Sunbuster Sportswear Pty Ltd v Way
[2006] NSWWCCPD 247
•28 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Sunbuster Sportswear Pty Ltd v Way [2006] NSWWCCPD 247
APPELLANT: Sunbuster Sportswear Pty Ltd
RESPONDENT: Helen Marlene Way
INSURERS:QBE Workers Compensation (NSW) Limited
Allianz Australia Workers Compensation (NSW) Limited
GIO General Limited
FILE NUMBER: WCC13895-05
DATE OF ARBITRATOR’S DECISION: 12 December 2005
DATE OF APPEAL DECISION: 28 September 2006
SUBJECT MATTER OF DECISION: Disease; sections 4(b)(ii) and 16 of the Workers Compensation Act 1987; deemed date of injury
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Mulcahy Lawyers (QBE)
Respondent: Trenches (Mrs Way); Ellisons Tillyard & Callanan (Allianz); No appearance (GIO)
ORDERS MADE ON APPEAL: The Arbitrator’s decision dated 12 December 2005 is revoked and the following orders made:
1. The matter is remitted to a different Arbitrator under section 352(7) to be redetermined in accordance with the reasons in this decision.
2. Costs of the first Arbitration are to follow the result of the second Arbitration.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 28 December 2005 Sunbuster Sportswear Pty Ltd (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 12 December 2005.
The Respondent to the Appeal is Helen Marlene Way (‘the Respondent Worker/Mrs Way’).
The Respondent Worker was born on 3 August 1948 and started work for the Appellant Employer on 12 August 1985 as a machinist. She continued to work for the company in various capacities until it ceased operating on or about 20 December 2001. Her work was repetitive and placed significant strain on her hand, wrists and arms.
In or about 1992 she developed pain in both her hands which progressively increased over the years. She was apparently placed on suitable duties for various periods between 1998 and July 2000.
Mrs Way made a claim for lump sum compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) in 2004 which resulted in a section 66A agreement being filed with the Commission on or about 9 March 2004. That agreement provided for the payment of compensation under section 66 in the sum of $18,125.00 in respect of 12.5% permanent loss of use of each arm below the elbow and the sum of $9,062.50 under section 67 for pain and suffering. The agreement notes the date of injury to be 1992.
On 18 August 2005 an Application to Resolve a Dispute (‘the Application’) was registered by Mrs Way in the Commission seeking weekly compensation as from April 1999 to date and continuing as a result of injury to her ‘upper limbs’ caused by “repetitive activities aggravating previously symptomatic degenerative change in [her] upper limbs” (Application Part 3). The Application nominated 1992 as the date of injury. The Reply filed on behalf of Allianz on 8 September 2005 puts injury and incapacity in issue. The Reply filed on behalf of QBE on 15 September 2005 states that it was not ‘on risk’ in 1992 and that it disputed “notice of injury, liability and quantum”.
The Application ultimately nominated three insurers:
· QBE Workers Compensation (NSW) Limited (‘QBE’) on risk from 30 June 2000 until 21 December 2002;
· Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’) on risk from 30 June 1997 until 30 June 2000, and
· GIO General Limited (‘GIO’) on risk from 30 June 1992 until 30 June 1997
The claim was listed for conciliation and arbitration in Lismore on 5 December 2005. The matter could not be successfully conciliated and proceeded to Arbitration. The Arbitrator delivered an ex tempore decision resulting in the Respondent Worker receiving an award of weekly compensation under section 40 at various rates from 12 April 1999 to date and continuing. The Arbitrator found QBE liable to pay the whole of the compensation ordered to be paid to the Respondent Worker.
Whilst the Appellant Employer is nominated as the appellant in this appeal, in reality the appellant is QBE which challenges the Arbitrator’s order that it pay the relevant weekly compensation. Submissions have been filed on behalf of Allianz but none have been filed on behalf of the GIO.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. So far as QBE is concerned, the whole of the award of compensation is at issue in the appeal and the threshold in section 352(2)(b) is also satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 12 December 2005, records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant weekly benefits compensation under s40 as follows:
· from 12.4.99-19.7.00 at the rate of $25.43 per week
· from 20.07.00-05.06.01 at the rate of $23.19 per week
· from 06.06.01-21.12.02 at the rate of $22.86 per week
· from 22.12.01-21.12.02 at the rate of $373.17 per week
· from 22.12.02-30.09.03 at the rate of $305.70 per week
· from 01.10.03-31.03.04 at the rate of $317.20 per week
· from 01.04.04-31.03.05 at the rate of $323.00 per week
· from 01.04.05-30.09.05 at the rate of $334.10 per week
· from 01.10.05-01.12.05 at the rate of $340.90 per week
· continuing thereafter at the maximum statutory rate
2.That the Respondent pay the Applicant’s costs as agreed or assessed.
3.That QBE Workers’ Compensation (NSW) Limited is liable to make the payments ordered above.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)ordering QBE to pay weekly compensation for a period well before it started to insure the Appellant Employer;
(b)ordering QBE to pay ongoing weekly compensation for an entitlement which arose before QBE started to insure the Appellant Employer;
(c)finding that the Respondent Worker was entitled to a higher rate of compensation as at 22 December 2001 when she ceased work due to the Appellant Employer ceasing to trade rather than as a result of any incapacity, and
(d)accepting as evidence comments made by Mrs Way during the conciliation stage of the proceedings.
THE EVIDENCE
The Respondent Worker provided a statement dated 12 December 2004 in which she set out a brief summary of her employment with the Respondent Employer. It is sufficient to note that all of the Respondent Worker’s jobs with the Appellant Employer were repetitive and required frequent use of her hands and arms. It is unclear precisely when her symptoms started but it seems it was in or about 1992. Her first claim for compensation appears to be have been made in about 1998 in respect of pain in her right wrist though her first medical certificate for her left thumb is dated 25 March 1996 with a further certificate for her left thumb dated 30 June 1997.
Mrs Way produced several medical certificates from her general practitioner, Dr Earner, declaring her to be fit for suitable duties for varying periods between May 1998 and July 2000. There are no further certificates until 12 November 2002 at which time she is declared fit for suitable duties until 12 February 2003. In a certificate dated 8 November 2004 she is declared unfit for work.
Exactly what duties the Respondent Worker performed in the period from April 1999 until she ceased work in December 2001 is unclear. It is also unclear whether her symptoms increased, decreased or stayed the same in this period. This is a significant gap in the evidence. Her statement merely notes that she was advised in April 1999 by Dr Earner to reduce her hours because of her hands, wrists and shoulders. As a result of that advice she states that she “sought permission to cut back to a 4 day week. I dropped to skill level 2, a considerable pay cut” (Respondent Worker’s statement, paragraph nine). At paragraph 10 of her statement she adds that “as the company’s financial position worsened we were required to do shift work hours being at a reduced rate of pay until Sunbuster ceased trading on 20 December 2001”. Medical histories suggest that the Respondent Worker performed “normal duties” and hours until December 2001, but they do not identify what those duties were or what impact, if any, they had on her symptoms.
The Respondent Worker’s main medical support is set out in the report of Dr Millar dated 19 August 2003. He records a history of Mrs Way performing repetitive duties with her hands and arms in different jobs for the Appellant Employer from 1985 until December 2001. He notes that she reduced her hours (to 35 per week) because of her symptoms but he does not record a date when that occurred. He also states that she saw Dr Gray, rheumatologist, in June 2000 who told her to relocate to a lighter occupation. This history seems inaccurate as the only report from Dr Gray is dated 14 May 2002. Dr Millar’s diagnosis was that Mrs Way had aggravated previously asymptomatic degenerative changes in her upper limbs as a result of her work activities with the Appellant Employer. He does not comment on Mrs Way’s symptoms in the period from 1999 to December 2001.
On behalf of Allianz Mrs Way has been examined by Dr MacMahon on two occasions. His first report is dated 24 April 2003. He records the Respondent Worker’s history of working as a machinist for the Appellant Employer for 17 years until December 2001 when the company ceased trading. He states that she worked full time until 2000 when she reduced her hours to 35 per week. He records that her last eight years of employment were as a die cutter as well as on other unidentified machines. Mrs Way complained to the doctor of generalised bilateral thumb pain and cramps for a number of years prior to the onset of her right wrist and forearm pains which she attributed to repetitive pressure work with both thumbs. He noted that she continued to do normal duties without any lost time until the company closed in December 2001. In his opinion Mrs Way has osteoarthritis in her hands and thumbs which is constitutional but it is possible that her employment “over a period of 17 years has aggravated her condition”.
In his second report of 25 November 2004 Dr MacMahon took a similar history to that outlined above but this time added a reference to her work on a steam press and a twenty-four head embroidery machine. He added that her duties “involved repetitive grip work and pressure work with the thumbs and fingers”. This time he states that she performed “essentially normal duties up until the company ceased trading”. He added that she performed “selected duties for periods of time” but does not identify those periods. He refers to Dr Earner advising her to reduce her hours in 2001 but she had to upgrade her hours and duties after this as the company was starting to fail. He refers to her seeing Dr Gray in 2001. Dr MacMahon’s diagnosis and conclusion is essentially the same as he expressed in his first report.
In neither of these reports does Dr MacMahon comment on Mrs Way’s symptoms in the period 1999 to December 2001. Nor does he say if he felt that her condition had been aggravated by her duties in that period.
Dr Douglas examined the Respondent Worker on behalf of the solicitors for QBE on 18 October 2005. He took a history of Mrs Way’s symptoms developing in her thumbs in 1993 when she operated a die cutter. They were “bad” when she worked in the steaming room and were painful in the embroidery room. In respect of her current symptoms Mrs Way complained to the doctor of constant pain in her fingers and wrists. Dr Douglas diagnosed Mrs Way with osteoarthritis in her hands which has been aggravated by her work with the Appellant Employer. In his opinion her employment was a substantial contributing factor to her current condition but he does not comment if the Respondent Worker had suffered an aggravation of her condition during QBE’s period of risk.
The Respondent Worker’s wage schedule alleges a loss of income from 12 April 1999 to date and continuing. There is no competing wage schedule from the Respondent Employer. The basis of the loss of income from 1999 is unclear. Parts of the evidence suggest that whilst the Respondent Worker had a period on ‘suitable duties’, those periods were short term only. This issue seems to have been discussed in the conciliation phase of the proceedings but there is no evidence in the transcript of the arbitration hearing properly dealing with it. The following exchange occurred at page six line 44:
“MR ANDERSON: For the record, can I just say that there’s factual premises relied upon in the submissions which are different to the applicant’s own evidence? She says that she almost straight away went back to 38 hours a week, and these submissions are based on the fact ‘that she never managed to get back to pre‑injury duties’.
ARBITRATOR: Just for that purpose, the record is that we had some discussion in the conciliation conference and the applicant advised that in 1999 she temporarily went back with reduced hours but that those hours were subsequently increased back to 38 hours.
APPLICANT: Yeah, there were times when I did do 35.5 hours, but, yeah, like, it was just ‑ yeah, we were working shift work, all sorts of things. Like, it was just ‑ yeah, I have all the pay slips here which will show you what hours I worked and when. So it might be best to have a look at those.
ARBITRATOR: But your evidence is that, yes, you did reduce [sic] hours in ‘99 but that those hours ‑‑
APPLICANT: Yeah.
ARBITRATOR: ‑‑ you were able to increase?
APPLICANT: They were cutting that down with, yeah, increases.
MR BULL: I think they were formally reduced hours and not compensated with money to do the extra hours. It was just all hands on deck to try and keep the business going.
APPLICANT: Mmm. Yes.
ARBITRATOR: Now I’m confused. Are you saying the hours were reduced ‑ is everybody taking reduced hours to help to keep the business going?
MR BULL: No. No, the applicant’s hours were reduced to 35 hours a week, and they were at that rate for some time, some period. But, as the company started to go under, the employer was requesting the workers to do more to help to try to keep the business going. So they were doing more hours, or the applicant did more hours, but didn’t get any more money for it. She didn’t get paid ‑‑
ARBITRATOR: Oh, yes.”
The difficulty I have with the above exchange is the reference to the ‘applicant’s own evidence’. The only evidence from the Respondent Worker before me is in her statement. It seems that certain discussions took place during the conciliation process. Those discussions are not evidence unless the parties reach agreement on certain facts at that stage and then express that agreement in writing or orally on the transcript once the Arbitration hearing starts. That did not happen in any useful way in this case and, as can be seen from the above exchange, there was confusion as to exactly what ‘the evidence’ was. There was no agreement in the present case. That being so, the basis on which the Respondent Worker claimed to be entitled to weekly compensation from 12 April 1999 remains unclear. If she returned to full time duties some time after April 1999 it would seem, without deciding this issue, there was no entitlement to weekly compensation for that period of full time work as her reduced wage was not the result of her injury but the result of the company having financial difficulty. Exactly when the Respondent Worker returned to full time duties is not known.
SUBMISSIONS AND FINDINGS
It is submitted on behalf of QBE that the Respondent Worker’s wage schedule was not served until 29 November 2001 and that the Appellant Employer did not have time to prepare a schedule in reply, “which was advised by all insurer’s representatives at the Arbitration on Monday 5 December 2005” (QBE’s submissions, page two paragraph three). Unfortunately, the transcript does not reveal if any objection was taken to the tender of the wage schedule and the submission by QBE does not assist me in deciding that question.
The next submission by QBE is equally as cryptic. It states that “while QBE does not take issue with the Applicant’s stated comparable earnings, QBE submits that the Applicant’s claim for the total comparable earnings from 21 December 2001 to date and continuing is not supported by any contemporaneous medical evidence and is contradicted by the Applicant’s demonstrated capacity to earn at the time” (QBE’s submissions, page two paragraph four). I presume that this submission is a challenge to the quantum of the section 40 award made by the Arbitrator on the ground that the Respondent Worker was working full time until the Appellant Employer closed down in December 2001. The Respondent Worker submits that this submission was never put to the Arbitrator. In the written submissions made by QBE before the Arbitrator, general submissions were made that did raise an issue as to the quantum of the Respondent Worker’s entitlement to weekly compensation, though not in terms that would have been of much assistance to the Arbitrator (see QBE’s submissions before the Arbitrator, paragraph five). In addition, Mr Anderson submitted on behalf of Allianz at page five line 24 that the general tenor of the medical evidence was that the Respondent Worker did have some residual earning capacity. The Arbitrator failed to address this issue in his reasons, seemly taking the view that since there was no evidence in the form of “a vocational assessment or other submissions” (transcript page one line 41) that quantum was not an issue. The quantum of compensation the Respondent Worker was entitled to receive clearly was an issue in the case as was made plan in the Replies referred to above. In the absence of a clear concession by the parties that quantum was not in issue and that an award could be made in the terms of the wage schedule, a consideration of the terms of section 40 was required.
Notwithstanding the limited assistance the Arbitrator was given on the section 40 he was bound to apply the principles set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) which requires that a five stage process be undertaken in order to determine a worker’s entitlements to an award under section 40. Those steps must be undertaken even if it is conceded that a worker has an entitlement to compensation under that section and even if the submissions by the parties do not properly address the issue. There was no agreement on the Respondent Worker’s entitlement under section 40 and, therefore, that was a matter to be determined by the Arbitrator in accordance with established authority. That was not done. The Arbitrator’s reasons refer to Dr Douglas’ evidence and then state at page 14 line five of the transcript:
“I am entitled to reply on Dr Douglas in terms of incapacity. It goes with the evidence given by the applicant and, therefore, the section 40 entitlement is as set out in the wages schedule.”
As noted in these reasons, exactly what evidence the Respondent Worker gave is unclear. The Arbitrator’s failure to apply the steps set out in Mitchell involves an error that must be corrected on appeal.
The next submissions by QBE are just as enigmatic, and unhelpful. They refer to the Respondent Worker being placed on suitable duties from April 1999 and remaining on those duties until her employment ceased in December 2001. That is, she was on the same suitable duties with QBE as she had been doing with Allianz and the change that occurred in December 2001 was “not relative to any change in the Applicant’s capacity or incapacity for work” (QBE’s submissions, page three paragraph nine). I presume the point being made is that there was no evidence of an aggravation in QBE’s period of risk. Allianz submits that the reduction in hours in 1999 was only temporary and that the Respondent Worker then returned to her usual hours. It also submits that the submissions made by QBE at the Arbitration were prepared “prior to the Arbitration and conflict with the Applicant’s accepted evidence that the duties she continued to perform up until 21 December 2001 aggravated, accelerated and/or exacerbated her condition” (Allianz submissions, paragraph three). As I have previously observed, the Respondent Worker did not give that evidence. If she made a statement to that effect in the conciliation phase of the proceedings it did not become part of the evidence in the Arbitration.
The Arbitrator found that the Respondent Worker’s injury was in the nature of an aggravation of a disease (transcript page 14 line 26) and that her employment substantially contributed to that aggravation (transcript page 14 line 28). Presumably this finding relates to the whole period of employment and not just the period covered by Allianz. Therefore, he found injury under section 4(b)(ii) of the 1987 Act though he refers to injury under section 16 of the 1987 Act.
The Arbitrator then turned to the dispute between Allianz and QBE as to which insurer was liable to satisfy any award. At page 14 line 51 he said:
“The argument from QBE is that it is the date of first economic loss, and there are authorities recited in the practice, that is, when did she first have an ability to claim a loss of income. My decision is that the deemed date of injury under section 16, given the evidence and given the continuing nature of the ongoing aggravation and the medical evidence is that it’s the date that the applicant ceased work with Sunbuster, but I’m more persuaded, in any event, that section 16(1)(b) is the relevant section to determine compensation.
My understanding and my view is that section 16(1)(b) determines who was liable to pay the compensation, and that must be the employer who last employed the worker or at the time of last employment, and that is even though it was the same employer, it’s the time of last employment, and that places that liability with the insurer who was then last on risk, and that is QBE.”
The Arbitrator then made the orders set out in paragraph [16] above. Those orders require QBE to pay compensation from 12 April 1999, a date when it was not on risk with the Appellant Employer. This involves an error. Compensation is payable when an injury has been sustained that gives rise to an entitlement to compensation (sections 9 and 4 of the 1987 Act). Section 16 does not create a liability to pay compensation but merely decides when the injury is deemed to have happened in order to determine which of two or more employers is liable to pay compensation. An insurer cannot be made liable for compensation in respect of an injury that occurred prior to it coming on risk.
The relevant parts of Section 16 of the 1987 Act provide:
“16 Aggravation etc of diseases—employer liable, date of injury etc
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(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, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
The evidence suggests that the Respondent Worker suffered an aggravation of the osteoarthritis (a disease) in her hands in 1999 and, as a result of that aggravation, changed her duties for a period though the exact period was not identified in the evidence. That change in duties allegedly resulted in a loss of income. Those facts support a finding of an ‘aggravation injury’ in 1999 in the nature of an aggravation of a disease (section 4(b)(ii)). Under section 16(1)(a) such an injury is deemed to have happened at the time of the Respondent Worker’s incapacity. The term ‘incapacity’ in section 16 has been held by the Court of Appeal to mean incapacity falling within the period that the worker becomes entitled to weekly payments of compensation (P & O Berkeley Challenge Pty Ltd v Alfonso (2000) 49 NSWLR 481 (‘Alfonso’)). That is, the injury is deemed to have happened at the time the Respondent Worker went onto reduced hours as a result of the aggravation. That occurred in April 1999. Section 16(1)(b) provides that compensation is payable by the employer that last employed the worker in employment that was a substantial contributing factor to the aggravation injury, that is, the 1999 injury. In this case the last employer was the Appellant Employer. Section 16 does not dictate that compensation for a 1999 injury should be paid by an insurer on risk after that date.
In other words, just because the disease provisions are invoked does not mean that it will automatically result in there being only one date of injury. The point is well illustrated in the unreported parts of Perry v Tanine Pty Ltd (1998) 16 NSWCCR 253. In that case the worker had been employed by several employers over many years. Judge Burke found that the worker suffered from carpal tunnel syndrome which he held to be a disease that had been contracted in the course of his employment with the first employer and aggravated by some, but not all, of his subsequent employers. For example, his Honour found, correctly in my view, that the worker had suffered an injury “by way of aggravation of the disease of right carpal tunnel syndrome” (‘aggravation injury’) in the employ of the third employer in the time between May 1986 and June 1986. That aggravation resulted in the need for surgical treatment and for time off work from 18 June 1986 to 14 September 1986. As a consequence of his Honour’s findings, compensation for that treatment and period of incapacity was payable by the third employer, not the last employer in the proceedings. Subsequently, the worker returned to work with different employers and suffered further injuries in the nature of aggravations to his disease of carpal tunnel syndrome. Compensation in respect of those aggravations was ordered to be paid by the employer/s that last employed the worker in employment that caused the particular aggravation injury. The employer that last employed the worker paid no weekly compensation because the aggravation injury with it was found not to have caused any economic loss. However, the last employer was liable to pay lump sum compensation under sections 66 and 67 of the 1987 Act. The worker’s weekly compensation was ordered to be paid by the second last employer because its aggravation injury had, on the evidence, resulted in a significant drop in earnings.
The same general principles are applicable in the present case. It appears that Mrs Way suffered an aggravation injury (section 4(b)(ii)) in 1999, suffered a loss of income as a result, and is entitled to be compensated accordingly. The liability for that aggravation injury falls on the insurer on risk at the time of that injury. The date of injury is determined, because it is an aggravation injury, by applying section 16(1)(a). In the present case the injury is deemed to have happened at the time the Respondent Worker was forced to reduce her hours as a result of her work aggravation to her osteoarthritis, that is, in April 1999. Compensation for that incapacity is payable by the insurer on risk at that time. However, that finding does not prevent a finding of a subsequent injury, either by way of aggravation or otherwise. This issue was not considered by the Arbitrator because he wrongly held that, since the disease provisions applied, there could only be one injury.
Therefore, the Arbitrator was in error in ordering QBE to pay compensation in respect of the 1999 aggravation injury. The whole issue of ‘injury’, ‘aggravation’, whether any aggravation during Allianz’s period has ceased and whether the Respondent Worker suffered a further aggravation injury in QBE’s period of risk has to be determined in a further hearing before another Arbitrator.
QBE also raises an issue that the Arbitrator relied on comments made by the Respondent Worker during the conciliation conference which were not formally admitted into evidence nor tested in cross examination (QBE submissions, page one paragraph four). At page 14 line 41 the Arbitrator referred to the Respondent Worker’s evidence that “whilst she reduced her hours in 1999 she was able to go back to the previous number of hours worked”. This is clearly a reference to the exchange noted at paragraph [26] above. It is alleged by QBE that those comments were only part of what was said during the conciliation stage. I am unable to decide this issue as there is no transcript of the conciliation stage. However, if the Respondent Worker wished to rely on comments made during the conciliation then an application should have been made to seek leave for her to give oral evidence. Had that been done the Appellant Employer’s representatives would have had the right to cross examine her. No application was made to give oral evidence. However, no objection was taken when the Arbitrator read out part of the Respondent Worker’s comments made during the conciliation stage. As I have already noted at [27] above, the Arbitrator’s attempt to read onto the record the Respondent Worker’s comments given during the conciliation only led to confusion. Nevertheless, his attempt was not objected to by any of the Appellant Employer’s representatives. As this matter must be redetermined because of other errors, it is not necessary for me to make a finding on this issue but it would be prudent for all parties to bear in mind that comments made in the conciliation stage are not part of the evidence in the Arbitrator hearing unless further specific steps are taken.
CONCLUSION
In these circumstances it is my view that all of the orders made by the Arbitrator must be set aside and the matter remitted to a different Arbitrator for it to be redetermined in accordance with the reasons set out in this decision.
DECISION
The Arbitrator’s decision dated 12 December 2005 are revoked and the following orders made:
1.The matter is remitted to a different Arbitrator under section 352(7) to be redetermined in accordance with the reasons in this decision.
2.Costs of the first Arbitration are to follow the result of the second Arbitration.
COSTS
No order as to costs of the appeal.
Bill Roche
Acting Deputy President
28 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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