Coffs Harbour Ex-Services Club Ltd v Haughey
[2007] NSWWCCPD 100
•30 April 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Coffs Harbour Ex-Services Club Ltd v Haughey [2007] NSWWCCPD 100
APPELLANT: Coffs Harbour Ex-Services Club Ltd
RESPONDENT: Robyne Haughey
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC16281-05
DATE OF ARBITRATOR’S DECISION: 1 February 2006
DATE OF APPEAL DECISION: 30 April 2007
SUBJECT MATTER OF DECISION: Arbitrator’s reasons; sufficiency of expert evidence; Makita principle; causation.
PRESIDENTIAL MEMBER: Acting Deputy President Robert Harrington
HEARING:On the Papers
REPRESENTATION: Appellant: Sparke Helmore Lawyers
Respondent: Whitelaw McDonald Solicitors
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 1 February 2006 is revoked and the following decision is made in its place:
1. That the Respondent pay the Applicant weekly compensation payments for the period 1 September 2000 to 2 August 2004, as reflected in the Applicant’s Wages Schedule, totalling $7,414.10 under Section 37 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant’s Section 60 expenses
3. That the Respondent pay the Applicant’s costs as agreed or assessed.
2.The Appellant (Coffs Harbour Ex-Services Club Ltd) pay the Respondent’s (Ms Haughey’s) costs of the appeal.
BACKGROUND TO THE APPEAL
On 1March 2006 Coffs Harbour Ex-Services Club Ltd (‘the Ex-Services Club’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 1 February 2006.
The Respondent to the Appeal is Robyne Haughey (‘Ms Haughey’).
Ms Haughey was born on 17 July 1954 and is 52 years of age.
Ms Haughey commenced employment with the Ex-Services Club on 10 April 1989. Ms Haughey was employed as a cashier.
On 1 September 2000 Ms Haughey, in the course of her employment with the Ex-Services Club, tripped on a mat, which was behind the bar and fell forward, as a result of which she sustained injuries.
There is no issue between the parties that the incident occurred. There is however, a significant dispute as to the consequences of that incident.
Although Ms Haughey completed an ‘accident report’ for her employer on the day of the injury, she did not make a formal claim for compensation until 9 July 2002.
Ms Haughey commenced proceedings in the Commission by filing an ‘Application to Resolve a Dispute’ on 4 March 2004 (‘the first application’). In the first application Ms Haughey claimed lump sum compensation together with medical, hospital or related expenses only.
Ms Haughey’s claim for lump sum compensation was referred for determination to an Approved Medical Specialist (‘AMS’). The AMS was Dr Stephen Potter.
The AMS issued a Medical Assessment Certificate (‘MAC’) following an examination on 19 November 2004 certifying that Ms Haughey had a 0% Whole Person Impairment (‘WPI’) as a result of the injury on 1 September 2000.
The MAC is conclusive as to the degree of permanent impairment resulting from an injury (section 326 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).
On 23 September 2005 Ms Haughey commenced proceedings in the Commission by filing an ‘Application to Resolved a Dispute’ (‘the second application’). In the second application Ms Haughey claimed a closed period of weekly compensation totalling $7,414 together with medical, hospital or related expenses.
The evidence does not make it clear but it would seem that because the AMS issued a 0% WPI no further action was taken in respect of the first application. Nothing turned on this issue of duplication before the Arbitrator except as to Ms Haughey’s entitlement to costs.
On 30 January 2006 Ms Haughey’s claim was heard before a Commission Arbitrator. Although Ms Haughey gave brief evidence, she was not cross-examined. The hearing before the Arbitrator was, in the main, conducted ‘on the papers’.
Ms Haughey was successful in her claim. The Arbitrator awarded her a closed period of compensation together with medical, hospital and related expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’). It is against this decision that the Ex-Services Club seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 1 February 2006 records the Arbitrator’s orders as follows:
“1. That the Respondent pay the Applicant’s costs as agreed or assessed.
2.That the Respondent pay the Applicant weekly compensation in the sum of $7,414.10 under the Workers Compensation Act 1987.
3.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
· whether Ms Haughey’s expert medical evidence sufficiently complied with the ‘Makita principles’ in order to lay the basis for the claim (the Makita issue);
· whether during the period of claim Ms Haughey suffers from an incapacitating condition and if so whether it relates to the work injury (the causation issue), and
· whether the Arbitrator provided sufficient reasons to justify her decision (the reasons issue).
ON THE PAPERS REVIEW
Section 354(6) of 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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation that is at issue on appeal in this matter exceeds $5,000.00 such that section 352(2)(a) is satisfied. Section 352(2)(b) is satisfied as the appeal concerns the entirety of Ms Haughey’s entitlement to weekly compensation payments.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. As such, I grant leave to appeal.
EVIDENCE AND SUBMISSIONS
On appeal the Ex-Services Club’s submissions can be summarised as follows:
· the Arbitrator erred in law and fact in finding that Ms Haughey was incapacitated as a result of a medical condition;
· if, during the relevant period, Ms Haughey was incapacitated as a result of a medical condition, that medical condition did not result from the alleged injury;
· the Arbitrator failed to provide adequate reasons for her decision, including failing to identify the medical condition, which allegedly incapacitated Ms Haughey during the period of claim;
· the Arbitrator erred in law in accepting expert opinion that did not satisfy the requirements for validity adverted to by the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (‘Makita’);
· the Arbitrator misdirected herself in law in confusing the issue of whether employment was a substantial contributing factor to the injury with the issue of whether Ms Haughey’s incapacity for work and need for medical or related treatment resulted from employment injury, and
· the Arbitrator erred in law in finding for Ms Haughey on the claim for section 60 expenses when there was no evidence that any specific expense claimed related to medical or other treatment that was reasonably necessary on account of employment injury.
On appeal Ms Haughey’s submissions can be summarised as follows:
· the Ex-Services Club produced no evidence to dispute Ms Haughey’s evidence of injury on 1 September 2000;
· Ms Haughey was not cross-examined. Her evidence as to the injury and incapacity was uncontested by the Ex-Services Club, and as such Ms Haughey’s evidence should be accepted in full;
· Ms Haughey’s uncontested evidence, together with the expert evidence consisting of: her general practitioner, Dr Elvy; Dr Bagga (consultant rheumatologist and musculoskeletal physician); and Dr Hopcroft (general surgeon) provided ample evidence to enable Ms Haughey to discharge her onus in respect of establishing, on the balance of probabilities, injury, and incapacity during the relevant period;
· the Arbitrator’s reasons for her decision were adequate in the context of Ms Haughey’s claim and the way the proceedings were conducted before her by the parties, and
· the Arbitrator’s award for section 60 expenses was open on the evidence before her.
EVIDENCE
Although there was a substantial dispute as to Ms Haughey’s entitlement to compensation as claimed, there was not a great dispute in respect of the evidence. The Ex-Services Club did not dispute that Ms Haughey sustained an injury on 1 September 2000 what was hotly disputed was whether she suffered any incapacity as result of that injury.
DISCUSSION AND FINDINGS
The Makita Issue
Before the Makita issue can be determined, the incapacitating medical condition that the Arbitrator found to have caused Ms Haughey’s incapacity needs to be identified. The Ex-Services Club has submitted that the Arbitrator did not, in her reasons for decision, clearly identify a medical condition. It is necessary therefore, to examine the Arbitrator’s decision to determine if she did identify a medical condition resulting from the injury on 1 September 2000.
The Arbitrator said the following in respect to injury [transcript 26.55]
“The applicant claimed injury as being injury to the neck, right arm and left arm, the date of injury being 1 September 2000…”
Having identified Ms Haughey’s claim the Arbitrator recorded the events surrounding the undisputed injury Ms Haughey sustained on 1 September 2000. The Arbitrator thereafter records Ms Haughey’s evidence of ongoing pain in her neck, right shoulder and both arms together with severe headaches and the treatment that she sought in respect of those complaints. The Arbitrator then records the following [transcript 28.5]:
“The applicant primarily relies on Dr Elvy’s report, and he’s certainly the treating doctor who’s seen the applicant from 6 September 2000, which was only a few days after the fall. He says that the applicant had injured her left shoulder on the lateral side and also injured her left forehead. He saw her again in May 2001 and said that she had a chronically sore neck with a decreased range of movement and he gave her time off work, two days off work, because of her neck pain, and she was commenced on anti-inflammatory medication. Then he says she was seen on 29 January 2002 complaining of neck, back and interscapular pain. At that time she had tender muscle trigger points and her cervical spine showed a decrease range of movement. He says: ‘Clinically, she appears to have developed fibromyalgia symptoms’.”
After further examining Dr Elvy’s opinion the Arbitrator said the following [28.40]:
“Then he (Dr Elvy) says she has developed secondary fibromyalgia, which he says is directly related to her injury. And I realise that there is some difference in opinion about the relationship between the fibromyalgia and the fall. However, what I need to be satisfied of is that there’s an injury, firstly, which arises out of or in the course of employment.”
The Arbitrator then considers issues of causation and issues arising under section 9A of the 1987 Act. The Arbitrator, then concludes in respect of the issue as to injury [29.55]:
“So all of the doctors confirmed the relationship between the fall and the neck pain and the pain in the shoulders, which is also what is consistently described by the applicant. So I therefore find that the fall at work and employment was a substantial contributing factor to the injury.”
The Arbitrator, thereafter determined the nexus between Ms Haughey’s incapacity for work during the period claimed and the injury. Particularly, the Arbitrator noted that most of the period of incapacity was supported by medical certificates from Dr Elvy certifying Ms Haughey to be incapacitated due to “neck pain and fibromyalgia”.
In my opinion, it is abundantly clear when the Arbitrator’s decision is considered as a whole, that the Arbitrator’s finding was that Ms Haughey, as a result of the work injury on 1 September 2000, sustained injuries to her head, shoulders and upper limbs which has resulted in a condition known as fibromyalga.
Was there, before the Arbitrator, in respect to the condition of fibromyalgia, expert evidence which would satisfy the requirement for validity under the Makita principle? These principles were recently considered in relation to a workers compensation matter, by the Court of Appeal, in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (‘Hevi’). McColl JA with whom the other members of the court agreed said the following [at 27-30]:
“At the conclusion of the evidence Mr Wardell, who appeared for the appellant both at first instance and on appeal, submitted that there was no expert opinion upon which the primary judge could rely to satisfy himself that the respondent’s injury arose out of or was in any way causally related to his employment. This was on the basis that the respondent’s medical reports failed the test as to the admissibility of expert opinion enunciated by Heydon JA (as his Honour then was) in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (“Makita”). As the reports were already in evidence his Honour (at [26]) treated the issue raised by Mr Wardell’s submission as going to their weight. This was the correct approach: see Heydon JA’s observation in Makita (at 744 [86]) “… no objection was taken to Professor Morton’s evidence, so the only issue for this Court is its weight”.
His Honour (at [23] - [24]) referred in detail to Heydon JA’s judgment in Makita and, in particular, to his Honour’s statement (at 743 - 744 [85]) that:
‘…so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.’
His Honour also referred (at [24]) (inter alia) to Heydon JA’s critical query (Makita at 745 [87]) as to whether the expert’s report there under consideration went “beyond a bare ipse dixit”, a query which, I note, reflected Heydon JA’s earlier citation (Makita at 729 - 730 [59]) of Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
‘… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
His Honour then observed (at [25]) that in his 6 years as a judicial officer he had “read many thousands of medical reports and found only a handful that might avoid challenge under the Makita tests if they were to be inflexibly applied in a court that operates nearly exclusively on the tender of untested written reports.” He referred to his judgment in Brown v Iontask Pty Ltd (2002) 24 NSWCCR 231 where he had “pointed out in as strong as language as was appropriate the devastating effect that these rules of evidence would have on this jurisdiction if inflexibly applied.”
McColl JA’s conclusion in that case was that the expert evidence did not meet the requirements of Makita.
Applying the above principles to this appeal it must be determined whether Ms Haughey’s expert evidence provides more than the bare ipse dixit. In order to determine this issue, the medical and lay evidence needs be considered. The medical evidence establishes that the diagnosis of fibromyalgia is a description of a set of symptoms complex which are out of proportion to the symptoms which would be expected to have resulted from a particular injury. It is a diagnosis, which is accepted in both Australia and America but it would seem a different term is used in Europe. It is clear from the medical evidence that the diagnosis depends upon a set of symptoms complex, together with an acceptance that the patient genuinely believes he or she suffers from those symptoms. It is clear therefore, in determining whether the expert evidence meets the Makita requirements in this instance, the lay evidence and the acceptance or rejection of that evidence, becomes crucial. In order to underpin the expert evidence in a case such as this, there must be acceptance of the subjective complaints of the applicant and acceptance that those complaints have continued from the date of the accident to the date of assessment.
Before dealing specifically with the expert evidence in this case the following matters should be borne in mind:
(i) the workers compensation legislation is beneficial legislation; evidence should be evaluated in this context;
(ii) there are very limited resources for the preparation and presentation of an injured worker’s case before the Commission, an injured worker cannot be expected to present evidence, which would prove on a scientific basis, the existence of a set of facts; and
(iii) it must be borne in mind in assessing expert evidence, what Priestley JA had to say in thestate ofNew South Wales, t/a New South Wales Department of Agriculture v Allen [2000] NSWCA 141(‘Allen’)[paragraph 2-3]:
“The decision at first instance is a paradigm example of a feature of fact finding often found in cases involving medical issues. That feature is the major cleavage between proof of a fact in non criminal court cases to the satisfaction of the fact finding tribunal on the balance of probabilities and proof of a fact for scientific purposes to the satisfaction of those expert in the particular field of science. The latter kind of proof is much more rigorous and demanding than the former.
The two kinds of proof are quite different in their objects and methods, but are frequently the cause of confusion when medical issues are concerned. In many such cases, experts in the field of the relevant medical science give evidence of their expert opinion concerning the medical issue. Trained in the scientific method of proof, some such experts find difficulty in adjusting themselves, when giving evidence in court, to the lesser requirements of legal proof, which, looked at from their scientific standpoint, they regard as inferior and unreliable. An expert who gave evidence for a party in litigation where there has been an adverse result reached by application of the legal standard of proof is quite likely to advise the party that the result is an unscientific and unsound one. Hence, many appeals by the indignant losing party: the various trials and appeals in Hocking v Bell, (see the decision in the Privy Council (1947) 75 CLR 125)), provide a classic example.”
Applying the above principles to the present appeal, Ms Haughey’s uncontradicted evidence establishes that at work on 1 September 2000 she fell heavily hitting her head and upper body with force. Since that time she has suffered from a symptom complex involving her head, neck, shoulders and upper limbs. Ms Haughey, since the accident, stated that she has suffered from the following symptoms [paragraph 12 of her statement] “I suffer from pain in my neck and right shoulder and both arms and suffer from severe headaches, as if the pain in my neck were going to my head”. The Arbitrator and Drs Bagga and Elvy accepted Ms Haughey’s subjective complaints. Based on those subjective complaints and their examination of Ms Haughey, Drs Bagga and Elvy diagnosed a condition of fibromyalgia. Once Ms Haughey’s subjective complaints are accepted the diagnosis by Drs Bagga and Elvy of fibromyalgia is sufficiently explained in their reports for the tribunal of fact, determining the issues, to understand the logical basis for their ultimate opinion. The doctor’s reports provide, in my opinion, more than the bare ipse dixit.
It follows therefore that I reject the Ex-Services Club’s submissions that the evidence did not meet the Makita standard and that the Arbitrator failed to identify the medical condition from which Ms Haughey’s incapacity flowed.
The Causation Issue
The causation issue to a large extent goes hand-in-hand with the Makita issue. Having determined that there was valid evidence before the Arbitrator establishing the diagnosis of fibromyalgia and its relationship to the injury the issues raised by the Ex-Services Club in relation to causation have therefore in the main been answered.
Before the Arbitrator was the evidence of Drs Bagga, Elvy and Hopcroft. These doctors supported Ms Haughey’s claim during the relevant period. Dr Hopcroft’s opinion was predicated upon an injury to Ms Haughey’s cervical spine. Dr Hopcroft’s views were not rejected or accepted by the Arbitrator. Dr Hopcroft’s opinion is not necessarily inconsistent with a diagnosis of fibromyalgia as there must be some underlying pathological process causing the symptoms which give rise to the diagnosis of fibromyalgia. In addition to the medical reports, the Arbitrator, in respect of most of the period claimed, had certificates from Ms Haughey’s general practitioner certifying her incapacity for work as a result of fibromyalgia.
Against this evidence was the evidence of the AMS Dr Potter and Dr Oates. It is implicit from both doctors’ reports that they reject Ms Haughey’s subjective complaints and the continuity of those symptoms since injury. This is contrary to the either expressed or implied findings of the Arbitrator in accepting Ms Haughey as a witness of truth and therefore her ongoing symptoms. The MAC binds the parties in respect of the degree of permanent impairment resulting from injury. In respect to other matters its status is equivalent to any other medical evidence before the Arbitrator. Once the Arbitrator accepts Ms Haughey’s complaints and the continuity of those complaints, dating from the accident, the medical evidence of the AMS and Dr Oats has little weight when determining issue as to causation.
The Ex-Services Club submits that the Arbitrator misdirected herself in law in confusing the issue of whether employment was a substantial contributing factor to the injury with the issue of whether the applicant’s incapacity for work and the need for medical or related treatment resulted from employment injury. There is some merit to this submission however, the determination of whether a set of facts leading to an injury fulfil the requirements of section 9A of the 1987 Act is of course a consideration of causation. By determining the issue by reference to section 9A the Arbitrator has in effect determined the primary issue of causation. Having said this, I do not accept that the Arbitrator failed to consider the primary issue of causation. The Arbitrator having examined the lay and medical evidence said the following [page 28.50]:
“However, what I need to be satisfied of is that there is an injury, firstly, which arises out of or in the course of employment. And, therefore, I find that the applicant has received an injury, being injury to her neck, shoulder, as described in her doctors’ report-I’ll just return to that again. She has received a chronically sore neck and bilateral shoulder and neck muscle pain, and I find when I look at the medical evidence and the applicant’s statement, the issue [sic] whether the injury has arisen out of or in the course of the employment-for an injury to arise out of the employment giving rise to liability for compensation there has to be a causal connection between the injury and the work.” (emphasis added)
In workers compensation legislation injury has two meanings it can mean the events which cause the worker physical or psychological damage or, alternatively the pathology and symptoms which result from the work accident. It is clear that the Arbitrator, in the second half of the above quote, is using injury in the second sense. As such contrary to The Ex-Services Club’s submissions the Arbitrator did consider the primary issue of causation.
It follows therefore that I reject the Ex-Services Club’s submissions in respect of causation and the submission that the Arbitrator misdirected herself in respect of the test of causation.
The Reasons Issue
The question of what is required by a Commission Arbitrator in order to comply with the need to give adequate reasons was considered by Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Stanford [2002]NSWWCCPD 6 (‘Stanford’). At paragraph 45 the Deputy President said:
“The Commission is not a court and its objectives are to provide a dispute resolution process that is fair and cost effective for the parties to a workers compensation dispute. Proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. The content of statements of reasons for decision reflect this process and should not on review, be “construed minutely and finely with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287). This is not to say that decisions should not be soundly based nor that the reasons should not be capable of conveying clearly the matters required by Rule 41 (set out above). As Kirby J observed in relation to a decision of the Refugee Review Tribunal in Liang, the decision-maker’s reasons will remain the ‘only insight into the considerations which were, or were not, taken into account in reaching the decision’ (at 291).”
In the circumstances of this determination I am of the opinion that the Arbitrator has fulfilled her obligations to give adequate reasons. The claim was for a closed period of weekly compensation payments and medical expenses. The matter was, in the main, dealt with ‘on the papers’. The Arbitrator delivered an extempore judgment. Further in the judgment she dealt with the lay evidence and the medical evidence sufficiently, in my opinion, for the parties to understand her reasoning process particularly given the limited issues between the parties. It follows therefore that I do not accept the Ex-Services Club’s submissions that the Arbitrator failed to give adequate reasons.
The final matter which needs be considered is the Arbitrator’s actual award of weekly compensation payments. The Arbitrator did not specify the past weekly periods of entitlement to compensation. The Arbitrator awarded a lump sum amount in respect of Ms Haughey’s entitlement to compensation for the period claimed. The Arbitrator in her reasons for decision stated that she accepted Ms Haughey’s evidence in respect of the closed period of compensation claimed. Although counsel for the Ex-Services Club’s did not concede the individual periods claimed by Ms Haughey’s, in the event that she was successful in establishing the primary issue, that is, that her condition was related to the work injury, counsel for the Ex-Services Club did not refer to or take issue with any specific period that should not have been allowed. In the circumstances, I am of the opinion that it was open on the evidence for the Arbitrator to make the award that she did in respect of weekly compensation payments. Further I consider that the Arbitrator’s reasons in this regard were adequate.
Section 60 expenses
The case presented in respect of section 60 expenses, before the Arbitrator, by counsel for the Ex-Services Club, was a case of ‘all nothing’. That is, as I understand the submissions before the Arbitrator, it was admitted by the Ex-Services Club that as there was no ongoing incapacitating condition causally related to the work injury there could be no entitlement to section 60 expenses, as any medical expenses would relate to a condition which had no connection to the work injury. If it is in fact The Ex-Services Club’s submission, on appeal, that the Arbitrator should have looked at individual items and given reasons supporting the contention that each item of treatment was reasonably necessary as the result of the work injury, then that submission was not advanced before the Arbitrator. The Ex-Services Club having adopted this position before the Arbitrator, it is not appropriate to allow a new assertion to be agitated on appeal. In any event, the Arbitrator accepted Ms Haughey’s evidence that the section 60 expenses contained in the schedule, attached to her second application, were reasonably necessary expenses arising from her work related condition. The Arbitrator’s reasons in this regard are not extensive, however, given the approach taken by the parties in respect of this matter her reasons are adequate. I therefore reject The Ex-Services Club’s submission in respect of section 60 expenses.
Formal orders
Whilst the Arbitrator has not made any relevant error of fact, law or discretion in her reasons, the formal orders made in the Certificate of Determination do not accurately reflect the findings made and constitute an error which should be corrected on appeal. The correct orders that the Arbitrator should have made consequent upon her finding are as follows:
1. That the Respondent pay the Applicant weekly compensation payments for the period 1 September 2000 to 2 August 2004, as reflected in the Applicant’s Wages Schedule, totalling $7,414.10 under Section 37 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant’s Section 60 expenses on production of accounts or receipts.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.
DECISION
The decision of the Arbitrator dated 1 February 2006 is revoked and the following orders made:
1. That the Respondent pay the Applicant weekly compensation payments for the period 1 September 2000 to 2 August 2004, as reflected in the Applicant’s Wages Schedule, totalling $7,414.10 under Section 37 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant’s Section 60 expenses on production of accounts or receipts.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.
COSTS
The Appellant (Coffs Harbour Ex-Services Club Ltd) pay the Respondent’s (Ms Haughey’s) costs of the appeal.
Robert Harrington
Acting Deputy President
30 April 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ACTING DEPUTY PRESIDENT ROBERT HARRINGTON OF THE WORKERS COMPENSATION COMMISSION.
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