Inghams Enterprises Pty Ltd v Lynch - [2013] NSWWCCPD 70

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Inghams Enterprises Pty Ltd v Lynch [2013] NSWWCCPD 70
APPELLANT:	Inghams Enterprises Pty Ltd
RESPONDENT:	Patricia Lynch
INSURER:	Self-insured
FILE NUMBER:	A1-6310/12
ARBITRATOR:	Ms J Peacock
DATE OF ARBITRATOR’S DECISION:	18 September 2013
DATE OF APPEAL DECISION:	17 December 2013
SUBJECT MATTER OF DECISION:	Boilermaker’s deafness; notice of injury; notice of claim; procedural fairness; ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998; awareness of receipt of injury
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh Virtue & Associates
Respondent:	Turner Freeman
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 18 September 2013 is revoked and the matter remitted to a different Arbitrator to determine the notice of injury issue under s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and to re-determine whether the failure to claim within six months of 8 July 2011 was occasioned by ignorance, mistake, absence from the State or other reasonable cause under s 261(4) of the 1998 Act. 2. The appellant employer is to pay one third of the respondent worker’s costs of the appeal, assessed at $844 plus GST. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration.

INTRODUCTION

This appeal concerns the notice of injury and notice of claim provisions in ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in the context of a claim for compensation for industrial deafness under s 17 of the Workers Compensation Act 1987 (the 1987 Act). In summary, the main issues are:
(a)     whether the Arbitrator erred in failing to determine whether the worker gave notice of injury as soon as possible after the injury happened and before she voluntarily left the employment in which she was at the time of the injury (s 254 of the 1998 Act);
(b)     whether the Arbitrator erred in finding that the worker became aware that she had received her injury on 8 July 2011, instead of March 2004, as the employer argued, or in August 2011, as the worker argued (s 261(6) of the 1998 Act);
(c)     whether the worker’s failure to claim compensation within six months of becoming aware she had received her injury (assuming that she became aware on 8 July 2011, as the Arbitrator found) could be excused because of “other reasonable cause” (s 262(4)), and
(d)     whether the Arbitrator denied the employer procedural fairness by determining the issue of “other reasonable cause” on a ground not argued.

BACKGROUND

The respondent worker, Patricia Lynch, worked as a process worker for the appellant employer, Inghams Enterprises Pty Ltd, from 1990 until 4 January 2008. Though the appellant (surprisingly) disputed noisy employment in its s 74 notice, the appellant’s expert evidence was that Ms Lynch’s employment with it was employment to the nature of which industrial deafness was due, that is, that Ms Lynch’s employment was noisy. The appellant did not contest that it was the last relevant noisy employer.
In March 2004, on the advice of her union delegate, Ms Lynch saw her general practitioner, Dr Anderson, and asked to have an assessment for industrial deafness. Dr Anderson referred Ms Lynch to a specialist, Dr Reid, who reported that her audiogram was not consistent with noise induced hearing loss.
On 8 July 2011, Ms Lynch had her hearing checked by Paul Dayton, an audiologist with National Hearingcare. He told her she had industrial deafness for which she could claim compensation and that she should seek legal advice.
On 12 August 2011, Ms Lynch saw her current solicitors, Turner Freeman, who arranged for an examination with Dr Dhasmana, an ear, nose and throat specialist. Dr Dhasmana examined Ms Lynch on 22 November 2011 and reported to Turner Freeman on that day. He confirmed that Ms Lynch has industrial deafness caused by exposure to noise in her employment.
On 1 December 2011, Ms Lynch again saw her solicitor, who advised her that she could make a claim against the appellant for her hearing loss.
On 29 December 2011, Ms Lynch signed a claim form claiming compensation for industrial deafness.
By letter dated 9 January 2012 from Turner Freeman, Ms Lynch claimed from the appellant lump sum compensation and the cost of hearing aids. It is accepted that 9 January 2012 was the date on which Ms Lynch gave notice of her injury.
It was agreed that the deemed date of injury under s 17 was 4 January 2008. That date was determined under s 17(1)(a)(ii), which provides that, where a worker is not employed in noisy employment at the time the worker gave notice of the injury, the deemed date of injury is the last day on which the worker was employed in noisy employment before he or she gave the notice.
The appellant’s solicitor, Mr Macken, submitted before the Arbitrator that Ms Lynch’s claim had to fail because she had not given notice of injury as soon as possible after the injury, as required by s 254 of the 1998 Act, and the claim had not been made within six months of the date of injury, or the date on which she became aware she had received an injury, as required by s 261(1) of the 1998 Act.
Mr Macken argued that Ms Lynch first became aware she had received an injury in 2004 when she knew that she had a hearing problem, that she had been exposed to noisy employment, and that she could claim compensation for it. In the alternative, he submitted that she was aware she had received an injury by 8 July 2011 when Mr Dayton told her she had industrial deafness for which she could claim compensation. Using either date, he said that Ms Lynch was not entitled to succeed because she had not claimed compensation within six months of those dates.
The Arbitrator made no finding about, or comment on, whether Ms Lynch had given notice of injury as required by s 254.
Dealing with the issue of notice of claim under s 261, the Arbitrator determined that Ms Lynch first became aware that she had received an injury when she had a hearing test on 8 July 2011 and Mr Dayton advised her that she suffered industrial deafness caused by exposure to loud noise at work. Though the claim was made more than six months after 8 July 2011, the Arbitrator was satisfied that Ms Lynch “had reasonable cause” ([55]), under s 261(4), for failing to claim within time.
The Arbitrator’s reasons for finding that Ms Lynch had reasonable cause for failing to claim within 6 months were that, as at 8 July 2011, Ms Lynch was not aware whether she could make a claim. She saw a solicitor in August 2011 who told her that she needed to see an ear, nose and throat specialist. Ms Lynch saw that specialist, Dr Dhasmana, on 22 November 2011 and was advised by her solicitor on 1 December 2011 that she could make a claim against the appellant for her hearing loss. She completed the claim form on 29 December 2011, which, because of the Christmas break, the Arbitrator said was forwarded to the appellant on 12 January 2012 (the evidence suggests that the letter was in fact forwarded on 9 January 2012).
The appellant has challenged the Arbitrator’s determination.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE ON APPEAL

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) failing to consider and determine the issue regarding the failure by Ms Lynch to give notice of injury (notice of injury – s 254);
(b) her consideration of what constituted “reasonable cause” (reasonable cause – s 261(4));
(c) denying the appellant procedural fairness by determining the matter on a basis not argued (procedural fairness), and
(d) determining whether Ms Lynch was aware of injury in March 2004 (awareness).

SUBMISSIONS, DISCUSSION AND FINDINGS

Notice of injury – s 254

Mr Macken submitted that s 254 applies because the date of injury is 4 January 2008 and the notice of injury was not until 9 January 2012. In the circumstances, as Ms Lynch did not give notice of injury as soon as possible, as required under s 254, she is precluded from recovering compensation and an award should be entered in favour of the appellant.
Though counsel appeared for Ms Lynch at the arbitration, Mr Grosse, a solicitor, has prepared submissions on her behalf on appeal. He conceded that the Arbitrator did not specifically mention Ms Lynch’s alleged failure to give notice of injury, but argued that it is explicit from the evidence that the Arbitrator was satisfied that Ms Lynch had satisfied the requirements of s 254(2) and (3). If the Commission were against Ms Lynch on this submission, Mr Grosse submitted that the Presidential member hearing the matter should make his own decision on this issue or remit the matter to a different Arbitrator for determination.
Mr Grosse also relied on s 17(1)(b), which provides, in effect, that the notice of injury provisions in s 61 of the 1998 Act, do not apply to hearing loss injuries to which s 17 applies. He argued that s 61 is “intended to be the applicable section for all hearing loss injuries”. He further submitted that s 17(1)(b) should be “read so as to extend to s 254”.
I do not accept Mr Grosse’s submission that the Arbitrator was satisfied that Ms Lynch had satisfied the requirements of s 254(2) and (3). The Arbitrator did not deal with those subsections and erred in failing to do so. Mr Grosse’s submission that the Arbitrator did deal with this issue is untenable. As Mr Grosse’s additional submissions raise issues of statutory interpretation that were not argued before the Arbitrator, and have not been properly argued on appeal, it is not appropriate that I deal with them on appeal.
The Arbitrator’s error does not mean that there should be an award in favour of the appellant on this issue. The issue of lack of prejudice, because of the absence of notice, which both sides argued at the arbitration, has not yet been determined. If Ms Lynch’s argument on that issue is upheld, the failure to give notice will not be a bar to the recovery of compensation (s 254(3)(a)). In view of the issues involved, it is appropriate that the matter be remitted to a different Arbitrator for re-determination of the s 254 issue.

Reasonable cause – s 261(4)

On this issue, the Arbitrator said:
“54.Mrs Lynch gave evidence that she was not aware of whether she could make a claim on 8 July 2011, her concern being that she had left some years prior. She saw a solicitor in August 2011 who told her she needed to see an ENT and they referred her to Dr Dhasmana. She could not get into see him to November 2011. She went back to see her solicitors on 1 December 2011 where she was told that on the basis of Dr Dhasmana’s report she could make a claim against Inghams for noise induced hearing loss. She completed the claim form on 29 December 2011 and it was forwarded to Inghams on 12 January 2012 because of the Christmas break.
55.I am satisfied that in the above circumstances Mrs Lynch had reasonable cause, which was the ground submitted by Mr Mcanamey [sic] on behalf of Mrs Lynch, under section 261(4) for failing to make the claim within the time required by section 261 namely, within six months of 8 July 2011, when she first became aware she had received an injury. As the claim is made within three years, section 261 is not a bar to Mrs Lynch recovering compensation.”
Mr Macken submitted that, in making this finding, the Arbitrator erred in having regard only to Ms Lynch’s subjective circumstances to satisfy reasonableness rather than the “cause” itself. In other words, the Arbitrator determined this question by reference to whether or not Ms Lynch “was reasonable” rather than whether there was “other reasonable cause” for having not claimed within the six months.
Mr Grosse submitted that the Arbitrator considered all the circumstances of the case to determine whether a reasonable cause existed and that her reasons should be read in conjunction with the submissions by Ms Lynch’s counsel at the arbitration. He said that the Arbitrator did not confine herself to merely inquiring whether Ms Lynch believed herself to be acting or thinking reasonably. Mr Grosse also submitted that the claim was made within time.
On the question of whether the claim was made within six months, it is clear that a claim made on 9 January 2012 is not made “within 6 months” (s 261(1)) after 8 July 2011, the date on which the Arbitrator found Ms Lynch became aware she had received her injury. If Mr Grosse had in mind some provision of the Interpretation Act 1987 (NSW) that is relevant to the calculation of time, he did not identify any such provision.
Neither party’s submissions are correct.
I do not accept that the Arbitrator had regard only to Ms Lynch’s subjective circumstances when she considered this issue. Her reasons at [54] set out the chronology of relevant events in 2011 and 2012. Her reasons at [55] said that she was satisfied that Ms Lynch had a reasonable cause for not having claimed within six months on the ground submitted by Ms Lynch’s counsel. However, she did not state what that reasonable cause was.
Reading the decision with the submissions by Ms Lynch’s counsel does not assist. On this issue, Ms Lynch’s counsel said, at T27.14:
“Mr McManamey: It falls within reasonable cause. She didn’t have any knowledge of the requirements to make [sic] any particular time until she sees Turner Freeman and she follows their advice in obtaining a proper report of [sic] which one can make a claim in order to make the claim [sic]. I may have a tendency to …
Arbitrator: What, did you just mumble?
Mr McManamey: Sorry, I’m just passing a very random thought. We would say in those circumstances of getting the proper report following the advice of the solicitors that that is a reasonable cause in terms of the delay and for those reasons, Madam Arbitrator, you would find [Ms Lynch] is entitled to pursue her claim and you’d refer the matter to an AMS.”
Counsel then submitted that it was not until 12 August 2011, when Ms Lynch saw a solicitor, that she had all the requisite knowledge (the transcript at T28.8 wrongly records “records of knowledge”) to be aware that she had received an injury and the claim was therefore made within six months.
The meaning of the first paragraph quoted at [30] above is unclear and the transcript appears to be incomplete. I have listened to the audio recording of the hearing, but because of its poor quality, have been unable to clarify counsel’s submission. The second paragraph is acceptably clear: counsel submitted that the delay could be excused because, on the advice of her solicitors, Ms Lynch waited until she had a medicolegal report. However, the Arbitrator did not explain how the delay in obtaining that report, which was dated 22 November 2011, and explained to Ms Lynch by her solicitor on 1 December 2011, or any of the other matters she referred to at [54], provided a reasonable cause for Ms Lynch’s failure to claim within six months of 8 July 2011.
It may be that the Arbitrator considered the combination of factors listed by her at [54] led to the conclusion that “other reasonable cause” had been established. If that was her view, she did not explain how that was so. It follows that the Arbitrator failed to properly deal with s 261(4).
It does not follow, however, that the appellant is entitled to an award in its favour on appeal. Ms Lynch gave evidence that she did not know she might be able to make a claim for compensation in respect of her hearing loss until she saw a solicitor on 12 August 2011. However, she did not say when she knew, if ever, that she had to claim within six months of first becoming aware that she had received an injury.
A reasonable inference from the evidence is that she was never aware of that fact. Such a conclusion would support a finding that Ms Lynch did not claim within six months of 8 July 2011 because of either ignorance or other reasonable cause. As the Arbitrator did not properly deal with that issue, the proper course is for the matter to be remitted to a different Arbitrator for the s 261(4) issue to be re-determined on such evidence and submissions as the parties may adduce at the re-determination.

Procedural fairness

Mr Macken submitted that the appellant was denied procedural fairness because, when dealing with the “reasonable cause” issue at [54] of the decision, the Arbitrator had regard to a number of matters on which Ms Lynch’s counsel had made no submissions. Mr Grosse submitted that the appellant was given a reasonable opportunity to present its case and there was no denial of procedural fairness.
As this part of the case must be re-determined in any event, it is not necessary to decide this point, other than to observe that if an Arbitrator is minded to determine a claim on a point not argued he or she must bring that point to the parties’ attention to give them the opportunity to deal with it (Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 at [75]).

Awareness

Mr Macken argued that the Arbitrator erred in failing to find that Ms Lynch was aware that she had received an injury at the time she saw Dr Reid in March 2004 because she “incorrectly categorise[d] the views expressed at that time that [Ms Lynch] was told unequivocally by her specialist that she did not have industrial deafness”. He said this statement failed to take account of the clinical notes from Dr Anderson on 8 January 2004, which recorded, relevantly:
“Deafness – works at Inghams which is noisy. Needs assessment for industrial deafness.”
Mr Macken said that Dr Reid did not state unequivocally that Ms Lynch did not have industrial deafness but said that the audiogram was “certainly not consistent with a noise induced hearing loss but there appears to be some no other innate inner ear disorder to account for this” (correction as per original).
Mr Macken submitted that, consistent with Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 (Jones), what is required is awareness of sensorineural hearing loss, which is hearing loss of such a nature as to be contracted by a gradual process. He said that a reading of Dr Anderson’s notes, with Dr Reid’s report, including the history to those doctors, “is more consistent with [Ms Lynch] being aware of injury as at 2004”.
The Arbitrator rejected Mr Macken’s submission that Ms Lynch became aware that she had received an injury in 2004. Her reasons were that Dr Reid told Ms Lynch, “somewhat emphatically” ([41]), that she did not suffer from noise induced hearing loss and it was clear from Ms Lynch’s evidence in cross-examination that she relied on what Dr Reid told her in March 2004, namely, that she did not have industrial deafness.
In the Arbitrator’s view, this could not equate to awareness (in 2004) that Ms Lynch had suffered an injury. The Arbitrator added that Ms Lynch was told by her specialist “quite unequivocally” ([43]) that she did not (have industrial deafness) and “she relied on his expert opinion” ([43]).

I reject Mr Macken’s submissions on this issue. The Arbitrator’s approach and conclusion on this issue discloses no error and is clearly supported by the evidence. The evidence plainly and unmistakably established that Ms Lynch was not aware in 2004 that she had suffered an injury in the form of sensorineural hearing loss (industrial deafness).
Ms Lynch’s evidence in cross-examination was that, though she had initially forgotten having seen Dr Reid, when reminded by her solicitor that she had seen him, she “did remember” (T10.21). She was then asked, at T11.13:
“Mr Macken: Right, yeah and that’s what I’m asking. You can’t recall the conversation you had with Dr Reid?
Ms Lynch: Not all of it. He told me I had a hearing problem. It wasn’t industrial deafness. He didn’t know what it was. He wanted me to go back but I didn’t go back.” (emphasis added)
This evidence was consistent with Ms Lynch’s evidence in her second statement, wrongly dated 12 November 2011, but agreed to have been signed on 12 November 2012, where she said:
“When I saw Dr Reid, he tested my hearing and said to me words to the effect, ‘You do have some hearing loss. I do not know what the cause of it is but it is not industrial deafness.’ Given the opinion of Dr Reid I did not pursue the matter any further.”
When Mr Macken suggested that Ms Lynch could not specifically recall Dr Reid saying that to her, she replied at T13.23:
“Ms Lynch: Oh yes, I can because he wanted me to go back and see him again and when I left, I said to my husband, if he doesn’t know what the cause of it is, if he doesn’t know what is wrong, why go back to pay money to [be] told the same thing.”
To avoid any doubt about the state of Ms Lynch’s knowledge in 2004, Mr Macken then skilfully asked, at T14.10:
“Mr Macken: At that time when you saw Dr Reid, do you now agree that you knew you had a problem with your hearing?
Ms Lynch: Not industrial deafness, no. He said it wasn’t anything to do with industrial deafness.” (emphasis added)
Mr Macken also asked Ms Lynch about her attendance on Dr Anderson in January 2004, starting at T14.16:
“Mr Macken: Well, do you remember seeing Dr Anderson about your hearing in January of 2004?
Ms Lynch: Yes. I asked him about getting my hearing checked.
Mr Macken: Yes and what were you getting your hearing checked for?
Ms Lynch: Because a lot of the people at work were getting it checked and the hearing guy at the time was telling people to have it checked.
Mr Macken: And that was for the purpose of finding [sic] compensation?
Ms Lynch: Well no, just to have it checked, to get the hearing checked so I went and done it.
Mr Macken: Well, you knew at that time that a claim for compensation could be made for your hearing?
Ms Lynch: I did but I didn’t really think there was anything wrong with my hearing. I was just getting it checked because we were all advised to get it checked.
Mr Macken: And what was it that was being checked about your hearing?
Ms Lynch: Well, because we worked in a loud situation, we were just told to get it checked for industrial deafness.
Mr Macken: That’s right and your doctor, you understand your doctor referred you because you needed an assessment for industrial deafness?
Ms Lynch: Yes.
Mr Macken: And that’s what you were getting?
Ms Lynch: Yes
Mr Macken: And that the result of that would be industrial deafness?”
Counsel for Ms Lynch objected to this question and, after a discussion, Mr Macken continued at T17.1:
“Mr Macken: In 2004 you knew that you were in noisy employment?
Ms Lynch: Yes.
Mr Macken: And that the result of that may be industrial deafness and that’s why you were getting it checked?
Ms Lynch: Well, we were getting it checked because we were advised by the Union delegate to get our hearing checked. Anyone who’d been there over a certain [sic] of many years.
Mr Macken: Yes and you knew that if you did have industrial deafness, you could claim compensation for it?
Ms Lynch: Well, yes.”
After asking Ms Lynch about a claim she made in the late 1990s for a trigger finger injury, Mr Macken continued at T18.13:
“Mr Macken: Yes but you knew you could claim compensation if you had an injury?
Ms Lynch: Everyone knows that. That’s common-sense.
Mr Macken: Yes and you knew you could claim compensation if you had hearing loss because of the loud noise you were exposed to?
Ms Lynch: Yes but I was told I didn’t have any hearing loss.
Mr Macken: Yes, I understand that.
Ms Lynch: So I didn’t do anything.” (emphasis added)
If there were any doubt about it, Mr Macken’s adroit cross-examination removed that doubt and firmly established that Ms Lynch was not aware in 2004 that she was suffering from industrial deafness.
It follows that the Arbitrator did not “incorrectly categorise” the views expressed by Dr Reid in 2004. Dr Reid’s evidence was crystal clear: Ms Lynch’s audiogram was “certainly not consistent with a noise induced hearing loss” (emphasis added). Ms Lynch’s evidence of what Dr Reid told her, namely, that she had some hearing loss but it was not industrial deafness, was consistent with Dr Reid’s report and firmly established that she was not aware in 2004 that she had suffered the injury of industrial deafness.
Nothing in Dr Anderson’s notes undermines this conclusion. The reference to “deafness” in the notes is, on its own, of no significance. Read in light of Ms Lynch’s evidence that she was having her hearing tested because the union suggested that she get it checked, not because she had a problem with deafness, it carries no weight. That conclusion is reinforced by Dr Anderson’s note “[n]eeds assessment for industrial deafness”. That assessment concluded that she did not have industrial deafness. When read with all the evidence, Dr Anderson’s notes do not advance the appellant’s position.
It follows that Mr Macken’s submission that Ms Lynch was aware that she had received the injury of industrial deafness in 2004 is completely without merit and unsustainable. The argument is inconsistent with the unequivocal evidence from Dr Reid and Ms Lynch. Moreover, it was completely destroyed by Mr Macken’s cross-examination of Ms Lynch, which not only did not advance the appellant’s case but strengthened this part of Ms Lynch’s case. It follows that the Arbitrator correctly determined that Ms Lynch was not aware in 2004 that she had received an injury.
Mr Grosse submitted that it would have been open to the Arbitrator to find that Ms Lynch did not have the requisite awareness that she had received an injury until she “was informed of the opinion of ear, nose and throat surgeon, Dr Dhasmana in December 2011”, which would be more consistent with the evidence.
Whether this was a challenge to the Arbitrator’s finding that Ms Lynch became aware she had received an injury on 8 July 2011 is unclear. If it was, as Mr Grosse made no attempt to identify any error by the Arbitrator, it was not raised in the proper manner to warrant consideration. In any event, it was without merit and is rejected.
The evidence is clear that Ms Lynch was aware on 8 July 2011 that she had sensorineural hearing loss (industrial deafness) and that that loss had been contributed to by her employment with the appellant. That was sufficient to establish that she was aware that she had received an injury (Unilever Australia Ltd v Petrevska [2013] NSWCA 373 at [33] (Petrevska)). To be aware that she had received an injury, Ms Lynch did not have to be aware of all of the procedural steps necessary to make a valid claim (Petrevska at [21]).

CONCLUSION

As the Arbitrator erred in not determining the notice of injury issue and on the s 261(4) issue, those matters must be re-determined before a different Arbitrator. The matter will be remitted for those issues to be determined on the basis of such submissions and evidence the parties may present. The finding that Ms Lynch became aware that she received her injury on 8 July 2011 is confirmed and is no longer in issue. Similarly, it is not open to contest the fact that the appellant was the last relevant noisy employer.

DECISION

The Arbitrator’s determination of 18 September 2013 is revoked and the matter remitted to a different Arbitrator to determine the notice of injury issue under s 254 of the 1998 Act and to re-determine whether the failure to claim within six months of 8 July 2011 was occasioned by ignorance, mistake, absence from the State or other reasonable cause under s 261(4) of the 1998 Act.

COSTS

Though the appellant has partly succeeded in the appeal, it failed on the question of when Ms Lynch became aware that she had received an injury, an issue that was totally without merit that had no prospect of success and should not have been argued. In these circumstances, the appellant employer is to pay one third of the respondent worker’s costs of the appeal, assessed at $844 plus GST. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration.

Bill Roche
Deputy President

17 December 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE