North West Exports Pty Limited (in the interests of NEM General Insurance Association Ltd) v Wilson
[2006] NSWWCCPD 209
•30 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:North West Exports Pty Limited (in the interests of NEM General Insurance Association Ltd) v Wilson [2006] NSWWCCPD 209
APPELLANT: North West Exports Pty Ltd (in the interests of NEM General Insurance Association Ltd)
FIRSTRESPONDENT: Philip John Wilson
SECOND RESPONDENT: North West Exports Pty Ltd (in the interests of Allianz Australia Workers Compensation (NSW) Limited)
FIRST INSURER: NEM General Insurance Association Ltd (in liquidation) Insurance Guarantee Fund
SECOND INSURER: Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC 20986-04
DATE OF ARBITRATOR’S DECISION: 16 May 2005
DATE OF APPEAL DECISION: 30 August 2006
SUBJECT MATTER OF DECISION: Adequacy of reasons; weight of the evidence; Q-fever; injury simpliciter
PRESIDENTIAL MEMBER: Acting Deputy President Robert Harrington
HEARING:On the papers
REPRESENTATION: Appellant: Hunt and Hunt Lawyers
First Respondent: McCabe Partners
Lawyers
Second Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: 1. Leave to appeal is extended to 30 June 2005.
2. Paragraph 1 of the decision of the Arbitrator, dated 16 May 2005 is revoked and the following decision is made in its place:
(1)That the Respondent (North West Exports Pty Limited (in the interests of NEM General Insurance Association Ltd)) pay the Applicant (Mr Wilson) weekly compensation under section 11(1) of the Workers Compensation Act 1926 (as saved by the transitional provisions in Schedule 6.4.4 of the Workers Compensation Act 1987) as follows:
DATE WEEKLY LOSS
1.7.99 – 17.6.00 255.84 18.6.00 – 30.6.00 255.84 1.7.00 – 7.12.00 271.19 8.12.00 – 12.2.01 212.19 13.2.01 – 30.6.01 212.19 1.7.01 – 13.11.01 218.14 14.11.01 – 30.6.02 218.14 1.7.02 – 30.6.03 224.04 1.7.03 - 224.04
Such weekly payments to continue in accordance with the provisions of the Act.
Paragraph 2 of the decision of the Arbitrator, dated 16 May 2005 is confirmed.
The Appellant is to pay the Respondents’ cost of the appeal.
BACKGROUND TO THE APPEAL
On 30 June 2005 North West Exports Pty Ltd (in the interests of NEM General Insurance (in liquidation) Insurers Guarantee Fund) (‘NEM’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 16 May 2005.
The First Respondent to the Appeal is Philip John Wilson (‘Mr Wilson’).
The Second Respondent to the Appeal is North West Exports Pty Ltd (in the interests of Allianz Australia Workers Compensation (New South Wales) Limited)(‘Allianz’)
Mr Wilson was born on 22 November 1959 and is aged 46. Mr Wilson commenced employment with North West Exports Pty Ltd (‘the abattoir’) in 1977. Mr Wilson continued to work for ‘the abattoir’ up until its closure in 1995.
The abattoir was reopened in approximately 1997, according to Mr Wilson, and operated by a company known as “Bindaree Beef”. Mr Wilson returned to work at the abattoir then owned by Bindaree Beef between 1997 and approximately 1999 when he left because (Mr Wilson stated) “of my health and a disagreement I had with them.”
Mr Wilson did obtain employment other than abattoir work up until 2001. He has not been in employment since that time.
At paragraph [12] of the Arbitrator’s decision the Arbitrator refers to the period in which Mr Wilson worked at the abattoir between 1997 and 1999 as a period in which he was working for the “Second Respondent”. However, the “Second Respondent”, Bindaree Beef were not part of the proceedings nor did Mr Wilson claim that he suffered injury in the period 1997 to 1999 whilst working at that abattoir. The reference by the Arbitrator to the “Second Respondent” is clearly an error; however, nothing turns on this.
The reason that Mr Wilson did not rely on the period 1997 to 1999 is made clear by the evidence. Mr Wilson was tested for Q-fever in 1993 and the results of that test established that some time prior to 1993 Mr Wilson had ‘been exposed to Q-fever.’ As such the relevant period of exposure was some time prior to 1993.
The abattoir’s workers compensation insurers in the period 1977 to 1995 were:
·NEM for the period 3 February 1977 to 30 October 1994; and
·Allianz for the period 1 July 1989 to 30 April 1995.
In the conciliation phase before the Arbitrator, Mr Wilson settled his claim with Allianz. In respect of the period 1 July 1989 to 30 April 1995, when Allianz were on risk, the Arbitrator in his decision noted the following consent orders:
“Award in respect of the interests of Allianz Australian Workers Compensation (NSW) Ltd (hereinafter called ‘Allianz’)
1.Award for the Applicant in the sum of $50 per week from 1 July 1989 to 30 April 1995 (agreed to total $1000) thereafter award for the Respondent in interests of Allianz in respect of any liability to the Applicant together with section 60 expenses.
2.The Respondent in respect of the interests of Allianz agrees to pay 50% of the Applicant’s costs.”
As Mr Wilson was unable to reach a conciliated settlement with both insurers, the Arbitrator was left to determine whether Mr Wilson suffered an injury in the period 1977 to 30 October 1994 whilst employed at the abattoir and if so whether he was incapacitated as a result of that injury.
The Arbitration proceeded before the Arbitrator ‘on the papers’. The Arbitrator having considered the submissions of the various parties made the following findings at paragraphs [31] and [32]:
“Having reviewed the medical evidence set out above, and the submissions made by the parties, I am of the view that the Applicant on the balance of probabilities suffered an injury in 1979 or 1980 as a result of ingesting the Q Fever bacillus, that the illness was present from that time and was confirmed by testing done in 1993. It was an occupational hazard and, in my opinion, sufficiently connected to his employment with the respondent to establish the necessary nexus.
I accept that the Applicant suffered recurring symptoms of Q-fever which are deal debilitating and which render him partially incapacitated for work.”
It is against this determination, that NEM now seek leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 16 May 2005 records the Arbitrator’s orders as follows:
“(1) That the Respondent pay the Applicant weekly compensation as follows:-
DATE WEEKLY LOSS
1.7.99 – 17.6.00 255.84 18.6.00 – 30.6.00 255.84 1.7.00 – 7.12.00 271.19 8.12.00 – 12.2.01 212.19 13.2.01 – 30.6.01 212.19 1.7.01 – 13.11.01 218.14 14.11.01 – 30.6.02 218.14 1.7.02 – 30.6.03 224.04 1.7.03 - 224.04
Such weekly payments to continue in accordance with the provisions of the Act.
(2)That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
·Whether there was evidence to support the Arbitrator’s finding that Mr Wilson suffered injury in 1979 or 1980.
·Whether the Arbitrator gave sufficient reasons in respect of his finding that Mr Wilson contracted Q-fever in 1979/80.
·Whether the settlement that Mr Wilson reached with Allianz operates as a bar to Mr Wilson pursuing his right as against NEM.
·Whether the Arbitrator’s award of weekly compensation was supported by the evidence and whether the award of compensation was “grossly excessive”.
ON THE PAPERS REVIEW
Section 354(6) of the of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation that is in issue on appeal in this matter exceeds $5,000 such that section 352(2)(a) is satisfied. Section 352(2)(b) is satisfied as the entirety of Mr Wilson’s entitlement to compensation is the subject of the appeal.
NEM have not complied with section 352(4) of the 1998 Act. The appeal was lodged with the Commission outside the 28 days allowed for an appeal. NEM seek an extension of time for the filing of the appeal documents pursuant to rule 77(8) of the Workers Compensation Commission Rules 2003.
The appeal documents were originally filed with the Commission on 14 June 2005, which is one day out of time. The documents were resubmitted on 30 June 2005. NEM have submitted that they did not receive a copy of the Arbitrator’s decision from the Commission until 25 May 2005. I intend to grant NEM leave to appeal, in doing so, I have taken into consideration the following matters:
·The original appeal was filed with the Commission one day out of time.
·The Commission did not forward a copy of the Arbitrator’s decision until 25 May 2005.
·The Arbitrator’s decision is in respect of an injury which the Arbitrator found was sustained in 1979/80. Mr Wilson’s ‘Application to Resolve a Dispute’ (his claim) was lodged in the commission in 2004, 24 years after injury.
I am of the view that to require such a strict compliance with the rules would lead to substantial injustice for NEM: see Gallo v Dawson (1990) 93 ALR 479. Therefore, I order that time to apply for leave to appeal be extended to 30 June 2005.
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
Medical evidence as to injury
NEM presented no medical evidence to the Arbitrator. The relevant medical evidence consisted of:
·Professor Andrew Lloyd;
·Dr D. Sutherland; and
·Dr George Hession.
The doctors’ opinions as to the occurrence of the injury can be summarised as follows:
·Professor Lloyd’s opinion was; “[i]t is more likely than not that he acquired infection within the workplace.”
·Dr Sutherland’s opinion was; “on the balance of probabilities, Mr Wilson suffered from an occupation acquired infection with C. burnetti, while working at the Inverell abattoir.”
·Dr Hession’s opinion was; “[b]ased on his history and the knowledge that he suffered acute Q-fever or was exposed to the causative organism at some time prior to 1993, a diagnosis of mild post Q-fever fatigue syndrome is considered certainly possible or even likely.”
The three doctors’ opinions as to injury (that is all the expert evidence as to injury) which were before the Arbitrator established that Mr Wilson had contracted Q-fever whilst in the employ of the abattoir. The only issue left to be decided by the Arbitrator in respect of the injury was at what point in time, whilst employed by the abattoir, did Mr Wilson contract Q-fever?
Lay evidence as to injury
The only lay evidence dealing, directly with the issue of injury consisted of the statement of Mr Wilson, dated 14 November 2002. Mr Wilson was not cross-examined. Mr Wilson’s evidence was that he worked for the abattoir as a labourer from 1977 onwards. Relevantly in respect of the alleged injury, he said at paragraph [18] of his statement:
“In late 1979 or 1980, I’m not sure exactly, I had to take several weeks off work. In those days, if you looked like having Q-fever or tuberculosis you were paid workers compensation, as long as you were off sick.
I found that at this time I got really sick and had the following symptoms:
·Flu like symptoms, that wouldn’t go away.
·Sweating. One minute I would be hot and the next I would be cold.
·At night I would be shivering and sweating so much that I would have to change my sheets.
·Constant coughing.
·No energy.
·Aching muscles.
·Interrupted sleep patterns.
·High Temperature followed by shivering.”
On appeal, NEM relied on a workers compensation claim form submitted by Mr Wilson (dated 6 June 1982) in respect of an injury of 24 May 1982 to his left little finger. The relevance of the claim form, NEM submits, is that Mr Wilson’s failure to disclose his previous Q-fever in that claim form, would tend to negate Mr Wilson’s contention that he suffered from Q-fever prior to 1982. I do not accept this submission because in 1982 Mr Wilson had not been diagnosed with Q-fever. As such Mr Wilson would not have insight into his ongoing intermittent symptoms. In those circumstances it would not be expected that Mr Wilson would have recorded in a claim form in 1982 intermittent flu like symptoms of which he did not know the cause.
DISCUSSION AND FINDINGS
The evidence did not support the finding of injury
On appeal, the gravamen of NEM’s submissions would seem to be that there are approximately 13 years between the date of the alleged injury and when Mr Wilson was first diagnosed as having suffered from Q-fever in May 1993. There is no corroborative evidence particularly from his general practitioner during the 13 years that he in fact suffered from Q-fever. This would be a strong argument in respect of a frank injury; however, Mr Wilson suffers from an occupational disease. The relevant medical evidence before the Arbitrator clearly established that:
·Mr Wilson had been exposed to Q-fever bacteria prior to 1993.
·The exposure had occurred at the abattoir.
·Mr Wilson, as a result of exposure to Q-fever, has been left with post viral fatigue syndrome/post Q-fever debility syndrome/chronic fatigue syndrome/post Q-fever fatigue syndrome (the aforementioned syndromes describe the same medical condition).
The only issue left to be decided in respect of injury was; when did Mr Wilson become infected by bacillus Coxiella burnetii? The evidence established beyond doubt Mr Wilson was infected by the bacteria sometime between 1977 and 1993. The Arbitrator had the uncontested evidence of Mr Wilson in respect of the symptoms he suffered in 1979/1980. These symptoms were consistent with a Q-fever infection. Both Drs Sutherland and Hession were of the opinion, accepting the symptoms Mr Wilson said he suffered from in 1979/80, that; “it is more likely than not Mr Wilson did suffer from occupation acquired acute Q-fever, probably in 1979 or 1980.”
NEM rely upon the evidence of Professor Lloyd. It is my opinion, Professor Lloyd, on the balance of probabilities, clearly supports the following:
·Mr Wilson acquired the Q-fever infection at the abattoir some time prior to 1993; and
·accepting Mr Wilson’s description of symptoms in 1980, it was 1980 when he acquired the Q-fever.
Professor Lloyd was not able to opine, on the balance of probabilities that Mr Wilson’s continuing symptoms were in fact caused by post Q-fever fatigue syndrome. However, Professor Lloyd does not rule out the connection. He merely states that is unable to reach a conclusion based on the evidence. The Arbitrator had available to him the evidence of Dr Sutherland and Dr Hession. Both doctors supported the Arbitrator’s findings.
It is clear in my opinion that there was ample evidence before the Arbitrator to support his findings on injury. In fact, when the whole of the lay and medical evidence is considered, it is difficult to see how the Arbitrator could have come to a different conclusion.
The nature of a review to Presidential Member has been considered in a number of cases. In Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6 (‘Mayne’) Deputy President Fleming considered the nature of a review and held at paragraph [11]:
“A consideration of the nature of the hearing before the Arbitrator at first instance, of the broad powers, functions and discretions exercisable by the Arbitrator and of the express limitations on evidence before the ‘review’ under section 352, lend support to the view that the Commission has a specific and limited role on appeal (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000). It is not an ‘appeal’ in the strict sense, as the Commission can receive further evidence. Similarly it is not a ‘rehearing’ of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 31 August 2000; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘...some legal, factual or discretionary error’ (Allesch v Maunz [2000] HCA 40 (3 August 2000)).”
A ‘review’ is not intended to be a ‘full second hearing’ (see Christopher Michael McMahon v Anthony Lagana and Joseph Lavella t/as the Vessel “Nimble II” [2003] NSWWCCPD 22). Consistently with the Mayne principles I am of the opinion that the Arbitrator’s finding in respect of injury is not reviewable.
The Arbitrator found Mr Wilson was partially incapacitated as a consequence of an occupational disease. Occupational diseases are usually contracted as a gradual process in the course of employment. The Arbitrator’s finding that Mr Wilson suffered injury simpliciter in 1979/80 is not inconsistent with a finding that Mr Wilson suffers from the consequences of an occupational disease. In Favelle Mort v Murray [1976] HCA 13; (1976) 133 CLR 580 the High Court confirmed that the entry of a virus [or bacteria] into the body can be classified as an ‘injury simpliciter’.
Failure to give reasons
In Mayne Deputy President Fleming said in respect of the Arbitrator’s duty to provide reason paragraph [43] to [46]:
“Commission Arbitrators have a common law and statutory obligation to provide adequate reasons for decision (Public Service Board of New South Wales v. Osmond (1985-1986) 159 CLR 656; Absolon v. NSW TAFE [1999] NSWCA 311(‘Absolon’); Rule 41). Failure to do so constitutes an error of law and may be a ground to set aside the original decision on review.
The standard by which the ‘adequacy’ of reasons may be determined is relative to he the nature and context of the decision made and the decision-maker. There are a number of authorities in relation to judicial review of decisions of federal administrative tribunals that support this proposition and which are have relevance to a consideration of the nature of review of Arbitrators decisions in the Commission (see for example, Collector of Customs v Pozzoloanic (1993) 43 FCR 280; Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259 (‘Liang’); Minister for Immigration and Multicultural Affairs v Yusuf; (2001) 10 ALR 1).
The Commission is not a court and its objectives are to provide a dispute resolution process that is fair and cost effective for the parties to a workers compensation dispute. Proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. The content of statements of reasons for decision reflect this process and should not on review, be ‘construed minutely and finely with an eye keenly attuned to the perception of error’ (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287). This is not to say that decisions should not be soundly based nor that the reasons should not be capable of conveying clearly the matters required by Rule 41 (set out above). As Kirby J observed in relation to a decision of the Refugee Review Tribunal in Liang, the decision-maker’s reasons will remain the ‘only insight into the considerations which were, or were not, taken into account in reaching the decision’ (at 291).
To succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application. The Court of Appeal in YG & GG v. Minister for Community Services [2002] NSWCA 247 (26 July 2002), Hodgson JA, noted that,
‘. . . inadequate reasons do not without more show that the decision involved error: the inadequacy must be such as to warrant the inference that the Tribunal had not exercised its jurisdiction in accordance with law: see Absolon v NSW TAFE [1999] NSW CA 311.
. . . In my opinion, a question whether there is a deficiency of reasons, and whether that deficiency warrants an inference that a tribunal has not exercised its jurisdiction in accordance with law, is a matter of judgment, and in borderline cases, minds may reasonably differ.’ (at paragraphs 37-38)”
The Arbitrator’s reasons in respect of his finding that Mr Wilson suffered an injury in 1979/80 are not extensive however in the context of the present case where:
·there was an absence of any relevant evidence from NEM;
·Mr Wilson had worked for the abattoir from 1977 continuously to 1993;
·the expert evidence established overwhelmingly, on the balance of probabilities, that he was infected with Q-fever at the abattoir some time prior to 1993; and
·together with the uncontradicted evidence of Mr Wilson as to the symptoms he suffered in 1979/80, the symptoms of which, all doctors considered, were consistent with Q-fever.
I am of the opinion that the Arbitrator’s reasons were, consistent with the principles enunciated in Mayne, adequate.
The legal effect of the settlement with Allianz
NEM’s submission in respect of the legal consequences that flow from Mr Wilson’s settlement with Allianz is not clear. It would seem that they are submitting the settlement should be taken into account with other evidence or lack of evidence to negate the occurrence of the alleged injury to Mr Wilson in 1979/80. I am of the opinion that settlement does not impact on the Arbitrator’s finding of injury; whether NEM’s submission is that the settlement was evidence on which Arbitrator should have rejected Mr Wilson’s claim in respect of injury or whether they submit that the settlement created some legal bar to Mr Wilson claiming injury in 1979/80 does not, in my opinion, make a difference. I agree with Mr Wilson’s submissions that the nominal $1000 settlement with Allianz in respect of the period 30 June 1989 to 30 April 1995 does not establish an injury in the later period and, even if an inference of injury can be drawn from the settlement, that injury does not preclude a finding of injury in 1979/80 and the finding of incapacity resulting from that injury.
The Arbitrator’s findings in respect of incapacity
The Arbitrator assessed Mr Wilson’s entitlement to compensation under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’). Having found Mr Wilson suffered an injury in 1979/80 the assessment should have been made under section 11(1) of the Workers Compensation Act 1926 (‘the 1926 Act’). Although the 1926 Act has been repealed, Schedule 6.4.4 of the 1987 Act preserves the operation of section 11(1) of the 1926 Act where the injury was received before the commencement of the 1987 Act. I agree with Mr Wilson’s submissions that there is no discernible difference in the assessment or methodology as between section 11(1) of the 1926 Act and section 40 of the 1987 Act. The Arbitrator in assessing Mr Wilson’s section 40 entitlement applied the five stage process enunciated in Mitchell v Central West Health Service [1997] 14 NSWCCR 527. The same process is required in an assessment under section 11(1) of the 1926 Act; see Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530. The error, in my opinion, does not vitiate the Arbitrator’s findings or decision in respect of Mr Wilson’s entitlement to weekly compensation.
NEM submits that the Arbitrator erred in finding that Mr Wilson suffered an economic incapacity as a result of his injury. NEM submits that the fact that Mr Wilson was able to carry on working in his pre-injury duties up until 1999 would prevent him from any entitlement to weekly compensation payments in respect of partial incapacity. A worker’s ability to earn monies equivalent to his or her pre-injury earnings or to perform his or her pre-injury duties is not necessarily a bar to an award for payments of weekly compensation during periods of partial incapacity, see Novello v Zinc Corporation Ltd (1988) 14 NSWLR 25.
The Arbitrator had before him evidence from Dr Hession and Dr Sutherland that Mr Wilson suffered from Q-fever fatigue syndrome (Q-fever debility syndrome). Mr Wilson’s statement contained the uncontradicted evidence at paragraph [26] and paragraph [28] that “I [Mr Wilson] never know when I will get sick” and “it is hard to find work because I [Mr Wilson] get sick so often”. There was clearly evidence upon which the Arbitrator could come to the conclusion that Mr Wilson was partially incapacitated for work and that he was economically disadvantaged in the available labour market as a result of that partial incapacity. Further it is my view that the Arbitrator’s method of calculating Mr Wilson’s entitlement to compensation under section 40 (section 11) as set out in paragraphs [40] to [46] of his decision was an appropriate method of calculating Mr Wilson’s entitlement to compensation in the circumstances. I am of the opinion that NEM has not established that the Arbitrator decision was vitiated by “some legal, factual or discretionary error” (Allesch v Maunz [2000] HCA 40).
NEM’s submissions refer to an error by the Arbitrator in describing, at paragraph [46] of his decision, the worker’s actual earnings when clearly the Arbitrator was referring to Mr Wilson’s ability to earn in his injured state. Mr Wilson had not worked since 2001. Therefore, in my opinion, nothing turns on this error.
Finally, given that the Arbitrator assessed Mr Wilson’s entitlement to weekly compensation in accordance with section 40 of the 1987 Act, rather than section 11(1) of the 1926 Act consideration must be given as to whether to be Certificate of Determination dated 16 May 2005 should be revoked. The Certificate of Determination does not refer to the 1926 Act or the 1987 Act or the section under which compensation payments are to be made. As such the Certificate of Determination would be applicable under either Act. For the sake of clarity, it is my opinion, that paragraph 1 of the Certificate of Determination should be revoked and a new order substituted.
DECISION
Paragraph 1 of the Arbitrator’s decision dated 16 May 2005 is revoked and the following order is made in its place:
(1)That the Respondent (North West Exports Pty Limited (in the interests of NEM General Insurance Association Ltd)) pay the Applicant (Mr Wilson) weekly compensation under section 11(1) of the Workers Compensation Act 1926 (as saved by the transitional provisions in Schedule 6.4.4 of the Workers Compensation Act 1987) as follows:
DATE WEEKLY LOSS
1.7.99 – 17.6.00 255.84 18.6.00 – 30.6.00 255.84 1.7.00 – 7.12.00 271.19 8.12.00 – 12.2.01 212.19 13.2.01 – 30.6.01 212.19 1.7.01 – 13.11.01 218.14 14.11.01 – 30.6.02 218.14 1.7.02 – 30.6.03 224.04 1.7.03 - 224.04
Such weekly payments to continue in accordance with the provisions of the Act.
Paragraph 2 of the decision of the Arbitrator, dated 16 May 2005 is confirmed.
COSTS
The Appellant is to pay the Respondents’ costs of the appeal.
Robert Harrington
Acting Deputy President
30 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBERT HARRINGTON ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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