Davis v Ryco Hydraulics Pty Ltd - [2017] NSWWCCPD 5

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Davis v Ryco Hydraulics Pty Ltd [2017] NSWWCCPD 5
APPELLANT:	Mathew Davis
RESPONDENT:	Ryco Hydraulics Pty Ltd
INSURER:	Allianz Australia Workers Compensation NSW Ltd
FILE NUMBER:	A1-1787/16
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	30 September 2016
DATE OF APPEAL DECISION:	10 March 2017
SUBJECT MATTER OF DECISION:	Identification and correction of error; s 352 of the Workplace Injury Management and Workers Compensation Act 1998; weight of evidence
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Ian Collins Solicitor
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 30 September 2016 is confirmed.

INTRODUCTION

The appellant worker challenges the Arbitrator’s factual finding that he did not sustain an injury to his left elbow arising out of or in the course of employment on 3 September 2014, in circumstances where the respondent employer accepted liability for injury to the neck and both shoulders arising from the same incident.
For the reasons explained in this decision, the appeal is unsuccessful.

BACKGROUND

From 2014, the appellant worker, Mathew Davis, worked as a hose assembler for the respondent employer, Ryco Hydraulics Pty Ltd.
On 3 September 2014, Mr Davis was moving large hydraulic hoses by hand when he suffered an injury in the course of his employment. He pleaded injury to his neck, shoulders, and left forearm/elbow. The respondent accepted liability for Mr Davis’ injury to his neck and shoulders.
On 9 September 2015, the respondent’s insurer, Allianz Australia Workers Compensation (NSW) Ltd, issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining liability for injury to the left elbow. The insurer claimed that Mr Davis had not sustained a workplace injury to his left elbow, relying upon the medical certificates issued by Dr Sengordon Ramachandra, general practitioner, and the medical report of Dr Evan Jones, orthopaedic surgeon, dated 3 July 2015.
On 19 September 2016, the matter proceeded to conciliation/arbitration proceedings before Arbitrator Capel to determine the issue of injury to the left elbow, following which the matter was reserved.
On 30 September 2016, the Arbitrator issued a Certificate of Determination in favour of Mr Davis in respect of injury to the shoulders arising out of or in the course of his employment on 3 September 2014. However, the Arbitrator found that Mr Davis did not sustain an injury to his left elbow arising out of or in the course of his employment on 3 September 2014.
Mr Davis appeals the Arbitrator’s decision in respect of the injury to the left elbow.

PRELIMINARY MATTERS

There is no issue that the threshold requirements of s 352(3) of the 1998 Act as to the quantum of compensation in issue on appeal have been satisfied.
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.”
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.

MEDICAL EVIDENCE

On 16 September 2014, Mr Davis complained of pain to his shoulders to his then general practitioner, Dr Mortadha Shawki. Mr Davis subsequently underwent radiological investigations and physiotherapy in respect of the shoulders.
On 24 September 2014, Mr Davis attended on Lithgow Physiotherapy Spinal & Sports Injury Centre (Lithgow Physiotherapy Centre) for physiotherapy. The entry for that day, as discussed in Lithgow Physiotherapy Centre’s report of 5 August 2016 addressed to Mr Davis’ solicitor, records that Mr Davis reported left forearm pain and a cramping sensation in the left dorsal palm. This was marked on the body chart. In the report, Lithgow Physiotherapy Centre referred to these records and stated that it assumed “this [left forearm/dorsal palm pain] was not examined further as the claim was only approved for the left and right shoulders.”
Following 24 September 2014, Mr Davis attended on Lithgow Physiotherapy Centre for approximately 15 sessions of physiotherapy but there is no record of symptoms or treatment in respect of the left elbow until May 2015 (see below [22]).
From 1 October 2014 until 16 December 2014 Mr Davis attended on Dr Ramachandra on at least eight occasions, but there is no record of symptoms or treatment in respect of the left elbow until 9 January 2015 (discussed below at [19]).
On 14 October 2014 and 20 November 2014, Mr Davis attended on Dr Jones. Dr Jones issued two reports to Dr Ramanachandra on 14 October 2014 and 20 November 2014 respectively. There is no reference to symptoms or treatment in respect of the left elbow in either of those reports.
On or about 14 November 2014, Mr Davis underwent surgery to his left shoulder at the hand of Dr Jones.
On 9 January 2015, Dr Ramachandra records the following history:
“Came in to get prescription for his shoulder pain on the left, persisting pain befor[e] and after the operation, mostly when he tries pick up things or uses his left gets shooting pain on the wrist which sometimes travels up to the forearm, arm and shoulder.
Also gets numbness on the 4^th and 5^th MC area, dorsal aspect of the left hand.”
Dr Ramachandra adds: “[d]iscussed about nerve impinchment ?ulnar and median ?originating from the right shoulder. Discussed about carpel tunnel syndrome.”
On 24 March 2015, Mr Davis again attended on Dr Ramachandra. The clinical note entry for that day records “[d]iscussed issues with left elbow pain and some restrictions of movement ?tendenopathy, will need further investgations”. He referred Mr Davis for an x-ray and an ultrasound on the left elbow. On 28 April 2015, Mr Davis again attends on Dr Ramachandra who refers him for an MRI of the left elbow, arm and forearm.
Dr Ramachandra issued at least nine medical certificates between 22 October 2014 and 28 April 2015. Those medical certificates record a range of matters including “subscapularis and supraspinatus tendenosis”, “subscapsularis tear”, and surgery related matters in respect of the shoulders. There is no record of symptom or treatment in respect of the left elbow.
On 4 May 2015, Mr Davis attended on Lithgow Physiotherapy Centre for physiotherapy. The entry for that day, as discussed in Lithgow Physiotherapy Centre’s report of 5 August 2016, records “[t]he left elbow/forearm pain was marked as Pc.” In the report, the centre referred to these records and stated that it assumed “this [the left elbow] was not investigated further as the claim was only for the left and right shoulder.”
On 15 May 2015, Mr Davis underwent an MRI of left elbow. In a report by Dr Lucas, dated the same, a history of elbow pain and possible tendinopathy is recorded. He found “insertional tendinopathy of the common extensor tendon origin at the lateral epicondyle” with an intrasubstance tear in the portion of the tendon. His impression was that that tendinopathy “would account for lateral elbow pain with a partial thickness tear.”
On or about 26 May 2015, Mr Davis underwent surgery to repair his right shoulder tendon at the hand of Dr Jones.
In a report dated 10 June 2015, Dr Jones records that Mr Davis has “pain around the epicondylar region of the left elbow which [Mr Davis] claims has been present since the time of his original injury.” Dr Jones refers to the MRI of the left elbow and concludes that it demonstrates “tennis elbow lateral epicondylitis”. He recommends that this be treated with physiotherapy. In a report dated 2 July 2015, Dr Jones confirms his findings in the report dated 10 June 2015 regarding the left elbow.
On 11 June 2015, Mr Davis attended Lithgow Physiotherapy Centre for physiotherapy under Joseph Lee. In a “Notice of Commencement” report dated the same physiotherapy treatment for the elbow is recorded.
In a report dated 3 July 2015, Dr Jones records that he was unaware of any left elbow issues six weeks prior to the report (that is, prior to the right shoulder surgery). In this report, Dr Jones records a history that Mr Davis “first complained of left elbow symptoms when he came to surgery for his right shoulder on 19.5.15.” He records that Mr Davis informed him that “he had had an MRI of the elbow.” He adds that Mr Davis complained of “pain centred around the lateral epicondyle of the left elbow” and found this to be “entirely consistent with lateral epicondylitis.” He notes that the MRI “shows a more classic teninopathy pattern.” He recommends physiotherapy for the elbow.
On 10 September 2015, Dr Ramachandra recorded that Mr Davis attended his rooms regarding “left elbow pain continuing and clarify it [sic, if] work related or not.”
In a facsimile dated 10 September 2015, to the insurer, Dr Ramachandra records “[a]lthough patient was complaining of left elbow pain the main focus was on the left shoulder and intiall[y] could be diagnosed as radiating pain from the left shoulder” (emphasis added).
On 2 December 2015, Mr Davis attends on Dr David O’Keefe, orthopaedic surgeon. In a report dated the same, Dr O’Keefe records a history of Mr Davis “doing hydraulic hose assemblies” for the respondent for a period of six months. During a particularly heavy period of long haul move, Mr Davis had to “move large hydraulic hose reels by hand.” He records that in about September 2014, Mr Davis “started noticing problems with his shoulders and to a lesser exten[t] his left elbow”.
In respect of the elbow, Dr O’Keefe records that Mr Davis records pain “radiating down to his biceps tendon in his elbow and tingling in the ulnar nerve distribution of his left hand.” He referred to the MRI scan of the left elbow which “showed intrasubstance insertional tear of the lateral epicondyle suggestive of tennis elbow” but noted that he was not tender in that area and more tender over the medial side of his elbow “in keeping with ulnar friction neuropathy.” He diagnosed problems with the left elbow “suggestive of an ulnar nerve entrapment at the elbow.”
On 15 January 2016, Mr Davis attended on Dr Emma Blackwood. Dr Blackwood performed a bilateral upper limb nerve conduction study on Mr Davis. In a report dated the same, Dr Blackwood concludes that the “upper limb nerve conduction studies were within normal limits with no evidence of a focal peripheral nerve lesion.”

Mr Davis

In evidence is a statement by Mr Davis dated 2 April 2016. In that statement, Mr Davis records the duties he undertook for the respondent while employed as a hose assembler. He describes one incident (undated); he records that he “manually man handled the larger hoses” and that when rolling the hoses onto one of the spools he felt a pain in his “left and right shoulders.” The pain did not resolve and he underwent surgery on both shoulders. He further records that he now has “weakness and loss of mobility also and pain in my left elbow, neck and both shoulders.” There is no further reference to the left elbow.

THE ARBITRATOR’S REASONS

The issues for determination by the Arbitrator concerned:
(a)     whether the worker sustained an injury to his left elbow arising out of or in the course of his employment on 3 September 2014;
(b)     whether the worker’s employment was a substantial contributing factor to the alleged injury, and
(c)     the quantification of the worker’s entitlement to lump sum compensation.
The pleadings and late documents dated 9 and 12 September 2016 were admitted into evidence with the exception of the report of Dr Bosanquet dated 9 February 2016 which was withdrawn by the respondent. The reasons why Dr Bosenquet’s evidence was not relied upon are unstated.
In reference to Mr Davis’ evidence, the Arbitrator noted that in his statement of 2 April 2016 Mr Davis stated that in the incident on 3 September 2014 he suffered pain in his back and shooting pain in the left and right shoulder. Mr Davis did not suggest that he injured his left elbow or suffered any symptoms with respect of the left elbow.
Dr Shawki’s initial treatment included a referral for Mr Davis to undergo ultrasound examinations on his shoulders. The history recorded by Dr Shawki did not detail any complaints of pain in respect of the left elbow.
Claire Nicholl of Injury Treatment Pty Ltd recorded complaints of pain radiating down Mr Davis’ shoulder to his wrist, but she did not report any left elbow symptoms in 2014. The clinical records reflect that Mr Davis complained of pain in the left forearm and a cramping sensation in the left dorsal palm. There was no suggestion that the symptoms were related to the left elbow.
The Arbitrator accepted that it was clear that by March 2015 Mr Davis was troubled by left elbow pain. At that stage he made a series of complaints in relation to the elbow and investigations and treatment commenced at that point.
Dr Jones noted complaints of the left elbow pain in June 2015 and diagnosed lateral epicondylitis.
The early entries in Dr Ramachandra’s notes only referred to Mr Davis’ shoulders. The first reference to symptoms in his left arm was in early January 2015 when he complained of shooting pain in his wrist that sometimes travelled up his forearm, arm and shoulder. In his report of 10 September 2015, Dr Ramachandra explained that he had not referred to Mr Davis’ elbow pain because he considered that this was due to referred pain from Mr Davis’ injured left shoulder. The Arbitrator observed that if Mr Davis had complained about elbow pain earlier than March 2015 Dr Ramachandra would have recorded this in his notes irrespective of the cause.
Dr Ramachandra suggested that the left elbow tendinopathy could be work related given the type of work that Mr Davis had done and the fact that it had resulted in injuries to his shoulders. The Arbitrator concluded that whilst Dr Ramechandra acknowledged the possibility of a work related elbow condition, he was not definite in his opinion. Further, his comments might be interpreted as implicating the general nature of Mr Davis’ duties over a period of time rather than due to the frank incident relied upon in these proceedings.
The only doctor who supported Mr Davis’ claim with any conviction was Dr O’Keefe. However, the Arbitrator found that Dr O’Keefe’s history was at odds with much of the evidence. Dr O’Keefe reported that Mr Davis noticed problems with his shoulder and to a lesser degree with his left elbow following the injury on 3 September 2014. That history is inconsistent with Mr Davis’ statement and was not recorded elsewhere in any medical evidence prior to around March 2015.
The Arbitrator further found that Dr O’Keefe’s opinion which was based on the MRI finding of tendinopathy, was consistent with ulnar nerve entrapment in the elbow. He attributed this to Mr Davis’ work. However, it was unclear whether Dr O’Keefe was referring to the frank injury pleaded or to the more general nature of Mr Davis’ employment. The Arbitrator concluded that the problem with Dr O’Keefe’s opinion was that the nerve studies undertaken in January 2016 ruled out any abnormality to Mr Davis’ ulnar or median nerves.
Ultimately the Arbitrator concluded that little weight could be given to Dr O’Keefe’s opinion. He accepted that it is clear from the medical evidence that Mr Davis suffers from left lateral epicondylitis, however apart from Dr Ramachandra, none of the doctors involved, including Dr O’Keefe, have suggested that this condition was caused by the incident on 3 September 2014.
The Arbitrator found that Mr Davis did not complain about his elbow until March 2015. Mr Davis’ evidence did not refer to an elbow injury or explain that his elbow symptoms were overshadowed by the injuries to his shoulders as Dr Ramachandra postulated. Furthermore, there is no evidence that Mr Davis gave such a history to the doctor. Dr Ramachandra also suggested that he thought that Mr Davis’ elbow problems were radiating from the shoulder injury, but there is nothing in the doctor’s clinical notes to confirm that Mr Davis reported any elbow symptoms until 2015.
With respect to the absence of Dr Bosanquet’s reports, the Arbitrator accepted that an inference may be drawn from the absence of those reports. Whether he drew such an inference is unclear from the reasons, however he concluded that Mr Davis bore the onus to prove that he sustained an injury to his left elbow in the incident on 3 September 2014.
Having regard to the totality of the evidence and the principles set out in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 he was not satisfied that Mr Davis had discharged that onus. Accordingly he entered an award for the respondent in respect of the alleged injury to the left elbow.

GROUNDS OF APPEAL

The appellant alleges that:
(a)     the Arbitrator erred in finding that the appellant did not suffer an injury to his left elbow or left forearm on 3 September 2014;
(b)     the finding that the applicant did not suffer an injury to his left elbow or left forearm on 3 September 2014 was contrary to the weight of evidence, and
(c)     the finding that the appellant did not suffer an injury to his left elbow or left forearm on 3 September 2014 was not supported by the evidence.

SUBMISSIONS

Appellant’s submissions

It is submitted that the appellant’s first complaint of pain in the left forearm was on 24 September 2014 to Lithgow Physiotherapy Centre. On 14 October 2014 the appellant complained of left arm pain down to the wrist. Complaints of left forearm pain were repeated to Lithgow Physiotherapy Centre on 23 December 2014.
On 9 January 2015 the appellant complained of left forearm pain to Dr Ramachandra. The appellant submitted that the appellant undertook x‑rays and an ultrasound of the left elbow on 24 April 2015 and an MRI of the left elbow was undertaken on 15 May 2015 which revealed a partial thickness tear of the extensor tendon.
Dr Jones reported on 10 June 2015 and 2 July 2015 and found that the appellant suffered a left lateral epicondylitis since the injury on 3 September 2014.
Notwithstanding that liability was declined by way of a s 74 notice issued on 16 March 2016 based, among other things, on an assessment by Dr Bosanquet, Dr Bosanquet’s reports were not relied upon at the hearing.
It is submitted that there was no challenge to the appellant’s credit. The evidence the appellant gave was of major pain in both shoulders, later becoming aware of pain in the elbow. The MRI evidence demonstrated a tear of the tendon near the elbow. There was no evidence of injury or complaint to that body part prior to the pleaded injury. Further it is submitted that there is no evidence of any other intervening cause from the date of the pleaded injury until the MRI on 15 May 2015.
The appellant submits that the respondent presented no evidence to contradict the views of Dr O’Keefe in that the injury to the left elbow arose out of the injury on 3 September 2014.
Contrary to the Arbitrator’s finding that there was no medical evidence of left elbow pain until March 2015, that is six months post injury, there is medical evidence of complaints in relation to the left elbow or forearm consistently from 24 September 2014.
It is submitted that the treating doctors and the applicant himself considered the most significant injuries to be those to both shoulders resulting in surgery to both shoulders.

The appellant submits “it would appear that it was not until surgery to the left shoulder and recovery therefrom and his complaints of continuing pain in the left arm not relieved by surgery that additional investigations (paid for by insurer) were undertaken, revealing further subject injury”.
The appellant submits that the Commission should accept the views of Dr O’Keefe as they are consistent with the applicant’s history and the mechanism of injury and the medical evidence presented.
Finally, the appellant submitted:
“In this matter, bearing in mind consistent evidence of complaint, proof of injury to the left extensor tendon at the elbow, absence of any other caused explanation or evidence and the expert views of Dr O’Keefe the WCC should find on balance of probabilities injury to the (appellant’s) left forearm/elbow on 3 September 2014 and include that body part in referral to AMS.”

Respondent’s submissions

The respondent does not accept that the appellant first complained of left elbow pain on 24 September 2014. The complaints on that date referred to forearm pain only.
The dispute concerns the alleged injury to the left elbow. The respondent submits that whilst there may have been complaints involving the left upper extremity there were no reported symptoms in relation to the left elbow with the exception of those relating to an unrelated lateral epicondylitis condition diagnosed in March 2015.
The appellant’s submissions do not disclose that the decision should be confirmed.

DISCUSSION AND FINDINGS

Since the amendment to s 352 of the 1998 Act (operative from 1 February 2011) an appeal from an Arbitrator to a Presidential member is no longer a “review”. Such an appeal is now limited to the determination of whether the decision appealed against was or was not affected by error of fact, law or discretion and to the correction of such error. It is the establishment of error and the correction of that error that now defines the process under s 352.
The appellant’s submissions in support of the alleged grounds of appeal fail to identify any relevant error. Rather the appellant seeks to re-ventilate the merits of the dispute argued before the Arbitrator relying substantially on the same submissions. For that reason alone this appeal must fail, however, I will address the submissions that have been made.
Whether the appellant suffered an injury to his left elbow on 3 September 2014 is a question of fact.
In determining whether an Arbitrator has erred in finding a fact, the principles as stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir) have been consistently applied in the Commission. Those principles were cited by Deputy President Roche in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 at [19]–[20]:
“19    …
(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.’”
These observations were considered with approval by the Court of Appeal in Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 at [71]. I intend to apply these principles to the resolution of the appeal.
The appellant’s submissions in respect of complaints to the Lithgow Physiotherapy Centre during the period between 24 September 2014 and 23 December 2014 are incorrect. The appellant submits that in three consultations during that period he complained of left forearm pain. That submission is not borne out by the evidence. I have examined those entries carefully and although they are heavily abbreviated, making them difficult to decipher, they do not refer to the forearm. The focus of the symptomatology recorded was in respect of the shoulder complaints.
Mr Lee, a physiotherapist and a principal of Lithgow Physiotherapy Centre, in a report dated 5 August 2016 to the appellant’s solicitor concerning treatment between 24 September 2014 and 23 December 2014 referred to the appellant having marked a body chart indicating symptoms in the left forearm. However, as I have indicated the clinical notes make no further reference to complaints of elbow pain.
In any event, as the Arbitrator found, whether or not complaints were made in respect of the forearm pain there is no evidence of complaints in respect of the left elbow until March 2015.
The Arbitrator was correct to place little weight on Dr O’Keefe’s opinion. Dr O’Keefe recorded a history of complaints from September 2014 in the shoulders and the left elbow. Dr O’Keefe accepted the history that the symptoms including the left elbow were reported and were the subject of immediate medical attention. That was inconsistent with the appellant’s evidence. Moreover Dr O’Keefe’s history that the appellant was referred for physiotherapy to his shoulders and elbows was also incorrect. Initially the referral was only in respect of the shoulders.
As the Arbitrator also correctly observed, in expressing an opinion on causation, Dr O’Keefe seemed to suggest that the injuries were consistent with heavy work in the absence of appropriate equipment and a considerable degree of lifting and moving of hose reels by hand rather than by machinery. Whilst that may have been the case that is not the way the case was pleaded and run. It was run on the basis that the injury to the elbow was sustained in the incident on 3 September 2014.
Dr O’Keefe’s assessment of the symptoms in the left elbow as suggestive of ulnar nerve entrapment is also inconsistent with the nerve studies undertaken in January 2016 which excluded any abnormality in the ulnar and median nerves. The Arbitrator’s assessment of the weight to be attached to Dr O’Keefe’s opinion was therefore open on the available evidence and discloses no error.
The submission that the appellant discussed forearm pain with Dr Ramachandra on 9 January 2015 does not advance his appeal. The injury pleaded is an injury to the left elbow. Even if the appellant complained in late 2014 and early 2015 of forearm pain, such complaints do not support a finding of injury to the left elbow at that time. The complaints in respect of pain in the left elbow are not recorded until March 2015, more than six months after the accepted work injury.
Whether there was any evidence of any pre-existing condition or a supervening event after the injury in 2014 is not to the point. As the respondent correctly submits, the appellant bore the onus of establishing that the condition in the left elbow was causally related to the pleaded injury on 3 September 2014. For the reasons that have been outlined above, the Arbitrator was not satisfied that the appellant discharged that onus.
The Arbitrator’s findings that there was no initial complaint of left elbow pain following the injury on 3 September 2014 and that no specific complaints of elbow pain were made until March 2015 are clearly correct.
The Arbitrator was not satisfied that Dr Ramachandra’s opinion was consistent with the appellant’s evidence that such overshadowing occurred. Nor is there any evidence that such a history was given to Dr Ramachandra. The doctor’s comment that the shoulder condition “could” have been the main focus overshadowing complaints of pain in the left elbow appears to lack conviction that that was in fact what occurred. In the circumstances, and in the absence of any contemporaneous records of complaints of symptoms in the left elbow, it was open to the Arbitrator to conclude that the doctor’s opinion lacked probative force. That conclusion was open to the Arbitrator and did not speak of error.
I accept that it is anomalous that Dr Bosanquet’s evidence was not relied upon, particularly as it was the basis of the dispute notice issued under s 74 of the 1998 Act. That fact was not lost on the Arbitrator and he accepted that an adverse inference may be drawn from the absence of Dr Bosanquet’s evidence. However, notwithstanding any inference that may be drawn, the Arbitrator was correct to find that on balance, the evidence did not support a finding in favour of the appellant in relation to the alleged injury to the left elbow.
No error of the kind identified in Whiteley Muir has been established. Consequently the appeal fails and the Arbitrator’s decision is confirmed.

ORDER

The Arbitrator’s determination of 30 September 2016 is confirmed.

Judge Keating
President

10 March 2017