Sydney Community College Inc v Mudie
[2014] NSWWCCPD 62
•2 October 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Sydney Community College Inc v Mudie [2014] NSWWCCPD 62 | ||
| APPELLANT: | Sydney Community College Inc | ||
| RESPONDENT: | Natalie Jannine Mudie | ||
| INSURER: | GIO General Ltd | ||
| FILE NUMBER: | A1-3480/13 | ||
| ARBITRATOR: | Ms D Moore | ||
| DATE OF ARBITRATOR’S DECISION: | 27 June 2014 | ||
| DATE OF APPEAL DECISION: | 2 October 2014 | ||
| SUBJECT MATTER OF DECISION: | Challenge to factual finding of injury; alleged failure to consider general practitioner’s clinical notes; relevance of absence of contemporaneous evidence of complaint of injury; issues not argued at the arbitration; application of the principles in University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 and Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111; failure to comply with Practice Direction No 6 | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | TurksLegal | |
| Respondent: | Firths – The Compensation Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. Leave to appeal is granted. 2. The Senior Arbitrator’s determination of 27 June 2014 is confirmed. 3. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed. | ||
INTRODUCTION
In this matter, the worker injured her knees and right shoulder when she fell in the course of her employment in May 2009. The issue on appeal is whether the Senior Arbitrator erred in finding that, in addition to those injuries, the worker also injured her left shoulder. For the reasons explained below, the Senior Arbitrator did not err and her decision is confirmed.
BACKGROUND
The respondent worker, Natalie Mudie, worked for the appellant employer, Sydney Community College Inc (the College), as a part-time singing tutor. In the course of her employment on 5 May 2009, she tripped while stepping over a keyboard cord and fell, sustaining injury.
Ms Mudie alleged that she injured her arms, shoulders, legs, knees and back. With regard to her left shoulder, which is the only part of the body with which the appeal is concerned, Ms Mudie’s case was that she injured that shoulder because she landed on her knees and then on her “outstretched” hands. Her medical evidence was that the fall caused a capsular shrinkage in her left shoulder (which was a pre-existing condition) to be stretched.
Ms Mudie claimed lump sum compensation in respect of a 20 per cent whole person impairment as a result of her injuries together with compensation for pain and suffering, plus $7,501 for hospital and medical expenses.
The College did not dispute that the fall occurred at work or that Ms Mudie injured her knees and her right shoulder. It disputed that she injured her back and left shoulder. Essentially, counsel for the College, Mr Hammond, argued that Ms Mudie had not suffered any injury to her left shoulder because her initial complaint (to her treating general practitioner, Dr Matthews) was only of the right shoulder and she only fell on that shoulder.
In an extempore decision delivered on 25 June 2014, the Senior Arbitrator found in Ms Mudie’s favour in respect of the injury to the left shoulder and in favour of the College in respect of the alleged injury to the lumbar spine (back). She remitted the matter to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of Ms Mudie’s whole person impairment as a result of the found injuries.
The Commission issued a Certificate of Determination on 27 June 2014 in the following terms:
“The determination of the Commission in this matter is as follows:
1.Award for the respondent in respect of the allegation of injury to the lumbar spine.
2.The permanent impairment dispute in respect of both lower extremities (knees) and both upper extremities (shoulders) resulting from injury on 5 May 2009 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment.
3.The respondent is to pay the applicant’s section 60 expenses in respect of the injuries to both upper and lower extremities.
4.The respondent is to pay the applicant’s costs as agreed or assessed. Certify a complexity uplift for both parties of 25%.”
The College has challenged the Senior Arbitrator’s finding that Ms Mudie injured her left shoulder.
PRELIMINARY MATTERS
Interlocutory
Though the Senior Arbitrator made findings on injury, she made no order for the payment of compensation but merely remitted the matter to the Registrar for referral to an AMS. As the Senior Arbitrator made no formal orders finally determining the parties’ rights, the orders made are interlocutory (Licul v Corney [1976] HCA 6; 180 CLR 213 at 443–4) and the College requires leave to appeal (s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)).
Counsel for Ms Mudie, Mr Bleasel, submitted that since the College has advanced no reasons why the Commission should grant leave to appeal the interlocutory decision, leave should be refused and the appeal dismissed.
In submissions filed in reply, the College’s solicitor, Mr Stern, submitted that leave is not required to appeal the decision regarding the finding of injury to the left upper extremity (Maricic v Medina Serviced Apartments Pty Ltd [2007] NSWWCCPD 196 (Maricic). This authority does not assist the College. In Maricic, the decision appealed against was a finding that the worker had sustained no injury to her neck and left shoulder. That was a final determination, just as the finding that Ms Mudie did not injure her back was a final determination.
However, the challenge in the present case is not to the finding relating to the back injury. It is against the finding the Ms Mudie injured her left shoulder. As no formal orders have been made in respect of that finding, because the matter must be assessed by an AMS, that finding has not finally determined the parties’ rights. Therefore, leave to appeal is required.
If leave to appeal is refused, the AMS will assess the body parts referred by the Senior Arbitrator, including the left upper extremity (left shoulder), and the Commission will make orders after that assessment. The College will then be entitled to appeal the interlocutory order made by the Senior Arbitrator in relation to the injury to the left shoulder.
If the College’s arguments on appeal are accepted, Ms Mudie will have no entitlement to lump sum compensation for the condition of her left shoulder and the AMS’s assessment of the whole person impairment (if any) resulting from the left shoulder injury will have been unnecessary. Thus, refusing leave to appeal will merely delay the resolution of the dispute about whether Ms Mudie injured her left shoulder and may result in an AMS conducting an unnecessary assessment of the left upper extremity.
As both parties have made detailed submissions on the issue, it is desirable for the proper and effective determination of the dispute that, before the matter proceeds further, the issue raised in the appeal, namely, whether Ms Mudie injured her left shoulder, is determined.
I grant leave to appeal.
Monetary threshold
As the Senior Arbitrator has made no order for the payment of lump sum compensation, whether the monetary thresholds in s 352(3) are satisfied depends on the amount of compensation particularised by Ms Mudie in her claim (Grimson v Integral Energy [2003] NSWWCCPD 29 at [30]). As the parties agree that the compensation claimed for the alleged left shoulder injury is in excess of $5,000, the thresholds in s 352(3) are satisfied. (I note that the second limb of the threshold (that at least 20 per cent of the amount awarded be “at issue” on appeal) does not apply where the Commission has made no award for the payment of compensation: Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5.)
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 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.
ISSUES IN DISPUTE
Though counsel appeared for the College at the arbitration, its solicitor, Mr Stern, has prepared the appeal papers. The issues in dispute have been identified as whether the Senior Arbitrator:
(a) erred in law by not giving adequate consideration to the clinical notes of Dr Matthews, and
(b) erred in determining that Ms Mudie injured her left shoulder.
However, in the body of Mr Stern’s submissions, he has alleged that the Senior Arbitrator erred in:
(a) finding that the evidence established that Ms Mudie suffered an injury to the left shoulder “irrespective of the lack of contemporaneous medical support or factual support for that finding”;
(b) not considering Ms Mudie’s failure to refer to a left shoulder injury in the claim form dated 9 June 2009;
(c) accepting that Ms Mudie “experienced a left shoulder injury on 5 May 2009”, in the absence of an explanation for the lack of complaint of such an injury in the claim form and Dr Matthews’ notes;
(d) failing to consider the report of Dr Matthews to Dr Sonnabend, Professor of Orthopaedic Surgery at Sydney University, dated 3 December 2009, which made no mention of injury to the left shoulder, and
(e) relying on the clinical notes of Dr Sonnabend for a history of injury, because Dr Sonnabend could only base his history on Ms Mudie’s report to him.
If it was intended to rely on these matters as discrete issues on appeal, they should have been properly identified as such, with submissions on each issue, as required by Practice Direction No 6. Yet again, the profession is reminded that documents filed in support of an appeal must comply with the Practice Direction. As the issues have been identified, and as Ms Mudie has responded to them, I will deal with them on their merits.
SUBMISSIONS
Mr Stern submitted that:
(a) the Senior Arbitrator’s failure to give adequate consideration to Dr Matthews’ clinical notes, which did not refer to a left shoulder injury, caused the College “serious and unfair prejudice”. The notes are “evidence that the injury to the left shoulder alleged to have occurred on 5 May 2009 did not occur” and the Senior Arbitrator failed to give “proper weight” to them “in considering whether the injury occurred”;
(b) the Senior Arbitrator erred in finding that Ms Mudie injured her left shoulder “irrespective of the lack of contemporaneous medical support or factual support for that finding”;
(c) the Senior Arbitrator erred in not considering Ms Mudie’s failure to refer to her left shoulder in the claim form dated 9 June 2009;
(d) if Ms Mudie suffered a “blow pushing the left arm upwards” she failed to explain why the left arm injury was not recorded in the claim form or the clinical notes from Dr Matthews. In the absence of an “adequate explanation”, the Senior Arbitrator erred in accepting that Ms Mudie “experienced a left shoulder injury on 5 May 2009”;
(e) the Senior Arbitrator did not consider the report from Dr Matthews to Dr Sonnabend dated 3 December 2009, which made no mention of injury to the left shoulder;
(f) the Senior Arbitrator erred in relying on the clinical notes of Dr Sonnabend for a history of injury, because Dr Sonnabend could only base his history on Ms Mudie’s report to him and his opinion could not “be shown to have been based on consideration of the evidence that the worker did not sustain the injury as alleged (ie Dr Sonnabend was not informed that the worker did not immediately complain of left shoulder symptoms after the fall)”. Thus, Dr Sonnabend’s opinion cannot be probative of the fact that the fall caused the laxity in the shoulder, and
(g) on the balance of probabilities Ms Mudie’s left shoulder symptoms are causally related to the motor vehicle accident in 1998, which have naturally deteriorated over time.
DISCUSSION AND FINDINGS
The College’s essential complaint on appeal is that the Senior Arbitrator erred in finding that Ms Mudie injured her left shoulder in circumstances where there was no complaint of left shoulder symptoms recorded by Dr Matthews, no contemporaneous evidence in support of that finding and in relying on Dr Sonnabend’s notes.
Dr Matthews’ evidence
It is not disputed that, initially, Dr Matthews took no history of injury to the left shoulder. However, the submission that the Senior Arbitrator failed to consider adequately Dr Matthews’ evidence is unsustainable.
The Senior Arbitrator expressly acknowledged (at T36.1) that Dr Matthews (only) recorded a history of a fall on Ms Mudie’s outstretched right arm resulting in injuries to her right shoulder and both knees. However, after stating that she was persuaded by Dr Sonnabend’s opinion, and noting the history recorded by WorkFocus Australia, which recorded that Ms Mudie “fell to the floor, landing on her hands and knees” (T44.3), which was consistent with the history taken by “every doctor”, except Dr Matthews, the Senior Arbitrator added, at T44.5:
“it is not explained how Dr Matthews came to that view, but it is well acknowledged that sometimes doctors don’t record everything and Dr Matthews’ opinion is probably consistent with [Ms Mudie’s] own evidence that she was more concerned about her right knee and her right shoulder initially, following the incident.”
The Senior Arbitrator’s statement was appropriate and disclosed no error. Her reference to it being well acknowledged that, sometimes, doctors do not record everything was a reference to established authority that inconsistencies between a claimant’s evidence and medical histories should be approached with caution (Mason v Demasi [2009] NSWCA 227 at [2]; Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34] to [36] and Kovacic v Henley Arch Pty Ltd [2009] VSCA 56 at [60]). The Senior Arbitrator adopted that approach and properly determined whether Ms Mudie had injured her left shoulder by reference to all of the evidence.
The submission that the Senior Arbitrator erred in not considering Dr Matthews’ report to Dr Sonnabend is without substance. At the arbitration, Mr Hammond made no submission about Dr Matthews’ report to Dr Sonnabend. In these circumstances, as Mr Bleasel submitted, it cannot be argued on appeal that the Senior Arbitrator erred in failing to consider an argument that was never put (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 at [22] and [30] (Bell)).
For the same reason, the submission that the Senior Arbitrator failed to give “proper weight” to Dr Matthews’ notes is also without substance. In his submissions at the arbitration, Mr Hammond never referred to Dr Matthews’ notes. He did, however, refer to Ms Mudie not complaining “originally of … left arm pain” (T32.28). The Senior Arbitrator considered that submission but did not consider it fatal to the claim. That conclusion was open to her and disclosed no error.
The submission that Dr Matthews’ notes are “evidence that the injury to the left shoulder” did not occur is incorrect. The notes are evidence that Dr Matthews did not initially record a history of injury to the left shoulder. That was not the end of the analysis. There was much other evidence on that issue, which the Senior Arbitrator considered, and which supported her conclusion.
Lack of contemporaneous evidence
The complaint that the Senior Arbitrator erred in not referring to the claim form, which did not refer to the left shoulder as having been injured in the fall, is also without substance. As Mr Hammond made no submission about the claim form, the Senior Arbitrator did not err in not referring to it (Bell at [22] and [30]). It added nothing to Mr Hammond’s general submission that there had been no initial complaint of left arm symptoms.
The observations by Samuels JA (Hope A-JA and Clarke JA agreeing) in Mifsud v Campbell (1991) 21 NSWLR 725 at 728 are relevant on this point. His Honour said that the extent of the duty to record the evidence given and the findings made depends on the circumstances of the case. His Honour added that it is plainly unnecessary for a judge (or, I would add, an Arbitrator) to refer to all the evidence led in proceedings or to indicate which of it is accepted or rejected.
In the present case, neither counsel referred to the claim form in their submissions. In a case where the parties filed over 800 pages of material, it is not open to argue on appeal that the Senior Arbitrator erred in failing to consider a particular piece of evidence to which neither counsel referred.
The submission that the Senior Arbitrator erred in finding in favour of Ms Mudie seems to be based on the erroneous assumption that a worker cannot succeed without contemporaneous evidence of his or her complaint. That is not correct. In the civil law, the task of a judge (or, I would add, Arbitrator) is to decide, based on the whole of the evidence (denials and all), what he or she accepts (Chanaa v Zarour [2011] NSWCA 199 at [86]). Considering the evidence on which the parties addressed, and the issues argued, the Senior Arbitrator accepted Ms Mudie’s evidence.
The absence of an explanation for Ms Mudie’s left shoulder symptoms in the claim form, or in Dr Matthews’ notes, is not fatal to the claim and does not establish error by the Senior Arbitrator. Moreover, Mr Hammond made no submission along the lines now pressed on appeal. As the Commission has held in numerous decisions, parties are bound by the conduct of their case at the arbitration and it is only in the most exceptional circumstances that they will be permitted to raise a new argument on appeal which they failed to put during the hearing (University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483 (Metwally)).
Had Mr Hammond argued the point now raised by Mr Stern, Mr Bleasel may well have sought to call further evidence. In any event, the Senior Arbitrator touched on the issue when she observed, as noted at [26] above, that it is well acknowledged that sometimes doctors do not record everything and Dr Matthews’ opinion was probably consistent with Ms Mudie’s own evidence that she was more concerned about her right knee and her right shoulder. This observation was consistent with the evidence and disclosed no error.
Dr Sonnabend’s evidence
The submission that the Senior Arbitrator erred in relying on Dr Sonnabend’s “clinical notes” for a “history of injury” was, presumably, a reference to her relying on that doctor’s reports. I do not accept that submission.
Dr Sonnabend treated Ms Mudie in December 2000 with a left shoulder capsular shrinkage. That treatment was required for multi-directional instability due to an injury to the left shoulder caused in a 1998 motor vehicle accident. He reported on 20 May 2011 that Ms Mudie “did well” following that procedure until her work injury of May 2009, “when she fell on both arms”. He added:
“The right shoulder problem predominated after than [sic], but following surgery in February last year, and subsequent physiotherapy, the right shoulder is now comfortable. The left shoulder however has continued to trouble [Ms Mudie] and if anything is becoming more uncomfortable with activity.
On examination today, the previous minor restriction in range which resulted from the capsular shrinkage has ‘evaporated’. The left shoulder has a full range of glenohumeral movement, with some discomfort at the extremes in all directions. Most importantly, there is a positive Sulcus sign indicating inferior instability and detectable posterior subluxation on combined flexion adduction [and] internal rotation. This implies posterior instability. There is little to suggest recurrent anterior instability.
My impression is that [Ms Mudie’s] capsular shrinkage has been stretched by her fall of 2009.”
The Senior Arbitrator referred to this evidence from Dr Sonnabend in detail (from T36.10) and also, at T37.1, to his report of 29 November 2011, where he said:
“To the best of my knowledge Ms Mudie’s left shoulder was comfortable and functional thereafter until the 2009 episode.” (The reference to “thereafter” was a reference to the period after the surgery in 2000.)
The doctor added:
“I believe however that without the injury of 2009, Ms Mudie may well have continued for the rest of her life without the need for any further left shoulder intervention. That is, the injury of 2009 was also a substantial contributing factor to the current left shoulder condition.” (emphasis included in original)
In a report of 3 August 2012, Dr Sonnabend essentially repeated his opinions, adding that, at the very least, it was reasonable to assume that the injury of May 2009 accelerated the recurrence of the left shoulder instability.
The Senior Arbitrator acknowledged that Dr Sonnabend’s history was that Ms Mudie fell on both her outstretched arms. She then referred to Ms Mudie’s evidence (at T38.9) that:
“My students had moved some tables and had accidentally blocked me in and I went to step over a keyboard cord and my foot clipped it and I went flying forward and propelled on to the ground on to both knees and then on to my palms of my hands, which were outstretched. I was in shock immediately after the fall. I noticed pain but I was feeling embarrassed but was more concerned about my class. The major pain was coming from my right knee and I felt sore, numb and in shock.” (emphasis added)
Ms Mudie added that, after referring to having seen a chiropractor:
“I clearly remember landing on both knees and injuring both knees and both my outstretched arms as I was reaching for a chair.” (emphasis added)
The Senior Arbitrator correctly noted that the history of the work accident recorded by Dr Sonnabend was consistent with the history recorded by Dr Machart, orthopaedic surgeon qualified for the insurer in 2014, and Professor Ehrlich, specialist qualified by the insurer in 2013. (Why, in apparent breach of the Workers Compensation Commission Regulation 2010, the College was permitted to rely on evidence from more than one qualified specialist has not been explained and is not an issue on appeal.) It was also consistent, as the Senior Arbitrator noted, with the history recorded by Dr Bodel, orthopaedic surgeon qualified by Ms Mudie’s solicitors.
The Senior Arbitrator then said that, on all the evidence, she was not persuaded that Ms Mudie injured her back on 5 May 2009. One of her reasons for reaching that conclusion was that there was insufficient contemporaneous evidence from the treating doctors, which she regarded as particularly significant. However, acknowledging that there was very little contemporaneous material in relation to the left shoulder, the Senior Arbitrator reached a different conclusion with respect to that injury as she was entitled to do.
The submission that Dr Sonnabend’s opinion cannot be probative of the fact that the fall caused laxity in the left shoulder has overlooked the evidence considered and accepted by the Senior Arbitrator. She accepted Dr Sonnabend’s conclusion, and found that Ms Mudie did injure her left shoulder, because:
(a) Dr Sonnabend’s history of “the nature of the mechanics of the fall” (T42.29) was consistent with Ms Mudie’s evidence (which the Senior Arbitrator clearly, though implicitly, accepted) that she landed on her knees and both her “outstretched arms”;
(b) Dr Sonnabend’s history was consistent with the histories recorded by Drs Machart, Ehrlich and Bodel;
(c) Dr Sonnabend had seen Ms Mudie over a “period of time and was aware of the past history” (T43.32);
(d) Ms Mudie had mentioned left shoulder pain to her physiotherapist in June 2009 (T42.13) and to her chiropractor in December 2009 (T42.18);
(e) the history recorded in the WorkFocus Australia report dated 14 July 2010 “also referred to [Ms Mudie] injuring her knees and both shoulders in May 2009” (T44.1), which was consistent with every doctor, except Dr Matthews;
(f) Dr Matthews’ evidence (about the initial lack of complaint of left shoulder symptoms) was “probably consistent with [Ms Mudie’s] own evidence that she was more concerned about her right knee and her right shoulder initially, following the incident” (T44.9);
(g) Dr Matthews’ evidence in her report of 23 November 2011 was that Dr Sonnabend had stated that the changes in the left shoulder were the result of the fall (in May 2009), but, from her documentation, she was “unable to state whether the left shoulder pain and need for surgery is [sic] directly related to the fall”. In other words, as the Senior Arbitrator said, Dr Matthews was “unable to confirm or deny [the allegation]” (T44.30), and
(h) there is “sufficient documentation to accept that [Ms Mudie] injured her left shoulder” (T44.31).
Mr Stern’s submission that Dr Sonnabend’s opinion cannot be shown to have been based on a consideration of the evidence that Ms Mudie did not sustain the injury as alleged (that is, Dr Sonnabend was not informed that Ms Mudie did not immediately complain of left shoulder symptoms after the fall) involves two points. The first point is based on a false assumption that, because Ms Mudie did not initially complain of left shoulder symptoms to Dr Matthews, she did not injure that shoulder in the fall. The failure of Dr Matthews to record a complaint of left shoulder pain was a relevant matter, which the Senior Arbitrator carefully considered. However, weighing that matter against the other evidence, she did not consider it decisive. That disclosed no error.
The second point seems to suggest that Dr Sonnabend’s evidence should not have been accepted because he did not have the benefit of Dr Matthews’ notes. Mr Hammond made no submission along those lines at the arbitration. He submitted that for the Senior Arbitrator to accept Dr Sonnabend’s opinion, she needed to accept Ms Mudie’s “description of the mechanism of injury, being that she fell on both hands rather than, rather than one hand” (T31.20). As explained above, for reasons given, the Senior Arbitrator did accept Ms Mudie’s evidence as to the mechanism of injury and it was open to her to do so.
The motor vehicle accident
The submission that Ms Mudie’s left shoulder symptoms are causally related to the 1998 motor vehicle accident Ms Mudie was involved in is unsustainable and is rejected.
First, Mr Hammond made no such submission at the arbitration. Had this issue been argued, Mr Bleasel may well have sought to call further evidence on it. It is therefore not a matter that can be raised for the first time on appeal (Metwally).
Second, and perhaps more importantly, the argument is unsupported by any reference to the evidence. It seems that Mr Stern is of the view that it is open to make any submission at all, regardless of whether there is any evidence to support it. That is most unsatisfactory and demonstrates a fundamental ignorance of proceedings in the Commission.
OTHER MATTERS
This case graphically illustrates, yet again, the counterproductive and unhelpful practice of having counsel conduct the arbitration and having an inexperienced solicitor conduct the appeal. It is appropriate to repeat what I said in Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1 at [80]:
“The Commission has recently delivered several decisions where it has expressed surprise at the now common practice of briefing counsel at the arbitration but not on the appeal. The Council adopted that practice in this matter. As I have observed in previous cases, that practice is counterproductive and does not advance the interests of the party concerned (NSW Department of Education and Communities v Murray [2012] NSWWCCPD 76; Nolan v Department of Education & Training [2012] NSWWCCPD 74; Krstevska v Fast & Fluid Management Australia Pty Ltd [2012] NSWWCCPD 69). Those observations are applicable in this matter.”
The practice of having appeals conducted by inexperienced solicitors is unsatisfactory. Mr Stern’s submissions were, on several issues, without substance and, on others, made with a total disregard for the evidence and the Senior Arbitrator’s reasons. That does not promote the efficient resolution of appeals and, more importantly, does not advance the interests of the parties involved. The repeated attempts by solicitors to conduct appeals on issues that were not argued before the Arbitrator is unacceptable. Moreover, the consistent failure to comply with Practice Direction No 6 is deplorable and will not be tolerated.
CONCLUSION
For the reasons stated above, the Senior Arbitrator’s conclusion was open to her. She properly determined the case on the issues argued before her. Her approach and conclusion disclosed no error.
DECISION
Leave to appeal is granted.
The Senior Arbitrator’s determination of 27 June 2014 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Deputy President
2 October 2014
I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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