State Forests of New South Wales v Whittaker - [2007] NSWWCCPD 149

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		State Forests of New South Wales v Whittaker [2007] NSWWCCPD 149
APPELLANT:		State Forests of New South Wales
RESPONDENT:		Ian Whittaker
INSURER:		Self-insured
FILE NUMBER:		WCC744-05
DATE OF ARBITRATOR’S DECISION:		11 July 2006
DATE OF APPEAL DECISION:		29 June 2007
SUBJECT MATTER OF DECISION:		Injury; disease; notice of injury; claim for compensation; substantial contributing factor; weekly payments; discretion under section 40 of the Workers Compensation Act 1987; interest.
PRESIDENTIAL MEMBER:		Acting Deputy President Anthony Candy
HEARING:		On the papers
REPRESENTATION:		Appellant:	Leigh Virtue & Associates, Solicitors
Respondent:	Abbott Pardy & Jenkins, Solicitors
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 11 July 2006 is confirmed.
The appellant employer is to pay the costs of the appeal of the respondent worker.

BACKGROUND TO THE APPEAL

Ian Whittaker (‘the worker’) was employed by the Forestry Commission of New South Wales from 1972, initially as a forest worker and later as a field supervisor. The Forestry Commission underwent changes of identity so that at later times the worker was employed by State Forests of New South Wales and possibly Forests NSW. I will refer to these bodies collectively as ‘the employer’.
The worker claimed to have suffered an injury to his neck and right shoulder in April 1998 and subsequently. It appears that a claim for workers compensation was not made until July 2001 when liability was accepted by the employer and compensation was paid.
Dr Little, a neurosurgeon, performed an anterior fusion of the worker’s neck on 7 September 2001. The worker however returned to work on restricted duties in December 2001 and continued until his employment was terminated on 20 February 2004. On 6 January 2004 two doctors at Healthquest had certified that the worker suffered from a health condition that would in all likelihood prove permanent as a result of which he was unable to perform the inherent requirements and job demands of his position as a field worker for State Forests of New South Wales. The termination of employment followed this certificate. The employer then advised the worker that weekly compensation would be made to him pursuant to section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’) because it could not provide suitable duties.
On 24 May 2004 a claim was made for lump sum compensation under section 66 and section 67 of the 1987 Act.
An ‘Application to Resolve a Dispute’ in respect of lump sum compensation was registered by the Commission on 15 September 2004 (WCC14305-04). In relation to this claim the worker was examined by an Approved Medical Specialist (‘AMS’) on 18 January 2005. The AMS certified that the whole person impairment of the worker was 33%. The Referral for Assessment of Permanent Impairment Dispute to the AMS specified the date/s of injury as being “15/16 April 1998 – 20 February 2004 deemed date of injury disease of gradual process”. The assessment of whole person impairment was on the basis that the injury had been received on or after 1 January 2002. An appeal has been lodged against this assessment by the AMS and remains unresolved pending the outcome of this appeal.
On 3 October 2004 payments of weekly compensation ceased. Accordingly, a letter claiming those payments was sent on 11 November 2004 and an ‘Application to Resolve a Dispute’ (WCC744-05) was registered by the Commission on 18 January 2005 claiming weekly payments of compensation from 4 October 2004 onwards at the appropriate rate for a worker with three dependent children. The date of injury specified was: “15-16 April 1998 and the nature and conditions of employment from 15-16 April 1998 to 20 February 2004 and disease to 20 February 2004”.
The question of weekly payments was determined by a Commission Arbitrator on 24 June 2005. The Arbitrator awarded the worker the sum of $728.00 from 21 February 2004 to 22 August 2004 and thereafter at the statutory rate for a worker with three dependent children under sections 36 and 37 of the 1987 Act. An appeal against this decision was successful and accordingly the matter was referred to a different Arbitrator for arbitration hearing. This was held on 28 June 2006 and a Certificate of Determination (‘COD’) in respect of the dispute was issued to the parties on 11 July 2006. The Arbitrator again found in favour of the worker but the award of weekly compensation was in a lesser amount.
It is against the decision of the Arbitrator of 11 July 2006 that the employer now seeks leave to again appeal.

THE DECISION UNDER REVIEW

The Arbitrator found that the worker first became aware that he had received an ‘injury’ in July 2001 when he consulted a neurologist, Dr Graham. The Arbitrator found that the worker’s employment was a substantial contributing factor to his injury which had been sustained as a result of the nature and conditions of his employment. The relevant date of injury was the date on which the worker’s employment was terminated, namely 20 February 2004. In the alternative, the Arbitrator expressed the view that the relevant date was when the claim was made for weekly payments namely 11 November 2004. The worker was found to have been partially incapacitated and compensated accordingly.
Although the COD is expressed to be in respect of both WCC14305-04 and WCC744-05 the Arbitrator made no orders in relation to the section 60 and lump sum claims. He could not have done so as to the lump sum claim since the appeal against the determination of the AMS was, and still is, outstanding. There has been considerable confusion between these matters with their numbers being used interchangeably and often wrongly. Both matters were before the original Arbitrator however he only determined what the terms of referral to the AMS were in WCC14305-04 and determined the claim for weekly payments of compensation in WCC744-05. The appeal determined by the previous Presidential member on 13 April 2006 was in relation to matter WCC744-05 only. The ‘COD’, dated 11 July 2006, in relation to the rehearing of the weekly payments claim records the Arbitrator’s orders as follows:
“1.There will be an award in favour of the Applicant in the sum of $458.77 per week from 21 February 2004 to date and continuing.
2.The Respondent to have credit for payments made.
3.The Respondent to pay the Applicant’s costs as agreed or assessed.”

ISSUES IN DISPUTE

The issues in dispute in this appeal are:
· whether the Arbitrator erred in finding that this was a case of disease;
·whether the Arbitrator erred in finding that the worker’s employment was a substantial contributing factor to the injury;
·whether the Arbitrator erred in finding that the Notice of Injury and Claim had been made within time;
·whether the Arbitrator erred in assessing weekly compensation in the amount of $458.77 per week;
·whether the Arbitrator erred in failing to exercise his discretion to reduce the amount of weekly payments of compensation, and
·whether the worker should have an order for interest in respect of outstanding weekly payments of compensation.

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
In this matter the employer’s solicitor has asked that the appeal should not be determined on the papers since it was said to involve complex issues including those going to jurisdiction. There was no application to rely on fresh evidence made in the Application to Appeal, however an Application to Admit Late Documents was received in the Commission on 12 June 2007. I will deal with this in due course. The employer advised initially that it was not able to finalise its submissions as it did not have a copy of the transcript of the arbitration hearing. On 1 September 2006 the Registrar wrote to the employer enclosing a copy of the transcript and requiring it to complete and lodge its final grounds and all submissions on appeal without delay. On 5 October 2006 the employer replied that its preference was to address all of those matters at the hearing which had been requested.
I directed that further submissions be filed by the employer and the worker and these have now been received. So far as I am aware, it is the invariable practice of the employer’s solicitor to seek an oral hearing in all appeals in which he is involved. I cannot see any particular feature in this appeal which requires an oral hearing.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the worker 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 appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act and the amount at issue on the appeal is more than $5,000.00 and all of that sum is at issue on the appeal (section 352(2) of the 1998 Act).
Leave to appeal is accordingly granted.

FRESH EVIDENCE

‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
As I have earlier said, an application was made on 12 June 2007 to admit new evidence, being a report of 5 June 2007 relating to surveillance of the worker’s activities on 29, 30 and 31 May 2007. The reason given in support of the application to admit late evidence is: “The evidence relied on is foreshadowed in the reply and in any event it is in the interests of justice for the evidence to be admitted”. The matters to be considered in deciding whether to admit fresh evidence were considered by Deputy President Fleming in McMahon v Anthony Lagana and Joseph Lavella t/as The Vessel “Nimble II” [2003] NSWWCCPD 22 (‘McMahon’).
In relation to this the Deputy President said the following:
“11. Principles relevant to the exercise of the discretion to admit new evidence in relation to proceedings before the Commission were discussed in the matters of Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7, and Shipman Pty Ltd v Matters [2003] NSWWCCPD 19. Factors weighing in favour of the exercise of discretion to admit fresh evidence in an appeal against the decision of an Arbitrator in the Commission include that:
(i)if the request is refused, a substantial injustice will result to the party who seeks to have the evidence admitted, Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235,
(ii)the evidence could not have been discovered, with reasonable diligence, at the time of the original proceedings, Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235; Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA80, and
(iii)the evidence is of such probative value that there is a high degree of probability that it would lead to a different outcome in the case; Greater Wollongong City Council v Cowan (1955) 93 CLR 435, Warr v Santos [1973] 1 NSWLR 432, Harrison v Schipp (2002) 54 NSWLR 738; Akins v National Australia Bank (1994) 34 NSWLR 155.
12. Factors weighing against the exercise of the discretion to admit fresh evidence in the appeal include:
(iv)the interest in the finality of litigation and the importance of the ability of the successful party to rely on the outcome of the proceedings, Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287,
(v)the prejudice, if any, that may result to the other party, particularly if the fresh evidence raises new arguments in the appeal, and
(vi)the intention of the legislative scheme in relation to the nature of the proceedings.”
No submission of any substance has been made in support of the new evidence being received, nor is the evidence of such probative value, in my opinion, that there is a high degree of probability that it would lead to a different outcome in the case. Obviously the particular surveillance report in relation to the worker’s activities on three days to which I have referred could not have been obtained earlier. No doubt similar evidence could and, for all I know, may have been obtained but not relied on. I do not consider that a substantial injustice would result to the employer if the request to admit the evidence is refused.
Having regard to all of the considerations enumerated by the Deputy President in McMahon, it is inappropriate to admit the evidence and I refuse to do so.

EVIDENCE

The Worker’s Evidence

A statement of the worker dated 14 April 2005 was in evidence. In that he set out his work history. He said that while employed by State Forests on 15 and 16 April 1998 he jarred his neck while using a crowbar digging post-holes in stony ground. He felt pain in his right shoulder and while driving home he had difficulty holding the steering wheel with his right hand. He was aware of pins and needles in his right index finger. On the second day of that work he had other men in the team do most of the work because of his pain. He said that he consulted his general practitioner, Dr Findlay, who sent him for X-rays and he had some physiotherapy. He said he took annual leave but did not take sick leave or workers compensation at that time. When he returned from leave he went on with his normal duties.
His normal duties with State Forests since moving to Inverell in 1995 had involved labouring work with shovels, crowbars and other tools. He said he performed fire trial maintenance and erected signs, heavy fence strainer posts and gate posts. He did maintenance on equipment at the depot and driving duties in four-wheel drive vehicles and trucks. Other duties entailed walking through bushland and forested areas when he was obliged to look up at trees for inspection purposes while simultaneously trying to avoid falling over in rough terrain. He used cans of spray paint to mark trees and also used chainsaws and brush cutters to fell trees and to control other vegetation. These tasks were carried out for very lengthy periods, whole working days or days on end. He had to manually carry the chainsaw and brush cutters through the bush. The brush cutters came with a harness and tended to partially distribute its weight away from his right shoulder. He said it was not a good design and it did not relieve the load on his right side as much as it should have. While involved in fire-fighting he had to do physically demanding tasks such as running out hoses and getting them back into the fire-fighting unit. He said there were good periods and bad periods depending on the type of duties undertaken.
In March 2001 he attended a general practitioner, Dr Palmer, regarding the pain in his neck and right shoulder and was sent for physiotherapy and further X-rays. He was referred to a neurologist, Dr Graham, and was then sent to a neurosurgeon, Dr Little. He said he continued to perform his usual duties experiencing good days and bad days. Driving long distances for work caused his pain to increase.
On 8 July 2001 Dr Hall, who was Dr Palmer’s partner, put him off work completely. This was initially treated as sick leave however when the worker saw Dr Graham he was advised that his condition was work-related and thereafter the employer treated the absence from work and associated expenses as workers compensation matters. He remained off work and underwent surgery on 7 September 2001. He resumed work in mid December 2001 on restricted hours and duties. Over the next six months he gradually increased his duties and hours. He said he got back to doing between 90% and 95% of his normal duties. He was using small chainsaws and avoided using crowbars, picks and the like. He did however use brush cutters and drove four-wheel drive vehicles.
The worker suffered a deterioration in his condition in late 2002 which led Dr Hall to certify him fit for permanently modified duties and the worker was then employed up to his dismissal on 20 February 2004 in office duties.
The worker gave evidence in the first arbitration on 23 May 2005 and was extensively cross-examined. It was agreed that that evidence would be evidence in the later proceedings without the need for the worker to give evidence again. He said that he had been unaware of time limits for making a claim for workers compensation and shortly before the surgery performed in September 2001 the extent of the injury to his neck had not been explained to him.
In cross-examination the worker said that he had seen Dr Findlay in 1998. He was sent back to work after a few days off. He was asked in some detail about previous workers compensation claims which he had made going back to 1977. The worker attributed his neck problem to the work he had been doing in April of 1998 at which time he agreed that he had not put in a claim for compensation. It was put to him that he did not do so because he did not think that his neck had anything to do with his work. The worker was cross-examined about leave which he took from 17 April to 24 April 1998 as recreation leave. The worker was also asked about taking sick leave in June 1998 in order to have X-rays of his neck. He was shown an application for sick leave which referred to a back problem in June 1998. In July 1998 the worker had taken nine days off work and the reason given was a “crushed disc” in his neck.
The worker said that he had stopped seeing Dr Findlay and was seeing Dr Palmer because Dr Findlay had given up his practice by March 2001. It does appear, however, that the worker was dissatisfied with Dr Findlay in relation to his treatment of an unrelated injury. For that reason he had gone to see Dr Palmer who suggested to the worker that his right shoulder pain had nothing to do with his neck condition. The worker agreed that he had not told Dr Palmer on 19 March 2001 about any injury to his neck at work. The worker was then asked about proceedings which he had brought in the Industrial Relations Commission in March 2004 to seek reinstatement to his previous employment which, it was said, showed that the worker considered that he was fully fit for that employment. The worker replied this related to his employment on restricted duties. He agreed that he could work in clerical positions with some restrictions, or as a service station console operator with medication and rest and could work as a car park attendant. He doubted that there was such employment available in Inverell. He said that he was looking after his three small children which was a problem for him. However he denied that this was a reason why he was not looking for work. He had gone to Centrelink in order to seek employment and had done little more than that. He did however say that “The government didn’t want me. Who’s going to put me on in the private sector?”

Dr Searle saw the worker at the request of his solicitors on 17 April 2004. The history given to that doctor was of the worker using a crowbar in April 1998 on two days when he felt pain in his right shoulder region. He had gone on holidays and the symptoms had diminished, however, when he returned to work the pain became severe again. He had numbness in his right index finger and paraesthesia spreading up his arm. He attended his local doctor who told him to “take it easy” and arranged an X-ray of his neck. He was told there was an abnormality at C6/7 level and he should rest. He was then on and off work for a time and had some physiotherapy and massage. He then went to another GP. Dr Graham performed nerve conduction tests and referred him to Dr Little, who operated shortly afterwards.
Dr Searle’s opinion was that the general nature of conditions of the worker’s employment with heavy physical work and repetitive jarring of his neck and arms had led to excessive stresses on the cervical spine causing a development of degenerative changes in the joints and in the discs. The nature and conditions of work had also caused capsulitis in the worker’s right shoulder.
The Healthquest certificate addressed to State Forests of New South Wales dated 6 January 2004 to which I have earlier referred was also in evidence.
A workplace assessment was carried out by Mr R.N. Heal, a physiotherapist, for Ada Maughan & Associates at the request of the employer. The report is dated 9 April 2003. There are several items of significance in that report. Under the heading “Client report of symptoms” is recorded:
“In October 2002 Ian developed increased neck pain, right shoulder to hand pain and numbness in his right index finger, requiring increased medication. This was directly related to his post-injury/surgery work duties and necessitated him being totally unfit until mid January 2003. He returned on light duties and takes minimal medication now. His current work duties are within his capabilities.”
Later in this report Mr Heal records that, “Hopefully Mr Whittaker would be able to have a worthwhile career redirection. However, at 55 years of age, this option presents practical difficulties in terms of job availability for a man of this age”.
Also in evidence was a work restriction notice given to the worker by the employer in the following terms:
“WORK RESTRICTION NOTICE
IAN WHITTAKER from 16/10/02 to 31/12/03
PULL: < 10kg; < 10m fire-fighting hose

LIFTING: Always bend knees to lift
Waist height: 10kg
From the ground: 10kg
To shoulder height: 5.7kg

Signed .................................
(Paul Wells)
Workplace Manager

CARRYING: Two-handed carrying < 10kg
Do not use knapsack spray
Do not lift, twist & carry.

DRIVING: Not to travel in vehicle with a hard suspension e.g. Toyota Hilux.
Must have tanker off-sider

HITTING ACTION:
No jarring actions allowed
Do not use rake hoe, axe, crowbar, sledgehammer

20L gerry can: 20kg Chain saw: 9kg
Brush cutter: 10kg Vehicle tyre: 33kg”

On 24 July 2001 the employer wrote to the worker acknowledging the claim made for workers compensation relating to the injury of 15 and 16 April 1998. He was advised that the claim was under consideration and he would be notified of the progress and decision as to the claim as soon as possible. Liability was evidently accepted and payments of compensation made.
On 6 February 2004 the employer wrote to the worker advising that the employer had no alternative other than to medically retire him. The employer also referred to an agreement that the worker would enrol and commence a TAFE teaching course in assessment and workplace training at Inverell TAFE. The employer would pay the costs of this. Acknowledgment was made of the worker’s 32 years of very conscientious work.
On 20 February 2004 the employer wrote to the worker advising that as of 23 February 2004 he would be compensated pursuant to section 38 of the 1987 Act. The worker was advised that the employer did at that time accept liability for his workers compensation claim.
A report of Dr John Graham dated 27 August 2001 was in evidence. The worker told him that three years before he had become aware of aching in his right neck and shoulder after a heavy crowbar session at work. He had had physiotherapy and plain X-rays with some improvement. About three months before he had a flare-up in his right neck and shoulder pain with pain extending down his right arm. The neck was uncomfortable. There had been no improvement in his pain despite physiotherapy. Analgesics had little effect. He said that he did a lot of driving at work and worked as a State Forest employee using a chainsaw and brush cutter and had done this for several years. X-rays were said to show quite significant disc degeneration at C6/7. An MRI scan of 29 June 2001 confirmed disc degeneration in the lower cervical region at C6/7. There was some deformity of the underlying cord on the right. Accordingly, the worker was referred to Dr Little who advised operative treatment. Dr Graham noted that the worker first felt pain after a heavy session at work on 15 April 1998 which he thought resulted in injury to the C6/7 disc. He did not think that the injury was caused by degenerative condition. He expressed the opinion that employment was a substantial contributing factor to his neck injury.
A Medical Assessment Certificate of Permanent Impairment (‘MAC’) was in evidence. It is undated but bears an imprint of having been faxed on 28 January 2005. The AMS, Dr Clery, saw the worker on 18 January 2005. That doctor noted that the deemed date of injury was 20 February 2004 and his opinion was that the injuries were due to the nature and conditions of the worker’s employment over many years. He thought that using a crowbar was one specific activity that accelerated underlying degenerative changes in the cervical spine and caused the onset of pain due to capsulitis in the right shoulder.

The Employer’s Evidence

The employer relied on a number of medical reports. Dr Lloyd Hughes, an orthopaedic surgeon, examined the worker on 4 August 2004 at the request of the employer’s solicitors. The history of injury was as has previously been related. Dr Hughes was of opinion that the worker suffered from advanced degenerative disc disease in his cervical spine at C6/7 level which was not work related and not due to any injury. The condition was degenerative and had nothing to do with his previous work as a forestry field supervisor. Dr Hughes has not recorded what that work involved.
Dr Kim Edwards, a surgeon, examined the worker on 4 August 2004 also. His description of the worker’s employment was that he was field supervisor or foreman but he also did some physical work “to show them how it’s done”. There was a consistent history of injury in 1998 with the symptoms becoming worse in 2000 when he lost power in his right arm. Dr Edwards also obtained a history of the worker suffering a relapse in late 2003 [sic] when the worker was using spray cans to mark trees and had to drive 90 minutes from work each night. Dr Edwards’ opinion was that the worker was suffering from cervical spondylosis which was constitutional and not as a result of the worker’s employment. He thought that the worker may have suffered a temporary aggravation of his underlying condition in 1998, however, that aggravation would have been a limited duration and had ceased. As to the increase in symptoms in 2000, Dr Edwards considered that there was no incident or injury described. The worker was not performing much in the way of physical work and related his symptoms to marking trees with a spray can and extending his neck frequently.
Professor Frederick Ehrlich examined the worker (report 23 November 2004) at the request of the employer. Professor Ehrlich’s specialty is said to be orthopaedic rehabilitation. The history to this doctor was consistent with that given to other doctors. Professor Ehrlich found some inconsistencies on examination which no other doctor has noted. His opinion was that the worker’s problems were due to spontaneous progression of degenerative changes and the nature of his duties “should not be considered to have played a part in creating” that disease, although he said heavy work would be uncomfortable in a person who had well-advanced degenerative disease in his neck. He did not think that the events in 1998 were such as to have caused injury and he pointed out that no specific injury had occurred. Although he obtained a history that the worker was living in Bowral rather than Inverell, he considered that the worker’s returning to the paid workforce might be regarded as “improbable”.
There is a file note relating a conversation between Tom Newby who was the worker’s supervising forester and Jason Kyle a former employee. This was said to have taken place on 31 February 2001. In brief, Mr Kyle was reported to have said that the worker did not complain of any problem with his neck or shoulder in April 1998. Only page 1 of the file note’s 2 pages was put in evidence.
The employer also relied on an Application for Leave of Absence signed by the worker in relation to the period of 17 to 24 April 1998. This leave was described as recreation leave and is noted to have been approved on 23 March 1998 and is stamped as having been received at State Forests Western Region on 30 March 1998. It is clear that leave was sought before the events of 15 and 16 April 1998 and not as a result of them.
There is another Application for Leave of Absence form signed by the worker dated 23 June 1998 for that day in order that he might have X-rays taken on his neck.
There is a certificate of Dr Findlay dated 26 June 1998 in which he certified the worker unfit for work because of cervical disc degeneration from that date to 3 July 1998. There is an Application for Leave of Absence form again signed by the worker on 29 June 1998 up until 3 July 1998 which gives the reason as being “back problem”. I consider that the reference to the worker’s back is clearly in error since the contemporaneous medical certificates refer to the worker’s neck.
On 3 July 1998 Dr Findlay again saw the worker and certified him unfit until 10 July 1998 with what appears to be “brachial neuralgia”. The worker then applied for six days sick leave from 6 July 1998 to 15 July 1998.
There are four workplace incident reporting forms relating to injuries suffered by the worker between 2 March 2001 and 9 July 2002.
There is also a certificate of Dr Irwin certifying the worker fit for selected duties because of lower back pain in 1989. This has been noted by someone other than Dr Irwin to be “not w/c”.
There are claim forms and correspondence in connection with claims for compensation in respect of injuries on 16 March 1972 and 21 February 1977. These related to injuries to the worker’s left foot and left knee respectively.
It is clear that the worker filed an Application for Relief in the Industrial Relations Commission of New South Wales on 16 March 2004 seeking reinstatement to his former employment. In that form his occupation is given as “Works Supervisor”. The reason for the application was given by the worker as follows:
“The termination was harsh, unjust & unreasonable in all the circumstances because I had a job and there was no reason to terminate me.”
The notes of Dr Findlay were produced by Inverell Hospital. The relevant entries are as follows, doing my best to read the doctor’s writing and abbreviations:
“22.6.98“Paraesthesia right arm and forearm 2/52. On examination sensation reflexes ? full range of movement cervical spine. ? Tinel’s sign not present. Paraesthesia to 2nd and 3^rd fingers—ulnar. X rays.
26.6.98 “Disc degeneration C7-6 advised 1. collar 2. heat 3. rest 1/52”
There is a summary of an X-ray of a cervical spine dated 23 June 1998 which gives a history of paraesthesia of the right arm, forearm and hand. The X-ray was reported on as follows:
“There is advanced C6/7 disc degeneration with prominent dorsal osteophytes and bilateral neurocentral osteophyte formation at this level. Minor degenerative changes are also evidence at the C5-6 disc space. No other significant plain film abnormality is visible.
3 July 1998Not as much pain. Paraesthesia right second third fingers. Certificate 1/52 advised collar.”

SUBMISSIONS, DISCUSSION AND FINDINGS

Injury

The primary submission of the employer is that the Arbitrator erred in categorising the injury to the worker as being either work related disease or disease aggravated by the employment rather than the specific events of 1998. The submission does not, it is said, have the effect of entitling the worker to compensation in respect of the events of 1998 rather the worker is disentitled to recover compensation by reason of his alleged failure to report the injury or make a claim within time. It is said on behalf of the employer that the worker’s compensation claim was submitted in July 2001. Although the employer put into evidence claims for compensation going back to 1972, the compensation claim form completed by the worker in respect of injury to his neck and shoulder was not relied on by the employer.
The findings of the Arbitrator as to injury are in paragraphs [78-80] and [90-101]. The Arbitrator categorised the events of 15 and 16 April 1998 as being nothing more than indications of the beginning of a progressive condition caused by the type of work carried out by the worker. In his statement of 14 April 2005 the worker referred at [7] to jarring his neck on 15 and 16 April 1998. He then set out that he had returned to normal duties after returning from recreation leave and he then set out the nature of the work which he did. He recalled that in October 2002 he was required to perform a lot of fire-fighting tanker work as well as tree marking. He said he found that lifting the spray paint increased his neck and shoulder pain.
In cross-examination on 23 May 2005 the worker said that he had the neck problem since 1998 and attributed it to what he was doing in April 1998. It was clearly submitted by the employer on that occasion that the worker had not sustained a compensable injury to his neck in 1998. In the more recent arbitration hearing it was submitted on behalf of the employer that if it were accepted that it was a disease case then there was a notional date of injury which was the first period for incapacity, namely June 1998. At page 24 it was also submitted that there was no medical support pointing to an injury in April 1998. Rather, the history given to Dr Findlay refers to neck pain two weeks prior to 22 June 1998. At this time it was said the worker was on holidays which appears to be incorrect. The period of recreation leave to which it appears the employer was mistakenly referring was between 17 and 24 April 1998.
The argument of the employer as to injury appears to involve some illogicality. It is, as I understand it, that the fact that the worker relates the onset of symptoms to work performed in April 1998, which work related onset is denied, means that no claim may be made on any other basis. To put it more simply: the injury at work in April 1998 did not happen but was the sole cause of the worker’s complaints.
It is necessary in my opinion to look at all of the evidence, both lay and medical, in relation to the question of injury. It was Dr Graham who first expressed the opinion that the worker had suffered injury to his neck which was work related. His report is dated 27 August 2001 and is addressed to Mr Don Nicholson of State Forests of New South Wales. Dr Graham further expressed the view that the worker’s employment was a substantial contributing factor to his neck injury. Dr Graham did however consider that the worker had suffered an injury to the C6/7 disc in April 1998. He did not think that the injury was caused by a congenital degenerative condition. Although the employer’s solicitor at the earlier arbitration sought to admit the records of Dr Graham into evidence, it is notable that this report was not included in those records and the reliance on the report by the worker was resisted on the basis that no notice of this had been given. The report however was admitted on terms. There is no suggestion that the nature of the work being performed by the worker prior to the onset of symptoms in April 1998 was in any way exceptional or out of the ordinary for him.
I have already referred to the opinions of the various doctors in this matter at [34-35] and [43-47] above. It is not necessary to repeat those summaries here.
The Arbitrator was required to have regard to all of the evidence and did so. He found that there was injury being a disease contracted by a gradual process within the meaning of section 15 of the 1987 Act. The relevant part of section 4 of the 1987 Act, namely the definition of injury, is as follows:
“4.      In this Act –
injury –
(a)       means personal injury arising out of or in the course of employment;
(b)       includes –
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and
(ii)the aggravation, acceleration, exacerbation or deterioration of a disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration; and
(c)       …”
There was evidence supporting the conclusion of the Arbitrator as to this issue. Indeed the employer’s medical evidence was uniformly that the worker did not suffer from the effects of any specific injury but rather had degenerative disc disease in his neck. Dr Edwards went so far as to concede that there had been a work related aggravation which he thought had ceased. It is at least arguable that the Arbitrator ought to have found aggravation of disease (section 4(b)(ii) and section 16) rather than disease within section 4(b)(i) and section 15. However I do not think that this would affect the outcome in this case. I am not persuaded that the Arbitrator erred in characterising the worker’s injury as he did.

Substantial Contributing Factor

It is said that the Arbitrator erred in making a determination in relation to the “incident” of April 1998 that the worker’s employment was a substantial contributing factor to that injury and then proceeding to categorise the injury as a disease process. It is said that the Arbitrator failed to consider whether the employment was a substantial contributing factor to that disease process and failed to give adequate reasons in relation to this. Section 9A of the 1987 Act is in the following terms:
“(1)     No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2)       The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at or about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3)       A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)       This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”

The Arbitrator found at [87] of his Reasons for Determination that the work the worker was required to do, as to which there was no contest, would be likely to provoke the injury which he had received. Further, he accepted the evidence of Dr Graham in his report of 27 August 2001. The employer however points to the disparity between the factual basis for Dr Graham’s opinion and the finding made by the Arbitrator in this regard. The Arbitrator had found that the worker suffered an injury to his neck by virtue of nature and conditions of his employment. As noted earlier he was not satisfied that the events of 15-16 April 1998 were anything more than indications of the beginning of a progressive condition, being that the type of work carried out by the worker had caused the onset of a degenerative condition which necessitated surgery and which had caused incapacity since November 2002. Dr Graham had expressed the opinion that the worker suffered an injury to his C6/7 disc as a result of work on 15 April 1998 and the employment was a substantial contributing factor to that injury. However as I have earlier said there is nothing to indicate that the work in April 1998 was other than typical of the work which the worker regularly performed.
As was noted by Hodgson JA, with whom Santow JA and Stein AJA agreed, in McMahon v Lagana & Anor [2004] NSWCA 164 at [32]: “The ultimate decision [as to section 9A] is a finding of fact, and is a matter of impression and degree …”.
As Mason P, with whom Meagher and Beazley JJA agreed, in Mercer v ANZ Banking Group Ltd (2000) 20 NSWCCR 70 held (at 77):
“There may be more than one substantial contributing factor to a single injury. Section 9A(1) speaks of ‘a substantial contributing factor’ and not ‘the substantial contributing factor’.
The word ‘substantial’ qualifies a ‘contributing factor’, thereby indicating that it is the strength of the causal linkage that is in question.”
His Honour went on to say the following (at 82):
“It may be thought that this construction of s9A leaves a broad area within which the personal judgment of the individual judge as to what is ‘substantial’ may be determinative. So be it, if the legislation uses this language. In Tillmanns [Tillmanns Butchery Pty Ltd v Australasian Meat Industry Employees Union (1979) 42 FLR 331], Deane J pointed out (at 348):
The difficulties and uncertainties which the use of the word [‘substantial’] is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v Grinling [1948] AC 291 at 317 where, after holding that, in the context there under consideration, the meaning of the word was equivalent to ‘considerable, solid or big’, he said: ‘Applying the work [sic] in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case …’ ”.
Looking at the various matters enumerated in section 9A it was in my opinion clearly open to the Arbitrator to find that the worker’s employment was a substantial contributing factor to his injury. I am of opinion that this ground has not been made out.

Date of Injury

The employer submits that the Arbitrator erred in failing to fix the date of the relevant injury as May or June 1998 and in failing to exclude the worker from entitlement to compensation by reason of his failure to give notice of injury and make a claim for compensation within three years. On behalf of the worker submissions were made before the Arbitrator that there were a number of possible deemed dates of injury, namely 22 November 2002 when the worker was obliged to change the nature of his employment or February 2004 when he last worked or July 2001 when a claim for compensation was submitted to the employer. The Arbitrator considered that the relevant date of injury was either the date from which he claimed weekly compensation, namely 20 February 2004 or the notice of claim which was made on 11 November 2004. He ultimately chose the earlier date.

The relevant provision is section 15 of the 1987 Act and is as follows:
“15(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process –
(a) the injury shall, for the purposes of this Act, be deemed to have happened –
(i) at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury, …”
The Arbitrator relied on P&O Berkeley Challenge Pty Ltd v Alfonzo (2000) 49 NSWLR 481 (‘P&O’) in holding that the relevant date of injury was the time that the worker became entitled to weekly payments of compensation. In P&O the trial judge had reference to what was said by Sheller JA in GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 (‘GIO’) and held that incapacity, for the purpose of section 16, was a reference to incapacity for which compensation was claimed. The Court of Appeal in P&O held that the trial judge had not erred in so doing. The facts in that case were briefly that the employer had two insurers. The worker made complaints about symptoms in her arms and neck when the earlier insurer was on risk and was paid compensation. She did however work for three weeks in the period of the second insurer and again ceased work. The second insurer claimed unsuccessfully that it was not liable to pay compensation on the basis that her date of incapacity and injury was prior to its coming on risk.
In GIO there was again a dispute between two insurers as well as to the amount of death benefit payable. The facts which are summarised by Sheller JA at 194 are that the worker was diagnosed with a melanoma in December 1983. At that time he had some incapacity. The worker continued in employment until his death in August 1993. The later insurer submitted that the injury was deemed to have happened in December 1983 when there was first incapacity for work. The Court of Appeal held that the injury was deemed to have happened at the time of death, notwithstanding that there were earlier periods of incapacity resulting from the injury.
In my opinion the decisions in P&O and GIO and other authorities, including Grate Lace PtyLtd t/as Grate Lace Bricklaying Co v Theiss Watkins White ( Constructions) Pty Ltd (1995) 12 NSWCCR 365 are against the submissions urged by the employer. Apart from authority, it seems to me that to arbitrarily fix upon the date of first incapacity, namely, it would appear, June 1998, would not be correct for two reasons. Firstly the employer contends that whatever happened in 1998 was not work related because the worker made no contemporaneous complaint of it to his employer or doctor. However it appears to me that the deeming provision in section 15 as to date of injury can only have effect where the section has application, that is, where the injury is a disease which satisfies section 4 (b) (i) of the 1987 Act. This the employer denies. Secondly the worker returned to his normal duties and continued in them for some years. Thus the work-related disease process continued at least up to October 2002 when the employer was obliged to provide alternative duties. Whether those duties were also of the nature to which the disease was due has not been decided. Nonetheless, whether the appropriate date is October 2002 or 20 February 2004, I am unable to see that the outcome of the determination by the Arbitrator would have been different. I am not persuaded that the Arbitrator erred in finding a deemed date of injury of 20 February 2004.

Failure to make a claim or give notice of injury within three years of the date of injury

It is said that the Arbitrator failed to fix the date of the worker’s injury as May or June 1998. Thus, it was said, the claim not having been made until July 2001 it was precluded by the legislative provisions. The appropriate statutory provision depends on the date of injury. It is said that the appropriate statutory provision is either section 65 or section 261 of the 1998 Act. While both provisions are in very similar terms, the latter is in Chapter 7 Part 2 of the 1998 Act which commenced on 1 January 2002 and which applies only to injuries received after that date.
What has not been considered by the parties is that, if the relevant date of injury is May or June 1998, this was before the commencement of the 1998 Act. See, however, Schedule 6 Part 18A clause 2 of the 1987 Act. The statutory provisions are, in my view, virtually identical and nothing turns on which particular statutory provision is applicable. The Arbitrator found at [82] that the claim was made on 9 July 2001 when the worker first became aware that he had received an injury pursuant to section 261(6) of the 1998 Act. The employer submits that the worker did not rely on sub-section (6) as the evidence would not have supported the assertion that he first became aware of receiving an injury after the injury was received. That submission does appear to be correct at least so far as there being no explicit reference to it but it is by no means clear that the reason for this was other than by inadvertence. ‘Injury’ wherever used in the workers compensation legislation must, I think, be given the meaning ascribed to it in its definition in section 4 of the 1987 Act to which I have referred at [64]. It is clear that this was the meaning given to it by the Arbitrator. He noted at [66] that the worker relied on sub-section (6) that “the awareness of his injury has been related to a workers compensation claim was not made aware to him until his conversation with Dr Graham”. Later at [81] and [82] the Arbitrator said this:
“I find that the worker first became aware that he had received an injury in July 2001 when he consulted Dr Graham.
I therefore find the claim was made on 9 July 2001 when the injured worker first became aware that he had received an injury pursuant to section 261(6) of the 1998 Act, and supplied the WorkCover certificate of Dr Hall.”
At the first arbitration hearing the worker’s counsel relied at page 58 of the transcript on section 65(7) and (13) of the 1998 Act. He said that he made the same sort of submission in relation to sub-section (4) of section 261 of the 1998 Act. He also submitted that section 65(13) had application and that the failure to make a claim was occasioned by ignorance of the extent of injury. It was also submitted that, in accordance with that section, the injury resulted in serious and permanent disablement.
The relevant provisions of section 261 of the 1998 Act are as follows:
“261    Time within which claim for compensation must be made
(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 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.
… “
In this case it is common ground that the formal claim for compensation was not made until July 2001. As I have earlier said the employer has, for whatever reason, not put a copy of that claim form into evidence. The employer after writing to the worker, indicating that it was considering whether the claim should be accepted or not, evidently decided to accept the claim and make payments for compensation. The employer did, it appears to me, in accordance with section 261(5) “determine to accept [the] claim” although it was made more than three years after the injury, if one accepts that the only injury was that which occurred in the early part of 1998. No submission has been made regarding this and accordingly I express no concluded view.
It is clear that a claim for lump sum benefits was made by letter of 24 May 2004 and a claim for weekly payments of compensation was made on 11 November 2004. Weekly compensation had, as has been previously noted, been paid up to 3 October 2004. Thus there were two formal claims for weekly compensation, the first being in July 2001 and the second on 11 November 2004. There was no occasion to make a claim for weekly compensation prior to the cessation of payments on 3 October 2004 since they were being made. As I have earlier said, the Arbitrator found that the notional date of injury was 20 February 2004 being the date on which the worker ceased work. If I understand the employer’s submission correctly, it is claimed, that there was no claim made within time in respect of that deemed date of injury. I do not regard that submission as having any substance since, as I earlier said, payments of weekly compensation were continuing to be made under section 38 pursuant to the claim earlier lodged. In any event, there was a claim for lump sum payments made on 24 May 2004 and it seems to me that the worker would be entitled to rely on the provisions of section 261(3). The doctrine of waiver could probably be called in aid by the worker in relation to the acceptance of the claim by the employer following the claim in July 2001. No submissions directed to this issue have been put to me and I do not think it appropriate to deal with it, apart from mentioning its possible application. It is also clear to me that mistake on part of the worker as to there being a compensable injury would readily be established on the evidence before the Arbitrator, as would the fact that the injury had resulted in his serious and permanent disablement (section 261(4)(b)).
If I also understand the employer’s submissions correctly, it is contended that you cannot have a notice of injury given prior to a deemed date of injury. This would essentially require in disease cases a separate notice or claim to be given after each deemed date of injury. I do not think that the legislation requires such additional notice and claim and it is to be expected that in the application of the disease provisions in the workers compensation legislation there will occasionally be chronological anomalies.
For completeness sake, it should be noted that the employer also relies on the failure to give notice of injury to the employer. The relevant requirement is contained in section 254 of the 1998 Act which relevantly 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 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, 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 has 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)   In addition, if the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop, each of the following constitutes special circumstances:
(a)the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section,
(b)the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Occupational Health and Safety Act 2000,
(c)the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop.”
As I have said the Arbitrator found that the claim was made on 9 July 2001 when the worker became aware that he had received the injury under section 261(6) of the 1998 Act. I take it that he intended to refer to injury being deemed to have been received rather than a claim made. Following that date the worker made a claim later in July 2001 which constituted both notice and a claim for compensation. Given the finding as to injury on 20 February 2004, which I consider to be correct, this ground also fails.

Weekly payments of compensation

The Arbitrator found at [125] that the worker would be able to earn an amount of $15.00 per hour for a maximum of 25 hours per week in a part-time job doing suitable duties of a sedentary nature, perhaps working with a computer. The first part of the section 40 calculation was to ascertain the amount which the worker would probably have been earning but for injury which was $758.77 per week. The Arbitrator found that the amount which the worker would be able to earn in some suitable employment was $300.00 a week. The complaint is made by the employer that the second sum should have been in the amount of $375.00, being $15.00 per hour by 25 hours per week. This submission ignores the fact that the Arbitrator found that 25 hours per week was the maximum (my emphasis). The Arbitrator was in my view clearly entitled to accept the amount the worker was able to earn in suitable employment was $300.00 per week rather than $375.00. It is additionally submitted that the Arbitrator erred in failing to exercise his discretion to reduce the amount so found under section 40 having regard to the worker’s failure to seek suitable employment. It was submitted on behalf of the employer that the worker spent his time looking after his children rather than seeking work.

In my view there is no substance in this submission. The Arbitrator clearly considered whether he should exercise the discretion conferred by section 40 to reduce the amount found by subtracting $300.00 from $758.77 and declined to do so. In that I do not think he erred.

The worker has not, it must be said, made more than perfunctory attempts to obtain suitable employment. Having regard to the medical evidence, and in particular the opinion of the two doctors at HealthQuest, Professor Ehrlich and Mr Heal of Ada Maughan & Associates, it might reasonably be concluded that the worker’s attempts to find suitable employment in a place like Inverell were not likely to meet with success given his age, 55 years, at the date of arbitration hearing and the surgery which he has undergone. Nonetheless, the Arbitrator did find that the worker had an ability to earn and made the appropriate deduction from probable earnings in respect of that ability. On behalf of the employer it is submitted that there should be a further reduction from the difference so found because the worker was not looking for employment. I do not think that this follows by any means and to make a deduction pursuant to the discretion for the reason given would I think amount to penalising the worker and making a double-deduction which is not envisaged by the legislation. I am supported in my view as to this by what was said by the Court of Appeal ( Mason P, Beazley JA and Grove A-JA) in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 at 534 in relation to the exercise of the discretion contained in section 40:
“ The discretion is a broad one and it is proper to refrain from endeavouring to define its outer limits. Nevertheless it may be possible to identify a situation where a discretion has miscarried because of reference to an extraneous factor: see R v. Australian Broadcasting Tribunal; Ex parte 2HDPty Ltd (1979) 144 CLR 45 at 49. In our view this can be done here, not only because the reasoning discloses a punitive element, but because self-induced diminution of earning capacity lies squarely within the exercise required to be carried out at what we have identified as the second stage. The matters to which Egan A-CCJ referred go directly to the ‘worker’s ability to earn in the general labour market reasonably accessible to the worker’ and are therefore required (by section 40(3)(a)) to be taken into account in the section 40(2)(b) exercise. In consequence, there can be no justification for taking them into account in the additional discretionary phase.”
The authority relied on by the employer, namely State Rail Authority (NSW) v Vukovinski (2000) 20 NSWCCR 511 is not in my opinion to the point. In that matter there was a failure to engage in rehabilitation and an insistence by the worker that he was retired from employment. That case may readily be distinguished from the present case.

Interest

The worker seeks by additional submissions to claim interest on the arrears of compensation ordered. There is no appeal in relation to this nor was it claimed in the Application to Resolve a Dispute registered on 18 January 2005. So far as I can see, it was not raised in submissions before the Arbitrator and accordingly he did not deal with it. It is, in my view, inappropriate to make any order in respect of interest on the arrears of weekly compensation.

DECISION

For the reasons given above the decision of the Arbitrator dated 11 July 2006 is confirmed

COSTS

I see no reason why the appellant employer should not pay the costs of the respondent worker. Accordingly, I order the appellant employer to pay the costs of the appeal of the respondent worker.

Anthony Candy

Acting Deputy President
29 June 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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