Unilever Australia Limited v Saab
[2013] NSWWCCPD 2
•14 January 2013
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| Status: Appeal to the Court of Appeal dismissed - Unilever Australia Ltd v Saab [2013] NSWCA 374 | |||||
| CITATION: | Unilever Australia Limited v Saab [2013] NSWWCCPD 2 | ||||
| APPELLANT: | Unilever Australia Limited | ||||
| RESPONDENT: | Ali Saab | ||||
| INSURER: | Unilever Australia Limited | ||||
| FILE NUMBER: | A1-5805/11 | ||||
| ARBITRATOR: | Ms J Snell | ||||
| DATE OF ARBITRATOR’S DECISION: | 30 October 2012 | ||||
| DATE OF APPEAL DECISION: | 14 January 2013 | ||||
| SUBJECT MATTER OF DECISION: | Section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; leave to appeal against an interlocutory decision; s 261 of the Workplace Injury Management and Workers Compensation Act 1998; requirements as to making of claim; determination of date of first awareness of relevant injury. | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Astridge & Murray | |||
| Respondent: | Koutzoumis Lawyers | ||||
ORDERS MADE ON APPEAL: | 1. Leave is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 to appeal the Arbitrator’s decision made on 30 October 2012. 2. The Arbitrator’s determinations and order made in the Certificate of Determination dated 30 October 2012 are confirmed. 3. The appellant is to pay Mr Saab’s costs of the appeal regardless of the outcome of the primary application before the Arbitrator. | ||||
BACKGROUND
This appeal concerns a challenge to an Arbitrator’s finding that a worker, Mr Ali Saab, had satisfied the requirements concerning making of claim as prescribed by the provisions of s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Mr Saab had been employed by Unilever Australia Limited (the appellant) between 1968 and 1998. His claim against the appellant was made on 7 August 2009 in respect of lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). The injury alleged was a loss, or further loss, of hearing which was of such a nature as to be caused by a gradual process within the meaning of s 17 of the 1987 Act. It was agreed that, should noisy employment be proven, the deemed date of injury was 29 May 1998 (s 17(1)(a)(ii) of the 1987 Act).
It is relevant to note that Mr Saab’s claim is one of approximately 50 disputed claims presently before the Commission which have been brought by former employees of the appellant in respect of alleged work related hearing loss.
Those claims (related claims) have been the subject of case management by the Commission. Each worker is represented by the one solicitor and counsel and the appellant has retained the one solicitor and counsel to advise and appear in each matter.
It is acknowledged by the parties that the present matter and a number of other related matters each raise issues concerning notice of injury and making of claim which were common to the related claims generally. It was suggested that determination of those issues might lead to the elimination of some issues in dispute and settlement of the related matters, thereby obviating the need for a full contest of each matter before the Commission.
In the circumstances, the present matter came before Arbitrator Josephine Snell on 24 April 2012 for hearing limited to a determination as to whether Mr Saab had complied with those provisions of the legislation which regulate the giving of notice of injury and making of claim. The Arbitrator reserved her decision and a Certificate of Determination was issued on 30 October 2012 in which the following determination and orders are found:
“The Commission determines:
1.The applicant has given his notice of injury in compliance with section 61 of the Workplace Injury Management and Workers Compensation Act 1998.
2.The applicant has made his claim for compensation in compliance with section 261 of the Workplace Injury Management and Workers Compensation Act 1998.
3.The matter is to be listed for teleconference before me.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
ISSUES IN DISPUTE
The grounds of appeal suggest error on the part of the Arbitrator in the following respects:
(a) finding that Mr Saab had on 22 July 2009 first become aware, within the meaning of s 261(6) of the 1998 Act, that he had received an injury;
(b) finding that Mr Saab had proven that he had made a claim for the relevant compensation within six months after the injury happened in terms of ss 261(1) and 261(6) of the 1998 Act, and
(c) failing to give adequate reasons for her decision.
I note that no challenge is made to the Arbitrator’s findings concerning notice of injury.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
Interlocutory
The decision of the Arbitrator challenged on this appeal does not, adopting the words of Gibbs J as stated in Licul v Corney [1976] HCA 6; 180 CLR 213; “finally dispose of the rights of the parties”. In such circumstances the decision must be taken to be interlocutory in nature. An appeal against such an interlocutory decision may only proceed by way of leave granted by the Commission: s 352(3A).
Whilst the appellant makes no “concession” as to the interlocutory nature of the decision challenged, it is argued that if the Commission should determine that leave is required to permit the appeal, same should be granted. Mr Saab supports the request that such leave be granted.
I am of the view that, having regard to the circumstances noted at [5] above, it is both necessary and desirable for the proper determination of the dispute, in terms of s 352(3A), that such leave be granted and I so order.
THE ARBITRAL PROCEEDINGS
The proceedings before the Arbitrator were recorded, a transcript (T) has been produced and copies have been made available to the parties. The documentary evidence tendered by each party was noted by the Arbitrator at [8] of Reasons. That material included documents attached to an Application to Admit Late Documents dated 2 April 2012 filed in a related matter of Hussein Hijazi v Unilever Australia Limited; 5763/2011. In addition to that material, the Arbitrator admitted into evidence the statements made by each of the claimants in the related matters. Having regard to the volume of those statements the Arbitrator, as noted by her at [9] of Reasons, did not require that they be “physically filed”. I note in passing that the admission of those statements was ordered in each of the remaining related matters.
The evidence of Mr Saab relevant to the issues considered by the Arbitrator is to be found in three written statements and in his oral testimony as recorded in the transcript. A summary of that evidence is to be found between [11] and [23] of the Arbitrator’s Reasons. That evidence may be further summarised as follows:
(i) Mr Saab was employed by the appellant between 1968 and 29 May 1998, the date of closure of the Turrella factory where he worked. He had no hearing defect when he commenced that work. He was “continuously exposed to noise” in the course of that work. He first noticed hearing problems in 1990. He reported that fact to the first aid nurse at work. A medical examination was arranged and conducted following which he was paid money by the appellant after some documents had been signed.
(ii) Mr Saab’s hearing problems continued thereafter. He felt the problems with his ears had continued after ceasing work and he “felt the loss was getting worse”. He has not been exposed to any noisy employment since leaving the employ of the appellant.
(iii) Mr Saab was never aware that he “could be suffering a further loss of hearing as a result of and due to the nature and conditions of [his] noisy employment with [the appellant]”. He was “completely ignorant to (sic) the fact that [he] had to give some or any further notice to [his] employer or anyone for that matter at any time prior to now” (relevant statement was dated 13 January 2010).
(iv) Mr Saab was informed by friends that he might have a right to make a further claim. He retained Mr Koutsoumis, solicitor. His solicitor arranged a hearing test which took place on 22 July 2009. A loss of hearing was demonstrated and Dr Scoppa, who conducted the test, was of the opinion that the loss was as a result of his work with the appellant. Mr Saab “had no knowledge that [he] had any right” to bring a claim in respect of that loss.
(v) Mr Saab’s evidence when cross-examined before the Arbitrator was that he “wasn’t sure” that he continued to suffer worsening hearing loss since 1990 until he “went to the doctor”. As noted by the Arbitrator, his subsequent evidence was “very confusing” (Reasons at [20]). This evidence is, where relevant, referred to below.
The evidence presented on behalf of the appellant establishes that Mr Saab had been paid $6,333.80 pursuant to s 66 of the 1987 Act in respect of “industrial deafness”, the date of injury being 14 August 1990. The date of such payment is not revealed on the evidence.
Each party tendered expert medical evidence, being that of Dr Scoppa and Dr Niall. Each of those experts expressed the view that Mr Saab had suffered binaural hearing impairment consistent with noise exposure. Both practitioners concluded that some of the hearing loss detected was not noise related.
A copy of Mr Saab’s Notice of Claim addressed to the appellant dated 7 August 2009 is in evidence.
The balance of the evidence has no relevance to the matters considered by the Arbitrator and need not be summarised.
Submissions before the Arbitrator
The appellant’s submissions before the Arbitrator were summarised and addressed by her between [38] and [55] of Reasons. It must be said that, as recorded, counsel’s submissions lacked precision and appeared to address matters not relevant to the issues earlier raised for determination. Following exchanges between the Arbitrator and counsel (between T69 and T74) it was made clear that the thrust of those matters put was that Mr Saab was, on the evidence, aware in terms of s 261(6) of the 1998 Act, that he had received relevant injury at a time being more than six months before he made his claim for compensation on 7 August 2009. More particularly, the argument advanced was that Mr Saab had failed to discharge the onus upon him of proving that notice of claim, having been given on 7 August 2009, was given within six months of a date, proven on the evidence, that he had become so aware. Failure to establish that matter prevented recovery of compensation claimed.
The appellant also argued that Mr Saab’s statement upon which he relied was of diminished probative value given that some of the content of that document had, having regard to statements made in related matters, been “word processed”. The argument put was that the statement did not contain direct evidence of Mr Saab, but rather words composed by those representing him.
Brief and non-specific reference was made by counsel to a number of authorities which were subsequently identified by the Arbitrator (at [48] of Reasons).
Mr Saab’s counsel submitted that his client relied upon the provisions of s 261(6) and that the evidence established that he was not “actually aware that he suffered further loss until he had a test with Dr Scoppa”. Following that event, the “claim was lodged in (sic) a short time thereafter” and that such lodgment was within time as prescribed by the Act.
The Arbitrator’s decision
The question concerning notice of injury was addressed by the Arbitrator at [34] and [35] of Reasons. It was noted by her that the injury alleged was deemed to have occurred on 29 May 1998. The requirements as to notice of injury were, it was found, regulated by s 61 of the 1998 Act as modified by s 17(1)(b) of the 1987 Act. The statutory requirement was, upon a reading of those provisions together, only that notice be given; that is, that no time limit was imposed. The notice of injury was found to have been given on 7 August 2009 and thus the requirements of s 61 had been met.
The Arbitrator proceeded to consider the question as to whether Mr Saab had complied with the requirements concerning making of claim as prescribed by s 261 of the 1998 Act. That question required a determination as to when Mr Saab had first become aware of his further hearing loss injury and whether the claim had, as required, been made within six months of that date.
Reliance was placed by the Arbitrator upon the decision of Roche DP in Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 (Inghams) where the question of “awareness” had been considered.
The appellant’s argument that Mr Saab had been aware of his injury at a time more than six months before he made his claim for compensation on 7 August 2009, was rejected by the Arbitrator. The authorities generally relied upon by the appellant, which were identified with precision by the Arbitrator, were found by her to be of no assistance in determining the question before her.
The Arbitrator identified the primary question for determination as being “whether Mr Saab had discharged his onus of proof regarding when he was first aware of his injury”, being the date of Dr Scoppa’s examination and report. Reference was made by the Arbitrator to the appellant’s arguments concerning the probative value of Mr Saab’s written statements. The impugned paragraphs were given no weight by the Arbitrator and a finding was made that those portions of the evidence had “no probative value on [the issue of awareness]” (at [55] of Reasons).
The Arbitrator proceeded to analyse the evidence and made observations concerning the unsatisfactory features of the evidence as presented by Mr Saab. Notwithstanding the state of the evidence the Arbitrator expressed her satisfaction that Mr Saab had “acquired his awareness that he allegedly suffered from industrial deafness, that is sensorineural hearing loss, when he was advised by Dr Scoppa who examined him on 22 July 2009”. The claim had been made on 7 August 2009 and, accordingly, a finding was made that Mr Saab had “complied with s 261(1) when read with s 261(6)” (at [61] of Reasons). The Arbitrator proceeded to make the determination and orders noted at [6] above.
SUBMISSIONS, DISCUSSION AND FINDINGS
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The first two challenges to the Arbitrator’s determination noted at [7] above, concern her findings in relation to matters raised by s 261 of the 1998 Act which, relevantly, provides as follows:
“261 Time within which claim for compensation must be made
(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
…
(6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.”
…
The findings challenged are to be found (at [61] of Reasons) where it was stated:
“Notwithstanding the unsatisfactory aspects of the evidence that I have referred to, I am therefore satisfied that Mr Saab acquired his awareness that he allegedly suffered from industrial deafness, that is sensorineural hearing loss, when he was so advised by Dr Scoppa who examined him on 22 July 2009. There is no evidence that he had earlier advice and I am satisfied this was his first awareness of his alleged injury. As Mr Saab made his claim for compensation within six months of that date, on 7 August 2009 he has complied with section 261(1) when read with section 261(6).”
The Arbitrator, when addressing the meaning of the words “first became aware” which appear in s 261(6), placed reliance upon dicta of Roche DP in Inghams. It was noted by the Arbitrator that the parties had agreed that the matters observed by the Commission in that matter “were a correct statement of the law” (at [52] of Reasons). Those observations were summarised by the Arbitrator at [39] and [40] of Reasons as follows:
“In Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 (Inghams Enterprises) Deputy President Roche made some general observations about the issue of when a worker first becomes aware that he or she has received an injury for the purposes of section 261(1) of the 1998 Act. These can be summarised as follows:
(a)“Because hearing loss of a gradual process can have many different causes, it is not sufficient that a worker is merely aware of loss of hearing and that he worked in a noisy place.”[86]
(b)“In the context of s 261... ‘aware’ means knowledge or knowing.”[88]
(c)“The test is an objective one, but is based on the individual worker’s knowledge, not the knowledge of some hypothetical person.”[89]
(d)“The worker must actually be aware, not constructively aware.”[89]
(e)“It is necessary to have regard to the worker’s state of knowledge at the relevant time.”[89]
(f)“A worker cannot be said to be aware he has received a work injury if he is unaware of the nature of the condition said to constitute the injury or is unaware that it has been caused by work.”[89]
(g)This “will usually require specialised knowledge that will normally come from an appropriate expert in the field.” [89]
(h)Awareness of injury for the purposes of section 261(6) does not involve knowledge of the claims procedure, time limits and need for expert evidence. [92]
Deputy President Roche concluded that the requisite awareness necessitates two things:
(i)Awareness that he has sensorineural hearing loss.
(j)His hearing loss has been contributed to by his employment.”
The Arbitrator’s summary, in my respectful view, correctly sets out the reasoning, with which I agree, expressed by Roche DP. I consider that the preliminary observation made at [87] of that decision is also of assistance. It was there stated:
“In general, the worker will be aware he has received an injury if he is aware of facts and circumstances, which, if accepted, give rise to an entitlement to compensation. However, determining awareness of receipt of an injury in the nature of boilermaker’s deafness is more difficult than it is with injuries that result from a specific traumatic or injurious incident”.
The relevance of that general observation arises on the present facts given the view expressed by both expert witnesses, Dr Scoppa and Dr Niall, that part of the hearing loss demonstrated by the audiology tests is not consistent with noise exposure.
The appellant’s submissions on this appeal suggest that those findings at [61] of Reasons were made in error. It is argued that the Arbitrator erred in reaching a conclusion that was against the evidence; that the provisions of s 261 had been erroneously construed and applied to the facts, and that she had erred in the manner in which the onus of proof upon Mr Saab had been considered.
Before considering the arguments raised it is important to note that the appellant, to succeed in its challenge to the Arbitrator’s factual findings, must demonstrate that the Arbitrator was wrong. Such error may be established by showing, as stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (at 506):
“Material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge was so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
The appellant relies upon the evidence of Mr Saab, when cross-examined, that he had continued to be exposed to “ongoing loud noise” after 1990; that his hearing was “getting worse during that time” and that “the only cause of such further loss of hearing was his employment with the appellant” (at 6(f) of Submissions). Having regard to the evidence, it is put that “it must follow that [Mr Saab’s] actual state of knowledge from 1990 was that he had suffered an injury (within the meaning of [s 4 of the 1998 Act]) by way of hearing loss as a result of his exposure to the loud noise whilst employed by the appellant”. It seems that the argument is that the Arbitrator had, adopting the wording of Barwick CJ, either “overlooked, or given undue or too little weight” to material facts established on the evidence and was thus wrong.
The argument as advanced is a reiteration of matters put to the Arbitrator which she has plainly rejected (between [41] and [46] of Reasons).
It may be seen from her Reasons that the Arbitrator has not overlooked evidence of facts which, by inference, the appellant argues are material. The question as to whether the Arbitrator has given too little weight to those matters must, in my view, be answered in the negative. I have reached this conclusion having regard to her following statement (at [46] of Reasons):
“Even if I make factual findings (that Mr Saab felt his hearing was getting worse after 1990 before 1998, he believed his employment with Unilever was noisy, and he thought in his own mind his worsening hearing loss was due to work at Unilever) this does not necessarily mean he had awareness that he suffered from further injury. It is highly relevant to note that in this matter both Dr Scoppa and Dr Niall have found that Mr Saab suffers from some loss of hearing that cannot be attributed to industrial deafness. In this circumstance I find Mr Saab could not have been aware as to whether he had suffered a further injury without audiometric testing.”
The reasoning of the Arbitrator, and in particular her rejection of the appellant’s argument that Mr Saab had first awareness of injury on a date years before he gave notice of injury, demonstrates no error. All the evidence was considered by her and relevant principle was correctly applied.
Onus of proof
The appellant correctly states (at [17] of Submissions), that “it is not necessary for the appellant to point to when [Mr Saab] first became aware of injury. It is for [Mr Saab] to prove that he was first aware of his injury no more than six months before he made his claim”.
That there was reversal of the onus of proof is not argued, nor would such argument avail the appellant given the Arbitrator’s clear statement made following rejection of the appellant’s submissions (at [53]):
“The question of real concern is whether Mr Saab has discharged his onus of proof regarding when he was first aware of his injury. His submissions are based on premise that it was not until Dr Scoppa’s examination and report that there was evidence he suffers sensorineural hearing loss.”
The thrust of the appellant’s argument concerning suggested error on the part of the Arbitrator in determining that Mr Saab had discharged the onus of proof upon him concerning the date of first awareness, is that his evidence “in his three statements and under cross-examination was contradictory, inconsistent and vague, such that the Arbitrator could not have been satisfied [that such onus had been discharged]” (at [18] of Submissions).
The Arbitrator had accepted (as noted at [20] of Reasons) that Mr Saab’s oral evidence was “very confusing”. In the course of her Reasons, both that evidence and the written statements of Mr Saab were carefully considered (between [55] and [57] of Reasons). The Arbitrator had also considered the appellant’s submission that portions of the written statements were of no probative value. As to that last submission, the Arbitrator, as earlier noted, placed no weight upon that evidence having concluded that it had “no probative value on this issue” (at [55] of Reasons).
It may be seen that, for the reasons stated by her, the Arbitrator has disregarded that evidence. However, the appellant’s submissions on appeal include a complaint that the Arbitrator should have “dealt with this evidence in terms of [Mr Saab’s] credit” (at [25] of Submissions). Such an argument had not been elucidated before the Arbitrator, but no objection to the raising of this point on appeal is made. It is Mr Saab’s submission that the Commission would be “reluctant to overturn” a finding founded upon the credit of a witness (submission [3]). Having regard to the manner in which the relevance of the written statements was argued, I conclude that the Arbitrator’s manner of dealing with that evidence demonstrates no error.
Emphasis in the appellant’s submissions is placed upon the evidence concerning a hearing test conducted after referral by Mr Saab’s family doctor. Mr Saab had stated in evidence that, in the opinion of the assessor, he had suffered further hearing loss as a result of noise exposure at work. The date of such consultation and assessment is not to be found in the evidence and Mr Saab was unable to state in evidence, when questioned by his own counsel, whether he had undergone more than one such hearing test.
Those matters were noted by the Arbitrator. It was her view that there were unsatisfactory aspects of Mr Saab’s evidence. That conclusion was, in my view, inevitable given the confusion as earlier noted and the failure, as noted by the Arbitrator (at [59] of Reasons), to explain or clarify discrepancies which existed in his evidence. It is the appellant’s contention that a proper consideration of that unsatisfactory evidence would not permit the conclusion reached that Mr Saab first became aware of receipt of injury on 22 July 2009.
The appellant’s submission must be rejected. The Arbitrator’s approach to the evidence took into account the criticism of the evidence raised before her. She rightly observed that it was not open to her to speculate as to whether the assessor (an audiologist) referred to in Mr Saab’s evidence was Dr Scoppa. The Arbitrator went further to state that “prima facie one would have to conclude it was not Dr Scoppa given there is no evidence … that [Mr Saab’s] family doctor referred him to Dr Scoppa” and that the report of Dr Scoppa acknowledged the solicitor’s referral for a medicolegal assessment.
It is clear that Mr Saab’s statement, made 13 January 2010, that the referral by the family doctor was made “recently” was accepted by her and was crucial to her conclusion that it [the referral] was “unlikely to have been before Dr Scoppa’s examination and that Mr Saab’s first awareness of injury arose when advised by Dr Scoppa on 22 July 2009”. That finding was open to the Arbitrator on the evidence and the appellant has failed in my view to establish any relevant error.
An argument has been put which suggests that the Arbitrator erred in her reliance upon matters stated in Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 (Dawson). That argument in my view should be rejected. It was acknowledged by the Arbitrator that the decision in Dawson was not concerned with the proper construction and application of s 261. Her reference to that decision must, in my view, be understood to have been made with the purpose of illustrating the peculiar features of a s 17 injury which must be taken into account when the question of awareness is being considered. On the present facts the relevance to the question of first awareness of expert opinion concerning causal nexus between hearing loss and noise exposure is self-evident having regard to the experts’ opinions that Mr Saab’s loss arose, in part, by reason of factors other than such exposure. In such circumstances requisite “awareness” is unlikely to arise in the absence of such expert opinion.
Adequacy of reasons
It is the appellant’s contention that the Arbitrator “has failed to address the obvious and many inconsistencies in [Mr Saab’s] evidence”. It is suggested that no reasons have been advanced for the Arbitrator’s acceptance of that part of the evidence. It is suggested that the Arbitrator has, for no stated reason, “ignored that evidence which is inconsistent or contradictory”.
This submission is not developed, nor are any particular inconsistencies or contradictions identified other than those raised earlier in the course of argument. I have earlier noted the Arbitrator’s expressed views concerning the state of the evidence. Her conclusion as to awareness was reached notwithstanding the unsatisfactory state, as found by her, of the evidence. She expressed her acceptance of the evidence of Mr Saab that infers that referral by his family doctor was “unlikely to have been before [22 July 2009]”. It is that acceptance and the drawing of the inference, both being open to her, that constitute the reasons for her conclusion. Such reasoning, in my view, is adequate and meets the requirements concerning the adequacy and sufficiency of reasons required by law (see Beale v GIO (NSW) (1997) 48 NSWLR 430 per Meagher J at 443). The appellant’s complaint concerning the failure to provide sufficient reasons should be rejected.
The appellant has failed to establish any relevant error. In the circumstances the appeal must fail. Appropriate orders are made below.
DECISION
The following orders are made:
1.Leave is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 to appeal the Arbitrator’s decision made on 30 October 2012.
2.The Arbitrator’s determinations and order made in the Certificate of Determination dated 30 October 2012 are confirmed.
COSTS
The appellant is to pay Mr Saab’s costs of the appeal regardless of the outcome of the primary application before the Arbitrator.
Kevin O’Grady
Deputy President
14 January 2013
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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