Price v Solutions Personnel Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Price v Solutions Personnel Pty Ltd [2013] NSWWCCPD 56
APPELLANT:	Ms Kellie Price
RESPONDENT:	Solutions Personnel Pty Ltd
INSURER:	Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER:	A1-8527/12
ARBITRATOR:	Mr C Tanner
DATE OF ARBITRATOR’S DECISION:	30 June 2013
DATE OF APPEAL HEARING: DATE OF APPEAL DECISION:	18 October 2013 30 October 2013
SUBJECT MATTER OF DECISION:	Challenge on appeal to factual findings founded upon finding of credibility of witness; duty to provide sufficient reasons for decision
PRESIDENTIAL MEMBER:	Deputy President Kevin O’Grady
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr S Hickey, instructed by Shine Lawyers
Respondent:	Mr C Robertson, instructed by Rankin Ellison Lawyers
ORDERS MADE ON APPEAL:	1. The orders made by the Arbitrator as recorded in the Certificate of Determination dated 30 June 2013 are confirmed. 2. No order as to costs of this appeal.

BACKGROUND

This is an appeal against an award entered by Arbitrator Craig Tanner in favour of Solutions Personnel Pty Ltd (the respondent) in proceedings commenced by Ms Kellie Price (the appellant). Ms Price had been employed by the respondent, a labour hire company, to work as a casual chef at the business premises of Gate Gourmet Services Pty Ltd (Gate Gourmet) at Mascot between 6 April 2010 and 27 June 2010.
Ms Price alleged that she had received an injury to her cervical spine and right upper extremity in the course of that employment on 5 May 2010. A claim for compensation benefits was made by Ms Price on 13 October 2010. The respondent’s insurer, on 3 November 2010, gave notice to Ms Price that, given the existence of a reasonable excuse in terms of s 267 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), provisional weekly payments and approval of medical treatment were not to be made. This decision was later revoked by the insurer and payment was made in respect of weekly compensation for eight weeks from 28 June 2010.
Written notice of the insurer’s decision to decline liability in respect of Ms Price’s claim was subsequently given, on 4 August 2011 pursuant to s 74 of the 1998 Act. That notice stated that the occurrence of injury was denied and that Ms Price had failed to comply with notice requirements.
The dispute concerning Ms Price’s entitlement to compensation was the subject of an application filed with the Commission. Orders were sought as to Ms Price’s entitlement to weekly compensation from 28 August 2010, medical expenses and lump sums.
The matter became before the Arbitrator for conciliation/arbitration on 2 April 2013. The Arbitrator reserved his decision and a Certificate of Determination was issued on 30 June 2013 which recorded the following:
“(1) Award for the respondent.
(2) There is no order as to costs.
A statement is attached to this Certificate of Determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

A finding was made by the Arbitrator that Ms Price had “not discharged the onus of proving that she received an injury to her neck and right shoulder, in the course of her employment on 5 May 2010” (at [85] of Reasons). The issue in dispute is whether the Arbitrator had erred in so finding.
Ms Price’s counsel, at the hearing of this appeal, argued that the grounds relied upon permitted an argument that the Arbitrator had failed, as he was required, to provide reasons for his decision.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of 1998 Act have been met.

THE EVIDENCE

Ms Price stated, in a written statement dated 20 December 2011, that on 5 May 2010 at approximately 10.00 am she was “pushing a food trolley laden with potatoes from one of the ovens to a chiller when the wheels jammed and caused [her] to injure [her] neck and right shoulder”. On that night, at her home, Ms Price applied Voltaren gel. Ms Price made an entry in her personal diary “on 5 May regarding the trolley”. Ms Price’s 2010 diary is in evidence. The entry on 5 May 2010 is as follows:
“trolley jammed nearly lost 100kg of potato arm sore got in trouble cause cooking uneven asked to get maintenance in took 2hrs too [sic] cook eggs. norm 20min 80 [degrees] shake 20m at 80 degrees- put in beat pan 100kg and scramble with whisk.”
Ms Price stated that, at first, she did not think the injury was very serious and she kept working. She did not want to undermine her prospects of remaining in the job.
It was further stated by Ms Price, that on 7 May 2010 she told two maintenance men about the trolley wheels jamming and that she had pulled a muscle in her neck. Those maintenance men had attended the workplace to inspect one of the ovens that had been cooking unevenly. It was further stated that Ms Price had made numerous attempts, on 10, 11, 12 and 15 June 2010, to telephone Mr Kareem Kareem. Mr Kareem was a principal of the respondent company and was Ms Price’s contact. Her intention was to inform him of the injury and to advise that she had not received her payslips. Ms Price states that Mr Kareem was absent from Sydney at that time. She thought he may have been in Egypt. Copies of Ms Price’s phone account records are in evidence, which demonstrate that between 10 June 2010 and 15 June 2010 eight text messages were sent from Ms Price’s telephone to the number which was not disputed as being Mr Kareem’s telephone number. Five of those text messages were sent on the evening of 12 June 2010 and four of those five messages were each sent, seconds apart, at 8.05pm. The evidence does not explain the pattern of those text messages. There is, as one may expect, no record in evidence of any attempted, but unsuccessful, telephone calls made on those dates as stated by Ms Price.
It is Ms Price’s evidence that, on 5 July 2010, she sent a text message to Mr Kareem “advising that (she) had injured (her) shoulder and neck”. On 6 July 2010 Ms Price received an email from Mr Kareem, a copy of which is annexed to her statement, stating: “Hi Kelly [sic] Hope your health gets better soon. Please find attached the termination letter as requested. Please do not hesitate to contact me if I may be of any assistance”.
Ms Price had consulted Dr Hany Ibraham, general practitioner, on 24 June 2010. The clinical notes of Dr Ibraham’s practice which are in evidence, record that the following matters were recorded on that day:
“right shoulder pain.
tingling and Numbness.
?impingement syndrome.
Mouth ulcers.”
Diagnostic imaging of Ms Price’s right shoulder was requested on that occasion.
Dr Ibraham’s clinical notes record eight further consultations with various practitioners at his practice between 24 June 2010 and 18 November 2010. The first recorded complaint of neck pain appears in an entry dated 5 July 2010, at which time Dr M A Khan recorded “right sided neck pain”. There is no record of any history of work related injury to neck, shoulder or arm in any of those entries which followed Dr Ibraham’s entry of 24 June 2010.
Copies of Ms Price’s pay slips demonstrate that her last day of work was 27 June 2010. It is Ms Price’s evidence that she received formal notice of termination from Mr Kareem on 29 June 2010.
There is in evidence a copy of correspondence dated 5 July 2010 from Ms Memekse Erdogan, Sports Physiotherapist, addressed to Dr Hany Ibraham. Ms Price had attended for physiotherapy treatment at Ms Erdogan’s practice known as Southern District Sports Physiotherapy, on that day. The history, given by Ms Price to the physiotherapist, was noted in the correspondence addressed to Dr Ibraham as being presentation “with a one month history of right arm pain and numbness”.
Ms Price gave evidence that she had been a patient of Dr Valerie Parish, general practitioner of Caringbah, for the past 20 years. Dr Parish’s practice has no association with that of Dr Ibraham. Both Ms Price and the respondent tendered copies of documents produced by Dr Parish’s practice.
The clinical notes of Dr Parish relate to treatment of Ms Price from January 2000 to November 2010. Those notes include a hand written note signed by Dr Parish, addressed “to whom it may concern” dated 31 August 2010. The text of that note is as follows:
“This is to certify that Ms Kellie Price was first seen in consultation on 13/07/10 suffering from:
(1)Right trapezius spasm.
(2)Right cervical radiculopathy
Signed Valerie Parish.”
Dr Parish’s clinical notes include a record of consultation on 13 July 2010 at which time complaints were recorded as “Pain R trapezius radiating to finger tips R Cervical Radiculopathy Rotator Cuff R shoulder”. There is a further note “for US guided [illegible]”.
Dr Parish’s clinical notes record two further consultations during the month of July 2010. The quality of the photocopying of those records is such that it is difficult to determine the precise date of one consultation. The notes have an entry immediately following that of the 13 July 2010 noted above, which is dated 28 July 2010. That entry occupies a complete page of Dr Parish’s notes and proceeds to the following page. It records detail of the alleged injury said to have occurred on 5 May 2010 when Ms Price was “pulling a trolley full of potatoes”. The second page on which the entry is recorded appears to be a note of findings on examination. Other details are difficult to decipher, however reference is made to “cervical vertebrae” and appears to record restriction of movement of Ms Price’s neck. The words “GRADE III R V.L” appear at the foot of that entry and the words “for X-ray and CT cervical vertebrae” also appear.
The entry immediately following found in Dr Parish’s clinical notes, relates to consultation on an unknown date in July 2010. Whilst the entry is difficult to decipher, it appears that the following was recorded:
“Underwent US guided steroid R Shoulder on 29-7-10
Few hours later pain R trapezius radiating to right shoulder and [illegible] finger of R [illegible] requests [illegible].”
The next entry is dated 12 August 2010. Whilst the entry is also difficult to decipher, there is clear reference to “CT cervical Vert. C3 C4 → narrowing of neural foramen”. The balance of the entry is unclear.
Ms Price tendered in evidence a copy of the initial WorkCover NSW medical certificate issued by Dr Parish. That document is dated 7 October 2010 and records the following:
“How the injury occurred: On 5-5-10 trolley wheel jammed, Kellie kept walking supporting trolley followed by painful R upper limb.
Diagnosis:
(1)C4/C5 posterior lateral disc herniation.
(2)Impingement of C3/C4 nerve root.
Management Plan:
(3)Analgesics; C5/C6 and C6/C7 anterior cervical discectomy and cervical fusion.”
That certificate stated that Ms Price was unfit for work between 13 July 2010 and 13 December 2010.
A copy of a report by Dr Wisal Almosawi, dated 5 July 2010, concerning an ultrasound right shoulder, conducted on that day, was tendered by Ms Price. That report, which had been requested by Dr Ibraham is in fact addressed to Dr Parish. It was Dr Almosawi’s opinion that findings were consistent with subacromial bursitis. A recommendation was made by that practitioner that an ultrasound guided injection of cortisone be administered.
The evidence establishes that Ms Price underwent surgery to her neck on 23 October 2010 at the hands of Dr Michael Donnellon, neurosurgeon. The procedure is described by that practitioner as “a C5/6 and C6/7 anterior cervical discectomy and fusion”. There are copies of a number of reports prepared by Dr Donnellan which have been tendered by each party. There is a letter, dated 10 November 2010, addressed to the respondent’s insurer which records that Dr Donnellan first saw Ms Price on 3 September 2010 at which time she had reported “a three month history of right sided arm pain. She denies any previous symptoms or complaints associated with her cervical spine before these symptoms”. This correspondence includes responses by Dr Donnellan to questions put to him by the insurer, the last stating:
“Yes, her history is consistent and reliable in regards to the pain syndrome and how it was related to this injury at work. I have no reason to suspect this is not due to the injury at work on the 5/5/2010 as I described in my letter addressed 3^rd September 2010.”
I note that neither the insurer’s letter nor Dr Donnellan’s letter dated 3 September 2010 is in evidence.
There is a copy of a letter, dated 15 November 2010, from Dr Donnellan to Dr Parish, in which “appointment date” is noted as 1 September 2010, where he states, in part:
“…she has been working as a chef until 28 June 2010 when she stopped working because of her pain syndrome. She is currently taking Norspan patches and is on Dyloxetine 60mg at night. When the pain is bad she takes Mersyndol. She has no known allergies.
She told me three months ago that she was stirring a large pot at work and developed a sudden onset of right sided neck and torso pain. Shortly after that she developed right sided shoulder pain which radiated down the lateral aspect of her arm and forearm. This was associated with paraesthesia in her lateral arm and forearm and into all five fingers. She described the neck and arm pain as recurring simultaneously since that time.”
A copy of a second letter, dated 15 November 2010, from Dr Donnellan to Dr Parish is in evidence. That letter makes reference to an appointment date being 29 September 2010. That correspondence appears to record matters relevant to a consultation with Ms Price which occurred on 29 September 2010. It is stated that the “risks and benefits of surgery” were discussed with Ms Price. Dr Donnellan expressed the view that “surgical management is the most prudent course at this stage”. The evidence, as earlier noted, establishes that surgery took place on 23 October 2010. There is no record in this second letter of any work related injury.
Ms Price tendered a report prepared by Dr Donnellan, dated 23 April 2012, addressed to her solicitors. The following is recorded in that report:
“[Investigations] revealed multiple disc bulges at the C4/5 C5/6 and C6/7. These bulges were responsible for her presentation with a right C6 and right C7 radiculopathy. These disc bulges were a result of a workload injury when she was pulling a heavy trolley while working for an airline catering provider. This injury occurred on 01/05/2010 [sic]. After failing a short trial of conservative therapy she underwent a 2 – level anterior cervical discectomy and fusion with good resolution of these radiculopathies.”
Ms Price tendered a written statement made by her mother on 21 December 2011. Mrs Robyn Price, a retired community nurse, stated that her daughter, Kellie, resides with her and her husband. Mrs Price recalls that her daughter told her:
“one evening in May at home last year how the wheel of a food trolley jammed and she was forced to reach out and catch or prevent a tray full of potatoes from falling from the tray. Although she did not say on that evening that she had hurt herself at work from that incident, I noticed that she had come home from work and lie on the couch and apply heat packs to her right shoulder. In fact I would often rub her neck and shoulder with Voltaren gel.”
Mrs Price suggested that her daughter see Ms Ergoden, a physiotherapist. Mrs Price does not recall her daughter having a problem with her neck or right shoulder before commencing employment with the respondent.
Ms Price relied upon the contents of a number of medical reports, including one dated 28 April 2011, from Dr Thomas Cross, Sports Physician. Dr Cross had treated Ms Price following referral by Dr Donnellan. A number of reports from Dr Elias Matalani, consultant occupational physician, prepared by that practitioner in April 2011 and February 2012 at the request of Ms Price’s solicitors for the purposes of this litigation, are in evidence. The contents of those reports are addressed below.
Ms Price was cross examined by counsel appearing on behalf of the respondent at the hearing before the Arbitrator. That evidence is recorded in a transcript which has been produced and made available to the parties. During that hearing, it was expressly put to Ms Price that she had not reported the incident that occurred on 5 May 2010 to anybody in authority. That assertion was denied by Ms Price. It was further expressly put that the reason no report of the injury was made was because the incident had not happened. Ms Price denied that proposition put by Counsel.
The evidence relied upon by the respondent included a statement made by Mr Kareem dated 24 January 2011. Mr Kareem, the respondent’s principal, was responsible for interviewing Ms Price at the time she commenced employment. Mr Kareem states that Ms Price did not notify him of any injury “until after she was not required by Gate Gourmet to work there”. He further states that on 29 July 2010 Ms Price sent an email to the respondent’s head office in New Zealand. That email was forwarded by the New Zealand office to Mr Kareem. That email related to an alleged injury. Mr Kareem telephoned Ms Price and “left a message and asked if she had reported the injury and she did not answer”. Mr Kareem further states that:
“on 2 August 2010 Ms Price left me a message asking for claim forms for injury and I rang her back and I asked her again if she had completed any injury report and she said no or told anyone of the injury whilst at Gate or was anyone else aware of injury, and she said no. I asked her to send through a WorkCover certificate to explain injury and that the incident was a contributing factor to the injury.”
The respondent relied upon a statement by Mr James Lydon, acting production manager employed by Gate Gourmet. Mr Lydon described the duties performed by Ms Price. Concerning the alleged injury, Mr Lydon stated:
“[Ms Price] did not make any complaints of any injury whilst she was [at Gate Gourmet] and had she done so it would have been reported in our record books. The first I became aware of any alleged injury was when investigator emailed Mr Kareem who in turn emailed me.”
Mr Lydon further stated that he was unaware as to what trolley Ms Price “is referring to in her claim”. Ms Price had not reported any incident in relation to stirring a large pot whilst working at Gate Gourmet.
A statement by Mr Pramesh Paddy, dated 7 October 2011, was tendered in evidence by the respondent. Mr Paddy is a gas technician who performed work as a subcontractor at the premises of Gate Gourmet. He stated that he attended Gate Gourmet to work on an oven between the hours of 5 and 6 pm on 7 May 2010. Mr Paddy does not “repair trolleys”. His statement records that he had “looked at [his] maintenance book and [he had] not made any entry about any staff person speaking to [him] about any trolley issue or injury”.
A report from Dr Robert P Drummond, orthopaedic surgeon, dated 2 July 2012 was tendered in evidence by the respondent. Dr Drummond had been qualified to provide that report by the respondent’s solicitors. Dr Drummond’s evidence is discussed below.

THE ARBITRAL PROCEEDINGS

Submissions addressed the question as to whether Ms Price had proven the occurrence of injury as alleged. Submissions put on behalf of Ms Price suggested that her evidence should be accepted concerning the occurrence of injury and her reporting same. The respondent argued that, having regard to the conflict in the evidence concerning the manner in which the injury occurred, the variations concerning history of onset of symptoms and the conflict in the evidence concerning the report of injury, the Commission would not be satisfied that the fact of injury had been proven.

The Arbitrator, in his reasons for his decision, summarised the evidence in considerable detail and attention was given to, among other matters, the diary entries made by Ms Price, the apparent inconsistencies concerning histories recorded by various medical practitioners and the state of the evidence concerning alleged reporting of the injury.
In the course of those reasons, the Arbitrator raised questions and expressed doubts concerning the probity of the evidence relied upon by Ms Price. A finding was made in the following terms (at [79] of Reasons):
“As noted above, the first occasion on which there is any record of the applicant’s allegation that she injured herself at Gate Gourmet is Dr Parish’s note taken on 28 July 2010. The fact that the applicant sent an email the following day making that allegation, suggests that it was at that time, in late July 2013 [sic], that the applicant first conceived of the injury on which she relies is seeking compensation in this matter.”
The Arbitrator proceeded (at [81]) again to state “I cannot accept that [Ms Price] made an entry in her diary regarding an incident with a trolley on 5 May 2010” (at [81] of Reasons) and later “the diary entry for 5 May 2010 cannot in the circumstances be credited as contemporaneous” (at [83] of Reasons).
The ultimate finding expressed by the Arbitrator was that Ms Price had “not discharged the onus of proving that she received an injury to her neck and right shoulder, in the course of employment, on 5 May 2010”. The award noted at [5] above was then made.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The Arbitrator’s finding that Ms Price had failed to discharge the onus upon her concerning proof of injury as alleged was plainly founded upon an assessment of the credibility of her evidence. I have earlier (between [38] and [40] above) noted observations made by the Arbitrator in the course of his reasoning concerning the probative value of Ms Price’s evidence. It is clear that the Arbitrator had concluded that the state of the evidence suggested that Ms Price had “first conceived” the injury in late July 2013. That finding makes it clear that the Arbitrator has rejected Ms Price’s evidence that injury occurred on 5 May 2010 as recorded in her diary. An express finding was made, as earlier noted, that the diary entry for 5 May 2010 was not proven to be “contemporaneous”.
At the hearing of the appeal it was argued, by counsel appearing on behalf of Ms Price, that the relevant error concerned the Arbitrator’s rejection of Ms Price’s evidence concerning the occurrence of injury without addressing the entirety of the evidence. It was further argued that the Arbitrator had reached his conclusion in the absence of a statement by him of sufficient reasons for so finding. Reliance was placed upon the decisions of the Court of Appeal in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 and in Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; 60 NSWLR 127; 1 DDCR 554.
It was submitted that the Arbitrator had failed to address, in the course of his reasoning, credible evidence found in the reports of the medical practitioners which was said to be relevant to an assessment of the credibility of her evidence concerning the issue of injury. In general terms that evidence, it was put, supported the probability of the occurrence of injury as described in Ms Price’s evidence.
It was counsel’s submission (at T23) that the evidence of those medical practitioners supports a conclusion that “the more likely mechanism (causing injury) would have been that which occurred on 5 May 2010”. The relevant passages from that expert evidence are as follows:
(a)     Dr Donnellan in his report, dated 23 April 2012, noted that relevant investigations had revealed multiple disc bulges at C4/5, C5/6 and C6/7. Those bulges, it was stated, were responsible for Ms Price’s presentation with “a right C6 and right C7 radiculopathy”. It was then stated by Dr Donnellan that:
“these disc bulges were a result of a work load injury when she was pulling a heavy trolley while working for an airline catering provider. This injury occurred on 01/05/2010 [sic].”
(b)     Dr Elias Matalani in his report, dated 15 April 2011, recorded the history concerning the alleged injury occurring on 5 May 2010 and expressed the view that “[Ms Price’s] injuries are consistent with stated cause. Her employment has been a substantial contributing factor to the development of her current disabilities”.
(c)     Dr Thomas Cross in his report, dated 28 April 2011, recorded relevant history as being:
“[Ms Price] is a 40 year old chef who suffered a work related injury to her right shoulder girdle/base of neck in May 2010 when she was pulling a heavy trolley in the line of duty working for an airline catering provider…”
It was accepted by counsel that Dr Cross’s evidence does not include an “opinion on nexus” (T.32).
(d)     Dr Robert Drummond in his report, dated 2 July 2012, addressed to the respondent’s solicitors, noted that there “appears to be inconsistency in the history as to the cause” of Ms Price’s undoubted disability. That practitioner stated that:
“if the alleged incident is pulling a heavy food trolley then this is compatible with producing a substantial contributing factor to producing a traction injury to the cervical nerve root.”
The Arbitrator, at [61] of Reasons, recorded Dr Donnellan’s opinion concerning his acceptance that there was a causal connection between the abnormalities diagnosed in Ms Price’s cervical spine and “a workload injury when she was pulling a heavy trolley”. The Arbitrator also recorded (at [62] and [63] of Reasons) the history as recorded by both Dr Matalani and Dr Cross. It is reasonably clear that those matters were noted by the Arbitrator given the fact that each practitioner recorded that Ms Price was, at the relevant time, “pulling” a heavy trolley whereas, in her statement prepared in December 2011, she stated she was “pushing” a trolley. It is also reasonable to conclude that the Arbitrator, when dealing with the evidence of the last mentioned three medical practitioners, was not addressing the question of causation of the injury but rather an apparent contradiction or deficiency concerning the circumstances of injury. It is thus correct, as complained by Ms Price, that the Arbitrator has not, in the course of his Reasons, addressed that evidence which Ms Price submits required evaluation when a determination as to the credibility of her evidence was made.
At the hearing of the appeal counsel for the respondent argued that the Arbitrator’s Reasons for rejecting Ms Price’s evidence had been stated plainly by him and that the matters taken into account included the evidence suggesting a failure to give relevant history of injury “until a long time after the event” and, what was described as, “the reporting issue”. Counsel made clear that those two matters were not the only factors considered by the Arbitrator when reaching his conclusion. The thrust of the argument advanced was that “…the opinion as to causation is really only as good as the history upon which it is found [sic, founded]” (T.28).
Ms Price’s submission that relevant error on the part of the Arbitrator had been made out by reason of his failure to address the evidence which I have summarised at [44] above, must be rejected. The fundamental dispute between the parties which was the subject of the Arbitrator’s adjudication concerned the occurrence or otherwise of injury as alleged on 5 May 2010. In the course of his Reasons the Arbitrator enumerated a number of evidentiary matters which, in combination, led him to conclude that the fact of injury had not been established. His findings necessarily involved an evaluation of Ms Price’s credibility as a witness. The principal matters taken into account may be summarised as follows:
(a)   the state of the evidence as to report of injury;
(b)   the absence of any recorded history found in relevant medical practitioners’ reports and records before that recorded by Dr Parish on 28 July 2010;
(c)   the apparent inconsistencies to be found in the history as recorded by Dr Donnellan;
(d)   the contrasting descriptions of the circumstances of the injury concerning pushing or pulling of the trolley, and
(e)   the conflict between the evidence of Ms Price and that of Mr Paddy.
It is clear that the Arbitrator, following his consideration of the evidence concerning matters noted immediately above, concluded that Ms Price had “first conceived of the injury” in late July 2013. Such a finding of fact, being one founded upon an assessment of the credibility of a witness, may be disturbed on appeal if it can be demonstrated that the finding was against “incontrovertible facts or uncontested testimony”, or, in rare cases, that the finding was “glaringly improbable” or “contrary to compelling inferences”: Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox) per Gleeson CJ, Gummow and Kirby JJ at [29]. In my opinion such has not been established by Ms Price.
The approach adopted by the Arbitrator, that is to examine the evidence as to the probability of the occurrence of injury as alleged, was in my opinion appropriate. The matters taken into account in reaching his conclusion were each relevant and his conclusion was open on that evidence. Whilst it might be that minds differ as to the relevance of the description of pushing rather than pulling the trolley, such apparent contradiction was a matter for the Arbitrator to take into account when assessing the weight to be ascribed to Ms Price’s evidence.
No argument has been advanced that Ms Price’s evidence was wrongly discounted given the inconsistent accounts or absence of history recorded by the medical witnesses. Given the complete absence of any work related history of injury to be found in Dr Ibrahim’s records (compiled by at least four individual practitioners), the delay between the stated date of injury and Dr Parish’s notation made on 28 July 2010, and the apparent conflict of relevant history as recorded by Dr Donnellan, such an argument, founded upon matters stated by the Court of Appeal in Mason v Demasi [2009] NSWCA 227 would, in my view, have failed.
Whilst Ms Price’s evidence concerning injury is, to a limited extent, corroborated by the evidence of her mother Mrs Robyn Price, no argument has been advanced that failure by the Arbitrator to make reference to that evidence should be taken into account on this appeal. I note in passing that on no reading of Mrs Price’s evidence could it be said that it stands as “incontrovertible evidence” in support of the allegation of injury as was discussed by the High Court in Fox.
The Arbitrator’s factual finding concerning alleged injury has been unsuccessfully challenged on this appeal. Ms Price has failed to establish any relevant error and, in those circumstances, the Arbitrator’s decision must be confirmed. Appropriate orders appear below.

DECISION

The orders made by the Arbitrator as recorded in the Certificate of Determination dated 30 June 2013 are confirmed.

COSTS

No order as to costs of this appeal.

Kevin O'Grady
Deputy President

30 October 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

[2013] NSWWCCPD 56

18 October 2013 30 October 2013