Symbion Health Limited v Thomas - [2010] NSWWCCPD 16

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Symbion Health Limited v Thomas [2010] NSWWCCPD 16
APPELLANT:		Symbion Health Limited
RESPONDENT:		Maxwell Joseph Thomas
INSURER:		Self Insurer
FILE NUMBER:		A1-4706/09
ARBITRATOR:	Mr J McGruther
DATE OF ARBITRATOR’S DECISION:		14 October 2009
DATE OF APPEAL DECISION:		19 February 2010
SUBJECT MATTER OF DECISION:		Claim for lump sum benefits; refusal to admit late section 74 Notice and issue directions; procedural fairness; section 9A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:	Leigh Virtue & Associates
Respondent:		Turner Freeman
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 14 October 2009 is confirmed.
The Appellant is to pay the Respondent’s costs of the appeal.

BACKGROUND TO THE APPEAL

This appeal, brought by Symbion Health Limited (formerly Mayne Group Limited) (‘the Appellant’) focuses principally on the conduct of the arbitration hearing, and the issue of procedural fairness.

Mr Thomas (‘the Respondent’) who is presently 71 years old, claimed that during the course of his employment with the Appellant as a truck driver between 1986 and 1996 he was exposed to sunlight as a consequence of which he developed skin cancer. In February 1996 he suffered an injury in a fall at work, and ceased work after that.

On 2 June 2008 Mr Thomas’ solicitor wrote to the Appellant formally making a claim for lump sum compensation and medical expenses. No reply was received.

On 14 August 2008 Medicare wrote to the Appellant advising of benefits it had paid and seeking reimbursement of $2,156.45 paid on behalf of Mr Thomas.

Mr Thomas’ solicitor contacted WorkCover’s Claims Assistance Service (CAS). By letter dated 2 September 2008 CAS advised that it had contacted the Appellant requesting a response to the claim and were advised that “the claim/correspondence has not been received.” CAS advised a post box address and suggested that contact be made with Ms Karen Day, the Appellant’s claims manager.

On 9 October 2008 Mr Thomas’ solicitor wrote to Ms Day in the following terms:

“We refer to the above matter and your request for any document that confirms our client’s employment with you.
We enclose Form 1 – 1996 Eligible Termination Payment Worksheet File provided to us by Mr Thomas confirming he was employed by Mayne Nickless Limited trading as IPEC Road.
We advise that our client has never been known by any other name.
This is the only document our client is in possession of that confirms his employment with that entity.
We now look forward to a determination of our client’s claim as a matter of urgency.”

No reply was received.

On 14 January 2009, Mr Thomas’ solicitor again wrote to Ms Day as follows:

“Further to a letter received from WorkCover NSW dated 17 November 2008, a copy of which is enclosed for your perusal, we enclose the following correspondence:
1.Letter from TOLL Pty Ltd dated 20 March 2008;
2.Letter of Claim to Symbion Health Ltd dated 2 June 2008, together with annexures;
3.Letter to Symbion Health Ltd providing proof of employment dated 9 October 2008.

We request your urgent reply to the matters raised in this correspondence.”

No reply was received.

On 18 February 2009 CAS again wrote to Mr Thomas’ solicitor advising:

“We refer to your recent contact with [CAS].
We have contacted the Insurer on your behalf and requested that they provide a response to your enquiry regarding Section 60 and Section 66/67 entitlements.
A response was not received from the Insurer within the requested time frame.”

By an ‘Application to Resolve a Dispute’ (‘the Application’) registered in the Commission on 18 June 2009 Mr Thomas sought lump sum benefits only. His Application pleaded a “failure to determine” by the Appellant on page two, and also added a CAS reference number.

An ‘Application to Admit Late Documents’ being the Appellant’s Reply was registered in the Commission on 28 July 2009. In Part 3 of the Reply, under the heading “Matters in Dispute,” the Appellant denied that there had been a failure to determine the dispute stating as follows:

“No failure to determine because claim and particulars has [sic] not been provided but for avoidance of doubt the Respondent seeks to raise the following issues:
1. Employment
2. Insurance.
3. Injury.
4. Substantial Contributing Factor.
5. Failure to give Notice and to Claim Compensation within time.
6. Impairment, quantum and deductable [sic] proportion.”
The only documents relied upon by the Appellant and attached to the Reply were two reports from Mr Thomas’ qualified specialist, Dr Lobell which were included in his Application. (I will refer to the details of these reports more fully below). It appears that a section 74 Notice, also dated 28 July 2009, was sent to Mr Thomas’ solicitor under cover of a letter dated 3 August 2009. There was no evidence that it had been served on Mr Thomas prior to that, and it was not included in the Reply.

Following a Teleconference on 17 August 2009 the Arbitrator issued a Direction. Given the nature of the issues on appeal, it is appropriate to reproduce this Direction in full. It is as follows:

“1. The Application of the Respondent to admit the Reply as a Late Document in the proceedings is accepted subject to the specific reservations in the Directions following.
2. Liberty is granted to the Respondent to issue Directions for Production upon:
(a)Dr Harpaul Singh - for clinical notes and records.
(b)Dr R Gillespie - for clinical notes and records.
(c)Toll Pty Limited – for employee records.

3.   The preceding Direction is also subject to the specific qualifying Directions further following.
4.   Access is granted to both parties to any material arising from the aforesaid Directions. Subject to the qualifying Directions following, any material arising there from upon which either party intends to rely in the proceedings is to be filed and served within thirty-five (35) days. The admissibility of any such material into evidence in the proceedings is reserved.
5.   The allowance or otherwise of the Respondent to raise the Issues listed in Part 3 of the filed Reply is reserved.
6.   These Directions specifically note that at the time of the teleconference:

a.The representative (Mr Macken) for the Respondent, indicated that he had no instructions as to whether or not a s.74 Notice had issued from the Respondent and was uncertain as to whether this Respondent had been served with this ARD.
b.That the Applicant’s representative Ms Allen indicated that she held a Respondent letter containing a reference to “s.74 Notice” dated 28 July 2009 and as received by her on 3 August 2009. It is noted that the date of this “s.74 Notice” coincides with the date of the signature of the Reply, namely 28 July 2009.
c.Consequent upon the above position the following further qualifying and specific Directions are made in these proceedings.

7.   The aforesaid contended “s.74 Notice” of the Respondent bearing a date 28 July 2009 as served on the Applicant on 3 August 2009 (and against the background of the ARD having been filed on 18 June 2009) is reserved as to its admissibility in contending any liability issues in the proceedings. In this regard it is noted that the Reply (as a Late Document as above) did not attach this contended Respondent “s.74 Notice”.
8.   Liberty is not granted to the Respondent to raise any further or additional liability or other Issues by way of Response nor have liberty to issue any further contended “s.74 Notice”.
9.   The proceedings are scheduled for Conciliation/Arbitration at WCC Newcastle for 10.00am, 9 October 2009.”

A further teleconference was scheduled for 25 August 2009. Following that, the hearing date was confirmed. It appears that no other applications or directions were made following that teleconference.

The parties attended the hearing on that day. No oral evidence was given. Following a short adjournment at the conclusion of submissions by the parties, the Arbitrator delivered an Ex Tempore decision recorded in a transcript of that date. He found in favour of Mr Thomas.

The Certificate of Determination dated 14 October 2009 records the following formal orders:

1.    “That the Applicant did suffer an injury, namely a skin cancer injury as pleaded in Part 4 of the Application to Resolve a Dispute (‘ARD’) with a deemed date of injury of 2 June 2008 including pursuant to sections 4, 9, 9A and 16 of the 1987 Act.
2.    The Respondent employer is correctly the Respondent here pleaded, namely Symbion Health Limited.
3.    The Applicant has a compensable injury for the purposes of his claim made under section 66 of the Act.
4.    That that claim is to be referred under delegation of the Registrar to an Approved Medical Specialist (‘AMS’) on the following basis:
(a)Date of injury: 2 June 2008 (deemed date of injury).
(b)Body part: Skin.
(c)Assessment on Whole Person Impairment (‘WPI’) basis.
(d)There is no material excluded from either the ARD or the Reply, or from the Late materials., from referral to AMS except for the Respondent letter to Turner Freeman of 28 July 2009 (contended as a Section 74 Notice), but not admitted into the proceedings for the reasons given, is to be excluded from such referral.

5. The claim under section 67 of the Act is reserved pending the AMS outcome as above.
6. The Respondent is to pay the Applicant’s costs as agreed or assessed.”

During the course of the proceedings, other relevant orders made by the Arbitrator included:

a. Denying the Appellant an adjournment for the purposes of issuing further Directions for the production of documents, namely from the Compensation Court and “Two other insurers…to whom the applicant has made claims…” [T2].
b. Refusing to accept the section 74 Notice into the proceedings [T25].

Details of the Appellant’s application and the contents of the section 74 Notice will be considered more fully below.

It is from this decision that the Appellant seeks leave to appeal.

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. The amount at issue on appeal satisfies the threshold requirements of section 352(2).

Leave to appeal is granted.

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.”

The Appellant submits that it is “of the view” that this matter should be given an oral hearing because the appeal “involves complex issues which would benefit from such an Oral Hearing.” The Appellant noted that, at the time of filing the appeal, no transcript had been received. The transcript was forwarded to the parties on 24 November 2009, and further submissions were invited.

In detailed further submissions filed in the Commission on 22 December 2009, the Appellant repeated its “view” that the matter would be “more properly dealt with by the appointment of an oral hearing.”

Mr Thomas submits that the matter is capable of being determined “on the papers.”

The Appellant does not seek to rely on any fresh or additional evidence.

The issues in dispute between the parties are not in my view complex. The appeal focuses on two principal issues, namely the issue of procedural fairness during the conduct of the arbitration and the impact of section 9A of the 1987 Act. These issues are extensively addressed by the Appellant in its submissions, and indeed by Mr Thomas in his ‘Notice of Opposition to Appeal.’

As the Court of Appeal observed in Fletcher International Exports Pty Ltd v Barrow & Anor [2007] NSWCA 244 at [94], [96] and [98] (Barrow):

“Under the section, the power is enlivened if the Commission ‘is satisfied that sufficient information has been supplied’....
…the employer…knew that it was at least “on the cards” that the Commission might proceed on the papers. The employer sought to persuade the Commission otherwise but, on the evidence before us, it had no entitlement to presume a favourable response to the views it somewhat presumptuously expressed through its solicitors.
The submissions that the Presidential member was in some way obliged to ‘seek clarification of the way in which the Appellant contended its submissions were relevant’ (Ground 6(c)) seeks to impose a duty on which the statute is silent. Procedural fairness does not require this of a decision-maker: a reasonable opportunity to advance arguments is all that is required in a context where the issues are known or (as here) formulated by the party in question.”

Having carefully read the transcript, all the material before the Arbitrator and the submissions on appeal, I am satisfied that I have sufficient information within the meaning of section 354(6) and in accordance with Practice Directions Numbers 1 and 6, to proceed ‘on the papers’ and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

As I have said, the issues in dispute in the appeal are essentially twofold, but the Appellant has identified four grounds of appeal as follows:

“a.   The Arbitrator erred in denying procedural fairness to the Appellant in declining to grant leave to issue Directions requiring production of documents and erred in considering the application for leave to issue such Directions by reference to a test of ‘the most exceptional basis.’
b.   The Arbitrator erred in failing to properly consider and assess the evidence particularly so far as it related to the issue of ‘substantial contributing factor’ and failed to properly consider and determine that issue.
c.   The Arbitrator failed to have proper regard to the issues in dispute under the section 74 Notice issued despite the parties proceeding on the basis of the addressing of those issues and despite not having given the Appellant the opportunity of addressing any purported deficiency in the section 74 Notice and, if necessary, any requirements for application under section 289A of the [1998] Act.
d.   The Arbitrator erred in, in effect, reversing the onus relevant to the issue of substantial contributing factor, as evident, for example, from the Arbitrator’s suggestion (as recalled by the Appellant) that the ‘commentary’ in the report of Dr Lobell of 1 April 2008 ‘does not exclude in statutory terms 9A’ (similar comments also being made in respect of other reports).”

THE SUBMISSIONS AND DISCUSSION

The ‘Procedural Fairness’ Issue

The Appellant submits that it was denied procedural fairness when the Arbitrator declined permission for leave to issue Directions to two insurers, Prudential Corporation Australia Ltd (Prudential) and Accident Insurance Mutual Holdings Ltd (AIM) and to the Compensation Court.

The clinical notes of Dr Singh and Dr Gillespie (produced following the Arbitrator’s Direction of 17 August 2009) were attached to an ‘Application to Admit Late Documents’ filed by Mr Thomas on 2 October 2009 and admitted into the proceedings.

Included in those documents were a letter from Prudential to Dr Singh dated 6 March 1997. Mr Thomas had submitted a claim for “Total Permanent Disablement” benefits under the TWU Superannuation Fund. The letter sought a report from Dr Singh as to the nature and extent of his disabilities. In a report dated 10 March 1997, Dr Singh noted that Mr Thomas suffered from “a variety of medical problems” which he set out as follows:

“1. Urinary flow obstruction due to a bladder bar obstruction first treated by surgery in 1983, and now has recurrent symptoms but controlled by…medication…
2. Hypertension since 1995…
3. A few solar keratosis on the face treated by surgical excision and cryotherapy.

4. Anxiety since 1992, at first related to his work and then later aggravated by his experience of coming out of anaesthesia while undergoing a hernia operation before the operation was completed in 1992…

5. Left indirect inguinal hernia operated on in 1992.
6. Locomotor system disabilities-
a. Axial skeleton – 1. lumbo-sacral spine…
2. symptoms of cervical disc degeneration…

b. Osteoarthritis of the right hip since 1985…
c. Osteoarthritis of the right acromio-clavicular and gleno-humeral joint and a large tear of the rotator cuff of the right shoulder. This occurred following his fall at work in 1996.

Mr Thomas’ main disabilities are related to his locomotor system…Because of those disabilities I do not think he will be able to do any truck driving or any other occupation. In my opinion Mr Thomas is totally and permanently disabled.”

A document headed “Members Medical” signed by Mr Thomas on 13 February 1997 was also included. His “disability” he described as:

“Aggravation to degenerative lumbar and cervical spine, full rotor [sic] cuff tear RH shoulder, severe continuing headaches, lower back pain and aggravation of panic attacks. (Fall onto back from rear of truck).”

He made no mention of his skin condition.

A similar letter was sent by AIM to Dr Singh on 17 April 1996. Mr Thomas had made a “claim” on that insurer who sought details of his condition from Dr Singh. In a report dated 23 May 1996 addressed to “C. Haslam, Claims Department, AIM Insurance” Dr Singh said:

“Mr Thomas was seen on 16/2/1996 when he said that while at work on 8/2/1996 he was stepping out from the back of his truck he missed a step and fell onto his right buttock. He then felt pain in the right gluteal area, right shoulder and also pain and stiffness in his neck…”

Dr Singh continued to describe his injuries and symptoms and noted that his “past health” included degeneration of the lumbar and cervical spines, osteoarthritis of the right hip and symptoms of right shoulder supraspinatus tendonitis in December 1984. No mention was made of his skin condition.

Similar observations were made in a subsequent report to AIM dated 8 July 1996. Again, no mention was made of any skin condition. Dr Singh considered that Mr Thomas remained unfit for work.

Mayne Nickless Limited (Mayne) wrote to Dr Singh on 28 June 1996 noting that Mr Thomas sustained “an injury to his back, hip, shoulder, neck, hands, left leg, head on 8 February 1996 whilst unloading freight.” Mayne also sought details of his condition and treatment from Dr Singh. Dr Singh has noted on that letter that he asked for payment for the report and then sent it on 2 August 1996. A copy of that report does not seem to be included in the documents, but a report in identical terms to that sent to AIM on 8 July 1996 and also dated 8 July 1996 was sent to Mr Thomas’ then solicitors.

Included in the documents was a letter from Sparke Helmore, solicitors, acting on behalf of Mayne dated 11 August 1997 addressed to Dr Singh requesting production of documents at the Compensation Court in Newcastle by 18 September 1997. There was also a letter from the WorkCover Authority to Dr Singh dated 27 June 1996 also seeking a report and noting:

“The workers compensation claim for multiple injuries (my emphasis) was referred to me by the employer’s workers compensation insurer as a disputed matter…”

The Appellant submits that all this material, particularly the reference by Dr Singh to “a few solar keratosis” and by WorkCover to “multiple injuries” demonstrated the need for a Direction to be given since such records “clearly could have had a significant impact on the result…”

The Appellant’s application for leave to issue Directions is noted at [T2-5] as follows:

“MR MACKEN: … As to the conduct of the proceedings, I understand there’s an application to have Dr Singh’s records admitted, and we don’t have any problem with having his records admitted and, indeed, they should be. The difficulty that arises is that there is information and material disclosed in those records which give rise to my being instructed to make an application - well, two applications. One is an application for leave to issue further directions and, I think as a necessary consequence of that application, an application for an adjournment.
The directions are to get a hold of what it is now clear are Compensation Court proceedings and related records, and also records from two other insurers in respect of - to whom the applicant has made claims and for which payments may or may not have been made. They look like they are disability policy claims, not workers compensation claims, but, nevertheless, the records may and almost certainly would, be relevant to the issues in dispute at this stage. I’m happy to elaborate on that further if you want me to or –
MR EDWARDS: Oh, well, it’s opposed. I don’t see that there is anything in those two matters that my friend wants to deal with that has any bearing on a skin cancer case, as I understand it, and obviously this is not the usual process that the Commission adopts - to grant an adjournment.
MR MACKEN: Oh, well, as to the practice in the Commission, I agree it’s not usual but it’s certainly a practice where the circumstances require it. So much was said by the Court of Appeal in Tan v National Australia Bank. There are situations that give rise to the need for adjournment. The Court of Appeal said that’s perfectly understandable, acceptable and should inevitably follow the course.
As to the relevance of the material, the fact that claims having been made on insurers and possibly payments being made by insurers is clearly potentially very, very relevant to the determination of the issues in dispute because, of course, if, as a consequence of those claims, and the claims are said to relate to disability relating to a whole lot of things, presumably, therefore, possibly, if not probably, the conditions which are the subject of this claim, and if the claimant has received payments that are categorised as damages as defined in section 149 of the Act, then they may be such as to preclude any recovery of compensation against anybody, ignoring all the other significant issues in the case.
The fact of the other court proceedings is relevant to a number of things - Compensation Court proceedings: firstly, as to whether or not the applicant has already been compensated, in any event. Now, it looks like those court… it looks like those court proceedings were - may be related to a back injury, but the information is so limited that we can’t really say what, if anything, was incorporated in those court proceedings. So it’s clearly relevant to that, but it’s also relevant to one of the issues identified, being the issue of notification and failure to claim within the required time of the legislation…
My submission in due course will be the applicant’s own expert says that the applicant doesn’t win because employment is not a substantial contributing factor, ignoring everything else in the case. But if the case is to run to its conclusion, then we say that we need to get access to these additional records. The authority for the test is well known now. It’s Toll v Morrissey. And what the Court of Appeal said is that the test for consideration of granting leave to issue directions is that unless there is no possibility at all of the records affecting the outcome of the case, leave should be given.
Clearly in this case it’s quite the opposite. There is every possibility that the records we would seek by means of those directions will affect the outcome of the case.
MR EDWARDS: My view of Tan is not for that principle. Tan is for a completely different principle, and it doesn’t grant to parties the right to come along and wave Tan in front of a Commission officer to say, “This says we should have an adjournment.” Tan was a different case altogether. But apart from that, it's a matter for you, Mr Arbitrator.
ARBITRATOR: Yes. Well, thank you, gentlemen, I’ve heard those submissions. I said earlier, and I repeat, I’m well familiar with this matter, having traversed it closely…
…those antecedent claims, as I closely read it, including all the clinical notes without exception, appear to emerge as physical back or back-related or other physical injuries quite distinctly different to the presentation in these proceedings, which is to do - broadly described as a skin lesion.
I am sufficiently familiar with the case of Tan to, and I say this respectfully, concur with the applicant counsel’s contention that Tan is not a case which is on song with a request for adjournment in this presentation… Further, the respondent, in my study of the materials, long prior even to the filing of this ARD in these proceedings through its officer and others, Ms Day and others, has had notice of the nature of - at least even if broadly described, the nature of this claim.
The presentation in this matter is no different in any way significantly with many others that present where before the Commission the matters of directions for production do elicit from clinical records a whole host of medical and other features, not necessarily ones limited to the subject injury in the actual proceedings, and this is one such presentation. For all those reasons, I decline the submission that there ought to be any adjournment in the matter at this point. Thank you.
MR MACKEN: Thanks, Arbitrator. Arbitrator, my application for leave to issue the directions I still put, even if the matter is to proceed today, on the basis that obtaining the records, subject obviously to the outcome of proceedings, which I say should result in an award for the respondent, but if there’s any determination other than an award for the respondent and the matter is to be referred to an Approved Medical Specialist, the records may well be relevant to that referral as well. I just renew the application in respect of the directions on that basis for completeness, Arbitrator.
MR EDWARDS: I couldn’t see that directions to other insurers or the Compensation Court could assist an Approved Medical Specialist in determining what they have to determine. I can't see the relevance of it.
ARBITRATOR: Yes, thank you, gentlemen. I decline to issue the directions for production. Again, the presentation in this matter is no different to the substantive presentation similar to it in the Commission. The issuance of directions for production is inherently part of the respondent's presentation from the outset, not a submission to be made, unless on the most exceptional basis, at the arbitral stage of the process.
This is not a matter that was signalled not only in one teleconference but a second teleconference opportunity given in those teleconferences, 17 and 25 August ‘09, and the submission that might potentially be raised, even though directions - the respondent was granted liberty to issue directions with certain qualifiers, I might add, on the 17 August 2009 teleconference, and, again, for those reasons I decline any liberty for the issuance of directions for production, and, I might add, to either party. Thank you.
MR MACKEN: Thanks, Arbitrator. Can I just put on the record that these records weren't available before either of those telephone conferences, just so that that's on the record?”

Rule 13.4(1) of the Workers Compensation Commission Rules 2006 (‘the Rules’) provides that the Arbitrator to whom proceedings are referred may, at any teleconference or, in a special case and for the avoidance of injustice, subsequently, order or refuse to order the issue of a Direction for Production requiring a non- party to produce documents. A “special case” and for the “avoidance of injustice” are not defined.

Practice Direction No 7 confirms this power, but requires that it is to be read “in the context of the objectives of the Commission, in particular the duty to provide a just, timely and effective dispute resolution service…and is to be read in conjunction with [the Rules].” Inevitably, the issue of such a Direction will delay the conclusion of the matter and thereby interfere with the objective of timeliness. The objective of justice will however take priority, where a party is able to demonstrate that the documents sought may have a material bearing on the outcome.

Rule 13.4(2) is expressed in mandatory terms and prohibits the issue of a Direction for Production in circumstances in which the relevant material could have been obtained previously pursuant to obligations under the 1987 and 1998 Acts, the 2003 Regulation and WorkCover Guidelines. The effect is that a party who had an opportunity to obtain documents prior to the referral of a dispute to the Commission is precluded from obtaining such material through the issue of a Direction for Production.

The Appellant submits that the correct test to be applied to determine whether leave should be given to issue the Directions sought is set out in Toll Pty Ltd v Morrissey [2008] NSWCA 197 (‘Toll’), and quotes from the judgment of Basten JA at [10] as follows:

“The Deputy President found, correctly, that the arbitrator erred in refusing to give a Direction for Production of the documents. The Deputy President then stated that notwithstanding the arbitrator’s error, he was not satisfied that the error would have affected the outcome of the matter. That finding was, however, erroneous. By stating the test that way, the Deputy President, in effect, reversed the onus. The correct test was that he should allow the appeal from the arbitrator, unless the error of the arbitrator could not possibly have affected the result: see Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 147.”

The Appellant also submits that the Arbitrator erred in declining to grant an adjournment for the purposes of issuing the Directions because he “incorrectly understood and incorrectly applied” the decision of the Court of Appeal in Tan v National Australia Bank [2008] NSWCA 198 (‘Tan’) and relies on the observations of Young CJ in Equity at [95] as follows:

“What is odd, however, is that the Deputy President did not take steps to see that the procedural unfairness was overcome by giving the respondent time to put forward further evidence or to make further submission, or to remit the matter for a fresh hearing at first instance…”

The Appellant adds:

“…the requirement for a relatively short adjournment to enable the direction sought to be issued was necessary to overcome the procedural unfairness which followed the refusal to allow the Appellant the opportunity to issue the Directions and, if necessary, rely on the material produced in response.”

Questions of procedural fairness must be considered in the context of the objectives of the Commission as set out in section 367 of the 1998 Act, including providing a just, timely and effective dispute resolution service and the public interest to use resources efficiently (AonRisk Services Australia Ltd v Australian National University [2009] HCA 27 at [25]-[27]).

At the outset, it is clear that Mr Thomas made a valid claim on 2 June 2008 on the Appellant within the requirements of sections 255 and 260 of the 1998 Act In any event, strict compliance with section 260 is not required to enliven the jurisdiction of the Commission (see Tan and Barrow).

It is also clear that the Appellant failed to respond to the claim for well over 12 months, contrary to the provisions of section 281 of the 1998 Act, and failed to determine the claim in accordance with the provisions of section 289(3) of that Act. The Appellant’s assertion in its Reply (and before the Arbitrator at [T3]) that there had not been a failure to determine the claim because the claim and particulars had not been provided is without substance. CAS clearly had contact with the Appellant’s claims representative but without a satisfactory result. The Appellant was clearly ill prepared for the determination of the claim, having failed, for example, to seek further particulars or arrange a medical examination. There was no application to seek further information (such as the nature of Mr Thomas’ prior claims) by way of cross-examination. The observations of Bryson JA in Aluminium Louvres & Ceilings Pty Ltd vXue Qin Zheng [2006] NSWCA 34 (‘Aluminium Louvres’) at [25] are particularly apposite:

“The requirements of the rules for information to be lodged in advance and for statements revealing the cases of parties to be made in advance, taken with the width of the sources of information on which the Commission is authorised to act and the ways in which it is authorised to proceed, mean that assumptions upon which common law trials are conducted should not be readily carried over when testing contentions that a hearing before an Arbitrator was not conducted in a fair way. The overall and continuing duty under s.355 to use best endeavours to bring the parties to settlement acceptable to all of them must have large influence on the manner in which proceedings are conducted. The environment of contestation and the confrontational methods of the common-law trial would not usually be appropriate; there may be issues of kinds which it is appropriate to deal with in that style, and much is left to the discretion of the Arbitrator. The Arbitrator is in a good position to decide on and to impose appropriate controls on the adduction of evidence, by cross-examination or otherwise. The Arbitrator will usually be in a position to perceive whether a wish to pursue an issue has a basis, whether it is a sound basis, whether some issue or line of questions is merely exploratory, or for that matter whether questions are merely the product of inventiveness.”

In my view, the Appellant’s wish to issue further Directions and to adjourn the matter for that purpose was without any sound basis, and was essentially “merely exploratory.” This is because, as the Arbitrator rightly pointed out, the evidence was clear that prior proceedings (apparently involving AIM) were in relation to an undisputed frank injury to the neck, back and right shoulder which occurred in a fall on 8 February 1996 in the course of Mr Thomas’ employment with the Appellant’s predecessor. Mayne acknowledged that in its letter to Dr Singh of 28 June 1996. Mr Thomas’ solicitor provided details of his prior employment to Ms Day on 9 October 2008. It was clear from Dr Singh’s report to AIM on 23 May 1996 that he had suffered “multiple injuries” in this fall. Although I accept that this is clearly a prior workers compensation claim and, as the Appellant submitted before the Arbitrator, may have had some relevance to the proceedings, it was information and material that the Appellant clearly had the opportunity to obtain prior to the referral of the dispute to the Commission because it was a claim in effect against the Appellant.

The claim on Prudential was in respect of the “total and permanent disablement” provisions and was clearly not a workers compensation claim. The Appellant conceded as much at [T2]. While it was noted that Mr Thomas had suffered from skin lesions, the enquiry by Prudential was in relation to “disability.” Dr Singh was clear that his disability related to his “locomotor system.” In any event, any such payment does not constitute “damages” because of the operation of section 149(1)(g) of the 1987 Act.

The present claim was for lump sum benefits only in respect of a skin cancer condition.

As to the Appellant’s submission to the Arbitrator [T3] that records from the Compensation Court had relevance in determining if Mr Thomas had already been compensated, or obtained damages, that submission may have had some merit if he had had prior claims against other employers, but his claim was against Mayne, the Appellant’s predecessor. Again, this was clearly material which the Appellant should or ought to have had in its possession.

The Appellant had ample opportunity to investigate these matters well prior to the arbitration hearing. The fact that it neglected to do so was not a proper basis for seeking to issue Directions and to adjourn the matter accordingly. Although I accept that the records sought were not available prior to either Teleconference, a proper and prompt enquiry by the Appellant through its claims manager, Ms Day, should have addressed these issues.

Practice Direction No 2 sets out the Commission’s policy on adjournments. There is discretion in the Commission to grant adjournments in the interests of procedural fairness, however, it clearly states that the Commission will not adjourn any proceedings unless it is demonstrated that one or more parties would suffer an injustice if the adjournment were not granted.

Burke CCJ reviewed the principles and case law relevant to adjournment applications in Moombaleene Local Aboriginal Land Council v Dailey [1998] NSWCC 22 (Moombaleene) at [25] to [32] as follows:

“25.   Firstly, proceedings before the Court, coming on for hearing by the usual processes, should be heard and determined at the time and place fixed for hearing. (See the litany of cases cited in the comment on Pt34, r4 of the NSW Supreme Court Rules 1970.)
26.    Secondly, where there is a proper basis for such an application and refusal would seriously prejudice the party seeking adjournment and not prejudice the other party, then adjournment should ordinarily be granted: Watson v Watson (1968) 70 SR 203; Jordan v Smart [1961] NSWR 735.
27.    Thirdly, a party is expected to take reasonable steps to prepare and present his case at the time and place appointed: Ord v Ord [1923] 2 KB 432; Dick v Piller [1943] 1 KB 497; Pennings v TA Field Pty Ltd (1990) 6 NSWCCR 271.
28.    Fourthly, where the period of adjournment sought is only very short the Court will usually be much more relaxed--or be corrected on appeal: Carryer v Kelly [1969] 2 NSWR 769.
29.    Fifthly, where the matter has proceeded to judgment after wrongful refusal of adjournment, the evidence thereby excluded must be shown to be material to the resolution of disputed issues to warrant further hearing: GIO v Best, NSWCA, No. 40525/91, 2 June 1992, unreported.
30.    Sixthly, the proper administration of justice ordinarily requires that the parties should be afforded the opportunity to present their respective cases.
31.    Seventhly, an appellate tribunal will be very reluctant to interfere with the exercise of the discretion to grant or refuse adjournment at first instance: Thornberry v R (1995) 69 ALJR 777--itself a case of such appeal being successful.
32.    It is fairly clear that not all these principles are capable of application at the same time. There is clear tension between some of the stated precepts. The Court is always faced with the problem of establishing a balance between competing demands and arriving at a resolution that adequately weighs the impact of these contrary factors in arriving at a resolution in any particular matter.”

In my view, the Appellant’s reliance on Tan is ill conceived in the context of this case. The Appellant should have taken reasonable steps to prepare and present its case at the time and place appointed. It did not. It was the Appellant’s own tardiness that prompted the request for a delay in the proceedings, rather than a reasonable and genuine application for material that may have been relevant to the determination of the dispute between the parties. In any event, I am not persuaded, for the reasons stated, that any evidence the Appellant may have obtained from the sources it nominated would have been material to the resolution of disputed issues to warrant further hearing.

In the same vein, I do not consider that the principles in Toll have relevance to the particular circumstances of this case. In Toll, the worker had ceased his employment with the Appellant and, for a period of time, worked as a truck driver for a company of which he and his wife were the principals. At a teleconference the Appellant sought a Direction for Production requiring the production of the financial records and bank documents of the company. That application was refused. The Deputy President found that the Arbitrator erred in refusing to issue a Direction. The Court of Appeal found that his decision in this regard was correct, but that the appellant was entitled to have access to the primary source material evidencing the worker’s earnings from his company. It was in this context that the observations quoted by the Appellant at [48] above were made.

In my view, nothing turns on the Arbitrator’s remarks at [T5] that applications to issue Directions would not normally be considered “unless on the most exceptional basis, at the arbitral stage of the process.” His terminology is broadly consistent with the relevant Rule and Practice Direction No 7.

It is perhaps appropriate at this point to note the observations of ADP Snell in The Office ofthe Public Guardian v Manning [2008] NSWWCCPD 94 (‘Manning’), a case which involved, inter alia, a challenge to the arbitrator’s decision refusing to exercise his discretion pursuant to section 289A of the 1998 Act, to grant the Appellant leave to rely on an Application to Admit Late Documents attaching the Appellant’s section 74 notice. At [59] he said:

“Interference on appeal with the exercise of discretion is ordinarily subject to the principles in House v The King (see for example Dalma Formwork (Australia) Pty Ltd v Maricic & Anor (No 3) [2008] NSWCA 29 per Basten JA). However, given the nature of the review process as described in Chemler and Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127, my function on review, including review of the exercise of the arbitrator’s exercise of discretion raised in the first ground of appeal, is broader than this. Toll Pty Limited v Morrisey [2008] NSWCA 197 was an appeal regarding an arbitrator’s refusal to exercise his discretion pursuant to Rule 13.4 of the Workers Compensation Commission Rules 2006 (‘the Rules’), in connection with the issue of a Direction for Production. It was not suggested by the Court of Appeal that the Presidential member, who entertained the appeal by way of review, was confined by the principles in House v The King. In the recent decision of Tan v National Australia Bank Ltd [2008] NSWCA 198 Basten JA said:
“Where the statute refers to an “appeal”, as opposed to a review, it may be intended that the appellate tribunal could vary or discharge the decision below only if satisfied that it was affected by a relevant error. However, the concept of an “appeal” does not necessarily invoke the precondition of a finding of error: an appeal may be by way of hearing de novo, where “the matter is heard afresh and a decision is given on the evidence presented at that hearing”: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [13]. Furthermore, as noted in McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163 at [64], the term “review” may connote a fresh consideration of a matter, without the need to find error before setting aside or varying the decision below. But even in a hearing de novo the appellate tribunal will not necessarily disregard conclusions reached by the original decision-maker. Constraints may arise at various stages. First, in deciding the primary facts, the appellate tribunal may defer to findings made by a decision-maker who has resolved conflicts in the course of hearing and assessing oral testimony. In such a case, the appellate tribunal which does not hear the witnesses, will be constrained to approach the findings in a manner similar to that described in Fox v Percy [2003] HCA 22; 214 CLR 118. Secondly, the appellate tribunal may be constrained in drawing inferences, not having seen the witnesses, but to a lesser extent, for reasons analogous to those identified in Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551, despite there being no need to find error. Thirdly, a similar constraint may arise in relation to the exercise of a discretionary power, again recognising that the appellate tribunal may not be required to find error: cf House v The King [1936] HCA 40; 55 CLR 499 at 505.”

Consistent with the authorities to which I have referred, I am not persuaded that the Appellant has demonstrated that the Arbitrator’s refusal to issue Directions for Production and to adjourn the matter accordingly was incorrect, or an inappropriate exercise of his discretion. Having carefully reviewed the relevant evidence, both the parties’ submissions, and weighing all the competing factors referred to by Burke CCJ in Moombaleene, I am not satisfied that the Appellant has demonstrated that it was denied procedural fairness by the Arbitrator in his determination on this issue, and this ground of appeal must fail.

The Section 74 Notice Issue

Many of my comments and the authorities to which I have referred in the preceding paragraphs have relevance to this issue.

The Appellant submits that the Arbitrator erred in refusing to exercise his discretion pursuant to section 289A of the 1998 Act, to grant the Appellant leave to rely on the late section 74 Notice. The Appellant complains:

·In considering the admission of the section 74 Notice, the Arbitrator had regard to matters arising out of the teleconference, which cannot be regarded as evidence in the proceedings.

·There was no claim of prejudice made by Mr Thomas, merely an objection to the admission of the document.

·The fact that there was no suggestion of the matter being determined other than by reference to the issues set out in the section 74 Notice meant that it was unnecessary for the Appellant to make application for leave “to agitate any other issue by reference to section 289A of the Act.”

·The Arbitrator’s approach was inconsistent with the Court of Appeal’s observations in Tan which the Appellant claims means “that it would be inappropriate to suggest that the Commission ought not be able to determine matters properly before it by reason of the absence of ‘a piece of paper’”

·“If the Arbitrator is to consider excluding an employer’s right to have the issues agitated and determined by the Commission this should only be done in circumstances where a worker is put to strict and rigorous proof of a claim properly having been submitted and received.” The Appellant relies on the letter from CAS dated 2 September 2008 informing Mr Thomas that the Appellant claimed that the claim had not been received, and maintains its assertion that no claim was properly made by Mr Thomas.

·The issues in dispute were well known to Mr Thomas and they “required proper consideration by the Commission.”

Section 74 of the 1998 Act provides as follows:

“(1) If an insurer disputes liability in respect of a claim or any aspect of a claim, the insurer must give notice of the dispute to the claimant.
(2) The notice must contain the following:
(a)a statement of the reason the insurer disputes liability and of the issues relevant to the decision,

….”

The Notice must also indicate the provision of the workers compensation legislation on which the insurer relies to dispute liability (section 74(2A)) and must be expressed in plain language (section 74(2B)).

Section 289 places restrictions on when a dispute may be referred to the Commission. Section 289(3) relevantly provides:

“ A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) wholly disputes liability for the claim, or
(b) made an offer of settlement…
(c) fails to determine the claim as and when required by this Act.”

Section 289A provides:

“289A Further restrictions as to when a dispute can be referred to Commission
(1)A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.

(2) A matter is taken to have been previously notified as disputed if:

(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.

(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”

In the present case, the section 74 Notice dated 28 July 2009 (the same date as the Reply) was apparently forwarded to Mr Thomas’ solicitor under cover of a letter dated 3 August 2009. It is appropriate to reproduce it as follows:

“We refer to previous correspondence including your most recent letter of 14 January 2009 and advise firstly that we have still not been able to ascertain whether your client was ever employer (sic) by any predecessor to Symbion Health Limited.
We are of the view that your previous correspondence has not complied with the requirements of the Legislation for the making of the claim for compensation benefits and also all relevant particulars have not been supplied.
We can also indicated [sic] that, without conceding a claim to have been made, liability for the payment of compensation benefits is declined…The reasons that liability …is declined are as follows:
1.Your client is not an employee of Symbion Health Limited or its predecessor at the time of any alleged injury.
2.Your client has not sustained injury.
3.Your client’s employment is not a substantial contributing factor to injury.
4.Your client is not impaired and, in the alternative, any impairment does not result from injury.
5.Your client has not complied with the requirements of the Legislations [sic] so far as the notification of injury or the claiming of compensation benefits is concerned and your client is therefore precluded from recovering compensation benefits.
6.In the alternative, if you [sic] client has sustained injury (which is denied) Symbion Health Limited or any predecessor is not the last employer for whom your client carried out employment to a [sic] nature of which the injury is due.
7.Your client is otherwise precluded from recovering the payment [of] compensation benefits by reasons of the matters set out in this letter and in the documents attached to it.”

The Notice then set out a number of sections in both the 1987 and 1998 Acts upon which the Appellant relied, repeated “the issues relevant to this dispute” in similar terms to the items 1 to 7 noted, and advised that the documents forming “the basis for the decision to decline liability” were two reports of Dr Lobel both dated 1 April 2008 which it was noted were already in the possession of Mr Thomas. In those reports (which I will consider more fully below), Dr Lobel opined that employment, though a contributing factor, was not a substantial contributing factor to Mr Thomas’ injury. In a subsequent report dated 13 May 2008, Dr Lobel altered his opinion and confirmed that employment was a substantial contributing factor to the injury. Curiously, no reference was made by the Appellant to that later report.

I note at the outset that the Notice clearly acknowledges that the Appellant had been on notice of the claim (regardless of any alleged deficiencies in it) and had received the letter from Mr Thomas’ solicitor of 14 January 2009, and indeed “previous correspondence.” This further confirms that the Appellant’s assertion in its Reply (and elsewhere) that “the claim and particulars has not been provided” is entirely without substance.

The section 74 Notice was the subject of discussion at the Teleconference on 17 August 2009, and its acceptance or otherwise into the proceedings was reserved (see the Direction). At the hearing, Mr Thomas’ counsel objected to its admission [T7]. He claimed that, because it was issued after the proceedings commenced, “it bears no validity as a denial of liability.” True, no specific reference was made to “prejudice”, and Mr Thomas’ counsel proceeded by addressing the issues raised, primarily because the Arbitrator at that stage maintained his reservation “for the moment” as to its admissibility [T7].

The Arbitrator’s ex tempore reasons commence at [T19]. After setting out the nature of the claim and the documents before him (including the Reply), he continued at [T21] as follows:

“[T21]: I deal firstly with an important procedural aspect, or aspects, as presented to me in the matter. The ARD pleads a failure to determine by the respondent by reference to the following insertions in the ARD…
[T22]: These matters occur to me. Prior to the registration of the ARD with the Commission on June 18 2009, no section 74 notice had issued from this respondent. This is notwithstanding, respectfully, it appears, the applicant’s solicitor, Ms Allen, before service of the ARD inquiring of Ms Day, an officer of the respondent, as to which entity the ARD should nominate as the respondent then, however, it seems, without any constructive indication being given. Not insignificantly, in my view, it further appears that for some 12 months or so prior to ARD filing, this respondent, through Ms Day or otherwise, had prior notice of this claim now made.
As stated, that claim was made as long ago as 2 June 2008. There was no liability denial from any respondent quarter in that extended period on any basis, actual or implicit…
All of that background exactly, it seems to me, reconciles with the filed ARD as ultimately having to be filed by the applicant in pursuit of his claim, specifying an insurer/respondent failure to determine it, which I have troubled already to briefly describe. There is no history, or certainly no reliable antecedent history, from the respondent which debates that background…
The representative for this respondent indicated at the August 17, 2009 teleconference not at that point to know exactly whether or not his client/respondent had, in fact, issued any section 74 notice… At this teleconference, the respondent’s representative put it that the reply issue should be able to be now ventilated as the proceedings and “should not be caught up in formal matters”…
[T23] I should immediately point out that while notice of the dispute on a claim is a formal matter pursuant to section 74 and otherwise, it is a formal matter for very good reason. One such is that an applicant is to be given timely notice of the basis on which liability denial is contended. It is, indeed, a formal matter but at the very crux of critical procedural matters before the Commission and of which all insurers, self-insurers, other respondents or otherwise are generally sharply aware.
This is at the essence of the applicant's complaint here in part made, including from the outset of the initiating teleconference before me, as the issues now sought to be raised by the respondent in this late reply. Rightly, in my view, the applicant urges prejudice in that context. For the respondent to have had claims notice for approximately 12 months and then to seek in a very latter-day sense, respectfully, to raise issues of the type now appearing in Part 3 of the lately filed reply is, in my view, unreasonable and is certainly prejudicial to the applicant.
Further, the reply when filed, despite over 13 months passing from notice of the claim being made in June 2008, annexed only the applicant's own medical reports…
There are some elements of additional curiosity here, stated respectfully. How, against that background, the respondent contends that there is an issue of failure to give notice of the claim for compensation within time is, in my view, unfathomable. In that context, the reply issue headings appear to be, again, in my respectful view, a catch-all-issues approach, not stated as a criticism but as an observation. Thirdly, it remains, respectfully, curious to me that the respondent on the very same date as the reply is, in fact, dated, namely, July 28, 2009, has on that same day purported to issue a section 74 notice, the existence of which emerged only at the end of the teleconference on August 17, 2009, when it was, indeed, the applicant's representative, Ms Allen, who affirmed that a section 74 notice dated 28 July 2009 had been received by the applicant August 3, 2009.
[T24] A number of immediate observations follow in this regard… no section 74 notice had previously been signalled to the applicant, and certainly not, it seems, any prior liability denial at all from any respondent quarter in the period of over one year of the applicant having given notice of claim in June 2008. Thirdly, respectfully, for some reason, procedurally incorrectly, the reply filed by this respondent is dated not only the same date, 28 July 2009, but does not seek to attach the said section 74 notice upon which this respondent now seeks in part to rely.
It is reiterated that the existence of the section 74 notice was left to affirmation, and then only at the instance of the applicant's representative at the end of the said teleconference on August 17, 2009. It is for these reasons also, I think rightly, that the applicant pleaded at the teleconference on August 17, 2009 procedural offence with reference to section 289A of the 1998 Act. Broadly, I agree…
[T25] Section 289 of the 1998 Act restricts disputes being referred to the Commission until either the insurer disputes the claim or fails to determine it in the statutory or regulatory times or procedures.
Section 289A further restricts disputes as to being heard by the Commission where previously not notified as being disputed.
Section 281 of the Act obligates a respondent to determine and notify its disputed position, in effect, two months from the claim being made or one month after the degree of permanent impairment is assessable. This claim, inarguably, was made on June 2, 2008. These are not only formal procedural matters; they're critical matters of requirement. It was for these reasons I specifically made the procedural reservations in the teleconference directions of August 17, 2009.
The document purported to be tendered as a section 74 respondent notice dated 28 July 2009, first seen by me physically at arbitration today, although served on the applicant on August 3, 2009, raises issues not previously notified to the applicant prior to its service in early August 2009 on the applicant. That was nearly 14 months after notice of the claim was given in June 2008. For these reasons, I do not accept the section 74 notice into the proceedings.
In terms of section 289A(4) of the 1998 Act as to whether it is in the interests of justice that I do allow it, nothing has been submitted to me, certainly anything of any conviction, to satisfactorily explain that procedural failure. On that basis, I do not have to consider the question of relative prejudice in not doing so, but even then, or there, on any prejudice argument, it is the applicant who inherits the substantive balance of that prejudice by reference to the very late notice of matters from the respondent now contended as “disputed”. That would be enough to dispose of liability issues. However, for completeness, even if I am wrong in any of that, I turn to some of those issues in discussion following as were submitted in the proceedings in this arbitration today and as antecedently appearing within the materials.”

The Arbitrator then proceeded to consider the issues raised in the section 74 Notice “in numbering,” noting that each parties’ representative had made submissions in similar terms [T25]. In short, the Arbitrator (and indeed the parties) considered the terms of the section 74 Notice notwithstanding his rejection of the document into evidence.

A teleconference is an integral part of the dispute resolution model developed by the Commission. Arbitrators are required to follow a protocol broadly set out in the Guideline for the Practice of the Conciliation/Arbitration Process issued in January 2009. If the matter does not resolve, arbitrators are required to ensure that there is some certainty as to the issues in dispute and all the documentary evidence that will be relied upon, and Directions given if necessary.

The Appellant’s submission that “the Arbitrator has apparently had regard to matters which he presumably considers to be evidentiary in nature arising out of the teleconference…and [which are] not a matter which can be taken into account as evidence in the proceedings” is in my view misconceived. No particulars are provided as to the nature of the “evidence” the Arbitrator considered, and the suggestion that the Arbitrator “apparently” or “presumably” did this is purely speculative. Whilst I accept that what transpires at a teleconference is not “evidence” per se, matters raised can be relevant to the ultimate determination of the claim. The Arbitrator’s remarks in his reasons reflect this, and I am not persuaded that he erred in the manner alleged by the Appellant.

In Mateus v Zodune Pty Ltd t/asTempo Cleaning Services [2007] NSWWCCPD 227 (‘Mateus’) Deputy President Roche considered circumstances in which previously unnotified matters may be heard or otherwise dealt with by the Commission. Similar issues were also considered in Manning to which I have referred previously. A useful summary of the matters relevant to the exercise of the discretion pursuant to section 289A is found in Manning at [64]-[65] as follows:

“64. In Mateus the arbitrator who initially dealt with the application, identified the following matters as being relevant to the exercise of her discretion under section 289A(4):

‘(a)	the degree of difficulty or complexity to which the unnotified issues give rise;

(b)	when the insurer notified that it wished to contest any unnotified issue/s;

(c)	the degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability;

(d)	any prejudice that may be occasioned to the worker, and

(e)	any other relevant matters arising from the particular circumstances of the case.’

65. Roche DP agreed with the arbitrator’s identification of these matters, and stated he would add the following observations (at [47]):

‘(a)	a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved;

(b)	any insurer seeking to dispute an unnotified matter is seeking to have a discretion exercised in its favour and, accordingly, must act promptly to bring the matter to the attention of the Commission and all other parties;

(c)	any unreasonable or unexplained delay in giving notice of an unnotified matter will be relevant to the exercise of the discretion;

(d)	in exercising its discretion the Commission may have regard to the merit and substance of the issue that is sought to be raised;

(e)

(f)

(g)

in assessing prejudice to the worker it will be significant to consider when and in what circumstances the worker was first made aware of the unnotified issue that is sought to be raised;

though it will be relevant to the exercise of the discretion to keep in mind that the Commission must act according to equity, good conscience and the substantial merits of the case, those matters will not be determinative, and

the general conduct of the parties in the proceedings will also be relevant to the exercise of the discretion.’”

Deputy President Roche in Mateus then weighed all the factors both for and against the exercise of the discretion, and concluded at [51]:

“51. In my view the factors in favour of exercising the discretion far outweigh those against. The insurer was in error in issuing the section 74 notice in the form it did, but it acted with reasonable promptness to put Mr Mateus on notice of the injury issue. Whilst no single factor is determinative, where Mr Mateus was given every reasonable opportunity to meet the issue of injury, the determination of the case was not delayed, Mr Mateus pointed to no relevant prejudice and the issue sought to be raised was one of substance, the interests of justice required that the injury issue be heard and determined by the Commission. I therefore reject the Appellant Worker’s submission that the Arbitrator was in error in allowing the Respondent Employer to rely on the injury issue.”

The circumstances in the present case are entirely different. Here, as the Arbitrator rightly observed, the issue was essentially the lateness of both the Reply and the section 74 Notice which prejudiced Mr Thomas by not notifying him in sufficient time of the basis upon which his claim was disputed. It is this fact alone which in my view is determinative, and I concur with the Arbitrator’s decision on this issue.

I would also add that some of the “reasons” set out in the section 74 Notice, for example, item 1 relating to employment, do not reflect “a proper consideration of the factual and legal issues.” No evidence was brought by the Appellant to counter Mr Thomas’ evidence as to his employment with the Appellant. As to the ‘substantial contributing factor’ reason, the Appellant appears to have ignored the report of Dr Lobel of 13 May 2008, relying solely on his earlier reports. Item 7 of the reasons does not comply with section 74, and does not identify an issue in dispute. The recent observations of Deputy President Roche in Sydney Night Patrol & Enquiry Co Pty Ltd v Spasevski [2010] NSWWCCPD 7 (Sydney Night Patrol), involving the same solicitor for the employer as in the present case, are particularly pertinent to this case where he said at [75]-[76]:

“75.The Commission has repeatedly held that broad-brush assertions of the kind set out above do not comply with section 74 of the 1998 Act (Fletcher International Exports Pty Ltd v Lottand anor [2009] NSWWCCPD 40 at [15]; Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD 137 at [6]; Gray v Busways Gosford EMP Pty Ltd [2009] NSWWCCPD 124 at [6]; Rinker Group Limited v Mackell [2008] NSWWCCPD 100; Rocla Pty Ltd v Stephenson [2009] NSWWCCPD 125). If an insurer disputes liability in respect of a claim, or any aspect of a claim, it is required to give the claimant proper notice of the dispute. The notice must be expressed in plain language and must clearly and succinctly identify the reason the insurer disputes liability and the issues relevant to the decision. A general assertion that an insurer relies upon one or more of the sections in the legislation is unacceptable.
76. It is also unacceptable for an insurer, or a solicitor acting for an insurer, to make a general allegation that a worker has not “satisfied the requirements of the Legislation so as to give rise to any entitlement of compensation” and that a worker “is otherwise precluded from receiving the payment of compensation benefits”. Such an allegation does not properly identify the issues in dispute and does not comply with section 74. The practice of referring to multiple sections of the legislation, regardless of their relevance to the particular claim, and of making generalised denials of entitlement to compensation is unacceptable and must cease.”

But all this is to some extent unnecessary, since the Arbitrator proceeded to in effect deal with the issues raised in the Notice notwithstanding his decision to reject the document. Commencing at [T 26], he considered the evidence as to “the employer” and concluded that:

“I am of the view and determine that this respondent is correctly identified in these proceedings for this claim made as at June 2, 2008, and for a deemed date of injury of that date.”

In the absence of any evidence to the contrary, his decision was correct.

He then proceeded to consider “issues two and three” in the notice relating to ‘injury’ and ‘substantial contributing factor’. As to ‘injury,’ the Arbitrator concluded that it was in the category of section 4(b)(ii) of the 1987 Act [T26], and concluded that the employment was a substantial contributing factor to the injury for reasons I shall discuss shortly.

As to the remaining issues, he continued at [T32] as follows:

“I turn to issue 4 briefly - impairment. I am satisfied that there is a relevant impairment for the reasons I have already stated.
I turn to issue 5, about notice of claim. There is no relevant deficiency in the applicant's notice of claim here. I refer here also to the commentaries made at length in the decision of Gow, to which I've already referred, where procedural matters such as notice of claim are comprehensively addressed by His Honour Geraghty J. Respectfully, I disagree with the submissions broadly put by the respondent that the authorities, well-established already on this subject, are to either be ignored or are wrong.
As to item 6 in the listing, that this respondent is not the last relevant employer, I have already dealt with and determined that matter.
The last item appearing in the respondent's listing was that the applicant should be precluded from this claim. This is a broad assertion only; it is not a pleading.”

Leaving aside for the moment the question of the impact of section 9A of the 1987 Act, the Arbitrator’s findings were consistent with the evidence before him for the reasons he gave.

As to the other submissions made by the Appellant on the section 74 Notice, the reference to Tan and the absence of “a piece of paper” is again misconceived. Tan involved the proper construction of the terms of section 260 of the 1998 Act relating to the making of a claim. The Appellant appears to be referring to the observations of Young CJ in Equity at [82] as follows:

“It is absurd to think that in an Act to assist workers, a worker could be left without any support at all because after a lengthy hearing his or her problem was held to be a fresh injury rather than an exacerbation and a separate piece of paper in the form of a prescribed claim had not been lodged in respect of it.”

This has no bearing on the section 74 Notice issue. In any event, the Arbitrator quite properly found that Mr Thomas had made a valid claim within the meaning of section 260 of the 1998 Act.

This brings me to the Appellant’s final submission that a worker should be put to “strict and rigorous proof of a claim properly having been submitted and received.” This submission is similarly ill conceived in the circumstances of this particular case. It is abundantly clear from the opening paragraph of the section 74 Notice that the Appellant had received Mr Thomas’ claim. Had it chosen to respond in accordance with the relevant provisions of the 1998 Act, no doubt it would have had an opportunity “to have the issues agitated and determined by the Commission.”

The Section 9A Issue

Mr Thomas relied upon a series of reports from Dr Lobel, Occupational Dermatology Consultant. In his first report of 1 April 2008, he noted that after leaving school, Mr Thomas worked as a motor mechanic for some 29 years. He then worked for the NRMA as a technical inspector. He then recorded this history:

“Between 1986 and 1996 Mr Thomas was employed by transport company Ipec as a truck driver. The work involved loading and unloading his truck and driving between various destinations picking up and delivering items. He stated that he worked an 11 hour day and about 70% of the work was outside of the truck. During the summer months he wore shorts and a short sleeved shirt but no hat or sunscreen. Mr Thomas stated that for the 10 years he was driving the truck he had significant sun exposure through the windscreen where he could actually feel the heat of the sun during the summer months. The work for Ipec was all day shift between 9am and 5pm.”

Dr Lobel diagnosed: “Actinic elastosis (solar induced skin damage) with secondary pre-malignant and malignant actinic lesions.”

Dr Lobel concluded:

“Mr Thomas had fully indoor employment until 1986 (aged 48) when he commenced his only period of partly outdoor work for the 10 years between 1986 and his retirement in 1996.
It has been established that a substantial contribution to the level of actinic elastosis in Australian adults is acquired due to exposure during the childhood and teenage years prior to the age of 20. Pre-malignant and/or malignant actinic lesions start to appear in the skin of exposed sites about 10 to 20 years after the appropriate level of damage has occurred or after about 10 to 20 years of continuous outdoor exposure to sunlight.
Mr Thomas indicated that he first noticed lesions…in about the mid 1980’s ie about the time he commenced working as a driver for Ipec. Assuming that actinic lesions only start to appear 10 to 20 years after the appropriate level of actinic elastosis has been deposited, Mr Thomas must have had a substantial degree of actinic elastosis present at the time he commenced working with Ipec. In addition, the UVB component of ultraviolet light…is filtered out by window glass…Therefore, any exposure to sunlight through window glass in the cabin of his truck would have been a negligible, if any, contribution to his current level of actinic elastosis. The 10 years between 1986 and 1996, during which he was outside of his truck for about 70% of the day would constitute a contribution to the current level of actinic elastosis but there would be a further about 10 years delay before this contribution would be part of causing any pre-malignant or malignant actinic lesions.
Therefore, although the work as a driver for Ipec between 1986 and 1996 would constitute a contribution, in my opinion, it would not be a substantial contribution and certainly would not be a factor in any lesions which appeared prior to 1996.”

In a separate report of the same date, Dr Lobel concluded:

“Mr Thomas’ disability is directly related to his skin cancer condition but I do not believe that his employment was a substantial contributing factor to his condition. I do accept that the 10 years of truck driving…was a contribution to the current level of actinic elastosis in his skin. However, I believe the substantial contribution was acquired prior to commencing work as a truck driver aged 48.”

Dr Lobel assessed Mr Thomas as suffering from 12% WPI.

In a subsequent report dated 13 May 2008 addressed to Mr Thomas’ solicitor, Dr Lobel said:

“I note the information in the first two paragraphs of your letter and accept Mr Thomas’ history of wearing long sleeved shirts, trousers and a cap until his late adolescence and not being engaged in any regular outdoor leisurely activities or sports. However, I repeat the comments that Mr Thomas commenced developing actinic lesions in the exposed sites at about the same time he commenced work for IPEC in the mid 1980’s. This means that a substantial amount of actinic elastosis…due to exposure to sunlight occurred during the period between his late adolescence and the age of 48 when he commenced work for IPEC. For persons with a skin type which is sensitive to sun damage (Type 1-111) just living in Australia exposes one’s skin to significant ultraviolet radiation.
I accept that the 10 years of work as a truck driver between 1986 and 1996 would constitute a substantial contributing factor to the kerastoses, pre-malignant and malignant lesions currently appearing in Mr Thomas’ skin.
As there is no method available for calculating the percentage of skin exposure to ultraviolet light acquired during working time compared to that acquired during leisure time, the convention is that 90% of the whole person permanent impairment is attributed to the work exposure and 10% to non-work exposure. Taking a figure of 12% [WPI] and subtracting 10% would leave a final figure of 11% [WPI] due to facial disfigurement and non-face skin disorder.”

A report from Dr Singh dated 2 February 2008 addressed to Mr Thomas’ solicitor, confirmed that he first treated Mr Thomas for his skin damage in October 1983 when he had a “squamous cell carcinoma on the forehead” for which he advised excision. He next saw Mr Thomas In January 1988, and thereafter on various occasions during 1990, 1992, 1994, 1995, 1998, 1999, 2000, 2001, 2003, and on a number of occasions in 2007. He concluded: “The cause of the skin cancers is sun exposure and having a fair skin.”

Dr Gillespie, Dermatologist, to whom Mr Thomas was referred by Dr Singh, produced clinical notes which confirmed consultations with Mr Thomas during 2001.

The Arbitrator commenced his consideration of the medical evidence and “issues two and three” in the section 74 Notice at [T26]. His findings are somewhat convoluted but given the issues raised by the Appellant, it is appropriate to set them out in full. He concluded at [T 29] as follows:

“In part, in effect, the respondent submits that Dr Lobel was urged by the applicant to change his mind, as it were, about substantial contributing factor by reference to an untendered medical request letter of the applicant's representatives of April 29, 2008. The respondent further contends that the Dr Lobel reportages offend the expertise evidentiary principles of Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305(Makita).
In not agreeing with these submissions of the respondent, respectfully, these are my observations. Firstly, it is for this proceeding to determine substantial contributing factor pursuant to sections 4, 9, 9A and section 16 of the 1987 Act. Medical observations are of value but they’re not determinative.
I return to some of the content in this context of the Dr Lobel reportages. On page 4 of his first report of April 1, 2008 in the first paragraph at the top of that page, the commentary there of Dr Lobel does not exclude in statutory terms that the skin lesions or cancer broadly complained of by the applicant cannot be interpreted as a substantial contributing factor. Indeed, the references by Dr Lobel to “negligible” need to be carefully and cautiously looked at against the overall medical record.

He continued at [T30] as follows:

“The reminder, I believe, and caution needs to be had here that this is an analysis of an exacerbation, acceleration, deterioration of a disease pursuant to section 16 of the Act to which the pleading is essentially that the applicant’s work with the respondent was a substantial contributing factor to that aggravation, and the like…
On page 5 of the same first report of Dr Lobel, the first paragraph once again, it’s important against the context of an exacerbation of a disease claim that Dr Lobel uses the phrasing, “He also started developing actinic lesions at that time.” A development of a condition is exactly, in part, what section 16 is designed to address, namely, the exacerbation, acceleration or deterioration of a condition, in this case a skin damage disease, and where, whilst Dr Lobel uses the phrase “started developing actinic lesions at that time”, the word “developing” or “development” is one which reconciles precisely with the section 16 nature of cases and injury pleadings. The commentary here by Dr Lobel, again, does not exclude proper analysis of a substantial contributing factor.
The second report of Dr Lobel of April 1, 2008 is, in my respectful view, in much the same vein, in the second paragraph of which Dr Lobel opines, at least at that point, that he did not believe the employment was a substantial contributing factor to his condition. His next comments, however, are that the doctor did accept that Mr Thomas spent about 70 per cent of his time outside the truck was a contribution to the current level, that is to say, April 1, 2008, of actinic elastosis in his skin. The doctor's reference in his own medical terms to a substantial contribution being acquired prior to commencing work as a truck driver aged 48, again, in my humble view, does not exclude proper statutory analysis of the development, in this case, aggravation, acceleration or exacerbation of a disease in terms of section 16 of the Act.

Dr Lobel’s third report of May 13, 2008, its third paragraph, concludes, after his further analysis, to which I'll return in another context shortly:

I accept that the 10 years of work as a truck driver between 1986 and 1996 would constitute a substantial contributing factor to the keratoses, pre-malignant and malignant lesions currently appearing in Mr Thomas’s skin.
In my view, this second-last paragraph of Dr Lobel in his report of May 13, 2008 reconciles with much of the reportages of Dr Singh. Dr Singh certainly concludes as to the diagnosis of the condition without attempting to dwell or traverse into the area of causation, medically or otherwise…
What here emerges is that Dr Singh’s clinical notes attest to whilst there was some medical referrals by Mr Thomas for skin lesions prior to starting as a truck driver with then IPEC in 1986, there was a significant and increasing frequency of medical referrals for skin lesions after 1986 and for medical referrals of increasing frequency in particular from 1989 to 1996 and thereafter…
For these reasons, I am not of the view that the applicant's medical presentation offends Makita in any relevant evidentiary or other respect. The applicant need only show that his skin lesions, broadly described, have his work as with this respondent as a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration pursuant to sections 4, 9, 9A and, specifically here, 16 (1)(b). That is also by reference to the standard of a substantial contributing factor only needing to be established in a presentation under section 16, including by reference to Mercer v ANZ Bank Group Limited [2000] NSWCA 138.
For additional completeness, I add these comments. I am not of the view that those parts of the Dr Lobel commentaries going towards historical analysis of the source or origin of such skin lesion conditions, that is to say developing in adolescent years or periods that might not emerge for 10 or 20 years, materially discount from the proper analysis of the ongoing development of the condition as it here presents with Mr Thomas. Inherently, it is of this that the applicant recites in his statement and which, in my view, and on closest analysis, substantially reconciles not only with the substance of Dr Lobel's comments in the context of a section 16 disease acceleration presentation or deterioration claim but also with the regression of the frequency, or the frequency of regression of his condition of skin lesions in the years which with greater frequency appeared quite clearly on and after 1986 and constantly throughout the period to 1996, when he retired…
The clinical notes of Dr Gillespie do not also discount from this skin lesion analysis as it presents here. In my view, this is a presentation which, indeed, very closely mirrors the observations and determinations of his Honour Justice Geraghty in the Compensation Court matter of Gow v Patrick Stevedores [2002] NSWCC 60 as determined and delivered on 20 December 2002.
Accordingly, I am satisfied, including on the requisite onus to the standard of the balance of probabilities, that the applicant has made out his case, even if, for completeness, I'm only referring to these reasons, having made the commentary earlier and determinations upon the non-allowance of the section 74 notice, that, in any event, the applicant has established that his work with the respondent was a substantial contributing factor to the condition of which he complains in this ARD.”

The Appellant repeats most of the submissions made before the Arbitrator, summarised as follows:

1. Dr Lobel’s third report (13 May 2008) is of no evidentiary value since it contradicts his earlier reports.
2. The letter from Mr Thomas’ solicitor giving rise to that report was not in evidence.
3. Mr Thomas did not discharge his onus of proof.
4. The Arbitrator reversed the onus of proof given his assertion at [T29-30] that Dr Lobel’s report of 1 April 2008 “does not exclude in statutory terms that the skin lesions…cannot be interpreted as a substantial contributing factor.”

At the outset, I accept to some extent the Appellant’s submission at point 4 above. The Arbitrator does indeed appear to have “reversed the onus of proof.” As the Appellant rightly points out:

“It is not a question of whether or not the evidence excludes substantial contributing factor, but rather a question of whether [Mr Thomas] has himself discharged the onus of proving that employment was a substantial contributing factor to injury.”

Having said that, I think this is more an issue of inappropriate terminology rather than of substance. The Arbitrator, in a rather convoluted fashion as I have said, nevertheless did analyse the medical evidence and gave reasons for his conclusion. My task on review is to consider the substantive issue, namely whether that conclusion was correct on all the evidence.

Neither party sought to admit the letter from Mr Thomas’ solicitor in response to which Dr Lobel prepared his report of 13 May 2008. The Appellant’s submissions before the Arbitrator focussed on the evidentiary value of that report in terms of Makita. The Appellant submitted at [T11]:

“We don’t have that letter before us. It’s not in evidence. We haven’t seen it. We don’t know what it says. We know parts of what is included in it from what follows, but we don't know what the letter otherwise says.”

The Appellant then submitted that the report was defective because Dr Lobel “was relying on something about which there is no evidence” namely, that Mr Thomas wore long sleeved shirts, trousers and a cap in the past. His statement was silent on that point. Nevertheless, there was no application to cross-examine Mr Thomas on the further history recorded by Dr Lobel in the 13 May 2008 report. Nor it seems did the Appellant take steps to pursue this matter earlier, either by means of a request for the letter or further particulars. The report was annexed to Mr Lobel’s claim made on 2 June 2008, and was clearly in the possession of the Appellant for well over 12 months prior to the hearing.

On the face of it, there does appear to be some inconsistency in Dr Lobel’s reasoning and conclusions. Nevertheless, on my reading of Dr Lobel’s report of 13 May 2008, it seems clear to me that he has merely reconsidered his views not only in light of further information as to Mr Thomas’ past history but also in terms of his current presentation. Dr Lobel reiterated his view that a substantial amount of damage occurred prior to his employment with the Appellant, notwithstanding the history of wearing certain clothing, but, in line with his earlier comments as to the onset of lesions (10 to 20 years after a level of damage has occurred), he concluded that the employment between 1986 and 1996 was a substantial contributing factor to “lesions currently appearing in Mr Thomas’ skin.” (My emphasis).

That is consistent, as Mr Thomas’ counsel submitted at [T17], with lesions as a result of damage between 1986 and 1996 appearing anywhere from 1996 to 2006.

The difficulty the Appellant faces in attempting to challenge the validity of Dr Lobel’s opinion is that it brings no evidence whatsoever to counter his opinion. In other words, as Mr Thomas submits, “There was no alternative proposition for the Arbitrator to consider.” That of course is not necessarily fatal to its defence of the claim (see Sydney Night Patrol). It is probably fair to say that without the further report of Dr Lobel, Mr Thomas may have had some difficulty in succeeding in his claim. The real question then is whether there is any substance to the opinion contained in the report of 13 May 2008.

For the reasons stated, I believe there is, but I would also add the following remarks which I believe reinforce my conclusion:

1. In South Western Sydney Area Health Service vEdmonds (2007) 4 DDCR 421 McColl JA said:
“127. While the Commission may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter before it permits (s 354(2)), r 70 of the Workers Compensation Commission Rules 2003 provides that when informing itself on any matter, the Commission is to bear in mind the principles that evidence should be logical and probative, should be relevant to the fact in issue and the issues in dispute, that evidence ‘based on speculation or unsubstantiated assumption is unacceptable’ and that ‘unqualified opinions are unacceptable’.

128. Rule 70 broadly reflects fundamental principles of the common law concerning admissibility of evidence. Indeed, in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 (at [24]) Deputy President Fleming said:
‘Where the rules of evidence do not apply, the conduct of proceedings will be a matter to be determined according to principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case. The Commission may have regard to evidence that would not be admissible in a court in accordance with the rules of evidence. Fairness must guide the weight to be given to this evidence.’

129. Where the rules of evidence do not apply, in order to find error of law based on absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not: Smith & Anor v Collings Homes [2004] NSWCA 75 at [32] per Mason P (Handley JA and Campbell J agreeing)”
2. The history taken by a medical expert is admissible as evidence of the facts recorded in that history: section 60 of the Evidence Act 1995; R v Welsh (1996) 90 A Crim R 364. The additional history obtained by Dr Lobel was contained in the letter from Mr Thomas’ solicitor to him of 29 April 2008. In the absence of any evidence that it was not a proper history, or mere “speculation or an unsubstantiated assumption,” I regard it as relevant, logical and probative.
3.    Employment must be a substantial contributing factor, not the substantial contributing factor. (Mercer v ANZ Banking Corporation [2000] NSWCA 138). Dr Lobel’s opinion, read as a whole, satisfies this test.
4.    Dr Lobel identified the factual basis upon which his opinion was based. (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42). I do not consider it a “bare ipse dixit.”
5.    Employment needs only to be a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease, as distinct from being a substantial contributing factor to the disease itself. (Murray v Shillingsworth [2006] NSWCA 367). The evidence from both Dr Lobel and to some extent Dr Singh supports such a finding.

CONCLUSION

Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 at [28]), I have concluded, for the reasons stated, that there was no denial of procedural fairness to the Appellant during the conduct of the Arbitration, and the Arbitrator’s findings and orders were consistent with the totality of the evidence. In these circumstances, the appeal must fail.

DECISION

The decision of the Arbitrator dated 14 October 2009 is confirmed.

COSTS

The Appellant is to pay the Respondent’s costs of the appeal.

Deborah Moore

Acting Deputy President
19 February 2010

I, EMMA LETHBRIDGE-GILL CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE