Rocla Pty Ltd v Stephenson

[2009] NSWWCCPD 125

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Rocla Pty Ltd v Stephenson [2009] NSWWCCPD 125
APPELLANT:		Rocla Pty Ltd
RESPONDENT:		Gregory Stephenson
INSURER:		Self Insurer
FILE NUMBER:		A1-9656/08
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:		11 May 2009
DATE OF APPEAL DECISION:		8 October 2009
SUBJECT MATTER OF DECISION:		Injury; notice; incapacity; weight of evidence; exercise of discretion.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:	Leigh Virtue & Associates
Respondent:	Phil Bannister Pty Ltd
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 11 May 2009 is confirmed.
The Appellant is to pay the costs of the appeal assessed at $2,000.00 plus GST.

BACKGROUND TO THE APPEAL

1. On 5 June 2009 Rocla Pty Ltd (‘the Appellant/Rocla’) sought leave to bring an appeal against a decision of a Commission Arbitrator dated 11 May 2009. 

1. The Respondent to the Appeal is Gregory Lloyd Stephenson (‘Mr Stephenson/the Respondent’).

1. Mr Stephenson is presently 46 years old.  He first commenced employment with Rocla in about August 1999 as a casual through a labour hire company. He gained permanent full-time employment with that company in December 1999 working as a dredge operator on the Hawkesbury River.

1. He underwent a pre-employment medical assessment at the request of Rocla by Dr Smith at Parramatta.

1. His duties included loading an outboard motor and fuel tank onto a dinghy which he then took out to the dredge which he operated all day. His duties on the dredge included hauling heavy anchor chains and steel cables and operating a welder. Those duties he claimed involved heavy manual lifting, carrying, bending and pulling of weights up to fifty kilograms.

1. He first noted pain in his back in about March 2001 when he was lifting the outboard motor. He consulted his doctor on 10 April 2001and was prescribed anti-inflammatory medication but remained at work.

1. On 17 April 2001 towards the end of the day, he was walking on uneven ground when he twisted his ankle and fell heavily to the ground, jarring his back. He reported the injury to his boss, and saw his doctor the same day. He resumed work on selected duties, but after some further time off his employment was terminated.  He has not resumed work since that time.

1. Liability was accepted by Rocla and weekly benefits and medical expenses were paid up until 14 April 2005 when liability was declined apparently in purported reliance upon the provisions of sections 52A and 54 of the Workers Compensation Act 1987 (‘the 1987 Act’).

1. He underwent extensive treatment particularly for his back, and had a laminectomy performed by Dr Noel Dan in February 2002 followed by spinal fusion performed by Dr Steel in October 2003.

1. By an ‘Application to Resolve a Dispute’ (‘the Application’) registered in the Commission on 2 December 2008, Mr Stephenson sought weekly benefits from 15 April 2005, medical expenses and lump sum compensation for his injuries. Those he described as occurring firstly, as a consequence of the frank injury to his back and left leg following the fall on 17 April 2001, and secondly, as a consequence of “general duties in employment with the Respondent” between August 1999 and 17 April 2001 causing injury to his back and left leg.

1. The parties attended a hearing before a Commission Arbitrator on 16 March 2009. No oral evidence was given, and the parties made extensive submissions recorded in a transcript of that date. In a reserved decision delivered on 11 May 2009 the Arbitrator found in favour of Mr Stephenson, and that he was entitled to an award pursuant to section 37 of the 1987 Act at the relevant maximum statutory rate from 15 April 2005.

1. The Certificate of Determination issued on 11 May 2009 records the following orders:

“1.     Respondent to pay the Applicant weekly payments of compensation pursuant to s37 of the 1987 Act as follows:

i.For the period 15 April 2005 to 9 September 2006 the maximum statutory rate for a single worker with two dependants;

ii.For the period 10 September 2006 to 10 June 2008 the maximum statutory rate as adjusted for a single worker with one dependant;

iii.For the period 11 June 2008 and continuing at the maximum statutory rate as adjusted for a single worker.

2.     Respondent to pay the Applicant’s costs pursuant to s60 of the 1987 Act upon production of accounts and/or receipts or notice of Medicare charge.

3. The matter is remitted to the Registrar to be referred to an Approved Medical Specialist (AMS) pursuant to Part 7 Chapter 7 of the Workplace Injury Management and WorkersCompensation Act 1998. It being noted that the AMS shall be requested to assess the extent to which the Applicant has any permanent impairment of the back and permanent loss of efficient use of the left leg at or above the knee resulting from frank injury on 17 April 2001, and nature and conditions of employment from August 1999 to April 2001 (deemed date 17 April 2001).

4.     Respondent to pay the Applicant’s costs as agreed or assessed. The matter being certified as complex in so far as the Applicant’s costs only are concerned, a 30% uplift of costs payable to the Applicant pursuant to Schedule 6 Table 4 Item 4 of the Regulations is applicable.”

1. It is from this decision that the Appellant seeks leave to appeal.

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. In its Appeal registered on 5 June 2009, the Appellant submitted that this was a matter which “should be given an Oral Hearing…as the Appeal involves complex issues…”  The Appellant also submitted that, at the time the appeal was filed, the transcript was not available and that “such Transcript is, in the view of the Appellant, best addressed at an Oral Hearing.”

1. The transcript was sent to the parties on 22 June 2009. In supplementary submissions filed on 12 August 2009, the Appellant repeats its assertion that an oral hearing is necessary since “the Appellant wishes to expand and amplify its written submissions by further oral submissions…” and that “an oral hearing is essential to properly ventilate its case and be heard in respect of the issues of notice, claim, injury, deemed date of injury, substantial contributing factor and incapacity.” Reference was then made to the claimed “deficiencies” in the Arbitrator’s determination.

1. In his Notice of Opposition filed on 14 August 2009, Mr Stephenson stated that the matter was suitable for a determination ‘on the papers’ but claimed that, since the appeal failed to provide any submissions in support, he was unable to comment on the Appellant’s request for an oral hearing because he was “unaware of the real issues raised in the Appeal.” At that stage, the Appellant’s supplementary submissions had not been served on him.

1. In supplementary submissions filed by Mr Stephenson on 2 September 2009, he claims that he is prejudiced by the Appellant’s request for an oral hearing since that would involve “further delay and in circumstances where the Appellant has not properly outlined its Appeal.”  No further comment is made as to the suitability of the matter proceeding ‘on the papers’.

1. Section 354(6) does not provide a party with an ‘option’ to hold an oral hearing. It is for the Commission to decide whether that is appropriate. (see Haddad v GJ Formwork Pty Ltd [2007] NSWWCCPD 156). In this case, I am not persuaded that the issues are particularly complex or that it is either necessary or of assistance to me for the Appellant to “expand and amplify” its written submissions when those are already quite detailed. Indeed, the Arbitrator considered that the matter was only “complex” in so far as Mr Stephenson’s costs were concerned. Moreover, most of the issues raised on appeal were the subject of submissions before the Arbitrator, and were dealt with by him in considerable detail in his 49 page Statement of Reasons (‘Reasons’). Given that my task on review is to determine what is the “true and correct view” of the case (per Spigelman CJ in State Transit Authority v Fritzi Chemler [2007] NSWCA 249) (‘Chemler’) I am not satisfied that an oral hearing would be of assistance in these circumstances.

1. I note that this issue was considered by the Court of Appeal in Fletcher International Exports Pty Limited v Barrow & Anor [2007] NSWCA 244 (‘Barrow’). In that case, the Appellant (represented by the same solicitor as in the present case), claimed that there was a miscarriage and/or denial of procedural fairness in my decision to deal with the matter ‘on the papers’. Mason P, in dismissing this ground of appeal, noted at [91] “The Commission is not a court and is not expected to function as a court ...” He then stated:

“93.   The employer submits that the Presidential member failed to give any or any adequate weight to the nature and complexity of the case. Had she done so, she would have opted for oral argument with the advantage of questioning and interaction which it offers.

94.    This submission amounts to no more than complaint about the outcome of the exercise of the discretion. Under the section, the power is enlivened if the Commission “is satisfied that sufficient information has been supplied”. The Presidential member addressed this matter and declared that she was thus satisfied. This conclusion was well open and it has not been shown to be erroneous in fact.”

1. Having regard to Practice Directions Numbers 1 and 6, all the documents that are before me including the transcript, 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

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.

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The amount at issue on appeal satisfies the threshold requirements of section 352(2).

1. Leave to appeal is granted.

THE ISSUES IN DISPUTE

1. The Appellant has identified seven grounds of appeal as follows:

“i.     The Arbitrator erred in the exercise of his discretion concerning the admission into evidence of the late Statement filed by the Respondent dated 10 February 2009.

ii.The Arbitrator erred in failing to properly consider and assess the evidence.

iii.The Arbitrator has erred in coming to his findings as to Injury, Deemed Date of Injury and Employment being a Substantial Contributing Factor to Injury.

iv.The Arbitrator erred in finding the Respondent to be totally incapacitated for work.

v.The Arbitrator erred in taking into account matters which were not evidenced in the proceedings.

vi.The Arbitrator erred in his consideration of the effectiveness of the concurrent Notifications given under Section 54 and Section 52A and his consideration of the application of said sections.

vii.The Arbitrator erred in his consideration and application of the provisions of Section 74 of the WIM and of Regulation 37.”

1. I will consider each of these grounds of appeal in turn, but before doing so, it is useful at this juncture to set out the history of events surrounding this claim. This was done in impressive detail by the Arbitrator commencing at [31] as follows:

“31.   The Applicant’s detailed statement dated 13 September 2007 details various matters including his accounts of work history, the circumstances leading up to and including the alleged injury event of 17 April 2001, his medical treatment, capacity for work, and pain and suffering resulting from injury to his back.

32.    It is noted that prior to the commencement of his employment with the Respondent the Applicant was required by the Respondent to undergo a physical examination. The Applicant understood a physical examination was compulsory for all employees, and that his permanent employment with the Respondent was dependent upon the passing of this examination (Applicant’s statement [21]). The examination was performed by Dr Smith at her rooms in Parramatta. No records of the general practitioner, Dr Smith, are filed in these proceedings however I am satisfied the Applicant “passed” that examination.

…

34.    The Applicant first commenced working for the Respondent as a casual working full time hours and in about December 1999 the Applicant was employed as a permanent full-time employee with the Respondent as a dredge operator, working the Hawkesbury River.

…

36. The Applicant’s statement provides details of his work history including details of the nature and conditions of his work as a dredge operator, in particular, at paragraphs [12] – [48]. The Applicant claims his work with the Respondent required him engaging in manual activities that required him to twist and bend his back when lifting items such as outboard motors [27] and to lift heavy welding gear [32] on board boats and to pull on submerged cables and haul aboard anchors [29]. This manual work at times involved him in heavy lifting [34] and repeated bending lifting, carrying and pulling [36]. The Applicant generally worked five days a week from 6:00am to 2.30 pm on occasions he worked overtime and sometimes 6 days a week [42].

37.    I am satisfied the information contained in reports and other evidence relied upon by the Respondent [48] do not materially contradict the account of the nature and conditions of the Applicant’s work with the Respondent as provided in the Applicant’s statement and I accept the Applicant’s work activities involved him in moderate to heavy manual duties and included the lifting twisting and bending of his back and carrying of items such as an outboard motor and welding generator

38.    I am satisfied that in about March/April 2001 the Applicant first began to experience pain in his low back and attended his treating doctor, Dr Ransinghe, on about 10 April 2001 who prescribed anti-inflammatory medication. Applicant’s statement [49] – [52].

39.    I am satisfied when at work on 17 April 2001 the Applicant twisted his ankle suffering extreme pain and causing him to fall to the ground landing on his left hip and jarring his back (Applicant’s statement [53] – [54], reference is had also to contemporaneous records such as Claim Form 30 April 2001 and clinical notes and WorkCover Certificate of Dr Ranasinghe and her report dated 7 June 2001).

40.    On 17 April 2001, after the fall at work the Applicant attended on Dr Ranasinghe, and she put him off work for some 10 days (Applicant’s statement [55] – [56]).

41.    I am satisfied that prior to commencing work with the Respondent the Applicant's back was asymptomatic. I am satisfied that prior to the injury event of 17 April 2001 the Applicant had no time off work due to any pain or injury associated with his back. (refer Applicant’s statement [49] and medical report histories generally).

42.    On 30 April 2001 the Applicant made a claim for compensation citing the injury date of 17 April 2001 and liability was accepted by the Respondent.

43.    Medical investigations and medical opinion relied on by the Applicant indicate that on 17 April 2001 he suffered pathology including a disc protrusion and aggravation of a pre-existing asymptomatic spinal condition. (Applicant’s statement [49] [64 - 79] refer also medical investigations reports and reports of treating doctors, in particular report of Dr Dan dated 27 February 2008).

44.    The Respondent commenced payments of weekly payments compensation on about 7 May 2001 and paid for the medical treatment and related expenses including in connection with operations performed by Dr Dan (laminectomy - 21 February 2002) and Dr Steel (fusion - 13 October 2003).

…

47.    Tim Sanderson, psychologist, with Accent Rehabilitation Service provided a vocational report dated 30 July 2001 to the Respondent. Injury details are recorded as ‘lumbosacral strain and L5/S1 lesion”.

48.    It was reported by Mr Sanderson that as a plant operator with the Respondent the Applicant was required to lift weights in excess of 50kgs and his medical restrictions prevented him from returning to the pre-injury role because of the “heavy work” involved.

49.    It is noted that three assessments by Tim Sanderson of the Applicant had taken place. On the basis of these assessments, under the heading “Psychological Issues” Mr Sanderson was of the view that the Applicant demonstrated a number of language difficulties “consistent with a receptive/expressive language difficulty” that were “significant enough to impact on new learning requiring language mediation”.

50.    The Applicant returned to work part time on suitable duties (RTW Plan dated 3 May 2001) with the Respondent and was later terminated from employment with the Respondent. On 8 May 2001 The Applicant was certified totally unfit by his treating doctor.

51.    The Applicant obtained extensive ongoing medical treatment concerning his back including extensive physiotherapy and rehabilitation treatment paid for by the Respondent and the Respondent continued to pay weekly benefits compensation and compensation for all medical treatment.

52.    By letter dated 14 February 2002, the Applicant’s “boss”, Pat McCue, Quarry    Superintendant, (on Rocla Quarry Products letterhead, bearing address, Captain Cook Drive Kurnell NSW), referred to a meeting of 21 June 2001 and the Applicant’s inability to return to pre injury duties, and terminated the Applicant’s employment effective 22 February 2002.

53.    The Applicant underwent major surgical procedures involving his back including a laminectomy (Dr Dan) 21 February 2002.

…

55.    In letter dated 24 June 2003 to the Respondent’s insurer (addressed to Sandra Smith) Dr Ranasinghe reports “Mr Stephenson continues to experience severe pain in the back and his leg, to a point where he is unable to remain in a sitting posture for more than 10 minutes. Previous requests for physiotherapy made by me and Dr Dan have been declined by the insurer and Mr Stephenson is now having this treatment at his own expense….I feel I will fail in my duty of care, if I do not seek am opinion from an expert in pain management in order to reduce reliance on analgesics”.

56.    By facsimile letter of 25 June 2004 Sandra Smith for the Respondent wrote to Dr Ranasinghe advising the Respondent was “happy to accept liability for pain management” and that it had, since December 2001, “been in agreement with such a course”.

57.    The Applicant continued to experience considerable pain and other symptoms and on 13 October 2003 Dr Steel carried out a lumbosacral fusion at L5/S1. Dr Steel also later treated the Applicant with spinal steroid injections, all paid for by the insurer.

58.    The Respondent ceased making weekly payments in 2003 and the Applicant commenced proceedings in the Commission, (Matter no. WCC 10862-03). By consent that application was withdrawn, and the Respondent resumed weekly payments of compensation at the maximum statutory maximum provided by s37 of the 1987 Act for a worker with a dependant wife and 2 children.

59. By letters dated 4 March 2005, in purported reliance upon the provisions of s 52A and s54 of the 1987 Act, the Respondent gave notice of its intention to terminate payments of weekly compensation from 15 April 2005. Compensation payments were paid until 14 April 2005.

60.    On 16 April 2005 the Applicant commenced receiving, and continues to receive, a disability support pension.

61.    In 2006 the Applicant commenced proceedings WCC 5818-2006 claiming weekly payments compensation and those proceedings were subsequently discontinued.

…

65.    On 2 December 2008 the Applicant filed the Application to Resolve a Dispute in the current proceedings. The Respondent filed a Reply on 12 December 2008.”

THE EVIDENCE, SUBMISSIONS AND DISCUSSION

1. The ‘Late Evidence’ Issue.

1. The Appellant submits that the Arbitrator caused prejudice to the Appellant by admitting the statement of Mr Stephenson dated 10 February 2009 together with material from the Australian Bureau of Statistics. In the Appellant’s submission:

“The application by the Respondent to admit these documents on the day of the arbitration, in what has been well recognised as a ‘front end loaded system’ should have been refused, with the result that the hearing would have inevitably taken a completely different forensic course.”

1. The Arbitrator dealt with this issue commencing at [4] of his Reasons as follows:

“4.     Both parties’ representatives attended at teleconference on 20 January 2009.  At that teleconference Mr Harris, for the Applicant sought clarification of the issues the Respondent maintained as being in dispute. Mr Macken, for the Respondent advised the Respondent disputed the claim on the multiple grounds referred to in the s74 notice including a failure by the Applicant to properly notify and make a claim for his alleged back injury the subject of the current proceedings. Mr Harris, Applicant’s counsel, indicated the Applicant would provide a supplementary statement. The Applicant subsequently filed an application to admit late documents dated 11 February 2009 attaching a supplementary statement from the worker dated 10 February 2009 and attaching publicly available documentation from the Australian Bureau of Statistics pertaining to wages increases.

5.     At commencement of the Arbitration proceedings submissions were made concerning admission of documentation into the proceedings. The Respondent objected to the Applicant’s Application to Admit Late Documents dated 11 February 2009. The Applicant objected to the admission of medical reports attached to the Reply.

6.     A determination was made permitting the admission into evidence the documents attached to the Applicant’s Application to Admit late Documents. I was satisfied that the Applicant’s supplementary statement dated 10 February 2009 ought to be admitted into the proceedings pursuant to Part 10 of the Workers Compensation Commission Rules. I am satisfied the material contained in the late documents is relevant to the issues in dispute, that any prejudice the Respondent may have suffered by its admission was minimal noting that I am satisfied the Respondent was in a position to take action to reasonably accommodate any such prejudice if it elected to do so. The Applicant at teleconference indicated its intention to file additional information to further address aspects of the dispute in particular those relating to notice and claim of injury. I am satisfied the motivation for the generation of the supplementary statement arose out of the limited reasons for dispute contained in the Respondent’s s74 notice, and its wages schedule in the Reply, and the Respondent’s indication at teleconference that notice of injury and making of claim in respect to injury was a matter it wished to maintain and formally press as an issue in dispute.  The supplementary statement dated 10 February 2009 was filed and served approximately 5 weeks before hearing and I am satisfied the Respondent had a reasonable time to respond to any new matters raised if it choose to do so. I am satisfied that the Australian Bureau of Statistic’s report of economic and financial information attached to the statement is information that is publicly available information and there was no prejudice to the Respondent in it admission.

7.     The supplementary statement was not lengthy, it comprised 5 paragraphs - 4 short paragraphs with sub paragraphs to paragraph 5. Paragraphs 1 – 3 basically reiterated matters dealt with in documentation already filed. Paragraph 4 referred to publicly available Australian Bureau of Statistics information and wages and financial matters that I am satisfied the Respondent ought reasonably to have knowledge. I am satisfied that the matters raised in paragraph 5 were also mainly in the nature of submissions. I was satisfied the statement as a whole raised matters that to a large extent were within the knowledge of the Respondent and that to the extent that the statement introduced new evidence, (which was minimal), the Respondent could if it chose to, apply to cross examine the Applicant on such matters (it did not make such an application) or apply to introduce evidence in response (it did not make such an application). I am satisfied the Applicant gave notice of its intention to provide a further statement arising from discussions at the teleconference and the supplementary statement was served upon the Respondent almost 5 weeks prior to hearing. I am satisfied the matters covered by the supplementary statement were relevant to the matters in dispute and ought not take the Respondent by surprise at, or prior, to hearing. I am satisfied the Respondent had a reasonable time to respond to any new matters raised if it chose to, and it elected not to. I was satisfied to the extent the Respondent suffered any prejudice that the Respondent was in a position to be reasonably able to be take action to accommodate it, and in having regard to the objectives of the Commission, and in balancing the interests of justice, I was satisfied that the Applicant ought be allowed the opportunity of relying on the supplementary statement dated 10 February 2009, including the Australian Bureau of Statistics attachment, by its admission into the proceedings.”

1. Consistent with the practice and procedure of the Commission, Mr Stephenson sought to have the late material admitted on the day of the hearing.  However, as the Arbitrator pointed out, the statement of Mr Stephenson had been in the Appellant’s possession for at least five weeks prior to the hearing, so that I am not persuaded that the Appellant suffered any prejudice in these circumstances.

1. As to the Bureau of Statistics material, given its “publicly available” nature, I am again not satisfied that the Appellant has demonstrated that it was prejudiced by the Arbitrator’s decision on this issue. As Mr Stephenson rightly points out in his submissions:

“The Commission is entitled to have regard to its general knowledge and experience of the value of work in the labour market: see Cumming v Colin Sullivan and Dorthey Sullivan [2009] NSWWCCPD 80 at paragraph 86. The Arbitrator applied an annual increase in the comparable wages of 3% over the relevant period (Reasons at [228]) which is in line with the authorities cited in Cumming at paragraph 92. The Appellant had ample time to deal with the matter and it is still unable to specify what the ‘different forensic course’ would have been.”

1. Having viewed the contents of this late evidence, I am satisfied that the Arbitrator’s decision on this issue was correct and accordingly, this ground of appeal must fail.

1. The Arbitrator’s Consideration and Assessment of the Evidence

1. The Appellant has failed to identify how and in what way it is alleged the Arbitrator failed “to properly consider and assess the evidence” so that I am somewhat at a loss to understand the nature of the Appellant’s complaint in this regard.

1. Doing the best I can to sort out the various ‘submissions’ contained in the Appellant’s “Further Submissions” filed on 14 August 2009 into the categories of claimed ‘errors’ by the Arbitrator set out in the appeal application, it seems that this complaint relates to the following matters numbered by the Appellant as follows:

“2.     The Notice of Injury bore little resemblance to the claim and the proceedings. It would appear that the Respondent notified of left hip and ankle injury following an incident on 17.04.01 however, the lower back was not notified at that time.

3.     The ‘nature and conditions’ claim is non specific and has been brought out of time in respect of both the statutory notice and claim provisions, and without any or any adequate explanation as to delay as required under the legislation.

4.     The appellant wishes to take the Presidential Member through the legislation in order to demonstrate the many notice and claim deficiencies which should have barred the respondent from receiving compensation. The documentation is quite substantial and the appellant respectfully requires an oral hearing to draw attention to this issue.

17.    The arbitrator failed to give proper regard to the nature of the ‘nature and conditions’ of the respondent’s duties that are alleged to have caused injury. There is conflicting lay evidence about is [sic] duties from ‘extremely heavy’ to ‘moderately heavy’.”

1. I have already considered the request for an oral hearing repeated again by the Appellant at point 4 above and have also considered (as did the Arbitrator) the relevant legislation. I will consider the issues raised at points 3 and 17 above shortly.

1. Dealing firstly with the “notice” issue referred to at point 2 above, this was considered by the Arbitrator commencing at [108] of his Reasons as follows:

“108. Notice Of Injury And Making A Claim

109.  In these proceedings the Applicant claims he suffered injury to his back on 17 April 2001 as a result of a frank injury, and due to the nature and conditions of his employment during the period August 1999 to 17 April 2001, in the nature of an aggravation of a disease with the deemed date being 17 April 2001.  It is not in dispute that the Applicant first went off work on 17 April 2001 and did not return to work for at least 10 days and then on suitable duties.

110.Part 2 Division 1 of the 1998 Act applies to injuries received before the commencement of section 60A of the 1998 Act. Commencement of s60A was 1 January 2002, accordingly, for any injury suffered prior to 1 January 2002 sections 61 – 64 of the 1998 Act apply in relation to notification of such injuries. I am satisfied that the applicable date of injury regarding the claim in connection with the Applicant’s back and left leg is 17 April 2001. This is the date that applies a frank injury and/or as a result of an aggravation etc of a disease. I am satisfied for the purposes of s15 and s16 of the 1987 Act that if incapacity results from an injury in the nature of an aggravation etc of a disease of the Applicant’s back then in such circumstances these sections operate to deem the date of injury as 17 April 2001, that being the date of incapacity.

111.The Respondent declined liability as it asserts the Applicant failed to give appropriate notice of injury or make a claim for compensation in relation to injury to his back and left leg. The Section 74 notice provided the following:

6. Your client has not complied with the requirements of the legislation, so far as the notification of injury and the claiming of compensation benefits is concerned, including (but not limited to), a failure to claim within the time required.

112.  No greater specificity was provided in the section 74 Notice by the Respondent in support of this ground as reason for denial of liability.

113.  At teleconference Mr Macken for the Respondent stated that an issue in dispute was that the Applicant had failed to properly notify the Respondent and duly make a claim for compensation in connection with any alleged work related back injury (whether frank injury or as a result of the nature and condition of employment). At hearing Mr Macken asserted that the Respondent was entitled to deny liability for the Applicant’s back injury upon the basis that the Applicant had failed to comply with the relevant legislation and had not given the required notice of injury or duly made a claim concerning any injury to the Applicant’s back. Mr Macken asserted the Employee’s Claim Form dated 30 April 2001 only made claim of injury with respect to the Applicant’s left hip and right ankle.

114.  It was asserted on behalf of the Respondent the Applicant had not given notice of any back injury nor had he made a claim for any back injury because the claim form dated 30 April 2001 completed by the worker did not specifically state that he suffered an injury to his back on 17 April 2001 as a result of the fall nor did the claim form refer to the nature and conditions of the Applicant’s employment with the Respondent as a mechanism of injury. 

115.  Mr Macken also indicated that as the claim form was signed on 30 April 2001, some 13 days after the injury event, that insofar as it purported to give notice [sic] of injury it was defective as it was not made as soon as possible after the event. I am not satisfied that giving notice of an injury 13 days after an injury event will automatically lead to a finding that it is not made “as soon as possible” – each matter must be looked at given its own particular circumstances. In any case the Applicant advises he gave verbal notice to his “boss” Pat McCue soon after the 17 April 2001 (Applicant’s statement [56]) and in so far as the complaints of pain are concerned relating to the nature of his work the Applicant states that he advised his supervisor (Jason Lewis) that had been experiencing back from all the lifting (Applicant’s statement [23] [44]) and verbal notice is sufficient (s62(2)). The evidence does indicate that the Applicant was subsequently put off work by his doctor for at least 10 days due to his injury – if weekends are counted - it appears that would put him back at work on about 30 April 2001 and that is the date on the claim form regarding the falling incident. The Applicant asserts the Applicant has notified the Respondent of his back injury and made claim for compensation in connection with that injury. The Applicant states he gave verbal notice of his complaints of pain to his supervisor Jason Lewis and also Pat McCue. The Applicant completed and provided to the Respondent a written claim form dated 30 April 2001 with WorkCover medical certificate completed by his nominated treating doctor and a statutory declaration concerning his dependants attached. On 7 May 2001 the Respondent wrote to the Applicant advising liability had been accepted. I am satisfied for the purposes of the section that notice was given “as soon as possible and before the worker voluntarily left the employment” (s61(1)).

116.  Mr Macken asserted the Employee’s Claim Form dated 30 April 2001 only made claim of injury with respect to the Applicant’s left hip and right ankle. As indicated the Employee’s claim Form provided to the Respondent by the Applicant is dated 30 April 2001 and refers to the falling incident. The claim form specifies that the fall has affected the Applicant’s left hip and lower back, it attaches a WorkCover medical certificate of his treating doctor Dr Ranasinghe dated 30 April 2001. In this WorkCover certificate Dr Ranasinghe certifies that following her examination of the worker, it is was her opinion he was suffering from exacerbation of lumbosacral pain, and that the clinical features were partly due to a previous injury/disease with the worker having had complaints of lumbar strain on 10 April 2001. The Applicant was referred by Dr Ranasinghe for ongoing physiotherapy treatment, paid for by the Respondent.

117.  Having regard to the wording of the claim form completed by the Applicant on 30 April 2001 it is noted, in response to the question, “What injury(ies) did you suffer?(eg fracture)”, the Applicant states that he suffered injury to “L/H hip and R/H ankle”. In response to the question “What part of the body were affected? (eg upper arm/lower back)”  the Applicant states “Left hip / lower back”. (emphasis added).

118.  I am satisfied the Applicant has given notice of injury to his back to the employer in accordance with the notice requirements of the 1998 Act. There is no dispute that the Applicant suffered a fall on 17 April 2001. There is no dispute that the Applicant suffered some injury as a result of that fall. It may be that the Applicant did not expressly state in the place in the form provided by the Respondent that he injured his back however he did state his back was a body part “affected” by the fall and the claim form when submitted attached a WorkCover medical certificate dated 30 April 2001 from his treating doctor. This WorkCover medical certificate certified the Applicant as having suffered a fall of 17 April 2001 on to his left hip with a resulting exacerbation of lumbosacral pain, the WorkCover medical certificate of Dr Ranasinghe also referred to the consultation of 10 April 2001 when she diagnosed a lumbosacral strain.  In these circumstances I am satisfied the Applicant has substantially complied with the notice requirements of the legislation regarding a work related injury to his back having been occasioned, with date of injury being 17 April 2001.

119.  As indicated, I am satisfied the Applicant did give sufficient notice of injury to his back resulting from the fall of 17 April 2001. However, in addition, if I was not so satisfied, I am nonetheless of the view that it is not necessary for a worker to fully state all body parts injured and the precise nature of those injuries at the time of notification.  Counsel for the Applicant referred to the decision of Warwick Hobart v Pietrzak [2006] NSWWCCPD 315 (Warwick) in support of such a conclusion, and with respect I am in agreement with the views of Deputy President Roche expressed therein, and I am also of the view that the reasoning applies equally relevantly to the provisions of s61 as it does to s254 of the 1998 Act, these sections being substantially in the same terms. Paragraph [57] of Warwick is reproduced below:

57. In the present case the ‘injurious event’ sustained by Mr Pietrzak was the blow to his head when the roller door struck him. If that event was reported then that is sufficient compliance with section 254. It puts the employer on notice and allows the employer to make its own investigations, medical or factual, into the incident and its consequences. If it is later alleged that a worker sustained more extensive or more serious injuries than were initially reported, then whether those injuries are the result of the original injury will be a matter to be determined on the evidence. However, the fact that a particular body part has not been referred to in the initial notification is not a bar to making a claim for compensation in respect of that body part. (emphasis added)”

1. In his submissions, Mr Stephenson has set out in considerable detail all the evidence in support of his contention that proper notice of his injuries was given, some in addition to the material referred to by the Arbitrator. I do not propose to set this out in detail. In short, correspondence from the Appellant, medical reports and certificates, and the Appellant’s various “Return to Work’ plans all confirmed that Mr Stephenson suffered a back injury in the fall on 17 April 2001.

1. In these circumstances, I accept Mr Stephenson’s submission that “there is simply no merit in the Appellant’s assertion that there was no notification of the low back injury arising from an incident on 17.04.01.”

1. As to the “non specific” ‘nature and conditions claim, I am at a loss to understand what is meant by “non specific.”  The nature of that claim was clearly spelled out in Mr Stephenson’s Application.  As to the issue of “notice” in relation to that claim, this was dealt with by the Arbitrator commencing at [121] as follows:

“121. The Respondent has contended that the Applicant was required to, but has not, given a separate notice of injury concerning the “nature and conditions of employment” mechanism of injury.

…

123.  Having regard to the Respondent’s contemporaneous documentation and its actions, the Applicant’s verbal reports of injury (referred to above) and the information in the WorkCover medical certificate dated 30 April 2001, accompanying the written claim form dated 30 April 2001, where it is noted that the injury pathology was “exacerbation of lumbosacral pain” and that the clinical features present were partly attributable to the lumbosacral strain occasioned on 10 April 2001, I am satisfied the Applicant had given notification of the claim in connection with his back injury whether the injury was a result of the single frank injury event or the nature and conditions of his employment – and the Respondent had accepted such notification as sufficient.

124.  Whether the Applicant suffered a frank injury or an injury in the nature of an aggravation etc of a disease, I am satisfied, in the circumstances of this matter, the deemed date of injury is 17 April 2001 and accordingly s61 – 64 of the 1998 Act apply. As already indicated I am satisfied the Applicant has complied with or substantially complied with the provisions of s61(1) concerning notification of his alleged back injury, however if I am incorrect in that analysis, or if the Applicant was required to give separate notice of injury more specifically relating to the nature and conditions of his employment for the period August 1999 through 17 April 2001 for the reasons below given, I am further satisfied, having regard to application of the factors set out in s61(2) of the 1998 Act to the particular circumstances of this matter, that to the extent that there has been an absence of, or any defect or inaccuracy in, any such notice, such matters should not in the circumstances of this matter be a bar to the recovery of compensation.

125.  In this regard, for the purposes of s61(2) (a), I am satisfied the Respondent has not been prejudiced in respect of the proceedings as a result of any absence of, or any defect or inaccuracy in, any such notice of injury by the Applicant to the effect that his back injury resulted from the nature and conditions of his employment with the Respondent as a dredge operator. The Applicant’s statement dated 13 September 2007 at [81] notes that since injury the Respondent has had the Applicant medically examined on a regular basis by approximately 20 different doctors and organisations. I note the Respondent has also conducted contemporaneous workplace reviews and assessments. I am satisfied the Respondent was aware of the nature of the Applicant’s moderate and at times heavy manual duties and that these duties included activities such as moderate to heavy lifting, bending at the back, lifting an outboard motor, and pulling on cables and chains. I am satisfied doctors who have examined the Applicant on behalf of the Respondent were aware, or ought to have been aware, of the nature of the Applicant’s pre injury employment duties.  Upon review of the evidence I am satisfied the Respondent has had ample opportunity to undertake, and has undertaken, investigation of, the nature and conditions of the Applicant’s employment with the Respondent leading up to the incident of 17 April 2001.

126. I am satisfied the Respondent has since 17 April 2001 had the chance to arrange, and has arranged, numerous medical examinations of the Applicant (applicant’s statement [81]. The Applicant’s solicitors also wrote to the Respondent’s solicitors in April 2008 enclosing a claim for permanent impairment that gave further notice of the back injury claim resulting from the 17 April 2001 frank injury and resulting from the nature and conditions of the Applicant’s employment with the Respondent over his years of employment as a dredge operator. After receipt of that claim the Respondent, as recently as 27 June 2008, had the Applicant examined by Dr Hitchen for the purpose of providing a medical opinion. The Respondent has (despite requests for its production) failed to produce that report…

127.  The Applicant also submitted there was available (if necessary) the excuse of ignorance or mistake or other reasonable cause on the part of the worker, and I am further satisfied, the Applicant, if needed, could also take advantage of the operation of s61(2)(b) to excuse any absence or any defect or inaccuracy of the notice. Upon consideration of the particular circumstances of this matter, I am satisfied the Applicant had reasonable cause to not give a separate notice of injury in respect to the nature and conditions of his employment as I am satisfied it was reasonable for him to believe his employer was aware of the moderate and at times heavy nature of his duties, noting also his knowledge that the Respondent had confirmed acceptance of liability for injury to his back (date of injury 17 April 2001) one week after he submitted his claim and it had commenced and continued to make weekly benefits payments and had paid for extensive medical and related treatment expenses with respect to his back injury including treatment involving major operative intervention. I am satisfied it was reasonable for the Applicant to believe the Respondent had available the contemporaneous WorkCover medical certificates, and reports of his treating doctors, in particular those of Dr Ranasinghe (eg. dated 7 June 2001), and of Dr Dan (31 January 2002) that referred to the manual nature of his employment (including the lifting of the outboard motor) and its connection with his problems. I am satisfied the Applicant had brought concerns about the lifting aspects of the job to the attention of his supervisor. The Applicant had not made prior claims for workers compensation and I am satisfied the Applicant was either ignorant or mistaken in his belief that he was required to provide the Respondent any further or additional notice of injury to his back concerning the nature and conditions of his employment which would bear the same date of injury (17 April 2001) as I am satisfied it would reasonably appear to him that the Respondent was on notice and that liability for his back injury had been accepted.

128.  The Applicant submitted the Respondent employer knew of the injury from other sources, and I am further satisfied the Applicant, if necessary can take advantage of the operation of s61(2)(c) to excuse any absence or any defect or inaccuracy in any such notice. Upon consideration of the particular circumstances of this matter, I am satisfied the Respondent “had knowledge of the injury from any source at or about the time when the injury happened”. There is available in evidence references to the Applicant complaining of back pain prior to the event that took him off work on 17 April 2001. In the Return to Work plan dated 3 May 2001 Jason Lewis is named as the Applicant’s Supervisor. The Applicant in his statement  at [44] refers to notifying Jason of the pain he was experiencing from all the lifting and bending and carrying. This report of notification of injury is not contradicted by any other evidence. The Applicant’s treating doctor provided WorkCover medical certificates dated 8 May 2001 providing opinion that the worker was suffering from “exacerbation of lumbar pain. Worsening of pain after work”. In  medical reports dated  18 May 2001 and 7 June 2001 the Applicant’s nominated treating doctor notes that the Applicant had begun to complain of pain associated with his work duties with the Respondent as a labourer. There is a report of Dr Dan treating neurosurgeon dated 31 January 2002 to Sandra Smith of the Respondent reporting upon the Applicant’s experiencing pain associated with lifting the outboard motor each day. The “Pyschs at Work” report dated 30 April 2004 to Sandra Smith reports that prior to the 17 April 2001 Mr Stephenson had complained of back and leg pain and had been told not to bend or lift at work.

129.  On 16 May 2001 Sandra Smith wrote advising the Applicant of the arrangements in place for the Applicant to be examined by Dr David Johnson, orthopaedic surgeon, the first such examination was scheduled for 26 June 2001. The Respondent has not relied upon a report from Dr Johnson in these proceedings however – having regard to the Applicant’s statement - the Respondent required the Applicant to be reviewed by a psychiatrist, Dr Strum, who provided a report to the Respondent's solicitors dated October 1, 2003.  In that report Dr Strum referred to a report of Dr David Johnson (who examined the applicant on behalf of the Respondent on three occasions 26 June 2001, 12 November 2001, 14 November 2001 - Applicant statement [81]) and Dr Strum in his report noted that Dr Johnson had reported "the claimant is suffering from a congenital bilateral pars defect and Grade 1 spondylolisthesis.  This is a condition which he has suffered from during his life and is pre-existing …. The claimant has suffered an aggravation to this pre-existing condition and has developed a significant L5/S1 disc prolapse associated with repetitive heavy lifting.” (emphasis added).

130.  I am satisfied the Applicant has provided sufficient notice of injury to his back (resulting from a frank injury event and as arising out of the nature and conditions of his employment) in accordance with the provisions of the legislation, and to the extent that there was any absence in giving notice or there was an inaccuracy or defect in that notice the particular circumstances of this matter were such that the provisions of s61(2) operated so as not to bar the recovery of compensation.”

1. As to the Appellant’s submission that the claim for injury as a result of the ‘nature and conditions’ of employment was out of time, this issue was dealt with by the Arbitrator commencing at [133] as follows:

“133. I note further that a claim for lump sum compensation pursuant to s66 and s67 of the 1987 Act was also made on behalf of the Applicant by his solicitors on 8 April 2008 on an approved Workers Compensation permanent impairment claim form. Having regard to s65 (7) and s65(9) and s260, s261(3) of the 1998 Act the Applicant is considered to have made this claim for lump sum compensation when he first made his claim, that is, on 30 April 2001.  Accordingly the Applicant’s claim for lump sum compensation is within the time limits prescribed by the relevant legislation.

134.  If I am incorrect in the conclusions that the Applicant has not failed to make a claim in respect to his back injury within six months of injury I am satisfied that the provisions of s65(13) and s261(4), having regard to the particular circumstances of this matter, operate to excuse the making of the claim outside the period of 6 months from the date of injury, whether due to the Applicant’s ignorance, mistake or other reasonable cause, for the reasons of the kind already discussed above in connection with excuses available to the Applicant in relation any inaccuracy defect or absence  in the giving of notice of injury.

135.  I note also the email correspondence dated 17 March 2004 (within 3 years of injury) to the Applicant’s solicitors from Sandra Smith (the Respondent’s Workers Compensation Co-ordinator) referring to the Applicant’s claim wherein she states:

“At this time I would also be amiable (sic) to payment of some s66/67 even though his condition may not be stable.

I have always told him that s66/67 payment was available once his impairment was assessed”.

136.  If I am incorrect in the conclusions that the Applicant has not failed to make a claim in respect to his back injury within six months of injury I am further satisfied the Applicant is able to take advantage of the operation of section 65 (13)(b) and s261(4)(b). I am satisfied the Applicant’s claim is in respect of an injury resulting in serious and permanent disablement. The Applicant has undergone extensive operative and rehabilitative treatment including a laminectomy and spinal fusion. The Applicant has undergone extensive rehabilitation treatment. All doctors have indicated the Applicant has a significant incapacity for work as a result of his back condition. The Applicant has been assessed by Dr Dan as suffering a 50% permanent impairment of his back and 15% permanent loss of efficient use of his left leg. I am satisfied (for the reasons given below) the injury to the Applicant’s back, the subject claim of the present Application, has resulted in the Applicant suffering a total incapacity for work.

137.  As already indicated I am satisfied the Applicant has duly made a claim in respect to the alleged injuries the subject of these proceedings and to the extent that the Respondent submits the Applicant ought have served a separate and distinct notice of injury and claim in relation to injury due to the nature and conditions of his employment (which would bear the same date of injury as the frank injury) I refer, with respect, to the New South Wales Court of Appeal decision in the matter Tan v National Australia Bank Ltd [2008] NSWCA198 (21 August 2008), wherein– after considering submissions put on behalf of the employer that there had, inter alia, been a failure on the part of the worker to strictly comply with requirements of the legislation in connection with the making of her claim - at [82] Young CJ stated  “It is absurd to think that in an Act to assist workers, a worker could be left without any support at all because after a lengthy hearing his or her problem was held to be a fresh injury rather than an exacerbation and a separate piece of paper in the form of a prescribed claim had not be lodged in respect of it” and at [83] “Furthermore, it would be surprising to those in the real world, if after an expensive hearing lasting many days, a tribunal came to the conclusion that it never had any jurisdiction to commence as someone had omitted to serve a piece of paper.”

1. The Arbitrator’s analysis of the evidence and legislative requirements in relation to what the Appellant has described as the “many notice and claim deficiencies” was thorough and well considered and in my view does not disclose any error. The Appellant did not contradict Mr Stephenson’s claim that he gave notice of his injury to Jason Lewis and Pat McCue. Notice was further documented in a WorkCover medical certificate from Dr Ranasinghe dated 30 April 2001 which made reference to injury by way of disease from 10 April 2001 and in the claim form. I note particularly the reference in the certificate of 30 April 2001 this point: at question 17 of the certificate, Dr Ranasinghe ticked “Yes” in response to the statement “I consider that the clinical features are due to a previous injury/disease.” The certificate then stated: “If Yes, please state what injury/disease” to which the doctor responded “10.4.01. He had lumbosacral strain.”

1. As to the Appellant’s claim regarding the “conflicting” evidence in relation to the nature of Mr Stephenson’s duties, this was dealt with to some extent at [125] of the Reasons set out above. The Appellant’s own evidence was to the effect that the work was heavy. A report from Accent Rehabilitation Providers (Accent) dated 18 May 2001 titled “Task Analysis” and including photographs of the work site concluded as follows:

“The work involves occasional heavy manual handling (defined as lifting up to 50kg) more often medium heavy manual handling ( up to 25kg lifting and forceful movements). The work can also involve working in confined or awkward postures daily ( eg, checking engine, replacing parts, lifting chain block). The manual handling demands are sometimes affected by factors such as

·   Limited space or restricted choice of positions for feet positioning

·   Less stable base of support – eg, standing on a barge, sitting in the dinghy (on the water and therefore there is some movement of the base of support during the manual handling tasks.”

1. A further report from Accent dated 30 July 2001 refers to the requirement for lifting weights “in excess of 50kg.”

1. The Appellant’s own evidence corroborated that of Mr Stephenson. The evidence was not conflicting: the duties ranged from very heavy to moderately heavy and in my view were of a type that were liable to cause injury. Indeed the Accent report of 18 May 2001 specifically stated that such duties provided a “risk” of injuries to the lower back.

1. In these circumstances, the Appellant has failed to demonstrate any error by the Arbitrator in his assessment of this evidence.

1. The Injury, Deemed Date of Injury and the Section 9A Issue

1. The Appellant makes the following submissions:

“5.     The respondent carries the onus of proving his back problems are causally related to an injury (s4) and that employment was a substantial contributing factor to such injury. It is submitted that the Respondent has failed to discharge that onus on the available evidence; particularly the contemporaneous evidence as at 17.04.01 regarding the respondent’s back complaints. Such complaints of back pain do not result from any frank injury or nature and conditions of employment. The symptoms in the back are not contemporaneous with the frank incident on 17.04.01 and follow references made in extensive clinical records produced under Direction, where no direct contemporaneous reference is made to any work related injury causative of the back complaints. There were also prior complaints by the Respondent of back problems unassociated with work and which were not disclosed to the relevant doctors who have provided opinions in this case.

6.       The respondent has not been forthright when attempting to relate his lower back problems to the frank incident on 17.04.01.

…

8.     The arbitrator did not give sufficient weight to the respondent’s prior back problems: ie, before 17.04.01, and thus did not consider the live issue of section 9A in its proper context…”

1. Given the Appellant’s acceptance of liability for four years and its own evidence, I consider many of these submissions nothing short of ludicrous. Nevertheless, given my task on review, it is necessary to consider whether the Arbitrator’s findings represented the “true and correct view” of the case.

1. The Arbitrator considered these issues at length commencing at [138] under the heading: “Section 4 and 9A-Injury, causation and substantial contributing factor.” I do not propose to set out his findings in detail. He referred to the statement of Mr Stephenson, the Appellant’s own assessments of the duties performed by Mr Stephenson and the medical evidence from both parties. He accepted at [145] the opinions of Mr Stephenson’s treating doctors and gave reasons for preferring that evidence over some of the Appellant’s medical opinions at [146] before concluding as follows:

“144. I am satisfied the Applicant’s accounts of injury on 17 April 2001 and surrounding circumstances including the moderate to heavy nature and conditions of the Applicant’s work with the Respondent leading up to 17 April 2001 are not contradicted by evidence from the Respondent, indeed the reports of its assessors confirm the moderate to heavy nature of the employment duties.

…

147.  Having regard to the weight of medical opinion, in particular the opinion of his treating doctors, I am satisfied there existed a direct causal link between the nature and conditions of Mr Stevenson's employment as a dredge operator with the Respondent and the aggravation, acceleration and exacerbation of disease in the Applicant’s back making it symptomatic in about April 2001 and it was significantly further aggravated by the fall on 17 April 2001 resulting in the Applicant suffering an incapacity for work.

149.  I am firmly of the view that the nature and conditions of the Applicant’s employment with the Respondent served to aggravate, accelerate, deteriorate or exacerbate a pre existing underlying asymptomatic disease condition present in the Applicant’s back. I am also satisfied the Applicant suffered a frank injury to his back on 17 April 2001 resulting in the Applicant having to go off work.

150.  As indicated I am satisfied the medical evidence supports the finding that the Applicant’s fall on 17 April 2001 caused a frank injury that served to further aggravate, accelerate, deteriorate or exacerbate the Applicant’s disease condition present in his back  I am satisfied that the Applicant, as a result of the nature and conditions of his employment with the Respondent over the period August 1999 through 17 April 2001 including the fall of 17 April 2001 has suffered an injury as contemplated by s4(a),and (b) (ii), of the 1987 Act being in the nature of a personal injury and in the nature of an aggravation acceleration deterioration or exacerbation of an underlying disease for which his employment was a contributing factor. I am satisfied that in so far as the Applicant’s disease condition is concerned that s16 operates to deem the date of injury as 17 April 2001, that being the date of his incapacity for work.

…

156.  I am satisfied the Applicant on 17 April 2001 suffered an injury to his back and left leg that arose out of or in the course of his employment with the Respondent.  I am satisfied the injury was in the nature of a frank injury to his back and left leg and in the nature of an aggravation etc of a disease with a deemed date of 17 April 2001. I am firmly of the view, and I find, that the Applicant’s employment with the Respondent was a substantial contributing factor to the injury.”

1. The Arbitrator’s conclusions were entirely consistent with the evidence. There was simply no evidence of any prior complaints of back pain unassociated with work. Mr Stephenson apparently passed the Appellant’s pre-employment medical test. He said that he noticed back pain in about March 2001 whilst lifting an outboard motor. He consulted Dr Ranasinghe about that problem on 10 April 2110, one week prior to his fall. It is not uncommon nor inappropriate for a worker such as Mr Stephenson to focus on an incident he considers the most significant, in this case, the heavy fall on 17 April 2001. That however does not diminish the significance, in a medical sense, of any prior incidents, nor is it evidence, as the Appellant submits, of a failure to be frank and “forthright when attempting to relate his lower back problems to the frank incident on 17.04.01.”

1. The Appellant’s complaints in this regard are simply unsubstantiated.

1. The ‘Total Incapacity’ Issue

1. The Appellant submits that the Arbitrator’s finding that Mr Stephenson was totally incapacitated for employment was incorrect and “is at odds with the medical and lay evidence in this case.” In the Appellant’s submission, a finding of partial incapacity “was the only proper finding on the evidence…” The Appellant submits support for this assertion is found in surveillance material which, it asserts, confirms that Mr Stephenson’s presentations to various doctors was “exaggerated.” In addition, the Appellant submits that:

“…the Arbitrator did not conduct a proper exercise under section 40. There are many jobs available to the worker when considering his age, education, prior employment skills etc, such jobs involving sedentary work as a driving instructor, car park attendant, process worker, receptionist, courier, spare parts sales person and so on. The Arbitrator should have embarked on a full section 40 analysis and erred in finding the respondent’s [?]…”

(The balance of this sentence is not recorded).

1. This issue was considered by the Arbitrator commencing at [158]. His findings and reasons are extensive indeed, but given the matters raised by the Appellant, it is appropriate to set them out in some detail as follows:

“158. Incapacity for work

159.  The Applicant claims he suffers a total incapacity for work as a result of injury. The Respondent claims the Applicant has a partial incapacity for work. Mr Macken submitted the Applicant could work as console operator (not specified), taxi driver, or telemarketer/cold canvasser.

160.  Mr Macken referred to surveillance reports dated 23 October 2001 and 30 July 2002 of Virtual Intelligence Services containing statement reports of investigator, Mr Rodney Bebendorf. I note that the relevant film footage was not sought to be admitted into evidence by the Respondent and was not available for me to view. No explanation was provided as to the reason for the film not being available.  Mr Macken made submissions relating to the still photographs and the reports of the Applicant standing on one leg (right leg), reaching, bending and looking over into the engine bay of his motor vehicle seemingly in an effort to inspect and or try and repair the vehicle that had broken down in transit, in support of the contention that the Applicant was more able bodied and had a degree of fitness for work of a degree more than his statement or doctor’s have indicated. The event appears to be an effort to inspect and possibly effect a repair to his broken down vehicle. Nothing is known of the degree of urgency that may have been involved concerning his need for travel, or his level of competence experience or ease in fixing what may have been a simple problem, or the financial or other time or commitment considerations or options that may have been open to the Applicant faced with having his vehicle fail mid route and be left on the side of the road.  It is not known whether the Applicant suffered pain or discomfort either then or later in having performed the tasks. The surveyed events took place in October 2001 and July 2002 prior to the spinal fusion of October 2003 and prior to the steroid injections performed by Dr Steel. The Respondent also relied upon surveillance report dated 8 February 2005 by John R King & Associates, which reported upon the Applicant driving for short periods. I have considered the submissions, the pictures and the reports in full and I am not persuaded that the information contained therein in any material way (if at all) is inconsistent with the Applicant’s general medical condition and restrictions and capacity for work applicable to these proceedings as expressed in the Applicant’s medical and statement evidence.

161.  Mr Macken in his submissions made reference to records produced by the Police involving incidents in which the Applicant was named as a victim or person of interest. It was not why this evidence was in the proceedings.  In any case in considering the documents I am not persuaded that the information contained therein in any material way is inconsistent with the Applicant’s general medical condition and restrictions or capacity for work as expressed in his medical and statement evidence. I am not persuaded that the Police records provide information sufficient for me not to be satisfied, for the purposes of the issues before me, with the Applicant’s credit and honesty generally. Although it has been indicated in some medical reports that the Applicant was a “poor historian” I am satisfied the Applicant has been truthful in the matters that he has raised in his statement evidence and generally in so far as the information he has provided to people involved in his treatment and rehabilitation. I am satisfied that those who have commented upon the Applicant’s level of recall have not formed the view that the Applicant lacked credit.

162.  Upon review of the extensive amount of documentation filed with the proceedings I am satisfied the Applicant presented as a man who was motivated to return to employment with the Respondent in some capacity or with another employer. He has been unsuccessful in that endeavour. The Respondent was unable to provide the Applicant with a suitable duties position that could accommodate his restrictions and unfortunately efforts on behalf of the Applicant and return to work officers and agents have not resulted in finding employment of a nature suited to the Applicant (refer also Applicant’s statement [86], [87]).

163.  A trial position utilising the Applicant’s prior qualifications as a machinist and tool maker was found and a summary of that experience is contained in Accent Rehabilitation Service (Return to Work coordinator) report dated 20 December 2001. It was noted that the Applicant was considered trusted by the employer who left him alone on site to also occasionally answer the telephone and take messages. It is noted that the Applicant was considered “willing and keen” to perform the tool making/machining work however he had difficulties with speed and productivity. He had difficulty with the physical requirements of the job that included prolonged standing and some forward flexion. He also had difficulty with the “technical side of the work”. It was concluded by the rehabilitation provider that “the option of machinist/tool maker was not considered appropriate”.

164.  In about September 2002 the Applicant indicated a desire to obtain work in the  security industry he completed stage 1 of a certificate training course. It is not apparent from the evidence whether a current security licence was held. It is apparent that the Applicant has not been able to obtain any work in the security field in any capacity. The Applicant also managed to complete 14 weeks of an 18 week TAFE call centre course.

165.  With respect to security type work Dr Dan expressed concern that the Applicant would not be able to stand for prolonged periods nor would the Applicant be likely to be able to chase or tackle any offender. In Accent Rehabilitation Case Closure report of 13 September 2002 Sue Lukersmith, occupational therapist, identified possible occupations suited to the Applicant to include work monitoring CCTV screens or at a weighbridge operator /security front desk. It is noted that this assessment was provided in 2002 and since that time the Applicant was required to undergo a spinal fusion and steroid injections that have not resulted in any improvement in his condition. He has continued to take significant amounts of pain killing medication. In addition I am satisfied, having regard to the more recent reports, and certifications, in particular from his treating doctor that the Applicant’s tolerances for sitting have deteriorated.  In view of the considerable physical restrictions and other factors and for reasons below given I am not satisfied, given the Applicant’s physical restrictions, as at 15 April 2005 (the commencement date of the claim for weekly benefits the subject of this Application), the Applicant had a practical prospect of obtaining work in the occupations suggested by Ms Lukersmith.”

1. The Arbitrator then summarised a number of medical and rehabilitation reports which addressed the ‘incapacity’ issue covering the period from 2002 to 2005.  In summarising the medical opinions from the Appellant, he noted at [182[, for example:

“182. In a report dated 27 October 2005 Professor Ehrlich under the heading “Opinion” states: 

‘If this man's account of events is accepted as being truthful (and it was delivered without any equivocation), then his current back problems should be attributed to this fall at work in April 2001. Whilst he did have pre-existing constitutional abnormalities in the form of spondylolisthesis, he insists that it was completely asymptomatic, a rather unusual situation, but not impossible.

He insists that he has had the pain ever since the accident and it continues to the present day.  If the symptoms are as severe as he says they are (and once again, there was no equivocation about this), then he must be regarded as unfit for his former occupation nor for that matter any occupation requiring anything other than very light work, with the opportunity of resting from time to time. 

At this length of time since his spinal fusion, it is unlikely that any further improvement will take place.” (emphasis added).

1. He continued as follows:

“185. Tim Sanderson, psychologist, with Accent Rehabilitation Service, provided a vocational assessment report dated 30 July 2001 for the Respondent. Three assessments of the Applicant had been undertaken (27 June 2001, 4 July 2001 and 11 July 2001) since the injury. Under the heading “Psychosocial Issues” it was noted that during the appointments “a number of language difficulties were observed”. It was noted that the Applicant had a poor recall and that he had failed completely to recall previous conversations at the assessments when it was discussed that it was not possible for him to return to his previous role at the quarry.

186.  Mr Sanderson opined that the Applicant’s “language sequelae appear consistent with a receptive/expressive language difficulty” and that ‘It is also likely that the difficulties are significant enough to impact upon the acquisition of new learning requiring language mediation. This would include TAFE instruction for example. It is therefore reasonable to identify Mr Stephenson’s existing skills and experience and with these boundaries determine a vocational choice that requires little or no additional training”.

…

188.  It is also noted that in work capacity report of Naomi McCulloch, Rehabilitation Consultant, date of referral 9 January 2003, under the heading “Potential for retraining” Ms McCulloch reported to the Respondent:

‘As a result of the observed language difficulties Mr Stephenson displayed it was concluded that these difficulties are significant enough to impact on the acquisition of new leaning. Therefore it is recommended that the vocational choice made requires little or no additional training’.

189.  Bernadette Crain, Rehabilitation Consultant, provided a report dated 20 June 2003 based on 5 sessions with the Applicant in which a number of ‘difficulties’ in relation to the Applicant’s capacity for work were reported by her. These ‘difficulties’ included the Applicant’s ‘need to vary posture following 1 – 2 minutes’, ‘the need to lie down in order to alleviate his experience of pain, would present as the predominate barrier within an interview situation for tenure of employment’, ‘verbalisation of misunderstanding or conflict with other persons. Particularly. Difficulties were noted with comprehending conversation within the context of vocational and professional participation rather than personal notions’.

190.  …I am satisfied the observations made concerning the Applicant being a poor historian accords to some extent with Mr Sanderson’s assessment that the Applicant is a man with a receptive/expressive language difficulty. I am satisfied that such traits will be unlikely to assist the Applicant in retraining and in obtaining employment that is non menial.

191.  The Applicant’s work history has been one confined basically to manual work activities since leaving school at year 10 in 1978. I am satisfied that the Applicant’s apparent language and receptive difficulties, as noted by Mr Sanderson, will likely adversely impact upon the Applicant’s ability to gain and retain work in vocations involving reliance upon spoken communication or that which require extensive levels of training “on the job” or in a classroom environment.

…

198.  I prefer Dr Ranasinghe’s assessments of the Applicant’s capacity for work over those provided by the Respondent’s doctors. Dr Ranasinghe has been involved in the ongoing management and treatment of the Applicant since 2001. She has attended the Applicant on a regular basis and on multiple occasions since that time and has been in regular contact with the Applicant’s treating neurosurgeons. I am satisfied her assessment of the Applicant’s restrictions and capacity for work is consistent with her understanding of the presentation of the Applicant over an extended period and of the pathology present and resulting from his injury and treatment. I am satisfied the restrictions that she has certified in April 2004 are also generally consistent with matters contained in the Applicant’s statement and raised in Annexure B to the claim for permanent impairment.

199.  I am satisfied the Applicant’s very significant physical restrictions, ongoing pain symptoms, in conjunction with the levels of pain medication he has been consuming on a long term basis as a result of his back injury (all of which are also reasonably likely to impact on his levels of concentration) have drastically effected the saleability of his labour.

…

201.  The Respondent submits the Applicant can gain employment as a console operator (not specified), taxi driver, or telemarketer/cold canvasser. Raynor Lander, in his report to the Respondent considered the Applicant would require an occupation where he could sit, stand, get up, walk around and change posture at will. He indicated the Applicant would be suitable for static security work, gatehouse work, weigh station work or work as a truck (radio) dispatcher.

202.  With respect to the occupations put forward on behalf of the Respondent I am not satisfied the Applicant would be able to obtain work in those occupations. Leaving to one side the availability of such positions (the evidence of the availability of such as at 2005 and continuing is not relied on by the Respondent) I am not satisfied the Applicant would be able to discharge many of the requirements of those positions, such that he would have a practicable prospect of obtaining work in those occupations or in the labour market reasonably accessible to him. For example, I am not satisfied the Applicant could perform the walking requirements of a cold canvasser. I am not satisfied he would be able to perform the physical tasks required of a taxi driver or courier driver, he is not able to sit or drive except for short periods and would be unable to lift or carry luggage. He would also have difficulty with concentration. I am not satisfied the Applicant could gain or hold a position as a console operator or telemarketer given his inability to sit except for short periods and his need to constantly stand and change positions, (and at times lie down) and in addition to the physical restrictions the Applicant has that will limit his opportunity to find work as a console operator or static security guard or telemarketer I am satisfied the work of a static security guard console operator, radio dispatcher, static security guard and telemarketer etc. is likely to require levels of communication skills, concentration and eye for detail that I am not satisfied this worker has the ability to discharge on a consistent basis. Also, the Applicant is (and has been) taking significant amounts of medication, and various doctors and others have commented upon his deficiency in the ability to recall detail…In addition to the physical restrictions, which by themselves are likely to prevent the Applicant obtaining work in the occupations the Respondent has put forward as suitable, I am satisfied the other non physical, personality and psychological factors identified by those that have provided rehabilitation services would also serve to adversely impact upon the Applicant’s ability to obtain and perform office based sedentary work, particularly if it involved him in the need for training to learn new skills or required a sophistication in the level of communication with colleagues or the public.

203.  Having regard to the very significant physical restrictions applicable to the Applicant resulting from injury, his limited education and training, his lack of transferrable skills, I am not satisfied the Applicant would be capable of obtaining work in the occupations put forward by the Respondent, or in the labour market reasonably accessible to him.  I am satisfied that the relevant test is not whether an injured worker has some theoretical earning capacity, but whether there is a practical prospect of the Applicant being able to obtain work in the labour market reasonably accessible to him.(see generally Ecowize North Pty Ltd v Ballard [2207] NSWWCCPD 179 at [43], Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWLR 206 (Lawarra)and Moran Health Care Services v Woods (1997) 14 NSWCCR 499.

1. After setting out extracts of the decision of Mahoney P in Lawarra the Arbitrator concluded as follows:

“205. In summary, I am satisfied the weight of medical and other evidence firmly supports the finding that the Applicant’s physical restrictions for “practical purposes” prevent him from obtaining work in the labour market reasonably accessible to him…

…

207.  I am further satisfied that the Applicant’s level of physical incapacity resulting from injury, including his lifting and bending restrictions, his pain levels, sitting and standing and walking tolerances, concentration difficulties and requirement to take significant amounts of pain killing medication, when coupled with a level of personal receptive learning and language communication difficulties as identified by the return to work rehabilitation provider, that the Applicant is totally incapacitated for work and entitled to an award of compensation pursuant to s37 of the 1987 Act.”

1. I have carefully considered all the evidence, both lay and medical, relevant to this issue. Nothing in the Arbitrator’s extensive analysis of the evidence and the relevant authorities discloses any error. The Appellant’s submissions, simply a repeat of the same arguments put before the Arbitrator, are in my view without merit.

1. The Matters Considered by the Arbitrator

1. The Appellant submits that: “The Arbitrator erred in taking into account matters which were not evidenced in the proceedings.”

1. No further particulars of this claimed error are provided so that I am again at a loss to understand the nature of the Appellant’s grievance.

1. I have carefully perused the ‘Further Submissions’ of the Appellant filed subsequent to receipt of the transcript, but cannot identify any submissions relevant to this issue.

1. In those circumstances, I dismiss this challenge to the Arbitrator’s determination.

1. The Section 52A Issue

1. The Appellant submits:

“The Arbitrator erred in his consideration of the effectiveness of the concurrent Notifications given under Section 54 and Section 52A and his consideration of the application of said sections.”

1. In its ‘Further Submissions’, the Appellant states:

“14. The respondent has not been suitably employed, has not been seeking suitable employment and has previously unreasonably rejected suitable employment within the meaning of section 52A(1). The state of the labour market is not relevant to the respondent’s inability to obtain suitable employment.

15.    The arbitrator failed to make findings within ‘14’ above and thus fell into error.

16. Should such findings have been made in ‘14’ above, the arbitrator should have applied the provisions of section 52A and restricted the respondent’s rights to weekly compensation accordingly and in accordance with that section; such rights to weekly compensation being terminated as at April 2005.”

1. The Appellant’s statements as to the obligations imposed by the provisions of section 52A are correct: however, regard must be had to the evidence relevant to this issue.

1. It was considered by the Arbitrator commencing at [237] as follows:

“237. Section 52A

238. The Respondent seeks to deny liability upon the basis of operation of s52A of the 1987 Act. The Respondent’s s74 notice dated 16 September 2008 states:

Your client has already been given notice in accordance with section 52A of the Workers Compensation Act, 1987 and is therefore precluded from recovering compensation benefits by reason of that section.

239. A notice provided pursuant to s52A must comply with s54 of the 1987 Act and clause 15 of the Regulations, the notice dated 4 March 2005 did not comply. The notice sought to rely on s52A (1)(c) – namely that [the] Applicant has sought suitable employment but has failed to obtain suitable employment primarily because of the state of the labour market (rather than because of the effects of the worker’s injury).

240. Also the Applicant submitted (and I agree) the relevant time for the giving of the notice under s 52A is the time leading up to the giving of the notice (see PCR Plaster Settings v de Brito (no 3) NSWWCCPD 82 at [65]). The “relevant time” in relation to a notice given under s52A is the time approximate to the giving of the notice. The notice was given on about 4 March 2004. In view of the discussion and findings already made in this matter I am satisfied that at the relevant time the Applicant had a total incapacity for work.

241.  In view of the findings I have made in connection with the Applicant having a total incapacity for work at the relevant time it is not necessary to consider this issue contained in the Respondent’s s74 notice as a ground for denial of liability. I am satisfied the Applicant’s failure to obtain suitable employment is primarily a result of the effects of his injury not the state of the labour market. For the purposes of the current proceedings, and as above set out I am satisfied that the Applicant’s ongoing total incapacity for work has existed at all material times. Insofar as the time leading up to the giving of the notice is concerned I note the report of Dr Steel dated 5 August 2004 indicates the Applicant has had a laminectomy decompression, and spinal fusion (October 2003), and a steroid injection (June 2004) and the Applicant was “still experiencing severe low back pain in an L5 distribution down his left leg” . Dr Steel, noting no benefit from the steroid injection had been received, that the Applicant “may simply have to accept the current situation”. On review of the medical evidence I am not satisfied that the Applicant’s condition improved in any material way if at all. I note the Respondent had ceased providing rehabilitation services. I note the Applicant continued to attend on his treating doctor and she continued to provide WorkCover medical certificates certifying the Applicant as unfit to work.

242.  Notwithstanding the Applicant had a total (not partial) incapacity for work at the relevant time the Applicant submitted the notice was defective in any event for a multiple number of other reasons, and I am also satisfied that it was defective. Had it been found that the Applicant had a partial incapacity for work I am satisfied the Applicant would not have been precluded from recovering compensation benefits by reason of the Respondent’s failure to comply with the relevant notice requirements and clause 15 of the Regulations. Clause 15 (1) is set out below…

243.  The Applicant submitted and I am satisfied the notice did not comply with matters set out in clause 15 (b), (c) (d) (g) (j) and (k) of the Regulations.

244.  Further, the Respondent has not provided any evidence in connection with the state of the labour market as at the relevant time, and I am also not satisfied that the Respondent reasonably believed that the reason the Applicant had failed to obtain suitable work was primarily due to the state of the labour market and not due to the effects of his injury. I am of the view that at the relevant time the Respondent was aware that the Applicant had undergone a spinal fusion performed by Dr Steel in October 2003, had more recently undergone a transforaminal steroid injection, and his treating doctor with whom the Respondent was (or ought to have been) in regular contact had been certifying the Applicant unfit for all duties.

245. I am also satisfied the Respondent failed to provide the required period of notice. The Applicant as at 4 March 2005 was no longer a worker with the Respondent at its workplace. The Applicant’s statement [61] indicates the s52A letter was sent to him (not handed to him). Section 54 (3)(b) provides that 6 weeks notice must be given. To provide the clear 6 weeks notice, as required by s54, allowing one day for postal service, the last day of the period of notice for which payments ought to have been made, ought to have at least been 16 April 2005.

…

247.  The notice is provided by letter dated 4 March 2005, if served by post on 4 March 2005 I accept that the proper inference is, as submitted by the Applicant, that the notice was received by the Applicant not before 4 March 2005. If the notice was received on 5 March 2005 the six week period of notice expires on 16 April 2005, accordingly the notice is defective for failing to provide the requisite 6 weeks notice.”

1. I have already accepted that the Arbitrator’s finding that Mr Stephenson has been totally incapacitated for work since payments ceased (and indeed prior to that time) is correct, and consistent with the evidence. In those circumstances, I reject the Appellant’s submission that Mr Stephenson has been fit for suitable duties, and that his failure to obtain suitable employment was due to the state of the labour market.

1. That being said, it was thus neither necessary or appropriate for the Arbitrator to consider whether the provisions of section 52A were applicable to the circumstances of this case.

1. The section 54 Notice issued in March 2005 was defective for the reasons stated by the Arbitrator.

1. I do not accept that the Arbitrator erred in the manner alleged by the Appellant.

1. The Section 74 Issue

1. The Appellant submits that the Arbitrator “erred in his consideration and application of section 74 of the 1998 Act and Regulation 37”.

1. Section 74 sets out the obligations imposed on an insurer to give notice and reasons when liability is disputed.

1. Regulation 37 imposes an obligation on an insurer to provide medical reports to the worker as required by sections 73 and 126 of the 1998 Act.

1. Again, no particulars are provided either in the appeal or the ‘Further Submissions’ in support of this claimed “error” so that it is difficult for me to determine the substance of the Appellant’s challenge to the Arbitrator’s decision.

1. At the hearing, there was a dispute between the parties as to the admission of certain medical reports. The Arbitrator dealt with this commencing at [8] as follows:

“8.     The Applicant objected to certain medical reports attached to the Reply and referred to in the s74 Notice. The s74 Notice relied on by the Respondent dated 16 September 2008 stated: “The reports relevant to this dispute and which form the basis for the Decision to Decline Liability consist of the Reply and all attachments filed in previous Commission proceedings in Matter Nos. 5818 – 06 and 14477-05 (all of which have previously been served on you) together with report of Dr Potter 17 May 2006 (a copy of which is enclosed).”

9.     It is noted the Reply in these proceedings attached only the Reply in proceedings 5818-06 it did not attach the Reply in proceedings 14477-05 nor did it attach any of the prior Applications to Resolve a Dispute.”

1. The Arbitrator then went on to consider the operation of Clauses 43 and 43A of the Workers Compensation Regulation 2003 and Clause 48A of the 2006 Regulation. He made reference to the decision in Inghams Enterprises Pty Ltd v Auddino [2007] NSWWCCPD 228 before ruling on the admission of certain medical reports.

1. The Arbitrator made reference to the section 74 Notice at various points in his determination. It is noted that, at the teleconference on 20 January 2009, the Appellant maintained that it denied liability “on the multiple grounds referred to in the s74 notice…” (at [4] of the Reasons). Those grounds were set out at [30] as follows:

“30.   The Respondent declined liability for payment of the Applicant’s claims for compensation and gave notice of its decision in letter dated 16 September 2008 pursuant to Section 74 of the 1998 Act (“the s74 notice”). In summary the s74 notice advises that liability is declined on multiple basis including: 

1.     Your client has not sustained injury as alleged

2.     Employment is not a substantial contributing factor to any alleged injury

3.     Any medical condition from which your client suffers is not causally connected to any alleged incident, or injury

4.     Any alleged impairment, loss, or incapacity is not the result of any incident, or injury alleged

5.     Your client is not incapacitated as alleged, or at all and in the alternative, any alleged incapacity for work does not result from the alleged injury

6.     Your client has not complied with the requirements of the legislation, so far as the notification of injury and the claiming of compensation benefits is concerned, including (but not limited to), a failure to claim within the time required

7.     Any medical treatment required by your client is not as a consequence of any work injury and is not reasonably necessary as a result of injury

8. Your client has already been given notice in accordance with section 52A of the Workers Compensation Act, 1987 and is therefore precluded from recovering compensation benefits by reason of that section: and

9.     Your client is otherwise precluded from recovering compensation benefits by reason of the matters set out in this letter in the documents attached to it and previously served.”

1. The Arbitrator dealt with all the issues raised in the section 74 Notice throughout his determination. In the absence of any specified “error” by the Arbitrator in his “consideration and application” of these sections, I cannot see how it is alleged he has erred.

CONCLUSION

1. The Arbitrator’s determination was extraordinarily detailed and thorough. He carefully considered the extensive evidence relied upon by both parties, and his findings and conclusions were well considered and consistent with that evidence.

1. The Appellant has simply reiterated on appeal all the matters the subject of dispute before the Arbitrator.

1. Having conducted such a review, I am satisfied that the decision of the Arbitrator properly reflects the “true and correct view” of this case, and the appeal must fail.

DECISION

1. The decision of the Arbitrator dated 11 May 2009 is confirmed.

COSTS

1. The Appellant is to pay the costs of the appeal assessed at $2,000.00 plus GST.

Deborah Moore

Acting Deputy President  

7 October 2009

I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE