East Coast Timber Products Pty Ltd v Hancock - [2009] NSWWCCPD 123

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Decision set aside on appeal and remitted: Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11. Determined on remitter: East Coast Timber Products Pty Ltd v Hancock (No 2) [2011] NSWWCCPD 48
CITATION:		East Coast Timber Products Pty Ltd v Hancock [2009] NSWWCCPD 123
APPELLANT:		East Coast Timber Products Pty Ltd
RESPONDENT:		Daniel John Hancock
INSURER:		QBE Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-10105/08
ARBITRATOR:	Mr J Hertzberg
DATE OF ARBITRATOR’S DECISION:		26 May 2009
DATE OF APPEAL DECISION:		6 October 2009
SUBJECT MATTER OF DECISION:		Injury; causation; whether the worker had discharged the onus of proof.
PRESIDENTIAL MEMBER:		President, Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Mulchay Lawyers
Respondent:		Lee Sames Egan
ORDERS MADE ON APPEAL:		The decision of the Arbitrator, dated 26 May 2009, is revoked and the following decision is made in its place: Award for the Respondent. No order as to costs.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 24 June 2009 East Coast Timber Products Pty Ltd (‘the Appellant/Employer/East Coast Timber’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 May 2009.

The Respondent to the Appeal is Daniel John Hancock (‘Mr Hancock’).

Mr Hancock is 35 years of age. He commenced employment with the Appellant on 24 August 1998. He was employed as a labourer stacking and sorting timber.

He claims that on 31 October 2005 he fell at work and injured his right knee. He sought medical treatment but did not submit a claim for workers compensation. He alleges that as a consequence of that injury his knee remained troublesome, but he was able to keep working. However, by 2007 he required medical intervention and he ultimately submitted to surgery in June 2008.

Mr Hancock has not worked since 26 March 2008. His employment was terminated on 16 October 2008.

The Appellant denies the worker was injured as alleged, or alternatively, if there was an injury, it was a trivial incident and not incapacitating.

Mr Hancock is claiming weekly benefits from the date he ceased work on 26 March 2008 to date and continuing at $561.00 per week.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 26 May 2009 records the Arbitrator’s orders as follows:

“The Commission determines:

(1)Award for the Applicant under section 36 of the Workers Compensation Act 1987 in the sum of $561.22 per week from 23 March 2008 to 20 September 2008.

(2)Award for the Applicant under section 37 of the Workers Compensation Act 1987 at the maximum statutory rate for a single worker with no dependents from 21 September 2008 to date and continuing.

(3)The Respondent to pay the Applicant's costs as agreed or assessed and I certify the matter as complex and allow an uplift of professional fees for both parties of twenty percent.

A brief statement is attached to this determination setting out the Commission's reasons for determination.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether:

1. the worker suffered an injury in the course of his employment on 31 October 2005;
2. the worker was incapacitated by reason of the alleged injury sustained on 31 October 2005, and
3. the incapacity is total or partial, and if partial, the extent of partial incapacity.

ON THE PAPERS REVIEW

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

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

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.

LEAVE TO APPEAL

Monetary Threshold

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

There is no issue that the quantum at issue on appeal meets the thresholds in section 352(2) of the 1998 Act.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

Leave to appeal is granted

FRESH EVIDENCE

‘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:

“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCE
Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:
·   it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
·   the evidence is credible;
·   there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
·   it is just to admit the evidence in all the circumstances of the individual case.
Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.”

Practice Direction No.6 also provides that if fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:

·   a schedule of the fresh or additional evidence;
·   a copy of the fresh or additional evidence;
·   a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and
·   submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.

Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.

Mr Hancock seeks leave of the Commission under section 352(6) to admit fresh or additional evidence by way of:

· Statement by Ivan Beverly dated 9 July 2009 (‘the Beverly statement’), and
· Letter from CRS stated 14 July 2009.

Mr Hancock submits that the following matters are relevant to the application for the admission of fresh evidence on appeal:

(a)     the Appellant makes a significant issue out of a recording in the Hospital notes on 21 April 2008 to him ‘sanding’ and submits that the unspecified ‘sanding’ act constitutes a ‘novus actus’;
(b)     there is no evidence to conclude that this entry in the notes constitutes a ‘novus actus’ as a matter of fact or as a matter of medical opinion. The Appellant’s submission relies on the Commission drawing significant inferences in that regard;
(c)     otherwise, the evidence is lacking and it was not sought to be cross-examined upon at the arbitration hearing;

(d) at the arbitration hearing Mr Hancock’s medical evidence supported the connection between the injury in October 2005 and his condition in late 2007 and early 2008;

(e) the Appellant had the worker examined by Dr Bodel on 15 January 2009 and the Grafton Hospital notes were available for Dr Bodel’s perusal at that time;

(f) the exceptional circumstances required (see Roche DP in Naidu v Able Manufacturing Pty Ltd [2007] NSWWCCPD 237) are found in the absence of opportunity of the worker to respond (as a matter of fact) to the propositions now being put by the employer, and the employer’s conduct in failing to cross-examine the worker and failing to serve any medical evidence, in particular the report of Dr Bodel;

(g) if the Commission is to draw adverse inferences against the worker, there is likely to be a significant impact on the outcome of the case and a substantial injustice would result for the worker, particularly in the absence of such cross-examination (Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7);

(h) the Beverly statement is more correctly ‘evidence in addition to or in substitution’ as set out in section 352(6) and therefore a more flexible test is to be applied: Haider v J P Morgan Holdings Aust. Ltd [2007] NSWCA 158. Whilst it is arguable that the evidence could have been obtained with reasonable diligence at the time of the Application to Resolve a Dispute, at no time was the issue of a ‘novus actus’ raised prior to submissions at the arbitration hearing. That fact, in the context of the absence of cross-examination, is sufficient to invoke the Commission’s discretion, and

(i) the section 74 notice did not rely on job seeking as an issue, and the CRS letter goes to that issue.

Pursuant to a Direction issued to the parties on 26 June 2009, the Appellant was directed to file and serve any submissions in reply to the Notice of Opposition by 21 August 2009. The Commission’s files indicate that the Appellant filed no submissions in reply. As a consequence no objection has been taken to the admission of the fresh evidence on appeal.

Dealing firstly with a statement of Ivan Beverley of 9 July 2009, Mr Beverley states that he is a partner of I J and L E Beverley t/a Valley Flooring. His company was contracted to carry out floor sanding and finishing of the timber flooring at the residence of Mr and Mrs Hancock. Mr Beverley stated that he commenced the work on 23 April 2008 and completed it on 30 April 2008. He stated that at no time did any person other than himself carry out any procedures involved in the job he was contracted to do.

The employer’s argument is that the causal connection between injury on 31 October 2005 (if found) and incapacity after 26 March 2008 has been broken by injury sustained away from the employer’s workplace. In particular the employer relies upon the worker’s complaints on 21 April 2008 at Grafton Base Hospital to the effect that he had multiple problems with his right knee, which had been recently aggravated by two days “sanding” at home on his knees.

The worker in his Application to Resolve a Dispute included the clinical notes from the Grafton Base Hospital. It should have been apparent to him that his complaints to the hospital notes of an injury to the knee sustained in non work-related circumstances, occurring around the same time he ceased work, would give rise to an issue in the proceedings, particularly when the hospital notes were tendered in his own case. It is reasonable to infer that the evidence now sought to be admitted on appeal from Mr Beverley could, with reasonable diligence, have been obtained and tendered in the proceedings before the Arbitrator. Nothing has been put forward to suggest otherwise. The submission that this was not done because the employer had not raised the issue until the addresses before the Arbitrator is not persuasive.

However, the evidence is clearly relevant to a fact in issue in the proceedings, that is, whether the incident reported to Grafton Base Hospital on 21 April 2008 constituted a ‘novus actus’ breaking the chain of causation. The evidence is credible evidence, from an independent witness, as to the facts in issue and it could affect the outcome of the appeal. Whilst the evidence could be considered prejudicial to the employer there has been no objection to its admission. I therefore consider on balance, but with some reluctance, that in all the circumstances of this case it is just to admit the statement of Mr Beverley into evidence.

I now turn to the letter from CRS of 14 July 2009. The letter was addressed to the worker’s solicitor. The author is Val Delaney a Rehabilitation Consultant. It confirms Mr Hancock’s participation in a return to work program, which commenced on 5 December 2008. It confirmed that Mr Hancock is seeking “appropriate work”, following up on leads given to him by family, friends and the CRS employment officer. It stated that Mr Hancock was keen to find work but was hampered by his knee injury. Ms Delaney stated that because the worker was effectively on stand-by for the surgery through the public system, his reliability in the eyes of potential employers is adversely affected. Another issue that inhibited him finding work is the assessment by his physiotherapist that he would need to start work at four hours per day and gradually increase the number of hours worked, after the first three weeks of work. Ms Delaney stated that Mr Hancock’s need to be available to attend medical appointments and other matters relating to his WorkCover claim, impact on his potential to find work. In conclusion Ms Delaney stated:

“The good news is that our employment officer is currently negotiating with an employer for a potential work training and we are hoping for a positive outcome”.

Mr Hancock submits that the Appellant did not rely on job seeking as an issue in the section 74 notice. I note, however, the issue was addressed before the Arbitrator. Mr Mulcahy submitted on behalf of the Appellant that there had been no evidence of job seeking of any kind by the worker (T19:54).

Whilst in my view this evidence could, and should, have been obtained before the arbitration hearing, it is relevant to a fact in issue in the proceedings, namely the nature and extent of Mr Hancock’s post injury job seeking and employment opportunities. I have considered the possible prejudice to the employer in admitting the material, however, as there were submissions on the matter before the Arbitrator, in circumstances where it was not put in issue in the section 74 notice, and in the absence of any objection from the Appellant, I consider that in the circumstances of this case it is just to permit the letter from CRS of 14 July 2009 to be admitted on appeal.

I therefore admit into evidence on appeal the following:

· Statement by Ivan Beverly dated 9 July 2009, and
· Letter from CRS stated 14 July 2009.

EVIDENCE

Mr Hancock’s evidence

Mr Hancock’s evidence is contained in a signed statement dated 31 October 2008. He has worked all his life in manual labouring work. He has no trade qualifications or other academic certificates or achievements. He does not hold a driver’s licence. Prior to October 2005 he does not recall having any problems with either knee. He was employed by the Appellant as a full-time labourer, for about 10 years. His duties were general labouring and stacking of timber and occasionally he operated machinery.

Mr Hancock states that on 31 October 2005 he was stacking timber around 11am. Whilst doing so he turned around and slipped on a small piece of cleat, (a timber off cut). His legs slipped from under him and he landed on his buttocks. He twisted his right knee when he fell and felt pain in the back of his right knee and on both sides of the right knee. The incident was not witnessed.

Mr Hancock claims that he looked for one of three supervisors whom he described as Laurie, Jamie and Darren to report the injury. Jamie and Darren were away, and although he searched for him he was unable to locate Laurie. He stated that he was aware of the procedure for reporting work-related injuries, that is, to report it immediately to a supervisor. He did not do so because he could not find a supervisor and did not believed there was an injury book available at that time in which to record the injury. He spoke to a work colleague, Peter Hyde, and told him what had happened. He kept working and claimed the knee got progressively worse throughout the day.

On 1 November 2005 Mr Hancock spoke to “Jamie” before commencing work and told him what happened the previous day. He stated he had a conversation with “Tom” that day who told him that he would not be covered for workers compensation because the injury was not reported to a supervisor.

Mr Hancock stated that his mother was concerned about his condition and rang his regular general practitioner, Dr Ray Jones, at the Bulgarr Nagaru Aboriginal Medical Service, to make an appointment, but was unable to get an appointment so she arranged in for him to see Dr Gak at the Jacaranda Medical Centre on 4 November 2005. He did not work on 2 and 3 November 2005.

On 4 November 2005 Mr Hancock saw Dr Gak and told him what happened at work. The doctor recommended that he stay off work for a couple of days and provided him with a medical certificate.

Mr Hancock returned to work on 7 November 2005 and undertook normal duties. His knee continued to be sore most days, although some were worse than others and it swelled from time to time, felt weak and partially gave way a number of times.

On 10 May 2006, as a result of a safety meeting conducted by the principal of the Appellant company, Mr Tom Kluvyer, Mr Hancock was asked to complete a questionnaire concerning, inter-alia, any previous injuries. He noted on the form that he had injured his right knee at work the previous year.

From about late 2006 he needed to wear a knee guard or strapping at work. He stated that he wore a black knee guard with a blue insertion. He wore it on and off depending on the level of pain. When that guard became loose he purchased a blue full cover guard which he stated he wore almost daily.

On 8 October 2007 Mr Hancock attended Grafton Base Hospital “because the pain in my right knee had increased”. He stated, “It just came on after work. Nothing else happened at work other than normal walking, lifting etc.” An x-ray and a CT scan of the right knee were performed. The findings are referred to at [72]. On 10 October 2007 he returned to the hospital for an ultrasound of the right knee, but continued working.

On or about 22 January 2008, he alleges that whilst at work, his leg pain got progressively worse throughout the day. That afternoon at home, he assisted his parents and fiancée unload timber from a truck. He stated he was on the ground and some timber would be pushed to the edge of the truck, which he would then carry. He claims that there was no “incident” but the knee continued to swell and ache as it had all day. Mr Hancock denied that he was involved in a fall on that day. The following day his knee was worse. He said he immediately ceased work and again attended at the Grafton Base Hospital, because he was unable to see his own doctor. He was certified unfit for a few days. There are no hospital records in evidence in respect of an attendance on 22 January 2008.

On 24 January 2008 Mr Hancock attended at the hospital to obtain a clearance certificate because his employer had told his mother on 22 January 2008, when she reported her son’s incapacity, that a clearance certificate would be required before he could resume work. Thereafter Mr Hancock returned to work and continued working but took various amounts of time off work without claiming worker’s compensation.

In March 2008, Mr Hancock attended at the home of a colleague, Mr Michael Hindmarsh. He assisted with moving furniture and other items. Present were Mr Hindmarsh, the worker’s father, John Hancock, Tracy Lindsay, Mick O’Shea and Peter Hyde. Mr Hancock stated:

“My father supplied a truck to assist which had a drop down loading tray. He passed a work trolley to me while remaining on the back of the truck to operate the tail lift. Removal of the house contents was an effort of combined strength by all present. The heaviest item, a bar, took four people to lift, but overall the majority of work was simplified by the trolley which took items through the front and back door. The items were then loaded onto the tail lift of the truck which was operated by my father. At one point I was asked to get up on the back of the truck by Michael O’Shea but I told him that I couldn’t, so Michael Hindmarsh got up. I wore a knee guard at all times during this move. The work involved was probably less arduous than the work at East Coast Timbers.”

Towards the end of March 2008, Mr Hancock with his fiancée, parents and other guests attended a housewarming party at Mr Hindmarsh’s new home. The significance of the occasion will become apparent in due course.

Mr Hancock has not worked since 26 March 2008. The first WorkCover medical certificate was issued on 9 May 2008 by Dr Murray Barrel.

Mr Hancock attended on Centrelink on 9 April 2008 as a result of his concern that he may not be able to continue in his employment with the Appellant.

On 18 April 2008 Mr Hancock underwent an x-ray of his right knee at Clarence Valley Imaging arranged by Dr Black a general practitioner from the Bulgarr Ngaru Aboriginal Medical Service. On 21 April 2008 he attended at Grafton Base Hospital due to increasing pain in the right leg. A right leg venous Doppler was undertaken. On 25 April 2008 he again went to Grafton Base Hospital due to swelling and inflammation in the mid-shin area.

Dr Black referred Mr Hancock to Dr Summersell, orthopaedic surgeon, who arranged an MRI of the right knee at Coffs Harbour Radiology on 1 May 2008.

The worker stated that when he initially claimed worker’s compensation he incorrectly stated the date of injury as 4 November 2005 because that was the date on the certificate from Dr Gak. He had forgotten that he had been off work for a number of days before he obtained a clearance from Dr Gak on 4 November 2005 (certifying incapacity to 7 November 2005).

On 23 June 2008 Mr Hancock submitted to a right knee arthroscopic partial medial menisectomy and chondroplasty by Dr Summersell. He was better after the operation but continued to have pain in the right knee which he described as 10 out of 10 with 10 being the worst on a pain scale.

Mr Hancock has undertaken physiotherapy. He was in good health and prior to the alleged injury had no major illnesses. He had not had any other worker’s compensation claims but had suffered a laceration injury to his hand five years ago which required five stitches. He was off work for one day as a result. He has given up playing cricket and golf as a result of his right knee condition.

Mrs Shirley Hancock

Mrs Hancock, the worker’s mother, prepared a signed statement dated 16 October 2008 stating Mr Hancock lives with her and had done so for many years.

On a day in October 2005, which she now believed to be 31 October 2005, Mrs Hancock picked up Mr Hancock from work. She noticed he was limping and asked what happened. In response Mr Hancock said “I slipped on a cleat and twisted my knee. I couldn’t find any of the bosses so I told Peter Hyde about it”.

Mrs Hancock insisted her son see a doctor but was unable to arrange an appointment with the doctor in Grafton. She said “Daniel just sat around at home for a few days with his knee up”. In due course she arranged for him to see Dr Gak at the Jacaranda Medical Centre. Mr Hancock saw Dr Gak on 4 November 2005 to obtain a doctor’s certificate to clear him fit to resume work.

Mrs Hancock was present during the examination by Dr Gak. She stated that Mr Hancock told the doctor “he had slipped on a piece of cleat on the floor which made his right foot go forward like the splits and he just went down on his buttocks.”

She recalled Mr Hancock wearing a knee guard most days and would come home from work limping. Some days were worse than others. Mr Hancock regularly complained to her about his knee. He saw a doctor from time to time and had some time off work over the next few years.

Mrs Hancock stated that Mr Hancock continued to work around the house but regularly limped. Her husband and some friends did most of the work around the house. Registered tradesmen did all of the trade work.

On 23 January 2008 Mr Hancock got up to go to work but was unable to put pressure on his leg. In late March 2008 Mrs Hancock attended a housewarming party at Michael Hindmarsh’s home. On that occasion she spoke to Peter Hyde about Mr Hancock’s injury. She stated, “I asked about workers compensation. He said words to the effect ‘I recall Daniel speaking to me about his knee but it was a long time ago’”.

In so far as the incident in January 2008 is concerned, Mrs Hancock stated that her husband borrowed a truck to bring home timber from building work being undertaken on their home. She stated that her husband and Mr Hancock’s fiancée, Sarah, placed the timbers on the side of the truck and Mr Hancock and his mother lifted them and stacked them on the ground. She noticed a short time later Mr Hancock’s knee became painful. He was unable to assist any further after that.

Peter Hyde

Mr Hyde provided a statement dated 28 May 2008. He has been employed by the Appellant as a kiln operator for 14 years.

Mr Hyde has known Mr Hancock since he started working for the Appellant in around 1998. He stated they are good friends both in and out of work. He recalled a couple of years ago, although unable to recall the date, walking past Mr Hancock in the packing room where Mr Hancock was rubbing his knee. He could not recall which knee. He recalled being told by Mr Hancock, that he had slipped on some timber on the floor, but was okay. Mr Hancock continued working and nothing more was said about the matter. Mr Hyde was unable to recall whether they were working on decking or flooring or which part of the knee Mr Hancock rubbed. He did not witness the incident.

Since that incident Mr Hancock never mentioned the injury again although Mr Hyde did see him wearing a guard on his knee on occasions.

Around the end of March 2008, Mr Hyde was present at Michael Hindmarsh’s house to help him move. Mr Hancock helped move all the heavy items down the stairs including large fridges and furniture. He also assisted three others to move a “really heavy” bar. Soon afterwards at a social function, Mr Hyde had a conversation with Mrs Hancock, where she brought up the alleged injury. He stated:

“I didn’t pay much attention to her, she mentioned something about East Coast looking after Dan. She rambled on a bit and I thought she was fishing for something.”

Mr Hyde also stated:

“in the past two and a half years Dan has not mention any injury to his knee to me and hasn’t really shown any signs of an injury. I would see him with a wrist or knee guard on occasionally but it never affected his work”.

Mr Hyde also provided a brief hand written statement dated 24 April 2008. Its terms are consistent with the statement referred to in the preceding paragraphs.

Michael Hindmarsh

Mr Hindmarsh is employed by the Appellant as a labourer and has been so employed for just over two years. He stated that since being employed at East Coast Timber he had come to know Daniel Hancock very well and they are good friends.

In the past two and a half years Mr Hindmarsh was not aware of any knee injury suffered by Mr Hancock. Mr Hindmarsh stated, “I know a few months ago in late January or February 2008 he saw a doctor but I thought it was for gout. I did see him wearing a knee guard on occasions around February”.

Mr Hindmarsh went on to state:

“At the end of March 2008 just before Easter I moved house. Daniel came and helped me move all my household items including fridges, beds and furniture. Daniel also help me carry a large fridge down my steps which are steep and being about four or five steps to it. All the furniture came down the steps which Daniel helped. At no time did he complain of any injury or shows signs of any injury to his knee.”

Mr Hindmarsh stated that he was aware that about 12 months ago Mr Hancock’s home burned down. The house had been rebuilt, and to Hindmarsh’s knowledge, Mr Hancock and his parents were doing a lot of the building work themselves.

Medical and other evidence

On 4 November 2005 Mr Hancock was seen by general practitioner Dr Gak, at the Jacaranda Medical Centre in Grafton. The only diagnosis offered by Dr Gak was “R knee injury.” He provided a medical certificate (not a WorkCover certificate) certifying Mr Hancock incapacitated from 4 to 7 November 2005.

Mr Hancock presented at Grafton Base Hospital on 8 October 2007. The hospital notes record the following history:

“pain right knee unable to bear weight had injury two years ago while working at Timber Mills had pain and swelling after that which settled later. Was walking a lot last few days while at work. Pain started with swelling and unable to bear weight ...”. (emphasis added)

X-rays of the right knee taken at Grafton Base Hospital on 8 October 2007 showed knee joint effusion and ossification at the insertion of the quadriceps tendon into the right patella. A CT scan taken on the same day was suggestive of a ganglion cyst. No fracture or bony lesions were detected and an MRI was suggested. An ultrasound performed on 10 October 2007 demonstrated a hypodense mass suggestive of a ganglion.

Mr Hancock presented at Grafton Base Hospital on 10 October 2007. Only a brief history was obtained which was recorded as “knee pain – injury” the remaining entries in the hospital clinical notes refer to the previous radiological examinations. An ultrasound was recommended and referral to a local medical officer. On the same date a handwritten note was prepared on the letterhead of the Grafton Base Hospital which was signed “Alistair” whom I assume is a doctor in the emergency department. The letter was addressed to Mr Hancock’s local medical officer. It referred to the radiology performed on 8 October 2007 and to the ultrasound taken at hospital and concluded that the diagnosis was “highly likely to be a ganglion”.

Mr Hancock again presented at Grafton Base Hospital on Thursday 24 January 2008 to request a clearance to return to work. The clinical notes contain the following extract:

“Hx of Ganglion cyst on popliteal fossa – awaiting Orthopeadic consult with Dr Summersell - related to injury 2yrs ago - aggravated it on Tuesday when twisted knee and pain in the popliteal region - much better now”. (emphasis added)

Dr Murray Barrell from the Bulgarr Ngaru Aboriginal Medical Service issued a non WorkCover medical certificate certifying Mr Hancock unfit to work from 26 March 2008 to 4 April 2008. No diagnosis, or reasons for the certificate were given. Dr Andrew Black from the same medical service provided medical certificates from 7 to 13 April 2008, and from 14 to 28 April 2008.

On 26 March 2008 Dr Fran Newman performed an ultrasound examination of the right knee. On examination there was tenderness over the medial joint space. A clear effusion and a small Baker’s cyst was noted. There was a possibility of cartilage injury or cruciate injury. An MRI or arthroscopy was recommended.

On 14 April 2008 Dr Black wrote to the Community Health Centre in Grafton stating:

“Thank you for seeing Daniel age 33 yrs, for and opinion and management. He has a right knee instability after injury 3 years ago. This flared up about 1 month ago. A recent US was unremarkable apart from a joint effusion and a small Bakers cyst. Unfortunately he had a second fall last week with extensive soft tissue swelling. He has orthopaedic review on the 5th May.” (emphasis added)

Dr Newman took further x-rays of the right knee and leg on 18 April 2008. She reported considerable soft tissue swelling in the medial aspect of the proximal tibia. No bony injury was detected. There was joint effusion. Ossification was noted in the insertion of the suprapatella tendon but no patella fracture was seen.

On 21 April 2008 Mr Hancock again presented at Grafton Base Hospital. The presenting problem was recorded as “swollen R lower leg, HX of seeing Dr Black 3/7 ago been taking NSAIDS today increasing pain swelling seems worse”. The history obtained on this occasion, in triage, at 2:19 pm stated:

“multiple problem [with] R knee/proximal leg for specialist RV in 2/52. Aggravated recently by two days ‘sanding’ @ home-on knees ® swelling medial upper leg. Has had XR and US 2/52 ago but past 48 hrsswelling of entire the leg”

During the same visit to the hospital at 4:35 pm under the heading “presentation history” the clinical notes state “swollen R lower leg + R foot 1/52 C/O pain R lower leg radiating R knee. HX fall 3/52. S/B GP for same.” (emphasis added)

Also on 21 April 2008 Dr R Singh performed a right leg venous Doppler. He noted “Partly anechoic material is present along the medial aspect of the distal thigh and proximal calf. Overlying soft tissue swelling was also present”. He was uncertain whether this represented intramuscular haematoma related to a muscular tear, a popliteal cyst rupture, or an abscess.

On 25 April 2008 Mr Hancock attended at the Grafton Based Hospital complaining of right lower leg swelling and an inflamed area mid shin. The differential diagnoses made were “ruptured baker’s cyst ? Haematoma”.

The first WorkCover medical certificate was issued by Dr Barrell on 9 May 2008. It recorded a history of slipping on a timber cleat with right leg extended forwards landing on buttocks. The diagnosis indicated “Tibial plateau crush injury”. It certified Mr Hancock unfit from 31 May 2008 to 31 August 2008. Further certificates were issued by Dr Barrell certifying incapacity between the 1 September 2008 and 31 October 2008.

Dr Barrell referred Mr Hancock to an orthopaedic surgeon, Dr Peter Summersell. In a report to Dr Barrell of 29 April 2008, Dr Summersell noted Mr Hancock told him he had injured his knee at work three years ago, when “he slipped over when he stepped over some timber and stood on another piece of timber”. He said that there was swelling in the knee which increased over the day and he recalled having three days off work. He stated that the knee had not been right since. The pain was intermittent, he had more bad days than good days. Dr Summersell declined to give a diagnosis pending x-rays and an MRI.

On 1 May 2008 Dr James Christie performed a right knee MRI. He recorded the history as “right knee pain and swelling since injury three years ago ? Cause.” He concluded “medial compartment OA change with osteochondral injury. Unusual soft tissue swelling superior and inferior to the knee joint on the medial side. The nature of this is uncertain.”

On 6 May 2008 Dr Summersell reported again to Dr Barrell following a review of the MRI scan. He diagnosed a “medial meniscal tear and articular surface injury, soft tissue injury”. He went on to add:

“I suspect the subcutaneous changes are present due to a recent fall that Daniel had due to the instability of his knee ... Daniel feels that the injury had about three years ago is responsible for the current condition of his knee. If approval is given from his work insurance, and arthroscopy will occur at a private hospital. If approval isn’t given the surgery will occur at a public hospital” (emphasis added)

On the same day (6 May 2008) Dr Summersell wrote a second report to Dr Barrell which is almost in identical terms except in respect of his opinion as to causation. He deleted the sentence “Daniel feels that the injury he had about three years ago is responsible for the current condition of his knee” and substituted “I think the injury that Daniel had about three years ago is responsible for the current condition of his knee.” (emphasis added)

Mr Hancock completed the employee’s report of injury form on 12 May 2008. It stated that he slipped on a small piece of cleat causing him to slip forward landing on his buttocks. The employer’s report of injury is dated 5 May 2008 and was completed by Tom Kluyver, manager. No injury details were included but attached was a copy of Mr Hancock’s statement dated 28 May 2008.

Dr Summersell prepared a report to QBE dated 20 May 2008 in response to a series of questions put to him. In response to the question:

“Do you consider that Daniel has suffered an aggravation” he said:
“When I initially saw him he was suffering an aggravation due to a recent fall that he feels occurred due to instability that had been bothering him since an injury, he stated to me, occurred at work three years ago”.

In answer to a further question regarding causation Dr Summersell said:

“David [sic, Daniel] relates his current knee problems to injury he believes he had at work about three years ago, I did not assess him at that time. If the initial injury did in fact occur at work three years ago then it would be a substantial contributing factor to his current knee problems.” ( emphasis added)

On 23 June 2008 Dr Summersell performed a right knee arthroscopic partial medial menisectomy and chondroplasty. His operation notes record:

“large anteromedial plica encroaching on patfem joint - plica removed complex tear of anterior horn of medial meniscus - mobile portions removed - longitudinal injury in medial femoral condyle weight bearing surface, fissure with edge full thickness delamination, 3 main areas involved consisting of about 20% of the distal medial condyle articulating surface, mobile portions removed, bone microfracture collateral meniscus intact, grade 1 changes lateral tibial plateau, lateral femoral condyle impact -multiple small areas of white deposit present, specimens sent joint washed out, local, interrutped nylon to skin, TED stocking”

Dr Summersell prepared a report addressed to Dr Barrell on 9 September 2008. He reported Mr Hancock said:

“The knee has been sore today as he went the wrong way on the knee and twisted the knee causing him to fall over. He had been going along okay until this last episode with only an intermittent sensation of instability.”

East Coast Timber Products Pty Ltd’s Evidence

The Appellant’s Reply filed 4 January 2009 contained, inter alia, a statement of Mr Hancock and of the number of lay witnesses which I shall summarise below.

Mr Hancock

Mr Hancock’s statement is dated 28 May 2008. The history of injury record is consistent with that contained in his statement of 31 October 2008. He stated he did not report his injury over the past two and a half years because he was concerned about losing his job. He thought he had suffered a strain or a sprain and continued on, but over the years it got worse. He conceded that he had helped Mr Hindmarsh move furniture and other items around March 2008 but denied that it affected his knee. He conceded that he was familiar with the procedures for reporting work-related injuries but did not do so because he could not find a supervisor to report it to at the time, and he did not believe that there was a book in which to record the injury.

Thomas Kluyver

Mr Kluyver provided a statement dated 28 May 2008. Mr Kluyver was the owner of East Coast Timber Products Pty Ltd from 1994 until the company was sold in 2004, however, he stayed on as general manager. Mr Kluyver stated that Mr Hancock was well aware of the procedures for reporting any injuries to management. There were other injuries which Mr Hancock had reported and he had previously provided medical certificates for work-related absences.

On 21 April 2008, Peter Hyde reported to him a conversation he had had with Mrs Hancock at a social function regarding the alleged injury to Mr Hancock’s knee. Mr Kluyver stated Mrs Hancock came to the workplace on 24 April 2008 and provided a medical certificate. When asked about the alleged injury Mrs Hancock told him to speak to Peter Hyde about it. Mr Kluyver stated:

“I then spoke to Peter Hyde and (sic, an) employee and Peter stated Mrs Hancock had brought up a conversation at the party on the previous Sunday and did he remember Dan hurting his knee that day. Peter recalled at some time Dan had rubbed his knee and continued working but was unsure when this was. Peter stated he never reported anything as there was no injury as such and Dan just rubbed his knee. Peter could not say when this was.”

Mr Kluyver stated that Mr Hancock went off sick on Wednesday 23 January 2008. Mr Hancock called Jamie Ferguson, the supervisor, and told him that he injured himself at home and had a sore knee. This was recorded in Jamie’s diary. On 24 January 2008 the Appellant was provided with a certificate for light duties until 10 February 2008. The certificate is not in evidence. It was delivered by hand. There was no mention of a work-related injury. Mr Hancock returned to work and on 26 March 2008 a medical certificate was received and sick pay was paid until 4 April 2008. Again there was no mention of a work-related injury.

At paragraph 23 of his statement Mr Kluyver stated:

“On the 1^st May, 2008 I had a conversation with Mrs Hancock, Daniel’s mother regarding his knee injury at home on the 22^nd January, 2008. Mrs Hancock said ‘The builder asked Dan to help him and he hurt his knee in doing that.’”

At paragraph 24 Mr Kluyver stated:
“Also on 9^th April, 2008 Mrs Hancock, Daniel’s mother dropped in a centrelink form for us to fill out. There were still no mention of a work related injury. This form was filled in by me stating it was not a work related injury and the form was returned to centrelink.”
Mr Kluyver stated that at no time in the past two and a half years had Daniel made any mention of a work related injury to his knee or reported any injury.

Mr Kluyver was contacted by telephone by an investigator retained by QBE insurance, Ms Julie Patston, on or about 30 January 2009. The investigator informed Mr Kluyver that an error had occurred with respect to the alleged date of injury. Mr Kluyver advised that he had retired and was reluctant to become further involved in the matter.

Jamie Ferguson

Mr Ferguson provided a statement dated 28 May 2008. He was employed as a supervisor and auditor with East Coast Timber Products from September 1994 to 7 April 2008. He directly supervised Daniel Hancock. Mr Ferguson’s duties required him to go into the yard several times a day where Mr Hancock worked. Mr Hancock also came to his office throughout the day with tally sheets and would walk past him to fill in his timesheet.

On 4 November 2005 Mr Ferguson was undertaking his normal duties and at no time did Mr Hancock attend or advise him of any injury to his knee. He stated that if an injury had occurred it would have been reported to him. He further stated that over the past two and a half years Mr Hancock has never reported the incident or injuries to his knees. He had reported injuries regarding his wrists and ankles. Mr Ferguson had never seen Mr Hancock show any signs of a knee injury, he had never limped or favoured his knee. He stated that all staff were instructed on reporting injuries as part of their induction.

On 22 January 2008 Mr Ferguson received a telephone call from Mr Hancock in which Mr Hancock said “I have hurt my knee from unloading bearers and joists at home.” Mr Ferguson made a diary note of the conversation and informed Mr Kluyver. Attached to Mr Ferguson statement is a diary entry for 22 January 2008 stating “Dan sore knee injured at home”.

Mr Ferguson made a further statement on 30 January 2009. Having been informed by an investigator Julie Patston that the alleged date of injury was not 4 November 2005 but was in fact 31 October 2005, Mr Ferguson stated that he did not recall Mr Hancock suffering a knee injury on 31 October 2005. He did not recall seeing any visible injury on that date. He stated that it is more than likely that the work being completed on 31 October 2005 would have been the same as the work on 4 November 2005.

Lawrence Leach

Mr Leach provided a statement dated 28 May 2008. He is employed by East Coast Timber Products Pty Ltd as a supervisor and wood machinist. He worked about 20 metres from where Mr Hancock worked stacking timbers and was his direct supervisor.

Mr Leach stated that on 4 November 2005 he was attending to his normal duties and no time during the day did Mr Hancock report injury to his knees. He also said that over the past two years Mr Hancock never mentioned an injury to his knees or showed signs of any injuries. As supervisor, he told Mr Hancock and other staff, that all injuries, no matter how small were to be reported to him or management.

Mr Leach made a further statement dated 30 January 2009 after he was informed that the alleged date of injury had been corrected from 4 November 2005 to 31 October 2005. Mr Leach stated that 31 October 2005 was his birthday and he worked that day. He stated that he had no knowledge of Mr Hancock sustaining an injury to his knee on that date. He further stated that he did not recall Mr Hancock sustaining any injury whilst working for East Coast Timber Products.

Darren Finlay

Mr Finlay’s statement is dated 28 May 2008. He is employed as the office administrator for the Appellant. On 4 November 2005 he was performing normal duties. His desk is located at the front of the office and staff walk past him several times a day to get tallies from either him or Jamie Ferguson.

Mr Finlay had known Mr Hancock since he commenced working for the Appellant. On 4 November 2005, Mr Hancock would have walked passed many times during the day, with his tally sheet and also to fill in his timesheet. He stated that he had not witnessed or been told of any injury suffered by Mr Hancock on 4 November 2005, or at any time in the past two and a half years. During that period he had had numerous conversations with Mr Hancock both about work, and in general, and Mr Hancock never mentioned any injury to his knee.

The transcript of a telephone conversation between investigator, Julie Patston, and Darren Finlay dated 30 January 2009 was admitted into evidence. Mr Finlay was informed that an error had occurred with respect to the alleged date of injury informing him that Mr Hancock now alleges the injury occurred on 31 October 2005 not 4 November 2005. Mr Finlay denied any knowledge of a knee injury suffered by Mr Hancock, stating he never saw any indication of a knee injury.

Michael O’Shea

Mr O’Shea provided a statement dated 28 May 2008. He is employed by the Appellant as a machine operator and has been so employed for two years. He has known Mr Hancock since he commenced work. He and Mr Hancock had become friends both in and out of work.

Mr O’Shea stated that during the time he has known Mr Hancock he had never known him to have a knee injury. Mr O’Shea further stated that he had seen Mr Hancock hobble about at work a few times, which he thought was gout because he drank a lot and was overweight. Mr Hancock never mentioned any injury. Mr Hancock told him in general conversation that from time to time, whilst drunk he had fallen over.

At paragraph 9 of his statement Mr O’Shea stated:

“Around the end of March, 2008 I went to Michael Hindmarsh’s move house. Daniel and his father, Peter Hyde and I were there. We all got in and move heavy furniture including fridges, lounges and cupboards. Daniel did a lot of heavy lifting including things I couldn't lift. At no time did he appear to have an injury.”

Mr O’Shea stated that he was aware of Mr Hancock’s workers compensation claim but to his recollection Mr Hancock had never mentioned any injury to him or any other staff member.

Allen Martin

Mr Martin provided a signed statement of evidence dated 28 May 2008. At the time of making his statement he had been employed by East Coast Timber Products for seven years. He worked with Mr Hancock in the same area sanding timber. They usually worked no more than five to ten metres apart.

Mr Martin did not recall Mr Hancock mentioning any injury on 4 November 2005 and stated:

“…and nothing grabbed my attention to draw me into any injury…I work alongside Daniel all the time and the past two and a half years we always talk and he never mentioned any injury to his knee or other injuries in this time. If there was an injury I and other staff are aware that it has to be reported to management and the matter recorded.”

Mr Martin made a further statement dated 30 January 2009. This statement was made after he was made aware that the alleged date of injury was 31 October 2005 not 4 November 2005. Mr Martin stated that he had no knowledge of an injury sustained by Mr Hancock on 31 October 2005. He had no knowledge of any such matter being reported as an injury, and he did not see any visible injury to Mr Hancock including his right knee. He confirmed that the work undertaken on 31 October 2005 would have been the same as that undertaken on 4 November 2005.

Stuart Austin

Mr Austin provided a signed statement of evidence dated 30 January 2009. He is employed by East Coast Timber Products as a Manager. He has held the position since August 2008. Mr Austin annexed time and pay sheets that demonstrate that Jamie Ferguson, Daniel Hancock, Peter Hyde, Lawrence Leach, Darren Finlay and Alan Martin were on duty on 31 October 2005.

ARBITRATOR’S FINDINGS

The Arbitrator found that Mr Hancock suffered an injury at work on 31 October 2005. The Arbitrator was persuaded by the evidence of Mr Hancock and his co-worker Peter Hyde. The Arbitrator noted in particular Mr Hyde’s evidence that he saw Mr Hancock rubbing his knee and recalled being told by Mr Hancock that he had slipped on some timber on the floor but was okay.

The Arbitrator noted that notwithstanding the injury had not been reported to his employer, Mr Hancock told his mother what had occurred and saw a doctor as soon as he could. Notwithstanding the significant lay evidence that there had never been any mention by the worker of a knee injury in the circumstances alleged, the Arbitrator accepted that the injury did occur and that Mr Hancock failed to report it as he was afraid for his job security.

After considering the lay and medical evidence the Arbitrator accepted the worker’s evidence and was persuaded by the medical evidence, particularly from Dr Summersell. The Arbitrator was satisfied on the balance of probabilities that as a consequence of the work injury on 31 October 2005, Mr Hancock sustained an injury to his knee which resulted in a medial meniscus tear and cruciate injury (Reasons [47]). The Arbitrator found that there was sufficient evidence to satisfy him that the worker’s condition was causally connected to the fall on 31 October 2005. He found that the injury to the right knee arose out of and in the course of his employment with the Appellant and that his current condition was a consequence of that injury.

The Arbitrator found that Mr Hancock was totally incapacitated from 23 March 2008 to 20 September 2008. Although Mr Hancock had been certified fit for suitable duties, the Arbitrator considered his age, education and work history and found that there was no evidence that he has any practical realistic prospect of obtaining sedentary employment or alternative employment. In those circumstances the Arbitrator found that Mr Hancock’s ability to earn is nil. He awarded him compensation at the maximum amount payable under section 37 of the 1987 Act from 21 September 2008 to date and continuing.

SUBMISSIONS

Appellant’s Submissions

The Appellant submits:

(a)given the Commission’s processes and time allocation for the conciliation and arbitration process, no adverse inference should be drawn from the failure to cross-examine Mr Hancock, his mother Shirley Hancock or Michael Hyde;

(b)the Appellant employer is entitled to ask the Commission to draw an adverse inference against the worker in respect of those factual matters important to the issues between the parties that are absent from the statements relied upon by the worker and inconsistent with the contemporaneous medical records;

(c)the worker’s failure to provide any evidence/explanation as to the matters recorded the medical histories from the Bulgar Ngaru Aboriginal Medical Centre documents (filed late at the arbitration) and the Grafton Base Hospital (also filed late at arbitration) can be relied upon by the employer to establish that the worker sustained subsequently an unrelated injury to his right knee after leaving work on 25 March 2008;

(d)the fact that the worker never made any report of injury (alleged on 31 October 2005) before 12 May 2008 was not given sufficient weight in determining whether the worker hurt his knee in a fall at work on 31 October 2005;

(e)failure to report the injury was raised in the section 74 notices dated 5 June 2008 and 25 November 2008;

(f)the employer was prejudiced in investigating the worker’s claim of injury reported on 12 May 2008 as having occurred on 4 November 2005, which the worker later amended to 31 October 2005 causing further prejudice to the employer in its investigations;

(g)a disproportionate amount of weight has been given to the evidence of the worker and Peter Hyde concerning continuing complaints after 31 October 2005, having regard to the whole of the evidence;

(h)the recollections of Peter Hyde are unreliable. He had no recollection of Mr Hancock’s injury until questioned by his mother at a social function in April 2008;

(i)the attempt by Mrs Hancock to have Peter Hyde recall a work-related incident coincided with Mr Hancock’s need for medical treatment at Grafton Base Hospital on 21 April 2008;

(j)there is no contemporaneous record of any complaint of injury by the worker to supervisors or fellow employees;

(k)the only contemporaneous record of injury is found in the worker’s statement and his mother’s statement, neither of which record any reason for Mr Hancock ceasing work on 25 March 2008, nor do they contain any explanation for the worker seeking treatment from Dr Barrell on 26 March 2008, 3 April 2008 or 14 April 2008;

(l)the statements of Mr Hancock and his mother are unreliable because they do not contain any history of injury after 25 March 2008 when there is clear medical evidence that Mr Hancock sustained injury by way of a “fall” (report of Dr Black 14 April 2008) and following “two days sanding at home on his knees” (Grafton Base Hospital records 21 April 2008);

(m)the weight of evidence is against a finding of injury to the right knee on 31 October 2005 sufficient to cause incapacity up to 25 March 2008. Any incapacity found has been caused by “novus actus” on 25 March 2008 and 20 April 2008;

(n)in the absence of any report of injury the Commission should draw an inference that the incapacity complained of on 26 March 2008 is unrelated to employment with the Appellant;

(o)Mr Hancock told Jamie Ferguson on 22 January 2008, he had hurt his knee at home on 22 January 2008 after loading bearers and joists;

(p)Mr Hancock gave no evidence concerning the fall reported to Dr Andrew Black said to have occurred on about 7 April 2008. The Appellant submits that this is because the fall occurred in circumstances unrelated to the alleged injury on 31 October 2005;

(q)the absence of any explanation for the history contained in the Grafton Base Hospital clinical notes for 21 April 2008 is a deliberate attempt to avoid the obvious implication of a “novus actus”;

(r)the reports from the treating specialist Dr Summersell contain no history of a “fall” or a “second fall” or “two days sanding on knees” even though Mr Hancock first presented to Dr Summersell only seven days after presenting at the Grafton Base Hospital, reporting multiple problems in the right knee aggravated by two days sanding at home. It is submitted that these histories were deliberately withheld and explain Dr Summersell’s confusion and inability to reach a diagnosis;

(s)on 6 May 2008 Dr Summersell wrote two reports to Dr Barrell. In the first report, Dr Summersell in dealing with the question of causation said “Daniel feels that the injury he had about three years ago is responsible for the current condition of his knee”. In the further report, presumably written later, he expressed the opinion “I think the injury Daniel had about three years ago is responsible for the current condition of his knee.” It is submitted that Dr Summersell’s opinion has been influenced by the possibility of private hospital cover for the operative procedure recommended, and

(t)the worker has undergone surgery to his left (sic, right) knee and subsequent to a period of rehabilitation has been certified fit suitable duties but has given no evidence of any job seeking activities.

(u)Mr Hancock is capable of obtaining suitable employment. It is unrealistic to suggest that he is unemployable in a regional centre of Grafton with a population of 17,100 people.

Mr Hancock’s Submissions

The Respondent’s submits:

(a)The Appellant asked the Commission to draw an adverse inference in respect of those factual matters, important to the issues between the parties, that are absent from the statements relied upon by the worker and are inconsistent with a contemporaneous record. However, it did not put any lay or medical evidence to enable a conclusion contrary to the finding of ongoing causal effect of the injury sustained on 31 October 2005;

(b)whilst the Arbitrator noted the absence of evidence of complaints “to some people at the workplace” he correctly accepted Mr Hancock’s evidence on the issue of injury resulting in the need for medical treatment and the subsequent incapacity;

(c)evidence placed before the Arbitrator was not challenged by other direct evidence or by cross-examination. There was no need for the Arbitrator to draw adverse inferences to conclude on matters of fact in favour of Mr Hancock, as he did;

(d)Mr Hancock provided evidence of ongoing knee swelling, pain and instability and falls between 2006 and 2008. This evidence is supported by Mrs Hancock, Mr Hyde and to some extent Mr O’Shea and is consistent with the medical histories provided in 2007 and 2008.

(e)Mr Hancock does not concede that he failed to report injury at the time or within days thereafter but does concede that there was no formal recording of the injury;

(f)there was a verbal report of injury to Jamie Ferguson and an attempt was made to formally report the injury;

(g)oral notice is sufficient notice of injury and oral notice was given;

(h)the notice of injury was given in the questionnaire dated 10 May 2006 and any prejudice to the employer should be assessed as at that date;

(i)aside from the statutory issue under section 254 of the 1998 Act, the absence or otherwise of a report of injury is but one small factor relevant to determining injury. The balance of the evidence supports a finding in favour of Mr Hancock in relation to injury;

(j)to the extent that the absence of notice of injury is a statutory bar under section 254 of the 1998 Act to recovering compensation, the Employer is estopped from relying upon it as the issue was waived by the employer at the arbitration hearing;

(k)the positive evidence of the direct complaints of injury is more powerful than the neutral evidence of a number of witnesses as to the absence of complaints. More weight should attach to the positive evidence of a report of injury. A finding against the Appellant’s interests in respect of injury does not disclose a “disproportionate amount of weight” it merely recognises and weighs it against positive evidence.

(l)the employer’s criticism of Mr Hyde should be seen in the context of a deliberate decision not to test his evidence or any other evidence;

(m)the proximity of dates of the housewarming party and the conversation between Shirley Hancock and Mr Hyde is immaterial. For it to have any force, the Commission would need to infer Mr Hancock had no recollection of the worker’s fall. This is contrary to his evidence at [10] of his statement of 28 May 2008, therefore the inference is unavailable;

(n)the Appellant’s submissions focus on social activities with co-workers in March 2008 and the histories in hospital notes in April 2008. These must be read in context with the lay evidence of Mr and Mrs Hancock, Mr Hyde and Mr O’Shea and as recorded by the treating doctors of ongoing instability of the knee and a number of falls, including hospital visits on 8 and 10 October 2007 and 24 January 2008. All such histories related the symptoms (including subsequent falls and pain) to the fall at work. These reports and notes were attached to the ARD filed by Mr Hancock, so there can be no criticism for failing to disclose these matters to allow the Appellant to cross-examine and to seek medico legal opinion on them;

(o)the submission that incapacity after 25 March 2008 was caused by a “novus actus” is made without medical evidence to support it notwithstanding the worker’s examination by Dr Bodel for the employer on 15 January 2009;

(p)there is evidence of ongoing complaints by Mr Hancock ongoing observation of swelling and limping by Mrs Hancock and ongoing rubbing of the knee and limping by Messrs Hyde and O’Shea. His condition was sufficiently troublesome for Mr Hancock to record his knee injury on an OH&S questionnaire on 10 May 2006. There are references to “falls 2 years ago” and “fall three years ago” respectively in the notes of the doctors and hospital in October 2007, well prior to March 2008;

(q)a “novus actus” presupposes that there was a work related injury, only to be broken by unspecified events constituted by non work related injuries on 25 March 2008 and 20 April 2008. It is submitted that once the worker’s case on causation is established the onus shifts to the Appellant to adduce evidence on the issue, (Pukess v Crittenden (865) 114 CLR 164). No lay or medical evidence of such injuries was adduced, and there was no cross-examination;

(r)criticism of the evidence of Dr Summersell is misplaced in the absence of contrary evidence, or exposing the opinion of Dr Bodel or any application to cross-examine the doctor. “In any event, there may, for the purpose of causation (in the context of the statutory definition of ‘injury’) be multiple causes: Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 7 per Deane, Toohey and Gaudron JJ;”

(s)the only medical evidence relating to the period post 1 October 2008 are the opinions of Drs Barrell and Summersell and physiotherapist Andrew Weatherstone. These certify significant restrictions in physical activities on a worker who is only capable of using his physical attributes to earn, having no other educational qualifications or trade;

(t)Dr Summersell (report 28 October 2008) endorsed Mr Hancock’s plan to change his line of work to an occupation where he could sit most of the time. Dr Barrell (certificate 27 January 2009) stated he would be very surprised if Mr Hancock ever worked as a manual labourer again;

(u)reliance is placed on the observations of DP Roche in Wilson v Warrigal Care Ltd (2007 NSWWCCPD 108 at [71] concerning the relevant considerations when assessing the capacity to earn. (I have had regard to Mr Hancock’s submissions on the application of section 43A but I do not reproduce them);

(v)the Commission is a specialist tribunal and has specialist knowledge of labour market conditions (Akawa Australia Pty Ltd v Cassells (1995) 25 NSWCCR 385: J & H Timbers Pty Ltd v Nelson [1972] HCA 12; (1972)126 CLR 65). Moreover the Arbitrator is based in the Northern Rivers area and could be expected to have more local knowledge that the Commission generally;

(w)the Arbitrator correctly applied the principles espoused by DP Roche in Ecowize North Pty Ltd v Ballard [2007] NSWWCCPD 179. The absence of an explicit reference to section 43A is not sufficient to warrant disturbing the decision, and

(x)the section 74 notice did not raise section 38A or the issue of job searching and was therefore not addressed in the worker’s case. The employer’s denial of liability has inhibited access to rehabilitation services. His termination of employment essentially prevented the worker from seeking suitable duties from the Appellant.

DISCUSSION AND FINDINGS

Did Mr Hancock suffer injury as alleged on 31 October 2005?

Whether Mr Hancock was injured in the circumstances alleged is not a simple question. There is a significant body of evidence both for and against a finding that he suffered an injury to his right knee in the course of his employment with the Appellant on 31 October 2005.

There is of course the worker’s own evidence, on which he has not been cross-examined, that he slipped on a timber cleat and landed on his buttocks, and in the process twisted his knee.

Mr Hancock’s version of events is supported by Mr Hyde who saw Mr Hancock rubbing his knee at about the time he alleges he was injured. Mr Hyde confirmed that Mr Hancock told him he had injured his knee in the circumstances he now alleges.

His evidence is further corroborated by the evidence of Mrs Hancock, the worker’s mother, who collected Mr Hancock from work on the day of the alleged accident. She saw him limping. When she asked what had happened Mr Hancock told her he had slipped on a cleat and twisted his knee.

The injury was not reported. Mr Hancock claims it was because he couldn’t find anybody in authority to whom to report the injury. I do not accept his explanation for failing to report the accident. He could have reported it to Mr Ferguson, Mr Leech or Mr Finlay, all of them were at work on the day and were accessible to Mr Hancock, had he attempted to report the accident. Nor do I accept his explanation that he did not subsequently report the accident for fear of losing his job. That had not prevented him from reporting other injuries.

I note that the Appellant does not rely on the absence of notice as a statutory bar to recovering compensation under section 254 of the 1998 Act, but does rely on the failure to give notice in terms of the weight to be attached to the workers evidence and the prejudice to the employer in its investigations.

Mr Hancock sought treatment from Dr Gak on 4 November 2005, within days of the alleged accident. Dr Gak’s medical certificate issued on 4 November 2005 confirmed an injury to the right knee and certified Mr Hancock fit to return to work on 7 November 2005. Dr Gak issued no further certificates.

Against a finding that Mr Hancock was injured, as alleged, is the evidence from a number of his colleagues including Messrs Ferguson, Leech, Finlay, O’Shea and Hindmarsh to the effect that they were unaware that Mr Hancock had ever suffered an injury to his knee during the course of employment with the Appellant. The Appellant relies on this evidence in support of the submission that a disproportionate amount of weight was given to the evidence of Mr Hyde. Mr Hyde was working in close proximity to Mr Hancock when the alleged injury occurred. He has given direct evidence of a contemporaneous report of the injury by Mr Hancock.

Whilst the matter is not free from doubt, there is force in the Mr Hancock’s submission that the direct complaints of injury are more powerful than the neutral evidence of a number of witnesses as to the absence of complaints. Therefore, as to the circumstances of the injury, I prefer the evidence of Mr Hancock, Mrs Hancock and Mr Hyde.

I am satisfied on balance, the Arbitrator was correct to find that Mr Hancock injured his right knee when he slipped and fell in the course of his employment on 31 October 2005. I agree with that finding.

The nature and extent of the injury is discussed below.

Is incapacity after 6 March 2008 causally related to the injury sustained on 31 October 2005?

In cases where causation is in issue each case must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. Notions of proximate cause by use of the phrase “results from” are no longer accepted. What is required is a commonsense and evaluation of the causal chain, per Kirby J in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452: (1994) 10 NSWCCR 796 (‘Kooragang’). His Honour said at [464 B]:

“A point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection.”

The worker’s evidence that he continued to suffer from problems with his right knee after the injury in October 2005 (see Mr Hancock’s statement at paragraphs 19, 25, 26 & 44) must be considered in the light of other evidence both corroborative and not corroborative.

Mr Hancock’s mother stated that he continued to suffer from problems with his knee and wore a knee guard most days. She noticed him limping and said that he was unable to do much around the house. Mr O’Shea saw him hobble around at times but regarded it as a symptom of the gout.

In May 2006 Mr Hancock mentioned his knee injury in the medical questionnaire completed at the request of his employer.

On 8 October 2007 Mr Hancock sought treatment at Grafton Base Hospital where he gave a history of injury two years earlier at the timber mill stating he had pain and swelling which “settled later”.

In December 2007 he attended his general practitioner Dr Barrell and was referred to Dr Summersell.

On 22 January 2008 the worker was assisting members of his family unloading bearers and joists from a truck at his home. Mr Hancock admitted to Jamie Ferguson that he had hurt his knee loading the bearers and joists at home, indeed a handwritten diary entry by Mr Ferguson on 22 January 2008 records “Dan sore knee injured at home”.

Two days later, on the 24 January 2008, Mr Hancock attend Grafton Base Hospital when he stated that he had injured his knee two years ago but aggravated it two days earlier when he twisted the knee and felt pain in the knee.

In late March 2008 Mr Hancock assisted his colleague Mr Hindmarsh to move house. According to Mr O’Shea, who was present, Mr Hancock moved a lot of heavy furniture on that occasion including fridges, lounges and cupboards. He did a lot of the heavy lifting including things Mr O’Shea was unable to lift. Peter Hyde, who was also present, said that Mr Hancock assisted three others to move a particularly heavy bar. He also confirmed that Mr Hancock assisted to move a range of heavy items down stairs, including a large refrigerator and furniture.

On 26 March 2008, within days of assisting Mr Hindmarsh with the house move, Mr Hancock ceased work. Mr Hancock has offered no evidence as to the circumstances that led to him ceasing work on 26 March 2008.

On 21 April 2008 Mr Hancock again attended Grafton Base Hospital. On that occasion he reported a history of a swollen right lower leg and increasing pain aggravated recently “sanding” at home on his knees. During the same attendance at the Hospital on 21 April 2008 the emergency treatment assessment notes refer to a history of a fall three weeks earlier. Although the hospital notes of this attendance were included with Mr Hancock’s Application to Resolve a Dispute he gave no evidence of the circumstances leading up to that attendance.

To contradict any suggestion that he had been sanding at home Mr Hancock tendered on appeal a letter from Mr Beverley, a tradesman who had been working at Mr Hancock’s home, stating that no one assisted him with the flooring work he was contracted to undertake. However, that evidence does not assist Mr Hancock because the work Mr Beverley was contracted to do commenced on 23 April 2008, two days after Mr Hancock had presented at the hospital complaining of pain after an episode of floor sanding.

Six of Mr Hancock’s work colleagues, namely Messrs Ferguson, Leach, Finlay, O’Shea, Hindmarsh and Martin stated that they were either unaware of any injury suffered by him and/or he had never complained to them of an injury to his knee or symptoms. In circumstances where three of them (Messrs Finlay, O’Shea and Hindmarsh) describe themselves as friends of Mr Hancock, their statements are compelling evidence that any injury sustained by him in March 2005 was either of a trivial nature or was not incapacitating.

At [38]–[42] of his Reasons the Arbitrator dealt with the evidence of Messrs Hyde, Ferguson, Leach, Hindmarsh and Martin but failed to give any reasons as to whether he accepted or rejected their evidence or the weight he placed on it. It follows from his findings that he preferred the evidence of Mr Hancock and his mother, Mrs Hancock, however, his reasons for doing so have not been articulated.

The evidence of Mrs Hancock on the issue of incapacity must be treated with some circumspection. She stated that Mr Hancock was so incapacitated by the condition of his knee that he was unable to do very much around the house, and her husband and some friends did most of the work around the house or it was done by tradesmen. However, Mr Hancock was able to assist with unloading bearers and joists in January 2008, he was able to assist his friend move house in March 2008, lifting and carrying very heavy items of appliances and furniture, and in April 2008 he was clearly undertaking some work that involved being on his knees and sanding. These are activities that are inconsistent with the picture painted by Mrs Hancock.

Moreover, in March 2008, shortly prior to Mr Hancock leaving work permanently, Mrs Hancock took the opportunity at a social function to seek to refresh Mr Hyde’s memory of a work-related incident several years earlier. According to Mr Hyde he felt that she was “fishing for something”, which I infer was seeking support for the worker’s compensation claim, which triggered when Mr Hancock ceased work days later.

The medical evidence must also be treated with some circumspection. Neither party has tended a forensic medical report with a complete history of the work and non-work related incidents from which a reliable conclusion could be formed as to the cause of Mr Hancock’s knee problems. The medical certificates obtained from Dr Barrell and Dr Gak, carry little or no weight in the absence of a detailed report setting out the history taken, findings on examination and opinion on causation.

Dr Summersell’s opinion is unreliable for a number of reasons. His opinion is based on an acceptance of Mr Hancock’s account of his injury on 31 October 2005, which I accept. However, it is also based on his acceptance of continuing symptoms since then, which I do not accept. Furthermore he has failed to explain or even consider the effect of the intervening events occurring on or about 22 January 2008 (lifting bearers and joists), late March 2008, (moving furniture and appliances), a second fall in late March or early April 2008, and in late April 2008 (two days sanding on knees), indeed he offered no explanation for Mr Hancock ceasing work in March 2008. Therefore, the facts on which the opinion is based do not form a proper foundation for it ( Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’) per Heydon JA at [85]).

Furthermore, Dr Summersell provided two reports dated 6 May 2008. In the first he offered no opinion as to causation other than to restate Mr Hancock’s own opinion that the problems with his knee were related to the incident in 2005. In the second, without offering any explanation, he stated that he, himself had formed the view that the 2005 incident was the cause of Mr Hancock’s incapacity. In the absence of an explanation of the scientific or other intellectual basis for the conclusion reached, Dr Summersell’s opinion also fails to satisfy the second limb of Makita. See also Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (‘Hevi Lift’). For these reasons, I have concluded that no weight can be placed on Dr Summersell’s opinion.

Following Mr Hancock’s injury in October 2005 there was no pathology or diagnosis made other than Dr Gak’s unexplained assertion of “injury to the knee” in his medical certificate on 4 November 2005.

Between October 2005 and October 2007 the worker did not seek any medical treatment and worked unrestricted in a heavy labouring job. Between April 2007 and December 2007 Mr Hancock attended various doctors at the Bulgarr Ngaru Aboriginal Medical Centre on seven occasions for treatment of various medical conditions without mentioning any problems with his knee.

In October 2007 Mr Hancock was investigated at Grafton Base Hospital and was diagnosed with a ganglion cyst or Bakers cyst. There is no evidence to suggest that this condition was related to the injury in 2005.

Dr Summersell’s operative findings on 23 June 2008 included a complex tear of the medial meniscus. That was not the pathology found in 2007. There was no mention of a torn meniscus until Dr Summersell diagnosed it in 2008, after several non work related incidents.

There is no medical evidence to explain the difference in the pathology between 2007 and 2008. The Arbitrator’s acceptance of Dr Summersell’s evidence (‘Reasons’ at [47]) is unsound for the reasons I have given. In my view, contrary to the Arbitrator’s finding, there is no persuasive evidence to support the finding that Mr Hancock suffered a torn meniscus in 2005. That finding cannot stand and must be revoked. I am not satisfied that the injuries sustained by Mr Hancock on 31 October 2005 caused any significant patholgy.

Dr Gak did not provide a diagnosis and the exact nature of the 2005 injury is not known, However, given that Mr Hancock was only off work for a few days and that he returned to perform his normal duties for more than two years without restriction, I accept the evidence of Messrs Ferguson, Leach, Finlay, O’Shea, Hindmarsh and Martin that Mr Hancock worked until 2008 without demonstrating any sign of injury or disability, and I find that Mr Hancock recovered from the effects of his October 2005 injury within days.

I reject the submission that criticism of the evidence of Dr Summersell is misplaced in the absence of any application to cross-examine the doctor. The failure to cross-examine in cases where the issues has been fully set out in affidavits, which were exchanged prior to the hearing was considered in Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 at [105] where it was held no adverse inference arose. The Commission is not bound by the rules of evidence and its proceedings are to be conducted with as little formality and technicality as the proper consideration of the matter permits (section 354(1) of the 1998 Act).

The Commission has a wide discretion regarding the procedure to be adopted in a particular case (Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34, (2006) 4 DDCR 358 (‘Zheng’)) Both parties filed extensive statements and other evidence prior the hearing. Cross-examination of doctors in this jurisdiction can only proceed by leave of the Commission. Such applications are rarely made or granted. For these reasons I do not consider it appropriate to draw an adverse inference from the failure to cross-examine Dr Summersell. For the same reasons, there is no inference to be drawn from the failure to cross examine Mr Hancock.

Mr Hancock also submitted the criticism of Dr Summersell is misplaced in the absence of alternate medical opinion, and from the Appellant’s failure to rely on Dr Bodel, who had examined Mr Hancock for the Appellant. This submission is, in substance, a submission that I should draw a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (‘Jones v Dunkel’) inference.

The principles in Jones v Dunkel are summarised in Cross on Evidence, 7^th Australian edition 2004, at [1215], as follows:

“First, that unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence or produce particular material to an expert witness may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case.…The appropriate circumstances exist where it was within the power of the party to tender the evidence which was not tendered:…

The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. But there are circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance. The party may not be in a position to call the witness.” (emphasis added)

It may well be inferred that the reason Dr Bodel’s opinion was not exposed was because it was unfavourable to the Appellant. However, Mr Hancock can draw little comfort from that fact unless he has established his case at least to a prima facie level. For the reasons I have given, he has failed to do so. In those circumstances, even if an adverse inference is drawn from the failure to tender Dr Bodel’s report, it makes no difference to the result because Mr Hancock has not established his case.

The worker bears the onus of establishing that his incapacity is causally related in the sense described by Kirby J in Kooragang. Mr Hancock submits that he disclosed in his Application to Resolve a Dispute the clinical notes in relation to his various visits to hospital therefore, there can be no criticism of him for failing to disclose those matters, which enabled the Appellant to cross-examine and to seek medico-legal opinion on them. However, this is not the point, the worker carries the onus of proving that his incapacity has resulted from the injury and he has failed to discharge the onus. Mr Hancock’s own evidence suffers from the significant flaw that he failed to give any, or any reliable evidence as to the effect of the several non work related incidents that occurred after October 2005. That is particularly telling in circumstances where some of those incidents were proximate to him ceasing work.

Mr Hancock’s evidence of what occurred on 22 January 2008 when he was unloading bearers and joists at home is inconsistent with the evidence of Mr Ferguson. Mr Hancock’s evidence that whilst at work on 22 January 2008 his leg “got worse” and, although he was involved in unloading timber from the truck at home, there was no “incident” and his knee continued to swell as it had all day, is unacceptable and inconsistent with other evidence, which I prefer. Mr Ferguson, who is reasonably independent, having no particular interest in these proceedings, and whose evidence I accept, said that Mr Hancock telephoned him on 22 January 2008 and told him he had hurt his knee when unloading bearers and joists at home. The hospital notes for 24 July 2008 indicate, inter alia, Mr Hancock said he twisted his knee on 22 January 2008. There is no evidence that that twisting episode occurred at work.

Mr Hancock’s account of what took place while assisting Mr Hindmarsh to move house in March 2008 is substantially at odds with the evidence of Mr O’Shea and Mr Hindmarsh, whose evidence I accept as being reliable. Whilst Mr Hancock said that the work was simplified by a trolley and the assistance of a loading tray on the truck, even suggesting that the work was less arduous than the work that he did at the timber mill, Mr O’Shea and Mr Hindmarsh stated that Mr Hancock lifted and carried furniture and appliances including a large refrigerator down steps, doing a lot of the heavy lifting that others were unable to do. Whilst Mr Hancock conceded that he assisted in lifting a heavy bar, his account of what took place on that occasion is so inconsistent with the account of Mr O’Shea and Mr Hindmarsh, that it seriously damages his credibility.

Dr Black reported on14 April 2008 that Mr Hancock had suffered a second fall in the previous week (see [77] above) He provided a medical certificate for three weeks off work from 7 to 28 April 2008. It was during that period (21 April 2008) that Mr Hancock reported to Grafton Base Hospital complaining of a recent aggravation from ‘sanding’ at home. Mr Hancock denies suffering a second fall, but has not provided any evidence about the reasons for visiting Dr Black on 14 April 2008. Having regard to the doctors record of that injury, and the absence of any evidence to suggest the entry is incorrect, I am satisfied that Mr Hancock suffered a second fall in the week prior to the 14 April 2008, which resulted in an injury of sufficient magnitude to result in extensive soft tissue swelling and three weeks incapacity.

The difficulty in accepting Mr Hancock’s evidence of ongoing pain and instability in the knee since November 2005 is compounded by the overwhelming evidence of his friends and colleagues to the effect that he went for several years after his injury in March 2005 with no apparent restrictions, problems or complaints regarding his knee. His evidence of persistent problems with the knee is also inconsistent with his capacity to undertake heavy physical work in the timber mill for several years after the injury and to participate in heavy physical activities outside of the workplace including unloading timber and joists at home, lifting heavy furniture and appliances whilst assisting a friend to move house and undertaking work around his home, for example, sanding whilst on his knees.

Mr Hancock submits that the Appellant’s focus on the worker’s involvement in social activities with co-workers in March 2008 and the histories in the hospital notes in April 2008, must be seen in context with the lay evidence of Mr and Mrs Hancock, Mr Hyde and Mr O’Shea and as recorded by the treating doctors of ongoing instability and a number of falls which the worker reported as related to the fall at work. That submission is not supported by the evidence of either Mr Hyde or Mr O’Shea when seen in the context of their evidence overall. Whilst Mr Hyde confirmed he had seen the worker wearing a knee guard on occasions, he clearly stated that the worker had not mentioned the injury in two and a half years and had not shown any signs of ongoing injury. Mr O’Shea saw the worker hobble about at work a few times, but did not relate it to the knee injury, indeed he thought it was due to gout caused by excessive drinking and the worker being overweight.

The combination of the lay evidence from Mr Hancock’s colleagues, his own failure to address a series of intervening injuries, and the lack of any persuasive medical evidence leads me to conclude that incapacity due to the effects of the injury on 31 October 2005 ceased by 7 November 2005 when Dr Gak certified the worker fit to resume work. It therefore follows that the claimed incapacity from 26 March 2008 is unrelated to the injury of 31 October 2005.

CONCLUSION

I have conducted a detailed review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249). I have also had regard to the observations of Allsop P and Hoeben J (Beasley JA agreeing) in Sapina v Coles Myer Limited [2009] NSWCA 71 at [57] – [59] as to the nature of the ‘review’ under section 352 of the 1998 Act.

For the reasons given, Mr Hancock has failed to discharge the onus of proving that incapacity commencing on 26 March 2008 resulted from the injury sustained on 31 October 2005. Therefore, the Arbitrator’s determination of 26 May 2009 must be revoked, and an award made in favour of the Respondent employer.

Having regard to these findings it is unnecessary for me to consider any further grounds of appeal.

DECISION

The Arbitrators determination of 26 May 2009 is revoked and the following decision is made in its place:

1. Award for the Respondent.
2. No order as to costs.

COSTS

No order as to costs of the appeal.

His Hon Judge G Keating
President
6 October 2009

I, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE