Patrick Stevedores No.1 Pty Limited (In Liquidation), formerly called National Terminals (Australia) Limited v Kruger

[2007] NSWWCCPD 231

WORKERS COMPENSATION COMMISSION

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

CITATION:Patrick Stevedores No. 1 Pty Limited (In Liquidation), formerly called National Terminals (Australia) Limited v Kruger [2007] NSWWCCPD 231

APPELLANT:  Patrick Stevedores No. 1 Pty Limited

RESPONDENT:              Otto Francis Kruger

INSURER:Allianz Australia Workers Compensation (NSW) Limited

FILE NUMBER:  WCC589-07

DATE OF ARBITRATOR’S DECISION:          20 July 2007

DATE OF APPEAL DECISION:  28 November 2007

SUBJECT MATTER OF DECISION: Whether a commutation agreement extinguished liability to pay compensation under Division 4 of the Workers Compensation Act 1987 in respect of a claim made after the date of the agreement.

PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore

HEARING:On the papers

REPRESENTATION:  Appellant:      Ellison Tillyard Callanan 

Respondent:   Turner Freeman

ORDERS MADE ON APPEAL:  1.         Paragraph 1 of the decision of the

Arbitrator dated 17 April 2007 is confirmed. Paragraph 2 of that decision is revoked.        

2.        The decision of the

Arbitrator dated 20 July 2007 is revoked and the following decision substituted:

i.Award in favour of the Respondent.

ii         No order as to costs

3. No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1.On 9 August 2007, Patrick Stevedores No. 1 Pty Limited (In Liquidation), formerly called National Terminals Australia Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 20 July 2007.

2.The Respondent to the appeal is Otto Francis Kruger (‘the Respondent/Mr Kruger’).

3.Mr Kruger was born on 27 May 1932.

4.Mr Kruger commenced employment as a waterside worker on the Sydney waterfront in 1950 and continued in that employment until 10 March 1991 when he accepted a voluntary redundancy. One of his employers during that period was the Appellant.

5.Mr Kruger claimed that he had not worked since accepting redundancy, except for a few days on a “supplementary roster in 1991 and 1992”.

6.Mr Kruger’s duties were those of a general waterfront labourer, involved in the loading and unloading of ships. Whilst working out doors, Mr Kruger claimed he was constantly exposed to sunlight as a consequence of which he developed skin cancers.

7.In a statement dated 23 January 2006, Mr Kruger claimed that he first obtained treatment for skin cancers “… approximately 20 years ago”.

8.For the purposes of proceedings before the Arbitrator, it was agreed that the Appellant was the last employer who employed Mr Kruger in employment the nature of which gave rise to a risk of the aggravation, exacerbation, acceleration or deterioration of skin cancer.

9.In 1994, Mr Kruger commenced proceedings in the former Compensation Court against four named Respondents, including the present Appellant. In those proceedings, Mr Kruger claimed weekly compensation from 18 March 1991, medical expenses, and a section 66 lump sum payment in relation to severe facial disfigurement consequent upon his skin cancers.

10.In an unsealed and undated copy of his Application for Determination annexed to Mr Kruger’s Application before the Commission, the date and place of injury as against the Appellant were identified as follows:

“The Applicant was injured due to the nature and conditions of his employment with the Respondent from 1 May 1989 to 18 March 1991 involving continued exposure to the sun.”

The nature of the injury was described as:

“Injury to the Applicant’s skin, which has involved the removal of various skin cancers, caused and/or aggravated by the … [nature and conditions of his employment]”.

11.In his Application for Determination, Mr Kruger claimed that notice of the injury had been given “on or around 18 March 1991” and that the date of claim for compensation was made at the same time.

12.By an ‘Application for Commutation’ dated 17 January 1996 [sic 1997], the parties applied to the WorkCover Authority for approval of the commutation in the sum of $15,000.00.

13.On 12 February 1997 Judge Curtis of the former Compensation Court approved the commutation in an award settled on 16 April 1997.

14.A number of parties were named in the proceedings but terms of the commutation, as between the Appellant and Respondent in these proceedings, are as follows:

“(3)     HEREBY ORDERS AND AWARDS:

(i)That the liability of the Third and Fourth Respondents to make weekly compensation payments to the Applicant in respect of incapacity for work resulting from injury/ies referred to in the Application for Determination may be commuted as from 30 June 1987 by payment to the Applicant of a lump sum of $15,000.00 as determined by the Court pursuant to the provisions of section 51 and in addition to any payments made.

(4)NOTES:

(1) The Applicant agrees that the said lump sum removes liability under divisions 3 and 4 of Part 3 of the Act.

(7)The Applicant agrees that in respect of any injuries received prior to 30 June 1987, he was not incapacitated for his employment duties nor were there any assessable impairments arising as a result of any incident during that time other than those incidents for which the Applicant has been duly compensated for by his employer/s.

(8)Other than recurrences of the pleaded incident, the Applicant has suffered no further injuries during his employment with the Third and Fourth Respondents, and the Applicant has no further rights to compensation after 30 June 1987 against the said Respondents”.

15.It is noted that the “pleaded incident” referred to in the Commutation Application was indentified as “… the nature and conditions of his employment with the Respondent … involving continued exposure to the sun.”

16.The Application for Commutation described the “nature and severity of injury” as “dermatitis/skin cancer condition due to exposure to sun during employment”.

17.The period of employment was identified as being “1967 – 18.3.91.”

18.It was alleged in the Commutation Application that the Respondent had been unemployed since ceasing with the Appellant on 18 March 1991.

19.The Appellant claims that “the Commutation sum was paid by cheques drawn on 4 July 1997 and 5 July 1997”.

20.On 5 February 2007 the Respondent filed an ‘Application to Resolve a Dispute’ in the Commission. (It is noted that the Registry has wrongly stamped the document 5 February 2006). By that Application, the Respondent claimed that the date of injury was 29 September 2005 (deemed) and that the injury was “skin cancer condition” attributable to sun exposure. In those proceedings, he claimed benefits pursuant to sections 60, 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).

21.In its ‘Reply’ filed on 23 February 2007, the Appellant denied liability to pay compensation.

22.The parties attended a conciliation/arbitration hearing on 26 March 2007. Both parties made oral submissions recorded in a transcript of that date.

23.It was the Appellant’s contention that, in light of the commutation, the Respondent had no entitlement to compensation in respect of the injury the subject of the application which arose out of the same circumstances as the claim that was commuted and which was in reality the same injury. It was the Respondent’s submission that the commutation was only in respect of injuries occurring prior to 16 April 1997, the date of approval of the commutation. As the current injury was deemed to have occurred after that date, it could not be said to be the subject of the commutation such that the Respondent was entitled to pursue the claim.

24.A ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued on 17 April 2007. The determination of the Commission was as follows:

“1. Award for the Respondent in respect of the claim for s.60 expenses.

2.I remit the claim for permanent impairment benefits to the Registrar for referral to an AMS.”

25.In short, the Arbitrator concluded that the Respondent was not precluded from pursuing his claim for benefits pursuant to sections 66 and 67 of the 1987 Act because the Appellant’s liability for the injury was not extinguished by the commutation the subject of the award settled on 16 April 1997.

26.Following the Arbitrator’s determination, the claim was referred to Dr William Walker, Approved Medical Specialist (‘AMS’) who certified the Respondent as suffering a 10% whole person impairment as a consequence of his skin cancer.

27.On 18 July 2007 the parties attended a further conciliation/arbitration hearing. On 20 July 2007, a further ‘Certificate of Determination’ was issued. The determination of the Commission was as follows:

“1.      Respondent to pay $12,500.00 in respect of 10% WPI.

2.Respondent to pay $8000.00 for pain and suffering.

3.Respondent to pay the Applicant’s costs as agreed or assessed.”

28.Reasons for this decision were given ex tempore, and are contained in a transcript of that date.

29.It is from these decisions that the Appellant seeks leave to appeal.

30.On 21 September 2007, the Respondent filed a ‘Notice of Opposition to Appeal’. In short, the Respondent submits that no errors were made by the Arbitrator and that his decision ought be confirmed.

LEAVE TO APPEAL

31.Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘the 1998 Act’).

32.The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act, and the appeal was filed in time in compliance with section 352(4) of that Act.

33.Leave to appeal is granted

ON THE PAPERS REVIEW

34.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.”

35.The Appellant submits that the matter is suitable for a determination ‘on the papers’.

36.The Respondent submits that:

“… An oral hearing is necessary to determine the appeal. The appeal raises issues of a complex legal nature, in relation to which there are few authorities, none of which directly address the issues. The result of the appeal will determine whether other workers can bring claims in similar circumstances to the claim bought by the Respondent. That result will therefore become a significant authority”.

37.Since the filing of the Respondent’s ‘Notice of Opposition’ there has been further authority addressing the issues raised to which I will refer in due course.

38.I am required to consider whether I have “sufficient information” to determine the appeal.

39.Having regard to Practice Direction No’s 1 and 6, the documents that are before me, and the detailed submissions by both parties on appeal, 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.

THE ISSUES IN DISPUTE

40.The Appellant submits that Arbitrator’s conclusion as to the effect of the commutation is wrong in law, and refers to relevant legislation and a number of authorities in support of its submissions.

THE ARBITRATOR’S FINDINGS AND REASONS – 17 APRIL 2007

41.After setting out the relevant provisions in relation to commutation applications, namely section 51 of the 1987 Act, the Arbitrator then noted each parties’ submissions. He then made reference to a decision of Judge Neilson of the former Compensation Court of Mirkovic v Davids Holdings Pty Limited (1995) 11 NSWCCR 656 before concluding as follows:

“(20)What is of importance in Mirkovic is the conclusion that what is redeemed (or commuted) is entitlement to compensation and not the liability resulting from the injury. That conclusion seems consistent with the structure of section 51 which refers to the liability in respect of weekly compensation and separately liability to make a payment under Division 3 and Division 4 of Part 3. It does not refer to redeeming liability in respect of an injury.

(21)There is no dispute that s.16 applies to the injury the subject of this claim for permanent impairment benefits. It is agreed that applying Alto Ford Pty Limited v Antaw (1999) 18 NSWCCR 246 and other cases the injury is deemed to have occurred on 29 September 2005. Section 16 operates where an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease to deem the accident to have happened at a particular time. The section operates ‘for the purposes of the Act’.

(22)It follows that when applying s.51 it must be read taking into account the effect of s.16. One cannot be read without regard to the other. The combined effect is that the commutation must be interpreted accepting that the injury being the permanent impairment did not occur until after the date of the commutation. In those circumstances, the injury cannot be the subject of the commutation.

(23)This despite the reality that the injury occurred as a result of the same circumstances as the injuries included in the commutation. It was the entitlement to compensation for injuries that had already occurred that was commuted and not the liability arising from a set of circumstances. Such is the nature of deeming provisions that the result in law may be surprising. Sections 15 and 16 have resulted in conclusions that there are multiple dates for the injury arising from the same circumstances (Alto Ford –v- Antaw), a claim for permanent impairment benefits is never out of time (Gow v Patrick Stevedores No. 2 Pty Limited (2002) 24NSWCCR 626) and workers being entitled to benefits that did not exist at the time the injury occurred in fact (Stone v Stannard Bros Launch Services Pty Limited [2004] NSWCA 277). In Hallett v Commissioner of Police (2004) 1DDCR 580 Judge Walker determined that the entitlement of the worker was to be determined applying the version of s.11A that applied at the deemed date of injury rather than at the date the events complained of occurred.

(24)It is clear from the authorities that the quantum of any claim for permanent impairment benefits is calculated as at the deemed date of injury and not at any other date. It is consistent with that position that the commutation did not affect an entitlement that does not occur until there is a deemed date of injury remembering that it is the entitlement to benefits that is commuted.

(25)In this case, the commutation was expressed as being in respect of the injury/ies referred to in the Application for Determination. The Application for Determination alleges that the date for the notice of injury and the claim for compensation are both 18 March 1991. The injury that is the subject of those notices cannot be the injury that is the subject of the notice in September 2005. The commutation can only act to commute the liability or entitlement the subject of the orders. The orders made in this case do not in any event purport to include any liability that might arise in the future as a consequence of the circumstances described at paragraphs 5 and 6 of the Application.

(26)It follows that in my view, the Applicant is free to pursue his entitlements in respect of the injury deemed to have occurred on 29 September 2005. That injury is in respect of permanent impairment benefits only.”

THE SUBMISSIONS, EVIDENCE AND FINDINGS

42.The Appellant makes the following submissions:

“It is not disputed by the worker that the commutation approved by the Compensation Court included an agreement in accordance with s.51(3). The argument advanced by the worker and accepted by the Arbitrator was based on Mirkovic v Davids Holdings Pty Limited (1995) 11NSWCCR 656 (‘Mirkovic’).

The Arbitrator regarded Mirkovic as authority for the proposition that ‘what is redeemed (or commuted) is entitlement to compensation and not liability resulting from the injury …’ (para 20).

With respect to the Arbitrator, the language of s.51(3) is entirely clear and to the contrary. What is removed by the worker’s agreement is ‘any liability to make payment under Division 3 or 4 in respect of the injury’. Contrary to the Arbitrator’s conclusion, what is commuted is ‘any liability to make a payment under Divisions 3 or 4 in respect of the injury’”.

43.As the Appellant also points out, Mirkovic was decided under s.15 of the Workers Compensation Act, 1926, which contained different wording.

44.In short, it is the Appellant’s submission that the Arbitrator made an error of law in concluding that the commutation did not in fact extinguish further liability on the part of the Appellant.

45.Similar issues were recently considered by ADP Handley in Lovett McCracken & Bray Pty Limited v Gales [2007] NSWWCCPD 198 (‘Gales’).

46.In that case, the worker was a merchant seaman from 1951 until March 1981 when he commenced employment with the employer as a deckhand/tug driver. He resigned in July 1996 on medical grounds. He made a number of workers compensation claims between 1991 and 2006 in respect of various injuries, including skin cancer.

47.In March 1999, the worker commenced proceedings in the former Compensation Court of NSW in respect of various orthopaedic injuries. In March 2000 he agreed to a commutation of his claim. The employer’s liability was redeemed and commuted by payment of the sum of $35,000.00. The Short Minutes of Order signed by the parties included a clause whereby the worker agreed that the lump sum also “removes liability under Divisions 3 and 4 of Part 3” of the 1987 Act. An annexure to the Short Minutes amended the ‘Application for Determination’ to include additional injuries including “skin cancer, severe facial disfigurement and severe bodily disfigurement”.

48.In July 2006 the worker made a claim on the employer’s insurer for compensation in respect of skin cancer allegedly as a result of the nature and conditions of his employment. Following an arbitration hearing on 26 April 2007, the Arbitrator issued his decision on 15 May 2007 wherein he entered an award in favour of the employer in respect of the worker’s claim for section 60 expenses but remitted the lump sum claim to the Registrar for referral to an AMS.

49.The Arbitrator determined that the skin cancer was a disease of gradual onset, and that, since death or incapacity had not resulted from the injury, then section 15(1)(a)(ii) of the 1987 Act applied, so that the deemed date of injury was the time that the worker made a claim for compensation with respect to the injury, which was 12 July 2006. The Arbitrator adopted the Court of Appeal decisions in Alto Ford Pty Limited v Antaw [1999] NSWCA 234 and Stone v Standard Bros Launch Services Pty Limited [2004] NSWCA 277.

50.Acting Deputy President Handley then stated as follows:

“(10)The Arbitrator noted that these two decisions had recently been followed by an arbitrator in Kruger v National (Terminals Australia) Ltd [WCC 589-07, 17 April 2007] (‘Kruger’), where a commutation had occurred and there was a later claim for compensation under section 66. The Arbitrator also referred to the Compensation Court decision of Neilson J in Mirkovic v Davids Holdings Pty Ltd [1995] NSWCC 19; (1995) 11 NSWCCR 656 (‘Mirkovic’) as authority for the proposition that a commutation or redemption does not extinguish liability for entitlements in respect of entitlements which did not exist at the time of the commutation.

(11) The Arbitrator concluded that Mr Gales could pursue his claim under section 66 because LMB’s liability for this injury was not extinguished by the commutation approved by the Compensation Court on 30 March 2000.”

51.The issue for Acting Deputy President Handley to decide was whether the Arbitrator made an error of law in construing the commutation agreement as not extinguishing the liability of the employer in respect of the worker’s claim for permanent impairment compensation in respect of skin cancer.

52.Acting Deputy President Handley concluded as follows:

“43.There is no dispute that on 17 May 1999 Mr Gales made a claim for section 60 medical expenses in respect of the ‘injury’ skin cancer, which the parties accept is a disease of gradual process. Mr Gales claimed and there seems to be dispute that he contracted the disease through exposure to sunlight in the course of his employment with LMB as a deckhand/tugdriver between 1981 and July 1996. However, since skin cancer was not the cause of his incapacity when he stopped work on 12 July 1996, the application of section 15(1)(a)(ii) determines that the deemed date of injury in respect of this claim is the date the claim was made, that is 17 May 1999.

44. On 30 March 2000, Mr Gales entered into a commutation agreement that was approved by the Compensation Court (Geraghty J). At issue, is the effect of the commutation agreement on any further liability of the employer. Section 51(3) of the 1987 Act in effect at that time, quoted in paragraph 8 above, provided that where a worker agrees that a lump sum payment should remove any liability to make a payment under Divisions 3 (medical, hospital and related expenses) or 4 (compensation for non-economic loss, including permanent impairment), “payment of the lump sum removes any liability to which the agreement of the worker relates”.

45.As a result of the amendment contained in the Annexure to the Short Minutes of Order, the commutation agreement included additional injuries not listed in the original ‘Application for Determination’, in particular, “skin cancer, severe facial disfigurement and severe bodily disfigurement”.

49.In my opinion, neither sections 15 nor 16 create a liability to pay compensation. Rather, liability is a consequence of an ‘injury’ (section 4) arising out of or in the course of the worker’s employment: Crisp v Chapman (1994) 10 NSWCCR 493, at 495 (Mahoney A-P). If, as in Mr Gales’ case, the injury is a disease of gradual process contracted over a number of years, during which time the worker will not uncommonly have worked for a number of employers, section 15 applies to determine the deemed date of injury in order to establish upon which employer liability to pay compensation falls: JM & DL McGregor Constructions Pty Ltd v Hughes [2006] NSWWCCPD 197, at paragraph 44 (Acting Deputy President Roche).

50.While the skin cancer injury in respect of which Mr Gales made a claim for permanent impairment under section 66 of the 1987 Act is, “for the purposes of the Act, deemed to have happened” (section 15(1)(a)), on 12 July 2006, when Mr Gales made a claim, nevertheless, the injury occurred during the course of his employment between March 1981 and July 1996 and was obviously known to the parties and in their minds at the time of the commutation agreement on 30 March 2000, in which reference to that condition was made.

53.In my view, section 51(3) of the 1987 Act in effect at the time of the commutation was effective to remove liability for entitlements in respect of the listed injuries, including skin cancer, which had occurred prior to the date of commutation. Thus, LMB were not liable in respect of Mr Gales’ later claim for compensation for permanent impairment in respect of skin cancer under section 66. QBE having established the Arbitrator made an error of law justifying interference with his decision, that decision must be set aside and a new decision substituted.

54. In concluding, I note that the fact that there may be different deemed dates of injury in respect of entitlements under the 1987 Act is not in this case relevant to the determination of the issue of the effect of the commutation agreement. With regard to the decision in Mirkovic, relied on by the Arbitrator, and to which reference is made by Mr Gales’ solicitors, Neilson J found that the redemption was effective to redeem the employer’s liability in respect of injuries occurring after 30 June 1985. However, despite evidentiary problems and credit issues in that case, the redemption did not affect the worker’s right to bring a claim for incapacity arising from an injury before that date, specifically an injury sustained on 15 January 1980, liability for which had not been redeemed. In my view, that decision does not assist Mr Gales’ case, the facts of which are materially different.”

53.The facts and circumstances of the present case are similar to Gales. However, in the present case, the Respondent’s claim in his ‘Application for Determination’ filed in the Compensation Court was in respect of an ‘injury’ occurring as a result of the ‘nature and conditions’ of his employment with the Appellant from 1967 until 1981 involving continued exposure to the sun. That was the nature and extent of the claim, and it was that claim that was the subject of the commutation application.

54.The award of the Compensation Court dated 16 April 1997 included a clause that: “The Applicant agrees that the said lump sum removes liability under Divisions 3 and 4 of Part 3 of the Act.”

55.Further notations to the award are as follows:

“(7)The Applicant agrees that in respect of any injuries received prior to 30 June 1987, he was not incapacitated for his employment duties nor were there any accessible impairments arising as a result of any incident during that time other than those incidents for which the Applicant has been duly compensated for by his employer/s.

(8)Other than recurrences of the pleaded incident, the Applicant has suffered no further injuries during his employment with the Third and Fourth Respondents, and the Applicant has no further rights to compensation after 30 June 1987 against the said Respondents.

(9)Nothing in this award affects the Applicant’s rights to pursue any dust disease claim”.

56.As the Appellant rightly points out:

“Sections 15 and 16 of the Act are provisions designed to enable the date of injury to be identified. They do not provide a further class of injury in addition to those defined in s.4 of the Act. Sections 15 and 16 operate on injuries as defined by s.4. Sections 15 and 16 were derived from s.7(4) WCA 1926 of which the High Court said in Smith v Mann (1932) 47CLR 426 at 449:

‘Subsection (4) of section 7 deals with the special cases of diseases contracted by a gradual process, and also operates by way of extension. The nature of the disease contracted by a gradual process is such as to make it difficult and sometimes impossible to say how far a particular period of employment contributed. The purpose of the sub-section is to fix upon the latest employer for the purpose of immediate liability to the worker, leaving him to recover from others by way of contribution … the employer at the time of or last before the incapacity is made primarily liable.”

57.In Crisp v Chapman (1994) 10NSWCCR 492 at 495 Mahoney AP said as follows:

“It is, I think a confusion to treat section 15 or section 16 of the 1987 Act as in the sense here relevant creating liability for compensation. In general each of the sections assumes that an injury has occurred and each provides the means of determining when the injury is deemed to have happened by whom compensation is payable and other ancillary matters. In principal it remains for the worker to prove that an injury has occurred and accordingly that s.9(1) has been satisfied. To prove that it is necessary for the worker to prove the happening of an ‘injury’ within s.4”.

58.The Appellant makes the following further relevant submission:

“For the purpose of the Act the worker must establish an ‘injury’ as defined by s.4. Sections 15 and 16 provide a ‘deemed’ date of the injury as defined by s.4 for the purpose of calculating the award. Sections 15 and 16 do not create ‘deemed’ injuries. Section 51(3) applies to the injury defined by s.4. When s.51(3) removes the liability to make a payment under Division 3 or 4 in respect of the ‘injury’ the worker’s rights have been ‘removed’ … section 16 has no work to do once s.51(3) removes any liability to make a payment under Division 3 or 4 in respect of the injury.”

59.Finally, the Appellant submits:

“In any event the earlier claim for compensation [in the Compensation Court] contained a claim for permanent impairment and the deemed date of injury was the date of that claim namely 18 March 1991 or perhaps the date in 1994 when the Application for Determination was filed: Alto Ford Pty Limited v Antaw (1999) 18NSWCCR 246; Stone v Stannard Bros Launch Pty Limited (2004) NSWCA 277. As either date is before the date of the commutation the argument accepted by the Arbitrator is therefore erroneous”.

60.I concur with the Appellant’s submissions.

61.In line with the decision of Acting Deputy President Handley in Gales to which I have referred, and with which I respectfully concur, I am also of the view that Section 51(3) of the 1987 Act in effect at the time of the commutation removed liability by the Appellant for the injuries identified, which had occurred prior to the date of commutation.

62.The Appellant is not liable for the Respondent’s claim for permanent impairment compensation in respect of his skin cancer condition pursuant to Section 66 of the 1987 Act.

CONCLUSION

63.The Arbitrator’s determination was wrong in law and must be set aside.

DECISION

64.Paragraph 1 of the decision of the Arbitrator dated 17 April 2007 is confirmed. Paragraph 2 of that decision is revoked.

65.The decision of the Arbitrator dated 20 July 2007 is revoked and the following decision is substituted:

(1)Award in favour of the Respondent.

(2)No order as to costs.

COSTS

66.I make no order as to costs of the appeal.

Deborah Moore

Acting Deputy President

28 November 2007

I, MARIE JOHNS, 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