Workers Compensation Nominal Insurer v Tillman - [2012] NSWWCCPD 38

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Workers Compensation Nominal Insurer v Tillman [2012] NSWWCCPD 38
APPELLANT:			Workers Compensation Nominal Insurer
FIRST RESPONDENT:			David Tillman
SECOND RESPONDENT:		Ando 2 Pty Ltd t/as Seca Glass
INSURER:			Uninsured
FILE NUMBER:			A1-9883/11
ARBITRATOR:	Mr R Perrignon
DATE OF ARBITRATOR’S DECISION:			5 April 2012
DATE OF APPEAL DECISION:			26 July 2012
SUBJECT MATTER OF DECISION:			Section 74 of the Workplace Injury Management and Workers Compensation Act 1998; failure to give notice of dispute; s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998; leave to have unnotified matter determined by the Commission; s 9AA of the Workers Compensation Act 1987; connection with the State of New South Wales; incapacity; entitlement to weekly compensation
PRESIDENTIAL MEMBER:			Acting President Kevin O'Grady
HEARING:			On the papers
REPRESENTATION:			Appellant:	Sparke Helmore
First Respondent:	LHD Lawyers
Second Respondent:	No appearance
ORDERS MADE ON APPEAL:			1. Order one appearing in the Certificate of Determination dated 5 April 2012 is revoked and the following order is made in its place: “The application for leave to dispute incapacity is refused”. 2. Orders one and two appearing in the Certificate of Determination dated 31 May 2012 are revoked and the matter is remitted to the Arbitrator for determination in accordance with this decision. 3. The appellant is to pay the costs of this appeal.

BACKGROUND

Mr David Tillman alleges that he received injury in the State of Victoria on 15 November 2007 whilst employed by Ando 2 Pty Ltd trading as Seca Glass (Ando). It is common ground that Ando was not at relevant times a holder of a policy of insurance in respect of liability under the Workers Compensation Act 1987 (the 1987 Act) as is required by the provisions of s 155 of that Act. In the circumstances, Mr Tillman made a claim for compensation benefits against the Workers Compensation Nominal Insurer (the appellant) under Div 6 of Pt 4 of the 1987 Act.
The first claim made by Mr Tillman was in respect of a lump sum under s 66 of the 1987 Act. That claim, it seems, was made on or about 22 March 2010. Proceedings were commenced in the Commission seeking an order in respect of that alleged entitlement. Those proceedings were discontinued by Mr Tillman on 15 April 2011.
A fresh claim in respect of lump sum entitlement was made by Mr Tillman in correspondence dated 18 April 2011. On 31 May 2011 Mr Tillman’s solicitors gave notice to both the appellant and Ando that he wished to claim weekly compensation. The claim was particularised and included a claim for continuing payments. Correspondence dated 9 June 2011 from the appellant to Mr Tillman’s solicitors seeking further particulars of the claim was not answered.
On 7 November 2011 Mr Tillman commenced the present proceedings by filing an Application to Resolve a Dispute (the Application) with the Commission seeking orders in respect of weekly payments and a lump sum in respect of alleged whole person impairment. The Application named both Ando, the employer, and the appellant, the Nominal Insurer as respondents to the proceedings as is required by s 142B(1)(a) of the 1987 Act.
On 22 June 2011 correspondence was forwarded by the appellant to Mr Tillman’s solicitors which stated that the claim made was disputed and reasons for that decision were provided as required by the provisions of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The proceedings were referred to Arbitrator Richard Perrignon and a teleconference was appointed for 19 December 2011 at which time the Arbitrator noted that the appellant’s s 74 notice denied that Mr Tillman was a worker or a “deemed worker”. The appellant’s assertion in that notice that there was no connection between the alleged employment and the State of New South Wales (s 9AA of the 1987 Act) was recorded. A further notation was made by the Arbitrator on that occasion in the following terms:
“Quantum of wages not disputed, quantum of wpi not disputed – may argue incapacity, but you’ll [sic] need leave.”
The matter was stood over to 20 December 2011.
On 20 December 2011 conduct of the teleconference resumed. The Arbitrator noted a number of procedural matters including orders by consent as follows:
“(a)   Applicant will, within 7 days, update company search, re-serve ARD with timetable, and file and serve certificate of service on both respondents
(b)     WorkCover will issue NP to 1^st respondent by 3 January 2012
(c)     Further TC to be fixed for 7 Feb 2012 at 2pm, to enable 1^st respondent to be served with [Application to Resolve a Dispute], to file a Reply, and to appear at next TC”
On 7 February 2012 the further teleconference was conducted. The Arbitrator noted that both Ando and a director of that company had been served with a copy of relevant documentation and that Ando had not filed a Reply. Other matters concerning conduct of the proceedings were noted and the matter was listed for conciliation and arbitration on a date in April 2012.
The matter proceeded to arbitration when listed before the Arbitrator on 2 April 2012. There was no appearance on behalf of Ando. Mr Tillman and the appellant were represented by counsel. Following short oral evidence given by Mr Tillman concerning the alleged dependency of his two children, submissions were put on behalf of the parties. Brief attention was given to an application by the appellant seeking leave pursuant to s 289A(4) of the 1998 Act to raise a dispute concerning Mr Tillman’s alleged incapacity. Most attention and argument was directed to the question as to whether Mr Tillman was entitled to compensation benefits having regard to the facts and the operation of s 9AA of the 1987 Act. The matter was stood over to 5 April 2012.
Upon resumption of the hearing the Arbitrator delivered his Statement of Reasons (Reasons) and made determinations in respect of a number of matters. Those Reasons were delivered extempore and were recorded. The Arbitrator on that day issued a Statement of Reasons–Extempore Orders as follows:
“In this matter, a conciliation conference and arbitration was held on 2 April 2012, where I, acting as Arbitrator, used my best endeavours to bring the parties to an agreed resolution of the dispute. The parties were unable to come to an agreement.
To ensure the parties received a timely determination of their dispute, the reasons for the orders set out below were given orally on 4 [sic, 5] April 2012.
A sound recording of the reasons given is available to the parties.
The findings I make are as follows:
1.The application for leave to dispute the quantum of weekly compensation is dismissed.
2.As at the date of injury on 15 November 2007, the applicant was employed by the first respondent.
3.The State of New South Wales was the State in which the applicant usually worked in his employment with the first respondent.
The Commission directs as follows:
1.The applicant shall, on or before Monday 16 April 2012, file and serve an updated wages schedule, making allowance for two dependent children up to 27 December 2008 and one dependent child thereafter.
2.The parties shall, on or before Monday 16 April 2012, bring in draft minutes of order giving effect to the findings of the Commission, including orders as to costs.”
A Certificate of Determination dated 5 April 2012 has been issued by the Registrar which records the following matters:
“The determination of the Commission in this matter is as follows:
1.The application for leave to dispute the quantum of weekly compensation is dismissed.
The Commission directs:
1.The applicant shall, on or before Monday 16 April 2012, file and serve an updated wages schedule, making allowance for two dependent children up to 27 December 2008 and one dependent child thereafter.
2.The parties shall, on or before Monday 16 April 2012, bring in draft minutes of order giving effect to the findings of the Commission, including orders as to costs.”
It appears that Mr Tillman failed to comply with Direction number 1 concerning the filing and service of an “updated wages schedule”. In the circumstances it appears that the Arbitrator convened a further teleconference which is recorded by the Commission as having taken place on 14 May 2012. A record of the outcome of that teleconference is found in a document prepared by the Arbitrator in accordance with the Commission’s usual practice. That documents contains the following “comments” made by the Arbitrator:
“1.     On 4 [sic, 5] April 2012, an ex tempore decision was delivered
2.      The applicant was directed to bring in draft minutes of order giving effect to the decision by re-calculating the weekly compensation claimed by reference to a single worker with two dependent children up to 27 December 2008, and one dependent child thereafter
3.       Draft orders provided by the applicant on 16 April failed to do this, and the respondent objected to them
4.       Parties were heard at TC on 18 [sic, 14] May 2012 to settle orders
5.       Respondent requested direction that moneys be paid out of the Workers Compensation Insurance Fund – no objection
6.       Worker’s solicitor not available at TC – a colleague attended, could not explain why directions not complied with, undertook to do so in 7 days
7.       Directed him to provide amended wages schedule to Mr Dolan by Wed 23 May, and to Commission by Mon 28 May
8.       Commission will then make orders giving effect to COD ex tempore”.
The Arbitrator had reserved the making of orders concerning the substantive application pending compliance with the Directions made on 5 April 2012 and 14 May 2012 as noted above. Mr Tillman complied with the Direction on 28 May 2012. The appellant had, as earlier noted by the Arbitrator, earlier objected to the filing of such schedule in correspondence to the Commission dated 16 April 2012. The Arbitrator subsequently made notations, orders and awards as recorded in a Certificate of Determination issued by the Registrar dated 31 May 2012 which is as follows:
“In this matter, a conciliation conference was held on 2 April 2012, where I, acting as Arbitrator, used my best endeavours to bring the applicant and second respondent to an agreed resolution of the dispute. The first respondent had notice of the proceedings, but did not appear. The parties present were unable to come to an agreement, and an arbitration was held on that day. Following the applicant’s oral evidence, leave was granted to amend the Application to Resolve a Dispute to claim weekly compensation at the rates for a single worker with two dependent children up to 27 December 2008, and for a single worker with one dependent child thereafter.
To ensure the parties received a timely determination of their dispute, the reasons for the awards below were given orally on 4 [sic, 5] April 2012. A transcript of those reasons has been distributed to the parties. A sound recording is also available.
On 5 April 2012 the Commission published its findings in writing, and directed:
1.the applicant to file and serve an amended wages schedule, reflecting the rates for a single worker with two dependent children up to 27 December 2008, and for a single worker with one dependent child thereafter, and
2.the applicant and second respondent to bring in short minutes of order giving effect to the Commission’s findings.
On 18 [sic, 14] May 2012, a teleconference was held, in default of compliance with direction no 1 above. The parties were given an opportunity to discuss the terms of any awards to be made, giving effect to the Commission’s findings. The applicant was directed to serve an amended wages schedule by 23 May 2012, and to file it with the Commission on or before 28 May 2012. The second respondent was given leave, if it wished, to file written submissions in response by 28 May 2012. It has not done so.
Having regard to the Commission’s findings, and to the applicant’s amended wages schedule filed on 28 May 2010 [sic, 2012], I make the following awards and orders:
1.Award of weekly compensation for the applicant as against the first respondent as follows.
a.For the period 22 December 2007 to 22 June 2008, at the rate of $994.46 per week.
b.For the period 22 June 2008 to 30 September 2008, at the maximum statutory rate for a single worker with two dependent children, being $532.90 per week.
c.For the period 1 October 2008 to 21 October 2008, at the maximum statutory rate for a single worker with two dependent children, being $542.10 per week.
d.For the period 22 to 28 October 2008, at the rate of $34.46 per week.
e.For the period 19 to 25 November 2008, at the rate of $34.46 per week.
f.For the period 24 to 27 December 2008, at the maximum statutory rate for a single worker with two dependent children, being $542.10 per week.
g.For the period 28 December 2008 to 6 January 2009, at the maximum statutory rate for a single worker with one dependent child, being $453.20 per week.
h.For the period 14 to 27 January 2009, at the rate of $34.46 per week.
i.For the period 28 January 2008 [sic, 2009] to 31 March 2009, at the maximum statutory rate for a single worker with one dependent child, being $453.20 per week.
j.For the period 1 April 2009 to 30 September 2009, at the maximum statutory rate for a single worker with one dependent child, being $462.20 per week.
k.For the period 1 October 2009 to 31 March 2010, at the maximum statutory rate for a single worker with one dependent child, being $470.70 per week.
l.For the period 1 April 2010 to 30 September 2010, at the maximum statutory rate for a single worker with one dependent child, being $479.70 per week.
m.For the period 1 October 2010 to 31 March 2011, at the maximum statutory rate for a single worker with one dependent child, being $486.20 per week.
n.For the period 1 April 2011 to 30 September 2011, at the maximum statutory rate for a single worker with one dependent child, being $496 per week.
o.For the period 1 October 2011 to 31 March 2012, at the maximum statutory rate for a single worker with one dependent child, being $504.50 per week.
p.For the period 1 April 2012 to date and continuing, at the rate of $514 per week to date, being the maximum statutory rate for a single worker with one dependent child, and thereafter at the applicable maximum statutory rate.
2.The matter is remitted to the Registrar for referral to an approved medical specialist for assessment of whole person impairment (lumbar spine) as a result of injury on 15 November 2007.
3.The first respondent is to pay the applicant’s costs of the proceedings as agreed or assessed, and I certify the matter as complex and allow an uplift of 20 per cent for all parties.
Any amounts payable by the first respondent pursuant to the above awards and orders are to be paid by the second respondent out of the Workers Compensation Insurance Fund established by section 154D(1) of the Workers Compensation Act 1987.”

ISSUES IN DISPUTE

The issues in dispute raised in the grounds of appeal are whether the Arbitrator erred in the following respects:
(a)     failing to permit the appellant to dispute Mr Tillman’s allegation of incapacity;
(b)     finding that Mr Tillman was a worker employed by Ando on 15 November 2007;
(c)     finding that the State of New South Wales was the State in which Mr Tillman usually worked in his employment with the appellant, and
(d)     failing to determine Mr Tillman’s capacity for work.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of s 352(2) and s 352(4) of the 1998 Act have been met.

THE ARBITRAL PROCEEDINGS

Proceedings before the Arbitrator conducted on 2 April 2012 and 5 April 2012 were recorded and a transcript (T) has been produced and made available to the parties.
The appellant had informed the Arbitrator that there was no dispute that Mr Tillman was, at relevant times, a “deemed” worker of Ando. The dispute concerned the question as to whether that “deemed employment” was connected to the State of New South Wales within the meaning of s 9AA of the 1987 Act.
The appellant also accepted that the whole person impairment suffered as a result of the subject injury was six per cent.

The evidence

The documentary evidence before the Arbitrator was noted by him at [10] of his Reasons delivered extempore on 5 April 2012, which are recorded in the transcript of that day’s proceedings.
The oral evidence of Mr Tillman, and an understanding reached between the parties during the course of proceedings, was summarised by the Arbitrator as follows (at [11] of Reasons):
“Oral evidence was adduced from Mr Tillman to the effect that, during the period of incapacity, he had two dependent children. He was briefly cross-examined and re-examined on that issue. The parties agreed to proceed on the basis that he had two dependent children up to 27 December 2008, and one dependent child thereafter. The worker did not concede that he did not have two dependent children for the entire period, but was content to proceed on the basis that, should he receive an award of weekly compensation, he will produce evidence satisfactory to the insurer that both children were dependent for the entire period.”

Mr Tillman’s evidence

There are two written statements made by Mr Tillman in evidence before the Commission. The first was tendered on his behalf and was made on 25 September 2011. Mr Tillman stated that he responded to “an advertisement for a glazier in the Daily Telegraph newspaper in Sydney” in late 2007. At that time he was living in Quakers Hill, a suburb of outer Sydney. He telephoned the advertiser and spoke to Mr Ray Anderson who was present at the Rydalmere office of “Seca Glass” (there is no dispute that Ando traded as Seca Glass). Mr Tillman knew that Mr Ray Anderson was the brother of Sean Anderson a glazier known to him in the past when he had worked in Queensland. Mr Tillman was informed that Sean was “in charge” following which he telephoned Sean Anderson.
Mr Tillman’s statement may be summarised as follows:
(a)     Sean Anderson offered Mr Tillman a job on the phone that day. He was told that he would be based in Sydney but that his first assignment would be in Victoria;
(b)     Mr Tillman’s first task was to deliver a work vehicle to Melbourne following which he was to work at a shopping centre in that city for a couple of months “finishing a job there”;
(c)     upon completion of the Melbourne job, Mr Tillman was to “engage in ongoing employment assisting on a contract Sean had won to fit-out schools in Sydney”. That contract was with an organisation known to him as “Spotlight [sic, Spotless]”;
(d)     Mr Tillman commenced employment with Seca in September 2007. He drove the vehicle to Melbourne and commenced work at the shopping centre in that city. He “continued to base” himself in Sydney. When working in Melbourne “Seca Glass put [Mr Tillman] up in the Rydges Hotel in Melbourne”. Mr Tillman returned to Sydney “on some weekends”;
(e)     Mr Tillman had been sent as “reinforcement” to Melbourne to assist in finishing a job, which was for Bendigo Bank, to get the job done “quicker”. The bank was pressuring Seca Glass to complete that work. Mr Tillman stated that he was to commence his regular employment with Seca in Sydney at the completion of that work;
(f)     Mr Tillman provided Seca Glass with his ABN (Australian Business Number) and provided invoices for his “wages”. He was required to wear a red polo shirt with the name “Seca Glass” written on the pocket. That shirt had a trade slogan on the back. That was a uniform that Mr Tillman and his co-workers “had to wear”;
(g)     when working for Seca Glass Mr Tillman was “under the control of [his] supervisor”. He could not work independently. He was part of a team installing skylights. He, nor his co-workers, were able to “go off and do whatever projects we wanted to do as we had to follow the orders of the site”.

Mr Tillman described the injury which occurred on 15 November 2007 causing pain in his lumbar spine. He continued working. Approximately two weeks after the injury he was “due to have annual leave for Christmas break”. He took that leave and attended his general practitioner Dr Au at Mount Druitt in New South Wales. He was due to return to Seca Glass in January 2008. Whilst on leave he was informed that he had to collect a motor vehicle from the Rydalmere office of Seca Glass and drive it to Melbourne. He took possession of the vehicle; however, his return to Melbourne in January was delayed. His employment was terminated at a time when he was informed that the company “had changed hands and that there was no longer a job [for him]”. The vehicle which he still had in his possession was collected by an employee of Ando.
Mr Tillman remained unemployed for about six months following which he obtained employment building hydroponic houses for the CSIRO and various universities. That work did not involve any heavy lifting and he performed it until “the end of 2008”.
Mr Tillman stated that he has “spent most of [his] working life as a glazier”. He is unable to return to that work by reason of his ongoing back symptoms. He has looked for work. He proceeded to describe the extent of his disability. Mr Tillman stated that Sean Anderson had informed him that he notified solicitors or the workers compensation insurer that Mr Tillman was employed to work in New South Wales.
The appellant had tendered a written statement made by Mr Tillman which appears to be dated 22 July 2010. The following is recorded at [4] of that statement:
“I was previously employed by Ando 2 Pty Ltd known as Seca Glass. I was employed by their Rydalmere Office. I was seconded to Melbourne to work at the High Point Shopping Centre”.
Mr Tillman described his duties in that statement and gave detail of the occurrence of injury on 15 November 2007. He stated that “around two weeks after his injury” he was due to have annual leave for the Christmas break. That leave was taken and he sought treatment from Dr Au at Mount Druitt. Mr Tillman stated that he was “due to return to Seca Glass in January 2008.” Whilst he was on leave he had been informed that the company had changed hands and there was no longer a job for him.
The following matters concerning his engagement to work and his duties were recorded between [10] and [13] of the statement:
“10.   I was hired by Seca Glass and Shaun [sic] Anderson because he knew me from Queensland. I had previously lived there and had done work as a glazier up there. Shaun [sic] Anderson contacted me and asked me if I would like to work for him. He explained that there was a job going in Melbourne. At the time I was living in Sydney. Seca Glass had an office in Rydalmere.
11.    My first assignment of employment whilst working for Seca Glass was to obtain the work vehicle from Rydalmere and drive it to Melbourne. I did this. When I returned to Sydney for my annual leave in December I was told that I had to collect a Subaru Outback from the Rydalmere office and drive that down to Melbourne. I obtained the Subaru Outback but my return in January was delayed. Eventually my employment was terminated and someone connected to my boss came and picked up the Subaru Outback from me.
12.    As part of my job with Seca Glass I was required to wear a red polo shirt. This red polo shirt had Seca Glass written on the pocket. On the back there was the phrase, caring for your safety. This was the uniform that myself and my co-workers had to wear.
13.    At all times when working for Seca Glass I was under the control of my supervisor. I could not work independently. I was part of a team installing sky lights. We could not go off and do whatever projects we wanted to do as we had to follow the orders of the site.”
Mr Tillman also relied upon the evidence of Dr Raymond F Wallace, orthopaedic surgeon, found in a report dated 12 March 2010. Dr Wallace had been qualified by Mr Tillman’s solicitors to give evidence in support of the claim before the Commission. Dr Wallace recorded a history of injury consistent with Mr Tillman’s allegations and noted that the only investigation available was an x-ray report and plain films which were taken in May 2008. That investigation demonstrated an oesteophyte at the antero-superior corner of L2. It was also reported that there was “good preservation of disc heights”. Dr Wallace’s diagnosis was that of musculoligamentous strain, lumbar spine. It was Dr Wallace’s opinion that Mr Tillman was unfit to return to his pre-injury duties as a glazier and that he would not be fit for activities requiring repetitive bending or twisting movements at his lumbar spine, sitting or standing in one position for prolonged periods, repetitive lifting above seven and a half kilos, working in confined spaces, at heights or on ladders or prolonged periods of walking or stair climbing. Dr Wallace further stated that Mr Tillman was “currently fit to return [to] work at part time light duties up to 30 hours per week with due consideration given to restrictions on his activities [as earlier detailed]”.
A number of medical certificates were tendered by Mr Tillman one of which, dated 31 March 2008, has no relevance to the alleged injury. Those certificates were issued by members of the general practice consulted by Mr Tillman at Emerton in outer Sydney. Those certificates relevant to back disability are not WorkCover certificates nor do they make reference to any history of back injury. Each certifies that Mr Tillman was unfit for work, the latest being in respect of the period between 14 July 2008 and 14 August 2008.
Mr Tillman tendered a copy of a workers injury claim form which appears to have been completed on 3 July 2008. That form was endorsed by Mr Tillman as being in respect of a claim in both New South Wales and Victoria. The injury as recorded in that form is consistent with a description of injury given in Mr Tillman’s evidence. The employer is named as “Seca Glass of 546 Mountain Highway Bayswater Victoria”.
Mr Tillman tendered a number of copies of documents described in the index to the Application as “receipts”. These documents appear to be rudimentary invoices presented by Mr Tillman to Ando in respect of amounts owing for work performed by him. The first of those documents is dated 1 October 2007. Not all the documents are dated; however the latest date which appears on those invoices is 14 December 2007.
Mr Tillman has also tendered copies of documents which appear to be invoices prepared by him addressed to “Tony Groudace” which apparently relate to labour costs in respect of work done by Mr Tillman. The first of those invoices is dated 21 October 2008 and demonstrates that Mr Tillman was charging $30 an hour for his labour. There is one invoice, which appears to be the last issued by Mr Tillman, which is undated. The latest date which appears on an earlier invoice is 20 January 2009.
A number of other documents were tendered on behalf of Mr Tillman which have no direct relevance to the issues raised on this appeal. I note that there is evidence relating to searches of the records of ASIC relating to the status of Ando.
A copy of a notice prepared by WorkCover in accordance with the provisions of s 74 of the 1998 Act dated 22 June 2011 is in evidence. That notice confirmed the refusal to accept liability in respect of Mr Tillman’s claim for the following reasons:
(a) WorkCover disputed that Mr Tillman entered into a contract of service with Ando, and
(b) reliance was placed on s 9AA of the 1987 Act and it was denied that any employment was connected with the State of New South Wales.

The appellant’s evidence

The appellant relied upon a number of those documents which had been tendered by Mr Tillman including the report of Dr Wallace and ASIC records. A copy of a Business Name Extract dated 27 July 2010 concerning the business known as Seca Glass Vic reveals that the business was registered on 29 August 2005, that its principal place of business was 546 Mountain Highway Bayswater Vic 3153 and that two corporations conducted that business, the first being Persistence 3 Pty Ltd of Chirnside Park, Victoria (start date 20 May 2008) and Ando 2 Pty Ltd of Manly, New South Wales (start date 29 August 2005 and cease date 20 May 2008).
The appellant tendered a written statement made by Mr Sean Anderson of Ormeau, Queensland dated 28 September 2011. Mr Anderson stated that he was “the sole director and shareholder of Ando 2 Pty Ltd t/as Seca Glass at the time of David Tillman’s employment” and that “I was involved with that company from about 2001 and 2009 when I divested myself of my interests. I am aware the company has subsequently been liquidated.” It was further stated that Ando had obtained a contract with Spotless and that the business was advertising “for a few staff in Sydney in order for it to fulfil our obligations under that contract”. Mr Tillman was known to the business before “we employed him”. Mr Anderson further stated “I understand [Mr Tillman] was hired by persons in our Sydney office (probably Kristie or Megan) with a view to working on the contract we had with Spotless NSW.” It was also stated “at the time David was hired we had another project on in Victoria where additional trucks and manpower were required. I recall that [Mr Tillman] drove a truck to Melbourne and while he was down there he was asked to help out on the job at High Point Shopping Centre. We put [Mr Tillman] up in a motel and he worked at that site re-glazing skylights in what was an existing shopping centre.”
Mr Anderson stated that he was not sure as to whether Mr Tillman performed any work for Ando in Sydney before going to Melbourne. He further stated that he did not believe that Mr Tillman performed work for Ando in New South Wales after the project in Victoria was completed. Mr Anderson had no reason to believe that Mr Tillman’s injury was not genuine. He stated that “I think when [Mr Tillman] was employed it was envisaged that he would work in Sydney, but I do not believe he ever actually performed work for us there”.
The appellant tendered in evidence a copy of correspondence from its solicitors Messrs Sparke Helmore to Mr Tillman’s solicitors, LHD Lawyers, dated 9 June 2011. That correspondence seeks further and better particulars of Mr Tillman’s claim. That included a request for details of post injury employment. There was also a request made of the solicitors to indicate those sections of the Act in respect of which the claim was brought. I note in passing that submissions on this appeal include an assertion that that correspondence was not replied to.

Submissions before the Arbitrator

The appellant’s submissions

In the course of submissions put on behalf of the appellant, counsel placed emphasis upon an argument that the employment of Mr Tillman did not have a connection with the State of New South Wales in terms of s 9AA of the 1987 Act and that, having regard to that provision, compensation was not payable in respect of the alleged injury. The evidence adduced by Mr Tillman was criticised in the course of submissions as being unreliable. The only work performed by Mr Tillman, it was put, occurred in Victoria. It was argued that the contract in respect of that work had “[run] its course” and reliance was placed upon the decision in Martin v R J Hibbens Pty Limited [2010] NSWWCCPD 83 (Martin) in support of the proposition that the work in Victoria was a “stand alone” contract. It was put that none of the “tests” in the “cascading” provisions of s 9AA were satisfied in support of Mr Tillman’s argument that the relevant contract had the requisite connection to New South Wales.
In response to an invitation from the Arbitrator to put submissions concerning “the application for leave on quantum” (T23, 2 April 2012), counsel criticised the state of the medical evidence concerning incapacity and submitted that it was incumbent upon Mr Tillman to satisfy the Commission as to “what the loss was”, and that there was no obligation upon the appellant to “raise” that issue (T36). It was further argued at (T37):
“... if you are to make an award, you need to be able to find the evidence upon which to make that award and I’m just alerting you to what I see are the deficiencies”.

Mr Tillman’s submissions

Counsel for Mr Tillman noted that there had been a concession concerning the application of cl 2 of Sch 1 to the 1998 Act to the facts, being that Mr Tillman was at relevant times a “deemed” worker. The Arbitrator invited counsel to put argument in respect of employment simpliciter. The relevant facts were addressed and an argument was advanced that the contract was one of service rather than for services.
Submissions were put which sought to refute the argument that the contract in respect of the work performed in Victoria was a “discrete” contract. Reliance was placed upon the evidence of Mr Anderson concerning employment of Mr Tillman to work in Sydney “on the job with Spotless”. That evidence of Mr Anderson, it was put, explains those circumstances which led to Mr Tillman being transferred immediately to Melbourne. It was argued that the nature of that contract was such that the provisions of s 9AA were satisfied.
It was put that the evidence of Mr Tillman, together with the evidence of Dr Wallace and the content of the medical certificates in evidence, support a conclusion of ongoing incapacity and it seemed to be argued that an award at the relevant statutory maximum was appropriate.

The Arbitrator’s decision

As earlier noted the Arbitrator delivered Reasons for his ultimate determination on 5 April 2012. Those Reasons are recorded in that day’s transcript. The Arbitrator noted that evidence before the Commission established that a receiver and manager “was appointed in October 2007” to Ando. The Arbitrator expressed his satisfaction that Ando and Mr Anderson, the sole director and shareholder of Ando, had been served with notice of the proceedings and that there had been no appearance on behalf of Ando.
It was recorded by the Arbitrator that “neither injury nor the quantum of permanent impairment is in dispute. [The appellant] concedes that Mr Tillman was a deemed employee of Seca Glass for the purposes of Schedule 1.2 of the [1998 Act]”.
The Arbitrator further noted that the appellant disputed that Mr Tillman was “employed” by Ando and had argued that compensation was not payable “in any event” having regard to the provisions of s 9AA of the 1987 Act.
The Arbitrator further noted that the appellant “also seeks leave to dispute the quantum of weekly compensation”. The appellant, it was noted, wished to argue that Mr Tillman “has not proven that he was totally incapacitated for work for the period claimed – that is, from 22 December 2007 to date and continuing – because of the lack of contemporaneous medical evidence to prove that incapacity”. At [7] of Reasons the Arbitrator noted that the “issue” concerning quantum of weekly compensation “was not raised in any notice pursuant to s 74”.
The issues for determination were recorded by the Arbitrator as follows:
“a) Whether WorkCover [sic] should have leave to dispute the quantum of weekly compensation claimed, on the basis of lack of evidence of incapacity and, if so, whether the Commission is satisfied as to the quantum of weekly compensation claimed.
b) Whether Mr Tillman was employed by [Ando].
c) Whether Mr Tillman’s work for Seca Glass was connected with the State of New South Wales within the meaning of section 9AA.”
The Arbitrator firstly dealt with the issue raised in paragraph (a) noted above. A summary was given of the history of Mr Tillman’s claim and the appellant’s response to that claim. The Arbitrator noted that “the section 74 Notice did not dispute quantum of weekly compensation”. The Arbitrator proceeded to address the question as to whether leave should be granted pursuant to s 289A(4) of the 1998 Act to permit the appellant to contest an issue which had not been raised, as is required, pursuant to s 74 of the 1998 Act.
Reference was made to the decision in Mateus v Zodune Pty Ltdt/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488 (Mateus). In the matter of Mateus, Roche DP considered those factors relevant to the exercise of discretion as granted by s 289A(4). Following a consideration of matters raised in Mateus and relevant facts of the present matter the Arbitrator concluded:
“I am not satisfied that it is in the interests of justice that the dispute in relation to the quantum of weekly compensation be heard. The Application pursuant to s 289A(4) is dismissed”.
The Arbitrator proceeded to consider “the issue of employment”. Following a summary of the relevant evidence and submissions put on behalf of the parties the Arbitrator concluded that he was “satisfied that Mr Tillman was employed by [Ando]”. (At [77] of Reasons).
The Arbitrator proceeded to consider the question as to whether the employment, as found by him, was connected with the State of New South Wales within the meaning of s 9AA of the 1987 Act. Following a consideration of the evidence and arguments advanced by the parties, including consideration of the decision in Martin, the conclusion was reached, as stated, that “I am satisfied that New South Wales was the State in which Mr Tillman usually worked in that employment for the purposes of s 9AA(3)(a). It follows that compensation is not precluded by operation of s 9AA”.
Having found in favour of Mr Tillman in respect of all three issues raised as being those matters in dispute, the Arbitrator turned his attention to Mr Tillman’s entitlement to weekly compensation. Having regard to the state of the evidence before him the following order was made:
“I direct the parties to bring in consent orders giving effect to this award within 14 days”.
In response to that direction the appellant’s solicitor Mr Dolan, stated that the appellant was not in a position to comply with such a direction.
The Arbitrator deferred the question of compliance with the direction and proceeded to formulate an anticipated award in favour of Mr Tillman in respect of his entitlement to a lump sum being $8662.50 pursuant to s 66 of the 1987 Act being in respect of six per cent whole person impairment as a result of the subject injury.
The transcript records an exchange between the Arbitrator and Mr Dolan concerning appropriate orders concerning reimbursement of the Nominal Insurer, by Ando and the director of that company, pursuant to s 145A of the 1987 Act.
The transcript records that the Arbitrator returned to the subject of Mr Tillman’s entitlement to weekly compensation. The Arbitrator addressed Mr Sandrussi, solicitor for Mr Tillman, as follows:
“... as I’ve not granted leave to dispute quantum on weeklies, I have power to grant the weeklies as sought, Mr Sandrussi. The problem with that is, your client hasn’t really updated the schedule”.
Mr Sandrussi appears to have acknowledged the absence of relevant evidence concerning entitlement to weekly compensation.
Following discussion between the Arbitrator and the parties’ representatives a direction was made that Mr Tillman “file and serve an updated wages schedule providing for dependents [sic] by 16 April, and grant leave to the parties to make submissions upon orders giving effect to this decision by that date. In default, well, I’ll simply make the orders as I see fit”.
The Certificate of Determination dated 5 April 2012 which I have noted at [10] above was issued by the Registrar. The subsequent history of the proceedings is noted at [12] above. The Certificate of Determination which recorded the Arbitrator’s ultimate orders is noted at [13] above. Those orders included one in respect of continuing entitlement to weekly payments and an order that the matter be remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of whole person impairment resulting from the subject injury.

SUBMISSIONS, DISCUSSION AND FINDINGS

It is intended to firstly deal with grounds two and three raised on behalf of the appellant. Those grounds suggest error “in finding that [Mr Tillman] was employed” by Ando (ground two), and error “in finding the State of New South Wales was the state in which [Mr Tillman] usually worked” (ground three).

Ground two

It will be recalled that the appellant conceded at the hearing that the facts relevant to Mr Tillman’s engagement were such that he was to be taken to be a worker within the meaning of the 1987 Act, as is provided by cl 2 of Sch 1 to the 1998 Act. In the circumstances, as appears to have been suggested by counsel appearing on behalf of Mr Tillman at the hearing, compensation would be payable in respect of the subject injury should Mr Tillman satisfy the Commission that his “deemed” employment was connected with the State of New South Wales within the meaning of s 9AA of the 1987 Act. The practical consequence was that, upon a consideration of the operation of the provisions of s 9AA, a determination as to entitlement to compensation may have been made by the Arbitrator without recourse to analysis of the facts to determine whether there existed at relevant times a contract of service as distinct from a contract for services. This question had been addressed by Roche DP in Martin when the meaning of the words “in that employment” as appear in s 9AA(3)(a) was discussed. It was stated (at [64] and [65]):
“64. In considering the meaning of ‘in that employment’, it is appropriate to consider the entitling provisions in the legislation. To be entitled to compensation an applicant must be a ‘worker’ who has received an ‘injury’ to which employment was a substantial contributing factor (ss 9 and 9A of the 1987 Act). An ‘injury’ means a personal injury arising out of or in the course of employment. A ‘worker’ is relevantly defined in the 1998 Act as a person ‘who has entered into or works under a contract of service...with an employer’.
65. Section 9AA(1) provides that compensation under the 1987 Act is only payable ‘in respect of employment that is connected with this State’. Though ‘employment’ is not defined in either the 1987 Act or the 1998 Act, given the definitions of ‘worker’ and ‘injury’, it can only be a reference to employment under a contract of service or a relationship under a contract of the kind contemplated by Sch 1 in the 1998 Act. Without such a contract, a claimant has no entitlement to compensation because he or she will not be a ‘worker’ or a deemed worker under the legislation.”
I note that the Arbitrator, when dealing with the question concerning the nature of the relationship between Mr Tillman and Ando, appears to have permitted an “overlap” in his reasoning between that issue and the issues raised by s 9AA. That approach is evident at [68] of Reasons. The parties have put relevant submissions and I consider it appropriate to shortly address the question as to whether there existed a contract of service, notwithstanding my earlier observations concerning the consequences in law of the appellant’s concession as to deemed employment.
The Arbitrator made reference to relevant authority (Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16 (Stevens) and Boylan Nominees Pty Ltd t/as Quirks Refrigeration v Sweeney [2005] NSWCA 8) and correctly observed that the principal test concerning the existence or otherwise of a contract of service was the “control test” as was discussed in Humberstone v Northern Timber Mills [1949] HCA 49; 79 CLR 389 and other authorities which were cited at [73] of Reasons. At [72] of Reasons the Arbitrator has correctly summarised the various criteria which require examination when determining the question of “worker” as enunciated in Stevens.
The Arbitrator thoroughly summarised the evidence relevant to this question and concluded that the factors weighing against an inference that a contract of service had come into existence between Mr Tillman and Ando were far outweighed by those factors which support such inference. That conclusion was open to the Arbitrator having regard to the evidence and I am not satisfied that the appellant has established error on his part in so concluding.

Ground three

The appellant challenges the Arbitrator’s findings concerning those matters raised by the provisions of s 9AA of the 1987 Act which provides:
“9AA   Liability for compensation
(1)     Compensation under this Act is only payable in respect of employment that is connected with this State.
(2)     The fact that a worker is outside this State when the injury happens does not prevent compensation being payable under this Act in respect of employment that is connected with this State.
(3)     A worker’s employment is connected with:
(a)  the State in which the worker usually works in that employment, or
(b)  if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment, or
(c)  if no State or no one State is identified by paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located.
(4)     In the case of a worker working on a ship, if no State or no one State is identified by subsection (3), a worker’s employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than one State) the State in which the ship most recently became registered.
(5)     If no State is identified by subsection (3) or (if applicable) (4), a worker’s employment is connected with this State if:
(a)the worker is in this State when the injury happens, and
(b)there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.
(6)     In deciding whether a worker usually works in a State, regard must be had to the worker’s work history with the employer and the intention of the worker and employer. However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.
(7)     Compensation under this Act does not apply in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies to the worker’s employment.
(8)    In this section:
ship means any kind of vessel used in navigation by water, however propelled or moved, and includes:
(a)  a barge, lighter, or other floating vessel, and
(b)     an air-cushion vehicle, or other similar craft,
used wholly or primarily in navigation by water.
State includes Territory and, in a geographical sense, a State’s or Territory’s relevant adjacent area as described in Schedule 1.”
The relevant finding made by the Arbitrator appears at [86] of his Reasons recorded in the transcript of proceedings which were conducted on 5 April 2012 and is as follows:
“I am satisfied that the ‘State in which the worker usually works in that employment’ was New South Wales, because it was their mutual intention that Mr Tillman would work indefinitely in that State, and that the Melbourne job was a temporary arrangement only. As it was of less than six months duration, regard ought not be had to it in determining the State in which he usually works. However, for the reasons given, the conclusion is the same, whether or not regard is had to the work done in Melbourne.”
It may be seen that the Arbitrator has concluded that the necessary connection with the State of New South Wales existed because Mr Tillman had established that the relevant employment came within the terms of s 9AA(3)(a) in that New South Wales was the State in which he usually works. The first argument raised on behalf of the appellant is that the evidence reveals that Mr Tillman worked in Victoria and, further, that the evidence does not establish that he worked for Ando in New South Wales.
Leaving aside the evidence relating to Mr Tillman taking possession of the vehicle which needed to be transported to Victoria and his subsequent taking into possession a second vehicle following his return to Sydney from Victoria, the appellant is correct to assert that there is no evidence that Mr Tillman worked in New South Wales. However the absence of such evidence is not, in my view, fatal to Mr Tillman’s claim under the New South Wales legislation given the terms of s 9AA(6). The Arbitrator has, in accordance with that subsection, had regard to Mr Tillman’s work history and the intention of the worker and the employer concerning work in Sydney. The factual conclusions in relation to those matters permit, in my opinion, the conclusion as reached that in fact New South Wales was the State in which the worker “usually works”. All the evidence, including that of Mr Anderson, supports the Arbitrator’s conclusion that the work in Victoria was but a temporary arrangement and that such work was to be for a period “not longer than six months” in terms of s 9AA(6). The contract made provision for work to be performed in Sydney by Mr Tillman, as stated in evidence by Mr Anderson, on the Spotless contract.
The appellant relies upon the decision in Martin in support of an argument that the contract between Mr Tillman and Ando was a discrete contract, the subject matter of which was exclusively the performance of work in the State of Victoria. That argument was advanced before the Arbitrator and is reiterated on this appeal. The Arbitrator rejected that argument and found that he was not satisfied that the employment contract was divisible into two discrete contracts as was the case in Martin (at [87] of Reasons). The Arbitrator had earlier stated his conclusions as to the nature and scope of the contract as appears at [70] above. That conclusion was open to the Arbitrator having regard to the evidence as a whole and I conclude that the appellant has failed to demonstrate any relevant error on the part of the Arbitrator.
Having regard to my views as to the Arbitrator’s factual findings and application of the provisions of s 9AA it follows that the appellant’s argument founded upon the terms of s 9AA(3)(b) and (c) must be rejected.

Grounds one and four

The first ground challenges the Arbitrator’s ruling which prevented the appellant disputing the allegation of incapacity. The fourth ground suggests error in failing to determine the question of Mr Tillman’s capacity for work. These two grounds raise a number of issues in common and are to an extent interrelated. In the circumstances it is proposed to address them jointly.
By way of preliminary observation it appears, having regard to the transcript, Reasons and submissions on appeal, that a number of misconceptions have been made by the Arbitrator and the parties concerning the issue of incapacity and the operation of those provisions of the legislation that regulate the conduct of proceedings. I shall return to this matter below.
The provisions relevant to the Arbitrator’s determination not to grant leave to the appellant to “dispute the quantum of weekly compensation claimed” are s 74 and s 289A of the 1998 Act which provide:
“74   Insurers to give notice and reasons when liability disputed
(cf former s 94A)
(1)    If an insurer disputes liability in respect of a claim or any aspect of a claim, the insurer must give notice of the dispute to the claimant.
(2)    The notice must contain the following:
(a)  a statement of the reason the insurer disputes liability and of the issues relevant to the decision,
(a1)  a statement to the effect that the worker can request a review of the claim by the insurer,
(b)  unless paragraph (c) applies, a statement to the effect that the worker can refer the dispute for determination by the Commission,
(c)  if the insurer has referred or proposes to refer the dispute for determination by the Commission, a statement to that effect specifying the date of referral or proposed referral,
(c1)  a statement to the effect that the matters that may be referred to the Commission are limited to matters notified in the notice, or in a notice after a further review or in correspondence prior to any such referral concerning an offer of settlement or in a request for a further review,
(d)  a statement to the effect that the worker can also seek advice or assistance from the worker’s trade union organisation or from a lawyer,
(e)  such other information as the regulations may prescribe or, subject to the regulations, as the Authority may from time to time approve and notify to insurers and self-insurers.
(2A) In the case of a claim for compensation under this Act, a statement of reasons in a notice under this section is to indicate the provision of the workers compensation legislation on which the insurer relies to dispute liability.
(2B) A notice under this section must be expressed in plain language.
(3)    The regulations may make provision for the form of and for other information to be included in or to accompany a notice under this section.
The regulations may require an insurer to give a copy of a notice under this section to the claimant’s employer.
(3A) The regulations may create offences in connection with any failure to comply with this section.
Note. A dispute as to liability to commence weekly payments within the requisite period after a claim for compensation is made must be notified in accordance with this section (See section 93 and the offence arising under section 94).
(4)    Notice is not required to be given under this section with respect to a dispute if notice has been given under section 54 of the 1987 Act with respect to the dispute and that notice contained the statements and information that a notice under this section is required to contain.
(5)    Before giving a notice under this section, an insurer must carry out an internal review of the decision to dispute liability in respect of the claim or an aspect of the claim.”

“289A   Further restrictions as to when a dispute can be referred to Commission
(1)    A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)    A matter is taken to have been previously notified as disputed if:
(a)  it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b)  it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.

(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”

It is not in dispute that the notice given by the appellant in accordance with s 74 made no reference to incapacity which, once Mr Tillman’s notice had been given of the claim for weekly payments, was alleged. It follows that no notice of dispute had been given in that notice concerning the question of incapacity. The Arbitrator has determined that a consequence of that absence of notice was that the appellant, given the application of s 289A(1), and in the absence of a grant of leave pursuant to s 289A(4), was not able to “dispute the quantum of weekly compensation claimed”.
The transcript of proceedings conducted on 2 April 2012 records argument raised by the appellant concerning the extent of incapacity. Those submissions emphasised the deficiencies in the lay and medical evidence concerning this issue and particular criticism was directed to the apparent allegation of total, or near total, incapacity (T23 and T24, 2 April 2012).
At the conclusion of this line of argument the Arbitrator is recorded as asking counsel, “have you now made all the submissions you wish to make on the question of leave with regard to incapacity?” Counsel replied that he had done so (T24, 2 April 2012).
The Arbitrator then called upon Mr Tillman’s counsel to put his submissions. The first matter addressed by counsel was the question as to whether Mr Tillman was a worker within the meaning of s 4 of the 1998 Act.
Counsel proceeded to address the question of incapacity. Argument was interrupted when the Arbitrator asked counsel for the appellant whether it was accepted that Mr Tillman’s post injury earnings had been “taken account of” in the wages schedule which appears at 5.2 of the Application. Counsel’s response as recorded (at T36, 2 April 2012) was that the subject of the extent of incapacity “was an issue that [Mr Tillman] had to demonstrate to you to your satisfaction about what the loss was rather than [the appellant] raising it”.
The Arbitrator then directly asked Mr Tillman’s counsel, “had your client had prior notice of the application for leave to dispute quantum, would it [sic] have obtained further medical evidence?” (at T37, 2 April 2012). Counsel replied “yes”.
It is clear that the manner of conduct of proceedings before the Arbitrator did not lead to a clear identification of the issues nor was there a clear statement of relevant argument. The misconception to which I refer at [76] above concerns the characterisation or identification of the “dispute” in respect of which, apparently, the appellant sought leave pursuant to s 289A(4) to have determined. That dispute is described variously as one concerned with the allegation of incapacity and, at other times during exchanges between the Arbitrator and counsel, and in the Arbitrator’s Reasons, as a dispute concerning “quantum of weekly compensation”.
It is clear that Mr Tillman in his claim, and by inference from the content of the wage schedule found in the Application, alleged incapacity had resulted from the subject injury. That allegation has not been disputed. Failure to dispute that allegation had the result that the question could not, in the absence of leave, be referred for determination by the Commission: s 289A(1) of the 1998 Act.
The Arbitrator has, in his discretion, ruled that the appellant was not to be granted leave to argue the unnotified dispute as to incapacity (variously described as noted above). Accepting, for the moment, the correctness of that ruling, the difficulty in the present circumstances arises because the Arbitrator denied the appellant an opportunity to “dispute quantum of compensation”. It followed that the appellant was prevented from adducing any evidence, or presenting argument, concerning the nature of the incapacity, its duration and the quantum of any entitlement.
A distinction must be drawn between the fact of incapacity and a worker’s entitlement in respect of such incapacity. Upon an acceptance that the appellant was prevented from disputing incapacity before the Arbitrator, the onus remained upon Mr Tillman to establish the extent of any incapacity, that is whether total or partial, the duration of such incapacity, as well as the quantum of any weekly entitlement. The failure to dispute incapacity merely prevented the appellant from adducing any evidence to suggest that incapacity had not resulted from the injury.
The Arbitrator has determined Mr Tillman’s entitlement upon the basis of the content of an amended wage schedule which was filed at the Arbitrator’s direction under cover of an Application to Admit Late Documents filed on 28 May 2012. That “evidence” had been, it seems, admitted by the Arbitrator notwithstanding the earlier objection made by the appellant in correspondence to the Commission dated 16 April 2012 forwarded by the appellant’s solicitors. The Arbitrator’s original direction had made reference to anticipated submissions from the parties concerning such “evidence”; however, there is no record of a ruling by him concerning the appellant’s objection.

The award with respect to weekly compensation was made by the Arbitrator, following a summary of the history of the proceedings, without any further reasons having been stated by him. That award was entered without there being a finding concerning the extent (total or partial) of incapacity. It appears that the Arbitrator has treated the appellant’s failure to dispute incapacity as having the consequence that an award in respect of the claim may be entered as though by default. In so concluding the Arbitrator has erred.
The appellant’s arguments concerning the suggested error on the part of the Arbitrator in failing to grant leave to dispute incapacity are to be found in supplementary submissions filed with the Commission under cover of letter dated 21 June 2012. Those submissions include argument concerning the absence of evidence in relation to the question of incapacity. The tenor of those submissions reflects the confusion which has crept into this matter having regard to the very disordered approach adopted during the adjudication. I have, nonetheless, reached the view that none of the matters raised by the appellant are persuasive concerning the suggested error in exercise of the Arbitrator’s discretion. The question of incapacity had not been disputed and, having regard to all the circumstances, the Arbitrator was correct in refusing leave to raise a dispute with respect to that issue. However, by reason of the error identified at [89] above I conclude that the matter must be remitted to the Arbitrator to enable a proper adjudication of Mr Tillman’s entitlement to weekly compensation. The paucity of evidence relating to relevant earnings has not been cured by the late filing of the schedule of earnings referred to at [88] above given the unresolved objection taken by the appellant to the filing of same. I am of the opinion that, in all the circumstances, the appellant should not be taken to have admitted the contents of that schedule, as may otherwise be the case having regard to the provisions of Pt 15 r 15.5 of the Workers Compensation Commission Rules 2011.
There are two outstanding matters which have not been touched upon in submissions on this appeal which also make it necessary that the matter be remitted to the Arbitrator for further adjudication. The first of those matters is that the quantum of lump sum entitlement as earlier noted was not the subject of dispute. An order with respect to that entitlement was anticipated by the Arbitrator during the course of his reasons delivered extempore on 5 April 2012. It may be seen from the Certificate of Determination dated 31 May 2012 that the lump sum claim was the subject of remitter to the Registrar for referral to an AMS for assessment. Such assessment is not required given the absence of a dispute between the parties concerning that entitlement.
The second matter which appears to have been overlooked relates to the orders sought by the appellant concerning reimbursement which I have noted at [59] above. I consider it appropriate that both those matters be addressed by the Arbitrator and that appropriate findings and orders be made following the further hearing.
In the circumstances, I consider it appropriate that the order made in paragraph one of the Certificate of Determination dated 5 April 2012 be revoked and substituted as appears below. The award entered providing for weekly compensation should be rescinded and an order should be made remitting the matter to the Arbitrator for rehearing restricted to the matters which I have raised in the course of these Reasons. It may be that the parties, following advice, may wish to adduce additional evidence. The Arbitrator may make appropriate orders and directions in relation to such matters and an opportunity should be granted to the appellant to argue the admissibility of the late wages schedule.

DECISION

Order one appearing in the Certificate of Determination dated 5 April 2012 is revoked and the following order is made in its place: “The application for leave to dispute incapacity is refused”.
Orders one and two appearing in the Certificate of Determination dated 31 May 2012 are revoked and the matter is remitted to the Arbitrator for determination in accordance with this decision.

COSTS

The appellant on this appeal has secured a rehearing with respect to the question of entitlement to weekly compensation. This appeal and the need for that rehearing has, in part, been occasioned by the consequences of its failure to dispute incapacity giving rise to an ill defined application for leave to raise matters which seemed to include matters concerning entitlement to and quantum of weekly compensation. The Commission has, pursuant to s 112 of the 1998 Act, a wide discretion with respect to the making of costs orders. Having regard to all the circumstances I am of the view that it is appropriate that the appellant pay the costs of this appeal.

Kevin O'Grady

Acting President
26 July 2012

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE