Dalcol v Ku-ring-gai Council - [2019] NSWWCCPD 5

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Dalcol v Ku-ring-gai Council [2019] NSWWCCPD 5
APPELLANT:	Robert Dalcol
RESPONDENT:	Ku-ring-gai Council
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-3034/18
ARBITRATOR:	Mr N Read
DATE OF ARBITRATOR’S DECISION:	14 September 2018
DATE OF APPEAL DECISION:	20 February 2019
SUBJECT MATTER OF DECISION:	No error in exercise of discretion to exclude cross-examination; Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied; consideration of objective evidence when witness evidence unreliable; Devries v Australian National Railways Commission (1992) 8 CA 41; (1993) 177 CLR 472 and Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 considered and applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Braye Cragg Solicitors
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 14 September 2018 is confirmed.

INTRODUCTION

Mr Robert Dalcol suffered an injury to his right knee on 20 October 2015 for which Ku-ring-gai Council (the Council) accepted liability. These proceedings concern a claim by Mr Dalcol that on 1 December 2016, while travelling by train to a rehabilitation assessment instituted by the Council following surgery to his right knee, Mr Dalcol suffered an injury to his right shoulder.
The claim was disputed and Mr Dalcol lodged an Application to Resolve a Dispute (ARD) in the Commission, seeking weekly payments pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act) and treatment expenses pursuant to s 60 of the 1987 Act. The matter came to arbitration on 21 August 2018.
The Arbitrator determined that he was not satisfied that Mr Dalcol suffered an injury to his right shoulder in the manner alleged and entered an award in favour of the Council.
Mr Dalcol appeals the decision.

BACKGROUND

Mr Dalcol underwent a right total knee replacement on 3 June 2016, following which he had a period of total incapacity. He returned to work on or about 18 October 2016, performing suitable duties and undertaking rehabilitation.
Mr Dalcol alleged that on 1 December 2016, while travelling by train to attend the rehabilitation assessment, a heavily built woman fell on him when the train shunted several times. He alleged that this caused him to fall, landing heavily on his right shoulder.
In the ARD,[1] Mr Dalcol alleged that the right shoulder injury was:
(a)    a “consequential injury” to the right knee injury;
(b)    in the alternative, an injury arising out of or in the course of employment;
(c)    further in the alternative, the injury occurred on a journey to which s 10 of the 1987 Act applied.
[1] ARD, Part 4 – Injury Details.
On 16 February 2017, the Council issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), declining liability for the right shoulder.[2] The Council denied that:
(a)    Mr Dalcol had suffered the alleged injury;
(b)    employment was a substantial contributing factor pursuant to s 9A of the 1987 Act, and
(c)    any incapacity or need for treatment resulted from a compensable injury.
[2] ARD, pp 120–122.

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 indicate that the matter can be dealt with “on the papers” and an oral hearing is not required.
I have had 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 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 pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
Further there is no dispute between the parties that the decision appealed against is final and not of an interlocutory nature.

THE EVIDENCE

Mr Dalcol’s evidence

An investigation into Mr Dalcol’s claim was undertaken by MJM Corporate Risk Services, who obtained a signed statement from Mr Dalcol, dated 22 December 2016.[3]
[3] Reply to Application to Resolve a Dispute (Reply), pp 21–26.
Mr Dalcol described his employment with the Council as an Asphalt Maintenance Team Leader, and that he had been employed by the Council in that role since 2006.
Mr Dalcol stated that prior to 20 October 2015, he had been in good health and had not previously suffered any incident or accident involving his right leg or knee, and that prior to 1 December 2016, he had not been involved in any injury or accident involving his right shoulder or arm. He said that he had not lodged a workers compensation claim before the knee injury on 20 October 2015.
Mr Dalcol described the injury to the right knee on 20 October 2015, when he stepped backwards onto a seed pod, which caused his right knee to move awkwardly, and he fell, experiencing significant pain in his right knee. On return to the depot, he reported the injury.
Mr Dalcol consulted his treating general practitioner, Dr Yogesh Kalra.
Mr Dalcol underwent an arthroscopy for his right knee on 30 November 2015 at the hands of Dr Michael Hunter, orthopaedic surgeon, and ultimately, the total knee replacement on 3 June 2016. Mr Dalcol said he returned to work on 18 October 2016.
Mr Dalcol advised that he was required to attend an assessment by a rehabilitation consultant on 1 December 2016 at 9.00 am in respect of his fitness for employment in relation to his right knee injury. He said that on that day, he commenced work at 7.00 am, did some paperwork, and was then driven by a workmate in the work truck to Gordon Station so that he could catch the train to the appointment. He said that there were no available seats on the train.
Mr Dalcol recalled that he was standing in the train when it shunted forward as the train slowed coming into a station. He said this occurred twice, and the second occasion was more severe, and without warning.
Mr Dalcol said there was a heavily built middle-aged woman standing facing him, who lost her balance and fell towards him. He stated that he tried to stop her falling by reaching out with his left arm but he was too late and she fell towards him, causing him to fall as well. He landed heavily on his right shoulder and the woman landed on top of him. A male passenger came to the assistance of the woman, and then when Mr Dalcol tried to push himself up with his right arm, he felt intense pain and was unable to put weight on his shoulder or arm. He used a seat as leverage to regain his feet.
Mr Dalcol indicated that when he arrived at Town Hall Station, he did not think to report the incident to Sydney Trains and presumed that although his shoulder was sore, the soreness would resolve. He said that he reported the incident to the Rehabilitation Consultant, and because he was being assessed for his knee, only certain activities (such as lifting things to shoulder level) gave him difficulties, so he did not think it was a serious issue.
Mr Dalcol stated he also reported the incident to Mr Peter Shackleton when he returned to the depot. He continued to work on that day and subsequent days, but the pain did not resolve and in fact worsened. He consulted Dr Kalra, who examined him, arranged for an x‑ray and ultrasound, and referred him to Dr John Morton, orthopaedic surgeon, who examined Mr Dalcol on 19 December 2016. At the time of making the statement, Mr Dalcol was to undergo an MRI scan, arranged by Dr Morton.
Mr Dalcol provided a second statement signed and dated 4 June 2018.[4]
[4] ARD, pp 102–112.
Mr Dalcol said that he had been employed by the Council as an Asphalt Maintenance Team Leader since 2001. Mr Dalcol described the injury to the right knee on 20 October 2015, the arthroscopy on 30 November 2015, and the total knee replacement on 3 June 2016. After a period of time off work, he returned to suitable duties.
Mr Dalcol stated that on 16 October 2016, when he was at home mowing his lawn, he fell backwards over a small brick border onto concrete. He said he fell onto his buttocks but also jarred his arms and upper body as he tried to break the fall.
He described soreness in the back and shoulders, which continued on the following day when he returned to work, but said he had no issue with either shoulder after that initial soreness.
Mr Dalcol attended a consultation with Dr Kalra on 1 November 2016 for the purposes of obtaining a WorkCover Certificate in relation to his right knee. Mr Dalcol said that Dr Kalra inquired as to his well-being, and Mr Dalcol advised the doctor that he had fallen and hurt his shoulders.
Mr Dalcol stated that while Dr Kalra was taking his blood pressure with the left arm, he indicated to Dr Kalra that his left arm remained slightly tender.
Mr Dalcol said that he attended Dr Kalra again on 15 November 2016 for a further WorkCover certificate in respect of his right knee.
Mr Dalcol asserted that he had no treatment for his right shoulder, no difficulties with his right shoulder at work, and no ongoing symptoms.
Mr Dalcol advised that he was required to attend the assessment by a rehabilitation consultant on 1 December 2016, as described in his earlier statement. He provided a history of the incident on the train, consistent with his first statement.
Mr Dalcol said there was a heavily built middle-aged woman standing facing him, who lost her balance and fell towards him. He stated that he contemplated holding her up, but because he was not confident of his right knee, he fell with her, landing heavily on his right shoulder and the woman fell on top of him. A male passenger came to the assistance of the woman, and then when Mr Dalcol tried to push himself up with his right arm, he felt intense pain and was unable to put weight on his shoulder or arm. He used a seat as leverage to regain his feet.
Consistent with his earlier statement, Mr Dalcol said he did not think to report the incident to Sydney Trains and presumed that the soreness would resolve. He confirmed that he reported the incident to the Rehabilitation Consultant, and that because he was being assessed for his knee, only certain activities gave him difficulties, so he did not think it was serious.
Mr Dalcol said that he continued to work over the next few days, but despite his belief that the shoulder would resolve, it became worse.
Despite this, he attended Dr Kalra on 2 December 2016 in respect of a skin lesion on his thigh, and again on 5 December 2016 for his right knee. He did not mention his shoulder at either of those consultations.
Mr Dalcol recalled that on either 5 or 6 December 2016, he was suffering from gastric symptoms and attended Dr Kalra on 6 December 2016 to obtain a medical certificate. He said his shoulder pain was worse, and at the consultation, he advised the doctor about the incident in the train.
Mr Dalcol denied that he told the doctor that he was holding onto a bar when the train jolted, which jarred his shoulder. He also denied that he said the incident made his shoulder “worse’, or that it was injured “again.” Mr Dalcol said that Dr Kalra organised for him to undergo an x-ray and an ultrasound and referred him to Dr John Morton, orthopaedic surgeon.
Mr Dalcol referred to a further consultation with Dr Kalra on 9 December 2016, when he clarified with the doctor that the right shoulder was injured in the train incident, and that the mowing incident was not the cause of the problem. Mr Dalcol contended that Dr Kalra’s note that he jarred his shoulder while holding a pole was not a “complete explanation.”[5]
[5] ARD, p 111, [64].
Mr Dalcol provided details of his medical treatment thereafter, including surgery to the right shoulder on 22 March 2017, which Mr Dalcol paid for himself as the insurer declined liability for the cost of it.
Mr Dalcol also filed statements from three co-workers, Mr Peter Shackleton dated 23 May 2018,[6] Mr Adam Gordon Faroe dated 16 May 2018,[7] and Mr Gregory Kneale Faroe dated 17 May 2018.[8]
[6] ARD, p 115.
[7] ARD, p 114.
[8] ARD, p 113.
Mr Shackleton stated that on and before 1 December 2016, he was Mr Dalcol’s supervisor. He stated that he was aware that Mr Dalcol had suffered a work-related injury to his knee and that on 1 December 2016, Mr Dalcol attended a rehabilitation assessment in respect of that injury.
Mr Shackleton recalled that when Mr Dalcol returned from that appointment, he advised Mr Shackleton that the train he caught to attend the appointment had “shunted”, a large lady fell on him and he fell to the floor. He thought that Mr Dalcol may have told him that the lady fell on top of Mr Dalcol and crushed him. Mr Shackleton remembered that at the time, he thought it “a bit humorous” and noted the incident in the diary, a copy of which was attached to his statement. The diary entry recorded:
“Bob Dalcol informed me this morning that he was on his way to the workers comp doctors for his assessment that while on the train it was coming to a stop where he had to alight the train jerked causing a lady to fall onto Bob causing more stress to his knee.”[9]
[9] ARD, p 116.
Mr Adam Faroe said that on 1 December 2016, Mr Dalcol was allocated to work with him on the truck. He said he was aware that Mr Dalcol had to attend a medical or rehabilitation appointment as part of his workers compensation claim that morning. He said that with Mr Shackleton’s approval, he drove Mr Dalcol in the work truck to the train station.
Mr Adam Faroe said that when Mr Dalcol returned to work, he told him, and others in the workplace, that he had an accident on the train when the train jolted and a lady fell over, falling on top of Mr Dalcol. Mr Faroe said that Mr Dalcol mentioned that in the fall, he had hurt his shoulder.
Mr Gregory Faroe confirmed that he was aware that Mr Dalcol had suffered an injury to his knee, and was required to attend a medical or rehabilitation appointment on or about 1 December 2016. Mr Gregory Faroe could not recall whether he had been working on that day, but did recall that either on that day or the following day, Mr Dalcol told him about an accident on the train on the way to the appointment. Mr Faroe said he did remember that Mr Dalcol mentioned that the train had shunted, and he had fallen over and hurt his shoulder. Mr Faroe remembered that Mr Dalcol told him that a woman had fallen over as well, but could not recall whether the woman fell on Mr Dalcol, or Mr Dalcol fell on her.
A bundle of rehabilitation reports produced by Kairros occupational rehabilitation service were in evidence.[10] Relevantly, the Rehabilitation Services Closure report signed by Ms Jane Forsythe recorded:
“On 1 December 2016, Mr Dalcol attended a functional assessment with Ms Do (Kairros P/L) in the Sydney City office. Whilst travelling to the appointment via train, Mr Dalcol reported having to stand due to the train being full and he fell onto his right shoulder when he attempted to catch a lady who was falling.”[11]
[10] ARD, pp 88–101.
[11] ARD, p 99.

Mr Dalcol’s medical evidence

Mr Dalcol relied upon progress notes made by Dr Kalra between 10 November 2015 and 31 January 2017.[12] The notes disclose attendances on 5 September 2016, 17 October 2016, 1 November 2016 and 15 November 2016. Those notes do not refer to any complaint in relation to the right shoulder.
[12] ARD, pp 14–63.
Mr Dalcol attended Dr Kalra again on 5 December 2016. Dr Kalra noted that Mr Dalcol had attended for a work site assessment accompanied by a rehabilitation consultant and was able to lift 8 kilograms from floor to waist with both hands and his ability to lift from waist to eye level was normal. Again, there was no mention of right shoulder symptoms.
The first mention in the notes of right shoulder symptoms was on 6 December 2016. Dr Kalra recorded as follows:
“right shoulder pain
Examination
right hand dominant
fell on the right shoulder– tripped on a brick wall
(happened at home)–20/10/16
made it worse while standing on a train and holding the barwith [sic] the right [a]rm, train moved and in the process jarred the right shoulder again – last week”[13]
[13] ARD, p 57.
Mr Dalcol returned to see Dr Kalra on 7 December 2016 and the results of an x-ray and ultrasound of the right shoulder were discussed. Mr Dalcol attended again on 9 December 2016. Dr Kalra noted:
“Worker’s compensation assessment
states injury at home on 20/10/16 was on the left shoulder
jarred right shoulder on 1/12/16 while holding on to trainbar pole for passengers”.[14]
[14] ARD, p 59.
A further entry in the notes made on 3 January 2017 recorded:
“shoulder claim on the same claim number
seeing exercise physiologist weekly for left knee and left shoulder
had MRI right shoulder–f/u with Dr Morton
will be seeing physio for right shoulder”.[15]
[15] ARD, p 61.
In a response to a facsimile transmission dated 9 December 2016 from StateCover Mutual Ltd, Dr Kalra described that the shoulder injury occurred on 1 December 2016 while Mr Dalcol was holding on to the bar (pole) of the train when the train moved and jolted Mr Dalcol’s right shoulder.[16]
[16] ARD, p 83.
A bundle of WorkCover certificates signed by Dr Kalra were annexed to the ARD.[17] The description in each relevant certificate of how the injury incurred was “was on duty while in train when jarred his right shoulder.”
[17] ARD, 67–82.
Doctor Morton’s operation report dated 22 March 2017 was also in evidence, confirming that Dr Morton performed a right shoulder capsulotomy and cuff debridement on that day, and that a supraspinatus tendon tear with chronic retraction was irreparable.[18]
[18] Dr Morton’s report dated 22 March 2017; ARD, 85–86.
Associate Professor Leon Kleinman provided a medico-legal report dated 1 August 2017.[19]
[19] ARD, pp 1–13.
Associate Professor Kleinman recorded the history of injury, treatment and symptoms in Mr Dalcol’s right knee. In relation to the right shoulder, A/Professor Kleinman recorded the following history:
“Right Shoulder
Following his right total knee joint replacement, in approximately November 2016, he was mowing the lawn at home and he was walking backwards while pulling the lawn mower. There was a row of single bricks which edged the lawn and he tripped on the bricks and fell backwards. As he fell he extended his arms behind him and he landed on his arms on a concrete slab.
He felt a bit of pain in his shoulders but he was able to pick himself [sic] and the following day he went to work.
He then consulted his general practitioner for a routine check up on his right knee and he mentioned to his doctor that he had the fall, which the doctor noted down, but his shoulders were not bothering him at the time.
About four weeks later, in December 2016, he had to go to Sydney for an assessment of his right total knee joint replacement. He was standing on a crowded commuter train, hanging onto a pole for support when the train suddenly shunted and moved forward. A few minutes later the train shunted again and [a] woman who was standing, nearby, lost her balance and fell towards him. He attempted to prevent her from falling but they both fell and he landed on the floor, struck his right shoulder on the floor and she landed on top of him.
He immediately developed pain in his right shoulder as a result of the fall. Two other passengers helped him and the woman up after the fall and he continued the train journey to have his assessment in Sydney.
When he arrived for his assessment, he told the secretary that he had fallen on the train and that his right shoulder was painful. As a result there were certain activities that he could not perform during the assessment because he could not lift his right arm above shoulder level.”[20]
[20] A/Professor Kleinman’s report; ARD, p 6.

Associate Professor Kleinman recorded Mr Dalcol’s symptoms and details of treatment and reviewed the radiological investigations. A/Professor Kleinman was asked to provide an opinion as to whether Mr Dalcol’s right shoulder condition related to the incident on the train. The question posed by Mr Dalcol’s legal representatives, and A/Professor Kleinman’s response was as follows (emphasis in the original):
“3. The relationship between the condition found on examination and the injuries sustained in the accident. In respect of the shoulder injury, please simply confirm (if it is your view) that the injury occurred during his journey to a rehabilitation appointment.
In respect of the train incident, there are some confusing elements to the history. Our client makes reference, as does his GP, to a very minor incident which occurred when he tripped over a small retaining wall whilst mowing. He is absolutely clear however that this caused him to have no time off work. He did not have any treatment for it at all. He simply mentioned it and even the timing of mentioning it is somewhat cloudy.
The incident on the train was a very significant incident. A lady fell upon him due to the train’s sudden movement. He fell completely to the ground onto his right side with her on top of him and had immediate and severe pain afterward. The insurer’s version as given to Dr Morton for his opinion completely downplays this incident.
Of course, you will take your own history of the matter but this is probably the contentious aspect of the claim. We need to know whether it is your view that the train incident is the main/substantial contributing factor to the right shoulder injury.
…
Ten per cent of people in their fifties and fifteen per cent of people will have asymptomatic tears in the rotator cuffs of their shoulders.
The operative findings of Dr Morton on arthroscopy of his shoulder indicate that the tear of the supraspinatus tendon of his right shoulder was longstanding and pre-existed the fall at home. The fall at home only caused a minor aggravation of the tear of the rotator cuff of his right shoulder and his shoulder recovered.
The fall on the train caused a significant aggravation of the pre-existing tear in the rotator cuff of his shoulder and following the fall he had ongoing significant pain and loss or movement in his right shoulder for which he came to surgery to his shoulder. Therefore the fall on the train was a substantial contributing factor to his right shoulder condition.”[21]
[21] A/Professor Kleinman’s report; ARD, p 10.

The Council’s evidence

In addition to extracts from the clinical notes discussed above, and Mr Dalcol’s statement to the investigator dated 22 December 2016 which is also discussed above, the Council relevantly relied on a report of Dr Morton dated 3 February 2017 and an email dated 10 January 2017 from Ms Theresa Do, Occupational therapist, who was employed by the rehabilitation consultancy, Kairros.
Ms Do confirmed that Mr Dalcol did report an incident to her when he arrived at the functional assessment on 1 December 2016. She recalled that he was experiencing soreness in his shoulder as a result of the train coming to a sudden stop, which caused his shoulder to pull whilst holding the bar. Ms Do confirmed that Mr Dalcol did report some shoulder discomfort during the assessment, which was not significant and did not prevent him from completing the assessment.[22]
[22] Reply, pp 35–36.
Doctor Morton was asked by the Council to consider the history provided by Mr Dalcol to Dr Kalra on 6 December 2016 and whether, on the basis of that history, the incident on the train was a substantial contributing factor to the injury and need for surgery.
Doctor Morton responded:
“In response to question 1 I was unaware of any prior injury to Mr Dalcol’s right shoulder during my initial consult which occurred on the 21/12/2016 (copy enclosed). He specifically denied any prior injury to either shoulder and maintains he had normal shoulder function prior to the incident described on the 1/12/2016. If there was an earlier significant injury to the shoulder as suggested in the consult notes of Dr Kalra dated 6/12/2016 where [there was] the significant fall on the 20/10/2016 this could account for the majority of the injury with a simple aggravation of his symptoms in the trauma listed as occurring on the 1/12/2016. It would be more likely that the original trauma was the source of the major contributing factor and the need for surgery.”[23]
[23] Dr Morton’s report; Reply, p 6.
Doctor Morton was also asked to comment on the pathology found on the MRI scan and its consistency with the incident on the train. Dr Morton replied:
“The trauma sustained to the right shoulder would require significant acute trauma or an exacerbation of a longstanding chronic cuff tear, again the incident on the train is less likely to be the definitive index cause.”[24]
[24] Dr Morton’s report; Reply, p 7.

THE ARBITRATOR’S REASONS

The Arbitrator identified the issues that required determination as follows:
(a)    whether Mr Dalcol’s right shoulder injury was a “consequential injury” that resulted from his right knee injury;
(b)    if not, whether Mr Dalcol’s right shoulder injury was an injury pursuant to ss 4 and 9A of the 1987 Act, and
(c)    if not an injury pursuant to ss 4 and 9A, or a consequential condition, whether Mr Dalcol sustained an injury received on a journey to which s 10 of the 1987 Act applies.
The Arbitrator noted the agreement between the parties that Mr Dalcol’s pre-injury average weekly earnings was $1,122.35.
After a detailed review of the evidence, the Arbitrator observed that it was first necessary for him to resolve the factual issue as to whether Mr Dalcol suffered a right shoulder injury when a lady fell on him in the train. He further observed that he was only required to determine whether compensation was payable if the injury occurred as alleged. Citing Nguyen v Cosmopolitan Homes (NSW) Pty Ltd[25] and Malec v JC Hutton Pty Limited,[26] he observed that the onus rested on Mr Dalcol to prove his case on the balance of probabilities.
[25] [2008] NSWCA 246 (Nguyen).
[26] [1990] HCA 20; 169 CLR 638.
The Arbitrator noted Mr Dalcol submitted at the arbitration that his evidence should be accepted because he was not cross-examined. The Arbitrator observed that the Commission is “front-end loaded,” all documents must be lodged before the arbitration, and that late evidence can only be admitted if leave is granted. He further observed that there is no right to cross-examine in the Commission, and a failure to apply to cross-examine does not prevent a party from making submissions as to whether the evidence ought to be accepted or rejected on the basis of credit. Referring to Masterton Homes Pty Ltd v Palm Assets Pty Ltd[27] and Donovan v Secretary, Department of Education and Communities,[28] the Arbitrator said that there is no requirement to accept evidence that was not the subject of cross-examination.
[27] [2009] NSWCA 234.
[28] [2015] NSWWCCPD 27.
The Arbitrator considered the decision of Keating P in Department of Education and Trainingv Ireland,[29] and his Honour’s discussion of the relevance of contemporaneous evidence such as clinical notes or medical reports. The Arbitrator said that Keating P warned against decision-makers relying on findings of credit rather than the evidence and that, in determining questions of credit, all evidence must be weighed up. The Arbitrator noted the factual differences between Ireland and Mr Dalcol’s case, but said that the principles were still applicable.
[29] [2008] NSWWCCPD 134 (Ireland).
The Arbitrator expressed hesitation in relation to whether he could accept that Mr Dalcol’s evidence was a truthful account of what happened on 1 December 2016. He said that in Mr Dalcol’s first statement, he denied any prior injury to the right shoulder or arm, as well as denying to Dr Morton that there had been any prior injury. In the light of the earlier injury at home, those denials were untruthful. The Arbitrator considered that following the information of the earlier incident coming to light, Mr Dalcol sought to downplay the significance of the earlier injury. The Arbitrator said that caused him to doubt Mr Dalcol’s evidence concerning those matters and also doubt Mr Dalcol’s explanation of what was said at the consultation with Dr Kalra on 6 December 2016.
The Arbitrator observed that Mr Dalcol did not rely on the shunting of the train itself as causing him pain, and that was the history provided to both Dr Kalra and Ms Do.
The Arbitrator pointed out the inconsistency in the description of the mechanics of the fall between Mr Dalcol’s two statements. The first statement (made just three weeks after the alleged incident) asserted that he was attempting to grab the falling lady with his left arm, when they both fell. Mr Dalcol did not mention in the first statement that he could not “trust” his right knee, which was mentioned in his second statement. The Arbitrator felt that although it was a minor variation, it was a belated attempt to establish a connection between the right shoulder symptoms and the right knee injury. The Arbitrator indicated that this also led him to doubt Mr Dalcol’s evidence as a whole.
The Arbitrator observed that there was no eyewitness evidence, and no contemporaneous record of the complaint that the lady fell on Mr Dalcol. The only corroborative evidence came from Mr Dalcol’s co-workers, whose statements were made approximately 18 months after the injury. The Arbitrator formed the view that the co-workers’ statements, while corroborative, were of limited evidentiary value because they were reliant on what they had been told by Dr Dalcol.
In relation to Mr Shackleton’s diary entry, the Arbitrator reiterated that the entry recorded was dependent upon what he had been told by Mr Dalcol. Further, the diary entry, while somewhat supportive of the event having occurred in the manner asserted, lacked specificity. In particular, it was important that the diary entry did not refer to a traumatic injury to Mr Dalcol’s right shoulder, but instead referred to causing further stress to the right knee. Mr Dalcol gave no direct evidence of what he told Mr Shackleton and Mr Shackleton gave no evidence of an injury to the right shoulder.
The Arbitrator said that he was required to weigh the evidence that supported Mr Dalcol’s events against the competing evidence, in particular the contemporaneous records of Dr Kalra and the evidence of Ms Do. He noted the submission made by Mr Dalcol that he should exercise caution in placing weight on the clinical notes, and should prefer Mr Dalcol’s explanation of the entry made on 6 December 2016, relying on Mason v Demasi.[30]
[30] [2009] NSWCA 227 (Demasi).
The Arbitrator acknowledged that the clinical note was a summary, but also noted that it contradicted Mr Dalcol’s evidence. The Arbitrator considered the reasons provided by Basten JA in Demasi as to why clinical notes ought to be treated with caution, and concluded that he was not satisfied that such caution should be exercised in this case. He reasoned that had such a dramatic event occurred, it would be accurately recorded by Dr Kalra, but on 9 December 2016, the doctor’s records in fact confirmed the mechanism of injury as holding onto a bar when the train moved jarringly, consistent with the earlier note on 6 December 2016, and subsequently included that description on the WorkCover certificate dated 6 December 2016.
The Arbitrator said that Ms Do’s recollection of the event was consistent with the clinical notes, and Ms Do gave no recollection of being told of such a dramatic event as described by Mr Dalcol. The Arbitrator considered Ms Do’s evidence was important, because it was an independent recollection of what she was told at the assessment immediately after the event, and was consistent with Dr Kalra’s clinical note. He concluded that when considering the evidence as a whole, and applying Nguyen, he was not persuaded that an incident occurred on 1 December 2016 where a lady fell on Mr Dalcol, causing injury to his right shoulder.
Although he said it was unnecessary to do so, the Arbitrator proceeded to consider the more likely factual circumstances that led to the right shoulder condition. The Arbitrator thought it more probable that the incident at home in October 2016 was a significant trauma, that on Mr Dalcol’s evidence, troubled him to the extent that he mentioned it to Dr Kalra at the consultation on 1 November 2016. According to the clinical notes, he mentioned it again on 6 December 2016. The Arbitrator noted that Mr Dalcol had returned to work shortly after the incident at home, but the duties of performing road shoulder inspections were selective and unlikely to involve forceful or repetitive use of his right shoulder. The Arbitrator observed that Mr Dalcol’s assertion that the right shoulder symptoms after the fall resolved was inconsistent with the evidence of complaints to Dr Kalra. He concluded that it was more probable that Mr Dalcol had suffered a traumatic injury to his right shoulder, suffered ongoing pain, and was temporarily aggravated by the train journey to the rehabilitation clinic.
The Arbitrator rejected the opinion of A/Professor Kleinman because it was reliant on the history that a lady fell on him, causing him to fall.
The Arbitrator noted the opinion of Dr Morton that was contingent upon there being a significant traumatic injury in October 2016, which the Arbitrator accepted did occur. The Arbitrator accepted Dr Morton’s opinion that the incident on the train was less likely to be causative of the right shoulder injury.
The Arbitrator concluded that on the basis of his factual finding, he was not satisfied that Mr Dalcol had suffered a “consequential injury” on 1 December 2016, or any other injury to his right shoulder.
The Arbitrator issued a Certificate of Determination on 14 September 2018, which records:
“1. Award for the respondent on the allegation of injury to the right shoulder.”

GROUNDS OF APPEAL

Mr Dalcol’s appeal grounds are poorly drafted and can only be properly understood by reading them in the context of the submissions made in support of the appeal. Ultimately, it is apparent that Mr Dalcol brings two grounds of appeal, both of which are dependent upon an acceptance of the pleaded factual matrix which was alleged to have resulted in the injury. The grounds can be expressed as follows:
(a) Ground One: the Arbitrator erred in law in finding that he was not satisfied that Mr Dalcol was injured as alleged, and
(b) Ground Two: the Arbitrator erred by failing to determine, or failing to accept, that Mr Dalcol suffered:
(i)an injury pursuant to ss 4 and 9A of the 1987 Act; or alternatively
(ii)an injury condition causally related to his right knee injury (a “consequential injury”), or alternatively
(iii)an injury to which s 10 of the 1987 Act applies.

SUBMISSIONS

Ground One: The Arbitrator erred in law in finding that he was not satisfied that Mr Dalcol was injured as alleged.

Mr Dalcol submits that the Arbitrator’s finding that he was not satisfied that Mr Dalcol was injured when he fell on a train was not available to the Arbitrator and was contrary to the evidence presented, as well as against the weight of the evidence. Mr Dalcol contends that the finding was not available to the Arbitrator in circumstances where Mr Dalcol’s credit was not tested.
Mr Dalcol asserts that the Council called no lay evidence, and relied on documentary evidence which was directly rebutted by Mr Dalcol’s statements and the statements of three other employees of the Council, as well as the Council’s own contemporaneous records.
Mr Dalcol refers to his attempt at the arbitration to give oral evidence and be cross-examined, and submits that he did not expect that an attack by the Arbitrator would be made on his credit, based on inconsistent histories.
Mr Dalcol asserts that the Arbitrator erred in his consideration of the weight of the evidence, by rejecting Mr Dalcol’s statement evidence, as well as the evidence of his three co-workers in favour of the clinical notes. Mr Dalcol says that there was a cogent and rational explanation provided in relation to the inconsistencies.
Mr Dalcol submits that the rejection of his statement evidence, which had been admitted without cross-examination having taken place, was not available, plainly wrong, and “infected with unfairness.”[31]
[31] Mr Dalcol’s appeal submissions, p 2 [4].
Mr Dalcol points out that no record was made of the October 2016 incident by Dr Kalra until Mr Dalcol consulted him in relation to the incident on the train. Mr Dalcol contends that his evidence was that there was no loss of time from work, no treatment sought and no medication regime, which is “consistent with the transient nature of the earlier incident” and the reason it was not recorded earlier.[32]
[32] Mr Dalcol’s appeal submissions, p 3 [6].
Mr Dalcol submits that the Arbitrator was in error to elevate the incident to a level of being considered a concurrent or primary issue.
Further, Mr Dalcol submits the Arbitrator erred in accepting the report of Dr Morton. He says that the Arbitrator’s finding that Mr Dalcol’s denial of any previous injury was damaging to his credit fails to take into account that the referral to Dr Morton was done by Dr Kalra. Mr Dalcol says that if the previous history was relevant, Dr Kalra would have informed Dr Morton. He says that the only logical conclusion was that the incident in October was transient and irrelevant to the presentation to Dr Morton.
In any event, Mr Dalcol submits, the “high water mark” of any finding by the Arbitrator would be that Dr Morton’s opinion was that the earlier incident “could account for the majority of his injury, with a simple aggravation …”. Mr Dalcol contends that the opinion is not “exculpatory for liability” in terms of how the case was pleaded, as it required acceptance that the incident in October was a significant, rather than transitory event.[33]
[33] Mr Dalcol’s appeal submissions, p 3 [7].
Mr Dalcol asserts that the Arbitrator misapplied Demasi, misunderstood the context and timing of the reported incident, and the weight accorded to the evidence was unavailable.
Mr Dalcol submits that “injury” includes an “aggravation” and that the changes present in the pathology, which were addressed in the surgery performed by Dr Morton, are consistent with the pleaded injury, and to find otherwise is simply wrong.
In relation to Ms Do’s evidence, Mr Dalcol asserts that the entry in the Rehabilitation Services Closure Report dated 16 February 2017 confirms that Ms Do reported to Ms Jane Forsyth that the incident involved a fall on a train when Mr Dalcol attempted to catch a lady. Mr Dalcol further asserts that Ms Do’s memory was vague when she was “later” asked to recall what was reported. He says that consideration had to be given to the fact that Mr Dalcol was attending the assessment for his right knee injury, which was the focus of the assessment. Mr Dalcol submits that it is logical and consistent that it was not noted that the right shoulder symptoms were significant in the circumstances where the focus was on the right knee. Mr Dalcol says that evidence clearly corroborates the incident of a fall on the train, was supportive of his case, and was ignored by the Arbitrator.
Mr Dalcol maintains that the Arbitrator’s credit finding was in error and unfair because there was no opportunity for the Arbitrator to observe his demeanour and the inconsistencies in the evidence were fully and cogently explained.
In reply, the Council submits that the Arbitrator was able to point to the following evidence:
(a)    Mr Shackleton’s contemporaneous diary note made no reference to a right shoulder injury;
(b)    Ms Do’s email that she recalled the incident as a shoulder strain while holding onto the bar in the train;
(c)    the evidence of Mr A Faroe and Mr G Faroe was equivocal in that Mr G Faroe could not recall precisely what he was told and neither of the men were eye witnesses, and
(d)    the failure of Mr Dalcol to give a history to Dr Morton of the earlier incident.

The Council submits that the Arbitrator afforded some weight to the co-workers’ statements, but preferred the evidence in Dr Kalra’s records and Ms Do’s email.
The Council contends that the Arbitrator carefully provided reasons and was strongly persuaded that he could not accept Mr Dalcol’s account of the injury.
In relation to Dr Kalra’s notes, and the absence of a record of any complaint prior to the train incident, the Council says that there was no consultation on 20 October 2016, and the next visit, which was on 1 November 2016, was for the purpose of obtaining a WorkCover certificate in respect of the right knee. The Council submits that the doctor’s notes do not detract from the history recorded in the entry on 6 December 2016. The Council submits that the reality is that Mr Dalcol chose not to tell Dr Morton about his earlier shoulder injury.
The Council describes Mr Dalcol’s assertion that the incident in October 2016 was transient and irrelevant as a “disingenuous” assertion. It says that Dr Morton considered that the missing history was of major significance. Further, A/Professor Kleinman’s report was prepared six months after Dr Morton dealt with the corrected history, and A/Professor Kleinman’s opinion was of limited value.
The Council contends that, where there is a conflict between witnesses, it is the Arbitrator’s role to decide which evidence is acceptable and whose opinion is preferred and that was recognised by the Arbitrator in his reasons. Additionally, the Council submits that it is reasonable to find a balance of probabilities, notwithstanding that the conclusion falls short of certainty, citing Bradshaw v McEwans Pty Ltd.[34]
[34] [1951] HCA 480; 217 ALR 1.
The Council further submits that the accuracy of the medical history was squarely put in issue in the notice issued pursuant to s 74 of the 1998 Act, that pointed to the discrepancies in that history, Dr Morton’s opinion on causation and the failure to disclose to Dr Morton the earlier injury.
In relation to the absence of cross-examination, the Council cited the Court of Appeal decision in Aluminium Louvres & Ceilings Pty Ltd v Zheng.[35] The Council referred to the principles set out in that decision, that is, that there is no legal right to cross-examination in the Commission, and whether to allow or limit cross-examination is a matter reserved for the exercise of the Arbitrator’s discretion.
[35] [2006] NSWCA 34; 4 DDCR 358 (Zheng).
The Council says that Mr Dalcol did not disclose his earlier injury in the first statement he provided to the Council’s investigators or to the rehabilitation provider. Further, the history provided to Dr Kalra six days after the injury was not that a large woman fell on him, but rather that he suffered a jarring injury while holding the bar. There was also no evidence from Dr Kalra explaining the omission.
The Council contends that the Arbitrator dealt with the matter comprehensively, and Mr Dalcol’s submissions do not challenge the Arbitrator’s reasoning. It says that the Arbitrator was entitled to assess the evidence and weigh the competing evidence, and to arrive at the decision that Mr Dalcol had not provided a truthful account of what happened on 1 December 2016. The Council submits that as a general rule, the trial judge is in the best position to determine issues of credit, and an appellate court will be reluctant to intervene, citing as an example Abalos v Australian Postal Commission..[36]
[36] [1990] HCA 47; 171 CLR 167.
The Council maintains that there were a number of pieces of evidence that entitled the Arbitrator to draw legitimate adverse inferences about Mr Dalcol’s credit, which included the contents of the entry in Dr Kalra’s notes recorded on 6 December 2016 (which mentioned nothing of a fall), and Mr Dalcol’s express assertion that he had never before suffered an injury to his right arm or shoulder.
The Council concludes that the Arbitrator’s findings are compelling and should not be disturbed.

Ground Two: The Arbitrator erred by failing to determine, or failing to accept, that Mr Dalcol suffered:

(a)an injury pursuant to ss 4 and 9A of the 1987 Act; or alternatively
(b)an injury condition causally related to his right knee injury (a “consequential injury”), or alternatively
(c)an injury to which s 10 of the 1987 Act applies.

Mr Dalcol says that his version of how the injury occurred should have been accepted, and that if it had been accepted, the Arbitrator would have been in a position to determine these other significant issues.
The Council says it makes no submission in respect of this ground of appeal.

The relief sought

Mr Dalcol seeks to have the finding that he did not suffer the injury as alleged revoked and that a finding should be made in his favour. He further seeks that the remaining issues then be determined on the papers.
The Council seeks to have the appeal dismissed and the Certificate of Determination confirmed.

DISCUSSION

Mr Dalcol’s appeal rises or falls on whether the Arbitrator erred in respect of his determination that he was not satisfied that the pleaded mechanism of injury occurred as alleged. Mr Dalcol identifies the errors as:
(a) failing to allow cross-examination (denial of procedural fairness), and
(b) preferring the evidence of the general practitioner, Dr Kalra, the occupational therapist, Ms Do and the opinion of Dr Morton (the weight of the evidence).
Mr Dalcol’s complaint that the Arbitrator ought to have allowed oral evidence and observed Mr Dalcol’s demeanour under cross-examination before proceeding to assess his credibility fails to take into account the well-established principles that apply to procedures in the Commission. Those principles and procedures were discussed by Bryson JA (with Handley JA and Bell J agreeing) in Zheng, as follows:
“The requirements of the rules for information to be lodged in advance and for statements revealing the cases of parties to be made in advance, taken with the width of the sources of information on which the Commission is authorised to act and the ways in which it is authorised to proceed, mean that assumptions upon which common law trials are conducted should not be readily carried over when testing contentions that a hearing before an Arbitrator was not conducted in a fair way. The overall and continuing duty under s.355 to use best endeavours to bring the parties to settlement acceptable to all of them must have large influence on the manner in which proceedings are conducted. The environment of contestation and the confrontational methods of the common-law trial would not usually be appropriate; there may be issues of kinds which it is appropriate to deal with in that style, and much is left to the discretion of the Arbitrator. The Arbitrator is in a good position to decide on and to impose appropriate controls on the adduction of evidence, by cross-examination or otherwise. The Arbitrator will usually be in a position to perceive whether a wish to pursue an issue has a basis, whether it is a sound basis, whether some issue or line of questions is merely exploratory, or for that matter whether questions are merely the product of inventiveness.”[37]
And
“An assessment of whether the Arbitrator’s decision should be set aside for want of procedural fairness is no simple matter and could not be disposed of by applying any legal tests susceptible of clear statement relating to entitlement to cross-examine an applicant, or a witness. There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.”[38]
[37] Zheng, [25].
[38] Zheng, [37].
The basis upon which Mr Dalcol asserts that he should have been cross-examined is that the Arbitrator ought to have had the opportunity to observe his demeanour. The decision to allow, limit or deny an application to cross-examine is a discretionary decision.
In order for Mr Dalcol to succeed in disturbing the Arbitrator’s discretionary decision to deny him the opportunity to give oral evidence, following the principles set down in Micallef v ICI Australia Operations Pty Ltd,[39] Mr Dalcol must establish that the Arbitrator either:
“(a)    made an error of legal principle,
(b)     made a material error of fact,
(c)     took into account some irrelevant matter,
(d)     failed to take into account, or gave insufficient weight to, some relevant matter, or
(e)     arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”[40]
[39] [2001] NSWCA 274 (Micallef).
[40] Micallef, [45].
In his submissions, Mr Dalcol has failed to identify any of the above errors. His complaint is that the Arbitrator should have observed his demeanour before rejecting his evidence on the basis of credit, and the Arbitrator’s decision was plainly wrong.
There is no obligation on a decision maker to observe the demeanour of a witness[41] and the assessment of the credibility of a witness by observations of demeanour should be treated with caution.[42]
[41] MZWIQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1636, [13].
[42] Fox v Percy [2003] HCA 22; 214 CLR 118, [129]; Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, [16]–[31].
In any event, the Arbitrator is entitled to assess the credibility of the evidence before him without it having been tested in cross-examination. Evidence that is uncontested by cross-examination may be rejected where it is inherently inconsistent,[43] or where there is a credible body of evidence that contradicts it.[44]
[43] M & E M Hull Pty Ltd v Thompson [2001] NSWCA 359 (Rolfe AJA, Sheller JA and Davies AJA agreeing), [21].
[44] HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302 (Tobias JA, Mason P and Hodgson JA agreeing), [86]–[87].
Mr Dalcol submits that he did not expect that there would be an attack on his credibility based on the inconsistencies in the evidence. As the Council submits, the issues that were raised, and the reasons given for raising those issues, were clearly spelled out in the notice issued pursuant to s 74 of the 1998 Act. Mr Dalcol ought to have been aware of the issues going to credit.
Applying the principles in Micallef, the Arbitrator made no error of fact or legal principle, did not fail to take into account a relevant matter nor did he give insufficient weight to a relevant matter. He did not take into account an irrelevant matter. His decision was not so unreasonable or unjust that it would suggest such an error had occurred.
Mr Dalcol further complains that the Arbitrator should have preferred his evidence over that of the Council.
Questions of the acceptance of evidence and the weight it is given are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of the evidence that some error must have been involved.[45]
[45] Shellharbour City Council v Rigby [2006] NSWCA 308.
The Arbitrator’s finding in relation to the acceptance or otherwise of the evidence is a finding of fact. In Devries v Australian National Railways Commission,[46] Brennan, Gaudron and McHugh JJ said:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based upon the creditability 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 creditability 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 advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”[47]
[46] [1993] HCA 78; 177 CLR 472 (Devries).
[47] Devries, 479.
In Brines v Westgate Logistics Pty Ltd,[48] President Keating made the following further observations in his consideration of the legal principles that apply in respect of such findings:
“Moreover in recent times both at first instance and on appeal judges are encouraged to limit their reliance on the appearances of witnesses and should place greater emphasis in reaching their conclusions on the basis of objective evidence and the apparent logic of events. Whilst this does not eliminate the established principles concerning the credibility of witnesses it tends to reduce the occasions where those principles are seen as critical”[49]
[48] [2008] NSWWCCPD 43 (Brines).
[49] Brines, [84].
The Arbitrator identified the inconsistencies in Mr Dalcol’s evidence, including the denial in his first statement of any prior right shoulder injury (which was untruthful) and the inconsistency between the first and second statements in respect of the mechanics of the fall. The Arbitrator also took into account Mr Dalcol’s denial to Dr Morton of any prior shoulder injury. The Arbitrator identified that those elements of Mr Dalcol’s evidence caused him to have some concerns as to the reliability of Mr Dalcol’s account of the injury.
The Arbitrator gave consideration to the statements of the three co-workers. While he gave some weight to those statements, he gave logical reasons for not finding them compelling.
The Arbitrator proceeded to examine the objective contemporaneous records that might have given support for Mr Dalcol’s case. That approach was consistent with the New South Wales Court of Appeal authorities in Malco Engineering Pty Ltd v Ferreira[50] and Divall v Mifsud,[51] and the approach taken by Keating P in Brines. The Arbitrator took into account the factors expressed by Basten JA in Demasi as to why caution should be exercised when considering a busy general practitioner’s notes. He concluded that details of the mechanism of injury in the entry on 6 December 2016, which were confirmed in the entry on 9 December 2016, and consistent with Dr Kalra’s response in the facsimile dated 9 December 2016, was more reliable than Mr Dalcol’s inconsistent account.
[50] (1994) 10 NSWCCR 117 (Ferreira).
[51] [2005] NSWCA 447 (Divall).
Further, the Arbitrator noted Ms Do’s email evidence as to the mechanism of injury, written only approximately seven weeks after the event, was also consistent with Dr Kalra’s notes.
It is relevant to note that Mr Dalcol asserts that the Rehabilitation Closure Report discloses that Ms Do’s evidence supports his case. That document is not a first-hand record of what Ms Do reported. It is a document written by Ms Forsyth and dated 17 February 2016, and the account of the incident as reported by Ms Forsyth is at odds with Ms Do’s earlier statement. Its forensic reliability in respect of what Ms Do was actually told is questionable.
The Arbitrator gave logical and cogent reasons as to why he preferred the evidence discussed at [128]–[130] above to that of Mr Dalcol and his three co-workers. Even if, after a consideration of the evidence, I would have reached a different conclusion to that of the Arbitrator (which I would not), that is insufficient to overturn the decision.
Mr Dalcol has not established any error on the part of the Arbitrator in respect of ground one of the appeal and that ground fails.
Mr Dalcol’s second ground of appeal is contingent upon Mr Dalcol succeeding in establishing the mechanism of injury was as pleaded. He has failed to establish that it was. In the circumstances, it was not necessary for the Arbitrator to consider whether Mr Dalcol suffered a “consequential injury” or an injury to which s 10 of the 1987 Act applied.
The Arbitrator’s consideration of whether the injury was a “consequential injury” lead him to form the view that Mr Dalcol’s assertion that he was “protecting” his right knee in the incident was a recent invention to attempt to establish a causal connection between the shoulder condition and the right knee injury. The Arbitrator’s conclusion was obiter dictum.
In respect of ground two of the appeal, Mr Dalcol asserts that the pleaded injury should have been accepted. He makes no other submission. An allegation of error on the part of the decision maker must be supported by submissions identifying why it is that the decision-maker erred and how the error is alleged to have occurred. In the circumstances, the Arbitrator’s decision that Mr Dalcol did not suffer an injury in the circumstances as alleged was not tainted by error and must stand. It follows that this second ground of appeal, which is dependent upon an acceptance of the injury having occurred as alleged, must also fail.
The Arbitrator’s decision is confirmed.

DECISION

137.The Certificate of Determination dated 14 September 2018 is confirmed.

Elizabeth Wood

DEPUTY PRESIDENT

20 February 2019