Thirunavukarasu v Malek Family Trust t as Alfred Street Child Care Centre - [2014] NSWWCCPD 26

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Thirunavukarasu v Malek Family Trust t/as Alfred Street Child Care Centre[2014] NSWWCCPD 26
APPELLANT:	Mr Subramamiam Thirunavukarasu
RESPONDENT:	Malek Family Trust t/as Alfred Street Child Care Centre
INSURER:	CGU Workers Compensation (NSW) Limited
FILE NUMBER:	A1-12086/12
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:	23 January 2014
DATE OF APPEAL DECISION:	12 May 2014
SUBJECT MATTER OF DECISION:	Challenge to factual findings founded upon findings as to credibility of witness; s 254 of the Workplace Injury Management and Workers Compensation Act; requirements as to giving of notice of injury; challenge to finding concerning prejudice; procedural fairness
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Turner Freeman Lawyers
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	1. The orders as found in the Certificate of Determination dated 23 January 2014 are confirmed. 2. No orders as to costs of this appeal.

BACKGROUND

Mr Subramamiam Thirunavukarasu (the appellant) alleged that he had received injury, being an inguinal hernia, arising out of or in the course of his employment with Malek Family Trust trading as Alfred Street Child Care Centre (the respondent) in 2009. The appellant had been employed as a part-time cook by the respondent. It was his allegation that the subject injury was received as a result of the duties performed by him in that employ between 21 October 2009 and 30 October 2009 or, in the alternative, as a result of the nature and conditions of his employment with the respondent between 1 June 2008 and 30 October 2009.
The respondent denied that the appellant had received the injury as alleged and, further, argued that the appellant had not complied with the requirements concerning the giving of notice of injury as prescribed by s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
There is no dispute that the appellant had attended his general practitioner, Dr Christopher Grant, on 28 October 2009 at which time the presence of a left sided inguinal hernia was diagnosed. The appellant alleged that he reported the occurrence of injury to his superior, Mr Michael Malek, on 29 October 2009. Mr Malek disputes that such notice of injury was given.
The appellant continued to perform his duties until 15 September 2010 at which time he ceased work. On 16 September 2010 the appellant underwent repair of the hernia earlier diagnosed by Dr Grant as a public patient at Westmead hospital. That procedure followed earlier consultation with Dr Nimalan Pathma-Nathan, colorectal, general and laparoscopic surgeon. That practitioner had arranged the appellant’s admission and the procedure was conducted under the supervision of clinical superintendent, Dr Adrian Fernandez.
The appellant remained off work following that surgical treatment until 11 October 2010. He ceased work three days later and has not resumed employment since.
The respondent and its insurer were served with a worker’s injury claim form, which was accompanied by a WorkCover medical certificate, on or about 21 August 2012. The insurer denied liability in respect of provisional payments, and notice of that denial was forwarded to the appellant by correspondence dated 31 August 2012. These proceedings were commenced in the Commission on 25 September 2012. The appellant sought orders in respect of weekly compensation and medical, hospital and associated expenses. The application came before Arbitrator Garth Brown and was heard on 7 August 2013. The Arbitrator reserved his decision at the conclusion of that hearing, and a Certificate of Determination was issued on 23 January 2014. The Arbitrator, in a Statement of Reasons which accompanied that Certificate, recorded his findings that the appellant had failed to give notice of injury as required by the legislation and, further, found that he had failed to establish on the probabilities that he had received injury as alleged. An award was entered in favour of the respondent. This appeal challenges those findings and entry of the award.

PRELIMINARY MATTERS

Thresholds

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 the 1998 Act have been met.

ON THE PAPERS

Both parties submit that the appeal can proceed to be determined “on the papers” as is permitted by s 354(6) of the 1998 Act. Having regard to Practice Directions Nos 1 and 6 and the documents that are before me, 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 appellant identifies four grounds of appeal, each of which challenge particular factual findings said to have been made by the Arbitrator, being those concerning the occurrence of injury; the matters raised by application of s 9A of the Workers Compensation Act 1987 (the 1987 Act); failure by the appellant to give notice of injury, and suggested findings as to incapacity. The respondent submits that no submissions “specific to” the findings as to the application of s 9A are made by the appellant. It is also submitted by the respondent that the Arbitrator had made no finding concerning alleged incapacity.
I accept the respondent’s last mentioned submissions. No finding concerning incapacity was made by the Arbitrator. Having regard to the manner in which argument has been advanced on this appeal, it is clear that the matters in dispute concern the Arbitrator’s findings that the appellant:
(a) had failed to give notice of injury as required by the legislation, and
(b) did not receive injury arising out of or in the course of his employment.

THE ARBITRAL PROCEEDINGS

Each party was represented by counsel before the Arbitrator and those proceedings were recorded. A transcript has been produced and made available to the parties. The documentary evidence before the Arbitrator was identified by him at [11] of his Reasons. The respondent was granted leave at the hearing to cross-examine the appellant. That evidence is recorded in the transcript. No other oral evidence was adduced at the hearing.

The Evidence

There were written statements in evidence made by both the appellant and Mr Malek, who is said to be a “director” of the respondent. The appellant had been employed at the Alfred Street Child Care Centre since March 2001 as a part-time casual cook. That business was taken over by the respondent in February 2002, at which time the appellant became a permanent part-time employee.
The respondent’s child care centre accommodated 80 children. The nature of the duties performed by the appellant were the subject of dispute. The appellant stated that he cooked for 80 children and 20 staff members as well as performing “cleaning, washing dish [sic], utensils. Additional shopping in bulk fruits, vegetables, were in boxes weighing more than 10 kg. Bread and other needy [sic] items to the centre. Without any assistance.”
Mr Malek stated that the appellant cooked meals for 60 children, being those older than two years of age. No meals were provided for staff. Mr Malek denied that the appellant “had to buy groceries such as fruit and vegetables”. Those items were purchased from supermarkets. If the appellant had to “carry anything, these items would not have been heavy”.
The appellant stated that he received injury on 23 October 2009 when he felt “slight pain in under tummy left side with a lump present”. He consulted Dr Grant, his general practitioner, on 28 October 2009 at which time inguinal hernia was diagnosed and he was “booked for surgery”. The appellant further stated that he reported the injury to Mr Malek on 29 October 2009. It is stated that Mr Malek “totally ignored” the report. The appellant stated that Mr Malek “kept on harrassing and bullying”. It is stated that, when the appellant’s employment came to an end, his “entitlements were denied including pending leave and long service leave”. Investigation by “the NSW Industrial Inspector” took place. Some entitlement was recovered.
Mr Malek denied that he was given notice of injury on 29 October 2009. He stated that, on that day, the appellant attended the centre and informed staff that “he could not work that day, because he wanted the day to go and get a visa to travel to India”. The appellant was subsequently absent from work, while he travelled to visit his ill mother. He returned to his duties at the centre on 7 December 2009.
Mr Malek became aware that the appellant “had to have an operation for a hernia repair” during the week ending 10 September 2010. That surgery occurred on 16 September 2010. The appellant had worked normal shifts up until 15 September 2010. The appellant was absent from work thereafter until 1 November 2010 at which time he returned to work for three days. He was unable to continue working after that time. Medical certificates, which were not WorkCover medical certificates, were provided to the respondent by the appellant. The appellant went on “three months of unpaid leave”. A request was made on 1 February 2011 for an extension of unpaid leave. That request was refused. Mr Malek became aware that the appellant was “making a work related injury claim” after receipt of a worker’s injury claim form in 2012. Other evidence suggests that the claim form was received by the respondent in August 2012.
Mr Malek denied, in his statement made 6 August 2013, that he had been “threatening and aggressive” towards the appellant.
The appellant had reported to the NSW Industrial Relations Authority that he had been denied holiday pay, sick leave and annual loadings. Following investigation, it was stated, those allegations were found to be incorrect. An order was made concerning long service leave. That amount has been paid.
The expert medical evidence and medical records tendered by the parties establish that the appellant had consulted his general practitioner, Dr Grant, on 28 October 2009, at which time Dr Grant recorded that he had discussions concerning the results of unrelated tests earlier conducted. His clinical note made on that day records “a swelling in his left groin; small ulcers in his nostrils”. Under the heading “examination” in those notes, Dr Grant recorded “left inguinal hernia”.
Dr Grant’s clinical notes record that, on 2 November 2009, he had referred the appellant to “surgical outpatient department”.
There is in evidence a copy of a letter sent by Dr Grant to Dr Pathma-Nathan dated 23 March 2010. Dr Grant wrote that his patient, the appellant, had been on the “waiting list to have his left sided inguinal hernia repaired” and that he had received “a phone call from the hospital in mid February to come in…”. Dr Grant explained in that correspondence that by reason of his patient’s experience of an exacerbation of an unrelated chronic lower back pain, he was unable to have the operation at that time. The medical evidence establishes that the hernia repair procedure was conducted at Westmead hospital, the appellant being a public patient, on 16 September 2010. I note that the clinical records produced by Westmead hospital include an entry dated 14 December 2009 under the heading “HPI” (history of presenting illness):
“noted a lump in his [L] groin on coughing.
symptomatic only upon heavy lifting.”
The discharge summary relating to the appellant’s surgical treatment at Westmead hospital in September 2010 under the heading “legal status on admission” has an endorsement which reads “no Act applies”. That summary records that the appellant had “no cover – public patient”.
Included among documents produced by Dr Grant, which had been tendered on behalf of the appellant, is a copy of an “Initial Medical Report and Certificate for Superannuation Disablement Claim” which was addressed to AMP Life Limited. That certificate records that Dr Grant first attended the appellant in connection with the relevant injury or illness in October 2009. Dr Grant certified that the appellant had become completely unable to perform all normal duties of his occupation as from 16 September 2010. The condition suffered by the appellant was described as “chronic pain syndrome”, the history being that the appellant had undergone left inguinal hernia repair and had suffered chronic severe pain in his left groin and testicle as well as in in the medial thigh. The diagnosis was explained on the basis of nerve irritation. At [25] of that certificate a question is put to the medical practitioner as to whether it is considered that the disablement is “connected in any way with a previous accident or disease or unfavourable features of the claimant’s history”. Dr Grant had placed an “X” next to the word “no”. His response is otherwise left blank. At [26] of that certificate, in response to a question as to whether Dr Grant had given any certificate “to another insurance company or in connection with workers compensation, Centrelink benefits, sick leave benefits or for any other reason”, the word “no” is endorsed. That certificate signed by Dr Grant is dated 4 July 2012.
The appellant placed reliance upon a report of Dr Grant dated 6 June 2013. Dr Grant stated in that report that “there are approximately 170 consultations” recorded in his notes concerning treatment of the appellant. Dr Grant further stated:
“Mr Thirunavukarasu attended this surgery on Wednesday 28^th October 2009 having noticed a swelling in his left groin. An inguinal hernia was diagnosed and a referral letter was written for him to attend the Surgical Outpatient Department of Westmead Hospital. This letter was faxed to the hospital and in due course he received an appointment. He was contacted by the hospital re an operation date in February 2010 but he postponed the operation because at the time he was suffering from an acute exacerbation of his chronic back pain. The operation was finally performed on September 16 2010. The possible cause of his hernia was never discussed at the time.”
Dr Grant recorded in that report that during consultation on 4 November 2010 the appellant described his usual work duties. Dr Grant expressed the following opinion:
“hernias usually develop as a result of heavy or constant lifting and therefore considering the description of his work duties, I would consider that his work would have been a substantial contributing factor to the development of the hernia.”
Dr Grant noted in that report that the appellant had experienced ongoing pain in his left groin which had been investigated at Westmead Hospital at which time a surgeon who had examined him expressed the view that the likely cause of his continuing pain was entrapment of the genito-femoral nerve. Dr Grant expressed the view that the appellant was “permanently unfit to return to the workforce”. It was Dr Grant’s view that the appellant’s incapacity resulted from pain and disability resulting from the hernia and the subsequent surgery as well as from unrelated neck and back pain experienced by him.
There are a number of other documents relevant to the Arbitrator’s determination of the dispute which are relevant to matters raised on this appeal. Those documents are addressed in the course of discussion below.
At the time leave was granted by the Arbitrator to cross-examine the appellant, over objection raised by his counsel, the Arbitrator indicated that he would “allow consideration to having the matter adjourned to allow Mr Malek to be available for cross-examination” should that be the appellant’s wish. Following cross examination the Arbitrator enquired of counsel as to whether an adjournment was sought. Counsel informed the Arbitrator that his client was “happy to proceed” and no application was made concerning leave to cross-examine Mr Malek.

The Arbitrator’s Decision

The Arbitrator, following a summary of the evidence which was before him and submissions raised on behalf of each party, stated (at [49] of Reasons):
“After careful consideration of all of the evidence I am not satisfied [the appellant’s] oral and statement evidence in respect to a number of matters is reliable. In my opinion there are numerous inconsistencies, and I am of the view that in a number of key aspects [the appellant’s] evidence is contradicted or is inconsistent (as discussed below) and where [the appellant’s] evidence is inconsistent with the unchallenged statement evidence of Mr Malek [sic]. Having regard to the whole of the evidence I am of the view that [the appellant’s] credit has to some extent been impugned. I prefer the unchallenged statement evidence of Mr Malek, whose evidence appears to me internally consistent and also consistent with the third party evidence and chronology. In contrast to the inconsistencies and contradictions in [the appellant’s] oral and statement evidence I am of the view that the statement evidence provided by Mr Malek is consistent with the contemporaneous medical evidence and ancillary evidence including [the appellant’s] trip overseas to see his mother in November 2009 and the provision of non WorkCover medical certificates pertaining to the hernia in 2010.”
The Arbitrator proceeded to consider the question as to whether the appellant had established that he had met the requirements as to notice of injury prescribed by the provisions of s 254 and s 255 of the 1998 Act. Following a careful examination of the documentary evidence and the appellant’s oral evidence, the Arbitrator concluded (at [92] of Reasons) that he was:
“…not satisfied [the appellant] has complied with the timing and information requirements of s 254 and s 255. I am not satisfied [the appellant] gave notice of injury, which he states he suffered in October 2009, ‘as soon as possible’ as required by s 254. I am not satisfied [the appellant] gave verbal or written notice in 2009 or 2010 to the respondent that he had suffered an incident at work.”
The Arbitrator, following consideration of relevant matters concluded that the appellant had “not discharged his onus of establishing the respondent suffered no prejudice due to [the appellant’s] delay in giving notice” (at [93] of Reasons).
The Arbitrator (at [50]–[99] of Reasons) summarised the evidence which he had concluded demonstrated contradiction of, or inconsistency with, the evidence of the appellant. At [100] of Reasons the Arbitrator stated his conclusion that the evidence was not of sufficient weight to enable him to be satisfied, on the balance of probabilities that “the [appellant] suffered an injury within the meaning of s 4 and s 9A of the 1987 Act…”. The Arbitrator had earlier at [103] of his Reasons stated “given my reservations about [the appellant’s] evidence, and in the absence of contemporaneous corroboration, I am also not satisfied the onset of hernia happened at work”. The Arbitrator proceeded to enter an award in favour of the respondent.

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 appellant’s fundamental complaint is that the Arbitrator had erred in determining that he had not established the occurrence of injury as alleged. The written submissions in support of the appeal concerning this particular matter, complain not only of suggested error of fact, but it is clear that the appellant argues that the Arbitrator has failed to adequately state his reasons for determining that issue against him. It also appears that complaint is made that the appellant had been denied procedural fairness by the Arbitrator.
Reference is made by the appellant to the Arbitrator’s statement at [103] of his Reasons and it is argued he was “incorrect” to conclude that he was not satisfied that the onset of the hernia happened at work; that there were no contemporaneous notes from Dr Grant to indicate that it did, and that there were no references to the hernia having a causal temporal connection with the appellant’s workplace in any of the numerous contemporaneous treating records and reports of “multiple practitioners”.
The Arbitrator is said to have been “incorrect” having regard to the “unchallenged” evidence of Dr Grant which is found in his report of 6 June 2013. The difficulty with this argument is that the report of Dr Grant does not constitute a contemporaneous record and it was, in the Arbitrator’s view, significant that there was no contemporaneous corroboration concerning the occurrence of injury to be found in relevant records including those of Dr Grant. The Arbitrator did not, as is suggested by the appellant at [1(j)] of submissions, suggest that there was “no evidence” supporting the allegation of injury. The Arbitrator’s reasoning demonstrates that, notwithstanding careful analysis of all the evidence, there existed no contemporaneous corroboration. The appellant’s assertion that the Arbitrator had “failed to explain” why the appellant’s case was not accepted, must be rejected. Matters which were taken into consideration were enumerated by the Arbitrator and they included the following:
(a)     the appellant’s oral evidence concerning the consultation with Dr Grant on 28 October 2009, in particular the appellant’s assertion that Dr Grant had said the hernia was “because of heavy lifting, this happened at work” was not supported by the evidence of Dr Grant. As noted by the Arbitrator, Dr Grant in his report of 6 June 2013, expressly states that “the possible cause of this hernia was never discussed at this time [28 October 2009]”. As noted by the Arbitrator, the clinical notes concerning that consultation were silent as to the date of onset and causation of the hernia condition;
(b)     the Arbitrator, at [61] of his Reasons, noted that the AMP medical report made no reference to the subject hernia injury being work related. The Arbitrator also noted that Dr Grant, in that report, recorded that the illness or injury occurred on “October 21 2009”;
(c)     the Arbitrator examined the oral evidence and the documentary evidence and noted inconsistencies concerning the alleged reporting of the injury to Mr Malek (at [62]–[66] of Reasons);
(d)     the notes of Dr Pathma-Nathan concerning consultation on 14 December 2009 were noted by the Arbitrator. It was found that whilst the entry did support a conclusion that the hernia was symptomatic only upon heavy lifting, there was no reference to lifting in the course of employment and the notes did not record that the hernia came about as a result of heavy lifting at work, and
(e)     there was no explanation to be found in the oral or statement evidence of the appellant as to why it “took nearly 3 years to serve an injury claim form”.
The appellant, at [1(q)] of submissions, suggests that the respondent “did not formally dispute injury (that is, no formal s 74 notice was issued) nor did [the respondent] rely upon any medical evidence to contest or posit an alternative cause of injury”. It seems to be suggested that those circumstances should have been taken into account by the Arbitrator when determining the veracity of the appellant’s evidence and that of Dr Grant concerning the issue of causation of his hernia.
There is no evidence before the Commission concerning service by the respondent upon the appellant of a notice disputing liability given in compliance with the provisions of s 74 of the 1998 Act. Notwithstanding that fact it is clear that objection was taken to commencement of provisional payments of compensation by the respondent by reason, in part, that it was not satisfied that there was sufficient evidence concerning the occurrence of injury to warrant such payment. The dispute before the Arbitrator was conducted upon the basis that the respondent disputed injury and the appellant may be taken to have been aware of that issue since receipt of the correspondence in which payment of provisional compensation was declined. The suggested absence of a notice issued pursuant to s 74 was not raised at the hearing and, in so far as the absence of that notice might be assumed, the appellant can, on this appeal, make no complaint.
The appellant argues that the Arbitrator’s suggested error concerning the issue of injury “was compounded by the Arbitrator’s reliance on evidence of a statement of one Mr Malek who was not made available to be cross-examined and where the admission of the statement evidence was challenged at arbitration” (at [1(u)] of submissions). That submission misstates the circumstances which prevailed at the hearing. It was earlier noted that the only objection taken by the appellant was that his (the appellant’s) cross-examination was opposed. No objection was taken to the tender of Mr Malek’s statement. No complaint can be made concerning the unavailability of Mr Malek for cross-examination having regard to the opportunity granted by the Arbitrator to the appellant to seek an adjournment for that purpose, which opportunity was declined.
The appellant suggests in submissions that the Arbitrator had denied him procedural fairness given that the Arbitrator made an adverse finding as to his credit “without the appellant having the opportunity to respond to such issues formally, particularly when Mr Malek’s evidence could not be challenged” (at [1(cc)] of submissions). Having regard to the manner in which the matter was conducted before the Arbitrator, this submission must be rejected. The state of the evidence presented by each party made it clear that there were significant factual disputes which included the proper description of the appellant’s duties and the timing of the appellant’s giving of notice of injury. The appellant’s credit was tested in the course of cross-examination. A decision was taken by the appellant to proceed with the hearing following that cross-examination, as earlier noted, rather than to seek an adjournment for the purpose of having Mr Malek called to enable cross examination. The appellant is incorrect to assert in submissions that Mr Malek’s evidence “could not be challenged”. That evidence was not challenged given the appellant’s preparedness to proceed with the hearing notwithstanding the opportunity indicated by the Arbitrator that an adjournment would be considered should there be an application to have Mr Malek called to give oral evidence. Any suggestion that the appellant had been denied procedural fairness must be rejected.
The Arbitrator’s rejection of the appellant’s allegation concerning the occurrence of injury was plainly founded upon his assessment of the credibility of the appellant as a witness and of the shortcomings in the evidence in support of that allegation. The circumstances in which such a finding, founded upon credibility findings, may be challenged on appeal was addressed by the High Court in Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox). It was there held that such a finding 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” (per Gleeson CJ, Gummow and Kirby JJ at [29]).
In my opinion the appellant has failed to establish a foundation, as formulated by the High Court in Fox, upon which the Arbitrator’s finding as to injury may be challenged on this appeal.
The Arbitrator’s approach to the dispute led him, earlier, to consider the question as whether the appellant had satisfied the requirements as to giving of notice of the alleged injury. The relevant provisions are ss 254 and 255 of the 1998 Act. The Arbitrator’s findings concerned application of s 254 to facts as found. That section provides, relevantly:
“(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances:
(a)the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b)the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c)the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d)the injury has been reported by the employer to the Authority in accordance with this Act.
(4) …”
The relevant finding which is challenged is that found (at [92] of Reasons) where the Arbitrator stated:

“In view of my acceptance of the unchallenged and consistent statement evidence of Mr Malek over that of the evidence provided by [the appellant] it follows that I am not satisfied [the appellant] has complied with the timing and information requirements of s 254 and s 255. I am not satisfied [the appellant] gave notice of injury, which he states he suffered in October 2009, ‘as soon as possible’ as required by s 254. I am not satisfied [the appellant] gave verbal or written notice in 2009 or 2010 to the respondent that he had suffered an incident at work. I am satisfied the respondent did not receive notice of the allegation of injury as having any causal relationship with [the appellant’s] work with the respondent until the respondent received the partially completed Workers Injury Claim Form (dated 1 May 2012) from [the appellant’s] solicitors sometime on or about 28 August 2012 which is almost three years after the alleged work injury of October 2009 and is not ‘as soon as possible’ after injury as required by the section. I am also not satisfied special circumstances contemplated by s 254 exist so as to excuse [the appellant’s] delay in giving the respondent notice of the alleged injury, and I note that the onus of proving special circumstances rests with the worker (Gregson v L & MR Dimasi Pty Ltd [2000] NSWCC 47).”

It may be seen that the Arbitrator’s findings concerning notice of injury were founded upon his stated preference for the evidence of Mr Malek over that of the appellant. Those conclusions of fact concerning notice, based as they were upon credibility findings, may only be disturbed in those circumstances earlier discussed at [43] above.
Nothing put on behalf of the appellant remotely suggests that the Arbitrator’s conclusions were against evidence of the character addressed by the High Court in Fox, nor that they were “glaring improbable” or “contrary to compelling inferences”. Further, the Arbitrator’s conclusion as to prejudice, which is to be found at [100] of his Reasons, was one open to him on the evidence, which evidence was plainly outlined in the course of his Reasons.
The appellant’s argument that there existed “special circumstances” must be rejected. It is put, for the first time on appeal, that “it was only at such time that the appellant consulted lawyers in 2012 that he was aware of his entitlements and rights”. The appellant fails to identify any evidence in support of that contention and I reject the suggestion that the Arbitrator had erred concerning his conclusion as to “special circumstances” within the meaning of s 254.
The challenges to the Arbitrator’s findings as to the giving of notice of injury and the occurrence of injury, as alleged, fail and the appeal must be dismissed. Appropriate orders appear below.

DECISION

The orders as found in the Certificate of Determination dated 23 January 2014 are confirmed.

COSTS

No order as to costs of this appeal.

Kevin O'Grady
Deputy President

12 May 2014

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