Moree Secondary College P & C Association v Van Vegchel
[2010] NSWWCCPD 81
•30 July 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Moree Secondary College P & C Association v Van Vegchel [2010] NSWWCCPD 81 | ||||
| APPELLANT: | Moree Secondary College P & C Association | ||||
| RESPONDENT: | Kay Annette Van Vegchel | ||||
| INSURER: | GIO General Limited | ||||
| FILE NUMBER: | A2- 6029/09 | ||||
| ARBITRATOR: | Mr Ross Bell | ||||
| DATE OF ARBITRATOR’S DECISION: | 16 April 2010 | ||||
| DATE OF APPEAL DECISION: | 30 July 2010 | ||||
| SUBJECT MATTER OF DECISION: | Section 352(4) and (8) of the Workplace Injury Management and Workers Compensation Act 1998; determination of an interlocutory nature; leave to appeal | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Turks Legal | |||
| Respondent: | Penny Waters Armstrong Legal | ||||
| ORDERS MADE ON APPEAL: | Leave to appeal is refused. The appellant is to pay the worker’s costs of the appeal. | ||||
BACKGROUND TO THE APPEAL
Mrs Kay Annette Van Vegchel (‘the worker’), who is 58 years of age, received injury in the course of her employment with Moree Secondary College P & C Association (‘the appellant’) on 19 August 2005. The worker was then employed as a Canteen Supervisor. On that day she was standing on a freezer, approximately 1 metre from the ground, attempting to connect an electrical cord when she fell. As the worker fell backwards she struck her right scapular and shoulder and landed heavily on her buttocks. The worker had, by reason of incapacity, an absence from work. The period of such absence is not revealed on the evidence however it appears that she was absent on 15 September 2005 on which date she made a declaration in support of an application for workers compensation benefits. The injuries particularised by the worker at the time of that claim related to her arm, shoulder and back. It seems that the appellant’s insurer accepted the claim following which the worker returned to work until her services were terminated in July 2007.
In 2008 the worker commenced proceedings in the Commission against the appellant seeking lump sums in respect of whole person impairment (‘WPI’) resulting from injuries received in the fall. The Commission referred the matter for assessment to an Approved Medical Specialist (‘AMS’), Dr Tony Blue. The worker was examined by Dr Blue on 17 November 2008 and a Medical Assessment Certificate (‘MAC’) was issued by Dr Blue on 20 November 2008. That certificate assessed the worker’s whole person impairment by reason of injury to her right upper extremity as being 14 per cent. Dr Blue’s assessment noted at [8] that the worker had claimed in respect of a “body part” outside his field of expertise which he particularised as “gynaecological problems complicating (sic) work fall of August 19, 2005”.
The worker’s claim was settled by consent and a Certificate of Determination issued from the Commission on 16 February 2009. Orders were made for payment pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in the sum of $18,500.00 in respect of 14 per cent whole person impairment as certified by Dr Blue together with an award pursuant to section 67 of the 1987 Act in the sum of $13,000.00.
In May 2009 a further claim was made on behalf of the worker in respect of additional lump sum entitlement. Correspondence dated 14 May 2009 from the worker’s solicitors to the appellant particularised the further claim as being in respect of whole person impairment arising from injury to the lumbar spine and “the urinary system, the bladder”. Also particularised was an additional claim in respect of lump sum payment for pain and suffering pursuant to section 67.
That further claim was declined by the appellant’s insurer and correspondence, purporting to be a notice pursuant to section 74 of the Workplace Injury and Management and Workers Compensation Act 1998 (‘the 1998 Act’), was forwarded on 15 July 2009 to the worker’s solicitors.
An Application to Resolve a Dispute (‘the application’) was filed with the Commission on behalf of the worker on 30 July 2009. That application particularised the claim as being in respect of whole person impairment arising from injury to the worker’s lumbar spine and urinary system. A claim in respect of “activities of daily living” was wrongly particularised.
A Reply to the worker’s application was filed with the Commission on 20 August 2009. The matters in dispute were identified by the appellant in an annexure marked “A” to the Reply. The matters particularised in that annexure presently relevant were as follows:
“1. That the applicant did not receive any injury to the urinary system arising out of or in the course of employment with the respondent.
2. A Section 74 Dispute Notice was issued to the applicant on 15 July 2009. The issue of injury to the urinary system is a threshold issue which needs to be determined by an Arbitrator prior to any referral to an Approved Medical Specialist. Accordingly the respondent requests that this matter be listed for teleconference in order for (sic) an Arbitrator to address this issue prior to the matter being referred to an Approved Medical Specialist for an assessment of impairment.
3. That the applicant’s employment with the respondent was not a substantial contributing factor to the urinary system injury.
4. That any impairment of the urinary system suffered by the applicant is not the result of any injury arising out of or in the course of employment with the respondent.”
The appellant’s solicitors also wrote to the Registrar of the Commissionon 20 August 2009 advising that there was a ‘threshold issue’ which needed to be addressed prior to the matter being referred to an AMS. That correspondence informed the Registrar that the appellant disputed that the worker had received injury to her urinary system as a result of the fall. It was asserted that such “is a legal issue which needs to be determined by an Arbitrator prior to any referral to an AMS”.
A teleconference was conducted by the Arbitrator on 7 September 2009 at which time certain directions were made. The matter subsequently came before him for conciliation/arbitration on 27 October 2009. The matter proceeded to hearing following which the Arbitrator reserved his decision. A Certificate of Determination issued on 12 November 2009 which was accompanied by a Statement of Reasons (‘Reasons’). In the course of those Reasons the Arbitrator made findings of fact in the worker’s favour concerning her allegation of injury to the urinary system. A finding was also made that the worker’s employment was a substantial contributing factor to that injury. The Certificate of Determination included an order that the worker’s claims “for section 66 lump sums for the urinary system and the lumbar spine” were to be remitted to the Registrar for referral to an AMS for assessment.
A medical assessment of the worker was conducted by Dr P J Burke on 1 February 2010. A MAC was issued on 8 February 2010 which certified the finding made by Dr Burke of 5 per cent WPI by reason of injury to the lumbar spine. That assessment was subsequently reflected in an order made by consent in a Certificate of Determination which is noted at [12] below. Dr Burke’s MAC does not, for reasons stated by him, include an assessment of WPI sustained by reason of urinary system injury as noted in the Registrar’s referral. The worker seeks on this appeal to have Dr Burke’s MAC admitted as fresh or additional evidence. That application is addressed below.
On 23 February 2010 the appellant sought to file with the registry an application seeking leave to appeal against the decision of the Arbitrator made on 12 November 2009. That application was returned to the appellant’s solicitors by the Registrar under cover of correspondence dated 24 February 2010 which noted that the appellant’s application was out of time having regard to the provisions of section 352(4) of the 1998 Act. The Registrar also noted that the application had not sought an extension of time in which to bring the appeal and indicated that should the appellant wish to re-lodge the appeal, submissions seeking such an extension of time, in compliance with Rules 16.2 (11) and (12) of the Workers Compensation Commission Rules 2006, should be made. Reference was made in that correspondence to the decision of Oxblue Constructions Pty Ltd v Lang [2009] NSWCCPD 3. The correspondence included a statement that, although a MAC had issued in February 2010, a final Certificate of Determination making orders for the payment of lump sum compensation had not yet been issued. The correspondence also included the statement “if this appeal application seeks leave to appeal the final orders in this matter, it has been filed prematurely and for this reason cannot be registered”. No further action was then taken by the appellant.
On 12 April 2010 the Arbitrator conducted a further teleconference at which time an agreement was reached between the parties with respect to payment of an additional lump sum pursuant to section 66 in respect of the worker’s further whole person impairment as assessed at 5 per cent arising from injury to lumbar spine as found in the MAC dated 8 February 2010. Agreement was also reached concerning payment of a further lump sum in respect of pain and suffering pursuant to section 67. A Certificate of Determination issued making appropriate orders on 16 April 2010.
On 29 April 2010 the appellant’s solicitors filed a further application seeking leave to appeal against the decisions of the Arbitrator. That application particularised that the dates of the Certificates of Determination in respect of which leave was being sought to appeal were 12 November 2009 and 16 April 2010.
THE DECISIONS UNDER REVIEW
The Certificate of Determination, dated 12 November 2009 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1. The Applicant’s claims for section 66 lump sums for the urinary system and the lumbar spine are remitted to the Registrar for referral to an Approved Medical Specialist for assessment.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.
3. I certify this matter as complex for the purposes Schedule 6, Table 4, Item 4, of the Workers Compensation Regulation 2003; there is to be 10% increase to the costs applicable to both parties.
Reasons for certification as to complexity:
The applicant submitted that the matter is complex for costs purposes due to the difficult medical and factual issues. I agreed with their submissions for the reasons given at the conference, and consider that the increase should be in this instance 10% pursuant to Schedule 6, Table 4, Item 4.
A brief statement of reasons for determination, in accordance with Rule 15.6 of the Workers Compensation Commission Rules 2006, is attached.”
The Certificate of Determination dated 16 April 2010 records the Arbitrator’s orders as follows:
“In this matter a telephone conference was held on 12 April 2010 where the parties were assisted by me, acting as an arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2006, the determination of the Commission in this matter is as follows:
1.That the date of injury in the Medical Assessment Certificate be read as “19 August 2005”.
2.That the Respondent pay to the Applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987:
$6000 in respect of 5% permanent impairment assessed as a percentage of whole person impairment, attributable to the injury of 19 August 2005,
in accordance with the Medical Assessment Certificate of Dr P J Burke dated 8 February 2010;
The above amount represents the difference between lump sum component already received of $18,500 for 14% WPI for the right upper extremity in accordance with the MAC of Dr Blue dated 16 February 2009, and the total combined WPI entitlement of $24,500 for 18% WPI, comprising 5% WPI for the lumbar spine and 14% WPI for the left upper extremity.
3.That the Respondent pay to the Applicant, as lump sum compensation under section 67 of the Workers Compensation Act 1987 in respect of the lumbar spine: $4,500.
4.That the Respondent pay the Applicant’s costs as agreed or assessed.”
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
PRELIMINARY MATTERS
The appellant’s application seeking leave to appeal does not challenge the orders which are to be found in the Certificates of Determination dated 12 November 2009 and 16 April 2010 but rather seeks to challenge those findings made by the Arbitrator in the course of his Reasons which accompanied the first of those certificates. Those findings concerned receipt by the worker of an injury to her urinary system. There is correspondence from the appellant’s solicitors to the Registrar dated 10 December 2009 which makes reference to the Arbitrator’s Reasons delivered on 12 November 2009. It is stated in the correspondence:
“We have been instructed by Counsel that an appeal against the Arbitrator’s decision cannot take place at this stage as the case law has determined that it is not considered to be a final determination until the medical assessment is obtained. Reference is made to the cases of YKK Australia Pty Ltd v Skoric [2008] NSWWCCPD 44 and Moore v Greater Taree City Council [2009] NSWWCCPD 17”.
That correspondence proceeded to inform the Registrar that the appellant “will be appealing against the decision of [the Arbitrator] after the Medical Assessment Certificate has been received, regardless of the findings of the Approved Medical Specialist”. A copy of that correspondence was forwarded to the worker’s solicitors.
The worker’s solicitors, having received a copy of the appellant solicitor’s correspondence referred to immediately above, responded by writing to the Registrar on 10 December 2009, a copy being forwarded to the appellant’s solicitors. That correspondence stated as follows:
“We act for the Applicant and refer to the following:-
1.The Certificate of Determination and Statement of Reasons dated 12 November 2009 provided by Arbitrator Ross Bell (wrongly referred to by the Respondent Employer as Arbitrator Wynyard) in this matter.
2.Turks letter to you dated 10 December 2009 copy enclosed which was faxed to this firm on 10 December 2009.
We object to the Commission acknowledging this letter to indicate in any way that it is a sufficient excuse for the Respondent Employer to fail to lodge their Appeal against this Certificate of Determination today.
Today is significant as in accordance with the Statutory Limitation period pursuant to Section 352 (4) of the Workplace Injury and Management Act 1998 the 28 day period for Appeal expires today.
With all due respect the Respondent Employer ought file their Appeal by today. Their argument in their letter to you relies on the two cases quoted by them:-
·YKK Australia Pty Limited v Skoric (2008) NSW WCC PD44
·Moore v Greater Taree City Council (2009) NSW WCC PD 17
These cases do not conclusively support their argument that the Certificate of Determination of Arbitrator Ross Bell as to the finding on injury is of an Interlocutory nature.
The Applicant states that the finding of Arbitrator Ross Bell is not of an interlocutory nature and we rely on Maricic v Medina Serviced Apartments Pty Limited (2007) NSW WCC PD 196.
Please refrain from acknowledging Turks facsimile letter dated 10 December 2009 or to indicate in any way that they be excused from lodging their Appeal within the necessary 28 day period.
We have forwarded a copy of this letter to Turks, today.”
As noted at [11] above the appellant’s solicitors lodged an appeal on 23 February 2010 by which time Dr Burke’s MAC had issued. As earlier noted the appellant did not proceed with that application and the appellant’s conduct in respect of that application is unexplained.
Since the filing of the application seeking leave to proceed with this appeal the worker’s solicitors have altered their position concerning the suggested status of the orders made by the Arbitrator. The notice of opposition to this appeal filed on 15 June 2010 has attached an annexure marked “A”. It is there stated that:
“the appeal offends section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998 and Clause 200B of the Workers Compensation Regulation 2003 and leave to appeal ought be refused or the appeal ought be dismissed”.
That annexure also includes an application made on behalf of the worker seeking the admission of Dr Burke’s MAC dated 1 February 2010 as fresh or additional evidence. Such application is made pursuant to section 352(6) of the 1998 Act.
The worker proceeds to argue that, upon an assumption that Dr Burke’s MAC is admitted into evidence, it may be seen that the rights of the parties:
“have not been finally determined as to the matters in issue, namely: ‘did the worker suffer injury to the urinary system out of or in the course of her employment with the employer. If so was Ms Van Vegchel’s employment with the employer a substantial contributing factor to her urinary system injury’” (emphasis in original).
It is put in submissions that, having regard to the views expressed by Dr Burke in the MAC, a further assessment of the worker by an AMS will be necessary and that such would be conducted pursuant to the provisions of section 329(2) of the 1998 Act. That provision addresses the question of further medical assessment or reconsideration of matters earlier certified.
The appellant has not responded to the matters raised by the worker in her notice of opposition. The circumstances which I have summarised above give rise, yet again, to considerable procedural difficulties which have been occasioned in the past in a number of appeals from decisions of Arbitrators. These problems have arisen, and exist in the present matter, by reason of there being no definition in the Acts of the word ‘interlocutory’ as it appears in section 352(8) of the 1998 Act.
Before proceeding to a consideration as to whether, as now asserted by the worker, the determinations challenged by the appellant are of an interlocutory nature, I consider it appropriate to deal with the question as to whether Dr Burke’s MAC should be admitted into evidence as additional evidence on appeal.
ADDITIONAL EVIDENCE
Whilst the appellant has put no submission in opposition to the worker’s application to adduce the further evidence of Dr Burke it is necessary to consider whether, having regard to the present circumstances, such an order should be made. Such a question has been addressed in a considerable number of matters which have come before the Commission. It is well recognised that the matters expounded in the decision of the Court of Appeal in Akins v National Australia Bank (1994) 34 NSWLR 155 (‘Akins’) identify those matters which need to be established before fresh or additional evidence is to be admitted. It was there stated by Clarke JA (Sheller JA and Powell JA agreeing) that:
“(1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) the evidence must be credible” (at 160).
His Honour’s observations are reflected in the Commission’s Practice Direction Number 6 (15 November 2007) which addresses the subject of “fresh evidence and/or further evidence”.
The matters addressed in Akins were considered again by the Court of Appeal in the matter of Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116. Following consideration of earlier authority, Heydon JA (as his Honour was then) stated at [15]:
“…even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?”
It is plain that the evidence of Dr Burke could not have been presented at the arbitration. It is also plain that Dr Burke’s evidence has come into being by reason of the referral to him by the Registrar for the purposes of assessment. That assessment is binding upon the parties with respect to the degree of permanent impairment of the worker as a result of the subject injury and is thus both relevant and probative.
The absence of any assessment concerning the alleged urinary system injury is explained by Dr Burke in his MAC. Dr Burke included detail concerning examination of the urinary and reproductive systems. Dr Burke expressed his opinion concerning the presence of vaginal prolapse and cystocoele and expressed his view as to causation of that condition. Dr Burke further stated that, given the worker’s stated intention to undergo surgical repair, he considered that the condition had “not stabilized”. He further stated “assessment of impairment of the gynaecological and urological system is therefore not possible at this time”.
In the circumstances I conclude that it is in the interests of justice that leave be granted to the worker to have the MAC of Dr P J Burke which is dated 8 February 2010 concerning an assessment conducted on 1 February 2010 admitted in evidence on this appeal, and I so order.
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.
It is proposed to deal firstly with the question as to whether the determination the subject of challenge is of an interlocutory nature as argued on behalf of the worker.
The interlocutory question
It is submitted on behalf of the worker that the decision made by the Arbitrator on 12 November 2009 with respect to the injury challenged by the appellant is of an interlocutory nature. Such decision, it is argued, may not be the subject of an appeal having regard to the provisions of section 352(8) of the 1998 Act which provides:
“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 (‘the Regulation’) 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.”
The appellant at [2.1] of the application brought with respect to this appeal argues that the Arbitrator’s determination dated 12 November 2009, which included his finding of injury, was of an interlocutory nature at an earlier time. It was for that reason, it is argued, that an appeal was not lodged “at that time”. Reference is made in that submission to the correspondence referred to in [18] above. The appellant’s assertion that “the determination was interlocutory” is made relying upon the decision in Waverley Council v Sheen [2007] NSWWCCPD 127 (‘Sheen’). The appellant proceeds to argue that “the claim” is no longer “at an interlocutory stage” given that the AMS has issued a certificate. It is acknowledged that Dr Burke’s MAC makes an assessment only in respect to the lumbar spine injury. However it is put that no assessment has been made in respect of the urinary system “because it had not reached maximum medical improvement”.
The worker’s arguments concerning this interlocutory question have been summarised between [22] and [24] above. It is the worker’s position that the appeal should be “dismissed” because it “offends section 352(8)”.
Whilst the term interlocutory is not defined, the proper construction and application of section 352(8) has been the subject of numerous Presidential decisions. In earlier determinations I have expressed the view that valuable guidance may be gained, when deciding whether the decision of an Arbitrator is interlocutory or otherwise, by a consideration of the decision of the High Court in Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 where it was stated by Gibbs J (at 225):
“…the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”
It was observed by Roche DP in P&O Ports Limited v Alan Hawkins [2007] NSWWCCPD 87 that there is a need for caution when reference is made to common law authority concerning the nature of interlocutory orders when consideration is being given to the provisions of section 352(8). That need for caution arises by reason of the nature of the Commission’s objectives and powers, the Commission’s power of review and, of particular significance in the present matter, the role of an AMS as prescribed by the legislation in determining disputes concerning whole person impairment.
In the course of his Reasons the Arbitrator made the following finding of fact (at [29]):
“For the above reasons, I find that Ms Van Vegchel suffered injury of vaginal prolapse (cystocoele) in the fall in the course of her employment with the Respondent on or about 10 August 2005.”
The Arbitrator further found (at [35]):
“…that the employment with the Respondent is a substantial contributing factor to the urinary system injury”.
I have reached the view that the Arbitrator’s determination as to the occurrence of injury, and that employment was a substantial contributing factor to that injury, are such that, in the words of Gibbs J, those findings “finally dispose of the rights of the parties.” Such findings bind the parties and define the rights and liabilities of each concerning entitlement to compensation benefits as provided by the Acts. It may be seen that I reject the worker’s suggestion that the absence of an assessment is relevant to the question as to finality of the November 2009 determination. The need, by reason of the provisions of Part 7 of the 1998 Act, for an assessment by an AMS does not detract in any way from the finality of those findings.
The appellant relies upon the decision in Sheen as a basis to explain its failure to appeal immediately following the Arbitrator’s determination in November 2009. The facts in Sheen may be distinguished from the present circumstances. In Sheen the matters challenged by the appellant employer included findings as to compliance by the worker with statutory requirements concerning the provision of particulars of claim (section 382 of the 1998 Act); a suggested finding by the Arbitrator concerning impairment caused by previous injury; and a finding which set a reference date for the purposes of assessment. The Commission’s finding in that matter was that no final determination had been made and leave to appeal was refused. In the present matter the finding challenged by the appellant is one concerning liability, that is the occurrence of injury as alleged. As noted at [43] above such findings are final and bind the parties. Such a conclusion is consistent with a long line of authority on the subject in the Commission which includes Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196; Zohrabi v Lexington International Pty Limited [2007] NSWWCCPD 233; Edmund Diab v Salem Naji [2010] NSWWCCPD 33; and Yum Restaurants Australia Pty Ltd t/as Pizza Hut Restaurants v Watters [2010] NSWWCCPD 31.
Time
For the reasons which I have attempted to outline above I reject the appellant’s submission that the Arbitrator’s determination made 12 November 2009 was, at an earlier time, interlocutory in nature. Such conclusion gives rise to a difficulty confronting the appellant concerning compliance with the requirements as to time stipulated by the provisions of section 352(4). That section provides that an appeal can only be made within 28 days after the making of the decision appealed against. The appellant’s application seeking leave to appeal is plainly out of time with respect to the challenge of the determination dated 12 November 2009. There is no application before the Commission seeking an extension of time with respect to bringing this appeal. As earlier noted the application brought by the appellant also challenges the Arbitrator’s determination made on 16 April 2010. Whilst the appeal was registered within 28 days after the making of the decision in April 2010 nothing in that determination, which provided for orders by consent, is challenged.
Having regard to the appellant’s non-compliance with the provision of section 352(4) leave to bring this appeal is refused. In the circumstances it is unnecessary to consider whether the monetary threshold prescribed by section 352(2) has been met, however I note that the quantum of the worker’s claim with respect to injury to the urinary system exceeds the thresholds set by section 352 (2)(a) and (b).
CONCLUSION
The worker’s claim for WPI arising from the injury to the urinary system has not been assessed by an AMS and thus no order has been made as to entitlement. However it is clear that the worker anticipates that a further assessment by an AMS will be conducted. Should that occur and a determination by an Arbitrator is subsequently made in the worker’s favour, the appellant may seek leave to appeal against such a decision. The Commission may then review the finding as to injury which establishes the basis of the Arbitrator’s final order (Transley Solutions Pty Ltd v Steve Kagiorgis [2010] NSWWCCPD 45 at [27] and [28]).
Whether any future appeal is made in such circumstances is of course a matter for the appellant as it may be advised. No doubt that advice will take into account all that evidence adduced before the Arbitrator including the clinical notes of Dr Mahony and that practitioner’s notations concerning the worker’s complaints in August 2005 of experiencing pain radiating into the groin and of pelvic pain, as well as the additional evidence of Dr Burke which has been admitted on this application seeking leave to appeal.
This is a most unsatisfactory outcome, both for the parties, and for the Commission. The circumstances of this matter again demonstrate the significant practical procedural difficulties which have arisen since the amendment which brought section 352(8) into operation. Appropriate amendment of the legislation and regulation is required to overcome these difficulties and to enable the Commission to attain its objectives as set out in section 367 of the 1998 Act.
DECISION
Leave to appeal is refused.
COSTS
The appellant is to pay the worker’s costs of the appeal.
Kevin O’Grady
Deputy President
30 July 2010
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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