Seddon v NSW Police Force
[2009] NSWWCCPD 29
•18 March 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Seddon v NSW Police Force [2009] NSWWCCPD 29 | ||||
| APPELLANT: | David Neil Seddon | ||||
| RESPONDENT: | NSW Police Force | ||||
| INSURER: | Allianz Australia Insurance Limited | ||||
| FILE NUMBER: | A1-6245/08 | ||||
| DATE OF ARBITRATOR’S DECISION: | 17 November 2008 | ||||
| DATE OF APPEAL DECISION: | 18 March 2009 | ||||
| SUBJECT MATTER OF DECISION: | Section 55 Workers Compensation Act 1987; change of circumstances; section 74 Workplace Injury Management and Workers Compensation Act 1998 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Cantle Carmichael Lawyers | |||
| Respondent: | DLA Phillips Fox | ||||
| ORDERS MADE ON APPEAL: | Paragraph one of the Arbitrator’s determination of 17 November 2008 is confirmed. Paragraph two of the Arbitrator’s determination of 17 November 2008 is revoked and the matter is remitted to a different Arbitrator to determine the appellant worker’s application for review and claim for additional lump sum compensation. | ||||
| The respondent employer is to pay the appellant worker’s costs of the appeal, which are assessed at $2,200 plus GST. The respondent employer is to pay the appellant worker’s costs of the first arbitration and of the second arbitration. | |||||
INTRODUCTION
This appeal concerns an application by a worker for additional weekly compensation under section 55 of the Workers Compensation Act 1987 (‘the 1987 Act’) and a claim for additional lump sum compensation. Whether the worker is entitled to additional weekly compensation depends on whether he can establish a change of circumstances since a consent award in his favour made by the Compensation Court of NSW (‘the Compensation Court’) on 22 May 2003. The appeal also concerns whether, in respect of such a claim, an insurer must serve a notice disputing liability under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
BACKGROUND
Mr Seddon injured his right shoulder in the course of his employment with the NSW Police Service (now known as the NSW Police Force) on 19 March 1994 when he was attempting to arrest an offender. After a period off work he returned on light duties in July 1994, but resigned in September 1994 without returning to full duties.
His treating orthopaedic surgeon, Dr Hicks, diagnosed a rotator cuff injury and declared him to be unfit for normal duties as a police officer or for work requiring heavy lifting, sustained activity above shoulder level or any heavy strain on his right shoulder. An ultrasound examination in January 1995 showed atrophy of the supraspinatus tendon, though an arthrogram in January 1995 demonstrated there was no tear in the rotator cuff.
On 25 June 1996, Mr Seddon settled a claim for lump sum compensation in the Compensation Court for $14,543.20 in respect of 14% permanent loss of efficient use of the right arm at or above the elbow and for $10,000.00 for pain and suffering.
After pursuing various occupations, Mr Seddon retrained as an environmental consultant in August 1997 and commenced his own business in partnership with his wife under the name Solar Smart.
His shoulder symptoms continued and on 22 May 2003 he settled a claim for further lump sum compensation in the Compensation Court in the sum of $5,456.80 in respect of an additional 10% permanent loss of efficient use of his right arm at or above the elbow and an additional $7,500.00 in respect of pain and suffering, together with an award of weekly compensation at the rate of $150.00 per week from 1 July 1996 to 22 May 2003 and $195.00 per week from 23 May 2003 to date and continuing.
Over time, Mr Seddon’s right shoulder has deteriorated and he has developed symptoms in his neck.
Dr Bracken examined Mr Seddon at the request of his solicitor on 27 February 2008 and assessed him to have a 35% loss of use of his right arm at or above the elbow and a 10% permanent impairment of his neck as a result of the 1994 injury.
On 10 April 2008, Mr Seddon’s solicitor, Ms Cantle, made a claim on the NSW Police Service (the respondent) for additional lump sum compensation in the sum of $8,000.00 in respect of a further 10% permanent loss of efficient use of the right arm at or above the elbow, $4,000.00 in respect of a 10% permanent impairment of the neck and $10,000.00 for additional pain and suffering. She also sought an increase in Mr Seddon’s weekly compensation to the maximum statutory rate, as adjusted, from 23 May 2003 to date and continuing. The letter attached a schedule of Mr Seddon’s earnings from July 2003 until July 2007 and those of an alleged comparable employee, Bradley Goulding.
In the absence of a response from the Police Force, or its insurer, Ms Cantle contacted the Claims Assistance Service at the WorkCover Authority of NSW (‘WorkCover’). WorkCover responded by letter on 24 June 2008 that the letter of 10 April 2008 had been received by the Police Force’s insurer on 17 April 2008 and referred to its solicitor, DLA Phillips Fox (‘Phillips Fox’), by facsimile on 12 May 2008. Phillips Fox had not received the documents by 23 June 2008 and they were sent again, this time by email.
By August 2008, Ms Cantle had still not received a response from either the Police Force’s insurer or Phillips Fox. On 11 August 2008, she filed an Application to Resolve a Dispute (‘the Application’) in the Commission on behalf of Mr Seddon in which she identified the period of weekly compensation in dispute to be “23/05/2003 to date and continuing” and that Mr Seddon claimed weekly compensation at the statutory rate for a worker with two dependent children together with lump sum compensation as set out at [9] above.
By a Reply filed by Phillips Fox on 2 September 2008, the Police Force requested that “the matter be listed for teleconference to address the following liability issues”. The Reply then listed 13 paragraphs in which it purported to dispute, among other things, whether Mr Seddon suffered any permanent loss of use because of the injury, whether he had any ongoing incapacity, and whether the probable and actual earnings were as alleged.
The Commission listed the claim for teleconference on 16 September 2008 when Phillips Fox indicated that no offers of settlement would be made. The matter was listed for conciliation and arbitration on 3 October 2008. On that date, Mr Seddon and his legal adviser appeared, but there was no appearance by Phillips Fox or the Police Force. Phillips Fox were contacted by phone and advised that there had been a diary malfunction. The Arbitrator issued the following Direction, formally dated 7 October 2008:
“1.Matter adjourned. Part heard.
2.That the Applicant have leave to file and serve [a] supplementary statement and file written submissions within fourteen (14) days.
3.That the Respondent file and serve written submissions within a further seven (7) days.
4.That thereafter the matter be determined on the papers.”
Ms Cantle filed and served a supplementary statement from Mr Seddon and her written submissions by letter dated 14 October 2008. Ms Cantle wrote to the Commission on 3 November 2008 advising that she had served the supplementary statement and her submissions on Phillips Fox on 14 October 2008 and that she had received no submissions in reply or application to extend time in which to file submissions. She requested that the Arbitrator proceed to determine the matter.
The Arbitrator determined the matter and the Commission issued a Certificate of Determination on 17 November 2008 in the following terms:
“1.That the matter be remitted to the Registrar for referral to an Approved Medical Specialist to determine the percentage impairment of the Applicant’s right arm at or above the elbow and the percentage impairment of the Applicant’s neck flowing from injury on 19 March 1994.
2.That the Applicant’s claim for review of weekly benefits is dismissed.”
By an appeal filed on 16 December 2008, Mr Seddon seeks leave to appeal the Arbitrator’s determination of 17 November 2008.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
There is no issue that the monetary thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE ARBITRATOR’S REASONS
The Arbitrator made the following findings in his Statement of Reasons (‘Reasons’) delivered on 17 November 2008:
(a)there was sufficient evidence of an injury to Mr Seddon’s neck arising out of the injury on 19 March 1994, but the degree (of impairment) was a matter for an Approved Medical Specialist (‘AMS’) (Reasons, paragraph 17);
(b)though the Application did not specifically say so, Mr Seddon sought a review of weekly payments under section 55 of the 1987 Act (Reasons, paragraph 20);
(c)section 55(1) presents a threshold issue to be determined before a review takes place (Worthington v Alexander (2005) NSWWCCPD 12 (‘Worthington’)), namely, whether there has been a change in the circumstances that were before the original decision maker (Reasons, paragraph 23);
(d)it was unclear what change of circumstances Mr Seddon sought to rely upon (Reasons, paragraph 26). If it was a change in his medical condition, Mr Seddon had not made out a case for a change of circumstances until a determination by an AMS. It may be that even if there were a further percentage loss, there would be no change of circumstances because Mr Seddon’s statements did not make this plain (Reasons, paragraph 27);
(e)if Mr Seddon was relying upon a change in earning capacity or an increase in comparable wages, there is no evidence of that in the Application (Reasons, paragraph 28);
(f)Mr Seddon had not shown a change in circumstances and had not met the threshold in section 55(1) of the 1987 Act and the Application for review would therefore be dismissed (Reasons, paragraph 29), and
(g)the claim for additional lump sum compensation would be remitted to the Registrar for referral to an AMS and the claim for additional compensation for pain and suffering would be determined after receipt of the Medical Assessment Certificate (‘MAC’).
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in dismissing Mr Seddon’s Application for review of weekly benefits because he:
(a)failed to have regard to the evidence of an increase in the earnings of comparable employees, the decline in Mr Seddon’s earnings, the increased loss of efficient use of Mr Seddon’s right arm at or above the elbow and the onset of neck impairment caused by the loss of use of the right arm at or above the elbow;
(b)failed to have regard to the fact that the Police Force had not served a notice under section 74 of the 1998 Act and that no application had been made for leave under section 289A of the 1998 Act;
(c)failed to have due regard to the fact that Mr Seddon’s evidence, that he can only work for two or three hours per day and that his income had declined, was uncontested;
(d)failed to have regard to Mr Seddon’s schedule of earnings included in the Application, which were deemed to be admitted under Part 15 Rule 15.5 of the Workers Compensation Commission Rules 2006 (‘the Rules’) because of the Police Force’s failure to provide its own schedule of earnings;
(e)found that Mr Seddon had failed to establish a change of circumstances within the meaning of section 55 of the 1987 Act;
(f)failed to review the weekly payments of compensation set out in the award of the Compensation Court on 22 May 2003;
(g)failed to have regard to Dr Pillemer’s evidence in his report of 15 October 2007 that Mr Seddon has gross muscle wasting and evidence of nerve involvement, and
(h)failed to defer the determination of the review application until after the receipt of the assessment from the AMS.
Essentially, the issues boil down to whether the evidence established a change of circumstances and whether the Police Force’s insurer was required to file a section 74 notice.
SUBMISSIONS
Mr Seddon’s submissions follow the outline of his grounds of appeal and repeat the written submissions he made to the Arbitrator on 14 October 2008.
The Police Force filed no submissions before the Arbitrator and it has offered no explanation for not doing so. On appeal it submits:
(a)the Arbitrator had regard to Mr Seddon’s submissions as to a change of circumstances and he did not err in finding that there had been no change;
(b)an application for variation of a Court award does not require a respondent to serve a section 74 notice;
(c)Mr Seddon’s claim was not uncontested, as claimed by his solicitor;
(d)Mr Seddon could not succeed in his Application because it was “inconceivable that the Appellant’s circumstances had changed from the date of the original Award” (the Police Force’s submissions, paragraph 6.1);
(e)the Arbitrator’s decision was consistent with Worthington;
(f)Dr Bracken has not addressed whether Mr Seddon’s employment prospects have decreased by virtue of his injuries. Mr Seddon remains partially incapacitated, “as was contemplated at the time of the award on 22 May 2003” (the Police Force’s submissions, paragraph 8);
(g)there is a distinction between incapacity and permanent impairment and though Mr Seddon may be entitled to further lump sum compensation, that “does not correlate to a finding that the Appellant is now unable to sell his labour on the open market” (the Police Force’s submissions, paragraph 9), and
(h)the appeal ought to fail.
DISCUSSION AND FINDINGS
Change in Circumstances
Section 55 provides:
“55(1) Any weekly payment of compensation may, because of a change of circumstances, be reviewed by the Commission at the request of the employer or the worker or of the Authority.
(2) On any such review –
(a) the weekly payment may be ended, reduced or increased (but subject to the provisions of this Division relating to the amount of the weekly payment); and
(b) the amount of the weekly payment (if any) shall, in default of agreement, be determined by the Commission.
(2A) If on any such review a weekly payment of compensation is ended or reduced with effect from a day that is earlier than the date of the Commission’s order on the review, the Commission may order the worker to refund the amount of any payments made to the worker to which the worker is not entitled as a result of the order on the review.
(3) On any such review, the amount of any weekly payment payable in respect of an injury may be increased to such amount as would have been awarded if the worker had, at the time of injury, been earning the wage or salary which the worker would probably have been earning, at the date of review, if the worker had remained uninjured and continued to be employed in the same or some comparable employment.
(4) A review under the section may be given such priority as is reasonably practicable, and any necessary directions may be given to expedite the hearing of the matter.”
The section requires a review of the circumstances between the date of the original award and the date on which the review is sought, and a determination on whether there has been any change in that period. It is not appropriate to restrict the review to an examination of a change in the workers medical condition. A change in probable or actual earnings between the date of the original award and the date of the review application will be sufficient to establish a change of circumstances.
In the present case, the Application and the evidence have been presented in an unusual and unsatisfactory way. The Application did not identify that Mr Seddon sought a review under section 55 and did not indicate the date on which he sought to establish a change of circumstances. Instead, it merely claimed weekly compensation at the statutory maximum from 23 May 2003, that is, the day after the consent award. There is no evidence of a change of circumstances on that day.
However, that is not the end of the matter. Both sides filed competing wage schedules in the Compensation Court proceedings in 2003. Mr Seddon alleged that average comparable earnings from 1 July 2002 to date were $1,136.15 per week while the Police Force alleged comparable earnings in the same period of $1,203.30 per week. Both sides agreed that Mr Seddon’s actual earnings in the same period were $475.19 per week. In his Schedule of Wages Claimed at Part 5 of the Application, the following figures are recorded:
Period From/To Actual earnings Comparable Earnings 23.5.03 – 30.6.04 $650.00 $1,042.87 1.7.04 – 30.6.05 $490.48 $1,172.80 1.7.05 – 30.6.06 $559.83 $1,216.77 1.7.06 – to date and continuing $463.10 $1,225.08
Based solely on these figures (since the Police Force filed no wage figures in its Reply) Mr Seddon’s earnings are currently below the May 2003 level, but did not go below that level until sometime after July 2006. Comparable earnings exceeded the May 2003 level from 1 July 2002, if one accepts Mr Seddon’s 2003 wage schedule, and from 1 July 2005, if one accepts the Police Force’s 2003 wage schedule. On any view of the uncontested wage figures in the Application, there has been a change of circumstances.
There is other evidence of a further relevant change of circumstances. In his statement of 10 October 2008, Mr Seddon said he was not able to estimate the hours he worked in May 2003, because there was no regular pattern. Sometimes he found it difficult to get much work done at all and at other times he might need only one or two breaks of half an hour during the day. In his report of 31 January 2003, Dr Hicks recorded that Mr Seddon had been working in his environmental consultancy for “about 20 hours per week because of his shoulder injury and disability”. Evidence in a medical history is evidence of the fact (see Paper Coaters Pty Limited v Jessop [2009] NSWCA 1). At paragraph 11 of his unsigned statement of 25 June 2008, Mr Seddon said that he only averaged two to three hours’ work per day. This is clear evidence of a deterioration in Mr Seddon’s earning capacity.
It therefore follows that since 22 May 2003, there has been a relevant change of circumstances that justify a review of Mr Seddon’s consent award of weekly compensation. The difficulty is that the Application was so poorly drafted that it appears to have sought the review from 23 May 2003. That was not open. Nevertheless, given the evidence of a clear change of circumstances and given the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (section 354(3) of the 1998 Act), it was not appropriate that the Application for review be dismissed without Mr Seddon being given the opportunity of amending his claim to clarify the date from which he alleged he was entitled to a review because of a change of circumstances.
Section 74 Notice
The Police Force’s submission on this issue is simply that an application to vary a Court (and, presumably, a Commission) award does not require a respondent to serve a section 74 notice. This assertion is unsupported by any argument or authority.
The section is designed to meet a situation where an insurer disputes “a claim or any aspect of a claim” (section 74(1)).
The term “claim” is defined in section 70 of the 1998 Act to mean:
“a claim for compensation under this Act or claim for damages to which a policy of insurance applies, whether the claim was made before or after the commencement of this Division.” (emphasis added)
Section 289A restricts the circumstances in which certain disputes can be referred to the Commission. The section appears in Part 4 of Chapter 7 of the 1998 Act. Chapter 7 deals with “NEW CLAIMS PROCEDURE”, the “GIVING OF NOTICE OF INJURY AND MAKING OF A CLAIM” (Part 2), “DEALING WITH CLAIMS” (Part 3), “CLAIMS FOR LUMP SUM COMPENSATION AND WORK INJURY DAMAGES” (Division 4), and “COMPENSATION DISPUTE DETERMINATION” (Part 4).
The first section in Part 4, section 287, is headed “Disputes to which Part applies”. It states:
“287(1) This Part applies to a dispute in connection with a claim for compensation between:
(a)the person who makes the claim and a person on whom the claim is made, or
(b)the employer on whom the claim is made and the insurer on whom the claim is made.
(2) …” (emphasis added)
Section 288 provides that any party to a dispute “about a claim” may refer the dispute to the Registrar for determination by the Commission. Section 289 restricts the circumstances in which a “dispute about a claim for weekly payments” (emphasis added) can be referred to the Commission for determination. Section 289A sets out further restrictions as to when a “dispute” can be referred to the Commission. To be consistent with section 289, the reference to “dispute” in section 289A can only be a reference to a “dispute about a claim for weekly payments” (emphasis added).
In the present matter, Mr Seddon made a claim for compensation (through his solicitor) by letter dated 10 April 2008. That claim had two components to it: first, the claim for additional lump sum compensation, which is not dealt with under section 55 of the 1987 Act: see George Weston Foods Ltd (t/as TipTop Bakeries) v Goldsmith (1998) 17 NSWCCR 253 at [11]), though the entitlement to additional lump sum compensation may in some cases establish a change in circumstances, and second, the claim for an increase in weekly compensation from 23 May 2003 to date to increase that rate from $195.00 to the maximum statutory rate for a worker with two dependent children. Both claims constituted “claims for compensation” under section 70 of the 1998 Act. In these circumstances, the insurer had the choice of admitting or disputing the claims. If it chose to dispute liability it had to comply with section 74 and serve a notice of dispute setting out the reason for the dispute and the issues relevant to its decision.
The operation of section 74 must be considered in the context of the objectives set out in section 3 of the 1998 Act. Those objectives include, among other things, the objective of providing “injured workers with and their dependants with income support during incapacity” (section 3(c)). Section 74 is designed to achieve that goal by ensuring that claims are considered by insurers promptly and properly and then, if necessary, reviewed by senior claims officers to ensure that only those matters that are genuinely in dispute are referred to the Commission.
Different considerations apply in an application for a section 55 review by an employer. In that situation the application is not “a claim for compensation” but is an application that the previous award be reviewed and either terminated or varied. As no compensation is being sought, it is impossible for section 74 to have any operation (see Pages Hire Centre Kogarah v Chapman [2009] NSWWCCPD 9). The section applies where an insurer disputes liability in respect of a claim for compensation. Only a worker can make a claim for compensation and section 74 can only apply when such a claim is made.
It follows that a claim by a worker for additional weekly compensation under section 55 of the 1987 Act, and a claim for additional lump sum compensation, are both claims for compensation and that the provisions of section 74 of the 1998 Act apply.
The next question is, what follows from the fact that the Police Force has not served a section 74 notice? Phillips Fox’s submissions have not addressed this issue and, as it is of some importance to the final outcome, it is a matter that requires detailed submissions. Therefore, this issue must be remitted for re-determination.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view that the Arbitrator erred in dismissing the Application for a review of weekly compensation. I am comfortably satisfied that there have been at least two relevant changes of circumstances between 22 May 2003 and 10 April 2008. First, the relevant comparable and probable earnings have changed and, second, as a result of a deterioration in Mr Seddon’s condition, his capacity to work has decreased. Whether those changes justify a variation in the consent award and, if so, the date from which that variation should commence, must be determined at a new arbitration. Mr Seddon will have to seek leave to amend the Application to properly identify the nature of the relief sought and the date from which the change is said to have taken place. That date cannot be 23 May 2003.
If it wishes to dispute the claim, the insurer will have to seek leave to do so and will have to give a full explanation (with supporting evidence from the person or persons responsible) of why it failed to do so when the claim was first made, together with full particulars of its reason or reasons for disputing liability and the issues relevant to its decision to do so (sections 74 and 289A(4) of the 1998 Act). The resolution of this issue is a matter for the next Arbitrator, however, the fact that Mr Seddon will have to seek leave to amend his claim may well be a significant factor to be weighed in determining if the insurer should now be allowed to dispute the claim so late in the proceedings.
Given that Dr Pillemer supports a connection between Mr Seddon’s neck and shoulder symptoms and the 1994 injury (Dr Pillemer’s report 15 October 2007, page three) and given that the question of Mr Seddon’s claim for further lump sum compensation has been referred to an AMS without objection and a binding MAC issued by Dr Ostinga on 17 February 2009, that part of the claim is not and cannot be put in dispute. Mr Seddon is entitled to an award in respect of 10% permanent impairment of his neck and for an additional 1% permanent loss of efficient use of his right arm at or above the elbow, at the appropriate rates of compensation for an injury in March 1994 where the claim was made after 12 January 2007. The question of his entitlement to additional compensation for pain and suffering must be determined at the second arbitration.
The position concerning Mr Seddon’s schedule of wages will also have to be considered. Phillips Fox has made no submissions on this issue. Mr Seddon’s submission that his schedule is deemed to be admitted in the absence of a schedule from the respondent disputing its accuracy is correct (see Rule 15.5). However, the Commission has power to dispense with compliance with any requirements of the Rules, either before or after the occasion for the compliance arises (Rule 1.6). Whether the Police Force wishes to make an application under Rule 1.6 is a matter for consideration at the next arbitration. If the Arbitrator dispenses with the requirements under Rule 15.5(b), evidence of earnings will need to be tendered.
An issue also arises as to whether Mr Seddon’s son, David, is entitled to be claimed as a dependant, as the evidence is that he is over 16 and no longer a full time student.
Finally, Mr Seddon’s statement of 23 June 2008 is unsigned and that omission must be rectified. Though he supplemented his evidence with a further statement dated 10 October 2008, that statement still falls short of what is required to enable a proper review of the consent award. Far more detailed evidence is required as to the nature of Mr Seddon’s present duties and how his injury has affected his capacity to perform those duties. It is not sufficient to say, “the income from my business has gone down”.
DECISION
Paragraph two of the Arbitrator’s determination of 17 November 2008 is revoked and the matter is remitted to a different Arbitrator to determine the appellant worker’s application for review and claim for additional lump sum compensation.
Paragraph one of the Arbitrator’s determination of 17 November 2008 is confirmed.
COSTS
In respect of costs, Mr Seddon has succeeded with his claim for additional lump sum compensation but no costs order has been made in respect of it. He has also succeeded with his appeal against the dismissal of his application for a review of his weekly compensation. The need for the second arbitration has come about through no fault of his and he is entitled to the costs of that arbitration, in addition to costs of the first arbitration.
The respondent employer is to pay the appellant worker’s costs of the appeal, which are assessed at $2,200 plus GST.
The respondent employer is to pay the appellant worker’s costs of the first arbitration and of the second arbitration.
Bill Roche
Deputy President
18 March 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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