Brambles Industries Limited v Bell and Anor
[2009] NSWWCCPD 115
•17 September 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Confirmed on Appeal: See Brambles Industries Limited v Bell [2010] NSWCA 162 | |||||
| CITATION: | Brambles Industries Limited v Bell and Anor [2009] NSWWCCPD 115 | ||||
| APPELLANT: | Brambles Industries Limited | ||||
| FIRST RESPONDENT: | Timothy Bell | ||||
| SECOND RESPONDENTS: | Justine Peta Morrison and Paul Morrison t/as Morrison Recruitment | ||||
| APPELLANT’S INSURER: | Self Insurer | ||||
| SECOND RESPONDENTS’ INSURER | QBE Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | A1-6907/08 | ||||
| ARBITRATOR: | Mr M Oldfield | ||||
| DATE OF ARBITRATOR’S DECISION: | 2 June 2009 | ||||
| DATE OF APPEAL DECISION: | 17 September 2009 | ||||
| SUBJECT MATTER OF DECISION: | Section 4 of the Workers Compensation Act 1987; causation of injury | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | ||||
| REPRESENTATION: | Appellant: | HWL Ebsworth | |||
| First Respondent: | Devine Ens Lawyers | ||||
| Second Respondents: | Gillis Delaney Lawyers | ||||
| ORDERS MADE ON APPEAL: | 1. The decision of the Arbitrator dated 2 June 2009 is confirmed. | ||||
| 2. In addition the following order is made: | |||||
| “5. Award for the second respondents.” | |||||
| 3. The appellant is to pay the worker’s and second respondents’ costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
Brambles Industries Ltd (‘the appellant’) employed Timothy Bell (‘the worker’) in June 2000 as a truck driver. On 20 January 2003 in the course of that employment the worker suffered injury to his back. He reported the injury and sought treatment from his general practitioner. It appears that he lost no time from work however for some time, probably a matter of weeks, he performed suitable duties in the appellant’s office. The worker returned to his pre-injury duties and remained in that employ until approximately March 2007. The evidence establishes that the worker suffered recurrence of his back disability on at least three occasions during the currency of that employment requiring medical treatment and presentation of claims.
The worker commenced employment with the second respondents in approximately May 2007. He was engaged as a truck driver operating a side loading garbage truck. Other than the driving duties there were no physical requirements of that job. On 12 June 2007 the worker was involved in a motor vehicle accident whilst in the course of that employment when the garbage truck he was driving overturned as he was negotiating a roundabout. The worker suffered numerous injuries in that accident and was conveyed by ambulance to hospital. A claim for compensation benefits lodged with the second respondents was accepted. He did not resume his employment with the second respondents but commenced work on 31 July 2007 with an employment agency described as Integrated Group (“Integrated”). The worker’s duties with Integrated involved the driving of prime movers and making deliveries to major shopping centres.
On 21 September 2007 the worker awoke at his home suffering from a recurrence of painful symptoms in his lower back. Those symptoms prevented him from resuming his work and he sought medical treatment. A claim in respect of workers compensation benefits was made against the appellant which claim was declined. He has not resumed employment.
The dispute between the worker and the appellant concerning entitlement to compensation benefits was referred to the Workers Compensation Commission (‘the Commission’) by registration of an Application to Resolve a Dispute on 3 September 2008. The appellant, on 18 October 2008 filed an application to have Justine Peta Morrison and Paul Morrison, who traded as Morrison Recruitment, joined as respondents to the proceedings.
The worker’s application came before an Arbitrator for conciliation/arbitration on 10 February 2009 at which time the worker and the respondents appeared and were each represented. The application proceeded to hearing and the Arbitrator reserved his decision. A Certificate of Determination was issued on 22 May 2009 and that certificate was amended on 2 June 2009.
That determination made provision for an award in the worker’s favour solely against the appellant.
The appellant on 18 June 2009 registered an application with respect to an appeal against the Arbitrator’s decision.
THE DECISION UNDER REVIEW
The “Amended Certificate of Determination’, dated 2 June 2009 records the Arbitrator’s orders as follows:
“The Commission determines:
1. That the First Respondent pays the Applicant weekly payments of compensation at the following rates:
$849.00 per week from 21September 2007 to 12 December 2007 pursuant to s36 of the Workers Compensation Act 1987,
$700.00 per week from 13 December 2007 to 25 January 2008 pursuant to s40 of the Workers Compensation Act 1987,
$624.40 per week from 26 January 2008 to 31 March 2008 pursuant to s40 of the Workers Compensation Act 1987,
$636.60 per week from 1 April 2008 to 27 August 2008 pursuant to s40 of the Workers Compensation Act 1987,
$532.90 per week from 28 August 2008 to 30 September 2008 pursuant to s40 of the Workers Compensation Act 1987,
$542.10 per week from 1 October 2008 to 31 March 2009 pursuant to s40 of the Workers Compensation Act 1987,
$553.10 per week from 1 April 2009 pursuant to s40 of the Workers Compensation Act 1987 to date and continuing in accordance with the requirements of the Act.
2. That the First Respondent pays the Applicant’s s60 of the Workers Compensation Act 1987 medical and related expenses upon the production of accounts and/or receipts.
3. That the dispute concerning lump sum compensation pursuant to s66 of the Workers Compensation Act 1987 is to be referred for assessment by an Approved Medical Specialist appointed by the Registrar. The assessment is to be undertaken of the lumbar spine and assessed pursuant to the whole person impairment regime. All evidence admitted into the proceedings is to be disclosed to the Approved Medical Specialist.
4. That the First Respondent pays the Applicant’s costs as agreed or assessed with the exception that the Second Respondent pays the other parties costs for their attendance at the Commission on 2 December 2008.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
ISSUES IN DISPUTE
The appellant in submissions in support of this appeal has identified certain findings made by the Arbitrator which are challenged as being factual errors. Those findings challenged relate to the question of causation of injury. The Arbitrator’s findings are supported in argument advanced on behalf of the second respondents.
The appellant challenges the Arbitrator’s reasoning which lead to a determination that the appellant was solely liable to make payments of benefits to the worker.It is argued that he erroneously considered and applied the provisions of section 4 and section 16 of the Workers Compensation Act 1987 (‘the 1987 Act’).
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The second respondents and the worker submit that the appeal is one appropriate to determination on the papers whereas the appellant submits that the appeal “is best suited to oral argument”. The appellant’s submission is founded upon the suggestion that the “… appeal would potentially affect the rights of both respondents”.
Having regard to 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.
LEAVE
There is no dispute among the parties concerning the threshold requirements prescribed by section 352 of the 1998 Act. The appeal having been lodged within the time prescribed by that section and the fact that the monetary threshold prescribed by that section has been met, together with a consideration of the arguments raised on appeal lead me to conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.
PRELIMINARY MATTERS
As noted above at [5], the second respondents appeared at the hearing. That appearance seems to be the consequence of the filing by the appellant of an Application to Join a Party to Proceedings which was filed with the Registry in accordance with Part 11 of the Workers Compensation Commission Rules 2006 (‘Rules’). That application seeking joinder was served upon the second respondents. The second respondents did not appear when the matter was originally listed for conciliation/arbitration on 2 December 2008. The Commission record indicates that both the appellant and the worker undertook at that time to notify the second respondents of the adjourned date of hearing which had been fixed for 10 February 2009.
The non-appearance of the second respondents on the date originally fixed for conciliation/ arbitration is perhaps not surprising given the circumstance that no order had been made by the Commission up to that time that they be joined to the proceedings. There is no record of any such order having been made at any time since.
The second respondents have had the opportunity to be heard before the Arbitrator and have filed a Notice of Opposition to this appeal and have provided detailed submissions in support of that opposition. In the circumstances I consider it appropriate to formalize the state of the record by ordering that Justine Peta Morrison and Paul Morrison t/as Morrison Recruitment be joined as respondents to the worker’s application and that this order is to operate nunc pro tunc, that is retrospectively from 18 October 2008, the date of the appellant’s application seeking joinder.
EVIDENCE
There is before the Commission a transcript of proceedings conducted before the Arbitrator on 10 February 2009 (‘transcript”). The documentary evidence presented by the parties is noted at page one of transcript. There was no oral evidence adduced.
There are three written statements made by the worker in evidence before the Commission each of which has been tendered both by the worker and the appellant. The appellant also relies upon the content of a statement made to the NSW Police on 19 June 2007 which concerns the circumstances of the motor vehicle accident referred to in [2] above.
The statements relied upon by the worker and the appellant are dated 29 April 2004, 3 October 2007 and 28 November 2007. The last of those documents is in the form of a questionnaire. The earlier two statements appear to have been taken by insurance investigators who had been retained to investigate questions of liability concerning the first injury in time and subsequent claims alleging recurrence of incapacity.
The worker states that he received a lower back injury “… as a result of pulling a bin a year or so ago.” That statement is made on 29 April 2004. The worker was unable to recall whether he had any absence from work however had sought medical treatment from his general practitioner who arranged for his referral to a specialist.
The worker states that on 6 April 2004 he commenced his day’s work for the appellant at 4.30 am at which time he was “… in good health and moving without restriction.” At the end of his shift, at approximately midday, he became aware of discomfort in his lower back. The worker returned to the appellant’s depot and reported his condition to a superior. The worker, when he awoke the following day at 3.00 am found his back was “in spasm”. He attended work that day and worked with difficulties over the next several days. He was at that time scheduled to take holidays during which he underwent physiotherapy treatment. The worker rested during his holiday however his back disability did not improve. Upon his return to work on 19 April 2004 a return to work management plan was arranged by his employer. It appears that compensation benefits were paid concerning this period of incapacity and the employer through its insurer paid medical expenses incurred in respect of the worker’s treatment.
The worker’s statement dated 3 October 2007 contains further detail concerning the state of his lower back. He states that following the injury in 2003 he suffered “regular recurrence of the same pain”. He states that a pattern of recurrence every “year or eighteen months” had occurred. He had resigned from the appellant’s employ in early 2007 at which time his back “was not causing [him] problems at that particular time.” He further states that he was able to attend to his duties from the date of a recurrence of disability in 2005 until his resignation. The worker states that his resignation was prompted by a number of factors including his unhappiness with the manner in which his compensation claim had been managed and that he felt that he had been forced to work when he was in pain. His other concerns involved economic considerations, there being a reduction of his income and unreasonable demands by the employer with respect to performance of work.
The worker further states that he commenced employment with the second respondents as a casual driver engaged in garbage collection. Those duties involved no physical activity other than driving. The worker describes a motor vehicle accident which occurred in the course of his employment with the second respondents which the evidence establishes occurred on 12 June 2007. The worker states that he was transported to hospital from the scene of the accident and was “in and out of consciousness” at that time. He had suffered lacerations to his head and neck. Following observation at the hospital he was permitted to leave. The worker states that he did not suffer a lower back injury in that accident and that he did not feel any lower back pain at the time. The worker claimed workers compensation benefits which claim was accepted by the insurer of the second respondents. A rehabilitation program was arranged and the worker returned to employment on 31 July 2007 but not with the second respondents. He was employed on a casual basis as a driver by an employment agent described as “Integrated”. The worker performed his duties driving trucks for a group described as “Linfox”. The worker was engaged on various shifts both day and night. His only duties were driving and the vehicles were described as being brand new with automatic transmission. Those trucks had air suspension and air seats.
The worker states that on 21 September 2007 at about 4.00 am as he awoke to prepare for work he found that he had “severe lower back pain” and he experienced difficulty standing. The worker states that there had been no incident causing injury to his back either at work the previous day or at his home following completion of his last shift. The worker contacted the appellant and sought information concerning his workers compensation claim number. He encountered difficulty obtaining information and took steps to instruct a solicitor.
The worker states that the pain suffered in 2007 was “ the same” as experienced when he first injured his back. The worker expressed optimism that treatment would lead to improvement and a return to work.
The questionnaire completed by the worker dated 28 November 2007 makes reference to the motor vehicle accident which occurred on 12 June 2007. The reply to the enquiry as to “what injuries you received” has a hand written response where the words “aggravation to a previous” struck out and the entry continues “back injury – head, neck, knees”. In response to the question “have you ever injured this body part before. If so give details”, there is a hand written entry “back injury sustained 20/1/2003”. The questionnaire contains the statement that the worker was currently unemployed and that the employer for whom he was working at the time of the motor vehicle accident was unable to find suitable employment for him.
The questionnaire contains detail concerning difficulties experienced by the worker by reason of his injuries. There is frequent reference to “pain” however such is not localised in the responses recorded. One entry notes that “after sitting for any length of time back ‘locks’ and I experience pain”.
The statement made on 19 June 2007 to the NSW Police concerning the motor vehicle accident which occurred in that month includes the following:
“As a result of the accident I have a gash on the right side of my forehead which is about 4 cm long. This has already started to heal. The vision out of my right eye is also blurred for long distance. I had an operation earlier this year that had corrected my long distance vision and since this accident I believe that the vision out of this eye is not as good as it was.
My other injuries include pain and swelling to the back of my head. The doctor has sent me for CT scans for this and they show no major problems. I have also suffered bruising to my upper left thigh, left ankle and right calf. I also have a burn mark on the middle of my back. I believe this mark was caused by my falling from the left hand seat to the ground when the truck landed on its right side.”
The worker placed reliance on the evidence of Dr Peter Conrad, specialist surgeon, who had been qualified to provide an opinion on his behalf for the purposes of the litigation. The reports in evidence are three in number, two reports dated 18 September 2007 and a later report dated 31 January 2008. In the principal report dated 18 September 2007 Dr Conrad recorded a history of the worker’s injury in the course of his employment with the appellant in the following terms – “The job involved a lot of heavy lifting of bins and lifting and bending. He started developing back pain some time in 2002 and 2003.” Dr Conrad records detail of the worker’s treatment by Dr Mechreky, general practitioner, Dr Giblin, orthopaedic surgeon and physiotherapy treatment. That history records that the worker returned to full duties in May 2004 and that “in late 2006” the worker suffered recurrence of back pain. It is noted by Dr Conrad that given the nature of the work involving repetitive lifting and bending the worker felt that he could not continue working with the appellant and left to join the second respondents as a garbage truck driver.
Dr Conrad records the occurrence of the motor vehicle accident in June 2007. It is noted in the report that the worker gave a history that – “He had a lot of pain in his neck, aggravated his back and the pain radiated to the right leg.” Dr Conrad had access to certain radiological studies including a CT scan of the lumbar spine which was reported on by Dr Markson and dated 29 January 2003. That scan revealed – “L4/5 small posterocentral disc protrusion with mild central canal stenosis. Some effacement and impingement of right L5 nerve root.”
Dr Conrad expressed the following opinion -
“This man was employed by Cleanaway, as a garbage removalist and due to the conditions of work that he did of heavy repetitive lifting of bins, he sustained a back injury, which was clearly an L4/5 disc protrusion as shown on the CT scan on 29 January 2003. This was all confirmed by Dr Matthew Giblin, an orthopaedic Surgeon in his report dated 17 February 2003.
Over the years his conditions of work at Cleanaway aggravated his back pain to the point where he had to leave them and look for lighter work. The accident of 12 June 2007, whilst working at Morrison Recruitment mainly injured his head and neck and may have temporarily aggravated the back pain, but after he made a recovery from the acute symptoms his back pain returned to the level that it was following the conditions of work at Cleanaway. He would have good days and bad days, but basically the pattern of back pain was similar to that period when he left Cleanaway. At this stage, he has ongoing back pain and right-sided sciatica and he should have an up-to-date MRI scan to find out the state of the L4/5 disc protrusion. He needs physiotherapy.”
In his supplementary report dated 18 September 2007 Dr Conrad assessed the worker’s Whole Person Impairment (‘WPI’) with respect to his back injury as being 11 per cent WPI. It was stated in that report that “…the truck accident whilst working at Morrison Recruitment may have had a minor temporary exacerbation but his present impairment is strictly and 100 per cent due to the work he did at [the appellant], which can be said to be a substantial contributing factor to his 11% whole person impairment.”
Dr Conrad in his report of 31 January 2008 notes that he has seen an MRI scan of the worker’s lumbar spine dated 8 January 2008. That scan is recorded as revealing at L4/5 level, a large broad based right posteriolateral disc protrusion creating compromise at the right anteriolateral aspect of the theca and the right L5 nerve root, which is displaced posteriorly.
Dr Conrad states that the MRI scan finding confirms that the worker “ has a very significant disc protrusion at L4/5 level, which was seen by the previous CT scan, but has progressed since that time.” Dr Conrad states that his earlier report remains, in all other respects unchanged.
The worker relied upon a number of radiological reports including those relating to the CT scan and lumbar spine MRI scan referred to in Dr Conrad’s evidence.
The worker relied upon a report of Dr H Mechreky, general practitioner, dated 9 October 2007. That report includes details of the worker’s medical history, including an injury to his lower back described as “disc pathology at L3/4 and L4/5” whilst working for the appellant in January 2003. Details of treatment are recorded and it is noted that the worker was certified fit for pre-injury duties as at “1 May 2004 [sic]”. Dr Machreky notes that the worker has “suffered from exacerbation of symptoms from time to time, warranting treatment/management.” It is further noted that the worker “last presented for symptoms of lower back pain on 30 November 2005.”
Dr Mechreky included in his report a history of the motor vehicle accident which occurred in June 2007. The worker attended the practice on 13 June 2007 at which time his complaints were of neck pain, dizziness, right calf pain and left lower leg pain, right thigh pain. On examination the following notation was made in addition to other detail – “Lumbar spine - ROM reduced”.
Dr Mechreky records detail of treatment and counselling and that the worker returned to work on suitable duties on 18 July 2007. It is also recorded that the worker returned to “pre-injury duties” on 31 July 2007. A consultation on 18 September 2007 is noted at which time the worker complained to Dr Mechreky of “worsening lower back pain”. It was Dr Mechreky’s impression as recorded in the report that the worker “had exacerbated his previous back injury”.
The worker relied upon an earlier report of Dr Mechreky dated 28 September 2007 which was addressed to QBE Workers Compensation. Reference is made in that report to the worker’s consultation with that doctor on 18 September 2007 at which time the worker’s statement that he had “aggravated his lower back symptoms, which were progressively worsening, and he stated no incident or cause” was noted. Dr Mechreky further stated – “my impression was that Mr Bell’s symptoms are an exacerbation of his symptoms resulting from his workplace injury on 20 January 2003.”
A report of Dr Matthew M Giblin, orthopaedic surgeon, dated 7 February 2003 was relied upon by the worker. That report, which was addressed to Dr Mechreky, recorded the history that the worker had “hurt his back on 20 January 2003 pulling a heavy bin. Since that time he has had lower back pain with radiation into the right thigh, but with physiotherapy the thigh pain has become intermittent, his back pain appears to be settling and he feels as though he is getting stronger.” Dr Giblin notes that radiological studies “show a small right sided L4/5 disc protrusion within a tight recess.” It was Dr Giblin’s opinion that the worker’s symptoms were consistent with a disc protrusion at L4/5 level.
A report of Associate Professor James van Gelder, neurosurgeon, dated 30 January 2009 was relied upon by the worker. The history recorded by that practitioner is as follows:
“Thank you for referring Mr Bell, who was seen on 29 January, 2009. He explained to me that he was having constant back pain that he ascribed to a motor vehicle accident when he rolled a truck in 2007. It is painful to get up and start walking or with turning. Bending or lifting is not as painful. He is also experiencing pain from his back into his right leg. He feels it in the anterior thigh and groin and on the dorsum of his foot. The pain is intermittent and can be severe. He is not undergoing any active treatment at present. He takes medication.”
Professor van Gelder notes the radiological studies made available to him at the time of consultation by the worker as follows –
“He has had a MRI scan in February 2008. This shows disc degenerative changes at the lowest three levels. There is some dehydration at L3/4. There is loss of disc height at L4/5 and a large right intervertebral disc herniation. There is a broad disc bulge at L5/S1.
He showed me a CT scan from 2003. This shows significant broad disc bulging more prominent on the right hand side posterolaterally at L4/5. These are significant changes but not as marked as his recent MRI.”
The worker, before the Arbitrator, relied upon a number of other documents which include medical certificates, incident reports and investigations reports none of which have particular relevance to the issues raised on this appeal. Where relevant reference is made to the balance of those documents below.
The appellant, as noted above, tendered copies of those statements which had been tendered by the worker and further relied upon the statement to the police which is summarised at [29] above.
The appellant also relied upon the evidence of Dr David Millons, specialist surgeon, dated 1 November 2007. A history is recorded in that report of an injury occurring to the worker on 20 January 2003 whilst pulling a domestic bin up to his truck. The injury was to the lower back. Dr Millons records “flare-ups” of lower back pain in 2004 and 2005. Dr Millons records that the worker returned to his normal duties in December 2005 and worked “without any real problems” thereafter until the termination of his employment in March 2007. Dr Millons records that the worker felt that he was able to work without problems “because he was in good physical shape”.
Dr Millons records the motor vehicle accident which occurred in June 2007. The injuries noted by Dr Millons were a mild head injury, a cut to the face, bruises to his knees and some scratches on his back. Dr Millons records “his lower back was not too bad after that incident”.
Dr Millons proceeded to record the balance of the worker’s history, conducted a physical examination and reviewed radiological material which he had available. That material included the CT scan lumbar spine dated 29 January 2003. Dr Millons expressed the following opinion:
“Mr. Bell clearly had some mechanical problems with his lower back in January 2003. Radiological studies at the time suggested a small disc protrusion at L4/5 which could have been accounting for his symptoms of low back pain and right lower limb pain.
Treatment followed conservative lines and his symptoms resolved.
The relatively short period of time he was off work after January 2003 would perhaps suggest that the changes in the disc were constitutionally based and temporarily aggravated by that incident.
There were further flares of back pain in 2004 and 2005 with short, closed periods of incapacity. The nature and conditions of his work at that time may have caused some aggravation of the suspect L4/5 disc.
Mr. Bell went along well through 2006 without any real problems which would suggest that there was no ongoing aggravation.
He had a truck roll-over incident after he left Cleanaway in June 2007. He claims not to have hurt his back at that time.
Dr. Mechreky, in his report of 09/10/07, notes that there was a complaint of right thigh and calf pain. He found a restricted range of movements in the lumbar spine. He notes that over the next few weeks, Mr Bell was complaining of neck pain and also lower back pain.
Dr. Mechreky notes that on 18/09/07, there was a complaint of worsening low back pain with decreased flexion and extension. He felt that Mr. Bell had exacerbated his previous back injury.
That would suggest that Mr. Bell could be considered to have a disease of gradual onset, namely a suspect L4/5 disc which may have been injured in the incident in January 2003. There has clearly been a waxing and waning of symptoms over the years since then with a long period of relative freedom from pain through 2006 up until the time of the roll-over truck accident on 12/06/07. It may be the case that that roll-over incident did aggravate the pre-existing problem in the lower back. There appears to have been a complaint of low back pain thereafter which seemed to get worse around September 2007 and for which he has been having physiotherapy to reasonably good effect.
His back remains somewhat stiff and irritable. There is no evidence of any frank nerve root irritation or neurological deficit in either lower limb.
I would see his recent and current problems then as being an aggravation of a degenerate L4/5 disc occasioned by the truck roll-over. Since there was a long period of relative freedom from pain leading into that time, it would appear that liability for the physiotherapy that he is having would be more the responsibility of the insurer at the time that he rolled his truck rather than your liability.
Mr. Bell has done well with treatment and has just started back driving trucks again. He is keen to keep going. I am sure that he will be able to manage that.
There will be further flares of symptoms from time to time with episodes of indiscretion or even quite spontaneously, such is the nature of attritional change.
It might be appropriate at some stage for him to have some up-dated investigations of his lower back with either a CT scan or probably an MRI to check on the integrity of the lower lumbar discs. That could form the basis of further treatment protocols.”
Dr Millons proceeded in his report to express a diagnosis being “aggravation of degenerative changes L4/5 disc, probably occasioned by the truck roll-over incident in June 2007. History of intermittent low back pain leading back to 20/01/03.”
The appellant tendered an Incident Report concerning the motor vehicle accident compiled by an organisation named “SITA”. The date of that document is unclear however there are a number of documents attached including one which had apparently been completed by the worker dated 15 June 2007. That document included details of the occurrence of the motor vehicle accident and specified the nature of the worker’s injury as follows – “head, back, neck, left leg, right leg.”
A document dated 24 April 2007 which is unsigned but appears to be a copy of a letter of resignation prepared by the worker is relied upon by the appellant. That document records the worker’s expressed reason for resignation as being “due to personal problems I have no choice but to leave at short notice as I have three children to take care of.”
The appellant tendered in evidence before the Arbitrator a document headed “short application form” which was an employment application signed by the worker addressed to the second respondents. The document is undated. The document required the provision of relevant particulars and included a question “do you have any allergies or illnesses that we should be aware of ?”. In a space beneath the words “details, if any” a line is drawn through.
The appellant relied upon a number of further documents including wage records, photographs of the subject motor vehicle accident and correspondence addressed to the worker from the appellant which material is not strictly relevant to the issues raised on this appeal. Where relevant, reference is made to such evidence below.
The second respondents tendered a number of reports from the Rehabilitation Consultants IOH concerning management of the worker’s treatment and rehabilitation following the motor vehicle accident which occurred in June 2007. The first of those reports is dated 7 August 2007 and the last is dated 31 March 2008. The worker’s complaints relevant to the consequences of the motor vehicle accident were as stated under the heading of diagnosis being – “PTSD, head/neck injury”. Those reports record the worker’s progress including a certification by Dr Mechreky in, it seems, September 2007, that he was fit to return to pre-injury duties. It is recorded that no work was available with the second respondents but that casual work as a driver had been obtained with another employer. One of those reports dated 15 October 2007 records the worker’s report that he was “experiencing back pain” and that he had submitted a claim in relation to “an exacerbation of a previous work related injury”. A report dated 15 November 2007 records that the subject claim had been presented to the appellant.
The second respondents relied on a number of other documents including claim forms, medical certificates and reports from Dr Mechreky which had earlier been placed into evidence and which have been summarised above. A claim form dated 18 June 2007 addressed to QBE Workers Compensation (NSW) Ltd concerning the motor vehicle accident lodged by the worker described those parts of the body affected in the subject injury as follows – “head/neck/back, left thigh”, a box nominating “yes” was ticked following the question “was the part normal before the accident?”. The claim form required detail of “similar injuries” and at that point in the form the worker ticked a box marked “no” to the question “have you previously suffered any similar work-related injuries or conditions?”. The content of the balance of the documents relied upon by the second respondents are not directly relevant to the issues raised on this appeal. Where relevant those documents are addressed below.
SUBMISSIONS
The appellant submitted before the Arbitrator that the lay and medical evidence supports the proposition that the worker had, prior to the initial injury for which he was compensated in 2003, an underlying degenerative condition of his lumbar spine which had been aggravated in the incident of 20 January 2003. It was further argued that the worker recovered from that aggravation and subsequently “suffered a couple of minor subsequent aggravations”, returned to normal work and worked “solidly” for eighteen months. The argument was developed that any incapacity suffered following the “spontaneous” appearance of symptoms in September 2007 did not “arise from” his employment with the appellant. The argument advanced before the Arbitrator sought to exculpate the appellant with respect to any liability for incapacity post-dating September 2007. It had earlier been put that any incapacity should be found to be “attributable” to the motor vehicle accident in June 2007 or to incidents which occurred thereafter.
Submissions put by Counsel on behalf of the worker before the Arbitrator stated, in part – “…the only injuries that we have before us are the two injuries, one with the first respondent and the second – oh, one [sic] and several exacerbations with the first respondent and the incident with the second respondent.”
It appears that Counsel was attempting a summary of the injuries as alleged in the documentation before the Commission. It is to be noted that details of injury as they appear at Part 4 of the original application specified the date of injury as being 20 January 2003. The “place of injury” is stated as being “various” and the injury description was “back, neck, head, legs, psychological injuries.” It is of significance that the description of the manner in which the injury occurred appearing at that section of the application is – “nature and conditions of work”. The only allegation of injury made against the second respondents is to be found in the document filed on behalf of the appellant seeking joinder of that party.
Procedure before the Commission is, in part, governed by the provisions of section 354 of the 1998 Act. That section provides, inter alia, that proceedings are to be conducted with as little formality and technicality as the proper consideration of the matter permits. It is clear that in the present case the worker has adopted the allegation of injury alleged as against the second respondents by the appellant. Whilst informality and absence of technicality is to be encouraged I make the observation that, in a matter such as the present, a clearer definition of the allegations of injury would have assisted the Arbitrator in reaching his determination and would certainly have assisted disposition of this appeal.
It was the worker’s submission before the Arbitrator that the medical evidence “supports an exacerbation” occurring with respect to his lower back condition however it is further put (at transcript page 7) – “…that the medical evidence supports an exacerbation but that the applicant’s medical evidence points to the injuries – with the injury of 2003 as being the causation of the applicant’s symptoms, including the spontaneous onset on 21 September 2007.”
The argument, as recorded, put on behalf of the worker before the Arbitrator lacks, to some extent, clarity however it is clear that the primary argument was that there should be a finding that the worker’s “condition” was the result of the injury in January 2003. A further submission, which appears to be in the alternative to the primary submission, is recorded at page 9 of transcript where it is suggested that there may be a finding that injury resulted from the injury alleged in January 2003 and/or the nature and conditions of the worker’s employment with Brambles. A further alternative appears to be suggested in the course of submissions, being that the worker’s incapacity resulted from injury received whilst in the employ of both the appellant and the second respondents.
The second respondents, in submissions before the Arbitrator, argued that “… any ongoing incapacity is related to the incident on 20 January 2003 whilst employed with Brambles.” The evidence was addressed in the course of submissions and the following summary of argument was made (transcript page 21) –
“Any ongoing incapacity and impairment, we say, occurred as a result of the incident in January 2003, from which he never recovered and suffered three exacerbations thereafter, and based on Dr Conrad’s findings we say 100 per cent of liability should be borne home to Brambles and not Morrison Recruitment. So on that basis there should be a finding in favour of the second respondent, in relation to both the claim for weekly payments, section 60 expenses and whole person impairment, and we say if it is referred to an AMS it should only be referred arising out of the incident in January 2003, as stated by Dr Conrad, and not in relation to the January ’07 incident.”
It may be seen from the reference to the concept of “100 per cent of liability” that the second respondents in submissions has touched upon the question of apportionment albeit by inference from the suggestion that there should be no apportionment. Whilst neither the worker nor the employers appearing before the Arbitrator made any specific reference to the provisions of section 22 of the 1987 Act it is clear, having regard to the manner in which the proceedings were conducted, that apportionment of liability pursuant to section 22 was in the contemplation of the parties. It may be that such subject was touched upon during the conciliation process however there is no express reference to that provision in the transcript as recorded.
The submissions put on behalf of the appellant on this appeal in support of the Arbitrator’s suggested errors challenge only the finding that the Appellant was solely liable to pay compensation. There is no challenge to the worker’s entitlement to an award, the relief sought by the appellant being that liability should, on appeal, be found to be that of the second respondents. In those circumstances the worker has stated in his Notice of Opposition to the Appeal that an order should be made confirming the Arbitrator’s determination in respect of entitlement and quantum of the award entered in his favour. It is stated that in the circumstances of the dispute, namely that the only issue for determination on the appeal is the identification of the employer liable to pay the award, no submissions are put concerning the appellant’s arguments.
The appellant seeks to identify errors in the course of the Arbitrator’s reasoning. Reference is made to the finding at [9.7] of Reasons where the Arbitrator contrasted the radiological findings demonstrated on the CT scan and the MRI scan and concluded with respect to the demonstrated “worsening” that the “intervening exacerbation over time have [sic] deteriorated the same pathology in his lumbar spine”.
The appellant proceeds to highlight the finding at [9.8] that “the subsequent incidents following January 2003 including the roll-over incident whilst in the second respondent’s employ were exacerbations of Mr Bell’s original injury and not aggravations or new injuries and hence I am satisfied the liability remains with the first respondent”. It is submitted that such finding was erroneous.
The appellant proceeds to challenge those findings at [9.6] of Reasons. It appears to be the appellant’s argument that the reasoning stated and the conclusions reached by the Arbitrator in that paragraph demonstrate errors of fact as well as an error of law concerning the proper application of section 4 of the 1987 Act. The Arbitrator, at [9.6], stated:
“the Commission taking all what [sic] has been submitted and having carefully considered the evidence is of the view that the medical evidence of Mr Bell should be preferred over that of the First Respondent. That is because of the unanimous opinions expressed by the doctors that the causation incident that gave rise to Mr Bell’s lower lumbar spine disc protrusion was the incident in January 2003 whilst in the employ of the First Respondent. The medical evidence also strongly suggests to me that Mr Bell’s back never returned to the pre January 2003 state. The exacerbations Mr Bell suffered subsequently, including the roll-over incident, were whilst Mr Bell still had his unresolved disc protrusion. Nowhere in the evidence is the Commission satisfied that Mr Bell’s condition had resolved at any time since January 2003 and therefore does not subscribe to the contention that each subsequent incident was a new injury or alternatively that the injury was resulting from a disease process”.
The appellant challenges the Arbitrator’s finding as it appears in [9.6] of Reasons that opinions expressed “by the doctors” were “unanimous” concerning the question of “causation”. It is put that that finding is not supported by the evidence and misconstrues the medical evidence. The evidence of Dr Giblin, Dr Mechreky, Dr Conrad and Dr Millons is examined in the course of submissions. Particular attention is given to the prognosis as expressed by Dr Giblin, the statement by Dr Mechreky that the worker had “exacerbated a previous back injury” in the motor vehicle accident and Dr Conrad’s opinion is criticised as having been expressed without the benefit of the later MRI scan findings. The Arbitrator’s evaluation of Dr Millons’s opinion is criticised in the course of submissions as having been made without attention to the context of Dr Millons’s report. It is suggested that the Arbitrator “ignored” Dr Millons’s view that the worker’s “current problems” arise by reason of an aggravation of a degenerate L4/5 disc occasioned by the motor vehicle accident. It is suggested that the Arbitrator disregarded Dr Millons’s view that the worker suffered “aggravation of degenerate changes at L4/5 probably occasioned by the truck roll-over.”
It is put on behalf of the appellant that the Arbitrator appeared to have ignored Dr Millons’s view that the 2007 motor vehicle accident was an aggravation of an underlying disease process. It is argued that the Arbitrator also appears to have disregarded his own finding that the motor vehicle accident caused “an exacerbation” of the “unresolved disc protrusion.”
The appellant submits that the Arbitrator has failed to give adequate weight to numerous aspects of the evidence including the content of the worker’s statement made in 2007 in particular that which is stated at [12]. It was the worker’s evidence that he had resigned from employment with the appellant as he had “just had enough after nine years there”. The worker stated that his back was not causing problems at that time and further that his “last recurrence” occurred in March 2005. He stated at that paragraph that he had been able to attend to his duties from the time of the last recurrence until he resigned.
It is suggested in the appellant’s submissions that insufficient weight had been given by the Arbitrator to the “terms of [the worker’s] resignation”. That document dated 24 April 2007 states the worker’s reason for resignation as being “personal problems” and no mention was there made of any physical disability.
It is suggested by the appellant that the Arbitrator has apparently given insufficient weight to the known circumstances of the motor vehicle accident in particular the mechanism of the appellant’s injury.
It is suggested that the second respondents’ failure to tender any expert medical evidence has apparently been given “little consideration” by the Arbitrator.
The appellant submits that the Arbitrator “does not appear to appreciate the significance of the found 2007 “exacerbation” in the context of sections 4 and 16 of the WCA”.
A general submission that the Arbitrator’s findings were “incorrect and wrongly based” is made. It is suggested that such error is demonstrated by the evidence that the worker had been “symptom free for nearly two years prior to the truck accident”, Dr Mechreky’s notation of complaints shortly after that accident and the MRI scan findings of January 2008.
The worker in submissions filed in opposition to this appeal argues that the Arbitrator has correctly determined the dispute between the parties. Having regard to the fact that the worker’s entitlement to benefits is not the subject of any challenge on this appeal, the worker has elected to make no specific submissions with respect to the issues raised in argument. It is stated that the worker “submits to a determination of the issues on appeal”.
The second respondents in their submissions on this appeal seek to uphold the finding made by the Arbitrator as to “causation” of the worker’s incapacity and physical impairment. It is argued that the medical evidence “unanimously” establishes that the worker’s “lumbar spine injuries have originated from a disc protrusion at L3/4 and L4/5 which was discovered following his report of injury on 20 January 2003.” Reference is made to the worker’s experience of intermittent symptoms since January 2003 and it is argued that there is “no evidence of a full recovery” from the consequences of the January 2003 injury.
The second respondents argue that the Arbitrator was correct in determining that the appellant was solely liable to pay those benefits to which the worker is entitled by reason of injury. With respect to the report of Dr Millons the second respondents argue that the manner in which that practitioner expressed his view concerning the relevance of the motor vehicle accident does not demonstrate “a position of certainty” and as such would not be persuasive when assessed with that evidence of the other expert medical witnesses.
The second respondents argue that the Arbitrator correctly rejected the appellant’s assertion that the worker suffered from a “disease of gradual onset in his lower back.” It is put that if it be found that the motor vehicle accident caused an exacerbation of the worker’s back injury such was merely temporary and that such exacerbation had no lasting effects so far as the condition of the worker’s spine was concerned. It is submitted that the Arbitrator’s findings should be “upheld”.
DISCUSSION AND FINDINGS
The worker has secured an award providing, in part, for payment of weekly compensation in respect of total incapacity for a period and an ongoing award in respect of weekly payments for partial incapacity. The worker’s entitlement to such an award is not the subject of dispute on this appeal nor has there been any suggestion that the Arbitrator’s quantification of entitlement is in need of review. The real issue which has been agitated both before the Arbitrator and on this appeal is the question as to what is the cause of that accepted incapacity.
As earlier noted the worker makes only one allegation of injury and that is in respect of the incident which occurred on 20 January 2003. There is a suggestion at Part 4 of the worker’s application that the “nature and conditions” of his work with the appellant following that incident have caused injury.
The appellant took steps to join the second respondents to the proceedings and, at Part 3 of the application to join that employer, an allegation is made that the worker in July 2007 in the course of his employment with the second respondents suffered injury to his back. It is there stated “…that the injury in July 2007 caused or exacerbated injury to the applicant’s back.”
The question of causation was addressed by the Arbitrator at [9.8] of Reasons –
“I therefore find that Mr Bell is suffering from an unresolved lumbar disc injury which commenced when he was pulling bins in the course of his employment with the First Respondent in January 2003. The employment of the First Respondent was a substantial contributing factor to Mr Bell’s back injury and, since the injury has never resolved, then the continuing condition, indeed deterioration, of Mr Bell’s back remains the liability of the First Respondent. The subsequent incidents following January 2003 including the roll-over incident whilst in the Second Respondent’s employ were exacerbations of Mr Bell’s original injury and not aggravations or new injuries and hence I am satisfied that the liability remains with the First Respondent.”
Among the complaints raised by the appellant is one concerning the Arbitrator’s manner of reasoning. The Arbitrator has found, at [9.6] and [9.8] of Reasons that the motor vehicle accident in June 2007 had caused an “exacerbation” to what the Arbitrator describes as the worker’s “unresolved disc protrusion”. The Arbitrator at [9.6] expressly states that he was, on the evidence, not satisfied that the worker’s “… condition had resolved at any time since January 2003 and therefore [I do not] subscribe to the contention that each subsequent incident was a new injury or alternatively that the injury was resulting from a disease process.”
Whilst it is clear that the Arbitrator has rejected the appellant’s arguments as to causation, it is suggested on this appeal that the Arbitrator erred in failing to give appropriate weight to the totality of the evidence and had erred in the manner of application of the provisions of section 4 and section 16 of the 1987 Act. Section 4 is that provision which contains the definition of “injury”. Section 4(b)(ii) provides that injury:
“(b) includes-
(i) ….
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration; and ….”
Section 16 of the 1987 Act provides, relevantly, as follows:
“16(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury-at the time the worker makes a claim for compensation with respect to the injury, and(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
….”
It may be seen that section 4 defines “injury” with the inclusion of aggravation etc of a disease in that definition whereas section 16 makes provision with respect to identification of the employer liable for any compensation payable in circumstances where a disease has been aggravated etc. Whilst the Arbitrator in the present case expressly found that the injury was not one “…resulting from a disease process”, I accept the appellant’s argument that his reasoning process demonstrates error. The proper application of those provisions required a determination by the Arbitrator as to whether or not the state of the worker’s lumbar spine, particularly the condition of the L4/5 disc, as demonstrated on the CT scan which was conducted in 2003, was such that it could be said that there was an underlying disease process present. The Arbitrator has not addressed that question rather he speaks (at [9.6]) in terms of injury not “resulting from a disease process”.
The Arbitrator’s reasoning is again open to criticism upon examination of his finding that the worker suffered “exacerbations” subsequent to the 2003 injury. Such “exacerbations” included the motor vehicle accident however the Arbitrator declined to determine “that each subsequent incident was a new injury…”. The Arbitrator’s use of the word “exacerbations” is not explained in the course of reasons nor is there any finding as to the consequences, if any, of such exacerbations. In the circumstances it is necessary to review the evidence to determine whether the Arbitrator’s ultimate findings were true and correct (see State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 per Spigelman CJ at [30]).
There is no suggestion on the evidence that the worker experienced any disabling pain in his lumbar spine prior to the incident of 20 January 2003. The earliest medical evidence is that of Dr Matthew Giblin as found in his report of 7 February 2003. That practitioner’s diagnosis at that time was that the worker’s symptoms were consistent with a disc protrusion at the L4/5 level. Dr Giblin believed that the worker appeared to be getting better with conservative treatment. There is no suggestion in that report that the worker had any evidence at that time of a disease process existent in his lumbar spine. The CT lumbar spine dated 29 January 2003 made mention of no disease process, the diagnosis being a small postero-central disc protrusion at the L4/5 level.
Dr Conrad in his report of 31 January 2008, following his consideration of the MRI scan dated 8 January 2008 has expressed the view that the worker “…has a very significant disc protrusion at L4/5 level, which was seen by the previous CT scan but has progressed since that time”. There is no express statement to be found in Dr Conrad’s evidence of there being a disease process affecting the worker’s lumbar spine.
Dr Millons, at page 6 of his report dated 1 November 2007 states:
“The relatively short period of time he was off work after January 2003 would perhaps suggest that the changes in the disc were constitutionally based and temporarily aggravated by that incident.”
It appears to be Dr Millons view that there was a possibility that “changes” in the disc predated the January 2003 injury. At page 7 of his report Dr Millons attributes the worker’s symptoms at the time of the examination to “…aggravation of a degenerate L4/5 disc occasioned by the truck roll over.” Dr Millons proceeds to express the following diagnosis:
“Aggravation of degenerative changes L4/5 disc, probably occasioned by the truck roll over incident in June 2007. History of intermittent low back pain dating back to 20/01/03.”
Dr van Gelder in his report of 30 January 2009 expresses the view that the MRI scan dated February 2008 demonstrated “disc degenerative changes at the lowest three levels”. He proceeded to state:
“There is some dehydration at L3/4. There is loss of disc height at L4/5 and a large right intervertebral disc herniation. There is a broad disc bulge at L5/S1.”
I am of the opinion that the evidence establishes, on the probabilities, that following injury in 2003, whilst the worker then suffered from disc damage at two levels being the L3/4 and, in particular, the L4/5 level, there was no relevant disease process in place and I reject the evidence of Dr Millons with respect to his suggestion of there being an antecedent degenerative process. I reach that conclusion having regard not only to the contemporaneous medical evidence but also the absence of any evidence that the worker had suffered lumbar spine symptoms prior to the frank injury in January 2003.
The MRI study dated January 2008, as commented upon by Dr van Gelder, demonstrated disc degenerative changes at the lowest three levels involving some dehydration at L3/4, loss of disc height at L4/5 and a large right intervertebral disc herniation at that level. There is, states Dr van Gelder, a broad disc bulge at L5/S1. I accept Dr Conrad’s evidence concerning aetiology and conclude that the changes demonstrated on that MRI scan were initiated by the injury received in January 2003.
It is clear on the evidence that the worker suffered exacerbations of his lumbar disc injury on at least three occasions during his employment with the appellant. One aggravation occurred in 2004 and there were two occasions in 2005. Following each aggravation the worker obtained treatment and resumed normal duties. I conclude that on those occasions the underlying damage occasioned to at least L3/4 and L4/5 of the worker’s spine were temporarily aggravated causing a flare up of symptoms and a need for treatment.
Resolution of the question as to whether the worker’s involvement in the motor vehicle accident in 2007 is of relevance with respect to causation of his incapacity and impairment presents a number of difficulties. Those difficulties arise by reason of inconsistency in the evidence the worker. In his statement of 3 October 2007 (at [19]) he states that he “did not suffer a lower back injury” in the motor vehicle accident. In contrast to that assertion it is clear that the worker complained to his general practitioner during the weeks following the motor vehicle accident of lower back pain. It should be noted that Dr Mechreky in his report of 9 October 2007 records that following the motor vehicle accident the worker’s physical injuries improved and he was able to return to work on 31 July 2007.
The worker reported to Dr Conrad in December 2007 that he had “aggravated his back” in the motor vehicle accident. Dr van Gelder records that the worker informed him that he was having “constant back pain that he ascribed to a motor vehicle accident when he rolled a truck in 2007.” That history was recorded during the course of consultation in January 2009.
I have reached the view that the probabilities are that, in addition to injuries to his head and neck suffered in the motor vehicle accident, the worker then sustained an aggravation of the injury to his lumbar spine received in 2003. I conclude also that that aggravation had but temporary effects being provocation of symptoms which resolved at the latest by early September 2007 at which time the worker resumed employment. The nature of that aggravation took a similar course to those aggravations which had been experienced by the worker during the course of his employment with the appellant during the years 2004 and 2005. As recorded by Dr Mechreky the worker, on 18 September 2007 presented with a worsening of back symptoms, the onset of which had been spontaneous, that is that there had been no incident or cause. Those symptoms in my view have arisen by reason of the state of the worker’s lumbar spine, in particular the disc prolapse at L4/5 level as demonstrated in the MRI scan. The state of the worker’s lumbar spine as shown in that study results from the injury which occurred on 20 January 2003. The subsequent recurrence of symptoms on occasions at work, including that of the motor vehicle accident, have been the result of temporary aggravations of that underlying disc damage. In those circumstances there is no basis for any apportionment of liability to pay compensation as between the appellant and the second respondents.
The appellant is correct to submit that the Arbitrator’s statement at [9.6] of reasons that “….the unanimous opinions expressed by the doctors that the causation incident that gave rise to Mr Bell’s lower lumbar spine disc protrusion was the incident in January 2003…” is a misstatement of the expert medical evidence before the Commission. Having reviewed that evidence together with the evidence of the worker I am persuaded that the view of Dr Conrad is to be preferred to that as expressed by Dr Millons concerning the question of causation of the lumbar spine injury. Dr Conrad has expressed the view that the motor vehicle accident of June 2007 “mainly injured his head and neck and may have temporarily aggravated the back pain…”. Whilst it is true as submitted by the appellant that Dr Conrad’s expression of opinion was then made without the benefit of having examined the MRI scan result, it is to be noted that in his report dated 31 January 2008, which was compiled following examination of the scan, Dr Conrad expressly states that he had no change of view since his earlier reports.
It may be seen that I have reached a view similar to that reached by the Arbitrator and in those circumstances the appeal must fail. The Arbitrator’s determination is confirmed, subject to entry of an award for the second respondents.
DECISION
The Arbitrator’s Amended Certificate of Determination dated 2 June 2009 is confirmed but for the reasons stated in this decision.
In addition the following order is made:
“5. Award for the second respondents.”
COSTS
The appellant is to pay the worker’s costs and the costs of the second respondents of this appeal. I note that the second respondents have sought an order that the appellant pay their costs of the proceedings conducted before the Arbitrator. In the exercise of the discretion granted to the Commission with respect to costs I decline to make such order and note that no argument or submission has been raised by the parties otherwise with respect to the Arbitrator’s costs orders.
Kevin O’Grady
Deputy President
17 September 2009
I, MARIE JOHNS, 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
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