Wagga Wagga RSL Club Ltd v Shedden
[2006] NSWWCCPD 47
•20 March 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Wagga Wagga RSL Club Ltd v Shedden [2006] NSWWCCPD 47
APPELLANT: Wagga Wagga RSL Club Ltd
RESPONDENT: Anthony Shedden
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER: WCC 16405-05
DATE OF ARBITRATOR’S DECISION: 7 December 2005
DATE OF APPEAL DECISION: 20 March 2006
SUBJECT MATTER OF DECISION: Arbitrator’s discretion to admit late documents
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore, Lawyers
Respondent: Whitelaw McDonald, Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 7 December 2005 is confirmed.
The Appellant is to pay the Respondent, Mr Shedden’s costs in this appeal.
BACKGROUND TO THE APPEAL
On 30 December 2005, Wagga Wagga RSL Club Ltd (‘the Appellant’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 7 December 2005. The Respondent to the appeal is Anthony Shedden. The Appellant’s workers compensation insurer is CGU Workers Compensation (NSW) Ltd (‘CGU’).
Mr Shedden was born on 7 April 1955 and is aged 50. He commenced employment with the Appellant in September 1994 as a casual cleaner, and later became a cellarman/storeman. Between 1997 and 2005, Mr Shedden injured his back, right leg and right arm in a series of incidents, notice of which were given to the Appellant. On 22 April 2005, his solicitors wrote to the Appellant notifying it of Mr Shedden’s claim for compensation. Mr Shedden’s solicitors claim to have received no response to their letters to CGU dated 8 June 2005, 4 July 2005 and 5 September 2005. On 26 September 2005, the Commission registered Mr Shedden’s ‘Application to Resolve a Dispute’ in respect of his claim for compensation for permanent impairment and pain and suffering arising from the above injuries.
On 23 November 2005, the Commission received the Appellant’s ‘Application to Admit Late Documents’, namely CGU’s ‘Reply’, and, on 2 December 2005, the Commission received the Appellant’s second ‘Application to Admit Late Documents’, namely three reports from Dr John Silver, Consultant Occupational Physician, dated 24 November 2005.
The Arbitrator conducted a teleconference with the parties on 5 December 2005, at the conclusion of which he gave an oral decision in the terms set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 7 December 2005, records the Arbitrator’s orders as follows:
“1. The Solicitors for the Insurer were not granted leave to admit the Reply attached to their Application to Admit Late Documents filed with the Commission on 23rd November 2005.
2. The Insurer’s Solicitor was not granted leave to admit the report of Dr Silver attached of 24th November 2005 into evidence, that being attached to Insurer [sic] Solicitors’ Application to Admit Late Documents filed with the Commission on 2nd December 2005.”
The Arbitrator gave oral reasons for his decision at the conclusion of the teleconference. He noted that Mr Shedden’s solicitors objected to the Appellant’s ‘Application to Admit Late Documents’ after having written a series of letters to the Appellant, dated 22 April 2005, and CGU, dated 8 June 2005, 4 July 2005 and 5 September 2005, to which no response had been received. The Appellant’s ‘Reply’ was due on 17 October 2005 but was received by the Commission on 23 November 2005, with an unsealed copy being received by Mr Shedden’s solicitors on 28 November 2005. The ‘Reply’ indicated that a report was being sought from Dr John Silver, Consultant Occupational Physician, following an examination on 22 November 2005. Dr Silver’s three reports, all dated 24 November 2005, totalling 24 pages, were not, however, filed with the Commission until 2 December 2005, and only faxed to Mr Shedden’s solicitors after the commencement of the teleconference on the afternoon of 5 December 2005.
The Arbitrator noted that CGU’s solicitors had received their client’s ‘Reply’ on 19 November 2005, but there was no explanation as to why CGU had not instructed its solicitors until about 19 November 2005 when there was correspondence from Mr Shedden’s solicitors going back to April 2005. Notwithstanding that Mr Shedden’s claim for weekly compensation had been met and that the matter involved a number of claims going back to 1997, Mr Shedden could have expected some earlier response and that the matter would be dealt with properly and efficiently. This had not occurred with the Appellant and for that reason the Arbitrator refused leave to admit both the ‘Reply’ and the reports of Dr Silver. The Arbitrator then referred the assessment of Mr Shedden’s whole person impairment to the Registrar for referral to an Approved Medical Specialist.
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator erred by refusing leave to admit the Appellant’s late ‘Reply’ and the medical reports of Dr Silver. The parties’ submissions on this issue are discussed below.
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I note Mr Shedden claims compensation for whole person impairment, amounting to $29,500, together with $20,000 compensation for pain and suffering.
I am satisfied that although the Arbitrator’s decision did not involve an ‘award’, the decision does “have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Ltd [2003] NSW WCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21))” (Fletchers International Exports Pty Ltd v Regan [2004] NSW WCC PD 7 at page 5). I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS
The Appellant’s submissions
The Appellant submits that allowing the Reply and Dr Silver’s reports to be admitted would afford it natural justice. To not do so, would deprive the Appellant of the ability to defend the claim and put evidence to the Commission. Late lodgement of the Reply will not adversely affect the timely resolution or determination of the claim, or prejudice Mr Shedden. Substantial prejudice or injustice are relevant factors for an arbitrator to take into account in deciding whether to exercise the discretion to admit a late Reply. Moreover, the Commission is required to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (section 354(3) of the 1998 Act).
The Appellant submits the allegation that CGU did not respond to correspondence from Mr Shedden’s solicitors is unfounded. CGU never received the letter dated 22 April 2005. It replied to the letter dated 8 June 2005 by fax dated 15 June 2005 confirming that the letter dated 22 April 2005 was never received. Mr Shedden’s solicitors confirmed receipt of this fax by letter dated 4 July 2005. Moreover, CGU responded to Mr Shedden’s solicitors’ letter dated 5 September 2005 by letter dated 9 September 2005. By letter dated 1 September 2005, CGU also wrote to Dr Barry Bracken, Orthopaedic Surgeon, care of Mr Shedden’s solicitors, seeking a supplementary report on whether maximum medical improvement had been attained. No response was ever received.
The Appellant also submits that it should be permitted to tender fresh evidence in the form of the Reply and Dr Silver’s medical reports, together with copies of relevant correspondence confirming that CGU did respond to correspondence from Mr Shedden’s solicitors and, indeed, sought to resolve the matter without the need for referral to the Commission.
Mr Sheddens’ solicitors’ submissions
Mr Shedden’s solicitors state that their letter dated 22 April 2005 was received by Wagga Wagga RSL Club, as is apparent from an endorsement on the letter received, produced under a Direction to Produce. Mr Shedden’s solicitors seek leave to file a copy of that endorsed letter as fresh evidence.
Mr Shedden’s solicitors submit that since 22 April 2005, neither they nor Mr Shedden have received any notice from CGU conforming with section 74 of the 1998 Act and clause 34 of the Workers Compensation Regulation 2003. Furthermore, Mr Shedden’s solicitors have never received a copy of either the Appellant’s Reply or its Applications to Admit Late Documents properly served in accordance with section 290 of the 1998 Act and the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’). The Appellant has also never tendered any reasonable excuse for failure to file the Reply in accordance with Rule 39.
Mr Shedden’s solicitors submit the Appellant’s conduct has caused Mr Shedden substantial prejudice by failing to provide reasonable notice of the issues upon which the Appellant intended to rely. Moreover, the late lodgement of the Reply prejudiced Mr Shedden’s solicitors’ ability to prepare and file a response.
FRESH EVIDENCE
Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
For the purpose of clarifying the parties’ claims concerning the correspondence that passed between them in the period April to September 2005, so that I can properly weigh the merits of their submissions, I grant leave to admit the following documents:
1. Letter dated 16 March 2005 from CGU to Mr Shedden about its management of his injury and what he should do if there is a dispute.
2. Letter dated 21 April 2005 from CGU to Mr Shedden requesting that he complete and return the enclosed Employee Compensation Claim form.
3. Letter dated 22 April 2005 from Mr Shedden’s solicitors to Wagga Wagga RSL Club, produced pursuant to a Direction for Production on the Club, bearing the endorsement at the top of the first page “copy to Jardines 3/5”.
4. Letter dated 3 May 2005 from Mr Shedden’s solicitors to CGU seeking information concerning the weekly compensation being paid to Mr Shedden.
5. CGU file notes dated 30 May 2005 (of a phone call to Mr Shedden when a message was left) and 1 June 2005 (of Mr Shedden’s returning that call).
6. Employee’s Compensation Claim form completed by Mr Shedden and received by CGU on 14 June 2005.
7. Fax dated 15 June 2005 from CGU to Mr Shedden’s solicitors, stating that letters dated 22 April 2005 and 3 May 2005 had not been received.
8. Letter dated 1 September 2005 from CGU to Dr Bracken addressed c/o Mr Shedden’s solicitors, requesting a supplementary report.
9. Letter dated 9 September 2005 from CGU to Mr Shedden’s solicitors advising that it is still awaiting a response from Dr Bracken.
I refuse leave to admit the ‘Reply’ and Dr Silver’s reports of 24 November 2005 for the purposes of this appeal because these documents are the focus of the appeal. A decision that the Arbitrator erred in refusing to admit these documents would lead me to conclude that they should be admitted.
DISCUSSION
Having dealt with the parties’ applications to admit fresh evidence in relation to the appeal, I turn now to the principal issue in dispute in the appeal, namely whether the Arbitrator erred by refusing leave to admit the Appellant’s late ‘Reply’ and the medical reports of Dr Silver. Firstly, with regard to Mr Shedden’s solicitors’ claim that they had received no response to their letters in the period April to September 2005, the new evidence that I have granted leave to admit indicates that they did in fact receive responses from CGU to their letters dated 8 June 2005 (fax dated 15 June 2005, stating letters of 22 April 2005 and 3 May 2005 not received) and 5 September 2005 (letter dated 9 September 2005). I also note Mr Shedden’s solicitors’ letter dated 4 July 2005, enclosed a copy of their letter addressed to Wagga Wagga RSL Club dated 22 April 2005 and their letter to CGU dated 3 May 2005.
With regard to the period from early September 2005, it is clear CGU was initially awaiting a response from Dr Bracken to its letter dated 1 September 2005 requesting a supplementary report addressing the question whether Mr Shedden had attained “maximum medical improvement”. The Commission received Mr Shedden’s ‘Application to Resolve a Dispute’ on 23 September 2005 and registered this on 26 September 2005.
The Appellant’s ‘Application to Admit Late Documents’ attaching its ‘Reply’ was received by the Commission on 23 November 2005. The Application stated that the Appellant’s solicitors had only received the file on 19 November 2005 and a Reply was filed as soon as possible. No other explanation was given for the delay in lodgement. This Application should have been served on Mr Shedden’s solicitors on the same day it was lodged with the Commission. In fact, they apparently only received an unsealed copy on 28 November 2005, one week before the teleconference. My review of the Reply indicates that it refutes liability for the injury. Accompanying the Reply are Directions for Production, also received by the Commission on 23 November 2005, and the Reply refers to evidence as to liability and quantum expected from Dr Silver in early December 2005, following an appointment on 22 November 2005.
The granting of leave to file late documents in proceedings before an Arbitrator, including the Reply and medical evidence, is governed by section 290 of the 1998 Act and the 2003 Rules. Section 290 states:
“(1) When a dispute is referred for determination by the Commission, each party to the dispute must provide to the other party and to the Registrar, as and when required to do so by the Rules, such information and documents as the Rules require.
(2) A party to a dispute who fails without reasonable excuse to comply with a requirement of this section is guilty of an offence.
Maximum penalty: 50 penalty units.
(3) Any document or information that a party to a dispute has failed to provide in contravention of this section cannot be admitted on behalf of the party in proceedings on the dispute before the Commission.
(4) Subsections (2) and (3) do not apply if the party is a worker unless it is established that the worker was represented by a legal practitioner or agent (as defined in section 131) at the relevant time.
(5) The regulations may provide for exceptions to subsection (3). In particular, the regulations may authorise the Commission to permit the admission in proceedings before the Commission in specified circumstances of a document or information that would otherwise be not admissible under that subsection.
(6) If the Registrar is satisfied that an applicant has failed without reasonable excuse to comply with a requirement of this section, the Registrar may do any one or more of the following:(a) refer the matter to the Authority,
(b) note the matter in a certificate issued by the Registrar in respect of the dispute (together with details of the documents or information to which the failure relates),(c) order that a specified amount or proportion of the costs that would otherwise be recoverable by the party in connection with the referral of the matter to the Commission are not recoverable.”
With regard to documents that must be lodged by the respondent, Rules 39 and 40 provide relevantly:
“39 Reply by respondent
(1) The respondent in any proceedings must, within 21 days from the date of registration of the application to resolve a dispute in the proceedings, lodge a reply to the application and serve a sealed copy of the reply on the applicant and any other party to the proceedings.
(2) If the applicant is an employer (but not a self-insurer), the respondent must serve the reply on both the employer and the employer’s insurer.
40 Material to be lodged by respondent
(1) For the purposes of section 290 of the 1998 Act, the respondent must lodge and serve with the reply all information and documents on which the respondent proposes to rely that have not been lodged with the application to resolve a dispute in the proceedings and that are in the possession or control of the respondent at that time.
(2) Subject to subrules (3) – (5), a respondent may not in proceedings introduce evidence that has not been lodged with the application to resolve a dispute, reply or response, or as required by rule 44, in the proceedings unless:
(a) the respondent has lodged and served with the reply a statement revealing:
(i) the specific nature of the evidence, and
(ii) the reliance the respondent intends to place on the evidence, and
(iii) the reasons why the evidence is not available at the time of
service, and
(iv) the time it is expected to be available, and
(b) the evidence is served on all other parties and lodged as soon as practicable after the evidence becomes available.
(3) The Commission may, for the avoidance of injustice, allow a respondent to introduce evidence that the respondent would otherwise be prevented from introducing because of the operation of subrule (2).”
Rule 40 subrules (4) and (5) are not relevant in Mr Shedden’s case. Rule 41 permits the applicant to respond to issues not raised in the application but raised in the Reply within seven days of being served with the Reply.
The Commission’s Practice Direction No 9, Late Lodgement of Documents, provides as follows:
“APPLICATION FOR LEAVE TO LODGE LATE DOCUMENTS
Parties are expected to comply with the timeframe requirements of the Rules. A party wishing to lodge late evidence or a late reply must seek leave of the Commission.
A party seeking leave to admit late evidence or a late reply must make an application on the Commission’s approved form ... The application must indicate service on the other parties, explain why the documents were not available in accordance with the timeframes in the Rules, and state why leave should be granted. If this information is not provided, the application for leave to admit late documents WILL NOT be accepted.
DETERMINATION OF AN APPLICATION FOR LEAVE TO LODGE LATE DOCUMENTS
Applications to admit late documents will be resolved by the Arbitrator in accordance with section 355(1) of the Act.
The Arbitrator will generally deal with the application to admit late documents at the teleconference, held in accordance with the Registrar’s Guideline for The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission.
In determining an application for leave to lodge late documents, the Arbitrator will take into consideration:
• the submissions of the parties, including, if any, oral or written objections to the grant of leave,
• the effect, if any, on the timely resolution of the dispute,
• the extent of the prejudice to the other parties, if any, that would result from granting leave,
• the requirements of the Act and the Rules, and
• the objectives of the Commission.”
In ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21 (‘ADCO’), Deputy President Fleming said that in the absence of any legislative direction as to how the discretion to dispense with the requirements of the Rules is to be exercised, it will be a matter for the arbitrator to determine in accordance with what is fair and reasonable in the particular circumstances of the case. She set out a number of factors that should be taken into account by the arbitrator when considering whether to exercise the discretion to admit a late Reply. These include the following (at paragraph 20):
“• the conduct of the party seeking leave, in particular whether there is an acceptable explanation for the delay although this factor is not a precondition to the grant of an extension of time (Dix and Another v Crimes Compensation Tribunal [1993] 1 VR 297, Workers Compensation Commission Practice Direction 9),
• whether or not the refusal to admit the Reply will cause a substantial prejudice or injustice to the party seeking leave. It will also be relevant whether that prejudice can be remedied by other means, for example, by an order for costs,
• the prejudice, if any, that would result to the other party in admitting the Reply, although the mere absence of prejudice is not necessarily sufficient to grant an extention of time (Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305, Practice Direction 9),
•whether or not the delay in filing was attributable to the legal representative and not the party personally, although this does not necessarily entitle the party seeking leave to an extension of time (Sophron v The Nominal Defendant [1957] 96 CLR 469; Gallo v Dawson (1990) 64 ALJR 458),
• the nature of the proceedings, including the nature of the relevant statutory scheme and the objectives of the legislation (Workers Compensation Commission Practice 9), and
• general considerations of fairness and justice between the parties (Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305; Gallo v Dawson (1990) 64 ALJR 458).”
The Deputy President noted (ADCO, at paragraph 21):
“A consideration of these factors in the instant case represents a balancing of interests as between the parties, and the public interest in the fair and efficient resolution of disputes by the Commission, in accordance with its statutory objectives. The unusual costs regime that applies to the conduct of matters in the Commission, means that it is unlikely the matter can be remedied by way of an order for costs. Section 341 of the 1998 Act provides that the Commission may not order the payment of costs by a claimant unless the Commission is satisfied that the claim was frivolous or vexatious, fraudulent or made without proper justification. An award of costs against a Respondent who has caused an Applicant some prejudice or delay in the proceedings, is therefore not likely to be an additional punitive burden on a Respondent. In addition, the fundamental nature of the documents at issue in this matter, ie the ‘Reply to an Application to Resolve a Dispute’, which incorporates the evidence to be given by the Appellant in answer to the claim, is significant.”
In Rohloff v Diacut Pty Ltd (in Liquidation) [2005] NSW WCC PD 17, where the filing of a late Reply was also in issue, Deputy President Fleming commented, at paragraph 39:
“Non-compliance with the Commission’s Rules and procedural guidelines is a significant matter and the exercise of discretion by an Arbitrator in relation to late documents must be considered on the facts of each case. In the majority of cases it might be expected that non-compliance with the Rules would lead to the refusal to allow the filing of late documents. Ultimately however, the ‘avoidance of injustice’ is the intended result.”
In Mr Shedden’s case, notwithstanding that the Arbitrator was not in possession of all the information as to the correspondence between the parties in the period March to September 2005, I am satisfied that CGU failed to meet its obligations to instruct its lawyers in a timely manner to enable a Reply to be lodged within the required time frame. Pursuant to Rule 39 of the 2003 Rules, the Appellant was required to lodge its ‘Reply’ within 21 days of the Commission registering Mr Shedden’s ‘Application to Resolve a Dispute’ (on 26 September 2005), that is by 17 October 2005. No satisfactory explanation for this delay has been provided. Secondly, as to whether a refusal to admit the Reply would lead to a substantial prejudice or injustice to CGU, I note the Reply contains a brief and fairly standard non-specific recitation of disputed issues. The only accompanying document is the report of an ultrasound dated 2 May 2005. In my view, a refusal to admit the Reply would not, in the circumstances, cause substantial prejudice or injustice to CGU.
Thirdly, with regard to prejudice to Mr Shedden, I note a copy of the Application to Admit Late Documents, including the Reply, was not received by his solicitors until 28 November 2005, seven days before the teleconference, and no sealed copy has apparently ever been properly served. In my view, admission of the Reply by the Arbitrator in those circumstances would have caused prejudice to Mr Shedden. With regard to other means of remedying the prejudice, as Deputy President Fleming noted in ADCO, quoted above, an award of costs against a respondent who has caused an applicant some prejudice or delay in the proceedings, is not likely to be an additional punitive burden on a Respondent.
Fourthly, the delay in filing the Reply was apparently caused by CGU and not by its solicitors. Fifthly, the nature of the proceedings before the Arbitrator sought the timely, fair and efficient resolution of a dispute. As Deputy President Fleming noted in ADCO, the statutory objectives of the Commission, read in the light of the 1998 Act, equate with the fair and efficient resolution of disputes by the Commission, which is required “to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (section 354(3)). Lastly, with regard to general considerations of fairness and justice between the parties, and a balancing of the parties’ interests in the context of these proceedings, I am not satisfied that I should interfere with the exercise of the discretion by the Arbitrator.
In my view, the Arbitrator was justified in being critical of CGU’s conduct and the fact that this was prejudicial to Mr Shedden’s solicitors’ preparation of his case. Apart from the late lodgement of their Reply, the Appellant then lodged a second ‘Application to Admit Late Documents’ in respect of the three reports of Dr Silver dated 24 November 2005, filed with the Commission on 2 December 2005, that were not provided to Mr Shedden’s solicitors until well into the teleconference itself when they were received by fax. This Application has also, apparently, never been properly served. Clearly the receipt of the reports during the teleconference was highly prejudicial to Mr Shedden’s case and undermined the possibility that Mr Shedden’s solicitors might prepare an appropriate response or obtain other evidence.
CGU was in breach of section 290(1) of the 1998 Act as well as Rule 39 (in relation to the Reply) and Rule 40 (in relation to Dr Silver’s reports), with the consequence that, pursuant to section 290(3), documents provided in contravention of that subsection could not be admitted on behalf of CGU in proceedings before the Commission. In my view, having regard to the Commission’s Practice Direction No 9 and the relevant case law, and having balanced the interests of the parties in the context of these proceedings, the Arbitrator was justified in deciding not to exercise his discretion under Rule 40(3) to admit the late Reply and the late reports from Dr Silver.
The decision of the Arbitrator must therefore be confirmed. Mr Shedden should now be referred to an Approved Medical Specialist for assessment, in accordance with the Arbitrator’s determination.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The Appellant is to pay the Respondent, Mr Shedden’s costs in this appeal.
Robin Handley
Acting Deputy President 20 March 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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