The Clinical Decision - Zubary v SM NSW Pty Ltd [2020] NSWWCC 296

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By Danny Khoshaba, Partner and Shabnam Thompson, Lawyer

A claim for workers compensation which included injury to the lower back,

The evidence put together by the applicant seemed to lack,

The respondent denied the factual allegations simply minding its own business,

The applicant having various inconsistencies particularly noted through his witness,

The arbitrator felt that the applicant did not do enough to seal the deal,

He ordered award respondent, now let’s see if there is an appeal. 

In the recent decision of Zubary v SM NSW Pty Ltd [2020] NSWWCC 296 (“Zubary”), we achieved an award for the respondent on the issue of whether the applicant had sustained workplace injury to the lower back on 20 February 2019.

The key argument put forward was that the applicant had not discharged his onus of proof in respect of having sustained an injury arising out of or in the course of employment as required by section 4 of the Workers Compensation Act 1987.

The main areas of concern were the multiple inconsistencies in the applicant’s evidence, no contemporaneous record of injury, and the absence of any reporting of the injury to the employer. There was also a six-month delay in the applicant bringing his claim or seeking treatment for his injury, which was after he had resigned from his employment with the respondent. In addition, there was concern regarding the denial of prior lumbar spine issues even though it was noted in the applicant’s own clinical records.

Importantly, the applicant alleged that he was so severely injured that he could not mobilise without assistance. However, his clinical records demonstrated that he had attended his GP on multiple occasions from the date of injury in February 2019 up to August 2019 for unrelated medical conditions, without reporting any workplace injury to the back.

Amongst other things, the applicant submitted that his reasons for not reporting the injury to his employer or doctors were plausible (one being that he was afraid of the outcome), and that the combination of his background and unusual back pathology were relevant matters, with the injury as described by him being reported with far too much of a degree of detail for a man of no education to invent. The applicant also submitted that no evidence was lodged from the employer regarding the injury, however the Arbitrator stated that same was of little comfort as the applicant said himself that he did not complain to the employer about his symptoms.

In support of his claim, the applicant relied upon his roommate as a witness to him having sustained the work injury. That witness said in a statement that the applicant came home on the day of the alleged incident and appeared to be in pain, telling him that he had an accident at work. However, on cross-examination that witness provided a different account than that contained in his statement, notably that he saw the applicant in pain at home, but the applicant did not tell him what the problem was until about ten days later.

In coming to his decision, the Arbitrator discussed the principles relevant to discharging the onus of proof, including that for a Court 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.

Although the Arbitrator was satisfied that the claim had a measure of support in that it was common ground that the applicant suffers from unusual pathology and that the details of the injury were very particular and quite consistent with the mechanism by which such an injury might have been caused, he found it was foreseeable that the applicant’s injury might have been caused by reasons other than an injury at work and may well have been of gradual onset or occurred at a later time than alleged.

The Arbitrator went on to state that he found the applicant’s denial of prior lumbar spine symptoms in circumstances the contrary was recorded in the clinical records. The Arbitrator also addressed the applicant’s failure to seek treatment until August 2019 and stated that:

“as to his fear of “potential bad news” it is not plausible that if Mr Zubary was in serious pain he would not wish to seek treatment, regardless of the cause. If Mr Zubary had, for instance, broken a bone, was he suggesting that he would not attend a doctor for fear that he would be told it was broken? Such a proposition is untenable.”

The Arbitrator added that the most damaging piece of evidence to the applicant’s case was his GP specifically noting in a clinical entry that he had presented at the practice on five prior occasions without mentioning his alleged work injury. The Arbitrator found this to be of most significance given he considered there was an inference that the doctor went to the trouble of making the entry because she had some reservations as to the applicant’s motives for withholding the complaint from his local doctors, who had been treating him since mid-2013.

The Arbitrator therefore stated that he had no sense of persuasion that the alleged workplace injury rendered the applicant’s pathological condition symptomatic, and that the applicant had failed to satisfy his onus of proof. Accordingly, an award was made in favour of the respondent and the applicant’s claim for weekly compensation and medical expenses failed.

This matter highlights the importance of making careful inquiries into the available evidence and ensuring that the required standard of proof is met by the applicant, particularly in circumstances where there are issues such as inconsistencies in the evidence, significant delay in seeking treatment and the failure to report the injury to the employer.

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