Mackay v Moore and WorkCover Authority of New South Wales - [2008] NSWWCCPD 26

WORKERS COMPENSATION COMMISSION

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

CITATION:Mackay v Moore and WorkCover Authority of New South Wales [2008] NSWWCCPD 26
APPELLANT:  Alicia Mackay
FIRST RESPONDENT:  Andrew John Moore
SECOND RESPONDENT:  WorkCover Authority of New South Wales
INSURER:Uninsured
FILE NUMBER:  WCC21772-05
DATES OF ARBITRATOR’S DECISIONS:     9 February 2007, 2 July 2007 and 14 November 2007
DATE OF APPEAL DECISION:  29 February 2008
SUBJECT MATTER OF DECISION: Referral to Approved Medical Specialist; whether liability to pay compensation thereby conceded; whether appeal out of time; section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998; injury; sections 4, 9A and 22 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy
HEARING:5 February 2008
REPRESENTATION:  Appellant:      Mr A.B. Parker instructed by Bull & Company, Solicitors
First Respondent:     Mr P. Barnes instructed by Whitelaw McDonald, Solicitors.
Second Respondent: Mr D.A. Baker instructed by Sparke Helmore, Lawyers.

ORDERS MADE ON APPEAL: For the reasons stated in this decision, the decision of the Arbitrator dated 2 July 2007 as amended by the Amended Certificate of Determination dated 14 November 2007 is confirmed.

The appellant employer is to pay the respondent worker’s costs of the appeal.

The second respondent, WorkCover Authority of NSW to pay its own costs of the appeal.

BACKGROUND TO THE APPEAL

Andrew John Moore (‘the worker’) was employed as a duty bar manager at the Thurless Castle Hotel owned by Alicia Mackay (‘the employer’). She had employed him from the time she purchased the hotel on 17 May 2001 and had previously employed him for substantial periods at another hotel.
On New Years Day 2002 while the worker was so employed there was a dispute with a patron concerning the delayed payment of a TAB wager and, later, the alleged non-payment of all that was due to that person. There followed the intervention of other persons who threatened the worker and others at the hotel. Those threats involved the use of a firearm which did not eventuate. The worker telephoned the police and, while he was doing so, a sum of money was stolen from the bar cash register.
As a result of these events, the worker alleged that he suffered a psychological injury. He did not work again at the hotel but, within a short time, moved to East Maitland and eventually found other employment.
The employer herself paid the worker’s normal salary up to 16 April 2002 since she had neglected to obtain workers compensation insurance when she acquired the hotel. The worker accordingly made a claim for compensation to the WorkCover Authority of New South Wales (‘WorkCover’) as administrator of the Uninsured Liability and Indemnity Scheme under the law as it then was. Liability was accepted and payments of compensation were made.
On 14 October 2003 WorkCover wrote to the worker advising that the weekly payments he was receiving would be reduced from 24 November 2003 to $297.62 per week, being the difference between what he would have been earning but for injury and the sum which it was considered he was able to earn in suitable employment. This calculation was done pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 23 February 2005 the worker’s solicitors wrote to WorkCover making a claim for weekly payments at the maximum statutory rate for a worker with three dependent children and on 29 August 2005 the worker’s solicitors wrote to “The Manager, Thurless Castle Hotel c/- WorkCover New South Wales” making a claims pursuant to sections 66 of the 1987 Act for 17% whole person impairment and $30,000.00 pursuant to section 67 and enclosing two reports of Dr Lambeth, a psychiatrist, dated 14 April 2005 on which the claims were based.
On 13 September 2005 an Application to Resolve a Dispute (15519-05) was lodged with the Workers Compensation Commission of New South Wales (‘the Commission’). This application named as first respondent, Thurless Castle Hotel and as the second respondent, the WorkCover Authority of New South Wales. Since the hotel was not a legal entity the employer was obviously wrongly described and the application was not served on her. This application was referred to a Commission Arbitrator who held a teleconference on 22 November 2005. At that teleconference the Arbitrator ascertained that the employer had not been served with the application and had not been correctly named. Accordingly, by consent, that application was discontinued and a Certificate of Determination (‘COD’) in relation to this discontinuance was issued.
A further Application to Resolve a Dispute in the current proceedings was registered in the Commission on 22 December 2005. In this the employer was correctly named. This claimed weekly compensation from 24 November 2003 at the rate of $907.77 per week. It also claimed medical, hospital or related expenses which were not specified apart from reference to a Health Insurance Commission notice of charge. The compensation under sections 66 and 67 of the 1987 Act to which I have earlier referred was also claimed.
The employer instructed solicitors who lodged a Reply on her behalf on 19 January 2006. In that Reply the issues in dispute were stated as follows:
“1.That the applicant did not receive any injury arising out of or occurring in the course of his employment, as alleged or at all.
2.In the alternative, that the applicant’s employment by the respondent was not a substantial contributing factor to the alleged injury.
3.That the applicant was not and is not now incapacitated.
4.That any incapacity the applicant may have had or may now have is not as a result of the alleged injury.
5.That the applicant’s actual earnings and/or ability to earn have at all material times been at least equal to his probable earnings but for the alleged injury.
6.That any treatment received by the applicant was not reasonably necessary by reason of the alleged injury.”
On 16 February 2006 the employer’s solicitors wrote to the worker’s solicitors seeking further particulars as to prior injuries and any medical attention received or claims made in respect of those injuries. These particulars were supplied by letter of 22 February 2006 and referred to a gunshot wound to the worker’s right shoulder received on 15 September 1988 for which claims were made in the Compensation Court and the Victims Compensation Tribunal, both of which resulted in payments to the worker.
On 16 February 2006 the employer’s solicitors also wrote to the Registrar of the Commission advising that it had sought particulars and foreshadowing an application at the teleconference set down for 9 March 2006 for an amendment of the timetable to provide a reasonable opportunity for further work to be done on behalf of the employer. It was also foreshadowed that an application to admit late documents would be made following the issue of directions for production for the worker’s ‘antecedent treatment records’.
On 16 February 2006 the employer’s solicitors also wrote to the solicitor for WorkCover pointing out that liability for the worker’s claim was disputed and seeking documents on which WorkCover relied in admitting liability to pay compensation to the worker. Particulars were sought as to WorkCover’s section 40 assessment and the documents on which it relied in making such assessment.
On 8 March 2006 the employer’s solicitors wrote again to the Registrar of the Commission enclosing copies of a number of documents and seeking an adjournment of the conciliation/ arbitration conference which had been set down for 16 March 2006. The employer’s solicitors also wrote to the solicitors for the worker and WorkCover giving notice of the adjournment application which they proposed to make.
A teleconference was conducted by the Arbitrator on 9 March 2006 at which all parties were represented. The Arbitrator referred the section 66 claim to an Approved Medical Specialist (‘AMS’) for assessment and has recorded the following in his contemporaneous notes:
“I have allowed the following at the t/c of 9 March 2006:-
·DOCUMENTS SOUGHT TO BE RELIED UPON BY ANY PARTY FROM DOCUMENTS PRODUCED UNDER DIRECTION FROM THE BELOW LIST PRODUCERS, TO BE FILED AND SERVED NOT LATER THAN 13 APRIL 2006 – ALL TO GO TO THE AMS;
·PARTIES ARE GIVEN LEAVE TO ISSUE DIRECTIONS FOR PRODUCTION (FORTHWITH) TO THE FOLLOWING PRODUCERS WITH A SPECIFIC RETURN DATE OF 6 APRIL 2006:-
oVICTIM’S COMPENSATION TRIBUNAL NSW.
oST VINCENT’S HOSPITAL.
oCOMPENSATION COURT NSW.”
The Arbitrator listed issues resolved by the parties as: “s.60(DISC)”. The issues which were still in dispute were stated to be: “Weeklies: s66/67”. These were issues which apart from section 66 the Arbitrator noted would need to be resolved after the receipt of a Medical Assessment Certificate (‘MAC”) from the AMS.
On 8 May 2006, following the referral of 9 March 2006, a psychiatric examination of the worker was undertaken by the AMS, Dr Klaas Akkerman who issued a MAC on 24 May 2006. His opinion as to cause was as follows:
“It has now been over four years since the incident happened. The incident was not that serious. He has not improved and he feels at his worst now. This is not tenable to clues [sic] that his current condition is related to the incident of 1 January 2002. I believe it is related to his personality functioning, possibly his alcohol intake and possible [sic] his marital problems. But it is not related to his employment.
His condition is not stable. He is at his worst now. The Whole Person Impairment Rating Scale does not apply, but for completeness is included.”
The AMS went on to conclude that the adjustment disorder which he had diagnosed had a constitutional basis.
Dr Akkerman had seen the worker at the request of WorkCover in 2002 and 2005 however the referral to him as an AMS was done in ignorance of this.
In his reasons for assessment the AMS stated that he had assessed the permanent impairment at 7% however, in the table attached, the permanent impairment was stated to be 6% with no deduction pursuant to section 323 of the Workplace Injury Management & Workers Compensation Act 1998 (‘the 1998 Act’) for pre-existing injury, condition or abnormality.
On 21 June 2006 the worker’s solicitors lodged an appeal against the MAC of Dr Akkerman. This was referred to a Medical Appeal Panel (‘MAP’) which included Dr Robert Gertler, a psychiatrist, who examined the worker on 7 November 2006.
The MAP found that the worker had a discernible psychiatric disorder which was an adjustment disorder with anxious and depressed mood. It assessed the permanent impairment as 7% related wholly to the employment injury of 1 January 2002 with no deduction for pre-existing injury, abnormality or condition. A new MAC dated 18 December 2006 was issued in accordance with these findings. This assessment did not meet the threshold prescribed by section 65A(3) of the 1987 Act ( at least 15% permanent impairment) and accordingly no compensation was payable under sections 66 or 67 of that Act.
On 5 February 2007 the matter was listed for an arbitration/conciliation conference before the Arbitrator at which all parties were represented. The transcript of what occurred on that occasion reveals that the Arbitrator noted that at the time of the referral to the AMS his recollection and notations were that there was to no issue as to the employer’s liability to pay compensation. This was, he noted, disputed by her. Counsel for the employer submitted that at the teleconference leave was sought for directions to obtain material which could be referred to the AMS. This material referred to previous claims and previous injuries. The employer’s solicitor was said to have notes of the teleconference which supported the assertion that any referral was only on the question of whether the worker passed the threshold and an attempt to see if the matter could be resolved at an early stage.
WorkCover’s counsel submitted that his client had put injury, incapacity and nexus in issue, however, he had no instructions as to what took place at the teleconference. Similarly the worker’s counsel had no instructions as to this matter.
In relation to the question of liability, the Arbitrator said the following (T 11.17 and following):
“ARBITRATOR: - - , but I think that the first thing I need to determine is whether the liability question is something that is before the Commission or not in terms of the actions taken earlier in referring the matter to the AMS. Now, the applicant’s counsel had made reference to my practice. We did discuss some of this informally earlier on, but, just for the record, it is my practice to document the outcome of the teleconference involving referral to the AMSs as was the then current procedure of Arbitrators referring matters to Approved Medical Specialists, and a referral was made on 9 March 2006 on a referral form, the pro forma used by the Commission, and on that form – firstly, that document was produced immediately after the teleconference on 9 March 2006, and in addition to that there is a further document produced entitled ‘Teleconference arrangements and outcomes’. It’s the outcome of the teleconference, if you like, again on 9 March 2006 both documents which were produced immediately after the teleconference.
Now, the parties were given leave to issue Directions for Production of certain documents that were to go to the AMS, but my clear understanding, and it is my practice, to refer a matter to an AMS only once I am satisfied that there is no preliminary issue in dispute, that is, if there was an issue in dispute over liability, then that is a matter that I would have referred for a determination at an arbitration prior to referring the matter to the Approved Medical Specialist. My practice is consistently that, and, according to my understanding, there was no issue of liability, and, therefore, I referred the matter to an Approved Medical Specialist.
In the notations made on the referral form, I do note that there are no other issues requiring determination prior to referral to the AMS and at no stage in my notations is there any issue raised about liability. In my hand written on the teleconference outcome sheet of that same date I list the issues between the parties still in dispute. I’ve got weeklies, meaning weekly capacity, and the lump sum section 66 lump sums, which was the subject of the referral to the AMS.
In terms of issues in dispute referred back post-MAC teleconference, the two issues I’ve listed there are if there was any entitlement to 67, and if it reached the lump sum threshold for the injury, and also weekly benefits. Nowhere in my notes do I see any issue raised about liability. And given my practice and my notations and doing my best just to rely on the notations that I have, because clearly I can’t recall the actual events entirely of the day from memory, then the issue of liability was something that to my understanding was not in dispute and, hence, I made the referral to the Approved Medical Specialist.
So in that regard, my determination is that the matter having been referred to an AMS and a binding assessment having been issued ultimately by the Medical Appeal Panel was done so only after I was satisfied that liability was not in dispute and, therefore, I have proceeded on the basis that liability is not in dispute.”
A COD dated 9 February 2007 was issued following this teleconference and is set out below.
The matter again came before the Arbitrator on 6 June 2007 in order to determine the worker’s entitlement to weekly compensation and submissions were then made by the parties.
A COD was issued dated 2 July 2007 setting out the Arbitrator’s findings as to the weekly compensation claim and this was accompanied by the Arbitrator’s reasons. The parties agreed that there was an error in this COD in relation to an award in favour of the employer for the period after 30 June 2006. Accordingly, a further COD was issued on 14 November 2007 which corrected this error.
Following the decision of 2 July 2007 an Application to Appeal against the Decision of an Arbitrator was lodged on 30 July 2007. This related to the failure of the Arbitrator to allow the employer to dispute her liability to pay compensation to the worker.

THE DECISION UNDER REVIEW

As I have earlier said, there were no fewer than three CODs in these proceedings of which it is, in my opinion, only necessary to set out the first two.
The COD of 9 February 2007 records the Arbitrator’s orders as follows:
“1.That the claim in respect of the Applicant’s section 60 of the Workers Compensation Act 1987 expenses is discontinued and the requirement to file a Notice of Discontinuance is dispensed with.
2.That the First Respondent agreed on 9 March 2006 to have the matter referred to an Approved Medical Specialist for assessment under section 66 of the Workers Compensation Act 1987 and that in doing so the First Respondent is not now at liberty to dispute liability for lump sum compensation attributable to the injury set out in the Application, after the referral to the AMS.
3.Award in favour of the Respondents in respect of the Applicant’s claim for lump sum compensation under section 66 of the Workers Compensation Act 1987, in accordance with the medical assessment certificate of the Medical Appeal Panel, dated 18 December 2006, issued by the Commission.
4.That the Respondent(s) pay the Applicant’s costs as agreed or to be assessed.”
The COD dated 2 July 2007 records the Arbitrator’s orders as follows:
“a.That the First Respondent pay the Applicant weekly benefits compensation from 24 November 2003 to 30 June 2006 under section 40 of the Workers Compensation Act 1987 as follows:
i.24/11/03 – 31/3/04     $361.04 per week
ii.1/4/04 – 23/5/04         $391.25 per week
iii.24/5/04 – 30/9/04 limited to $548.40 max statutory rate per week
iv.1/10/04 – 31/3/05 limited to $558.40 max statutory rate per week
v.1/4/05 – 6/6/05           $433.01 per week
vi.7/6/05 – 30/6/05         $362.14 per week
vii.1/7/05 – 30/9/05         $412.14 per week
viii.1/10/05 – 31/3/06       $412.14 per week
ix.1/4/06 – 30/6/06         $456.93 per week
x.Award in favour of the First respondent thereafter.
b.That credit be given to the Second Respondent for any payments made by the Second Respondent to the Applicant in these proceedings for weekly benefits compensation for the above periods.
c.That the First Respondent pay the Applicant’s costs as agreed or to be assessed.
d.That as I find that the First Respondent was not insured as required by the Workers Compensation Act 1987 at the time of the Applicant’s injury, the Second Respondent is to pay any compensation and costs awarded against the First Respondent in these proceedings, from the WorkCover Authority Fund established under section 34 of the Workplace Injury Management & Workers Compensation Act 1998.
e.That the First Respondent reimburse the Second Respondent for amounts paid in respect of compensation and costs awarded against the First Respondent in these proceedings.
f.That the First Respondent reimburse the Second Respondent the costs of these proceedings of the Second Respondent, as agreed or to be assessed.
g.I certify the matter as complex.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are:
·Whether the appeal lodged on 30 July 2007 was filed within the time prescribed by section 352(4) of the 1998 Act.
·Whether the Arbitrator erred in failing to allow the employer to dispute her liability to pay compensation to the worker.
·Whether, if the first two questions are answered in favour of the appellant, she is entitled to succeed on any of the grounds relied on by her.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
In this appeal the employer submitted that the matter ought not be determined on the papers as the matter was complex in nature and required a determination on various aspects of liability. The worker and WorkCover were content to have the matter decided on the papers.
The worker raised the question whether the appeal was lodged within time. No submissions were made in relation to this by the employer, except for an assertion that the appeal was lodged in time. This appeared to me to involve a subsidiary question whether the determination of 9 February 2007 was, so far as weekly payments was concerned, final, such that an appeal should have been brought from it within 28 days or interlocutory, from which no appeal could, at that time, have been brought. In addition no submissions had been made directed to the issue of liability and I considered that oral submissions ought be made in relation to this issue as well as the other matters to which I have referred. For this reason a hearing of the appeal was held on 5 February 2007 at which further submissions were made by counsel for the parties.

LEAVE

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal is greatly in excess of $5,000.00 which is the amount specified in section 352(2)(a) and all of that compensation is at issue on the appeal. Accordingly, section 352(2) is satisfied.
The appeal was lodged on 30 July 2007 which is within 28 days of the Arbitrator’s decision of 2 July 2007 but outside a period of 28 days calculated from the date of the earlier COD, of 9 February 2007. Whether the appeal has been lodged within time is a matter which is to be determined prior to considering the merits of the appeal.
The worker submitted that paragraph 2 of the COD dated 9 February 2007 clearly determined the issue of injury (and section 9A) and also the liability for that injury against the employer. He further submitted that this determination falls within the definition of decision in section 352(8) of the 1998 Act and could not on any view be considered as interlocutory.
Section 352(8) of the 1998 Act provides as follows:
“In this section, decision includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.”
Clause 200B of the Workers Compensation Regulation 2003 is the relevant regulation and provides as follows:
“For the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed.”
Rule 16.2 of the Workers Compensation Rules 2006 provides in part that:
“1.A party to any proceedings applying for leave to appeal under section 352 of the 1998 Act against a decision of an Arbitrator must lodge the application within 28 days after the making of the decision, or within such extended time for making the appeal as may be ordered under sub-rule (11).
2.For the purpose of subrule (1), a decision is made, in respect of a dispute, when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act.”
The question which arises is which is the relevant COD for the purposes of calculating the time to appeal.
Clause 200B does not in my view give a great deal of guidance as to what is to be regarded as interlocutory. As Deputy President Byron observed in Bagtrans Pty Limited v Simunic [2007] NSWWCC PD 212 at [23], the amendment to section 352(8) and clause 200B do not “include a useful and workable definition of the term ‘interlocutory’ for the particular purposes of the Workers Compensation jurisdiction”.
For some time the courts have taken the test for determining whether an order is final or interlocutory from the judgment of Gibbs J in Licul v Corney (1976) 180 CLR 213 at 225. Gibbs J in the relevant passage refers to earlier High Court authority, namely Hall v The Nominal Defendant (1966) 117 CLR 423 (‘Hall’). In that case Taylor J with whom Owen J agreed said at 439:
“However, at an earlier stage Lord Alverstone C.J., when called upon to say whether a particular order was interlocutory or final said:‘It seems to me that the real test for determining this question ought to be: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order’: Bozson v Altrincham Urban District Council [1903] 1 K.B. 547, at pp.548-549. Much the same test has been proposed on other occasions and, if I may say so with respect, it provides a broad test which is unexceptionable. So an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only.’”
Windeyer J in Hall delivered a separate judgment in which he agreed that the order under appeal was interlocutory however he favoured granting special leave which the majority did not. His Honour said this at 443:
“In most cases the test seems to be most satisfactory, and the one that accords most nearly with what has been said on the subject in this Court, is it seems to me to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that unless it be an order that is expressly declared to be subject to variation”.
His Honour referred with apparent approval to the judgment of Bramwell L.J. in Standard Discount Co v La Grange (1877) 3 CPD 67 in which he said:
“There cannot be an order which is neither final nor interlocutory; and therefore if the order before us is not final, it must be interlocutory. Is it a final order? It is like every other order in one sense final, so long as it is not appealed against, but it is not the final order of the court in the cause.”
Deputy President Roche in P&O Ports Limited v Alan Hawkins [2007] NSWWCC PD 87 (‘Hawkins’) cautioned against automatically adopting common law authorities on the meaning of the word ”interlocutory”. The Deputy President noted at [37d] that claims for permanent impairment compensation require that the Arbitrator determine issues such as injury, worker and substantial contributing factor (among other issues) before the matter is referred to an AMS. He went on to say at [37e]:
“Such a decision clearly disposes of the parties’ rights and the findings made in such decisions or determinations do not become any less ‘final’ because of the unique statutory provisions under which the Commission operates;”
At [37k] he observed:
“given the Commission’s objectives, it is not appropriate to deprive an unsuccessful party of the right to appeal to a Presidential Member in respect of a final decision on a matter that finally determines the parties’ rights on issues such as worker, injury, substantial contributing factor (or other issues that finally determine the parties’ rights) until all medical disputes have been assessed and determined under Part 7. Any order or determination by an Arbitrator on such issues should not be regarded as a matter that is a ‘preliminary or interim order of an interlocutory nature’, but should be regarded as a final order in which, provided the other thresholds in section 352 have been satisfied, leave to appeal will be granted.”
It should be noted that Deputy President Roche in Hawkins referred to depriving an unsuccessful party of a right to appeal against a decision. In the present case however, the argument is rather that the appeal is out of time because an appeal should have been brought against an earlier decision.
From the transcript of 5 February 2007 it is clear that an appeal was clearly in the contemplation of counsel for the employer however, that counsel, who also appeared on the appeal, explained that he had made a decision that the decision in question was an interlocutory decision only, in respect of which there was no right to bring an appeal at that time.
I was not referred to nor have I found any authority which is on all fours with the present case. The appeals in the Commission deal in the main with the question whether an appeal may be brought against a particular decision rather than whether the failure to bring an appeal against a decision while awaiting a final determination is out of time. As Acting Deputy President Snell noted in Maricic v Medina Service Department Pty Limited [2007] NSWWCC PD 196 (‘Maricic’) at [18], Deputy President Roche in Hawkins had concluded that a determination as to a deemed date of injury prior to referral to an AMS was an interlocutory matter. Deputy President Roche had said this at [44] in Hawkins:
“The finding has not determined the parties’ rights or whether the Respondent Worker is entitled to compensation, as would be the case if a determination had been made on an issue such as injury, worker or substantial contributing factor.”
In Maricic Acting Deputy President Snell determined that an award for the respondent (employer) in respect of an injury to the worker’s neck and left shoulder was final. This is, it seems to me, merely an illustration of the principle that a determination against a worker on an issue such as injury, worker and the like is final, whereas a determination against the employer on such an issue may not necessarily be so.
In All Australian Greetings Pty Limited v Houghton [2007] NSWWCC PD 236 Acting Deputy President O’Grady held that a referral by an Arbitrator to an AMS for assessment of permanent impairment where the employer disputed that the worker continued to experience incapacitating effects of injury was interlocutory on the basis that the matter would have to be returned to the Arbitrator for a final decision after the MAC had issued.
In the High Court and the Court of Appeal the determination that a decision sought to be appealed from is interlocutory means that leave to appeal is required rather than being as of right. In the Commission every appeal under section 352 of the 1998 Act is by leave, however, the practice has been , so far as I am aware, to grant leave as a matter of course provided the thresholds prescribed in section 352 are met.
In South Western Sydney Area Health Service v Edmonds 2007 NSWCA 16 (‘Edmonds’) McColl JA, who delivered the leading judgment, considered that leave to appeal to the Court of Appeal was required in the case of a preliminary finding by an Arbitrator of injury and the deemed date of that injury. The appeal to a Presidential member against these findings had not been successful. Her Honour held both decisions were interlocutory. Deputy President Roche in Hawkins noted that no reference had been made by her Honour in Edmonds to clause 200B or the objectives of the Commission as set out in section 367 of the 1998 Act. Nor, I would add, was the point required to be argued since the appellant sought leave to appeal and did not claim to have an appeal as of right. He saw nothing inconsistent with the views he expressed in Hawkins in the Court of Appeal’s decision in Edmonds. I note that clause 200B is expressed to be for the purposes of section 352(8) of the 1998 Act only while appeals to the Court of Appeal are governed by section 353 of the Act. Although it is not necessary to decide the point I doubt that the term ‘interlocutory’ when used in section 352(8) has a more restricted meaning than when it appears in section 353(4)(a).
I note that the COD of 9 February 2007 which is set out at [28] makes reference to the employer not being at liberty to dispute liability for lump sum compensation only. It may be instructive to consider whether, had an appeal been sought to be brought from such decision, leave to appeal could have been granted. Strictly speaking, this COD entered an award in favour of the employer and WorkCover. No liability was imposed by it. True it is that the COD does record the agreement of the employer to the referral of the claim to an AMS and that the employer and, presumably, WorkCover are not at liberty to dispute liability for lump sum compensation. There was not, following the MAC after the appeal to the MAP, any such liability. The phrasing of the Certificate of Determination does appear to me, with respect, to be somewhat inaccurate and of doubtful legal effect so far as the claim for weekly payments is concerned. I doubt that, if the employer had sought to appeal following the COD of 9 February 2007, leave to do so would have been granted because the monetary threshold would not have been met.
I have come to the conclusion that the Application to Appeal lodged on 30 July 2007 was filed within time, that is, within 28 days of the COD of 2 July 2007 which determined the claim for weekly compensation. The earlier COD did not, it appears to me, determine that claim and may, in my opinion, so far as weekly compensation is concerned, be considered as interlocutory only.

FRESH EVIDENCE

No formal application was made to admit fresh evidence however, a statement of Ms Bull, the employer’s solicitor, dated 30 July 2007 is attached to the Application to Appeal. A statement dated 5 March 2007 in identical terms, but with a slightly different format, was lodged with the Commission on 23 March 2007 with an application to admit late documents. This dealt with what happened at the teleconference. So far as I can see this statement was not relied on by counsel who appeared at the arbitration hearing on 6 June 2007. At the hearing of the appeal I indicated that I would receive that statement as evidence of what occurred at the teleconference on 9 March 2006. There is no transcript of what was said at the teleconference.

SUBMISSIONS, DISCUSSION AND FINDINGS

The employer disputed that she had abandoned her reliance upon the matters which had been raised in her Reply by consenting to the assessment of permanent impairment being referred by the Arbitrator to an AMS. The Arbitrator clearly had no recollection of what had occurred at the telephone conference as will be gathered from the statement of his reasons which I have set out at [22]. At the hearing on 5 February 2007 counsel for the employer alone stated he had any instructions as to what had happened at the telephone conference of 9 March 2006 and that was substantially in accordance with the statements of the employer’s solicitor who stated that she had notes made contemporaneously with the teleconference. These were to the effect that although liability and causation were canvassed at length the Arbitrator gave leave to issue directions for production and suggested that the section 66 claim be referred to an AMS. She denies that she at any time conceded liability on behalf of her client.
On behalf of the worker, it was submitted that the Arbitrator had not recorded, following the telephone conference, that the employer had raised the issue of injury or the application of section 9A of the 1987 Act as needing to be determined. It was also submitted that the granting of leave to the employer to issue directions for production was not inconsistent with what the Arbitrator had found, namely that the employer had conceded liability. It was said that the documents could have relevance in relation to the worker’s pre-existing injuries or conditions.
At the hearing of the appeal I made available to counsel a copy of a document headed ‘Telephone Conference Arrangements and Outcomes’ which was completed by the Arbitrator on the date of the teleconference and to which he referred on 5 February 2007. As I have earlier noted, the issue said to have been resolved was that of treatment expenses, the claim for which was discontinued. There is no specific mention of the question of liability being conceded by the employer such as I would expect to have happened if there had been such concession. It seems unlikely to me that the employer’s solicitor, having disputed liability and having obtained leave to obtain documents which might bear on that liability, would have conceded that there was such liability. I accept the employer’s solicitor’s evidence as to what occurred during the teleconference. The most it appears to me that the employer did in this case was to consent to the assessment of permanent impairment being referred to an AMS. Almost a year later, after examination and report by the AMS and a further MAC after the medical appeal was determined, the Arbitrator concluded that the employer must have conceded liability before the matter was referred to an AMS since that was in accordance with his practice. This conclusion is, it appears to me, unsatisfactory and if, which I do not believe to be the case, the employer had impliedly conceded liability, then, at a later stage she was at liberty to withdraw that concession. However I do not think that the employer ever made such concession and I consider that the Arbitrator’s conclusion that she had is incorrect. The employer therefore, in my view, is entitled to argue such matters as are open on the evidence and which the employer has raised in the Reply filed in the proceedings.

REDETERMINATION

Having found that the Arbitrator erred in law, and with a view to avoiding any further delay by reason of the remitter of this matter to an Arbitrator for determination, I advised counsel on the appeal that I intended to determine the matter myself in accordance with section 352(7) of the 1998 Act, unless counsel could persuade me that for some reason this should not be done. The employer’s counsel indicated that he wished to cross-examine the worker and also wished to rely on a statement from the employer which had not been lodged in relation to the worker’s employment. Regarding cross-examination of the worker, I indicated that the necessity for this would need to be demonstrated (see Aluminum Louvres & Ceilings Pty Limited v Zheng [2004] NSWWCCPD 26 and [2006] NSW CA 34 at [37]) and Electrolux Home Products Pty Limited v Richey & Email Limited [2006] NSWWCCPD 242). If the purpose of the cross-examination were merely to put matters to the worker which were contained in documents obtained by directions for production, then I informed counsel that in my view this was not necessary in the Commission in order to comply with the rule in Browne v Dunn (1893) 6 R 67 (as to which see Prestige Property Pty Ltd v Rafiq [2006] NSWWCCPD 355 and Formica v D J Batchen Pty Limited [2007] NSWWCCPD 5). Counsel for the employer could not put the need to cross-examine the worker at anything higher than that. So far as the statement from the employer is concerned, this ought to have been lodged with the Commission at a much earlier time and the Application to Appeal makes no reference to any further evidence from her. In its Reply, WorkCover has attached a statement of the employer dated 28 May 2002 as well as her Report of Injury dated 16 February 2002 and her reply to a Notice served by WorkCover on her pursuant to section 141(2) of the 1987 Act. I do not consider that the interests of justice require that the matter should be remitted to an Arbitrator for hearing afresh in order that the worker might be cross-examined, if the Arbitrator thought fit to permit this, or so that a further statement from the employer might be relied on.

Since the Arbitrator did not deal with the question of liability of the employer and I propose to do so, it is necessary to review all of the evidence which bears on this matter.

Factual Evidence

The worker gave a statement to the police on 1 January 2002. He gave a detailed account of the event to which I have referred in summary form at [2].
There was also a statement of Royce Anthony Tory who was employed at the hotel as a bartender/kitchen hand on the day in question. That statement corroborates the account of events given by the worker. Significantly, he said that the thing which he most remembered was the worker re-entering the building in tears, obviously affected by the result of the incident which took place. Mr Tory also notes that a group of people involved “gestured in a menacing tone that they would ‘get the manager after work’”.
In the worker’s claim form submitted to WorkCover and dated 21 February 2002, he described the injury as follows:” Held up & threatened by a group of guys during robbery working as hotel manager.” He described his condition as “trauma induced symptoms include anxiety attacks, insomnia, mood swings, accelerated heart rate, excessive sweating, nervous twitches, loss of appetite”. He denied that he had any such complaints prior to the event in question.
The worker gave a statement to an investigator instructed by WorkCover on 15 May 2002. Relevantly, he said that he had a previous workers compensation claim after he was shot in the street while walking home from his work at the Crest Hotel, Kings Cross on 15 September 1988. There had been a fight on the other side of the street between some other people and a shotgun had been discharged as a result of which he had been accidentally shot in the right shoulder. He also sustained a graze to the right side of his head. He made a workers compensation claim which was settled and also made a claim through the Victims Compensation Tribunal. He said he had been at the Crest Hotel for four years until he was injured and he then moved to Coonabarabran. He then worked at another hotel at Kings Cross for two and a half years until June 1994. He was then employed by the employer and her husband Hugh Savage at the Crown Hotel, Surry Hills. He then worked at the Paddington Inn for nine months before travelling around Australia. He worked at the Crown Hotel again from August 1996 until January 2001. He then worked at another hotel at Bexley managing the bottle shop. While working there he was locked in the coolroom on one occasion while thieves ransacked the bottle shop. He said the whole thing took about 30 seconds. He did not make a claim in respect of this and did not have any time off work. Shortly afterwards the employer offered him a job which he took up and he began working for her on 17 May 2001.
He said that following the events of 1 January 2002 he went home “pretty much in shock”. He went straight to bed and stayed there for about a week. He said he did not feel like eating and he then saw a doctor who gave him a medical certificate. Relevantly, the worker said this (at page 11, paragraph 72):
“I believe that the whole robbery and lack of support I have received from my employer is the cause of my current condition. It is probably a build-up from all three incidents over the years and has hit me. But I was very upset at the incident that occurred on 1 January 2002 and that is the main cause of why I feel the way I do now.”
He went on to say that straight after the incident when he couldn’t get out of bed he thought it was like paranoia and he could not face anybody and could not actually sleep at that time. He was concerned that the persons who made the threats were going to come to his house. He kept expecting something to happen to his family or himself. Immediately after the incident his doctor put him on anti-depressants and also gave him sleeping tablets which he said did not work. He said he was losing weight and had only about one meal a day and had no appetite. He would wake up at all hours of the night with nightmares. He also complained of “the shakes” and he said he had been taken off all medication.
The Employer’s Report of Injury to which I have earlier referred was completed on 16 February 2002. In relation to previous related injuries she has recorded: “Has had this happened 3 times before 1988 – shot, 2000-2001 x 2.” In response to the question whether she believed that it was a genuine claim she has written “no” and has added “This is the 3rd or 4th armed or threat of armed robbery. He was shot in Kings Cross in ‘88, Bexley Hotel in 2000&2001. He had no counselling at all. He was trying for victims compensation as he had in ‘88”. A similar comment is made in the employer’s response to the WorkCover Notice dated 31 May 2002.
The employer gave a statement to WorkCover dated 28 May 2002. She said she first met the worker seven years before when he was employed at the Crown Hotel as a bartender. She had employed him at the Thurless Castle Hotel on 17 May 2001. She made reference to the worker drinking while on duty. She had been on holidays on 1 January 2002 and had determined to sack the worker when she returned for a number of reasons. The employer makes certain allegations concerning the worker and discrepancies in the TAB accounts. She also said the following (at page 6, paragraph 40):
“This is not the first time that the worker was involved in a hold up. In 1988 at the Ritz Hotel he was in an armed hold up where he was shot. I believe he got a compensation payout for that. In about 2000/2001, while at the Bexley Hotel he was involved in two armed hold ups and did not suffer any stress.”
She expressed the view that the claim was not valid and she had not seen any reports from any counselling that the worker was supposed to have had. She had had difficulty communicating with him and she thought that the worker blamed her for the occurrence in question.

Medical Evidence

All of the doctors referred to below are psychiatrists apart from Dr Cooper. Dr Dinnen saw the worker at the request of MBP Legal Service on 13 August 2002. The worker told him about the incident in 1998 when he “copped a stray pellet”. Following this he was admitted to St Vincent’s Hospital for surgery. He also told Dr Dinnen that he had been robbed once before while working at the Bexley North Hotel and on that occasion he was locked in the cool room for about five minutes. He was pretty shaken up after that incident but no counselling was suggested. He said he had left the hotel not long after that. He said he was “pretty nervous for a while but thought it had settled over a couple of months”. He had had a troubled and unsettled childhood and several of his relatives had criminal histories.
Dr Dinnen’s conclusion was that the worker had significant longstanding personality problems warranting the diagnosis of personality disorder, but that was a secondary and underlying aspect of his presentation. He thought the history given was consistent with the diagnosis of an anxiety reaction, which he thought was an adjustment disorder with anxiety, consequent on the robbery at the hotel in January that year. Previous traumatic experiences would, he thought, have contributed to the level of psychiatric disturbance. He thought the condition was gradually improving and the prognosis was favourable. He thought however that he would continue with some degree of ongoing chronic anxiety given his personal history and the circumstances of the robbery and recent events prior to it.
Dr Akkerman saw the worker at the request of WorkCover on 28 June 2005. He had earlier seen him in 2002, however, no report from that examination has been relied on. He noted that in his previous report dated 13 June 2002 he diagnosed the worker with major depression which he thought he developed as a consequence of his employment. He did however think that the worker could work outside the hotel industry. The doctor expressed the opinion that the worker’s employment was a substantial contributing factor to the injury and thought that the employment contributed 60% to his current condition and childhood experiences 40%. I have already set out Dr Akkerman’s views as an AMS at [16] and those of the MAP at [19].
Dr Barlow prepared a report for WorkCover on 29 July 2004. The worker described his troubled childhood but denied any problems prior to 1 January 2002. The doctor’s opinion was that on the balance of probabilities the PTSD (post traumatic stress disorder) and depressive symptoms were causally related to the incident of 1 January 2002. He was well prior to that but had ongoing symptoms since that time. She thought that a previous incident in 1988 when he was shot as an innocent bystander did not result in significant ongoing problems. A later report from Dr Barlow deals with her opinion as to his capacity to work.
Dr Lambeth saw the worker at the request of his solicitors on 13 April 2005. That doctor’s diagnosis was that the worker was suffering from post traumatic stress disorder and severe and major depression both of which were described as chronic and severe. He thought that the worker’s employment and the assault which took place during such employment was the principal cause of the development of psychological disorders and that his employment had been the substantial contributing factor to such disorders. He did not think that there was anything in the past to indicate a particular disposition to psychological disorder. The statement that there was nothing significant in the family history is at variance with what other doctors have recorded.
Dr Vickery saw the worker at the request of WorkCover on 6 October 2005. He told that doctor he had had three months off work in 1988 when he was shot in the shoulder. The account given to the doctor about the worker’s personal history appears reasonably accurate. That doctor’s opinion was that there was no diagnosable psychiatric disorder and no permanent impairment. He thought the worker was fit for pre-injury employment but he chose not to work in the alcohol industry because of the inherent risk involved. He did not think there was clinically significant PTSD or major depression.
The worker’s treating medical practitioner, Dr Cooper, reported on 2 February 2006. He had been treating the worker since June 2003. He considered that the worker still suffered from PTSD. He was then coping better than he had in the past but continued to avoid crowds, social situations and family gatherings. His mood remained depressed. Dr Cooper thought that the worker’s condition was related to his previous employment, the robbery being a “major stressor”.

Documents Produced pursuant to Directions for Production

The employer relied on the documents which had been produced by the Victims Compensation Tribunal, the District Court on the behalf of the Compensation Court of New South Wales and St Vincent’s Hospital.
An application was made to the Victim’s Compensation Tribunal by the worker on 8 February 1990. The injuries claimed are orthopaedic only and the disabilities which are alleged relate to such injuries. The worker’s statement of 17 October 1988 was attached. In this he included in his statement of disabilities “nightmares, difficulty in sleeping and nervousness in walking down the street”. Police Constable N. Scully furnished a letter dated 12 February 1992 in which he said he had known the worker for a number of years. Prior to the incident in question he had been a “happy go lucky type of character”. He was actively involved in a number of sports and as a result of the incident in question, he said, the worker had become very withdrawn and had left Sydney due to his fear of crowds, moving to Coonabarabran. The Victims Compensation Tribunal made a payment in the sum of $10,062.00 in July 1992 of which $10,000.00 was general damages and $62.00 was expenses.
A claim for victim’s compensation was made by the worker consequent upon the injury in question on 1 January 2002. The documents from the Victim’s Compensation Tribunal include a report of a psychologist, Dr Heitmeyer. Her view was that the worker’s current symptoms developed as a result of the robbery of 1 January 2002. The documents also include police records which support the worker’s account of events.
An Application for Determination was lodged with the Compensation Court of New South Wales on 5 October 1990, matter No. 9987 of 1990, seeking weekly compensation and lump sum compensation pursuant to sections 66 and 67 of the 1987 Act. The injury was described as:
“Gunshot entry wound to the right shoulder with no exit wound visible. Graze to his right temple scalp. Fragment in right shoulder joint. Small fracture of the greater tuberosity region of the right humerus.”
The loss of use of the right arm was referred to a medical panel under section 51(4) of the 1987 Act and an assessment of 20% loss was made on 23 November 1990. On 30 May 1991 there was an award made by consent in respect of 20% loss of use of the worker’s right arm, together with the sum of $12,500.00 pursuant to section 67. There are reports from Dr Stratton, an orthopaedic surgeon, dealing with the worker’s right shoulder injury.
A Discharge Summary of St Vincent’s Hospital addressed to Legal Aid Commission of New South Wales was dated 28 November 1988. The worker was admitted on 15 September 1988 with a history of having been accidentally shot while walking along the streets of Kings Cross. There was a gunshot entry wound to the right shoulder but no exit wound visible. There was also a graze to his right temporal scalp. Exploration was carried out and a fragment was removed from the right shoulder joint. He was discharged on 20 September 1988 and reviewed at the fracture clinic on 10 and 24 October 1988 when the wound was healing well.
The employer raises three matters which it is said bear on liability to pay compensation to the worker. They are:
· whether the worker suffered an injury;
· whether the worker satisfied the provisions of section 9A of the 1987 Act;
· the application of section 22 of the 1987 Act.
These matters all relate to the workers prior mental state and in particular the effects of the 1988 shooting and the incident at the Bexley Hotel in 2001. The arguments overlap to some extent and it is convenient to deal with the first two matters together.

Injury and section 9A

In relation to injury it was submitted that although it might be conceded that some event occurred on 1 January 2002, nonetheless the connection between that event and the worker’s subsequent psychological condition was not established. On my reading of all of the medical reports and the lay evidence which I have summarised and with which I will deal when considering section 9A there is no substance in this submission. I am satisfied that the worker suffered a psychological/psychiatric injury on 1 January 2002 as a result of events at work on that day.
Section 9A(1) provides as follows:
“No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.”
In sub-section (2) which follows, a number of examples of matters are specified of which it was conceded by the employer the only matter relied on by her was (e) ‘the worker’s state of health before the injury and the existence of any hereditary risks’.
The provisions of section 9A have been considered by the Court of Appeal in a number of cases. The effect of section 9A has been recently stated by Einstein J in Murray v Shillingsworth [2006] NSWCA 367. Referring to an earlier decision of the Court of Appeal in Mercerv ANZ Banking Corporation Limited (2000) 48 NSWLR 740 (‘Mercer’) his Honour said at [56] the following:
“The decision in Mercer establishes the following propositions:
i.that section 9A itself casts considerable light upon its own scope, vide:
·Subsection (2) offers non-exhaustive examples of matters capable of being taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury.
·Subsection (3) mentions two matters that are not determinative.
·Subsection (4) excludes journey claims (s10), recess claims (s11) and claims by trade union representatives (s12).
·There may be more than one substantial contributing factor to an injury. [Section 9A(1) speaks of ‘a substantial contributing factor’ and not ‘the substantial contributing factor’].
·The word ‘substantial’ qualifies ‘contributing factor’, thereby indicating that it is the strength of the causal linkage that is in question.
(at [15] – [17])
ii.that:
·the words ‘employment concerned’ in s9A reinforce the view that it is the work activity in which the worker was engaged at the time of injury that is relevant.
·The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that it is the concept of ‘a substantial contributing factor to an injury’ is exegeted in subsections (2) and (3) of s9A.
(at [22])
iii.that: the term ‘substantial’ may have various shades of meaning. Having regard to the context, it may mean ‘large or weighty’ or ‘real or of substance’ as distinct from ‘ephemeral or nominal’.BULLET POINT
(at [26])
iv.that:
·no error was disclosed in an acceptance by the trial judge in Mercer that the meaning to be adopted was that ‘substantial’ meant ‘more than minimal, large or great’ [it being important to remember that the word is used in a relative sense, and recognising that other causative factors may be present].
·section 9A does not require that the employment must be ‘the’ substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition
(at [27])”
The argument concerning section 9A was limited as I have earlier indicated and I am not asked by the employer to consider all of the matters to which section 9A refers. It is clear on the evidence, in my view, that the worker was doing his work as a bar manager when the events of 1 January 2002 took place and the resultant injury arose out of such employment. That alone is not enough to satisfy section 9A (section 9A(3)(a)). The argument by the employer is that the worker was predisposed to injury by his prior lifetime experiences and injuries. It is clear that the worker himself attributes his psychological reaction following the events of 1 January 2002, in part, to the prior events to which I have earlier referred. Nonetheless the preponderance of the medical evidence appears to me to clearly establish that the employment concerned was a substantial contributing factor to the worker’s injury. I do not accept the views expressed by Dr Akkerman in his MAC, both because they are inconsistent with his earlier medical report and also because the MAP had revoked that certificate and issued a new certificate. I do not accept the opinion of Dr Vickery that the worker had no clinically significant psychiatric condition since that opinion is at variance with that of all other psychiatrists. The employer’s own evidence in her statement of 28 May 2002 was that the worker did not suffer any stress following the alleged two armed hold ups at the Bexley Hotel. There were some psychological/psychiatric symptoms documented following the shooting in 1988 however there is no evidence that these had continued up to 2002. The worker’s resumption of work in hotels for a number of years after 1988 suggests that the non orthopaedic complaints made in the earlier Victims Compensation Tribunal proceedings had ceased to trouble the worker. It is not necessary that such employment should be the substantial contributing factor to such injury. The fact that the worker may have had a predisposition to injury does not mean that the requirements of section 9A cannot be satisfied. The onus of establishing that the employment was a substantial contributing factor to the injury is on the worker and, in my view, that onus has been satisfied.

In the written submissions in support of the Application to Appeal the employer asserts that the worker’s level of impairment was not entirely due to circumstances of the injury in question and also states that the worker’s stated health prior to the incident is a factor to consider when assessing whether his employment was the substantial contributing factor in his alleged level of impairment. It is clear that section 9A requires that employment be a substantial contributing factor to the ‘injury’ not the level of impairment. The submission appears to me to misstate what is required by section 9A.
Neilson J in Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725 at 733 said the following:
“However as I read s9A the employment must be a substantial contributing factor to the event causing the injury; that is to the receipt of the injury, rather than to be a substantial contributing factor to the ongoing incapacity.”
I would respectfully adopt what was said by his Honour on that occasion as representing a correct statement of the law and I find that Mr Moore’s employment with the appellant was a substantial contributing factor to his injury within the meaning of section 9A.

Section 22

The submission was made that if the employer was liable to pay compensation then her liability should be reduced by apportionment to other employers because of other work-related injuries. Such employers had not been joined in these proceedings and in my view this suggested operation of section 22 would be productive of considerable mischief. The submission placed reliance on the word ‘apportioned’ in section 22 and appeared to ignore the provisions of section 22A(9) which provides as follows: “The operation of section 22 is not to be limited because of the fact that it provides for liability to be apportioned rather than providing for payment of contributions”. I inquired of counsel as to whether he could refer me to any authority which would support the course which he suggested should have been taken pursuant to the terms of section 22. He could not do so. I am not aware of any such authority and the submission is contrary to my understanding of the way in which the section operates.
The liability for weekly payments is imposed by section 33 of the 1987 Act which is as follows:
“If total or partial incapacity of a worker results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
Section 22 was considerably amended over a period and had a chequered history in the Court of Appeal, in part, from the use of the term ‘apportioned’ in that section. It was not until the decision of that court in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87 that section 22 was acknowledged to have the effect which Parliament may be thought to have intended for it. The leading judgment in that case was given by Clarke JA with whom Priestley JA and Hunter A-JA agreed. His Honour said at 97 and 98:
“… I do not think that there is any impediment to my acceptance of the view that the common law test applies and that the relevant inquiry directs attention to whether the injury caused or materially contributed to the incapacity.”
His Honour went on to say the following at 99:
“It follows that I agree with Burke CCJ’s conclusion [in Wilson v Blayney Abattoir County Council (1995) 12 NSWCCR 509] that a trial judge’s initial task is to determine the liability of an employer or employers to pay compensation to a worker. If the worker satisfies the test in a case where there are a number of work injuries and apportionment is sought the trial judge is then to apply the s22 test and that test will be satisfied if incapacity resulted partly from one injury (presumably the injury which led to the finding under s33) and partly from another or other injuries. While, therefore, I disagree with Burke CCJ in his description of the primary test of causation I do agree with his view that there is a two-stage process of when apportionment is sought.”
Thus, in my view, the whole of the liability falls upon the employer when relevant injury is found and the provisions of section 9A and section 33 are satisfied. It would be open to her to seek contribution from other employers however this, in my view, does not affect the entitlement of the worker to receive compensation in full from her. I express no view as to the likelihood of such claims for contribution succeeding

DECISION

There being no appeal in respect of the quantum of compensation awarded and for the reasons which I have given in this decision, I confirm the decision of the Arbitrator dated 2 July 2007 as amended by the Amended Certificate of Determination dated 14 November 2007.

COSTS

The appeal has, in the final result, been unsuccessful and, accordingly, in my view, the employer should pay the costs of the worker. I note that WorkCover appeared and supported the appeal however I do not think that any costs order should be visited on it, however, I do not order that the employer pay WorkCover’s costs of the appeal.

Anthony Candy

Acting Deputy President
29 February 2008

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

ASSOCIATE