Michael Badaoui v Email Limited
[2003] NSWWCCPD 6
•7 March 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________
| CITATION: | Michael Badaoui v Email Limited [2003] NSWWCCPD 6 |
| APPELLANT: | Michael Badaoui |
| RESPONDENT: | Email Limited |
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited |
| FILE NO: | WCC1100-2002 |
| DATE OF DECISION: | 7 March, 2003 |
| PRESIDENTIAL MEMBER: | Deputy President Gary Byron |
| DECISION UNDER APPEAL: | The Respondent is not liable for the payment of the Applicant’s claim under s 60 of the Workers Compensation Act 1987 |
| DATE OF DECISION UNDER APPEAL: | 30 December, 2002 |
| HEARING: | Determined on the Papers |
| REPRESENTATION: | Appellant: Lamrocks Solicitors and Attorneys |
| Respondent: Hicksons Lawyers | |
| ORDERS MADE ON APPEAL: | The Appeal is not allowed. The decision appealed against is confirmed. No order is made as to costs. |
THE APPEAL
On 26 July, 2002 the Applicant, Michael Badaoui (“the Appellant”) lodged with the Workers Compensation Commission (“the Commission”) an ‘Application to Resolve a Dispute’. Mr Badaoui claimed that he suffered a total incapacity for work as a result of an injury that arose out of and in the course of his employment with Email Limited (“the Respondent”), as a storeman. The insurer in this matter is Allianz Australia Workers Compensation (NSW) Limited (“the Insurer”).
The Appellant’s claim is that he suffered injury to his lower back on 29 June, 1990 when employed by the Respondent. He pulled a stack of storage bins towards himself while moving storage bins from the packing area in which he was employed, but more specifically, he says in his statement of 10 January, 2002: “In about 1991 I sustained an injury to my low back. I was bending over to pick up a heavy compressor when I felt pain in my low back.” On the same day he made a claim for compensation and supported this with medical certificates dated 29 June, 1990, 2 July, 1990 and 23 July, 1990. He was absent from work, supported by a medical certificate, betweeen 29 June, 1990 and 9 July, 1990.
Since the time of that injury, the Appellant states that he has experienced episodic periods of niggling problems with his back. According to the Appellant, these recurrent niggling problems were not exacerbated or precipitated by any particular event or factor.
The Appellant sought and received further medical treatment from about March, 2001 for recurrent lower back pain which had then become associated with symptoms of bilateral sciatica. He informed the Respondent, his employer, that he had experienced this recurrence on 12 April, 2002. He lodged a claim with the Insurer for medical, hospital and rehabilitation expenses in the sum of $17,500. Following a denial of liability by the Insurer, the Appellant lodged the Application to Resolve a Dispute with the Commission, on the date stated above.
The dispute duly came before the Commission constituted by an Arbitrator and was determined without holding any conference or formal hearing, that is, on the papers, pursuant to section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (“the Act”), with the agreement of the parties. On 30 December, 2002 the Arbitrator determined that the Respondent was not liable for the payment of the claim under s60 of the Workers Compensation Act 1987 (“the 1987 Act”). Each party was ordered to pay their own costs.
On 24 January, 2003 the Appellant appealed against the decision of the Commission constituted by the Arbitrator by the lodgement of a completed document, ‘Appeal Against Decision of Arbitrator’. Certain Directions were issued by the Commission on 30 January, 2003 and were duly complied with.
Each of the parties submitted that this appeal could be determined on the papers and I agree with those submissions. All of the documents and other information that was available to the Arbitrator, in addition to the further written submissions and material provided by the parties, are the subject of the consideration of this appeal.
THE ISSUES IN DISPUTE
The issues in dispute between the parties according to the Arbitrator are set out in her Reasons for Decision and are substantially as follows:
(1)Whether or not an injury sustained by the Appellant on 29 June, 1990 arising from or in the course of his employment was a minor injury that was fully resolved and is unrelated to the Appellant’s current condition.
(2)Whether the Appellant’s employment with the Respondent was a substantial contributing factor to his current injury and whether there is a causal nexus between the first injury that was received on 29 June, 1990 and the current injury which occurred in 2001/2002.
(3)Whether the expenses claimed under section 60 of the 1987 Act were necessary as a result of an injury received by the Appellant within the meaning of the Act.
(4)Whether the claim for compensation has been “duly made” by the Appellant as they were not itemized until after the commencement of the proceedings, and whether an order under section 60 of the 1987 Act may be in specific terms, there being insufficient evidence for the Commission to be satisfied that the expenses are consistent with those payable under WorkCover provisions.
The Arbitrator noted at the conclusion of paragraph 6 of her Reasons for Decicision that the Appellant had filed a list of medical, hospital and rehabilitation expenses and associated costs that are in dispute; that a section 60 claim for $17,500 was sought in the original application, and that a list of expenses totalling $11,537.18 was filed with a statement from the Applicant but was served out of time “in respect to Section 290(sic) of the (sic)Workers Compensation Rules 2001”.
JURISDICTION TO HEAR THE APPEAL
Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the Act’), as follows:
352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state the reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(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.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The Arbitrator’s decision was made on 30 December, 2002 and the Certificate of Determination was issued on the same date. The appeal was lodged within 28 days of that decision, that is on 24 January, 2003, in compliance with section 352(4) of the Act.
Section 354(6) of the Act provides:
354 Procedure before Commission
(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.
Having regard to President’s Direction Number 1 of 2002, the comprehensive submissions that have been made by both parties, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined “on the papers”, 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 of this matter.
Submissions have been made with regard to the question of leave to appeal and this issue is addressed and determined hereunder.
SUBMISSIONS
The Appellant filed a number of “grounds of appeal” that may be summarised as follows:
(1)The Arbitrator, having indicated that she was satisfied with documentary evidence including the Applicant’s (Appellant’s) statement, and did not require oral evidence, and then having ultimately rejected the Applicant’s statement, constitutes a denial of natural justice (grounds a and b).
(2)The Arbitrator misdirected herself as to the application of Section 9A of the 1987 Act in the determination of the proceedings (ground c).
(3)The Arbitrator misdirected herself as to the contents of the notes of Dr. Hamad (ground d).
(4)The Arbitrator rejected the views of the only medical practitioners who expressed an opinion as to causation between the injury relied upon and the necessary surgery, namely the treating neurological surgeon Dr. Mark Dexter and the consultant orthopaedic surgeon Dr. J. Brian Stephenson, whereas she ought to have found in terms of their findings as their opinions are based on “histories records in their reports, being histories consistent with the contents of the statement of the applicant tendered in the proceedings” (grounds e and f).
(5)It was not open to the Arbitrator in the circumstances to reject the Applicant’s application based on clinical notes upon which she based medical conclusions as opposed to medical conclusions contained in medical reports (ground g).
In support of the grounds of appeal the Appellant made a number of submissions that may be outlined as follows:
(1)The salient evidence before the Arbitrator was the Appellant’s statement. His uncontested evidence was that while working for the Respondent he had ongoing difficulty in lifting and bending that was required in the job. After leaving the employ of the Respondent in 1993 he was engaged in various jobs and experienced ongoing problems with his back. He avoided manual labour, lifting or bending. His lower back has become gradually worse. The Appellant claimed that at the time of the original injury he had tingling from the low back mainly into his left leg.
(2)The General Practitioner’s notes before the Arbitrator show that early investigation consisted solely of x-rays that revealed no bone injury. However, the first CT scan taken in March 2001 demonstrated a number of protrusions of various degrees.
(3)The report of Dr. Dexter appears to provide an accurate history in support of the Appellant’s statement that was before the Arbitrator. That history is undisputed and Dr. Dexter finds that the Appellant’s condition and the need for surgery and medical treatment is causally related to the injury sustained in 1990.
(4)The report of Dr. Stephenson reveals that the Appellant suffered recurring back pain which can “affect him for one or two weeks, a pain moving up the back or down the left leg.” It is submitted that Dr. Stephenson records that the Appellant has resigned himself to the condition and lived with it until last year when he suffered a significant episode without a precipitating event. Dr. Stephenson concludes that the complaints and incapacity are reasonably and directly the result of the alleged injury in 1990.
(5)The Arbitrator totally misdirected herself as the application of section 9A of the 1987 Act in that this section has no bearing on the matter whatsoever. There would appear to be no basis upon which the Arbitrator could conclude that the medical services were not reasonably necessary for the compensable injury.
(6)The Arbitrator appears to have relied heavily on the finding by Dr. Hamad of no neurological symptoms, as disclosed in the notes. It is submitted that this may mean that there was no frank neurological disturbance such as muscle wasting or reduced straight leg raising or absent ankle or knee jerks on testing. Those findings are not inconsistent with the existence of a disc lesion.
(7)The Arbitrator appears to have been significantly influenced by the fact that there were so few attendances on the general practitioner over the years. This was not put to the Appellant when it was decided to deal with the matter on the papers. It is submitted that the Arbitrator was bound to accept the Appellant’s statement which is consistent with the histories taken by the medical practitioners, in which it was universally concluded that there was an association between the Appellant’s condition and the injury sustained in 1990.
(8)The order of the Arbitrator should be overturned and the Commission should find that the Appellant’s medical and related expenses of $11,537.18 were reasonably necessary for the compensable injury, and that the Respondent should pay the Appellant’s costs as agreed or assessed.
The Respondent submitted that leave to appeal should not be granted and that the decision of the Arbitrator should be confirmed pursuant to section 352(7) of the Act.
The Respondent further submitted that the following facts were found by the Arbitrator:
(1)The Appellant suffered an injury to his back on 29 June, 1990 while employed by the Respondent, but the injury did not involve any neurological or radicular symptoms.
(2)The Appellant had about two weeks off work, received some treatment and returned to normal work after 9 July, 1990. The Appellant left the employ of the Respondent in 1993.
(3)The Arbitrator recounted a few attendances for treatment by his general practitioner, Dr. Hamad, up to September, 1993, but none betweeen 1993 and 2001.
(4)The Arbitrator found that in about March, 2001 the Appellant suffered another injury which involved neurological features and which led to surgery in May, 2002.
The Respondent made a number of specific submissions on the Appellant’s grounds of appeal and provided some supporting authorities.
As to grounds a and b – whether the form and content of a statement to be relied upon by the worker in the proceedings before the Commission constituted by an Arbitrator is sufficient, the Respondent submitted that this is a matter for the Applicant (Appellant) who bears the legal and evidentiary onus. The Arbitrator has the discretion to deal with the matter with reference to the documents filed or to require oral evidence. The Arbitrator dealt with the matter by reference to the documents and this was done pursuant to section 354 of the Act and the President’s Direction Number 1 of 2002. It was submitted that it is a fallacy to imply that because the Arbitrator decided to deal with the matter on the papers, then the Applicant must win. Contrary to what has been submitted, the Arbitrator did take the Applicant’s statement into account. Statements are not necessarily accepted simply because they are made and it is the task of the Arbitrator to evaluate them. The Respondent further submitted that “there are countless cases where a court is required to reach conclusions based upon a comparison, reconciliation and evaluation of the weight to be afforded to conflicting evidence without forming an impression as to the credibility of witnesses (c/f Chambers v Jobling (1986) 7 NSWLR 1 which also deals with the role of an appellate court in such a case).” Finally, it was submitted: “If the Applicant was correct in this challenge, then in each case determined on the papers without oral evidence, the Applicant must succeed or else there be found a denial of natural justice. Such a conclusion would run counter to the legislative intent to provide for efficient conduct of matters without the need for oral evidence.”
As to ground c – it is submitted that it is unclear as to how the Arbitrator completely misdirected herself as to the application of section 9A of the 1987 Act. It is sufficient if the basis of the decision is expressed by giving grounds for and not detailed reasoning in support of findings. The standard is affected by the nature of the tribunal: Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 147. The Arbitrator correctly referred to relevant decisions and noted that section 9A did not apply to the work injury of 1990 since it applied only to injuries occurring after the commencement of the Workcover Legislation Amendment Act 1996. Furthermore, the Arbitrator found as a fact that the real cause of the surgery that was carried out was the non-work related injury sustained in 2001. The finding that the real or substantial cause of the problems and need for medical treatment flowed from the 2001 injury, is well supported in law and logic. “The question to be determined is whether an injury was so connected with an Applicant’s incapacity or need for medical treatment that as a matter or ordinary common sense and experience it should be regarded as a cause of it: per Deane J in March v Stramare Pty Ltd 99 ALR 423 at 522.” The Respondent quoted McHugh J in this case at 439, thus: “It is still part of the law of this country that two causes may both be necessary preconditions of a particular result… yet the one may, if the facts justify that conclusion, be treated as the real, substantial, direct or effective cause and the other dismissed at best a cause … which does not in the sense material to the particular case, cause but is merely an incident which precedes in the history.” Correctly read, the Respondent submitted, the Arbitrator’s reasons assert that the provisions of section 9A could not be applied to connect the 2001 non-work injury’s effect to a right for compensation benefits. The Arbitrator did not link the 2001 injury, or the need for treatment, to employment injury with the Respondent, such employment having ceased in 1993, some seven or eight years previously. With regard to the words “results from”, Moffit P in Pickersgill v Freightbases Pty Ltd (1983) 3 NSWLR 117 at p 118 said: “The phrase imports some elements of proximity in the causative links between injury and incapacity. It imports some elements of precipitation. In the factual field the necessary proximity can normally be expected to be temporal.” It is much more likely that the injury sustained in 2001 was the cause of the problems and the consequent need for treatment than the 1990 injury. It is a question of fact to be determined, one factor being the issue of proximity. The Respondent conceded that the Arbitrator found that there were events of niggling problems over the years between 1993 and 2001 but there was no objective evidence of disability in that period. Moreover, there was no radiological evidence presented to show that any significant injury occurred in 1990. There were other reasons such as the duties of his post 1990 work and significant weight gain in the years before 2001 and it is submitted that these factors out-weighed the original injury as a reason or substantial contributing cause. The Respondent noted that no application was made by the Applicant to introduce new evidence to show that either the clinical records or radiological reports relied on by the Arbitrator were wrong or insufficient. The findings of the Arbitrator are findings of fact and not errors of law: Hope v Bathurst Council 144 CLR 1.
As to ground d – the Respondent submitted that it is not clear in what way the Arbitrator is claimed to have misdirected herself as to the contents of the notes of Dr. Hamad, as this was part of the evidence which the parties had placed before the Arbitrator.
As to grounds e, f and g – the Respondent submitted that the Arbitrator duly referred to the conclusions of Dr. Stephenson and considered all of the available evidence, including material that was not available to Dr. Stephenson or Dr. Dexter, in arriving at her conclusions. It is further submitted that the Arbitrator is not bound to prefer a particular medical opinion and that she had material to show that relevant matters had not been taken into account when medical opinions were being formed. In particular it is noted that in his report to Dr. Soliman dated 5 April, 2002, Dr Dexter states: “We once again discussed the natural history of the disc degeneration as well as the various treatment options available.” The Respondent submits that the decision of the Arbitrator was correct and the Appellant should pay the Respondent’s costs of the appeal.
DETERMINATION OF LEAVE TO APPEAL
The Appellant seeks leave to appeal in this matter while the Respondent has submitted that leave to appeal should not be granted. The objection to the grant of leave is not supported by specific argument on this aspect but goes to the merits of the claim and the substantive issues in dispute between the parties. I consider that leave should be granted having regard to the submissions and documentation before me. Jurisdictional requirements are satisfied as set out above. Moreover, the provisions of section 352 (1) and (2) are satisfied as this is an appeal in a dispute in connection with a claim for compensation; the amount of compensation at issue on appeal is at least $5000, and no monetary award having been made, the 20% threshold in section 352(2)(b) does not apply: (see Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5 at pages 6-10, and Ian John Sheridan v David Anthony Clarke trading as Freestyle Marine Sports [2003] NSW WCC PD 4 at pages 3-4, in relation to section 352(2)(b) and (8)).
Leave to appeal is granted.
DECISION
As outlined above, the appeal is comprised of the grounds of appeal followed by submissions that together, take issue with certain aspects of the proceedings, and address the substantive claim and the issues in dispute between the parties.
It is submitted by the Appellant that the Arbitrator, having indicated that she was satisfield with documentary evidence including the Appellant’s statement, did not require oral evidence, but then having ultimately rejected the statement, this constituted a denial of natural justice. Section 354(6) permits the Commission to determine the matter “on the papers” if satisfied that sufficient information has been supplied to it in connection with the proceedings. There is no indication that the Arbitrator went beyond the bounds of the section. At that point, the Arbitrator was not required to be, nor did she say that she was, satisfied as to the truth or accuracy of the contents of documents before her. The decision of the Arbitrator to consider and determine the matter on the papers does not automatically imply that the Arbitrator accepts without question the truth or accuracy of what is in the documents. Plainly, there may be conflict and inconsistency as between the contents of all of the various documents before the Arbitrator, as indeed there was in this case. The Arbitrator, in coming to her decision, subsequently did take the Appellant’s statement into account, along with the contents of the other documents, that together, comprised the “information” referred to in section 354(6). In other words, when dealing with the matter on the papers the Arbitrator was required to weigh up the contents and come to a decision in relation to the substantive dispute before her, and that is what she did. The parties agreed with the Arbitrator that the matter could proceed on the papers in accordance with the section. It was a matter for the Appellant to put to the Arbitrator that more evidence was required, if that was thought to be the case. Specifically, it was always open to the Appellant to seek to give oral evidence or seek to produce any other evidence in support of his claim. That was not done. It is clear that the Arbitrator exercised her discretion quite properly in this instance.
The Appellant further submitted that the Arbitrator misdirected herself as to the application of section 9A of the 1987 Act in the determination of the proceedings, as the section has no bearing on the matter. While what the Arbitrator said was not clearly expressed, she noted that section 9A did not apply to the work injury of 1990. She said ultimately, that the section could not be applied in this case to connect the 2001 injury and condition, and the need for treatment, with any right to compensable benefits. The Arbitrator’s view, based on the evidence before her, that the cause of the later injury was not causally related to work but actually developed and is to be found in other events, in the time following the cessation of the Appellant’s employment with the Respondent. The result is that the “causation link” between the two events was not established. While subparagraph xiv of paragraph 47 at page 15 of her Reasons for Decision could have been clearer, s 9A had no bearing on the substantive decision made.
The Appellant claims that the Arbitrator misdirected herself as to the contents of the notes of Dr. Hamad. This submission is not elaborated except that the Appellant states that the Arbitrator appears to have relied heavily on the finding by Dr. Hamad of no neurological symptoms, as disclosed in the notes. It was submitted that this “may” mean that there was no frank neurological disturbance such as muscle wasting or reduced straight leg raising or absent ankle or knee jerks on testing, these findings not being inconsistent with the existence of a disc lesion. In my view, this does not amount to a misdirection but is simply a consideration of a piece of evidence. Whether or not the Arbitrator was correct in her findings based on that consideration is another matter, but there is nothing before me to suggest that the Arbitrator’s treatment of this document amounted to an error in the exercise of her discretion to weigh the relevance and weight of the evidence in making her findings.
The balance of grounds of appeal and submissions by the parties relate to the documents in evidence before the Arbitrator and her findings and decision based upon that evidence. The documents are listed at pages 5 to 7 of the Arbitrator’s Reasons for Decision.
In his statement of 10 January, 2002 the Appellant stated that he injured his lower back “in about 1991” while at work. He said that he felt pain in his lower back at the time. He consulted his family doctor, Dr. George Hamad in Campsie and he was given a certificate “to be off work for a couple of weeks”. He went on to say that he received treatment at the time and underwent a CT scan. He said that the radiologist informed him that he would have problems with his back in the future. He has worked mainly as a service station proprietor and property developer since that time and claimed that has had “ongoing niggling problems with my back which periodically flares up for no reason”. He stated that his back was really bad in 2001 for no reason and he underwent a course of physiotherapy. He said that he could hardly move as he was in so much pain. The Arbitrator observed that there was no evidence before her that Dr. Hamad did in fact order a CT scan and no results from such a scan were produced in evidence. No neurological symptoms are recorded in Dr. Hamad’s notes. The Appellant experienced upper back pain some months after this, but there is no evidence that this was related to the lower back pain, for which he sought treatment, previously. In June 1991 the Appellant consulted Dr. Hamad once more as he was experiencing lower back pain as a result of playing squash. Once again, the Arbitrator noted that no neurological symptoms are recorded. Other notes from Dr. Hamad indicate a further episode of back pain on 27 September, 1993 when a scoliosis was found and x-rays were ordered. The results of those x-rays were not produced and no neurological symptoms are recorded. A further consultation with Dr. Hamad in 1999 was unrelated to back pain. The next consultation regarding lower back pain, according to the evidence produced, was with Dr. Soliman on 15 November, 2001. The Appellent underwent a course of examinations and treatment, including surgery following that initial consultation. The history of consultations is reflected in the documents on the file as are the details of deterioration in the Appellant’s lower back. All of this is referred to and considered in the Arbitrator’s Reasons for Decision.
Both Dr. Dexter and Dr. Stephenson in their reports of 4 April, 2002 and 14 October, 2002 respectively, attribute the cause of the Appellant’s condition to the injury sustained some 12 years before, while the Appellant was in the employ of the Respondent. However, as the Arbitrator states, Drs. Dexter and Stephenson relied to a great extent upon the Appellant’s own version of the origin and history of his injury and condition, in arriving at their conclusions. There is no evidence that they had access to a documented medical history or other relevant and independent records upon which they might have relied in order to reach this conclusion. Dr. Hamad, the Appellant’s family doctor, had no note of any radicular or neurological symptoms or any prescribed treatment for such symptoms, in his records between 1990 and 1993. The evidence is that following his injury in 1990, the Appellant was treated with anti inflammatories and after a short period, returned to work. There is no evidence that the Appellant sought or received any treatment for recurring lower back problems between 1993 and 2001. This is not consistent with the claim that recurring episodes of lower back pain were being experienced by the Appellant. In 1991 he was treated for an unrelated problem in the upper back, and later for lower back pain that occurred while he was playing squash, a highly active sport.
Having regard to:
(1)the general nature of his work activities since leaving the employ of the Respondent;
(2)the fact that both Dr. Dexter and Dr. Stephenson largely relied upon the Appellant’s own account of his medical history and of the cause and symptoms of his back problems between 1993 and 2001 (in the absence of a relevant, documented medical history but having regard to some extent at least, to natural disc degeneration);
(3)the Appellant’s general physical condition, and
(4)the lack of any evidence to show that he sought and obtained any treatment whatsoever for a recurring lower back problem for a period of at least 8 years,
it was open to the Arbitrator to conclude on the facts and weight of the evidence produced, that the work injury in 1990 had no “causation link” to the Appellant’s more recent condition, and that the Respondent is therefore not liable for the medical and related expenses of $11,537.18, that were outlayed in relation to his injury of 2001. The Appellant’s theory that no mention in the notes of Dr. Hamad, his family doctor, of neurological symptoms “may mean that there was no frank neurological disturbance such as muscle wasting or reduced straight leg raising or absent ankle or knee jerks on testing” is largely speculative and no evidence from Dr. Hamad or anyone else in support of this point was placed before the Arbitrator, nor has it been sought to be produced as fresh evidence on appeal.
It is necessary to establish that the injury arose out of or in the course of employment, pursuant to section 4 of the 1987 Act. The Arbitrator found as a matter of fact, that the “causation link” between the injury sustained in 1990 in the course of or arising out of employment at that time, and the injury discovered in 2001, was not established by the Applicant (the Appellant in this appeal). This finding was open to the Arbitrator on the facts and the weight of the evidence before her, and in my view, is the correct decision.
The appeal is not allowed. The decision appealed against is confirmed.
COSTS
The Respondent has submitted that the Appellant should pay the Respondent’s costs of the appeal. While section 341(1) of the Act provides that costs to which the Division of the Act applies, are in the discretion of the Commission, 341 (4) provides:
341 Costs to be determined by the Commission
The Commission may not order the payment of costs by a claimant unless the Commission is satisfied that the claim was frivolous or vexatious, fraudulent or made without proper justification.
No evidence or submissions have been put to me that the claim is frivolous or vexatious, fraudulent or made without proper justification. In the circumstances, no order is made as to costs.
Gary Byron
Deputy President
I certify that that this is a true and accurate record of the reasons for decision of Deputy President Gary Byron, Workers Compensation Commission
Registrar Date:
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