Milojkovic v Kumar Motors (Bankstown) Pty Ltd t/as Peninsula Holden Bankstown - [2014] NSWWCCPD 83

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Milojkovic v Kumar Motors (Bankstown) Pty Ltd t/as Peninsula Holden Bankstown [2014] NSWWCCPD 83
APPELLANT:	Nenad Milojkovic
FIRST RESPONDENT:	Kumar Motors (Bankstown) Pty Ltd t/as Peninsula Holden Bankstown
SECOND RESPONDENT:	AHG Services (NSW) Pty Ltd
THIRD RESPONDENT:	Automotive Group Training (NSW)
FIRST RESPONDENT’S INSURER:	QBE Workers Compensation (NSW) Ltd
SECOND RESPONDENT’S INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
THIRD RESPONDENT’S INSURER:	CGU Workers Compensation (NSW) Ltd
FILE NUMBER:	A2-2144/12
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	4 September 2014
DATE OF APPEAL DECISION:	15 December 2014
SUBJECT MATTER OF DECISION:	Alleged failure to place “due weight” on worker’s evidence; alleged failure to give reasons
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Shine Lawyers Pty Ltd
First Respondent:	Gillis Delaney Lawyers
Second Respondent:	Sparke Helmore Lawyers
Third Respondent:	Moray & Agnew

ORDERS MADE ON APPEAL:

1. The third respondent’s name is amended to Automotive Group Training (NSW).

2. The Arbitrator’s determination of 4 September 2014 is confirmed.

3. No order as to costs.

INTRODUCTION

This is an appeal against an Arbitrator’s finding that the worker had not established that he injured his back in the course of or arising out of his employment with the three named respondents. The principal grounds of appeal are that the Arbitrator failed to place “due weight” on the worker’s evidence and failed to give “adequate reasons” for the orders made. For the reasons explained below, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.

BACKGROUND

The appellant worker, Nenad Milojkovic, was a motor mechanic. He started his apprenticeship with the third respondent, Automotive Group Training (NSW) (wrongly recorded as Automotive Group Training (NSW) Pty Ltd in the Certificate of Determination), in 2002 and worked with that company until 29 April 2006. He then worked, as a motor mechanic, with the first respondent, Kumar Motors (Bankstown) Pty Ltd, from 8 May 2006 until 28 May 2008. After training for a period to be a police officer, he worked for the second respondent, AHG Services (NSW) Pty Ltd, as a motor mechanic, from 12 January 2009 until 12 March 2010.
Mr Milojkovic alleged that he injured his back due to heavy lifting in the course of his employment with each of the respondents. He claimed, against each respondent, weekly compensation from 12 March 2010 to date and continuing and lump sum compensation in respect of a 12 per cent whole person impairment due to the alleged injury to his lumbar spine. Though he had also claimed $1,939 for medical expenses, that claim was discontinued at the arbitration.
Each respondent disputed liability on the ground that Mr Milojkovic had not injured his back in the course of or arising out of his employment with them.
Mr Milojkovic’s evidence was that he first noticed problems with his back, as a result of lifting heavy objects at work, while working for the first respondent in 2006, which continued to bother him until he left in 2008. His back began causing him problems again soon after he resumed working as a motor mechanic in 2009, this time with the second respondent, where he lifted gearboxes and engines. He said that his back deteriorated over time.
Mr Milojkovic said that his problems “became really bad towards the end of 2009” and that the pain was radiating into his right leg and he could no longer lift heavy weights. He tried to “struggle on but eventually the pain became too much” for him and he had to stop work on 12 March 2010.
The clinical notes from one of Mr Milojkovic’s general practitioners, Dr Talal Serhan, recorded that Mr Milojkovic’s first complaint of back symptoms was on 29 April 2010, just under seven weeks after he stopped work on 12 March 2010. Dr Serhan recorded that Mr Milojkovic complained of low back pain. On examination, there was no deformity, minimal tenderness in the sacrum and a full range of movement. Dr Serhan described the reason for the visit as “muscular pain” but recorded no reason for the pain. He recommended panadol.
Between 29 July 2010 and 4 August 2010, Mr Milojkovic had chiropractic treatment for his back symptoms.
On 5 August 2010, Mr Milojkovic saw Dr Assad Malek about his back, another general practitioner (presumably) at the same practice as Dr Serhan. Dr Malek took a history that Mr Milojkovic used to work as a motor mechanic, that he had had low back pain for “more than a year” and had seen “multiple” doctors for back pain. On examination on this occasion there was a marked reduction in movement, with flexion of only 10 degrees and nil extension. Though muscle power was intact, Mr Milojkovic was said to be unable to walk on his heels and toes due to pain.
A CT scan, requested by Dr Malek and dated 5 August 2010, revealed a prominent broad based right paracentral disc protrusion at the L4/5 level resulting in mild asymmetric canal stenosis and abutting and displacing the right L5 nerve root and a smaller broad based central protrusion at L5/S1.
Dr Malek referred Mr Milojkovic to Dr Geoffrey Rosenberg, orthopaedic surgeon, on 6 August 2010. Dr Rosenberg reported to a Dr Hussain, a general practitioner at a different practice to Dr Malek, on 3 September 2010. Dr Rosenberg took a history that Mr Milojkovic had struggled with back pain for the last 18 months, but more recently had developed right leg pain. His back pain was not too bad but the leg pain prevented him from sitting comfortably, with pain radiating down the back of his leg to his ankle.
On 4 January 2011, Dr Kris Tomka, a general practitioner at a third medical practice, saw Mr Milojkovic. On 21 February 2011, Dr Tomka recommended continuing physiotherapy, which had stopped because the insurer refused to meet the cost of it. Dr Tomka also referred Mr Milojkovic to Professor Mark Sheridan who arranged for an MRI scan. That scan essentially confirmed the findings of the earlier CT scan.
In support of his claim, Mr Milojkovic relied on two reports from Dr Peter Giblin, orthopaedic surgeon. In his first report, dated 17 November 2010, Dr Giblin took a history that Mr Milojkovic first noticed the onset of right sided low back pain in 2006 and that his work involved heavy lifting. At the time of his consultation on 15 November 2010, Dr Giblin noted that Mr Milojkovic complained of a constant ache (in his back) with sharp stabbing pains on the right of his low back and burning pins and needles down the back of his leg into his right foot, ankle and toes. Mr Milojkovic was severely disabled, unable to lift or carry anything and unable to sit for more than a few minutes.
On examination, Mr Milojkovic had a severely restricted range of movement, absent knee jerks and a depressed right ankle jerk. There was decreased sensation to light touch in the L5/S1 dermatome. Dr Giblin gave a provisional diagnosis of a soft tissue injury consistent with the CT scan changes and reasonably causally related to the nature and conditions of his work environment from 2002 to 2007 and from 12 January 2009 to 12 March 2010. He said that Mr Milojkovic would be “susceptible to recurrent soft tissue injury as well as the natural deterioration implicit in his condition”.
In his second report, dated 12 November 2013, Dr Giblin did not offer a diagnosis but said that surgery in the form of an L4/5 discectomy and L5/S1 fusion should be considered. He agreed with the comments in the MRI scan.
Mr Milojkovic also relied on a medicolegal report from Dr Evan Dryson, occupational physician, dated 8 April 2013. Dr Dryson took a history that Mr Milojkovic developed low back pain “during the course of his employment as a motor mechanic, the date of injury being given as 12 January 2009”. He concluded that Mr Milojkovic suffered from a disc protrusion at L4/5 with L5 radiculopathy in the right leg. He did not note the change in Mr Milojkovic’s presentation on 29 April 2010 to Dr Serhan and on 5 August 2010 to Dr Malek.
After referring to the parties’ submissions, the Arbitrator concluded that Mr Milojkovic had “not satisfied his onus”, noting, among other things, that his account of how his injury occurred was “at odds with the evidence” ([59]).
The Commission issued a Certificate of Determination on 4 September 2014 in the following terms:
“The determination of the Commission in this matter is as follows:
1.The claim for weekly benefits and medical expenses is discontinued and I dispense with the necessity to lodge a Notice of Discontinuance.
2. There will otherwise be an award in favour of the respondents.
3.There is no order as to costs, either in these proceedings or in those before Arbitrator Robinson.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
Mr Milojkovic has appealed the Arbitrator’s determination.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) failing “to place due weight on the evidence of [Mr Milojkovic] and plac[ing] inadequate [sic, undue] weight on the Respondents’ evidence” (weight of evidence), and
(b) failing “to provide adequate reasons for the orders made” (reasons).

WEIGHT OF EVIDENCE

Submissions

Mr Milojkovic’s solicitor, Mr Eric Kranz, who did not appear at the arbitration, submitted that, having noted the entry by Dr Serhan on 29 April 2010, the Arbitrator noted (at [19]) that the entry did not support Mr Milojkovic’s account that he had to stop work because of pain radiating into his right leg, and which had gotten steadily worse over the course of his employment since 2006.
Mr Kranz contended that a treating doctor’s duty is not to record the worker’s days off from work and that the notes are brief summaries provided by the worker at the consultation. An omission by the doctor should not be “emphasised” and, if a matter is not addressed by the doctor, “clarity should be obtained from other evidence, such as the Worker’s Statement, which was overlooked”. The Arbitrator did not place weight on Mr Milojkovic’s evidence.
Next, Mr Kranz addressed the Arbitrator’s statement (at [34]) that Mr Milojkovic may have complained (about his back symptoms) earlier than 29 April 2010 but there was no proof of that beyond Mr Milojkovic’s statement and some of the histories he gave. Mr Kranz submitted that the fact that the clinical notes from the treating doctor did not coincide with all of Mr Milojkovic’s complaints was addressed in Mr Milojkovic’s statement. However, the Arbitrator did not accept the evidence from Mr Milojkovic and “placed undue weight on the lack of evidence elsewhere, rather than relying on the evidence presented by [Mr Milojkovic]”.
In addition, Mr Kranz argued that the Arbitrator did not provide sufficient, or any, reasoning for the rejection of Mr Milojkovic’s evidence, contending that the respondents raised no credit issues.
Dealing with the Arbitrator’s statement that Dr Giblin’s diagnosis was “so general as to be meaningless, and one which in any event was contradictory” ([39]), Mr Kranz submitted that the Arbitrator did not place any reliance on Dr Giblin’s subsequent report. Dr Giblin’s opinion “should have weighed more than it did as Doctor had seen [Mr Milojkovic’s] condition deteriorate over the gap between the provision of the two reports”. The Arbitrator, so it was contended, “did not take this into account and unfairly discredited the Doctor’s opinion due to the first and initial report”. The Arbitrator did not place due weight on the reports and opinions of Dr Giblin.
Turning to the Arbitrator’s statement that Dr Dryson’s report did not assist him, Mr Kranz submitted that Mr Milojkovic provided a consistent history to all of his treatment providers and it is “then questionable as to why [Mr Milojkovic’s] history has been so discredited and rejected by the Arbitrator”. The Arbitrator, in the entirety of the determination, did not provide due weight to Mr Milojkovic’s evidence.
With respect to the Arbitrator’s acknowledgment (at [50]) that it was possible that the nature of Mr Milojkovic’s work may have produced the symptoms complained of by Mr Milojkovic, Mr Kranz argued that Mr Milojkovic produced contemporaneous evidence in support of his claim to “countenance the deficiencies as seen in the notes of the Nominated Treating Doctor [presumably Dr Serhan], availing the clear opportunity that the Doctor had not made [a] note of all the complaints stated by [Mr Milojkovic]”. He said that the Arbitrator “has selectively chosen the evidence to rely upon and on large occasions has relied on the evidence submitted by the Respondents”.

Discussion and findings

The above submissions do not demonstrate error by the Arbitrator.
It is accepted that inconsistencies between a claimant’s evidence and medical histories should be approached with caution (Mason v Demasi [2009] NSWCA 227 at [2]; Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; 4 DDCR 358 at [35]; King v Collins [2007] NSWCA 122 at [34] to [36] and Kovacic v Henley Arch Pty Ltd [2009] VSCA 56 at [60]). However, the submission that the Arbitrator overlooked Mr Milojkovic’s evidence is incorrect. The Arbitrator carefully considered Mr Milojkovic’s evidence.
The Arbitrator acknowledged (at [50]) that Mr Milojkovic said he had seen a general practitioner in 2006 about his back problem and that he said he was concerned that he would be dismissed if his employers discovered that he had suffered a back injury. However, the Arbitrator added that Mr Milojkovic’s failure to adduce any contemporaneous evidence to support his allegations “call[ed] for comment in the light of the unremarkable presentation to Dr Serhan” ([50]). While it is not essential that a worker produce contemporaneous or corroborative evidence before he or she can succeed (Chanaa v Zarour [2011] NSWCA 199 at [86]), the lack of such evidence was a matter the Arbitrator was entitled to take into account in assessing the reliability of Mr Milojkovic’s account.
The significance of Dr Serhan’s entry on 29 April 2010 was not only that it was inconsistent with the allegations in Mr Milojkovic’s evidence and that there was no mention that the symptoms complained of had been caused by Mr Milojkovic’s employment but, more importantly, that the doctor’s findings on examination were, as the Arbitrator noted, in “stark contrast” ([54]) to the findings on examination by Dr Malek on 5 August 2010. That contrast was not explained by Mr Milojkovic.
Mr Milojkovic’s statement did not deal with the issues raised by Dr Serhan’s notes. If anything, Mr Milojkovic’s evidence created further issues. In his statement of 22 February 2012, Mr Milojkovic said that after he started work with the second respondent, in January 2009, “the injury caused severe problems which … resulted in [his] continuing disability and inability to return to work”. The examination findings by Dr Serhan on 29 April 2010 are completely inconsistent with that statement.
The implied suggestion that the Arbitrator erred in placing undue weight on the lack of evidence “elsewhere, rather than relying on the evidence presented by [Mr Milojkovic]” is without substance. The Arbitrator assessed all the relevant evidence tendered in support of Mr Milojkovic’s claim and concluded that Mr Milojkovic had not discharged the onus of proof. That conclusion was open and disclosed no error.
The allegation that the Arbitrator failed to give sufficient, or any, reasons for rejecting Mr Milojkovic’s evidence is dealt with separately below.
Dealing with Dr Giblin’s second report, it seems to be suggested that the Arbitrator erred in not placing any reliance on that report. The Arbitrator referred to Dr Giblin’s second report at [41], where he said:
“In his second report of 12 November 2013 Dr Giblin did not offer a diagnosis as such but thought that surgery in the form of an L4/5 discectomy and an L4/L5/S1 fusion should also be considered. Dr Giblin noted the MRI scan that had been taken by then, and agreed with its comments.”
Dr Giblin’s second report recorded Mr Milojkovic’s history between the date of the first examination, in November 2010, and the date of the second examination, in November 2013. It also recorded Dr Giblin’s findings on examination and that surgery was not “mandated” but could not be excluded. Mr Kranz has not identified any part of this report that advances Mr Milojkovic’s claim and which the Arbitrator overlooked.
Mr Kranz’s submission was merely that Dr Giblin’s opinion should have weighed more than it did because he had seen Mr Milojkovic’s condition “deteriorate” over the gap between the two reports. The premise underlying that submission, namely that Mr Milojkovic’s condition had deteriorated between the two examinations, was incorrect.
In his first report, Dr Giblin said that Mr Milojkovic described himself as “severely disabled” and unable to lift or carry anything at all. On examination, Mr Milojkovic could barely touch his knees, lateral flexion was to the distal third of the thigh and extension of his lumbar spine was less than one tenth with marked lumbar muscle guarding.
At Dr Giblin’s second examination, Mr Milojkovic described himself as having a moderate limitation, being unable to help around the house. His forward flexion was to the top of his thighs, lateral flexion was to the middle of the thigh on each side and extension was still less than 10 per cent. As at the first examination, the right ankle jerk was depressed and there appeared to be weakness in the L5 muscle groups.
Thus, it is apparent that Mr Milojkovic’s presentation in each of Dr Giblin’s examinations was very similar. If anything, it could be argued that Mr Milojkovic was marginally less disabled at the second examination than he claimed to be at the first. Dr Giblin’s evidence added nothing of relevance to Mr Milojkovic’s claim that the Arbitrator failed to consider. It follows that Mr Kranz’s complaint that the Arbitrator did not place due weight on the reports and opinions of Dr Giblin is without substance.
The complaint that the Arbitrator “unfairly discredited” Dr Giblin’s opinion “due to his first and initial report” was not developed with any relevant submissions and is difficult to understand. The Arbitrator was not obliged to accept Dr Giblin’s evidence. While the Arbitrator’s statement that Dr Giblin’s diagnosis was so general as to be meaningless may be open to doubt, because the doctor seems to have equated a soft tissue injury with the disc pathology found in the CT scan, the issue in the case was what caused Mr Milojkovic’s dramatic presentation to Dr Malek on 5 August 2010 and the findings in the CT scan. As he did not know of Mr Milojkovic’s presentation on 29 April 2010, Dr Giblin did not comment on that critical issue. This omission was not overcome by his second report.

The submission that, given the consistent history recorded by all the treatment providers, it was questionable “as to why [Mr Milojkovic’s] history has been so discredited” and was rejected by the Arbitrator, does not allege any relevant error by the Arbitrator. Moreover, the premise upon which the submission is based is false. Dr Serhan’s history, as recorded in his notes, which was the first to record a complaint of back pain, was not consistent with Mr Milojkovic’s evidence or with any of the other histories.
Further, as the Arbitrator noted, Dr Dryson did not have a history of Mr Milojkovic’s starkly different presentations to Dr Serhan on 29 April 2010 and Dr Malek on 5 August 2010. In addition, Dr Dryson wrongly assumed the date of injury was 12 January 2009. Whether that date came from Mr Milojkovic or from another source is not critical. It provides a further important point on which Dr Dryson’s history was not consistent with Mr Milojkovic’s evidence. It follows that it is quite clear why Mr Milojkovic’s history was “discredited”.
Mr Kranz’s submission that the Arbitrator rejected Mr Milojkovic’s evidence was not entirely accurate. The Arbitrator’s finding was that Mr Milojkovic had not established his case. Mr Kranz has not established that the Arbitrator erred in reaching that conclusion.
The assertion that the Arbitrator did not “provide due weight” to Mr Milojkovic’s evidence is unsustainable. As counsel for the third respondent submitted, the Arbitrator carefully considered Mr Milojkovic’s evidence and noted internal inconsistencies in it and inconsistencies between that evidence and the contemporaneous “objective” evidence. These matters provided a sound basis for the Arbitrator’s conclusion that Mr Milojkovic had not discharged the onus of proof.
The submission that Mr Milojkovic produced contemporaneous evidence in support of his claim has simply ignored the evidence and is plainly wrong. The contemporaneous evidence from Dr Serhan does not support the claim. It seriously undermines it. Furthermore, the evidence from Dr Malek that Mr Milojkovic saw “multiple” doctors for back pain, and the absence of any evidence from those doctors, was a matter the Arbitrator was entitled to take into account, and did take into account, noting at [50]–[52]:
“50. Whilst it is possible that the nature of his work may have produced the symptoms complained of by the applicant in his statement, his failure to adduce any contemporaneous evidence to support his allegations calls for comment in the light of the unremarkable presentation to Dr Serhan. Indeed the applicant stated that in 2006 he did see a G.P. about his back problem but he stated that he was concerned that he would be dismissed if his employers discovered that he had suffered a back injury. He said that he was able to do his job, although from time to time he had pain and discomfort.
51.I also think it likely that he told Dr Malek on 5 August 2010 that he had seen other ‘multiple’ doctors.
52.If that were so, the failure to lodge evidence that supported this contention, or to explain why such evidence had not been forthcoming, becomes a matter of some relevance.” (footnote omitted)
The submission that the Arbitrator has “selectively chosen” the evidence upon which he relied and that, on “large occasions”, he relied on the evidence submitted by the respondents, is untenable and is rejected. The Arbitrator considered all the evidence tendered in support of Mr Milojkovic’s claim and, for reasons given, was not satisfied that Mr Milojkovic had proved his case.
With respect to the lay witness statements relied upon by the respondents, the Arbitrator noted that they did not assist Mr Milojkovic, but said that, as the statements were unsigned and certain annexures were not attached or tendered separately, he put that evidence to one side ([48]).
The Arbitrator considered the expert evidence tendered on behalf of the respondents, but did not base his conclusion on it. He said that the histories recorded by those experts were “infected” with the same “imprecise histories” ([44]), namely, that Mr Milojkovic’s symptoms were of gradual onset during his employment. In addition, neither of the respondents’ experts considered Mr Milojkovic’s contrasting presentations on 29 April 2010 and 5 August 2010. In any event, in view of the conclusion he formed about the claim in general, the Arbitrator did not give detailed consideration to their evidence and certainly did not base his conclusion on it.

REASONS

Submissions

Mr Kranz submitted that the Arbitrator erred in not providing sufficient reasons to substantiate his determination, which largely dispelled Mr Milojkovic’s evidence in favour of the respondents’ evidence.

Discussion and findings

I do not accept Mr Kranz’s submission.
At the risk of repeating some of the points covered above, the Arbitrator gave the following reasons for concluding that Mr Milojkovic had not made out his case:
(a)     he did not accept Dr Giblin’s evidence because his diagnosis was so general as to be meaningless and, in any event, contradictory ([39]);
(b)     Dr Giblin’s failure to explain why the CT scan was consistent with his diagnosis of a soft tissue injury left the Arbitrator in some doubt as to how reliable that opinion might be ([40]);
(c)     Dr Giblin’s second report “did not offer a diagnosis as such” ([41]);
(d)     Dr Dryson’s report did not assist (the Arbitrator) because he did not take an accurate history, neglecting to consider the significant change in Mr Milojkovic’s presentation between 29 April 2010 and 5 August 2010, and he did not give any opinion on causation ([43]);
(e)     the complaints to Dr Serhan, some five weeks after Mr Milojkovic stopped work, were inconsistent with the allegations in Mr Milojkovic’s evidence ([49]) (the attendance on Dr Serhan was closer to seven weeks after Mr Milojkovic stopped work but nothing turns on this error);
(f)      Dr Serhan’s findings on examination of a full range of movement, minimal tenderness in the sacrum (wrongly noted by the Arbitrator to be “tenderness in sensation” ([18])) and the diagnosis of muscular pain was in “stark contrast” to Mr Milojkovic’s later presentation ([49] and [54]);
(g)     Mr Milojkovic’s failure to adduce any contemporaneous evidence to support his allegations called for comment in light of the unremarkable presentation to Dr Serhan ([50]);
(h)     it was likely that Mr Milojkovic told Dr Malek on 5 August 2010 that he had seen “multiple” doctors. If that were so the failure to lodge evidence that supported that contention, or explain why such evidence had not been forthcoming, became a “matter of some relevance” ([52]);
(i)      it was difficult to see why, when Mr Milojkovic had ceased work and no longer needed to concern himself with dismissal, he did not then give a history of injury at work to Dr Serhan ([53]);
(j)      the only treatment about which evidence was adduced, namely, the chiropractic treatment, demonstrated that, the day after its completion, Mr Milojkovic presented to Dr Malek “significantly affected by his back” ([55]);
(k)     Mr Milojkovic saw his general practitioner on ten occasions between 2005 and 2010 for matters such as the flu or gastric problems, but made no mention of his sore back. This did not assist Mr Milojkovic ([58]);
(l)      Mr Milojkovic’s account of how his injury occurred was “at odds with the evidence” and there was no independent contemporaneous support for his assertion that he sought medical treatment for his injury when he was employed by the respondents ([59]), and
(m)   the innocuous nature of the first consultation (with Dr Serhan) in April 2010, when contrasted with the onset of severe and incapacitating symptoms attested to in July 2010 (this presumably was a reference to the attendance on Dr Malek on 5 August 2010) “raise[d] a question as to the veracity of [Mr Milojkovic’s] evidence” and, accordingly, the Arbitrator was not satisfied that Mr Milojkovic had proved his case ([59]).
The above summary demonstrates that the Arbitrator exposed his reasoning and articulated the essential grounds on which he based his decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280). This ground of appeal is completely baseless and is rejected.

CONCLUSION

It follows that the Arbitrator did not err in failing to place “due weight” on Mr Milojkovic’s evidence or in placing undue weight on the respondents’ evidence. For reasons fully explained, Mr Milojkovic failed to make out his case and the Arbitrator’s conclusion to that effect discloses no error.

DECISION

The Arbitrator’s determination of 4 September 2014 is confirmed.

COSTS

No order as to costs.

Bill Roche
Deputy President

15 December 2014

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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