Wang v Fuji Xerox Australia Pty Limited
[2005] NSWWCCPD 46
•1 June 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Wang v Fuji Xerox Australia Pty Limited [2005] NSW WCC PD 46
APPELLANT: Fuji Xerox Australia Pty Limited
RESPONDENT: Julia Chunyan Wang
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC 112-04 & 95-04
DATE OF ARBITRATOR’S DECISION: 3 June 2004
DATE OF APPEAL DECISION: 1 June 2005
SUBJECT MATTER OF DECISION: Adequacy of evidence in respect of defence under section 9A and section 11A of the Workers Compensation Act 1987, and obvious error.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: QBE Workers Compensation (NSW) Limited In House Legal
Respondent: Kells The Lawyers
ORDERS MADE ON APPEAL: (1) The Certificate of Determination
issued by the Commission on 3 June 2004 is amended as follows:
(a) Substitute the date “12.12.02” in paragraph 1 in lieu of “1.12.02”.
(b) Substitute the date “9 December 2003” in paragraphs 2 and 4 in lieu of “19th December 2003.
(2)The decision of the Arbitrator is confirmed.
BACKGROUND TO THE APPEAL
Julia Chunyan Wang (‘the Respondent Worker’) was employed by Fuji Xerox Australia Pty Limited (‘the Appellant Employer’) on 19 June 2000. She commenced work as an accountant, initially in the treasury section located at the North Ryde office, but subsequently transferred to the Mascot premises in the position of cost accountant on 1 July 2002.
The Respondent Worker claims to have suffered a psychological injury as a result of the nature and conditions of her employment between September and December 2002, which resulted in her being either totally or partially incapacitated for work from 12 December 2002.
The Respondent Worker filed a report of injury on 24 December 2002 citing the date of injury as 11 December 2002. By letter dated 30 December 2002 the insurer, QBE Workers Compensation (NSW) Limited (‘the Insurer’), advised that the claim had been provisionally accepted and weekly payments were to be made from 12 December 2002 to 12 March 2003.
By letter dated 19 February 2003, the insurer advised that liability had been declined by virtue of the provisions of section 9A and section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 5 January 2004, the Respondent Worker lodged an Application to Resolve a Dispute (‘the Application’) seeking reinstatement of weekly benefits from 20 February 2003. That Application was allocated Matter No. 95 of 2004. For some unknown reason, a separate Application was lodged on the same day seeking payment of section 60 expenses. That Application was allocated Matter No. 112 of 2004. Both Applications were heard together.
The matter was set down for conciliation/arbitration hearing on 13 May 2004 and concluded on that day.
On 3 June 2004 a Certificate of Determination with Reasons (separately dated 18 May 2004) was issued, wherein an award was made in favour of the Respondent Worker for weekly compensation at varying rates from 1 December 2002 to 19 December 2003 under section 36 and section 40 of the 1987 Act, and for section 60 expenses up to 19 December 2003.
On 2 July 2004, the Appellant Employer filed an Application to Appeal against the Arbitrator’s Decision. The grounds for appeal are not easy to extract from the 12 point “Statement setting out grounds for appeal against decision of Arbitrator” filed by the Appellant Employer. In essence however, there seem to be four grounds set out in points 1, 3, 4 and to some extent, 11, as follows:-
“1.The Arbitrator has erred in awarding the Applicant weekly compensation from 1 December 2002, when the Arbitrator recites, the first absence from work was 6 December 2002 when the Worker was off for two days before returning to work on 8 December 2002 and going off work for the last time on 12 December 2002.
3.The Arbitrator erred in dismissing the Respondent’s [Appellant Employer’s] defence under section 9A considering all the medical evidence before her.
4.The Arbitrator erred in dismissing the Respondent’s defence under Section 11A.
11.In the event that this appeal fails upon the grounds referred to above, the Appellant appeals on the ground that the Arbitrator has not determined the Respondent’s correct weekly compensation entitlement to workers compensation because:-
(a)The Arbitrator erred in finding the Applicant totally incapacitated until June 2003. This is in stark contradiction to the evidence. The worker was as at April 2003 seeking employment and had her name down with certain employment agencies.
(b)The Arbitrator failed to identify as an issue in the proceedings whether she should exercise her discretion under Section 40 and her application of same”.
The Appeal satisfies the criterion set out in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The Respondent Worker filed undated submissions on or about 19 October 2004. The Respondent Worker claims the Appeal papers were not received until 17 September 2004 even though they were purportedly served under cover of a letter from the Insurer dated 18 August 2004. The Respondent Worker submits that the Appellant Employer was directed to serve a sealed copy of the ‘Application to Appeal against Decision of Arbitrator’, by 21 July 2004, and was in breach of Part 13 Rule 77(4) of the Workers Compensation Commission Rules 2003 (‘the Rules’).
Under Part 3 Rule 13, the Commission “… may by order extend or abridge any time fixed by these rules…” and may do so of its own motion.
No explanation has been offered by the Appellant Employer as to why it took so long to serve the Appeal documents. They were certainly filed in time. However, I am satisfied that no prejudice has occurred to the Respondent Worker by the late service of the Application to Appeal. The Respondent Worker has had an opportunity to file its submissions and accordingly, I grant leave to the Appellant Employer to proceed with the Application to Appeal.
The Appellant Employer submits that “if leave to appeal is granted there is enough evidence on the papers, subject to the availability of a transcript of evidence, to determine the matter”. The Respondent Worker is silent in its submissions on this point.
Having carefully read all of the documents before me, including the transcript of proceedings before the Arbitrator and the evidence that was before her in those proceedings, and taking into account the submissions made by both parties, I am satisfied that I have sufficient information to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
SUBMISSIONS
The power of a Presidential Member of the Commission on Appeal to revoke a decision is exercisable only when it can be demonstrated that the decision of the Arbitrator is affected by a legal, factual or discretionary error (Allesch v Maunz (2002) 293CLR 172).
The Respondent Worker submits that the Appellant Employer’s “Statement setting out grounds for appeal against decision of Arbitrator” does not in fact disclose any grounds at all. The Respondent Worker, at paragraph 10 of her submissions, cites the decision of Deputy President Fleming in Ross v Zurich Workers Compensation Insurance (2002) NSW WCC PD7 and quotes as follows (paragraph 18):-
“Appeal to a Presidential Member is concerned with claimed error, of law or fact, not with the hearing of evidence and determination of the matter at first instance”.
The Respondent Worker quotes further:
“It is not an appeal in the strict sense, as the Commission can receive further evidence. Similarly, it is not a rehearing of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time”.
In short, the Respondent Worker submits that there is no proper basis for the Appeal since the Appellant Employer has not specifically identified any error of law or fact in its statement.
As I have said, the Appellant Employer listed 12 points in its Statement setting out grounds for appeal. Only four, identified in paragraph 8 above, purport to specify a ground for appeal, even though, as the Respondent Worker rightly points out, the Appellant Employer has not specifically identified the substance of any alleged error of law or fact.
The other points are essentially ‘comment’ on the Arbitrator’s findings and by way of submissions on the evidence before the Arbitrator. For example, the Appellant Employer at paragraph 6 submits “Although the balance of the medical evidence seems to accept that the Applicant became upset, the whole purpose of section 11A is to enable an employer to (reasonably) raise performance issues and discipline with workers”. And at paragraph 7 “In this case Mr Sharam, although perhaps ‘not happy’, was arguably reasonable in his actions as was the Respondent”.
These points do not demonstrate any ground of appeal.
Both parties were represented by counsel at the hearing before the Arbitrator and their respective submissions are recorded at length in the transcript. Counsel for the Appellant Employer made submissions on the very matters raised in paragraphs 6 and 7 of the Appellant Employer’s statement, and indeed the matters raised in all 12 points of the Appellant Employer’s statement.
I am mindful of the Appellant Employer’s comments in its statement, but my task is to identify any error of fact, law or exercise of discretion on the part of the Arbitrator, not to rehear the matter on the basis of those comments.
EVIDENCE AND FINDINGS
Dealing with the Appellant Employer’s grounds of appeal seriatim, the Appellant Employer submits in paragraph 1 that there has been an error in the date upon which the award commenced.
The Arbitrator’s determination in paragraph 1 read as follows:
“That the Respondent pay the Applicant weekly compensation at the rate of $784.59 from 1 December 2002 for the first 26 weeks of her total incapacity and thereafter at the maximum statutory rate until 19 June 2003 under section 36 of the Workers Compensation Act 1987”.
The Arbitrator goes on to determine (paragraph 3) “that the Respondent be credited for the weekly compensation already paid to the Applicant in the amount of $7,845.98”.
In the Statement of Reasons for Decision the Arbitrator records (paragraph 5) “provisional weekly payments of compensation were made by the insurer from 12 January 2002 to 19 February 2003”.
Clearly, on the evidence before the Arbitrator, the date of 12 January 2002 in paragraph 5 of the Reasons and 1 December 2002 in paragraph 1 of the Determination are wrong. Under the heading “The Injury and Nature of the Claim”, the Arbitrator recites the history of the Respondent Worker’s employment with the Appellant Employer. At paragraph 34 she notes:
“On 6 December 2002 the Applicant attended her GP who certified her unfit for work for two days. Mrs Wang returned to work on 8 December 2002. On 11 March (sic) Mrs Wang met with the Human Resources Manager… on 12 December 2002 Mrs Wang’s GP certified her unfit … Mrs Wang was certified unfit from that time onwards”.
Again, clearly the reference to 11 March quoted above is wrong, but it is obvious from a reading of the whole history, from paragraphs 28 to 35 of the Reasons, that the month should read December, not March.
In paragraph 35, the Arbitrator records: “…she notified the Respondent of the injury on 12 December 2002 and made a claim for weekly benefits and medical expenses”.
The Arbitrator’s Reasons are frankly littered with incorrect dates. For example, in paragraphs 45 and 46, she regularly makes reference to December 2004, when clearly events the subject of the claim occurred in 2002, in particular, between September and December 2002.
The transcript is helpful in detailing the evidence before the Arbitrator. She lists various documents before her and then embarks on a discussion with counsel about preparing a summary of agreed facts. She goes on to record the history of the matter, as she sees it, in paragraphs 15 to 37 of her Statement of Reasons, and notes any dispute between the parties as to the facts she sets out. In the transcript at paragraph 40 she states: “There was another meeting between Mrs Bevin – Ms Bevin and Mrs Wang, which was to take place on 11 December. On 12 December Mrs Wang’s GP certified her unfit and described [sic] antidepressant drugs”.
No objection to these dates was made by either party at the hearing. In addition, the Arbitrator had before her the following documents:
(a)The Application to Resolve a Dispute which nominated the date of injury as 11 December 2002 and date of notice of injury as 12 December 2002;
(b)The letter from the Insurer to the Respondent Worker dated 30 December 2002 advising that the claim had been accepted and that weekly payments would be made “for the period 12 December 2002 to 12 March 2003) (12 weeks)”;
(c)Letter from the Insurer to the Respondent Worker dated 19 February 2003 declining liability but referring to the claim “dated 11 December 2002”; and
(d)Report from GP Dr Jim Aroney confirming consultation on 12 December 2002.
In short, there was agreement between the parties and the Arbitrator at the hearing as to when the date of claimed incapacity commenced, i.e, 12 December 2002.
I accept that there has been an error on the part of the Arbitrator in entering an award in favour of the Respondent Worker commencing on 1 December 2002. Given the litany of errors regarding dates in the whole of the decision to which I have previously referred, it is perhaps not surprising that this particular error occurred.
It is clearly an obvious error, and could have been corrected by either party.
Section 294(3) of the 1998 Act provides as follows:
“If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error”.
Practice Direction No. 4 of the Workers Compensation Commission deals specifically with the procedure in relation to correction of an ‘obvious error’. It states:
“The ‘obvious error’ referred to in section 294 means a factual error that is apparent on the face of the document. It may be an error that conflicts with the actual decision or assessment that was made or an obvious mis-statement of that decision or assessment. It does not relate to the basis upon which the substantive decision or assessment was made, nor to the substance of any such decision or assessment.”
An obvious error in a Certificate may be brought to the notice of the Registrar either orally, in writing or by electronic means. The Registrar may exercise the discretion to correct an ‘obvious error’ once satisfied that an ‘obvious error’ is contained in the document, unless there is good and sufficient reason not to do so. It is then open to the Registrar to issue a replacement Certificate of Determination
In Grafton Aged Care Home Pty Limited v Wilkes (2004) NSW WCC PD16, Deputy President Fleming dealt with the issue of an ‘obvious error’, in that case, being in the name of the Respondent. She noted that the correction of the name of the Respondent “could have been addressed by way of application to the Registrar to correct an ‘obvious error’ pursuant to section 294(3) of the 1998 Act and in accordance with Commission Practice Direction No. 4.” She noted:
"Given that the issue is addressed in detail in the Arbitrator’s reasons, where the Respondent is correctly identified, this is not a matter that goes to the substance or fairness of the Arbitrator’s decision. It is a matter that I will now correct by way of orders made on the appeal”.
In my view, the errors in the dates referred to in the Certificate of Determination do not go to “the substance or fairness of the Arbitrator’s decision”. It is clear from an overall reading of the decision that the correct date for commencement of weekly benefits is 12 December 2002. I intend to correct this matter by way of orders on Appeal.
The second ground, in paragraph 3, claims that the Arbitrator “erred in dismissing the Respondent’s [Appellant Employer’s] defence under section 9A considering all the medical evidence before her.”
The Appellant Employer has not identified any particular error of law or fact nor the substance of such error. A broad reading of this ground may suggest the Arbitrator failed to exercise her discretion according to “all the medical evidence before her”. But section 9A requires an examination of the facts to determine whether or not the employment concerned was a substantial contributing factor to the injury.
There was no issue between the parties that the Respondent Worker suffered a psychological injury. Both her treating doctor and all qualified psychiatrists for both the Respondent Worker and the Appellant Employer diagnosed some sort of adjustment disorder with symptoms of anxiety and depression.
As the Arbitrator pointed out in paragraph 43 of the Statement of Reasons: “The first issue therefore to be determined is whether the Applicant’s employment was a substantial contributing factor to her injuries”. There follows an extensive discussion of the evidence, both from the worker and medical reports. The Arbitrator notes other ‘factors’ which had allegedly contributed to the Respondent Worker’s condition such as grief over a miscarriage and the death of the Respondent Worker’s mother. Several of the psychiatric specialists had referred to various precipitating factors as the cause of the Respondent Worker’s condition. Having noted those reports, the Arbitrator quoted from Dr Aroney, the General Practitioner’s report as follows:
“Her personal issues preceding this may have made her more sensitive to what was happening at the work place, but still it is evident that the work place was the cause of her depression, anxiety, diarrhoea”.
Section 9A of the 1987 Act requires consideration as to whether the employment is a substantial contributing factor, not necessarily the sole or predominant factor. (Mercer v ANZ Bank 48 NSWLR 740). The evidence disclosed the Respondent Worker’s physical symptoms (recorded by her GP), manifested themselves at times concomitant with the work difficulties complained of; Dr Snowdon, for the Appellant Employer, accepted ‘the work place’ as one of the contributing factors to the Respondent Worker’s condition. Additionally, the Arbitrator noted (paragraph 46) “The Applicant gave oral evidence at the Arbitration and she impressed me as a truthful witness”.
The Arbitrator concluded (paragraph 44) “On balance, taking into account the medical evidence of both parties, I am satisfied that the Applicant’s employment was a substantial contributing factor to her injuries”. It was open to her to do so on the evidence referred to in the preceding paragraphs.
There is no evidence that the Arbitrator “dismissed” the Appellant Employer’s defence under section 9A of the 1987 Act. She deals with the employment issues at length in addressing the issue of section 11A in paragraphs 45 and 46. There was no issue between the parties that the Appellant Employer had undertaken performance appraisal and/or disciplinary action with the Respondent Worker.
The only medical report relied upon by the Appellant Employer was that of Dr Snowdon dated 29 January 2003. When asked to provide an opinion “as to whether employment is a substantial contributing factor to Julia’s condition” he stated (page 18) “There is then, I think, no doubt that Ms Wang developed a worsening in her depression and began to develop anxiety – related difficulties as a result of these performance issues being addressed…” He concluded “Frankly, I do not think that I am in a position to make a judgment on this question…”
The Appellant Employer has not demonstrated any legal, factual or discretionary error by the Arbitrator on this issue, and accordingly, this ground of the appeal must fail.
The third ground, in paragraph 4, claims that “the Arbitrator erred in dismissing the Respondent’s defence under section 11A”. Once again, the Appellant Employer has failed to identify any particular error of law or fact nor the substance of such error.
The Arbitrator notes at paragraph 45 “the next issue to be determined is whether the Respondent’s actions with respect to performance appraisal and/or disciplinary action were reasonable”. There followed an extensive discussion of work place matters, in particular, the actions of Mr Sharam and the Respondent Worker’s responses. The Arbitrator had before her an extensive factual report prepared by the Insurer, including a detailed statement by Mr Sharam, the Respondent Worker’s supervisor, correspondence between the Respondent Worker and Mr Sharam, and notes prepared by Ms Bevin, the Human Resources Manager.
The Arbitrator recites at length from this report and statements. She also had the benefit of extensive submissions by Counsel for both parties on the section 11A ‘defence’ as recorded in the transcript.
The Arbitrator noted that the Respondent Worker had participated in discussions about work performance and had received warning letters. Events in December 2002 seemed to be of greater significance in terms of the onset of the Respondent Worker’s incapacity. The Arbitrator notes the sequence of events in paragraph 46. She refers to Mr Sharam’s statement wherein he stated “I may have commented that we would have to work all night” and that “I was not happy at the time of this meeting. I did not raise my voice but I was assertive in what I expressed”.
She goes on to refer to “the statements of both parties” and discusses the appraisals, warning letters, the difficulty the Respondent Worker was having with aspects of her employment, her personal issues and the lack of assistance from Mr Sharam. In dealing with the Appellant Employer’s submissions at the hearing, the Arbitrator notes (paragraph 46):
“The Respondent rightly states that the employer does not have an ongoing responsibility as an employer to keep educating staff, and likewise an employer is entitled to be concerned with things that go wrong. The Respondent suggests that the method the employer took of expressing those concerns was in the letter of warning… The Respondent submits therefore that the actions taken by the employer were reasonable actions”.
The Arbitrator however concluded that “I am satisfied from the evidence given that Mrs Wang attempted to improve her performance when various issues were brought to her attention”. She went on to note that the Respondent Worker was appraised and/or disciplined four months after she commenced work, having been absent over a third of that time, that Mr Sharam, on his own evidence, was extremely busy and had little or no time to train and/or assist the Respondent Worker in the particular system used in her position and that the ‘appraisals’ were undertaken with no formal notice to the Respondent Worker. She concluded that those ‘appraisals’ “… appear to be in response to separate particular incidents which Mr Sharam perceived as causing embarrassment to, or reflection on himself”.
Again, accepting the Respondent Worker as a witness of truth, she determined “on balance, based on the evidence before me, I find that the actions taken by the Respondent with respect to the performance appraisal and/or discipline of the Applicant were not reasonable and the conditions of section 11A Workers Compensation Act, 1987 are not met”.
Having quoted from the Appellant Employer’s own submissions at the arbitration, and quoting from the statements of both parties at length, there is simply no evidence that the Arbitrator “dismissed” the Appellant Employer’s defence under section 11A of the 1987 Act. She specifically dealt with the issue, and the defence but on balance accepted that the circumstances of the Appellant Employer’s section 11A defence, in this particular case were not reasonable. She did not “dismiss” the defence - it was simply rejected.
As the Appellant Employer rightly points out in paragraph 10 of its submissions “…an employer must take the worker as it finds him or her and deal reasonably within those bounds…” The Arbitrator determined that the Appellant Employer’s conduct in the particular circumstances of this case was not reasonable and it was open to her to do so on the evidence.
Again, the Appellant Employer has not demonstrated any legal, factual or discretionary error by the Arbitrator on this issue, and accordingly, this ground of the appeal must fail.
The final ground of appeal, in paragraph 11, relates to an allegation that the Arbitrator has not determined the Respondent Worker’s correct weekly compensation entitlement because:
“(a)The Arbitrator erred in finding the Applicant totally incapacitated until June 2003. This is in stark contradiction to the evidence. The worker was at April 2003 seeking employment and had her name down with certain employment agencies.
(b)The Arbitrator failed to identify as an issue in the proceedings whether she should exercise her discretion under section 40 and her application of same”.
As to paragraph (a), the Respondent Worker certainly gave evidence that she had been looking for work as at April 2003. The Arbitrator notes (paragraph 47) “At the time she was certified as unfit for employment she contemplated an offer of a different position in the Head Office of the Appellant Employer,… and at a loss of salary of approximately $4,000.00 p.a”. The Respondent Worker, when cross-examined at the arbitration hearing, agreed she had registered for part-time work but stated that she was not certified for fulltime work.
The Arbitrator discussed the medical evidence on this point at length in paragraph 48. She noted that Dr Snowdon, “Although suggesting a graduated return to work sometime in February 2003, recommends a position with less responsibility and less stress. I infer from such comment that he believed her recovery was incomplete at that stage”. The Arbitrator noted that there was no psychological evidence after the 19 June 2003 report of Dr Robertson. In that report, Dr Robertson concluded that the Respondent Worker “had gone on to make a substantial but incomplete recovery. It is of some concern that she continues to experience excessive anxiety associated with diarrhoea when she has to have interviews with prospective employing agencies”. He recommended continuance of medication and psychological therapy.
The Arbitrator noted Dr Aroney, the GP, had provided a report in December 2003 noting again that recovery was still incomplete. He had continued to certify the Respondent Worker as unfit for work.
Again, having had the benefit of oral submissions from both parties on this issue, the Arbitrator concluded “notwithstanding the admissions made by the Applicant that she was actually looking for employment… I am satisfied that Mrs Wang was totally incapacitated …until 19 June 2003”. Given the medical evidence and the Respondent Worker’s own admission that she had not been certified fit for fulltime work, it was open to the Arbitrator to make such a finding, particularly given the physical manifestations of her condition as documented by Drs Aroney and Robertson.
I see no grounds for interfering with this determination particularly as the Arbitrator clearly took into account the Respondent Worker’s own admissions on this point.
As to point (b) of paragraph 11 of the Appeal application, the Arbitrator in paragraph 51 of her reasons clearly sets out her obligations under section 40 of the 1987 Act. She states that section 40 “is recognised as imposing upon a Tribunal a discretionary power which must be exercised in arriving at the amount of the weekly award”.
In paragraph 52, she notes the evidence of the Respondent Worker with respect to seeking full and part-time employment, the medical evidence as to the ‘incomplete’ recovery, (rather than a partial recovery) and then discusses the Respondent Worker’s ability to earn “in view of the available evidence” before arriving at her determination as to an appropriate award.
The Arbitrator in paragraphs 50 – 53 inclusive goes through the ‘five step’ process as set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 in calculating the section 40 award, taking into account the evidence referred to in the preceding paragraph.
In my opinion, there is then no basis upon which the Appellant Employer can assert that the Arbitrator failed to adequately deal with the exercise of her discretion under section 40 of the 1987 Act.
Having said that, it appears that there is another ‘obvious error’ in this aspect of the award. The Arbitrator noted that the most recent medical evidence at the time of the hearing was the report of Dr Aroney dated 9 December 2003. It is clear from an overall reading of her determination, particularly the dates upon which she certified the Respondent Worker as totally unfit for employment, that she was basing the terms of the award on the dates of reports of various medical practitioners. It was necessary for her to have some basis upon which the duration of the award was determined.
Notwithstanding the report of Dr Aroney dated 9 December 2003, the Arbitrator determined a period of partial incapacity to 19 December 2003. She had however, in paragraph 47, referred to Dr Aroney’s report as follows: “He writes, on 9 December 2003 that as at 30 October 2003 the Applicant was still suffering anxiety symptoms”. It was necessary for her to have some basis upon which the duration of the award was determined.
There is no other evidence in all the material before the Arbitrator upon which it may be inferred that she nominated the date of cessation of weekly payments for partial incapacity. Once again, reading the decision as a whole, in view of her acceptance of the date upon which Dr Robertson’s report issued (in relation to a period of total incapacity), it would seem that 9 December 2003, not 19 December 2003 was the date intended.
Again, I consider this an ‘obvious error’ which could have been corrected in accordance with section 294(3) of the 1998 Act and Practice Direction No. 4, and I intend to correct this matter by way of orders on appeal.
SUMMARY
While the reasons of the Arbitrator suffer from some inadequacy because of the various ‘obvious errors’ in dates, they are not such that the decision itself should be set aside.
As Deputy President Fleming said in Wyong Shire Council v Paterson [2004] NSW WCC PD 45, “The Arbitrator’s decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444) and without combing it for error (Minister for Immigration and Multicultural Affairs v Wu Shan Lang (1996) 185CLR 259)”.
Reading the decision as a whole, I can see no error in the Arbitrator’s determination of the substantive issues raised by the Appellant Employer, namely its defence under section 9A and 11A of the 1987 Act, and the finding that the Respondent Worker suffered a period of total then partial incapacity as a result of her injury. There are errors as to dates, but these are obvious and correctable.
DECISION
(1) The Certificate of Determination issued by the Commission on 3 June 2004 is
amended as follows:
(a) Substitute the date “12.12.02” in paragraph 1 in lieu of “1.12.02”.
(b)Substitute the date “9 December 2003” in paragraphs 2 and 4 in lieu of “19th December 2003”.
(2) The decision of the Arbitrator is confirmed.
COSTS
The Appellant Employer is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
1 June 2005
I 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
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