Hrvat v Thiess Pty Ltd and Hachtief AG Australia - [2010] NSWWCCPD 69

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Hrvat v Thiess Pty Ltd and Hachtief AG Australia [2010] NSWWCCPD 69
APPELLANT:		Mustafa Hrvat
RESPONDENT:		Thiess Pty Ltd and Hachtief AG Australia
INSURER:		GIO General Limited
FILE NUMBER:		A3-4605/09
ARBITRATOR:	Ms A Simpson
DATE OF ARBITRATOR’S DECISION:		1 September 2009
DATE OF APPEAL DECISION:		28 June 2010
SUBJECT MATTER OF DECISION:		Interlocutory decision; extension of time to appeal; further evidence; inconsistency between decision of Arbitrator and opinion of Approved Medical Specialist; sections 326, 352(6) and 352(8) of the Workplace Injury Management & Workers Compensation Act 1998; rule 16.2(11) of Workers Compensation Commission Rules 2006
PRESIDENTIAL MEMBER:		Acting Deputy President Anthony Candy
HEARING:		On the papers
REPRESENTATION:		Appellant:	Mr R Taylor instructed by NSW Compensation Lawyers
Respondent:	Mr M Batten instructed by TurksLegal
ORDERS MADE ON APPEAL:		Leave to appeal is refused. Each party is to pay his or its own costs of the application to appeal.

BACKGROUND TO THE APPEAL

The construction of the Epping - Chatswood rail link required the labour and skills of many workers. Mustafa Hrvat (‘the worker’) was one of them. He had been self-employed for some years as a contractor doing concreting work but in January 2005 became employed by those constructing the link, Thiess Pty Ltd and Hachtief AG Australia (‘the employer’), to do that work including steel fixing. He worked a great deal of overtime.
On Saturday 25 February 2006, the worker was engaged in work which was heavier than usual, namely shovelling concrete for long periods because a concrete pump was not available. As a result of the work on this day, he claimed that he had suffered injury. He attended a general practitioner, Dr Pham, who was not his usual doctor but whose practice was open on the following day, a Sunday, and gave a history of feeling pain in his right shoulder. He was advised to rest and was prescribed Panadeine Forte. He was also referred for a right shoulder ultrasound and asked to return when this had been performed. The worker did not, however, see Dr Pham again.
On 1 March 2006, the worker consulted Dr Tambyrajah, who was described by the worker as the employer’s doctor, but who appears to have carried on a private practice in North Ryde, that is, close to the place of employment. When the worker saw her, he complained of pain and difficulty raising his shoulders. She referred him for ultrasounds which were carried out that day.
The worker continued to see Dr Tambyrajah and on at least one occasion another doctor in that practice, Dr Daghighi. He said he was certified fit for light duties which he performed, however these were, he said, stressful to his shoulders. A number of medical certificates were issued by Dr Tambyrajah, although no certificates from that or any other doctor are in evidence. A copy of Dr Tambyrajah’s electronic notes show that Dr Daghighi issued what was termed a “final certificate” certifying the worker fit for normal duties on 3 May 2006.
The worker was retrenched on 27 June 2006 on completion of the project and resumed working for his own company, M H Micks Pty Ltd, until March 2007, when he said he ceased because he was not able to cope with the pain any longer.
Although a claim for compensation had been made on the employer’s insurer, GIO General Limited, on 1 March 2006, it appears that no payments were initially made to the worker; however, payments were made in respect of his treatment up to 3 May 2006.
When the worker found that he could no longer continue with his work in March 2007 he sought to have his claim for compensation re-opened and this was done. The worker had, on 17 April 2007, consulted another general practitioner, Dr Ali, who referred him for an x-ray of his neck and a further ultrasound of his shoulders. Dr Ali’s full name is Azam Ali and because it was not clear which was his family name and which his given name he is referred to by some as Dr Azam. I will refer to him as Dr Ali since that is how he is described in a list of Medicare payments which is in evidence and which I take to be correct.
The insurer arranged for the worker to be seen by an orthopaedic surgeon, Dr Harris, on
5 June 2007. That doctor considered the worker had a chronic condition of his shoulders, possibly related to his long history of heavy work but not to his employment by the employer especially during February 2006. Relying on this opinion, the insurer issued a notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) on 11 July 2007. In that notice, injury to the worker’s neck was denied and additionally it was said that he had fully recovered from his bilateral shoulder injury. The insurer had however paid weekly compensation to the worker at the rate of $801.36 per week from 30 March 2007 to 5 July 2007 and had also paid treatment expenses up to 7 July 2007.
The opinion of Dr Ireland, an orthopaedic surgeon, who had seen the worker at the request of Dr Ali, was also relied on by the insurer. Dr Ireland reported on 14 June 2007 that he could not find anything wrong with the worker’s shoulders and thought that the worker’s problems were related to his neck or thoracic outlet. He referred the worker for an MRI and suggested he be seen by a neurosurgeon.
In view of the denial of liability, an Application to Resolve a Dispute (‘Application’) was registered in the Workers Compensation Commission (‘the Commission’) on 16 September 2008 numbered 7342-08. This relied on the injury of 25 February 2006 only. In this Application, weekly compensation and medical expenses were claimed from 6 July 2007 together with lump sum compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of the worker’s neck and arms. On 17 December 2008 an arbitrator noted that the proceedings were discontinued following an agreed resolution of the issues in dispute. It now appears that these proceedings were simply discontinued so that further evidence in support of the worker’s claim might be obtained. There was no agreed resolution.
The current Application was registered on 16 June 2009, claiming precisely the same compensation as formerly. An arbitration took place on 10 August 2009 and a Certificate of Determination (‘COD’) was issued on 1 September 2009 in the following terms:
“The Commission determines:
1.     That the Applicant suffered an injury to his left and right upper extremities arising out of or in the course of his employment with the Respondent on 25 February 2006. The Applicant’s employment was a substantial contributing factor to his injury.
2. That the matter be remitted to the Registrar for referral to an AMS for assessment pursuant to s66 Workers Compensation Act 1987 with referral details as noted in the attached Statement of Reasons.
3.     That there is to be an award for the Respondent with respect to the Applicant’s claim for weekly benefits after 3 May 06.
4. That the Respondent pay the Applicant’s s60 Workers Compensation Act 1987 expenses which relate to the injury to his left and right upper extremities up until 3 May 06 upon production of accounts or receipts.
5.     That the Respondent pay the Applicant’s costs as agreed or assessed.
6.     That there be a 20% uplift of costs because of complexity, for both parties.”
An Approved Medical Specialist (‘AMS’), Dr John Beer, saw the worker on 26 October 2009 and issued a Medical Assessment Certificate (‘MAC’) three days later. In that certificate, he certified that the whole person impairment in respect of the worker’s right arm was 10% and the same percentage in respect of the left arm. After adding those two percentages with no deduction pursuant to section 323 of the 1998 Act for “pre-existing injury, condition or abnormality”, the doctor arrived at a combined whole person impairment of 19%. It should be noted that section 323 refers to “previous injury and pre-existing condition or abnormality” rather than the terms used in the certificate.
On 7 December 2009 the parties had a telephone conference with the Arbitrator at which they agreed to the determination of the remaining claim as recorded in a further COD dated 7 December 2009:
“1. That the Respondent pay the Applicant s66 Workers Compensation Act 1987 lump sum compensation in the amount of $26,000 for 19% WPI pursuant to the MAC of Dr Beer dated 29.10.09.
2. That the Respondent pay the Applicant s67 Workers Compensation Act 1987 lump sum compensation for pain and suffering in the amount of $17,500.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”
An Application to Appeal against the decision of the Arbitrator was lodged by the worker on 31 December 2009. This was rejected by the Registrar on 6 January 2010 because it was considered to have been filed out of time and no submissions had been made as to why the time within which to appeal (28 days) should be extended. The Registrar took the view that the appeal was not to proceed unless she were satisfied that the requirements of section 352 of the 1998 Act had been met and she relied on section 352(1A) of that Act and Part 16.2(3) of the Workers Compensation Commission Rules 2006 (‘the Rules’). On 11 January 2010 the worker’s solicitors again sought to lodge the Application to Appeal and made submissions as to why the decision of 1 September 2009 was interlocutory only so that time to appeal did not begin to run until the determination of 7 December 2009. The Registrar once again on 14 January 2010 refused to accept the document for filing.
The Application was re-filed on 29 January 2010 with written submissions in support of an application to extend time. Additionally, an application seeking reconsideration by the Arbitrator was lodged on 9 February 2010.

ISSUES IN DISPUTE

The issues in dispute in the appeal are:
(a)whether the decision appealed against was final or interlocutory;
(b)whether the time to appeal should be extended;
(c)whether further evidence should be received on the appeal;
(d)whether the Arbitrator erred in finding that any incapacity or need for treatment resulting from injury to the worker’s shoulders ceased on 3 May 2006;
(e)whether the Arbitrator gave sufficient reasons for the findings which she made, and
(f)whether the COD of 7 December 2009, based on the MAC of 29 October 2009, requires reconsideration on appeal of the Arbitrator’s decision of 1 September 2009.

ON THE PAPERS REVIEW

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 parties did not seek to do other than rely on their written submissions, however I was of opinion that these were deficient in some respects and that I would be assisted by oral submissions. Accordingly a telephone conference was arranged for 10 May 2010 when the parties were represented by counsel who made further submissions.

LEAVE

Before proceeding to deal with the application for leave to appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. It is conceded by the employer that the monetary thresholds prescribed by section 352(2) are met.
The question arises whether the application was made within the time prescribed by section 352(4). Despite having made submissions as to why the time to seek leave to appeal should be extended, the worker still maintains that the earlier decision was interlocutory with the result that no appeal could have been brought against it by reason of section 352(8) of the 1998 Act, which commenced on 1 November 2006 and which provides:
“In this section, decision includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.”
The relevant regulation is regulation 200B of the Workers Compensation Regulation 2003. It provides as follows:
“For the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed.”
Schedule 6 Part 18J clause 5 of the 1987 Act provides that:
“The amendments made to section 352 of the 1998 Act by the amending Act [the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005] apply in respect of a claim for workers compensation made before the commencement of the amendments.”
Although the claim for compensation in this case preceded the commencement of section 352(8), its operation is clearly retrospective and it is necessary to consider whether the determination embodied in the COD of 1 September 2009 is interlocutory or final.
The worker relies on a number of presidential decisions including the decision of Deputy President Roche in Waverley Council v Sheen [2007] NSWWCCPD 127. That involved a claim for compensation under section 66 and 67 of the 1987 Act only, the claim for weekly payments having been agreed. The arbitrator made a finding of injury to the worker’s knees and referred the degree of permanent impairment for assessment by an AMS with a specified date of injury. The employer sought to appeal against that decision on the basis that there was a dispute as to whether a claim had been duly made and whether the provisions of section 289(3) of the 1998 Act (which limits the circumstances in which a dispute about a claim for such compensation might be referred for determination by the Commission) had been complied with. There was also a complaint that the arbitrator had found a single date of injury rather than the dates of a number of separate injuries.
In the course of his decision the Deputy President said the following at [21]:
“The test of whether a court’s order, determination or ruling is ‘interlocutory’ ‘… depends on the nature of the order made; the test is: does the judgment or order, as made, finally dispose of the rights of the parties?’ (per Gibbs J (as his Honour then was) in Licul v Corney [1976] HCA; (1976) 50 ALJR 439 at 443-444). In Hawkins [P & O Ports Limited v Hawkins [2007] NSWWCCPD 87] I considered the application of this authority in the context of the workers compensation legislation that governs the Commission. I noted at [37(j) and (k)]:
‘j)in the absence of a definition of “interlocutory”, it is for the Commission to determine which matters fall within the terms of clause 200B. In my view, in order to achieve the Commission’s clearly stated statutory objectives, it is necessary and appropriate to restrict the meaning of the phrase “preliminary or interim orders … of an interlocutory nature” to matters as are genuinely preliminary, provisional or interim in nature, and
k)given the Commission’s objectives, it is not appropriate to deprive an unsuccessful party of the right to appeal to a Presidential Member in respect of a final decision on a matter that finally determines the parties’ rights on issues such as worker, injury, substantial contributing factor (or other issues that finally determine the parties’ rights) until all medical disputes have been assessed and determined under Part 7. An order or determination by an Arbitrator on such issues should not be regarded as a matter that is a “preliminary or interim order of an interlocutory nature”, but should be regarded as a final order in which, provided the other thresholds in section 352 have been satisfied, leave to appeal will be granted.’”
The Deputy President considered that, even if the determination as to a claim having been duly made had been in the employer’s favour, such ruling would not finally have disposed of the rights of the parties as subsequent proceedings for the compensation could have been brought. He considered that it may be appropriate for further submissions to be made after an AMS had issued a MAC. So far as the finding of a date of injury was concerned, that was analogous to the finding made by the arbitrator in Hawkins which the Deputy President had held was interlocutory as it did not determine any rights but merely a reference date by which the worker’s rights could be assessed and determined.
The second decision relied on is Ozblue Constructions Pty Ltd v Lang [2009] NSWWCCPD 3. This was a decision of the same Deputy President, although on this occasion he was the Acting President. In an application to appeal by the employer the Acting President said the following :
“25. In the present matter, the Arbitrator has merely remitted the assessment of Mr Lang’s whole person impairment, as a result of his undisputed injuries sustained on 26 July 2006, to the Registrar for referral to an AMS for assessment. No rights have been determined. The parties rights will not be determined until a valid Medical Assessment Certificate (‘MAC’) is issued and the orders are made for the payment of lump sum compensation in a final Certificate of Determination.
26. Once a final Certificate of Determination is issued, either party will be at liberty to appeal and, if an interlocutory order or determination (such as that made by the Arbitrator on 2 October 2008) was a ‘step in the procedure leading up to final judgment’ (Crowley v Glissan [1905] HCA 13; (1905) 2 CLR 402) then, provided the other thresholds in section 352 are satisfied, leave to appeal a step or steps in the procedure will normally be granted (see also Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 82, Ramton v Cassin (1995) 38 NSWLR 88 and Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd & Larcombe (1996) 40 NSWLR 543 at 549).”
The Acting President accordingly held that the decision against which the employer sought to appeal was interlocutory and that leave to appeal must be refused.
The worker also sought to rely on Moore v Greater Taree City Council [2009] NSWWCC PD 17 (‘Moore’) a decision of Snell ADP. That too was a claim for lump sum compensation only. The arbitrator found that the worker had a pre-existing disc protrusion at L4/5 and the injury suffered by the worker was a strain not involving damage to the lumbar disc. The arbitrator directed the Registrar to refer the worker to an AMS on the basis of those findings. In an appeal brought by the worker the employer submitted that the decision appealed against was interlocutory only. The Acting Deputy President considered what had been said by Roche DP in Hawkins and also his own decision in Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196 (‘Maricic’).
The Acting Deputy President said the following:
“38. An order, referring certain specific questions to an AMS, was found by Roche DP to be interlocutory in YKK Australia Pty Ltd v Skoric [2008] NSWWCCPD 44. Decisions referring matters to an AMS without first determining issues of injury were found to be interlocutory by Byron AP in Bagtrans Pty Limited v Simunic [2007] NSWWCCPD 212, and O’Grady ADP in All Australian Greetings Pty Limited v Houghton [2007] NSWWCCPD 236.”
And:
“40. It is apparent from the above, that application of section 352(8) and Clause 200B, in circumstances where some findings or orders are made, but final orders depend upon assessment by an AMS, has the capacity to cause practical difficulties. The overall thrust of the above decisions, is that where an arbitration results in a matter being referred to an AMS for assessment, even accompanied by other orders to which one of the parties may object, such decisions tend to be characterised as ‘interlocutory’.”

The Acting Deputy President concluded in Moore that the orders made by the arbitrator were interlocutory. He distinguished Maricic to which I will now turn.
Maricic was a claim for lump sum compensation in respect of the worker’s neck, back and left shoulder. The arbitrator found that there was no injury to the worker’s neck and left shoulder but referred the assessment of her lumbar spine injury to the Registrar for referral to an AMS. The Acting Deputy President held that the Arbitrator’s decision was final and said at [20]:
“It is consistent with the reasoning in Hawkins. It is the nature of the Arbitrator’s decision that the Appellant Worker could no longer succeed in recovering compensation of any description, on the basis of symptoms in his [sic] neck and left shoulder, on the basis they resulted from the pleaded incident. This decision on ‘injury’ is final and binding and should not be characterised as ‘interlocutory’.”
I considered similar facts in Zohrabi v Lexington International Pty Limited [2007] NSWWCCPD 233 and held that the arbitrator’s decision that there had been no injury to the worker’s neck did finally determine that issue and therefore an appeal lay in respect of it although the arbitrator had referred for assessment of impairment an injury to the worker’s back.
At the hearing counsel for the worker referred me to a recent decision of O’Grady DP in Transley Solutions Pty Ltd v Steve Kagiorgis [2010] NSWWCCPD 45. That too was a claim for lump sum compensation only. The employer however disputed that the worker’s back injury necessitated the surgery which had been performed. The arbitrator made a determination in favour of the worker and found that the spinal infection he suffered had been caused by his work injuries. The matter was accordingly referred by the Registrar to an AMS for assessment of permanent impairment resulting from the injuries as found by the arbitrator and a MAC was in due course issued. The matter was then returned to the arbitrator and a further COD issued. The employer then sought to appeal and the worker submitted that the appeal was out of time. In the course of his reasons the Deputy President referred to two of his recent determinations on the point in question which I will consider in due course. They are RE &PD Richards Pty Ltd v Eggins [2010] NSWWCCPD 2 (‘Eggins’) and Edmund Diab v Salem Naji [2010] NSWWCCPD 33 (‘Diab’). The Deputy President considered that in the circumstances it may have been arguable that the employer could have appealed from the arbitrator’s earlier finding but that course was not adopted. However, he held at [27] that:
“The Determination dated 24 December 2009 [the later COD] represents a final determination of the claim as litigated by the Worker, and its correctness or otherwise requires a review as to whether the factual findings were correct or otherwise. Those findings, whilst arguably challengeable at an earlier time, were one step in the proceedings leading to the Arbitrator’s order of remitter made in September 2009, and his ultimate Determination made in December 2009.”
He considered that while the employer may have elected to challenge the arbitrator’s finding at an earlier stage, the fact that no application was made did not prevent the Commission at a later stage from reviewing that factual finding which formed the basis of the final order and accordingly he concluded that the appeal had been lodged within time.
Both Eggins and Diab were claims for lump sum compensation only. In Eggins the employer appealed against the arbitrator’s failure to determine whether the effects of an admitted injury had ceased before remitter to the Registrar and referral to an AMS. The worker successfully submitted that the appeal was incompetent since it was against an interlocutory decision. The employer sought to rely on an earlier decision of O’Grady DP in Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure and Delicious Healthy and anor [2009] NSWWCCPD 47 (‘Peric’) in which he had held at [77] that:
“…a question as whether an injury proven in proceedings before the Commission has caused ongoing disability or whether such injury has had a pathological effect limited to a particular period of time is a legal question (namely one of causation), which remains within the exclusive jurisdiction of the Commission (an arbitrator) to decide.”
In Eggins the Deputy President distinguished Peric on the basis that the arbitrator in the latter case was required to determine the “mechanics” and nature of the injury and the claim made was not limited to lump sum compensation.
In Diab the Deputy President held that an arbitrator’s finding, prior to referral to an AMS, as to which parts of the worker’s body had been injured was final and not interlocutory.
The employer for its part sought to rely on the decision of Roche DP in Yum Restaurants Australia Pty Ltd trading as Pizza Hut Restaurants v Watters [2010] NSWWCCPD 31. That too was a claim for lump sum compensation only. The arbitrator had found that the worker suffered injury to her lumbar spine and legs. The employer sought to appeal against such finding and the worker argued the decision appealed against was interlocutory. The Deputy President observed that the arbitrator had made a final determination on the critical issue of injury and the determination was not a preliminary or interim order. He distinguished Moore on the basis that injury had been conceded in that case. Accordingly, the appeal was held to lie.
An examination of the two CODs in this case shows that there is nothing in the second dated 7 December 2009 which the worker would wish to challenge since it was a determination made by consent relating to lump sum compensation only. The worker’s rights in respect of weekly compensation and treatment expenses had been determined by the earlier COD and were not required to be considered further. This case can thus be distinguished from cases involving claims for lump sums only but even in those cases certain findings referred to by Roche DP in Hawkins are open to appeal as final although the extent of impairment has not been determined by an AMS.
The cases cited have been concerned with two particular situations: one in which a purported appeal has been challenged as incompetent because it was in relation to an interlocutory decision; and, the second, where as in Kagiorgis it was contended that an appeal was out of time because it was not brought until a later COD brought the proceedings to an end although there were findings in an earlier COD against which an appeal lay. This appeal falls into the latter category.
On the facts of this case and in the light of the authorities to which I have referred I have no doubt that the COD of 1 September 2009 was a final determination of the worker’s rights in relation to weekly payments of compensation and treatment expenses. It was however a preliminary step, namely, which injuries to the worker’s body were to be referred to an AMS, to the determination which was made three months later in relation to lump sum compensation. No appeal was brought by either side against these findings. My opinion is reinforced by the terms of rule 16.2(2) of the Rules which provides as follows:
“For the purposes of subrule (1), a decision is made, in respect of a dispute, when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act.”
Since the appeal was not sought to be filed until 31 December 2009 and not accepted for filing until 29 January 2010 it is clear that the appeal was not lodged within 28 days of the Arbitrator’s decision of 1 September 2009 in compliance with section 352(4) of the 1998 Act which provides:
“(4) An appeal can only be made within 28 days after the making of the decision appealed against.”
The worker is, in my opinion, obliged to rely on rule 16.2(11) of the Rules to obtain an extension of time to appeal. That rule is as follows:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making the appeal.”
The judgment of McHugh J in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 (‘Gallo’) is often cited in applications to extend time. The relevant passage at 480 is as follows:
“The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As a Judicial Committee of the Privy Council printed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
‘The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.’”
McHugh J was of opinion that the proposed appeal could not possibly succeed and accordingly he did not need to determine whether time would have been extended had he thought that the appeal was arguable. His Honour relevantly observed shortly after the passage set out above:
“Lack of legal knowledge is a misfortune, not a privilege.”
Gallo was a decision of a single justice of the High Court. Five members of that court considered a similar application to extend time in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 (‘Jackamarra’). In that case the Full Court of the Supreme Court of Western Australia had dismissed an appeal brought within time because it had not been set down in accordance with the court rules. By a majority the High Court allowed the appeal. In the course of his reasons Kirby J, who formed part of the majority said the following at [66] (omitting citations):
“5.     Judicial attitudes to the grant of an indulgence under procedural rules of court have changed somewhat since the rather rigid approach which formerly marked such decisions. The change came about as it was realised that such rules were themselves only intended to contribute to the attainment of justice. That object necessitates a flexibility which accepts ‘the fallible world in which legal disputes arise and in which they must be resolved’. Judges have warned against permitting the rules of court, particularly those relating to time, to become ‘an instrument of tyranny’. This judicial attitude produced a less ‘draconian’ practice which tended to focus attention on the need for a measure of flexibility, the avoidance of undue technicality and the consideration of whether there was any actual prejudice to a party if the indulgence were granted, beyond that inherent in the continued prosecution of the proceedings.
6.     In the cyclical way of these tendencies, the close of the century has seen something of a revival of insistence upon stricter adherence to rules and practices. The source of the strictness is a larger judicial concern to ensure the efficient despatch of court business. Such an objective was never completely overlooked by the courts. Lord Denning MR, for example, in Allen v Sir Alfred McAlpine & Sons Ltd countered the applicant’s submission that to strike out an action without trial for time default would contravene Magna Carta, with this retort:
‘To this there is a short answer. The delay of justice is a denial of justice. Magna Carta will have none of it. “To no one will we deny or delay right or justice. [Magna Carta, ch 40]”
All through the years men have protested at the law’s delay and counted it as a grievous wrong, hard to bear. Shakespeare ranks it among the whips and scorns of time [Hamlet, Act III, sc 1]. Dickens tells how it exhausts finances, patience, courage, hope [Bleak House, ch 1]. To put right this wrong, we will in this court do all in our power to enforce expedition: and, if needs be, we will strike out action when there has been excessive delay. This is a stern measure. But it is within the inherent justice of the court. And the Rules of Court expressly permit it.’
More recently, this rhetoric has been converted into action in Australia as courts have come to appreciate that they have their own interest in ensuring compliance with time limits. Court lists are typically more congested today. This fact and a growing awareness about the needs for efficiency in judicial administration help to explain a somewhat diminished inclination, recently, to extend procedural indulgences. Yet even today, rules and efficient case management must not be seen as ends in themselves. The ultimate obligation of a court is the attainment of justice as the law requires.
7.     In Esther Investments, the Full Court of the Supreme Court of Western Australia embraced, as relevant to applications for an extension of time, the four ‘major factors’ which had been identified in Palata Investments Ltd v Burt & Sinfield Ltd, viz, the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondent. It was those principles which the Full Court applied in the present case. I would point out that Palata Investments was concerned with an application for an extension of time for appealing, not for extending the period within which an appeal, already lodged within time, might be entered for hearing. The distinction is important. In the latter case, the scope for review of the merits is necessarily more limited. The main object of the scrutiny is to obviate a hearing which would clearly be futile or to reinforce a preliminary view that a time default should be cured because of the apparent merits or arguability of the matter. I do not doubt that the four considerations mentioned in Esther Investments are relevant. But they are by no means exhaustive. Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder; and whether the delay is that of a litigant or of its lawyers, with which the litigant should not be saddled.”
Basten JA in Tomko v Palasty (No. 2) [2007] NSWCA 369 referring to Jackamarra said:
“57. Each of the judgments in Jackamarra affirmed the need, at least on an application for an extension of time within which to lodge an appeal, to take account of the prospects of success. The appropriateness of that course was not in dispute in the present proceedings. On the other hand, it may be necessary to consider whether demonstrating an arguable case is simply a precondition to the grant of an extension of time or whether the demonstration of a stronger case constitutes a positive element to put in the balance against aspects of delay or default.
58. There is a danger in placing too much emphasis on the prospects of success: to do so invites the parties to treat the application as a dress rehearsal for the full appeal: see Jackamarra at [9]. In my view, it is not necessary, or appropriate, for the applicant to do more than demonstrate a fairly arguable case: it was not necessary nor appropriate to demonstrate in any detail the prospects of success. For present purposes it is sufficient to say that a number of grounds are fairly arguable and one at least has reasonable prospects of success.”

In Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 (‘Yacoub’) Campbell JA considered the expression “exceptional circumstances” as appearing in the Uniform Civil Procedure Rules 2005 as follows:
“66. Another question of construction concerned ‘exceptional circumstances’ in rule 31.18(4). In San v Rumble (No. 2) (2007) NSWCA 259 at [59]-[69], I gave consideration to the expression ‘exceptional circumstances’ in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to be applicable in the construction of rule 31.18(4).
(a)Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2001] 1 QB 198 (at 208).
(b)Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c)Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No. 295 [2007] FCA 388 (at [26]).
(d)In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision R v Buckland (at 1268; 912-913).
(e)Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).
67. In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court and the management of litigation contained in sections 56-59 Civil Procedure Act 2005.”
In Andrew Bryce v Department of Corrective Services [2009] NSWCA 188 (‘Bryce’)
Allsop P, with whom Beazley and Giles JJA agreed, considered rule 16.2(11) of the Rules (WCC). He said at [8]:
“There is some awkwardness of the structure and terminology of subr (11). The phrase ‘in exceptional circumstances,’ bounded as it is by commas, might conceivably be thought to be a jurisdictional fact. Aspects of the argument of the applicant put this today. In my view, the phrase ‘in exceptional circumstances’ finding its place in the middle of the rule is to be dealt with as a matter to be considered by the Presidential member as a matter within jurisdiction as opposed to a precondition to the operation of jurisdiction.”
The President then cited part of the decision of Dixon J in Parisienne Basket Shoes Pty Limited v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391 in which his Honour pointed out the inconvenience which would result if the happening or existence of an event or fact or circumstance were made a condition on which the jurisdiction of a court depended. In the absence of clear legislative intention, the court’s opinion or finding as to the happening or existence of such event etc was sufficient to give it jurisdiction.

Allsop P continued at [10]:
“Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction, and all the matters identified by the Deputy President in [23] can be seen as relevant to a consideration of that composite expression.”
The matters to which his Honour referred, which appear in Deputy President Roche’s decision (Department of Corrective Services v Bryce [2008] NSWWCCPD 116), are as follows:
“(a)   the discretion to extend the time to appeal must be exercised in order to do justice between the parties;
(b)     the appeal was filed only one day out of time;
(c)     Mr Bryce has pointed to no prejudice he will face if time to appeal is extended by one day;
(d)     the appeal raises issues that are strongly arguable and, in the circumstances, strict compliance with the time limit will work demonstrable and substantial injustice to the Department, as it will lose the opportunity to have the matter determined according to its substantial merits, and
(e)     the Department’s solicitor acted with reasonable promptness, once instructions to appeal were given.”
In Rockhard Products Pty Ltd v Economidis [2009] NSWWCCPD 159 (‘Economidis’) Snell ADP considered what had been said by Allsop P in Bryce and said the following at [30]:

“The existence of ‘exceptional circumstances’ is not a precondition to an extension of time, but is a matter I am required to consider in the exercise of my discretion under the rule.”

The Acting Deputy President went on at [32] to refer to his previous expression of the view that:
“…in applying the concept of ‘exceptional circumstances’ in an application pursuant to rule 16.2(11), it is necessary to have regard to sections 3 and 354 of the 1998 Act, consistent with Yaco[u]b at [67]: see NSW Fire Brigades v Turton [2008] NSWWCC PD 66…”.
Section 3 of the 1998 Act is in the following terms:
“The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives:
(a)to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury,
(b)     to provide;
·        prompt treatment of injuries, and
·        effective and proactive management of injuries, and
·        necessary medical and vocational rehabilitation following injuries,
in order to assist injured workers and to promote their return to work as soon as possible,
(c)to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,
(d)     to be fair, affordable, and financially viable,
(e)to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management and return to work,
(f)     to deliver the above objectives efficiently and effectively.”
The relevant parts of section 354 of the same Act are as follows:
“354(1)Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks it appropriate and as the proper consideration of the matter before the Commission permits.
(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
On behalf of the worker it is submitted that rule 16.2(11) requires a three-step approach in determining whether or not time to appeal should be extended. The first step is to consider whether or not the facts constitute exceptional circumstances. The second is to consider whether or not to lose the right to seek leave to appeal would work “demonstrable and substantial injustice” and the third step is to determine whether or not the discretion conferred by the rule should in all of the circumstances be extended.
In relation to the first step, reliance is placed on the Presidential decision in Bree v IR Doyle & PA Doyle t/as Ian Doyle’s Meat Service [2009] NSWWCCPD 25 (‘Bree’). In the present appeal the worker’s solicitor had formed the view that the COD of 1 September 2009 was interlocutory and that time did not begin to run until the second COD of 7 December 2009. This was not an oversight but rather a conscious decision. On 25 November 2009 the worker had attended counsel’s chambers with his solicitor in order to draft a further statement, to which reference will be made later, and in order to settle documents in relation to a proposed appeal. Counsel advised that the time to appeal did not commence to run until a final COD had been issued and this had not then happened.
As to the second matter, it is submitted that, because the prospects of success of the appeal succeeding were good, it would constitute a demonstrable and substantial injustice if time to appeal were not extended.
As to the third step, reference is made to the conduct of the appealing party and the history of the proceedings as being relevant matters to be taken into account in determining whether or not to grant leave to appeal.
On behalf of the employer it is agreed that the three-step approach relied on by the worker was correct. It is submitted that there were no exceptional circumstances being merely some possible confusion between the solicitor and counsel for the worker. The conscious decision not to appeal against the earlier decision of the Arbitrator would not assist the worker in relation to an extension of time. The worker’s solicitor did not indicate an intention to appeal against the decision of 1 September 2009 until the appeal was lodged. Thus the claim for permanent impairment was finalised in ignorance by the employer of the proposed appeal. While initially it was denied that any prejudice to the employer could be demonstrated if time to appeal were extended it was later submitted that the worker had also lodged an application for reconsideration by the Arbitrator. This was said to go to the conduct of the worker relevant to the application to extend time and that worker ought to have elected whether to seek reconsideration or to seek leave to appeal. This has thereby increased the costs involved and constituted prejudice to the employer.
In oral submissions counsel for the worker submitted that one of the exceptional circumstances was the conduct of the Arbitrator in relying on the notes of general practitioners rather than the opinions of both treating and qualified specialists. Other circumstances said to be exceptional were the later determination of permanent impairment made by the AMS and uncertainty on the authorities as to what were and what were not interlocutory decisions.
Bree was a decision of the President, his Honour Judge Keating. His Honour referred to the decision of Acting Deputy President Snell in Roads & Traffic Authority of New South Wales v Cormick [2007] NSWWCCPD 220 (‘Cormick’) in which the Acting Deputy President relied on the passage from Yacoub which is at [48] above. The facts in Bree were that an appeal was filed two days after the 28 day period. The appeal documents had been placed in the Document Exchange the day before the time to appeal expired in the expectation that they would be received by the Commission the next day. The fact that the documents took three days to reach the Commission was held to be “out of the ordinary or unusual” and his Honour was satisfied that “exceptional circumstances” existed.
Cormick was a matter in which the employer had filed an application to appeal within time, however that document was rejected by the Commission for a number of technical reasons. Not surprisingly the Acting Deputy President found that exceptional circumstances existed. However, in going on to consider whether loss of the right to seek leave to appeal would work demonstrable and substantial injustice, he held that the appeal did not have reasonable prospects of success and it was inappropriate to exercise his discretion to extend time.
I turn to the matters referred to by Campbell JA in Yacoub and ask whether the circumstances in this case are “out of the ordinary course or unusual, or special, or uncommon”. It may be instructive to consider the facts of R v Buckland (‘Buckland’) which was relied on in Yacoub in support of two of the conclusions which his Honour reached. The facts in Buckland were that an offender had been sentenced to two terms of life imprisonment because of his having been convicted of a second “serious offence” as defined in the relevant legislation. The court was obliged to impose a life sentence unless it were satisfied that there were exceptional circumstances. The first offence involved the use of a starting pistol and the second possession of an imitation pistol in an attempted bank robbery. The Lord Chief Justice, with whom Mr Justice Garland and Mr Justice Nelson agreed, said the following:
“As this court pointed out in R v Kelly [1999] 2 WLR 1100 at 1107, [1999] 2 Cr App R (S) 176 at 182, two conditions must be met:
‘First that the court is of the opinion that there are exceptional circumstances relating to either of the relevant offences or to the offender; and secondly, that the court is of opinion that those exceptional circumstances justify the court in not imposing a life sentence.’
It is unnecessary to repeat what the court there said about the meaning of ‘exceptional’ in this context. But the judgment whether exceptional circumstances exist is not quantitative only, but may be qualitative also. It may, to take an example from quite another field, be far from exceptional for a candidate to obtain five A grades at A level, but highly exceptional for this to be achieved by a candidate who is deaf and dumb or who has spoken English for a year. In judging whether, if exceptional circumstances are found to exist, they justify the court in not imposing a life sentence, the court must bear in mind the rationale of the section. The section is founded on an assumption that those who have been convicted of two qualifying serious offences present such a serious and continuing danger to the safety of the public that they should be liable to indefinite incarceration and, if released, should be liable indefinitely to recall to prison.”
His Lordship considered the exceptional circumstances were the incompetence of the offender and the lack of aggression shown in the attempted robbery. No physical injury was or could have been caused and any distress to bank staff must have been far from extreme.
The rationales of the statutory provision, that is, sections 3, 352(4) and 354 of the 1998 Act, and rule 16.2(11) relevant to an application of this kind are a little more difficult to state than was the case in Buckland. It is, I think, almost universal for rules of court and statutes to prescribe time limits within which an appeal against an earlier decision may be brought and the rationale for such is apparent, namely that litigation should not continue indefinitely and there should be certainty. Balanced against this is the power to extend time, not as a matter of course, but as the circumstances require it in order to arrive at a just result having regard to the necessarily opposed interests of the parties. There is an intention that workers should receive the compensation to which they are entitled and not be deprived of that by matters of a technical or formal nature.
As I noted earlier the employer complains that it was given no notice of an intended appeal. Had such notice been given the actions of the employer may well have been different. It may not have agreed to the orders made on 7 December 2009 but may have asked the Arbitrator to reconsider her earlier decision so that the inconsistency between that decision and the opinion of the AMS might be resolved prior to orders being made relating to permanent impairment compensation. Equally the worker, upon receipt of the MAC and before a second COD was made by consent, could have asked the Arbitrator to reconsider her decision. This he did not do until he had obtained an order in respect of lump sum compensation. If the employer had been aware of the intention of the worker to appeal it would, in my view, have been more likely to have given consideration to appealing against the decision of the Arbitrator or against the MAC. It is, I think, reasonable to infer that the employer was content to pay compensation pursuant to sections 66 and 67 of the 1987 Act so long as it did not have a continuing liability to pay weekly and other compensation. This complaint is, in my opinion, well founded. The other complaint regarding the conduct of the worker in seeking reconsideration as well as appealing is I think of lesser weight. I am also aware that the earlier proceedings were discontinued at some cost to the employer because the worker’s evidence was considered inadequate. This is a relevant matter in looking at the history of the proceedings and the conduct of the worker.
I am obliged to say that, in my opinion, none of the circumstances relied on in this case, considered separately or together amount to exceptional circumstances. The period by which the appeal is out of time is long, almost three months. As was admitted, a deliberate decision was made not to appeal until the second COD had been issued. This was the decision of the worker’s legal advisers rather than that of the worker himself. On the authorities in the Commission to which I have referred, it is clear that an appeal could and should have been brought after the first COD. However I am not, I think, required to determine whether exceptional circumstances exist as a precondition to an extension of time (Bryce and Economidis) and in accordance with Gallo and other cases I am required to consider the prospects of the worker succeeding in the appeal before determining whether or not time to appeal should be extended. I am prepared to assume for this purpose that the worker has an arguable case on appeal. Nonetheless in all the circumstances I do not consider that to refuse to extend time would work demonstrable and substantial injustice in this case. Accordingly since the appeal was not brought in time, leave to appeal should be refused. In the event that I am in error regarding this I intend to consider the evidence and the arguments advanced in relation to this appeal. This I cannot do without first dealing with the worker’s application to rely on further evidence.

FURTHER EVIDENCE

‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No. 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“Fresh evidence and/or additional evidence
Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:
·it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
·the evidence is credible;
·there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
·it is just to admit the evidence in all the circumstances of the individual case.
Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.”
Practice Direction No. 6 also provides that if fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:
·a schedule of the fresh or additional evidence;
·a copy of the fresh or additional evidence;
·a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and
·submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.
Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.
In Haider v J P Morgan Holdings Aust Ltd trading as J P Morgan Operations Australia Ltd [2007] NSWCA 158; (2007) 4 DDCR 634 (‘Haider’) Basten JA at [37] and after, considered the refusal of the Acting Deputy President to allow additional evidence in that case. His Honour pointed out that section 352(6) of the 1998 Act referred to evidence “in addition to or substitution for” the evidence received below as well as “fresh evidence”. The Practice Direction at that time reflected the approach to the receipt of further evidence taken in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160. The Practice Note was subsequently amended so that it is now in the form set out above.
Basten JA also referred to his earlier reasons in Aztech Science v Atlanta Aerospace (Woy Woy) [2005] NSWCA 319 (‘Aztech’). In those reasons, at [105], his Honour quoted what had been said by Moffitt P, with whom Reynolds and Glass JJA agreed, in Tamas v Streimer (Court of Appeal, unreported, 10 July 1981):
“It may be that considerations of justice in admitting the evidence may differ, having regard to how the evidence is to be used, if admitted, so that the overall view of what is just may be found to differ according to whether the admission of the evidence can be accommodated by the Court of Appeal itself deciding the case as on a rehearing or whether it can only be accommodated by ordering that the whole case be tried again. What the demands of justice are in either situation my vary from case to case and may be stated differently at different times by different judges, but the ultimate question in the end will be the same; namely to do what is just in the light of all relevant considerations which will require consideration to be had of the extent of the policy of law relating to finality will be interfered with by the course required to be taken.”
Basten JA later said the following at [108]:
“Despite what is said above, it should no doubt be borne firmly in mind that too great a readiness to admit further evidence would encourage parties and their lawyers to treat the hearing of a matter at trial as but a preliminary round. The fact that an appeal is by way of rehearing under the statute, does not justify the view that it is the second round of a trial, rather than which it is, namely an appeal. It may also be argued that the questions of prejudice to other parties are not the only countervailing interests: there are the broader interests of the administration of justice and the delays which may arise from inappropriate calls on the Court’s time and resources. It should not be forgotten that there may be cases when the better case may be to seek to reopen the matter before the primary judge, rather than lodge an appeal. However, that course may not be appropriate where there are other arguments that the primary judge has erred, which would not be dependent upon further evidence. It is significant that, in Wollongong Corporation [Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435], the High Court expressly left open the possibility that a different approach might be adopted, even under the general law where the relief sought was a retrial, if the verdict below was otherwise attended by error”.

The worker seeks leave to rely on two documents which came into existence after the arbitration which are his statement dated 7 December 2009 and the MAC of 29 October 2009. I will consider them in turn.
The submissions made by the worker are that this later statement provides further evidence of what occurred when the worker saw Dr Tambyrajah during 2006 and 2007 and of the worker’s incapacity for work from 2006 onwards. It is submitted that it is in the interests of justice to allow the worker to rely on that statement. The Arbitrator in her statement of reasons assumed, in the absence of clear evidence from the worker, that he had resumed his normal duties as a concreter after 3 May 2006 and continued to work as a concreter until March 2007: however she noted that some specialists he’d seen later had histories which were inconsistent with this. The worker makes clear in his later statement that he did not at any time resume his normal duties with the employer prior to his retrenchment.
The employer opposes the admission of this further statement on the grounds that it is not “new evidence” but “more evidence” (Galea v Ralph Symonds Pty Limited (1989) 5 NSWCCR 192). No application had been made for the worker to give oral evidence at the arbitration but his counsel had addressed on incapacity. It is not, it is said, in the interests of justice to admit the later statement. Such assertions on both sides as to what the interests of justice require without any reasons being given do not assist me greatly if at all.
There is no reason why the additional evidence contained in the later statement could not have been given either in writing before or orally at the arbitration. I do not consider that, as a matter of course, a party appealing against an arbitrator’s decision should consider itself entitled to rely on further evidence in an attempt to meet deficiencies in the evidentiary material pointed out by the arbitrator in his or her determination. To do so is to treat the arbitrator’s decision as no more than a “trial run” or “rehearsal” before a later review on appeal. There is also the danger that the later evidence will be tailored to meet such deficiencies which could not of course occur if the evidence were earlier obtained. In the absence of any prejudice asserted by the employer, in my opinion, the further statement should be received in evidence so that I might be under no misapprehension as to the facts asserted by the worker.
The worker also seeks to rely on the MAC of Dr Beer of 29 October 2009 as an assessment which confirms the significant pathology in his shoulder and supports his claimed incapacity for employment as a result of the subject injury. This is contrary to the decision of the Arbitrator. It is submitted that Dr Beer was an independent medical expert and his opinion is highly probative. It is also submitted that the MAC is already in evidence in the proceedings although not before the arbitrator when she made her decision.
In response, to the employer, correctly in my view, points out that the MAC does not deal with fitness for work but with the assessment of permanent impairment. Further, a number of doctors whose reports were in evidence expressed opinions similar to that of Dr Beer.
I have decided to admit Dr Beer’s MAC into evidence, essentially for the same reasons as given by Roche DP, in a similar situation, in Greater Taree City Council v Moore [2010] NSWWCCPD 49, namely that it is material and probative to the issues in dispute, was not in existence at the time of the arbitration and it is in the interests of justice that it be admitted. I acknowledge that there is considerable force in the argument that it is already in evidence. It is something of which I cannot be unaware. It is clear on the basis of a number of decisions of the Court of Appeal that the task of a Presidential Member in conducting an appeal under section 352 of the 1998 Act is not limited to correcting errors on the part of an arbitrator but extends to deciding what is the “true and correct view” (State Transit Authority of New SouthWales v Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 at [30]) or the “preferable or correct view” (Sapina v Coles Myer Limited [2009] NSWCA 71; (2009) 7 DDCR 54 at[56]). To do so, in my view, requires that the MAC should be considered on this appeal.

ARBITRATOR’S REASONS

The Arbitrator in a written Statement of Reasons accompanying the COD of 1 September 2009 noted that the issues which remained in dispute were:
(a) whether the Applicant sustained an injury to his cervical spine and to his shoulders.
(b)whether the Applicant has a partial or any incapacity for employment.
(c) whether any shoulder pathology sustained by the applicant had resolved by 3 May 2006.
The Arbitrator then summarised the evidence, in particular the evidence of the treating doctors but including the opinion of Dr Ian Harris. The chronology on which the Arbitrator relied is as follows:
“25. 2. 06Work related injury to one or both shoulders
26. 2. 06Seen by Dr Pham GP; Dr Pham in his report dated 25. 10. 08 records that his examination ‘revealed vague tenderness around the right shoulder anteriorly and posteriorly and normal neck movements’ with rest and analgesics being described. Dr Pham’s clinical diagnosis was ‘possible tendon injury/inflammation’, with a ‘possible substantial link between his work and the injury’. Dr Pham did not see the Applicant again.
1. 3. 06Workers Compensation Claim form completed noting an injury to the ‘left and rite (sic) shoulder’, from ‘pooring (sic) concrete and (?) shaveling (sic)’.
1. 3. 06Seen by Dr Tambyrajah, GP; ‘pain and difficulty in raising his shoulders above 90 degrees’, with a history of pouring concrete and shovelling at work on 25.2.06. Dr Tambyrajah diagnosed soft tissue injury. She states in her report that there was ‘no visible tear on x-rays. A mild thickening of subdeltoid bursa is evidence that at the time there was soft tissue injury’.
Ultrasound of both shoulders reports as noted by the doctor.
Dr Tambyrajah states that she did not see the Applicant again.
3. 5. 06Final WorkCover Certificates issued by a different doctor at the same practice as Dr Tambyrajah, Dr Daghighi. The clinical notes of Dr Daghighi note ‘pain in the shoulders more or less gone – has not had physio has done exercises at home – full rom with no pain – final certificate back to normal duties.’
27. 6. 06Retrenched from Respondent employer.
17. 4. 07Clinical Notes of Dr Ali Azam, GP; a history taken of a work injury on 25.2.06 with the Applicant ‘seeing a GP in North Ryde (Yvonne Tambyrajah)’. The symptoms are provided to the doctor of ‘last 2/12 shoulder pain both sides and neck pain. Shoulder movement painful in most ranges of motion. Last 3 days pain worse and difficulty sleeping’. Dr Azam notes restriction in neck rotation and abduction in left and right shoulders restricted due to pain.
W/C Certificate issued as unfit for work from 17.4 – 20.4.07
18. 4. 07Dr Azam writes a letter to the GIO.
23. 4. 07Bilateral Shoulder Ultrasound: ‘There are changes of supraspinatus tendinosis bilaterally more marked on the left with small areas of calcification on the right’.
25. 4. 07Review of Applicant by Dr Azam; WorkCover Certificate issued as unfit for period 25.4.07 to 4.5.07.
1. 5. 07Dr Azam notes 4 sessions of physiotherapy so far for the Applicant’s neck with little improvement. A Certificate is issued for the period 1.5.07 to 15.5.07, unfit for pre injury duties.
15. 5. 07Dr Azam arranges for Mr Hrvat to be examined by Dr Ireland, Orthopaedic Specialist, and issues a further W/C Certificate until 19 June 07. Dr Azam’s notes indicate he saw the patient regularly at least until early 2008.
12. 6. 07Dr Ian Harris, Orthopaedic Trauma Surgeon examined the Applicant at the request of the Insurer. He took a history of symptoms relating to the neck and both upper limbs dating back to his injury in February 06, and steadily worsening over the previous twelve months. Mr Hrvat advised Dr Harris that he continued to work as a concreter. On examination Dr Harris diagnosed ‘signs and symptoms consistent with mild inflammation and/or mild degeneration of the rotator cuff tendons in both shoulders’ which he believes is a chronic condition in the shoulders which may relate to his long history of heavy work but does not relate to any specific work injury.
14. 6. 07Dr John Ireland, Orthopaedic specialist examined the Applicant at the request of Dr Azam. The history provided to Dr Ireland was of pain in his neck and both arms with the left arm worse than the right. Mr Hrvat advised Dr Ireland that he had undertaken some intermittent subcontracting work from the time of his retrenchment in June 06 until March 07, but had not worked since that time. Dr Ireland reported that he could not find anything ‘wrong with his shoulders. I believe that his problems are related to his neck or to the thoracic outlet.’ Dr Ireland noted that the CT scan of the Applicant’s cervical spine showed mild congenital C4 and 5 stenosis, but was otherwise normal. Dr Ireland referred the Applicant for an MRI and recommended he also be referred to a neurosurgeon for a further assessment.
28. 8. 07Assoc Professor Mark Sheridan, Neurosurgeon, examined the worker at the request of Dr Ali Azam. The history provided was of an injury to his neck at work at the beginning of ‘last year’ (2006) with persisting neck pain, shoulder pain and anaesthesia down his left arm since that time. Dr Sheridan noted that the disc bulge at C4/5 was consistent with the injury and symptoms, and that he felt that there were also symptoms consistent with a soft tissue injury or overuse syndrome in the Applicant’s posterior neck and trapezius muscle group. He recommended pain management. He has not seen the Applicant since.[see however note re 11.2.08 below]
11. 9. 07Dr Peter Giblin, Orthopaedic Surgeon examined the Applicant at the request of Dr Azam, and again on 25 September 07. Mr Hrvat provided a history of an injury to his neck and shoulders at work on 25.2.06. Dr Giblin diagnosed a soft tissue injury to the neck and shoulders reasonably causally related to the injury, ‘being of a material nature, superimposed upon pre existing asymptomatic constitutional conditions’. He noted that the subdeltoid bursitis noted on the MRI scans, together with the disc protrusion at C4/5 also noted on the MRI scan, are radiological changes consistent with acute injury.
11. 2. 08Assoc Professor Mark Sheridan, Neurosurgeon, examined the Applicant again on 11 February 08.
30. 8. 08Dr Yvonne Tambyrajah; clinical notes ‘Still has sore shoulder arms and back and taking tramal and Mobic not working now’.”
The Arbitrator noted that the worker had stated that Dr Tambyrajah’s report was incorrect as he had seen her again several times in September 2006 and on 18 September 2007 Dr Tambyrajah had indicated that she had lost some of his clinical notes. The worker said that he advised Dr Pham and Dr Tambyrajah that he had pain in his neck as well as both shoulders. The worker in his statement said that he continued working as a concreter after being retrenched but that work was not as hard as it had been with the employer. He had told Dr Ireland and Dr Giblin that he only worked intermittently from his retrenchment until March 2007. He said he had undertaken some labouring work from 14 to 28 March 2007 when he wasn’t able to cope with the pain and ceased employment. He had told Professor Sheridan that he was not able to cope with light duties for the employer and then did some contracting work with which he was also unable to cope. The Arbitrator noted that he told Dr Ellis, who had expressed a medico-legal opinion, that he was changing tyres on excavation equipment until June 2006 and then he subcontracted from August until February 2007 when he could not continue.
The Arbitrator further noted that the first mention of the applicant’s neck being injured was on 24 April 2007 when the worker saw Dr Ali. In view of the lapse of time between the date of injury and the complaint of neck symptoms the arbitrator stated that she was not satisfied that the worker had injured his neck in the incident in question. However, she did find that he had injured both shoulders.
So far as incapacity was concerned, she noted that the worker had been certified fit for pre-injury duties on 3 May 2006 when a certificate was issued by Dr Daghighi. That certificate, as I have earlier indicated, is not in evidence. She noted that the worker’s statement did not specify what duties he had undertaken from the time he was certified fit for full duties until his retrenchment in June 2006 and she assumed that he resumed normal duties as a concreter. She noted that the worker claimed to have been in continual pain and to have seen Dr Tambyrajah on occasions not shown in her notes, parts of which, it was claimed, she had admitted were lost. The Arbitrator further noted that Dr Ali had taken a history of shoulder pain for two months prior to being seen in March [April] 2007. Accordingly, she was satisfied that from May 2006 onwards the worker was not incapacitated for employment as the result of injury to his left and right shoulders. The Arbitrator limited the worker’s entitlement to weekly payments and treatment expenses to 3 May 2006 and did not refer to the payment of weekly compensation up to 5 July 2007. This was not a matter on which the worker’s counsel addressed.

EVIDENCE

Worker’s evidence

In the statement of the worker dated 11 June 2009 he said that he had began work as a concreter in 1990 however in 1997 he became self-employed as a general concreter working on “residential homes, driveways, house slabs, patios, retaining walls and anything to do with concreting”. He said he worked 30 hours a week and his taxable income was about $35,000.00 per annum. He was mainly supervising subcontractors and he would set up the job by measuring, pegging out, and working from the surveyor’s details. He would show the workers what he termed “vital points” and how to form up the area. He said he was not active on a regular basis with the demanding physical aspects of the job. He then became employed by the employer in 2005 working from Monday to Friday from 6 a.m. to 5 p.m. and on Saturday from 6 am. to 2 pm.
On the day of his injury he had commenced work at 6 a.m. He said there were about four workers, including himself, doing the work in question and there should have been 12 men. He was required to stand in concrete up to his knees, lay down reinforcement, stand on the reinforcement and repeat the procedure. His mobility was extremely limited. He had to push concrete with a shovel to where it could not be reached with the chute from a truck. He said he worked until 4 p.m. without a break and with constant exertion of his arms, neck and shoulders. At about 4.30 p.m. he started to feel pain in both of his arms, he also felt pain in his shoulders and around his shoulder blades up to his neck. At 5.30 p.m. he could not work any more and waited until the pour was finished. He could not move his left arm but somehow he drove home but did not sleep that night from pain in his arms, shoulders and neck. He had never had any history of pain or disability in his arms, neck or shoulders prior to that day.
He saw Dr Pham on 26 February 2006 and reported his injury on Monday 27 February at work. He then saw the company doctor, Dr Tambyrajah, the same day. He described the light duties he performed and referred to holding a 3,000 ton psi pressure gun which put pressure on his arms, neck, back and shoulders. He had to perform these duties for 10 hours a day but on 8 June 2006 received a letter indicating that the project was completed and that he was to be retrenched from 27 June 2006. He continued to have pain in his shoulders, between his shoulders and pain and stiffness in his neck. The majority of pain, however, was on the right side and he had difficulty he said lifting his right arm.
After his retrenchment he had to look for work elsewhere and decided to work as an employee of his own company, MH Micks Pty Ltd, and subcontract on that basis. His duties after June 2006 included some shovelling, levelling and finishing and that work was not as hard as the work he had been performing before. He said he continued to have significant pains in his shoulders, between his shoulders and pain and stiffness in his neck. He was constantly taking medication and could only work while taking that medication. His pains were not made worse by that employment but stayed the same as they were when he was working for the employer. He ceased work after 28 March 2007 because he was not able to cope with the pain any longer. He then telephoned the insurer asking for his case to be reopened.
In his later statement he describes his performance of light duties in greater detail, including asking other workers to assist him, telling his foreman of the pain he was in and the difficulty he had in continuing working. He had not returned to his pre-injury duties before his retrenchment. So far as Dr Tambyrajah was concerned he said he was only ever certified fit for suitable duties with restrictions on lifting which were not in any event observed. He denied telling Dr Daghighi on 3 May 2006 that the pain in his shoulders had “more or less gone”. He doubted that he had a full range of movement with no pain when examined on that day. He denied that he had read the certificate of 3 May 2006 and his duties were not changed when he gave that certificate to his foreman.
He was off work, he said, from 8 June 2006 until 12 July 2006 when he began working for his own company (the reference to 8 June is I think incorrect being the date of the letter advising of retrenchment rather than the actual retrenchment). He then describes in great detail the levels of pain he has had at various times in particular that he had no permanent increase in symptoms as a result of any work performed after 25 January 2006 although there had been a temporary aggravation lasting two to three months as a result of the work he performed in subcontracting.

Statement of Vahida Hrvat:

This lady is the worker’s wife and says that on 25 February 2006, after he came home from work, he appeared hunched over and limping and was holding one of his arms. She said she noticed that one of his hands was very swollen above the wrist and she put cream on it and bandaged it. He complained about being unable to move his arms. She then relates that on 13 May 2006 her husband was complaining of neck pain, was crying and had to leave a party early to go to bed. Then on 24 December 2006 while they were on holidays he was unable to eat dinner because of pain in his shoulders and arms and stayed the next day in bed. She said that prior to 25 February 2006 her husband had been in good physical condition and never complained of problems with his neck, shoulder and arms. She said since 25 February 2006 he had changed a lot and was in a lot of pain on a daily basis. On 1 October 2008 her husband was unable to go to the mosque at the end of Ramadan because he had pain in his neck.

Statement of Darrell McMahon:

This gentleman is a friend of the worker who had known him for about ten years and worked as a fencer. He recalls that the worker asked him for help to put up a fence in his backyard which he thought was unusual because he thought his friend was very competent to do the job without any help. Mr McMahon said that when the worker went to pick up a shovel he was completely white and he could see that he was in a great deal of pain. The worker told him he was losing the feeling in one arm and he had complained of pain in his shoulders. Prior to 25 February 2006 he had always been a very hard worker, working six or seven days a week when there was work.

The payment of compensation to the worker from 30 March to 5 July 2007 is evidence, it is said, of an acceptance by the employer that the worker’s incapacity had not ceased on 3 May 2006.
Finally, it is submitted that the Arbitrator failed to comply with the requirements expressed in Mitchell v Central West Area Health Services [1997] 14 NSWCCR 526 in determining the worker’s entitlement to weekly payments of compensation pursuant to section 40 of the 1987 Act.
In response the employer submits that the Arbitrator had carefully considered the opinion of all of the medical practitioners and also the witness statements relied on which confirmed the complaints made by the worker. Insofar as failure to give reasons is concerned it is submitted that the Arbitrator had given sufficient reasons and was satisfied that Dr Daghighi was in the same practice as Dr Tambyrajah. The Arbitrator also considered the clinical notes of Dr Ali and the fact that no treatment was sought by the worker until April 2007. The opinions of Professor Sheridan, Dr Ireland and Dr Ali are relied on since it is said they did not support the worker’s claim regarding injury to the neck or continued economic incapacity relating to his shoulder injuries. The point is made that the opinions of the worker’s doctors were based on examinations carried out years after the events in question.

DISCUSSION AND FINDINGS

The Arbitrator found that the worker suffered injury to his shoulders on 25 February 2006. However she did not specify what that injury was. The question remained, however, whether the worker’s incapacity and need for treatment resulted from that injury. She concluded that they did not and notwithstanding that weekly compensation was only claimed from 6 July 2007 she determined the liability for weekly compensation and treatment expenses ceased on 3 May 2006. At the heart of the Arbitrator’s reasoning were four considerations: the worker’s failure for almost twelve months to seek medical attention; the history given to Dr Ali when he was seen on 17 April 2007; the resumption of normal duties as a concreter after 3 May 2006; and the note of Dr Daghighi of 3 May 2006 that the injury to the worker’s shoulders had resolved.
In the period between May 2006 and April 2007 there is no clear evidence that the worker did seek any medical treatment for his shoulders and neck. As I have earlier indicated, he did see either Dr Ali or Dr Phan on 20 June 2006 with an unrelated condition, apparently bronchitis and also on 2 March 2007 when he had fever and a sore throat. No complaints were recorded by those doctors on those occasions of any symptoms in the worker’s neck or shoulders. Given the worker’s account that he had constant pain and worked with difficulty only by taking medication it is difficult to accept that he would not have sought medical attention on these occasions and others.
So far as Dr Tambyrajah is concerned, the worker asserted that the doctor had admitted that she had lost some of her notes which would have shown that he had consulted her on occasions other than are referred to in her report of 30 August 2008. That doctor’s notes appear to be computer-generated and one would expect that entries in the notes would not be easily lost. Had Dr Tambyrajah admitted to the worker that she had lost some notes, which I doubt, there is no reason why she would not have been prepared to say so in her report when this was pointed out by the worker nor was this, it appears, the subject of any further correspondence with that doctor . I am satisfied that the worker was only seen in connection with his injury up to April 2007 on the occasions listed in the payments made by the insurer; that is, on 1, 3, 8 and 22 March 2006 and 3 May 2006. Dr Tambyrajah’s notes do show what is referred to as a consultation on 20 December 2006, however, there is no information recorded in connection with this nor does she refer to it in her report of 30 August 2008. There is no record of a payment by either the insurer or Medicare in relation to such a consultation and I note that the insurer did not, prior to 11 July 2007, decline liability to make payments of compensation including treatment. If she had seen him about his injury before this date there is every reason to believe she would have been paid. The worker’s failure to seek treatment for almost a year does, I think, make highly unlikely his assertions that he had constant symptoms and required medication in that period.
It was sought to explain the failure to seek treatment on the basis that there had been a recurrence of his original injury in March/April 2007. This I cannot accept since it runs counter to evidence from the worker and others of a continuity of pain, incapacity and need for medication in this period. It is also contrary to the histories given to the qualified specialists the worker has seen.
It is clear that Dr Ali first saw the worker about his neck and shoulders on 17 April 2007 and, as was pointed out in submissions, made a point of recording an initial work injury on 25 February 2006. Nonetheless, Dr Ali refers to “injury from repeated heavy work and for the preceding [two months] shoulder pain on both sides and neck pain”. The worker’s account of his symptoms in his later statement was that he had a worsening of pain in March 2007 which fell to its former level after two to three months. In his earlier statement the worker refers to working for Karisma [sic] Building Service for two weeks up to 28 March 2007. This work was general labouring work making up gambion cages and filling them with selected rocks weighing up to two kilograms. He denied that his injuries had been made worse by that employment or by any work after 27 June 2006.
The Arbitrator assumed, for want of evidence, that the worker had resumed his normal duties after being certified fit to do so on 3 May 2006. She noted also that in accordance with his earlier statement he had resumed his former work as a concreter in his own business after being retrenched. As the worker’s latest statement makes clear, he did not resume concreting work for the employer but remained on what he termed light duties which it appears were not light at all and still placed considerable stresses on his shoulders. The assumption made by the Arbitrator as to his resumption of concreting with the employer is clearly wrong but the note of Dr Daghighi of 3 May 2006 still remains as evidence of the worker’s fitness. It may be that the worker’s failure to resume his pre-injury duties was related to the imminent completion of the project and the non-availability of those duties. I cannot really say on the evidence as relied on in these proceedings.
Despite the doubts expressed by the worker as to their origin, the notes of Dr Tambyrajah were attached to the Reply filed in these proceedings, although they had been late documents in the earlier proceedings. The worker denies telling Dr Daghighi that the pain in his shoulders had more or less gone, however, I see no reason to doubt what Dr Daghighi has recorded. The doctor’s finding on that occasion of a full range of movement without pain supports the statement that pain had “more or less gone” and the doctor’s finding on physical examination were essentially independent of what he was told by the worker. Accordingly, I do not accept the worker’s assertion that what is recorded in Dr Daghighi’s notes of 3 May 2006 is other than correct and truthful.
The order made limiting treatment expenses to those incurred before 3 May 2006 was based on the Arbitrator’s finding that the worker’s incapacity for employment had ceased rather than a denial that he had any pathology in his shoulders resulting from the injury. She declined an application by the employer, which relied on Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 33 (‘Waretini’) to not refer the worker’s permanent impairment for assessment by an AMS. In doing so I consider that she may have fallen into error and left the way open to the determination by the AMS of the worker’s permanent impairment as a result of injury. This determination sits very awkwardly with the finding which the Arbitrator made that incapacity had ceased.
The Arbitrator failed to deal at all with the evidence regarding payments of compensation for some months in 2007 prior to liability to do so being declined on 11 July of that year. This the worker relied on as an acceptance by the employer that his incapacity and need for treatment had not ceased on 3 May 2006. The answer to this is, I think, that the insurer had not denied liability to pay compensation until 11 July 2007 and quite properly made further payments following some communication from Dr Ali of 18 April 2007 which is referred to in his notes but which is not in evidence. I do not consider that the employer, by making those payments, should be taken to have conceded that incapacity after 3 May 2006 resulted from the injury in question for the reasons given by Spigelman CJ in Department of Education & Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206, at [88] to [93] especially that an employer should not be taken to have adversely affected its position by making payments when claimed because this would deter the reasonable behaviour which the workers compensation scheme seeks to encourage. Such payment is however evidence in the case to be weighed with all of the other evidence.
So far as the Arbitrator’s failure to give sufficient weight to the opinions of the various non-treating doctors, namely Drs Matalani, Ellis and Fearnside and in preferring the notes of the general practitioners involved, Drs Tambyrajah, Daghighi and Ali, it is my view that the contemporaneous notes of general practitioners (and specialists) are often of greater probative value than the opinions of specialists obtained some years later which may not be based on accurate histories. However, it must be said that in this case that specialists who later saw the worker did have available radiological investigations which were not available to those seeing the worker earlier, in particular the MR arthrogram of 20 September 2007. It is true that the Arbitrator did not deal with the opinions of these specialists. She did not do so because those opinions were not relevant to the conclusion which she reached that incapacity had ceased in May 2006.
There is no doubt that the worker has considerable radiological changes in his shoulders. Some of these are clearly degenerative while others are related to the work of concreting. These would reasonably give rise to some incapacity for employment. The difficulty which the worker has is that he seeks to attribute these changes to the work performed on a particular day in February 2006. His statements describe his work apart from that for the employer as mainly supervisory with little physical exertion required. If that were the case it is difficult to understand why he could not now perform that work. It is highly unlikely that the work performed prior to the worker commencing his own business was the mainly supervisory work described. I do not accept that his former work was as he would have us believe, that is, non stressful to his shoulders.
Dr Giblin noted that the worker had a history of 17 years as a concreter but did not think that his current condition was necessarily related to that. He thought the sub-deltoid bursitis and the disc protrusion were radiological changes consistent with acute injury. He was however in agreement with Dr Harris regarding acromioclavicular arthritis being reasonably attributed to previous work but he did not think these were symptomatic and physically restrictive. I do not understand how Dr Giblin can attribute the bursitis and disc protrusion to an acute injury due to work on 25 February 2006 rather than work on many other days and over many years.
I would make the following additional comments regarding the opinions of Drs Matalini, Ellis and Fearnside. Dr Matalani took a history of symptoms intensifying during the worker’s light duties up to 27 June 2006. He related all of the worker’s symptoms to the injury of February 2006. He did however comment on the duties of a concreter which he said were heavy and required repetitive use of the arms. He had to push and pull heavy weights and do a lot of shovelling. This is in contrast to the relatively easy work which the worker described while he was carrying on his own business both before and after his employment in 2005 and 2006.
Dr Ellis thought that consequent on the neck injury there were secondary effects in both arms. However he did not think that the changes on MRI corresponded with the degree of pain and disability which the worker had and suggested further radiological investigation. The worker’s main problem was the cervical disc rupture.
Dr Fearnside noted that he had been asked in a letter of instruction to assume that the worker had constant pain since 25 February 2006 but remained at work, although his symptoms had fluctuated. It is reasonable to assume that other qualified specialists were asked to make the same assumption which is in accordance with the worker’s evidence. As I have earlier said I do not accept that the worker has had constant symptoms since 25 February 2006 and I do not accept the opinions of the specialists who attribute the worker’s symptoms and pathology to the relevant injury.
Dr Beer’s MAC is of special significance since it is, by section 326(1)(a) of the 1998 Act, conclusively presumed to be correct as to the degree of permanent impairment of a worker as a result of an injury. The question remains whether Dr Beer’s MAC and the subsequent COD means that it must be found that the worker does have an incapacity for work and a need for medical treatment as a result of the injury in question. Dr Beer’s assessment of whole person impairment is inconsistent with a finding of no incapacity for employment. There have been a number of decisions dealing with the respective roles of arbitrators and AMSs to which I now need to refer.
In Waretini, referred to at [122] above, a decision of Acting Deputy President Snell, the worker had sought weekly compensation, section 60 expenses and lump sum compensation. The arbitrator found that the worker had suffered injury but the effects of that injury had resolved and the symptoms he had were not work related. However, the assessment of permanent impairment was referred to an AMS selected by the Registrar. There was a further hearing in which the appropriateness of a referral to an AMS was raised and the arbitrator was of opinion that the worker was entitled to pursue his claim for permanent impairment. The Acting Deputy President referred at [25] to his own decision on Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 131 in which he had concluded that:
“… although a MAC may be binding as regards the quantum of permanent impairment or loss pursuant to section 66, threshold questions such as ‘injury’, ‘substantial contributing factor’, and whether there is a causal link between the impairment or loss, and the employment injury, remain questions for the Commission, rather than questions on which the MAC is conclusive.”
He cited as support for that statement the decision of Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 and Joppa Pty Limited t/as Tricias Clip-n-Snip v Edenden [2004] NSWWCCPD 50. He went on to say at [39]:
“To say that a worker can fail in a claim for weekly compensation, and yet still potentially have an entitlement to lump sum compensation for permanent impairment, is clearly true. It will depend on the basis of the worker’s failure in his weekly claim. A worker may be found to have no entitlement to weekly compensation as there is no economic incapacity, and yet still have a compensable permanent impairment. However if, for example, a worker fails in his weekly claim because there is a finding he has not suffered an injury, or the effects of the employment injury have ceased, such a finding is inconsistent with the existence of a compensable permanent impairment caused by the alleged employment injury.”
Accordingly the Acting Deputy President found that the worker was precluded from pursuing his claim for non-economic loss for permanent impairment.
In Haroun v Rail Corporation New South Wales & Ors [2008] NSWCA 192 (‘Haroun’) the claim was for lump sum compensation only. The Arbitrator had made a number of findings by consent and had referred the degree of permanent impairment suffered by a worker to an AMS who found that all of the impairments claimed were as a result of a previous injury or pre-existing condition. A Medical Appeal Panel (‘appeal panel’) agreed and an application for judicial review failed. In a short judgment Handley AJA, with whom McColl JA and McDougall J agreed, held that the AMS and appeal panel were bound to treat the findings agreed to by the parties as irrelevant and said at [16]:
“The scheme for the settlement of compensation disputes established by the 1998 Act read with the Workers’ Compensation Act 1987 (the 1987 Act) is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and have certain medical issues decided by an AMS subject to appeal to a Panel.”
At [22] his Honour continued:
“A MAC which is conclusively presumed to be correct under s326(1) trumps any inconsistent findings by an Arbitrator and such findings are neither final nor binding on the parties.”
Peric, to which I have referred at [35] above, was decided after Haroun. In that case Deputy President O’Grady said the following at [77]:
“I am of opinion that a question as whether an injury proven in proceedings before the Commission has caused ongoing disability or whether such injury has had a pathological effect limited to a particular period of time is a legal question (namely one of causation), which remains within the exclusive jurisdiction of the Commission (an arbitrator) to decide. Such questions arise for determination in various circumstances on a regular basis before the Commission (for example whether aggravation of a disease is permanent or otherwise; whether incapacity results from one or more identified injuries; whether apportionment among employers pursuant to section 22 of the 1987 Act is appropriate in cases of multiple proven injuries). The fact that a claim may involve a question of the degree of permanent impairment as a result of an injury in terms of section 319 does not, in my view, deprive an arbitrator of jurisdiction to determine questions as to the duration of pathological consequences of an injury.”
In WorkCover New South Wales v Evans [2009] NSWWCCPD 95, Acting Deputy President Snell said the following at [57]-[59]:
“I agree with the analysis of O’Grady DP, [in Peric] that a finding that the effects of injury have ceased, can be distinguished from the consent findings in Haroun. The consent finding in Haroun, even if accepted, did not establish the existence of a permanent impairment. It remained a matter for the AMS to assess the degree of permanent impairment, and this had to occur, before an Arbitrator could enter an award pursuant to section 66 (section 65(3) of the 1987 Act). Clearly an AMS, in those circumstances, was at liberty to find that there was no permanent impairment, or that the whole of the impairment resulted from a pre-existing condition or abnormality.
In Haroun, the only claim that came before the Arbitrator was one for lump sum compensation. Questions going to ‘injury’ were resolved by consent. In those circumstances Handley AJA concluded that what remained in issue was ‘a medical dispute’, as defined in section 319 of the 1998 Act. The scheme of the 1987 and 1998 Act was that the medical dispute be determined by an AMS, the Arbitrator lacked jurisdiction to do so.
This may be contrasted with the situations in Peric and Waretini, where the Arbitrator was required to decide what the consequences of the injury were, for the purposes of determining disputes going to entitlement to weekly compensation and medical expenses. There can be no room for the suggestion, in such circumstances, that an Arbitrator does not have jurisdiction to determine questions such as causation. The Arbitrator clearly had jurisdiction to this, pursuant to section 105(1) of the 1998 Act. It was necessary that an Arbitrator determine causation, among other issues, for the purpose of determining the claims for weekly compensation and medical expenses. Having decided, as part of this fact finding exercise, that the effects of injury subsisted for a closed period only, such finding also disposed of the dispute between the parties regarding whether there was a permanent impairment resulting from the injury. There could not be, consistent with the finding on causation. The finding created an issue estoppel that bound the parties. The result was that there could no longer be a dispute about the degree of permanent impairment resulting from the injury, to be referred to an AMS.”

Greater Taree City Council v Moore [2010] NSWWCCPD 49, a decision of Deputy President Roche, was concerned with a claim for lump sum compensation only. In the course of his reasons the Deputy President said the following at [101] and [102]:
“The Council’s submission that the Arbitrator’s finding in the present matter was the same as the finding in Waretini fails to acknowledge that the claim in that case was not restricted to the lump sum compensation, as it is in the present matter, but included a claim for weekly compensation. It does not matter that StateCover’s section 74 Notice alleged that any incapacity beyond a few days from the date of injury had resulted from causes other than the incident. Incapacity was not the subject of the claim by Ms Moore and was not the subject of the dispute the Commission was required to determine.
Had incapacity been an issue in dispute, the Commission would have been required to determine that matter. Had it determined that the effect of the injury had ceased, there would then have been no medical dispute for referral to an AMS (Peric at [80]) and the decision would have created an estoppel (WorkCover New South Wales v Evans [2009] NSWWCCPD 95 (‘Evans’)) preventing an AMS from making a finding inconsistent with the Commission’s determination. However, since incapacity was never an issue in dispute in the present matter, the principles discussed in Peric, Waretini and Evans do not arise.”

Notwithstanding the opinion of Dr Beer and the second COD the evidence provides, in my opinion, sufficient grounds for concluding that the effects of the injury of 25 February 2006 had resolved by 3 May of the same year. This was a decision which, on the above authorities, was within the competence of the Arbitrator to make and if I were to re-determine this matter I would make such finding. Thus if leave to appeal had been given I would have dismissed the appeal on its merits. The second COD would however have remained in effect since no appeal has or arguably could have been brought in respect of it.
I am aware that, in refusing leave to appeal, there are now two inconsistent CODs. Needless to say this is a most unsatisfactory state of affairs. The employer was content to accept this but the worker was not. The time for the worker to seek to resolve the inconsistency was before the second COD was issued and the means to do so was by application for reconsideration to the arbitrator. This did not occur. This reinforces my view that, by reason of the conduct of the worker and his legal advisers, leave to appeal should be refused.

DECISION

Leave to appeal is refused.

COSTS

Each party is to pay his or its own costs of the application to appeal.

Anthony Candy
Acting Deputy President
28 June 2010

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE