Coles Supermarkets Australia Pty Limited v Conway - [2015] NSWWCCPD 42

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Coles Supermarkets Australia Pty Limited v Conway [2015] NSWWCCPD 42
APPELLANT:	Coles Supermarkets Australia Pty Limited
RESPONDENT:	John Richard Conway
INSURER:	Wesfarmers Group TeamCover
FILE NUMBER:	A1-5887/14
ARBITRATOR:	Mr M McGrowdie
DATE OF ARBITRATOR’S DECISION:	17 February 2015
DATE OF APPEAL HEARING:	6 July 2015 and 10 July 2015
DATE OF APPEAL DECISION:	28 July 2015
SUBJECT MATTER OF DECISION:	Section 60(5) of the Workers Compensation Act 1987; claim for payment of proposed surgery; s 59A of the Workers Compensation Act 1987; limit on payment of compensation; s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; whether monetary threshold met to permit appeal; consideration of Air Electrical Pty Ltd t/as DJ Staniforth & Co v Mortimer [2015] NSWWCCPD 18; facts in present matter distinguishable; Arbitrator’s order concerned compensation that will be payable; challenge to finding of fact; whether issues posed in argument addressed by Arbitrator
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	Oral
REPRESENTATION:	Appellant:	Kaden Boriss
Respondent:	Carroll & O’Dea
ORDERS MADE ON APPEAL:	The Arbitrator’s findings and the orders found in Certificate of Determination dated 5 March 2015 are confirmed.

BACKGROUND TO THE PROCEEDINGS

Coles Supermarkets Australia Pty Limited (the appellant) challenges a decision of an arbitrator in which it was determined that its worker, Mr John Conway, received injury arising out of or in the course of his employment as a butcher in late January or early February 2014.
Mr Conway had, on an uncertain date before 12 May 2014 (being the date liability was declined by the appellant), made a claim against the appellant in respect of medical or related treatment incurred, as well as the cost of proposed treatment, being right shoulder arthroscopy and rotator cuff repair. The appellant’s declinature of the claim placed reliance upon a denial of injury and upon the provisions of s 59A of the Workers Compensation Act 1987 (the 1987 Act).
It is relevant to note that Mr Conway lost no time from work following the alleged injury and that he had reached retirement age, as fixed by the provisions of s 52 of the 1987 Act, in 2012.
These proceedings were commenced by Mr Conway in November 2014. Mr Conway’s Application to Resolve a Dispute (the Application) originally included allegations of injury on 10 April 2011, injury as a result of the nature and conditions of employment between 2011 and 2014, as well as the alleged injury noted at [1] above. At a telephone conference, conducted before Arbitrator Michael McGrowdie on 9 December 2014, orders were made by consent providing for the amendment of the Application to delete the allegation concerning the 2011 injury. The Commission’s record reveals that during an appearance before the Arbitrator on 10 February 2015, the parties had addressed the relevance, to the facts, of s 59A. It was noted by the Arbitrator at that time that the appellant had conceded “… that time allowed for the surgery until, at the earliest, 10 April 2015”. It was also noted by the Arbitrator that “s 59A has now been removed/resolved as an issue”.
The dispute between the parties concerning the cost of proposed surgery was, in accordance with the provisions of s 60(5) of the 1987 Act, referred to an Approved Medical Specialist (AMS), Dr Robert Breit, for assessment. That assessment was conducted on 30 January 2015. Dr Breit expressed his opinion that the subject surgery was reasonably necessary as a result of the injury. The Medical Assessment Certificate (MAC) of Dr Breit was subsequently tendered in evidence before the Arbitrator.
The matter again came before the Arbitrator on 17 February 2015, at which time the Application was heard. Following submissions by counsel, the Arbitrator delivered his decision extempore. A finding was made by the Arbitrator that Mr Conway had received injury as alleged and that the proposed surgery was reasonably necessary as a result of that injury. The following orders, as found in a Certificate of Determination dated 5 March 2015, were made:
“The determination of the Commission in this matter is as follows:
1. The Respondent is to pay, pursuant to section 60 of the Workers Compensation Act 1987, the reasonable costs of and related to surgery to the Applicant’s Right shoulder as proposed by Dr Biggs, namely, a Right shoulder arthroscopy and rotator cuff repair, as a result of injury in or about February 2014.
2. I make a general order that the Respondent pay, pursuant to section 60 of the 1987 Act, the Applicant’s incurred medical expenses.”

THRESHOLD MATTERS

Time

There is no dispute between the parties that the requirements as to time found in s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

Monetary threshold

A preliminary question arises concerning this appeal, being whether the monetary thresholds provided by s 352(3) of the 1998 Act are met. For the reasons which follow I conclude that the appeal may proceed.
Section 352(3) of the 1998 Act provides:
“There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
The appellant, in its application concerning this appeal, had submitted that the threshold requirements as to quantum fixed by s 352(3) had been met. Mr Conway had made no submission concerning those thresholds.
Having regard to the chronology of relevant events, the effluxion of time since the making of Mr Conway’s claim, and to the application of s 59A of the 1987 Act to relevant facts, it became apparent that there was some question as to whether the monetary threshold requirements of s 352(3) were met and, thus, that no appeal was able to be brought with respect to the Arbitrator’s decision. In the circumstances a hearing was appointed for 6 July 2015. The parties’ attention was directed to the monetary threshold requirements and to the decision of Deputy President Roche in Air Electrical Pty Ltd t/as D J Staniforth & Co v Mortimer [2015] NSWWCCPD 18 (Mortimer) which concerned the question as to whether, having regard to the application of s 59A, the requirements of s 352(3) had been met. It was determined that, on the facts, Mr Mortimer had “…no entitlement to enforce the Arbitrator’s award, and no entitlement to recover the cost of the proposed surgery…”. There being no compensation at issue on the appeal, the monetary thresholds in s 352(3) had not been satisfied and there was, thus, no right of appeal (at [29] of Mortimer).
The parties were represented by counsel at the hearing. The matter was adjourned, part heard, to 10 July 2015. The following arguments were advanced.

Mr Conway’s submissions as to s 352(3)

The first matter put by Mr Tanner, counsel for Mr Conway, was that his client wished to “[abandon] the claim with respect to the future surgery and [confine] the claim to treatment in [the 12 month period following first notice of claim]” (T2.8, 6 July 2015). That course was objected to by Mr Somerville, counsel for the appellant. No abandonment was permitted, given that that issue had been joined before the Arbitrator and that relevant findings and orders had been made, which were now subject to appeal (at T9.30, 6 July 2015).
Mr Conway’s counsel accepted that there was no evidence of the quantum of medical expenses actually incurred. An adjournment was sought to enable enquiries to be made with a view to reaching some agreement with the appellant concerning that matter. The appellant did not object to the adjournment application.
Upon resumption of the hearing, Mr Conway’s counsel argued that there was no evidence as to the quantum of the claim, that the requirements of s 352(3) had not been met and that the appeal may not, in the circumstances, proceed.
Reliance was placed by counsel upon the decision in Mortimer. It was put that the reasoning in that matter was sound and that as a matter of comity it should be followed in these proceedings.
It was further argued that by operation of law, in particular s 59A(1), there is “no longer an entitlement” enjoyed by Mr Conway to have the cost of the proposed surgery paid by the appellant. Given the passage of time and the terms of s 59A, the order in question “cannot be enforced”. There should be a finding, it was argued, that, as in Mortimer (at [23]), the appellant is not bound by the relevant order, the force and effect of which had been extinguished. That being so there should, it was put, be a finding, as made in Mortimer (at [29]), that the “monetary thresholds in s 352(3) have not been satisfied and there is no right of appeal”.

The appellant’s submissions as to s 352(3)

The first argument advanced by counsel was that “at the time of [the Arbitrator’s decision] … the threshold was met”.
The appellant argued that, upon the basis of the Arbitrator’s findings, it remains open to Mr Conway “to bring a lump sum claim down the track” (T4.22, 6 July 2015).
On the second day of hearing, Mr Somerville provided supplementary written submissions addressing the relevant provision. Argument was advanced that the findings of the Arbitrator give rise to estoppel, that Mortimer may be distinguished and that the appeal challenging the finding of liability, which finding stands, should proceed.
Counsel drew attention to the particulars appearing at 5.3 of Mr Conway’s Application where the “amount sought” in respect of past and future treatment was particularised as being “$10,000 (est.)”. Reliance was placed upon that quantification of the claim as demonstrating that the relevant monetary threshold had been met.
It was argued, with respect to s 59A, that a final order had been made by the Arbitrator and that “liability had attached” to the appellant. It must be taken, it was put, that having regard to the nature of the Application and the evidence, Mr Conway intends to, and will, undergo the surgery. That will require time off work. In such circumstances, s 52(2)(b) of the 1987 Act will operate to revive Mr Conway’s entitlement to weekly compensation. Should the appeal not proceed, it was put, the appellant will be estopped from denying those matters determined by the Arbitrator.
Counsel’s “primary” submission was that Mortimer was wrongly decided, or that, in the alternative, the present matter may be distinguished on the facts. Having regard to the Arbitrator’s findings, the appellant will be liable for weekly payments upon Mr Conway’s cessation of work. Counsel’s argument was as follows: the operation of s 59A(3) will, when Mr Conway ceases work to undergo surgery, revive Mr Conway’s entitlement to enforce the Arbitrator’s order. Such a revival of liability was not possible on the facts of Mortimer. Thus, notwithstanding the terms of s 59A(1) and the effluxion of time, a sum exceeding the monetary threshold remains “at issue” in the appeal. The requirements of s 352(3), it was put, are satisfied.

Consideration

There was no evidence before the Arbitrator as to the quantum of the incurred or proposed medical or related treatment expenses claimed by Mr Conway. The surgery addressed by order one has, to date, not been carried out.
At the hearing of the appeal, Mr Conway produced a written summary of medical expenses actually incurred. Whilst no attempt was made to tender that document as additional evidence on appeal, it is clear that the parties accept that the sum of those expenses, addressed by order two made by the Arbitrator, does not meet the monetary requirements of s 352(3).
The appellant, as noted above, argues that the monetary amount of the treatment, being $10,000 as particularised, is such that the relevant threshold is met. The appellant had disputed that claim before the Arbitrator, and has been found liable for the treatment as particularised. I accept the appellant’s argument that the amount of the compensation at issue meets the relevant threshold, subject to resolution, as stated below, of the argument founded upon s 59A. In so concluding, I have had regard to the observations of Barwick CJ in Moller v Roy (1975) 132 CLR 622 (between 629 and 631) where the Court was concerned with the proper application of s 45 of the Northern Territory Supreme Court Act 1961-1973 (Cth) which addressed monetary thresholds then relevant to the High Court’s jurisdiction to hear and determine appeals from the Supreme Court of the Territory. As stated by the Chief Justice, when determining the question as to whether a sum or matter “in issue” is sufficient to permit jurisdiction in circumstances where a judgment does not specify a money sum, “…the Court [when addressing s 45(a) of the last mentioned statute] would be able to examine the value of the matter at issue in the proceedings in order to determine whether jurisdiction exists” (at 628). A similar approach may be taken by the Commission in the present circumstances. In my view the best guide concerning the determination of the sum at issue on the appeal is the sum as particularised by Mr Conway in his application.
It remains to be determined whether, having regard to the provisions of s 59A, the Arbitrator’s order has been rendered otiose and that liability has been expunged. Section 59A provides:
“Limit on payment of compensation
(1)    Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided more than 12 months after a claim for compensation in respect of the injury was first made, unless weekly payments of compensation are or have been paid or payable to the worker.
(2)    If weekly payments of compensation are or have been paid or payable to the worker, compensation is not payable under this Division in respect of any treatment, service or assistance given or provided more than 12 months after the worker ceased to be entitled to weekly payments of compensation.
(3)    If a worker becomes entitled to weekly payments of compensation after ceasing to be entitled to compensation under this Division, the worker is once again entitled to compensation under this Division but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.
(4)    This section does not apply to a seriously injured worker (as defined in Division 2).”
Given that Mr Conway has not had any absences from work by reason of incapacity resulting from the subject injury, it is not disputed that weekly payments of compensation are not, nor have they been, paid or payable to him. That circumstance requires application of the provisions of s 59A(1) to determine the nature of his entitlement to the compensation claimed. As at the date of the hearing before the Arbitrator, Mr Conway was entitled to such compensation if the treatment in question (the surgery) had, following the Arbitrator’s finding as to injury, been given or provided within 12 months of the date of claim. That period expired on an uncertain date being before 12 May 2015 (accepted by the appellant to be “… at the earliest, 10 April 2015”: see [4] above). Mr Conway argues that the order made by the Arbitrator is now, and has been since the expiration of that 12 month period, otiose. That is, it is argued, the order may not be enforced, hence it cannot be said that the threshold provided by s 352(3) is met.
The appellant does not dispute the manner in which the provisions of s 59A(1) operate in the context of the present facts as outlined immediately above. The appellant’s first argument (noted at [18] above) which suggests the relevance of the fact, alone, that the threshold was met at the time of the Arbitrator’s decision, is not supported by relevant authority. I reject the appellant’s argument and note that a similar argument was rejected by the Commission in Mortimer where it was stated by the Deputy President (at [21]):
“It is irrelevant that the arbitration was heard and determined prior to the passing of the 12 month time limit in s 59A and that that section had no bearing on the ‘decision’. The clear effect of the section is that Mr Mortimer has no entitlement to recover the cost of the proposed surgery (or to enforce the Arbitrator’s award) and, as no other compensation is claimed, or, on the current state of the evidence, can be claimed, there is no compensation at issue on appeal.”
It is convenient at this point to address the appellant’s submission that the decision of Mortimer was wrongly decided. As is recorded at [19] of that decision, the matter was conducted upon the basis that Mr Mortimer, who had attained his retirement age as fixed by s 52 of the 1987 Act, had “no potential right to weekly compensation in the future”. It was accepted in Mortimer that s 59A(3) could not apply “to revive his entitlement to recover medical expenses in the future” (at [19]). Given the undisputed facts in Mortimer, I am of the opinion that the reasoning and the conclusion concerning the absence of a right of appeal, by reason of failure to satisfy monetary thresholds in s 352(3), are correct. However, as explained below, I accept the appellant’s argument that the present matter may be distinguished from Mortimer on its facts.
The appellant’s argument, as noted at [19] above, that the monetary threshold requirements are in some way satisfied by reason, as suggested, that it was open to Mr Conway to bring a lump sum claim in the future, must be rejected. Such a submission is based upon speculation and there is no certainty concerning relevant facts including, at least, the existence and extent of any whole person impairment that might follow the surgery. Such argument is similar to the matter put by the employer in Mortimer concerning a prospect that Mr Mortimer may ultimately be found to be a “seriously injured worker” in terms of the legislation. Such argument was rejected in Mortimer in which it was stated, correctly in my view, that:
“The monetary threshold in s 352(3) is determined by reference to the award entered or, if no award for the payment of compensation is made, by reference to the quantum of compensation claimed” (at [25]).
It is of particular significance that Mr Conway’s injury, as found by the Arbitrator, occurred on a date which post-dated the attainment by Mr Conway of his retirement age. It is that fundamental fact which distinguishes the present case from the circumstances considered by the Commission in Mortimer. Section 52(2)(b) of the 1987 Act provides that in circumstances where a worker receives an injury on or after reaching the retiring age, a weekly payment of compensation shall not be made in respect of any resultant period of incapacity for work occurring more than 12 months after the first occasion of incapacity for work resulting from the injury. It may be seen that, as argued on behalf of the appellant, upon Mr Conway’s anticipated cessation of employment for the purpose of undergoing the subject surgery, he will be entitled to weekly payments for a period not exceeding 12 months after the first occasion of incapacity resulting from the subject injury. That circumstance will, having regard to the terms of s 59A(3), revive Mr Conway’s entitlement to compensation under Div 3 of Pt 3 of the 1987 Act. Such entitlement would embrace the cost of treatment which had been the subject of the Arbitrator’s order, the subject of this appeal. I accept the appellant’s argument that all relevant circumstances lead to a conclusion that Mr Conway intends to undergo the relevant treatment. As was stated by Leeming JA at [29] in Zanardo & Rodriguez Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449, concerning s 60(5) of the 1987 Act, a referral pursuant to that provision for assessment by an AMS:
“… is not a referral of a ‘medical dispute’ but of the new class of dispute, not otherwise within the jurisdiction of the Commission, namely, ‘a dispute about compensation payable under [s 60] concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service’.” (emphasis added)

I have reached the view that on the present facts, given the terms of s 52(2)(b) and of s 59A(3), the appellant’s liability as determined by the Arbitrator in respect of the cost of the proposed treatment that will be payable persists. Its obligation to indemnify arises upon the occasion of Mr Conway’s cessation of work and his undergoing the treatment. In the circumstances, having regard to my earlier finding concerning the quantum of Mr Conway’s claim, the threshold requirements of s 352(3) have been met and the appeal may proceed.

ISSUES IN DISPUTE ON APPEAL

The grounds of appeal relied upon by the appellant are expressed as follows:
“1. That the Arbitrator erred in finding that the worker suffered an injury ‘in February 2014’ and/or ‘late January 2014’ pursuant to Section 4 of the Workers Compensation Act 1987 arising out of or in the course of his employment.
2.     That the Arbitrator erred in finding that employment was a substantial contributing factor to any alleged injury sustained.
3.     That the Arbitrator failed to give due consideration to the lack of contemporaneous evidence supporting an alleged injury, and by accepting later allegations of an injury without considering these allegations in the context in which they were made.
4.      That the Arbitrator misdirected himself in his determination of injury and the causative nexus between alleged injury and the need for medical treatment.
5.      That the Arbitrator erred in accepting the opinion of Dr Breit, AMS, regarding causation as persuasive despite conceding that Dr Breit had failed to properly consider the contemporaneous evidence and more detailed analysis of other independent examiners.”
Grounds one and two, on their face, appear to suggest factual error on the part of the Arbitrator. Ground three, read together with submissions, suggests error of law on the part of the Arbitrator in failing to address matters in issue. Ground four appears to challenge the Arbitrator’s factual conclusion concerning the causal relationship between the alleged injury and the need for medical treatment. Ground five appears to be a challenge to the Arbitrator’s factual conclusions, however submissions put in support of this ground suggest error of law on the part of the Arbitrator in failing to address matters raised on behalf of the appellant concerning the weight of the evidence of Dr Breit.

THE ARBITRAL PROCEEDINGS

The proceedings before the Arbitrator were recorded and a transcript has been produced and made available to the parties. I note at the outset that the transcription includes a great number of gaps noted as being “not transcribable”.
The evidence before the Arbitrator was identified by him at T7–9. No oral evidence was adduced before the Arbitrator.

The evidence

There was no dispute that Mr Conway had received injury in the course of his employment with the appellant in April 2011. The injuries sustained included one to Mr Conway’s right shoulder. In evidence there was a copy of an ultrasound of the right shoulder conducted on 15 April 2011. The conclusion stated in that study was as follows:
“Small full thickness supraspinatus tendon tear with impingement syndrome and some symptoms and degenerative change at the AC joint.”
As noted earlier (at [4] above) Mr Conway placed no reliance upon the occurrence of the 2011 injury in these proceedings. Mr Conway received weekly payments of compensation following that injury during a period of six weeks’ absence from work, the final payment of such payments was made on 30 April 2012. The evidence does not reveal the period or periods during which such payments were made.
Mr Conway continued performing his normal work. In a statement dated 30 May 2014, he stated that he experienced pain in his right shoulder “at the end of [his] shift”. He was rostered off work between 12 January and 26 January 2014. Mr Conway also gave evidence in that statement, and gave a history as recorded by Dr James Bodel, orthopaedic surgeon, that during his absence from work in January 2014, he happened to be playing golf in Sydney with Professor David Sonnabend, an orthopaedic surgeon. Dr Bodel recorded that Professor Sonnabend noted that Mr Conway was complaining about his shoulder and suggested that he should have an updated investigation.
Following Mr Conway’s encounter with Professor Sonnabend, x-rays and an ultrasound of the right shoulder were conducted on 23 January 2014. A report concerning those studies signed by Dr K R Sesel, addressed to Professor Sonnabend, records the ultrasound findings as follows:
“ULTRASOUND RIGHT SHOULDER: While examining the back of the shoulder, it was noted that there is an old muscle tear with seroma involving the posterior deltoid muscle extending over a length of 5 cm with the fluid collection 2 x 3 cm.
The rotator cuff shows a full thickness supraspinatus tendon tear between 8–12mm in transverse diameter but with retraction of the tendon below the acromion. The remainder of the cuff and the biceps tendon were intact.
There is some fluid in the subacromial/subdeltoid bursa and is due to the cuff tear communicating through the defect into the joint.
There were no other significant findings in the study.”
Mr Conway stated in evidence that in the last week of January or the first week of February 2014 whilst at work, he lifted five black crates of chicken and carried them onto a workbench causing aggravation of the symptoms he had experienced in his right shoulder. He also stated that two days after the lifting incident, his wife noticed that there was “large bruising on [his] right shoulder”. On that day Mr Conway reported the incident to the store support manager, Ms Cassandra Abdulahad.
Following conduct of the ultrasound in January 2014, Mr Conway consulted his general practitioner Dr Jeff Jankelson. The evidence establishes the occurrence of a consultation with that practitioner on 6 February 2014. Dr Jankelson’s clinical notes do not record any history of the recent lifting incident at work. Dr Jankelson’s somewhat cryptic notes record, in part, “U/S – tear supraspinatus left [sic]”. Also recorded is “Ref Tan re shoulder? Old-re-open WCA”. The clinical notes record a subsequent consultation on 25 February 2014 where reason for visit is stated as being “supraspinatus tendon tear – partial”. On that occasion Dr Jankelson referred Mr Conway to Dr Daniel Biggs, orthopaedic surgeon. There was, in evidence, a copy of correspondence from Dr Biggs to Dr Jankelson dated 11 March 2014 concerning the consultation with Mr Conway. The history recorded by Dr Biggs concerned “an injury at work on 10 April 2011”. No history is there recorded concerning the incident described by Mr Conway, in his evidence, concerning lifting of the boxes. Dr Biggs referred Mr Conway for an MRI scan. Dr Biggs anticipated in that correspondence that Mr Conway would “come to rotator cuff repair surgery”.
In evidence there was a copy of a report dated 17 March 2014, concerning MRI right shoulder, signed by Dr Georges Hazan, MRI radiologist, addressed to Dr Biggs. The clinical details recorded by Dr Hazan were: “Possible cuff tear. He indicates a fall at work in April 2011.” That correspondence does not contain any record of history of the lifting incident. The findings of the MRI are recorded by Dr Hazan as follows:
“Findings: There is a full thickness tear of the supraspinatus tendon extending into the anterior rotator cuff interval. The tear measures a maximal AP diameter of approximately 13 mm as measured in the sagittal data set. In the coronal planes of the shoulder the tear appears to extend over a distance of approximately 25 mm. There is undermining and minor retraction of the anterior aspect of the supraspinatus tendon. The posterior of the supraspinatus tendon appears to extent into the posterior rotator cuff interval. The infraspinatus attaches normally and demonstrates a normal appearance. The subscapularis tendon demonstrates mild tendinopathic changes and the anterior fibrils of the supraspinatus have been torn with associated involving of the anterior rotator cuff interval.
There is an anterior cleft at the labrum without a significant tear. The gleno-labral articulation is relatively well maintained although there is diffuse mild thinning of the cartilage.
There are bony changes within the humerus and scapula which require your clinical correlation. They may represent marrow re-activation. Plain radiographs do not demonstrate any bony destruction. Paget’s disease can have similar appearances as well.
No other significant changes are seen.”
Mr Conway relied upon the evidence of Mr Chris Sherwood, a fellow worker, as found in Mr Sherwood’s statement made on 20 January 2015. Mr Sherwood, who worked with Mr Conway at relevant times, stated that he was aware that Mr Conway had “some problems with his right shoulder”. Mr Conway, from time to time, would complain of aches and pains in relation to his shoulder. Mr Sherwood made the point that all the workers experienced similar pain and discomfort. Mr Sherwood confirmed that “in or about late January 2014” he, in the company of Mr Conway and the meat manager, Mr Tom Hole, were lifting and relocating a delivery that had been placed on a number of pallets. Mr Sherwood recalled seeing Mr Conway pick up a large number of black trays of chicken product. He stated that he clearly recalls saying something to Mr Conway at the time, being words to the effect: “What are you doing you silly old man, you’re going to hurt yourself”.
Mr Sherwood further stated that, whilst he had little recollection as to subsequent events, he did recall that within the next couple of days Mr Conway was complaining and he demonstrated the difficulties he was having with his shoulder. Mr Conway showed Mr Sherwood some “discolouration to his upper right arm”. Mr Sherwood made the point in that statement that Mr Conway was clearly having difficulty moving his arm and that “this was certainly not the case prior to the incident that [he described earlier in the statement]”.
The expert medical evidence relied upon by Mr Conway is addressed in the course of these reasons below.
The appellant relied upon much of the same evidence as was adduced by Mr Conway. In addition to the radiological investigation reports and other material, reliance was placed upon the evidence of Dr S K Cyril Wong, general surgery consultant, found in his report dated 12 June 2012, and the evidence of Dr M Assem, consultant in rehabilitation and musculoskeletal medicine, in a report dated 15 April 2014. That expert medical evidence is addressed in the course of discussion which appears below.
The appellant relied upon an investigation report which, it seems, had attached a number of documents including statements made by Mr Conway and his fellow workers, Mr Thomas Hole, manager of the meat department, Ms Cassandra Abdulahad, store support manager, Mr Christopher Cauchi, store manager, and Mr Raj Goundar, store support manager.
Attached to the investigation report are six memoranda recorded by Ms Tanya Risk in accordance with the appellant’s claims management system. The first of those memoranda is dated 21 February 2014. Ms Risk records that Mr Conway had reported that he continues to have problems with his shoulder confirming that his shoulder was playing up roughly three weeks ago. There is no detail recorded in that first memorandum concerning the lifting of boxes of chickens. The balance of the memoranda record Ms Risk’s dealings with Mr Conway and notation as to management of the claim. These documents and the evidence of the lay witnesses is, where relevant, discussed below.

Submissions before the Arbitrator

Mr Conway’s submissions

During an exchange between Mr Gaitanis, counsel then appearing for Mr Conway, and the Arbitrator, it was made clear by counsel that it was alleged that the injury of 2011 was of no relevance given that the case presented was that the 2011 injury did not result in any immediate need for surgery, but that such need arose because of the occurrence of the January/February 2014 incident (at T4). Whilst the transcript is incomplete (noted as “not transcribable”) it is clear that Mr Conway’s case was that the need for the surgery was caused by, what was stated to be, the “aggravation” of the condition of the shoulder when the lifting incident occurred. However, no reliance was placed upon the disease provisions of the legislation. No argument was advanced concerning the allegation of injury caused by the nature and conditions of employment.
Counsel relied upon the matters recorded in the report of Dr Bodel concerning the lifting incident in 2014 and the statement made in that practitioner’s evidence that “about that time, he further aggravated his shoulder with that episode of work”. Reliance was placed upon the evidence of Mr Conway concerning the occurrence of the lifting incident.
Counsel noted that the appellant’s denial of liability had been founded, in part, upon the evidence of the lay witnesses. That material seemed to suggest that the lifting incident did not occur. However, it was argued, the investigation did not extend to an interview with Mr Sherwood. The evidence of Mr Sherwood confirms that Mr Conway was involved in lifting at the relevant time and that Mr Conway subsequently had difficulty with his arm and that he had bruising to the upper right arm.
Counsel argued that the absence of history of the lifting incident in Dr Jankelson’s notes should not be given a great deal of weight. Having regard to all the evidence, it was submitted that a finding of injury as alleged should be made.
Counsel argued that the evidence of Drs Biggs, Bodel and Breit supported the allegation that the surgery was reasonably necessary. Whilst, again, the transcript is incomplete, it is clear that counsel placed reliance upon the evidence of Dr Breit concerning proof that employment was a substantial contributing factor to injury, and that the surgery was reasonably necessary as a result of that injury.

The appellant’s submissions

The appellant’s counsel drew attention to the relevant chronology. The evidence established that Mr Conway was on leave from work between 12 January and 26 January 2014. The ultrasound advised by Dr Sonnabend was conducted on 23 January 2014. That ultrasound demonstrated a full thickness tear and other disorganisation of a tendon, with fluid evident in the subacromial deltoid bursa.
It was argued that the radiological picture “largely mirrors the findings [in the MRI of March 2014]”.
Counsel fairly stated that the question of the occurrence of the lifting incident was not “a major issue”. The question was “did it cause an injury that resulted in the [need for] surgery?”(at T39–40).
It was submitted that the January 2014 ultrasound “was not put before… or was not… noted by the AMS Dr Breit”. It was put that Dr Breit “does not deal with the pathology” (at T40). Unfortunately the transcript at this point is again deficient, however it is clear that the argument was advanced that the weight of Dr Breit’s evidence should be assessed having regard to the absence of any reference in his report to the relevant ultrasound. Counsel argued that, upon an assumption that the ultrasound was before Dr Breit, that report was not dealt with “in any meaningful manner” and it was put that Dr Breit’s opinion should be assessed in the light of authorities such as Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 (Makita) and Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 62 ALR 85; 59 ALJR 844 (Paric).
It was stated by counsel that the crux of the appellant’s case was that the rotator cuff tear, on all of the evidence, pre-dated the alleged injury of February 2014. The surgery was required to repair that pre-existing tear.
In the course of submissions concerning Dr Breit’s evidence, counsel appeared to relate the notation of accumulated fluid recorded in the January 2014 ultrasound to the concept of “bruising” (at T46). With respect to the evidence of Dr Biggs, counsel submitted that Dr Biggs’ evidence contained “nothing of any substance” concerning the February 2014 injury (at T46). The argument was advanced that on the evidence “the whole thing is set in train by that original injury [April 2011] which is not part of these proceedings” (at T50). There was, it was put, a “battery of treatment” in train prior to February 2014. The manner in which the matter has been conducted before the Commission, it was put, placed reliance upon the frank incident in February 2014 but there is an absence of evidence to support there being a causal nexus between that incident and the need for the surgery. Upon an acceptance that Mr Conway experienced symptoms when lifting in February 2014, it was argued by counsel that such was not an injury but rather “a manifestation of the symptoms relating to this previous injury and/or a disease injury which is not pleaded” (at T55).

Mr Conway’s submissions in reply

The Arbitrator raised the subject of Mr Conway’s application to have a supplementary statement made by him admitted, consideration of which had been deferred earlier in the proceedings. Again the transcript is deficient, however, it appears that tender of that document was not pressed.
Counsel proceeded to address the evidence of Dr Breit and asserted in argument that Dr Breit “had the ultrasound when he provided his report simply because he sets out in page 1 of his report that documentary evidence [which he had]…” (at T57).
Counsel made clear, in response to questioning by the Arbitrator, that Mr Conway’s allegation was that the February 2014 incident constituted an aggravation and extension of the underlying pathology of his shoulder and that the evidence permitted acceptance of that proposition. Emphasis was placed in argument upon the appearance of the bruising and Dr Breit’s opinion as to the likely relationship of that bruising to the lifting incident.

The Arbitrator’s Reasons

The nature of the dispute between the parties was summarised by the Arbitrator at the outset of his Statement of Reasons. As summarised by the Arbitrator, it was Mr Conway’s allegation that he sustained injury when lifting and carrying trays of meat which “aggravated a condition in his right shoulder” (at T62).
The Arbitrator noted that, whilst the respondent did not concede the occurrence of the injury as alleged, the “real issue” was whether the need for surgery, which need was not disputed, resulted from a pre-existing condition, “rather than as a result of any aggravation which [Mr Conway] may have suffered in January/ February 2014” (at T63).
The Arbitrator recorded that there was “some question” which had been raised by the appellant as to “whether or not this aggravation” had been caused by something which occurred to Mr Conway whilst he was away on leave from work between 12 January and 26 January 2014. The Arbitrator noted the advice given by Professor Sonnabend concerning the conduct of an ultrasound during a conversation with Mr Conway at the Woollahra Golf Club during his period on leave (at T63).
The Arbitrator proceeded to summarise the lay and expert evidence together with the documentary evidence which comprised the various radiological studies conducted concerning the state of Mr Conway’s right shoulder. The competing views of Dr Assem and Dr Breit were summarised in the course of that summary.
The Arbitrator expressed his preference for the “analysis” found in Dr Breit’s MAC, that being, that the lifting of boxes of chicken and reaching forward could have led to an aggravation of the condition of the shoulder. The bruising which followed suggested that there was “an acute event somewhere in the shoulder leading to bleeding” (at T69).
The Arbitrator accepted Mr Conway’s evidence as to suffering “an aggravation at work as described in early 2014” and further that such was “a significant injury and that work was a contributing factor to his injury at work at that time”. The Arbitrator concluded that there was “little doubt that there is a need for surgery on the balance of the evidence” (at T70).

The Arbitrator proceeded to consider the question as to whether the surgery proposed by Dr Biggs was “reasonably necessary as a result of this incident”. The finding was made that the aggravation caused by the January/February 2014 incident “has continued”. The Arbitrator accepted that Mr Conway, following that incident, “had got to the stage where surgery had become necessary, whereas, so far as I’m able to see on the evidence before me, there had not been a previous suggestion or indication that surgery be performed” (at T70-71).
The Arbitrator expressed his conclusion as follows:
“I’m satisfied that [Mr Conway] did suffer an injury at work in late January/early February 2014 and that that was a significant factor in leading to the present and current need for surgery, namely, surgery right shoulder arthroscopy and rotator cuff repair proposed by Dr Biggs” (at T71).
The Arbitrator proceeded to enter the award as is noted at [6] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

Grounds one, two and three

The grounds of appeal are noted at [34] above. Mr Conway had furnished written submissions opposing the appeal. To meet the convenience of counsel, leave, as sought at the hearing, was granted to Mr Conway to furnish supplementary written submissions concerning the substantive issues raised on appeal. Those submissions have been forwarded to the Commission. I note that the content of those submissions purports to exceed the terms of leave as granted. In the circumstances, those arguments found in that document concerning the s 352(3) issue, which had been addressed by counsel at the hearing, have been disregarded.
The general thrust of Mr Conway’s submissions is that the appellant is seeking to re-argue its case on appeal. The arguments raised by the appellant do not, it is argued, establish relevant error and, given that the appeal is not one by way of rehearing, it must fail.
The Commission also has before it written submissions in support of the appeal presented by the appellant’s solicitor, as well as a written summary of argument and supplementary submissions presented by counsel at the hearing of the appeal. The solicitor’s written submissions purport to address grounds one, two and three together. That approach renders the arguments raised of less assistance to the Commission than had each error asserted in each ground been addressed individually.
There is another problem presented by the form of those written submissions, being that it seems to be argued that the Arbitrator’s approach to the evidence, or his failure to address the evidence, has had the result that his “discretion has been improperly exercised in concluding that an injury occurred at work and that it was significant” (at [10] of written submissions). Such an assertion suggests that the error alleged concerns an erroneous exercise of discretion, whereas the substance of the complaints in grounds one and two are allegations of factual error. Further, so far as ground three is concerned, an allegation of error of law is made, being failure to address the issues raised by the appellant before the Arbitrator.
The written submissions outline the relevant chronology, and the evidence of Dr Assem is summarised. It is put that the Arbitrator “did not engage with [the evidence] of Dr Assem” which made reference to the ultrasound investigations conducted in January 2014 and included an opinion that the “bruising” would indicate “a recent direct injury such as a fall” as distinct from the occurrence of a degenerative tear. It was emphasised that Dr Assem also stated that it “appears that [Mr Conway] sustained a direct injury to his shoulder that was symptomatic prior to returning to work after completing three weeks of annual leave”.
The summary of argument noted immediately above demonstrates the difficulty presented by the appellant’s insistence upon addressing three grounds in the absence of any distinction being drawn in argument concerning the nature of the errors alleged.
The Arbitrator’s finding of injury was stated by him to be founded upon his acceptance of Mr Conway’s evidence that “he did suffer an aggravation at work as described in early 2014” (at T70). Mr Conway’s evidence was, to an extent, corroborated by the evidence of Mr Sherwood, which had earlier been referred to by the Arbitrator in the course of his reasons. Particular reliance was placed by the Arbitrator upon the evidence of Dr Breit, whose view was that the history (of lifting and subsequent bruising) suggested there was “an acute event somewhere in the shoulder leading to bleeding” (at T69). It may be seen that there was evidence before the Arbitrator that might permit his conclusion that relevant injury was received by Mr Conway. The correctness of that finding may only be determined following consideration of all argument raised by the parties.
Examination of the written submissions reveals that the appellant appears to place emphasis upon its earlier denial of the occurrence of the subject injury. Such denial placed reliance upon matters such as the absence of contemporaneous report to Dr Jankelson and Dr Biggs, which matters are again raised in those submissions. However, as the matter was ultimately conducted before the Arbitrator, and as was acknowledged by counsel at the hearing of the appeal, the substantive issue, as stated by the Arbitrator (at T63) was as follows:
“… the real issue in the proceedings was not so much whether the applicant was lifting trays of poultry from a pallet to a work bench, although it certainly was not conceded, but appears to be that the respondent contended that any pathology that the applicant had in his right shoulder, namely, and significantly, a tear of the rotator cuff pre-existed that event and nothing really changed thereafter so that any need for surgery, which was not disputed, results from the condition rather than as a result of any aggravation which he may have suffered in January/February 2014.”
No complaint is made on this appeal concerning the Arbitrator’s identification of the issue in dispute.
As to the complaint concerning suggested error “in finding that employment was a substantial contributing factor to [the injury]” (ground two), the appellant is plainly suggesting that the Arbitrator erred in finding that the requirements of s 9A of the 1987 Act were satisfied. The appellant (submissions [9] and [10]) correctly notes that the Arbitrator’s “phraseology” adopted when apparently addressing s 9A lacked exactitude. No complaint is made concerning the language adopted. The complaint is that “the Arbitrator’s discretion has been improperly exercised in concluding that an injury occurred at work and that it was ‘significant’”.
As to the first question, being the correctness of the finding as to injury, and leaving aside the somewhat confusing reference to discretion, I have earlier concluded that the finding of the occurrence of the injury was open on the evidence. The second question, as to whether employment was a substantial contributing factor to the injury, is one of fact: Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; 22 NSWCCR 46. Such question is to be determined upon a consideration of the totality of the evidence.
In the present matter, the Arbitrator has accepted the evidence of Dr Breit. That evidence established that the radiological evidence dated 2011 demonstrated the existence of pre-injury damage to the shoulder joint. As to subsequent history of symptoms and injury, the evidence of Dr Breit included the following expression of opinion:
“This gentleman has been a Butcher for a long time and particularly in his earlier years was involved in handling carcasses, lifting them etc, so there was a component of overhead work and he certainly was an active sportsman. There is a significant age and degenerative component to this gentleman’s tear.
A normal rotator cuff does not tear without a significant traumatic event.
There is no doubt the rotator cuff tear pre-dates the fall of April 2011 but it certainly could aggravate the underlying pathology or even extend it, so that it became symptomatic. The episode as described involving the lifting of boxes of chicken and reaching forward could similarly have led to an aggravation and that it was apparently followed by bruising a couple of days later, suggests there was an acute event somewhere in the shoulder leading to bleeding. It is therefore my opinion that employment is a significant contributing factor and therefore the right shoulder arthroscopy and rotator cuff repair is reasonably necessary as a result of the injury.”
The evidence of Dr Breit, in my opinion, would permit the Arbitrator’s challenged finding concerning s 9A of the 1987 Act. The appellant’s submission (at [11]) that “in view of the already existing pathology identified on 23 January 2014, any significant injury… would be apparent in further objective imaging of the right shoulder” is not supported by the evidence. The Arbitrator’s failure to draw such an inference does not demonstrate error.
The written submissions seek to emphasise that, as found by the Arbitrator, “nothing in the MRI [dated 17 March 2014] suggested any fresh pathology”. Whilst it is not expressly put in argument, it seems to be argued that the Arbitrator’s conclusion as to injury was reached in disregard of incontrovertible evidence, being the findings demonstrated by the ultrasound dated 23 January 2014. Dr Assem’s opinion was that that study indicated “recent aggravation of the underlying degenerative pathology (report of Dr Assem dated 15 April 2014 at p. 7).
I have earlier observed that Dr Assem and Dr Breit had, in significant respects, opposing opinions concerning the likely occurrence of injury in 2014 and its timing.
Dr Breit, whose evidence was accepted by the Arbitrator, had addressed the content of Dr Assem’s report dated 15 April 2014 in his MAC where it was stated:
“Dr Assam [sic, Assem] a Rehabilitation Physician reported in April 2014. He claims there is a discrepancy because the Applicant said the right shoulder was injured at the end of January 2014 and there was a referral from Professor Sonnabend from 23 January 2014 for some investigations of the shoulder going on to say that he therefore is unable to ‘relate his current shoulder complaints to the specific work injury described’. However, he goes on to say that the symptoms related to a recent aggravation of a pre-existing and long standing degenerative rotator cuff pathology, however, it appears to have occurred when he was on annual leave, going on to say that he presents with an acute injury of his right shoulder aggravating pre-existing pathology and it would appear that on the basis of the discrepancies he felt there was no relationship to employment.
Dr Assam [sic] places a lot of importance on the evidence of pre-existing damage to the rotator cuff subsequent to the second injury, but there is already a documented tear in that cuff in April 2011, so that I do not see that it is of particular importance. Whether this gentleman actually did sustain another injury while he was on holidays or not is not something that I can determine.”
It was, in my view, open to the Arbitrator to accept the views of Dr Breit concerning the absence of “importance” of the evidence of “pre-existing damage to the rotator cuff subsequent to the second injury”. The manner in which that opinion was expressed and the question as to whether the Arbitrator had erred in his approach to argument concerning
Dr Breit’s evidence, as raised in ground three, is addressed below.
The appellant (at [17]–[19] of their submissions) again makes reference to Dr Jankelson’s notes, the evidence of Ms Risk concerning a conversation with Mr Conway on 21 February 2014 and the absence of recorded history of the January/February 2014 incident in Dr Biggs’ evidence. That evidence is relied upon in support of the contention that factual error concerning the finding of injury was made by the Arbitrator. I have earlier stated my view that there was evidence to support the Arbitrator’s conclusion. In the absence of any relevant error of law, as discussed below, such finding must stand. My conclusions as to the merits of grounds one, two and three will follow a consideration of the balance of the appellant’s arguments, both written and oral.

Ground four

This ground challenges the Arbitrator’s finding as to “the causative nexus between alleged injury and the need for medical treatment”. The Arbitrator’s reasoning concerning this issue, more correctly stated by him as being “whether the surgery is reasonably necessary as a result of [the January/February incident]”, is found at T70–71 where the following appears:
“[Mr Conway] had seemingly been able to manage at work despite his symptomatology before this event, and indeed, has been able to manage with his symptoms at work afterwards. I accept that what occurred in 2014 at work, followed by the appearance of bruising, which would indicate bleeding, and the opinion of the AMS, that there was an aggravation consistent with an event. This was an aggravation the [sic, of the] underlying pathology and the aggravation has continued. It may have extended the tear, although there’s no direct evidence this pathology was.
Nonetheless, I accept that [Mr Conway] by that stage and as a result of that the [sic] event, had got to the stage where surgery had become necessary, whereas, so far as I’m able to see on the evidence before me, there had not been a previous suggestion or indication that surgery be performed. I refer to Diab v NRMA Limited [2014] NSWWCCPD 72 where Deputy President Roche sets out the principles in relation to surgery being reasonably necessary as a result of an injury at work.”
It may be seen that the Arbitrator had again stated his acceptance of Mr Conway’s evidence as to the occurrence of the injury, and of the opinion of Dr Breit which caused him to conclude that, as a result of the January/February incident, Mr Conway’s condition had “got to the stage where surgery had become necessary”. As noted by the Arbitrator, there was no evidence that such procedure needed to be performed at an earlier time.
Submissions between [23] and [26] are directed to the state of the evidence and it is argued that the “correct probabilistic [sic] conclusion… is that any aggravation in the course of employment (which is disputed) could not have resulted in the need for surgery, but was merely incidental to a series of treatment steps the worker had already commenced by way of ultrasound on 23 January 2014.”
The difficulty with the appellant’s argument noted immediately above is that the Arbitrator had, upon the acceptance of other evidence preferred by him, concluded otherwise. This appeal is not a rehearing and this ground is rejected.

Ground five

As earlier noted, written submissions concerning this ground are expressed as a challenge to the acceptance of the evidence of the AMS Dr Breit, and the weight attributed to that evidence, by the Arbitrator. However, as argument was developed by counsel at the hearing of the appeal, the thrust of the argument was said to concern the suggested failure by the Arbitrator to address the appellant’s submissions concerning the weight of the evidence of Dr Breit. It was put by counsel that the Arbitrator had failed to address the argument that little, if any, weight should be ascribed to Dr Breit’s evidence, given that he “didn’t seem to have that [ultrasound dated 23 January 2014] and, in any event, didn’t traverse the particular findings of that ultrasound” (at T20, 10 July 2015). Counsel restated the argument (at T27, 10 July 2015) as follows:
“[The Arbitrator] just did not deal with [the ultrasound findings including fluid collection] and accepted an opinion that did not deal with it and that’s really the complaint or the primary complaint that I would [put to the Commission]…”.
The appellant’s argument raises a question of law as to whether the Arbitrator had discharged his duty to do justice to the issues posed in argument (see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 per McColl JA at [59]).
The appellant is correct to submit that Dr Breit did not make express reference to the findings of the January 2014 ultrasound. That fact is acknowledged by the Arbitrator (at T70) in the following terms:
“Dr Breit does not specifically refer to the ultrasound in early 2014 but then he does not specifically refer to the ultrasound which followed the event in 2011 either. He does refer to the MRI scan. He did, of course, have available to him what was contained in the ARD which includes the ultrasound of January 2014 and he specifically reviewed the report of Dr Bodel which refers to that ultrasound.”
When making the statement immediately above, the Arbitrator has plainly, in my opinion, inferred that Dr Breit had, notwithstanding his failure to mention the ultrasound study, noted that material when considering the papers before him. It may thus be seen that the criticism of Dr Breit’s evidence has been addressed by the Arbitrator. It is clear that, as earlier noted, the Arbitrator has nonetheless given weight to Dr Breit’s views, for the reasons given, and that the evidence was found to be persuasive notwithstanding argument advanced by the appellant.
Whilst the appellant is correct to draw attention to the absence of detail to be found in the Arbitrator’s reasons concerning the January 2014 ultrasound, it is clear that the controversy raised by those findings as postulated by Dr Assem had been taken into account by the Arbitrator. Indeed the Arbitrator had (at T67–68) addressed the evidence of Dr Assem in detail, including that practitioner’s comparison of the ultrasounds dated 15 April 2011 and 23 January 2014. I note in passing that the Arbitrator records Dr Assem expressing the view that “there had been gradual natural progression of the underlying degenerative rotator cuff pathology” whereas the report of Dr Assem in fact has the word “no” placed before the word “gradual”. No complaint is made on this appeal concerning that apparent slip.
Given my view concerning the Arbitrator’s approach to the evidence and argument as advanced on behalf of the appellant, I reject the appellant’s suggestion that he had “ignored” relevant evidence and argument (T27, 10 July 2015). No error of law has been made out under this ground.

DECISION

I have earlier found that the Arbitrator’s factual findings challenged on this appeal were each open to him on the evidence. No error of law is made out concerning matters raised under grounds three and five. Each of the other grounds fail for the reasons stated. The Arbitrator’s findings and the orders found in Certificate of Determination dated 5 March 2015 are confirmed.

Kevin O'Grady
Deputy President

28 July 2015

I, STEVEN HAMPSON, 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