Zutic v Cenere Pty Ltd - [2012] NSWWCCPD 37

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Zutic v Cenere Pty Ltd [2012] NSWWCCPD 37
APPELLANT:		Bozidar Zutic
RESPONDENT:		Cenere Pty Ltd
INSURER:		GIO General Ltd
FILE NUMBER:		A1-10719/11
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:		29 March 2012
DATE OF APPEAL DECISION:		12 July 2012
SUBJECT MATTER OF DECISION:		Challenge to factual findings; unreliable witness; proof of injury.
PRESIDENTIAL MEMBER:		Acting President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Slater & Gordon
Respondent:	Sparke Helmore
ORDERS MADE ON APPEAL:		1. The award and orders found in Certificate of Determination dated 29 March 2012 are confirmed. 2. No order as to costs of this appeal.

BACKGROUND

Mr Bozidar Zutic, who alleged that he received injury whilst employed by Cenere Pty Ltd (the respondent), commenced these proceedings which were heard by Arbitrator Sweeney on 19 March 2012. Whilst Mr Zutic was successful in securing an award in his favour, he failed to satisfy the Arbitrator that, among the injuries received by him on that day, were injuries to his low back and neck. It is against those findings of fact concerning the extent of injuries received that Mr Zutic brings this appeal.
There is no dispute that Mr Zutic fell from the roof of a laundry on 3 May 2010 at which time he was painting the eaves of the house to which the laundry was attached. As a result of that fall Mr Zutic suffered injury to his right elbow being a fracture to the radial head which required operative treatment at the hands of Dr Christine Castle, orthopaedic surgeon. Following that treatment Mr Zutic reported pain and disability in his right shoulder as well as the elbow.
Following his fall Mr Zutic made a claim for compensation which was, at first, accepted by the respondent’s insurer. The insurer, when declining liability, notified Mr Zutic in accordance with s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that it disputed that he was at relevant times a worker or a “deemed worker” of the respondent within the meaning of the workers compensation legislation. Notice was also given that Mr Zutic’s allegation of injury to his low back and neck was disputed.
It is relevant to note that Mr Zutic has a history of injuries received prior to the subject fall. In April 1993 he received head, neck, left shoulder and back injuries when he fell from a garbage truck in the course of his employment. In 1996 he received an injury to his left shoulder and left knee in a work related injury. In October 2004 he was injured in a motor vehicle accident either in the course of his employment or whilst on a periodic journey whilst employed by DABS Waterproofing Pty Ltd. Injuries received in that accident concerned his neck, low back and left shoulder. Mr Zutic secured an award in his favour in respect of weekly payments and other benefits in proceedings commenced by him against the employer which were determined in March 2009. It seems that Mr Zutic has, since the entry of that award, received weekly payments from that employer in the sum of $270 which was awarded pursuant to s 40 of the Workers Compensation Act 1987 (the 1987 Act) by Arbitrator D’Souza.
Arbitrator Sweeney delivered his reasons for determination (Reasons), extempore, on 23 March 2012. The orders made on that occasion are to be found in a Certificate of Determination dated 29 March 2012 and are as follows:
“The determination of the Commission in this matter is as follows:

1. Award for the applicant pursuant to section 40 at the rate of $200 per week from 11 October 2011 to date and continuing.
2. Respondent to pay the applicants medical and hospital expenses pursuant to section 60.

3.       Remit the matter to the registrar for referral to an approved medical specialist to assess the degree, if any, of permanent impairment of the right upper extremity (right elbow and shoulder) and any consequential impairment of the skin as a result of injury on 3 May 2010.
4.       Approved medical specialist to have access to the Application, the Reply and the documents attached to each and the clinical notes of the practice of Dr Joffe.
5.       Respondent to pay the applicant’s costs as agreed or assessed.

6. Certify the matter as complex and order a 20% uplift on the costs of both parties.”

ISSUES IN DISPUTE

The submissions provided by Mr Zutic in support of this appeal do not include a precise statement of his ground or grounds of appeal. It is, nonetheless, clear that Mr Zutic suggests factual error made by the Arbitrator concerning the allegation of injury to the low back and neck.
It is argued that, should it be accepted on appeal that the Arbitrator erred concerning his conclusion that no injury to the low back and neck had been received in the subject injury, there would be a need to reassess Mr Zutic’s “level of incapacity”. It appears that Mr Zutic seeks, not only correction of those alleged errors, but also an assessment on this appeal of the nature and extent of his incapacity.

ON THE PAPERS REVIEW

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

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of s 352(3) and s 352(4) of the 1998 Act have been met.

THE ARBITRAL PROCEEDINGS

The parties were each represented by counsel at the hearing before the Arbitrator. Those proceedings were recorded and a transcript (T) has been produced and made available to the parties. An application made by the respondent to cross-examine Mr Zutic was granted and that evidence is recorded in the transcript. That cross-examination concerned the allegation made by Mr Zutic that he was at relevant times either a worker in terms of s 4 of the 1998 Act or, in the alternative, a “deemed worker” in terms of cl 2 of Sch 1 to the 1998 Act. Very brief evidence was given in re-examination concerning the extent of Mr Zutic’s disabilities. The following exchange between Mr Zutic and his counsel is recorded in the transcript (at T15):
“Q. What part of you do you say is broken to the extent that you can’t work?
A. My back, my neck, my head, my hand, my elbow and my leg and I have injuries all over my body. And on top of all those physical problems I have – I also have psychological problems”.
It was accepted by counsel that Mr Zutic had not alleged psychological injury in these proceedings.
Most of the documentary evidence before the Arbitrator was described by him at T1. I note that a number of documents were admitted in evidence during the course of the hearing. Those documents included a Patient Health Summary produced by the practice of Dr Louis Joffe, the general practitioner whose practice was attended by Mr Zutic. The other material tendered during the hearing is of no relevance to the issues raised on this appeal.
The evidence relevant to the question as to whether Mr Zutic received injury to his low back and neck is to be found in the evidence of Mr Zutic himself, the expert medical reports and, more particularly, in the clinical records of the treating medical practitioners. The detail of that evidence is addressed in the course of discussion below.
Submissions put on behalf of Mr Zutic included an argument that the evidence establishes that he fell a distance of 2.2 metres onto concrete. A fall of that nature, it was put in argument, would “cause a significant impact”. It was argued that such impact could, as expressed by Dr Ryan, cause injury and or aggravation of disability in Mr Zutic’s low back and neck. It was further put by counsel that the earliest complaint made by Mr Zutic concerning his low back and neck following the subject injury is recorded by Dr Bishop, of Dr Joffe’s practice, in July 2010. That was later corrected. It is recorded (at T37) that counsel accepted that the reference by Dr Bishop is to be found in his correspondence addressed to a physiotherapist dated 8 July 2011. Counsel placed considerable reliance upon the evidence of Dr Guirgis and Dr Ryan in support of the allegation of low back and neck injury. Counsel drew the Commission’s attention to the findings on physical examination during the course of a medical assessment conducted by Dr John O’Neill in 2009 which concerned the low back and neck injuries received by Mr Zutic when employed by DABS Waterproofing Pty Ltd in 2004. It was argued that the subsequent physical examinations conducted by Dr Guirgis and Dr Ryan demonstrate a greater physical restriction than was observed during the course of examination conducted by Dr O’Neill. It was argued that an inference may be drawn that there had been an aggravation of the low back and neck injuries subsequent to the assessment by Dr O’Neill and that such occurred when Mr Zutic fell in 2010.

The Arbitrator’s decision

The Arbitrator first addressed the dispute concerning the question as to whether Mr Zutic was a worker or, in the alternative, a deemed worker as alleged. That issue was determined in Mr Zutic’s favour. Whilst the Arbitrator observed that the relationship between Mr Zutic and the respondent had some indicia which suggested that Mr Zutic was a contractor, a finding was ultimately made that he was a worker as defined in the legislation.
The Arbitrator proceeded to consider the question concerning the nature of the injuries received by Mr Zutic in the subject fall. The Arbitrator noted that the claim in respect of the right shoulder and arm injury was not disputed by the respondent. The Arbitrator made the following general comment concerning the state of the evidence:
“[Mr Zutic] says that he gave a full account of the injuries to his doctors – Dr Joffe and subsequently Dr Bishop. The contemporaneous evidence, however, is not consistent with [Mr Zutic’s] evidence” (at p 5 of Reasons).
The Arbitrator proceeded to address the brief oral evidence given by Mr Zutic. It was made plain by the Arbitrator that his view was that Mr Zutic was “doing his best to assist the Commission”. However, some answers given could not be fully understood (I note that he had the assistance of a suitably qualified interpreter). The Arbitrator expressed the view that Mr Zutic’s account of the nature of his injuries and the impact of them was “somewhat embellished and whether that was by reason of his psychological condition or because of some desire to impress the Commission or by reason of exaggeration was not evident given the fact that the [evidence of Mr Zutic] only took 20 or 25 minutes”.
The Arbitrator proceeded to summarise the medical evidence, being both reports from practitioners and the clinical notes produced by Dr Joffe’s practice, with particular emphasis placed upon the histories of injury as recorded. Following consideration of that material the Arbitrator made the following findings (Reasons at p 7):
“On the basis of that evidence, I have reached the view that the Applicant’s evidence in respect of what injuries he sustained at work on the 3 May 2010 is probably unreliable and I do not accept that he suffered injuries to his neck and back.
Even if I was wrong, however, in respect of that finding, it is evident that the Applicant had ongoing neck and back problems for many years from at least 2004 up until 2009, and in order to conclude that he had suffered enhanced problems with his neck or back as a consequence of the accident, it would be necessary to have some evidence from the Applicant as to the state of his back and neck prior to the injury and, indeed, some evidence from the doctors who treated him to enable any firm conclusion to be reached by the Commission as to whether the Applicant’s neck or back pain resulted from this particular injury or was merely a continuation of the earlier neck and back pain. There is no such evidence in this case.
There is nothing at all from Dr Bishop, as I see it, that would indicate that the Applicant’s neck and back problems resulted from this - in any way at all from this last injury and Dr Bishop and Dr Joffe, who have treated the Applicant for many, many years, would be in the best position to assess the impact of this injury.
The Commission therefore finds that the Applicant suffered injury to his right shoulder and right elbow in the incident of 3 May 2010 and, in due course, I propose to refer those matters to an approved medical specialist to assess the degree of permanent impairment as a consequence of those injuries.”
The Arbitrator proceeded to consider the remaining issue which concerned the extent of incapacity and the quantum of any entitlement to weekly compensation. Findings were made in Mr Zutic’s favour and orders were made as recorded in the Certificate of Determination noted at [5] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The error alleged is one concerning the Arbitrator’s factual findings as to the allegation of injury to the low back and neck. It is put that the Arbitrator “has not given sufficient weight to the fact that [Mr Zutic] fell from a height of about 2.4 [sic] metres onto a concrete floor”.
It is also argued that the Arbitrator erred in concluding that there was “insufficient evidence… to enable him to establish if [sic] there was any further injury to [Mr Zutic’s] neck and back”.
An argument is advanced that the evidence of the Approved Medical Specialist Dr O’Neill, Dr Guirgis and Dr Ryan was sufficient “to enable [the Arbitrator] to make the decision that in fact there was further deterioration in [Mr Zutic’s] condition”. It is put that the Arbitrator failed to consider that evidence.
Argument advanced appears to address the question of a “deductible proportion” (at [6(b)] and [7] of further submissions). That last submission is unclear and unhelpful.
It is put that, upon acceptance of Mr Zutic’s allegations of low back and neck injury on appeal, “[Mr Zutic’s] level of incapacity may need to be reconsidered”. This submission, as earlier noted, appears to suggest that the quantum of weekly payments as fixed by the Arbitrator should be varied upon appeal.
Factual findings may be disturbed on appeal in those circumstances stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir). This decision has been discussed in the context of Commission appeals by Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25. It must be shown that the Arbitrator was wrong. Such error may be established by showing that, as stated by Barwick CJ (at 506):
“Material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial Judge is so preponderant in the opinion of the appellate court that the trial Judge’s decision is wrong.”
There were two reports in evidence from Dr Guirgis who had been qualified by Mr Zutic’s solicitors to provide an expert opinion for the purposes of this litigation. As observed by the Arbitrator, Dr Guirgis was given two distinct histories. The first history given during a consultation in May 2011 contained no reference to any injury to the low back or neck. At the second consultation which occurred in July 2011, Mr Zutic is recorded as stating that a “misunderstanding in the history” had occurred on the first occasion and it was then that a history of low back and neck injury was given. These circumstances lead the Arbitrator to make the following observation in the course of his Reasons (at p 6):
“Given the fact that there were two different histories given by [Mr Zutic] in 2011 to Dr Guirgis, it is necessary to look carefully at his evidence and the contemporaneous evidence before concluding what injuries [Mr Zutic] actually suffered at that time”.
A claim form completed by Mr Zutic dated 22 July 2010 was noted by the Arbitrator to include a description of “injured parts” as being “right arm, shoulder, elbow and hand”.
The Arbitrator, in the course of his Reasons, considered the evidence of Dr Bishop, general practitioner, who practiced with Dr Joffe. A report by Dr Bishop dated 12 September 2010 was noted by the Arbitrator to contain no history of low back or neck injury occurring in the subject fall. Dr Bishop’s report recorded numerous consultations between June 2010 and August 2010. When expressing his views as to diagnosis Dr Bishop, as was noted by the Arbitrator, made no reference whatsoever to an injury to the back or neck.
The Arbitrator noted that a clinical note recorded by Dr Joffe on 4 May 2010 is “relatively consistent with Dr Bishop’s report and refers to an injury to the right elbow and nothing else”.
Mr Zutic was referred to Dr Christine Castle, orthopaedic surgeon, who examined him on 5 May 2010. A report from Dr Castle is in evidence. The Arbitrator noted Dr Castle’s record of complaint and her observations, none of which included any reference to a low back or neck injury.
The clinical records from Dr Joffe’s practice were examined by the Arbitrator. It seems that the Arbitrator was not greatly assisted by the content of those documents given that, as stated by him, “the entries are often terse to say the least”. However, the Arbitrator notes that careful examination of those records failed to reveal any reference to back injury until July 2011, by which time Mr Zutic had seen Dr Guirgis on the second occasion and a modified history had been given. There is no suggestion made in submissions put on behalf of Mr Zutic that the Arbitrator’s observations concerning these records are in any way flawed. Having examined those records it is apparent that the first reference to a suggested back and neck injury is to be found, as noted by the Arbitrator in the course of submissions (see above at [14]), in correspondence from Dr Bishop to a physiotherapist.
The suggestion made in the course of submissions on this appeal that the Arbitrator has made erroneous and inconsistent findings must be rejected. The Arbitrator plainly stated his concern regarding proof of injury to the low back and neck which was founded upon the variation in the history given to Dr Guirgis. The Arbitrator proceeded to examine all relevant evidence with considerable care. That examination revealed that there was no contemporaneous evidence that would tend to support a conclusion that a low back and neck injury was received in the subject fall.

The Arbitrator’s reasoning reveals further that the absence of contemporaneous evidence relevant to the alleged injuries was not the only basis upon which he concluded as he did. As appears in those passages of his reasons which I have noted at [18] above, there was no evidence addressing the injury issue from Dr Joffe, Dr Bishop or Dr Castle. The absence of evidence from Dr Castle is of particular significance given that other evidence establishes that Mr Zutic had been treated by Dr Castle in respect of his earlier orthopaedic injuries including that injury in respect of which he has for many years received weekly compensation benefits. The Arbitrator has plainly stated the deficiencies in the evidence. The absence of this evidence had been raised by the Arbitrator in the course of submissions (at T28). The Arbitrator’s approach demonstrates no error.
The appellant’s complaint that the evidence of Dr Guirgis and Dr Ryan was “not considered” by the Arbitrator must be rejected. As earlier noted the Arbitrator’s approach to the question of proof of injury to the back and neck had been founded upon his concern that there had been “two different histories” given to Dr Guirgis by Mr Zutic. The Arbitrator, in the course of his Reasons, acknowledged that “the claim for neck and back is supported by Dr Guirgis and indeed by Dr Michael Ryan, [the respondent’s] qualified doctor”.
It is clear that the evidence of Dr Guirgis and Dr Ryan concerning that question had been rejected by the Arbitrator following an exhaustive examination by him of the totality of the evidence. As was observed by him in the course of exchanges with counsel during submissions, relevant history concerning such injury was “missing on every form” (at T28). The Arbitrator ultimately found against Mr Zutic on this issue of injury, his conclusion being as set forth at [18] above.
I reject the suggestion made that an inference should have been drawn by the Arbitrator that Mr Zutic’s back and neck condition had deteriorated since Dr O’Neill’s assessment in 2007. Such inference could not be drawn, in the absence of supplementary expert evidence, by simply comparing those findings recorded by Dr Ryan and Dr Guirgis. No error has been established.
Mr Zutic has failed in my opinion to establish that the Arbitrator had erred in the manner as discussed by the Chief Justice in Whiteley Muir in determining this question of injury. The appeal should be dismissed.

DECISION

The award and orders found in Certificate of Determination dated 29 March 2012 are confirmed.

COSTS

No order as to costs of this appeal.

Kevin O'Grady

Acting President
12 July 2012

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE