Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney
[2006] NSWWCCPD 124
•19 June 2006
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Reported Decision: Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2006) 5 DDCR 337 | |||||
| CITATION: | Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 | ||||
| APPELLANT: | Bernadette Connor | ||||
| RESPONDENT: | Trustees of the Roman Catholic Church for the Archdiocese of Sydney | ||||
| INSURER: | Catholic Church Insurances Limited | ||||
| FILE NUMBER: | WCC19350-03 | ||||
| DATE OF ARBITRATOR’S DECISION: | 16 June 2005 | ||||
| DATE OF APPEAL DECISION: | 19 June 2006 | ||||
| SUBJECT MATTER OF DECISION: | Sections 326 and 328 of the Workplace Injury Management and Workers Compensation Act 1998; effect of Appeal Panel Certificates, and costs against successful employer. | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Carroll & O’Dea | |||
| Respondent: | Astridge & Murray | ||||
| ORDERS MADE ON APPEAL: | Paragraphs one and two of the Arbitrator’s decision of 16 June 2005 are revoked and the following orders made: | ||||
| “1. Award for the Respondent. | |||||
| 2. No order as to costs.” | |||||
| No order is made as to costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
On 12 July 2005 Bernadette Connor (‘the Appellant Worker/Mrs Connor’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 16 June 2005.
The Respondent to the Appeal is ‘Trustees of the Roman Catholic Church for the Archdicocese of Sydney’ (‘the Respondent Employer’) who was wrongly sued as ‘Catholic Education Office, Sydney’. The error is repeated in the Certificate of Determination. Nothing turns on the incorrect naming of the Respondent Employer and the record has now been corrected.
Mrs Connor has worked for the Respondent Employer as a teacher since 1975. In early March 1998 she was struck on either her low back or left hip area by a door handle as the door was opened suddenly at St Francis Xavier College at Ashbury. She attended on a locum at the practice of her general practitioner, Dr McGuigan, once only in respect of that incident, had a few days off work, a few weeks of physiotherapy and then resumed normal work and activities. The nature and extent of any back discomfort experienced by Mrs Connor between the end of March 1998 and June 2002 was the subject of conflicting evidence.
On or about 17 June 2002 the Appellant Worker woke up at home with low back pain which became more severe and radiated into her left leg. As a result of this pain she consulted her local doctor, Dr Davis, on 18 June 2002. Investigations showed disc pathology at the L5/S1 level. The exact nature and cause of that pathology is the subject of conflicting medical evidence.
In her Application to Resolve a Dispute (‘the Application’) filed on 10 December 2003 the Appellant Worker alleged injury to her lower back with sciatica as a result of incidents at work with the Respondent Employer on 2 March 1998 and on 17 June 2002. At the Arbitration the allegation of injury on 17 June 2002 was abandoned. She sought weekly compensation from 17 June 2002 to date and continuing, medical and hospital expenses in the sum of $3,487.82 (plus any Health Insurance Commission charge) and lump sum compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
The matter was heard by the Arbitrator on 1 June 2005 and decided against the Appellant Worker on 16 June 2005.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 16 June 2005 records the Arbitrator’s orders as follows:
“1.There should be an award for the respondent in relation to the claim for weekly benefits.
2.The respondent is to pay the applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator:
(a)misdirected herself in dismissing the opinion of Dr Kwok on the basis that it was given at the request of the Appellant Worker’s solicitors, Carroll and O’Dea (‘Dr Kwok’s Evidence’);
(b)failed to take into account the content of the Medical Assessment Certificate dated 21 September 2004 (‘the MAC’) and the Appeal Panel Medical Assessment Certificate dated 2 March 2005 (‘the Appeal Panel Certificate’) in accordance with section 326(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) (‘section 326 of the 1998 Act’);
(c)failed to give ‘due and proper consideration’ to the substantive content of the MAC and the Appeal Panel Certificate (‘the MAC and Appeal Panel Certificate’), and
(d)erred in ordering the Respondent Employer to pay the Appellant Worker’s costs of the Arbitration (‘costs’).
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Appellant Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
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 submissions 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.
FRESH EVIDENCE
The Appellant Worker seeks to tender fresh evidence on the appeal. The fresh evidence is a letter from Carroll and O’Dea to Dr Kwok dated 20 April 2004 seeking clarification of the doctor’s earlier report of 7 July 2003.
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
As the letter to Dr Kwok was in existence before the Arbitration hearing I do not believe the requirements of Practice Direction No 6 have been satisfied. In addition I do not believe that the exclusion of the letter will cause a substantial injustice in this case.
The application to admit fresh evidence on appeal is refused.
SUBMISSIONS AND FINDINGS
(a) Dr Kwok’s Evidence
Dr Kwok first saw Mrs Connor on 26 July 2002 on referral from Dr Davis, general practitioner of Menai. He took a history of her being struck on the “left side of her back” by a door opened by a colleague at work. In fact Mrs Connor was struck by a door handle. Dr Kwok recorded that at the time of the ‘door incident’ the Appellant Worker was quite painful in that area of her back and had to take two days off work and attend physiotherapy for two weeks. He added that she had always been conscience of a “niggling discomfort over that area since” (see report of Dr Kwok to Dr Davis 26 July 2002). He then records that on 15 June 2002 she woke up with discomfort in her back which developed into severe pain with left sciatica a couple of days later with radiation to the calf and paraesthesia in the left leg and calf area extending into the left foot.
The above history from Dr Kwok is repeated in his report of 7 July 2003 to Carroll & O’Dea. A CT scan was performed on 24 June 2002 and an MRI on 26 September 2002. The CT scan showed a disc protrusion at L5/S1 and the MRI scan showed disc desiccation degeneration at that level with an annular tear and bulge resulting in “concavity of the anterior thecal sac and abutting both S1 nerve roots”.
Dr Kwok’s opinion in his 7 July 2003 report was that:
“In conclusion, Mrs Connor suffered from back pain following an injury around 1998. There was aggravation with recurrent back pain and on top of that left sciatica since 15 June 2002. The original incident in 1998 could have damaged and weakened the disc which encouraged the subsequent aggravation in 2002.” (emphasis added)
In his report of 8 August 2003 to Carroll & O’Dea Dr Kwok stated that he had reviewed the MRI scan and confirmed that there was “degeneration of [the] L5/S1 disc with annular tear”. He then added:
“With my assessment on [sic] Mrs Connor today, her condition has stabilised. She has suffered 10% whole person impairment based on the American Medical Association Guide to Evaluation of Permanent Impairment. I did not obtain any history of pre existing disability or injury, this impairment is entirely related to the injury in 1998.”
In his report of 10 May 2004 to Carroll & O’Dea Dr Kwok stated:
“In response to your enquiry on 20 April 2004, this is to confirm my opinion that the original injury suffered by Mrs Connor in 1998 probably damaged and weakened her L5/S1 disc which encouraged the subsequent aggravation in 2002.” (emphasis added)
In light of the doctor’s opinion in his 8 August 2003 report that the 10% whole person impairment was ‘entirely related to the 1998 injury’ and his opinion in the 7 July 2003 report that the 1998 injury ‘could’ have damaged a disc, the Appellant Worker’s legal advisers were entitled to write to him to seek clarification of his opinion on causation and the doctor was entitled to change his report. There is no criticism of either the doctor or the solicitors. However in a case where there were no radiological investigations done until 2002 and the Appellant Worker continued her normal duties for over four years without further significant complaint or time off work, it is my opinion that the Arbitrator was entitled to have reservations about the evidence of an expert who provided no detailed reasoning to support his final position. On reading all of the doctor’s reports it is reasonably clear that the change was made to make the later report consistent with the earlier report. But the question remains: why did the doctor believe that the 1998 incident ‘probably’ damaged and weakened the disc which encouraged the subsequent aggravation in 2002? It is the absence of an answer to this question that undermines the weight of the doctor’s opinion, not the change from ‘could’ to ‘probably’.
In dealing with this evidence at paragraph 33 pages 11 and 12 of the Arbitrator’s Statement of Reasons for Decision (‘Reasons’) the Arbitrator gave two reasons for not giving Dr Kwok’s opinion “much weight”: first, as with Dr Davis and Dr Miller, he did not describe the “mechanism by which” the disc prolapse was related to the March 1998 incident, and second, because of the change of opinion “in response to a request from the applicant’s solicitors” the doctor’s “preparedness to change his view in response to such a request, undermines the credibility of his opinion generally”. In my opinion the second reason was unjustified. However, the first reason was open and provided ample justification for not accepting Dr Kwok’s conclusion. In addition, there were other sound reasons for not accepting Dr Kwok’s opinion.
The Appellant Worker’s solicitors’ challenge the Arbitrator’s decision on this point on the grounds that under section 37(1)(e) of Evidence Act 1995 a party is entitled to put “propositions forward to an expert witness to obtain helpful or unhelpful expert opinion”. I agree with this submission. However, the issue for the Arbitrator was: what weight should be given to Dr Kwok’s opinion in light of all the evidence and his inconsistent opinions on the crucial issue of causation? Even if you accept (as I do) that the change from ‘could’ to ‘probably’ was made simply to clarify (or to ‘confirm’) the doctor’s earlier opinion, there is no explanation as to why the doctor reached the conclusion expressed in either his 10 May 2004 report or his report of 8 August 2003. He had a very limited history of the 1998 incident and its aftermath. It is hard to see how a history of “pain in the lumbar region at the time”, having two days off work and being conscious of a “niggling discomfort over that area since the incident” (see report of 7 July 2003) could support a conclusion that the 1998 incident “probably damaged and weakened her L5/S1 disc” (see report of 10 May 2004) without some explanation from the doctor or some evidence of a continuity of back symptoms from 1998 until the 2002 episode of pain. There was no explanation from the doctor (a point noted by the Arbitrator at paragraph 33 of her Reasons on pages 11 and 12) and a review of the Appellant Worker’s post 1998 medical history shows an absence of complaints about her back to her treating doctors for over four years.
The issue of experts’ reports and the weight to be attached to them was considered by the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 where Justice Heydon said at 743-744:
“...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.”
Justice Hayden quotes from Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 where Lord President Cooper said:
“... 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.”
In addition, Dr Kwok’s history did not take into account the physiotherapy notes from 1998, the absence of radiological investigations at that time, or the absence of complaints of back pain by the Appellant Worker to her treating general practitioners between 1998 and June 2002. Further, Dr Kwok uses terminology that is unhelpful in resolving the issues that were before the Arbitrator. His expression “encouraged the subsequent aggravation in 2002” does not advance the matter. The test to be applied is whether the Appellant Worker sustained a “personal injury arising out of or in the course of employment” (see section 4 of the 1987 Act) and to which her employment was a substantial contributing factor (section 9A of the 1987 Act) and, if both of these test have been satisfied, whether the incapacity or loss has “resulted from” the alleged injury (see section 33 of the 1987 Act). In my opinion the expression ‘encouraged’ is vague, imprecise and unhelpful in determining the issues of injury and causation. If the doctor was saying that the 1998 incident predisposed the Appellant Worker to subsequent injury, that is not, of itself, sufficient to establish that the alleged incapacity has “resulted from” the work injury (see Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796 (‘Kooragang’)).
Ultimately the acceptance or rejection of Dr Kwok’s opinion on causation was a question of fact (see Kooragang) for the Arbitrator. Whilst I believe the Arbitrator was wrong to discount Dr Kwok’s opinion because of the ‘change of view’ she was entitled to discount it for the reasons stated above and to prefer other evidence which she found more persuasive. I do not believe the Arbitrator’s ultimate conclusion on this issue discloses any relevant error of fact, law or discretion. For the reasons I have set out in this decision, I agree with her conclusion on this issue.
(b) Section 326 of the 1998 Act
The submission made by the Appellant Worker’s solicitor on this point is that the MAC and the Appeal Panel Certificate were not properly taken into account by the Arbitrator in accordance with section 326(1) of the 1998 Act. Pursuant to a direction issued by me on 22 May 2006 further submissions were made by the Appellant Worker on this issue on 5 June 2006 and by the Respondent Employer on 10 June 2006. Those submissions have been most helpful and I thank the parties for them and for their prompt and efficient attention to this matter.
The first point to note is that the MAC dated 21 September 2004 was revoked pursuant to section 328(5) of the 1998 Act by the Appeal Panel Certificate of 2 March 2005. A MAC is issued under section 325 of the 1998 Act and in addition to certifying as to certain percentage losses under section 66 of the 1987 Act it also contains the reasons given by the Approved Medical Specialist (‘AMS’). If the certificate is revoked by an Appeal Panel then the only relevant certificate before the Commission is the Appeal Panel Certificate dated 2 March 2005. Section 326 applies to any new certificate issued by an Appeal Panel. Whether the reasons give by the AMS in the MAC of 21 September 2004 can or should be taken into account on other issues is discussed below.
Section 326 states:
“326 Status of medical assessments
(1)An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
(2)As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
The Appellant Worker submits that a ‘medical dispute’ is defined in section 319 of the 1998 Act to include “the degree of permanent impairment of the worker as a result of an injury” and “whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion” (see section 319(c) and (d) respectively). The parties are given notice of a referral to an AMS and have the opportunity to submit material to the AMS for his or her consideration. Therefore, the amount of any impairment found to have resulted from ‘the injury’ must be to that extent accepted (see Appellant Worker’s submissions of 5 June 2006 page two). The point is also expressed in this way: “the injury claimed or about which the approved medical specialist obtains a history on clinical examination or in reports provided, once quantified as causative of impairment, is conclusive”. Such an assessment is made with access to available medical evidence and other information as the AMS considers necessary for the purpose of assessing a medical dispute referred (see Appellant Worker’s submissions of 5 June 2006 page three). It is noted that the AMS has wide powers and may require additional information and request the worker to submit for examination.
It is further submitted that section 326 of the 1998 Act does not say that it is conclusively presumed to be correct “but only if that which is so certified is in accordance with or compliant with the findings of the Commission”. The AMS, it is submitted, has power to determine matters ‘in dispute’ if asked to do so and it is for the parties to adopt proper and confining questions for the AMS if there is scope for inconsistency when the referral takes place before the conciliation arbitration hearing and findings on injury are made by the Arbitrator.
It is submitted that this case is distinguishable from Issott v North Sydney Leagues Club Ltd [2005] NSWWCCPD 38 (‘Issott’). In that case the worker alleged she sustained an injury to her neck either as a result of the nature and conditions of her employment over several months with the respondent club or as a result of a frank injury. Before the conciliation and arbitration process was concluded the issue of the worker’s permanent whole person impairment was referred to an ASM and was assessed at 4%. A certificate was issued by the AMS to that effect. The report of this case is unclear but I assume that the referral to the AMS was in respect of the injury alleged in the Application to Resolve a Dispute and that the certification related to that alleged injury. At the subsequent hearing the arbitrator made an award for the respondent on the grounds of no injury. On appeal Acting Deputy President Moore confirmed the Arbitrator’s award and stated at [56] to [58]:
“56. The task of the AMS is medical, and is to resolve a medical dispute between the parties. Unless specifically requested, it is not the role of the AMS to determine whether injury occurred, or occurred in the course of employment or any other of the multiplicity of questions that can arise in determining ‘injury’ within the meaning of the 1987 Act.
57. In the present case, the referral for medical assessment to Dr Ashwell states, “the matter is referred to you for examination assessment of the worker for whole person impairment...’ The question ‘has the worker suffered an injury under section 4 of the Workers Compensation Act 1987?’ was not put to the AMS.
58. As the Respondent Employer quite properly submits, ‘clearly the AMS does not have all the evidence produced by the parties such as oral evidence. The issues of fact such as whether in fact there was an incident or the exact nature of the employment is the domain of the Arbitrator’”.
The Appellant Worker submits that Issott is distinguishable because in the present matter we have an AMS certificate which made a deduction under section 323 if the 1998 Act. That assessment was then the subject of an appeal to a Medical Appeal Panel which set aside the original MAC and issued a fresh certificate with no deduction under section 323. Therefore, it is submitted, “there is no scope for the evidence to point to any other mechanism of injury including that of 2002 as that had been considered and rejected by the Medical Appeal Panel and that certification was of binding effect as to the matters so certified (i.e. 10% impairment by work injury alleged)” (see Appellant Worker’s submissions 5 June 2006 page 4). Further it is submitted that in the present case where the referral is made to the AMS before the Arbitration hearing takes place “the sections of the Act promote and support the AMS’s role to include making a conclusive determination on the extent of injury and the extent that injury as caused by the work injury alleged by the worker, there having been made a determination on the extent of any proportion of the injury or condition not caused by the work injury” (emphasis added).
The Respondent Employer submits that:
(a)the Appeal Panel’s reasons make it clear at paragraph 23 that “the question of injury or its causation is not in our view a matter which Parliament has empowered the AMS to decide”;
(b)it is the role of the Arbitrator to decide issues of causation and injury;
(c)the words “as a result of an injury” in section 326(1)(a) of the 1998 Act should not be read so broadly as to give the AMS jurisdiction to conclusively decide the issue of ‘injury’ or ‘causation’, and
(d)the role of the AMS is to determine ‘medical disputes’ only (see section 288 of the 1998 Act) and not legal disputes.
In its further submissions dated 10 June 2006 the Respondent Employer added that ‘causation’ is not purely a medical issue. It involves “legal, factual and medical considerations based on all of the available evidence” (see Respondent Employer’s submissions 10 June 2006 page two). In addition it is noted that only the Arbitrator had the opportunity of hearing all the evidence (including cross examination of the Appellant Worker) and the lengthy submissions of the parties.
The extent to which a MAC is binding on the parties was considered by the Commission in Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 (‘Jopa’) where Deputy President Fleming said at [27]:
“However the issue of a MAC does not equate to a determination of the dispute by the Commission. There are obvious reasons why the legislature would have intended that the ultimate determination of the matter rests with an Arbitrator. There may be a number of issues in dispute between the parties which, while not medical issues, must be agreed, or determined by an Arbitrator, in order to finally resolve the matter. These may include issues of liability and associated claims for compensation by way of weekly benefits and medical expenses. Procedural fairness, the filing of evidence and compliance with the procedural requirements of the Workers Compensation Acts (‘the 1987 Act and the 1998 Act’) may also need to be considered.”
Confusion can arise when an Arbitrator refers a matter to an AMS for assessment under section 326 of the 1998 Act before there has been a determination of whether the event complained of is a compensable injury under the legislation. That has happened in the present case. The expression ‘as a result of an injury’ in section 326(1)(a) means ‘as a result of a compensable injury’. Whether an injury is compensable is to be determined by applying the provisions of the legislation and the relevant authorities to the facts as found by the Arbitrator at a hearing. Neither an AMS nor an Appeal Panel is equipped to determine such matters. Indeed when the Respondent Employer made submissions on ‘injury’ and ‘causation’ to the Appeal Panel’s the response was set out at paragraph 23 of its Statement of Reasons for Decision of the Appeal Panel on Relation to a Medical Dispute (‘Appeal Panel Reasons’):
“In the circumstances of this case it is our view that this issue raised the question of whether there has in fact been a work related injury and the true dispute was whether the impairment arose from the 1998 work related injury or whether it arose from the 2002 non work related injury, or indeed from the degenerative condition. Those issues were squarely before the employer [sic] at the time of the teleconference when the matter was referred. It is our view that if the employer wished to call into question the cause of the injury, that the appropriate time to do so was before the Arbitrator. The employer is in our view clearly attempting to ascribe any impairment from which the worker suffers to a cause other than the work related injury. The question of injury or its causation is not in our view a matter which Parliament has empowered the AMS to decide.” (emphasis added)
In my view that Appeal Panel was correct when it said “the question of injury or its causation is not in our view a matter which Parliament has empowered the AMS to decide”. In light of this statement it seems to me that the Appeal Panel was not certifying that the Appellant Worker sustained a compensable injury or, if she had, that the effect of that injury was continuing. The certification went no further than an assessment of the issue before it, namely, in the event that the Appellant Worker sustained a compensable injury, what was the Appellant Worker’s whole person impairment as a result of that injury. A determination of whether the Appellant Worker sustained a compensable injury is a matter for the Commission.
The Appeal Panel was also correct to state that the “appropriate time to call into question the issue of injury was before the Arbitrator”. The Respondent Employer had always put the issue of ‘liability’ in general and ‘causation’ in particular in issue (see the Respondent Employer’s Reply to Application to Resolve a Dispute filed on 9 January 2004 Part 3 paragraphs 5 & 6). Though there is no transcript of the proceedings at the various teleconferences in this matter it is my understanding (and no submission has been made to the contrary) that no concessions or admissions were made by the Respondent Employer at the teleconference held on 20 April 2004 or at any other teleconference. The teleconference on 20 April 2004 resulted in each party being given leave to admit late documents. It was after the teleconference on 20 April 2004 that the matter was referred to the AMS. The documents relied on by the Respondent Employer were medical reports which strongly supported its case. The Respondent Employer always put liability in issue and always intended to contest the Appellant Worker’s claim. If the Appellant Worker’s arguments are correct the Respondent Employer will be denied that opportunity. The Respondent Employer’s arguments before the Appeal Panel met with the response ‘you should have raised that before the Arbitrator because injury and causation are not matters we are empowered to decide’. Before the Arbitrator (and on appeal) it is met with the submission ‘you can’t now argue injury and causation because the Appeal Panel Certificate is conclusively presumed to be correct’. In these circumstances it is my opinion that the better view is that all issues of liability (including causation) are issues to be determined by the Commission and not by an AMS or an Appeal Panel.
Once liability is decided it is then for the Medical Panel to decide the percentage loss resulting from the injury so found. To decide liability the Commission must decide, among other things:
(a)whether the worker sustained an ‘injury’ within the meaning of section 4 of the 1987 and 1998 Acts;
(b)does the injury satisfy the conditions in section 9A of the 1987 Act, and
(c)what are the consequences of the injury, that is, what pathology is said to result from the injury.
It is essential to consider the meaning of ‘injury’. The definition of injury in the 1987 and 1998 Acts is of limited assistance. It states:
“injury:
(a) means a personal injury arising out of or in the course of employment, and
(b) includes:
(i) a disease contracted by a worker in the course of employment, where the employment was a contributing factor to the disease, or
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, …”
In Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 423 (‘Lyons’) Judge Neilson held that ‘injury’ means both the ‘injurious event’ (the work event or incident) and the ‘pathology’ arising from that event. I agree with this statement. Therefore, the determination of the issue of ‘injury’ requires not only an assessment of whether the ‘injurious event’ occurred in compensable circumstances but also whether the pathology found to exist (if any) has been caused by the work event. These are both threshold liability issues to be decided by the Commission not by an AMS or an Appeal Panel. Employment must be a substantial contributing factor to the work event and to the pathology found before liability arises under the legislation. The determination of these issues requires a consideration of all of the factual and legal issues in the case. It is not simply a medical question.
A decision of an Appeal Panel is not a decision of the Commission within section 350 of the 1998 Act and it therefore does not determine liability (see Campbelltown City Council v Vegan [2004] NSWSC 1129). Once the issue of injury has been determined a MAC is then “conclusively presumed to be correct” as to the degree of permanent impairment of a worker as a result of the injury so found by the Commission and whether any proportion of the permanent impairment is due to any previous injury or pre existing condition or abnormality.
The above interpretation is consistent with other provisions of the 1998 Act. Section 293 provides:
“293 Medical assessment
(1) When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the Registrar may refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment.
(2) If the dispute concerns the degree of permanent impairment of an injured worker, the Registrar must refer that aspect of the dispute for assessment under Part 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment.” (emphasis added)
This section makes it clear that the ‘determination of the dispute’ is to be made by the Commission not by an AMS or an Appeal Panel. That determination can only be made after considering all the evidence relevant to all issues touching on liability. The Commission has “exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act. (see section 105 of the 1998 Act) (emphasis added). To find that the Commission is bound to make an award in the terms of a MAC before all liability issues have been determined would be to strip the Commission of its exclusive jurisdiction to determine all matters arising under the relevant legislation.
Whilst the Arbitrator was entitled to have regard to the MAC (including the reasons in the MAC) in determining the injury and causation issues, that is, in determining whether the Appellant Worker’s claimed incapacity and impairment resulted from the incident on 2 March 1998 or from some other non work related event or circumstance, she was not bound to make an award in the terms of the MAC if in her opinion the Appellant Worker had not sustained a compensable injury within the terms of the legislation and consistent with the relevant legal authorities.
This conclusion is reinforced when one analyses the AMS’s reasons in detail (see paragraphs 58 to 66 below). His incomplete and inaccurate history provides a further or alternative basis for concluding that the MAC does not provide a determination of the issues in this case. Any award made on the basis of the MAC in this case would have been liable to be set aside on the ground that the AMS had not been fully informed of the facts on which the assessment was based under section 325(2)(d) and therefore the AMS could not be said to have ‘certified’ his assessment. A similar comment can be made about the Appeal Panel Certificate because the Appeal Panel effectively said ‘these issues aren’t for us to determine’.
I believe the Arbitrator was correct in law and in principle to consider the issues of injury and causation to be matters for her to determine. As at the date of the Appeal Panel Certificate those matters had not been decided and the Arbitrator was entitled to determine them and to take into account the opinions expressed in that certificate along with all of the other evidence in the case. That is what the Arbitrator did and I see no error in that approach.
(c) The MAC and Appeal Panel Certificate
It is submitted that the Arbitrator failed to deal with the “substantial contents” of the MAC and the Appeal Panel Certificate in terms of causation and has failed to give them “due and proper consideration” in terms of them being independent opinions and having considered the medical evidence. As stated above, the MAC was revoked by the Appeal Panel. Therefore it is arguable that the only certificate properly before the Arbitrator was the Appeal Panel Certificate. In the circumstances of this case however as the only change made by the Appeal Panel to the MAC was the percentage deduction under section 323 of the 1998 Act it is arguable that the reasons given by the AMS (Dr Sachdev) are still relevant just as when a lower court decision is overturned (revoked) on appeal on one issue but is confirmed on all other issues. In that situation the lower court’s reasons may still be valid in any subsequent proceedings. The weight to be attached to them will depend on the circumstances in each case. In the present case the parties have made their submissions on the basis that Dr Sachdev’s opinion was evidence the Arbitrator was entitled to take into account. Whilst I think it is strongly arguable that the MAC (and therefore Dr Sachdev’s reasons) on longer has any relevance because it has been revoked, in the circumstance of this case, I have approached the matter on the basis that the reasons given by the AMS were properly before the Arbitrator and therefore should be considered by me on appeal.
The Respondent Employer submits that:
(a)the AMS who prepared the MAC did not have a complete history and the Arbitrator was therefore entitled to give his opinion little weight, and
(b)the Arbitrator accepted the evidence of Dr Downes;
The Appeal Panel Certificate does no more than amend the MAC to delete the deduction of 10% made by the AMS under section 323 of the 1998 Act. It does not provide any assistance to the Appellant Worker on the issues of ‘injury’ or ‘causation’ which it noted (correctly in my view) were matters to be raised before the Arbitrator.
Dr Sachdev’s reasons did give the Appellant Worker some support and his opinion was entitled to careful consideration along with the other evidence in the case. His diagnosis was of “degenerative disc disease of [sic] lumbar spine with disc protrusion at L5/S1” (see page five of the MAC). At page eight paragraph nine he stated that “injuries she had in March 1998 most probably aggravated her pre existing condition of degenerative disc disease at L5/S1”. At page nine he states:
“From the history taken by me if one accepts that following the incident in March 1998, the patient continued to have ongoing symptoms related to her back which were well controlled with conservative treatment and she did not have to take any time off, I would feel that she had soft tissue injury to her back superimposed on pre existing degenerative disc disease which most probably were [sic] present at the time of the incident on March 1998 and hence I have given her an assessment of 10% impairment of her back.”
However the radiological investigations relied on by Dr Sachdev were taken four years after the March 1998 event. On the question of the section 323 deduction the Appeal Panel noted that the investigations were four years old and were therefore not “capable of basing any deduction whatsoever” (see Appeal Panel Certificate page seven). If the four year old investigations could not be used to base the section 323 deduction it is difficult to see how they could be used to support the finding of a 10% impairment which finding was based on a “soft tissue injury to her back superimposed on pre existing degenerative disc disease” (see the MAC at page nine). There was no evidence that ‘degenerative disc disease’ was present in the Appellant Worker’s back in March 1998.
Dr Sachdev thought Mrs Connor “initially had L5/S1 radiculopathy” (see MAC at page eight paragraph nine). It is not clear when Dr Sachdev is referring to when he says ‘initially’ but there was certainly no evidence of radiculopathly in March 1998. If the doctor is referring to the Appellant Worker’s symptoms in June 2002 he makes no effort to link those symptoms with the 1998 incident other than through an aggravation of degenerative changes. His history of the Appellant Worker developing “severe pain in her buttock radiating to the left thigh and left calf” (see the MAC at page three) following being hit by the door handle is not supported by the notes from Ms Mattner, physiotherapist, though a diagram in those notes do suggest some upper leg pain in March 1998.
The assumption by Dr Sachdev that after her physiotherapy in March 1998 the Appellant Worker had recurrent pain in her “lower back radiating to the left leg” (see MAC page three) is not borne out by an analysis of the clinical notes from Dr McGuigan, Dr Davis or Ms Mattner. His history that in March 2000 the Appellant Worker had “severe pain in her back and saw a Dr Burrows [sic]” was incorrect. In fact the Appellant Worker saw Dr Burrough on 15 March 2000 complaining of “light headedness for 2/7” a “spinning sensation” and of “feeling busy and stressed” with frontal headaches. On examination Dr Burrough found “pharyngitis and swollen tender cervical LNs”. Mrs Connor also complained of “cramps in her left calf on and off for 2/52 especially at night” and a sensation of discomfort all the time especially at the beginning of the previous week. On examination tenderness was noted in the left calf. The diagnosis was “vertigo” and a script for stemetil given. The Arbitrator refers to this evidence in her Reasons at paragraph 27.
The attempt by Dr Davis in her report of 31 July 2002 to suggest that the cramps noted on 15 March 2000 by Dr Burrough were referred pain from the back was also considered by the Arbitrator and rejected. I agree with the Arbitrator’s assessment of this evidence. There was no history given on 15 March 2000 of the 1998 incident and no history of previous back pain or of leg pain that could be characterised as sciatica. Thereafter the Appellant Worker attended on Dr Davis’ practice on 17 occasions between 2000 and June 2002 and there was no mention at any of those attendances of the March 1998 incident or of any back or leg symptoms. The AMS does not refer to that fact in his reasons but merely accepts the Appellant Worker’s assertion that she had recurrent back and leg pain from March 1998 until the significant change in her symptoms in June 2002.
The AMS does not refer to the notes from Ms Mattner. Those notes were of great significance as they were taken within weeks of the March 1998 event. The Arbitrator was entitled to and did take into account the notes from Ms Mattner (see Reasons at paragraphs 26 & 27). They covered the period of treatment in March and June 1998. The initial entry in the notes reads “hit in back by door 2 weeks ago. Pain immediately and has plateaued”. Under diagnosis Ms Mattner has recorded “? SIJ dysfunction 2° to trauma”. My interpretation of this entry is ‘query sacro iliac joint dysfunction due to trauma’. The next entry reads “12.3.98 slightly painful yesterday. Very much improved today”. The entry for 21 March reads “95% improved”. Exercises were given to Mrs Connor and there are no further notes of attendances until the Appellant Worker returned on 15 June 1998 complaining of neck pain which prompted the physiotherapist to request x rays of the cervical spine which were done on 19 June 1998. The entry in the notes for 15 June 1998 records aggravating factors for the Appellant Worker’s neck as being “lift object [sic], hang [sic] out washing, making up sitting in [sic] mirrors, sitting using computer”. They also include this entry under ‘past history’, “door knob into (L) SIjt, 3/12 ago now easier”. My interpretation of this entry is ‘door knob into left sacro iliac joint three months ago now easier’. The entry for 17 June 1998 reads “still sore (L) neck & up Th Sp”. I interpret this entry to mean ‘still sore left neck and upper thoracic spine’. The three other entries for June 1998 are for treatment for the Appellant Worker’s neck and make no mention of any problems with Mrs Connor’s back or left leg.
The AMS had no history at all of the events that lead to the Appellant Worker seeking medical treatment in June 2002. He did not refer to the short report from Ms Mattner of 31 July 2002 which states:
“Story – as given by Bernadette Connor on 18/6/02.
Left sciatica started Sunday 16/6/02 after moving tables in preparation for her daughter’s party that day.
Now all movements are painful and limited.”
Nor did he refer to the notes of Dr Davis of 18 June 2002 which read:
“Has been to see Mignone Mattner [sic] physio at Riverwood this morning for exacerbation of LBP following moving furniture last weekend.”
The failure by the AMS to consider or comment these notes significantly undermines his conclusions. His history was incomplete in many relevant respects and demonstrably wrong in other respects. The Arbitrator was entitled to prefer the opinion of Dr Downes. I see no error in her approach or conclusions on this issue.
(d) Costs
The Arbitrator ordered the successful Respondent Employer to pay the costs of the unsuccessful Appellant Worker and the Respondent Employer, in its submissions, challenges that order. As there is no procedure in the Commission for a ‘cross appeal’ the procedure adopted by the Respondent Employer is, provided all parties have had a chance to be heard, appropriate and reasonable. In the present case a direction was issue by me on 22 May 2006 inviting further submissions of costs. On 5 June 2006 the Appellant Worker made the following further submission on this issue:
(a)costs are discretionary;
(b)there is no evidence that the proceedings were frivolous, vexatious or were brought without proper justification;
(c)should the worker succeed on appeal the employer should pay her costs of the appeal and the Arbitration;
(d)costs on appeal are determined pursuant to section 345 of the 1998 Act, and
(e)regardless of the outcome on the appeal the costs order made by the Arbitrator should stand because the costs order is not a decision in respect of a dispute about which an appeal may be made.
I agree with points (a) to (d) inclusive. In respect of point (e) the argument being made is that ‘costs’ are not ‘compensation’ and leave to appeal under section 352 of the 1998 Act can only be granted if the amount of compensation ‘at issue on the appeal’ is at least $5,000.00 and 20% of the amount awarded in the decision. That is correct and had the Respondent Employer attempted to appeal the costs order made by the Arbitrator leave to appeal would have been refused (see Grimson v Integral Energy [2003] NSWWCCPD 29). However the appeal in this matter has been properly commenced by the Appellant Worker. That being so the Commission is entitled on a ‘review’ properly before it to review all ‘decisions’ made by the Arbitrator if those decisions are challenged by one or other of the parties. In section 352 ‘decision’ includes “award, interim award, order, determination, ruling and direction” (see section 352(8)). As the costs order made by the Arbitrator forms part of her formal orders and as the appeal is otherwise properly before me and the Appellant Worker has had the opportunity to be heard, I believe it is appropriate that I determine the costs issue raised by the Respondent Employer.
The Arbitrator rightly noted that the Commission is not a court and that it is a creature of statute. She also noted that in the Commission “costs do not necessarily follow the event” (emphasis added) (see Reasons at paragraph 38). That is also true because the Commission has a discretion to determine “by whom, to whom and to what extent costs are to be paid” (see section 341 of the 1998 Act). Identical language is used in section 112 of the 1998 Act which deals with costs in ‘existing claims’. The same words are also used in section 98(1)(b) of the Civil Procedure Act 2005.
The Arbitrator then referred to section 342 of the 1998 Act which deals with costs unreasonably incurred and to the fact that the Appellant Worker’s solicitors should not be held responsible for costs where the case involved divergent medical opinions. The Arbitrator stated that the Appellant Worker was entitled to have that evidence tested at Arbitration. As a result the Arbitrator ordered the Respondent Employer to pay the Appellant Worker’s costs as agreed or assessed.
The Respondent Employer challenges the above costs order submitting that there was no basis for such an order where the Appellant Worker failed in the entirety of her claim.
In considering costs orders in the Compensation Court Judge Burke said in Hunter v. Martins Coal Haulage Pty Ltd (1988) 4 NSWCCR 128 at 130:
“Several matters are reasonably axiomatic.
1. The power to award costs is a creature of statute. At common law no such power existed.
2. Any court is limited in its power by the terms of the relevant statute.
3. In this Court, as in most, the power is granted in permissive terms; the relief is discretionary.
4. The general rule is that costs follow the event.
5. Costs in an action may only be awarded as between the parties to that action (excepting any power to award costs against legal representatives of parties).”
The fact that costs do not necessarily follow the event in the Commission is made clear by the terms of section 341(4) of the 1998 Act which prohibits a costs order being made against a claimant unless the Commission is satisfied that the “claim was frivolous or vexatious, fraudulent or made without proper justification”. No such matters arise in the present case. The Respondent Employer did not seek a costs order against the unsuccessful Appellant Worker.
Section 342 of the 1998 Act is intended to deal with a situation where costs have been ‘unreasonably incurred’. It provides:
“342 Costs unreasonably incurred
(1) If the Commission is satisfied that any costs on a claim were unreasonably incurred, the Commission is to order that those costs are to be treated as unreasonably incurred for the purposes of this section and the Commission is not to make an order for payment of those costs by any other party to the claim.
(2) Costs incurred by a party to a claim are considered to have been unreasonably incurred for the purposes of this section only if they were incurred by the party:
(a) after a reasonable offer of settlement of the claim was made to the party, or
(b) after the party has failed without reasonable excuse to comply with a written request from another party to the claim to provide that other party with particulars (including any necessary medical report) sufficient to enable that other party to properly consider the claim for the purpose of making an offer of settlement, or
(c) after the party has unreasonably failed to participate in conciliation of a dispute with which the claim is concerned and the Commission is of the opinion that the failure has resulted in unnecessary litigation, or
(d) in connection with an unsuccessful application by the party to admit further evidence in respect of matters of which a medical assessment certificate of an approved medical specialist that has been admitted in evidence in proceedings is evidence (whether or not conclusive evidence) and the Commission is of the opinion that the application was frivolous or vexatious.
(3) A legal practitioner representing a party to proceedings before the Commission is not entitled to recover from the party any costs that the Commission has ordered are to be treated as unreasonably incurred.
(4) The Commission may by order exempt any costs or a proportion of any costs from the operation of this section if of the opinion that it would be unjust not to do so because the legal practitioner concerned made all reasonable efforts to avoid unnecessary litigation in the proceedings or for any other reason should not be held responsible for the incurring of the costs concerned.”
None of the above provisions apply in the present case. The section applies to the situation where a claimant has succeeded with his or her claim but because certain costs were ‘unreasonably incurred’ (usually after a reasonable offer of settlement has been unreasonably rejected and the final award is for an amount less than the offer) those costs are not recoverable (section 342(1)). The potential unfairness of section 342(1) can be reduced by an order under section 342(4) if the legal practitioner concerned ‘made all reasonable efforts to avoid unnecessary litigation’ or for any other reason should not be ‘held responsible for the incurring of the costs concerned’. The section does not apply in the present case because the Appellant Worker failed with the entirety of her claim.
The above analysis highlights why it is that costs in the Commission do not necessarily follow the event. But the fact that a successful employer cannot recover costs unless the conditions in section 341(4) are met does not mean that it should be ordered to pay the costs of an unsuccessful claimant just because those costs were not ‘unreasonably incurred’ within the meaning of section 342(4).
A successful party should only be ordered to pay the costs of the unsuccessful party in exceptional circumstances. That has occurred in situations where the behaviour of the successful party involved some misconduct (Donald Campbell & Co Ltd v Pollack [1927] AC 732) or some impropriety (Trenerry v Trenerry [1962] 2 NSWLR 221.
In the present case the issue was not about a discretion to refuse costs to the successful party (the successful employer does not seek a costs order in its favour), but whether the successful party should be ordered to pay the costs of the unsuccessful party. On that issue the decision of McHugh J in Oshlack v. Richmond River Council (1998) 193 CLR 72 at 97-98 is most instructive:
“The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd. v. Paphos Wine Industries Ltd, Devlin J formulated the relevant principle as follows:
‘No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.’
‘Misconduct’ in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.” (emphasis added)
Applying the above authority a successful employer should not be ordered to pay the costs of an unsuccessful worker unless the employer has:
(a)been guilty of some sort of misconduct;
(b)by its lax conduct, effectively invited the litigation, or
(c)unnecessarily or unreasonably protracted the proceedings.
No such conduct has been suggested against the Respondent Employer. There are no circumstances in the present matter that justify the costs order made by the Arbitrator and I my opinion the Arbitrator misused her discretion and incorrectly applied section 342 of the 1998 Act by making such an order against the successful employer.
There is an additional reason why the costs order should be set aside: the order was made without giving the Respondent Employer the opportunity of being heard. To make an order adverse to a party’s interests without affording it the opportunity to be heard is a denial of procedural fairness that can amount to an error of law (see Smith Family v Dafinis (1992) 8 NSWCCR 9).
FORMAL FINDINGS AND ORDERS
In my view the Arbitrator was correct in her ultimate conclusion that the Appellant Worker’s back condition is unrelated to the injury on 2 March 1998. That conclusion was based in part on the opinion of Dr Downes which the Arbitrator was entitled to accept and did accept when she said at paragraph 33 page 12 of her Reasons:
“Ms Connor has had gradually developing disc disease over a period of four years or so, to which the incident of March 1998 has made no ascertainable contribution. The symptoms which appeared in June 2002 either had no particular precipitating cause – and I accept Dr Downes when he says that this is often the case with back conditions – or they may have been referable to the weekend cleaning activities.”
I see no error in this approach to the factual issue of causation. The Arbitrator was not satisfied that the injury on 2 March 1998 caused the pathology found to be present in 2002. In determining whether factual findings should be overturned it was held in Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24 that:
“As stated in South Western Sydney Area Health Service v Edmonds [2005] WCCPD 18, the weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of that Arbitrator. The decision of the Arbitrator should not be overturned unless it can be demonstrated that the Arbitrator has failed to exercise that discretion fairly and according to law. This may occur when an Arbitrator has acted upon an incorrect legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and In the Matter of National Roads and Motorists Association Ltd [2003] FCFA 206 at [21]). (per Byron DP at [54]).”
On the issue of causation the Arbitrator has not failed to exercise her discretion fairly or according to law. She has not acted upon an incorrect legal principle or made any material mistake as to the facts. The conclusion reached was open on the evidence and I agree with it. It involves not error of fact, law or discretion.
The ultimate factual findings means that the Appellant Worker failed with the entirety of her claim and the Respondent Employer is entitled to an award in its favour on all issues. The formal orders made by the Arbitrator do not reflect that fact as they merely make an award for the Respondent Employer “in relation to the claim for weekly benefits”. This is an error which requires correction on review. In order to properly give effect to the findings made the correct order is “Award for the Respondent”.
For the reasons set out above, the costs order against the Respondent Employer is revoked.
DECISION
Paragraphs one and two of the Arbitrator’s decision of 16 June 2005 are revoked and the following orders made:
“1. Award for the Respondent.
2. No order as to costs.”
COSTS
No order as to costs of the appeal.
Bill Roche
Acting Deputy President
19 June 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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