Youssef v Astrical Pty Ltd
[2006] NSWWCCPD 82
•11 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Youssef v Astrical Pty Ltd [2006] NSWWCCPD 82
APPELLANT: George Youssef
RESPONDENT: Astrical Pty Ltd
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC17215-03
DATE OF ARBITRATOR’S DECISION: 4 May 2004
DATE OF APPEAL DECISION: 11 May 2006
SUBJECT MATTER OF DECISION: Procedural fairness; absence of transcript; credit findings; evidence not considered
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Carroll & O’Dea
Respondent: Rankin & Nathan
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 4 May 2004 is revoked and the following order made:
Award for the Respondent.
No order is made as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 26 May 2004 George Youssef (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 May 2004.
The Respondent to the Appeal is Astrical Pty Ltd (‘the Respondent Employer’).
The Appellant Worker was born on 14 July 1981.
Whilst employed with McDonalds in April 2000 he injured his back as a result of lifting heavy boxes at work. Apart from a brief period on light duties he was off work as a result of that injury until he started work with the Respondent Employer as a labourer on 17 May 2002.
On 31 May 2002 the Appellant Worker was working for the Respondent Employer in the ceiling of a building consisting of villas at 7 Mutual Road Mortdale when his foot went through the gyprock forming the ceiling causing him to fall and sustain injury. The exact nature and extent of his injury is the subject of dispute and will be considered in detail below.
His claim for compensation was initially accepted but ultimately declined by letter from GIO Workers Compensation (NSW) Ltd (‘GIO’) dated 15 April 2003. The claim was declined on the basis of medical evidence obtained by the insurer. According to the letter payments of compensation continued until 28 April 2003 though I note this is disputed by the Appellant Worker. On 30 October 2003 the Appellant Worker filed an Application to Resolve a Dispute (‘the Application’) in the Commission seeking weekly compensation from 6 December 2002 to date and continuing and seeking a general order for the payment of hospital and medical expenses under section 60. In that Application he claimed injury to his ribs though as the claim progressed the claim was expended to include an allegation of injury to the back, neck, right shoulder and anxiety and depression consequent on the physical injuries.
An arbitration hearing was held on 16 April 2004 and decision given on 4 May 2004.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 4 May 2004 records the Arbitrator’s orders as follows:
1. The Application registered with the Commission on 3 November 2002 is
dismissed.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
·finding that the Appellant Worker's symptoms associated with his back and neck problems did not “emerge until towards the end of 2002”;
·giving insufficient weight to the reports of Dr Kanawati of 5 April and Dr Maniam of 18 August 2004;
·ignoring the supplementary submissions in relation to the clinical notes from Bankstown Hospital, and
·rejecting the Appellant Worker as a witness of truth.
An additional ground of appeal was raised by letter of 7 June 2004 alleging a denial of procedural fairness because there is no transcript of the hearing before the Arbitrator. The Respondent Employer does not object to this ground being raised and I intend to consider it in detail in these reasons.
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.”
The solicitor for the Appellant Worker does not consent to the appeal being dealt with on the papers because it raises “procedural points and questions of fundamental fairness” which should be ventilated orally as they may involve questions of fact which are disputed.
The Respondent Employer submits that deciding the appeal on the papers is not appropriate. No submissions are made as to why it is not appropriate for the appeal to be determined on the papers.
The appeal raises no novel or complex issues that need to be elucidated by oral argument. The parties have each made written submissions. If there is an issue of fundamental fairness raised on the appeal, it is not likely to be resolved by oral submissions.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties, 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 quantum ‘at issue’ in the appeal exceeds the threshold set out in section 352(2)(a). As the claim was dismissed the threshold set out in section 352(2)(b) does not need to be satisfied (see Mawson v Fletchers International Exports Pty Ltd [2002] NSW WCC PD 5).
I grant leave to appeal.
FRESH EVIDENCE
No party seeks to adduce fresh evidence on the appeal.
REVIEW
Before considering the issues in the current appeal it is appropriate to consider what is involved in a ‘review’. In Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6 the Commission considered the nature of a review and held at [11]:
“A consideration of the nature of the hearing before the Arbitrator at first instance, of the broad powers, functions and discretions exercisable by the Arbitrator and of the express limitations on evidence before the ‘review’ under section 352, lend support to the view that the Commission has a specific and limited role on appeal (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000). It is not an ‘appeal’ in the strict sense, as the Commission can receive further evidence. Similarly it is not a ‘rehearing’ of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by “. . some legal, factual or discretionary error” (Allesh v Maunz [2000] HCA 40 (3 August 2000)).”
Not every error by an Arbitrator will lead to the decision under review being set aside on appeal. In Snow Confectionary Pty Ltd v Askin [2004] NSW WCC PD 56 it was held at [15]:
“The error must be such that, but for it, a different decision should have been made (Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 47; Absolon v NSW TAFE [1999] NSWCA 311). The jurisdiction of a Presidential member on appeal is to ‘review’ the decision of an Arbitrator. It is not intended that this review become a hearing de novo of the dispute (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6, Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7).”
PROCEDURAL FAIRNESS
It is submitted on behalf of the Appellant Worker that the absence of a transcript of the proceedings before the Arbitrator has resulted in a denial of procedural fairness. No submissions have been made in support of this ground of appeal and no authorities have been cited.
The Respondent Employer states that “the parties did not object to the non recording of the proceedings at the time of the hearing” and there is therefore no ground to appeal on this point. There is nothing in the Arbitrator's decision to indicate that the Appellant Worker consented to the matter proceeding without sound recording. Such a step would have been unusual and contrary to the Commission’s policy, set out in the Guideline entitled ‘The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission’, to record arbitral proceedings. I am satisfied the Appellant Worker is entitled to raise this issue on appeal and I now turn to consider it in detail.
The failure to have a transcript can be a serious impediment to the ‘review’ process that is required to be undertaken on appeal (see Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSW WCC PD 47). In Sartor the Commission noted at [15] that:
“The absence of a transcript of the Arbitration may be fatal to the conduct of a fair review on appeal where no written reasons have been provided. The task of the Presidential Member is to ‘review’ the Arbitrator’s decision, wherever it is possible to do so, either ‘on the papers’ or after an oral hearing. Where an Arbitrator has erred in making the decision it may not be possible for a Presidential Member to proceed to substitute a new decision (in accordance with section 352 of the 1998 Act) if the evidence on appeal is inadequate. This has frequently occurred because the evidence was not properly filed or given in accordance with the Rules or because it was not properly recorded in the arbitral proceedings. In these circumstances, to grant leave for fresh evidence to be given on appeal can lead to the review becoming a complete second hearing of the dispute (Barbour v BHP Steel Pty Limited [2004] NSW WCC PD 42). This is not the intention of the statutory scheme. The particular circumstances of each case will influence the course of the review.”
In Sartor not only was there no transcript of the oral evidence but there was no transcript of the Arbitrator's ex tempore decision and part of the Commission's file was missing. In those circumstances the review process could not be properly and fairly conducted and the case was remitted to the Arbitrator to give reasons. When the reasons were provided a further appeal decision was delivered in Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSW WCC PD 79 in which it was held at [12]:
“The fundamental problem for the review of the Arbitrator’s findings as to the relative weight to be given to the evidence is that he did not have all of it before him, nor did he have a clear recall of the evidence, when writing the reasons. This is not to say that the decision is against the weight of the evidence, but rather that on review I cannot be satisfied that it is not. The Appellant has the burden of proving that the Arbitrator made an error in failing to make the decision on the basis of logically probative evidence.”
The ultimate decision in Sartor was that the Arbitrator's decision was revoked and the matter remitted to the Registrar for allocation to a new Arbitrator for a new hearing.
The same result was reached in Thompsonv Expamet Pty Ltd t/as T & G Sheetmetal Services [2005] NSW WCC PD 14 where there was no transcript of the evidence or of the decision and the Arbitrator’s file was missing.
In Pied Piper Pre-School Association (Wallerawang) Incorporated v Woolsey [2004] NSW WCC PD 5, Divine v Coles Supermarkets Australia Pty Ltd [2003] NSW WCC PD 28, Wyong Shire Council v Paterson [2004] NSW WCC PD 45, Rohloff v Diacut Pty Limited (in Liquidation) [2005] NSW WCC PD 17 and in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSW WCC PD 26 the Commission was able to proceed with a review notwithstanding the absence of a transcript of the evidence.
In Rohloff no oral evidence was given at the Arbitration and written reasons were provided by the Arbitrator. Therefore a fair review could be conducted without the transcript. In Zheng the issue was whether the Arbitrator had unfairly curtailed the employer’s cross examination of the worker. The absence of a transcript of the oral evidence was over come by the employer’s solicitor preparing a summary of the evidence given.
Zheng went on appeal to the Court of Appeal (see Aluminium Louvres & Ceiling Pty Ltd v Xue Qin Zheng [2006] NSWCA 34) where Bryson JA stated at [32]:
“In the present case, for reasons which were not explained, there was no compact disc or sound recording of the Arbitration hearing and the evidence given there. This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s.352; and also impedes the conduct of a further appeal under s.353. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic.”
His Honour then noted that the shortcoming had been overcome by the Presidential Member accepting the “narration” prepared by the employer’s solicitor. That course did not involve any error of law by the Presidential Member. At [34] his Honour noted that:
“The practice requiring a record of proceedings before Arbitrators to be made and kept is of high importance for the effectuality of proceedings on review, and the fact that no record was available and no explanation was forthcoming seems very unfortunate. It does not appear to me however that the Deputy President was in error in deciding to accept the employer's solicitor’s narration where the narration was not disputed.”
In the present case there is no explanation for the lack of a transcript. A note in the Commission’s file states that there is no transcript as the compact disc containing the recording of the proceedings was blank.
However the Arbitrator has given a detailed Statement of Reasons for Decision ('Reasons') and those Reasons refer in detail to the written evidence before him and also refer to parts of the oral evidence. It has not been suggested on appeal that those references to the oral evidence were wrong or involved any unfairness to the Appellant Worker. Nor has it been suggested that the Arbitrator failed to have regard to parts of the oral evidence that helped the Appellant Worker's case.
Arbitrator made an adverse finding about the Appellant Worker's credit. At paragraph 40 of the Reasons the Arbitrator said:
“In my view, I do not believe that the Applicant was entirely a witness of truth. Taking into account, in addition, the isolated matters that I have referred to above at paragraphs 28 to 31 above; the Applicant appears, in my view, to be a person who is inclined to present a story that will suit him in circumstances that fit the occasion”.
There were four main matters touching on the Appellant Worker's credit:
(a)he told Dr Susan Baroudy on 3 June 2002 that he suffered his injury while helping a friend at a house;
(b)he received Centrelink benefits simultaneously with his workers compensation payments in 2002;
(c)he gave a history to Mr Medhat Metry in August 2003 denying any “past history of psychological disorder” (see report Mr Metry 8 September 2003) which was contrary to the history and findings noted by Onsy Matter, psychological consultant, in his report of 30 March 2001 which concluded that Appellant Worker was suffering from “anxiety, depressive disorder and adjustment disorder” at that time, and
(d)whether the Appellant Worker had a limp on his right side for six to nine months after the May 2002 incident.
In dealing with these issues the Arbitrator relied mainly on the documentary evidence before him. To the extent that he referred to the oral evidence it was to:
· note and accepted (in part) the Appellant Worker's explanation for being untruthful to Dr Baroudy (see Reasons paragraphs 29 and 30);
· note that the Appellant Worker “candidly admitted” he received workers compensation benefits while also receiving Centrelink benefits (see Reasons paragraph 31), and
· note that the Appellant Worker’s oral evidence was that all doctors who assessed him between May 2002 and January 2003 would have had an opportunity to examine his limp (see Reasons 37).
In respect of credit point (c) the Arbitrator noted but did not accept “the possible explanation” that the Appellant Worker in 2003 would not have recalled having a legitimate psychological problem two years earlier (see Reasons paragraph 33). It is not clear if this explanation was given in oral evidence or in submissions. In my view that makes no difference. The explanation was considered by the Arbitrator and he reached a conclusion about its significance.
The challenge to the Arbitrator's decision is on the ground that the Arbitrator was wrong to find on the basis of the contemporaneous records that the neck and back symptoms did not emerge until towards the ends of 2002. The decision is also challenged because insufficient weight was given by the Arbitrator to the reports of Dr Kanawati and Dr Maniam, and because the Arbitrator erred in rejecting the Appellant Worker as a witness of truth.
These challenges are all capable of being fairly and properly determined in a ‘review’ on the papers that are available. I do not believe the Appellant Worker suffers any prejudice if the review proceeds on the material available and no prejudice has been identified in the submissions made.
ARBITRATOR’S FINDINGS
The Arbitrator accepted that the Appellant Worker sustained a work related injury to his ribs as a result of his fall at work on 31 May 2002. The Arbitrator's critical finding that is challenged on appeal is that he did not accept that the Appellant Worker sustained any injuries to his back or neck on 31 May 2002 that were so serious as to render him unfit for work (Reasons at paragraph 61). He based that finding on the “contemporaneous records” showing that the problems in the neck and back did not emerge until “towards the end of 2002”. In addition the Arbitrator found there was no explanation as to why in early January 2003 the Appellant Worker developed a loss of feeling in the right leg, right arm and right side of his body.
The Arbitrator accepted the medical evidence of Dr Arudpragasm that the Appellant Worker would have fully recovered from his rib injury by September 2002. As the Appellant Worker had already been paid compensation up to at least December 2002, the Arbitrator dismissed the claim for compensation.
It should also be noted that the clinical notes from the Bankstown Hospital (‘the Hospital notes’) were tendered by the Appellant Worker after the conclusion of the Arbitration hearing. The Respondent Employer had no objection to that tender but did object to the written submission that accompanied the notes (see letter from GIO to Carroll & O’Dea 23 April 2004). The Respondent Employer was at liberty to file any submission it wished about the evidence (including the Hospital notes) once the appeal was filed. I have therefore had regard to those submissions on appeal but I have also had regard to the whole of the Hospital notes, not only the parts relied on by the Appellant Worker.
It is appropriate to start with a detailed consideration of the evidence.
To that end the solicitors for the Appellant Worker have attached a chronology to their written submissions setting out certain relevant dates and medical histories. The Respondent Employer objects to the chronology on the ground that it is inaccurate. I have not had regard to the chronology in reaching my decision. Any references to medical reports or clinical records in this decision are from the source material quoted.
EVIDENCE
Lay Evidence
The lay evidence included a number of statements from the Appellant Worker:
· unsigned statement taken on 18 June 2002 (‘the first statement’);
· unsigned statement taken on 18 July 2002 by an investigator engaged by the GIO on behalf of the Respondent Employer (‘the second statement’);
· unsigned statement taken on 3 February 2003 (‘the third statement’);
· signed statement dated 9 July 2003 (‘the fourth statement’);
· signed statement dated 8 April 2004 responding to a letter from Fady Kanaan of 25 August 2002 (‘the fifth statement’), and
· a signed hand written statement of 8 April 2004 (‘the hand written statement’).
In the first statement the Appellant Worker refers to his fall of 31 May 2002 and states that “I suffered damage to my ribs”. Part of the statement is recorded as a record of interview where the following questions and answers appear:
“HGH: So, George, at the moment, have you still acquired [sic] a lot of pain or are you coming good?
GY: Not coming good at all. I’ve actually got a fair bit of pain.
HGH: Where is the pain?
GY: The pain is in my lower rib area.
HGH: Okay, and is Dr Kanawati proposing to do some operation or surgery?
GY: No, that is actually referred with the specialist [sic], Dr Maniam.
HGH: Okay, you ever [sic] have any trouble with your ribs before?
GY: No.
HGH: Okay, the previous case was for your lower back?
GY: My lower back.” (emphasis added)
The second statement is more detailed and relates how the Appellant Worker put his foot through gyprock and he fell landing on “the right side of my body” (see paragraph 10). It also relates how John Assaly (the proprietor of the Respondent Employer) offered to take the Appellant Worker to the doctor but the offer was declined. The accident happened on a Friday between 4.30 and 5.00. The Appellant Worker states that his pain got worse and he attended at Bankstown Hospital twice (the first time by ambulance) on the weekend of 1 and 2 June 2002. On Monday 3 June 2002 the Appellant Worker attended on Dr Baroudy as his usual doctor was away. Later that week he attended on Dr Kanawati, his usual general practictioner.
On page five of the second statement the Appellant Worker is recorded to have said:
“I told her [Dr Baroudy] how I suffered my injury but I told her it wasn’t work related. That’s because I didn’t want to make a big fuss if it wasn’t anything big. If it was just bruising or a bit of pain and something I could get over in a couple of days. When I realised that I had fractures that was a different story. I then realised that it was legal for me to tell my doctor what happened.”
The second statement also touches on the Appellant Worker's prior back injury. The statement records that he hurt his back in 1999 or early 2000 and that he was only on compensation a short time.
The third statement notes in paragraph two:
“Unfortunately, I am continuing to have quite substantial [sic] problem with my back and my neck.
I was lying in bed doing nothing when pain came on in an extreme way rendering me virtually unable to move and I had to be taken by ambulance to Canterbury Hospital where I was kept for two days”
The third statement added that the Appellant Worker was getting numbness in his right leg “quite constantly” and that he did not have the same level of symptoms in his right leg “before the fall as I have since the fall” (page two).
The fourth statement is the longest (eight pages) and most detailed. In paragraph eight the Appellant Worker states that in February 2002 he still had back pain from his injury with McDonalds of April 2000 but it was not as bad as it had been in the previous six months. At that time he asked his doctor for a clearance to return to work. It should be noted that the Appellant Worker attended on Dr Kanawati on 14 May 2002 complaining of left sciatica and was given a script for viox, an anti inflammatory.
The Appellant Worker also adds more detail to this statement about his fall of 31 May 2002. At paragraph 13 he states:
“My leg went straight through the roof up to my hip, my ribs came crashing onto the cross beam, continually sliding until I came to a rest under my arm. My left leg was on an angle, remaining up on the roof.”
Paragraph 18 of the fourth statement is relevant where it states:
“I called John over the weekend and told him that it was impossible for me to go back to work as I had fractured ribs, sore neck and I have aggravated my lower back injury. I told John that I would have a MRI scan done, as well as other tests.”
At paragraph 19 the Appellant Worker adds:
“All these tests took about three days to do, it was [sic] would have been after I had my MRI done that I called John Assaly and I told him that I had fractures. I told him that I would be putting it down as Workers Compensation, and it was then that he became sour.”
At paragraph 32 he states that he almost got over his previous back injury and “then I injured my ribs and neck”.
At paragraph 33 he notes his main trouble is walking long distances. He said that in a space of 400 metres he has to stop three or four times and sit down.
At paragraph 43 he stated that he used to suffer “a little bit of depression for only a couple of weeks” after his injury was reported to McDonalds.
The balance of the statement deals with his physical and emotional symptoms since the May 2002 accident.
In the fifth statement the Appellant Worker says he has no recollection of Mr Kanaan or Mr Assaly offering to take him to the doctor. It also takes issue with the assertion by the Respondent Employer's witnesses that the Appellant Worker continued his usual work until leaving the site at 5.30. On this issue Dr Maniam records in his report of 28 June 2002 that the Appellant Worker “went about his job in a normal manner” after regaining his composure following the fall.
In the hand written statement he states that Mr Assaly “did ask me if I wanted to see a doctor, and with a smirk on his face I knew he was making fun of me”. The Appellant Worker agrees that he did continue working but in “horrendous pain”. Mr Assaly drove the Appellant Worker home and suggested that he see a doctor. According to this statement “this is where Mr Assaly became very rough and hard to deal with”. The Appellant Worker felt that Mr Assaly was treating him like a child.
The Appellant Worker then states that he told the doctor it happened at a mate’s house “because of John’s nagging”.
He adds that “at no time was I not limping in that 6 to 9 month period after the injury”. The period referred to is the six to nine months after the May 2002 accident.
In respect of his prior back condition the Appellant Worker states that “this was worsened in this injury of May 31, 2002. I must confirm this with my Doctors”.
The Appellant Worker also relied on a statement from his mother, Jamal Youssef, also prepared in 8 April 2004. This statement corroborates the Appellant Worker's complaints of pain after work on 31 May 2002 and on the following weekend. It does not assist in determining if that pain was restricted to the ribs or also extended to other parts of the body.
For the Respondent Employer a statement was tendered from John Assaly dated 17 July 2002. He did not see the Appellant Worker’s fall, but he did hear it. Immediately after the fall the Appellant Worker showed Mr Assaly a red mark on his right rib area. Mr Assaly then asked if the Appellant Worker wanted to see a doctor and the reply was in the negative. Mr Assaly states that he pressed the issue saying:
“You should go and see somebody just in case something comes up later. I don’t want something showing up next week”.
Mr Assaly states that the Appellant Worker rang him at about 6.30pm on Sunday 2 June 2002 to say he would not be able to work as he had been to hospital, had X-rays and would have to see the doctor the next day. On asking what was wrong Mr Assaly says the Appellant Worker responded saying “I haven’t been sleeping. I’m in terrible pain. I’ve got to see the doctor tomorrow” (see statement paragraph 27). According to this version there was no mention of neck pain or of an aggravation of back pain. Mr Assaly offered to go to the doctor with the Appellant Worker.
At paragraph 29 Mr Assaly says he attended on the Appellant Worker at home on Monday 3 June 2002 at about 5pm and the following exchange occurred:
“I said ‘if your going for more x-rays or your going to be having more treatment then obviously I’ll put in a claim for workers comp to take care of it’. He said, ‘No, because I’ve told the doctor that I’ve done it at a mates house’. I said, ‘What did you do that for, why didn’t you ring me I would have come and taken you’. He said, ‘I just wanted to go to hospital as I was in pain’. Mr Youseff [sic] didn’t explain to me why he told the doctor he did it at a mates place. I said, ‘Do you want me to take you tomorrow to the doctor.’ He said, ‘No I’ll be right’.”
According the Mr Assaly there was a further conversation about workers compensation on Wednesday 5 May 2002 when the Appellant Worker again allegedly declined to submit a workers compensation claim.
Further phone conversations took place on 6 May 2002 when the Appellant Worker (according to Mr Assaly) decided he would make a workers compensation claim. Mr Assaly’s statement then records at paragraph 32:
“I said, ‘What’s the change of mind all of a sudden. If you want to claim I want all of the doctor’s reports and the ambulance and x-rays. Everything you’ve got’. He said, ‘Well look, I’ve just spoken to my solicitor and he has advised me to go on workers comp’. I said ‘What’s a solicitor got to do with it George?’ He said, ‘I’ll probably be off work for a while anyway’. I said, ‘Well how long, it’s probably only going to be a couple of weeks and you should be back’. He said, ‘Well, what it’s like a year or something. My solicitor said I could also claim for pain and suffering’. I said, ‘You’ve got to be kidding. Well in that case go and get me every single report and I’ll speak to the insurance and see what they are going to do about this situation’. He said ‘Okay’.”
About 10 days after the fall Mr Assaly saw the Appellant Worker at his sister’s house “walking normally”. Mr Assaly claims that when the Appellant Worker saw him he “hunched over and held his side” (see statement at paragraph 39). The Appellant Worker spoke to Mr Assaly and complained of continuing pain and lifted his shirt to show bruising, but Mr Assaly could see none.
Mr Assaly also stated that he did not believe the Appellant Worker was making an effort to return to work.
The ‘Employee Compensation Claim’ (‘the claim form’) was also in evidence. This document is significant because it was completed by the Appellant Worker on 6 June 2002 and under “what parts of the body were affected?” the Appellant Worker has written “ribs”. Under “what injury(ies) did you suffer? (eg fracture)” the Appellant Worker has written “fracture”.
Medical Evidence
The first medical treatment sought by the Appellant Worker was from Bankstown Hospital at 0313 on 2 June 2002 having been taken in by ambulance. The notes read in part:
“Presenting Problem: BIBA ↑ (R) Flank Pain
fell back onto a wooden pde-
yesterday-
no other injuries
Notes: BIBA due to (R) back pain after fall last Friday”
On examination bruising and tenderness of the right flank was noted and tenderness in the right back. The Appellant Worker also complained of headache and chest pain. X-rays of lumbosacral spine were performed at 0400 and were normal. A further note appears in the entry at 0320 about pain and swelling to the right flank region and a history of “back pain L5/S1 prolapse”. The Appellant Worker left the hospital at about 0730 with a note for his local doctor referring to the fall and tenderness in the right flank and right back and giving a diagnosis of “soft tissue injury”. There is no reference to any neck or shoulder pain.
It is of interest to note that the emergency notes describe the Appellant Worker as “unemployed” though the clerical record gives employment status is “employed”.
The Appellant Worker again presented at Bankstown Hospital at 1750 on 2 June 2002 complaining of “(R) lower back pain”. It does not appear that he was seen by a doctor on this occasion.
He attended Dr Baroudy on 3 June 2002 and the clinical notes record:
“3.6.02 Ps- on 31.5.02 as pulling some cord fell backward & landed on his right side of body & flank- was helping a friend in his house. Not at work. Went to hospital (Bankstown) on 1.6.02→ Dx: soft tissue injury of (R) flank and (R) back”
On examination the doctor noted tenderness in the right flank and right ribs but “nil vertical spine tenderness”. The doctor’s impression was of “soft tissue injury”. There is no complaint of neck pain, shoulder pain or of an aggravation of the previous low back injury.
An abdominal ultrasound was arranged for 3 June 2002. The report from Dr Lamond notes there is a haematoma in the right flank. He suspected a fracture and thought a pelvic and lower rib x-ray was indicated. Those x-rays revealed no fractures (see report Dr Lamond 3 June 2002). On 5 June 2002 an abdominal and pelvic CT was performed which showed a fracture of the 11th rib “in the paraspinal region as a result of injury”. This investigation would account for Dr Kanawati’s finding of tenderness in the paraspinal region but it does not support a finding of injury to the limbosacral spine.
On 5 June 2002 the Appellant Worker saw Dr Kanawati for the first time about to the disputed injury. I have found it very difficult to read the doctor’s notes but the entry for 5 June 2002 does have a clear reference to “haematoma Rt loin + flank”.
In his report to the GIO on 5 August 2002 Dr Kanawati states that he saw the Appellant Worker on 5 June 2002 and took a history that on 31 May 2002 while working on site “George was pulling some kind of electrical cords; he fell from the roof and landed on his back and right chest wall” (emphasis added). The doctor noted the Appellant Worker had the following symptoms:
· severe right loin pain;
· back pain (not identified as upper or lower back), and
· severe nervous shock.
On examination the doctor found the following:
1.right flank swelling which was painful and tender;
2.tenderness and spasm of the para spinal muscles;
3.nervous shock, and
4.difficulty breathing.
Dr Kanawati diagnosed:
· fracture of the right 11th rib;
· right flank haematoma;
· lumbosacral injuries, and
· nervous shock.
Dr Kanawati referred the Appellant Worker to Dr Maniam who examined him on 25 June 2002. He took a history that the ceiling below his feet gave way and his right leg fell through the hole in the gyprock. The doctor records that “he managed to pull himself up and then after regaining his composure, went about his job in a normal manner”. This history is to be contrasted to the Appellant Worker's statements discussed above at paragraph 61. Dr Maniam’s history is far more accurate than the one recorded above by Dr Kanawati. Dr Maniam reported to the GIO on 28 June 2002 that Mr Youssef had sustained a fracture of the 11th rib and he was in “a convalescent phase, all treatments having been discontinued”. He made no mention in that report of any neck, back (upper or lower) or shoulder problems.
Dr Maniam reported in more detail to Dr Kanawati on 9 October 2002. In this report the doctor notes that Mr Youssef was helped to his feet after his fall. The Appellant Worker complained to Dr Maniam of “tenderness in the mid and lower chest wall on the right”. The sternum and the thoracic spine were non tender to palpation, but a scoliosis was noted in the thoracic spine with convexity to the right. The Appellant Worker complained of difficulty with deep inspiration. Thoracic spine movements induced pain at 40 degrees in flexion and 20 degrees in extension, left and right flexion restricted and rotation, though full range, was also restricted.
Dr Maniam was already aware of the history of the pre existing lumber injury at McDonalds which caused an L5/S1 disc herniation.
His diagnosis was:
1.fracture of the right 11th rib, and
2.soft tissue injury to the soft tissues in the right para thoracic region.
The doctor added that the above injuries were caused by the Appellant Worker's fall at work with the Respondent Employer and there were no pre existing conditions in the thoracic spine or the ribs that were aggravated in the accident. The Appellant Worker's only know pre existing problems were noted by the doctor to be with his low back at the L5/S1 level and with his right ankle.
According to Dr Maniam the prognosis was “satisfactory and the current indications are that his symptoms are regressing and he continues to make gains in the direction of improvement”.
At Dr Maniam’s examination on 8 October 2002 the Appellant Worker complained of some “marginal symptoms in the neck, with radiation into the scapular region” but the thoracic spine pain had “regressed” and the right sided rib pain “improved by 80%”. On examination the doctor found a normal range of movement of the neck but “with minimal restriction in extreme forward flexion and extension”. He noted that radiographs of the cervical spine did not exhibit any injuries. The doctor reassured the Appellant Worker that the neck problems were musculo ligamentous and that “one could expect a satisfactory resolution in the pain”.
It is significant to note the following about Dr Maniam’s October 2002 report:
· it does not attempt to attribute the neck pain to the fall on 31 May 2002;
· it is silent about any right shoulder symptoms;
· it has no history of pain in the low back;
· whilst he was aware of the Appellant Worker's prior low back problems, he does not suggest that the fall in any way aggravated or exacerbated that condition, and
· it makes no mention of the Appellant Worker experiencing leg symptoms or any difficulty walking.
On 7 August 2002 the Appellant Worker was seen by Annette MacManus, occupational therapist, with IRS Total Injury Management for the purpose of having a return to work plan prepared. In her report of 12 August 2002 she records that Mr Youssef complained of experiencing “a constant sharp stabbing pain in his neck and ribs” in his fall. Under ‘current symptoms’ she states that the neck and rib pain continued but had improved. She records his ability to walk to be the same as for sitting which was noted to be “able to sit for up to 40 minutes before experiencing a light pain that ‘shoots toward his spine’ ”. She made no mention of the Appellant Worker limping or experiencing low back pain. Her history included a note about the Appellant Worker's previous “longstanding back problem”. Under ‘current symptoms/treatment’ she again records the complaint of neck and rib pain and that he was having physiotherapy for his neck.
Dr Kanawati provided the Appellant Worker with numerous medical certificates from 7 June 2002 and into 2003. The certificate of 30 July 2002 is from Dr Maniam. It is useful to set out the diagnosis in several of them:
· 7 June 2002 (‘initial certificate’) “haematoma abdomen-fracture 11th rib;
· 21 June 2002 “haematoma & fractured ribs”;
· 30 July 2002 (Dr Maniam) “fracture R ribs”;
· 7 August 2002 “cervical & lumbar discopathy - fractured ribs”;
· 2 September 2002 “cervical & lumbar discopathy - fractured ribs”;
· 30 September 2002 “cervical & lumbar discopathy - fractured ribs”;
· 8 November 2002 “cervical & lumbar discopathy - fractured ribs”, and
· 3 February 2003 “cervical & lumbar discopathy, anxiety & depression, fractured ribs”.
The Arbitrator was not correct when he stated at paragraph 47 of his Reasons that the medical certificates from June to September 2002 “state injury to the ribs only”. The first medical certificate raising “cervical and lumbar discopathy” is 7 August 2002, about nine weeks after the accident. There was no explanation from the doctor as why the diagnosis noted on the certificates changed at that time.
Dr Kanawati’s reports of 5 May 2003 and 5 April 2004 were relied on by the Appellant Worker. In the May 2003 report the doctor repeats the inaccurate history set out in his report of 5 August 2002 to the GIO but he adds a reference to a lumbar MRI scan without giving the date of the scan. The scan quoted by the doctor is in fact the MRI scan performed by Dr Masters on 14 January 2003. Under diagnosis Dr Kanawati records:
· fracture 11th rib;
· right flank haematoma;
· lumbar discal injury;
· nervous shock and sever depression, and
· George complained of neck pain (it is not recorded when the Appellant Worker first complained of neck pain).
In the 5 April 2004 report Dr Kanawati notes the Appellant Worker's ‘present complaints’ to be:
· neck pain;
· right shoulder pain;
· chest wall pain;
· low back pain;
· dorsal spinal pain, and
· severe anxiety and depression.
This is the first mention of right shoulder pain in the context of the May 2002 injury. The doctor notes a previous history of neck pain on 8 March 2002 and of right shoulder pain on 20 March 2002. Investigations at that time did not show any significant pathology. Dr Kanawati therefore concluded that the Appellant Worker sustained the following injuries in the fall on 31 May 2002:
· cervical and lumbar discopathy;
· dorsal muscular ligamentous injuries with possible implication of the rotator cuff injury to the right shoulder;
· fracture ribs, and
· anxiety, depression and panic reaction.
Reliance is also placed on Dr Maniam’s report of 18 August 2003. On this occasion the doctor notes the following ‘ongoing problems’:
· pain in the right lower thoracic spine;
· pain in the lumbar region;
· pain on the right side of his neck;
· stiffness in the right shoulder, and
· right chest wall pain.
The report then outlines the findings on examination but it does not indicate when that examination was performed. The findings on examination were significantly different to the findings noted by the doctor in his report of 9 October 2002. The doctor refers to a cervical MRI scan of 2 December 2002 which is said to be normal. His diagnosis in August 2003 is:
· musculo ligamentous strain, cervical spine;
· musculo ligamentous strain, thoracic spine;
· fracture right 11th rib, and
· aggravation of pre existing intervertebral disc protrusion at L5/S1 with no neural compression.
Under ‘attributability’, Dr Maniam states “the injuries were sustained in the manner described”.
On 6 January 2003 the Appellant Worker presented to Canterbury Hospital complaining of right sided back pain with radiation down the back of the leg to the foot. A letter from the hospital to Dr Kanawati records “history of back pain with known disc problems shown on CT 2 years ago. Acute episode commenced with minimal movement at home”. Examination indicated altered sensation “but not dermatomal in distribution; difficulty weight bearing secondary to pain, mobilising with crutches”. There is no reference to the May 2002 fall.
The Appellant Worker also relies on the clinical notes from Bankstown Hospital where he attended again by ambulance on 12 January 2003 complaining of “chest pain-back pain (R) sided weakness” with limited movement of his right arm and no feeling in his right leg. The notes record the prior history of an L5/S1 disc prolapse in April 2000 and a left ankle fracture. The notes also refer to him complaining of neck pain though that does not appear to have been the main complaint. A lumboscral x-ray was normal as was a cranial CT scan.
A detailed history was taken of the Appellant Worker's symptoms leading up to his attendance at Bankstown Hospital. The following is recorded in that history:
“1 (R) sided sharp, pleuritic, constant anterior chest pain for 1/52;
2 feels numb & weak in (R) arm for 1/52;
3 feels no sensation and very weak in (R) leg for 1/52-unable to walk→wheel chair, and
4 ↑ chronic lower back pain-like spasm → spreading to (R) posterior thigh.”
Whilst there are several references in the notes to the Appellant Worker's prior lumbar prolapse, there are no references to his injury in May 2002. Indeed under ‘nursing assessment data’ the words “nil injury” appear.
It was during this admission to Bankstown Hospital that the lumbar MRI scan relied on by Dr Kanawati was done. It confirmed the previous L5/S1 protrusion but notes there was no nerve root compression. This finding contrasts with the pre accident MRI scan which showed nerve root compression.
The discharge summary states under ‘main diagnosis’ “(R) leg & (R) arm paresis - back pain? cause? SAH? Migraine - paralysis”. Under ‘previous medical history’ there is a reference to the back injury “2 yrs ago-L5/S1 disc prolapse (2000)” and to the previous ankle injury but there is no mention of the May 2002 fall.
On 2 January 2003 the Appellant Worker attended on Mr Metry, consulting psychologist. He gave a history that in his May 2002 fall he hit his “right ribs, neck, right shoulder and back”. He complained of the following physical symptoms:
· back pain;
· neck pain;
· pain in the right leg, and
· pain in the right shoulder.
He also complained to Mr Metry of several emotional problems.
For the Respondent Employer the Appellant Worker was examined by Dr Rabone on 23 July 2003. He complained to Dr Rabone of “discomfort over the right upper loin and right lateral chest”. Trunk movements were restricted. The doctor expected the Appellant Worker to make a full recovery. There was no complaint of any neck, back or shoulder symptoms.
Dr Shiv Arudpragasam (‘Dr Shiv’) saw the Appellant Worker for the Respondent Employer on 20 September 2002. At that examination the complaint was of “pain in the right lower side of his chest”. The Appellant Worker made no voluntary complaint about his neck but when the doctor asked him about why he had made no mention of it to Dr Rabone he said “his neck symptoms were very minor” and he had only mentioned it to Dr Kanawati “6 weeks back”. The doctor noted that neck x-rays of 30 July 2002 were normal except for mild postural changes.
It is significant to note that Dr Shiv records “Mr Youssef was a pleasant young man who walked in quite comfortably, undressed for examination without problems” (emphasis added). On examination the doctor found the Appellant Worker to have a full range of neck movement with “considerable facility and no real discomfort and with no real abnormality”. He also noted the Appellant Worker to have a full range of movement in his shoulders with no wasting and full muscle power. His diagnosis was of a fractured rib. The natural history of such an injury is for it to heal without any discomfort. He felt it difficult to reconcile the complaint of neck pain with the fall and he concluded that those symptoms were not substantially work related.
Dr Abeywickrema saw the Appellant Worker for the Respondent Employer on 11 December 2002. This is the first doctor to whom the Appellant Worker complains that in his fall of May 2002 he “twisted his neck”. The Appellant Worker claimed to have had physiotherapy to his neck but no physiotherapy reports were tendered in the case. The Appellant Worker also complained of neck pain, chest pain and pain into the right scapula area.
On 13 March 2003 the Appellant Worker was examined by Dr Hughes for the Respondent Employer. He complained of a constant ache in the back of his neck radiating to his right shoulder region. He also mentioned his lower back ache and added that he injured his back in April 2000 but it “seemed to be aggravated by the fall”. Dr Hughes felt that any aggravation to the previous back condition had resolved and that there was no objective evidence of any disability in the Appellant Worker's neck or chest.
On 4 December 2003 the Appellant Worker was examined by Dr Evans. The history he records is of injury to the ribs, neck and right shoulder in the fall. The Appellant Worker told the doctor that he recovered from his rib injury in three months but the problems with his neck and right shoulder continued up to the time of the examination. The doctor records the back injury with McDonalds and adds that Mr Youssef still gets “backaches occasionally”.
In the course of the consultation the Appellant Worker struggled to get out of a chair and when asked why, he replied that it was because of his right sided neck pain and “a feeling he might fall”. On examination neck movements were grossly restricted with no neck extension. The doctor concluded that the examination was very odd and was “not consistent with any organic lesion”. He was prepared to accept, given the history the Appellant Worker provided, that there had been an injury to the neck in the nature of a sprain as a result of a jerking movement in the fall, but such an injury should have resolved a long time ago. Given that the MRI scan was normal the doctor felt the only diagnosis that could be made was a musculo ligamentous sprain which would have lasted a few weeks. He thought the Appellant Worker was fit for work.
I have set out the evidence in this matter in more detail than usual in order to highlight the extensive nature of the documentary evidence before the Arbitrator and the significant inconsistencies in the Appellant Worker's histories.
SUBMISSIONS AND FINDINGS
The Credit Issues
There is a challenge to the Arbitrator's finding that the Appellant Worker was not “entirely a witness of truth”. I have already identified the main credit issues in the case (see paragraph 36 above).
In respect of the first credit issue (that the Appellant Worker told Dr Baroudy that he sustained his injuries while helping a friend) it is submitted that this was a statement against the Appellant Worker's own interests. In a sense that is true but it provides an example of where the Appellant Worker's history to a doctor was false and, on this occasion, deliberately so. It also raises the question of why he would give the doctor an untrue history. On this point the Appellant Worker gives three explanations. First, that he didn’t “want to make a big fuss if it wasn’t anything big” (see second statement page five). This is an odd statement because the Appellant Worker saw Dr Baroudy on the Monday after he’d been taken to hospital by ambulance on the weekend because of his extreme pain. Second, the Appellant Worker says in his hand written statement that he gave a false story “because of John’s nagging” (John being Mr Assaly). Mr Assaly’s ‘nagging’ consisted of him offering to take the Appellant Worker to the doctor. Third, in cross examination he said he did not want to cause any problems with Mr Assam (see Reasons at paragraph 29). I assume that the reference to Mr Assam is in fact Mr Assaly. The Arbitrator did not consider that this credit issue ‘in isolation’ impacted on the Appellant Worker's credit.
The second credit issue relates to the Appellant Worker receiving Centrelink benefits at the same time as he was in receipt of workers compensation payments in 2002. The Arbitrator noted that the Appellant Worker “candidly admitted” that was the case. He then added that that event ‘in isolation’ did not diminish the Appellant Worker's credit.
In submissions the point is made that the Centrelink issue related to working for the Respondent Employer and receiving Centrelink benefits at the same time and that the Appellant Worker had at all times disclosed to Centrelink that he was employed by the Respondent Employer. Given that the Arbitrator did not find this issue in isolation was something relevant to diminishing the Appellant Worker's credit I do not think this matter was decisive in determining the outcome.
The third credit issue was the history the Appellant Worker gave to Mr Metry (wrongly referred to as Dr Metry by the Arbitrator) in his report of 8 September 2003. The history was that the Appellant Worker “denied any past history of psychological disorder”. That history was false. On 14 March 2001 the Appellant Worker saw Mr Mattar (wrongly referred to as Dr Mattar by the Arbitrator), psychological consultant, on referral from Dr Kanawati and gave a history of having the following symptoms and problems:
1.lower back pain, he describes as severe at all times;
2.pain to the left leg;
3.neck pain, he described the pain as moderate to severe;
4.headaches;
5.stress due to pain and worries;
6.impaired concentration and memory;
7.change in life style and sex life;
8.prior to the accident he used to enjoy sports such as rugby league, soccer and swimming and he did not suffer from any physical or emotional problems;
9.can’t drive for more than 30 minutes, and
10.more irritable, easily upset and short tempered due to pain.
Mr Mattar felt that the Appellant Worker was suffering from anxiety, a depressive disorder and adjustment disorder and there was a need for psychological therapy to assist the Appellant Worker in coping.
The Arbitrator felt that the history given by the Appellant Worker to Mr Metry “appears to have painted a picture of not suffering any of the problems he described to Mr Mattar two years earlier” (see Reasons paragraph 33). The Arbitrator thought that this was a “critical aspect” in determination of the Appellant Worker's credit. The submission made on this point is that two years is a long time in the life of a young man and it was reasonable that he would have forgotten about the symptoms he mentioned to Mr Mattar.
With respect I agree with the Arbitrator assessment of this issue. He concluded that the Appellant Worker told one of the doctors “an untruth”. The Arbitrator did not accept the Appellant Worker's explanation that he would not have recalled having a legitimate psychological problem two years earlier. It was a matter for the Arbitrator to assess the weight to be given to this evidence and on review I can see no error in the Arbitrator's approach. The Arbitrator's conclusion is even more compelling when one considers the Appellant Worker's fourth statement at paragraph 43 where he said he remembered having a little depression after the McDonald’s injury. If that statement is correct then the history to Mr Metry may have been deliberately false.
The fourth credit issue related to the Appellant Worker's claim in his handwritten statement that he had been limping on his right side for six to nine months after the accident of May 2002 and that he always had a slight to heavy limp after that period. The Arbitrator rightly considered this to be a significant issue in assessing the Appellant Worker's credit. He noted that none of the medical examiners who have reported in this case have either made a note of the Appellant Worker complaining about a limp or have observed him to be limping at their examinations. I have noted above the relevant parts of the evidence dealing with the Appellant Worker's ability to walk. I agree with the Arbitrator's assessment of this issue.
The submission made on this point is that no film was tendered showing the Appellant Worker walking normally. There is no evidence that the GIO or the Respondent Employer ever carried out any surveillance in this matter. The documentary evidence tendered provided a sound basis for concluding that the Appellant Worker's evidence about suffering a limp in the six to nine months after the fall was false.
After carefully considering the evidence the Arbitrator concluded that the Appellant Worker was not a witness of truth.
The role of a Presidential Member in reviewing a finding of credit was considered by the Commission in Far West Area Health Service v Colin Robert Radford [2003] NSW WCC PD 10 where Deputy President Fleming said at [39]
“The function of a Presidential Member on review of an Arbitrator’s findings based on credit is to ensure the decision is not affected by demonstrable mistake or misapprehension about relevant facts and that the ‘value and importance’ of the advantage of the Arbitrator has not been misused (State Rail v Earthline Constructions Pty Limited (In liquidation) (1999) 160 ALR 588).”
In the present case it is my opinion that the Arbitrator’s credit based findings are not affected by a demonstrable mistake or misapprehension about relevant evidence. Indeed the Arbitrator placed little if any weight on the first two credit issues. In my view the Arbitrator would not have been in error if he had placed considerable weight on the first credit issue because it involved a blatant fabrication about which the Appellant Worker gave three different explanations.
I believe that the finding at paragraph 40 of the Arbitrator's Reasons that the Appellant Worker “was a person who is inclined to present a story that will suit him in circumstances that fit the occasion” was open on the evidence and does not indicate any mistake or misapprehension about relevant evidence.
The Arbitrator then considered the evidence of Mr Assaly who gave a statement and was cross examined. The Arbitrator found him to be a witness of truth and that there was nothing in his demeanour that indicated to the Arbitrator a tendency for Mr Assaly to either diminish or embellish his evidence.
As a result where there was a conflict between the Appellant Worker on the one hand and Mr Assaly and the doctors (I assume this is a reference to the Respondent Employer's doctors) on the other, the Arbitrator stated that he preferred the evidence of the latter (see Reasons paragraph 41). This approach was open to the Arbitrator and I see no error.
In accepting Mr Assaly’s evidence quoted at paragraph 44 of the Arbitrator's Reasons the Arbitrator was then entitled to draw the conclusion at paragraph 46 of the Reasons that the Appellant Worker had decided by 6 May 2002 that he would be off work for a lengthy period regardless of his actual fitness for work.
The Medical Issues
It is submitted on behalf of the Appellant Worker that the Arbitrator was wrong to conclude that the symptoms associated with the neck and back problems did not emerge until towards the end of 2002. There is some merit in this submission.
The certificates from Dr Kanawati (see paragraph 95 above) provide some evidence of neck and back problems before the end of 2002. However those certificates are not determinative as they are based on the history Dr Kanawati took that the Appellant Worker “fell from the roof and landed on his back and right chest wall” (see Dr Kanawati’s reports of 5 August 2002 and 5 May 2003). That history is clearly incorrect. The Appellant Worker’s leg went through the ceiling and he fell onto his side. Therefore I believe that Dr Kanawati’s evidence is substantially undermined and its weight diminished because of his incorrect history.
Second, the assertion by Dr Kanawati that the Appellant Worker had “cervical discopathy” from as early as 7 August 2002 does not fit with the radiological investigations available at that time or since. The neck x-rays of 30 July 2002 were essentially normal apart from some “loss of normal cervical lordotic curve”. They did not justify a conclusion of “cervical discopathy”. In addition, the subsequent cervical MRI scan on 2 December 2002 was normal.
Third, there is no mention of neck pain at the Bankstown Hospital on 2 June 2002 or at the attendance on Dr Baroudy on 3 June 2002.
Fourth, there is no mention of neck pain or back pain in the Appellant Worker's first or second statements. In his first statement the Appellant Worker specifically states “the pain is in my rib area”.
Fifth, the first attendance on Dr Maniam is of some importance on the issue of when the Appellant Worker first developed low back and neck symptoms as a result of the May 2002 fall. Dr Maniam took a more accurate history of how the accident happened (see report 18 August 2003).
More importantly Dr Maniam records a detailed history of the Appellant Worker's symptoms in his report of 9 October 2002. The doctor was aware of the previous lumbar disc prolapse and that the Appellant Worker had undergone x-rays to his neck on 30 July 2002. He concluded that the injuries sustained were a fracture of the 11th rib and a soft tissue injury in the right para thoracic region. He added that the fall was responsible for those injuries. He also had a history of a complaint of neck pain but not until his examination on 8 October 2002. He makes no suggestion that the neck pain was caused by the subject fall. He states that the Appellant Worker's back symptoms, that is, the symptoms in his thoracic spine, had “regressed” by October 2002. The doctor does not suggest that the fall caused an aggravation to the Appellant Worker’s pre existing low back condition. Such a suggestion was not open to the doctor as he had no history of low back pain as a result of the fall.
In my opinion Dr Maniam’s evidence substantially undermines the opinion of Dr Kanawati that the Appellant Worker had “cervical and lumbar discopathy” as a result of the fall.
The Appellant Worker’s solicitors also submit that the Arbitrator gave insufficient weight to the reports of Dr Kanawati of 5 April 2005 and Dr Maniam of 18 August 2003. I do not accept this submission.
Dr Kanawati’s opinion of a lumbo sacral injury and neck injury cannot stand with the detailed history and findings noted by Dr Maniam in his October 2002 report.
In addition, Dr Kanawati’s whole reliability is undermined when one analyses his reports in detail. Over time his opinion has expanded to accommodate all complaints made by the Appellant Worker as being related to the fall in May 2002. For example, there is no mention of right shoulder pain until the 5 April 2004 report. Notwithstanding a gap of nearly two years from the time of the injury and the presence of previous complaints of right shoulder problems just a few months before the fall, Dr Kanawati links the right shoulder complaints to the fall without any explanation.
Further, as I have already noted Dr Kanawati’s opinion that the Appellant Worker has cervical discopathy is inconsistent with the radiological evidence.
Dr Kanawati does not provide any analysis or opinion as how the alleged lumbar discopathy is said to be related to the fall. The Appellant Worker had a pre existing disc prolapse at L5/S1. The MRI scan of 19 April 2000 notes the prolapse and adds “this is causing mild compression of the thecal sac and the left L5 nerve root”. A further lumbar MRI scan in January 2003 again notes the L5/S1 proplase and adds “there is however no central stenosis or nerve root compressive lesion”. The Appellant Worker called no evidence to say that the MRI findings suggested there had been an aggravation or exacerbation of the pre existing lumbar disc lesion.
An acceptance of Dr Kanawati’s conclusions requires an acceptance of the Appellant Worker as a witness of truth and the Arbitrator found the Appellant Worker to be a person who was not “entirely truthful” and was prepared to “present a story that will suit him in circumstances that fit the occasion” (see Reasons paragraph 40).
Dr Maniam’s report of 18 August 2003 involves a substantial departure from the findings and opinions the doctor expressed in his report of October 2002. No explanation is offered for that change in opinion. The only basis for the change can be the different history given to the doctor by the Appellant Worker. If that history is not accepted or shown to be wrong then the weight to be attached to the opinion is significantly diminished (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-744).
In addition, acceptance of the opinions of Dr Kanawati depends on there being a continuity of symptoms from the time of the fall until the date the opinions were given. That continuity is lacking in this case. While it is accepted the Appellant Worker did refer to back pain at the Bankstown Hospital on 2 June 2002 there are then several instances where the Appellant Worker makes no mention of low back pain, neck pain or shoulder symptoms when one would have expected him to if those parts had been injured in the fall as is now alleged. Those instances were when he:
1.completed the claim form;
2.provided his first and second statements;
3.was examined by Dr Maniam on 25 June 2002 and 30 July 2002, and
4.was examined by Dr Rabone on 23 July 2002 .
The Appellant Worker's third statement refers to a “continuing” back problem without identifying what is alleged to have caused the problem. This statement was given just after the Appellant Worker's period in Bankstown Hospital. The statement notes that the pain came on while the Appellant Worker was “lying in bed doing nothing”. The hospital notes have numerous complaints about back pain and a number of references to the pre existing prolapse, but there is no reference to back pain having been caused or aggravated in the May 2002 fall.
In my opinion the Arbitrator did not give insufficient weight to the opinions of Dr Maniam and Dr Kanawati.
Whilst the Arbitrator was not correct to hold that the back and neck problems did not emerge until the end of 2002, on a detailed analysis of the whole of the evidence I believe the Arbitrator was correct to reject the Appellant Worker's medical evidence and to prefer the Respondent Employer's medical case.
Bankstown Hospital Notes
Submissions are also made that the Arbitrator erred in ignoring the supplementary submissions made by the Appellant Worker's solicitors in their letter of 19 April 2004 about the relevance of the Bankstown Hospital clinical records. The Respondent Employer did not object to the notes being tendered but did object to the supplementary submissions. In circumstances where no leave had been given for further submissions to be made, I believe the Arbitrator was not in error in not referring to the supplementary submissions.
However, as I have previously noted, on review each party has had the opportunity to make written submissions on all issues and I therefore have had regard to the supplementary submissions of 19 April 2004. The point made by the Appellant Worker's solicitor is that “the clinical notes for both admissions [to Bankstown Hospital] are entirely consistent with the injuries sustained in the accident on 31 May 2002 and clearly establish a causal link between the Admissions and the accident the subject of these proceedings”.
In the course of this decision I have carefully reviewed the material from Bankstown Hospital. I agree that the entries on 2 June 2002 do refer to back pain and also establish that an x-ray was done of the lumbosacral spine. The diagnosis from the hospital was “soft tissue injury”. The notes do not establish any more than that. In the absence of a continuity of complaints following this attendance at the hospital the notes are of limited value.
The Bankstown Hospital records for the admission on 12 January 2003 are significant. But in my view they do not provide a “causal link” between this admission and the subject accident. The reason for the admission and the complaints made on admission are not consistent with the fall in May 2002. As noted above the hospital records for this admission do not make any reference to the subject fall but they do make several references to the pre existing disc prolapse.
When in hospital the Appellant Worker came under the care of a neurologist, Dr Milder. No report has been obtained from that doctor (or any neurologist) to attempt to link the Appellant Worker's symptoms in early January 2003 with his work accident.
The Arbitrator had the Bankstown Hospital records before him but his detailed Reasons do not refer to them. On my analysis of the notes and the whole of the evidence, that omission makes no difference to the result.
OTHER MATTERS
The Application in this matter was filed with the Commission on 3 November 2003. It claimed compensation for an injury on 31 May 2002 when the Appellant Worker sustained “fractured ribs” (see Part 3 ‘Injury Details’). There is no formal record of the Application having been amended to claim compensation for injury to the neck, back, right shoulder and anxiety and depression.
However the Arbitrator noted at paragraph three of his Reasons that the case “appeared to have shifted to include a claim for the back, as well as anxiety, depression and panic reactions”. All those conditions as well as the alleged injury to the Appellant Worker's neck and right shoulder were before the Arbitrator and were the subject of the Arbitration.
The Commission is not a tribunal that requires strict pleadings. In Far West Area Health Service v Colin Robert Radford [2003] NSW WCC PD 10 this issue was considered and it was noted at [23]:
“In the informal, less technical environment of the Commission it is not necessary or desirable to rely upon strict pleadings to define the issues between the parties. The Act provides a comprehensive statutory scheme for the making of claims, substantiation of claims, acceptance or rejection of liability, expedited assessment of claims, and the determination of medical issues. The dispute resolution processes in the Workers Compensation Commission, including appeals, are the final step in this scheme. When the parties reach the Commission the issues that are in dispute between them should be clear. This is not to say that some issues will not assume greater significance than others in the proceedings, or that others may be resolved after the dispute is lodged in the Commission and before the Arbitrator.”
In the present case the Arbitrator's finding was that the Appellant Worker suffered injury to his ribs in his fall on 31 May 2002. The Arbitrator did not totally reject the allegation of injury to the neck and back in the fall, but found that those injuries were not so serious as to render the Appellant Worker unfit. It follows from the acceptance of the evidence Dr Shiv that the Arbitrator did not accept that those injuries had any continuing effect beyond September 2002. Therefore, in respect of the Appellant Worker's claim for weekly compensation from 6 December 2002 to date and continuing and for a general order under section 60 for hospital and medical expenses, the Arbitrator's acceptance of Dr Shiv’s evidence means that the Appellant Worker has no entitlement to compensation beyond September 2002. I agree with this general conclusion subject to the following matters:
· the whole of the evidence raises doubts about whether there was any injury to the neck and, if there was, when the neck symptoms started. Dr Shiv’s opinion was that he did not believe the neck symptoms were substantially work related. That is not the correct test. The question is: was the employment a substantial contributing factor to the injury, not to the symptoms flowing from the injury (see Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725). This requires a finding of whether the Appellant Worker injured his neck in fall or as a consequence of the fall. The Reasons at paragraph 61 imply that finding of injury to the neck was made but its effect was only temporary. If the Arbitrator intended to find injury to the neck in the fall it is my opinion he was wrong to do so because of the lack of persuasive evidence of injury to the neck or complaints about the neck until several weeks after the fall (see paragraph’s 130 tp 160 above). The end result is the same;
· in respect of the Appellant Worker's right shoulder the Arbitrator made no formal finding but should have found (for the reasons set in the body of this decision) that there was no injury to that part of the body;
· in respect of the Appellant Worker's claim for anxiety and depression the Arbitrator made no formal findings but it follows from the findings made that that part of the claim was also rejected so far as it relates to symptoms and treatment beyond September 2002, and
· in respect of the Appellant Worker's back it was open to the Arbitrator to find, and I believe he did find, that the Appellant Worker injured his back in the fall but the effects of that injury did not continue beyond September 2002. That finding could not have been based solely on Dr Shiv’s evidence because he did not have any history of back injury in the fall and therefore did not express an opinion on whether the back symptoms were continuing, but it was well supported by the whole of the evidence in the case. In particular I refer to the analysis of the evidence set out at paragraph’s 136 to 160 above.
It follows from the above reasons that I believe the correct findings in this matter should be:
1. that the Appellant Worker suffered injury to his back and ribs in a fall in the course of his employment with the Respondent Employer on 31 May 2002;
2. as a result of injuries to his back and ribs the Appellant Worker claimed and was paid compensation until at least 6 December 2002;
3. the Appellant Worker recovered from the effects of the injury to his ribs and back by September 2002, and
4. the Appellant Worker has been paid all of his entitlements to weekly compensation and section 60 expenses up to 6 December 2002;
CONCLUSION
For the reasons set out above my opinion is that the Arbitrator has reached the correct result notwithstanding that there were errors in respect of when certain symptoms first appeared and whether the Appellant Worker suffered any injury to his neck or right shoulder in the subject fall. Those errors does not diminish the basis for the decision, namely, that the Arbitrator did not accept the Appellant Worker as a witness of truth and, because of that, he preferred the Respondent Employer's doctors and the evidence of Mr Assaly. An analysis of the evidence does not undermine the Arbitrator's conclusion, but supports it.
FORMAL ORDERS
Whilst the Arbitrator has not made any relevant error of fact, law or discretion in his reasons, the formal order made in the Certificate of Determination states “The Application registered with the Commission on 3 November 2002 is dismissed”. The does not accurately reflect the findings made and constitutes an error which must be corrected on appeal. The finding was that by September 2002 the Appellant Worker had recovered from the effects of any injury he sustained while working for the Respondent Employer on 31 May 2002 and that he had been paid compensation beyond that dated. Therefore the correct order is that there be an “Award for the Respondent”.
DECISION
The decision of the Arbitrator dated 4 May 2004 is revoked and the following order made:
“Award for the Respondent.”
COSTS
No order as to costs of the appeal.
Bill Roche
Acting Deputy President
11 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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