National Engineering Pty Limited v Morton
[2005] NSWWCCPD 109
•14 September 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:National Engineering Pty Limited v Morton [2005] NSWWCCPD 109
APPELLANT: National Engineering Pty Limited formally known as Normoyle Pty Ltd
RESPONDENT: John Edward Morton
INSURER:(i) QBE Workers Compensation Ltd on
risk 31.12.86 – 30.6.90.
(ii)Allianz Australia Workers Compensation Ltd on risk 30.6.90 – 31.12.95.
(iii)Zurich Australian Workers Compensation Ltd on risk 1.1.96 – 31.12.97.
(iv)Royal & Sun Alliance Ltd (Vero) on risk 1.1.98 onwards.
FILE NUMBER: WCC15351-03
DATE OF ARBITRATOR’S DECISION: 16 February 2004
DATE OF APPEAL DECISION: 14 September 2005
SUBJECT MATTER OF DECISION: No evidence; Application of section 354 of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Vandervords
Respondent: McCabe Partners, Lawyers
ORDERS MADE ON APPEAL: 1. The Arbitrator has failed to make a
determination in accordance with sections 61 and 65 of the Workplace Injury Management and Workers Compensation Act 1998 and his decision dated 23.2.04 is revoked.
2. The matter is referred to the Registrar
to remit to another Arbitrator to determine the matter in accordance with the reasons stated in this decision.
3. No order as to costs of the Appeal.
BACKGROUND TO THE APPEAL
John Edward Morton (“the Respondent Worker”) was employed by Normoyle Pty Limited (“Normoyle”) which company subsequently changed its name on 9 September 1993 to National Engineering Pty Limited (“the Appellant Employer”) as a general labourer performing a variety of duties over the period 1976 to 2 November 1999.
He claims that as a result of a number frank injuries and the nature and conditions of his employment over those years, he suffered injuries to his neck, back and legs, sexual impairment and binaural hearing loss, and that as a consequence whereof he suffers a disease of gradual process contributed to by his employment.
The Respondent Worker lodged an Application to Resolve a Dispute on 26 September 2003 claiming weekly benefits compensation, medical and hospital related expenses and permanent impairment/pain and suffering compensation.
Normoyle and the Appellant Employer, by its various insurers, filed replies, listing as the issues in dispute, inter alia, notice of injury, injury and causation.
The Application was listed for arbitration hearing on 16 February 2004. On that date, the Arbitrator made the following determination:
“1.I find that the Applicant:
(a) Suffers from the aggravation, acceleration, exacerbation or deterioration of degenerative changes in his neck and back which I find to be a disease within the terms of section 16 of the Workers Compensation Act, 1987.
I find that therefore the relevant date of injury if the last date of the Applicant’s employment, being the date of his incapacity, namely 2 November 1999.
(b)Suffered a frank injury on 1 September 1997 when he fractured his left fibular in a work accident”.
A Certificate of Determination to that effect issued on 23 February 2004. Annexed to the Certificate was “Statement of Reasons – Ex Tempore Orders”. The document read as follows:
“In this matter an arbitration hearing was held on 16 February 2004 limited to a determination of the issue of the nature of the injury for the purposes of determining a date of injury for the referral to a medical specialist… to ensure the parties received a timely determination of their dispute the reasons for the orders… were given orally at the arbitration hearing”.
On 17 March 2004, the Appellant Employer by its insurer Royal & Sun Alliance, now Vero (“Vero”) lodged an ‘Application for Leave to Refer a Question of Law.’ The Application was rejected and the Application was accepted as an ‘Application to Appeal Against Decision of Arbitrator’ on 4 May 2004.
The Appellant Employer filed submissions with its initial Application and additional submissions on 10 May 2004 and 3 August 2004. The Respondent Worker filed submissions on 28 July 2004.
The Appellant Employer submits that the Arbitrator erred in law in failing to allow it to adduce evidence of the Respondent Worker’s failure to provide notice of injury and notice of claim pursuant to sections 61 and 65 of the Work Place Injury Management and Workers Compensation Act 1998 (“the 1998 Act”) and that the Arbitrator erred in the exercise of his discretion in that he failed to take into account relevant factors, in particular, (a) the deferring of a determination on the issues of notice under sections 61 and 65 of the 1998 Act which exposed the Appellant Employer to proceedings that may be “useless and futile” and (b) proceeding with the arbitration without making a determination of the issues of injury and notice under sections 61 and 65 which, the Appellant Employer claims, “may involve useless expense.”
The Appellant Employer submits that the Arbitrator should have taken these factors into account before determining that the Respondent Worker suffered an “injury” by way of disease, on 2 November 1999, and that the notice provisions imposed a statutory threshold which the Respondent Worker was required to meet before proceeding to hear further evidence.
The Respondent Worker submitted that “…the absence of the notice was occasioned by ignorance of the law applicable to cases to which sections 15 and 16 of the Workers Compensation Act 1987 (“the 1987 Act”) applies.” No evidence on this submission was provided either to the Arbitrator or on appeal.
The matter experienced some delay in the determination of the appeal because of a problem with the transcript. It appears that after the Arbitration hearing, the parties were provided with some discs recording the proceedings on 16 February 2004. The proceedings were heard both before and after lunch and delay has been occasioned by the necessity to locate all discs and transcribe them. The parties were requested on several occasions to advise the Commission if they were content with the resultant transcripts. By memorandum from the Commission dated 26 July 2005, the parties were requested, “to lodge submissions in relation to whether the Presidential Member can rely solely on transcript provided to the parties, under the two sets page numbered 1 – 47 and 1 – 9.”
The Respondent Worker filed lengthy submissions on 27 July 2005 but did not address the issue raised in the memorandum.
Finally, on 11 August 2005, I received a memorandum from the Commission advising that “…so long as the Presidential Member is satisfied that the page 1 – 47 and 1 – 9 transcripts are an accurate reflection of what took place at the Arbitration, then they [the parties had advised that they] are happy for the matter to be determined on that basis.”
That is of no assistance to me, however, having read both transcripts, they appear to me to be an accurate reflection of the proceedings before the Arbitrator both before and after the luncheon adjournment and in the absence of any dispute by the parties on this issue, I propose to determine the matter on that basis. For ease of reference, I will refer to the morning session, pages 1 – 47, as “transcript A” and the afternoon session, pages 1 – 9, as “transcript B”.
ON THE PAPERS
The Appellant Employer submitted that the matter was capable of being determined ‘on the papers’ but that “…it would seem appropriate for the Appellant and the Respondents to make written submissions in relation to the appeal points and the applicable law referred to in the Application. We have requested the Respondent’s [sic] advise [as to] whether they oppose this course”.
It is not clear whether the Appellant Employer is referring to the Respondent Worker only or to the various insurers who are not a party to the appeal, but in any event, the Respondent Worker has made no submission on this point.
Having read all the transcripts and all the material before the Arbitrator, together with the Appeal Application and submissions, I am satisfied that, in accordance with Practice Directions 1 and 6, and section 354(6) of the 1998 Act, I have sufficient information to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
The amount at issue in the proceedings is in excess of the $5,000.00 prescribed pursuant to section 352(2) of the 1998 Act. The appeal was filed in time. Leave to appeal is granted.
THE ISSUES ON APPEAL
Relevantly to Vero, the last insurer of the Appellant Employer, the Arbitrator determined that the Respondent Worker suffered an injury on 2 November 1999 by way of a disease within the terms of section 16 of the 1987 Act. The Appellant Employer submits that it raised at the outset, both in its pleadings and at a teleconference on 12 January 2004, a preliminary issue as to whether notice of injury had been given in accordance with the requirements of section 61 and 65 of the 1998 Act, claiming that “success on that issue would obviate the need for further determination”.
The Appellant Employer stated that the first notice of the claim by the Respondent Worker was a letter from the Respondent Worker’s solicitors dated 22 August 2003. That letter, and accompanying documents, was before the Arbitrator. The Respondent Worker does not appear to dispute either that 22 August 2003 was the date upon which first notice of the claim was given, nor that the last date of employment with the Appellant Employer was 2 November 1999.
The Appellant Employer submits that “the issue in relation to notice is a real and substantive issue and the Worker’s evidence is silent on the point”. The Appellant Employer further submits that “the Appellant flagged at every point before the Arbitrator that this was an issue which needed to be determined before the matter proceeded further”. The Appellant Employer cites the decision of Hayfield v Sydney Ports Pilot Service Pty Limited [1997] 14 NSW CCR 298 (“Hayfield”) in support of the proposition that determination on a preliminary basis of the question of whether or not a claim was flawed for non-compliance with certain statutory requirements was a sensible and practical approach to take. If a matter is found to be so flawed, it may be that proceedings will go no further, eliminating the need for further expense by the parties.
In the present case, the Appellant Employer submits that “…no good reason has been given as to why this preliminary point ought not be dealt with as a condition precedent”. The Appellant Employer points out that it made it clear before the arbitrator that it had “… a real case to present on the issue of notice and prejudice…”
Finally, the Appellant Employer submits that the Arbitrator’s failure to deal with the issue of notice was a clear case of “pre-judgment” with “an Arbitrator making it clear that he has no intention of applying the statute irrespective of the merits”. (See generally Johnson v Johnson [2000] 201CLR 488).
THE EVIDENCE AND PROCEEDINGS BEFORE THE ARBITRATOR
It is apparent from transcript A that the Appellant Employer in the interests of Vero made it clear on several occasions its intention to address the issue of ‘notice of injury’ and ‘claim’ and indeed, ‘injury’ per se.
The Arbitrator noted (page 1.40) that the Appellant Employer “has raised a question that was raised at the teleconference about the question of notice, proper notice…”. He then asked the Respondent Worker’s Counsel if he was ready to meet this argument. Counsel replied, “If no objection is taken to my making statements in the absence of a statement from the Applicant which addresses this issue, because the issue is not disputed that there was no written notice of the injury or a claim for compensation prior to, I think, 2002 or 2003.” Counsel went on to make statements as to purported knowledge by the Appellant Employer of injury, prejudice, and the entitlement of a Worker to recover compensation if failure to make a claim was occasioned by ignorance, mistake or other reasonable cause. Counsel for the Respondent Worker then said, “So long as my friends make no objection to me making those statements, in the absence of a report or a statement from the Worker that they admit, then we can meet it.” The Appellant Employer’s solicitor then said, “It is opposed taking evidence in that form Mr Arbitrator”.
The Arbitrator then asked “Do you deny that the Second Respondent (The Appellant Employer) was aware of the injury and was aware of the fact that he went off because of his injury in 1999?” The solicitor for the Appellant Employer replied, “…That’s the whole essence of these proceedings: what is the injury? There is no doubt that as at November 1999 this Applicant had left leg pain – no doubt. There is no report of any injury at that time. There is no suggestion of it being work related.”
The Arbitrator then asked the Appellant Employer’s solicitor “… how do you say you are prejudiced…?” The Respondent Worker’s Counsel then sought evidence of prejudice from the Appellant Employer’s solicitor. The Appellant Employer’s solicitor then said:
“…I have evidence of what we would say is the prejudice. The point is that in proving a limitation issue, it is up to the person who is deemed barred by the various legislative provisions to present their case as to why their application out of time should proceed. It is then up to the Respondent to reply to that… That is why I do not wish to proceed, first in time, as it were, in relation to this application.”
The Arbitrator immediately then said this (page 4):
“Well in any event, I don’t – with matters that are this old and not subject to the new Act at the time the new legislation was brought in, I am not disposed to bar an Applicant from bringing his case because of a defect in notice, and, in saying that, I adopt, if you like, the practice taken to these sort of applications prior to the amendment of the Act and, in particular, those provisions that excuse the Worker if the failure to give notice is through ignorance, mistake or other reasonable cause. Now, we are fighting in the dark here a bit because there is no evidence.”
The Arbitrator clearly acknowledged that there was “no evidence” on the issue of notice of injury and simply left the issue “in abeyance”. In the following paragraph he said:
“Now, the next matter is just to look at the overall scope of the claim. It’s a claim obviously for 66 and 67… What has to be determined here is a causation argument and a definition of what the nature of this injury is”.
The Appellant Employer’s solicitor then points out that “the essence of the teleconference was that the date of injury was hotly contested”.
At page 5, the Arbitrator then says, “Well,… let’s move on and see if we can establish what the date, the deemed date is”.
There follows extensive discussion on the material submitted by all parties and submissions by the Appellant’s Employer’s solicitors on causation and the medical evidence. At page 31, the Arbitrator said, “…Which comes first – the assessment and then the causation argument or the causation argument and the assessment. Common sense… says you should deal with the causation argument… and not waste time dealing with anything about permanent impairment…”
The Appellant’s solicitor then said, in relation to a question as to the nature of the dispute before the Arbitrator, “Whether there has been an injury arising from the nature and conditions of his employment…”
At page 36, the Arbitrator said, “…the hearing today is to decide the nature of the injury and the date of the injury so it can go to an AMS …” and at page 37, “… I don’t regard causation as being something that any medical training… assists any doctor in deciding.”
Contrary to his earlier stated view, the Arbitrator appears to be concentrating on what he seems to have already decided, that is, that the Respondent Worker suffered an injury, without dealing with causation, notice, or other issues connected with “injury”.
The thrust of the Appellant Employer’s submissions to the Arbitrator were that the Respondent Worker had ceased work on 2 November 1999 complaining of problems with his left leg. No injury had been reported. The Respondent Worker had also claimed he suffered injuries to his neck and back. No such injuries were reported to the Appellant Employer. The Respondent Worker’s treating Neurologist, Dr Jude, diagnosed peripheral neuropathy and said in a report dated 7 August 2003, “I felt that the combination of alcohol and an immune mediated neuropathy were likely…” Dr Jude had earlier recorded that the Respondent Worker had to stop work “…because of impairment in balance and walking”.
At page 41, the Arbitrator said, “…the question of whether these injuries from which this Applicant suffers… are compensible or not is not a matter for today”. At page 43, the Arbitrator said:
“The question of substantial contributing factor and the question of sorting out the multifactorial reasons for this man’s problems are not matters that have to be decided today. Neither does the question of the adequacy of notice… have to be decided today. I am satisfied … that this is a disease process and that therefore the deemed date of injury is … 2 November 1999.”
Implicit in the Arbitrator’s determination that the Respondent Worker had a disease within the meaning of section 16 of the 1987 Act is that the Respondent Worker had suffered an injury. Section 16(1) specifically provides that “if an injury (my emphasis) consists in the aggravation, acceleration, exacerbation or deterioration of a disease, (a) then the injury shall… be deemed to have happened – (1) at the time of the Worker’s death or incapacity”.
Notice, date of injury and indeed injury were clearly significant issues in the proceedings.
The Arbitrator himself suggested that commonsense would dictate the determination of any causation issue should precede the determination of the degree, if any, of permanent impairment. Similarly, commonsense suggests a determination of any ‘notice’ issue should precede any determination of ‘injury’ and any consequent incapacity or impairment.
There seems no real dispute that the Respondent Worker has failed to comply with section 61 and indeed, section 65. The thrust of the Appellant Employer’s submissions are that if the Respondent Worker failed to satisfy the Commission that he was entitled to the benefit of certain discretionary matters referred to in section 61(2) of the 1998 Act, then the proceedings may well have been vitiated.
The decision of Hayfield referred to earlier involved consideration of the former section 106E of the 1987 Act. That section read, amongst other things: “A Worker cannot commence court proceedings in respect of compensation under section 66 until: (a) 12 weeks after a claim for the compensation is duly made.” Campbell CJ as he then was, determined that the requirements of section 106E were mandatory and that non-compliance rendered no alternative that the proceedings be struck out. He quoted Justice Kirby, then President of the Court of Appeal, in Hill v Bolt [1992] 28NSW LR 329 as follows:
“The prohibition upon the commencement of proceedings is directed at the proceedings themselves. It is expressed in mandatory terms… those terms should not be read down. Assuming (as I have always doubted) that there is a viable distinction between ‘mandatory’ and ‘directory’ provisions of legislation, I would certainly categorise this … as mandatory. The Court must give effect to the will of Parliament expressed in such unusually strong, mandatory language”.
In the present case, section 61(1) provides that compensation may not be recovered unless notice of injury has been given. That provision is then followed by discretionary leave in section 61(2) such that I do not regard the obligation referred to in section 61(1) as mandatory. Breach of section 61 does not have the effect of vitiating the proceedings, the section being merely a directory one.
Nevertheless, the Commission must still give effect to the apparent purpose of section 61(2) as determined by the Parliament. That section provides that the absence of, or defect or inaccuracy in, the giving of notice under section 61(1) “…is not a bar to the recovery of compensation if it is found in proceedings to recover that compensation ( my emphasis):… (b) that the absence of, or defect or inaccuracy in, the notice was occasioned by ignorance, mistake, absence from the state or other reasonable cause,…”
In other words, there needs to be evidence in the proceedings to justify a reliance on section 61(2) where a clear breach of section 61(1) has occurred.
THE LEGISLATIVE PROVISIONS
The procedure in the Commission is governed by section 354 of the 1998 Act. Without reproducing that section in full, in general, proceedings are to be conducted with as little formality and technicality as the proper consideration of the matter permits, but according to equity, good conscience and the substantial merits of the case.
The role of and procedure before an Arbitrator is referred to in Part 12 of the Workers Compensation Rules 2003 (“the Rules”). Rule 70 is particularly relevant. It provides:
“When informing itself on any matter, the Commission is to bear in mind the following principles:
(a) evidence should be logical and probative,
(b)evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”
Under Rule 71:
“The Commission is to take such measures as are reasonably practicable to:
(a)assist the parties to any proceedings to understand the nature of the proceedings and the legal implications of any assertion made in any documents or otherwise in the proceedings, and
(b)explain to the parties any aspect of the procedure or any decision or ruling made by the Commission in relation to the proceedings, and
(c)ensure that the parties have the fullest opportunity practicable to have their case in the proceedings considered without compromising the objectives of the Commission, and
(d)ensure that the parties have the opportunity to explore settlement in the proceedings.”
The practical effect of these rules and the Arbitrator guidelines were considered at length by Deputy President Fleming in Australian Traineeship System (Cargill Meat Processors Pty Limited) v Ramage [2004] NSW WCC PD31” (“Ramage”). At paragraph 31, she said
“The guideline gives practical effect to the provisions of the 1998 Act and the Rules. In essence, it provides clear instruction on how Commission proceedings must be conducted, in order to comply with the principles of procedural fairness. The non-adversarial, technical and formal mandate in section 354 of the 1998 is facilitated by ensuring that Commission Arbitrators act consistently and fairly in the conduct of proceedings. They (Arbitrators) also have express statutory authority to proceed to determine a dispute, despite the fact that the Arbitrator may have acted as a conciliator in the same matter…”
And then in paragraph 32:
“While the Commission represents a radical departure from the adversarial model of the traditional court system, its practices and procedures are not at large. An Arbitrator cannot, for example, exercise his, or her, wide discretion in an arbitratory or capricious way. It is essential to the protection of the rights of the parties, and to ensure a just and fair outcome, that the rules and the guidelines are given force and effect”.
THE ARBITRATOR’S DETERMINATION
The Appellant Employer submits that the Arbitrator has effectively determined the issue of notice without any evidence and in reliance on material not before the Commission.
The Appellant Employer’s solicitor quite properly rejected the making of a ‘statement’ by the Respondent Worker’s Counsel on this issue. The issue had been raised in the Reply and on several occasions prior to and during the Arbitration. No statement from the Respondent Worker on this issue was in evidence.
The Arbitrator’s statement that “… I am not disposed to bar an Applicant from bringing his case because of the defect in notice …” is effectively a determination that the Respondent Worker was not barred from proceeding: He appears in so doing, to rely upon some unidentified “practice” that was in place, “prior to the amendments in the Act”. It is not clear to what amendments or to what Act he is referring. Section 61 is in substantially similar terms to section 88 of the 1987 Act. Implicit in his statement is that he has ‘excused’ the Worker from compliance with the notice provisions solely because of the age of the matter, and without any evidence on that issue.
Indeed, the Arbitrator specifically said “there is no evidence”. Nothing in the Respondent Worker’s statement nor any other evidence before the Commission addressed the issue. The Respondent Worker’s Counsel readily conceded that no notice had been given until well over three years after the Respondent Worker ceased work with the Appellant Employer.
In the present case, the Arbitrator commenced by recording appearances for the Respondent Worker and the various insurers of the Appellant Employer. At point 40 on page 1 of transcript A, as referred to earlier, he notes the Appellant Employer’s solicitor, “…has raised a question that was raised at the teleconference about the question of notice, proper notice…”. He then asked the Respondent Worker’s Counsel, “Are you ready to meet this argument…”
It is then that the ‘statement’ or ‘opinion’ is made by the Respondent Worker’s Counsel to which the Appellant Employer’s solicitor objected (page 2.35). Further discussion takes place until at page 4.5 the Arbitrator makes the statement “… I am not disposed to bar an Applicant from bringing his case because of a defect in notice…” referred to earlier in this decision at paragraph 29.
The Rules require that a statement of evidence be filed if a party seeks to give oral evidence. No statement by the Respondent Worker dealing with the issue of notice was filed. The Respondent Worker was not in fact ready, with evidence, to meet the issue of “notice”. In my opinion, it was neither fair nor reasonable for the Arbitrator to simply (page 4.15) “leave the matter in abeyance… until I have heard evidence when we get to that stage..” and then make a determination of “injury” by way of disease, the deemed date of injury being found to be the last date of employment, namely 2 November 1999.
As Deputy President Fleming said in Ramage at paragraph 35:
“Where a dispute is not settled by agreement the Arbitrator must make a determination according to law. This will involve a determination of matters of fact and law essential to establish an entitlement under the Workers Compensation Acts…”
In my opinion, there was no evidence to justify the determination by the Arbitrator that, “with matters that are this old… I am not disposed to bar an Applicant from bringing his case…” given the issues raised by the Appellant Employer, and by so determining in the absence of evidence, the Arbitrator has erred in law.
ADEQUACY OF REASONS
An Arbitrator has a common law and statutory duty to provide adequate reasons (Rule 73 of the Rules). Lengthy reasons are not necessary, however, they must be sufficient to appraise the parties the basis upon which the Arbitrator came to his or her decision.
In this matter, the Arbitrator, in accordance with the guidelines, gave his reasons on various issues orally throughout the conduct of the Arbitration, and they were recorded. The document entitled “Statement of Reasons – Ex Tempore Orders” attached to the Certificate of Determination dated 16 February 2004 seeks to comply with Rule 73 by incorporation of the transcript with the Reasons stating, “To ensure the parties received a timely determination of their dispute the reasons for the orders set out below were given orally at the Arbitration hearing”.
The Arbitrator in my opinion, has failed to provide adequate reasons for determining the issue of notice in favour of the Respondent Worker in the absence of evidence. It is a condition precedent in the determination of “injury”. He has failed to determine the matter fairly and lawfully and has accordingly erred in law (see Y G and G G v Minister for Community Services [2002] NSW CA 247).
In addition, as Deputy President Fleming said in Ramage (paragraph 56):
“The dispute resolution system in the Commission is based upon the principle that ‘all of the information to be used in the dispute resolution process is to be provided and exchanged at the beginning (section 290 of the 1998 Act and Rules 38, 40, 42 and 44). Key information will already be in existence, having been used to support prior resolution attempts between the parties…”
Clearly, the Appellant Employer had raised the issue of notice at the outset and indeed at the teleconference, and that issue would have impacted upon any attempts at resolution. The Respondent Worker nonetheless failed to adduce any evidence on the issue.
CONCLUSION
By proceeding to determine that the Respondent Worker suffered an injury by way of disease within the meaning of section 16 of the 1987 Act, the Arbitrator has effectively determined the issue of ‘notice’ in favour of the Respondent Worker in the absence of any evidence, and in so doing has erred in law. His determination was made without adequate reasons and in my view, the Arbitrator has failed to discharge or exercise his statutory duty to fairly and lawfully determine the matter or to follow section 354 of the 1998 Act.
I am of the opinion that the nature of the errors made by the Arbitrator in this case are such that his decision cannot stand. It is not possible on the material before me to substitute my own decision as is provided for by section 352(8) of the 1998 Act. The Appellant Employer submits that the appropriate course is to refer the matter to the Registrar for allocation to an Arbitrator to determine this matter, and in particular, as a preliminary matter, the issue of notice. That seems to me to be an appropriate course of action.
DECISION
The Arbitrator has failed to make a determination in accordance with sections 61 and 65 of the Workplace Injury Management and Workers Compensation Act 1998, and his decision dated 23 February 2004 is revoked.
The matter is referred to the Registrar to remit to another Arbitrator to determine the matter in accordance with the reasons stated in this decision.
COSTS
I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
14 September 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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