Ying Li v Yue Chiu Lau
[2007] NSWWCCPD 74
•5 March 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Ying Li v Yue Chiu Lau [2007] NSWWCCPD 74
APPELLANT: Ying Li
RESPONDENT: Yue Chiu Lau
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC8994-06
DATE OF ARBITRATOR’S DECISION: 14 September 2006
DATE OF APPEAL DECISION: 5 March 2007
SUBJECT MATTER OF DECISION: Partial incapacity; burden of proof; physical disability clear; lack of evidence as to diminution in capacity to work.
PRESIDENTIAL MEMBER: Acting Deputy President Michael J McGrowdie
HEARING:On the papers
REPRESENTATION: Appellant: Unilegal, Solicitors
Respondent: Moray & Agnew, Solicitors
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 14 September 2006 is confirmed.
2.Each party is to pay its own costs of the appeal.
BACKGROUND TO THE APPEAL
On 12 October 2006, Ying Li (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ (‘the Appeal’) in the Workers Compensation Commission (‘the Commission’) against a decision dated 14 September 2006.
The Respondent to the Appeal is Yue Chiu Lau (‘the Respondent Employer’).
An Application to Resolve a Dispute was registered by the Commission on 4 June 2006. In that Application, the Appellant Worker claimed weekly compensation and medical expenses. The weekly payments claim was for $561.41 per week from 17 January 2006 to 21 April 2006 and $492.16 per week from 21 April on a continuing basis.
The Appellant Worker who was born on 16 August 1961 suffered injury on 17 January 2006 when she slipped and fell performing work as a part-time domestic cleaner at the residence of the Respondent Employer. She had been engaged to work 2 days per week for the sum of $224.98 per week.
As a result of the fall the Appellant Worker suffered a fracture of the right distal radius. She was operated on that night by Dr R Lawson when the fracture was reduced using plates and screws.
The Appellant Worker continued to see Dr Lawson for management.
At the time of her injury, the Appellant Worker had concurrent employment with Australian Convenience Foods (Sydney) Pty Ltd (“ACF”). ACF had a factory making sandwiches and the Appellant Worker was engaged as a kitchen hand working 33.5 hours per week and earning $429.59 per week from that employment when she had her injury.
The Appellant Worker’s earnings from both jobs was $654.57 per week at the time of her injury.
Two written Statements of the Appellant Worker were furnished to the Commission. The Statements dated 25 May 2006 and 10 August 2006 came into evidence. Both Statements are silent as to any post-injury employment.
A pay slip for 30 April 2006 from ACF came into evidence and shows that the Appellant Worker was paid $70.53 for 5.5 hours work. Subsequent pay slips showed that the Appellant Worker continued to work on average between 4.5 hours per week and 7.00 hours per week. It is apparent that the Appellant Worker resumed employment with ACF about late April 2006 and continued to work on reduced hours up to the hearing.
The Appellant Worker did not return to cleaning work with the Respondent Employer. The injury occurred at the commencement of a second period of work with the Respondent Employer, the Appellant Worker having previously worked there in 2004. The tenor of the Appellant Worker’s statement of 25 May 2006 was that she felt she received less than full co-operation from the Respondent Employer following her injury. She states that the Respondent Employer did not reveal insurance details to her and did not provide compensation.
An insurer was subsequently identified but her claim was declined upon the basis that the insurer asserted that the Appellant Worker was not a “worker” within the meaning of the legislation.
The supporting documentation accompanying the initial Application lodged with the Commission was essentially directed to this discrete issue.
On 27 June 2006 the Commission received a Reply to Application to Resolve a Dispute lodged by the Respondent Employer. Not only did it put “worker” in issue but also raised as an issue any incapacity alleged to be suffered by the Appellant Worker.
The Appellant Worker then lodged an Application to Admit Late Documents. This was filed on 18 August 2006. It included various medical records and reports; a wages schedule; the statement by the worker dated 10 August 2006 that she was working 33.5 hours per week for ACF at the time of her injury; pre and post injury earning records from ACF; a job seeking diary for Centrelink for the period 1/6/06 to 15/8/06; and extracts of industrial awards.
A telephone conference was held on 23 August 2006 following which and on the same day the Appellant Worker lodged a further Application to Admit Late Documents and, in particular, a medical report dated 29 June 2006 of Dr Brian Zeman a rehabilitation specialist.
The matter proceeded to conciliation and arbitration on 13 September 2006. It was disclosed on behalf of the Appellant Worker at the hearing that from about 18 July 2006 she had been attending an English course at TAFE four days per week which was expected to run until towards the end of 2006. The Appellant Worker was in receipt of a “Newstart Allowance” from Centrelink and working about 1 day per week at ACF.
The Arbitrator allowed both Applications to Admit Late Documents in full. The Appellant Worker made oral application at the hearing to admit further late documents including a report of Dr Zeman of 29 August 2006. The report had not been seen by the Respondent Employer before that time. The Arbitrator declined to grant leave to admit that document.
Leave, however, was granted to admit in addition, a WorkCover Medical Certificate issued on 1 September 2006 by Dr M Lee, the Appellant Worker’s General Practitioner; a Job Search Diary for the period from 16 August 2006 to 13 September 2006; pay slips from ACF for the period from 13 August 2006 to 3 September 2006; and Centrelink Newstart Allowance statements for the period from 3 August 2006 to 30 August 2006.
At the Arbitration hearing and during the course of submissions yet a further application was made, namely an application by the Appellant Worker for leave to give oral evidence relating to the reduced hours worked by her at ACF following the injury as compared to before. This was something which followed a number of earlier attempts by the Arbitrator during the course of the hearing to have the Appellant Worker consider firstly, possible deficiencies in the Appellant Worker’s case and secondly, the option of discontinuing the current proceedings and preparing the matter further before recommencing proceedings. The Arbitrator declined to grant leave to the Appellant Worker on her application to give oral evidence at a time when the proceedings were about to close.
By way of preamble to determining the matter the Arbitrator, as appears from the transcript at page 5, stated that:
“This matter, I’ve said a number of times, I believe, is insufficiently pleaded. There’s insufficient evidence on this claim for me to do justice to the applicant’s situation. I note for the record that I’ve made her aware of that some five times, and I’ve heard directly from the applicant that she wished me to determine the matter, and that’s why I’ve embarked on this final process.”
I consider, on an examination of the transcript, that there was equivocation and some degree of confusion on the Appellant Worker’s part as to whether the claim made after some period of total incapacity was being made on the basis of partial incapacity pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) and/or partial incapacity deemed to be total pursuant to section 38. There was no issue that the Appellant Worker had not previously particularised a claim pursuant to section 38. Further, there was no report from Dr Lee, the General Practitioner, or any comprehensive report from Dr Lawson, the treating specialist, to assist the Commission constituted by the Arbitrator.
The Arbitrator proceeded to determine the matter with reasons given on 13 September 2006 and made awards of weekly payments in favour of the Appellant Worker limited to a certain date. The Arbitrator also made an order for the payment of hospital and medical expenses.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 14 September 2006 records the Arbitrator’s orders as follows:
“1.There is an award for the Applicant in respect of the Applicant’s claim for weekly compensation in the sum of, $7,707.45:
(a)pursuant to s.36 of the Workers Compensation Act 1987, for the period from 17/1/2006 to 17/4/2006, a period of 13 weeks, at the rate of $523.66 per week, the sum of $6,807.53;
(b)pursuant to s.40 of the Workers Compensation Act 1987, for the period from 18/4/2006 to 16/5/2006, a period of 4 weeks, at the rate of $224.98, the sum of $899.92.
2.There is an award for the Respondent in respect of the Applicant’s claim for weekly compensation from 17/5/2006.
3.There is an award for the Applicant, in relation to the Applicant’s claim for medical costs and the Respondent is to pay the Applicant’s reasonable medical costs incurred to date, pursuant to s.60 of the Workers Compensation Act 1987 on production of accounts and receipts and notice of HIC charge.
4.I determine that this matter, which went directly to arbitration, was a complex matter as provided for by Regulation 129 of the Workers Compensation (General) Amendment (Costs) Regulation 2001.
5.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The Appellant Worker seeks to rely on various grounds of appeal which can, when distilled, be summarized as follows:
(a)The failure by the Arbitrator to:
(i)provide adequate reasons;
(ii)take into consideration the facts and circumstances leading to the Application to the Commission;
(iii)lawfully determine the Application by erring in the exercise of his discretion; and
(iv)act according to good conscience and the substantial merits of the case without regard to technicalities and legal form,
and,
(b)The Arbitrator wrongfully rejected the Appellant Worker’s applications at the hearing to:
(i)admit the report dated 29 August 2006 of Dr Brian Zeman as a late document; and
(ii)grant leave to the Appellant Worker to give oral evidence resulting in the Appellant Worker being denied natural justice to have her case considered fully.
The Respondent Employer lodged submissions on 27 October 2006 in respect of the Appeal and takes issue with the Appellant Worker’s grounds of appeal. In addition, the Respondent Employer submits that the Appeal is out of time as the determination was made on 13 September 2006 thus making the last day of appeal 11 October 2006. The Appeal, however, was lodged within 28 days of the date of the Certificate of Determination issued on 14 September 2006. The Workers Compensation Commission Rules 2003, which applied as at the date of the determination provided in Rule 77(2) that the decision appealed against is “made” when the Commission issues a Certificate of Determination (see: decision of Acting Deputy President Lansdowne in Considine v North Power [2005] NSWWCCPD 89, 17 August 2005).
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Appellant Worker 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. I note that the Respondent Employer makes no submission to the contrary.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
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.”
In Christopher Michael McMahon v Anthony Lagana and Joseph Lavella t/as the Vessel “Nimble II” [2003] NSWWCCPD 22, 3 September 2003 Deputy President Fleming refers to principles and considerations relevant to the exercise of the discretion to admit new evidence in relation to proceedings before the Commission. Deputy President Fleming at [11]–[12] stated that:
“[11]Principles relevant to the exercise of the discretion to admit new evidence in relation to proceedings before the Commission were discussed in the matters of Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7, and Shipman Pty Ltd v Matters [2003] NSW WCC PD 19. Factors weighing in favour of the exercise of discretion to admit fresh evidence in an appeal against the decision of an Arbitrator in the Commission include that:
(i)if the request is refused, a substantial injustice will result to the party who seeks to have the evidence admitted,…
(ii)the evidence could not have been discovered, with reasonable diligence, at the time of the original proceedings, …and
(iii)the evidence is of such probative value that there is a high degree of probability that it would lead to a different outcome in the case, …
[12]Factors weighing against the exercise of the discretion to admit fresh evidence in the appeal include:
(iv)The interest in the finality of litigation and the importance of the ability of the successful party to rely on the outcome of the proceedings…
(v)The prejudice, if any, that may result to the other party, particularly if the fresh evidence raises new arguments in the appeal, and
(vi)The intention of the legislative scheme in relation to the nature of the proceedings.”
Further, at [13] the Deputy President pointed out that “…Commission rules and procedures require full and early particularisation of an Applicant’s claim…”. In the particular case before her, the Deputy President at [17] concluded that:
“I am not satisfied that any grounds have been made out to allow the Applicant to now submit a further statement...”
In the present case, the Appellant Worker seeks to rely on an Affidavit sworn on 10 October 2006. In that Affidavit the Appellant Worker refers to her employment at ACF and at the Respondent. All of these matters were within the Appellant Worker’s knowledge long before the hearing. The Appellant Worker also refers to an appointment that she attended with Dr Lawson subsequent to the hearing and annexes a copy of Dr Lawson’s report of 16 September 2006 addressed to Dr Lee. However, Dr Lawson does not offer an opinion as to the Appellant Worker’s fitness for work in that report. There is a further report of 14 August 2006 from Dr Lawson addressed to QBE concerning a proposal to remove the plates and screws from the right radius but there is nothing about fitness for work.
The Appellant Worker also seeks to have admitted as fresh evidence a report of Dr Lawson of 29 August 2006 addressed to Dr Lee. Again Dr Lawson does not offer an opinion as to the Appellant Worker’s fitness for work. Although Dr Lawson has been the Appellant Worker’s treating specialist there is nothing to indicate that the Appellant Worker has at any time sought to qualify Dr Lawson to provide an expert report for the purposes of the proceedings in which Dr Lawson addresses the medical issues relevant to the Appellant Worker’s claim and expresses an opinion as to her fitness for work.
The Appellant Worker again seeks to introduce the report dated 29 August 2006 of Dr Brian Zeman. Dr Zeman is a specialist in rehabilitation medicine. In common with Dr Lawson, Dr Zeman does not express an opinion as to the Appellant Worker’s fitness for work. The report is addressed to the general practitioner, Dr Lee. Even though Dr Zeman is a treating doctor there is no indication that the Appellant Worker has at any time sought to qualify Dr Zeman to provide an export report. Also, although there has been some certificates, there has never been any report from the Appellant Worker’s general practitioner, Dr Lee.
The Appellant Worker seeks to rely upon a series of radiological reports ranging in date from 24 January 2006 and 26 September 2006.
Finally, the Appellant Worker seeks to rely on two letters in relation to the early history of her claim. One is a letter of 25 May 2006 from the WorkCover Authority and the other is a letter of 15 June 2006 from QBE Insurance. Neither letters have any relevance to the question of the Appellant Worker’s capacity to work nor do they give rise to an admission or estoppel of any sort relevant to the proceedings.
In my view none of the material sought now to be introduced by the Appellant Worker sufficiently addresses the fundamental problems faced by the Appellant Worker in the proceedings before the Arbitrator namely discharging the onus of proof. In any event, an appeal is not a rehearing where a party seeks to rectify deficiencies in the evidence where it was open and available to that party to produce such evidence at the hearing. On appeal, “…the powers of the Commission are to confirm, revoke or substitute a new decision and are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘some legal, factual or discretionary error’…”(McMahon at [14]).
I do not consider that there are grounds sufficient to grant leave for the fresh evidence sought to be relied upon by the Appellant Worker to be given. Whilst the report of Dr Lawson of 16 September 2006 and the x-ray report of 26 September 2006 both post date the hearing they do not assist the Appellant Worker to advance her case in a probative sense.
Leave to admit fresh evidence is refused.
EVIDENCE AND SUBMISSIONS
The only medical evidence before the Arbitrator was admitted in the Appellant Worker’s case.
It appears from a medical report of Dr Lawson of 18 January 2006 that Dr Anthony Lau referred the Appellant Worker to Dr Lawson for ongoing management. Dr Lau is the son of the Respondent Employer.
Dr Lawson wrote a short serial report to Dr Lau on 11 April 2006 in which he stated:
“…I have encouraged her to return to her work as a sandwich maker and I have told her that she will be able to go back to cleaning for your parents in around four weeks.”
The worker did return to some work as a sandwich maker in April 2006. The Appellant Worker did not return to her employment with the Respondent Employer but then the Appellant Worker makes it quite clear that she was not happy with the Respondent Employer’s response to her claim. There is no evidence that the Appellant Worker ever sought suitable employment from the Respondent Employer.
After the Appellant Worker was seen by Dr Lawson on 16 May 2006 he reported to Dr Lau that the Appellant Worker was continuing to improve. The doctor was silent with regard to work.
Other than the medical report dated 11 April 2006 from Dr Lawson, there is no medical evidence concerning the Appellant Worker’s capacity to do the pre-injury cleaning work. That is, there was no medical evidence to support a conclusion that she would have been prevented from performing such work.
The Arbitrator could not be expected to speculate on the Appellant Worker’s capacity upon the basis of there being a logical connection between the Appellant Worker’s medical history and an inability to perform domestic cleaning duties. As Mason J stated in Victims Compensation Fund Corporation v Ainsworth and Anor [2001] NSWCA 92 at [27]:
“…It is not necessarily a simple matter of commonsense, notwithstanding frequently encountered judicial injunctions for robust fact-finding on such a basis...”
The Appellant Worker has submitted that as she was examined by Dr Bodel on behalf of the Respondent Worker and Dr Bodel’s report was not tendered, an adverse inference should be drawn. The appropriate inference in such circumstances is that the report would not have favoured the Respondent Employer’s case. However, the Respondent Employer only has to meet the case presented against it. The mere failure to rely on the report does not provide positive evidence in the Appellant Worker’s case in terms of whether the Appellant Worker has discharged the onus of proof.
There was evidence in the Appellant Worker’s case in the medical certificates of Dr Lee that the Appellant Worker was fit only for suitable duties with a lifting restriction placed upon her. The Arbitrator concluded with reference to the sandwich making work that:
“There’s no medical evidence suggesting that she could not do that work.”
Although there was evidence that the Appellant Worker was fit only for suitable duties the Arbitrator was not satisfied that the Appellant Worker had discharged the onus of establishing that she could not perform the sandwich making work at her pre-injury level or the domestic cleaning work. Such a conclusion was clearly open to the Arbitrator.
The report of Dr Zeman did not really take the matter any further notwithstanding the following passage in his report of 29 June 2006:
“…she has recently re-started some part-time work as a sandwich hand. However she is having difficulties at work, not only because of her hand but because it aches in cold areas where she has to do the work.”
The doctor comments further that:
“As the fracture involves the joint she will be unfit for heavy work involving the wrist.”
Dr Zeman considered that it would be appropriate for the Appellant Worker to be managed by an occupational rehabilitation service and referred her to the Commonwealth Rehabilitation Service. The doctor outlined in his report that, after he made the referral, he found out that the Appellant Worker had just contacted Centrelink. It appears that he left it to the Appellant Worker to deal with either or both.
Unfortunately, so far as the Appellant Worker’s claim for weekly payments is concerned, Dr Zeman, presumably because he was not providing a report for the purposes of the Appellant Worker’s claim, does not express an opinion as to the Appellant Worker’s capacity to perform the sandwich making work and to what extent. It would not, in my view, have been appropriate for the Arbitrator to speculate as to what the doctor’s opinion was likely to be. In any event the Arbitrator, as is clear from his determination, was not prepared to speculate that the Appellant Worker was unable to work 33.5 hours per week at ACF. The fact that the Appellant Worker was doing an English language course and at the same time looking for other work does not in any way compel a finding that she was unable to do the work at ACF to her part-time pre-injury level. This does not, of course, mean that the Appellant Worker did continue to suffer from the effects of her injury, as clearly she did.
DISCUSSION AND FINDINGS
An examination of the Arbitrator’s reasons for decision makes it clear that the Arbitrator did not consider that the Appellant Worker had come to terms in an evidentiary sense with the issues for determination. The Arbitrator concluded that the evidence was not such as to lead to a finding that there had been a diminution in the Appellant Worker’s capacity to perform her pre-injuries.
This being so, it would follow that the Arbitrator was not satisfied that the Appellant Worker suffered an economic loss even though she continued to have physical problems and restrictions.
The Arbitrator’s conclusion was open to him and it matters not that another may arrive at a different conclusion. As Greg James J stated in Buckley v Victims Compensation Fund Corporation [2004] NSWSC 513 at [34]-[35], after referring to a finding by a magistrate that the applicant was seriously affected by a psychological or psychiatric disorder:
“34.…It remained for the magistrate to determine whether that serious affectation and substantial incapacitation amounted to a condition that was, overall, within the meaning as he found it to be, of the statutory compound phrase ‘severely disabling’.
35. It is not to the point that I might disagree with his conclusion…”
As stated earlier, an appeal is not a rehearing of the matter. I do not find that the ground of appeal that the Arbitrator failed to give adequate reasons is made out.
The Appellant Worker is aggrieved by the way her claim was responded to by the Respondent Employer and the insurer. This probably also extends to the denial by the insurer of the claim on the grounds of ‘worker’ when at the hearing, the Appellant Worker comfortably established that she was a “worker” within the meaning of the Act. Perhaps the Appellant Worker is distressed that this issue may possibly have deflected her attention to some extent from the issue of incapacity.
Clearly though, the Reply by the Respondent Employer raised incapacity as an issue. Also, there was the telephone conference where the issues were reviewed. The Appellant Worker was granted leave in respect of various applications to rely on late evidence. A further application for late oral evidence made during submissions was declined by the Arbitrator as was the application for fresh evidence made on the appeal.
I do not consider that a consideration of the facts and circumstances leading to the Application to the Commission were at all relevant to or played any part in the Arbitrator’s determination and I find that the Appellant Worker’s ground of appeal in this regard is not made out.
The Arbitrator properly determined the matter on the material that was before him. I do not consider that the determination made was otherwise than lawfully determined or that the Arbitrator erred in the exercise of discretion for reasons already outlined. I find that this ground of appeal is not made out.
Whilst it is correct to say that the determination of matters without undue emphasis on technicalities on legal form is fundamental to objects of the legislation for the determination of disputes, it does remain the case that a party making a claim bears the onus of proving the claim in its various elements, on the balance of probabilities. Matters remain to be decided not on speculation but upon evidence.
I find that the ground of appeal that the Arbitrator failed to act according to good conscience and the substantial merits of the case without regard to technicalities and legal form is not established. The Arbitrator did on numerous occasions invite the Appellant Worker to consider discontinuing the proceedings so that evidentiary matters could be addressed.
In any event, the Arbitrator did conclude that the Appellant Worker was indeed a “worker” and had established an entitlement to weekly payments on the basis of total incapacity for the period during which the Appellant Worker claimed to be solely incapacitated. The Arbitrator also found that the Appellant Worker had established a partial incapacity for a period thereafter based on the material before him. The Arbitrator was not satisfied, to the extent it was claimed, that the Appellant Worker had an entitlement pursuant to Section 38 of the 1987 Act.
I am therefore not satisfied that the Arbitrator erred in law, fact or discretion such that the decision should be reviewed on appeal.
OTHER MATTERS
In determining this appeal I do so only in respect of the Arbitration decision. The Appellant Worker’s condition and situation since the determination is not the subject of this appeal. What rights, if any, that the Appellant Worker has to claim weekly compensation beyond the date of the Arbitrator’s decision are matters for the Appellant Worker.
A matter that has however come to my attention, is that the solicitors for the Appellant Worker wrote to the Commission on 14 September 2006 saying that they believed that by oversight, a general order for Section 60 expenses was not made by the Arbitrator.
The order made by the Arbitrator was in respect of section 60 expenses to date. At the hearing, so the transcript reveals, it was a general order being sought and this was understood by the Respondent Employer. The order made by the Arbitrator should have been a general order for the payment of reasonable medical expenses related to the Appellant Worker’s condition and not one in respect of expenses “incurred to date”.
There was no submission made to the Arbitrator by the Respondent Employer, should the Appellant Worker be entitled to an order pursuant to Section 60, that the order should be otherwise than a general order and not limited to time.
Although the Appellant Worker did not succeed in her claim for weekly payments on a continuing basis, it was not on the basis that she did not have an ongoing physical condition as a result of her injury.
Whilst the matter does not arise in the appeal and I therefore cannot address it, it would appear to have been “a slip” on the Arbitrator’s part, resulting in an “obvious error” on the Certificate of Determination, which can be corrected under section 294(3) of the 1998 Act by the Registrar if she is so satisfied of the error.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
Having regard to all of the circumstances I consider that the appropriate order in relation to costs is that each party pay its own costs of the appeal.
MICHAEL J McGROWDIE
Acting Deputy President 5 March 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL J McGROWDIE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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