Shoalhaven City Council v Schutz - [2012] NSWWCCPD 14

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Shoalhaven City Council v Schutz [2012] NSWWCCPD 14
APPELLANT:		Shoalhaven City Council
RESPONDENT:		Dennis John Schutz
INSURER:		Shoalhaven City Council (self-insured)
FILE NUMBER:		A1-5138/11
ARBITRATOR:	Ms C Rimmer
DATE OF ARBITRATOR’S DECISION:		15 November 2011
DATE OF APPEAL DECISION:		19 March 2012
SUBJECT MATTER OF DECISION:		Amendments to pleadings; time within which to claim compensation (s 261 of the Workplace Injury Management and Workers Compensation Act 1998); procedural fairness; scope of appeal (s 352 of the Workplace Injury Management and Workers Compensation Act 1998); seeking suitable employment (s 38A(2) Workers Compensation Act 1987)
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Bartier Perry
Respondent:	White Barnes
ORDERS MADE ON APPEAL:		1. The Arbitrator’s determination made in the Certificate of Determination dated 15 November 2011 is confirmed. 2. The appellant is to pay the respondent worker’s costs.

INTRODUCTION

The respondent worker, Dennis Schutz, worked for the appellant employer, Shoalhaven City Council, as a plant operator (maintenance) from 17 May 1975 until his employment was terminated due to incapacity on 3 April 2009.
On 29 April 1998, while operating a grader, the machine came into contact with a concrete slab which had been covered by a layer of silt. The machine came to a sudden halt, as a result of which Mr Schutz claims to have suffered injuries to his neck and back, and consequential symptoms in his right leg and right arm.
Mr Schutz also claims that he suffered injuries to his back, neck, right arm and right leg by way of aggravation of a disease condition due to the nature and conditions of his employment, including the jolting and jarring he sustained as a consequence of operating graders and other plant and equipment over the 32 years he was employed by the Council.
The appellant accepted liability for the back injury as a consequence of the incident on 29 April 1998 and commenced weekly payments of compensation. Mr Schutz returned to work after approximately two months and continued to operate heavy equipment.
Mr Schutz’s condition deteriorated and, on 25 July 2007, he submitted to spinal fusion of his back. He has not worked since. The appellant has continued to pay Mr Schutz weekly compensation in respect of the admitted back injury.
The dispute before the Commission concerned the worker’s claims for lump sum compensation in respect of the alleged injuries to the neck and the consequential injuries to the right leg and right arm, and in respect of a claim for additional compensation for a closed period while job-seeking.
The Arbitrator found in favour of the worker on all issues and the appellant appeals that decision.

BACKGROUND TO THE APPLICATION

On or about 20 May 1998, Mr Schutz submitted an “Employee’s Compensation Claim” form in respect of the alleged injuries on 29 April 1998. He said that, when the grader blade came into contact the concrete slab, he was thrown back and forth within the machine. The worker stated he suffered an injury to the “back lower”. The form itself is undated, but contains a handwritten acknowledgment, “Claim approved/O’Neill 20 May 1998”.
On 29 September 2000, Mr Schutz submitted a “Recurrence of Injury Claim Form”. In response to the question, “What happened on this occasion?”, the worker stated, “Lower back pain has never gone away been getting treatment since it happened 29/4/1998, (still driving heavy plant) pain getting worse”. In response to a question concerning his duties since returning after the original injury, the worker stated, “Light duties then normal duties, not lifting heavy items or doing anything that may cause more pain (driving machine to and from locations)”. In response to a question concerning where the recurrence occurred, the worker said, “Never been right”.
On or about 11 July 2005, Mr Schutz submitted an “Employee’s Compensation Claim”. As only one page of the form is in evidence, it is impossible to determine what precisely was being claimed. However, responding to the question, “What happened?”, the worker stated, “Consistent grader operation – aggravation of previous neck/shoulder injury”. In response to a question which is partially obscured on the copy, but which relates to injury, the following is noted: “(L) shoulder/neck pre-existing injury”. The form is date-stamped by the insurer as received on 8 July 2005 and noted, “Claim approved O’Neill 11/7/05”. The notice was accompanied by a “Recurrence of Injury Claim Form”, in which the worker referred to “constant vibration of machinery – operation of grader”.
On or about 11 July 2005, the appellant prepared an “Injury Management Return to Work Plan”. Among other things, it noted that the plan of action was to provide the worker with suitable duties until 18 July 2005. The suitable duties were stated to be “CAMS inspections, gravel road inspect. General tasks. No lifting up to 10 kg”.
On 21 November 2006, the worker submitted a compensation claim form in respect of an injury alleged to have occurred on 15 November 2006. Again, the copy is incomplete; however, the worker described an injury as “gradual build-up of pain”.
On 21 October 2008, Mr Schutz’s solicitors wrote to the appellant concerning the worker’s claim for benefits under s 38 of the Workers Compensation Act 1987 (the 1987 Act) from 29 September 2008. The letter stated that Mr Schutz was ready and willing to undertake duties within his restrictions. It confirmed the solicitor’s understanding that no suitable duties were available for the worker at that point in time.
On 24 March 2009, Mr Schutz’s solicitors made a claim for lump sum compensation on his behalf. The injuries relied upon are not identified. Reference is made to an attached “Permanent Impairment Claim Form’ dated 19 March 2009. Unfortunately, that document is not in evidence. However, it may be inferred from what follows at [17] that the claim was made in respect of the injuries to the neck, back, right arm and right leg either as a result of the incident on 29 April 1998 or as a result of the nature and conditions of the worker’s employment. The claim was particularised as follows:
“(a) $68,750.00 in respect of 34% Whole Person Impairment or in the alternative;
(b) (i) $24,000.00 in respect of 40% permanent impairment of the back
(ii)$15,000.00 in respect of 20% permanent loss of use of the right leg at or above the knee.
(iii)$6,000.00 in respect of 15% permanent impairment of the neck
(iv)$4,000.00 in respect of 5% permanent loss of use of the right arm at or above the elbow.
(c)$35,000.00 pursuant to Section 67 in relation to pain and suffering representing 70% of a worse [sic] case of injury.”
A claim was also made for additional weekly compensation benefits pursuant to s 38 of the 1987 Act from 29 September 2008 to date and continuing.
On 30 April 2009, the appellant’s solicitors notified Mr Schutz (through his solicitors) that the claim for payments under s 38 was disputed on the basis that the medical certificates supporting the claim did not contain information reasonably sufficient in the circumstances to assist in determining what suitable employment Mr Schutz was fit for. A request was made for additional medical certification, together with further particulars of the reasonable steps being taken by the worker to obtain suitable employment, and evidence of his readiness and willingness to accept an offer of suitable employment.
On 5 June 2009, the appellant issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The notice stated that the appellant accepted liability to continue to pay weekly payments in respect of the back injury in respect of the 29 April 1998 incident, but added:
“Council have determined there is no liability in respect of the remainder of your claim and deny liability in respect of any injury to your neck, right arm and right leg as a result of the injury on 29 April 1998 or as a result of the nature and conditions of employment or as a result of any alleged disease condition. Council therefore determine that you have not [sic] entitlement to the payment of compensation in respect of those alleged injuries.”
The appellant also denied liability for any injury to the back arising from the nature and conditions of Mr Schutz’s employment.
In its s 74 notice, the Council provided reasons for its decision. These included, among other things, the following statement:
“On the basis of the known and provided history and his medical assessment and experience, Dr Mills was only satisfied that the incident on 29 April 1998 has caused injury to your back and not to your neck, right arm and right leg. He did not consider your employment to have been a substantial contributing factor to any injury or disability of your neck, right arm or right leg. The doctor concluded that the nature and conditions of your employment had not been a substantial contributing factor to your back disability or to any injury to your neck, right arm and right leg. He found no assessable disability arising from injuries prior to or subsequent to 1 January 2002.”
The employer placed in issue the worker’s ability to satisfy the provisions of s 9A of the 1987 Act. It also relied on the provisions of s 261 of the 1998 Act on the basis that, if injury was found, the worker would be prevented from recovering compensation as no claim for injury to the neck, right arm and right leg had been made within the time limits prescribed by s 261.
On 16 December 2010, the appellant’s solicitors wrote to Mr Schutz’s solicitors, stating:
“Council acknowledge receipt of your claim for workers compensation benefits on 25 March 2009. We acknowledge your claim that you are suffering from disabilities and injuries to your back, neck, right arm and right leg as a result of an injury on 29 April 1998 and as a result of the general nature and conditions of your employment.”
Confirming the appellant’s decision to decline the claim, the Council’s solicitors added:
“All the available material has been reviewed and considered and Council have determined to continue the payment of relevant compensation arising from the injury to your back on 29 April 1998.
Council have determined there is no liability in respect of the remainder of your claim and deny liability in respect of any injury to your neck, right arm and right leg as a result of the injury on 29 April 1998 or as a result of the nature and conditions of employment or as a result of any alleged disease condition. Council therefore determine that you have not [sic] entitlement to the payment of compensation in respect of those alleged injuries.”
The letter went on to confirm that liability was declined in respect of any injury to the back arising from a disease condition or from the nature and conditions of employment. The correspondence from the appellant’s solicitors went on to restate the opinion of Dr Mills concerning the alleged injuries to the neck, right arm and right leg.
On 10 May 2011, Mr Schutz’s solicitors wrote to the appellant’s solicitors enclosing an application for review with supporting documents. The supporting documents included all relevant medical evidence, including radiological evidence, a statement from the worker, and relevant correspondence between the parties.
On 9 June 2011, the appellant’s solicitors wrote again to Mr Schutz’s solicitors in response to the application for review by insurer. Again, there was an express acknowledgment of the worker’s claim for lump sum compensation in respect of injury to the back, neck, right arm and right leg as a result of the injury on 29 April 1998 and as a result of the general nature and conditions of employment. The correspondence acknowledged the claim for 27 per cent whole person impairment, relying on ss 15 and 16 of the 1987 Act (the disease provisions). The appellant’s solicitors stated that, after review of the relevant material, the decision to decline liability in respect of injuries to the neck, right arm and right leg as a result of injury on 29 April 1998, and as a result of the nature and conditions of employment, or as a result of an alleged disease condition, was confirmed.
On 20 June 2011, Mr Schutz lodged an Application to Resolve a Dispute with the Commission. He claimed two injuries. He claimed the first injury occurred on 29 April 1998. He alleged injury to the lower back caused when the grader he was driving came to a sudden stop after coming into contact with a concrete slab. The second injury he claimed was due to the nature and conditions of his employment, including jolting and jarring in consequence of grader-driving and other plant-operating duties. He alleged injury to the back, neck, right arm and right leg, and an aggravation, exacerbation, acceleration of a disease. He claimed a deemed date of injury of 13 October 2010. Mr Schutz claimed compensation under s 38 from 29 September 2008 to 29 September 2009. He claimed lump sum compensation in respect of 10 per cent permanent impairment of the back as a result of injury on 29 April 1998. He claimed 29 per cent whole person impairment in respect of injuries to the lumbar spine, cervical spine, right upper extremity and right lower extremity in respect of the 13 October 2010 deemed date of injury.
On 6 July 2011, the appellant filed a Reply to the application to resolve a dispute and, on 6 July 2011, it filed an amended Reply. The appellant confirmed that the matters in dispute were in accordance with the dispute notices previously referred to.
The matter was referred to a Commission Arbitrator, Ms C Rimmer, who conducted a conciliation and arbitration on 19 September and 20 October 2011. The Application to Resolve a Dispute was amended on the second day of the hearing to allege an injury to the neck on 29 April 1998. During the course of the hearing, Mr Schutz gave evidence and the Arbitrator heard submissions from both parties. In a reserved decision delivered on 15 November 2011, the Arbitrator found that the worker suffered from injuries to his neck and back as a result of the nature and conditions of his employment as a plant operator, to which his employment was a substantial contributing factor. She found that the alleged injuries to the right arm and right leg were consequential conditions. The Arbitrator also found that the worker suffered injury to his neck and back in the incident on 29 April 1998, with consequential symptoms to the right leg and right arm.
The Arbitrator concluded that the injury process to the worker’s back and neck, as disclosed by the evidence, was a disease condition which had been aggravated by the worker’s employment as a plant operator. The Arbitrator held that the deemed date of injury in respect of the lumbar spine, cervical spine and right upper extremity was 24 March 2009, being the date when the applicant made a claim for lump sum compensation. The Arbitrator rejected the appellant’s argument that the worker was prevented from recovering compensation by reason of the notice provisions. The Arbitrator concluded that the worker had satisfied the requirements of s 38 and ordered the payment of compensation under s 38 from 30 April 2009, being the date the worker’s solicitors provided the appellant with a WorkCover certificate which conformed to the requirements of s 38, to 29 September 2009. An order was made for the payment of the worker’s medical expenses.
The Commission issued a Certificate of Determination on 15 November 2011 in the following terms:
“1.     That the matter is remitted to the Registrar to refer to an Approved Medical Specialist for the assessment of:
(a)whole person impairment of the cervical spine, the lumbar spine and the right upper extremity attributable to the injury deemed to have occurred on
24 March 2009;
(b)permanent impairment of the back attributable to the injury on 29 April 1998;
(c)permanent impairment of the neck attributable to the injury on 29 April 1998;
(d)loss of efficient use of the right leg at or above the knee attributable to the injury on 29 April 1998, and
(e)loss of efficient use of the right arm at or above the elbow attributable to the injury on 29 April 1998.
2.     All documents attached to the amended Reply and the Application to Resolve a Dispute and the Application to Admit Late Documents dated 14 September 2011 are admitted and are to be sent to the Approved Medical Specialist.
3. That the respondent pay the applicant weekly compensation pursuant to s 38 of the Workers Compensation Act 1987 at the rate of $707.84 per week from 30 April 2009 to 29 September 2009 (with credit to be given for any payments made).
4.     That the respondent pay the applicant’s s 60 expenses on production of accounts, receipts and/or Medicare notice of charge.
5.     That the respondent pay the applicant’s costs as agreed or assessed.
6.     This matter is certified as complex.
7.     I certify an uplift of the applicant’s costs at 30 per cent.
8.     I certify an uplift of the respondent’s costs at 30 per cent.”

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of s 352(3) and s 352(4) of the 1998 Act have been met.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have submitted that the matter can proceed on the papers without the need for a formal hearing.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the parties’ submissions, 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.

ISSUES IN DISPUTE

The appellant submits that the Arbitrator erred by:
(a)     denying the appellant procedural fairness in permitting an amendment to the Application to Resolve a Dispute on the second day of the hearing, permitting Mr Schutz to amend Part 4 of the Application to plead that he suffered an injury to his neck in addition to the pleaded injury to his lower back in the incident on 29 April 1998;
(b)     permitting the worker to rely on an injury (the neck injury) that was statute barred under s 261 of the 1998 Act;
(c)     finding that the worker suffered an aggravation of a disease condition as a result of the nature and conditions of his employment.
(d)     finding injury and permanent impairment to the neck, right leg and right arm attributable to the injury on 29 April 1998;
(e)     finding a deemed date of injury occurring on 24 March 2009;
(f)      finding whole person impairment of the neck, back and right upper extremity attributable to a deemed date of injury of 24 March 2009.
(g) finding that the worker satisfied the requirements of s 38A(2) of the 1987 Act.

THE EVIDENCE

The worker’s evidence

Mr Schutz provided two signed statements of evidence, the first dated 28 March 2010 and the second dated 4 February 2011.
In his first statement, Mr Schutz said that he commenced work with Shoalhaven Council on 17 May 1975. Prior to working for the Council, he had been engaged in either construction or maintenance work.
Mr Schutz’s work with the Council involved maintenance work, mainly operating plant and equipment, including dozers, excavators, backhoes, traxcavators and graders, associated with the maintenance of Council roadways and other structures. He also engaged in other miscellaneous labouring duties, which he did at short notice, including kerbing and guttering, drainage, and concreting work.

In addition to his standard hours, Mr Schutz stated that he was on call and earned substantial additional income from what he called “call payments”.
On 29 April 1998, he was grading a section of the Braidwood Road. He drove the grader across a driveway to an electrical substation. The concrete slab beneath the driveway was covered by silt, obscuring his view of it. The blades of the grader struck the concrete slab and the machine shuddered to a halt. He was heavily jolted and jarred. Mr Schutz stated, “I remember being aware of pain in my neck, both shoulders and lower back”. After the incident, he was off work for about two months and was paid compensation. After his return to work, the condition of his neck, shoulders and lower back deteriorated. From time to time, he was placed on light duties.
Mr Schutz stated that, in the intervening years, he undertook more driving work on a daily basis and for lengthy hours each day. He said that he was heavily jolted and jarred in the course of driving the machinery. Much of the work was on bush trails and over remote country roads. Accordingly, the surfaces that he was grading were very rough, which contributed to the jolting and jarring.
In or around 2004/2005, Mr Schutz began to experience pain and sensory changes, including pins and needles and numbness, affecting his left leg. He was referred by his GP, Dr Ghani, to a rehabilitation doctor, Dr Brady, at Nowra Hospital. Subsequently, he was referred to Dr J Brennan, a neurosurgeon. Mr Schutz submitted to surgery in the form of a spinal fusion and decompression in June 2007. He has been off work ever since and has been in receipt of weekly payments of compensation in respect of the back injury.
The surgery relieved the symptoms in the left leg. Mr Schutz stated that he suffered from pins and needles in his left arm, which commenced on or about 20 August 2007. The symptoms in the left arm lasted for approximately two weeks. On a date in early September, Mr Schutz noticed pins and needles going into his right foot and toes, and also his right arm and fingers (middle, ring and small fingers). Mr Schutz added that, on or about 25 August 2007, he came down with a bout of influenza and was in bed for a number of weeks after that. He states that the symptoms affecting his right arm and fingers have continued ever since.
On 29 September 2008, Mr Schutz attended a meeting at the Council, at which time he was advised that it was likely that his employment would be terminated on medical grounds. From 29 September 2008, Mr Schutz has been certified permanently fit for modified duties only. He states that his employer has been unwilling to provide alternative or suitable duties. Mr Schutz described a range of impairments and symptoms, which included pain and aching in the back, stiffness in the back, and difficulties engaging in activities that required bending or lifting of any weight. He said that prolonged standing and sitting aggravates the pain. He continues to suffer sensory changes affecting the left leg and walks with a limp. He has difficulty driving for any length of time.
On 15 January 2009, Mr Schutz attended a meeting with Council officers, including the human resources manager, Stephen Crear, and Paul Collins, the works and services manager. Mr Schutz was assisted by his union representative at the meeting. His future at the Council was discussed, but he was advised that there were no alternative suitable duties available for him within the Council and that, accordingly, his employment would be terminated. He was medically retired on 3 April 2009.
Mr Schutz stated that he has participated in a rehabilitation program organised by the appellant with an organisation known as Workfit. He stated that he had made regular inquiries in relation to the availability of work elsewhere, including applications to the Huskisson Bottle Shop, the Huskisson Butchery, Greenwell Point Bowling Club, Huskisson Surf and Footwear, Huskisson Timber Yard, Huskisson Paper Shop, Gibson & Son Floor Sanders, and Greenwell Point Oyster Service. He was unsuccessful on each occasion.
In a second statement dated 4 February 2011, Mr Schutz stated that, in about early October 2010, he experienced a deterioration in his symptoms. He began to notice pain running over his left hip and down his left leg past the knee. The pain was so strong that he felt unable to walk more than a few metres, and required the use of a walking stick. He said that, compared to the description of his physical condition referred to in his statement of 28 March 2010, his condition was now worse. He described the restrictions he encountered engaging in domestic activities and confirmed that bending or twisting movements were particularly painful.

Medical evidence

The medical evidence has been summarised at some length by the Arbitrator from [27]–[58] of the Statement of Reasons (the Reasons) for the decision. The Arbitrator’s summary of the medical evidence is comprehensive and I adopt it for the purposes of this decision.

PROCEDURAL FAIRNESS

The appellant submits that the Arbitrator’s ruling during the arbitration hearing, permitting the worker to amend the Application to Resolve a Dispute (ARD) to add an allegation of injury to the neck arising out of the incident on 29 April 1998, was a denial of procedural fairness.
The appellant alleges that the Arbitrator “invited” the applicant to:
“make additional claims of injury to different body parts referable to the incident on 29 April 1998, more than (13) years ago. The additional body parts of the neck, right arm at or above the elbow and right leg at or above the knee have never been claimed as injuries caused by the incident of 29 April 1998 and were not claimed in the ARD as being injuries referable to the incident on 29 April 1998.”
At the beginning of the second day of the arbitration, the Arbitrator noted at T1.27:
“Now just prior to recommencing this arbitration I raised an issue with Mr Morgan concerning the pleadings and in particular the injuries alleged in the Application to Resolve a Dispute part 4, in particular injury 1 which was described as an injury to lower back. Mr Morgan seeks a leave to amend the Application to include injury to neck in addition to injury to lower back.”
Over objection from Ms Dulhunty, counsel for the employer, the amendment was permitted.
Having allowed the amendment, the Arbitrator indicated at T5.15 that she was prepared to entertain an application for an adjournment of the proceedings if the employer felt that it was prejudiced by the amendment. After a short exchange, the Arbitrator adjourned the proceedings to enable the employer’s counsel an opportunity to consider the position and obtain instructions. Upon the resumption of the matter, Ms Dulhunty declined the invitation to apply for an adjournment.

Submissions

The submissions on appeal are that the Arbitrator:
(a)     exceeded her jurisdiction and misdirected herself by permitting the amendment over objection in circumstances where the appellant’s counsel was unable to get instructions from her instructing solicitor;
(b)     erred by inviting and allowing “new claims” part way through the proceedings;
(c)     acted contrary to the principles established in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 258 ALR 14 (Aon), and ignored the appellant’s reference to Aon in supplementary submissions filed at the Arbitrator’s direction.

Discussion

The Commission is not bound by strict pleadings (Far West Area Health Service v Radford [2003] NSWWCCPD 10). Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits (s 354(1) of the 1998 Act). The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 354(3) of the 1998 Act).
The Application to Resolve a Dispute lodged by the worker’s solicitors pleaded two injuries. The first related to the injury on 29 April 1998 and pleaded an injury to the back only. The amendment sought was to add an allegation of injury to the neck in respect of the 29 April 1998 injury. The second injury pleaded, that is, what has been called a nature and conditions claim, pleaded injuries to the back, neck, right arm and right leg, in the nature of an aggravation of a disease.
If an insurer disputes liability in respect of a claim, it is required to issue a notice providing reasons for disputing liability (s 74 of the 1998 Act). The s 74 notice issued by Shoalhaven City Council on 5 June 2009, referred to at [17], notified the worker that, while the injury to his back was accepted, the allegations of injury to the neck, right arm and right leg in respect of the injury on 29 April 1998, or as a result of the nature and conditions of his employment, were denied.
On 16 December 2010, in correspondence from the employer’s solicitors to the worker’s solicitors, there was again an express acknowledgment that the worker was seeking to claim compensation in respect to the back, neck, right arm and right leg as a result of the injury on 29 April 1998, and as a result of the nature and conditions of employment.
After dealing with the worker’s request that the decision to decline liability be reviewed, the employer’s solicitors again wrote to the worker’s solicitors on 9 June 2011, and again expressly referred to his claims for compensation in respect of the back, neck, right arm and right leg, as a result of the injury on 29 April 1998, and as a result of the nature and conditions of employment.
The amended Reply lodged by the employer’s solicitors on 26 July 2011 confirmed that the matters in dispute between the parties were in accordance with the dispute notice issued by their client.
The compensation claim form submitted by the worker alleging aggravation of his condition expressly referred to his neck and right shoulder. The worker’s statement, which had been submitted with the Application to Resolve a Dispute, made an express reference to an allegation of pain in the neck immediately following the incident on 29 April 1998 ([3] of the Application to Resolve a Dispute, p 55).
Dr Bentivoglio’s report of 26 February 2009 refers to the worker having suffered an injury to his neck on 29 April 1998.
Dr Fitzsimons’s reports of 23 August 2010 and 3 May 2011 also make references to the injury to the cervical spine.
Dr Bentivoglio’s report and Dr Fitzsimons’s reports were made available to the appellant well before the arbitration hearing.
On 14 May 2009, the worker was examined at the request of the employer’s solicitors by Dr Ross Mills, an occupational and environmental physician. In his report of the same date, Dr Mills took a detailed history of the injury of 29 April 1998. He reported that, following the incident, the worker described pain extending from his neck to his tailbone. He reported, among other things, the worker’s continuing complaints of posterior neck pain.
In the amended Reply, from pages 35–38, Dr Mills responded to a series of specific questions that were put to him by the appellant’s solicitors concerning injuries to the worker’s neck, back, right arm and right leg as a consequence of the incident on 29 April 1998 and arising from the nature and conditions of the worker’s employment with the Council.
In dealing with the objection to the late amendment, the Arbitrator was clearly conscious of the fact that there had been extensive exchanges in the correspondence and medical reports between the parties in reference to the allegations of injury to the neck. When asked by the Arbitrator whether the employer was asserting that they had no knowledge of any injury to the neck, counsel for the employer gave an equivocal response, but conceded at T3.57 that the injury to the neck had clearly been pleaded in respect of the nature and conditions claim.
There is no basis for the appellant’s submission that the Arbitrator invited or allowed “new claims” during the proceedings. While it is unfortunate that the pleadings did not accurately encapsulate the disputed injuries, I am satisfied from the exchanges that I have identified that the employer was well aware that the worker was claiming, among other things, an injury to his neck, both in respect of the incident on 29 April 1998 and in respect of the nature and conditions of employment. That matter had been considered expressly by the insurer and its solicitors, and the claim had been denied. So far as the proceedings are concerned, the employer was in possession of medical evidence, particularly from Dr Mills, which addressed all of the critical issues.
The appellant submits that the actions of the Arbitrator are contrary to the principles enunciated in Aon. The appellant complains that the Arbitrator was directed to Aon in written submissions following the two days of hearing, and alleges that the Arbitrator has ignored the content and substance of those submissions.
The appellant’s submission with respect to the application of Aon was in these terms:
“The applicant is now barred by s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM). The disease provisions have not been pleaded in relation to the 1998 injury. No reasonable explanation has been provided for the delay and it is simply too late to amend the claim halfway through the hearing of the matter. Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27.”
The appellant is unable to draw any comfort from Aon for a number of reasons. Firstly, the amendment that was sought did not relate to the disease provisions, but related to the allegation of a frank injury to the neck with respect to the 29 April 1998 injury. Secondly, unlike the circumstances in Aon, where the proposed amendments radically altered the case the defendant was prepared to meet, for the reasons I have already identified, there were multiple references to the worker having injured his neck in the April 1998 injury, and the appellant was clearly on notice of it. The appellant has expressly considered and rejected the worker’s claim in respect of that injury.
For these reasons, subject to any prejudice, which I shall come to shortly, the Arbitrator did not deny the appellant procedural fairness by permitting the amendment. I reject the submissions to the contrary.

PREJUDICE

The appellant submits:
“The invitation and allowance of belated claims of injuries to the neck, right arm at or above the elbow and the right leg at or above the knee caused by the incident on 29 April 1998 has caused serious prejudice to the appellant as these claims have been allowed halfway through a part-heard matter when the appellant was in no position to meet or answer these new claims. The allowance of these claims is also prejudicial to the respondent.”
The respondent submits that the Arbitrator’s comment at T1.25–1.35 on 20 October 2011(referred to at [53]) did not amount to “an invitation”, but rather was an inquiry made by the Arbitrator to clarify the pleadings, to ensure a just, fair and quick determination of all issues between the parties.
The Arbitrator was careful to ensure that the amendment to the pleadings did not result in any prejudice to the appellant. When asked by the Arbitrator whether the appellant asserted it had no knowledge of the neck injury arising as a result of the 1998 incident, the employer’s counsel gave an equivocal response stating, “Not as far as this pleading’s concerned”.
The respondent submits that the Arbitrator then canvassed at some length the various medical opinions, including the views of Dr Mills, an expert medical practitioner qualified by the appellant, and including the fact that he had expressed an opinion concerning injury to the neck injury, both in terms of its relationship to the incident in 1998 and in respect of the nature and conditions claim. The respondent submits that the failure to plead an injury to the neck arising from the incident in 1998 was an oversight by his solicitor. However, the respondent’s counsel pointed to various materials, including the medical evidence, which should have put the appellant on notice that an injury to the neck was being pressed. In terms of prejudice, the respondent submits that the employer was offered an adjournment (T5.10–5.50 on 20 November 2011), but opted to continue.
The respondent submits that the employer’s assertion on appeal that counsel was unable to obtain instructions from her instructing solicitors about the additional claims was not raised at the time the appellant’s counsel declined to make an application for adjournment and she opted to proceed with the dispute on the basis of the amended pleadings.
I note that, at T5.4 on 20 November 2011, the Arbitrator said:
“My main concern Ms Dulhunty is whether there's any prejudice if I allow this amendment. I think it's important that all the issues be determined between the parties and as I said earlier, it's in nobody's interest to have matter after matter brought in the Commission”.
At T 5.15 on 20 November 2011, the following exchange took place:
“ARBITRATOR: However Ms Dulhunty if you in fact feel that you cannot meet that case today on the evidence you have, you can make an application to adjourn the matter if you wish.
MS DULHUNTY: I’d prefer not to.”
At the Arbitrator’s insistence, the matter was adjourned briefly to enable Ms Dulhunty to obtain instructions on the adjournment application. There then ensued further discussion between the Arbitrator and counsel directed to the fact that Dr Mills, the appellant’s expert witness, had considered and expressed his opinion on the very matters that were the subject of the amended pleadings.
At T7.36, the following exchange then took place:
“ARBITRATOR: So having drawn that to your attention do you still maintain that it’s an issue?
MS DULHUNTY: Yeah, well that’s what I – that’s what was what I was wanting to look at, if there was evidence of the division from one of those doctors. So probably on that basis I’d – anyway, certainly we’d prefer to proceed today.”
As the background to the filing of the Application to Resolve a Dispute demonstrates, the issues between the parties had been clearly identified. The appellant clearly understood that the worker alleged injury to the neck arising from the incident on 29 April 1998 or arising from the nature and conditions of employment. It had sought advice from Dr Mills concerning those allegations. Based on Dr Mills’s advice, the appellant expressly rejected the allegations of injury to the neck. The appellant has not asserted to the Arbitrator or on appeal that it did not understand that to be the worker’s case.
The appellant has not identified, either to the Arbitrator or on appeal, any actual prejudice it suffered from the Arbitrator’s decision to allow the amendment to the pleadings.
The appellant asserts that its counsel was unable to obtain instructions on the proposed amendments. I have not been provided with any further information or submissions as to the circumstances in which it is said that counsel was unable to obtain instructions. The transcript notes counsel was instructed by Bartier Perry solicitors. The transcript also notes that, during the conciliation phase of the proceedings, there had been lengthy discussions between the parties in an attempt to resolve the matter. I infer that the appellant’s counsel participated in those discussions on instructions.
Following the adjournment of the matter, at the Arbitrator’s insistence, there was no suggestion by the appellant’s counsel that she had any difficulty obtaining instructions. In these circumstances, there can be no criticism of the Arbitrator.
I am satisfied that the appellant’s counsel had every opportunity to consider her position and made a deliberate forensic decision to consent to the matter proceeding, notwithstanding the late amendment.
I reject the submission that the appellant was prejudiced by the Arbitrator’s decision to allow the amendment.

THE NOTICE AND TIME LIMIT ISSUES

Section 254 of the 1998 Act provides:
“254 Notice of injury must be given to employer
(1)Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances:
(a)  the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b)  the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c)  the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d)  the injury has been reported by the employer to the Authority in accordance with this Act.
(4) ….
Section 261 of the 1998 Act provides:
“(1)   Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3)    For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4)    The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a)  the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b)  the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5)    The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)    If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7)    If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8)    In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9)    When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”

Submissions

The appellant alleges the Arbitrator erred;
(a) by permitting the amendment, to allow the worker to plead injury to the neck arising from the incident on 29 April 1998, which the employer submits is statute barred by reason of s 261(1) of the 1998 Act.
(b) by the misapplication of s 261(3), namely the reference to ‘the’ injury in the circumstances of this case is a reference to the lower back injury which occurred on 29 April 1998, not to “any” injury. Thus, the injuries to the neck, and the consequential conditions in the right arm and right leg are not saved by s 260(3)”.

The Arbitrator’s findings

The Arbitrator noted at [159] that there was no dispute that the claim in respect of the injury to the back on 29 April 1998 was made within time. An Employee’s Compensation Claim Form in respect of an injury on 29 April 1998 was marked “claim approved” on 20 May 1998.
In respect of the alleged injury to the neck, the Arbitrator found that the worker had consistently complained of injury to the neck following the incident on 29 April 1998. On 30 June 1998, that is, about two months after the accident, the worker was assessed by Dr Grey, an orthopaedic surgeon. Mr Schutz complained to Dr Grey of soreness in the right shoulder blade and the base of the cervical spine on the right side. Dr Grey sent a report which set out these complaints to the appellant on the date of the examination. It is date-stamped ‘received’ 6 July 1998. Dr Rosenberg, the worker’s treating orthopaedic surgeon, in a report dated 4 January 2001, also noted neck complaints from a work accident three years earlier. This, coupled with the worker’s evidence, was sufficient to satisfy the Arbitrator that the worker injured his neck in that incident.
The Arbitrator accepted the evidence of Dr Fitzsimons that, for a considerable time after his surgery in July 2007 and perhaps for up to three months, the worker was unable to lie on his back because of the surgical incision. She noted that he had to lie on either side with his arms tucked under him during this period. After about one-and-a-half weeks of this, he began to experience pins and needles in both hands. The symptoms in the left hand resolved, but the symptoms in the right hand continued. This was diagnosed as a right ulnar nerve lesion attributed to lying on his arm in the months post-operatively.
The Arbitrator rejected the appellant’s submission that the symptoms in the right arm were due to a period of two to three weeks in late August or September 2007 when the worker was forced to remain in bed following a bout of influenza. The Arbitrator’s finding was based on a preference for the evidence of Drs Bentivoglio, Brennan and Fitzsimons to that of Dr Mills. Dr Mills did not have a history that the worker was unable to sleep on his back for about three months following his spinal fusion.
The Arbitrator also accepted that, based on objective evidence, namely, nerve conduction tests undertaken by Dr Spies, the symptoms in the worker’s right leg were due to right lumbosacral radiculopathy from the injury to the back.
Applying the reasoning in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, the Arbitrator concluded that the secondary injuries (that is, symptoms) to the right leg and right arm “resulted from” the nature and conditions of the worker’s employment, finding at [92] and [101] respectively that the symptoms in the right leg and right arm were consequential conditions arising out of injuries to the neck and back which she attributed to the nature and conditions of the worker’s employment.
The Arbitrator held that the claim for lump sum compensation in respect of the injuries to the back, neck, right arm and light leg, due to the nature and conditions of the worker’s employment, was made on the employer on 24 March 2009. She determined that this was also the deemed date of injury pursuant to s 16 of the 1987 Act. Therefore, as the claim for compensation, in respect of the nature and conditions claim, was made on the same date as the injury was deemed to have happened, s 261 had no application to those claims because they were clearly within time: Gow v Patrick Stevedores No 2 Pty Ltd [2002] NSWCC 60; 24 NSWCCR 626 and State Forests of New South Wales v Whittaker [2007] NSWWCCPD 149 applied.
The Arbitrator was also satisfied that the worker’s symptoms in the right leg and arm were consequential upon the frank injury to the back arising from the 29 April 1998 injury (Reasons [133] and [137]).
The Arbitrator determined (at Reasons [160]–[166]) that the worker lodged a claim form and made a claim in respect of the incident on 29 April 1998. She held it was not necessary for the worker to give further notice of the consequences of that 29 April 1998 injury extending to parts of the body, namely the neck, in addition to those referred to in the claim form: Star City Pty Ltd v Hudson [2007] NSWCA 188, WarwickHobart t/as Terry White Chemists v Pietrzak [2006] NSWWCCPD 315 (Pietrzak) and Toll Pty Ltd v Bartimote [2007] NSWWCCPD 153 (Bartimote) applied.

Discussion

The flaw in the appellant’s submission is the failure to appreciate the requirements of the notice provisions and the distinction between an “injury” and “injurious event”. In deciding what injury a worker has given notice of, it is important to keep in mind the purpose of the notice provisions. One purpose is to enable the employer/insurer to determine whether a claim should be met (see Abrahams v Comcare [2006] FCA 1829; 93 ALD 147 at [18]. That purpose was satisfied in this case by the claim for compensation made in 1998 and it is of no consequence that that claim did not refer to Mr Schutz’s neck symptoms. That conclusion is reinforced when one considers the content of Dr Grey’s report of 30 June 1998 (see [92] above) which was sent to the employer and made express reference to the cervical spine symptoms.
In Pietrzak, the worker was injured when he suffered a blow to the head. Notice of the incident had been given to the employer through medical certificates which described the incident and a diagnosis of “laceration of scalp, contusion”. Subsequently, the worker alleged injuries to his neck and back.
Acting Deputy President Roche (as he then was), discussing an alleged failure to comply with the notice on injury provisions (s 254), drew the distinction between the concept of “injury” and “injurious event”. He said (at 41):
“Once it is accepted that the injurious event occurred, the question of whether certain medical complaints have resulted from that event is one that depends on an assessment of all of the evidence in the case and whether the condition can be said to have resulted from the injurious event (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452).”
The Acting Deputy President added at [56]–[57]:
“56. The term ‘injury’ in the 1998 Act means ‘personal injury arising out of or in the course of employment’ (section 4 1998 Act). In the context of section 254 ‘injury’ means ‘injurious event’, not the pathology said to have resulted from the injurious event. A worker is not expected to know the exact nature and extent of his injury at the time of initial notification. Any other interpretation of ‘injury’ in this section would lead to the unsatisfactory situation of a worker who gives notice of an upper back strain being barred from claiming compensation in the event that medical investigations subsequently reveal that he or she in fact sustained a lumbar disc injury. There may well be arguments about causation, but provided the evidence supported a connection between the injurious event and the subsequently discovered lumbar disc lesion, the worker would not be barred from recovering compensation because he or she did not initially give ‘notice of injury’ for the correct body part.
57. In the present case the ‘injurious event’ sustained by Mr Pietrzakwas 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.”
The reasoning in Pietrzak was adopted and applied to s 261 in Bartimote by Acting Deputy President Snell, who noted at [42]:
“An interpretation of the ‘notice’ provisions, such that a worker would be under an obligation to comply with them afresh every time he developed, or made complaint of, a fresh symptom resulting from an incident already the subject of a notice, is an interpretation that should be rejected.”
Although Pietrzak dealt with “injury” in the context of the notice of injury provision (s 254), the principles are equally valid to the concept of injury with respect to the notice of claim provision (s 261).
In this case, the injurious event was the incident that occurred on 29 April 1998. The accident was reported and a claim for compensation was made well within the time prescribed by s 261. The fact that other body parts, other than the reported back injury, were not mentioned in the initial notification is not a bar to recovery of compensation in respect of those injuries (s 261(3)). The worker’s claim for weekly compensation was supported by the report from Dr Grey dated 30 June 1998, which was sent to the employer. That report included a complaint of soreness of the right shoulder blade and the base of the cervical spine, both being caused by the accident on 29 April 1998 when Mr Schutz was thrown back and forth in the grader after it came into contact with the concrete slab.
This approach was adopted by Deputy President O’Grady in Visy Board Pty Ltd v Nguyen [2010] NSWWCCPD 101 (Nguyen). In Nguyen, the worker suffered an injury to his back in the course of his employment on 20 April 2007. He ceased work and immediately reported the injury. In 2009, Mr Nguyen made a claim for lump sum compensation comprising impairments to the lumbar and thoracic spine. The employer disputed his entitlement to compensation in respect of the alleged injury to the thoracic spine on the basis that he had not complied with the claim provisions in s 261(1).
The Deputy President held at [60]:
“Having regard to the provisions of s 261(3) Mr Nguyen may be considered to have made a claim as required by that section at the time the claim form was presented notwithstanding the fact that the claim ‘did not relate to the particular compensation in question’, that is lump sum compensation.”
He added at [62]:
“Given my conclusion that the provision of the claim form constitutes both notice of injury (s 254) and notice of claim (s 261), Mr Nguyen’s claim with respect to whole person impairment arising from the alleged thoracic injury is to be taken as having been made at the time of presentation of the claim form (s 261(3)). In the circumstances, the appellant’s argument concerning Mr Nguyen’s suggested failure to give notice of claim as required by the legislation must be rejected.”
The appellant argues that Pietrzak is not authority that supports the Arbitrator’s decision. The only support for that proposition advanced by the appellant is a reference to [69] of the decision in Pietrzak, which is in these terms:
“There is no evidence that a notice of claim was ever made as required by ss 260 and 261 of the 1998 Act. In this regard the Arbitrator was in error.”
The Acting Deputy President based his comment at [69] on the absence of any claim for compensation, whether for the head, neck or back. In the present case, Mr Schutz claimed within time on 29 April 1998. In the circumstances, the absence of any reference to the neck in the claim form is not a bar to recovery of the claim for lump sum compensation for the neck. Once it is accepted that Mr Schutz injured his neck in the accident on 29 April 1998, and that he gave notice of that accident, it follows that he is considered to have made a claim for “any compensation in respect of the injury concerned” (s 261(3)), even though the initial claim was only for weekly compensation and the claim form only referred to the back.
The appellant seeks to distinguish Bartimote on the basis that there is a relevant factual distinction. The appellant submits that Bartimote:
“was not a decision about a claim for injury to a new body part but dealt with an additional claim in respect to a body part that a claim for injury had already been made. The decision was therefore in accordance with the wording of “the” injury contained in section 261(3) of the WIM Act and does not apply to the present matter where the Arbitrator has invited and allowed additional claims for injury to new body parts arising out of a frank incident which occurred more than 13 years ago.”
That submission misrepresents the facts in Bartimote and I reject it. In Bartimote, the worker lodged a claim form on 19 November 1998 in respect of a laceration and bruising to the scalp. He also referred to various other body parts, including the left elbow, left thigh, shoulder and right wrist, but made no mention of an injury to the neck. The issue dealt with by Acting Deputy President Snell concerned whether there had been a failure by the worker to comply with his statutory obligations with regard to notice of injury and claim for compensation in respect of the alleged neck injury. In other words, the circumstances in Bartimote are distinctly similar to the issues in this appeal.
The appellant further submits that the time limits prescribed by s 261 are to be applied strictly, citing Orellana-Fuentes v Standard Knitting Mill Pty Ltd; Carey v Blasdom Pty Ltd t/as Ascot Freightlines [2003] NSWCA 146; 57 NSWLR 282 (Orellana-Fuentes) at [72]. The reference in Orellana-Fuentes is not authority for the proposition advanced. In resolving the issues in that case, the Court of Appeal was required, among other things, to consider the reasonableness of the legal costs recoverable in hearings before the Commission. In addressing that issue, the Court considered the objectives of the Act and the general scheme of the Act, in so far as it was designed to promote and resolve disputes as quickly and as cheaply as possible, without having a formal hearing. To that end, the Court examined some “examples” of the provisions designed to achieve that end. At [72], Ipp JA (with whom Spigelman CJ and Handley JA agreed) merely examined some of the relevant statutory provisions. He said:
“There are detailed provisions as to how a claim is to be made (s 260) and strict time limits are imposed for making a claim (ss 261, 263 and 264). There are detailed provisions concerning the information exchange between parties (s 290), the duties of insurers when disputes are referred to the Commission (s 291), and the expedited assessment of disputes (s 292) as well as medical assessments (ss 293 and 294A). There are detailed provisions concerning the conciliation of claims (s 355).”
Justice Ipp did not examine in any detail the application of s 261 and the passage referred to is not authority for the proposition advanced, namely, that “the time limits are to be applied strictly”.
For the reasons given by the Arbitrator and for these additional reasons, the Arbitrator was correct to conclude that the claim form submitted by Mr Schutz on 20 May 1998 constituted a valid notice of claim with respect to the back and neck injuries and the consequential conditions in the right leg and right arm.

THE NATURE AND CONDITIONS CLAIM

After analysing the medical evidence at length, the Arbitrator’s conclusions with respect to the so-called nature and conditions claim are found at [148] of the Reasons. The Arbitrator concluded that that the worker suffered from a degenerative condition affecting both his neck and spine, and that that degenerative condition was a disease process.
The Arbitrator found, preferring the evidence of Drs Bentivoglio, Fitzsimons and Rosenberg, to that of Dr Mills, that, having regard to the worker’s duties, the worker’s symptoms were worsened as a result of his employment. That is, in the Arbitrator’s view, the evidence disclosed that the worker’s disease had been aggravated by the nature and conditions of his work.
The Arbitrator stated at [81] that the views expressed by Dr Mills, that is, that there was no impairment of the neck, back, right leg or right arm due to the worker’s employment between 1 June 1996 and 1 January 2002, were not supported by any adequate or plausible reasons. This was particularly so given that the worker had complained in 1995 of an aggravation of a previous neck and shoulder injury due to constant grader operations, and, in 2006, he submitted a compensation claim form in which he alleged injury due to a gradual build-up of pain. The Arbitrator noted at [101] that Dr Mills did not obtain the detailed history such as that obtained by Dr Fitzsimons. The Arbitrator did not reject Dr Mills’s opinion, but, for the reasons given, she preferred the evidence of Drs Bentivoglio, Fitzsimons and Rosenberg.

Submissions

The appellant’s challenge to the Arbitrator’s finding is expressed in these terms:
“That the Arbitrator has erred in finding that the respondent has suffered injury to the back under ss 15 and 16 of the Act due to the nature and conditions of his work. It is submitted that the weight of the evidence demonstrates that, in relation to the respondent’s back injury, the injury never resolved and remained constant. All problems were and are referable to the frank incident on 29 April 1998.”
In the written submissions on appeal and in the supplementary submissions before the Arbitrator dated 24 October 2011, the appellant canvassed various aspects of the medical evidence in support of the contention.
The appellant further submits that the Arbitrator erred by not giving sufficient weight to the evidence of Dr Mills and erred in preferring the reports of Drs Bentivoglio and Fitzsimons over the report of Dr Mills.
The appellant submits that the claim form dated 8 July 2005 is the first mention of an aggravation of a previous neck or shoulder injury. It submits that the statement of the worker made on 23 March 2010 referring to longstanding neck, back and shoulder pain, cannot be reliable in circumstances where the statement was made for the specific purpose of claiming compensation under the Act.

Discussion

The Arbitrator correctly observed at [70] of the Reasons that “injury” does not require there to be a change in pathology, but requires that the work, acting upon the underlying condition, has aggravated or exacerbated it (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626).
In Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; 140 ALR 227, Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ cited with approval the observations of Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505:
“The trial judge, although not depending in any respect on the credibility of any witness, may have preferred one possible view of the primary facts to another as being in his opinion the more probable. Such a finding may, in my opinion, be disturbed by an appellate court but this should only be done if other probabilities so outweigh that chosen by the primary judge that it can be said that his conclusion was wrong. Again, the trial judge, having found the primary facts, may decide that a particular inference should be drawn from them. Here no doubt the appellate court has more room for setting aside that conclusion. But, even in that case, the fact of the trial judge's decision must be displaced. It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference. It must be shown that the trial judge was wrong. This may be achieved by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge's decision is wrong."
The Arbitrator noted at [22] of the Reasons that the worker gave oral evidence on 19 September 2011. The Arbitrator said:
“The applicant impressed me as being forthright and consistent and I accept him as a witness of truth.”
The Arbitrator accepted the worker’s evidence that his work involved driving on a daily basis for lengthy hours at a time, work which involved constant and, at times, heavy jolting and jarring in the course of driving machinery.
At [74], the Arbitrator noted that Dr Rosenberg expressed the view that the worker was suffering from the effects of many years of hard physical work, which had either caused or substantially contributed to the spondylolisthesis associated with facet joint degenerative changes and left L5 radiculopathy and cervical degenerative change.
Dr Bentivoglio also expressed the view that the worker developed spondylolisthesis at the L4/5 level and degenerative changes in the cervical spine at C5/6, either as a result of the injury in 1998 or as a result of degenerative changes.
Dr Fitzsimons expressed the view that the worker was suffering from L4/5 instability, with spondylolisthesis and facet joint disease, with an associated left L5 radiculopathy. Dr Fitzsimons opined that the worker suffered cervical degenerative changes that were very marked degenerative changes in his right C5/6 neural exit foramen. Dr Fitzsimons expressed the view that the “nature and conditions” of the applicant’s work were more likely to be the cause of his impairments than the specific injury on 29 April 1998. She referred, in particular, to the heavier aspects of the worker’s employment with the appellant, including operating heavy plant machinery and undertaking heavy manual work, including using sledgehammers to break rocks, laying pipes, concreting, and using chainsaws on fallen trees.
The Arbitrator stated at [81] of her Reasons that the opinions of Drs Fitzsimons, Bentivoglio, Brennan and Rosenberg were to be preferred to those of Dr Mills. Although Dr Mills expressed the view that there was no impairment of the neck, back, right leg or right arm caused by the nature and conditions of his employment, he did not, in the Arbitrator’s view, provide adequate or plausible reasons for that view, particularly given the nature of the worker’s duties. In particular, the Arbitrator found Dr Fitzsimons’s report to be most persuasive, as she had set out in some detail the employment history and clear reasons for her opinions.
An appeal under s 352 is no longer a review of the Arbitrator’s decision to determine whether he or she came to the correct conclusion. This appeal is limited to the identification of, and the correction of, error. It is the establishment of the error and the correction of that error that now defines the process under s 352.
The appellant’s challenge, in reality, amounts to a review of the evidence, and the weight attached to certain evidence to seek to establish that the Arbitrator came to an incorrect conclusion. No error has been alleged. There is no evidence that the Arbitrator overlooked any material facts or that the probabilities so outweighed the conclusions reached by the Arbitrator that it could be said that her conclusion was wrong. In my view, there was ample evidence to support the Arbitrator’s conclusions that the worker suffered from disease conditions in his neck and back, which had been aggravated by the nature and conditions of his employment.
The appellant’s submission that the claim form dated 8 July 2005 is the first mention of an aggravation of a previous neck or shoulder injury is incorrect. As I discussed at [92], the first complaint in relation to the neck occurred on 30 June 1998, when the worker was examined by Dr Grey. Dr Rosenberg also recorded complaints in relation to the neck on 4 January 2001. The workers compensation claim form submitted on 11 July 2005 also reports aggravation of previous neck/shoulder injury.
I reject the appellant’s submission that the statement of the worker made on 23 March 2010 referring to longstanding neck, back and shoulder pain cannot be reliable in the circumstances because the statement was made for the specific purpose of claiming compensation. As noted at [126], the Arbitrator found the worker to be a truthful witness and impressive witness. She accepted his evidence concerning his complaints of neck and shoulder pain following the incident on 29 April 1998 and aggravated by the nature of his work driving heavy machinery (Reasons at [17] and [18]).
In evaluating challenges to such findings, the Commission is guided by the principles stated in Fox v Percy [2003] HCA22; 214 CLR 118. I have not been directed to any evidence to support the submission that the worker’s evidence was unreliable or was “contrary to incontrovertible facts or uncontested evidence”. Indeed, the objective evidence is to the contrary, as discussed at [133].
At [18] and [19] of the appellant’s submissions, the appellant challenges the reliability of the assessments of whole person impairment made by Drs Bentivoglio and Fitzsimons. The degree of whole person impairment is a matter for an Approved Medical Specialist, not the Arbitrator. The Arbitrator made no findings on this issue and it is therefore unnecessary for me to comment further.
I reject the submission that the Arbitrator erred in finding that the respondent has suffered injury to his back and neck due to the nature and conditions of his work.

THE SECTION 38 CLAIM

Section 38 of the 1987 Act provides:
“38   Partially incapacitated workers not suitably employed—special initial payments while seeking employment
(1)Entitlement
If:
(a)  a worker is partially incapacitated for work as a result of an injury, and
(b)  the worker is not suitably employed during any period of that partial incapacity for work,
the worker is to be compensated in accordance with this section during each such period as if the worker’s incapacity for work were total.
(2)Maximum period of entitlement
The maximum total period for which the worker may be so compensated is 52 weeks.
(3) Rate of compensation
When a worker is so compensated, the compensation is payable at the relevant rate prescribed by this Act for the period of incapacity concerned. However, after the first 26 weeks of incapacity, the rate is the greater of the following rates:
(a)  80% of the worker’s current weekly wage rate (that is, 80% of the rate prescribed by this Act for the first 26 weeks of incapacity),
(b)  the statutory indexed rate (that is, the rate prescribed by this Act for a period of incapacity after the first 26 weeks).
(4) Worker to seek suitable employment
Compensation is not payable to a worker in accordance with this section during any period unless the worker is seeking suitable employment during that period (as determined in accordance with section 38A).”
Section 38A of the 1987 provides as follows:
“38A Determination of whether worker seeking suitable employment
(1)Application
This section provides for the determination of whether a worker is seeking suitable employment for the purposes of section 38 and section 52A (Discontinuation of weekly payments after 2 years).
(2) General requirements
The worker is not to be regarded as seeking suitable employment unless:
(a)  the worker is ready, willing and able to accept an offer of suitable employment from the employer, and
(b)  the worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker’s partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker, and
(c)  the worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer, and
(d)  the worker is taking reasonable steps to obtain suitable employment from some other person.
Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects.
(3) Notice of requirement relating to obtaining suitable employment from other person
The requirement under subsection (2) (d) does not apply unless the worker has been notified of the requirement in accordance with this subsection.
Such a notice:
(a)  must be given in writing by the insurer or self-insurer concerned, and
(b) must state that the worker is required to take reasonable steps to obtain suitable employment from some other person in order to remain entitled to compensation under section 38, and
(c)  may set out particular reasonable steps that can be taken by the worker in order to satisfy that general requirement, and
(d)  is subject to, and must comply with, any regulations and (subject to the regulations) any claims procedures notified by the Authority to insurers and self-insurers, and
(e)  does not constitute an admission of liability by an employer or insurer under this Act or independently of this Act.
The requirement under subsection (2) (d) does not apply, and a notice is not to be given under this subsection, while action is being taken by or on behalf of the employer to arrange or explore the possibility of suitable employment with the employer.
(4) Notice not applicable when proceedings pending etc
If proceedings relating to the payment of compensation under section 38 or to the discontinuation of weekly payments under section 52A are before the Commission or the insurer or self-insurer has denied liability to pay any such compensation:
(a)  a notice is not to be given under subsection (3), and the requirement under subsection (2) (d) applies without any such notice being given, and
(b)  particular steps to satisfy that requirement that are set out in a notice previously given do not restrict the determination of the matter by the Commission.
(5) Workers treated as not seeking suitable employment
A worker is not to be regarded as seeking suitable employment if the worker has unreasonably refused an offer from any person of suitable employment or necessary rehabilitation training. A worker is also not to be regarded as seeking suitable employment if the worker:
(a)  unreasonably refuses to have an assessment made of the worker’s employment prospects, or
(b)  unreasonably refuses to co-operate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under the employer’s return-to-work program.
(6) Court orders
An order of the Commission relating to the weekly payment of compensation:
(a) may be subject to conditions relating to the worker taking reasonable steps to obtain suitable employment during any weekly payments under section 38, and
(b) may include directions relating to the adjustment of the amount of weekly payments under section 38 for any future period of payments under section 40 when the worker obtains employment or when the period for payments under section 38 comes to an end.
(7) Definitions
In this section:
employer of a worker who is partially incapacitated for work means the employer liable to pay compensation to the worker in respect of the incapacity or, if there are 2 or more such employers, the employer so liable who last employed the worker.
refusal of an offer or to do a thing includes a failure to accept the offer or to do the thing.
rehabilitation training means training of a vocationally useful kind, and includes vocational re-education, work-trials, workplace rehabilitation services or treatment provided by way of rehabilitation.
suitable employment means suitable employment within the meaning of section 43A.”
At all relevant times, the worker has been in receipt of weekly compensation benefits pursuant to s 40 of the 1987 Act. He claimed an entitlement to additional compensation under s 38 during the period of partial incapacity from 29 September 2008 to 29 September 2009, on the basis that the appellant failed to provide him with suitable employment.
Following the surgery to his back in July 2007, the worker was totally incapacitated. On 29 September 2008, Dr Ghani provided a WorkCover medical certificate stating that the worker was permanently fit for modified duties from 29 September 2008.
On 15 January 2009, the worker attended a meeting with senior representatives of the appellant, namely, Steven Crear and Paul Collins, specifically to discuss his future employment with the appellant. The workers union representative, Sharon Weaire, also attended. At the meeting, the worker’s future with the appellant was discussed and he was advised that there were no alternative suitable duties available for him within the whole of the Shoalhaven Council and, in those circumstances, his employment was to be terminated.
On 22 January 2009, the worker was notified that his employment would be terminated and he would be medically retired on 3 April 2009. Since being permanently certified fit for modified duties, the worker participated in a rehabilitation program arranged by the appellant.
At [173]–[174], the Arbitrator recorded the evidence of the worker’s attempts to find suitable employment at various employers in the Huskisson area where the worker lives. All of those applications were unsuccessful.
Dr Ghani’s medical certificate of 29 September 2008 certified the worker permanently fit for modified duties but failed to identify the worker’s capabilities or restrictions.
In a letter dated 21 October 2008 from the worker’s solicitor to the employer, it was noted that the worker had been issued with a certificate for permanent and modified duties on 29 September 2008. Mr Leonart, the worker’s solicitor, stated that his client remained ready, willing and able to undertake duties within his restrictions, and confirmed his client’s understanding that he had been informed that no suitable duties were available at that point in time.
In a letter of 22 January 2009, Ms Ruyg, the human resources manager for the appellant, referring to the meeting attended by the worker on 15 January 2009, confirmed that he was to be retired owing to his medical condition and his inability to return to his position of ganger in the works and services division. It was proposed that the appellant proceed with medical retirement following the worker’s sixtieth birthday.
On 30 April 2009, the appellant’s solicitors wrote to the worker’s solicitors, complaining that the medical certificate from Dr Ghani of 29 September 2008 failed to comply with the requirements of s 38A(2)(b). The correspondence made it clear that, if the claim for benefits under s 38 was to be pressed, an adequate certificate would be required, together with:
(a)     the date any certificate was provided to the appellant
(b)     details of a request for work and evidence that the worker was ready, willing and able to accept an offer of suitable employment
(c)     evidence in respect of reasonable steps being taken by the worker to obtain suitable employment from some other person.
In a further WorkCover medical certificate dated 30 April 2009, Dr Ghani again stated that the worker was permanently fit for modified duties, stating that the worker was capable of working five hours a day on four days a week. He noted that the worker could lift up to 5 kg as tolerated, sit for half-an-hour as tolerated, travel for half-an-hour, walk up to half-an-hour, stand up to half-an-hour, and was unfit for bending or lifting.

There is no evidence as to when the certificate of 30 April 2009 was sent to the appellant. However, it is reasonable to infer that it was obtained to rectify the alleged deficiency in Dr Ghani’s earlier certificate and was sent to the appellant immediately after it was obtained by the worker.

The Arbitrator’s findings

The Arbitrator accepted the worker’s evidence that he had sought suitable duties from the appellant on 29 September 2008 after he had been provided with a certificate for permanently modified duties. The Arbitrator accepted that the certificate from Dr Ghani of 29 September 2008 did not comply with the requirements of s 38A(2)(b), in that it did not contain information that was reasonably sufficient in the circumstances to assist in the determination of what suitable duties the worker was fit for. She did, however, accept that the medical certificate Dr Ghani provided on 30 April 2009 did provide sufficient information to assist in the determination of what suitable employment the worker was fit for.
The Arbitrator accepted the worker’s evidence that he was ready, willing and able to accept an offer of suitable employment, that he had supplied the appellant with a medical certificate with respect to his partial incapacity, and that he had requested employment from the appellant. The Arbitrator was satisfied that the worker had been taking reasonable steps to obtain employment and could be regarded as seeking suitable employment during the period of partial incapacity after 30 April 2009.
The Arbitrator accepted the appellant’s argument that the first certificate from Dr Ghani did not comply with the requirements of s 38A(2)(b), but that the certificate issued on 30 April did provide the appellant with sufficient information to assist in determining what was suitable employment for the worker.
The Arbitrator rejected the worker’s claim for benefits under s 38 between 28 September 2008 and 29 April 2009 (for the reasons stated above), but awarded compensation under s 38 from 30 April 2009 to 29 September 2009.

Submissions

The appellant submits that there was no evidence that the worker approached the appellant for suitable duties after 30 April 2009. The appellant alleges that the worker took no further steps to inform the employer after that date that he was ready, willing and able to accept an offer of suitable employment.
The appellant submits that the Arbitrator erred in finding the worker had “at all times” participated in a rehabilitation program and that the finding was not supported by the evidence at arbitration.
The appellant submits that, at the meeting on 29 January 2009, the appellant had no information to assess the worker’s capabilities and restrictions to allow it to determine if suitable duties were available, and the Arbitrator erred by failing to appreciate this.
The appellant further submits that the Arbitrator erred in finding that the worker filled in forms when he applied for employment when, in fact, that was not the case.
The appellant submits that, by simply turning up on the doorstep of various businesses to ask for work face-to-face was not proper compliance with s 38A(2)(d) (Vezitis v Belmont Timbers (NSW) Pty Ltd [1997] NSWCC 14 (Vezitis); J & K Bricklaying Pty Ltd v Brown [2009] NSWWCCPD 89 (Brown)).
The appellant submits that the work sought by the worker must be assessed objectively in order to comply with s 38A(2). As some of the jobs that he applied for involved elements of lifting, it could not be found that the worker was taking reasonable steps to obtain suitable duties.
The appellant further submits that the worker’s evidence concerning his inability to use a computer “raises a query” about whether he completed his rehabilitation program.
It is submitted by the appellant that the work sought to be obtained must be sought during the relevant period (Brown). The appellant submits that the worker did not give any indication at all about when he allegedly took steps to find employment, suitable or unsuitable.
It is for these reasons that the appellant submits the Arbitrator should not have been satisfied that the requirements of s 38A(2) were satisfied, and that the Arbitrator erred in awarding compensation pursuant to s 38 of the Act.
The worker submits that the allegations of error only point to errors with respect to the weighing of evidence.
With respect to the evidence concerning the timing of his attempts to find suitable employment, the worker submits that he was in discussion with the Council towards the end of 2008 and into 2009 (T19/9/11; 14.10). He was then invited to tell the Arbitrator what sort of work he was looking for during that period.
The worker submits that the appellant had the opportunity of cross-examining the worker regarding what period his attempts to find work related to, but did not do so. The employer submits that the worker’s evidence as to his job-seeking is uncontradicted.

Discussion

The worker described making regular inquiries in relation to the availability of work with a number of local employers, including the Huskisson Bottle Shop, the Huskisson Baker, the Greenwell Point Bowling Club, Huskisson Surfwear, the Huskisson Timber Yard, Huskisson Paper Shop, Gibson & Sons Floor Sanders Estapolling, and Greenwell Point Oyster Service.
The worker said that, in 2008, as part of his rehabilitation process, there had been discussion about a greenkeeper’s job, but he said that he had never worked as a greenkeeper, and this required an apprenticeship and involved heavy lifting. He observed that Huskisson was a small town with holiday resorts, but no industry. His interviews had been face-to-face, but the interviews had not gone well, having regard to his age. He conceded that he could not lift and that most employers wanted employees who were versatile and could perform a range of duties.
The correspondence from the worker’s solicitors to the appellant in September 2008 stated that he was willing and able to undertake duties provided they were within the medical restrictions that had been certified by Dr Ghani. At the meeting on 15 January 2009, senior representatives of the employer made it clear that the Council was not in a position to provide alternative duties to the worker, and indicated that his employment would be terminated. That occurred a week later, when he received correspondence from the employer’s human resources manager confirming his medical retirement.
The worker was not required to make a further request for suitable employment after the second certificate had been supplied by Dr Ghani on 30April 2009. Section 38A(2)(c) merely requires that the worker has requested the employer (or the insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of employment from the employer. The worker had satisfied the requirements of s 38A by requesting (through his solicitors) suitable employment in writing and during the course of his meeting with senior Council officers on 29 January 2009.
While the evidence with respect to the worker’s participation in a rehabilitation program was scant, I reject the submission that there was no evidence to support a finding that the worker participated in a rehabilitation program for two reasons. Firstly, the worker gave unchallenged evidence that he participated in such a program arranged by the appellant (ARD [57]). In his evidence, the worker said that he had been referred by the appellant for rehabilitation to an organisation known as Injury & Occupational Health (IOH), where he had discussions with a person named Amanda. He gave an account of discussions he had with representatives of that organisation (at T19/9/11; 13.1), wherein various occupations were suggested to him, including working in a library, the greenkeeper’s job, a tour guide, a shop assistant and, for good measure, it was suggested to him that he could consider becoming a pilot (notwithstanding the obvious impractically of that suggestion).
The appellant’s submission that, at the meeting on 29 January 2009, the employer had insufficient information to assess the worker’s capabilities and restrictions does not lead to any error on the part of the Arbitrator because she accepted that to be the case. The Arbitrator rejected the worker’s claim for benefits under s 38 between 29 September 2008 and 30 April 2009 for that reason.
The Arbitrator was in error in finding that the worker filled in forms when he made applications for suitable employment. That finding was contrary to the evidence (T19/9/11; 17.27). However, the finding makes no difference to the outcome of the appeal. Section 38A(2)(d) requires that the worker take reasonable steps to obtain suitable employment from some person. There is no requirement that those applications must be in writing.
There is no evidence to support the submission that the worker’s evidence concerning his inability to use a computer was not credible. I have not been taken to any evidence to support the contention that the evidence was not credible or that it could form a basis for a finding that the worker had not participated in a rehabilitation program.
The Arbitrator accepted the worker’s evidence as to his attempts to find suitable employment and made findings at [186]–[187], accepting his evidence in this regard, that the worker had been taking reasonable steps within the meaning of s 38A(2)(d) to obtain suitable employment. Although not clearly expressed, the appellant’s challenge to that finding is on the basis that there was insufficient evidence to support that finding. The appellant submits that turning up at various workplaces in the area where the worker lived to seek work face-to-face did not amount to proper compliance with s 38A(2)(d) (Vezitis).
The facts in Vezitis are very different to the facts in this case. In that matter, his Honour Judge Armitage was not satisfied, on the balance of probabilities, that the worker had satisfied the requirements of s 38A(2)(d). This was partly because of the worker’s evidence that, rather than seeking suitable employment as advertised in the newspaper, he had simply gone to factories and had asked for “light duties”. His Honour was satisfied that such an approach, as was put to the worker in cross-examination, was unlikely to achieve the desired result. The finding was also based on the fact that the worker did not participate in rehabilitation and refused to be retrained, nor did he wish to engage in process worker duties, even on a trial basis.
There is no suggestion that the worker in this case failed to participate in a rehabilitation program, and nor is there any evidence that his various applications for employment in the area near where he lived where not genuine attempts to find suitable work. The appellant’s counsel cross-examined the worker in relation to his attempts to find suitable employment. It was not suggested to him in cross-examination that his attempts were not genuine. As the Arbitrator noted at [176], the worker had lived in the local area for 30 years and was familiar with the employers in the local town. There was ample evidence to support the Arbitrator’s findings on these issues, and her approach and findings do not demonstrate any error.

CONCLUSION

In the circumstances of this case, the Arbitrator did not err in permitting an amendment to allow the worker to plead an injury to the neck arising from the same injurious event giving rise to an admitted back injury. The allegation had been the subject of consideration and an express denial in the appellant’s s 74 notice and other correspondence between the parties’ representatives. The appellant has failed to make out the allegation of denial of procedural fairness.
The worker was considered to have made a claim for compensation within the meaning of s 261(3) of the1998 Act, with respect to the injury to the neck and in respect of the consequential injuries to the right arm and right leg when a claim form was completed and submitted on or about 20 May 1998, notwithstanding that the compensation sought at that time did not relate to those injuries.
No error has been demonstrated by the Arbitrator accepting that, in respect of the workers claim for benefits under s 38, he was ready, willing and able to accept an offer of suitable employment from the appellant after 30 April 2009, when the extent of his employment restrictions was clarified by his treating doctor. Similarly, the Arbitrator did not err in accepting that the worker took reasonable steps to obtain suitable employment from some other person.

DECISION

The Arbitrator’s determination made in the Certificate of Determination dated 15 November 2011 is confirmed.

COSTS

The appellant is to pay the respondent worker’s costs.

Judge Keating

President
19 March 2012

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

ASSOCIATE