Birbiri v First Choice Removalz Pty Ltd - [2017] NSWWCCPD 37

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Birbiri v First Choice Removalz Pty Ltd [2017] NSWWCCPD 37
APPELLANT:	Nedim Sadik Birbiri
RESPONDENT:	First Choice Removalz Pty Ltd
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-146/17
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	27 April 2017
DATE OF APPEAL DECISION:	30 August 2017
SUBJECT MATTER OF DECISION:	Error of fact; application of the principles discussed in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 and Fox v Percy [2003] HCA 22; 214 CLR 118
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carters Law Firm
Respondent:	Hicksons Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination dated 27 April 2017 is confirmed.

INTRODUCTION

This matter involves a challenge to an Arbitrator’s factual finding that the worker did not sustain an injury to his back in the course of his employment as a removalist with the respondent, when he moved a large steel cabinet. It also concerns a challenge to an alleged adverse finding in respect of the worker’s credit.
It is accepted that the worker sustained an injury to his back but the mechanism and date of injury are in dispute.
For the reasons explained in this decision, the appeal fails.

BACKGROUND

On 11 February 2016, Nedim Sadik Birbiri, the worker, commenced work for the respondent, First Choice Removalz Pty Ltd, as a removalist. He worked for the respondent for approximately one week, until 19 February 2016.
On 19 February 2016, Mr Birbiri worked nine and a half hours. In his statement, dated 20 December 2016, Mr Birbiri claims that towards the end of this working day he injured his back. He states that this occurred when he moved a large steel cabinet on his own into an elevator. The cabinet was too large to fit in the elevator easily and he had to tilt the cabinet towards him, during which he felt pain in his lower back and his “legs buckle”. He had to continue to hold the cabinet as letting go would have damaged the roof or elevator. When he reached the designated level in the elevator his team leader came to his assistance.
Mr Birbiri alleges that he woke up the next morning with “severe low back pain and difficulty walking”. As he did not have a (drivers’) licence he had to wait for his mother to take him to the doctor when she cleared her schedule. The pain became unbearable and he “could not even walk”.
Mr Birbiri alleges that he called his employer, Mr Angelo Bramani, and informed him of the injury and stated that he would not be able to return to work. There is no evidence of when the call was allegedly made. The fact that it occurred is in dispute. Mr Birbiri states that:
“Angelo asked if I had injured myself at my uncles [Mr Ziya Hallacoglu] wedding which was on that weekend. I told him ‘how am I going to injure myself at a wedding it was obviously at work.’ Angelo then told me to let him known what happens. I did attend my uncles wedding however I was sitting down most of the night and did not get up and dance. I even left the wedding early.”
Attached to an Application to Admit Late Documents filed by the respondent’s legal representative dated 30 March 2017, is a chronology of events prepared by Mr Bramani dated 14 February 2017. The following entries are recorded for 22 February 2016:
“Ned not available as previously advised.
Ned requested confirmation of hourly rate. Txt sent at 11:31am.
Note: still no mention of any injuries.
Paperwork received by Admin and processed for payroll
Payroll done - $150 loan deducted for repayment.
Txt message sent with start time for Tuesday.
Txts were sent late – 7pm
Ned phoned Angelo to decline. Advised due to late message, he had already accepted work with his Uncle and apologised.”
Mr Bramani records that he sent Mr Birbiri a text message on 23 February 2016 with a “start time for Wednesday [24 February 2016]” but did not receive a response. Mr Birbiri did not “show up” for work. Mr Bramani then records that he received a text message from Mr Birbiri on 24 February 2016, producing a medical certificate for “4 days off due to back injury”. Mr Bramani alleges that he attempted to contact Mr Birbiri on several occasions between 29 February 2016 and 2 March 2016.
In an Application to Admit Late Documents filed by Mr Birbiri’s legal practitioner is a letter from Mr Birbiri’s uncle, Mr Hallacoglu, dated 20 March 2017. It states that Mr Birbiri did not work for him on 23 February 2016. It further states that the only time he has worked for him was “for experience (work experience) in late 2014-early 2015 a couple of times a month, just so he could add to his resume.” In his supplementary statement, Mr Birbiri confirms that he did not accept work from Mr Hallacoglu as alleged by Mr Bramani. Mr Birbiri confirms that he had “only ever done some work experience” for his uncle “a few years ago” which he stated on his resume.
Mr Birbiri did not return to work following the alleged incident on 19 February 2016.
On 24 February 2016, Mr Birbiri attended on Ms Leigh Perry, chiropractor, complaining of low back pain. He underwent acupuncture and experienced minor improvement.
On 24 February 2016, Mr Birbiri sent Mr Bramani a text message stating:
“I’ve just seen a chiropractor and its not looking good they said i have to rest for a minimum of 4 days Im sending you a photo of the certificate now. My apologies I’ll bring the hard copy as soon as possible. Thanks for understanding.”
By text message, he sent a photo of a certificate issued by Ms Perry certifying him unfit for work for four days from 24 February 2016. Mr Birbiri alleges that he did not receive a response and made attempts to call Mr Bramani once or twice but his calls were unanswered and not returned.
In evidence is a letter from Ms Perry, dated 30 June 2016, which records that she treated Mr Birbiri (on 24 February 2016) for “acute low back pain” which “came on two days earlier after lifting some heavy objects whilst at work”. She found his clinical history and presentation to suggest “possible disc pathology” and recommended that he take a few days off work.
On 4 April 2016, Mr Birbiri attended on Dr Matthew Cai, general practitioner at Northmead Medical Centre, who referred him for an MRI of his lower back. The MRI was not undertaken due to the expense. (There are no earlier records of attendance on a medical practitioner for the alleged injury.) Mr Birbiri attended Northmead Medical Centre again on 25 May 2016, but saw Dr Jamal Danishyar, because Dr Cai was unavailable. He was referred for an x-ray of the lower back.
In evidence are two “WorkCover NSW – certificate of capacity” dated 4 and 18 April 2016, which both record the date of injury being 23 February 2016. They also described the injury to have occurred when “removing furniture at work”. In a supplementary statement dated 21 March 2017, Mr Birbiri records that he mistakenly advised Dr Cai on 4 April 2016 that the injury occurred on 23 February 2016. It had been “over a month since the incident occurred and [he] had assumed that 23 February 2016 was the Friday [he] had [his] injury”. It wasn’t until he looked back over the dates that he realised that “the Friday was 19 February not 23 February”. He states that he did not work on 23 February 2016 and could not have injured himself on that day.
On 15 June 2016, Mr Birbiri made a claim for compensation. He recorded that he sustained “back muscle strain lower back pain” when removing heavy furniture on 23 February 2016. Under the question “What are the names and daytime contact details of anyone who witnessed the incident?” Mr Birbiri recorded “N/A”.
On 23 June 2016, the respondent’s insurer, Employers Mutual Limited issued a notice declining liability, pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It referred to the claim form and WorkCover certificates of capacity which recorded the date of injury being 23 February 2016. Amongst other things, it claimed that the injury was not sustained arising out of or in the course of his employment with the respondent as his last day of employment was on 19 February 2016.
On 22 September 2016, Mr Birbiri attended on Associate Professor SK Cyril Wong, general surgery consultant, at the request of his legal representatives. In a report dated the same day, Associate Professor Wong recorded a history of injury on 19 February 2016, consistent with Mr Birbiri’s evidence of mechanism of injury. He found that Mr Birbiri sustained loss of lumbar lordosis and had localised tenderness at L5/S1. He further found that Mr Birbiri’s condition “is consistent with the mechanism of injury described.” He assessed Mr Birbiri with seven per cent whole person impairment in respect of his lower back.
On 13 January 2017, Mr Birbiri lodged an Application to Resolve a Dispute in the Commission (the Application). He sought payments in respect of weekly compensation from 22 February 2016 to date and continuing and medical expenses. He claimed that he injured his lower back and sustained a secondary psychological injury on 19 February 2016, when he was required to move a large steel cabinet into an elevator on his own. Ultimately, the claim for psychological injury was not pursued.
On 7 February 2017, attached to an Application to Admit Late Documents, the respondent filed a reply to the Application declining liability for the reasons stated in its s 74 notice.
On 3 April 2017, the matter proceeded to arbitration before Arbitrator Batchelor, following which the Arbitrator reserved his decision.
On 27 April 2017, the Arbitrator issued a Certificate of Determination in favour of the respondent.
Mr Birbiri appeals the Arbitrator’s determination.

PRELIMINARY MATTERS

Monetary threshold

There is no dispute that the compensation in issue on the appeal satisfies the monetary threshold required by s 352(3).

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.

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.”
Both parties submit that the appeal can proceed on the papers. 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.

THE ARBITRATOR’S REASONS

The main issue before the Arbitrator concerned whether Mr Birbiri sustained an injury to his lower back arising out of or in the course of his employment on 19 February 2016. For the reasons that follow, the Arbitrator concluded (at [65] of the reasons) that he was not persuaded that Mr Birbiri injured his back as alleged.
The Arbitrator made the following factual findings:
(a)     on 22 February 2016 there were text message exchanges between Mr Birbiri and his employer Mr Bramani. Those emanating from Mr Birbiri made no mention of a work injury having taken place. The text message sent by Mr Bramani was consistent with his expectation that Mr Birbiri would be available for work the following day. The text messages from Mr Birbiri were inconsistent with a prior discussion involving a report of injury;
(b)     the Certificate issued by Ms Perry on 24 February 2016 reported injury two days earlier, that is on 22 February 2016, not 19 February 2016 as alleged;
(c)     the history provided to Ms Perry of lifting some heavy objects whilst at work was inconsistent with the mechanism of injury relied upon by Mr Birbiri;
(d)     the Arbitrator did not accept Mr Birbiri’s evidence that he telephoned his employer on Monday 22 February and reported an injury to him;
(e)     there is no statement from the “team leader” who was present at the time of the alleged injury, although the Arbitrator declined to draw a Jones v Dunkel inference adverse to Mr Birbiri;
(f)      medical certificates issued by the Northmead Medical Centre specified a date of injury of 23 February 2016;
(g)     the claim form completed by Mr Birbiri on 15 June 2016 nominated the date of injury as 23 February 2016, and
(h) Mr Birbiri did not seek to correct the alleged date of injury until after the employer issued its s 74 notice.
The Arbitrator concluded at [65]:
“Having regard to all of the evidence, I am not persuaded that the applicant injured his back on 19 February 2016. I think it highly unlikely that, on 24 February 2016, he would have been mistaken as to the number of days prior to that day when he says he suffered a back injury. It is possible that something happened to his back on 22 February 2016 (which would accord with the history given to the chiropractor, Leigh Perry). I am not required to make a finding on this. I am required to be satisfied on the balance of probabilities that the applicant injured his back on 19 February 2016. I also do not accept that the applicant continued to be mistaken about the date of injury, given to the doctors at the Northmead Medical Centre in April 2016, right up until after the issue of the s 74 notice on 15 June 2016.”

GROUNDS OF APPEAL

Mr Birbiri alleges that the Arbitrator erred in:
(a) finding that Mr Birbiri had not suffered a work injury in the course of or arising out of his employment with the respondent on 19 February 2016, and
(b) making an adverse finding as to the creditworthiness of Mr Birbiri.

SUBMISSIONS

Mr Birbiri’s submissions

Ground one – the injury

Counsel for Mr Birbiri, Mr Curran, submits that the challenges made to the Arbitrator’s determination are challenges as to his factual findings. He submits that “an appeal will properly lie where a decision of fact was not fairly open to be made”: Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston); Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir) and Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; 140 ALR 227 (Zuvela).
Mr Birbiri’s evidence was to the effect that the content of the text message of 22 February 2016, could only have been consistent with there having been an earlier conversation between Mr Birbiri and Mr Bramani reporting the injury as Mr Birbiri claims. Mr Bramani prepared a chronology of events including the relevant text message exchanges. That document was prepared and signed on 14 February 2017.
Mr Bramani added a commentary to the third text message referred to on 22 February 2016 adding the words: “Note: still no mention of any injuries”. Mr Curran submits that the entry:
“is only explicable in the circumstances of an issue of injury arising with [Mr Birbiri]. It is submitted that such an entry could only be explained by the fact of [Mr Birbiri] having reported an injury to Mr Bramani earlier that day and then advising him as part of the reporting conversation he was going to seek medical treatment and would later provide a certificate or medical information about it.”
Irrespective of the precise date of injury, so it is submitted, there was clear objective evidence of injury to the back as evidenced from the report of Professor Wong.
The Arbitrator noted Ms Perry’s history of lifting some heavy objects whilst at work and drew a distinction between that history and Mr Birbiri’s evidence of moving a large steel cabinet into an elevator. Counsel for Mr Birbiri submits:
“With all due respect, it was not reasonable for the Arbitrator to discern any conflict or inconsistency in the description given on numerous occasions as aforesaid with a doctor reciting that the injury came on when [Mr Birbiri] ‘was lifting some heavy objects whilst at work’.”
It is submitted that the action of putting a filing cabinet on a dolly “must intrinsically involve lifting actions. The cabinet was clearly ‘an object’. The courts have repeatedly cautioned as to over reliance being placed on the history being taken by medical practitioners”.
In reference to the Arbitrator’s finding that the onus of proof had not been discharged and the finding that there was “insufficient evidence” to be satisfied that Mr Birbiri had telephoned his employer on Monday 22 February 2016, counsel submit:
“The vaguest suggestion that [Mr Birbiri] had injured his back at his uncle’s wedding on 20 February 2016 or in some other employment was clearly refuted by the overall evidence and the specific evidence of [Mr Birbiri’s] uncle, Ziya Hallacoglu in his evidence cited by the Arbitrator at para 50.”

Ground two – the credit issue

It is implicit in the Arbitrator’s determination that he did not find Mr Birbiri to be a credible and acceptable witness. It is submitted “this was the sole basis of the determination made against [Mr Birbiri] in favour of [the employer]. It is highly questionable as to why the Arbitrator made adverse findings of credit against [Mr Birbiri].”
The only error revealed in all of Mr Birbiri’s evidence was as to the date of injury. He submits that the worker was only 21 years of age and was inexperienced and lacking in sophistication. Counsel submits that Mr Birbiri was a “rather disorganised individual”. This was evidenced by Mr Birbiri’s alleged failure to provide paperwork sufficient for his pay to be paid into his bank account.
Mr Birbiri was accepted by all medical practitioners to have suffered a significant back injury which counsel submits “appeared beyond doubt that such was suffered in the third week of February 2016 or about that time”. The evidence as to his contact by telephone with Mr Bramani on 22 February 2016 should have been accepted, particularly where a note was made by Mr Bramani on 22 February 2016 at 11.31 am referring to “injuries” and in circumstances where Mr Bramani’s evidence was in a statement made by him on 14 February 2017, a year after the relevant events.
There had to be real doubts, so it is submitted, as to the reliability of Mr Bramani’s recollection. The Arbitrator did not address or exercise any caution in accepting the reliability of the denial of the telephone call by Mr Bramani, notwithstanding the note referring to “injuries” made at 11.31 am on 22 February 2016.
Based on the text message exchanges and the certificate of Ms Perry, the Arbitrator should have determined that Mr Birbiri had discharged the onus upon him and found in his favour.

Respondent’s submissions

Ground one – the injury

Mr Halligan, counsel for the employer, submits that appellate courts and tribunals should not interfere with findings of fact, where evidence is capable of supporting the decision or unless there has been a palpable and overriding error. Where a first instance decision maker makes findings of fact which are inconsistent with facts incontrovertibly established by the evidence, a finding may be set aside on appeal (Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy)). In reference to the circumstances in which factual findings may be disturbed on appeal, Mr Halligan submits that error may be established by showing that, as stated by Barwick CJ in Whiteley Muir (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 was so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
Mr Halligan submits that Mr Birbiri’s submissions do not point to any departure by the Arbitrator from his “properly distilling the facts accurately and comprehensively”.

Those facts included the reference to the date of accident occurring on 23 February 2016 being recorded in:
(a)     Mr Birbiri’s claim form;
(b)     the WorkCover medical certificates of 4 and 18 April 2016;
(c)     Ms Perry’s certificate being more consistent with an event occurring on 23 February 2016 than on 19 February 2016, some five days earlier;
(d)     Ms Perry’s description of the incident being inconsistent with Mr Birbiri’s claim of moving a metal cabinet;
(e)     the communications between Mr Birbiri and Mr Bramani on 22 and 23 February make no mention of any injury on 19 February 2016 or at all, and
(f)      it was not until 24 February 2016 at 2.12 pm that the certificate from Ms Perry was produced, without any mention of any particulars about how the injury allegedly occurred.
Further Mr Halligan points to the absence of a statement from the team leader who was present at the time of the alleged incident, indicating a lack of corroboration. He submits that “at least an inference can be drawn against [Mr Birbiri] as to the date that the cabinet was moved into the elevator”, being either on 19 or 22 February 2016.

Ground two – the credit issue

The Arbitrator had the advantage of assessing Mr Birbiri’s credit and credibility through the contents of the reports, business records and witness statements.
Generally an appeal court will be careful not to determine questions of credit itself because the trial judge has the benefit of resolving a conflict by his own observations: Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167 (Abalos).
Although a Presidential member is not constrained as a matter of law in reaching a conclusion by cases such as Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 and Abalos, he or she is entitled to conduct their own review and reach their own conclusion.
The Arbitrator was entitled to form a view of Mr Birbiri’s credit from the following:
(a)     the history given to general practitioners giving rise to a recorded date of accident of 23 February 2016;
(b)     a failure to accurately describe the injury to Ms Perry, inconsistent with moving a cabinet;
(c)     attending his uncle’s wedding the day after the injury;
(d) attempting to readjust the accident date only after receiving the s 74 notice;
(e)     a failure to mention the fact of a work injury in the text communications following 19 February 2016;
(f)      notwithstanding the presence of the team leader at the relevant time, the claim form nominates witnesses as “N/A”, and
(g)     the absence of any witness statement or identification of potential witnesses.
The employer submits that the appeal should be dismissed and the Arbitrator’s determination of 27 April 2017 be confirmed.

CONSIDERATION

This is an appeal pursuant to s 352 of the 1998 Act. Section 352(5) provides:
“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 appeal challenges the Arbitrator’s finding that Mr Birbiri failed to discharge the onus of proof that he sustained an injury on 19 February 2016 as alleged. That is, Mr Birbiri’s appeal is limited to a challenge to the Arbitrator’s factual finding.
Mr Curran’s submission that “an appeal will properly lie where a decision of fact was not fairly open” misstates the test for appellate intervention on a finding of fact. None of the authorities, including Raulston, WhiteleyMuir or Zuvela, upon which Mr Curran relied, provide any support for the proposition he advanced.
For the reasons stated above, it is not my function to review the facts for yet a further time. I may only intervene in circumstances where error has been established. Mr Birbiri’s submissions, with respect, merely seek to cavil with the Arbitrator’s findings without identifying error.
The principles to be followed in identifying error were conveniently summarised by Roche DP in Raulston where the Deputy President said (at [19]–[21]):
“19.   First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a)An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)It may be shown that an Arbitrator was wrong ‘by showing that 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 [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.’
20.    The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’
21.    After observing that a degree of tolerance for any such divergence in any particular case will often be a product of the perceived advantage enjoyed by the trial judge, Allsop J concluded (at [29]):
‘The appeal court must come to the view that the trial judge was wrong in order to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.’”
In Fox v Percy Gleeson CJ, Gummow and Kirby JJ made the following observations regarding appellate intervention regarding challenged findings of fact. Error will be found where there were “incontrovertible facts”, or other “uncontested testimony” demonstrating the error (at [28]). The finding may be “glaringly improbable” or “contrary to compelling inferences” in the case (at [29]). The mere appearance of witnesses - that is, their demeanour - as a determinant of truth is now cautioned against as a means of making findings of fact (at [30]). Trial judges are urged to pay more attention to the “apparent logic of events”, the existence of “contemporary materials”, and other “objectively established facts” as a means of reasoning to a conclusion (at [31]).
Applying these principles to the facts, I do not accept Mr Birbiri’s submission that the text message exchange on 22 February 2016 is only explicable in the context of an earlier report of injury having being made.
As the Arbitrator correctly pointed out, the incontrovertible facts that weigh against the acceptance of that submission are that the only text message on 22 February 2016 concerned a request by Mr Birbiri for information concerning his hourly rate of pay; it made no reference to any alleged injury.
Mr Curran submits that the inclusion of the entry “Note: still no mention of any injuries” in the chronology of events submitted by Mr Bramani lends support to the proposition that it must be inferred that the text message exchange on 22 February 2016, was consistent with an earlier report of injury. I disagree. The note highlights the fact that there was no report of any injury at the relevant time. The inclusion of the entry is merely a commentary of the author. The document was prepared a year after the relevant events. As I read it, the note simply draws attention to the absence of a report of any injuries in the relevant text message exchanges.
Mr Curran’s submission that, irrespective of the date of injury, there must have been an injury as evidenced from the report of Dr Wong misses the point. Mr Birbiri failed in the application because he failed to establish, on the balance of probabilities, that he sustained an injury in the course of his employment on 19 February 2016 as alleged. Whether there is clear objective evidence of injury to the lumbar spine is immaterial. It is not disputed that Mr Birbiri sustained an injury to his back. What is disputed is the mechanism and date of injury.
Further, I do not accept Mr Curran’s submission that the history provided to Ms Perry of “lifting some heavy objects at work” is consistent with the description of injury relied upon, namely moving a large steel cabinet into an elevator. Lifting of objects (plural) is not entirely consistent with moving a filing cabinet. Ms Perry’s history, recorded on 24 February 2016, is the first documented history of the alleged incident after Mr Birbiri sustained the injury.
In contrast, Mr Birbiri told Dr Wong that the injury happened when he was lifting “a large steel cabinet”. The medical certificate issued by the Northmead Medical Centre on 4 April 2016 refers to lifting furniture at work, as does the certificate on 18 April 2016. The claim form submitted on 15 June 2016 also refers to “moving furniture”. It follows that the first recorded history of the injury is not consistent with the mechanism of injury now sought to be relied upon.
I also reject the submission that there had to be “real doubts” about the reliability of Mr Bramani’s recollection. The work history prepared by Mr Bramani (at p 3 of the Application to Admit Late Documents of 30 March 2017) appears to be a document prepared with the benefit of access to contemporaneous records. The preciseness of the hours worked, the timing of text messages down to the exact minute and the record of the time at which texts messages were received, demonstrates that, in all probability, it was prepared with access to the history of the text message exchanges and perhaps other materials occurring between 10 February 2016 and 8 March 2016. The accuracy of the work history and text message exchanges was not challenged in the proceedings before the Arbitrator except to the extent of the alleged absence of a record of a telephone conversation reporting the injury on 22 February 2016. Mr Curran has not directed me to any evidence to support his submission, other than the commentary in Mr Bramani’s chronology, which for the reasons discussed above (at [62]) does not support his case. Contrary to Mr Curran’s submission, there is no reason to have any “real doubts” about the reliability of Mr Bramani’s notes.
I do not accept Mr Curran’s submissions in relation to the reliability of Mr Birbiri’s evidence. The Arbitrator was required to assess the reliability of Mr Birbiri’s evidence against the “contemporary materials, objectively established facts and the apparent logic of events” Fox v Percy. That is precisely what the Arbitrator did and that is illustrated at [30] above. The submissions, with respect to the acceptance of Mr Birbiri’s evidence, do not address error of the kind discussed in Fox v Percy. Rather, Mr Curran submits that the only “error” revealed in all of Mr Birbiri’s evidence was as to the date of injury. That was not so. As I have indicated above, not only is there an issue with respect to the date of the occurrence of the alleged injury, but when the matter was first reported the most contemporaneous medical records provide a description of injury which is not consistent with Mr Birbiri’s allegations.
The submission that an error in the reporting of the date of injury can be explained by Mr Birbiri being a “rather disorganised individual” is without merit and is rejected. There is nothing “disorganised” regarding Mr Birbiri’s evidence of an injury. He consistently identified 23 February 2016 (not 19 February 2016 as he now claims) as being the date on which he suffered an injury. This included the information provided on the claim form and the history given to the doctors at the Northmead Medical Centre. Further, the certificate issued by Ms Perry was, as the Arbitrator found, more consistent with the injury occurring on 23 February 2016 than 19 February 2016.
Finally, I reject the submission that the text message exchanges and the certificate of Ms Perry should have led the Arbitrator to conclude that the onus of proof had been discharged in Mr Birbiri’s favour. The text message exchanges make no reference to the alleged injury and are not consistent with an injury having occurred as alleged. The submission is inconsistent with the “contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy) for the reasons identified above.
There is a further reason to question Mr Birbiri’s reliability. He said in evidence that he woke up the day after the alleged injury (Saturday 20 February 2016) with “severe low back pain and difficulty walking”. He said that because he did not have a (drivers’) licence he had to wait for his mother to take him to the doctor when she cleared her schedule. He said the pain became unbearable and he “could not even walk”. However, there is nothing in the evidence regarding seeking medical treatment on 20 February 2016. Moreover, the evidence is that he attended a wedding that day, which Mr Birbiri sought to explain by stating that he sat down most of the night, did not dance and left early.
The absence of evidence of medical treatment on 20 February 2016, and his attendance at a social function appears inconsistent with his description of intense pain, allegedly limiting his ability to walk. I raise these matters by way of observation only. As the parties have not addressed this issue, I have not based my decision on it.
For the reasons stated no error has been established and the appeal must fail.

CONCLUSION

The Arbitrator did not accept Mr Birbiri’s evidence regarding the date and circumstances of the alleged injury. The Arbitrator’s findings were consistent with the contemporaneous evidence including the history initially provided by Mr Birbiri to his chiropractor whom he saw within days of the alleged injury. It was also consistent with the information provided in Mr Birbiri’s claim form and histories to treating doctors, which indicated that if an injury did occur, it did not occur on the day Mr Birbiri alleged. No error of the kind discussed in Fox v Percy or Whiteley Muir has been demonstrated. For these reasons the appeal is unsuccessful.

DECISION

The Arbitrator’s Certificate of Determination dated 27 April 2017 is confirmed.

Judge Keating
President

30 August 2017