Rivers v SMS Willoughby Pty Ltd - [2010] NSWWCCPD 113

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Rivers v SMS Willoughby Pty Ltd [2010] NSWWCCPD 113
APPELLANT:		Peter Rivers
RESPONDENT:		SMS Willoughby Pty Ltd
INSURER:		CGU Workers Compensation (NSW) Limited
FILE NUMBER:		A1-009833/09
ARBITRATOR:	Mr B McManamey
DATE OF ARBITRATOR’S DECISION:		7 April 2010
DATE OF APPEAL DECISION:		1 November 2010
SUBJECT MATTER OF DECISION:		Application to extend time to appeal; credit findings
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Brazel Moore Lawyers
Respondent:		TurksLegal
ORDERS MADE ON APPEAL:		Leave to appeal is refused.
Each party is to pay his or its own costs of the appeal.

BACKGROUND

The appellant worker, Mr Rivers, started work as a casual truck driver with the respondent employer, SMS Willoughby Pty Ltd (SMS), on 21 September 2005. His duties required him to drive a truck and to collect household waste in the Willoughby area. He alleges that he injured his back on 30 September 2005 whilst lifting in the course of his employment.

SMS’s insurer, CGU Workers Compensation (NSW) Limited (CGU), accepted his claim and made voluntary payments of compensation, though the date on which those payments commenced is not known. On 23 May 2006, Mr Rivers provided CGU with a “Statement of Income and Employment Status” in which he falsely said that he had not performed any work since 30 September 2005.

In fact, Mr Rivers had been employed as a truck driver for Tumbi Sand and Soil during the period he had been receiving weekly compensation. As a result of his false statements, Mr Rivers pleaded guilty in the Local Court at Newcastle on 9 April 2009 to having made a statement knowing it was false in a material particular when furnishing information to a person concerning a claim. He was fined $7,000 and ordered to pay restitution to CGU in the sum of $8,951.06 plus costs.

On 5 August 2009, Mr Rivers claimed lump sum compensation in respect of an 11 per cent whole person impairment alleged to have resulted from his injury. In a s 74 notice dated 4 November 2009, CGU disputed liability on the grounds that Mr Rivers had not injured his low back and that his employment had not been a substantial contributing factor to his injury. Mr Rivers filed an Application to Resolve a Dispute (the Application) in the Commission on 3 December 2009.
The Commission listed the matter for conciliation and arbitration on 19 March 2010. Mr Rickard, of counsel, represented SMS and Mr Middleton, a solicitor, represented Mr Rivers. The matter proceeded to arbitration with lengthy submissions from both sides, but the Arbitrator heard no oral evidence.
In a reserved decision delivered on 7 April 2010, the Arbitrator stated that the worker had little credit and had been prepared not only to exaggerate his claim but also to make false declarations for the purpose of financial gain. He made an award in favour of the respondent employer with no order as to costs.
In an appeal filed on 28 May 2010, Mr Rivers seeks leave to appeal the Arbitrator’s determination.

ON THE PAPERS

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.”

It has been submitted on behalf of Mr Rivers that the Presidential member hearing the appeal “should conduct the appeal by way of [a] hearing to enable him/her to judge and test the Applicant/Appellant[’s] demeanour and credibility in a face to face situation”. The respondent has submitted that the Commission can conduct the appeal on the papers.
The worker’s submission that the appeal should be conducted by “way of [a] hearing” is unsupported by any reasoned argument. It seems to have been assumed that Mr Rivers would automatically be permitted to give oral evidence on appeal. That assumption was misplaced. Oral evidence is only permitted in the Commission with leave (Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34; 4 DDCR 358) and Mr Rivers has advanced no persuasive reason why leave should be granted for him to give oral evidence on appeal. I do not accept that I would be assisted in resolving the appeal by an assessment of his demeanour.
Having the documents that are before me, and the submission by the respondent that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE TO APPEAL

Monetary threshold

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.

It is not disputed that the monetary thresholds in s 352(2) are satisfied. The quantum in issue on the appeal is in excess of $5,000 and therefore the threshold in s 352(2)(a) of the 1998 Act is satisfied.

Time

The appeal was lodged several weeks outside the 28-day time limit in s 352(4) of the 1998 Act and Mr Rivers seeks an extension of time in which to appeal.
An extension of time in which to appeal is governed by pt 16.2(12) of the Workers Compensation Commission Rules 2010, which is in the following terms:

“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”

The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 where his Honour said at 480:

“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”

It has been submitted on behalf of Mr Rivers that time to appeal should be extended because:
(a)     Mr Rivers’ solicitors received the Certificate of Determination on 8 April 2010;
(b)     Mr Middleton conferred with Mr Rivers on Thursday, 15 April 2010 and explained that the Arbitrator had found against him and that he could appeal. He advised him of the 28-day time limit on any appeal. Mr Rivers replied that he would read through the determination and list the findings he disagreed with and “come back” to Mr Middleton with his instructions;
(c)     in a letter dated 15 April 2010, Mr Middleton provided Mr Rivers with a copy of the determination and confirmed that he had discussed “the option of appealing the Arbitrator’s decision” and that Mr Rivers was “in agreement that that should be done”. The letter requested Mr Rivers to ring Mr Middleton “to give your instructions in that regard”;
(d)     due to pressure of work (as a result of a personal injury partner being on extended leave) Mr Middleton did not follow up Mr Rivers’ instructions;
(e)     Mr Middleton contacted Mr Rivers on 18 May 2010 and he then instructed that he wished to appeal. Mr Middleton advised the respondent’s solicitor by email on 18 May 2010 that Mr Rivers would be appealing the Arbitrator’s determination;
(f)   the appeal was filed with the Commission on 28 May 2010;
(g)     an award of compensation in the amount claimed would assist Mr Rivers “financially to a significant extent”, and
(h)     time to appeal should be extended as to lose the right to appeal would work demonstrable and substantial injustice to Mr Rivers “who clearly did not understand he had to get back to his ‘legal representatives’ in a timely fashion within twenty eight (28) days”.
The respondent has opposed the extension of time to appeal, pointing out that the appeal was lodged 52 days after the Commission issued the Certificate of Determination, well outside the 28-day time limit in s 352(4) of the 1998 Act. It also submitted that inadvertence or administrative errors by legal advisers do not amount to exceptional circumstances (O’Carroll Constructions Pty Ltd v Burgess [2007] NSWWCCPD 224).
I am not satisfied that there are any grounds for extending time to appeal in this matter. My reasons are as follows.
First, that Mr Middleton acted promptly to file the appeal once he received instructions from Mr Rivers is of limited relevance in circumstances where the appeal is out of time by several weeks and there is no explanation as to why Mr Rivers did not provide instructions to appeal within the relevant 28-day period.
Second, I accept that Mr Middleton advised Mr Rivers on 15 April 2010 that he had a right of appeal and that he had 28 days from the date of the decision in which to do so. Mr Rivers has provided no explanation as to why he did not provide instructions to appeal until Tuesday, 18 May 2010. Mr Middleton’s file note of 18 May 2010 merely states that Mr Rivers “apologised for not ‘coming back’ to” him. There is therefore no explanation for the appeal being filed several weeks out of time. There is no suggestion that Mr Rivers had been unwell or unable to provide instructions within the 28-day limit. He was well aware of the time limit and, without explanation, failed to comply with it.
Third, that Mr Middleton did not follow up Mr Rivers because of “pressure of work” provides no basis for extending time to appeal. Both Mr Rivers and Mr Middleton were aware of the time limit. The failure to lodge the appeal within time was not due to inadvertence by Mr Middleton, but, according to Mr Middleton’s submissions, due to the failure by Mr Rivers to provide instructions to appeal until 18 May 2010.
Fourth, the submission that Mr Rivers did not understand he had to get back to his legal representatives in a timely fashion is unsupported by any evidence to that effect from Mr Rivers. Indeed, this submission is contrary to Mr Middleton’s evidence that he explained to the worker on 15 April 2010 the 28-day “time limit on any appeal”. As I have noted, Mr Rivers has offered no explanation as to why he did not provide instructions to appeal within the 28-day period after 7 April 2010.
Fifth, whether Mr Rivers will suffer any substantial or demonstrable injustice if the Commission refuses leave to appeal requires an assessment of his prospects of success on appeal. This requires a detailed assessment of the merits of the appeal.
The Arbitrator considered that the case turned on the worker’s credit. He concluded that he could only accept Mr Rivers where there was other evidence to support his claim and there was no such other evidence.
It has been submitted on behalf of Mr Rivers that the Arbitrator erred in the exercise of his discretion when he found against Mr Rivers solely on the ground of credit and erred in not admitting oral evidence at the arbitration. Mr Middleton asserted that, in “pre-arbitration discussions”, the Arbitrator indicated that he would rely on documentary evidence only and that no oral evidence would be admitted. It was submitted that an arbitration is an informal dispute resolution process and that the Arbitrator should have permitted Mr Rivers to give oral evidence and offer explanations for matters raised by counsel for the respondent in the course of the arbitration. Mr Middleton has cited no authority in support of this submission.
Mr Middleton based his submission on the following exchange at the arbitration. In making submissions in reply, Mr Middleton said that he had an explanation for Mr Rivers’ conviction “if you want to hear that” (T17.7). The Arbitrator responded (at T17.9):
“ARBITRATOR: Well, one of the difficulties is that Mr Rivers has an explanation for the conviction which could have gone into the statement. It involves additional evidence, and, no, I can’t take it. In terms of whatever went on in that video, whatever explanations there might be for why he was doing gym classes at that time or any other, they could also have gone into the statement, but they haven’t, so I can’t really follow up there.”

On appeal, Mr Middleton has sought to rely on what he has described as “new evidence”. That “evidence” has not been set out in a signed statement as required by Practice Direction 6, but is merely a summary of Mr Rivers’ alleged instructions incorporated in Mr Middleton’s submissions. As a result, I issued a Direction on 26 August 2010 directing the worker to file and serve a copy of the fresh or additional evidence upon which he sought to rely, together with submissions in support of the application to rely upon that evidence. Mr Middleton wrote to the Commission on 1 September 2010 stating, “The Appellant has nothing further to add to his Appeal Submissions”. The Commission advised by letter on the same day that the appeal would not proceed until the appellant worker complied with Practice Direction 6 and filed a copy of the fresh evidence or additional evidence upon which he sought to rely. The appellant’s legal advisers have ignored both the Direction of 26 August 2010 and the letter of 1 September 2010.
The Commission has a statutory obligation to provide a timely service (s 367 of the 1998 Act). In addition, an assessment or determination is to be made by the Commission having regard to the information that is conveniently available to it, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate (s 354(7) of the 1998 Act). Given that two months has now passed since the Direction of 26 August 2010, and given the Commission’s statutory obligation to provide a timely service, it is appropriate that the matter be determined notwithstanding the appellant worker’s non-compliance with the Direction of 26 August 2010.

The “new evidence” identified in Mr Middleton’s submissions filed on 28 May 2010 may be summarised as follows:
(a)     Mr Rivers immediately and freely admitted the offence and pleaded guilty and was fined $7,000;
(b)     the circumstances of the offence were that when CGU “failed to make weekly payments of compensation for some months in this same claim the Applicant/Appellant sought causal part time work to support himself”;
(c)     at a later time CGU wrote to Mr Rivers with a view to commencing weekly payments. A question in that letter was to the effect of: “Have you been working?”. As Mr Rivers “had only been doing minimal casual/spasmodic work he unwittingly answered ‘No’”;
(d)     Mr Rivers has instructed that he never favoured the idea of being a recipient of workers compensation payments and was attempting to get back into the work force, and
(e)     the references to Mr Rivers surfing, attending the gymnasium and attending aerobics were references to isolated instances over a number of years from 2000 to 2006.

The “new evidence” set out in Mr Middleton’s submissions filed on 5 July 2010 is alleged to be as follows:
“When I arrived back at the Depot Mr Archer was no where to be found and I observed the last of the drivers driving off to go home as it was Company Policy that if we finished our work early on a Friday we could go straight home and still be paid for 8 hours. There was a mechanic or two still present at the Depot but they had nothing to do with the drivers. It was part of the mechanic’s duties to lock up the Depot at the conclusion of their work. Accordingly, the office was still open and I locked the truck and took the keys to a hook in the office where they were stored before driving home to the Central Coast.”
Though this passage is in quotes, it is not in a statement signed by Mr Rivers, but is reproduced as part of Mr Middleton’s submissions. Mr Middleton added that the explanations Mr Rivers would have given, had he been given the opportunity at the arbitration, for having done “spasmodic casual work was that he could not survive economically on weekly benefits of Workers Compensation and was keen to remove himself from the Workers Compensation system altogether”. He (Mr Rivers) freely admitted, Mr Middleton submitted, that he should not have stated to CGU that he had not been working when he had been doing spasmodic casual work. It was that answer on the CGU form that led to his conviction and he paid the penalty. Mr Rivers was captured on surveillance video because he was “trying to remove himself from the Workers Compensation system and to earn a little additional survival money”. According to the submissions, Mr Rivers stated that he did not receive any weekly payments of compensation until January 2006 and he was “pushed to the limit financially” and “had to find work to survive”.

In respect of Mr Rivers’ gymnasium activities, Mr Middleton submitted that, had Mr Rivers been allowed, he would have explained that Dr Hawkes was prescribing medication only, with no treatment plan. It was submitted that Mr Rivers independently researched the management of back pain. The information his research produced indicated that “activity was required”. That strategy had worked well for him in the past. The gymnasium classes he joined were, according to Mr Middleton’s submissions, for seniors with varying injuries. It was submitted that Mr Rivers “says that when he discussed his desire to attend a gym with Dr Hawkes, Dr Hawkes advised him that he should be guided as to what style of gym activity he should be involved in by his treating physiotherapist”.
Mr Rivers’ “new evidence” is not new evidence at all. Leaving aside the fact that it is not in the proper form in that it is not in a signed statement, it is evidence that was readily available prior to the arbitration and should have been filed in a statement from Mr Rivers with the original Application. Mr Rivers’ first statement consisted of one paragraph and was hopelessly inadequate. Due to the lack of relevant detail in that statement, the Arbitrator properly directed that Mr Rivers prepare a more comprehensive statement dealing with the issues in dispute. At the arbitration, the Arbitrator gave leave (over objection by the respondent) for Mr Rivers to rely on that supplementary statement, dated 18 February 2010.
The “new evidence” takes the matter no further. It is not disputed that Mr Rivers pleaded guilty to the charge of making a statement knowing it was false in a material particular when furnishing information to a person concerning a claim. Given the evidence that Mr Rivers was working at the time he asserted that he was not, it is difficult to see what else he could have done. Precisely when CGU commenced to make payments is not in evidence. However, the submission that Mr Rivers sought casual part-time work to support himself because the insurer failed to make weekly payments for some months is inconsistent with Mr Rivers’ supplementary statement where he admitted to having returned to work “whilst still on weekly payments”. His explanation was that he could not meet his living expenses from the weekly compensation payments and he was anxious to get off workers compensation. He said that he was “trialling” himself for a return to work. The surveillance evidence suggests that he was in fact working regularly and Mr Rivers has tendered no detailed evidence to the contrary.

The submission that Mr Rivers “unwittingly” answered “No” to questions about whether he had been working is simply untenable. The questions Mr Rivers answered were in clear and unequivocal terms and his answers were demonstrably false and deliberately so. As the Arbitrator correctly noted, the worker’s dishonest answers gave rise to serious questions as to his reliability and the veracity of his claim in general. It required that his claim be carefully examined for independent corroboration and support (Malco Engineering Pty Limited v Ferreira (1994) 10 NSWCCR 117). Such independent corroboration is lacking.
Mr Rivers may well have “instructed” that he never favoured the idea of being a recipient of workers compensation payments and that submission is consistent with his supplementary statement where he said that he was “anxious to get off workers compensation”. However, that is not “new evidence”. Even if it were, it makes no difference to the outcome of the case and provides no basis for reaching a different conclusion to that reached by the Arbitrator. If that statement were genuine, one would have expected Mr Rivers to tell CGU immediately he obtained employment. Not only did he not do that, but told CGU that he was not working.
The reference to surfing was a reference to video of the worker taken in 2001 in respect of his previous claim for compensation for a low back injury. Its only relevance to the current claim is that, as in the present claim, evidence was tendered in Mr Rivers’ previous claim that he had exaggerated the extent of his disability and his presentation to the medical experts was inconsistent with independent observations.
I do not agree that the reference to Mr Rivers attending the gymnasium and aerobics were “isolated instances” over a number of years, as Mr Middleton has submitted. The evidence from Ms Andrews, the respondent’s OHS manager, is that Mr Rivers regularly attended vigorous exercise classes at a time when Dr Hawkes had certified him unfit. I accept Ms Andrews’ evidence that the classes Mr Rivers attended were “extremely strenuous” and that, on at least three occasions, Mr Rivers attended two consecutive classes on the one morning. This evidence strongly suggests that Mr Rivers’ presentation to Dr Pillemer – to the effect that he was very restricted and not really able to do any housework as it would leave him in agony afterwards – was false and deliberately so.
The “new evidence” about the circumstances in which Mr Rivers left the keys for his truck on 30 September 2005 is of limited, if any, probative value. Leaving aside the fact that the “evidence” is not in the correct form and that it is evidence that should have been included in Mr Rivers’ initial statement filed with the Application, it does not overcome the significant credit issues in the case. At its highest, it merely asserts that some mechanics were present when he left the keys in the office and that it was their job to lock the depot at the conclusion of their work.
Mr Middleton’s next submission is that Mr Rivers did “spasmodic casual work” because he could not survive on weekly compensation benefits. Mr Rivers has provided no details of the “spasmodic casual work” he performed. The surveillance report suggests that Mr Rivers was working regularly, at least during several periods of the surveillance in late March and early April 2006. This was in a period when Dr Hawkes had certified Mr Rivers unfit for work. Contrary to Mr Middleton’s submission, Mr Rivers has never freely admitted that he should not have told CGU that he was not working when he was in fact regularly engaged in work as a truck driver. Mr Rivers has never expressed any genuine contrition for his actions, but has consistently maintained that he worked because he could not meet his living expenses from his compensation payments. If he had been “trialling himself”, as he claimed in his supplementary statement, one would have expected him to do so with the assistance of a rehabilitation provider and/or a physiotherapist. He did not do that. He led Dr Hawkes to believe that he was unfit for any work and obtained certificates to that effect while he was actually working. Even if Mr Rivers had been “pushed to the limit financially” and “had to find work to survive” that provides no explanation or excuse for his false assertion to CGU that he had not been working.

The submission that Mr Rivers joined gymnasium classes for seniors with varying injuries is inconsistent with Ms Andrews’ evidence that he participated in extremely strenuous classes called “body attack”, “body pump” and “body step”. The body attack classes involved running backwards and forwards, push-ups, crunches, and jumping. The body pump classes involved repeated lifting actions including shoulder presses, squats, lunges, biceps curls, triceps extensions and chest presses, all with weights on a barbell. Ms Andrews saw Mr Rivers carrying a barbell with 20 kg across the back of his shoulders while doing lunges. Given the detailed evidence from Ms Andrews, the opportunity she had to observe Mr Rivers, and given the consistency between her evidence and the surveillance report of 10 April 2006, I prefer and accept her evidence to Mr Rivers’ evidence as to the nature of the exercises he performed. This seriously undermines Mr Rivers’ credit.
Whilst it is true that Dr Hawkes said in his report of 18 January 2006 that Mr Rivers should have been getting physiotherapy, which could have been combined with swimming, he did not feel Mr Rivers was ready for “any gym work but would be guided by the treating physiotherapist”. The only evidence of contact with a physiotherapist is in Ms Andrews’ statement. She said she spoke to a physiotherapist named Eddie on 28 February 2006, who said that he had seen Mr Rivers only once and took a history of him having had previous problems and back surgery. He said that he gave Mr Rivers a program of self-directed exercises to continue at home. The exercises Ms Andrews saw Mr Rivers performing at the gymnasium were not self-directed home-based exercises. They were vigorous physical activities that were inconsistent with Mr Rivers’ presentation to Dr Hawkes and Dr Pillemer.
I do not accept that the Arbitrator erred in refusing to allow Mr Rivers to give oral evidence at the arbitration. The Arbitrator gave the worker considerable latitude to present additional evidence in his supplementary statement (over objection) that should properly have been included in the evidence attached to the Application. Though the “new evidence” sought to be adduced on appeal was not in the correct form and did not comply with Practice Direction 6, I have carefully considered that “evidence” in my assessment of Mr Rivers’ prospects of success on appeal. The “new evidence” makes no difference to the result. If anything, Mr Rivers’ “explanation” for his having made a false statement to CGU about his work circumstances further undermines his credit. If he genuinely wanted to get off compensation, then the best way to do that was to tell CGU that he had obtained employment. His “explanation” for his involvement in the gymnasium classes is inconsistent with Ms Andrews’ evidence (which I accept) and further highlights his dishonesty.

As to Mr Middleton’s other submission on the merits of the appeal, I make the following observations:
(a)     counsel for the respondent did not have to prove that Mr Rivers suffered an injury as a result of some weekend activity. Mr Rivers carried the onus of proof and he failed to discharge that onus because the Arbitrator did not accept him as a credible witness. Neither do I;
(b)     whilst it is true that Mr Rivers worked on his own on 30 September 2005, the Arbitrator was entitled to look to the surrounding circumstances for independent corroboration of Mr Rivers’ allegations. There is no corroboration of Mr Rivers’ assertion that he suffered back pain over the weekend following 30 September 2005. Dr Hawkes only examination finding was of tenderness in the low lumbar region. That finding was consistent with Mr Rivers’ previous back condition for which he had surgery in 1998. Investigations in 1999 revealed an annular tear at L4/5. The MRI scan in January 2006 suggested pathology at the L4/5 level. Given the findings in 1999, the pathology in 2006 could well show the natural progression of the earlier abnormality. In any event, a finding that the current L4/5 pathology has resulted from the alleged incident on 30 September 2005 depends on an acceptance of Mr Rivers’ evidence. The Arbitrator did not accept Mr Rivers’ evidence and neither do I, and
(c)     Mr Middleton submitted that it is common for a worker to give varying accounts of the circumstances of his or her compensable injury, but that the “common thread” in Mr Rivers’ evidence was that he lifted heavy items of furniture and “whether it was a wardrobe or a lounge doesn’t really matter” (T10.48-50). I do not accept this submission. A consistent history of the alleged cause of an injury is often (but not always) critical to the acceptance or rejection of a claim. That is especially so where (as in this case) the particular worker’s credit and reliability is open to doubt. In his claim form dated 6 November 2005, Mr Rivers said he felt pain while lifting an “old lounge” into the back of a truck. Dr Hawkes did not take that history, but recorded that Mr Rivers had been lifting at work and “noticed a pain in his lower back after lunch” and that “his back had got [sic] worse on Friday afternoon”. Professor Ghabrial took a history that Mr Rivers developed severe back pain radiating to the left leg when he lifted a wardrobe onto the back of a truck on 30 September 2005. These inconsistencies further undermine Mr Rivers’ case and support the Arbitrator’s conclusion. I agree with that conclusion.
The appeal is out of time be several weeks and Mr Rivers has advanced no proper explanation for it being filed so late. Giving full weight to the “new evidence” sought to be adduced on appeal, the appeal has no reasonable prospects of success. In all the circumstances, Mr Rivers has not established that to lose the right to appeal would result in a demonstrable and substantial injustice. The application to extend time to appeal is refused.

DECISION

Leave to appeal is refused.

COSTS

Each party is to pay his or its own costs of the appeal.

Bill Roche
Deputy President

1 November 2010

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE