Warwick Hobart t/as Terry White Chemists v Pietrzak
[2006] NSWWCCPD 315
•22 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Warwick Hobart t/as Terry White Chemists v Pietrzak [2006] NSWWCCPD 315
APPELLANT: Warwick Hobart t/as Terry White Chemists
RESPONDENT: Karl Pietrzak
INSURER:Guild Insurance Limited
FILE NUMBER: WCC13503-04
DATE OF ARBITRATOR’S DECISION: 24 May 2005
DATE OF APPEAL DECISION: 22 November 2006
SUBJECT MATTER OF DECISION: Jurisdiction, notice of injury; notice of claim; credit; weight of evidence
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates
Respondent: P K Simpson & Co
ORDERS MADE ON APPEAL: Paragraph one of the Arbitrator’s determination dated 24 May 2005 is revoked and the following order made:
“The matter is remitted to a different Arbitrator to determine the Respondent Worker’s entitlements under the Workers Compensation Act 1987 in accordance with these reasons.”
Paragraph two of the Arbitrator’s determination of 24 May 2005 is confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 17 June 2005 Warwick Hobart t/as Terry White Chemists (‘the Appellant Employer/Mr Hobart’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 24 May 2005.
The Respondent to the Appeal is Karl Pietrzak (‘the Respondent Worker/Mr Pietrzak’).
On 9 September 2001 Mr Pietrzak started work with the Appellant Employer as a photographic printer. The exact nature of his duties is unclear as it is not dealt with in his statement but it is touched on in the oral evidence before the Arbitrator on 10 May 2005. On 4 July 2002 he was using a screwdriver to fix a roller door which was jammed when the door suddenly “sprung up and struck him on the back of the head” (see report Marie Bertuch 28 June 2004). He was forced forward onto the ladder on which he was standing and sustained a laceration to the “upper posterior aspect of his head” (see report Dr Mahony 29 March 2004). The injury caused a significant laceration to his scalp and concussion. The Respondent Worker alleges that he also suffered injury to his neck and back as a result of the incident on 4 July 2002. This allegation is disputed by the Appellant Employer and will be considered in detail below.
Mr Pietrzak attended on his general practitioner, Dr Bartipan at Alexandria, on the day of the accident. His wound was sutured and he was given a certificate of unfitness for work until 10 July 2002. A further certificate was provided on 8 July 2002 declaring Mr Pietrzak unfit until 14 July 2002 and fit from 15 July 2002. The Respondent Worker did return to work with the Appellant Employer about two weeks after the injury. Exactly what duties he performed on his return to work is the subject of dispute and is not dealt with in the Respondent Worker’s statement of 24 May 2004 attached to the Application to Resolve a Dispute (‘the Application’) filed on 2 September 2004.
The Respondent Worker continued to work for the Appellant Employer until he resigned on 2 December 2002. The circumstances surrounding his resignation are the subject of conflicting evidence which will be dealt with in detail later in these reasons. Again, this issue is not dealt with in Mr Pietrzak’s statement of 24 May 2004.
The Respondent Worker’s case is that he injured his neck and back on 4 July 2002 and continued to have pain in those areas (and other parts of his body) from shortly after the accident and continuing. Shortly after leaving the employ the Appellant Employer Mr Pietrzak moved to Brisbane where he ultimately obtained employment resulting in his claim being reduced to a closed period from 2 December 2002 to 4 May 2004. He also claimed lump sum compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
Mr Pietrzak’s claim for lump sum compensation was referred to an Approved Medical Specialist (‘AMS’) who on 23 March 2005 certified him to have a 10% whole person impairment in a Medical Assessment Certificate (‘the first MAC’) as a result of injury sustained to his cervical and lumbar spines on 4 July 2002. That MAC was the subject of an appeal to a Medical Appeal Panel (‘Appeal Panel’). On 24 November 2005 the Appeal Panel revoked the first MAC and issued a second MAC certifying Mr Pietrzak to have a 5% whole person impairment as a result of an injury to his thoracic spine on 4 July 2002.
Mr Pietrzak succeeded with his claim before the Arbitrator for the closed period claim for weekly compensation and the Appellant Employer seeks leave to appeal from that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 24 May 2005, records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant weekly compensation at the rate of $225.00 from 2 December 2002 to 4 May 20004 under section 40 of the Workers Compensation Act 1987.
2.That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)considering the Commission had jurisdiction to deal with the claim when there was no evidence of any claim having been made (‘Jurisdiction’);
(b)considering as evidence that which was not evidence (‘Evidence’);
(c)failing to have regard or proper regard to the evidence (‘Evidence’);
(d)failing to properly consider sections 4 and 9A of the 1987 Act (‘Injury’);
(e)accepting the Respondent Worker’s evidence where that evidence was either not supported by or was inconsistent with contemporaneous evidence (‘Evidence’);
(f)finding the Respondent Worker to be incapacitated for work contrary to the medical evidence of the treating general practitioner (‘Factual Findings’);
(g)accepting the Respondent Worker’s credit (‘Credit’);
(h)finding that the Respondent Worker left the employ of the Appellant Employer because of difficulties with his work (‘Factual Findings’);
(i)making findings as to the Respondent Worker’s employment after 2 December 2002 (‘Factual Findings’);
(j)having regard to the first MAC when it was the subject of an appeal and contained errors (‘MAC’);
(k)reversing the onus of proof on the issue of notice of injury and notice of claim for compensation; in drawing an inference from Workcover Certificates about notice; in having regard to Part 2 Rule 6.1 of the Workcover NSW Guidelines; and in not having regard to the requirements of the Act and Regulations on the issue of notice of injury and notice of claim for compensation (‘Notice’);
(l)reversing the onus of proof concerning the significance of the clinical notes produced by Dr Bartipan and in assessing the notes to be “unsubstantiated third hand assertions over the oral evidence of the Applicant” (see Appellant Employer’s submissions paragraph (l)) (‘Onus of Proof’);
(m)finding no reason to disbelieve the Respondent Worker (‘Credit’);
(n)refusing to accept the evidence in the Workcover Certificates as to the Respondent Worker’s fitness for work on the ground that to do so required “adverse inferences” to be drawn contrary to the Respondent Worker’s evidence (‘Creidt’);
(o)making findings as to Dr Bartipan’s “education, training and experience” compared to other medical experts in the case when there was no evidence on that matter (‘Medical Evidence’);
(p)concluding that “the preponderance of medical opinion [was] that the Applicant was partially incapacitated during the period 2 December 2002 to 3 May 2004” (‘Medical Evidence’);
(q)finding that the Respondent Worker’s ability to earn was less than $511.00 per week (‘Section 40 Calculations’);
(r)finding the Respondent Worker’s actual earnings in the period 6 October 2003 to 7 November 2003 were limited to $303.00 per week (‘Section 40 Calculations’), and
(s)finding the Respondent Worker’s entitlement in the period 6 October 2003 to 7 November 2003 was $225.00 per week when the difference between his actual earnings and his comparable earnings was in fact $208.00 per week (‘Section 40 Calculations’).
There are 19 alleged grounds of appeal raised by the solicitor for the Appellant Employer. Many are unsubstantiated and have no merit. The present appeal reminds me of the comments by McHugh J in Tame v New South Wales [2002] HCA 35 at [70] where his Honour said:
“The written submissions filed on behalf of Mrs Tame identified no less than 14 issues in the appeal, one of which was divided into three sub-issues. In contrast, the respondents identified only five issues, and an additional issue if the Court permitted them to amend their Notice of Contention. It is inherently unlikely that any personal-injuries action would give rise to 14 issues or that any intermediate appellate court in this country would make so many errors. Australian, as well as United States, counsel would be well advised to heed Judge Aldisert’s statement that when he sees ‘an appellant’s brief containing seven to ten points or more, a presumption arises that there is no merit to any of them’ [44].”
The appeal has been presented by the Appellant Employer’s solicitor in such a way that the review process has taken far longer than would have been the case had the appeal been prepared properly and efficiently. Parties should be aware that a ‘scatter gun’ approach to the appeal process without any apparent thought to the real issues and without proper submissions is neither helpful to their client nor the efficient and just determination of the appeal.
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. The Appellant Employer challenges the whole of the award, therefore more than 20% of amount awarded is ‘at issue’ in the appeal.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
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.”
The Appellant Employer objects to the matter being determined on the papers on the grounds that the issues raised are complex and will require oral submissions. In addition, the transcript was not available at the time the appeal was filed.
I do not consider the issues to be so complex that an oral hearing is required.
Since the appeal was filed the transcript was sent to the parties on 20 June 2005. Unfortunately the transcript is incomplete. None of the Respondent Worker’s evidence in chief has been transcribed and part of the cross examination is also missing. A request for a copy of the Arbitrator’s notes was made by letter dated 23 July 2005 from Leigh Virtue & Associates.
The Arbitrator has produced to the Commission certain typed notes of the proceedings and those notes have been made available to the parties. Mr Pietrzak does not object to the appeal proceeding in the absence of a complete transcript and notes that paragraphs 13 to 21 inclusive of the Arbitrator’s Statement of Reasons for Decision (‘Reasons’) represent a fair and accurate summary of the Respondent Worker’s oral evidence. The position for the Appellant Employer is not so clear. Submissions made by the Appellant Employer on 15 August 2006 state that the Arbitrator’s notes appear to be a short form summary of the evidence. I do not know if the Appellant Employer consents to the appeal proceeding on the basis of these notes or seeks some other course. In these circumstances I have not had regard to the Arbitrator’s notes in the course of this review.
Though the absence of the transcript can be a ‘serious shortcoming’, I am satisfied that its absence in the present matter does not, in the circumstances of this appeal and in light of the matters raised on appeal, adversely affect the due exercise of the review process under section 352 and does not require the matter to be reheard (Aluminum Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34).
In addition to asking the parties to make submissions about the absence of a complete transcript, the Commission also requested the parties to provide further submissions in general. The Appellant Employer filed additional submissions on 12 September and again, with leave, on 8 November 2006. The Respondent Worker filed additional submissions on or about 5 October 2006.
Having regard to Practice Directions Numbers 1 and 6, the documents that are now before me, 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.
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 the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
The Appellant Employer seeks to rely on the Medical Appeal Panel certificate and reasons dated 24 November 2005 as fresh evidence on review. This material was not available at the time of the Arbitration hearing. The Appeal Panel has revoked the first MAC and issued a second MAC.
The present appeal relates to the Respondent Worker’s entitlement to weekly compensation from 2 December 2002 to 4 May 2004. An Appeal Panel certificate deals only with Mr Pietrzak’s entitlement to lump sum compensation as at 24 November 2005. It makes no findings on ‘injury’ or ‘incapacity’. It has no relevance to the issues I have to determine on review.
I am not satisfied that refusing to allow the Appeal Panel report or the second MAC into evidence on appeal will “cause a substantial injustice in the circumstances” of this case.
The application to rely on fresh evidence on appeal is refused.
SUBMISSIONS AND FINDINGS
Jurisdiction
It is submitted that the Arbitrator had no jurisdiction to make a determination in the current matter because there was no evidence of any claim having been made in accordance with the requirements of the Act (Appellant Employer’s submissions 17 June 2005, paragraph 3(a)). An Application is to resolve a ‘dispute’ and before a ‘dispute’ can exist there must be a clear indication of what is claimed. The question of whether there was a dispute before the Arbitrator in the present matter was not raised in the Reply, but was raised, without objection, in oral argument before the Arbitrator and has been raised on appeal. As the Commission is not a court it is not bound by formal pleadings. However, issues must be clearly identified either in the Reply or at the teleconference. The issue has been sufficiently identified in the present case to enable it to be argued on appeal.
Section 298 provides:
“289 Restrictions as to when a dispute can be referred to the Commission
(1) A dispute about a claim for weekly payments cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.
Note. The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments without having disputed liability constitutes a failure to determine the claim.
(2) A dispute about a claim for medical expenses compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.
(3) A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) wholly disputes liability for the claim, or
(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c) fails to determine the claim as and when required by this Act.
Note. The determination of a claim requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim.
(4) A dispute about a claim for compensation under Division 5 (Compensation for property damage) of Part 3 of the 1987 Act cannot be referred for determination by the Commission until:
(a) 28 days after the claim for compensation is made, or
(b) the person on whom the claim is made disputes liability for the claim (wholly or in part),
whichever happens first.”
On 20 May 2004 the Respondent Worker’s solicitors made a written claim for lump sum and weekly compensation on the Appellant Employer. It seems that no reply was received to that letter and the solicitors wrote to Guild Insurance Limited (‘Guild’), the Appellant Employer’s workers compensation insurer, on 23 July 2004 advising that an Application would be filed in the Commission. The Application was registered with the Commission on 2 September 2004. The Respondent Worker was entitled to file his Application with the Commission because his claim had not been accepted or disputed within the time set out in section 274 of the 1998 Act.
In these circumstances the Arbitrator had jurisdiction to hear and determine this matter.
Evidence
The Appellant Employer’s complaints under this heading are in the nature of bald assertions that are not properly supported by argument or references to the evidence. They misunderstand the nature of the review process.
The nature of a review has been considered by the Commission in many cases. In Mayne Group Limited v Roberts & Faulding Health Care Pty Ltd [2005] NSWWCCPD 15 it was noted that:
“39. A Presidential Member on appeal has a specific and limited role in the review of the decision of an Arbitrator. The review is not a rehearing, nor is the Presidential Member dealing with the matter de novo, nor is he or she arriving at a fresh decision based upon all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The Appellant Employer’s assertions that the Arbitrator considered as evidence that which was not evidence is not supported by any specific references to the transcript of evidence or the Arbitrator’s Reasons. If this is a reference to the calculations made by the Arbitrator as to the Respondent Worker’s ability to earn uninjured, this part of the claim must be redetermined for other reasons. Normally, wages should be agreed between the parties. There is no good reason why that was not done in this case.
It is alleged that the Arbitrator failed to have regard or proper regard to the evidence. This bald assertion is not supported by argument or reference to the evidence or the Arbitrator’s Reasons. The Arbitrator’s Reasons dealt in detail with the evidence and the Appellant Employer’s submissions. Next, it is asserted that the Arbitrator erred in accepting the Respondent Worker’s evidence where that evidence was not supported by or was inconsistent with contemporaneous evidence. Again there is no reasoned argument in support of this submission. No authorities are cited in support of the proposition put forward. The Arbitrator was at liberty to accept or reject the Respondent Worker’s evidence. He accepted the evidence given by Mr Pietrzak and stated that he found “no reason to disbelieve him” (Reasons, paragraph 33).
I reject this ground of appeal.
Injury
Again, this ground of appeal consists of a bald assertion, unsupported by argument or references to the transcript or the Arbitrator’s Reasons, that the Arbitrator failed to properly consider sections 4 and 9A of the 1987 Act. There was no real dispute that the Respondent Worker suffered an injury to his head at work for the Appellant Employer on 4 July 2002. The Appellant Employer called no evidence to suggest that that incident did not occur in the manner alleged by Mr Pietrzak. In these circumstances it was open to the Arbitrator to find injury under section 4 and that is what he did in paragraph 41(a) of his Reasons. Section 9A was never argued by the Appellant Employer before the Arbitrator though it is identified as an issue by the Arbitrator at paragraph seven of his Reasons. The real issue in the case was whether Mr Pietrzak injured his neck and back in the accident on 4 July 2002, not whether the event itself occurred. That issue was determined by the Arbitrator in favour of the Respondent Worker and that finding was open to him on the evidence. Once it is accepted that the injurious event occurred, the question of whether certain medical complaints have resulted from that event is one that depends on an assessment of all of the evidence in the case and whether the condition can be said to have resulted from the injurious event (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452). The Arbitrator accepted the Respondent Worker’s evidence that his neck and back pain resulted from the accident on 4 July 2002. That finding was open to him. I reject this ground of appeal.
Factual Findings
It is argued that the finding that the Respondent Worker was incapacitated for work was contrary to the medical certificate provided by Dr Bartipan and dated 8 July 2002. That medical certificate was one piece of evidence among several that the Arbitrator considered before reaching his conclusion. The Arbitrator was not bound to accept the assertion in the certificate. He was bound to properly consider the medical certificate together with all of the other evidence in the case, including the evidence from Mr Pietrzak, before reaching his conclusion. That is what he did. Making a finding contrary to the medical certificate dated 8 July 2002 discloses no error.
It is argued that the Arbitrator erred in accepting that the Respondent Worker left the employ of the Appellant Employer because of difficulties with his work. The Respondent Worker gave that evidence at page 19 line 55 of the transcript where he said that he left the Appellant Employer because he “found it too difficult to work there”. The Arbitrator made no express finding on this issue, but the inference is that he accepted the Respondent Worker’s evidence. It was open to him to do so. The Appellant Employer called no lay evidence to rebut Mr Pietrzak’s evidence on this issue. No error is disclosed on this point.
Next, it is submitted that the Arbitrator erred in making findings as to Mr Pietrzak’s employment after 2 December 2002. Yet again, no proper argument has been presented in support of this assertion. The findings made were open on the evidence and disclose no error.
Credit
The acceptance or rejection of the Respondent Worker’s credit was a matter for the Arbitrator. In Devries v Australian National Railways Commission (1993) 177 CLR 472 (‘Devries’) at 479 Brennan, Gaudron and McHugh JJ said:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based upon the creditability of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends on any substantial degree on the creditability of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”
In Department of Education & Training v Jeffrey Sinclair [2004] NSWWCCPD 90 it was noted at [158] that:
“… a Presidential Member of this Commission, reviewing an Arbitrator’s decision on appeal, should upset such a finding [on credit] only if there is other ‘incontrovertible’ evidence indicative of error, not adequately dealt by the Arbitrator at first instance. Fox v Percy (2003) 77 ALJR 989, c.f. Abalos v Australian Postal Commission (1990) 171 CLR 167.”
In the present case there is no ‘incontrovertible’ evidence that indicates the Arbitrator was in error in accepting Mr Pietrzak’s evidence. The evidence in the medical certificates from Dr Bartipan was only part of the evidence in the case. The Arbitrator considered the certificates and preferred the Respondent Worker’s evidence. Having seen and heard Mr Pietrzak give evidence the Arbitrator was entitled to reach that conclusion.
I reject this ground of appeal. It discloses no error of fact, law or discretion.
MAC
It is argued that the Arbitrator was in error in having regard to the first MAC when it was the subject of an appeal. Since the Arbitrator’s decision the Appeal Panel has revoked the first MAC and certified Mr Pietrzak to have a 5% whole person impairment as a result of symptoms in his thoracic spine as a result of his accident on 4 July 2002.
The Arbitrator’s reference to the MAC is found in paragraph 26 of his Reasons. He referred to the findings made by the AMS on examination (the non binding parts of the MAC) but not to the certification set out in the Table attached to the MAC. The Arbitrator was entitled to refer to that evidence. The non binding parts of a MAC were “evidence (but not conclusive evidence)” in the proceedings (section 326(2) of the 1998 Act). The fact that a MAC is under appeal does not mean that the non binding parts of it are irrelevant to an Arbitrator’s determination. In any event the Arbitrator did not give any particular weight to the MAC.
In addition, this point was never raised before the Arbitrator.
I reject this ground of appeal.
Notice
Notice of Injury
It is submitted that Mr Pietrzak failed to give ‘notice of injury’ or ‘notice of claim’ as required under the provisions of the 1998 Act. The relevant provision dealing with ‘notice of injury’ is section 254 which provides:
“254 Notice of injury must be given to employer
(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances:
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Authority in accordance with this Act.
(4) In addition, if the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop, each of the following constitutes special circumstances:
(a) the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section,
(b) the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Occupational Health and Safety Act 2000,
(c) the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop.”
There is no evidence before me that Mr Pietrzak ever gave notice of injury as required by section 254. No claim form is in evidence and Mr Pietrzak’s statement is silent on this issue. The Respondent Worker submits that he gave evidence that “he gave notice of injury to his employer” soon after he was injured (Respondent Worker’s submissions 5 October 2006, paragraph three). That evidence does not appear in the transcript available to me and may well be in part of the missing transcript. In addition, it is submitted that Mr Pietrzak provided the employer with WorkCover medical certificates and had time off work. The WorkCover certificates are two certificated from Dr Bartipan. The first is dated 4 July 2002 and gives a diagnosis of “laceration of scalp, concussion”. It certifies Mr Pietrzak to be unfit for work until 10 July 2002. The second is dated 8 July 2002 and certifies Mr Pietrzak to be unfit from 10 July to 14 July 2002 and to be “fit for pre-injury duties” from 15 July 2002. What Mr Pietrzak did with these certificates is not dealt with in the evidence before me.
If the above certificates were given to the Appellant Employer then the Appellant Employer was on notice of the injury because the certificates made it clear when and how Mr Pietrzak was injured and that he was working for the Appellant Employer at the time of the injury.
The term ‘injury’ in the 1998 Act means “personal injury arising out of or in the course of employment” (section 4 1998 Act). In the context of section 254 ‘injury’ means ‘injurious event’, not the pathology said to have resulted from the injurious event. A worker is not expected to know the exact nature and extent of his injury at the time of initial notification. Any other interpretation of ‘injury’ in this section would lead to the unsatisfactory situation of a worker who gives notice of an upper back strain being barred from claiming compensation in the event that medical investigations subsequently reveal that he or she in fact sustained a lumbar disc injury. There may well be arguments about causation, but provided the evidence supported a connection between the injurious event and the subsequently discovered lumbar disc lesion, the worker would not be barred from recovering compensation because he or she did not initially give ‘notice of injury’ for the correct body part.
In the present case the ‘injurious event’ sustained by Mr Pietrzak was the blow to his head when the roller door struck him. If that event was reported then that is sufficient compliance with section 254. It puts the employer on notice and allows the employer to make its own investigations, medical or factual, into the incident and its consequences. If it is later alleged that a worker sustained more extensive or more serious injuries than were initially reported, then whether those injuries are the result of the original injury will be a matter to be determined on the evidence. However, the fact that a particular body part has not been referred to in the initial notification is not a bar to making a claim for compensation in respect of that body part.
If I am wrong in this analysis, and it is thought that section 254 requires that Mr Pietrzak should also have given notice of injury to his neck and back as a result of the accident on 4 July 2002, I find that the failure to give that notice until the letter of 20 May 2004 has not, in the circumstances of this matter, caused the Appellant Employer any prejudice (section 254(3)(a)). The Appellant Employer has had the opportunity to investigate the original incident and has since had the chance to arrange for medical examinations. Neither Dr Edwards nor Dr Hughes has suggested that he was unable to provide an opinion because of the passage of time since the original incident. Therefore, the failure is not a bar to the recovery of compensation.
Notice of Claim
The notice of claim provisions are set out in section 260 of the 1998 Act and provide:
“260 How a claim is made
(1) A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines.
(2) The WorkCover Guidelines may make provision for or with respect to the following matters in connection with the making of a claim:
(a) the form in which a claim is to be made,
(b) the manner in which a claim is to be made,
(c) the means by which a claim may be made,
(d) the information that a claim is to contain,
(e) requiring specified documents and other material to accompany or form part of a claim,
(f) such other matters as may be prescribed by the regulations.
(3) Without limiting this section, the WorkCover Guidelines can require that a claim be accompanied by a form of authority signed by the claimant and authorising a provider of medical or related treatment, hospital treatment or occupational rehabilitation services to the claimant in connection with the injury to which the claim relates to give the insurer concerned information regarding the treatment or service provided or the worker’s medical condition or treatment relevant to the claim.
(4) The WorkCover Guidelines can also provide for any of the following matters in connection with the making of a claim:
(a) waiving the requirement for the making of a claim in specified cases (such as cases in which notice of injury has been given or provisional weekly payments of compensation have commenced),
(b) providing for the time at which a claim is taken to have been made in any case in which the requirement for the making of a claim has been waived,
(c) providing for the time when a claim is taken to have been made in a case in which requirements of the Guidelines with respect to the making of the claim have been complied with at different times.
(5) The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style.
(6) Except to the extent that the WorkCover Guidelines otherwise provide, an insurer can waive a requirement of those Guidelines with respect to the making of a claim on the insurer.
(7) The WorkCover Guidelines can require an insurer to notify a worker of any failure by the worker to comply with a requirement of those Guidelines with respect to the making of a claim, and can provide for the waiver of any such failure by the worker if the insurer fails to give the required notification.”
The “WorkCover Guildelines” referred to in section 260 are the Guidelines published in December 2001. They set out the procedures for the making and handling of claims under Part 3 of the 1998 Act. The making and handling of claims is set out in Part 2 of the Guidelines. A worker must make a claim if he or she requires benefits that exceed their ‘entitlements under provisional liability’. In the present case Mr Pietrzak seeks benefits that exceed his entitlements under provisional liability and it was therefore necessary for him to ‘make a claim’ and to comply with the Guidelines in making that claim.
A claim must be made “in writing on a form designed for making a claim for workers compensation benefits pursuant to the Workers Compensation Act 1987 and the WorkplaceInjury Management and Workers Compensation Act 1998” (Guidelines, Part 2 rule 4).
The information to be set out in the claim is listed in Part 2 Rule 6 of the Guidelines which provide:
“What information from the worker is needed to make a claim?
6.1 Information about the worker:· Given and family names
· Residential address
· Date of birth
· Occupation
· Interpreter required, if yes language.
· Country of birth
6.2 Information about the employer
· Name
· Current business address
· ABN if known
· Policy number if known
6.3 Information about the treating doctor
· Name
6.4 Information about the worker’s employment
· Full time or part time
· Permanent or casual
· Gross pay per week
· Total hours worked per week
· Normal working hours
· Details of enterprise or workplace agreement or an award
if known
· Date the worker started employment with the employer
· 2nd employers name and contact details if applicable
· gross pay per week from 2nd employer
· hours worked per week for 2nd employer
6.5 Information about the workplace injury
· Date and time of the workplace injury
· How the injury happened
· What part of the body is injured?
· Was this part of the body normal before the workplace
injury?
· The address where the workplace injury happened
· Name of any witness to the workplace injury
WorkCover NSW Guidelines effective 1/1/2002
Part 2-Making and handling claims Page 27 of 33
· Name of person at workplace the injury was reported to
· Date the workplace injury was reported to the employer
6.6 Additional information
· Details of any previous similar injuries or conditions
· That may assist when determining the claim
· Worker’s declaration, see Part 2, rule 6.7.
What must the “worker’s declaration” include?
6.7 A declaration must be signed by the worker and must say words
that mean the same as:
I certify that the information I have provided is correct. I consent to
my insurer and its appointed service providers collecting personal
information about me and using it for the purpose of assessing and
managing my worker’s compensation claim, including determining
liability and whether my claim is true. I consent to my insurer
disclosing my personal information to medical practitioners,
rehabilitation providers, investigators, legal practitioners and other
experts or consultants for the purposes of assessing and managing
my claim. I also consent to my insurer disclosing my personal details
to the WorkCover Authority which is authorized to use this information
to fulfil it’s functions under the NSW workers compensation
legislation. I understand that if any information I have given is untrue,
that my claim may be denied and that I may be prosecuted”
The letter written by Mr Pietrzak’s solicitor on 20 May 2004 has provided the vast majority of the information set out in Part 2 Rule 6 of the Guidelines. However, it suffers from two defects:
(a)it was not on a “form designed for making a claim for workers compensation benefits pursuant to the Workers Compensation Act 1987 and the WorkplaceInjury Management and Workers Compensation Act 1998”, and
(b)it was not sent until outside the six month post injury period set out in section 261 of the 1998 Act for the making of a claim for compensation.
In my opinion the first defect is “minor defect in form or style” which is not a bar to the recovery of compensation (section 260(5)).
However, the second defect relating to the time period in section 261 may be more significant. Section 261 provides:
“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.
(2) If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(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.
(7) If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8) In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9) When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”
In the present case there is no evidence that a ‘notice of claim’ for compensation was made within six months of the date of injury. That failure is not a bar to the recovery of compensation if:
(a)a claim for different compensation arising from the same accident was made within six months of 4 July 2002 (section 261(3)), or
(b)the delay was occasioned by “ignorance, mistake, absence from the State or other reasonable cause” (section 261(4)), or
(c)the particulars of any injury received by the worker have been entered in a register of injuries kept by the employer under the 1998 Act (section 261(9)).
Because of the incomplete transcript I am unable to determine if these exceptions apply in this case.
The Appellant Employer argues that the Arbitrator was in error on this issue in that he reversed the onus of proof, drew inferences from the WorkCover certificates about notice, had regard to the Guidelines when they were not in evidence and did not have regard to the Act or regulations.
The evidence did not permit the Arbitrator to draw the inferences he drew at paragraph 31 of his Reasons under the heading ‘Jurisdiction’. There is no evidence that a notice of claim was ever made as required by sections 260 and 261 of the 1998 Act. In this regard the Arbitrator was in error.
Onus of Proof
It is submitted that the Arbitrator reversed the onus of proof concerning the significance of the clinical notes produced by Dr Bartipan and in assessing the notes to be “unsubstantiated third hand assertions over the oral evidence of the Applicant” (Appellant Employer’s submissions paragraph (l)). It is submitted that Dr Bartipan’s clinical notes contained no evidence at all of Mr Pietrzak sustaining injury to the neck or back and no evidence of any complaint by him of problems with his neck or back while under the doctor’s care (Appellant Employer’s submissions 12 September 2006, paragraph 3(e)).
The Arbitrator dealt with Dr Bartipan’s notes at paragraph 32 of his Reasons. He said:
“One of the major difficulties I have with the Respondent’s submissions as to why I should prefer Dr Bartipan’s written records over the Applicant’s oral evidence is that I am unable to read the majority of what the Respondent’s solicitor asserts is Dr Bartipan’s written records. Similarly, I cannot accept what the Respondent’s solicitor asserts is the content of those records. However, even if I were to accept that Dr Bartipan’s records say what the Respondent’s solicitor says they say, they do not of themselves establish that the Applicant did not complain to Dr Bartipan about his neck and back pain. It would be necessary to call Dr Bartipan to give evidence about what is written in his clinical notes and whether the Applicant made such complaint to him. I note that the Respondent's solicitors assert that they issued a Summons to Attend to Dr Bartipan, but he did not attend. Having inspected the relevant Summons that is not surprising. ”
I also find the doctor’s notes next to impossible to read. I note that the Appeal Panel had the same difficulty. Given that the notes are largely illegible I find it surprising that a solicitor would submit that they establish anything. I reject the argument that the notes support the Appellant Employer’s submissions before the Arbitrator. I reject the argument that the onus rested with the Respondent Worker to disprove the content of the notes. As the notes were illegible they established nothing. There was therefore nothing for the Respondent Worker to disprove. The doctor’s medical certificates established that Mr Pietrzak sustained an injury to his head but did not refer to the neck and back. That evidence did not prove that Mr Pietrzak did not develop neck and back pain as a result of the blow to his head. It was evidence that had to be considered with all of the other evidence in the case.
The Arbitrator considered all of the evidence and accepted the Respondent Worker’s evidence as to the symptoms he said resulted from the 4 July 2002 accident. Those symptoms included neck and back pain as well as headaches. It was open to him to accept the Respondent Worker’s evidence on this issue.
At paragraph 33 of his Reasons the Arbitrator said:
“To accept the Respondent’s submissions would require me to accept unsubstantiated third-hand assertions over the oral evidence of the Applicant. I will not do so. Although the Applicant was invariably garrulous in his responses to questions put in cross-examination and did not always make appropriate concessions when faced with inconsistent material, I find no reason to disbelieve him.” (emphasis added)
The reference to “unsubstantiated third-hand assertions” was a reference by the Arbitrator to the submissions made by the Appellant Employer’s solicitor at the Arbitration to the effect that the notes showed that there had been no complaint of neck or back pain (transcript page 22 line 16). The Arbitrator did not say or suggest that the doctor’s notes were unsubstantiated third-hand assertions. I reject the Appellant Employer’s submissions on this issue.
I do not accept that the Arbitrator reversed the onus of proof concerning the significance of Dr Bartipan’s notes. The ultimate onus of proof rests with the moving party in any application or claim. In a compensation claim in the Commission that party is usually the applicant worker. However, the evidentiary burden of proof will shift during the course of a hearing depending on the issues involved. If an employer asserts that no complaint was made to a doctor about a particular symptom, the employer carries the onus of proving that fact. To that end the Appellant Employer tendered Dr Bartipan’s notes. Those notes did not assist as they were largely illegible.
This ground of appeal fails.
Medical Evidence
The Arbitrator found that “in terms of education, training and experience” Dr Bartipan’s opinion carried less weight than the specialists Drs Mahony, Matalani, Nash and Fearnside. The Appellant Employer challenges this finding on the ground that there was no evidence as to Dr Bartipan’s education, training or experience. The Arbitrator was in error to make this finding in the absence of evidence. However, this does not mean that the Arbitrator was obliged to accept Dr Bartipan’s medical certificates if he felt they contained opinions contrary to other evidence which he found more persuasive.
The Arbitrator was entitled to find and did find that he was not prepared to “draw inferences from the WorkCover medical certificates that were contrary to the Respondent Worker’s oral evidence or the opinions of the medical experts qualified on behalf of the Applicant” (Reasons, paragraph 34). He expressed that view for two reasons. First, the medical certificates were not reports and did not set out the facts upon which the opinion was based. That conclusion was open to the Arbitrator. Second, he gave less weight to the opinion of Dr Bartipan than to the specialists because of his “education, training and experience”. Whilst the second reason was not supported by the evidence this error does not, on its own, invalid the Arbitrator’s conclusion that the Respondent Worker suffered a partial incapacity from 2 December 2002 until 4 May 2004 as a result of the injuries sustained by him in his accident on 4 July 2002. An additional reason for the Arbitrator reaching that conclusion was that he accepted the Respondent Worker’s evidence.
The Appellant Employer also challenges the Arbitrator’s conclusion that the “preponderance of medical opinion is that the Applicant was partially incapacitated during the period 2 December 2002 to 3 May 2004” (Reasons, paragraph 35) in circumstances where “the only medical evidence that could possibly have application in that period was the evidence from Dr Bartipan (which was to the effect that the Applicant was fit for work)” (Appellant Employer’s submissions 17 June 2006, paragraph (p)). The Appellant Employer’s submission is not accurate. The medical evidence obtained in the period from December 2002 to May 2004 consisted of reports from Drs Mahony (29 March 2004), Matalani (25 March 2004) and Fearnside (25 March 2004). All other reports or medical certificates are either well before or after the relevant period. Both Drs Mahony and Matalani support a claim that the Respondent Worker was incapacitated during the period concerned. Dr Fearnside stated that he was entirely reliant upon Mr Pietrzak for any assessment of his symptoms and that he would have expected his symptoms to have resolved long ago. He thought that Mr Pietrzak was fit to return to his pre injury occupation on a fulltime basis.
Dr Mahony took a history of the 4 July 2002 accident and of Mr Pietrzak’s complaints of neck and back pain. In his opinion Mr Pietrzak developed symptoms referable to a “cervicothoracolumbar [sic] strain” which was consistent with having been caused by the incident on 4 July 2002. The doctor suggested that Mr Pietrzak “restrict his future activities to activities not involving significant bending or lifting” (report, page three). In respect of Mr Pietrzak’s post injury duties Dr Mahony recorded at page one:
“…he was off work about 2 weeks. He was working full time and returned to his normal work, working in a pharmacy and also a lab technician working a photographic machine. He continued working for about 5 months and resigned for reasons other than the injury.”
It was for the Arbitrator to assess whether the restriction Dr Mahony talked about in respect of “future activities” was also applicable to work activities up to the date of the examination. His reasons do not disclose if he did that.
Dr Matalani took a history that Mr Pietrzak returned to work despite pain in his neck extending downwards towards his back. Under ‘current symptoms’ the doctor recorded:
1.pressure sensation or pain present in the back of the neck;
2.pain in the back, which is present mostly in the upper and mid back and is aggravated by prolonged sitting and standing;
3.intermittent radiation of the pain to the arms and legs particularly when the pain in the back is severe, and
4.pain in the low back, which sometimes can be severe.
Dr Matalani diagnosed a soft tissue and chronic musculoligamentous strain of the back and neck with referred pain to the arms and legs. He thought that Mr Pietrzak was fit for suitable duties with restrictions on the following activities:
· repetitive bending and twisting of the spine;
· prolonged walking, standing and uninterrupted sitting;
· heavy manual handling activities;
· pushing and pulling heavy weights;
· activities causing jolting, jerking or jarring of the back;
· repetitive bending or rotation of the neck, and
· a weight lifting limit of 7kg on a permanent basis.
Whether those restrictions applied in the period up to the date of examination depended on whether the Arbitrator accepted the Respondent Worker’s credit. He did.
The medical evidence obtained outside the relevant closed period is from Drs Nash (29 June 2004), Hughes (6 August 2004 and Edwards (4 August 2004). Dr Nash thought that Mr Pietrzak was fit for his “current work as a herbalist” and that his spine was “vulnerable to lifting weights in excess of 15 kg, frequent bending/twisting of his spine, pushing/pulling of heavy weights or prolonged sitting/standing”. He did not say if he thought Mr Pietrzak would have been unfit during the relevant closed period.
Both Dr Hughes and Dr Edwards thought there was nothing wrong with Mr Pietrzak and that he was fit without restrictions.
In my opinion the Arbitrator was wrong to conclude that the “preponderance of medical opinion” supported a claim for partial incapacity in the period 2 December 2002 to 3 May 2004. Some of the evidence may have supported a conclusion that Mr Pietrzak was incapacitated in that period but, save for rejecting the opinion of Dr Bartipan, the Arbitrator has not analysed the evidence to explain the basis on which he reached his conclusion on this issue.
Section 40 Calculations
The Appellant Employer challenges the Arbitrator’s section 40 calculations. The Arbitrator failed to apply the five steps set out in Mitchell v Central West Health Services (1997) 14 NSWCCR 526 (‘Mitchell’) in arriving at his conclusion that Mr Pietrzak was entitled to weekly payments of $225.00 per week from 2 December 2002 to 4 May 2004.
Those steps are set out at 529 of Mitchell and are:
“...the Court is required:
1. To determine the weekly amount the worker would probably have been earning if uninjured (section 40(2)(a))...
2. To determine ‘the average weekly amount that the worker is earning or would be able to earn in some suitable employment from time to time after the injury’ (section 40(2)(b)). Section 40(3) provides that the determination of this amount is subject to the following:‘(a) the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker;
(b) the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.’...
3. To subtract the figure derived from 2. from the figure derived from 1. (section 40(2)).
4. To decide whether and to what extent the reduction calculated as above bears ‘such relation to the amount of that reduction as may appear proper in the circumstances of the case (section 40(1))...
5. To make an award in the amount arrived at in Step 4.”
The Arbitrator found that the Respondent Worker’s earnings but for injury were $511.00 per week. He then found, contrary to his finding that Mr Pietrzak was partially incapacitated for work, that the section 40(2)(b) amount was ‘nil’. That finding was not open on the evidence and was inconsistent with earlier findings. If Mr Pietrzak was partially unfit for work, the Arbitrator was required to assess his ability to earn in the labour market assessable to him (step two in Mitchell). Instead, the Arbitrator determined the “weekly reductions in the Applicant’s earnings” to be as follows:
“(a)$511.00 from 2 December 2002 until 31 May 2003;
(b)the statutory maximum of $310.90 from 1 June 2003 until 30 September 2003;
(c)the statutory maximum of $317.20 from 1 October 2003 until 6 October 2003 and from 8 November 2003 until 3 May 2004; and
(d)$206.00 for the period 6 October 2003 until 7 November 2003 while he was employed by the Nundah Bypass Night and Day Pharmacy.”
The above findings were not open on the evidence and disclose an error in the Arbitrator’s approach to the section 40 calculation.
What was required was for the Arbitrator to determine Mr Pietrzak’s ability to earn in his injured state (step two). Then deduct that figure from his pre injury earnings (step three). Then, if appropriate, apply the section 40(1) discretion to determine the amount that is ‘proper in the circumstances of the case’ (step four). Then, make an award or order in the amount arrived at in step four.
The Arbitrator purported to apply the section 40(1) discretion to arrive at the figure of $225.00 per week for the whole period claimed. This also involved an error as the maximum loss in the period from 6 October 2003 to 7 November 2003 was only $206.00 per week.
For these reasons the Arbitrator’s determination must be set aside and the Respondent Worker’s entitlements redetermined.
CONCLUSION
The end result is that there are three errors in the Arbitrator’s decision. He has:
(a)failed to properly consider and determine the ‘notice of injury’ and ‘notice of claim’ issue;
(b)erred in concluding that the ‘preponderance of medical opinion’ supported a claim for partial incapacity in the period 2 December 2002 to 3 May 2004,and
(c)failed to follow and apply the five steps set out in Mitchell in calculating Mr Pietrzak’s entitlement under section 40 of the 1987 Act
These errors require that the order for the payment of weekly compensation be revoked and that the Respondent Worker’s entitlement to weekly compensation be redetermined. In view of the important role Mr Pietrzak’s credit played in the result before the Arbitrator, and bearing in mind that part of the transcript is missing, it is not appropriate that I conduct that redetermination. Therefore, regrettably, it is necessary that the matter be remitted for further hearing before a different Arbitrator for determination in accordance with the reasons in this decision.
The challenge to the Arbitrator’s determination that the Respondent Worker injured his neck and back as a result of his injury on 4 July 2002 has been unsuccessful. Therefore, the Arbitrator’s determination on the issue of injury to the neck and back is confirmed and does not require redetermination. However, for the reasons set out above, the Arbitrator’s determinations in respect to ‘notice of injury’, ‘notice of claim’, incapacity and the Respondent Worker’s entitlement under section 40 are revoked and must be redetermined at a new Arbitration hearing.
DECISION
Paragraph one of the Arbitrator’s determination dated 24 May 2005 is revoked and the following order made:
“The matter is remitted to a different Arbitrator to determine the Respondent Worker’s entitlements under the Workers Compensation Act 1987 in accordance with these reasons.”
Paragraph two of the Arbitrator’s determination is confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Acting Deputy President
22 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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