Reln (Manufacturing) Pty Ltd v Smith - [2018] NSWWCCPD 51

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Reln (Manufacturing) Pty Ltd v Smith [2018] NSWWCCPD 51
APPELLANT:	Reln (Manufacturing) Pty Ltd
RESPONDENT:	Jo-Anne Smith
INSURER:	Employers Mutual NSW Limited as agent for Insurance and Care NSW
FILE NUMBER:	A1-1581/18
ARBITRATOR:	Ms E Beilby
DATE OF ARBITRATOR’S DECISION:	5 July 2018
DATE OF APPEAL DECISION:	19 November 2018
SUBJECT MATTER OF DECISION:	Factual determination – whether material facts were overlooked or given too little weight; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [28] applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Rankin Ellison Lawyers
Respondent:	LHD Lawyers
ORDERS MADE ON APPEAL:	1. The name of the employer, wherever it appears, is amended to read “Reln (Manufacturing) Pty Ltd”. 2. Paragraphs two, three and four of the Certificate of Determination dated 5 July 2018 are revoked, otherwise the Certificate of Determination is confirmed. 3. The matter is remitted to another Arbitrator for re-determination of the outstanding issues.

INTRODUCTION

Ms Jo-Anne Smith was involved in a motor vehicle accident on 17 April 2012 when her vehicle lost traction with the road because of an oily substance on the road surface. Ms Smith was employed to work permanent night shift with Reln (Manufacturing) Pty Ltd (Reln) and was travelling to work at the time of the accident.
Ms Smith suffered significant injuries in the accident and was hospitalised at Liverpool Hospital until discharge on 23 April 2012. She attempted to return to work but was unable to continue and ceased employment on 6 March 2013.

BACKGROUND

Ms Smith brought a claim for weekly payments from 6 March 2013, as well as lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). When the matter came to arbitration, the only issue with respect to the weekly payment claim was the date upon which the jurisdiction of the Commission to award weekly payments ceased. The Arbitrator determined that weekly payments were payable up to and including 31 August 2015, when Ms Smith was transitioned into the scheme for weekly payments which had been introduced in 2012. That part of the Arbitrator’s determination is not appealed.
The claims pursuant to s 66 were in respect of the whole person impairment of:
(a)    the cervical spine;
(b)    the lumbar spine;
(c)    the pelvis;
(d)    scarring;
(e)    the right upper extremity, and
(f)    the central and peripheral nervous system.
In a notice issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), Reln disputed liability in respect of the allegations of injury to the cervical spine, the lumbar spine and central and peripheral nervous system.
The matter proceeded to arbitration on 29 May 2018. The Arbitrator reserved her decision and delivered an oral decision with reasons on 22 June 2018. The Arbitrator determined that she was not satisfied that Ms Smith suffered injury to her lumbar spine, but found in favour of Ms Smith with respect to the allegation of injury to the cervical spine and central and peripheral nervous system.
The documents that have been filed in the Commission (both at the arbitral level and on appeal) variously refer to the employer as “Rein Pty Ltd”, “Reln Pty Ltd”, “Reln (Manufacturing) Pty Ltd” and “Reln Plastics Pty Ltd.”
Inquiries were made by the Presidential Unit as to the correct identity of the employer. The appellant informed the Commission that the correct identity was “Reln (Manufacturing) Pty Ltd”. Both parties consented to the amendment of the name of the employer, which is amended accordingly.

ON THE PAPERS

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.”
Both parties are content for the matter to be determined ‘on the papers’.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing.

THRESHOLD MATTERS

The Application – Appeal Against Decision of Arbitrator (the Appeal) was filed on 2 August 2018, within the time prescribed by s 352(5) of the 1998 Act. There is no issue raised in respect of whether the threshold requirements to appeal pursuant to s 354(3) of the 1998 Act have been met.

THE EVIDENCE

Ms Smith’s evidence

Ms Smith provided a statement dated 12 July 2017.[1] She confirmed she was involved in a motor vehicle accident on 17 April 2012 as described.
[1] Application to Resolve a Dispute (ARD), pp 217–220.
She said she had no recollection of the accident or of being transported to Liverpool Hospital. She said her first recollection was approximately two days later when a nurse asked her if she knew where she was. Ms Smith said that she was confused for several days.
Ms Smith contended that as a result of the accident she suffered a closed head injury, an injury to the cervical spine, and fractures to the pelvis, right arm and rib. She said she also suffered from traumatic amnesia.
Ms Smith said she underwent surgery for the fractured pelvis, and described being discharged from hospital in a wheelchair. She was unable to walk for three months. She continued to receive extensive treatment.
Ms Smith described ongoing symptoms, and said that she continued to suffer from significant pain in the pelvis and groin, has a right leg limp, requires a walking stick and experiences intermittent right shoulder symptoms. She complained of experiencing headaches, slurring of speech and depression. She reported insomnia and blurred vision.
Ms Smith disclosed that she had a prior history of epilepsy, which was investigated. The investigations disclosed no abnormality and she asserted that she had not experienced any seizures for approximately 10 years prior to the accident. Ms Smith stated that about four months after the accident she again suffered a seizure, and continued to suffer between six to ten seizures per month thereafter.
Ms Smith reported experiencing poor memory, such as forgetting she had done the shopping, which television show she was watching, and whether she had attended appointments. She further reported being unaware of what she had done for periods of time. She said that she needed assistance from her family to do simple things that she had no problem with before, such as accessing emails and getting applications onto her iPad.
Ms Smith also described personality changes, becoming angry, defensive, frustrated, anxious and negative.
Ms Smith further described the medication she had been prescribed and its effects on her, including the epilepsy medication which she ceased in December 2016 because it caused blurred vision. The medications were prescribed under the supervision of Dr Robert Gardiner, her general practitioner.
Ms Smith indicated that when she was in her twenties, she was diagnosed with a personality disorder and was treated by a psychiatrist, Dr Peter Dean. She was also provided with assistance for her mental health issues through attendance at an Aboriginal Youth Centre.
Ms Smith reported significant difficulties coping with her return to work and eventually she was told there was no further work for her. She said she has been unemployed since finishing with Reln.

Ms Smith’s medical evidence from treatment providers

The ambulance records were annexed to the ARD.[2] The records noted that Ms Smith was involved in a high-speed collision with a tree and was trapped for over 70 minutes. On arrival, the ambulance officer noted that Ms Smith’s neck had been placed in a cervical collar. The Glascow Coma Scale (GCS) score was fluctuating and there were apparent injuries to the lower back, right hip and right arm. The “primary survey” recorded high levels of distress and pain and noted potential cervical spine injury. The final assessment was of hip pain.
[2] ARD, pp 70–74.
Ms Smith relied on the clinical notes from Liverpool Hospital. The notes included reports of x‑rays taken on 18 April 2012 of the chest (with no abnormality recorded), right femur, right shoulder, hand and wrist, and several x-rays of the pelvis and right hip.[3]
[3] ARD, pp 62–69.
Reports of CT scans of the brain, chest, abdomen, thoracic spine, cervical spine, lumbar spine and pelvis conducted on 18 April 2012 were also included. The CT of the brain and cervical spine disclosed a right moderate sized parietal subcutaneous haematoma, but no other abnormality. The investigations also disclosed a mildly displaced fracture of the right eleventh rib and fractures and haematomas in the hip and pelvic region.[4]
[4] ARD, pp 66–67.
The documents included a trauma assessment form completed on 18 April 2012, which described a complaint of pain in the right shoulder, back and sternum. It also recorded a GCS score of 14.[5]
[5] ARD, p 78.
The clinical progress notes[6] relevantly recorded:
(a)    on admission, Ms Smith’s GCS score was fluctuating between 13 and 15;
(b)    complaints of low back, right arm and right hip pain at 12.45 am on 18 April 2012, with a hard collar in place and a GCS score of 14;
(c)    “GCS now 15” at 5.45 am on 18 April 2012;
(d)    at review on 19 April 2012 at 10.01 am, Ms Smith was alert and co-operative;
(e)    on 20 April 2012 at 8.30 am (during the Occupational Therapy Initial Assessment) Ms Smith had no recall of the accident and her first memory was waking in hospital, and
(f)    at interview on 20 April 2012, Ms Smith reported being amnesic of the accident, and was unsure whether she lost consciousness. Her GCS score was 15/15 demonstrating basic orientation to place and time and she was able to freely recall target picture cards.
[6] ARD, pp 82–177.
Dr Ian Harris, orthopaedic surgeon, provided an operation report in respect of the reduction and internal fixation of the right acetabulum fracture performed by him on 18 April 2012.[7] Dr Harris also provided a number of reports relating to ongoing treatment for the acetabulum fracture, with mention of right shoulder symptoms.[8]
[7] ARD, p 178.
[8] ARD, pp 181–183.
Dr John Mathews, Ms Smith’s general practitioner, provided a report dated 27 April 2012,[9] directed to the workers compensation insurer. Dr Mathews listed Ms Smith’s injuries as splenic and right fifth finger injury, as well as fractures of the:
(a)    right acetabulum anterior wall with medial subluxation of the femoral head;
(b)    right 11th rib;
(c)    superior and inferior right pubic rami;
(d)    right sacra ala, and
(e)    right hip (comminuted and displaced).
[9] ARD, p 180.
Dr Mathews provided two further reports directed to the insurer, dated 9 October 2012 and 12 August 2013. In the first of those reports, Dr Mathews reiterated the injuries as described in his report of 27 April 2012. In the report dated 12 August 2013, Dr Mathews remarked that Ms Smith had been left with a marked limp as a result of pain, and added that the onset of depression was also a barrier to her return to work.
Dr Mathews referred Ms Smith to Dr Jayker Davé, orthopaedic surgeon for review of right shoulder symptoms. Dr Davé reported back to Dr Mathews on 12 November 2012, noting Ms Smith recalled bracing her right arm in full extension with her head down at the time of impact. Dr Davé noted the “extremely comminuted fracture of the acetabulum and pelvis.” On examination, Dr Davé recorded that Ms Smith had no problem with her cervical spine and no radiating pain down her arm.[10]
[10] ARD, p 186.
Ms Smith was also referred to Dr David Rail, neurologist in May 2014 for the purpose of undergoing an electroencephalogram (EEG). The history recorded by Dr Rail in his report dated 30 June 2014[11] was that Ms Smith had consulted him a number of years previously for epileptic fits. He had not seen her for a long while, but she had recent episodes of approximately 12 epileptic fits since May 2014. The EEG recording was within normal limits. Dr Rail reviewed Ms Smith and her medication regime on several occasions throughout 2014 and 2015.
[11] ARD, p 192.
A report from Dr Rail dated 24 January 2003 confirmed the previous history and recorded the EEG was within normal limits at that time.[12]
[12] ARD, p 190.

Ms Smith’s forensic medical reports

Ms Smith relied on two forensic medical reports.
Dr James Bodel, orthopaedic surgeon, provided a report (with annexed impairment assessments) dated 18 January 2016.[13]
[13] ARD, pp 1–9.
Dr Bodel summarised the injuries suffered as:
(a)    severely comminuted fracture of the right side of the pelvis including acetabulum and right inferior pubic ramus;
(b)    fracture of the right 11th rib;
(c)    fracture of the tip of the right shoulder acromion, and
(d)    a closed head injury.
Dr Bodel noted the past history of epilepsy and mental health issues. He provided assessments of the permanent impairment of the lumbar spine, pelvis, right shoulder and scarring. Dr Bodel declined to assess the closed head injury, epilepsy and psychological issues as they were outside his area of expertise.
Dr Paul Teychenné, consultant neurologist, examined Ms Smith and reported to Ms Smith’s legal representative on 24 March 2016.[14]
[14] ARD, pp 10–19.
Dr Teychenné noted the past history of seizures. He recorded the absence of seizures between 1994 and the motor vehicle accident in 2012 and the onset of seizures again about four months after the accident. Ms Smith informed him that she was suffering from traumatic amnesia and her last memory of the day of the accident was setting off on her journey to work. Dr Teychenné recorded that Ms Smith complained of suffering from confusion for about four days after the accident and the onset of memory deficit about 2 weeks thereafter. He further recorded that Ms Smith experienced memory lapses for periods of between one and five hours, which Dr Teychenné thought to be evidence of complex partial seizure activity.[15]
[15] ARD, p 12, [4].
Relevantly, on examination, Dr Teychenné found normal range of neck movement with no pain,[16] and good range of neck flexion, extension and rotation with no guarding or asymmetry.[17] He found decreased sensation to touch, temperature and pain down the left-hand side of her face, chest, left arm, left thigh and left calf.[18] Dr Teychenné further noted the Liverpool Hospital clinical notes including the lack of pathology on the CT scan of the cervical spine and the admission note that there was no tenderness in the cervical spine.[19]
[16] ARD, p 13.
[17] ARD, p 15.
[18] ARD, p 14.
[19] ARD, pp 16–17.
On the basis of his examination, Dr Teychenné formed the view that the distribution of the sensory loss, the imbalance, the weak extensor plantar response, and decrease in left hand coordination, were all consistent with an incomplete cervical cord lesion. Dr Teychenné further diagnosed a probable exacerbation of the underlying seizure disorder and a traumatic brain injury.
In supplementary reports, Dr Teychenné provided assessments of Ms Smith’s whole person impairment of the central and peripheral nervous system and the spine.[20]
[20] ARD, pp 20–29.

Reln’s evidence

Reln qualified three medico-legal specialists to provide opinions in respect of Ms Smith’s claim – Dr Robert Breit, orthopaedic surgeon, Dr Stephen Rimmer, orthopaedic surgeon and Professor Matthew Kiernan, neurologist. The report prepared by Dr Breit was excluded from the evidence as it was agreed to be in breach of cl 44 of the Workers Compensation Regulation 2016.
Dr Rimmer examined Ms Smith on 23 November 2016 and provided a report of the same date.[21]
[21] Reply to Application to Resolve a Dispute (Reply), pp 13–18.
Dr Rimmer took a brief history of the accident, including a note that Ms Smith did not lose consciousness in the accident. He recorded Ms Smith’s past history of epilepsy, that her current symptoms were of right shoulder and right hip/pelvis pain. He said there was no mention of any injury to the cervical or lumbar spine.
Dr Rimmer examined Ms Smith’s right hip and pelvis, right shoulder, cervical spine and lumbar spine. He reported that no investigations of the cervical or lumbar spine were available, but that his examination of both the cervical and lumbar spine was normal.
Dr Rimmer assessed Ms Smith’s whole person impairment to be 6% (referable to the right hemipelvis and scarring). He attributed 0% whole person impairment to the right shoulder and cervical and lumbar spines.
Professor Kiernan provided two reports in respect of Ms Smith’s claim. The first report, dated 10 November 2016, was prepared following a neurological examination.[22]
[22] Reply, pp 8–12.
Professor Kiernan took a history that Ms Smith did not lose consciousness in the accident. Professor Kiernan noted the injuries to be fractures of the pelvis (including the acetabulum and right pubic ramus), the right 11th rib and right shoulder acromion. He noted Ms Smith was not aware of a specific head injury or spinal cord injury.
Professor Kiernan noted in detail Ms Smith’s prior history of epilepsy, including the absence of any scar on the brain or any abnormality identified in the EEG. He further noted the absence of seizures in the ten year period prior to the accident and that Ms Smith was not taking anticonvulsants at the time of the accident. He recorded the onset of further seizures in September 2013, some 15 months after the accident.
On examination, Professor Kiernan found Ms Smith’s cranial nerves to be intact, her upper and lower limbs demonstrated symmetrically normal tone, power and reflexes and she was able to stand on her toes and heels unsupported. Professor Kiernan noted Ms Smith experienced some difficulty with rapid movements of the left hand.
Professor Kiernan was asked to provide an opinion as to whether Ms Smith suffered from injury to the central and peripheral nervous system. Professor Kiernan noted the structural imaging of the brain was reported as normal.
Professor Kiernan said that it was difficult to attribute the recurrence of epilepsy to the motor vehicle accident, given the 15 month delay between the accident and the recurrence, and without investigative evidence and evidence from the treating neurologist, Dr Rail.
Professor Kiernan formed the view that there was no evidence to suggest Ms Smith suffered a central and peripheral nervous system injury in the accident.
Professor Kiernan was also asked whether Ms Smith suffered from a spinal cord lesion. He said that on direct questioning, Ms Smith denied sustaining a spinal cord injury. Further, on examination there was no evidence to suggest a spinal cord injury occurred.
Professor Kiernan provided a supplementary report dated 14 May 2018, without a further examination of Ms Smith.[23] He was provided with:
(a)    a copy of his report dated 10 November 2016;
(b)    two reports of Dr Bodel dated 19 Janury 2016;
(c)    two reports of Dr Teychenné dated 24 March 2016 and one dated 9 February 2016;
(d)    the clinical notes of Liverpool Hospital;
(e)    reports of Dr Harris, Dr Mathews, Dr Chaitowitz, Dr Rail, and Dr Salmon, and
(f)    Dr Rail’s clinical notes.
[23] Application to Admit Late Documents dated 22 May 2018, pp 1–4.
Professor Kiernan advised that there was nothing in the documents that caused him to alter the opinion he expressed in his earlier report. He repeated that there was no objective evidence that Ms Smith suffered a traumatic brain injury, no loss of consciousness and no evidence of structural changes in the brain. He opined that there was no history which would suggest injury to the head or central nervous system. He suggested there was a complicated psychiatric background that would be best addressed by a consultant psychiatrist.

THE ARBITRATOR’S REASONS

The Arbitrator’s oral decision delivered on 22 June 2018 was recorded and a transcript was produced.
The Arbitrator identified the undisputed components of Ms Smith’s claims for lump sum compensations pursuant to s 66 of the 1987 Act. Noting that the degree of whole person impairment was in issue in respect of those body parts, she acknowledged that those assessments were to be referred to the Approved Medical Specialist (AMS).
The Arbitrator confirmed the issue before her was whether Ms Smith suffered injury to the cervical spine, lumbar spine and central and peripheral nervous system.
The Arbitrator noted the circumstances of the injury and admission to Liverpool Hospital. She described the accident as a “most serious event.”[24] The Arbitrator considered that she was firstly required to determine whether Ms Smith lost consciousness in or shortly after the accident, and whether she thereafter suffered from amnesia.
[24] Transcript of reasons, 22 June 2018, (T) 2.31.
The Arbitrator reviewed the ambulance notes. She noted a cervical collar was observed to be in place, that Ms Smith’s GCS score was fluctuating and she was combative. The Arbitrator further noted that Ms Smith complained of pain in the low back and was placed on a spinal board, with reference to a potential cervical injury. The Arbitrator said that the GCS score on arrival at hospital was recorded as scoring nine, although it seemed other documents did not support that score. The Arbitrator referred to the CT scan of the cervical spine which showed no abnormality.
The Arbitrator further referred to the occupational therapy assessment conducted on 20 April 2012 while Ms Smith was in Liverpool Hospital. The Arbitrator noted that Ms Smith complained of being amnesic of the event and unsure as to whether she lost consciousness. She observed that at this time, Ms Smith was being tested for post-traumatic amnesia and was demonstrating basic orientation to place and time. The Arbitrator said that this evidence was relevant because Dr Kiernan’s opinion relied upon the history of no loss of consciousness and no amnesia. The notes were also relevant because Ms Smith submitted there were references to back pain and possibly neck pain.
The Arbitrator summarised Ms Smith’s statement evidence. Her summary was consistent with the contents of the statement. The Arbitrator considered the statement evidence in relation to the lumbar spine and observed that evidence to be non-specific as to when the lumbar spine pain commenced, other than in the context of a return to work. The Arbitrator noted also that there was no mention of pain in the cervical spine.
The Arbitrator found that there was a significant amnesic event arising at the time of the accident which “could have” amounted to a loss of consciousness. The Arbitrator indicated that the finding was supported by the hospital notes recording that Ms Smith could not recall the accident, and Ms Smith’s statement. The Arbitrator referred to the history taken by Dr Bodel that he understood Ms Smith was not rendered unconscious and both Dr Kiernan and Dr Rimmer also took that history.
The Arbitrator indicated that she found the significantly detailed history taken by Dr Teychenné compelling. She said the history was consistent with Ms Smith’s statement and the hospital notes. In relation to the variance in the history of the timing of the onset of the seizures, the Arbitrator said that despite Dr Rail’s evidence that the onset was 14 months after the accident, there was no reason to not accept Ms Smith’s statement that she experienced the onset of seizures about 4 months after the accident.
The Arbitrator compared the opinions of Dr Teychenné and Professor Kiernan. She said that Dr Teychenné took an in-depth history. She said that Dr Teychenné, on examination, found a limp in her right leg and a wide based gait with a “robotic” gait, and was unable to drag her knees together. He noted imbalance and an inability to bring her feet together. The Arbitrator said that she found Dr Teychenné’s examination and findings persuasive and accepted his opinion.
The Arbitrator noted that Professor Kiernan’s history of no loss of consciousness and no amnesia was inconsistent with her findings of fact and that for that reason, she did not find Professor Kiernan’s opinion of assistance. She further said it was not a matter for Ms Smith to advise whether her spinal cord had been injured. It was necessary for Dr Kiernan to examine the area in order to determine if there was a possibility of injury.
The Arbitrator further reasoned that Professor Kiernan did not have a history in respect of complaints of memory loss and personality change, fatigue and confusion. The Arbitrator formed the view that Professor Kiernan did not “join in the argument to any significant way” in respect of whether there was a spinal cord lesion. She said that because Dr Teychenné had a full history and examination, she preferred his opinion.
The Arbitrator determined that she was not satisfied Ms Smith had suffered injury to the lumbar spine as alleged. She found that Ms Smith suffered injury to the cervical spine in the nature of a spinal cord lesion, and injury to central and peripheral nerve system.
The Certificate of Determination (COD) issued on 5 July 2018 records:
“The determination of the Commission in this matter is as follows:
1.     Award for the respondent in respect of the claim of injury to the lumbar spine.
2.     Award for the applicant in respect of the claim of injury to the central and peripheral nervous system and the cervical spine.
3.     The matter is remitted to the Registrar to be referred to an AMS to assess the following body parts:
i.Central and peripheral nervous system;
ii.Cervical spine;
iii.Pelvic Fractures;
iv.Right Upper Extremity, and
v.Scarring.
4.     The date of injury is 17 April 2012. All documents are to be provided save for the opinion of Dr Breit 31 October 2017 (in Reply).
5.     The respondent is to pay the following weekly compensation:
i.6/3/13 to 24/7/13 in the sum of $648.75 per week;
ii.25/7/13 to 30/09/13 in the sum of $447.70 per week;
iii.1/10/13 to 31/3/14 in the sum of $452.60 per week;
iv.1/4/14 to 30/09/14 in the sum of $458.40 per week;
v.1/10/14 to 31/3/15 in the sum of $464.30 per week
vi.1/4/15 to 31/8/15 in the sum of $470.20 per week.”

GROUNDS OF APPEAL

Reln alleges the Arbitrator erred on the following grounds:
(a)    Ground 1: in finding that Ms Smith suffered a significant amnesic event at the time of the accident which could have amounted to a loss of consciousness;
(b)    Ground 2: in finding that Ms Smith suffered an injury to the central nervous system, and
(c)    Ground 3: in finding that Ms Smith suffered an injury to her cervical spine.

SUBMISSIONS

Reln’s submissions

Ground 1

Reln submits that there were insufficient facts to support the Arbitrator’s findings that Ms Smith suffered a significant amnesic event at the time of the accident, which could have amounted to a loss of consciousness.
Reln refers to the Ambulance report notes and the Ambulance Electronic Medical Record and says that the documents do not state that Ms Smith lost consciousness. In particular, the Vital Signs Survey recorded:
(a)    Ms Smith was oriented verbally;
(b)    her eyes were responding spontaneously and to voice;
(c)    her motor signs obeyed commands or localised pain, and
(d)    her pupils were normal and reactive.
Reln concedes that Ms Smith’s GCS score fluctuated between 13 and 15 in the period immediately following the accident. It submits that there was an absence of any evidence to support that the fluctuation indicated a loss of consciousness and that there was a period of post traumatic amnesia.
Reln refers to the Occupational Therapy Initial Assessment dated 20 April 2012, which noted Ms Smith was orientated and was cleared for post-traumatic amnesia. Further, the Discharge Referral made no mention of Ms Smith having lost consciousness or of post traumatic amnesia.
Reln submits that, in the light of the Occupational Therapy Initial Assessment, together with the absence of evidence to support the conclusion, the Arbitrator fell into error. Further, the Arbitrator fell into error in affording too little weight to the hospital records that were absent of any evidence of loss of consciousness or post traumatic amnesia.

Ground 2

Reln submits that the available evidence did not support a finding that Ms Smith suffered an injury to the central and peripheral nervous system. Reln contends that there was:
(a)    no contemporaneous evidence to support that finding;
(b)    no reference in the Liverpool Hospital notes of any such injury;
(c)    the CT scan of the brain was normal, as noted by Professor Kiernan, and
(d)    no mention of injury to the head or central and peripheral nervous system in the Discharge Referral.
Reln submits that it was not open to the Arbitrator to make a “positive finding of injury.”[25]
[25] Reln’s submissions, p 7, [43].
Additionally, Reln submits that the evidence does not support the finding that Ms Smith’s cognitive and/or memory difficulties resulted from the injury. Reln refers to the three reports of Dr Mathews issued between 27 April 2012 and 12 August 2013 in which there was no reference to injury to the head or peripheral and central nervous system, or recurrence of seizures.
Reln asserts that if such injuries occurred, the treating general practitioner would have known of the alleged injuries and would have included reference to them in his reports.
Reln submits that the lack of reference to those injuries in the records from treatment providers outweighs the evidence from Dr Teychenné.
Reln refers to the Arbitrator having noted that Ms Smith:
(a)    had significant cognitive impairment following the accident;
(b)    experienced significant memory problems;
(c)    complained her personality had changed, and
(d)    found herself more defensive, negative, frustrated and angry.
Reln further referred to the Arbitrator’s note that Ms Smith had been diagnosed with a borderline personality disorder, which the Arbitrator considered “is of no moment in this case.”[26] Reln submits that the evidence of a presence of a personality disorder may be directly relevant to the personality changes, but the Arbitrator disregarded that likelihood. Further, Reln submits that there was no evidence from treatment providers of any cognitive difficulties, or any issues related to the central and peripheral nervous system, which may have related to the motor vehicle accident.
[26] T 8.9.
Reln says that the Arbitrator’s finding was not supported by the evidence and Ms Smith failed to discharge the onus of proof in respect of injury to the central and peripheral nervous system.

Ground 3

Reln submits that it was not open to the Arbitrator to find that Ms Smith sustained injury to the cervical spine in the nature of incomplete cord lesion.
Reln contends that the only investigation of the cervical spine was the CT scan dated 18 April 2012, which was reported no abnormal ityand noted by the Arbitrator. Reln says that the Arbitrator relied solely on Dr Teychenné’s evidence, which recorded observations made on examination that could be consistent, in Dr Teychenné’s view, with an incomplete cervical cord lesion, rather than a traumatic brain injury.
Reln submits that the findings were not consistent with the contemporaneous medical evidence and those observations were not recorded by any treating practitioner, including the treating neurologist, Dr Rail.
Reln further submits that Dr Teychenné’s examination was four years after the injury, and the Arbitrator erred by accepting that evidence over the earlier, more contemporaneous evidence of the treatment providers, none of which provided any evidence of the symptoms reported by Dr Teychenné.
Additionally, Reln submits that:
(a)    Dr Mathews, Dr Salmon and Dr Rail reported there was no injury to the cervical spine;
(b)    Dr Bodel noted a good range of neck flexion, extension and rotation, with no asymmetry, movement or guarding of the neck;
(c)    Professor Kiernan said that the cranial nerves were intact, Ms Smith was able to walk unaided and stand on her toes and heels unsupported. She had normal tone, power and reflexes in her upper and lower legs, and
(d)    Dr Rimmer took no history of injury to the cervical spine, and reported that the cervical spine CT Scan was normal, and examination of the neck was normal.
Reln submits that the evidence does not support the finding of injury to the cervical spine, particularly in the absence of radiological evidence confirming an abnormality, and Ms Smith has not discharged the onus of proving cervical spine injury.
In conclusion, Reln seeks an order revoking the COD and in lieu thereof an award be entered in its favour in respect of the claim for injury to the cervical spine and in respect of the alleged central and peripheral nervous system injury.
Alternatively, Reln seeks that the COD be revoked, and the matter remitted to another Arbitrator for determination, according to law.

Ms Smith’s submissions

Ground 1

Ms Smith says that Reln’s submissions are merely a re-agitation of its submissions at arbitration and ignore the fact that the Arbitrator considered in detail the clinical notes from Liverpool Hospital and the ambulance records.
Ms Smith recites aspects of the Arbitrator’s reasoning process that discuss the significance of the event, the fluctuating GCS score and reference to Ms Smith’s combative conduct. She further refers to the Occupational Therapy Initial Assessment on 20 April 2012.
Ms Smith submits that the reference to “cleared of post-traumatic amnesia” is a reference to the state of affairs two days after the accident and indicates that there is a readily available inference that such an assessment was required because of the suspicion of head injury and amnesia.
Ms Smith contends that the Arbitrator properly determined that there was an amnesic event in the context of Ms Smith having no memory of the accident two days after the event. She submits that Reln cannot maintain that there was no evidence to support the Arbitrator’s finding that there was a significant amnesic event.

Ground 2

Ms Smith contends that the central and peripheral nervous system ultimately diagnosed by Dr Teychenné is a condition that would not, in the normal course, have been readily identifiable in a trauma setting. She says that it was ultimately identified by Dr Teychenné after what the Arbitrator described as a thorough examination.
Ms Smith submits that the ambulance records noted the neck was immobilised at the scene of the accident and highlighted the possibility of a cervical spine injury.
Ms Smith refers to the evidence recorded by the Arbitrator that Ms Smith’s GCS score was fluctuating and she was combative.
Ms Smith asserts that the fluctuating GCS score is sufficient for the Arbitrator to accept that a head injury occurred, in the context of Ms Smith being trapped in the vehicle for 70 minutes before being extracted and treated by ambulance officers.
Ms Smith also says it is relevant that a CT scan of the brain was organised and that was consistent with the observations by the attending medical staff of a fluctuating GCS score.
Ms Smith asserts that it is irrelevant that the medical evidence other than Dr Teychenné’s opinion is silent as to the central and peripheral nervous system. She says the Arbitrator weighed up all of the evidence and accepted Ms Smith’s statement evidence, which formed the basis of her ultimate determination.

Ground 3

Ms Smith says that the Arbitrator’s determination that she suffered injury to the cervical spine was based on a thorough weighing up of the evidence. That included a review of the Liverpool Hospital notes, and the Ambulance records, which included various references to the GCS. Ms Smith says that the Arbitrator recited and noted Ms Smith’s statement evidence that Ms Smith had headaches, slurring of speech and a recurrence of her epilepsy.
Further, Ms Smith submits that the Arbitrator discussed Dr Rail’s evidence “in concert with” Ms Smith’s statement evidence. She submits that the Liverpool Hospital evidence confirmed that there was an amnesic event (the failure to recall the accident).
Ms Smith submits that the Arbitrator proceeded to weigh up the competing evidence from Professor Kiernan and Dr Teychenné. Ms Smith refers to the Arbitrator’s observations that Professor Kiernan’s history taking was deficient, such as the history that the first seizure was not until 15 months after the accident.
Ms Smith contends that the Arbitrator’s determination that Ms Smith had suffered from loss of consciousness or a serious amnesic event was based on her analysis of the Liverpool Hospital records. Further, the Arbitrator observed that the clinical presentation was not dealt with by Professor Kiernan, which was in contrast to Dr Teychenné, who made detailed observations to explain his opinion.
Ms Smith submits that the critical failing in Professor Kiernan’s opinion was that he formed the view that there was no evidence of a loss of consciousness and no structural changes in the brain that would suggest injury. Ms Smith further submits that Professor Kiernan’s statement that Ms Smith did not suffer a spinal cord injury was insufficient for him to form the view that she had not.
Ms Smith concludes her submissions, saying that the Arbitrator analysed both Professor Kiernan’s and Dr Teychenné’s opinions, referred to the clinical material from the Ambulance Service, Liverpool Hospital and Dr Rail as well as traversing in detail Ms Smith’s statement. On the basis of a consideration of all of that evidence, the Arbitrator made a finding of fact with respect to matters going to injury.
Finally, Ms Smith submits that there was no part of the Arbitrator’s decision that was outside the available findings or the inferences that may be drawn from the evidence. Ms Smith contends that the decision is not open for review on its merits.
Ms Smith states that the appeal ought to be dismissed.

DISCUSSION

The right to pursue an appeal from a decision of an Arbitrator is governed by s 352 of the 1998 Act. The scope of the appeal is limited by s 352(5) of the 1998 Act to the identification of error on the part of the Arbitrator, where such error is of fact, law or discretion.
The Arbitrator’s decision involved findings of fact and the drawing of inferences from those facts. The Arbitrator accepted the opinion of Dr Teychenné. She found the existence of facts that formed the basis upon which Dr Teychenné expressed his opinion. She rejected the opinion of Professor Kiernan at least partly because the facts relied upon by him were inconsistent with Ms Smith’s statement, the history taken by Dr Teychenné, and her own findings of fact.
In determining whether the Arbitrator has erred in respect of a finding of fact, the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[27] have been consistently applied in the Commission. Those principles were recited by Deputy President Roche in Raulston v Toll Pty Ltd[28] as follows:
“…
(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.
The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”
[27] (1966) 39 ALJR 505.
[28] [2011] NSWWCCPD 25; 10 DDCR 156, [19]–[20].

The Court of Appeal in Northern NSW Local Health Network v Heggie[29] considered the above principles in the context of the Commission’s powers on appeal and said as follows:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519, per Mason and Deane JJ.”
[29] [2013] NSWCA 255; 12 DDCR 95, [72].
In order for Reln to succeed on this appeal, it must establish that material facts were overlooked or given too little weight, or that the available opposite inference is so preponderant that the decision must be wrong. It is necessary to examine the evidence of the facts that pertain to each of the three findings in which Reln alleges error.
It is convenient to firstly deal with Ground 3 of the appeal.

Ground 3

Reln contends that the Arbitrator erred in finding that Ms Smith suffered injury to the cervical spine in the nature of a spinal cord lesion.
The only evidence that supported the allegation of a cervical cord injury was that of Dr Teychenné, whose evidence the Arbitrator accepted. The Arbitrator’s reasons for accepting Dr Teychenné’s evidence were that:
(a)    the history taken by him was consistent with Ms Smith’s statement and the hospital notes;
(b)    Dr Teychenné’s thorough examination identified issues with Ms Smith’s gait, imbalance and inability to bring her knees and feet together;
(c)    Professor Kiernan was required to examine Ms Smith in the relevant area in order to form an opinion as to whether she suffered from a spinal cord injury, rather than to simply enquire of Ms Smith whether such injury occurred, and
(d)    Professor Kiernan did not “join in the argument in any significant way” in respect of whether there was a spinal cord injury.
Reln criticises those reasons on the basis that Dr Teychenné’s findings were:
(a)    inconsistent with the contemporaneous material;
(b)    not observed or recorded by any other practitioner, and
(c)    based on an assessment four years after the accident.
While the Arbitrator made observations of the absence of any radiological evidence and the lack of any complaint of neck symptoms, or record of cervical injury, she failed to reconcile that body of evidence with the evidence of Dr Teychenné. Her assessment of the evidence was limited to a comparison of the views of Dr Teychenné and Professor Kiernan and as to why she preferred the opinion of Dr Teychenné.
Reln disputed the allegation of cervical cord lesion not only on the basis of its own medico-legal expert, but also because of the contemporaneous material, histories taken and observations made by all of the medical practitioners. There were precautions taken by ambulance officers and investigations made by Liverpool Hospital that were in all likelihood steps to investigate whether there was, or was not, a cervical injury. The radiological investigations were reported as normal, there were no recorded complaints of neck pain and, in fact, no abnormality found on examination by each of the medical experts, including Dr Teychenné. The substantial difference between the observations and examination findings of Dr Teychenné, compared with all of the other medical practitioners, especially Dr Rail, Ms Smith’s treating neurologist, is of significance. The Arbitrator was required to consider that material evidence (not merely recite it).
Additionally, the Arbitrator failed to consider the inconsistency between the contemporaneous complaints made by Ms Smith with Ms Smith’s statement evidence made some five years after the accident.
It is apparent from the decision that the Arbitrator made no analysis of the competing evidence (other than that of Professor Kiernan) and gave no explanation for rejecting it.
I am satisfied that in reaching her conclusion, the Arbitrator has failed to take into account material facts and has accorded no, or too little weight, to the body of evidence that was inconsistent with the evidence she accepted. I am further satisfied that the Arbitrator has fallen into error by having failed to analyse that evidence and by failing to give reasons for rejecting that evidence. On that basis, Reln succeeds on this ground. I set aside the Arbitrator’s finding that Ms Smith suffered injury to the cervical spine in the nature of a spinal cord lesion.

Ground 1

Ground 1 of the appeal alleges error on the part of the Arbitrator by finding that Ms Smith suffered an amnesic event at the time of the accident, which could have resulted in a loss of consciousness.
The Arbitrator accepted that an amnesic event occurred because, in her view, such a finding was consistent with the hospital notes (not being able to recall the accident) and it was also consistent with Ms Smith’s statement.
The Arbitrator appeared to also accept that Ms Smith’s GCS score was fluctuating between 13 and 15. The Arbitrator noted the significance of the accident and the fluctuating GCS score. There was no evidence before her as to what condition was indicated by the degree of fluctuation, but in the context of the Arbitrator’s consideration of the evidence, it can be inferred that the Arbitrator thought it relevant to an evaluation of whether Ms Smith experienced loss of consciousness.
The first reference to amnesia in the notes was on 20 April 2012 in the Occupational Therapy Initial Assessment. The only amnesic event recorded was that Ms Smith could not recall the accident itself. The assessment by the occupational therapist resulted in Ms Smith being cleared of post-traumatic amnesia, despite the lack of recall of the event.
Notably, Dr Davé took a history from Ms Smith that she recalled bracing her right arm in full extension with her head down at the time of the impact.[30] That history would indicate that Ms Smith’s recall, by November 2012, had returned.
[30] Report of Dr Davé dated 12 November 2012, ARD, p 186.
This ground of appeal is limited to a complaint that Ms Smith suffered an amnesic event, which could have resulted in a loss of consciousness.
The Liverpool Hospital notes, particularly on 20 April 2012, support the Arbitrator’s finding that Ms Smith suffered a period of amnesia in relation to the accident and there was no error in so deciding.
Whether Ms Smith suffered from post-traumatic amnesia as a result of a traumatic brain injury is a different question. Apart from the evidence of Dr Teychenné, there is no medical opinion that relates the amnesic event to a traumatic brain injury. I have discussed the evidence of a traumatic brain injury below.
In her consideration of whether Ms Smith suffered a traumatic brain injury, the Arbitrator spent some time analysing the evidence relating to whether Ms Smith suffered an amnesic event and loss of consciousness, and to the timing of the recurrence of seizures. The Arbitrator expressed her findings as follows:
“Now, two of the issues that require determination in respect of this claim and that are in issue are firstly, was there a loss of consciousness or a significant amnesic event arising from the accident and secondly, as when did the applicant’s seizures commence. Now in respect of the loss of consciousness issue, I find that there was a significant amnesic event at the time of the accident which could have amounted to loss of consciousness.”[31]
[31] T 8.28–9.2.
The Arbitrator indicated that in making that finding, she relied on the hospital notes that recorded that Ms Smith did not recall the accident, and Ms Smith’s statement.
The Arbitrator subsequently added:
“So far as the finding of fact is concerned, and that is that did the applicant suffer either a loss of consciousness or a serious amnesic event, I find in favour of the applicant in respect of that finding of fact.”[32]
[32] T 10.3–9.
It is not clear whether the Arbitrator made a finding that Ms Smith did in fact lose consciousness. The Arbitrator’s unqualified acceptance of the opinion of Dr Teychenné would indicate that she did make that finding. If that is the case, then that finding was made without a consideration of the contrary evidence, other than that of Professor Kiernan. The evidence included:
(a)     the absence of observation of loss of consciousness in the ambulance and hospital notes and in the discharge referral letter,
(b)    the history taken by Dr Rimmer that there was no loss of consciousness, and
(c)    the History taken by Professor Kiernan that there was no loss of consciousness.
The Arbitrator did not give consideration to that evidence, and gave no reasons for rejecting that evidence.
The Arbitrator’s finding (if made) that Ms Smith suffered loss of consciousness was arrived at without consideration of material evidence. Reln has established error on the part of the Arbitrator and the finding is set aside.

Ground 2

Reln contends that the Arbitrator’s finding that Ms Smith suffered injury to the central and peripheral nervous system was not supported by the evidence.
Dr Teychenné’s assessment of whole person impairment of the central and peripheral nervous system was based on the impact of the symptoms he related to an incomplete cervical cord lesion, and the symptoms that he felt were attributable to the alleged brain injury.
The finding of injury to the central and peripheral nervous system is therefore dependent upon an acceptance that Ms Smith suffered an incomplete cervical cord lesion and/or a traumatic brain injury as a result of the accident.
As I said above, Dr Teychenné attributed the disruption to the central and peripheral nervous system in part to the presence of an incomplete cervical spinal cord lesion. I have discussed above the Arbitrator’s reasoning process that led to her finding that Ms Smith suffered injury in the form of an incomplete spinal cord lesion. That reasoning process is flawed. Consequently, the finding that there was a central and peripheral nervous system injury caused by the alleged incomplete cervical spine lesion is also flawed.
In his report, Dr Teychenné reported that Ms Smith suffered from imbalance, cognitive defects, depression and personality change which he felt were all consistent with a traumatic brain injury.[33]
[33] ARD, pp 18–19.
Ms Smith submits that the Occupational Therapy Initial Assessment was made two days after the accident, and it could be inferred that such an assessment was necessary because of the suspicion that Ms Smith had suffered a head injury.
There may no doubt have been a suspicion that Ms Smith suffered a traumatic brain injury, particularly in the light of the moderate sized parietal subcutaneous haematoma found on the CT scan of the brain taken on 18 April 2012. It is apparent that a head injury occurred. That, however, is not sufficient, without some other evidence such as radiological evidence disclosing some pathology, to find an injury to the brain occurred.
Reln submits that Dr Teychenné’s evidence is not supported by or consistent with:
(a)    the observations and findings of treating doctors;
(b)    the observations and findings of Dr Bodel, Dr Rimmer, and Professor Kiernan;
(c)    the contemporaneous ambulance and Liverpool Hospital records, and
(d)    the radiological investigations.
Ms Smith contends that the contemporaneous evidence lends support to the occurrence of a traumatic brain injury. That evidence was identified as:
(a)    a CT scan of the brain was organised by attending staff at Liverpool Hospital;
(b)    the fluctuating GCS, which she says is sufficient to establish a head injury occurred;
(c)    Ms Smith was combative, and
(d)    it is irrelevant that no other medical practitioner diagnosed a central and peripheral nerve system injury.
In relation to the seizures, the Arbitrator accepted Ms Smith’s evidence that the seizures recommenced four months after the accident. The Arbitrator did not explain why that evidence was to be preferred over the history recorded by Professor Kiernan, other than to say Ms Smith would be the best person to recall the time of onset and her evidence was consistent with the history provided to Dr Teychenné.
Professor Kiernan recorded the onset of seizures occurring some 15 months after the accident, which is more consistent with:
(a)    the lack of any reference to seizures in Dr Mathews’ reports, particularly the report dated 12 August 2013 in which the doctor discussed barriers to Ms Smith’s ability to return to work;
(b)    the report of Dr Rail, Ms Smith’s treating neurologist, who recorded occurrence of a number of seizures from May 2014, and
(c)    the general practitioner not having referred Ms Smith to Dr Rail until 2014.
The history provided to Dr Teychenné was based on Ms Smith’s recollection of the date of onset, which is inconsistent with the evidence above and first asserted some four years after the accident.
The acceptance by the Arbitrator that Ms Smith’s seizures occurred in much closer proximity to the injury is against the body of evidence that she did not consider. Her finding that the onset of seizures occurred within four months is unsound and I set aside that finding.
It is equally unclear as to whether the Arbitrator in fact made a finding that Ms Smith suffered a traumatic brain injury, however her acceptance of the opinion of Dr Teychenné would indicate that she did. Such a finding is critical to the acceptance of Dr Teychenné’s opinion as to injury to the central and peripheral nervous system.
The Arbitrator provided no reasons as to why she accepted the history to Dr Teychenné over the contrary factual evidence, other than that she preferred that history to the history recorded by Professor Kiernan. She did not give consideration to:
(a)    the absence of evidence of brain injury on the CT scan;
(b)    the clinical records dated 19 April 2012 that recorded Ms Smith as being “alert and co-operative”;
(c)    the Occupational Therapy Initial Assessment on 20 April 2012, in which Ms Smith was demonstrating basic orientation to place and time and was able to freely recall target picture cards, and
(d)    the absence of any evidence from treating doctors that Ms Smith had symptoms consistent with a traumatic brain injury.

Where there is evidence supporting a party’s position, and the party has made submissions on that evidence, the evidence and submissions must be considered in the Arbitrator’s reasons. It is not sufficient for the Arbitrator to set out the evidence adduced by each side, then find she prefers the evidence of one and not the other without giving proper consideration to that evidence.[34] In failing to consider the material evidence before her, the Arbitrator has erred.
[34] Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186, [28], per Ipp JA.
The Arbitrator erred in her finding that Ms Smith suffered injury to the central and peripheral nervous system and the finding is set aside.

Conclusion

Reln has succeeded in respect of all three grounds of appeal. No issue was raised on appeal in respect of the Arbitrator’s finding that Ms Smith did not suffer an injury to her lumbar spine, and no issue was raised in respect of the Arbitrator’s order to pay Ms Smith weekly payments of compensation.
Paragraphs one and five of the Certificate of Determination are confirmed. Paragraphs two, three and four of the Arbitrator’s determination are revoked.
Pursuant to s 352(7) of the 1998 Act, in circumstances where the Arbitrator’s decision is revoked, I may determine the matter or remit the matter to an Arbitrator for re-determination. The re-determination of this matter requires a consideration of all of the material facts and an assessment of the weight to be afforded to that evidence. In the circumstances of this case, I am of the view that in fairness to both parties, it is preferable to remit the matter to a different Arbitrator for re-determination.

DECISION

Paragraphs two, three and four of the Certificate of Determination dated 5 July 2018 are revoked, otherwise the Certificate of Determination is confirmed.
The matter is remitted to another Arbitrator for re-determination of the outstanding issues.

Elizabeth Wood

Deputy President

19 November 2018