Ponnan v George Weston Foods Ltd

[2007] NSWWCCPD 92

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION

CONSTITUTED BY AN ARBITRATOR

CITATION:Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92

APPELLANT:  Kamal Ponnan

RESPONDENT:  George Weston Foods Ltd

INSURER:Allianz Australia Workers’ Compensation (NSW) Ltd

FILE NUMBER:  WCC10275-06

DATE OF ARBITRATOR’S DECISION:          10 October 2006

DATE OF APPEAL DECISION:  11 April 2007

SUBJECT MATTER OF DECISION: Section 11A of the Workers Compensation Act 1987; treatment of evidence; adequacy of reasons.

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant:      Turner Freeman Lawyers

Respondent:   Lander & Rogers Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 10 October 2006, is revoked and the matter is remitted to the Arbitrator at first instance for re-determination of the question of whether section 11A of the Workers Compensation Act 1987 Act applies.

No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 7 November 2006, Kamal Ponnan sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an Arbitrator dated 10 October 2006. The Respondent to the appeal is George Weston Foods Ltd (‘GWF’). GWF’s workers compensation insurer is Allianz Australia Workers’ Compensation (NSW) Ltd (‘Allianz’).

1. Ms Ponnan was born on 1 April 1974 and is aged 32. She is married with three children.  She commenced employment as a laboratory technician with GWF on 20 May 2002.  Ms Ponnan claims that she suffered a psychological injury as a result of the nature and conditions of her employment “from on or around 1 September 2005 up to and including 4 November 2005”, comprising discrimination and harassment in the workplace. On 8 December 2005, she lodged a claim for workers compensation.  During this period in 2005, Ms Ponnan was pregnant with her third child.

1. On 7 July 2006, the Commission registered Ms Ponnan’s ‘Application to Resolve a Dispute’ claiming weekly compensation from 1 September 2005 to date and continuing, and medical, hospital or related expenses. On 27 July 2006, GWF filed its ‘Reply’.

1. On 15 September 2006, the Arbitrator conducted a teleconference with the parties, following which he issued directions adjourning the matter to an arbitration hearing on 6 October 2006. At the conclusion of the hearing on that date, the Arbitrator gave an ex tempore decision in favour of GWF.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 10 October 2006, records the Arbitrator’s orders as follows:

“1. Award for the Respondent.
2. I determine that this matter, which went directly to arbitration, was a complex matter as provided for by Regulation 129 of the Workers Compensation (General) Amendment (Costs) Regulation 2001.
3. There is no order as to costs.”

1. In the Statement of Reasons for his decision given orally at the conclusion of the hearing, the Arbitrator identified three issues for determination (transcript page 94): first, did Ms Ponnan receive an injury arising out of or in the course of her employment with GWF, pursuant to section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’); second, was Ms Ponnan’s employment a substantial contributing factor to her injury pursuant to section 9A; and third, if so, was the injury caused by the reasonable actions of her employer such that, pursuant to section 11A, no compensation is payable?

1. The Arbitrator found (transcript page 97) that Ms Ponnan was suffering from a psychological injury, namely a “depressive condition”, in the light of two diagnoses: one from Dr Julian Parmegiani, Consultant Psychiatrist, who, in a report dated 16 March 2006, found that Ms Ponnan “presented with a Major Depressive Disorder”, and a second diagnosis from Sylvia Radovan, Psychologist, who in an undated ‘Pre-Liability Assessment Report’ stated that Ms Ponnan met the clinical criteria for “Adjustment Disorder with Mixed Anxiety and Depressed Mood”.

1. The Arbitrator found that on 20 February 2005, Ms Ponnan took maternity leave, and her second son was born on 4 March 2005.  She returned to work on 4 July 2005.  On 2 September 2005, Ms Ponnan disclosed to the Laboratory Manager, Antoinette Girardi, and the Deputy Laboratory Supervisor, Maria Eguares, that she was pregnant with her third child.  Ms Ponnan claimed that it was suggested to her in the course of the discussion that it would be in her best interests to terminate the pregnancy.  Ms Ponnan subsequently arranged to have a termination of her pregnancy on 23 September 2005 but, ultimately, did not go ahead with it.

1. The Arbitrator found that although Ms Ponnan was stressed by her pregnancy, “it was not a matter that was caused or due to her employment”, nor was it suggested to Ms Ponnan at her employment “that she was required, needed to, expected to, or would be benefited by having a termination of her pregnancy” (transcript page 100).

1. The Arbitrator found that as a result of Ms Ponnan being stressed, she made errors in her work, which became of concern to one of her Team Leaders, Magali Mello, and Ms Girardi. They arranged a meeting with Ms Ponnan on 27 October 2005 for the purpose of counselling her on her performance (transcript page 101). However, the Arbitrator found that the two documents shown to Ms Ponnan at that meeting did not constitute warning letters (transcript page 102). He found that it was not unreasonable for Ms Girardi not to have given Ms Ponnan copies of both documents and to suggest that Ms Ponnan contact her union representative with a view to arranging another meeting, so that the representative could be present (transcript page 104).

1. The Arbitrator found that following the meeting on 27 October 2005, Ms Ponnan did not attend work for some days. When she returned to work on 3 November 2005, Ms Ponnan was distressed to find another employee sitting at her desk and performing her work. Ms Ponnan was asked to undertake bench work instead. On 4 November 2005, there was an incident involving safety glasses. The Arbitrator found that Ms Girardi did no more than make Ms Ponnan aware of her need to comply with safety procedures (requiring the wearing of safety glasses in the laboratory), rather than, as Ms Ponnan alleged, Ms Girardi yelling at her (transcript page 105). The Arbitrator said this incident could not be regarded as unreasonable action by GWF; nor could Ms Girardi’s action in asking Ms Ponnan to sign a document stating that she was aware of the safety procedures she was required to follow.

1. The Arbitrator found that on 8 November 2005, a further meeting between GWF and Colin Drane, Ms Ponnan’s union representative, took place. The Arbitrator was unable to make any finding about why Ms Ponnan waited outside the meeting and did not participate, although it is clear she had difficulty obtaining entry to the building and, when she did so, the meeting had already started. He found, however, that having spoken to Mr Drane after the meeting, Ms Ponnan left the premises and has not returned to work since (transcript page 107).

1. The Arbitrator concluded (transcript page 108):

“On balance, I’m prepared to find that the work was a substantial contributing factor to the applicant’s condition ... it’s hard to find against the applicant on this ground on the basis that the very incidents that were the basis of the differences of opinion, discussions, disagreements and various meetings [sic] was never determined.”

1. However, the Arbitrator found that the meeting on 27 October 2005 was a counselling meeting to discuss Ms Ponnan’s performance, and that this was “to assist the applicant” (transcript page 109). The subsequent meeting on 8 November 2005 included David Weston, GWF’s General Manager Human Resources. The Arbitrator found Ms Ponnan did not have an opportunity to address this meeting for reasons that are unclear. Nevertheless, the Arbitrator found that GWF’s actions were “not unreasonable” (transcript page 111). On this basis, the Arbitrator determined the matter in favour of GWF.

ISSUES IN DISPUTE

1. Ms Ponnan’s solicitors submit the Arbitrator erred, in relation to section 11A of the 1987 Act, by (1) failing to consider all the evidence, (2) making erroneous findings of fact, (3) making findings of fact inconsistent with uncontested medical evidence, and (4) inferring his own knowledge and placing reliance on matters that were not in evidence. The parties’ submissions on these matters are discussed below.

ON THE PAPERS REVIEW

1. Section 354(6) 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.”

1. 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 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. 

1. Neither party sought to adduce fresh evidence.

LEAVE

1. 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 appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the amount of compensation at issue is at least $5,000 and comprises more than 20% of the amount awarded by the Arbitrator. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.

SUBMISSIONS, DISCUSSION AND FINDINGS

1. The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Ms Ponnan’s solicitors must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.

1. In their submissions, Ms Ponnan’s solicitors note that while the Arbitrator was satisfied that Ms Ponnan’s employment was a substantial contributing factor to her injury (thereby satisfying section 9A of the 1987 Act), he found that compensation was not payable pursuant section 11A because GWF had acted reasonably at all times. It is in respect of the latter finding that Ms Ponnan’s solicitors submit the Arbitrator fell into error.

1. Section 11A(1) of the 1987 Act states:

“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers”.

1. Thus, the first issue, a question of fact, is whether, to the extent that employment contributed to the injury, that contribution to “the injury was wholly or predominantly caused” by, relevantly, action or proposed action taken by the employer with respect to performance appraisal or discipline. In Department of Education & Training v Sinclair [2005] NSWCA 465 (‘Sinclair’), at paragraph 96, the NSW Court of Appeal noted that such actions:

“usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the ‘whole or predominant cause’ is the entirety of the conduct ...”

1. In my view, the ordinary meaning of the words “predominantly caused” in this context is that of mainly or principally caused: see, for example, The Macquarie Concise Dictionary and The Concise Oxford Dictionary.

1. The second issue, also a question of fact, is whether, relevantly, the action or proposed action taken by the employer with respect to the process of performance appraisal or discipline was reasonable action. I understand ‘performance appraisal’ to mean a process involving the employer discussing with the worker his or her performance at work: this could include, for example, discussing the degree of efficiency with which the worker undertakes his or her duties or the number of mistakes made by the worker in performing his or her duties. The distinction between performance appraisal and discipline is a fine one. The word ‘discipline’ should be interpreted in a broad sense as meaning the process of “learning or instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition”: Neilson J in Kushwaha v Queanbeyan City Council (2002) 23 NSWCCR 339, at 362; see also, Hunt v Department of Education & Training (NSW) (2003) 24 NSWCCR 642, at paragraph 183.

1. The onus is on the employer to prove that the process was reasonable. This is a question of fact involving an objective test. As Nielson J stated in Pirie v Franklins Ltd [2001] NSWCCR 167, at paragraph 48:

“The test of ‘reasonableness’ is objective and must weigh the rights of employees against the objective of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”

1. This requires consideration of both the employer’s action or proposed action and the worker’s response: Manly Pacific International Hotel Pty Ltd v Doyle (1999) 19 NSWCCR 181, at 189.

1. In Ms Ponnan’s case, GWF submitted that what occurred was “performance counselling” which could fall within both the meaning of ‘performance appraisal’ and ‘discipline’ (transcript page 39). GWF submitted (transcript page 44) there was:

“absolutely nothing unreasonable in what the respondent did given its perception that there had been a lack of performance, there had been ongoing efforts to try and redress that by way of informal discussion, there had been some attempts to cover for the applicant, et cetera, et cetera. So, it’s our respectful submission that there was a need for performance counselling to try and address the issue and performance counselling was conducted in a completely reasonable fashion.”

1. Ms Ponnan’s solicitors submitted (transcript page 58) that, pursuant to the decision in Sinclair:

“the appropriate course is to consider the whole course of conduct from the respondent and the interaction between the applicant and the respondent leading up to the claimed incapacity. The Commission should consider the series of steps which cumulatively have had psychological effects upon the applicant. It must then consider whether or not the total effect of those steps so constitutes reasonable action on the part of the employer, and we would submit that the employer has not established those grounds.”

1. Ms Ponnan’s solicitors submit, first, that the Arbitrator failed to consider all the evidence concerning what occurred at the meeting on 27 October 2005 between Ms Mello, Ms Girardi and Ms Ponnan. GWF dispute this. I have examined the Arbitrator’s ex tempore statement of reasons. He discusses at some length the evidence as to what occurred at the meeting on 27 October 2005 (transcript pages 101 – 104) including the list of ‘Incidents’ document, detailing alleged errors made by Ms Ponnan, which were discussed at the meeting, a copy of which was given to Ms Ponnan; also, the ‘Record of Counselling’ document, which was not handed to Ms Ponnan because, according to Ms Girardi’s statement of 15 December 2005, Ms Ponnan wanted her union representative present and Ms Girardi, essentially, adjourned the meeting until that could be arranged.

1. In its submissions, GWF refers to the Arbitrator’s comment (on page 106 of the transcript, line 43) that he was unable to make a finding about allegations of victimisation because of lack of material. I agree with GWF’s submission that the Arbitrator was not, at that point, referring to the meeting on 27 October 2005, and I note there was never any outcome to the adjourned meeting on 8 November 2005. I therefore reject this first ground of appeal.  While I am satisfied that the Arbitrator considered all the evidence, as I state below, he failed to make a specific finding in relation to whether the cumulative actions amounted to a process of performance appraisal or discipline.

1. The second ground of appeal relied on by Ms Ponnan’s solicitors is that the Arbitrator made erroneous findings of fact. One of the difficulties with Ms Ponnan’s solicitors’ submissions is that they are not always directly referable to the specific grounds of appeal identified. However, it appears that the erroneous findings of fact referred to in this second ground of appeal include those relating to alleged errors made by Ms Ponnan in the period 27 September 2005 to 24 October 2005 identified in the ‘Incidents’ document. My review of the Arbitrator’s statement of reasons indicates he accepted that some of the errors identified in the ‘Incidents’ document should not have been included: he refers to Ms Girardi’s statement (of 15 December 2005) where she said that she “crossed out” some of the errors listed, after discussing these with Ms Ponnan (transcript page 103). Thus, he recognised that there was material before him regarding the errors, and I am not satisfied that Ms Ponnan’s solicitors have made out this second ground of appeal in relation to these alleged errors.

1. Ms Ponnan’s solicitors’ third ground of appeal is that the Arbitrator made findings of fact inconsistent with the uncontested medical evidence. This appears to refer to the Arbitrator’s finding that although Ms Ponnan was stressed by her pregnancy “it was not a matter that was caused or due to her employment” (transcript page 100), which Ms Ponnan’s solicitors submit is inconsistent with the opinion expressed by the Psychologist, Sylvia Radovan, in her report. GWF notes that Ms Radovan’s opinion was based on Ms Ponnan having told her that there was no significant impairment in Ms Ponnan’s functioning as a result of her unexpected pregnancy. GWF submits that given evidence of errors at work made by Ms Ponnan after her return to work following maternity leave after the birth of her second child, it was open to the Arbitrator to come to a different view to that of Ms Radovan if he considered her medical opinion was founded on a flawed factual basis. I agree.

1. Ms Ponnan’s solicitors refer to an erroneous finding of fact made by the Arbitrator (transcript page 100, line 45) that Ms Ponnan had not reported to Ms Radovan that the instigation for the need for termination of the pregnancy arose from discussions with Ms Girardi. GWF acknowledges that this was an error by the Arbitrator: Ms Radovan refers to this discussion at paragraph 7.3 of her report. However, GWF points out that this error may have been due to their counsel’s inadvertent error concerning this in his submissions (transcript page 93), and submits that, in any event, this error does not invalidate the determination. I have reviewed Ms Radovan’s report and it is clear that the Arbitrator did make an error of fact in his finding concerning the history given by Ms Ponnan to Ms Radovan. I do not regard this as evidence of bias by the Arbitrator, as suggested by Ms Ponnan’s solicitors. It seems clear he relied on the mistaken submission from GWF’s counsel about this.

1. I am also not satisfied that the Arbitrator’s having accepted GWF’s evidence rather than Ms Ponnan’s as to what occurred at the meeting on 27 October 2007 is evidence of bias. GWF points to paragraph 91 of Ms Ponnan’s statement dated 15 February 2006, where she refers to Ms Girardi not giving her a copy of the “Record of Counselling” document “because you are involving the union”, as evidence of Ms Girardi’s acceptance of Ms Ponnan’s right to involve the union. This satisfies me that the Arbitrator’s finding that Ms Girardi did not deny Ms Ponnan the opportunity of involving the union representative was one which can be supported on the evidence.

1. With regard to what documents were supplied to Ms Ponnan at the conclusion of the meeting on 27 October 2005, there seems to be no dispute that she was supplied with a copy of the ‘Incidents’ document listing the alleged errors she had recently made in her work, but was not given a copy of the ‘Record of Counselling’ document. GWF submits the Arbitrator’s finding that Ms Girardi’s conduct, in not providing a copy of the latter document, was reasonable, given that a further meeting was to take place involving the union representative and that the counselling session was yet to be completed. GWF also submits that there was no breach of company policy in not providing a copy of the document at that time. In my view, there was sufficient evidence to support the Arbitrator’s finding that GWF’s conduct in relation to the meeting on 27 October 2005 was reasonable, given that a further meeting was to take place and that the counselling session had not yet been concluded. As the Arbitrator noted, it might have been better for Ms Girardi to have given Ms Ponnan a copy of the document, but in the circumstances, this is not, in my view, of itself, sufficient to establish that GWF’s conduct was not reasonable. With regard to GWF's policy of providing a copy of the ‘Record of Counselling’ document to the employee, given that the meeting had not been concluded, any record of the counselling would be incomplete. Thus, not providing a copy of the document at this stage would not seem to be unreasonable.

1. Ms Ponnan’s solicitors’ fourth ground of appeal is that the Arbitrator made findings based on his own assumptions and not on the evidence available to him. The first example of this is where the Arbitrator says (transcript page 99) that he finds it difficult to accept that a senior manager in a company in charge of a laboratory would suggest to Ms Ponnan that she would have difficulty continuing to work for the company if she did not terminate her pregnancy. As GWF points out, the Arbitrator had evidence that contradicted Ms Ponnan’s account of what occurred on 2 September 2005, when she acknowledged her pregnancy in discussion with Ms Girardi and Ms Eguares.  This evidence comprised statements from Ms Girardi and Ms Eguares on which the Arbitrator could rely in making such a finding. I note that Vijay Jacob (statement dated 1 August 2006), to whose evidence Ms Ponnan’s solicitors refer, was not present at this meeting, and her evidence is only as to what she was told by Ms Ponnan some weeks later. Thus, I do not accept that the Arbitrator’s statement was based purely on his own assumption: there was evidence to support what he said.

1. The Arbitrator does, however, speculate about the timing of the possible termination of Ms Ponnan’s pregnancy (transcript page 99 to 100), about which he acknowledged that he had no evidence. Of concern is whether this speculation, which was based on assumptions made by the Arbitrator, influenced his finding that it was not suggested to Ms Ponnan at her employment that having a termination would benefit her. In my view, there was sufficient other evidence, namely the statements from Ms Girardi and Ms Eguares, to support this finding and I am not satisfied that the Arbitrator’s speculation, although unwarranted, of itself justifies setting the decision aside.

1. I note that one of the difficulties faced by the Arbitrator was that the parties opted to proceed on the basis of the documentary evidence, with only oral submissions being made at the hearing. In my view, given the contradictory nature of some of the evidence, it would have been preferable to have heard evidence from Ms Ponnan and from the other principal witnesses such as Ms Girardi.

Adequacy of Reasons

1. It would also have been preferable, given the contradictory evidence and the significant number of statements involved, for the Arbitrator to have provided a written statement of reasons with a more detailed analysis of the documentary evidence. The Tribunal’s concern about the adequacy of the Arbitrator’s statement of reasons was the stimulus for inviting the parties to make further written submissions on this issue.

1. On 27 March 2007, the Commission issued directions inviting the parties to make further written submissions about the adequacy of the Arbitrator’s reasons in relation to section 11A of the 1987 Act by 3 April 2007. GWF’s submissions were received by fax on 2 April 2007, and those of Ms Ponnan’s solicitors by fax on 3 April 2007.

1. The parties were asked to address the adequacy of the Arbitrator’s reasons generally, and also more specifically in relation to whether the cumulative actions of GWF amounted to a process of performance appraisal or discipline within the terms discussed in Sinclair, and whether the psychological injury sustained by Ms Ponnan was “wholly or predominantly caused” by the reasonable action taken or proposed to be taken by or on behalf of GWF with respect to performance appraisal or discipline.

1. Ms Ponnan’s solicitors submitted the Arbitrator gave no reasons or factual basis for rejecting Ms Ponnan’s evidence that shortly after revealing her third pregnancy, she was subjected to harassment and humiliation. Moreover, he gave no reasons for finding Ms Ponnan was stressed in September 2005 as a result of her pregnancy and that pregnancy led her to making errors. They also submitted the Arbitrator made no finding as to whether the monitoring of Ms Ponnan constituted performance appraisal or discipline, although he was referred to the Court of Appeal decision in Sinclair where this was discussed. While rejecting the suggestion that discipline was involved, and accepting that the employer was not acting unreasonably, the Arbitrator failed to explain his reasons for so finding.

1. GWF contended that Ms Ponnan’s solicitors’ further submissions were received out of time – at 8.37 pm on 3 April 2007, the day submissions closed, and should not be admitted. I reject this submission: while no specific time was specified in the Commission’s directions and, ordinarily, submissions should be received by close of business, in this instance given that the directions and invitation to make further submissions was not issued and faxed until 27 March 2007, I am prepared to accept that Ms Ponnan’s solicitors substantially complied.

1. GWF submitted that Ms Ponnan’s solicitors did not contend in the appeal that the actions of GWF were other than in the process of performance appraisal and/or discipline. Moreover, as it was determined that all GWF’s actions were reasonable, and no allegations were made that GWF’s actions related to anything else, it must follow that Ms Ponnan’s psychological injury was wholly or predominantly caused by those actions.

1. My review of the Arbitrator’s ex tempore statement of reasons reveals that there is no discussion of the specific requirements of section 11A apart from references to whether the employer’s conduct was reasonable. The first of the two requirements of section 11A, which is whether the psychological injury was “wholly or predominantly caused” by the action taken or proposed to be taken by the employer is not referred to at all. This is surprising given the Arbitrator’s finding that section 9A of the 1987 Act is satisfied – that employment was a substantial contributing factor to the injury. There is also no specific finding as to whether the cumulative actions amounted to a process of performance appraisal or discipline.

1. Thus, although I am not satisfied that Ms Ponnan’s solicitors have established their original grounds of appeal, nevertheless, it is apparent that there are errors in the Arbitrator’s treatment of the law. He has failed to set out his understanding of the law – in particular the specific requirements of section 11A – and to explain how the law should be applied to the material facts. In my view, he has, thereby, failed to provide an adequate statement of reasons for his decision. The statement of reasons does not comply with the requirements of clause 73(1)(b) of the Workers Compensation Commission Rules 2003 in this regard (since 1 November 2006, Rule 15.6 of the Workers Compensation Commission Rules 2006) and, thereby, does not satisfy section 294(2) of the 1998 Act.

1. A failure to provide adequate reasons for a decision and a failure to apply the law (section 11A of the 1987 Act) is an error of law. The decision of the Arbitrator is revoked and the matter is remitted to the Arbitrator at first instance for re-determination of that part of the decision dealing with the disputed issue of whether section 11A of the 1987 Act applies. In my view, consideration should be given to whether it is appropriate to hear oral evidence from relevant witnesses in relation to this issue.

DECISION

1. The decision of the Arbitrator, dated 10 October 2006, is revoked and the matter is remitted to the Arbitrator at first instance for re-determination of the question of whether section 11A of the Workers Compensation Act 1987 applies.

COSTS

1. No order as to costs of the appeal.

Robin Handley

Acting Deputy President  

11 April 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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