Inghams Enterprises Pty Ltd v Rachmaninoff - [2011] NSWWCCPD 35

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: This decision has been the subject of a reconsideration in Inghams Enterprises Pty Ltd v Rachmaninoff (No 2)* [2011] NSWWCCPD 61**
CITATION:		Inghams Enterprises Pty Ltd v Rachmaninoff [2011] NSWWCCPD 35
APPELLANT:		Inghams Enterprises Pty Ltd
RESPONDENT:		Darren Rachmaninoff
INSURER:		Self insurer
FILE NUMBER:		A1-4482/10
ARBITRATOR:	Ms Margaret Dalley
DATE OF ARBITRATOR’S DECISION:		16 July 2010
DATE OF APPEAL HEARING:		20 June 2011
DATE OF APPEAL DECISION:		6 July 2011
SUBJECT MATTER OF DECISION:		Duty to give reasons for decision; s 74 of the Workplace Injury Management and Workers Compensation Act 1998; requirements as to giving notice of dispute; s 357 of the Workplace Injury Management and Workers Compensation Act 1998; Commission’s discretion to give directions requiring production of documents; failure to exercise discretion; allegation of ‘nature and conditions’ injury; consequences of failure to adequately particularise injury alleged; parties’ obligation to adhere to Registrar’s Guidelines
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr Macken of Leigh Virtue & Associates
Respondent:	Mr Del Monte, instructed by Maurice Blackburn Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination as made in Certificate of Determination dated 16 July 2010 is confirmed. The Registrar’s orders made in Certificate of Determination dated 9 February 2011 are confirmed. The appellant is to pay Mr Rachmaninoff’s costs of this appeal.

BACKGROUND

Mr Darren Rachmaninoff commenced employment as a farmhand with Inghams Enterprises Pty Ltd (the appellant) in 2002. I note at the outset that there is no statement by Mr Rachmaninoff in evidence before the Commission. His duties, it seems, involved catching chickens. That work involved a lot of bending, twisting, working on uneven surfaces and lifting weights between seven and 10 kgs. It is alleged by Mr Rachmaninoff that the “nature and conditions” of this work caused injury to his back. The period of work relevant to causation of the injury is said to be between 2002 and December 2009.
As a result of the alleged injury, Mr Rachmaninoff was absent from work and received medical treatment in respect of his condition. It seems that upon return to work he was provided with suitable duties by the appellant.
On 22 February 2010 a claim for lump sum compensation was made against the appellant on behalf of Mr Rachmaninoff by his solicitors pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) being the sum of $6,875 in respect of five per cent whole person impairment. That correspondence did not nominate a particular date of injury but, rather, noted that Mr Rachmaninoff’s “job involved a lot of bending, twisting and lifting”. Reliance was placed upon the opinion of Dr Yiu-Key Ho, orthopaedic surgeon, and a copy of that practitioner’s report dated 8 December 2009 was enclosed with the correspondence.
That claim was declined by the appellant, a self insurer, and a notice concerning that denial of liability was forwarded to Mr Rachmaninoff’s solicitors in accordance with the provisions of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 12 May 2010.
The appellant, in its s 74 notice, relied upon the opinion of Dr Hitchen, orthopaedic surgeon, as expressed in his report dated 31 March 2010. The notice stated that liability had been denied “as [Mr Rachmaninoff] has not sustained whole person impairment as a result of the injury on 20.6.08”.
On 2 June 2010 Mr Rachmaninoff commenced proceedings against the appellant in the Commission. His Application to Resolve a Dispute, which was subsequently amended, alleged injury as particularised at Part 4 of that document as follows:
“Date of injury: 2002 - 14/11/2008 Date of notice of injury: 14/11/2008
Place of injury: Employer’s premises
Date of compensation claim: 22/2/2010
Injury description: Injury to the lumbar spine.
Describe how the injury occurred: Nature and conditions of employment from 2002 to date, including but not limited to repetitive bending, twisting and lifting and other duties of a farm hand, particularly catching birds and storing them in crates.”
The subsequent history of the proceedings may only be described as unfortunate. It is proposed to attempt a summary of events occurring in the course of the proceedings to enable a better understanding of the circumstances which have combined to bring about this appeal.
The dispute was referred to Ms Margaret Dalley, Arbitrator, who appointed a telephone conference which took place on 16 July 2010. The solicitors for each party participated in that conference. It appears that many of the difficulties which subsequently arose had their origins in the circumstances of this teleconference.
Mr Macken, solicitor, represented the appellant at the teleconference. The Commission’s file contains the Arbitrator’s notations concerning conduct and outcome of the teleconference. Mr Macken did not have his client present at that time nor did he have relevant documents in his possession. Mr Macken objected to a recording of the teleconference. Mr Macken informed the Arbitrator that he was present “on the snowfields” and the Arbitrator noted that there was distracting background noise during the teleconference.
It was Mr Macken’s application that the matter be set down for “hearing”. Mr Rachmaninoff’s solicitor requested that the matter be remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment. That request was founded upon the absence of any denial of injury made by the appellant in its s 74 notice.
The Arbitrator, in a Statement of Reasons (Reasons), which followed the making of ex tempore orders, which are noted below at [31], has recorded the appellant’s request that the matter be set down for conciliation/arbitration. That request was founded upon its assertion that there was “no injury as described”. It was noted by the Arbitrator at [7] of Reasons that “no issue which could be determined at an arbitration was identified in the s 74 notice”. It was further noted that the notice denied liability on the basis that Mr Rachmaninoff had no “whole person impairment as a result of the injury on 20/6/08”. The Arbitrator further noted that such matter is to be assessed by an AMS and, further, that the Commission has no jurisdiction to determine that question.
As earlier noted, the teleconference was not recorded and therefore there is no transcript of that proceeding available. The Arbitrator in her Reasons recorded that the appellant made application pursuant to s 289A(4) of the 1998 Act for leave to amend the s 74 notice. Also recorded is the appellant’s concession that the s 74 notice did not deny injury, and that it was argued by the appellant that it was in the interests of justice that leave be granted to introduce the dispute as to “injury”.
The Arbitrator’s Reasons contain an analysis of the evidence and the state of the documents before the Commission as well as submissions put on behalf of the parties. The Arbitrator reached the conclusion that leave to amend the s 74 notice should not be granted. It is noted at [24] of Reasons that, following her ruling, Mr Macken stated that he had not made an application seeking to amend the s 74 notice. He then asserted that the only application made was that the matter be set down for conciliation/arbitration.
In the course of the teleconference Mr Rachmaninoff had sought leave to amend the particulars of injury. That application was granted by the Arbitrator. The relevant amendments are recorded at [3] of the Certificate of Determination dated 16 July 2010.
The Arbitrator ordered that the claim be remitted to the Registrar for referral to an AMS for assessment of whole person impairment. It seems that the parties had been granted leave to issue notices for production addressed to third parties. Leave was also granted to both parties to file and serve relevant material from documents produced for referral to the AMS. That material was to be filed prior to 10 September 2010.
An examination of Mr Rachmaninoff by an AMS, Dr Peter Giblin, occurred on 16 August 2010. It may be seen that the examination took place before the expiration of the period during which the parties were permitted to file any supplementary material that may have come to hand following production of documents by third parties. In the circumstances a Medical Assessment Certificate (MAC) was not issued until Dr Giblin had considered additional material. That material was filed on 3 September 2010 by the appellant under cover of an Application to Admit Late Documents.
On 24 August 2010 the appellant’s solicitors wrote to the Commission stating that, following receipt of information received from the WorkCover Authority, they had received instructions to “seek leave to issue Directions for the production of documents to QBE Workers Compensation, GIO Workers Compensation and Gallagher Bassett Services”. That correspondence noted that “the information from the WorkCover Authority regarding those further claims was not available at the time of the telephone conference when leave was sought and obtained for the issuing [sic] of other Directions”.
No order was made by the Arbitrator granting leave to issue those Directions for Production. However it is clear that, by reason of an error made by the Registry, those Directions were in fact issued. Once that error became apparent the Registrar, on 29 September 2010, advised the parties of the circumstances and the statement was made that those Directions were a “nullity”. It seems that the parties to whom the Directions were addressed were informed of the “invalidity” of the Directions and that no documents were produced in response to service of those Directions.
On 5 October 2010 Dr Giblin informed the Registrar that he had examined the additional material and did not wish to change the MAC which he had earlier prepared. That MAC, dated 16 August 2010, was issued on 6 October 2010.
The MAC assessed Mr Rachmaninoff’s whole person impairment in respect of lumbar spine to be six per cent. The date of injury noted in the MAC was, as stated in the referral to Dr Giblin, “nature and conditions of employment from 2002 to 2009”.
On 20 October 2010 the appellant filed an Application to Appeal the Decision of the AMS. The delegate of the Registrar, as stated in her decision made 20 January 2011, was not satisfied that at least one of the grounds of appeal as specified in s 327(3) of the 1998 Act had been made out. As a result, that appeal did not proceed.
A copy of the delegate’s decision was forwarded to the appellant’s solicitors. That copy did not include copies of correspondence said, at [6] of the decision, to be attached.
The appellant’s solicitors wrote to the Commission on 25 January 2011. That correspondence stated, following a request for copies of the correspondence referred to in the decision, as follows:
“As there remain a number of issues outstanding in respect of this matter, we await the appointment of a teleconference at your earliest convenience.”
The Commission forwarded copies of the correspondence to the appellant’s solicitors under cover of correspondence dated 28 January 2011.
On 2 February 2011 the appellant’s solicitors replied. Receipt of the earlier correspondence was acknowledged and the following was stated:
“We await the appointment of a teleconference in this matter at your earliest convenience”.
That correspondence was received by the Commission on 7 February 2011.
On 9 February 2011 a Certificate of Determination was issued by the Registrar. The terms of that Certificate appear below at [33].
On 23 February 2011 an email communication was sent by the Commission to the appellant’s solicitors which stated:
“Please see attached corro [sic] from your office dated 2/2/11 and advise if you still need a teleconference. The Commission has closed its file in this matter”.
The appellant’s solicitors on that date replied by email which stated:
“I remain of the view that a teleconference is required but will file an appeal shortly anyway”.
The appellant filed an application with the Registry concerning this appeal on 9 March 2011. The decisions which are the subject of the appeal are described at [7] of submissions as follows:
“The appellant appeals against the entirety of the decision reflected in the Certificate of Determination issued by the Registrar on 9 February 2011 and the matters giving rise to it”.

THE DECISIONS CHALLENGED ON APPEAL

It is clear, having regard to the submissions advanced in support of the appeal, that the appellant challenges both the orders made by the Arbitrator following the teleconference held on 16 July 2010 and those orders made by the Registrar on 9 February 2011.
The Certificate of Determination concerning orders made by Arbitrator Dalley on 16 July 2010 records the following orders:
“The determination of the Commission in this matter is as follows:
1.That the matter is not to be set down for a conciliation/ arbitration hearing as the section 74 of the Workplace Injury Management and Workers Compensation Act 1998 Notice disclosed no issues to be determined by the Arbitrator.
2.That leave to amend the section 74 [sic] of the 1989 [sic, 1998] Act Notice is denied.

3.That the Application is amended so as to change the date of the injury from the Nature and Conditions of employment from 2002 to 14/11/08 to the Nature and Conditions of employment from 2002 to December 2009.

4.That the Applicant’s claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 is remitted to the Registrar to be referred to an Approved Medical Specialist for assessment of the whole person impairment, to his lumbar spine, arising from the injury due to the nature and conditions of his employment with the Respondent from 2002 to December 2009. The documents to be referred to the Approved Medical Specialist are the Application and all attached documents, the Reply and all attached documents and relevant documents from the material produced by the third Parties under direction.

5.Leave is granted to both Parties to file and serve by the, [sic] 10/09/10, relevant materials from the produced documents to be referred to the Approved Medical Specialist”.

A Statement of Reasons dated 17 July 2010 was made by the Arbitrator following the making of the ex tempore orders.
The Certificate of Determination dated 9 February 2011 records the orders made and brief reasons as follows:
“The Commission orders:
1. That the Respondent pay the Applicant, as lump sum compensation under section 66, $8662.50 in respect of 6% permanent impairment resulting from injury on Nature and Conditions of employment from 2002 to 2009 [See s66 (2A) of the 1987 Act].
2. That the Respondent pay the Applicant’s costs as agreed or assessed.

Brief statement of reasons
3. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.”

THE ISSUES IN DISPUTE

The appellant at [8] of submissions enumerates five “grounds” of appeal. Each ground is subsequently supported by submissions. The grounds as drafted and the accompanying submissions are, it must be stated, unhelpful.
The first ground (Ground A) suggests “failure to give reasons, or in the alternative, any adequate reasons”. That ground, as discussed below, appears to be directed to the orders, and reasons expressed for their making, as found in the Certificates of Determination dated 16 July 2010 and 9 February 2011.
The second ground (Ground B) suggests error on the part of the Arbitrator in failing to grant leave to the appellant to have nominated Directions for Production issued.
The third ground (Ground C) suggests error on the part of the Arbitrator in determining that the appellant was liable to pay compensation benefits in respect of an injury “over a period of time between 2002 and 2009 said to be by reference [sic] to ‘nature and conditions of employment’”.
The fourth ground (Ground D) suggests error of the Arbitrator in “failing to determine a date of injury”.
The fifth ground (Ground E) suggests a failure of the Arbitrator to afford the appellant procedural fairness.

HEARING

The appellant submitted that the appeal “involves complex issues and involves a number of grounds of appeal such as can only be adequately dealt with by way of an oral hearing”. Mr Rachmaninoff submitted that it was appropriate that the appeal be decided “on the papers”.
The absence of a transcript of the proceedings at the teleconference and the confused state of the matter generally prevented, in my view, a determination of the appeal solely on the papers. A hearing was appointed for 20 June 2011. Notice of that hearing was forwarded together with a direction which is addressed at [77] below. On hearing the appellant was represented by Mr Macken, solicitor, and Mr Rachmaninoff was represented by Mr Del Monte of counsel. Those proceedings were recorded and a transcript (T) has been produced.

THRESHOLD MATTERS

Mr Rachmaninoff in his Notice of Opposition to the Appeal submits that the appeal is brought from the decision of the Arbitrator made at the teleconference held on 16 July 2010. The appeal, filed in March 2011 is, it is argued, out of time having regard to the provisions of s 352(4) of the 1998 Act. That subsection provides that an appeal can only be made within 28 days after the making of the decision appealed against.
Following discussion at the hearing of the appeal, counsel for Mr Rachmaninoff informed the Commission that he had been instructed “not to press the issue”, that is, the s 352(4) point was abandoned.
There was no dispute between the parties that the threshold requirements as to quantum as found in the provisions of s 352(3) had been met.

EVIDENCE

The evidence before Arbitrator Dalley was described by her at [5] of her Reasons. That material included the application and the reply and all documents attached to each.
Mr Rachmaninoff relied upon a copy of his letter of claim referred to at [3] above and the enclosed copy of Dr Ho’s report dated 8 December 2009. Dr Ho’s report followed an examination which took place on 7 December 2009. Dr Ho recorded the nature of Mr Rachmaninoff’s duties and that he had “started to notice pain sometime around March 2008”.
Dr Ho noted that Mr Rachmaninoff had initially consulted two “company” doctors following which he consulted his family doctor, Dr Ng. That practitioner arranged a number of radiological investigations and a steroid injection under CAT scan guidance.
Dr Ho summarised the history concerning injury as follows:
“The patient claims to have back problems due to repeated bending, walking on uneven surfaces which then results to [sic] low back pain”.
In response to questions put by Mr Rachmaninoff’s solicitors, Dr Ho reported:
“In my opinion, it is more probable than not, that the condition or injuries were caused by the nature and condition [sic] of work”.
Dr Ho had earlier expressed his diagnosis as “the patient has started to develop disc degeneration in the L5/S1 level presented as pain, loss of full use of the spine”.
An assessment of whole person impairment was made by Dr Ho, that being five per cent “primarily as a result of the nature and condition [sic] of work and that particular work injury”.

A copy of correspondence dated 12 May 2010 addressed to Mr Rachmaninoff’s solicitors from the appellant was attached to the application. A list of documents relevant to the claim appears in that correspondence and the following statement is made:
“Liability in respect of your client’s claim for 5% whole person impairment in the amount of $6,875.00 has been denied”.
That correspondence, following reference to s 74 of the 1998 Act, included the following:
“Liability in this matter has been denied as your client has not sustained whole person impairment as a result of the injury on 20/6/2008.
The issues relevant to this dispute include whether your client has sustained whole person impairment as a result of the injury on 20/6/2008.”
A copy of a report by Dr Paul Hitchen, orthopaedic surgeon, dated 31 March 2010 addressed to the appellant which had been attached to the appellant’s correspondence was tendered by Mr Rachmaninoff. That report followed an examination which took place on 30 March 2010. The history as recorded by that practitioner was as follows:
“Mr Rachmaninoff was a little vague on detail but believes around 20 June 2008 he was bending forward on a few occasions to catch some chickens. When he picked up one group of three chickens by their legs, he experienced pain in the lower back.”
Dr Hitchen also recorded that the work involved “bending forwards several hundred times a day in order to pick up chickens. He would catch three chickens in the left hand and three in the right such that when he was lifting he would have a total weight of around 10 kg in his hands”. Dr Hitchen also noted that “there was an intensification of pain around May 2009”.
Dr Hitchen notes that Mr Rachmaninoff had consulted Dr Houston, “the Ingham general practitioner”, in 2009. It is also noted that he was then “placed onto light duties”.
The view is expressed by Dr Hitchen that Mr Rachmaninoff’s lumbosacral disc “is abnormal and it is possible that he sustained a lumbosacral disc herniation in June 2008 as described following a forward bending event when lifting weight”. Dr Hitchen considered that the “effects of such injury have not completely resolved” and that “employment was a substantial contributing factor to a poor manual handling technique lifting a number of birds in a forward bent position. It is likely that such an activity – catching struggling birds caused a herniation of the lumbosacral disc”.
Dr Hitchen made reference to the relevant AMA guidelines and stated that, having regard to symptoms and complaints, there “was not sufficient to award WPI”. He concluded by stating “whilst I accept he may well have pain originating from a pathological lumbosacral disc, at this point in his life he does not fulfil the AMA 5^th Edition Guidelines criteria to award WPI”.
The Reply filed on behalf of the appellant at Part 3 included a confusing entry which appears to both confirm and deny that the matters in dispute were confirmed “as per dispute notice(s) attached to the Application”.
A copy of the report of Dr Hitchen dated 31 March 2010 noted above was attached to the Reply.
A report, which is undated, from WorkRecover signed by Dr Tom Lieng, injury management consultant, addressed to the appellant was attached to the reply. That report followed a consultation which took place on 7 August 2009.
Dr Lieng’s report records a “claim number” and a “date of injury” as being 19 May 2009. It is recorded that Dr Lieng had access to a number of documents including 10 WorkCover medical certificates, a return to work plan prepared by the appellant dated 7 August 2009, a number of radiological reports, a physiotherapy report and a referral letter to Dr Manohar.
The history recorded an “initial date of injury” being 24 June 2008. Dr Lieng notes that Mr Rachmaninoff “reaggravated his lumbar spine on 19 May 2009 and 2 July 2009”. Also noted was that Mr Rachmaninoff was at the time of examination “certified fit for restricted duties at 20 hours/week with a lifting restriction of 4 kg, restriction in walking and standing at 30 minutes and to avoid repetitive back movements”.
Dr Lieng assessed Mr Rachmaninoff as having “unspecified musculoskeletal lower back pain with a mild L5/S1 disc protrusion”. On examination a number of “inconsistencies” were noted. It is also recorded that there was “strong resistance” from Mr Rachmaninoff concerning return to work on increased hours.
A WorkCover certificate issued by Dr John Houston dated 25 July 2008 records injury as being “lower back strain”, the date of injury noted as 20 June 2008.
I have earlier noted, at [16] above, that the appellant had filed an Application to Admit Late Documents on 3 September 2010. Those documents are stated to include records produced by Dr Manohar, Idameneo (No 123) Pty Ltd, being the corporate identity of Mr Rachmaninoff’s general practitioner, and Dr Ng.
The documents referred to immediately above were, as earlier noted, made available to the AMS, Dr Giblin, before the issue of his MAC. Leave to refer those documents to Dr Giblin had been granted by the Arbitrator at the teleconference. In the circumstances, those documents should properly be treated as being in evidence before the Commission. The contents of those documents are, where relevant, addressed below.

THE NATURE OF THE APPEAL

The appellant seeks revocation of the orders made by the Registrar on 9 February 2011 noted at [33] above. The appeal also concerns challenge to orders made by Arbitrator Dalley on 17 July 2010. The Registrar’s orders were final orders concerning the appellant’s liability to pay compensation benefits as claimed by Mr Rachmaninoff. Each of the orders made by Arbitrator Dalley may be described as being in the nature of interlocutory orders. Such orders may be challenged on this appeal (Bunning v Cross (1978) 141 CLR 54 per Jacobs J at 82 and Crowley v Glissan (No 1) (1905) 2 CLR 402). As earlier noted, at [43] above, counsel appearing for Mr Rachmaninoff did not seek to press an earlier argument suggesting that the time requirements found in the provisions of s 352(4) of the 1998 Act raised any bar to the present appeal in so far as it related to the orders made in July 2010.
A further challenge is made to the Arbitrator’s refusal of the appellant’s request seeking the issue of certain Directions for Production which is earlier noted at [17] above.
Having regard to the date of the Arbitrator’s orders and that of her apparent refusal to make directions requiring production of documents, the appeal with respect to those decisions is governed by the provisions of s 352 of the 1998 Act in its form before the amendments effected by the Workers Compensation Legislation Amendment Act 2010 (the amending Act). Such an appeal is by way of a merits review. Leave is granted to the appellant to bring that appeal.
The appeal concerning the orders made on 9 February 2011 is governed by the provisions of s 352 of the 1998 Act as amended by the amending Act: Sch 6 Pt 19G cl 8 to the 1987 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

SUBMISSIONS, DISCUSSION AND FINDINGS

Ground A

The first ground complains of “failure to give reasons or, in the alternative, any adequate reasons”. That broad complaint is supported by the following terse submission:
“The Appellant notes that no reasons at all are giving [sic] accompanying the Certificate of Determination. Further no reasons have been given in respect of the apparent refusal of the Respondent’s application for leave in accordance with Section 289A(4) of the WIM made at the Telephone Conference and no reason given in respect of the refusal for leave to issue directions to the Workers’ Compensation Insurers.
Further Appellant [sic] submits that the reasons given in respect of the request to have the matter listed for Arbitration and various related matters are inadequate and in any event do not relate to the application which was made.”
It must be assumed that the Certificate of Determination referred to in the first sentence of that submission is a reference to the certificate dated 9 February 2011. It is not correct to assert, as does the appellant, that no reasons were given with respect to that decision. It is made clear on the face of the document that the orders contained in the Certificate were made having regard to the MAC of Dr Giblin. The matter came before the Registrar as one in which the only dispute between the parties concerned the question of whole person impairment. Dr Giblin’s MAC had been obtained in accordance with the provisions of s 65(3) of the 1987 Act which provides:
“If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
The assessment certified by Dr Giblin in his MAC is conclusively presumed to be correct as to the degree of permanent impairment of the worker as a result of an injury: s 326(1)(a) of the 1998 Act. In the circumstances prevailing at the time of the issue of the Registrar’s Certificate of Determination there was no notification concerning dispute as to any matter other than the degree of permanent impairment suffered by Mr Rachmaninoff. I consider that the reason given by the Arbitrator for the issue of the Certificate was, contrary to the appellant’s submission, plainly stated. The Registrar has revealed the basis upon which the order concerning lump sum entitlement was made, and I conclude that such reasons were sufficient to meet the requirements of the general law and s 294 of the 1998 Act concerning the requirement to provide Reasons.
It appears that this “ground” also concerns a complaint of error on the part of the Arbitrator for failing to give reasons “in respect of the apparent refusal of the respondent’s application for leave in accordance with Section 289A(4) of the WIM made at the Telephone Conference…”. There exists a serious conflict between this submission and matters put on behalf of the appellant by Mr Macken at the hearing of the appeal. A proper understanding of that conflict requires a summary of relevant circumstances.
In her Statement of Reasons, made on 17 July 2010, the Arbitrator summarised the “issues for determination” as follows:
“a) Whether the matter should be set down for an arbitration
b) Whether leave should be granted for an amendment to the section 74 notice to include a dispute as to whether there was an injury as described in the Application. The Respondent denied that he had applied for this leave when the arbitrator was making her determination. However most of the teleconference had been taken up with this application and the denial took place after the arbitrator had summarised the arguments of both parties on this question.
c) Whether the date of the injury on the Application should be amended.”
It may be seen that the Arbitrator has recorded the assertion made by the appellant’s solicitor that no application had been made by him on behalf of his client seeking leave to amend the s 74 notice which is in evidence and referred to at [4] above. Given the apparent conflict between the Arbitrator’s understanding concerning the nature of the arguments advanced on behalf of the appellant and the assertions of Mr Macken following the making of orders, the parties were invited, following a direction made prior to the hearing of the appeal, to inform the Commission as to the correctness or otherwise of the Arbitrator’s summary of the issues noted immediately above. The transcript reveals the following exchange between myself and Mr Macken when the subject was raised:
“Deputy President: What’s your client’s position?
Mr Macken: Our position is that the Arbitrator did not correctly outline what the issues were.
Deputy President: Right.
Mr Macken: It seems - and it is a little bit confused - but it seems that the Arbitrator understood and we say, incorrectly, that an application was being made to amend the Section 74 Notice.
Deputy President: That was my main concern. Was there such an application?
Mr Macken: No such application was made, Deputy President. And I can indicate the way it was framed was relatively simple, that the Respondent’s position was this. Firstly, the claim as particularised in the Application to Resolve a Dispute was a nature and conditions claim over a certain period of time.”
Having regard to those matters stated by the appellant’s representative at the hearing it must be assumed, for present purposes, that no application was made before the Arbitrator seeking leave to amend the s 74 notice. Having carefully considered the submissions made on behalf of the appellant at the hearing of the appeal as recorded in the transcript I conclude that it was the appellant’s application before the Arbitrator that the matter be set down for hearing. That request was founded upon the proposition that Mr Rachmaninoff had made no claim with respect to injury as it was particularised in his Application to Resolve a Dispute, that is, with respect to an injury as a result of the nature and conditions of employment over a period of time. The appellant submitted at the hearing of the appeal that the consequence of there being a lack of particularity concerning injury was “that where a claim hasn’t been made, to put it generically [sic], a section 74 notice can’t issue” (T.3). That submission, regrettably, tends to further confuse the question as to precisely what application was made on behalf of the appellant before the Arbitrator. It is nevertheless clear that, given the conflict between the submission noted at [75] above and those matters stated at the hearing of the appeal which I have attempted to summarise, the argument may, on this appeal, be disregarded.
Before attempting to deal with the third aspect of this “ground”, it becomes necessary to consider the legislative scheme relevant to the resolution of a dispute such as the present. The provisions of s 74 of the 1998 Act require that an insurer (which includes a self insurer: s 70) is to give notice concerning a dispute as to liability in respect of a claim. The content of such notice is prescribed by the provisions of s 74(2). The evidence establishes that a s 74 notice issued which raised but one reason for the dispute as to liability, that being that Mr Rachmaninoff “has not sustained whole person impairment as a result of the injury on 20/6/08”.
The 1998 Act places certain restrictions with respect to the circumstances in which a dispute may be referred to the Commission. Section 289 relevantly provides:
“(3) A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a)     wholly disputes liability for the claim, or
(b)  made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c)     fails to determine the claim as and when required by this Act.
Note. The determination of a claim requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim.
…
(5)    The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission.”
In the present matter the appellant has wholly disputed liability for the claim and the matter has properly been referred to the Commission. However s 289A makes provision with respect to further restrictions as to when a dispute can be referred to the Commission. That section provides:
“289A Further restrictions as to when a dispute can be referred to Commission
(1)    A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)    A matter is taken to have been previously notified as disputed if:
(a)  it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b)  it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3)    The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4)    Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
The course of the present matter, in which the only dispute concerned existence of whole person impairment, has been determined having regard to the provisions of s 65(3) of the 1987 Act, the terms of which are noted at [73] above.
The resolution of a dispute such as the present concerning alleged permanent impairment is further regulated by the provisions of s 293 of the 1998 Act and the former Practice Direction No 11 dated 1 November 2006 (now replaced by Practice Direction No 11 dated 1 February 2011). Of significance in the circumstances is s 293(3) which qualifies the Registrar’s powers to refer a medical dispute for assessment under Part 7 of that Act. It provides:
“(3)   The Registrar may not refer for assessment:
(a)     a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or
(b)     a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”
The former Practice Direction referred to above stated, in part:
“Any dispute in respect of liability in relation to a claim for permanent impairment must be resolved or determined by the Commission constituted by an Arbitrator, prior to the Registrar referring the dispute in relation to degree of permanent impairment for medical assessment.”
The Commission, at the teleconference on 16 July 2010, was dealing with a matter in which a denial of liability had been made and notified. Such denial permitted referral of the matter to the Commission: s 289(3)(a).
There is no evidence that any matter other than that stated in the s 74 notice has been notified as being disputed. In particular there is no evidence that there had been notice disputing the making of a claim in respect of the matters particularised in the correspondence referred to at [3] above. Nor is there evidence that notice of a dispute had been given by the appellant as to history concerning the occurrence of injury as found in the report of Dr Ho noted at [47] and [50] above.
Having regard to the provisions of s 289A(1), subject to any application that may have been made by the appellant pursuant to s 289A(4), any matter said to be disputed, but not notified, may not be referred to the Commission.

As earlier discussed at [78] above, the appellant has not at any time made application seeking an order pursuant to s 289A(4) to permit any previously unnotified matter to be heard or otherwise dealt with by the Commission. Any such application may have been made on behalf of the appellant at any time since service upon it of the Application to Resolve a Dispute.
Having regard to that which was put on behalf of the appellant at the hearing of the appeal (as recorded at T5) any such application would, as asserted during submissions, be made “at an arbitration” hearing. The only application made before the Arbitrator was that such arbitration hearing be appointed.
The appellant’s third complaint under this “ground” is that the reasons given by the Arbitrator for the refusal to appoint an arbitration hearing were inadequate. The Arbitrator’s reasons for refusing that application appear at [7] of Reasons:
“No issue which could be determined at an arbitration was identified in the section 74 notice which confined itself to stating, ‘liability in this matter has been denied as your client has not sustained whole person impairment as a result of the injury on the 20/06/08’. This is a matter for assessment by an Approved Medical Specialist under section 326 of the 1998 Act and is outside the jurisdiction of the Commission. Therefore there is no issue to be set down for arbitration.”
The reasons given by the Arbitrator do not make mention of the provisions of s 289A of the 1998 Act. However it is clear that her refusal to refer the matter for arbitration was founded upon the absence of any matter in dispute in respect of which notice had been given. It is also clear that, whilst not expressly stated, her remitter of the matter to the Registrar for referral to an AMS was made in compliance with the provisions of s 65(3) of the 1987 Act.
Whilst the reasoning of the Arbitrator may be open to some criticism given her failure to make reference to those provisions of the Acts which were relevant to her decision, her statement of the relevant facts permits a clear understanding of the basis upon which the application was refused and I reject, on this review, the appellant’s submission that error by the Arbitrator in any relevant sense had been made.

Ground B

Ground B suggests error of the Arbitrator in refusing to “give leave” to the appellant to file and serve directions for production of documents (the directions) referred to at [17] and [18] above.
Whilst a submission is put that the Arbitrator has failed to give reasons for refusal to “grant leave” to issue the directions, it is clear from the Commission’s record that no order, nor any refusal to order, was made following the appellant’s application.
The Commission’s power to give such a direction is to be found in s 357 of the 1998 Act and the exercise of that power was regulated at the time by the provisions of former Pt 13 r 13.4 of the Workers Compensation Commission Rules 2006. Such a direction may, at the Commission’s discretion, be given: s 357(1). The Arbitrator’s failure to exercise that discretion is an error of law. On this review I consider it appropriate to address the merits of the appellant’s request for the issue of the directions.
It must be noted that the information upon which the application was based had been requested of the WorkCover Authority (the Authority) on a date approximately one month before the teleconference conducted on 16 July 2010. There is no evidence, nor is there any submission, that suggests the appellant had informed the Arbitrator at the teleconference that it had not received a reply to a request for information from the Authority.
It is asserted by the appellant that the information provided by the Authority related to the existence of “prior workers compensation claims”. The fact that Mr Rachmaninoff, a man engaged in manual labour, had made earlier compensation claims is not surprising. There is no evidence that such claims are, in fact, in any way relevant to the claim before the Commission.
It is apparent that the appellant has merely speculated as to the possible relevance to the proceedings of documents held by the third parties. In the case of the insurer QBE, it is clear from the general practice notes that, in 2005, it was a workers compensation insurer against whom Mr Rachmaninoff had claimed benefits in respect of a head injury received on 6 September 2005.
There is no notation in the histories recorded by medical practitioners whose reports or records are before the Commission of any relevant antecedent back injury having been suffered by Mr Rachmaninoff.
The appellant’s submissions make non-specific reference to a suggested failure by Mr Rachmaninoff to provide “particulars” sought by it. There is no evidence before the Commission concerning such matters.
The request for the making of directions post-dated the teleconference. The question arises as to whether the appellant’s application was a special case and whether making of an order as sought was required “for the avoidance of injustice”: Pt 13 r 13.4(1) of former Workers Compensation Commission Rules 2006.
The appellant has not addressed the question as to whether the circumstances constitute a special case within the meaning of the former Pt 13 r 13.4(1). The appellant’s failure to raise the matter before the Arbitrator at the teleconference suggests that the belated application was prompted only by receipt by the appellant’s solicitors of the correspondence of the Authority. This is not a case where there is positive evidence of there being material available relevant to any issue in dispute between the parties.
As noted earlier, the only issue raised in the proceedings was the existence or otherwise of whole person impairment.
Having regard to all the circumstances I conclude that there is no evidence that circumstances at the time of the request constituted a “special case”. Nor do I consider that the making of orders was, at the time of the Arbitrator’s error, or since, required for the avoidance of injustice within the meaning of the relevant rule. My reasons for so concluding are:
(a)     there is no evidence of the relevance to this claim of the materials sought to be produced;
(b)     the appellant speculates as to possible relevance of any material held by those third parties;
(c)     there is some evidence which strongly suggests that at least one of the third parties (QBE) holds records relating to a completely irrelevant claim, and
(d)     there is no other evidence suggesting that there may have been a relevant antecedent claim in respect of which other insurers may hold relevant material.
In reaching my conclusion I have taken into account the appellant’s reliance upon the decision of the Court of Appeal in Toll Pty Ltd v Morrissey (2008) 6 DDCR 561; NSWCA 197 (Morrissey). The Arbitrator’s error was failure to exercise jurisdiction, such failure constituted by her failure to exercise her discretion to rule upon the appellant’s application concerning the notices. Any relief granted to the appellant upon this ground would be futile given my ruling as to the merits of the appellant’s application (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145). That being so, the error of the Arbitrator could not possibly have affected the result (cf Morrissey per Beazley JA at [10]).

Ground C

Ground C as expressed lacks clarity and precision. I have attempted to summarise the substance of that ground at [37] above. However I consider it prudent to record the precise terms of that “ground”:
“Error in determining a requirement to pay compensation by reasons to [sic] injury over a period of time between 2002 and 2009 said to be by reference to ‘nature and conditions of employment’”.
Submissions in support of this ground correctly state that “the Commission has repeatedly criticised the use of the term ‘nature and conditions’”. Reference is made to the decision of Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70 in which matter Roche DP states (at [65]) that “the general reference by the parties and the Arbitrator to a ‘nature and conditions’ injury was misleading and unhelpful”. That decision makes it clear that the term: “nature and conditions” is “not a term used in the NSW Workers Compensation Legislation”. Reference was made in the course of discussion in that matter to the decision of Neilson CCJ in Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656 where it was stated at 667:
“The phrase ‘nature and conditions of employment’ is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as ‘quaint’. My colleague Burke J has frequently referred to it as a ‘meaningless concept’. It is used in this place [the Compensation Court of NSW] as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, e.g. repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity. Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within section 16”.
I agree with the views as expressed both by Neilson CCJ and Roche DP. The profession has, properly in my view, been repeatedly admonished for the use of the expression as a means to abbreviate the particulars of injury alleged. Having said that, it is a fact (as acknowledged by Neilson CCJ and by the Court of Appeal on occasions (see Switzerland Insurance Workers Compensation (NSW) Ltd v Burley [1996] NSWCA 512 (5 December 1996) per Mahoney JA, and Wyong Shire Council v Paterson (2005) 5 DDCR 13; NSWCA 74 per Giles JA at [38]) that the expression has been commonly used in this area of the law. As was raised at the hearing with the appellant’s solicitor (at T6), practitioners experienced in this jurisdiction understand what is intended when that term is used. Such was made clear during the observations made by Neilson CCJ above noted.
The allegation of injury, as particularised in Mr Rachmaninoff’s application, has not been disputed. I reject the appellant’s argument advanced at the hearing (at T3) that the consequence of there being a lack of particularity in the manner of description of injury has the consequence that, as stated in argument, “a section 74 Notice can’t issue”.
The appellant, at the date of service of its s 74 notice, had the correspondence giving notice of claim and the report of Dr Ho. It also held, I infer from the content of Dr Lieng’s evidence, a large volume of documents relevant to the alleged fact and the manner of Mr Rachmaninoff’s injury. The appellant also had the report of Dr Hitchen in its possession. I infer, from the evidence of there being a “claim number”, that a claim had been made by Mr Rachmaninoff which was distinct from the claim with which the Commission is presently dealing.
I have earlier attempted to summarise the evidentiary material of which the documentation that I have noted immediately above forms but part. I conclude that any fair assessment of the claim as made would have led to a clear realisation that the careless use of the term “nature and conditions” denoted injury occasioned by the physical demands of work carried out over a period of time. Having regard to the evidence of Dr Hitchen, Dr Ho and, in particular, Dr Lieng it is plain that the allegation of injury concerns, adopting the words of Neilson CCJ, “a series of traumata or microtraumata”.
The appellant complains that “no date of injury is specified”. It also complains that the Arbitrator granted Mr Rachmaninoff’s application to amend the particulars of injury to extend the period of “nature and conditions” from 2008 to 2009. It is put that the only specification as to date was that “[Mr Rachmaninoff’s] job involved bending and twisting and he noticed pain on or around March 2008”.
The appellant’s submission mis-states the terms of Mr Rachmaninoff’s claim in one important respect. The letter of claim stated “(Mr Rachmaninoff) started to notice pain in his lumbar spine on or around March 2008” (emphasis added).
The hearing of this case is not the first occasion on which the Commission has had to deal with inexact allegations of injury and confusion as to the parameters of the dispute. Such confusion may be resolved by reference to the evidence and, as stated by the Court of Appeal in circumstances similar to the present, “the Commission has ample powers to resolve that confusion” (Fletcher International Exports Pty Ltd v Barrow (2007) 5 DDCR 247; NSWCA 244 per Mason P at [39]).
The amendment sought by Mr Rachmaninoff which had been allowed by the Arbitrator was required to permit correspondence between the poorly drafted allegation of injury and the evidence upon which he relied. The appellant was fully aware of those allegations of work related injury extending into 2009, and no prejudice to it has been made out. I conclude that no error was committed by the Arbitrator in granting that application to amend.

Ground D

The appellant’s complaints concerning the failure to specify a date in the application is, it seems, in some way related to the ground D which suggests error on the part of the Arbitrator in failing to determine a date of injury.
Order 4 made by the Arbitrator noted at [31] above makes reference to whole person impairment “arising from the injury due to the nature and conditions of [Mr Rachmaninoff’s] employment with [the appellant] from 2002 to December 2009”. Dr Giblin’s MAC contains reference to those matters at [3] of that Certificate where “date of injury” is particularised.
The Registrar has also recorded, at [1] of the Certificate of Determination dated 9 February 2011 relevant injury as being “nature and conditions of employment from 2002 to 2009”.
I have earlier noted (at [111]) that the evidence is such that it is plain that the injury alleged concerns “a series of traumata or micro traumata”. In the course of submissions on appeal it was put on behalf of the appellant that failure to make a finding of injury otherwise than as made concerning a nature and conditions related injury has consequences including difficulty in determining monetary entitlement. The argument was stated as follows:
“…if it is a micro traumata case and not a disease case assuming, you know, such a thing can realistically exist in this context, then part of it would be applicable to the lower level of impairment. Part of it will be applicable to the impairment that then attracts an additional five per cent of the lumbar spine and part of it would be applicable to the higher level of impairment that would be, frankly, quite a task in working out what impairment level was payable. And that’s the difficulty with not having arbitrated the issue of what is the date of injury and the question of leave, if it arises.”
The argument advanced, as I understand it, has been put without any regard to the provisions of ss 322(2) and 322(3) of the 1998 Act which provide:
“(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.”
The provisions of s 322 regulate recovery of lump sums which result from work injury and were considered by the Commission in Department of Juvenile Justice vEdmed [2008] NSWWCCPD 6; 7 DDCR 288 (Edmed) which appeal concerned a claim for lump sum entitlement pursuant to s 67 of the 1987 Act founded upon the aggregation of suggested relevant impairments resulting from multiple injuries. In that matter Roche DP addressed the definition of “injury” as appears in s 4 of the 1987 Act and noted as follows (at [26] and [27]):
“This definition is unhelpful in determining the issue before me. In Lyons, Judge Neilson held that ‘injury’ refers to ‘both the [injurious] event and the pathology arising from it’. I accept that definition as being appropriate for many purposes under the 1987 Act and the 1998 Act. That the term ‘injury’ can have two different meanings is acknowledged in section 322(3) of the 1998 Act where reference is made to ‘Impairments that result from more than one injury arising out of the same incident…’ (emphasis added). This reference to ‘injury’ can only mean the ‘pathology’ that has resulted from the relevant work ‘incident’ or injurious event. For example, if a worker falls and suffers a broken leg and separate and distinct nerve damage in the arm, he or she has suffered more than one ‘injury’ (an injured leg and an injured arm) within the terms of section 322(3) resulting from the one ‘incident’. In other words, he or she has suffered more than one pathology (‘injury’) as a result of the one incident or injurious event. Those ‘injuries’ are to be assessed together. This interpretation is consistent with section 65(2) of the 1987 Act and is uncontroversial.
The difficulty arises when a worker suffers one pathology (‘injury’) as a result of several independent ‘incidents’ or injurious events. This situation is partly addressed in section 322(2), which provides that ‘Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker’ (emphasis added). The reference to ‘the same injury’ in section 322(2) cannot be a reference to ‘the same incident’ because that situation is dealt with in section 322(3). The expression ‘the same injury’ is not defined but it follows that if ‘injury’ in section 322(3) means ‘pathology’ (as it must), then, for the section to be logically consistent, it must mean the same in section 322(2). If ‘injury’ in section 322(2) means ‘pathology’ then, for section 322(2) to be consistent with section 322(3), impairments resulting from the ‘same injury’ (the same pathology) are to be ‘assessed together’ regardless of whether they arise from the same ‘incident’ or separate incidents.”
In the present matter the allegation of injury had not been the subject of dispute. The whole person impairment determined by the AMS was the result of work related traumata, symptoms of which were first noticed in or about March 2008. The pathology involved damage to Mr Rachmaninoff’s lumbar disc at L5/S1. Having regard to s 322 and the reasoning in Edmed, the impairments resulting from the “same injury” (the same pathology), being a consequence of the traumata, are to be assessed together. The monetary entitlement found in the Certificate of Determination dated 9 February 2011 has, appropriately, been calculated having regard to the rates last indexed, in accordance with ss 79 and 80 of the 1987 Act, on 1 January 2007.

Ground E

Ground E suggests failure by the Arbitrator to afford the appellant procedural fairness given her refusal of the application to list the matter for arbitration.
I have earlier attempted to summarise those provisions of the Acts that regulate procedural matters before the Commission. Those provisions operate, in circumstances where, as here, the only issue in dispute is the existence of whole person impairment, so as to have that question determined by an AMS (s 65(3)). The Arbitrator is, in such a case obliged to refer the dispute to an AMS. As was stated in Haroun v Rail Corporation NSW [2008] NSWCA 192; 7 DDCR 139 (per Handley JA at [20]):
“The scheme of the two Acts is to ensure that the degree of permanent impairment that results from an injury, and any contribution to the worker’s total impairment that is due to an earlier injury or pre-existing condition are assessed under and in accordance with Pt 7 of the 1998 Act and not otherwise.
If there is a medical dispute of a kind defined in s 326(1) [sic, s 319] of the 1998 Act, an Arbitrator has no jurisdiction to decide it, but ‘may refer it for assessment’ by an AMS: s 321(1). That section confers a power which an Arbitrator is bound to exercise in a proper case in aid of the private rights of the parties: Julius v Lord Bishop of Oxford [1880] 5 AC 214 at 235, 243, 244.”

The issue of the binding certificate resolved the dispute in toto and permitted entry of an award by the Registrar.
The appellant has not, as earlier discussed, given notice as to a liability issue that required adjudication by an arbitrator. No issue has been raised in the Reply filed on its behalf and no application has been made pursuant to s 289A(4) seeking leave to raise a liability issue. The Registrar’s issue of the Certificate of Determination was made in accordance with procedure set forth in the Commission’s Practice Direction No 11. I reject the appellant’s argument suggesting failure to afford procedural fairness.
It may be seen that I have rejected each of the “Grounds” raised by the appellant. In the circumstances the orders made by the Arbitrator and by the Registrar are to be confirmed, and appropriate orders appear below.
Having regard to all the circumstances of this matter, it becomes necessary to make a number of observations concerning the manner in which the proceedings have been conducted on behalf of the parties by their representatives.
Mr Rachmaninoff’s solicitor has failed to attend to the most fundamental evidentiary requirement necessary to ensure just determination of his claim, that being preparation and filing of a comprehensive statement by him. The paucity of the evidence has caused considerable difficulty to the Commission in dealing with the dispute both before the Arbitrator and on appeal. In the absence of professional care and skill in the presentation of a claim, there is serious risk that justice may not be attained.
The appellant’s solicitor, Mr Macken, took objection to the recording of proceedings at the teleconference. No explanation for that objection has been advanced. The absence of a transcript has had the result that the Arbitrator was required to record matters in those reasons provided after entry of her ex tempore orders. The resultant confusion is well illustrated by the summary of the proceedings which I have attempted to provide above. Considerable time and resources have been unnecessarily expended by the Commission by reason of the apparently capricious objection to the recording of proceedings.
At the hearing of the appeal it was put to Mr Macken that it was open to inference that his manner of conduct of the teleconference was not “in the spirit of the Guidelines”. At the time of that teleconference the relevant Guideline was the ‘Guideline for the Practice of the Conciliation/Arbitration Process’ issued by the Registrar dated January 2009. The Guideline makes clear that parties are required to participate in a teleconference utilising a fixed telephone line and that the parties should be present with their legal representatives. Mr Macken participated in the teleconference using a mobile phone from a remote location not in the company of his client and, it seems, without the relevant file in his possession. The appellant’s apparent insistence that the matter “be fixed for arbitration” defeated any prospect that any progress towards resolution of the matter, or clarification of the real issues in dispute, could take place. The matters raised by Mr Macken at the hearing of the appeal do not adequately explain his manner of conduct of his client’s defence at that teleconference. It should be unnecessary to state that a genuine effort is to be made by parties and their representatives to comply with the relevant Guideline.

DECISION

The appeal is dismissed and the Arbitrator’s determination as made in Certificate of Determination dated 16 July 2010 is confirmed. The Registrar’s orders made in Certificate of Determination dated 9 February 2011 are confirmed.

COSTS

The appellant is to pay Mr Rachmaninoff’s costs of this appeal.

Kevin O'Grady

Deputy President
6 July 2011

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE