Greif Australia Pty Limited v Ahmed
[2007] NSWWCCPD 195
•14 September 2007
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Reconsideration: This decision has been the subject of a reconsideration see Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 229 | |||||
| CITATION: | Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 195 | ||||
| APPELLANT: | Greif Australia Pty Limited | ||||
| RESPONDENT: | Rashid Ahmed | ||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | WCC2-07 | ||||
| DATE OF ARBITRATOR’S DECISION: | 26 April 2007 | ||||
| DATE OF APPEAL DECISION: | 14 September 2007 | ||||
| SUBJECT MATTER OF DECISION: | Weight of evidence; injury; medical evidence. | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Sparke Helmore | |||
| Respondent: | Buttar Caldwell & Co | ||||
| ORDERS MADE ON APPEAL: | Paragraph one of the Arbitrator’s determination dated 26 April 2007 is confirmed. Paragraph two of the Arbitrator’s determination is revoked and the following order made: | ||||
| “The matter is remitted to the same Arbitrator for submissions and determination of the appropriate costs order for the conciliation and arbitration.” | |||||
| No order as to costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
On 24 May 2007 Greif Australia Pty Ltd (‘the Appellant Employer/ Greif’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 April 2007.
The Respondent to the Appeal is Rashid Ahmed (‘the Respondent Worker/ Mr Ahmed’).
Mr Ahmed is a 50-year-old man who was employed by Greif Australia Pty Ltd from 1989 as a machine operator/leading hand. His duties included driving a forklift, filling hoppers with 25-kilogram bags, cleaning out rubbish, lifting 30-kilogram moulds, quality control and lifting loads of more than 20-kilograms throughout the day.
Whilst working the night shift on 17 March 2005 Mr Ahmed felt a click and severe pain in the right side of his neck when he lifted a 60-litre drum filled with rubbish onto a pallet positioned four feet above the ground. The following morning he consulted his general practitioner, Dr Khoo, who prescribed analgesics and gave him a medical certificate for time off work due to “soft tissue injury of right shoulder” (medical certificate, 18 March 2005). Dr Khoo also referred Mr Ahmed to Dr Elliott, orthopaedic surgeon, who saw him on 24 March 2005, arranged an MRI scan of the cervical spine and referred him to Professor Dan, neurosurgeon. The MRI scan dated 12 April 2005 revealed a large right-sided posterolateral protrusion of the C5/6 disc with a small left posterolateral protrusion of the C6/7 disc.
On or about 12 May 2005 Mr Ahmed took painkillers in the afternoon for his neck and shoulder and went to sleep because he was feeling lethargic. He slept through the evening and, as a result, did not take any medication that night. When he woke the next morning he felt pain in his back and was unable to get out of bed (Mr Ahmed’s statement 2 April 2007, paragraph eight). He saw Dr Khoo on 13 May 2005 who noted Mr Ahmed’s low back pain. In July 2005 Mr Ahmed was out shopping at Doonside Shopping Centre when he felt pain in his hip. He immediately visited the nearest doctor.
On 11 October 2006, Mr Ahmed’s solicitor claimed lump sum compensation in the sum of $62,500.00 in respect of a 34% whole person impairment together with compensation for pain and suffering. The Appellant Employer’s insurer, Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’) arranged for the Mr Ahmed to be examined by Dr Isbister, orthopaedic surgeon, on 21 November 2006. Dr Isbister considered that the Respondent Worker had not yet reached maximum medical improvement. On the basis of the report by Dr Isbister, by letter dated 6 December 2006 Allianz declined to make any offer of settlement.
On 9 January 2007 Mr Ahmed filed an Application to Resolve a Dispute (‘the Application’) in the Commission claiming lump sum compensation as a result of injury to his neck, back, right shoulder, left shoulder, right arm, right hand and depression as a result of the lifting incident on 17 March 2005. It was also argued at the arbitration that Mr Ahmed sustained injury as a result of the nature and conditions of his employment. By its Reply filed 24 January 2007 Greif disputed liability for all injuries claimed on the ground that, among other reasons, employment was not a substantial contributing factor to the injury or injuries.
The matter was listed for conciliation and arbitration before a Commission arbitrator on 18 April 2007. The parties ultimately agreed that Mr Ahmed injured his cervical spine and right upper extremity on 17 March 2005. The Arbitrator had to determine whether Mr Ahmed also injured his lumbar spine on 17 March 2005 (T4.48) or as a result of the nature and conditions of his employment (T4.57).
In an ex tempore decision the Arbitrator found in favour of Mr Ahmed on the issue of injury to the back and remitted the matter to the Registrar for referral to an Approved Medical Specialist for whole person impairment assessment as a result of injury to the cervical spine, right upper extremity and lumbar spine.
Greif 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 yet been made in this case 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.
Interlocutory
For the reasons set out in P & O Ports Limited v Hawkins [2007] NSWWCCPD 87, I am satisfied that the Arbitrator’s determination is not a “preliminary or interim” determination of an interlocutory nature. The Respondent Worker has not submitted to the contrary.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 26 April 2007, records the Arbitrator’s determination as follows:
“By Consent
1. That the Applicant suffered injury to the following parts of his body in the incident of 17 March 2005
a. Cervical Spine
b. Right Upper Extremity and that the work that the Applicant did for the Respondent was a substantial contributing factor to those injuries.
Determined by the Commission
2. That the Applicant also suffered injury to his lumbar spine in the incident of the 17 March 2005 and that work was a substantial contributing factor to that injury.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)his interpretation and application of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’);
(b)failing to adequately address the discharge of onus of proof by the Respondent Worker;
(c)failing to address the issues raised by Dr Mastroianni, and
(d)making a decision contrary to the weight of the treating medical evidence.
REVIEW
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 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 such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; 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.
SUBMISSIONS
The Appellant Employer submits:
a) the onus of proving injury lies with the Respondent Worker;
b) there was no complaint of back pain until 13 May 2005, almost two months after the date of injury. The Respondent Worker consulted Dr Khoo, Dr Elliott and Dr Mastroianni during the two months but did not make any reference to back symptoms;
c) in the absence of there being another reason for his back symptoms the Arbitrator accepted the Respondent Worker’s version of events and his medical evidence. The Arbitrator stated that it was not determinative but he was unable to see any other explanation for the onset of back symptoms except that something happened 7 or 8 weeks before the symptomatology became obvious;
d) the Arbitrator has therefore erred as the Respondent Worker is required to prove and the Arbitrator is required to be satisfied that a back injury arose out of or in the course of employment on the evidence available, rather than in the absence of evidence to the contrary;
e) the Arbitrator has “failed to apply a test of proving the issue of causation between the incident on 17 March 2005 and the back symptomology [sic]” (Appellant Employer’s submissions, paragraph seven);
f) the Appellant Employer provided a logical explanation for Mr Ahmed’s back symptoms, namely, his pre-existing degenerative condition, as supported by Dr Mastroianni;
g) the Arbitrator did not address the importance of the allegedly severe episode of back pain experienced by the Respondent Worker on or about 13 May 2005 and in July 2005. These were major incidents relating to the back consistent with the natural progression of pre-existing degenerative changes;
h) the Arbitrator did not state that he did not accept the Appellant Employer’s medical evidence;
i) the decision of the Arbitrator should be revoked and an award made in favour of Greif in respect of the back injury, and
j) there should be no order as to costs.
The Respondent Worker submits:
a) the Arbitrator was correct in determining that the back injury was as a result of the incident on 17 March 2005. Reliance is placed on the authorities of Murray v Shillingsworth [2006] NSWCA 367 at [65], EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 at 242 and Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union (1979) 27 ALR 367 at 382;
b) the Arbitrator accepted that Mr Ahmed was taking “fairly significant medication for the pain [in his shoulder and neck], including Panadeine Forte and Naprosyn and he was given Tefenol to help him sleep at night.” (T17.44). The medication he was taking for the shoulder and neck would “have masked the pain in his lower back.” (T17.47);
c) the Arbitrator accepted Mr Ahmed’s evidence that he was “suffering significant pain in his neck and his shoulder and that is what he was focusing on and perhaps the back didn’t become significant until the incident in May 2005” (T17.48). The Arbitrator also stated at T17.10:
“I have no reason to disbelieve anything the applicant says. He says things that might otherwise be seen to be against his interest, and that is that he doesn’t at any point tell me or anybody else that he noticed pain in his back prior to what happened on 12 May 2005.”
d) the Arbitrator’s acceptance of Mr Ahmed’s evidence on matters of credit are matters an appellate court should be reluctant to question (Mayne Health Group v Sandford [2002] NSWWCC PD6);
e) the Arbitrator acknowledged that both Mr Ahmed and his doctors were focusing on the shoulder and neck injuries, which were significant and which resulted in a whole person impairment of between 10 percent and 14 percent and for which Mr Ahmed had minor surgery on his shoulder (T18.8). However, immediately when he experienced pain in his back he related it to the March 2005 work incident. Accordingly, the Arbitrator felt that that fact told him:
“…something about what the applicant was thinking at the time of the pain that he was suffering at the time, and I think it’s perhaps understandable that the applicant was focusing on the neck and shoulder at the time and that is what he was being treated for, and the back either wasn’t noticed or wasn’t significant to him.” (T18.18)
f) in his statement, Mr Ahmed said he first noticed his back pain in May 2005 when he failed to take his prescribed pain killers for his shoulder and neck. The Arbitrator stated at T19.3:
“I can’t see any other explanation for the applicant’s onset of significant lumbar spine symptomatology except something that happened seven or eight weeks before that symptomatology becoming obvious to him, and that seems to be the basis upon which the doctors who support the applicant make their findings.”
g) the Arbitrator acknowledged the Appellant Employer’s submissions as to other possible causes but felt he had to choose one as being the most likely (T19.31).
DISCUSSION AND FINDINGS
The essential facts in this case are not disputed and the Respondent Worker was not questioned about when his back symptoms first developed after the injury of 17 March 2005. Mr Ahmed’s neck and right shoulder injuries have been accepted as having been caused by the lifting incident on 17 March 2005.
The evidence in support of Mr Ahmed’s contention that he injured his back on 17 March 2005 or as a result of the nature and conditions of his employment with Greif is found in the report of Dr Adler.
Dr Adler saw Mr Ahmed on 16 August 2006 (report 22 September 2006) and took an incorrect history that about five weeks after the lifting incident Mr Ahmed developed low back pain and could not feel his right leg when he was walking in a shopping centre. He also recorded that Mr Ahmed informed his own general practitioner that he had some back pain “soon after the lifting incident” which worsened at the shopping centre (Dr Adler 22 September 2006, page three). He added that in August 2005 Mr Ahmed experienced a severe exacerbation of low back pain with pain and numbness in the right leg. A CT scan of the lumbar spine on 1 July 2005 revealed a bulge at L4/5 with possible impingement upon the nerve root. Under ‘opinion’ Dr Adler stated at page seven:
“…Mr Ahmed developed low back pain, following the lifting accident, that deteriorated suddenly with right sciatica developing five weeks later. CT scan suggested there is discal injury impinging [the] right sided nerve root. There is spasming [sic] of the lower back musculature, reduced straight leg raising and right S1 sensory nerve root radiculopathy.”
On causation the doctor stated:
“He was exposed to repetitive heavy lifting, often handling 25kg bags when filling the hopper.
The cervical and lower lumbar disc injuries, as well as the right shoulder traumatic acromioclavicular subluxation are a result of the repeated exposure to this heavy lifting activity, which was conducted without assistance.” (emphasis added)
Counsel for Mr Ahmed submitted at the arbitration that the doctor’s reference to “repeated exposure to this heavy lifting” was a reference to the fact that Mr Ahmed lifted three bins on his own without assistance on 17 March 2005 (Dr Adler’s report page two).
The solicitor for Greif submitted that the Arbitrator would have difficulty in accepting Dr Adler’s opinion because the history on page two of the doctor’s report refers only to Mr Ahmed sustaining an injury to his neck and shoulder on 17 March 2005. At page three the doctor recorded (incorrectly) that the back symptoms started five weeks later while walking in a shopping centre.
The basis on which Dr Adler connects the development of Mr Ahmed’s back symptoms to the lifting event or events on 17 March 2005 is not explained. The doctor did not consider or comment on the delay in onset of back symptoms when he considered causation.
The reports from Drs Mastroianni, Isbister, Dan and Habib are also relevant.
Dr Isbister’s opinion is of limited assistance as it was based on an incorrect history that Mr Ahmed complained of back pain either at the time of the lifting incident or that night when he went home. The Arbitrator was right to discount it as he did (T18.48). Dr Dan had a history of mild low back pain “from the onset” (report 8 July 2005). If “the onset” was a reference to 17 March 2005, it was incorrect. In any event Dr Dan expressed no opinion on causation but merely referred Mr Ahmed to Dr Elliott to discuss that problem. The only reports in evidence from Dr Elliott refer to Mr Ahmed’s neck and shoulder problems.
It is unclear when Dr Habib understood the back pain to have commenced. His history records that Mr Ahmed reported that he “had mild low back pain from lifting the heavy drums and the back pain had since persisted radiating to the right buttock” (report Dr Habib 15 July 2005, page two). It is difficult to put any weight on such a vague history and the Arbitrator did not refer to that report.
Dr Mastroianni examined and reported on Mr Ahmed on four occasions, the first on 5 May 2005. He took a history that in March 2005 Mr Ahmed lifted a 60-litre drum full of rubbish and, as he did so, felt a pinch and tearing sensation on the right side of his neck. The doctor examined Mr Ahmed’s neck and shoulders but the doctor did not examine or comment on Mr Ahmed’s back as no complaint had been made about it.
At a review on 18 August 2005, Dr Mastroianni took a history that Mr Ahmed started feeling some back pain in the second week of May 2005 and that he woke up with severe back pain on 13 May 2005. Under ‘opinion’ the doctor said at page four:
“Today he complains of back pain which started in May. There were no incidents or injuries. There was a gradual development of back pain over a week and on one particular day he woke up in more pain. Investigations show lumbosacral disc pathology of a degenerative nature. This could have been aggravated in the way that he moved or slept.
The development of back pain some two months after the neck injury is not consistent with an injury which could have occurred two months earlier when he injured the neck. Had he sustained any back injury he would have had some symptoms well before that and he would have mentioned same when I examined him in May. The fact that he had no symptoms in his back when I examined [him] on the 5th of May and it was not until some ten days later that the problems developed.
…
He has back pain due to degenerative lumbosacral disc disease which became symptomatic in May though he gives no history of any specific incident. Although he complains of back pain and severe radicular symptoms clinically there is no objective evidence of radiculopathy and the hypoaesthesia like the arm is non-physiological and not in a dermatomal [sic] distribution.”
The Arbitrator made only a very brief reference to the medical evidence in his Reasons. At T18.45 he said:
“The doctors, I guess, are divided, as they often are. Dr Adler, who is the medico‑legal opinion which supports the applicant, says that there’s a causal link; Dr Mastroianni, for the respondent, says there’s not; and Dr Isbister takes a history that is not consistent with what the applicant tells us and says he got a history of back pain prior to the May incident, so I don’t think Dr Isbister helps us very much because he doesn’t actually address the true history.”
The Arbitrator then added at T19.3 that he could not:
“…see any other explanation for the applicant’s onset of significant lumbar spine symptomatology except something that happened about seven or eight weeks before that symptomatology becoming obvious to him, and that seems to be the basis upon which the doctors who support the applicant make their findings.”
At T19.25 he conculded:
“I think that the incident in March 2005 was so significant and caused the applicant to have such treatment that it is the most likely cause of his back pain, and that’s really the way I have to determine this: what’s the most likely cause of this man’s symptomatology that starts in May 2005 and continues to this day?”
His reasons for the above conclusion were that:
(a)Mr Ahmed referred to it (T19.36);
(b)Dr Khoo supported him (T19.39);
(c)the doctors at the medical centre (Glenwood Medical Centre) where he developed his hip pain supported him (T19.41), and
(d)Dr Adler supported him.
Mr Ahmed’s belief as to the cause of his pain is of limited weight; especially in circumstances where there is a lengthy unexplained gap in complaints about the low back. His belief is no more than a self-serving statement. Without persuasive medical evidence to support a connection between the alleged event and the development of symptoms on 12 May 2005, Mr Ahmed’s subjective belief provides no support for the claim.
The only evidence from Dr Khoo is in his medical certificates and a hand written report dated 24 March 2005. The initial certificates only refer to a right shoulder injury and cervical disc disorder. The certificate of 13 May 2005 is the first mention of back pain but there is no report by the doctor attempting to link that pain with either the injury on 17 March 2005 or the nature and conditions of employment.
There are numerous medical certificates from various doctors at Glenwood Medical Centre. The first is from Dr Kheray dated 5 July 2005, which referred to a date of injury of 17 March 2005 and stated “instant neck pain and gradual back pain after lifting 60kg bin full of rubbish”. This history was not consistent with other evidence (accepted by the Arbitrator) that the back pain did not start until 12 May 2005. In any event, neither this certificate nor any of the other certificates from Glenwood Medical Centre give any reasons for purporting to support a claim that Mr Ahmed’s lower back symptoms have resulted from either the injury on 17 March 2005 or the nature and conditions of employment. The certificates contain no more than a bare assertion without any analysis of the issues and provide no support for the Arbitrator’s conclusion (Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16).
As noted above, the evidence from Dr Adler was also based on an incorrect history and was therefore of little persuasive value. It also provided no explanation for the delayed onset of back symptoms and how the development of the symptoms at home on 12 May 2005 could have resulted from Mr Ahmed’s work with Greif.
The Respondent Worker’s arguments in support of the Arbitrator’s decision are unpersuasive. I do not believe the authorities cited by him overcome the lack of probative evidence. Mr Ahmed called no probative evidence to provide a reasonable basis for the conclusion reached by the Arbitrator. The unexplained absence of low back symptoms between 17 March 2005 and 13 May 2005 is fatal to Mr Ahmed’s claim.
The argument that the medication he was taking for his shoulder and neck would have masked the pain in his lower back has no support in the evidence and is unconvincing.
The fact that the Arbitrator had no reason to disbelieve Mr Ahmed’s evidence does not assist on the issue of causation, which is essentially a matter for expert medical evidence. That evidence was lacking or of little probative value in this case because of the inadequate or inaccurate histories recorded by the doctors. The only doctor who attempted to deal with the medical issue was Dr Mastroianni. His explanation for Mr Ahmed’s symptoms was reasonable and consistent with Mr Ahmed’s previous complaints of low back pain to Dr Khoo in the years prior to 2005 (see Dr Khoo’s clinical notes). The fact that Dr Mastroianni examined Mr Ahmed on 5 May 2005 and recorded no complaint of back pain is a most telling fact in assessing whether the symptoms complained of on 12 May 2005 had resulted from the alleged work injuries. The Arbitrator failed to properly consider Dr Mastroianni’s evidence.
When the Arbitrator said that he could not see “any other explanation for” the onset of Mr Ahmed’s low back symptoms he failed to consider or properly consider the clear evidence of Dr Mastroianni who was the only expert to have a correct history and to properly deal with the issue.
CONCLUSION
The evidence does not support the Arbitrator’s conclusion that Mr Ahmed’s back symptoms have resulted from the injury at work on 17 March 2005 or from the nature and conditions of his employment with Greif. It follows that the Arbitrator was in error in making the findings he made on this issue and that part of his determine must be revoked.
COSTS OF THE ARBITRATION
The Arbitrator made no costs order. The Appellant Employer’s Reply wrongly put all matters in issue when that was patently not the case. As a result, Mr Ahmed was put to proof on matters that should have been conceded at the outset. It is unclear when the dispute was reduced to the issue that was ultimately argued before the Arbitrator. As the parties have not made submissions on this issue and as the full history of the matter will be well known to the Arbitrator, the matter will be remitted to him for submissions and determination of the appropriate costs order having regard to the history of the matter and the conduct of the parties. It may well be that the Respondent Worker is entitled to most of his costs of the conciliation and arbitration proceedings.
DECISION
Paragraph one of the Arbitrator’s determination of 26 April 2007 is confirmed. Paragraph two of the Arbitrator’s determination is revoked and the following order made:
“The matter is remitted to the same Arbitrator for submissions and determination of the appropriate costs order for the conciliation and arbitration.”
COSTS OF THE APPEAL
No order as to costs of the appeal.
Bill Roche
Deputy President
14 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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