Kevorkian v Forstaff Logistics Pty Ltd and Marzam Holdings Limited trading as Opal Consulting (deregistered)

Case

[2006] NSWWCCPD 223

11 September 2006


WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Kevorkian v Forstaff Logistics Pty Ltd and Marzam Holdings Limited t/as Opal Consulting (deregistered) [2006] NSWWCCPD 223

APPELLANT:  David (Ara) Kevorkian

FIRST RESPONDENT:  Forstaff Logistics Pty Ltd

SECOND RESPONDENT:  Marzam Holdings Limited t/as Opal Consulting (deregistered)

INSURER:Allianz Australia Services Pty Ltd for the First Respondent

NRMA Workers Compensation (NSW) (No2) Pty Ltd for the Second Respondent

FILE NUMBER:  WCC 736-04

DATE OF ARBITRATOR’S DECISION:          25 August 2005

DATE OF APPEAL DECISION:  11 September 2006

SUBJECT MATTER OF DECISION: Section 261 of the Workplace Injury Management and Workers Compensation Act 1998; leave to appeal.

PRESIDENTIAL MEMBER:  Acting Deputy President Julian Martin

HEARING:On the papers

REPRESENTATION:  Appellant:      Galluzzo Andriano Solicitors

First Respondent:     Goldbergs Lawyers

Second Respondent: Moray & Agnew

ORDERS MADE ON APPEAL:  Leave to appeal is extended to 20 October 2005.

The decision of the Arbitrator dated 25 August 2005 is confirmed.

No order as to the costs.

BACKGROUND TO THE APPEAL

  1. On 20 October 2005 David (Ara) Kevorkian (‘Mr Kevorkian’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 25 August 2005.

  1. Mr Kevorkian was born on 10 April 1973 and is 33 years of age.  He was born in Iraq and emigrated to Australia in 1998.  Mr Kevorkian is single.

  1. Mr Kevorkian commenced employment with Marzam Holdings Limited t/as Opal Consulting (deregistered) (‘the Second Respondent’) on 13 March 1999.  The Second Respondent was a labour hire company and assigned Mr Kevorkian to work at Franklins Distribution Centre at Ingleburn (‘Franklins’).  Mr Kevorkian worked at Franklins as a storeman.

  1. The Second Respondent sold its labour supply contract to Forstaff Logistics Pty Ltd (‘the First Respondent’) and Mr Kevorkian’s employment finished with the Second Respondent on 23 April 2000 and he commenced employment with the First Respondent on the same day.   He continued to work at Franklins as a storeman whilst employed by the First Respondent.

  1. On 6 May 1999, whilst employed by the Second Respondent, Mr Kevorkian injured his left foot at Franklins.  He reported the accident and sought medical attention resulting in his being off work for approximately one month.  For some unexplained reason Mr Kevorkian did not claim weekly payments of compensation for this time off work.

  1. After the month off work, Mr Kevorkian returned to the same job at Franklins, however, he continued to have difficulties with his left foot.

  1. On 18 February 2000, whilst attempting to separate two cartons of soap powder at Franklins, Mr Kevorkian injured his back.  He did not report the injury, however, on completing his shift he consulted Dr Faiz Said.  Mr Kevorkian continued to work at Franklins and did not claim compensation for this injury.  Although he was able to continue working at the same job, he had difficulties and wore some form of back brace.  Mr Kevorkian states that he lost occasional time off work due to his back.

  1. On 16 June 2000, whilst employed by the First Respondent and working at Franklins, Mr Kevorkian injured his left arm, left shoulder, neck and back.  He reported the accident and went off work and made a claim for compensation on Allianz Australia Services Pty Ltd (‘Allianz’), the insurer of the First Respondent.

  1. Mr Kevorkian remained off work and in receipt of weekly payments of compensation until the middle of 2002 when he returned to light duties with the First Respondent, but this work lasted for a short time only.

  1. Allianz then arranged for Mr Kevorkian to do a real estate course, which resulted in him being employed by a Real Estate Agent at Fairfield for 7 months, until he was made redundant on 29 April 2004 due to the downturn in the real estate market.

  1. In August 2004 Mr Kevorkian succeeded in obtaining work as a security officer working six hours a day, three days a week.  It appears that Mr Kevorkian continues to receive some voluntary payments of weekly compensation from Allianz by way of makeup pay.

  1. On 20 March 2002 Mr Kevorkian’s solicitors commenced proceedings in the then Compensation Court against the First Respondent alone claiming lump sum compensation, medical expenses and a closed period of weekly compensation (23 March 2001 to 23 April 2001).  The proceedings relied on the injuries in June 1999 [sic 6 May 1999], 18 February 2000 and 16 June 2000 whilst working at Franklins.

  1. On 11 December 2002 Mr Kevorkian’s solicitors wrote to the Second Respondent formally claiming lump sum compensation, medical expenses and a closed period of weekly compensation in respect of injuries to the left foot in June 1999 [sic 6 May 1999] and to the back as a result of the nature and conditions of employment from June 1999 to 23 April 2000.

  1. On 14 March 2003 Mr Kevorkian’s solicitors filed a Notice of Motion in the then Compensation Court seeking leave to join the Second Respondent to the current proceedings against the First Respondent.  This Notice of Motion, together with supporting documents, was served on the Second Respondent and its insurer on 17 March 2003.

  1. On 15 October 2003 Mr Kevorkian’s solicitor wrote to the solicitors for the Second Respondent enclosing documents relevant to the proceedings in the then Compensation Court and advised:

“In relation to the injury of 18 February 2000, the injury occurred at the Franklins Distribution Centre, 4 Ingles Road, Ingleburn, NSW.  The Applicant [Mr Kevorkian] did not make a report of injury but complained to Dr Faiz Said and received treatment in respect of the same.”

  1. On 2 December 2003 the matter was listed for hearing in the then Compensation Court.  The proceedings against the Second Respondent were struck out for procedural reasons and the case against the First Respondent was stood over to the Not Ready List.

  1. In January 2004 the proceedings against the First Respondent were transferred to the Commission and on 13 February 2004 Mr Kevorkian’s solicitor wrote to the Registrar of the Commission asking that the Second Respondent be joined to the proceedings.

  1. The Commission referred the matter to an Arbitrator who held the first teleconference on 3 May 2004 and a further teleconference on 1 June 2004.  At the second teleconference the matter was referred to Professor Higgs, Approved Medical Assessor, to assess the orthopaedic injuries and to Dr Breslin, Approved Medical Assessor, to assess the loss of sexual organs.

  1. A further teleconference took place on 29 June 2005 where Mr Kevorkian withdrew his claim for the closed period of weekly payments and the claim for lump sum compensation and medical expenses was resolved with the First Respondent and accordingly the First Respondent has no interest in this appeal.  Agreement was reached between Mr Kevorkian and the Second Respondent for the payment of lump sum compensation in respect of the injury to Mr Kevorkian’s left foot on 6 May 1999, however, no agreement was reached in regards to the injury on 18 February 2000.

  1. A Certificate of Determination dated 1 July 2005 was issued in respect of the matters resolved by consent and Mr Kevorkian and the Second Respondent agreed to provide the Arbitrator with written submissions in relation to the injury on 18 February 2000.

  1. After considering the written submissions of both parties and the material contained in the Commission file, the Arbitrator delivered his decision on 25 August 2005.  Mr Kevorkian seeks leave to appeal from that decision.

THE DECISION UNDER REVIEW

  1. The ‘Certificate of Determination’, dated 25 August 2005 records the Arbitrator’s orders as follows:

“1.Determination in favour of the Second Respondent in relation to the Applicant’s claim for compensation benefits following the employment injury of 18 February 2000.

2.Second Respondent pay the Applicant’s costs to be agreed or assessed in relation to those aspects of the matter that were resolved by consent back on 29 June 2005 but that the Applicant have not costs in respect of the claim based upon the injury of 18 February 2000.”

ISSUES IN DISPUTE

  1. The issues in dispute in the appeal are:

“1.the Arbitrator erred by failing to provide adequate reasons in respect of the finding that the claim was not made within three years; and

2.the Arbitrator failed to apply the correct test in respect to the meaning of serious and permanent disablement of a worker.”

ON THE PAPERS REVIEW

  1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”

  2. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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. 

LEAVE

  1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

  1. There is no dispute that the amount of compensation in issue on the appeal is greater than $5,000.00 and as no award was made, section 352(2)(b) of the 1998 Act has no application.

  1. The appeal was initially lodged on 22 September 2005 (within the 28 day period allowed) but rejected for failure to attach submissions in relation to new evidence that was annexed to the appeal.

  1. The appeal was re-filed, with appropriate submissions, on 20 October 2005, some 27 days out of time.  Mr Kevorkian’s solicitor submits that a demonstrable and substantial injustice would occur if Mr Kevorkian was to lose the right to appeal.  It is further submitted that there has been no prejudice to the Second Respondent as a result of the late application because they were notified of the intention to appeal on 21 September 2005.  The Second Respondent has made no submission on the issue of leave to file the appeal out of time.

  1. Rule 77(8) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides that a Presidential Member may extend the time for making an appeal where the Appellant demonstrates that exceptional circumstances exist, and that they would suffer a substantial injustice if the right of appeal were lost. The onus of proving exceptional circumstances rests with the Appellant.

  1. In this matter I am of the view that I should exercise my discretion in favour of Mr Kevorkian.  I have taken into account the consequence for Mr Kevorkian if the application is refused and the circumstances of the delay in filing the appeal.  I am satisfied that the Second Respondent will suffer no disadvantage in the delay in filing the appeal on time.  Having regard to these matters I am of the opinion that to lose the right of appeal would cause Mr Kevorkian substantial injustice.

  1. I order that the time for filing an appeal in this matter is extended to 20 October 2005.

  1. Leave to appeal is granted.

FRESH EVIDENCE

  1. ‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:

“(6)     Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”

  1. Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal.  It provides as follows:

New Evidence

Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.

In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”

  1. Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:

“-a schedule of the new evidence,
  -a copy of the new evidence,
  -a brief outline of the new evidence and the reasons why it was not given in the
   proceedings before the Arbitrator, and
 -submissions why the new evidence should be admitted.”

  1. Mr Kevorkian seeks to tender fresh evidence in the form of a further statement outlining the work practices at the Second Respondent and his personal belief and knowledge of the consequences of reporting a further injury to the Second Respondent.

  1. At the second teleconference in this matter, which was held on 1 June 2004, the Arbitrator granted leave to Mr Kevorkian to file and serve a statement, that included an explanation as to why notice of the alleged injury on 18 February 2000 was not given at the time and why a claim was not lodged within the statutory period.  A statement was filed by Mr Kevorkian on 4 June 2004 in response to this leave.

  1. It is submitted by Mr Kevorkian’s solicitor that the original statement of 4 June 2004, whilst being detailed, was not exhaustive on the circumstances of Mr Kevorkian’s employment with the Second Respondent.  It is further submitted that a more detailed statement on the work practices at the Second Respondent and Mr Kevorkian’s personal belief and knowledge was not available at the time of the Arbitrator’s decision.  Finally it is submitted that proceedings before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits and accordingly the Commission should exercise its discretion and flexibility in allowing the fresh evidence.

  1. The Second Respondent opposes leave being granted to allow this fresh evidence and submits that the further material contained in the statement is not information which has just come to the knowledge of Mr Kevorkian, but rather information that he had well before the proceedings were commenced.

  1. It is further submitted by the Second Respondent that leave was granted to Mr Kevorkian to file a statement on this issue at the second teleconference on 1 June 2004 and that at the final teleconference on 29 June 2005 Mr Kevorkian’s solicitor was further made aware of the Second Respondent’s reliance on this issue and no attempt was made at that time to seek leave to introduce this fresh evidence.

  1. Finally the Second Respondent submits that it will suffer prejudice if this fresh evidence is allowed, not only because of the lapse of time, but because the Second Respondent is deregistered.

  1. As Deputy President Byron stated in Raisebore Pty Limited v Brendyn Wilson [2003] NSWWCCPD40 (‘Wilson’s case’):

“…an appeal to a Presidential member is not a continuation of the proceedings that took place before an Arbitrator.  Section 352(5) of the 1998 Act provides that an appeal under this section is to be by way of review of the decision appealed against.  While the Presidential member can receive further evidence by leave (but not routinely, even for later “clarification” purposes), the appeal is not a mere extension of the proceedings before the Arbitrator, nor is it a rehearing of the matter.  The Presidential member is neither exercising nor re-exercising the power of the Arbitrator at first instance and is not proceeding de novo, in order to come to a fresh decision based on all the evidence available at a later time:  Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616.”

  1. In Wilson’s case Deputy President Byron summarized “…the factors that weigh in favour of the exercise of a discretion to admit fresh evidence in an appeal” as including the following:

·“if the request is refused, a substantial injustice will result to the party who seeks to have the evidence admitted: Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235;

·the evidence could not have been discovered, with reasonable diligence, at the time of the original proceedings:  Radnedge v Government Insurance Office of NSW (supra); Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA80, and

·the evidence is of such probative value that there is a high degree of probability that it would lead to a different outcome in the case:  Greater Wollongong City Council v Cowan (1955) 93 CLR 435; Warr v Santos [1973] 1 NSWLR 432; Harrison v Schipp (2002) 54.”

  1. Mr Kevorkian has provided no explanation why the information contained in this further statement ‘was not available’ at the time he prepared his original statement of 4 June 2004.  Nor has he shown that he would suffer a substantial injustice if the further statement was not admitted in the appeal.  Accordingly I find that Mr Kevorkian has failed to establish any grounds to justify the admission of this fresh evidence.

  1. For the above reasons I refuse leave to admit fresh evidence in the form of an additional statement by Mr Kevorkian.

PRELIMINARY

  1. In his statement of 4 June 2004 Mr Kevorkian states that in relation to the injury on 18 February 2000 he “…never reported that particular incident to my employer and…did not claim workers compensation”. The Second Respondent states that the first notification to the Second Respondent and its insurer was contained in the Compensation Court documents served under cover of a letter dated 17 March 2003 by Mr Kevorkian’s solicitor. As the first notification of the injury to the Second Respondent and its insurer was 17 March 2003 section 261 of the 1998 Act applies (by reason of section 259 of the 1998 Act). Section 261 of the 1998 Act states:

261 Time within which claim for compensation must be made

(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.

(2) If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.

(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.

(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:

(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or

(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.

(5) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.

(6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.”

EVIDENCE AND SUBMISSIONS

Failure to Provide Adequate Reasons

  1. Mr Kevorkian’s solicitor submits that the Arbitrator did not provide reasons for his finding that “…the actual claim was not made within three years after the happening” of the injury on 18 February 2000.  In support of this submission Mr Kevorkian’s solicitor points out that a letter of claim was sent to the Second Respondent on 11 December 2002 (within the three year period) referring to an injury to the left foot in June 1999 and injury to the back as a result of nature and conditions of employment from June 1999 to 23 April 2000.  The insurer for the Second Respondent acknowledged receipt of this letter on 3 January 2003.  The Second Respondent submits that this letter of claim sent on 11 December 2002 does not refer to the injury alleged on 18 February 2000.

  1. Clearly the Second Respondent’s submission is correct in that there is no reference in the letter of claim to the injury on 18 February 2000.  Further the Arbitrator stated in his decision:

“The Applicant did provide a very detailed statement of 4/6/04 admitting that he did not report the injury of 18/2/2000 to the Second Respondent.”

  1. Although the Arbitrator made no reference to the letter of claim dated 11 December 2002, I am of the opinion that he was entitled to rely on the statement of Mr Kevorkian dated 4 June 2004 where he unequivocally stated “…I never reported that particular incident to my employer”.  In Department of Education & Training v Jeffrey Sinclair [2004] NSWWCCPD 90 President Justice Sheahan stated:

“Section 294(2) of the 1998 Act requires the Arbitrator, in the event of making a determination, to provide a “brief statement” of “reasons”Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 clarifies that “lengthy or elaborate” reasons, finding and linking every fact leading to the final conclusion, are not required, but “the essential…grounds upon which the decision rests must be articulated” (per McHugh JA, at 280D, but see also the judgment of Kirby P, generally, and that of Mahoney JA, at 271-3).  See also Rule 73.”

Although the Reasons for Decision were brief, I am of the view that the Arbitrator provided “the essential grounds upon which the decision rests” when he referred to Mr Kevorkian’s statement that he did not report the injury of 18 February 2000 to the Second Respondent.

Injury Resulting in Serious and Permanent Disablement

  1. Mr Kevorkian’s solicitor submits in the alternative, that if the finding is correct that the claim was made outside the three year period, then the failure to do so is not a bar because the claim is in respect of an injury resulting in serious and permanent disablement.  It is further submitted that the Arbitrator failed to apply the correct test in respect to the meaning of serious and permanent disablement of a worker.   In support of this submission reference is made to Sidiropoulos v Able Placements Pty Ltd (1998) 16 NSWCCR 123 (‘Sidiropoulos’ case’).

  1. The Arbitrator found that the injury to Mr Kevorkian on 18 February 2000 did not result in serious and permanent disablement.  At the top of page 3 of the decision the Arbitrator stated:

“The two Approved Medical Specialists have provided separate Medical Assessment Certificates in which findings are made to the effect that as a result of the alleged injury of 18 February 2000 the Applicant has suffered 5% loss of sexual organs; 5% back impairment and a 3% left leg impairment at or above the knee [sic].  Clearly, these impairments do not constitute serious and permanent disablement.”

  1. As I stated above Mr Kevorkian’s solicitor has referred to Sidiropoulos’ case in support of his submissions that the injury resulted in serious and permanent disablement. I fail to see the relevance of that decision which involved the cumulative effect of two injuries, allowing for a claim for pain and suffering. Mr Kevorkian submits that when considering the issue of serious and permanent disablement, the Commission should take into account the cumulative effect of all three injuries he suffered whilst working at Franklins. I do not agree with this submission as section 261 of the 1998 Act is quite specific when it states “…the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.”

  1. The issue of serious and permanent disablement was considered in Gregson v L & MR Dimasi Pty Ltd (2000) NSWCC 520 (‘Dimasi’s case’), where Judge Burke stated:

“In this matter the question becomes whether Mr Gregson suffers a serious and permanent disablement.  Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work?  If all questions were answered in the affirmative then he would satisfy that requirement.  The basic question then presenting is the degree of the applicant’s incapacity and losses before a considered answer to those previous questions is available.”

In that case Judge Burke found that Mr Gregson suffered a 30% permanent impairment of the back and 10% permanent loss of use or efficient use of each leg [sic].  Accordingly the worker was held to suffer serious and permanent disablement.

  1. Essentially this issue is a question of fact for the Arbitrator and in my opinion it was open to him on the evidence to find that the injury suffered by Mr Kevorkian on 18 February 2000 did not result in serious and permanent disablement.

  1. I have reached this conclusion having regard to the fact that Mr Kevorkian has stated that after the injury on 18 February 2000 he was able to continue at his old job, albeit with difficulties and losing some time off work due to his back, until the injury to his left arm, left shoulder, neck and back on 16 June 2000.

  1. I have also had regard to the medical evidence and, in particular, the reports of the Approved Medical Assessors, Professor Higgs and Dr Breslin.  In accordance with these medical examinations Mr Kevorkian suffers 5% permanent loss of sexual organs, 5% permanent impairment of the back and 3% permanent loss of use of the left leg at or above the knee as a result of the injury on 18 February 2000.  I have also taken in to account that Mr Kevorkian did not seek specialist treatment for his back until after the last injury on 16 June 2000 when he again injured his back.

Ignorance, mistake or absence from the State or other reasonable cause

  1. The Arbitrator having found that the claim was made outside the three year period and the injury did not result in serious and permanent disablement, did not have to determine the issue of ignorance, mistake or absence from the State or other reasonable cause.  The Arbitrator in his decision referred to the statement of Mr Kevorkian dated 4 June 2004:

“I wanted to go(sic) First Aid but was reluctant to do so because of my earlier foot injury and as I had financial responsibility for my family overseas and had taken out a personal loan and as it was then about 2.00 p.m. and near the end of my shift I decided not to go to First Aid.  …But because of my financial problems and my need to keep my job I never reported that particular incident to my employer.”

The Arbitrator went on to make the following statement:

“If relevant it could be argued by the Applicant that the failure was occasioned by ignorance, mistake or absence from the State or other reasonable cause but even such an argument would be very difficult to sustain in this matter.  Clearly, the Applicant did suffer an earlier employment injury with the Second Respondent on 6 May 1999 following which a report was apparently made immediately to the employer with the Applicant then going off work producing as required by the statute WorkCover Medical Certificates from his local treating doctor respectively dated 6 May 1999 and 20 May 1999.  In respect of that earlier happening the Applicant did not appear to be restrained in reporting the happening by reason of at least some of the explanations that are quoted above from his statement.”

  1. The onus is on Mr Kevorkian to prove that his failure to make the claim within the period was occasioned by ignorance, mistake or absence from the State or other reasonable cause; (Dimasi’s case).

  1. In my view it was open to the Arbitrator to take into account that Mr Kevorkian had reported the earlier injury on 6 May 1999 immediately to his employer and had produced the appropriate medical certificates from his treating doctor.  Further it was appropriate for the Arbitrator to take into account that Mr Kevorkian “…did not appear to be restrained in reporting the happening by reason of at least some of the explanations that are quoted above from his statement”.

  1. On consideration of the whole of the evidence, I find it was reasonably open to the Arbitrator to arrive at his decision on these issues and accordingly the appeal is not successful.

DECISION

  1. The decision of the Arbitrator dated 25 August 2005 is confirmed.

COSTS

  1. No order as to the costs.

Julian Martin

Acting Deputy President  

11 September 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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