Yucel v AAES Pty Ltd t/as Roadtrack

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Yucel v AAES Pty Ltd t/as Roadtrack [2015] NSWWCCPD 51
APPELLANT:	Hilmi Yucel
RESPONDENT:	AAES Pty Ltd t/as Roadtrack (wrongly sued as Roadtrack)
INSURER:	Allianz Australia Workers Compensation
FILE NUMBER:	A1-6072/14
ARBITRATOR:	Ms J Snell
DATE OF ARBITRATOR’S DECISION:	20 May 2015
DATE OF APPEAL DECISION:	31 August 2015
SUBJECT MATTER OF DECISION:	Findings of fact; application of the principles in Nguyen v Cosmopolitan Homes [2008] NSWCA 246; appellate intervention on findings of fact and application of Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Gerard Malouf & Partners
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. The name of the respondent is amended to AAES Pty Ltd t/as Roadtrack. 2. The Arbitrator’s Certificate of Determination dated 20 May 2015 is confirmed.

INTRODUCTION

This appeal concerns a challenge to the Arbitrator’s factual finding that the appellant failed to satisfy the Commission, on the balance of probabilities, that he was injured in the circumstances alleged. For the reasons explained below, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.

BACKGROUND

Mr Hilmi Yucel, the appellant, was a mechanic. He worked as a mechanic for over ten years until he ceased work in December 2003. After obtaining his tradesman certificate as a motor mechanic in 1988 or 1989 Mr Yucel worked with Tony Packard Holden, for a period of four to six months, following which he set up his own business under the name of “Hymarts Mobile Mechanical Workshop”.
In February 2003, Mr Yucel was allegedly approached by AAES Pty Ltd t/as Roadtrack, the respondent, about servicing trucks for its transport business. Shortly after, Mr Yucel commenced servicing trucks for the respondent. The nature of that work relationship is not clear and is discussed below.
Mr Yucel’s claim for compensation relates to two incidents which allegedly occurred while he was servicing the respondent’s trucks, on or about 15 or 16 August 2003 and 26 September 2003. The occurrence and mechanism of injury is subject to dispute and is also discussed below.
On 21 January 2010, Mr Yucel completed a WorkCover “Uninsured Liabilities Claim Form”, with the assistance of his then solicitor Mr David Burston. Attached to the form is an annexure titled “Particulars of your Injury” in which the date of the first injury to the back is identified as having occurred at 8.10 pm on 15 August 2003 and the second “[b]etween 6 and 7pm” on “[a]pproximately 5 October 2003 [sic]”. (The period of time elapsed between the alleged injuries and completing this form is not explained and is not relevant to the issue in dispute on appeal.)
It appears that, following the completion of the uninsured liabilities claim form, there was some correspondence between the respondent’s insurer, Allianz Australia Workers’ Compensation (NSW) Ltd (Allianz), and Mr Yucel’s then legal representative, including a claim for compensation on 28 January 2010. However, the content of that correspondence is unknown. While it is unclear, at some point after completing that form, Mr Burston ceased to act for Mr Yucel and he instructed his current legal representatives, Gerard Malouf & Partners.
On 8 August 2011, Mr Yucel completed a workers compensation permanent impairment claim form, claiming compensation for 19 per cent permanent impairment for an injury to the cervical spine, lumbar spine and upper digestive tract and $35,000 for pain and suffering. The date of injury is there identified as 16 August 2003, 26 September 2003 and nature and conditions.
On 2 July 2013, Allianz issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability. Allianz disputed the occurrence of injury and put in issue notice of claim and notice of injury, claiming that the alleged injury did not result in serious and permanent disablement (s 261 of the 1998 Act). It asserted that there “is no contemporaneous record of any injury prior to the making of your claim on 28 January 2010” (emphasis included in the original).
On 19 February 2014, Mr Yucel’s legal representatives, Gerard Malouf and Partners, made a claim for compensation for injuries allegedly sustained during the course of Mr Yucel’s employment with the respondent on 15 August 2003 and 26 September 2003. In particular, a claim was made for 15 per cent whole person impairment, $22,500 for pain and suffering and weekly compensation from 31 December 2012 to date and continuing.
On 7 March 2014, Allianz issued a further s 74 notice declining liability for Mr Yucel’s permanent impairment claim for 15 per cent whole person impairment for injury alleged to the lumbar spine and upper digestive tract. Relying on the s 74 notice of 2 July 2013, Allianz advised that it remained of the opinion that Mr Yucel had not sustained a compensable injury to his spine within the meaning of ss 4 and 9A of the Workers Compensation Act 1987.
On 20 March 2014, Mr Yucel’s legal representatives amended the claim to add a claim for weekly compensation from 30 March 2003 to date and continuing. On 30 September 2014, Allianz issued a letter to Mr Yucel’s legal representatives referring to the amended claim for weekly benefits and maintaining its denial of liability as previously notified.
On 12 November 2014, Mr Yucel’s legal representatives filed an Application to Resolve a Dispute in the Commission (the Application). Mr Yucel sought weekly payments of compensation from 30 March 2003 to date and continuing, lump sum compensation for 15 per cent whole person impairment and s 67 benefits for injury to the neck, back and gastroenterological problems. The date of injury is identified as 15 August 2003 and the description of injury is as follows:
“On 15 August 2003, [Mr Yucel] was servicing a vehicle which required him to handle a dual wheel axle and remove same on his own. He was required to remove the dual wheel axle and the hub of the vehicle where both parts had a combined weight of 200 kilograms. As he was doing this, [Mr Yucel] sustained injury to his neck and back with subsequent gastroenterological problems.”
On 2 December 2014, the respondent’s legal representatives filed a Reply to the Application relying upon the s 74 notices.
On 27 January 2015, Mr Yucel’s legal representatives made an application to amend the Application so that the date of injury be “15 August 2003 and 26 September 2003” and the period of weekly compensation in dispute be “30 March 2004” instead of 30 March 2003 (emphasis in original). The amendment was allowed.
The parties attended conciliation and arbitration proceedings on 10 February 2015 and 22 April 2015, following which the Arbitrator reserved her decision. Unless otherwise stated, the transcript references in this decision are to the transcript of 22 April 2015.
On 20 May 2015, the Arbitrator issued a Certificate of Determination and Statement of Reasons in favour of the respondent. Essentially the Arbitrator was not satisfied that Mr Yucel had discharged the onus of establishing that he was injured in the circumstances alleged.

PRELIMINARY MATTERS

The respondent was wrongly sued in these proceedings as “Roadtrack”. Following an inquiry from the Commission, on 14 August 2015, Mr Yucel’s legal representatives, with the consent of the respondent, sought to amend the Application–Appeal Against Decision of Arbitrator to correctly describe the respondent by deleting “Roadtrack” and substituting “AAES Pty Ltd t/as Roadtrack” in its place. I so order.
Before proceeding to deal with an appeal, the Commission must determine whether the Application meets the requirements of s 352 of the 1998 Act. There is no dispute that the threshold requirements as to quantum and time found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

ON THE PAPERS

Mr Yucel submits that the appeal cannot be determined on the papers alone, because the Arbitrator did not address his residual earning capacity and whether the claim for compensation was made within time. However, the respondent submits that the appeal can be determined ‘on the papers’.
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties, 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.

EVIDENCE

Mr Yucel

In evidence are three statements by Mr Yucel; a statement dated 26 September 2013, an amended statement dated 16 December 2014 (amended statement) and a supplementary statement dated 13 April 2015 (supplementary statement). Unless specified, the following evidence relates to Mr Yucel’s initial statement dated 26 September 2013.
Mr Yucel provides a history of being involved in two accidents prior to August 2003. He states that in 1982 he had a truck accident, from which he “only suffered scratches and bruises”. He also states that in 1986 he was involved in a car accident in which he “suffered back and neck injuries”. About six to 12 months after that accident he returned to work part-time as a mechanic. Relevantly, Mr Yucel states that in 2003 he was “still experiencing occasional aches and pains from the car accident that [he] suffered in or about 1986”.
Mr Yucel states that in February 2003, he was approached by the respondent about servicing trucks. He was reluctant to do this because his workplace environment, which at that time was his home, was not suitable to service trucks but he eventually agreed. He commenced work in February 2003.
Mr Yucel specifically claims that whilst working for the respondent he was working solely for them and performing no work elsewhere. The respondent provided all the materials, tools, and later the location, to carry out the mechanical work for the company. At some point prior to August 2003, the respondent provided Mr Yucel with a “shed space with appropriate workplace environment” to service the trucks. However, in his amended statement, Mr Yucel also states that after his employment with Tony Packard Holden he “set up” his own business and has “been self employed ever since”.
On or about 15 or 16 August 2003, Mr Yucel was repairing the brakes on a truck for the respondent. When servicing the truck, he removed the dual wheel, which weighed approximately 140 – 160 kilograms, and the wheel slid out and he fell backwards. The dual wheel collapsed onto his legs. He states that the “main problem was to my back though I did also experience problems to my neck”. The next day he could not get up due to the pain in his back.
On 16 August 2003, Mr Yucel went to his treating general practitioner, Dr A Emin, at the Auburn Road Medical Centre. He underwent a CT scan in or about August. He went to the “chiropractor a couple of times and rested for two weeks”. In his amended statement, Mr Yucel also states that following this incident he “had almost 2 weeks off work, having returned on 29 August 2003”.
Mr Yucel claims that Mr Erlan Sadik, also known as “Alex”, the respondent’s director, asked him “several times in front of [his] family whether [he] wanted to go on compensation”. Mr Yucel claims that he refused because he thought that his back would get better. After this Mr Sadik came and saw Mr Yucel and informed him that a couple of trucks needed work done. He agreed that he would start the next day.
In October, Mr Yucel was working with Mr Sadik on the engine head of an international truck, which weighed 70–80 kilograms and had sharp edges. He had to move it to put some parts on it. During that move the table it was resting on “fell and the head started sliding down” towards his legs. He grabbed hold of the head and held it on his legs until Mr Sadik was able to help him move it. Mr Yucel sustained “scratches and bruises” on his leg and knees from where the head fell. Mr Yucel claims that following this incident his back pain “got significantly worse”. He took leave in December 2003 and did not work again.
In his amended statement, Mr Yucel claims that the above incident occurred in September 2003. He claims that after this incident his back pain increased but he seemed to recover quite quickly after that, resuming work with little time off. He specifically states that the “pain was no worse than what it was prior to the incident of 26 September 2003”. He further states that after this incident he was under pressure from Mr Sadik to get through more trucks for service. When Mr Sadik approached him about that he explained to him that he “was concerned that [he] would seriously injure [himself] considering what had has [sic] happened in the last few months”. Nevertheless, he agreed that he would start servicing. He finished working for the respondent on or about December 2003.
During proceedings before the Arbitrator, Mr Yucel gave oral evidence. He could not recall when he first commenced employment with the respondent; he stated: “I can’t remember, it’s past a long way, it’s February 2003 to December, I think so, yes” (T9.3). However, he also said that he started work at his own home in his own business, and then the arrangement changed (T10). He said that the arrangement changed in April or May when the respondent provided him with a “workshop”, but he couldn’t remember exactly when (T11, 18.9, 28.9).
In cross-examination, Mr Yucel recalled the mechanism of injury on 15 August 2003. He said (at T29.23–30.27):
“Q. Okay. And you replaced the brake lining. Suddenly the wheel slid out and you fell backwards?
A. That's correct, when I slide it out.

Q. Okay. When you fell backwards, what happened?
A. When I slide it out, the ground was uneven, soon as it wheel comes straight on me between two legs and went just like that.

Q. So are you saying that you fell on your back?
A. Yes.

Q. On the uneven ground?
A. That's correct.

Q. And do you say that the wheel fell on top of you?
A. Sorry?

Q. Did the wheel fall on top of you?
A. No, it didn't because of two really - from just come straight along forward to me.
Q. Okay, all right. And then you say, you said that dual wheels had collapsed on your legs?
A. That's right, collapsed just like - just like when you slide it out, it slips out and you holding your leg like that, just come straight, hit you and then you fell back.
Q. So you say 160 or 170 - sorry, 140-160 kilo part of a dual wheel truck---
A. That's correct.
Q. ---fell on your legs? Is that what you say happened?
A. Not fell on my legs, I pulled out, come between my legs and pushed me backward, like that.
Q. Right, okay.

A. That's what I meant, I mean there.”

When cross-examined about how he felt following that injury, Mr Yucel agreed that he could not get out of bed the following day and that his wife drove him to his doctor (T31.31). He agreed that he was not able to work the day after the accident (T34.19). However, when asked to explain why his run sheets recorded that he worked for nine hours the day after the accident Mr Yucel said (T34.28–37.9):
“A. What happened is that sometimes he was coming to me, please just do something to get going the truck. Don't have to meet the work heavily, sometimes you adjust a few things and get going that truck. He had 16 trucks, most of them - most of them, old trucks always needs attention, always need a bit of work on it.
Q. So you say you did in fact work for nine hours the day after your had your injury, is that correct?
A. I must have that day - yes, I must have went there and do minor - minor work and get started the trucks and what happened with it, one truck he was telling me, he called me just---
Q. I'll stop you there, Mr Yucel, because you're here to answer questions, so---
A. Yes, that's what I'm coming to the question too.

Q. Okay.
A. I'm coming to the question.

Q. Okay.
A. What he was saying, ‘If one trucks broke down, I will lose all my contract, please do something about it’. Always I continue to work with it, even in [sic] I'm very badly hurt. I did time to time work for him.

Q. So are you now changing your story?
A. No, I'm not changing the story.

Q. You are changing your story, Mr Yucel, because you told us before that you did not go to work the day after the injury. And the run sheet says you did.
A. No, I didn't go. He came to me, I remember once, I don't know which date, that date or some other date, he came to me. I remember that. But I'm not sure about the date. ‘Please just have a look at the truck. That truck has to go.’ Maybe minor things.

Q. So the conversation you're talking about now could have happened on the 16th, or it could have happened on another day, is that what you're saying?
A. What could have happened?

Q. You're telling us about a conversation that you say happened---
A. No, no, no, on a truck, on 16. I was - while I was in the bed, even he came two or three times for me. I remember - I can't remember exactly which is which. Either he asked me to, ‘Do you want to ..[not transcribable 0.52.58]..’, I said ‘No, I do not, I didn't want it.’ I said, I'll get back to work.

Q. So that’s different to what you were saying earlier and that you said earlier that you didn't go to work the day after the injury, you only went to the doctor, your wife drove you and drove you home?
A. Yes, that's right.

Q. But it's not right is it? You actually did nine hours---
A. It is right.

Q. ---of work.
A. I'm sorry. It is right. You see that 12 o’clock, 12 pm, went to the doctor in the morning, he must have turned up to me. Because one truck broke down, one started it. I'll help you out, he used to be helping me out.

Q. You said, he must have.
A. Yes.
Q. Can you remember this or are you thinking---
A. Yes, no, he did come.

Q. ---that this might have happened?
A. The type of things that are here, might have happened that.

Q. That might have happened?
A. Yes.”

In addition, Mr Yucel stated that he had a clear recollection of the events surrounding his alleged injuries, although he had no recall of other matters including the name of some of his other customers at the time he worked for the respondent (T58.33–59.19).

Mr Sadik

In evidence is a statement of Mr Sadik, dated 9 February 2015. Mr Sadik was a director of the respondent. He states that “[a]t no time was Mr Yucel an employee” of the respondent. In this statement, Mr Sadik does not specifically refer to the alleged injuries. However, in a further statement, dated 16 April 2015, Mr Sadik said that he did not “recall Mr Yucel advising [him] that he had sustained an injury to his back whilst working on one of the Roadtrackvehicles [sic]” and that he did not ask Mr Yucel if he wanted to go on compensation.
Mr Sadik also gave oral evidence during proceedings before the Arbitrator. During cross-examination, when asked whether he remembered helping Mr Yucel on 26 September 2003, Mr Sadik said (at T108.31): “I don’t recall any dates, mate, no. I don’t recall any dates”. When asked about whether he helped Mr Yucel repair an engine head and the alleged circumstances of 26 September 2003, Mr Sadik again said that he did not recall. When asked whether he recalled asking at a later time, soon after 26 September 2003, whether Mr Yucel wished to make a compensation claim, Mr Sadik said (T110.7): “No, I do not recall that at all. Look, a conversation like that taken place officially or not, no. So no.”.

When it was suggested that Mr Sadik was aware that Mr Yucel had injured himself while he was working on the respondent’s trucks, Mr Sadik responded (T114.17):
“A. I do not recall it and I don't know, but if he had, why did he take this long to do the claim? I mean, fair enough that he could say as a friend this and as a friend that, but I could say the same thing, all right. So if he was seriously injured, why was he still doing other things after me? Or if he wasn't doing anything after me, why did he wait this long to claim?”

Drivers’ Weekly Run Sheet

In evidence are several documents titled “Drivers Weekly Run Sheet”. These documents represent Mr Yucel’s weekly timesheets and are available for the relevant period from 13 August 2003. The run sheets indicate that Mr Yucel worked on 15 August 2003 from 7.30 pm to 12.30 am the next morning and also on 16 August 2003 from midday to 9 pm. He did not work again until 29 August 2003, that being, almost two weeks later. The run sheets also indicate that Mr Yucel worked from 6 pm to 4 am on 26/27 September 2003 and continued to work consistently until 9 October 2003.

CLINICAL NOTES & RADIOLOGICAL REPORTS

In evidence are clinical notes from the Auburn Medical Centre for the period 10 August 2001 to 28 April 2010. There is no entry for 15, 16 August 2003 or 26 September 2003.
However, the evidence from Dr Nicholas Harvey, a treating general practitioner from the Auburn Road Medical Centre, suggests that Mr Yucel attended on Dr Emin on 16 August 2003. At the request of Mr Yucel’s former solicitors, Dr Harvey provided a report, dated 11 March 2007, in which he recorded that Mr Yucel attended on Dr Emin on 16 August 2003 for “stated upper & lower back pain, radiating to left leg”. No further details are provided in respect of the cause of injury or pain.
Dr Harvey provided a report to Allianz on 20 May 2010, in which he recorded:
“[Mr Yucel’s] first consultation here after 15/8/2003 occurred on 03/05/2004, stating muscular pain after physical work last week. There is no mention in this [sic] notes of any injury on 15/08/2003. It is impossible to state that an event on 15/08/2003 caused his current condition. He stated to another doctor that his back pain occurred in his car mechanic duties in 2003 and 2004.
There is no mention in his notes of a MVA on 14/03/1986 so no answer can be given.”
Further, in a chronology attached to the Application there appears an entry corresponding with the date 16 August 2003, which states: “Consultation Dr Emin – upper and lower back pain, radiate to left leg, tender on R, referred for CT head, C & R” and “? Back pain”. However, there is no contemporaneous evidence supporting this assertion.
Also in evidence are several radiological investigation reports regarding Mr Yucel’s spine. In August 2003, Mr Yucel underwent a CT scan of his lumbosacral spine and an x-ray of his chest. In a report to Dr Emin, dated 19 August 2003, Dr Michael Reeves notes posterior bulging and disc protrusion at L3/4, L4/5 and L5/S1. An earlier scan of the lumbar spine in September 2001 showed a normal study, no disc protrusion.

EXPERT MEDICAL EVIDENCE

Dr Wallace

On 23 June 2009, Mr Yucel attended on Dr Raymond F Wallace, orthopaedic surgeon, at the request of his then solicitor. Mr Wallace took a history that on 16 August 2003, Mr Yucel sustained an initial injury when he “had to remove a dual wheel with its brakes drums attached in order to replace the brake lining. The whole unit weighed some 200 kilos. He managed to move the two truck wheels by himself but noted the onset of lumbar spinal pain”.
The following day, Mr Yucel was unable to get out of bed due to lumbar spinal pain. He was reviewed by his treating practitioner and referred for a CT examination of his lumbosacral spine which was carried out on 19 August 2003, showing evidence of disc protrusions involving the lower three lumbar levels. Mr Yucel was prescribed analgesic medication and advised to rest over a period of two weeks. Dr Wallace records that Mr Yucel “was put off work for two weeks and then returned to work at his pre-injury duties”.
Dr Wallace records that Mr Yucel suffered another injury to his lumbar spine at work on 26 September 2003. At that time, Mr Yucel was working on an engine head, weighing approximately 60 kilograms, which had been placed on a table in a workshop using a block and tackle. When Mr Yucel went to move the head to one side the table collapsed and the head began to slide towards his legs. He had to prevent the head from falling by resting it on his thighs until he received help.
At that time Mr Yucel noted aggravation of his lumbar spinal pain. He was “unable to return to work as a Motor Mechanic” and has remained off work since that time. Mr Yucel’s treating practitioner prescribed him analgesic medication and referred him to Dr Manohar who ordered an MRI investigation of his lumbosacral spine. The MRI “showed evidence of disc desiccation at the lower three lumbar levels”.
Dr Wallace records Mr Yucel’s present complaints, that being, persisting pain at his lumbar spine radiating to the posterior aspects of his lower limbs to the level of the heels bilaterally, worse on the right side. Paraesthesia or numbness at Mr Yucel’s lower limbs is recorded, together with complaint of weakness at the lower limbs and stiffness at the lumbar spine.
In his report, Dr Wallace notes a history of neck and back injuries as a result of a non-work-related motor vehicle accident in February 1986. He also refers to several radiological investigation reports relating to Mr Yucel’s lumbar spine. Following an analysis of that evidence and Mr Yucel’s medical history, Dr Wallace finds that Mr Yucel suffered injuries to his lumbar spine in the course of his duties at work as a mechanic in August and September 2003. Dr Wallace concludes that Mr Yucel’s employment with “Hymarts Mobile Mechanic remains a substantial contributing factor to [Mr Yucel’s] lumbar spine condition”.
In a further report dated 13 August 2009, Dr Wallace found Mr Yucel’s lumbar spinal condition, in relation to the work injuries of 2003, to have stabilised. He assessed Mr Yucel to have a seven per cent whole person impairment of his lumbar spine, factoring in a deduction of .8 per cent due to the pre-existing degenerative disc disease arising from the motor-vehicle incident in 1986.

Dr Guirgis

On 5 May 2010, Dr Medhat Guirgis, consultant orthopaedic surgeon, provided Dr Emin with a consultation report of clinical findings and recommendations. In that report, Dr Guirgis provided the following history:
“Date of Injury: 16-8-2003 in the course of his duties as a motor mechanic – He was removing a dual truck wheel with its drums weighing some 200Kg on his own when he developed pain in his lower back. He was off work for 2 weeks and then resumed his duties. On 26-9-2003 they repaired a 70Kg heavy head that was located on an improperly set table and the table collapsed and he had to grab it otherwise it would have crushed his leg and foot. He had been off work since.” (emphasis included in original)
Dr Guirgis diagnosed Mr Yucel with post-traumatic mechanical derangement of the cervical area, thoracic area and lumbar area of the spine.

Dr Bodel

On 3 November 2010, Mr Yucel attended on Dr James G Bodel, orthopaedic surgeon, at the request of his former solicitor. In a report, also dated 3 November 2010, Dr Bodel records that on 16 August 2003 Mr Yucel was servicing a vehicle “that had to go out that day”. He had to service a dual wheel axle and he had to remove this on his own, the combination of parts weighed in excess of 200 kilograms. He felt sudden pain in the lower part of his back, which he tried to ignore but could not manage. He attended on his treating practitioner, was given medication and sent for radiological investigations. Mr Yucel was “put off work for a period of a week or two”. He also records that the owner of the trucks implored Mr Yucel to return to work and he tried to do so having improved minimally.
A little later in the year, Mr Yucel had a second injury. He was at that time servicing the “head” of one of the engines in the trucks which weighed between 80 and 90 kilograms and which was sitting on a table at the time. The table collapsed and as a result Mr Yucel tried to save it from falling but did not manage to do so and suffered cuts on his legs. He went back to his treating practitioner and was again off work. He tried to return to work but he could not cope and by December 2003 he had to cease work altogether.
Dr Bodel also records a history of an injury to the neck and back in a motor vehicle accident in February 1986. He records Mr Yucel was “relatively asymptomatic however at the time of the injuries in late 2003”.
Following a review of several radiological investigations of the spine and Mr Yucel’s medical history, Dr Bodel found that Mr Yucel suffered a disc rupture at the lumbosacral junction with right sided sciatica as a consequence of the original injury on 16 August 2003. He also found that Mr Yucel suffered a soft tissue aggravation of underlying degenerative change in that region and also in the cervical spine without clinical signs of radiculopathy in the upper limbs. He considered there to be clear clinical evidence of pre-existing degenerative change in Mr Yucel’s cervical spine and assessed Mr Yucel with a 15 per cent whole person impairment.
Dr Bodel provided two further reports, dated 13 September 2013 and 29 January 2014 in which he records a similar history to his report of 3 November 2010. In his report of 29 January 2014, Dr Bodel records that the second event in October 2003 was a minor event which caused a temporary aggravation to the previous event, of 15 August 2003. He therefore found that the full level of whole person impairment for the injury of 15 August 2003 to be 11 per cent.

THE ARBITRATOR’S FINDINGS AND REASONS

Having heard Mr Yucel give evidence, the Arbitrator formed the view that he was not a reliable witness. The Arbitrator identified a number of inconsistencies in Mr Yucel’s evidence.
First, Mr Yucel stated that he had a clear recollection of the events surrounding his alleged injuries, yet he claimed that due to the passage of time he was unable to recall other matters around the time of the alleged incidents, including the name of any of his customers, other than Mr Sadik (T58–59).
Second, Mr Yucel shifted ground on the question of whether he was an employee of the respondent or whether he was operating his own business working from his home (T9–10). In his statement Mr Yucel claimed that he was self-employed, however in his oral evidence he claimed that he became an employee of the respondent at about the time Mr Sadik arranged to the workshop to undertake repairs on the respondent’s vehicles.
Third, in cross examination Mr Yucel was quite adamant that the day after the alleged injury on 15 August 2003, he was in so much pain that he could not get out of bed and had to be driven to see his doctor by his wife (T31.30). Whereas, the invoices he submitted called the “run sheet” showed that Mr Yucel worked nine hours on the day following the alleged injury.
When Mr Yucel was pressed on that issue he conceded that he had in fact worked on the day after the accident, claiming that he had been to see the doctor in the morning but stating that Mr Sadik came to his home and prevailed upon him to work on a truck that had broken down. The Arbitrator concluded that from that exchange that Mr Yucel was making up his answers as he went along without having any real recall as to what happened. The Arbitrator considered that the answers given by Mr Yucel were contrived to explain inconsistencies in the evidence.
Mr Yucel gave inconsistent evidence concerning the mechanism of injury on 15 August 2003. In his statement he stated that the dual wheels of the truck collapsed onto his legs, yet in his in oral evidence, he said that the wheels fell between his legs causing him to fall backwards.
Mr Yucel also gave inconsistent evidence about the alleged incident on 26 September 2003. In his initial statement he suggests that the incident occurred in October 2003 yet in his amended statement he alleges the incident took place on 26 September 2003. Whilst this may be just a confusion in relation to dates, the Arbitrator inferred that it would be likely that Mr Yucel would recall if the accident happened on the day he alleged that he and Mr Sadik collected the engine head after it had been repaired.
Mr Yucel’s “run sheets” for 26 September 2003 state that he worked from 6.00 pm to 4.00 am. The Arbitrator found it “stretches the bounds of credulity” that Mr Yucel could have been injured on that day but was yet capable of working until 4.00 am the following morning. His “run sheets” indicate that he worked consistently after the alleged incident until 9 October 2003. The Arbitrator found that the pattern of work was inconsistent with an alleged aggravation of his back condition arising from the incident on 26 September 2003.
The only written notice of injury is an uninsured liabilities claim form completed on 21 January 2010 by Mr Yucel’s then solicitor, Mr Burston. It alleged injuries to the back on 15 August 2003 and approximately 5 October 2003. The Arbitrator noted several inconsistencies with the claim form. First, it identified the date of injury as 5 October 2003 whereas, the pleaded date of injury is 29 September 2003. Second, there was no mention of injury to the neck. Third, Mr Yucel stated that he “serviced miscellaneous clients” contrary to his oral evidence.
Having formed the impression that Mr Yucel was an unreliable witness, the Arbitrator indicated that she intended to treat his evidence “with caution”, preferring not to accept his evidence where there was contemporaneous evidence to the contrary.
Mr Sadik denied, in his statements and his oral evidence, any knowledge of Mr Yucel sustaining any injuries whilst working on trucks owned by him.
The Arbitrator referred to a report from Dr Harvey, dated 11 March 2007, which noted a consultation that took place on 16 August 2003 with Mr Yucel and Dr Emin. The Arbitrator noted that Dr Harvey’s report made no reference to the alleged injuries or the cause of the symptoms Mr Yucel experienced at that time. The Arbitrator further noted that whilst Dr Emin’s clinical notes are in evidence, the entries to which Dr Harvey referred; are not in evidence. The Arbitrator described this as “disturbing”.
The Arbitrator then described in some detail the history of treatment and investigations following the alleged accident. Relevantly the Arbitrator noted that there was no reference to any injuries in 2003 in the history given to Drs Manohar, Dowla and Stephenson.
The Arbitrator noted that Dr Guirgis’s report of 5 May 2010 did make reference to the two alleged injuries and the doctor’s diagnosis of post traumatic mechanical derangement of the cervical, thoracic and lumbar spines. The Arbitrator pointed out that Dr Guirgis’s report is the only treating medical report making any reference to either injury. She also noted that the report was written some seven years after the alleged events and could not be treated as a contemporaneous record.
The Arbitrator concluded (at [51]):
“In light of all the inconsistencies discussed below regarding the work undertaken by [Mr Yucel] in 2003 I find I cannot place any weight on Dr Guirgis’[s] opinion in relation to causation. [In] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR; (1994) NSWCCR 796 (Kooragang) Kirby P (as he then was) found ‘what is required is a commonsense evaluation of the causal chain.’ I find that applying commonsense there are so many inconsistencies and omissions in the evidence that I cannot be satisfied the causal chain is as Dr Guirgis opines.”
The Arbitrator treated Dr Wallace’s report with caution. Dr Wallace assumed, on Mr Yucel’s history, that after the initial incident on 16 August 2003 Mr Yucel was off work for two weeks. As previously indicated, that does not accord with the objective evidence or Mr Yucel’s evidence before the Commission.
Dr Wallace also relied on the history that since September 2003 Mr Yucel has been unable to work as a motor mechanic. As the Arbitrator noted (at [54]), Mr Yucel’s bank records show substantial payments to him throughout the period between October 2003 and January 2004. Also relevant to Mr Yucel’s credit was the fact that Mr Yucel told Dr Wallace that he was a self-employed motor mechanic making no mention of the fact that he had been employed by the respondent as he subsequently claimed. Furthermore, Dr Wallace had no history of any injury to the neck in the two alleged incidents in 2003. For those reasons, the Arbitrator placed no weight on Dr Wallace’s opinion.
Dealing with Dr Bodel’s report, the Arbitrator again noted that, contrary to his evidence before the Commission, Mr Yucel indicated to Dr Bodel that he is a self-employed person, not an employee, who undertook specialised work for a particular company servicing their fleet, work that he did from home. The Arbitrator again noted that Mr Yucel failed to tell Dr Bodel that he worked for nine hours on the day after his first alleged injury. Furthermore, Dr Bodel did not include a history of neck injury in his summary of injures.
Dr Bodel reported that Mr Yucel developed increasing neck and back pain and right sided sciatica, however the Arbitrator found that Dr Bodel had not given any reasons why the alleged neck pain would be related to the two alleged incidents. The Arbitrator rejected Dr Bodel’s opinion in relation to the cause of the lumbar condition. This was because of an incomplete history including the fact that Mr Yucel was able to work for nine hours on the day after the alleged first injury and that he continued to work on the day of and after the second injury.
The Arbitrator concluded (at [64]) that even accepting the comments in Dr Harvey’s report of 11 March 2007 as an accurate reflection of the history that was taken by Dr Emin on 16 August 2003, there is no history recorded in Dr Emin’s notes of either of the alleged work incidents. The Arbitrator concluded that even though Mr Yucel may have attended the doctor for back pain on those occasions, he has not satisfied the onus of proving that he sustained a work related injury in the circumstances alleged, particularly having regard to the pre-existing history of a back condition from the motor vehicle accident in 1986.
For these reasons, the Arbitrator was not satisfied that Mr Yucel discharged the onus of proof that he sustained any lumbar symptoms arising from the alleged incidents on 16 [sic, 15] August 2003 and/or 26 September 2003 (Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen)).
The Arbitrator entered an award for the respondent.

GROUNDS OF APPEAL

It is alleged that the Arbitrator erred in:
(a)     not finding injury to the cervical and lumbar spine on 15 August 2003 and 26 September 2003;
(b)     applying the test in Nguyen “which is applicable to proof of facts from circumstantial evidence”;
(c)     not considering the whole of the evidence in relation to employment when considering the credibility of the applicant, and
(d)     “concluding that Dr Harvey’s note of ‘Upper and lower back pain’ as set out in his clinical notes of 16 August 2003 back pain could have been a note about non-descript back pain and not the pain suffered in an accident”.

SUBMISSIONS AND DISCUSSION

Ground one

Mr Yucel’s solicitor, Mr Cham, submitted that the alleged injury sustained in the lifting incident on 15 August 2003 was supported by Mr Yucel’s evidence and Dr Harvey’s clinical notes. He submitted that the Arbitrator erred by placing weight upon the fact that Mr Yucel worked for nine hours on the day after the accident, because the type of work was not described and “could have been light work like delivering or picking up truck parts, or light service work”. Mr Cham further submitted that that evidence was not determinative of the fact that the alleged incident did not occur.

Mr Cham also submitted that the absence of an accurate history could not go to the question of whether the accident occurred but could only be relevant to the question of incapacity. He submitted that the Arbitrator erred by failing to take into consideration the length of time since the alleged incidents took place and that therefore there are “bound to be inconsistencies in any testimony after such a period of time”.
I reject Mr Cham’s submissions.
Dr Emin’s clinical notes evidence a long history of treatment extending back to August 2001. However, for reasons which have not been explained, they do not include any notes for the consultation that is said to have taken place on 16 August 2003. For the details of that consultation we are dependent upon Dr Harvey’s reports which refer to the alleged entry. Accepting that Mr Yucel saw Dr Emin on 16 August 2003, and reported symptoms in the terms Dr Harvey reported, this does not support Mr Yucel’s case because there is no history of the alleged injury, said to have taken place the previous day, recorded in the notes.
It was open to the Arbitrator to conclude that Mr Yucel’s credit had been damaged by the revelation that he had been able to work for a substantial number of hours on the day following the alleged injury. That evidence was at odds with his earlier statement to the contrary.
Mr Yucel’s evidence when challenged about the inconsistency was unconvincing. He attempted to explain (at T35.31) that the work he did on 16 August might only have been minor in nature, but it was apparent to the Arbitrator that Mr Yucel had no real recall of what work he was doing. This led her to conclude that Mr Yucel was simply making up his answers as he went along.
I do not accept the submission that the Arbitrator ignored the passage of time between the alleged incidents and the hearing. Having determined that Mr Yucel’s evidence was unreliable, the Arbitrator considered at length any contemporaneous evidence, or indeed any evidence, that might corroborate Mr Yucel’s claims. Not only did this fail to reveal evidence corroborative of his allegations, it revealed a considerable body of evidence to the contrary, including:
(a)     the claim form made no reference to neck injuries and wrongly identified the date of the second alleged injury;
(b)     Mr Yucel’s admission that he was still symptomatic, before the alleged injuries from the effects of the car accident in 1986;
(c)     Mr Yucel submitted to a CT scan of the lumbar spine that pre-dated the alleged injury by two years;
(d)     Dr Harvey’s report made no reference to the alleged events;
(e)     no treating doctor made reference to the alleged events until Mr Yucel saw Dr Guirgis in 2010, and
(f)      Mr Sadik denied any knowledge of the alleged injuries despite working closely with Mr Yucel.
The obligation of appellate courts dealing with findings of fact by a trial judge, or in this case the Arbitrator, based on the credibility of a witness was considered in Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 (Devries) (at 479) per Brennan, Gaudron and McHugh JJ.
“…a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his (or her) advantage or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or was ‘glaringly improbable’” (footnotes omitted)
The only two objective facts which could militate against the findings made by the Arbitrator, or indicate that she failed to use or palpably misused her advantage, were the fact that Mr Yucel saw his general practitioner Dr Emin on 16 August 2003, and second, that he submitted to a CT scan of the lumbosacral spine on 19 August 2003, that is within a few days of the alleged incident.
The Arbitrator clearly weighed those facts with all the evidence before reaching her conclusion. On all of the evidence it was open to the Arbitrator to find that the inconsistencies in the evidence were sufficient to raise real doubt that the alleged injuries occurred. I therefore do not accept that error of the kind discussed in Devries has been made out.
The submission that the absence of an accurate history could not go to the question of whether the accident occurred but could only be relevant to the question of incapacity is misconceived. The absence of any history of the alleged events in any treating doctors’ records for some seven years after the alleged events was particularly relevant to a determination of whether Mr Yucel’s claims of having been injured in the circumstances alleged were to be accepted.
For these reasons ground one fails.

Ground two

In support of the allegation that the Arbitrator applied the wrong test in determining whether Mr Yucel had satisfied the onus of proof, Mr Cham made the following submission:
“The case of Nguyen is one that follows on from cases of Brigginshaw v Brigginshaw [sic]. These cases are useful in access [sic] the findings of fact based on circumstantial evidence, particularly when questions of fraud are involved. They do not change the normal burden of proof ie the balance of probabilities. This case should be decided on the normal civil burden of proof. The correct question in that regard is ‘is it more probable than not that the Applicant injured himself at work on 16 August 2003’.”
I reject Mr Cham’s submission. The Arbitrator said at [18]:
“It also needs to be borne in mind that the applicant has the onus of proof. The relevant principles of onus of proof were discussed by the Court of Appeal in Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 (Nguyen) where McDougall J (McColl and Bell JJA agreeing) said at [44]:
‘A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.’”
I am satisfied that the Arbitrator applied the correct civil standard. The extract relied upon by the Arbitrator demonstrates clearly that she determined the case on the balance of probabilities. As I have indicated, the Arbitrator carefully analysed Mr Yucel’s evidence and any contemporaneous material in the histories contained in the various doctors’ reports. She concluded, based on the test in Nguyen, that Mr Yucel had not satisfied the onus. The Arbitrator correctly identified the relevant test and applied it to the facts as found. No error has been demonstrated.
For these reasons ground two fails.

Ground three

Mr Cham submits that the Arbitrator erred when assessing the credit of Mr Yucel by not considering the whole of the evidence. He submitted:
“It is not enough to reject [Mr Yucel] on the basis of some inconsistencies concerning aspects of injury when there is evidence of employment that is also subject to factual conflict between parties.”
I reject this submission. Establishing that Mr Yucel suffered an injury within the meaning of s 4 was fundamental to succeeding in his application. If he satisfied the Arbitrator on that point the question of whether he was a worker would have become relevant. Having determined that Mr Yucel failed to satisfy the onus on the injury issue, the Arbitrator was not required to consider the worker issue or any of the remaining defences raised in the s 74 notices. That said, and although I express no concluded view, it is likely that a close examination of the worker issue would not have assisted Mr Yucel.
Further the appellant alleges that the Arbitrator erred by accepting Mr Sadik on the question of injury because that evidence was contradicted by Mr Morris and Mr Guner. There is no merit in this submission and I reject it. Neither Mr Morris nor Mr Guner were in a position to give first hand evidence of any injury allegedly sustained by Mr Yucel.
Further Mr Cham submits that the Arbitrator erred in not giving sufficient weight to Mr Yucel’s description of the accident, which I infer is a reference to the incident on 26 September 2003. Mr Cham submitted:
“the applicant described in detail the accident and how it occurred. This is consistent with the occurrence of an event.”
It does not follow that because Mr Yucel gave a detailed account of how the accident occurred that the Arbitrator was bound to accept that it happened. Mr Yucel bore the onus of establishing that the accident occurred in the circumstances claimed by him. As the respondent submits, there was no error; the Arbitrator simply applied the test of “he who asserts must prove”. Mr Yucel’s description of the circumstances of the accident was evidence which the Arbitrator weighed together with the remaining evidence to which I have referred in order to reach her conclusion. For the reasons stated, the Arbitrator did not accept Mr Yucel’s evidence.
For these reasons ground three fails.

Ground four

Mr Cham submits that the Arbitrator erred in rejecting Dr Harvey’s report as evidence of back pain associated with the alleged incident of 15 August 2003. It is submitted that the Arbitrator should have accepted Dr Harvey’s notes as referring to the incident on 15 August 2003 as there was no other cause of the complaint and no history of back pain. That submission does not accord with the evidence and is rejected.
As the Arbitrator noted (at [30]), Mr Yucel submitted to a CT scan on 20 September 2001 of the lumbar spine which indicated that he was suffering back symptoms prior to the alleged injury. Further, Mr Yucel conceded, in his amended statement, that prior to the alleged injury he was still symptomatic from the effects of the motor vehicle injury in 1986.
In the context of that history, and for the reasons already stated, it was open to the Arbitrator to determine that, without reference to the alleged injury, Dr Harvey’s evidence did not add weight to Mr Yucel’s claims of an injury on 15 August 2003.
For these reasons ground four fails.

ORDERS

The Arbitrator’s Certificate of Determination dated 20 May 2015 is confirmed.

Judge Keating
President

31 August 2015

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

[2015] NSWWCCPD 51

31 August 2015

Key Legal Topics

Areas of Law

Civil Litigation & Procedure

Legal Concepts

Appeal

Jurisdiction

Res Judicata

Factual Findings

Principles of Precedent