Fairfield City Council v Arduca
[2014] NSWWCCPD 31
•29 May 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| Status: On appeal to the Court of Appeal | |||
| CITATION: | Fairfield City Council v Arduca [2014] NSWWCCPD 31 | ||
| APPELLANT: | Fairfield City Council | ||
| RESPONDENT: | Giuseppe Arduca | ||
| INSURER: | Self-insured | ||
| FILE NUMBER: | A1-304/13 | ||
| ARBITRATOR: | Mr G Capel | ||
| DATE OF ARBITRATOR’S DECISIONS: | 11 December 2013 and 11 February 2014 | ||
| DATE OF APPEAL DECISION: | 29 May 2014 | ||
| SUBJECT MATTER OF DECISION: | Procedural fairness; s 354 of the Workplace Injury Management and Workers Compensation Act 1998; Commission informing itself; notice of injury; s 254 of the Workplace Injury Management and Workers Compensation Act 1998; weekly payments; former s 40 of the Workers Compensation Act 1987; onus of proof of unreasonable failure to comply with requirements of Ch 3 of the Workplace Injury Management and Workers Compensation Act 1998; former s 57 of the Workplace Injury Management and Workers Compensation Act 1998; challenge to factual findings | ||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Leigh Virtue & Associates | |
| Respondent: | Villari & Co Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s findings found in Certificate of Determination dated 11 December 2013 are confirmed. 2. The orders found in Certificate of Determination dated 11 February 2013 are confirmed. 3. The appellant is to pay Mr Arduca’s costs of the appeal. | ||
BACKGROUND
Mr Giuseppe Arduca was employed by Fairfield City Council (the appellant) as a general handyman and truck driver between 1988 and 19 April 2010. It is not in dispute that, on 9 March 1995, Mr Arduca received injury to his back in the course of his employment. At the date of that injury the appellant was insured in respect of worker’s compensation liability by Allianz Australia Worker’s Compensation (NSW) Limited (Allianz). The appellant became a self-insurer within the meaning of s 3 of the Workers Compensation Act 1987 (the 1987 Act) on 1 January 2002.
Proceedings were commenced against the appellant by Mr Arduca in the former Worker’s Compensation Court of NSW in 2000 seeking awards of lump sum compensation pursuant to ss 66 and 67 of the 1987 Act in respect of permanent impairment of his back and permanent loss of efficient use of his right leg, said to have resulted from the injury received in 1995. Those proceedings were settled by agreement. Orders were made, by consent, which provided for payment of lump sums in respect of 15 per cent impairment of the back, 5 per cent loss of efficient use of the right leg, together with a lump sum of $7,250, pursuant to s 67.
Mr Arduca alleges that, subsequent to that settlement, he has suffered further injury to his back by reason of the physical demands of his work with the appellant and, in particular, as a result of heavy lifting performed on 16 October 2008. It is further alleged that, as a result of that lifting incident, he suffered bilateral inguinal hernias. Some compensation benefits were paid by the appellant in respect of incapacity, medical expenses relating to the hernia injuries and subsequent operative treatment. Mr Arduca gave written notice of his resignation to the appellant on 19 April 2010. Until that time he had participated in an Injury Management and return-to-work program.
On 1 July 2011, a claim was made by Mr Arduca against the appellant and Allianz in respect of weekly payments, further lump sums and medical expenses. That claim was declined by both the appellant and Allianz.
These proceedings were commenced in January 2013. Replies to the application were filed on behalf of Allianz and the appellant as self-insurer. Mr Arduca’s application came before Arbitrator Glen Capel for conciliation and arbitration on 30 September 2013 at which time the matter proceeded to hearing, was part heard and adjourned for further hearing on 18 November 2013. Upon resumption of the hearing, the Arbitrator was advised that the proceedings, in so far as claims were made against the appellant concerning injury whilst insured by Allianz, had been settled. Appropriate orders were made, including entry of certain awards in favour of the appellant “in the interest of Allianz” and an order of discontinuance in respect of the lump sum claim made against that insurer. A certificate of determination was issued on 20 November 2013 which recorded the terms of the agreement, and it was noted that a “complying agreement” with respect to payment of further lump sums pursuant to ss 66 and 67 was to be executed by the parties.
The Arbitrator granted Mr Arduca leave to amend the application, which effectively removed those allegations made against the appellant whilst insured by Allianz. The hearing concluded on that day and the Arbitrator reserved his decision. A Certificate of Determination, accompanied by a Statement of Reasons, was issued on 11 December 2013 which recorded the following determinations and orders:
“The Commission determines:
1. The applicant sustained bilateral hernia injuries arising out of or in the course of his employment with the respondent on 16 October 2008 and from 2005 to 19 April 2010.
2. The applicant’s employment was a substantial contributing factor to his hernia injuries.
3. The applicant was incapacitated and was paid weekly compensation for various periods prior to 19 April 2010.
4. Since 20 April 2010, the applicant has been partially incapacitated for work as a consequence of his employment injuries.
The Commission orders:
5. Award for the respondent in the interests of the self-insurer in respect of the injury to the applicant’s back.
6. The respondent in the interests of the self-insurer to pay the applicant’s reasonably necessary medical expenses relating to his hernia injuries pursuant to section 60 of the Workers Compensation Act 1987.
7. The respondent in the interests of the self-insurer is to file and serve wage material for the applicant and two comparable employees for the period 1 July 2009 to 31 December 2012 by 31 December 2013.
8. The respondent in the interests of the self-insurer is to file and serve details of the applicant’s award classification and details of the award rates for the period 1 July 2009 to 31 December 2012 by 31 December 2013.
9. The parties are to file and serve submissions in respect of the applicant’s actual earnings and the earnings of comparable employees for the period 1 July 2009 to 31 December 2012 by 21 January 2014.
10. In the event that there are no comparable employees, the respondent in the interests of the self-insurer is [sic, is to] advise the applicant by 31 December 2013 and the parties are to file and serve submissions based on the jobs identified as being similar to the applicant’s pre-injury duties in What Jobs Pay, 13th edition, 2012, Yorkcross, by Rodney Stinson, by 21 January 2014.
11. I remit this matter to the Registrar for referral to an Approved Medical Specialist pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of the whole person impairment due to hernia injuries sustained on 16 October 2008 and from 2005 to 19 April 2010.
12. The documents to be reviewed by the Approved Medical Specialist are:
(a)Application to Resolve a Dispute and attached documents;
(b)Reply filed on behalf of Allianz and attached documents, excluding the report of Dr Powell;
(c)Reply filed on behalf of the self-insurer and attached documents;
(d)Application to Admit Late Documents received on 14 May 2013;
(e)Application to Admit Late Documents received on 27 May 2013;
(f)Application to Admit Late Documents received on 15 July 2013;
(g)Application to Admit Late Documents received on 12 August 2013;
(h)Application to Admit Late Documents received on 27 August 2013;
(i)Application to Admit Late Documents received on 10 September 2013, and
(j)Application to Admit Late Documents received on 30 September 2013, excluding the last paragraph in Dr Sanki’s report dated 27 September 2013.
13. Costs reserved.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
On 11 February 2014 a further Certificate of Determination, accompanied by a further Statement of Reasons, was issued. The following determination and orders are recorded:
“The Commission determines:
1. The findings in the Certificate of Determination dated 11 December 2013 are confirmed.
The Commission orders:
2. The orders in the Certificate of Determination dated 11 December 2013 are varied as follows:
(1) Award for the respondent in the interests of the self-insurer in respect of the injury to the applicant’s back.
(2) The respondent in the interests of the self-insurer to pay the applicant:
a.$479.70 per week from 20 April 2010 to 30 September 2010 pursuant to section 40 of the Workers Compensation Act 1987;
b.$486.20 per week from 1 October 2010 to 31 March 2011 pursuant to section 40 of the Workers Compensation Act 1987;
c.$496 per week from 1 April 2011 to 5 August 2011 pursuant to section 40 of the Workers Compensation Act 1987;
d.$606 per week from 6 August 2011 to 30 September 2011 pursuant to section 40 of the Workers Compensation Act 1987;
e.$616.40 per week from 1 October 2011 to 31 March 2012 pursuant to section 40 of the Workers Compensation Act 1987;
f.$628 per week from 1 April 2012 to 30 September 2012 pursuant to section 40 of the Workers Compensation Act 1987, and
g.$638.10 per week from 1 October 2012 to 31 December 2012 pursuant to section 40 of the Workers Compensation Act 1987.
(3) The respondent in the interests of the self-insurer to pay the applicant’s reasonably necessary medical expenses relating to his hernia injuries pursuant to section 60 of the Workers Compensation Act 1987.
(4) The respondent in the interests of the self-insurer to pay the applicant’s costs as agreed or assessed.
(5) I certify that this that this determination of the dispute between the applicant and the respondent in the interests of the self-insurer is to be treated as a separate resolution to the determination of the dispute between the applicant and the respondent in the interests of Allianz Australia Workers Compensation (NSW) Ltd for the purpose of the calculation of costs for the applicant under Schedule 6 Part 1 Clause 9(2) (b) of the Workers Compensation Regulation 2010.
(6) I certify a 30 per cent uplift for the applicant pursuant to Schedule 6 Part 2 Table 4 Item 4 of the Workers Compensation Regulation 2010 due to the legal, medical and liability issues arising from this claim which was listed for a conciliation conference and arbitration hearing on two occasions.
(7) I remit this matter to the Registrar for referral to an Approved Medical Specialist pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of the whole person impairment due to hernia injuries sustained on 16 October 2008 and from 2005 to 19 April 2010. The Approved Medical Specialist is requested to provide an assessment for the combined effects of the frank incident and the employment from 2005 to
19 April 2010.(8) The documents to be reviewed by the Approved Medical Specialist are:
(a)Application and attached documents;
(b)Reply filed on behalf of Allianz Australia Workers Compensation (NSW) Ltd and attached documents, excluding the report of Dr Powell;
(c)Reply filed on behalf of the self-insurer and attached documents;
(d)Application to Admit Late Documents received on 14 May 2013;
(e)Application to Admit Late Documents received on 27 May 2013;
(f)Application to Admit Late Documents received on 15 July 2013;
(g)Application to Admit Late Documents received on 12 August 2013;
(h)Application to Admit Late Documents received on 27 August 2013;
(i)Application to Admit Late Documents received on 10 September 2013, and
(j)Application to Admit Late Documents received on 30 September 2013, excluding the last paragraph in Dr Sanki’s report dated 27 September 2013.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
PRELIMINARY MATTERS
Thresholds
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and s 352(4) of the Workplace Injury Management and Workers Compensation Act (the 1998 Act) have been met.
On the Papers
Both parties submit that the appeal can proceed to be determined “on the papers” as is permitted by s 354(6) of the 1998 Act. Having regard to Practice Directions Nos 1 and 6 and the documents that are before me, I am satisfied that I have sufficient information to proceed “on the papers” without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The grounds relied upon by the appellant are stated in written submissions as follows:
“a. Error of law in determining the dispute on a basis not put by or to the parties.
b. Error by the Arbitrator in failing to have proper regard to the evidentiary onus carried by the worker.
c. Denial or (sic, of) procedural fairness
d. Error of discretion in reducing the weekly compensation by reference to the fourth step in “Mitchell” by only $100.00 per week.
e. Error by the Arbitrator in failing to properly consider and determine the issue of the late notification of injury.
g. Error by the Arbitrator in his consideration of the clinical notes of Dr Pham.”
It may be seen that the grounds as expressed, particularly grounds (a), (b) and (c), fail to clearly identify the error or errors said to have been committed the Arbitrator. However, the submissions which are put in support of the appeal identify particular matters of which complaint is made. I note that, in relation to complaints concerning the Arbitrator’s approach to the question of the giving of notice of injury, that there is repetition found in argument as it appears in relation to grounds (b) and (e). Matters raised in argument are addressed below.
THE ARBITRAL PROCEEDINGS
The proceedings before the Arbitrator were recorded, a transcript (T) has been produced and made available to the parties. Mr Arduca was represented by Mr Loukas of counsel and the appellant, as self-insurer, was represented by Mr Macken, solicitor. Before settlement of the claim by Mr Arduca against the insurer, Allianz had been represented by Mr Saul of counsel.
The documentary evidence before the Arbitrator was identified by him at the commencement of the arbitration and is recorded at T1–T2 (30 September 2013). No oral evidence was adduced before the Arbitrator.
On 3 October 2010 the Arbitrator issued directions to the parties. It is recorded (at T2–3, 18 November 2013) that a number of documents had been filed by Mr Arduca and Allianz pursuant to those directions. Mr Macken, when questioned by the Arbitrator concerning his client’s “position concerning the directions” replied (at T4, 18 November 2013):
“It would appear, Arbitrator, that the directions have been made in the absence of the parties. We certainly didn't have any input into those directions and so I can't really respond to those directions. They've been made without any application by any party, apparently, it would appear of your own initiation. They certainly weren't made on the last occasion.
On the note I've got of what occurred on the last occasion was quite specific. The matter was part heard, the Applicant had made his submissions, either almost entirely but reserved the right to make further submissions. There was a specific note that I recorded that no extra evidence would be admitted. And that's where we are, Arbitrator, so I'm here to finish the piece.”
The Arbitrator proceeded to enquire of Mr Macken as to whether he had received the directions. Mr Macken replied (at T5, 18 November 2013):
“I don't have a specific recollection of having received that document and it's not on the material I have at the moment, Arbitrator. And with the greatest of respect, forming the view about matters of evidence is not your role. It's not for you to run the Applicant's case, is for the Applicant to run the Applicant's case. If they need evidence, they get evidence, if they want to make an application, they make an application.
They haven't on any of these things, none of these things come from the Applicant. And with respect, the Applicants should run their case, as they have. And they're running their case, and they're doing their submissions. I understand they want to complete their submissions. No doubt they can complete their submissions.”
In the course of submissions, Mr Loukas made clear that his client’s claim was in respect of both a back injury and bilateral hernia injuries as against the appellant as self-insurer. It was put that the evidence supported a conclusion that the appellant had accepted liability with respect to the hernia injuries and that weekly compensation and medical expenses had been paid. Reliance was placed upon the evidence of Dr Pham, general practitioner, concerning causation of the hernia injuries.
Counsel argued that by reason of the hernia and back injuries, Mr Arduca, as at April 2010, was “unable to go on”. Reliance was placed upon the evidence found in Dr Sanki’s report dated 8 April 2010 concerning Mr Arduca’s incapacity and the causes of that incapacity. It was put that the facts prevented the appellant from relying upon the provisions of the former s 57 of the 1998 Act. It was argued that Mr Arduca’s cessation of work, at a time when he was performing duties prescribed by a return-to-work program, was not unreasonable, and that s 57 would have no operation.
It was argued that Mr Arduca, by reason of both the back and hernia injuries, was totally incapacitated. It was further argued that Mr Arduca was entitled to “the maximum” statutory rate of weekly compensation. Reliance was placed upon the wages schedule filed on behalf of Mr Arduca. It was accepted by counsel that the claim for weekly compensation ceased as at 31 December 2012.
Mr Macken made submissions concerning the allegation of injury to the back. Those matters, given the Arbitrator’s finding in favour of the appellant concerning that allegation, have no relevance to matters raised on appeal. So far as the hernia injuries were concerned, argument was advanced that there had been “a failure to give notice of injury within the requirements of the Act”. It was put that such notice was not given “as soon as possible after” the injury. It was put that no injury occurred, on the evidence, on 16 October 2008.
Reliance was placed by Mr Macken upon the evidence found in the report of Dr Brenner, addressed to Dr Pham. That report demonstrated, it was argued, that a small left sided inguinal hernia had been diagnosed during examination on 1 October 2008, that is, before the lifting incident alleged by Mr Arduca. It was emphasised in submissions that Dr Pham’s clinical notes record a consultation on 16 October 2008 but that no history of a lifting incident was then recorded by that practitioner. Dr Pham had, it was submitted, recorded groin pain during consultations earlier than 16 October 2008. It was further argued that there was an absence of expert medical evidence as to the question of causation of the hernia conditions.
It was argued that the opinion of Dr Kim Edwards, surgeon, found in his report dated 5 October 2011 would be preferred to the evidence of Dr Peter Conrad, general surgeon, which had been relied upon by Mr Arduca concerning causation of the hernias as diagnosed.
The question of incapacity was addressed in broad terms (T18–T21, 18 November 2013). Reference was made to Mr Arduca’s obligations concerning compliance with the legislation, in particular s 57 of the 1998 Act. It was also put that Mr Arduca had failed to meet his obligations imposed by Ch 3 of the 1998 Act and that as a consequence he was not entitled to weekly compensation.
It was argued that, should a finding of incapacity be made, such would be one of partial incapacity. The discretion granted the Commission pursuant to s 40 of the 1987 Act would be exercised, it was put, after consideration of concurrent unrelated health problems including the back disability. It was argued that it was relevant that Mr Arduca had left employment at a time when suitable duties were made available. These arguments are considered in more detail below. Any award, it was put, would be “de minimus”.
Mr Loukas in reply made reference to the medical evidence and argued that Dr Pham had addressed the question of causation of the hernias in her report of 4 March 2009. That practitioner expressed agreement with Dr Fulham, general surgeon, stating that Mr Arduca’s heavy work was “the [sic] contributing factor to the formation of the hernias”.
Reliance was placed by Mr Loukas upon the contents of the wages schedule filed by Mr Arduca. That schedule, found in the application at [5.1], alleged “comparable/probable earnings” as at 20 April 2010 as being $773.01 per week. The schedule proposed “three per cent CPI increase per annum”.
THE ARBITRATOR’S DECISION
As noted above at [6] the Arbitrator, in his 11 December 2013 determination, found in favour of the appellant concerning the allegation of injury to the back. Findings were made against the appellant at that time concerning the allegation of the hernia injuries. Those injuries were found to have resulted from heavy lifting on 16 October 2008 and as a result of the nature of Mr Arduca’s heavy work duties from 2005 to 19 April 2010 (Reasons at [182]).
As may be seen from the matters appearing in the Certificate of Determination dated 11 December 2013 (above at [6]) the Arbitrator did not, at that time, given the state of the evidence before him, make findings or orders concerning relevant economic matters. It is relevant to issues raised on this appeal to note those matters recorded by the Arbitrator between [2] and [4] of Reasons which accompanied the subsequent Certificate of Determination dated 11 February 2014. Those matters concerned the appellant’s response to the directions earlier made by the Arbitrator and are as follows:
“As there was no wage material for comparable employees in evidence, I was unable to determine the applicant’s entitlement to weekly compensation. Accordingly, I made the following directions:
1.The respondent in the interests of the self-insurer is to file and serve wage material for the applicant and two comparable employees for the period
1 July 2009 to 31 December 2012 by 31 December 2013.2.The respondent in the interests of the self-insurer is to file and serve details of the applicant’s award classification and details of the award rates for the period 1 July 2009 to 31 December 2012 by 31 December 2013.
3.The parties are to file and serve submissions in respect of the applicant’s actual earnings and the earnings of comparable employees for the period 1 July 2009 to 31 December 2012 by 21 January 2014.
4.In the event that there are no comparable employees, the respondent in the interests of the self-insurer is advise the applicant by 31 December 2013 and the parties are to file and serve submissions based on the jobs identified as being similar to the applicant’s pre-injury duties in What Jobs Pay, 13th edition, 2012, Yorkcross, by Rodney Stinson, by 21 January 2014.
The respondent’s solicitor, Mr Macken, advised the Commission by facsimile on 20 December 2013 that he was unable to provide wage material for two comparable employees by 31 December 2013. No reasons were given why he could not comply. Further, he failed to comply with Order 9 of the Certificate of Determination regarding the award rates for the period 1 July 2009 to 31 December 2012. He did not seek an extension of time to comply with my orders.
Mr Macken indicated that he had been instructed to agree to a determination of probable weekly earnings of $578.58 per week in accordance with my calculations in paragraph 224 of the Certificate of Determination dated 11 December 2013. Such a concession does not assist, as I previously indicated that the figures identified by both parties as to the probable weekly earnings were not supported by documentary evidence. I also had some reservations about my calculations and came to no concluded opinion.”
A finding of partial incapacity had been made by the Arbitrator in the course of his reasons delivered in December 2013 (Reasons at [218]). That incapacity was found, following a careful and detailed consideration of the expert medical evidence, to have been caused by Mr Arduca’s left groin (hernia) condition. The Arbitrator placed reliance upon the evidence of Dr Fulham, Dr Conrad and Dr Pham in so concluding.
As earlier noted, the Arbitrator, having regard to the state of the evidence concerning relevant earnings, was unable to determine those matters relevant to a calculation of the quantum of Mr Arduca’s entitlement to weekly compensation. Those directions found in the certificate of determination dated 11 December 2013 (noted at [6] above) were made and the question of quantum of weekly payments was deferred pending compliance by the parties with those directions.
Subsequently the Arbitrator, in the course of reasons delivered in February 2014, summarised the parties submissions concerning quantum of weekly benefits to which Mr Arduca was entitled (at [9]–[16] of Reasons, 11 February 2014). The actual earnings of Mr Arduca were determined by the Arbitrator by reference to the evidence found in his tax return for the year ending 30 June 2010. Probable earnings were determined by reference, as anticipated in the Arbitrator’s earlier directions, to a text What Jobs Pay, 13th edition 2012, Yorkcross by Rodney Stinson. The Arbitrator, following a consideration of the expert medical witness’s evidence, determined Mr Arduca’s ability to earn. Reference was made by the Arbitrator to relevant authority and he concluded that it was proper in the circumstances, in the exercise of discretion, to reduce the calculation of the differences of probable earnings and ability to earn by $100 per week. The award as noted at [7] above was then entered by the Arbitrator.
DISPOSITION OF THE APPEAL
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
I have noted the grounds of appeal relied upon at [10] above. It is proposed to address those grounds seriatim.
Ground (a)
It is the appellant’s complaint that the dispute had been determined by the Arbitrator “on a basis not put by or to the parties”. Argument as advanced suggests, but it is not explicitly stated, that the Arbitrator, in so determining the dispute, had denied the appellant procedural fairness.
The appellant identifies the following matters as demonstrating such error:
1. when determining relevant “probable earnings but for injury” the Arbitrator wrongly disregarded Mr Arduca’s stated reliance upon the wage schedule which specified a weekly amount of “$777.0” (sic, $773.01);
2. failing to “indicate an intention to depart from Mr Arduca’s submission as to probable earnings”;
3. failing to “invite submissions of the parties in this regard”;
4. having regard to the publication “What Jobs Pay” in the absence of a submission from Mr Arduca that such course was appropriate;
5. concluding that Mr Arduca was “most appropriately considered … to be a truck driver in contradiction of Mr Arduca’s submission that he should properly be regarded as a labourer”, and
6. concluding that the appellant had not complied with its obligations to provide Mr Arduca with suitable duties.
The appellant places reliance upon the decision of the court of appeal in Seltsam Pty Ltd v Ghaleb (2005) 3 DDCR 1 (Ghaleb). Submissions do not develop argument as to the relevance of that decision; however it is clear that reliance is placed upon the reasoning expressed by the Court of Appeal concerning the requirement that parties be afforded a reasonable opportunity to present or meet a case. In Ghaleb, the appellant’s complaint was that the trial judge had determined the case in disregard of a concession made by a co-defendant. The trial judge had given no notice of the possibility that such concession might be disregarded. The trial had been conducted by the appellant on the basis of the concessions made at trial. In the circumstances the Court of Appeal concluded that the appellant had been denied a fair trial. As was stated by Ipp JA (with whom Mason P agreed), following consideration of relevant authority (at [78]):
“These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.
A failure so to inform he parties will ordinarily result in a denial of procedural fairness. A new trial will be ordered if a party is not afforded a fair trial in circumstances where a properly conducted trial might possibly have produced a different result. It will not ordinarily be necessary to lead evidence to prove that the denial of procedural fairness had the potential to affect the outcome; in most cases the facts will speak for themselves.”
The appellant makes complaint concerning the Arbitrator’s manner of determining probable earnings, but for injury, as summarised at [35] above (sub paragraphs [1] to [5] inclusive). It becomes necessary to consider the manner in which the hearing was conducted by the parties and the Arbitrator’s conduct concerning adjudication of the dispute as to the quantum of probable earnings.
As is demonstrated by the transcript of the proceedings on 30 September 2013, the only submissions put, which may be described as preliminary, were those by Mr Loukas on behalf of Mr Arduca. The subject of probable earnings was not raised at that time.
It is recorded by the Arbitrator (at [15] of Reasons, 11 December 2013) that following the hearing on 30 September 2013, he had formed the view that “the evidence was deficient regarding [Mr Arduca’s] earnings and those of comparable employees”. At that time Mr Arduca’s wages schedule, found in the Application, particularised comparable/probable earnings as being “$773.01 with 3 per cent CPI increase per annum”. There was no other evidence relevant to the question of earnings. In the circumstances, the Arbitrator made a comprehensive direction to the parties requiring, inter alia, the filing of relevant wage material. The terms of those directions were noted at that paragraph.
In response to the directions Mr Arduca had filed claim documents and a wages schedule. Objections to the admission of this material was raised by the appellant.
As is recorded by the Arbitrator (at [18] of Reasons, 11 December 2013) the appellant had failed to comply with the direction. Mr Macken had informed the Arbitrator that he had not received the direction. When pressed by the Arbitrator Mr Macken responded that he could not recall seeing the direction, not that he had not received it.
The appellant’s objection, such as it was in the circumstances, was upheld by the Arbitrator and the documents filed by Mr Arduca were not admitted into evidence. The Arbitrator, in the circumstances, issued further directions to the parties which are recorded in the Certificate of Determination dated 11 December 2013 (at [7]–[10]). Those directions concern the filing of relevant material and submissions in relation to the question of relevant earnings.
The appellant’s response to those directions was noted by the Arbitrator at [3] and [4] of Reasons which accompanied the Certificate of Determination dated 11 February 2014 as noted at [27] above.
It is abundantly clear, and must have been so to the parties’ representatives, that the Arbitrator was concerned at all relevant times to ensure that all relevant evidence and submissions concerning earnings were before the Commission to permit a just resolution of the dispute.
In so far as the appellant complains that the Arbitrator disregarded Mr Arduca’s reliance upon the wages schedule, I note that the Arbitrator recorded the terms of Mr Arduca’s relevant submissions between [9] and [12] of Reasons delivered on 11 February 2014. The appellant relied upon calculations made earlier by the Arbitrator which suggested a figure of $578.58 per week as being relevant. The Arbitrator noted that both Mr Arduca and the appellant had “identified a figure for probable weekly earnings” but that “there was either no documentary evidence to support the calculations, or the calculations were inconsistent with the financial material in evidence”.
The difficulty identified by the Arbitrator, as was anticipated by him and which was not successfully resolved by his issue of directions on two separate occasions, was resolved by determining Mr Arduca’s pre-injury earnings by mathematical calculation founded upon the contents of Mr Arduca’s income tax return as earlier noted. It was that calculation which demonstrated the unreliability of the figures put forward by each party.
It was the Arbitrator’s obligation, as noted by him, to conduct proceedings “according to the law with due regard to equity, good conscious [sic, conscience] and the substantial merits of the case”. It is correct, as put by the appellant, that the Arbitrator had disregarded the submissions made by Mr Arduca concerning the pre-injury earnings of $773.01 and the suggestion that a CPI adjustment should follow. However that submission, and indeed those put on behalf of the appellant, was at all times treated by the Arbitrator as being, likely, unfounded. It was his intention to overcome the evidential difficulties by the issue of the directions noted above.
The Arbitrators endeavours to ensure that the Commission was not misled as to the question of relevant earnings had yielded a submission from Mr Arduca which was arithmetically incorrect on the evidence and which had sought, inappropriately in the Arbitrator’s view, an indexed increase over time based on the Consumer Price Index. The appellant’s position had shifted during the course of the proceedings. Its initial position was summarised by the Arbitrator at [222] of reasons (11 December 2013) as follows:
“No separate schedule of earnings was filed by the solicitor for the self-insurer. He did not file wage material for comparable employees or provide this material to the applicant’s solicitor. He identified comparable weekly earnings of $696 per week and an award rate of $641.16 per week without identifying the award and any changes in the award rate since April 2010.”
The appellant, in a subsequent submission, adopted a weekly amount ($578.58) which had been calculated by the Arbitrator as appears at [224] of Reasons, 11 December 2013. That was a figure in respect of which doubt as to accuracy had been expressed by the Arbitrator given “the absence of [Mr Arduca’s] actual pay records and group certificates”.
The appellant’s complaints numbered 1 to 3 noted at [35] above do not, in my opinion, demonstrate any relevant error by the Arbitrator. The submission made by Mr Arduca as to quantum of pre-injury earnings was not “wrongly disregarded” as suggested. As was established on the authorities including Seltsam and Wrigley Co Pty Ltd v Holland (2002) 23 NSWCCR 463 (per Handley JA (Hodgson and Ipp JJA agreeing) at [15]), the Arbitrator was not bound by the manner in which the case was conducted, in the present context, as to the figure of $773.01. His obligation was, if he was to depart from or disregard that submission, to state reasons for so doing and to inform the parties of his approach to the submission.
The Arbitrator had, persistently, since the date of issue of the direction in October 2013, made clear to the parties that he was concerned as to the state of the evidence concerning relevant earnings. Those directions, and those made subsequently, were specific in their terms. In particular, the appellant was directed to produce those records that were directly relevant to the question of pre-injury earnings and probable earnings but for injury.
The October 2013 directions required submissions from the parties. There is no doubt that such submissions would have been informed by the material required by the direction to be produced by the appellant.
The appellant’s failure to produce the relevant material is unexplained. That failure was repeated, and unexplained, following the further directions made by the Arbitrator in December 2013. No relevant submission was put on behalf of the appellant, as was directed, other than the terse reference to quantum of pre-injury earnings, a matter of peripheral relevance only, made as is noted above. Shortly stated, the appellant had plainly ignored the Arbitrator’s stated need for relevant material and had failed to raise relevant submissions. That last failure extended to the direction concerning the data found in the publication, What Jobs Pay.
The appellant’s complaints numbered 4 and 5 noted at [35] above must be rejected. The Commission is not bound by the rules of evidence and may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits: s 354 (2) of the 1998 Act. The Arbitrator’s view as to the possible relevance of What Jobs Pay had been made clear to the parties since the making of the directions in October 2013. The Arbitrator was, in my opinion, entitled to bring that publication to the notice of the parties in the absence of any submission by Mr Arduca having earlier been made as to its possible relevance. The Arbitrator had discharged his obligation to disclose to the parties his view as to the publication’s likely relevance and to invite submissions. No relevant error is, in my view, made out concerning the Arbitrator’s manner of adjudicating the question of probable earnings, but for injury.
Complaint is also made under this ground that a finding had been made that the appellant had “not satisfied its obligations regarding the provision of suitable duties” in the absence, as argued, of a submission to that effect made by Mr Arduca (submissions at [V]).
The relevant finding made by the Arbitrator appears at [200] of the Reasons, 11 December 2013. That finding of fact was made following a consideration of the appellant’s reliance upon the terms of the former s 57 of the 1998 Act. That section provides that a worker is disentitled to weekly benefits upon unreasonable failure to comply with the requirements of Ch 3 of that Act. That chapter concerns, relevantly, provision by an employer of a return-to-work program and obligations upon a worker concerning such plan.
Mr Arduca did, in fact, cease work on 19 April 2010 following his resignation on that day. At that time there was in place, as earlier noted, a return-to-work program. His counsel’s argument concerning this aspect of the appellant’s defence was, it must be said, brief and to some extent obscure. It is nonetheless clear that it was submitted that the evidence supported a conclusion that Mr Arduca “can’t go on, he can’t do the light duties” (T25, 18 November 2013). Counsel had earlier referred to medical certificates provided by Dr Sanki and others. There is in evidence a certificate issued by Dr Sanki, dated 8 April 2010, which states that Mr Arduca is “unable to continue with his present job on account of his education, experience and the ability to work”. Dr Sanki had earlier in that report recorded those medical conditions, including his post-hernia repair related disabilities, which affected his ability to work.
It is clear, in my opinion, that the plain inference to be drawn from that submission, and the reliance placed upon Dr Sanki’s evidence, was that the duties provided under the appellant’s plan were said to be unsuitable. The Arbitrator accepted Mr Arduca’s argument stating his reasoning as follows (at [199]):
“The cleaning work provided to [Mr Arduca] may well have been consistent with the 5kg lifting restriction identified in the WorkCover certificates, but the respondent was on notice that [Mr Arduca] was experiencing difficulties with the tasks. The work was not only aggravating his left groin pain but also his back. Despite this knowledge, the respondent chose to retain the status quo and told [Mr Arduca] that there was no other suitable work available.”
The appellant’s reliance upon the provisions of s 57 required a determination of the reasonableness of Mr Arduca’s conduct in ceasing the work provided by the appellant. Argument raised by him required a determination of the suitability of that work. The appellant’s argument concerning this aspect of the Arbitrator’s reasoning and its assertion of relevant error is rejected.
Ground (b)
Two complaints are made under this ground. It is firstly asserted that the Arbitrator had “failed to have proper regard to the evidentiary onus on [Mr Arduca]” in respect of the provision of suitable employment. It seems to be argued (at submissions [VII]) that, concerning the appellant’s reliance upon the former s 57 of the 1987 Act, the “onus was on the worker to demonstrate that he had complied with his obligations [with respect to the requirements of Chapter 3 of that Act]”.
I have earlier, between [55] and [58] above, addressed the evidence and arguments raised concerning s 57. So far as the onus of proof concerning the question as to whether Mr Arduca failed “unreasonably to comply with [Chapter 3]” the Arbitrator, correctly in my view, concluded that the onus was upon the appellant (at [194] of Reasons, 11 December 2013). That conclusion required proper construction of the section. The Arbitrator, having cited an article of CR Williams published in 2003, was of the view that the provision was a “disentitling provision in beneficial legislation”. The article referred to had cited the decision of the High Court in Darling Island Stevedoring and Lighterage v Jacobsen (1945) 70 CLR 635. It is instructive to note the observations made by Dixon J (as his Honour then was) where a provision defeating entitlement, upon proof of “default of wilful act”, was considered (at 643):
“…the burden of proof is a legal consequence of the nature of the qualification placed by the words ‘without his own default or wilful act’ upon the general conditions of liability stated in the clause. If these words are but part of the legislative attempt to define the conditions upon which the worker’s right to compensation arises, then, like all other ingredients or elements in a cause of action or title to claim, proof of the fulfilment of the conditions they describe must lie with the claimant. But if the true nature of the qualification is to introduce new matter, not as part of the primary grounds of liability, but as a special exception or condition defeating or answering liability otherwise existing, then the onus of proof lies with the party setting up default or wilful act by way of answer.”
The use by the appellant of the term “evidentiary onus” seems to suggest a shifting of the onus to Mr Arduca concerning the question of “unreasonable” noncompliance. The difficulty with that assertion, if indeed that was intended, is that the Arbitrator, when considering the questions raised by s 57, having noted the dearth of evidence concerning the return-to-work plan and the unchallenged evidence of Mr Arduca concerning the difficulties he experienced, properly proceeded to consider the fundamental question as to whether, on the evidence, the duties provided were suitable. The question raised by the Arbitrator (at [192]) as to unreasonable failure to comply was answered in Mr Arduca’s favour once it was accepted by the Arbitrator that the duties provided were not suitable. The appellant’s submissions concerning the question of “onus” in the context of s 57 are rejected.
The second complaint under this ground is a broadly stated suggestion that the Arbitrator erred in failing “to have proper regard to the evidentiary onus on [Mr Arduca] in determining the disputed issues as to injury, causation, substantial contributory factor and [Mr Arduca’s] failure to give notice of injury”. Leaving aside the complaint raised concerning “notice”, the brief submissions in support of this broad suggestion of error merely restate arguments as advanced at the arbitration hearing, which submissions were subsequently rejected by the Arbitrator. No alleged error is identified in the reasons as expressed by the Arbitrator other than a bland assertion of factual error. No relevant error is made out. So far as complaint is made concerning the Arbitrator’s approach to the appellant’s reliance upon s 254 of the 1998 Act as to failure to give notice of injury, those matters raised are addressed below where ground (e) is considered.
Ground (c)
The appellant’s complaint under this ground makes reference to matters raised in ground (a) which have been addressed above between [34] and [59]. The appellant argues that the Arbitrator, in the conduct of the proceedings “abdicated the role of impartial adjudicator and assumed the role of acting on behalf of or in the interests of one of the parties” (submission [XIII]).
The appellant expressly states in submissions that it “does not seek to suggest any actual bias on the part of the Arbitrator”. Whilst it is suggested that it was “inappropriate for the Arbitrator to assume a role other than that of the independent determiner of facts in dispute”, the submissions do not expressly suggest that the Arbitrator’s conduct demonstrated apprehended bias. Notwithstanding the absence of any such argument, the appellant asserts that the Arbitrator “enter[ed] the arena” and had “adopted the role of an advocate”.
It is difficult to understand how such serious allegations concerning the conduct of the Arbitrator could be made by the appellant in circumstances where it expressly eschews any reliance upon suggested actual bias. Leaving aside this apparent contradiction which arises from argument as advanced, I reject those allegations. Leaving aside any further analysis of the argument advanced, I have earlier (at [50]) rejected the appellant’s arguments concerning denial of procedural fairness which were substantially founded upon the manner of conduct of the proceedings by the Arbitrator. This ground must be rejected.
It only remains to be stated that the Arbitrator comprehensively set forth his reasons for, and the statutory framework which permitted, his making of directions, which seem to be the subject of this complaint (at [17]–[24]) of Reasons, 11 February 2014). The manner in which the Arbitrator conducted the hearing, in my view, complied with his statutory obligations and that, in exercise of the Commission’s jurisdiction, there was no departure from permissible conduct as discussed by Bryson JA (Handley JA and Bell J agreeing) in Aluminium Lourves and Ceilings Pty Ltd v Zheng 2006 4 DDCR 358. As was stated by his Honour (at [25]):
“the overall and continuing duty under s 355 to use best endeavours to bring the parties to settlement acceptable to all of them must have large influence on the manner in which proceedings are conducted. The environment of contestation and the confrontational methods of the common-law trial would not usually be appropriate; there may be issues of kinds which it is appropriate to deal with in that style, and much is left to the discretion of the Arbitrator. The Arbitrator is in a good position to decide on and to impose appropriate controls on the adduction of evidence, by cross-examination or otherwise.” (emphasis added)
Ground (d)
This ground asserts error by the Arbitrator in the manner of exercising discretion granted by the terms of the former s 40 of the 1987 Act. That discretion concerns calculation of the quantum of weekly payments. The amount awarded must not exceed the reduction in the worker’s weekly earnings as calculated in accordance with the section “but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case”: former s 40(1).
The complaint made is that the Arbitrator, when reducing the difference between probable earnings and ability to earn by $100 per week, had not “adequately reflected the significance of the deductions to be made” (submissions [XV]). Factors said by the appellant to be relevant to the exercise of discretion were:
“…the fact that the respondent worker had elected to retire from his employment together with the fact that his capacity and health is otherwise significantly compromised by reason of his lower back condition (for which he had received substantial lump sum and other compensation) together with various other non-work related medical conditions referred to in the medical evidence”.
The Arbitrator’s Reasons of 11 February 2014 (at [46]) demonstrate that the matters raised by the appellant as being relevant to the exercise of discretion had been considered. It is to be noted that the Arbitrator acknowledged that Mr Arduca, so far as his back condition was concerned, had been able to perform his normal duties. Guidance as to the proper approach to the exercise of this discretion was acknowledged by the Arbitrator by his citation of the observations made by McHugh JA (as he then was) in Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50.
What is clear from those matters stated by the Arbitrator is that he had, properly in my view, disregarded the antecedent back injury. It may reasonably be inferred from the reasoning expressed that the Arbitrator had taken into account the various unrelated health factors and Mr Arduca’s need to retire from the workforce.
Nothing put on behalf of the appellant supports the suggestion of error. The complaint is that the reduction was not “adequate” and “should have been substantially more”. Such argument does not address those matters relevant to determination of error in exercise of a discretion as is found in the decision of the High Court in House v R (1936) 55 CLR 499. This ground fails.
Ground (e)
This ground suggests error of the Arbitrator founded upon his “misconception” of the appellant’s submissions concerning alleged failure by Mr Arduca to give notice of the hernia injury alleged to have been received in October 2008. I accept the appellant’s submission that the reasons expressed by the Arbitrator demonstrate that he had misapprehended the argument put at the hearing concerning suggested failure to comply with s 254 of the 1998 Act with respect to the hernia injury (at [117], [162] and [183] of Reasons, 11 December 2013). Whilst the Arbitrator had stated (at [183] of Reasons), “Mr Macken made no submissions in regard to notice of injury pursuant to ss 254, 255, 261 and 262 of the 1998 Act in respect of the hernia injury” the appellant had in fact stated that reliance was placed upon the provisions of s 254 concerning that injury (T13, 18 November 2013). Mr Arduca argues on this appeal that the appellant had accepted liability in respect of the hernia injury in March 2009 and that the “denial” of the claim was not raised until issue of the s 74 notice (the terms of which were, in any event, disputed) in 2011.
Mr Arduca, both at the hearing before the Arbitrator and on this appeal, asserts that the “dispute” concerning s 254 of the Act had not been, so far as the subject hernia injury is concerned, properly been raised by the appellant as is required by the terms of s 74 of the 1998 Act.
In a very broadly stated notice issued by the appellant’s solicitor on 13 October 2011, the only reference relevant to any question of notice of injury (s 254 of the 1998 Act) appears in, what may be described as, a “catch all” paragraph which stated as follows:
“The issues relevant to this dispute are those identified above and the sections of the legislation on which our client relies in declining liability include Sections 4, 9, 9A, 33, 36, 37, 38, 38A, 40, 60 and 67 of the Workers’ Compensation Act 1987 and also Sections 57, 74, 254, 260, 261 and 323 of the Workplace Injury Management and Workers’ Compensation Act 1998.”
The question of “notice of injury” had not been, otherwise, specifically raised. There was, as argued by Mr Arduca at the hearing before the Arbitrator, no specific reference to failure to notify concerning the hernia injury. That question, having regard to the Arbitrator’s misapprehension, had not been addressed by him.
The question arises as to whether the error by the Arbitrator, in overlooking the matter of the appellant’s asserted defence founded upon s 254 and Mr Arduca’s response in submissions, had relevantly affected his decision. Resolution of that question will determine the need or otherwise for intervention as is permitted by s 352(7) of the 1998 Act.
Mr Arduca’s complaint concerning the absence of particularity in the s 74 notice is, in my opinion, well founded. It is well established that proper compliance with the provisions of s 74 requires more than a mere recitation of a section or sections of the Acts upon which reliance is placed by an employer or insurer (see Mateus v Zodune Pty ltd t/as Tempo Cleaning Services (2007) 6 DDCR 488).
The appellant’s failure to comply with the notice requirements (s 74) had the consequence that such “dispute” could not be referred for determination by the Commission: s 289A of the 1998 Act. No application for leave (s 289A(4)) to rely on the provisions of s 254 had been made by the appellant before the Arbitrator. That defence was, thus, not available to the appellant before the Arbitrator. It follows that the Arbitrator’s failure to address any issue arising from the brief and, it must be said, deficient submission concerning this section has not relevantly affected his decision. This ground fails.
Ground (f)
Complaint is made that the Arbitrator had failed to “give adequate reasons in respect of the issue of s 9A” of the 1987 Act. That section provides that no compensation is payable unless the employment concerned was a substantial contributing factor to the injury.
It is clear that there is an obligation upon an Arbitrator to provide reasons for his decision, and such reasons should be sufficient to enable a party to exercise his right of appeal: Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 per Mahoney JA at 270.
The Arbitrator had found that the hernia injuries had “arisen out of or in the course of [Mr Arduca’s] employment with the respondent on 16 October 2008 and from 2005 to 19 April 2010” (at [182] of Reasons, 11 December 2013). As to the employment being a substantial contributing factor to those injuries, the Arbitrator stated his reasons (at [185] and [186] of Reasons, 11 December 2013). As to the application of relevant principle, the Arbitrator made reference, appropriately in my view, to the decision of the Court of Appeal in Badawi v Nexon Asia Pacific t/as Commander Australia Pty Ltd (2009) 75 NSWLR 503. The Arbitrator’s finding that the requirements of s 9A had been made out was said to be founded upon the evidence of Dr Fulham, Dr Pham, Dr Conrad and Professor Ham. The evidence of those expert medical witnesses had been thoroughly summarised by the Arbitrator earlier in his Reasons.
It is my view that the reasons expressed by the Arbitrator met the suggested standards concerning the provision of such reasons as was stated by Meagher JA in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (at 443–444). His Honour there expressed the view that there are three fundamental elements of a statement of reasons which, it was said, may be useful to consider. Briefly summarised they are: a judge should refer to relevant evidence; material findings of fact and any conclusions or ultimate findings of fact reached should be set out, and thirdly, those reasons “should be understandable and preferably logical as well”.
The argument as advanced by the appellant appears to do little more than restate its argument as to liability in respect of the occurrence of injury. No deficiency in the reasons provided is made out and this ground is rejected.
Ground (g)
This ground suggests error of the Arbitrator “in his consideration of the significance of the entry recorded in the clinical notes of Dr Pham on 16 October 2008”. Mr Arduca had consulted Dr Pham, his general practitioner, on 16 October 2008. Dr Pham’s clinical notes record that Mr Arduca had on that occasion reported a number of health issues including the following:
“still feels that has [sic] lump R groin noted Dr Brenner’s r/v has been given flomaxtra for u/s of lump that pt. feels.”
It is correct, as submitted by the appellant, that Dr Pham did not record complaint of a specific lifting injury having occurred on that day. It is also correct, as submitted, that Dr Pham, in her report dated 26 March 2012 stated:
“I was not made aware of any specific accident that had taken place. It was felt that his exacerbation of lower back pain and bilateral hernia was a result of long term lifting and carrying which is required as a driver.”
It seems to have been argued before the Arbitrator that the absence of any record made by Dr Pham concerning a lifting incident on that day, and the fact that earlier complaints concerning groin pain had been made by Mr Arduca, raised doubt as to whether such incident occurred. It seems to be suggested on this appeal that the Arbitrator erred in failing to find against Mr Arduca concerning the issue of injury on 16 October 2008, given that the occurrence of such injury is not corroborated by the records of Dr Pham.
The Arbitrator acknowledged the appellant’s arguments concerning the state of Dr Pham’s evidence. Notwithstanding the absence of corroboration from that witness, the Arbitrator expressed her view that the occurrence of injury was established on the evidence of Mr Arduca, who had said that he had reported the incident to two site supervisors, Mr Facchetti and Mr Gauci, “before he saw Dr Pham”. Mr Arduca’s statement dated 27 November 2012 plainly records those matters found as facts by the Arbitrator. It was noted by the Arbitrator that Mr Arduca had not been challenged concerning the evidence of report to the supervisors, nor had evidence been called by the appellant to refute those matters.
The matters referred to by the Arbitrator were sufficient in his view, notwithstanding the absence of corroboration by Dr Pham, to satisfy his that the lifting incident had occurred as alleged. That conclusion was open to the Arbitrator on the evidence and his reasons for so concluding have been plainly stated. No error is demonstrated and this ground is rejected.
It may be seen that each ground relied upon by the appellant has been rejected. In the circumstances the appeal must be dismissed. Appropriate orders appear below.
DECISION
The Arbitrator’s findings found in Certificate of Determination dated 11 December 2013 are confirmed.
The orders found in Certificate of Determination dated 11 February 2013 are confirmed.
COSTS
The appellant is to pay Mr Arduca’s costs of the appeal.
Kevin O'Grady
Deputy President
29 May 2014
I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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