
Dr Atto first provided a WorkCover Certificate on 22 September 2008 where he recorded the date of injury as “31 July 2008.” An earlier Centrelink Certificate dated 20 August 2008 refers to a diagnosis of exacerbation of lumbar disc disease and sciatica, the date of onset being 3 August 2008. No reference is made in that Certificate to any work injury.
Dr Atto confirmed in a consultation on 24 September 2008 that “He was feeling slightly light headed from Norspan Patches.” He also confirmed that Mr Youshia consulted him on 14 July 2008 with a viral illness and bronchitis. He then said: “…on 30/07/2008 he confirmed that he was sick between 14-21/07/2008.”
Dr Atto initially referred Mr Youshia to Dr Kai Lee, then ultimately to Dr Noel Dan.
Dr Kai Lee’s clinical notes record “problem 2/52 8 Aug.” In a report addressed to Dr Atto dated 26 August 2008 he said:
“Thank you for referring Mr Youshia who has problem in his back and legs since 3 August 2008. He worked as a cleaner and since 3 August 2008 he noticed a lot of pain in his back which radiated down to both legs. He does not speak English very well and I am not sure whether he injured this at work or not but the chances are, because of the nature of his work, it could have been work related.”
Dr Kai Lee felt that Mr Youshia’s problem was due to the L5/S1 disc, and recommended medication and physiotherapy. Mr Youshia apparently attended one session of physiotherapy only, and failed to return.
The first WorkCover Certificate issued by Dr Atto was dated 22 September 2008.
In a report dated 27 November 2008, Dr Dan said:
“Mr Youshia was a cleaner who was 39 when he presented on 27.10.08 accompanied by his wife who acted as an interpreter.
He has had no prior history of back problems.
On 31.7.08 he was pushing a machine on a slight slope and after about an hour felt back pain…”
Dr Dan arranged for various radiological investigations including an MRI scan which “showed a minor lumbosacral disc protrusion.” He concluded that, on the basis of the history given and the description of the equipment used, there was a direct relationship between the back injury and Mr Youshia’s employment. He considered that he was partially incapacitated for work but that his condition had not yet stabilised.
The Respondent’s Evidence
Allianz arranged for a factual investigation of the incident by All States Investigations and a number of statements were obtained.
In a statement dated 8 October 2008, Mr Amir Ismael, the cleaning supervisor said:
“I have never known Nisan to have a back injury.
I was working with Nisan on 31 July 2008. When he started work he was cleaning the canteen…it takes around 1.5 hours…
He then moved to the local rooms…
On Monday and Friday we have a tunnel that we have to clean. We use the scrubber machine to clean this area…
The scrubbing machine is a machine that is on wheels and is around waist height. The machine can take 76 litres of water…
The machine is operated by pushing a button…the machine does not need to be pushed as the machine moves itself: all the operator has to do is steer it. To stop the machine we take our hand from the button and the machine stops straight away. There is no need to push the machine, if there is a slight incline there is a speed control and we just have to increase the speed and the machine will go up hill. If we are going downhill we put it on slow speed and there is no need to pull the machine or hold it as it goes very slowly.
Nisan used this machine for about five to six months twice per week. I have watched Nisan using the machine and I trained him on how to use it…he knew how to use it properly.
Nisan speaks in the Assyrian language and I speak the same language so he fully understood what I was saying.
I spoke to him using the machine and he told me it was easy and was good because he did not have to push it or pull it.
I saw Nisan on the morning of 31 July 2008 and he had the flu. I did not see him have any signs of liming(sic) or being in pain. We finished work together and he did not show any signs of being in pain. He did not tell me that he hurt his back he told me he had the flu. He worked on the Friday and he seemed better than Thursday, he told me he had taken some tablets for the flu and he felt better. I saw him work that day and he did not seem to be in any pain and had nothing wrong with his back. I was at work and I have reports that I write if any workers have problems: he did not report any injury on Thursday or Friday.
On Sunday night 3 August 2008 Nisan called me and told me he could not come into work as he had a problem with his back…I asked him if he had any problem at work and he told me nothing wrong with him at work. He did not tell me how he hurt his back.
Nisan would not have been using the scrubbing machine on 31 July 2008 as that is a Thursday and we only used it Monday and Fridays.”
In a statement also dated 8 October 2008, Mr Johnny Nikola, the Contract Manager, said:
“Myself or any other supervisor induct staff to our company and show them how to use all of the equipment safely so they do not hurt their back.
Nisan came to the company with a group and Maria Younan and I went through all of the equipment with them and showed them how to use it. When I spoke with Nisan I speak with him in Assyrian…”
Mr Nikola confirmed Mr Ismael’s evidence as to the nature of the “water machine” and that it did not require any force to push since it was fully battery operated. He also said that he did not see Mr Youshia at work on either the 31st July or 1st August, and that he received a phone call from Mr Ismael on Sunday 3 August. He said:
“I spoke to Amir and told him that I did not want Nisan to work he just needed to sit in a chair. I did not say he had to go to work but I told him it would help us out…
I spoke with him Monday and I asked him what had happened and he told me he had the flu…I have spoken to him many times on the phone and I kept asking what happened and he would answer it was not work he just started feeling pain in his back on the weekend.
Every Wednesday when I see my client News Limited I have an inspection report which includes incidents and accidents…there were no reported incidents. We are obliged to report all incidents on site. Nisan had been trained and advised to do that.”
Mr Wilson Younan, managing director, made a statement on 8 October 2008. He was overseas at the time of the alleged incident but said:
“On 21 August 2008 I called Nisan on the phone. He told me his back was a bit sore. I asked him if he injured his back at work and he told me he had not. I asked him to come and see me in the office. He came into the office that day. I called Johnny and Amir to make sure that they had no reports of injury from Nisan. I told him we have insurance and he told me it was not work related. He told me he did not want the day job. He told me that the sub contract job that his wife had would be enough for them for the time being.
I told him if he wanted to resign he had to put in a written resignation…I told him Maria [Younan] would be here tomorrow and she would type the letter for him and he agreed to that.
I speak the Assyrian language and I speak to Nisan in that language.
He did not come into the office that week to see Maria…I went to see him at home…
I read the letter that Maria prepared in English to Nisan three times. Nisan speaks Assyrian but does not read Assyrian but he speaks and reads Arabic fluently. After reading the letter three times, I asked him to write what I read to him. He wrote in Arabic: ‘I Nisan Youshia admit that I have signed this piece of paper after understanding everything that is written in it’ and he signed it in front of me…”
The resignation letter dated 28 August 2008 with an Arabic addition was also in evidence.
Gladis Bartou, a fellow cleaner, also made a statement on 8 October 2008. She said:
“I do not work on sites with Nisan Youshia.
I have known Nisan’s wife, Samira, for a long time and we are good friends…
I rang Nisan’s wife one Sunday in September 2008 as I was going to church and she told me she would come with me.
Samira told me Nisan was sick… She told me he had dragged some luggage for her sister who was visiting from overseas in July and he went back and forward to the airport and when he dragged her luggage he hurt his back. She told me they could not make a complaint at work as it did not happen there…
I heard at work that he had lodged a claim and then I remembered this conversation.”
In her statement dated 16 October 2008, Maria Younan said that she was employed by the Respondent as the “OH&S and Accounts Manager.” She was also Wilson Younan’s daughter. She said that Mr Youshia was provided with an induction and OH&S training and given a safety manual. She also spoke Assyrian and said that she trained Mr Youshia. “…by demonstration and by speaking in Assyrian so he fully understood the training.” She confirmed that a medical certificate dated 10 August 2008 indicated that Mr Youshia had lower back pain, but it was not a WorkCover certificate.
Attached to the investigator’s report were a number of documents including wage material, an “Induction and Training Brief” and a copy of “Student Worksheet” completed by Mr Youshia in January 2007 wherein he answered questions about health and safety issues.
A document titled “Record of Conversation Log” was also attached. The security guard “Mark” said that he could not recall speaking to Mr Youshia about any injury to his back and that no injury was reported to him. He said: “I know he was quite ill for a while with the flu, for a month or so. If he hurt his back at work he should have reported it and I would have a record of that.”
The Respondent also relied upon a document titled “Cleaning Services Master Agreement” between the Respondent and Nationwide News Pty Ltd. The daily log for the site confirmed that Mr Youshia, Mr Ismael, and two other workers, Juan Abarca and Sabah Dawood worked on 31 July 2008. Those records also confirm that Mr Youshia worked all of the following week. They also appear to suggest that Mr Youshia continued working up until 16 August 2008, and that he worked for a full week commencing 21 July 2008.
The “Cleaning Specifications” for Mr Youshia indicated that he was required to clean the basement tunnel on Mondays and Fridays. The “Monthly Report for News Ltd Chullora” refers to certain cleaning tasks performed during July and August 2008. There is no indication that any cleaning was done on 31 July 2008. The report appears to refer to specific ‘one off’ cleaning tasks, as it only records certain tasks performed on 9 dates during July and 12 during August.
The “Operator’s Manual” for the cleaning machine, a “Nilfisk Alto Scrubtec,” was also included. It would appear to be operated using various switches on a panel.
Allianz arranged for Mr Youshia to be examined by Dr Raymond Wallace on 17 October 2008. In a report dated 23 October 2008 he diagnosed a “minor musculo-ligamentous strain lumbar spine” and concluded:
“Mr Youshia’s claim of work-related injury at his lumbar spine on 31 July 2008 cannot be substantiated by the available evidence.
His cleaning supervisor on that day Mr Amir Ismael states that Mr Youshia was not using the scrubbing machine at work on Thursday 31 July 2008 as this machine is only used on Mondays and Fridays during the week. Also, Mr Ismael states that Mr Youshia did not complain of any lumbar spinal pain on that day nor report any injury to him.
Mr Youshia claims no previous or subsequent injury at his lumbar spine but a work colleague Miss Gladis Bartou claims that Mr Youshia’s wife told her that Mr Youshia had suffered an injury at his lumbar spine in July whilst moving luggage for his sister-in-law.
In addition, Mr Youshia’s claim that he suffered a significant lumbar spinal injury whilst using the scrubbing machine at work cannot be substantiated on the available evidence:
1.Mr Youshia’s cleaning supervisor states that he was not using the machine on that day.
2.Mr Youshia was fully trained in the use of the machine which he had been operating for some nearly four years prior to his work injury without incident.
3.The machine is battery operated and self-propelled and the operator is only required to steer it which does not involve significant force.
Even if Mr Youshia was operating the machine on the date of his work incident on 31 July 2008 this mechanism of injury of merely manoeuvring the machine is not consistent with being the cause of significant lumbar spinal pathology.
At worst, Mr Youshia suffered a minor musculo-ligamentous strain at his lumbar spine and temporary aggravation of significant pre-existing degenerative spondylosis during the course of his work duties that day which has now resolved.”
Mr Youshia’s Evidence in Reply
In his statement dated 31 December 2008, Mr Youshia said in response to Mr Ismael’s statement:
“I do not believe Mr Ismael can be considered an independent witness…because he is related to my employer, Mr Wilson Younan, and would not say anything unfavourable, adverse or contrary to the allegations made by my employer.
…Mr Ismael seems to suggest that the machine in question moves by simply pushing a button and does not require any physical force…the machine does not move without force as it is not designed to move by itself. The machine must be physically pushed in order for it to move.
[I] utterly deny the contention that I was offered adequate training on how to use the machine. In fact I believe I was offered very little training…I now have serious doubts about whether or not Mr Ismael is actually familiar with the machine…I also wonder whether Mr Ismael is referring to a different machine…because he stated that the machine takes 76 litres of water. I am perplexed as to which machine Mr Ismael is referring to as I can certainly confirm that the machine in question (water machine) takes in excess of 100 litres….
I confirm that the water machine incident on 31 July 2008 was reported to Mr Ismael…the incident was not recorded in any injury register and I am not aware if my employer has an injury register book.
I also deny …that I had the flu on 31 July 2008. I did have the flu in July but that was from 14 to 21 July 2008…I did go back to work the following day being Friday 1 August 2008 and continued with my duties with pain. I approached my supervisor and manager [on] several occasions and asked of I could take some time off work to ease the back pain but unfortunately I was always told that I could not…as the company had recently lost a couple of workers/cleaners…
The telephone conversation between Mr Ismael and I on Sunday night 3 August 2008 did take place but the date is incorrect….[it] took place on Sunday night 10 August 2008…The reason why I contacted Mr Ismael on that night was to tell him that I would not be able to work the next day being Monday 11 August 2008 because of the back pain…Shortly after I received a call from my manager, Mr Johnny Nikola…[who] said that it was crucial for me to attend work the next day as he needed a certain number of people for the job and did not want his client to complain about the number of cleaners provided…”
In response to Mr Nikola’s statement, Mr Youshia said:
“My Manager, Mr Johnny Nikola, is my employer’s son-in-law and is married to his daughter, Mrs Maria Younan…I would tend to agree with Mr Nikola that the machine can hold up to 114 litres…
I had been using the water machine for the last six months of my employment…twice a week. During my first two months operating this machine, I was instructed to use the machine on Mondays and Wednesdays only…later it was decided …to use the machine on Mondays and Thursdays…”
In response to Ms Bartou’s statement, Mr Youshia said:
“Mrs Gladis Bartou is my employer’s sister…
The allegations made by Mrs Bartou are biased, erroneous and baseless. My sister-in-law did come to Australia from overseas to visit us but that was on 21 June 2008 and on that occasion I did go to the airport with family and friends to collect her and her children but I did not injure my back. My sister-in-law did not have any heavy luggage with her and I deny the allegation that I injured my back carrying luggage. I also wish to confirm that my sister-in-law left Australia on 30 July 2008 and on this occasion I did not go to the airport as I was working.”
Mr Youshia’s wife, Samiran Sivow, was also employed by the Respondent apparently as a sub-contractor. In a statement dated 31 December 2008 she said:
“I believe that towards the end of July 2008,[the Respondent] lost about two of their full time cleaners and they were short staffed for several weeks. During that period I noticed Nisan was getting extremely tired at work. He often came home very tired complaining of the amount of work and the pressure on him to do the tasks at much faster rate due to the fact they did not have enough cleaners…I started becoming very concerned for my husband’s health…
On Thursday 31 July 2008 Nisan came home from work and he could hardly walk because of the pain in his back. He told me that he injured his back at work that morning. He told me that he was required to work extremely fast and under pressure to get the job done as they didn’t have enough people to do the job for that day. He told me he jumped from one task to another all day and whilst in the process of using the water machine he felt a very sharp pain in his lower back…a few hours later he started feeling the pain down his legs…”
Ms Sivow also confirmed Mr Youshia’s statement as to the overseas visit from her sister on 21 June 2008.
Mr Salem Farhood, a friend of Mr Youshia, also made a statement dated 31 December 2008. He said:
“I am aware that Nisan sustained a back injury at work on 31 July 2008. I recall Nisan telling me how he had been working under pressure at work and how he was required to jump from one task to another with no breaks in order to get the job done as they were understaffed. I recall Nisan telling me that he felt severe sharp pain in his lower back whilst pushing a very large water machine weighing over 500kg.”
Mr Farhood’s mother-in-law also travelled to Australia with Mr Youshia’s sister-in-law. He also confirmed the date of visit, and that Mr Youshia did not go to the airport on 30 July 2008. He also said that on 21 June 2008 he saw Mr Youshia at the airport greeting his sister-in-law and her children and that: “I do not recall seeing any large luggage that Nisan or anyone else was required to carry.”
THE ARBITRATOR’S FINDINGS AND REASONS
The Arbitrator commenced by setting out in considerable detail all of the evidence relied upon by the parties, and a summary of the submissions. Her findings commence at [32] as follows:
“32. Having regard to the evidence and submissions of the parties I have made the following findings. Little weight can be placed upon the evidence of Ms Bartou that she was told by Mr Youshia’s wife that he injured his back pulling luggage for her sister-in-law. The evidence is hearsay and is refuted by Mr Youshia and his wife. Mr Farood (sic) gives evidence that he was present at the airport on the arrival on 21 June 2008 and the departure on 30 July 2008 as his mother-in-law travelled with Mr Youshia’s sister-in-law. He confirms Mr Youshia’s evidence that Mr Youshia was not present at the airport on 30 June [sic] July 2008. He states that he does not recall Mr Youshia or anyone else carrying any large luggage for his sister-in-law. I therefore do not make any findings that the Applicant injured his back lifting luggage.
33. I place little weight upon the evidence purported to be from Mark Long as there is no statement from him.
34. The Respondent places much reliance upon the inconsistencies in the Applicant’s statement and histories to his various doctors. Firstly in relation to the Applicant’s statement, the Applicant explained that he was on a lot of medication and could not recall the dates correctly. The statement is recorded as commenced at 6.30pm and concluded and signed at 9.15pm on 10 (sic) October 2008. The medical evidence before the Commission is that at the time the Applicant was prescribed Norspan patches and Mersyndol. The interview lasted approximately just under three hours…It occurred around two and a half months after the alleged injury. I accept that in these circumstances and without reference to records the Applicant may not have had an exact recall of the relevant dates and circumstances and may have been confused about the dates. I also note that the statements from Mr Nikola and Mr Ismael also have accepted the dates given by the Applicant in his initial statement as they have the same inconsistencies about the dates.
35. In relation to the histories given to the doctors there is no disputing that the Applicant’s English is poor and this could have led to some confusion with the histories given to Dr Aung. His own treating specialist, Dr Kai Lee reported that he could not take a proper history from the Applicant. It is therefore possible that the record of Dr Aung that the pain commenced ‘this morning’ (10 August 2008) may not be accurate. He is not the Applicant’s usual doctor, although he had seen the Applicant previously in respect of a back injury on 17 November 2007 which is recorded in his clinical notes.
36. Of greater significance however is the report from Dr Atto, because this gives support to the history taken by Dr Aung. Dr Atto is the treating general practitioner. He speaks the same language as the Applicant. He reports that the Applicant presented on 12 August 2008 with pain for three to four days. This initial history is consistent with that of Dr Aung, that is pain commencing on or about Sunday 10 August.
37. Dr Atto’s evidence is principally contained in his report of 11 December 2008…
38. Dr Atto’s report is written in a sequential manner dealing with each consultation. In respect of the first consultation he notes that ‘later on’ he was told by the Applicant that he told Dr Aung that he injured his back on 31 July at work by pushing the cleaning machine. The Applicant submitted that this means later on in the consultation. The Respondent submits that it means some time after the initial consultation.
39. The statement is somewhat curious in the context of the report. Having regard to the sequential nature of the report it might ordinarily be expected to be read to mean later on during the consultation on 12 August 2008. In the context of the report and the clinical records this construction does not make sense. It is inconsistent with the history of pain for three to four days. It is somewhat odd that no WorkCover Certificate is issued if that is the history taken on the day. It is also not consistent with the Centrelink Medical Certificate issued on 20 August 2008 which records the exacerbation of an existing condition, lumbar disc disease and sciatica, with the date of onset on 3 August 2008 and no mention of the work injury. On 22 September 2008 a WorkCover Certificate is issued noting an injury on 31 July 2008 pushing a large cleaning machine.
40. Having regard to these factors it is reasonable to infer that it was not until some time after the consultation on 12 July (sic) that the Applicant told Dr Atto about his statement to Dr Aung. It would also be reasonable to infer that ‘later on’, when Dr Atto is given this information, he then issues a WorkCover Certificate such as he does on 22 September 2008. “
The Arbitrator then summarised the conflicting evidence as to the operation of the cleaning machine before concluding at [41]:
“Due to the self propulsion I find that there would not be any significant force required to turn the machine. I therefore do not accept that the cleaning machine requires the level of force suggested by the Applicant.”
At [42] the Arbitrator considered the conflicting evidence as to Mr Youshia’s training on the cleaning machine before concluding that:
“The evidence before the Commission is that the Respondent had a very comprehensive training program on occupational health and safety. It would seem inconsistent with this that the Applicant would be given no training in the use of the machine. The Applicant has been using the cleaning machine for about 6 months. In addition, the evidence suggests that the operation of the machine is quite straight forward.”
The Arbitrator was, correctly in my view, quite scathing of the report of Dr Wallace. She said at [44]:
“Clearly Dr Wallace has departed from his role as qualified orthopaedic surgeon into the realm of fact finding. He goes on to state that the mechanism of injury is inconsistent with merely operating the scrubbing machine but certainly is consistent with being caused by lifting heavy luggage. There is simply no reliable evidence before the Commission that the Applicant injured his back lifting luggage. I find that Dr Wallace has purported to make findings of fact rather than express a medical opinion. I therefore do not place a great deal of weight upon his evidence.”
The Arbitrator accepted at [45] that:
“In summary there is medical evidence to support a finding that the Applicant’s pathology is consistent with the mechanism of injury described. The difficulty however is that the factual basis upon which this medical opinion is based is equivocal at best.”
The Arbitrator continued as follows:
“46. The statement of Mr Ismael and the cleaning specifications cast significant doubt on whether the Applicant was using the cleaning machine on the day in question. Even if the Applicant were using the cleaning machine on that day, there is some question about the amount of force required to use the machine. I have not accepted that the level of force is as great as described by the Applicant.
47. Of even greater concern are the inconsistencies in the histories given to all the doctors. It would appear to be quite clear that on Sunday 10 August the Applicant was in considerable pain. He presents to Dr Aung that day. He is forced to go to work on Monday 11 August 2008 and does very little. He does not work after this. He sees his own doctor the next day, being Tuesday 11 (sic-12) August. Dr Atto takes a history of pain for three to four days. This is consistent with Dr Atto’s history of pain commencing on Sunday 10 August and the fact that no WorkCover Certificate is issued. This is also consistent with the lay evidence that the Applicant called Mr Amir [Ismael] on a Sunday night (the Applicant states that it was Sunday 10 August 2008) with acute back pain. When he goes to work the next day he can barely work and both the Applicant and Mr Ismael state that he slept most of the day. This is his last day at work. The first mention of a work injury by Dr Atto is not until 22 September 2008.
48. The Applicant’s case is equivocal at best with numerous inconsistencies in his evidence. Having regard to the evidence I cannot be satisfied on balance that the Applicant sustained an injury to his back on 31 July 2008 as alleged. I therefore find that there should be an award for the Respondent in respect of the claim of an injury to the Applicant’s back on 31 July 2008.”
THE SUBMISSIONS AND DISCUSSION
At the outset, I accept Mr Youshia’s submission that he is entitled to seek a review of the Arbitrator’s decision in accordance with the decision of the Court of Appeal in Sapina vColes Myer Limited [2009] NSWCA 71 and the cases cited therein.
The Respondent’s submission that Mr Youshia must demonstrate some legal, factual or discretionary error and show that “the Arbitrator failed to determine the matter lawfully and fairly” is erroneous, and demonstrates a fundamental ignorance of the nature of a review in the Commission.
That being said, I note that Mr Youshia adopts many of the Arbitrator’s findings, particularly as to the weight to be attached to much of the evidence tendered by the Respondent.
His principal complaint is the Arbitrator’s interpretation of the report of Dr Atto dated 11 December 2008. Mr Youshia’s primary submission is that it is clear that he told Dr Atto of his work injury later during the initial consultation. In the alternative, he submits that, if in fact Dr Atto obtained a history of the work injury during a consultation after the initial one, “surely it would have been far more rational and consistent for Dr Atto to have recorded that observation at the time [he was] told it at a later point in his report. He did not do that.”
That is a fair point, but it still does not overcome the other flaws in all the evidence. As the Arbitrator pointed out, taken in the context of the entirety of the report together with the other evidence to which she referred, it simply “does not make sense”.
The Arbitrator’s analysis of the evidence on this issue at [39]-[40] was thorough and in my view correct. There was simply no escaping the conflicting medical evidence that suggested that the onset of symptoms was either on Sunday 3 or Sunday 10 August 2008: the only evidence that symptoms arose on 31 July 2008 came from Mr Youshia, his wife and Mr Farhood.
In addition to the matters noted by the Arbitrator, I note that in his initial statement dated 7 October 2008, Mr Youshia said that his pain was so severe on the Sunday that he consulted Dr Aung. Leaving aside for the moment the explanation for the confusion as to dates referred to by the Arbitrator at [34], I note that Mr Youshia was accompanied by his wife who he said spoke English “so she spoke to the doctor.” Given her own statement wherein she simply confirms that Mr Youshia told her he injured his back at work on 31 July 2008, it is at the very least curious that no mention was made of any work injury. Indeed, Dr Aung’s notes clearly state: “No Injury.”
Given Mr Youshia’s acknowledgement in his submissions on appeal that “The Appellant’s credit was squarely in issue in the proceedings…” it is again somewhat curious that there was no attempt to address this conflict.
In his later statement dated 31 December 2008, Mr Youshia explained the reason for his confusion over the dates referred to in his earlier statement. He did not resile from other aspects of his earlier statement, which was translated into the Assyrian language. I acknowledge that the Arbitrator was entitled to accept his explanation for the confusion over dates, but I am not persuaded that such confusion extended over the entirety of that statement.
References by a number of witnesses to Mr Youshia suffering from flu at this time is also consistent with the medical evidence. I note he reported such symptoms to Dr Atto during a consultation on 30 July 2008.
The onus was on Mr Youshia to establish that his injury occurred as he claimed. His evidence fell short of that requirement.
CONCLUSION
The Arbitrator’s Reasons were thorough and well considered. Having conducted a review on the merits (per Spigelman CJ in State Transit Authority v Fritzi Chemler [2007] NSWCA 249), the unexplained and unresolved inconsistencies in all the evidence have led me to the view that Mr Youshia has failed to establish, on the balance of probabilities, the relevant causal connection between his employment with the Respondent and his back condition.
DECISION
The decision of the Arbitrator dated 18 May 2009 is confirmed.
COSTS
I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
8 September 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
2
0