Smith v Captain Cook Cruises (NSW) Pty Ltd t/as Captain Cook Cruises
[2007] NSWWCCPD 123
•30 May 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Smith v Captain Cook Cruises (NSW) Pty Ltd t/as Captain Cook Cruises & Ors [2007] NSWWCCPD 123
APPELLANT: Ronald Smith
FIRST RESPONDENT: Captain Cook Cruises (NSW) Pty Ltd t/as Captain Cook Cruises
SECOND RESPONDENT: Ormwave Pty a partnership co. t/as Captain Cook Barrier Reef
THIRD RESPONDENT: QH Cruises Pty Ltd a partnership co. t/as Captain Cook Barrier Reef
FOURTH RESPONDENT: Workcover Authority of NSW as Administrator of the Uninsured Liability and Indemnity Scheme
INSURERS:First Respondent – Allianz Australia Workers Compensation (NSW) Ltd
Second and Third Respondents – WorkCover Queensland
FILE NUMBER: WCC 14404-04
DATE OF ARBITRATOR’S DECISION: 17 October 2005
DATE OF APPEAL DECISION: 30 May 2007
SUBJECT MATTER OF DECISION: Section 10 Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION: Appellant: AWM Dickinson & Son
First Respondent: Goldbergs Lawyers
Second and Third Respondents:
Abbott Tout Lawyers
Fourth Respondent: Self represented
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 17 October 2005 is confirmed.
No order as to costs of the Appeal.
BACKGROUND TO THE APPEAL
On 3 August 2006 Ronald Smith (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 17 October 2005.
The Respondents to the Appeal are Captain Cook Cruises (NSW) Pty Ltd t/as Captain Cook Cruises (‘the First Respondent’), Ormwave Pty a partnership co. t/as Captain Cook Barrier Reef (‘the Second Respondent’), QH Cruises Pty Ltd a partnership co. t/as Captain Cook Barrier Reef (‘the Third Respondent’) and Workcover Authority of NSW as Administrator of the Uninsured Liability and Indemnity Scheme (‘the Fourth Respondent’).
The Appellant, a Chef by occupation, filed an Application to Resolve a Dispute (‘ARD’) with the Commission on 15 September 2004. That ARD sought orders against the First, Second and Third Respondents with respect to alleged entitlement to weekly payments, lump sums and medical expenses. As against the First Respondent the Appellant alleged that he received injury on 12 March 1991 whilst on a journey between his place of employment and his place of abode within the meaning of section 10 of the Workers Compensation Act 1987 (‘the 1987 Act’). It was further alleged against the First Respondent that between the years 1988 and 1996 his duties as Ship Steward, Chef and Entertainment Officer were such that the nature and conditions of his employment caused injury within the meaning of the 1987 Act. The injuries alleged were described in Part 3 of the ARD as being to his back, legs, neck, arms and “psychiatric sequelae”.
The claims brought against the Second and Third Respondents alleged injury in the course of employment with each Respondent between 1988 and 1 May 1996 which was occasioned by reason of the nature and conditions of his employment. The allegations of injury were, again, to the Appellant’s back, legs, neck, arms and “psychiatric sequelae”.
It appears that proceedings were commenced against the Fourth Respondent on a date after filing of the original ARD.
The claims brought by the Appellant have an unfortunate and moderately complex history. It appears from the Commission’s record that proceedings were originally instituted by the Appellant with respect to the subject injuries in the Compensation Court of NSW in July 2001. That Application was assigned to the Commission in accordance with transitional provisions which concerned the conduct in the Commission of claims brought in the former Court. The Application was, on 14 May 2004 struck out by order of an Arbitrator. The current proceedings have been listed for determination before an Arbitrator on a number of occasions. With the consent of the parties the Commission has determined two discrete issues raised in the proceedings. The Arbitrator, on 27 June 2005, made a Determination concerning the contractual relations between the Appellant and the Second and Third Respondents. That Determination involved a consideration of the operation of the former section 13 of the 1987 Act. That Determination was the subject of an appeal to the Commission constituted by a Presidential Member brought pursuant to section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). That appeal was heard by Handley ADP and on 23 February 2006 orders were made confirming the decision of the Arbitrator. That decision of the Presidential Member was the subject of an appeal by the unsuccessful parties to the NSW Supreme Court, Court of Appeal brought pursuant to section 353 of the 1998 Act. That appeal is yet to be determined by the Court of Appeal.
The Arbitrator, in her Determination dated 27 June 2005 concerning the “contractual issue”, made the following directions:
“DIRECTIONS
53.One further preliminary issue needs to be determined in this matter, namely whether the alleged injury on 12 March 1991 (the assault) arose out of or in the course of Mr Smith’s employment with the First Respondent. At the arbitration hearing on 27 May 2005, all parties agreed that this matter could be determined “on the papers”.
54.The parties are invited to make written submissions. The Applicant is to file and serve its submissions within 10 days of the date of these reasons. The First Respondent is directed to file and serve in reply within 10 days of receipt of the Applicant’s submissions.”
The Appellant and the First Respondent filed Written Submissions with respect to the preliminary issue (‘the assault’) addressed by the Arbitrator in paragraph 53 which is above noted. Those Submissions were filed by the parties in July of 2005.
The Commission record reveals that the Arbitrator made a Determination with respect to the assault issue on 17 October 2005. The Commission file contains a Certificate of Determination bearing date 17 October 2005 annexed to which there is a Statement of Reasons for Decision (‘Reasons’) given by the Arbitrator.
It is common ground among the parties that the Certificate of Determination and Reasons were not forwarded to the parties until 10 July 2006. This delay is unexplained.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 17 October 2005 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
The injuries the Applicant received on 12 March 1991 are not compensable injuries for the purposes of s 10 of the Workers Compensation Act 1987.”
ISSUES IN DISPUTE
The Appellant’s submissions on this appeal identify three issues in dispute. It is stated (at 2.3 and 2.4 of the Appellant’s Submissions):
“The Arbitrator erred in finding:
(a)That the injuries received by the appellant on 12 March 1991 are not compensable injuries for the purposes of section 10 of the Workers Compensation Act 1987.
(b)That the assault on 12 March 1991 occurred within the boundary of the block of flats where the appellant resided.
(c)That the appellant’s psychological injury was sequelae to physical injuries.”
The First Respondent, in its Submissions in Opposition to this appeal, asserts:
“That the Arbitrator herein correctly decided all issues in respect of the Worker’s claim for injury alleged to have been sustained in the course of a periodic journey on 12 March 1991.”
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.”
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements for section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
Section 352(4) of the 1998 Act provides:
“(4) An appeal can only be made within 28 days after the making of the decision appealed against.”
Rule 16.2 sub-rule (11) of the Workers Compensation Commission Rules 2006 (‘Rules’) provides:
“16.2 Appeal against Arbitrator’s decision
………….
(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The Appellant’s Application was filed with the Registry of the Commission on 3 August 2006. It is clear that such appeal has been made well beyond the time limitation prescribed by section 352(4) of the 1998 Act. It is also clear, and common ground as above noted, that the parties did not receive a copy of the Certificate of Determination bearing date 17 October 2005 with attached Reasons until receipt by each of them of correspondence enclosing a copy of those documents from the Registry dated 10 July 2006. The Appellant, in filing this appeal on 3 August 2006, acted promptly once notice of the Arbitrator’s Determination and Reasons had been received. In the absence of there being any explanation for the delay in forwarding the Certificate of Determination to the parties it, in my view, is reasonable to infer that such was the result of oversight or clerical error on the part of the Registry. I note in passing that the parties informed the Commission of the non-receipt of a Certificate of Determination during the course of a telephone conference conducted before a different Arbitrator on 31 March 2006. That Arbitrator, it is revealed on the Commission file, advised the Registry that the original Arbitrator’s Determination was apparently outstanding and made certain directions with respect to further conduct of the matter.
It is clear that any delay was not occasioned by default of the Appellant. The appeal was lodged with the Registry within 28 days of the date of receipt of the Certificate of Determination and Reasons by the Appellant’s representatives. The First Respondent makes no submission with respect to the Appellant’s non-compliance with the time limitation requirements of the 1998 Act. To lose the right to seek leave to appeal would, in my view, work demonstrable and substantial injustice.
Having regard to the exceptional circumstances above summarised and in particular to the absence of any fault on the part of the Appellant, I formally order that time to apply for leave to appeal be extended to 3 August 2006 and note that the requirements of section 352(2) of the 1998 Act have been satisfied.
Section 352(8) as amended by the provisions of the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (‘the amending Act’), provides:
“(8) In this section, ‘decision’ includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.”
Regulation 200B of the Workers Compensation Regulation 2003 provides:
“200B New claims procedures—appeal against decision of Commission constituted by Arbitrator
For the purposes of section 352 (8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed.”
Having regard to the manner in which the Arbitrator has approached the determination of the dispute between the parties it is necessary to consider the effect, if any, upon the Appellant’s Application for Leave to Appeal of the two last mentioned provisions. The amendment to section 352(8) of the 1998 Act came into force on 1 November 2006. The question as to whether that provision is to be construed so as to have retrospective effect has been considered by Roche DP in P&O Ports Limited v Hawkins [2007] NSWWCCPD 87 (‘Hawkins’). In that matter the Commission determined that the general principle of construction against retrospective effect of statutes was displaced by the proper construction of the wording of Schedule 6 part 18J clause 5 to the 1987 Act which provides:
“Appeals from decisions of Arbitrators
5. The amendments made to section 352 of the 1998 Act by the amending Act apply in respect of a claim for workers compensation made before the commencement of the amendments.”
The Appellant in the present matter made “a claim for workers compensation” on a date before the commencement of the amendments to section 352(8) of the 1998 Act but, for the reasons as discussed by Roche DP in Hawkins with which I respectfully agree, those amendments are retrospective in effect and apply to the present facts.
The question is raised as to whether the Determination which is the subject of the appeal is “interlocutory” or otherwise. The distinction between a “final” and an “interlocutory” order in the Commission was addressed by Roche DP in Hawkins (see paragraphs 35 – 37). I, again, respectfully agree with the reasoning as there stated.
The general law characterises an order as being final, rather than interlocutory if it finally disposes of the rights of the parties (see Licul v Corney (1976) 180 CLR 213 at 225 (‘Licul’)). In the present matter the Arbitrator stated (at paragraph 1 of Reasons):
“1.These reasons deal with a preliminary issue raised by the First Respondent, Captain Cook Cruises (NSW) Pty Limited, namely whether the alleged injury sustained by the Applicant in these proceedings, Ronald Smith, as a result of the assault on him on 12 March 1991 are compensable under the Workers Compensation Act 1987.”
The Arbitrator ultimately determined that the injuries received by the Applicant on 12 March 1991 were not, having regard to the provisions of section 10 of the 1987 Act, received in compensable circumstances. Such determination puts to an end and in my view finally disposes of the Appellant’s rights under the 1987 Act to compensation benefits as against the First Respondent concerning the injuries received on 12 March 1991 and their consequences. It is my view that the determination which is the subject of this appeal is not “of an interlocutory nature” within the meaning of section 352(8) of the 1987 Act and is thus a “decision” which may be the subject of an appeal as prescribed by that section.
Having regard to the order made with respect to the time requirements of section 352(4) of the 1998 Act, compliance with the requirements of section 352(2) of the 1998 Act and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The documentary evidence before the Arbitrator is noted at paragraph 5 of her Statement of Reasons for Decision dated 27 June 2005 (‘Reasons as to Contract Issue’). Those Reasons as to Contract Issue accompanied the Certificate of Determination of the same date which addressed the contractual issue between the Appellant and the Second and Third Respondents referred to above.
Paragraph 6 of the Arbitrator’s Reasons as to Contract Issue noted that oral evidence had been given before the Commission by Messrs Smith and Haworth and by Ms El-Ajouz. That evidence is recorded in transcript of proceedings before the Arbitrator conducted on 28 February 2005 and 27 May 2005 which are before the Commission.
It is noted by the Arbitrator at paragraph 7 of her Reasons that photographs had been tendered in evidence. It is clear from the Transcript of Proceedings (28 February 2005) that seven photographs of the Appellant’s premises and surrounding locality were identified by the Appellant during the course of his oral evidence. Those photographs were noted (Transcript 76.56) as having been marked for identification number 2. Having regard to the observation made by the Arbitrator in the course of her Reasons it is safe to assume that those photographs found their way into evidence at some point during the course of proceedings. The photographs are not with the Commission file however the absence of those exhibits, having regard to the issues to be determined and the manner in which the parties have conducted this appeal, does not impede determination of the appeal.
The large volume of evidence adduced on behalf of the parties addresses issues which are not pertinent to the present appeal. Much of the material before the Arbitrator addresses the contractual issue above referred to, economic matters and medical issues. This appeal is concerned only with those issues enumerated above at paragraph 12. Evidence concerning the events that occurred on 12 March 1991 are touched upon in the documentary material as well as the recorded oral evidence of the Appellant. That evidence is not controversial and indeed the Arbitrator in her Reasons (at paragraphs 3 and 4) noted:
“3.The facts surrounding the assault are not in dispute and can be briefly stated. At around midnight on the evening of 12 March 1991, the Applicant was on his way home from work to his place of residence, an apartment in Wylde St, Potts Point. While walking along McLeay St (sic) towards his apartment block the Applicant spotted a couple of “thugs” who he suspected were following him. He became anxious. When he was close to home (but still on McLeay (sic) Street) he became increasingly concerned for his safety, started to run and was chased by the “thugs”.
4.Mr Smith’s evidence is that he tried to get inside the apartment block, but was caught by his assailants on the top step (or landing) outside the front door to the block. He says that he was then thrown down the stairs and, at the bottom of the stairs, kicked repeatedly.”
The Arbitrator proceeded (at paragraph 7 of Reasons) to make reference to the photographs tendered in evidence before her and made a finding as follows:
“7.Photographs were tendered showing the front steps, the entrance, the building forecourt and the boundary line. It is clear from the photographs that the stairs and entrance are well within the boundary of the block of units.”
The Appellant in his Submissions on this appeal summarises (between paragraphs 1 and 5) the pertinent facts:
“1.On 12 March 1991 the Applicant was employed by Captain Crook [sic] Cruises Pty Ltd.
2.On 12 March 1991 the Applicant returned home from work and did not deviate in his journey.
3.The Applicant caught the train to Kings Cross Station and then walked down McLeay (sic) Street Potts Point heading for his premises at Wylde Street, Potts Point.
4.Whilst walking down McLeay (sic) Street the Applicant became fearful that he was to be attacked by two men.
5.The Applicant was chased from McLeay (sic) Street down Wylde Street and across the boundary of his premises and up the stairs to the front of his block of units where he was physically injured.”
The facts as so summarised are, as observed by the Arbitrator in the course of her Reasons, not in dispute. The evidence plainly supports the Appellant’s assertion that the Appellant became fearful as he was walking along Macleay Street and that he was physically injured by his assailants at a point within the boundary of his premises. The Respondent in its Submissions on this appeal has raised no argument with respect to those matters of fact.
The Appellant’s submissions with respect to the question as to whether the subject injuries were compensable as being received by the Appellant on a journey as prescribed by section 10 of the 1987 Act are tersely stated as follows:
“Where does a journey cease?
In Calvert v Soden (1994) 10 NSWCCR 139 it was held that a journey ceases once a worker crosses the boundary of his property.
What were the injuries received by the Applicant?
The Applicant received both physiological and psychological injuries as a result of the “assault”.
Where did the assault occur?
An assault is any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence. R v Venna [1976] QB 421.
It is submitted the Applicant first apprehended violence when he was walking down McLeay Street (sic) in Potts Point before he crossed the boundary to his property. Accordingly, the “assault” commenced when the Applicant was still in the journey from his place of work to his place of abode. The fact that the assault continued after the Applicant crossed the boundary does not preclude him from compensation. The facts in this case are distinguishable from Calvert v Soden (1994) 10 NSWCCR 139.”
The First Respondent in its submissions both before the Arbitrator and on this appeal places reliance upon the decision of Calvert v Soden (1994) 10 NSWCCR 139 (‘Calvert’) and argues that “section 10(4) of the Workers Compensation Act makes no distinction between the boundary of a block of units and the boundary of a private home”. The First Respondent proceeds to seek to draw an analogy between the present facts and those considered in Williams v Ducon Condenser Limited [1949] WCR 122 (‘Williams’).
The First Respondent in its Submissions pays considerable attention to a suggested attempt on the part of the Appellant to “re-cast” his case with respect to injury. The First Respondent makes reference to the manner in which the Appellant particularised injury in the ARD filed on his behalf and the medical evidence to support an assertion that:
“8.It has never been the Appellant’s case that he suffered a psychiatric injury as a consequence of an apprehension of violence in the course of his journey on 12 March 1991.”
Having regard to the character of the issues to be determined by the Arbitrator and on this appeal the Second and Third Respondents have refrained from putting submissions with respect to the proper construction and application of section 10 of the 1987 Act.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was the subject of examination by Dr Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6. In summary, the Commission’s conclusion in the last mentioned decision was that a proceeding such as the present is not an “appeal” in the strict sense nor is it a hearing de novo. It was further stated in the course of that aforementioned decision that such power to “review” is exercisable only where it can be demonstrated that the original decision of the Arbitrator was affected by legal, factual or discretionary error.
The Arbitrator’s ultimate conclusion was, as stated in paragraph 16 of her Reasons:
“… I find that the injuries Mr Smith received on 12 March 1991 are not compensable injuries for the purposes of section 10 of the Workers Compensation Act.”
Whilst it was not expressly stated by the Arbitrator it is clear that her conclusion was founded upon the basis that, on the facts as found, the subject injuries were not received on a journey to which section 10 of the 1987 Act applies. The crucial finding of fact was that the injuries were received “within the boundary of the block of flats at which the Applicant resided” (paragraph 13 of Reasons) and hence the Appellant’s claim was defeated by reason of the provisions of section 10(4) of the 1987 Act.
The provisions of section 10 the 1987 Act which are pertinent to the present facts are as follows:
“[WCA 10] Journey claims
10(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
…… …...
(3) The journeys to which this section applies are as follows:(a)the daily or other periodic journeys between the worker’s place of abode and place of employment;
…………
(4) For the purpose of this section, a journey from a worker’s place of abode commences at, and a journey to a worker’s place of abode ends at, the boundary of the land on which the place of abode is situated.
………..”
The present provisions of section 10(4) of the 1987 Act came into operation following amendment on 31 March 1990 and were the subject of consideration by his Honour Judge Johns of the former Compensation Court of NSW in Calvert. In that matter his Honour considered the legislative history of section 10 and its predecessor, section 7 of the Workers Compensation Act 1926 (‘the 1926 Act’). The facts of Calvert concerned a worker who had left her ground floor home unit with the intention of proceeding directly to her place of employment. After locking her front door she descended a flight of stairs on the common property and whilst walking to her vehicle which was parked on the common property she fell suffering a significant injury to her right ankle. His Honour, following a consideration of the authorities, made the following observation with respect to the present wording of section 10(4) of the 1987 Act:
“It is clear that the section as it now stands has rationalised the termination of journeys between normal residence such as private houses and flats. In both cases the termination of the journey is the boundary of the land upon which either the private house or the flat building stands. It is clear that once the boundary of the land has been crossed on which the flats were located the journey has either begun or ended.”
In the course of his reasons Johns J noted in Calvert that McGrath CJ had concluded, in an unreported judgment of Anderson v Thiess Contractors Pty Ltd (25 March 1993 unreported), that there was no distinction to be made between the boundary of a block of home units and the boundary upon which a home is situated when consideration was to be given to the commencement or ending of a journey to or from a place of employment. It followed that the worker in Calvert failed in her claim.
The Appellant asserts that the present matter and Calvert are capable of being distinguished. The basis of that distinction appears to be founded upon a consideration of the legal concept of assault. Reference is made by the Appellant in his Submissions on Appeal to the decision of R v Venna [1976] QB 421 (‘Venna’). It is stated that Venna is authority for the proposition that “an assault is any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence”. The submission proceeds to argue that the Appellant first apprehended violence when he was walking down Macleay Street in Potts Point before he crossed the boundary to his property. It is said that the “assault” commenced when the Applicant was still on the journey from his place of work to his place of abode and that the fact that the assault continued after the Appellant crossed the boundary does not preclude him from entitlement to compensation.
With respect to the last summarised argument put by the Appellant the Arbitrator concluded as follows:
“13.The Applicant’s submissions are misconceived. The question is not where the assault took place but where the purportedly compensable injuries were received. It is clear that the physical injuries were received within the boundary of the block of flats at which the Applicant resided. His claim for psychological injury is in respect of sequelae following his physical injuries. Those injuries must also have been inflicted upon him outside the boundary of his building in order to be compensable.”
The medical evidence reveals that the physical attack suffered by the Appellant after he had crossed the boundary onto the common property of his flat dwelling had caused significant injury requiring protracted treatment and occasioning a long period of incapacity for work. It, as submitted by the First Respondent, had always been the Appellant’s case that any psychiatric disability suffered by him had been consequential upon the injuries received in the physical attack. I respectfully agree with the Arbitrator’s conclusion that proper application of the provisions of section 10(4) of the 1987 Act required an examination as to the locus of the physical assault. It not being in dispute that the physical assault occurred after the Appellant had crossed the boundary his claim is defeated by application of the plain and unambiguous words of section 10(4) of the 1987 Act.
As noted above the Appellant has submitted that the Arbitrator had erred in her finding “that the Appellant’s psychological injury was sequelae [sic] to physical injuries”. I am of the opinion that no such finding was made by the Arbitrator in the course of her Reasons for Determination. The reference by her to the Appellant’s claim for psychological injury in paragraph 13 of her Reasons as quoted above merely reflects, as pressed by the First Respondent in its Submissions, the manner in which the Appellant’s claim has been brought.
It may be seen that, for the reasons expressed above, I respectfully agree with the ultimate conclusions reached by the Arbitrator. The Appellant’s claim has a most unfortunate history as I have attempted to summarise. There remain a number of outstanding issues for determination not the least of which is determination by the Supreme Court of the appeal brought from the decision of Handley ADP. The Appellant has an outstanding claim against the First Respondent in respect of an allegation of injury arising from the “nature and condition of his employment”. I would, in the circumstances, commend expedition of the hearing of the Appellant’s claim as soon as same is permitted by the conclusion of the outstanding appeal.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 17 October 2005 is confirmed.
COSTS
No order as to costs of this appeal.
Kevin O’Grady
Acting Deputy President 30 May 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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