Beggs v W & D Stuart

[2006] NSWWCCPD 308

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Beggs v W & D Stuart [2006] NSWWCCPD 308

APPELLANT:  Andrew Jason Beggs

RESPONDENT:  W & D Stuart

INSURER:QBE Workers Compensation (NSW) Limited

FILE NUMBER:  WCC10148-05

DATE OF REGISTRAR’S DECISION:             2 September 2005

DATE OF APPEAL DECISION:  15 November 2006

SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; fees for an investigation report; Items 4.08; 4.09; 4.11 and 4.12 of Schedule 6 of the Workers Compensation Regulation 2003.

PRESIDENTIAL MEMBER:  Acting Deputy President Tydd

HEARING:On the papers

REPRESENTATION:  Appellant:      McCabe Partners

Respondent:    QBE Workers Compensation (NSW) Limited

ORDERS MADE ON APPEAL:  1. Paragraphs two and four of the decision of the delegate dated 2 September 2005 are revoked and the following orders are made in their place:

“(i) The Applicant’s costs of the substantive proceedings are assessed in the sum of $8,078.85.

(ii) The Respondent is to pay to the Applicant a total amount of $8,353.85 if those costs have not already been paid.”

2. Paragraph one of the delegate’s decision referring to the order for costs contained in the ‘Certificate of Determination’ and paragraph three of the delegate’s decision, awarding costs of the assessment in the sum of $275.00 were not raised on appeal and are confirmed.

3. No order as to the costs of the appeal.

BACKGROUND

Prior proceedings

1. On 22 November 2004 Andrew Jason Beggs (‘Mr Beggs’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (WCC19025-04). Mr Beggs claimed that he had contracted Q Fever on 4 June 1992 in the course of his employment as a shearer with W & D Stuart, the Respondent employer and sought weekly benefits compensation for the period 1 July 1994 to date and continuing and medical and related expenses in accordance with section 60 of the Workers CompensationAct 1987 (‘the 1987 Act’).

1. W & D Stuart did not lodge a Reply to the application. W & D Stuart’s insurer is QBE Workers Compensation (NSW) Limited (‘the Insurer’).

1. On 2 February 2005, a teleconference was conducted before a Commission Arbitrator (‘the Arbitrator’). Mr Beggs’ solicitor and a solicitor for the Insurer participated in the teleconference. At the teleconference the Arbitrator made procedural directions including that the dispute be set down for conciliation/arbitration on 7 March 2005.

1. The dispute was resolved by consent at hearing on 7 March 2005 and the Arbitrator issued a ‘Certificate of Determination – Consent Orders’ on 8 March 2005 ordering W & D Stuart to pay Mr Beggs weekly compensation from 1 July 1994 to 30 June 2003 and to pay Mr Beggs’ costs as agreed or assessed. The orders also noted Mr Beggs’ admission that subject to the payment of the monies awarded, he had been paid to the date of the order, all other entitlements to workers compensation in respect of the injury he sustained on 4 June 1992.

1. On 24 June 2005, Mr Beggs’ solicitor lodged an ‘Application for Assessment of Costs’. Mr Beggs’ solicitor confirmed in the application that the Insurer had been given his bill of costs on 31 March 2005. However Mr Beggs’ solicitor did not lodge a copy of his bill of costs with the application. Neither W & D Stuart nor the Insurer lodged a Reply to the application.

1. The Registrar’s decision in relation to this application, by her delegate, a Commission Arbitrator, (‘the delegate’) was made on 2 September 2005. The decision is set out as follows:

   “1.Pursuant to a Certificate of Determination dated 8 March 2005, the Respondent is liable to pay the Applicant’s costs as agreed or assessed.

   2.The Applicant’s costs of the substantive proceedings are assessed in the sum of $8,869.48.

   3.The Respondent is to pay the Applicant’s costs of the assessment, assessed at $275.00

4.The Respondent is, therefore, to pay the Applicant a total amount of $9,144.48 [i - sic]f those costs have not already been paid.”

1. The delegate’s decision was accompanied by a ‘Statement of Reasons’ which provided a: background; reference to the relevant authorities, and a summary of the issues in dispute together with an assessment, in respect of each item claimed in table format and a determination of the application.

Lodgement of the appeal

1. On 4 October 2005, Mr Beggs’ solicitor lodged an ‘Appeal from the Registrar’s Determination on Costs’. The appeal was served on the Insurer on 13 October 2005 as confirmed by a Certificate of Service dated 13 October 2005.

1. The Insurer has not lodged submissions in reply to the appeal.

ON THE PAPERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:

“(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.”

1. Following my review of the files I am satisfied that the Insurer has been provided with an opportunity to lodge submissions in reply and has failed to do so. Mr Beggs’ solicitor has not made submissions in respect of the requirement for a formal hearing and has not sought to adduce fresh evidence. Having regard to the submissions, Practice Directions Numbers 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.

SUBMISSIONS

Mr Beggs’ solicitor’s submissions

1. Mr Beggs’ solicitor’s submissions are wide ranging and include reference to authorities regarding the approach to be adopted in interpreting legislation and the requirement for the decision maker to take into account all relevant material (Minister for Aboriginal Affairs v Peko Wallsend Limited (1996) 162CLR24). Mr Beggs’ solicitor submits that the delegate erred in not referring to his submissions when dealing with items 4.08 to 4.11 of the Compensation Costs Table (‘the Table’) contained in Schedule 6 of the Workers Compensation Regulation 2003 (‘the WC Regulation’). Mr Beggs’ solicitor submits that the delegate erred in not allowing: the full costs of a Factual and Liability Summary Report (‘the Report’) provided by St George Registration & Investigation Service Pty Limited (‘SGRIS’) and the full of the costs claimed pursuant to Items 4.08; 4.09; 4.11, and 4.12 of the Table as there was no opposition to his bill of costs by the Insurer.

1. Mr Beggs’ solicitor submits that the Report was required as the Table envisages the costs of briefing a factual investigator in between the legal activities under Items 2.01 and 2.06 of the Table to obtain the extensive information required in workers compensation proceedings. Mr Beggs’ solicitor submits that Item 2.06 requires the “Applicant legal practitioner” to provide information in accordance with “Part 1 Rule 5.1 of the WorkCover NSW Guidelines, effective from 1 January 2002”. The extract provided by Mr Beggs’ solicitor under the heading Criteria 1 – Minimum identifying information:” then sets out the information to be gathered by the insurer. Further it is submitted that the delegate erred in determining that “…the preparation of an Applicant’s Schedule of Earnings is legal work, encapsulated and absorbed by items in the table.” as there is no item in the Table which allows for the preparation of an applicant’s schedule of earnings and it is reasonable to gather wage records and prepare a wages schedule therefore the costs should be allowed. Further fees for investigators’ reports are not regulated by Part 19 of the WC Regulation (Nebauer v Hunter Area Health Service [2004] NSWWCCPD60 (‘Nebauer’)) and ultimately it is for the Registrar to determine if the costs incurred are fair and reasonable in accordance with clauses 105 and 106 of the WC Regulation. Additionally the applicant is a witness and the costs of obtaining a statement from the applicant should be allowed (Caress Annasson v The Hills Association for the Intellectually Disabled Limited and Rose v Bilo Pty Limited (2005) NSWWCC 32). In the alternative the matter was complex, novel and “extremely difficult”, the “quality of the work was extremely high and that the incident occurred in country NSW and therefore the costs are fair and reasonable.”

1. The submissions in relation to the items claimed pursuant to the Table can be summarised as follows:

·Item 4.01 [sic Item 4.10] of the Table should be construed to allow the payment of travel time for a solicitor in addition to the travelling expenses under Items 10.2 and 10.3. Therefore the costs of travel time to attend and participate should be allowed under Items 4.08, 4.09 and 4.11. A failure to allow the travel time for country solicitors would be in “breach of the Anti-Discrimination Act NSW 1977”;

·the delegate’s finding that the maximum amount allowable under item 4.08 is $500.00 demonstrates a misunderstanding of the decision of Orellana Fuentes v Standard Knitting Mills Pty Ltd & Anor [2003] NSWCA146 (‘Fuentes’) as in applying the authority provided in that decision Schedule 6 of the WC Regulation should be constructed by reference to its own terms and the item claimed. Item 4.08 of the Table refers to “a” conference “a” client and “that type of activity” and therefore a solicitor is entitled to claim for preparation of a conference and also preparation of a conciliation/arbitration to a maximum of $500.00 for each of these activities, and

·the delegate’s finding that the decision in Fuentes restricts Item 4.12 of the Table to an allowance for two reports only is incorrect and the delegate failed to provide any reasons for his finding in this regard.

Issues in dispute

1. The issues raised on appeal are as follows:

·Did the delegate err in determining the costs of disbursements relating to the Report?

·Did the delegate err in determining Items 4.08, 4.09 and 4.11 of the Table?

·Did the delegate err in determining Item 4.12 of the Table and fail to provide adequate reasons for his decision?

DISCUSSION

1. The relevant legislation concerning appeals to the Commission against an assessment of costs contained in the 1998 Act and the WC Regulation has been considered in a number of recent decisions (Berger v Moree Plains Shire Council[2005] NSWWCCPD 152 (‘Berger’); McManus v Gosford City Council [2004] NSWCCPD 61 (‘McManus’); Asimus v J.J. Walker, A.D. Walker & Temple Pty Ltd t/as Templemore Partners [2006] NSWWCCPD 113 (‘Asimus’); Flegerbein v Tom B Blackburn Pty Ltd [2006] NSWCCPD 30 (‘Flegerbein’); Orr v Direct Couriers (Australia) Pty Ltd [2004] NSW WCCPD 28 (‘Orr’); Canham v Kenna Investments Pty Limited[2006] NSWWCCPD 202 (‘Canham’) and Green v Chris Mc Leod Cotton Picking Pty Ltd [2006] NSWWCCPD 51 (‘Green’) and need not be canvassed again in this decision. In Woodbury v Miles [2006] NSWCCPD 5 (‘Woodbury’) the Commission considered the date at which the law is to be applied in determining an appeal against the Registrar’s assessment of costs and held that “the applicable law is that in effect at the time the Commission issued the Certificate of Determination, including the costs order [14]”. I adopt the reasoning applied in Woodbury.

1. The matters raised on appeal require reference to clauses 82, 84, 99, 110, 119(1) of the WC Regulation and as the cost of an investigator’s report are not regulated by Part 19 of the WC Regulations it is necessary to consider clause 46 of the Legal Profession Regulation2002 (‘LP Regulation’) which was in force at the time of the issue of the ‘Certificate of Determination’, being 2 September 2005 (see Berger and Woodbury).

1. Clause 84 of the WC Regulation fixes the maximum costs recoverable by legal practitioners and agents to those set out in the Table contained at Schedule 6 except where otherwise provided in Part 19.

1. Clause 99 of the WC Regulation establishes the entitlement of a person to apply for an assessment of party/party costs and clauses 102, 103, 105 and 106 provide guidance as to how those applications are to be dealt with by the Registrar. The WC Regulation does not contain a default provision allowing an applicant to be entitled to all amounts claimed because of the absence of a reply to the application.

1. Pursuant to clause 110 of the WC Regulation the Registrar has discretion to determine whether or not it was reasonable to carry out the work to which the costs relate, and what is a fair and reasonable amount (emphasis added) of costs for the work concerned.

1. Clause 119(1) of the WC Regulation is of particular relevance to this matter as it specifically limits the grounds on which an appeal may be made against the decision of the Registrar on an assessment of costs ‘to a matter of law’ arising in the proceedings.

1. Clause 82(b) of the WC Regulation specifically excludes from the costs regulated by Part 19 “fees for investigators’ reports or for other material produced or obtained by investigators (such as witness statements or other evidence)”. Accordingly, when claimed as a disbursement as in the present case the investigators’ fee must be assessed pursuant to Schedule 2, Pt 1, Item 10 of the LP Regulation which provides:

“SCHEDULE 2 – Costs for legal services in workers compensation matters

(Clause 46)

Part 1 - Schedule of practitioners’ costs

10 Disbursements

Any disbursement necessarily incurred is to be allowed except in so far as any such disbursement is of an unreasonable amount or has been unreasonably incurred and any doubts which the taxing officer/costs assessor may have as to whether any disbursement was reasonably incurred or was reasonable in amount are to be resolved in favour of the receiving party.” (Emphasis added)

1. It is not reasonable to claim a cost as a disbursement that has already been the subject of a claim under Schedule 6 of the WC Regulation (Berger).

Did the delegate err in determining the costs of disbursements relating to the Report?

1. Mr Beggs’ solicitor sought $2,482.15 for the Report provided by SGRIS.

1. The delegate’s reasons demonstrate that he determined it necessary to examine the work performed by SGRIS to ascertain if that work fell outside Clause 82(b) of the WC Regulations. The delegate then considered if it was fair and reasonable to undertake the work which fell within Clause 82(b) before considering whether the time taken and the amount charged for that work was fair and reasonable.

1. In determining the costs of the Report the delegate referred to a “Memorandum of Costs and Disbursements Re: Andrew Jason BEGGS” dated 26 October 2004 which itemised the costs of each separate activity undertaken in preparing the Report. The delegate allowed the claim for the costs of the Report in the reduced amount of $1,054.63 (including GST) for the activities he considered fell within clause 82(b) of the WC Regulation. These activities were:

·perusal of correspondence;

·letter to client;

·telephone conference with witness;

·witness statement;

·telephone conference with client;

·Business Names search;

·factual and liability summary;

·investigation of earnings, and

·letter.

1. As set out Clause 46 of the LP Regulations requires consideration of the cost of any disbursement as ‘necessarily incurred’. Accordingly, the Report must be considered as a disbursement ‘necessarily incurred’ to be allowed. The application of a test of ‘fair and reasonable’ by the Registrar’s delegate in determining the claim for the costs of the Report was more consistent with the terms of clause 110 of the WC Regulation than with an application of Schedule 2 of the LP Regulation (see discussion in Asimus). In applying clause 110 of the WC Regulation to the claim for the cost of the Report the delegate, in my view committed an error of law.

1. Having found that the decision was infected by an error of law I am entitled to determine the application as, in my opinion, it should have been determined by the delegate (clause 119 (3)(a) of the WC Regulation).

1. In my view it is necessary to consider the contents of the Report, the nature of the claim and the issues in dispute in determining whether the cost of the Report was ‘necessarily incurred’ (Asimus and Canham).

1. The Report, dated 23 July 2004 contains a five page factual and liability summary which sets out the following information:

·names, addresses and contact details for Mr Beggs, W&D Stuart, the Insurer, Mr Beggs’ dependents and medical practitioners, and 

·details of Mr Beggs’ age; dependants; employment history and duties; medical history; condition; treatment; current symptoms, and personal hobbies/activities.

1. The following documents are annexed to the Report: a statement taken from Mr Beggs; a witness statement taken from Sharon Betty French, Mr Beggs’ defacto spouse; copies of the medical reports of Dr McDevitt and Professor A Lloyd; two reports from St Vincent’s Pathology; copies of three letters from the Insurer all addressed to Mr Beggs’ firm of solicitors, and Mr Beggs’ schedule of earnings and taxation returns from 1991 to 2003.

1. Mr Beggs’ claim was for weekly compensation and the orders made noted Mr Beggs’ admission that with the exception of the period 1 July 1994 to 30 June 2003 he had received and continued to receive workers compensation payments in respect of his injury of 4 June 1992. The application contained a number of attachments including the medical reports of Dr McDevitt and Professor A Lloyd, and the two reports from St Vincent’s Pathology.

1. In my view the provision further copies of medical reports already filed in proceedings and commentary regarding Mr Beggs’ medical history, treatment and symptoms duplicates the material filed in proceedings and accordingly the costs associated with the preparation of this material was not ‘necessarily incurred’ (see discussion in Berger; Asmimus and Flegerbein). Additionally copies of correspondence addressed to Mr Beggs’ solicitor’s firm and information relating to the contact details of W&D Stuart, the Insurer, Mr Beggs, his dependents and medical practitioners cannot be considered to be ‘necessarily incurred’ when this material should be in the possession of Mr Beggs’ solicitor. Further information relating to Mr Beggs’ age, dependents, personal interests/hobbies, employment history and duties is contained in his statement and again I find that the Report duplicates material filed in the proceedings and were not necessary to the claim. Therefore the cost of the Report in this respect is not allowed.

1. A statement from the injured worker is usually attached to the application at the time of filing and the cost of obtaining a statement is usually claimed under Item 2.01 or 2.04A of Schedule 6 of the WC Regulation (McManus). Mr Beggs’ solicitor claimed the taking of a statement under Item 2.04A of the Table. However he did not indicate from whom the statement was taken. The claim was allowed by the delegate at the maximum permissible under the Table. An applicant has been held to be a witness and in the present circumstances I conclude that Mr Beggs’ claim could not be brought without his statement (see discussion in Asimus at 24-25). I note that the only other statement in proceedings is that of Sharon French and in my view the claim could readily be brought without her statement. Therefore I conclude on the evidence before me that Mr Beggs’ solicitor had claimed the cost of Mr Beggs’ statement under Item 2.04A and this was awarded by the delegate. To allow the claim for the taking of Mr Beggs’ statement by an investigator is to effectively allow for the same activity, by a legal representative and an agent, to be claimed twice (Berger; Flegerbein and McManus). Accordingly I disallow the costs of the Report as it relates to the cost of preparing Mr Beggs’ statement.

1. In respect of the taking of a statement from Sharon French I have regard to the claim. The claim was for weekly compensation payments and in his statement Mr Beggs confirmed his relationship with Sharon French; his dependents and that the Insurer was continuing to pay him weekly compensation benefits. Hence the dispute involved a closed period and was, in my view a straightforward claim. In these circumstances I am not satisfied that costs of taking of a statement from Sharon French were ‘reasonably incurred’ and I disallow the costs of taking this statement.

1. The remaining matter for consideration arising from the Report is the schedule of earnings. Given that the claim was for weekly benefits compensation necessitating consideration of section 40 of the 1987 Act for a period dating back to 1994 I am satisfied, on balance, that briefing a factual investigator to obtain the information relevant to Mr Beggs earnings during this period was a cost that was ‘reasonably incurred’. I have considered the fact that this information was acquired by an investigator, not a legal practitioner, and the total cost of the schedule of earnings invoiced by SGRIS is $300.00. However the schedule extends from 1990 to 2004. As the claim was for a period commencing 1994 and on Mr Beggs’ own account he had previously received, and at the date of his statement, was continuing to receive workers compensation payments from the Insurer I do not view the costs of acquiring all of the information daring back to 1990 as necessary to the claim. Accordingly I allow the claim in the reduced amount of $264.00 (including GST) referable to the period claimed.

Did the delegate err in determining Items 4.08, 4.09 and 4.11 of the Table

1. Mr Beggs’ solicitor’s submissions provide alternative claims being, “matter not complex” and “If the matter was complex” in respect of his claims pursuant to the Table. The Arbitrator did not determine that the matter was complex and, in my view the claims as they relate to a “complex matter” have no application.

1. Mr Beggs’ solicitor claimed a total of $750.00 for the costs of preparing for a conference under Item 4.08 of the Table. I note that on appeal Mr Beggs’ solicitor claimed $1000.00 under this item. The delegate allowed the claim at the maximum of $500.00 provided in accordance with the Table. The maximum permissible under the Table has been considered by the Commission in a number of decisions including Woodbury and Orr. These decisions set out the Commission’s reasoning in respect of the maximum amount permissible under the Table being the amount set out in Column 4. In my view the delegate’s decision demonstrates the proper application of the Table. Therefore I reject this ground of appeal.

1. Mr Beggs’ solicitor claimed a total of $500.00 for the costs of attending and participating in a conference with an arbitrator under Item 4.09 of the Table. The delegate determined that the allowance for this item is to be calculated by reference to the actual time involved and allowed that the claim in the reduced amount of $250.00 for the duration of the teleconference being one hour. The delegate determined that travelling time could not be claimed pursuant to this item or Item 4.10.

1. On my assessment, Mr Beggs’ solicitor’s submissions in relation to Items 4.09 and 4.11 of the Table concern the interpretation of ‘attending and participating’. Mr Beggs’ solicitor submits that a proper construction of these items requires travel time to be allowed in the costs in the circumstances where a country solicitor is required to travel to ‘attend and participate’ in a conference. The conference was conducted by phone and if Mr Beggs’ solicitor travelled to participate in the teleconference I do not view any claim for travel as fair or reasonable in the circumstances. In relation to the claim for travelling to participate in a conference under Item 4.10 of the Table I note that the Table refers to an activity and in cases requiring preparation for the activity preparation is specifically identified as an activity (see Items 4.08 and 4.08A of the Table). Travelling time is not identified as an activity. I reject this ground of appeal. I also note that Mr Beggs’ solicitor made a claim for travel expenses which were allowed by the delegate.

1. Mr Beggs’ solicitor’s submissions to the delegate did not make a specific claim for the costs of attending and participating in an arbitration hearing under Item 4.11 of the Table. The delegate determined that the allowance for this item should be made and calculated the claim by reference to the actual time involved being one and a half hours and allowed that the claim in the amount of $375.00.

2. On the evidence before me I have concluded that Mr Beggs’ solicitor did not make a specific claim under Item 4.11 of the Table because he made a claim under Item 4.10. However on appeal Mr Beggs’ solicitor claimed $250.00 under this item. Considering Mr Beggs’ submissions which put forward alternative claims I see no error in the delegate’s decision to allow the amount of $375.00 for the costs of participating in the arbitration hearing with reference to the time taken for the conciliation/arbitration hearing. 

Did the delegate err in determining Item 4.12 of the Table and fail to provide adequate reasons for his decision?

1. Mr Beggs solicitor claimed $570.00 for the costs of reporting to the client on the outcome of a conference or arbitration. The delegate determined that the proper application of the decision in Fuentes to the case led to an allowance for two reports to Mr Beggs. The delegate allowed the claim in the sum of $380.00.

1. In the present case there were two activities of the type referred to under item 4.12 of the Table these being the teleconference and the conciliation/arbitration hearing. Deputy President Flemings decision in McManus sets out the Commissions procedure for conducting the conciliation/arbitration on the same day and applies the obiter view expressed by Ipp JA in Fuentes to these procedures (see discussion in McManus paragraphs 22-29). In my view the delegate correctly applied these authorities in allowing the claim in the reduced amount. I therefore reject this ground of appeal.

1. The adequacy of the reasons must be considered relative to the nature of the decision and the decision maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6). In this matter, the claim was for an assessment of costs and the inadequacy of reasons claimed relates to the delegate’s determination of a claim for $570.00. In the context of the Commission, where proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits, lengthy written reasons will not generally be necessary to clearly and concisely convey to the parties, who are familiar with the case, the reasons for the decision.

1. Whilst I accept that the reasons are brief the decision, when considered in its entirety provides a background to the proceedings; lists the issues in dispute; briefly refers to the claims made; sets out an assessment of each claim, and of significance, clearly demonstrates that the delegate applied the mandatory considerations required of him in accordance with clause 110 of the 2003 Regulations. At paragraph 16 the delegate stated his reliance upon Fuentes in allowing only two reports to Mr Beggs. In my view, Mr Beggs’ solicitor should be aware that only two ‘activities’ occurred being the telephone conference and the conciliation/arbitration hearing which resulted in consent orders.

1. In these circumstances I find that Mr Beggs’ solicitor has not demonstrated that the delegate’s reasons are inadequate and that their inadequacy sufficiently demonstrates that the delegate failed to exercise his statutory duty, to fairly and lawfully determine the application (Cargill Meat Processors Pty Limited v Clark[2005] NSWWCCPD 7). Accordingly I find no ‘matter of law’ arising in relation to the adequacy of the delegate’s reasons.

DECISION

1. Paragraphs two and four of the decision of the delegate dated 2 September 2005 are revoked and the following orders are made in their place:

“(i) The Applicant’s costs of the substantive proceedings are assessed in the sum of $8,078.85
(ii) The Respondent is, therefore, to pay to the Applicant a total amount of $8,353.85 if those costs have not already been paid.”

1. Paragraph one of the delegate’s decision referring to the order for costs contained in the ‘Certificate of Determination’ and paragraph three of the delegate’s decision, awarding costs of the assessment in the sum of $275.00 were not raised on appeal and are confirmed.

COSTS

1. The Appellant has been largely unsuccessful on appeal. I make no order as to costs of the appeal.

E Tydd

Acting Deputy President

15 November 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF E TYDD ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE