Fam v Sage Civil Engineering Pty Limited
[2007] NSWWCCPD 201
•26 September 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Fam v Sage Civil Engineering Pty Limited [2007] NSWWCCPD 201
APPELLANT: Andrew Fam
RESPONDENT: Sage Civil Engineering Pty Limited
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER: WCC1967-07
DATE OF ARBITRATOR’S DECISION: 13 June 2007
DATE OF APPEAL DECISION: 26 September 2007
SUBJECT MATTER OF DECISION: Errors of fact
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Adams & Co
Respondent: Moray & Agnew
ORDERS MADE ON APPEAL: Paragraphs one and two of the Arbitrator’s determination of 13 June 2007 are revoked and the following orders made:
“1.The matter is remitted to a different Arbitrator for the Appellant Worker’s claim to be redetermined in accordance with the reasons in this decision.
2.Costs of the first Arbitration are to follow the event of the second Arbitration.”
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
Andrew Fam (‘the Appellant Worker/Mr Fam’) started working for Sage Civil Engineering Pty Limited (‘the Respondent Employer/Sage’) as an operator/driver in July 2005 and continued until 24 February 2006. He had previously been engaged by Sage as a contractor between mid 2003 until August 2004 and again from January 2005 until June 2005.
The nature of Mr Fam’s duties with Sage was the subject of conflicting evidence before the Arbitrator. The Respondent Employer’s evidence was that Mr Fam only drove a truck and/or operated an excavator but did not perform any physical or labouring duties. Mr Fam claimed that he performed extensive heavy lifting in the course of his duties. A co-worker, Mr Cole, corroborated Mr Fam’s claim.
At some stage in either 2005 or early 2006 Mr Fam developed pain in his back and right leg. Precisely when and in what circumstances he developed these symptoms was the subject of conflicting evidence.
Exactly when Mr Fam first reported his symptoms is also the subject of conflicting evidence. The claim form (completed on 31 March 2006) states that his injury was reported on 2 February 2006 but in his statement of 20 December 2006 Mr Fam claims that he told Mr Murdocca “sometime between November 2005 to early January 2006” he was in a lot of pain in his lower back (see Mr Fam’s statement 20 December 2006, paragraph eight).
As I understand the evidence, it is accepted that Mr Fam ceased work on 24 February 2006 (T11.47) and that a CT scan performed on that day revealed a prolapse at the L5/S1 level. An MRI scan was performed on 14 March 2006 and he underwent decompressive surgery on 15 March 2006.
In Mr Fam’s claim form the relevant “incident” is described as “nature and conditions – heavy lifting, bending”. Under “description of injury”, the words “siatica [sic] right leg – disc protrusions in lumbar spine”.
The Respondent Employer’s case is Mr Fam’s duties involved no heavy manual activities and that he injured his back whilst building a pigeon shed at home on an unspecified date (statement Peter Murdocca, 7 June 2006, paragraphs nine and ten), or while building rabbit cages in January 2006 (clinical notes from Dr Law 7 February 2006).
Mr Fam’s claim for compensation was initially accepted and voluntary compensation paid until 8 August 2006.
By an Application to Resolve a Dispute (‘the Application’) registered in the Workers Compensation Commission (‘the Commission’) on 21 March 2007, he sought weekly and lump sum compensation together with medical expenses as a result of an injury to his back that is alleged to have occurred on 1 September 2005. The injury is described in the Application as having occurred as a result of the “nature and conditions of employment (lifting, bending digging) and tying down heavy machinery in late January 2006”.
At the hearing it was alleged that Mr Fam’s claim was in “relation to the nature and conditions of employment from June 2005 up until late January 2006” (T41.34). In his Statement of Reasons for Decision (‘Reasons’) the Arbitrator referred at paragraph 19 to an allegation of injury on 1 September 2005 and as a result of the nature and conditions of his employment between 1 July 2005 and 24 February 2006. Neither party has taken objection to that statement by the Arbitrator though it certainly would have been helpful if the claim had been more clearly particularised in the Application or at the hearing.
Sage filed a Reply on 4 April 2007 in which it disputed injury, whether employment was a substantial contributing factor to any injury, whether Mr Fam had any entitlement to weekly compensation and the extent of any whole person impairment alleged to have resulted from the injury.
The matter was listed for conciliation and arbitration on 31 May 2007 when the claim for weekly compensation was abandoned (T4.11). Mr Fam gave very brief oral evidence but was not cross-examined. Each side made lengthy submissions. In a reserved decision delivered on 13 June 2007 the Arbitrator did not accept that Mr Fam received an injury arising out of or in the course of his employment with Sage and made an award in its favour.
By an Appeal Against Decision of Arbitrator filed on 9 July 2007, Mr Fam seeks leave to appeal the Arbitrator’s decision.
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 Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant Worker submits that the appeal cannot be resolved on the papers because it involves complex issues of fact and the failure by the Arbitrator to take into account evidence such that a demonstrable error or procedural unfairness occurred. I am not satisfied that the issues raised on appeal are so complex that an oral hearing is required. The parties have made detailed written submissions on all issues and I am satisfied that those submissions have adequately dealt with those issues.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the Respondent Employer 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 13 June 2007, records the Arbitrator’s orders as follows:
“1.There be an award for the Respondent in the [sic] respect of the Applicant’s claim for lump sum benefits and section 60 expenses;
2.No order as to costs.”
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 (‘Zheng’) where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be one that has the capacity to affect the result (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that a key witness (Mr Cole), relied on by Mr Fam to corroborate his evidence of the nature of his duties and his complaint of back pain at work, was not in the employ of the Respondent Employer in the period August/September 2005 to January 2006 (Reasons, paragraph 38) (‘finding in respect of Mr Cole’);
(b)finding or having regard to the history of Mr Fam being a contractor and having been responsible for organising workers compensation matters (Reasons, paragraph 36), such error affecting the Arbitrator’s assessment of Mr Fam’s credit (‘Mr Fam’s knowledge of workers’ compensation matters’);
(c)in rejecting the amended opinion of Dr Powell in his report of 25 July 2006 that Mr Fam’s employment was a substantial contributing factor to his condition (‘rejection of Dr Powell’s evidence’);
(d)in finding that Dr Powell’s opinion was influenced by the fact that there might have been some prejudice by the Respondent Employer’s witnesses towards Mr Fam (‘rejection of Dr Powell’s evidence’), and
(e)in finding that Mr Fam had not suffered an injury in the course of or arising out of his employment with the Respondent Employer (‘finding on injury’).
SUBMISSIONS AND FINDINGS
Finding in Respect of Mr Cole
Mr Cole gave evidence in his statement of 22 January 2007 that he worked for Sage as an operator/manager from March 2005 to January 2006. He said that he worked alongside Mr Fam and he recalled Mr Fam performing manual labour involving the use of sledge hammers, crow bars, shovels, post drivers and rakes. In addition, Mr Fam would load ramps, drive star pickets into the ground and remove them by hand. He recalled Mr Fam regularly complaining about back pain in the period November 2005 to February 2006 and that the laying of star pickets especially caused him to suffer back pain (Mr Cole’s statement 22 January 2007, paragraph five).
This evidence is of some importance as it corroborates Mr Fam’s evidence in his statements and the histories recorded by his doctors (Dr Bodel 24 July 2006, page one, and Dr Powell 31 May 2006, page two).
The Arbitrator’s finding about Mr Cole’s evidence is set out at paragraph 38 of his Reasons:
“The Applicant would ask that I accept the evidence of both he and the independent witness, Mr Cole, as to the nature and type of work undertaken by the Applicant, be it that it was of a heavy nature especially during the period August/September 2005 through to January 2006. I am troubled, obviously, by this request having in mind that the evidence suggests that Mr Cole was not in the employ of the Respondent during this period of time.” (emphasis added)
The Arbitrator’s reference to “this period” is clearly a reference to “August/September 2005 through to January 2006”. I do not accept the Respondent Employer’s submission that the Arbitrator was restricting his comments to the period from 29 September 2005 until 5 January 2006.
The evidence from Domenic Murdocca, the Respondent Employer’s managing director, in his statement of 26 March 2007 is that Mr Cole contracted with Sage as a plant operator/truck driver under the name of Benbrad Contracting. Domenic Murdocca prepared a schedule setting out the “weeks ending for the times he [Mr Cole] was contracted by us [Sage] and working with Andrew Fam” (Domenic Murdocca’s statement 26 March 2007, paragraph 14). In that schedule Mr Cole was shown to have contracted with Sage for the weeks ending: 10, 19, 26 and 31 August 2005; 15, 23, and 28 September 2005; and 6, 13, 20 and 27 January 2006. Therefore, the evidence establishes that Mr Cole did work with Mr Fam for part of the relevant period of the nature and conditions claim though not in the period from 29 September 2005 until 5 January 2006.
The Arbitrator was therefore in error in finding that Sage had not engaged Mr Cole in the period “August/September 2005 through to January 2006”. Mr Cole did contract with Sage through the whole of August and September 2005 and most of January 2006.
Mr Cole’s evidence was significant and should have been considered by the Arbitrator in assessing whether Mr Fam’s duties involved heavy labouring activities (as he told Drs Bodel and Powell) and whether those duties caused the disc injury revealed in the February 2006 CT scan.
Mr Fam’s Knowledge of Workers’ Compensation Matters
At paragraph 36 of his Reasons the Arbitrator said:
“The evidence in this case is fraught with numerous inconsistencies in evidence both lay and expert. I am mindful from the outset that it is clear the Applicant is not a person to whom workers compensation matters are foreign. He was an employer working in his own right as a contractor and was responsible for organising workers compensation matters.”
Mr Fam submits that the above findings or inferences were not supported by or open on the evidence. The evidence in Mr Fam’s statement of 17 October 2006 is that he was a contractor to the Respondent Employer from mid 2003 until August 2004 and that he had his own workers compensation policy. That policy was with CGU Workers Compensation (NSW) Ltd (‘CGU’), the same company that insures Sage. There was no evidence of any prior claims for compensation by Mr Fam or that any business in which he was involved was involved in any compensation claims.
Mr Fam submits that the Arbitrator approached his assessment of the claim with a prejudiced view based on the above factual findings, which were incorrect. As a result, he regarded Mr Fam’s claim as tainted by a previous knowledge of the workers compensation system and “a willingness to somehow manipulate the claim process” (Appellant Worker’s submissions, 9 July 2007 paragraph 2.4). Such a finding, it is argued, was manifestly erroneous and unfair.
The Respondent Employer argues that the fact that Mr Fam had previously been a contractor with his own workers compensation policy provided a sufficient basis for the Arbitrator to “make assumptions as to the appellant’s knowledge of workers compensation matters” (Respondent Employer’s submissions, paragraph eight). This finding was relevant because of the dispute as to when notice of any alleged injury was given to Sage.
The Respondent Employer also argues that the alleged error on this issue relates to a matter of discretionary judgment on the basis of the Arbitrator’s view of the evidence and should not be interfered with unless it is manifestly obvious that the discretion has so miscarried that is has not been exercised fairly and lawfully (Rohloff v Diacutt Pty Ltd (In Liquidation) [2005] NSWWCCPD 17).
Whilst I agree that the Arbitrator’s finding on this issue was relevant to the final outcome, I do not accept the Respondent Employer’s submission that the evidence supported the Arbitrator’s conclusion. The evidence went no further than establishing that Mr Fam had been a contractor and at that time held a workers’ compensation insurance policy. That evidence provided no basis for the Arbitrator’s conclusion at paragraph 46 of his Reasons that Mr Fam “was well versed in the protocol and procedures of workers compensation and, in particular, the making of claims”. There was no evidence of Mr Fam’s prior claims experience or history, either as a worker or a contractor. This was not a matter of the Arbitrator exercising his discretionary judgement. The Arbitrator has drawn conclusions adverse to Mr Fam that were not supported by the evidence. Those conclusions clearly influenced the Arbitrator’s assessment of the claim.
The Arbitrator’s references to this matter at paragraphs 36 and 47 of his Reasons clearly indicate that he placed some significance on it when reaching his ultimate conclusion on liability. In doing so he was in error because there was no evidence to support his conclusion. This error does not relate to the exercise of the Arbitrator’s discretionary judgment but to the drawing of inferences not supported by the evidence. If I am wrong in my characterisation of this error, I am satisfied that the exercise of the Arbitrator’s discretion has so miscarried that it has not been exercised fairly or lawfully.
Rejection of Dr Powell’s Evidence
Dr Powell examined Mr Fam at the request of CGU on 18 May 2006 and reported on 31 May 2006. He took a history that Mr Fam had been experiencing low back and right leg pain for some time and had attended his local doctor in early February 2006. No obvious precipitating event was identified by Mr Fam as having caused his symptoms but he stated that his job was physically demanding and that general labouring, driving star pickets, use of a bobcat and truck driving led to the development of his symptoms. At page eight Dr Powell stated that it was “reasonable to conclude that as a result of the nature and conditions of Mr Fam’s employment with Sage Civil Engineering, he has developed lumbar disc pathology”.
After receiving the above report CGU forwarded to Dr Powell a copy of Mr Fam’s job description and a statement dated 7 June 2006 from Peter Murdocca, a labourer and plant operator employed by Sage. He is also the brother of the company’s general manager, Domenic Murdocca. Peter Murdocca states that Mr Fam did not do any labouring work or lifting or bending for Sage. He recalled Mr Fam telling him that “basically he hurt his back building his pigeon shed” (Peter Murdocca’s statement 7 June 2006, paragraph nine).
In the light of the above information Dr Powell was asked if Mr Fam’s employment with Sage was a substantial contributing factor to his current condition. Dr Powell responded in a report dated 25 July 2006 in which he made the following points:
(a)the job description did not refer to the specific tasks undertaken by Mr Fam in the course of his work. The doctor specifically asked Mr Fam about the nature and conditions of his employment and a summary of the tasks was set out in the report of 18 May 2006;
(b)Mr Fam denied the presence of any pre-existing back injuries or symptoms, or any other obvious precipitating event;
(c)Mr Fam volunteered that there had been a falling out with the boss as a result of his back condition and that may be relevant “in consideration of Mr Fam’s history of events versus the statement provided by Mr Peter Murdocca who is the brother of Domenic Murdocca who is the Managing Director of the company”;
(d)the conclusions reached in his report of 18 May 2006 were based on the information provided by Mr Fam;
(e)the additional information supplied by CGU did not alter his opinion that Mr Fam’s employment with Sage was, on the balance of probabilities, a substantial contributing factor to his current condition, and
(f)in view of the discrepancies noted, a more detailed factual review may be needed.
The Arbitrator considered the above evidence at paragraph 44 of his Reasons where he quoted part of the doctor’s conclusion but did not refer to the fact that Dr Powell expressly stated that the additional information supplied by CGU did not alter his opinion. The Arbitrator then stated at paragraph 45 of his Reasons that:
“Clearly the doctor is having a little each way. There is no doubt the Doctor was influenced by the fact that there might be some prejudice towards the Applicant in light of the family business and the supportive material given by family members.”
It is submitted that the Arbitrator was in error in misquoting the doctor’s second report and in drawing a conclusion about the doctor’s opinion that was inconsistent with the contents of the report.
I do not believe the Arbitrator misquoted the doctor’s report. However, the reference to the doctor “having a little each way” is difficult to follow. The doctor’s opinion was quite clear; he thought, based on an acceptance of Mr Fam’s history, that Mr Fam’s employment with Sage was a substantial contributing factor to his back condition. That did not mean the Arbitrator was bound to accept that conclusion. The issue for the Arbitrator to determine was whether Mr Fam’s history was factually correct. If it was, then it provided a reasonable basis for the acceptance of opinions of Drs Bodel and Powell.
Whilst I do not believe it was accurate to say that the doctor was having a “little each way”, Dr Powell’s conclusion was not determinative of the factual issues in this case. His conclusion was only as good as the history on which it was based. That history was the subject of a serious challenge on several issues. It was not for the doctor to determine the accuracy of the conflicting histories. Whether the doctor was influenced by the fact that there might have been some “prejudice towards the Applicant in light of the family business” was irrelevant. The critical question was: did Mr Fam injure his back at work or at home? Dr Powell was obviously not in a position to express an opinion on that issue.
Even if the Arbitrator was in error in considering that the doctor was influenced by the possibility of “prejudice towards the Applicant in light of the family business” I do not believe that that error was of any consequence in the final outcome and I reject this ground of appeal.
Finding on Injury
Mr Fam submits that the Arbitrator’s reasons disclose inappropriate logic and a conclusion that is contrary to the legal test of ‘injury’ set out in Nunan v Coclatoo Docks & Engineering Co. Ltd (1941) SR (NSW) 119 (‘Nunan’). Reliance is placed on the radiological evidence of lower back pathology in the CT scan dated 12 February 2006, the evidence of Drs Bodel and Powell, and Mr Fam’s statements which are corroborated by Mr Cole.
It is further argued that the Arbitrator’s acceptance that Mr Fam “sustained some intermittent back pain between September and January of 2006” (Reasons, paragraph 47) was sufficient to meet the test laid down in Nunan but the Arbitrator then went on to take into account irrelevant matters such as Mr Fam’s capacity to continue working and (erroneously) his apparent familiarity with workers compensation procedures.
I do not accept that the Arbitrator’s reasons disclose “a conclusion that is contrary to the legal test of injury”. His ‘finding’ at paragraph 47 of his Reasons was no more than a statement that he “might” have been able to accept that Mr Fam experienced intermittent back pain between September 2005 and January 2006. It was appropriate for the Arbitrator to note that that pain did not prevent Mr Fam from working and was not the subject of any complaint to a doctor. However, neither of those matters was determinative of the question of injury. The Arbitrator then referred to Mr Fam being well versed in “the protocol and procedures of workers’ compensation”. As noted above at [40] above, the evidence did not support that finding. The Arbitrator then stated that he viewed Mr Fam’s evidence with some degree of scepticism because of inconsistencies in his evidence and the apparent failure to disclose the “incident concerning the tying down of machinery”. Therefore, he was “not minded to make an order” that Mr Fam suffered an injury in the employ of Sage.
The Respondent Employer submits that the Arbitrator “indicated that, on the totality of the evidence, he did not accept that the appellant had suffered an injury during the course of his employment as alleged” (Respondent Employer’s submissions, paragraph 27) and that that finding was based on logically probative evidence. It was a finding, it is argued, that was open on the evidence and one that should not be disturbed unless the Arbitrator has acted on some wrong legal principle, allowed irrelevant considerations to influence the decision, made material mistake as to the facts or failed to take into account relevant and material considerations (Babylon Property & Cleaning Services Pty Ltdv Hormoz [2005] NSWWCCPD 21. It is further argued that the Arbitrator found that Mr Fam’s injury occurred whilst he was building a rabbit cage.
First, the power on review is not restricted in the manner suggested by the Respondent Employer (see Zheng and Edmonds cited at [23] and [24] above).
Second, assuming that the Arbitrator made the factual finding submitted by the Respondent Employer at [53] above, that finding was influenced by a material mistake as to the facts in that the Arbitrator was incorrect when he stated that Mr Cole did not work with Mr Fam during any part of the period from August/September 2005 until January 2006 and when he stated that Mr Fam was well versed in making workers’ compensation claims. Both of those factual findings were significant factors in the Arbitrator’s analysis and reasoning. The evidence supported neither finding.
Third, the Arbitrator did not find that Mr Fam injured his back whilst building a rabbit cage. Whether that finding was open depended on which of the lay witnesses the Arbitrator accepted. Whilst he expressed “scepticism” about parts of Mr Fam’s evidence, he did not make an express finding about the dispute over the nature of his duties and the conflict with Peter Murdocca’s evidence. The resolution of this case depends on a finding being made on this conflict.
Therefore, whilst I do not accept that the Arbitrator’s conclusion was contrary to “the legal test of injury”, I also reject the Respondent Employer’s argument that the Arbitrator’s factual findings were soundly based.
CONCLUSION
There are two relevant factual errors in the decision under review: first, the finding the Mr Cole did not work with Mr Fam during any part of the period from August/September 2005 until January 2006, and, second, a finding that Mr Fam was well versed in making workers’ compensation claims. Both errors were critical to a proper and fair assessment of Mr Fam’s claim and influenced the Arbitrator in his analysis of the issues and in reaching his final conclusion. Therefore, the Arbitrator’s decision must be revoked.
I have carefully considered whether I should redetermine the matter or remit it to a different Arbitrator. In view of the very significant credit issues involved, it is my view that the proper course is to remit the matter to a different Arbitrator for redetermination. At that redetermination it may well be that the second Arbitrator will be assisted in hearing oral evidence in order to determine some of the factual disputes that have arisen. On the question of when oral evidence will be allowed in the Commission, the parties are referred to the guideline for the “Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission” (April 2007) and the discussion about the application of that guideline in Electrolux Home Products Pty Ltd v Richeyand Email Limited [2006] NSWWCCPD 242 at [46] and Taumata v Movers and Shakers Pty Ltd [2005] NSWWCCPD 123 at [43] and [44].
DECISION
Paragraphs one and two of the Arbitrator’s determination of 13 June 2007 are revoked and the following orders made:
“1.The matter is remitted to a different Arbitrator for the Appellant Worker’s claim to be redetermined in accordance with the reasons in this decision.
2.Costs of the first Arbitration are to follow the event of the second Arbitration.”
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
Bill Roche
Deputy President
26 September 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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