Issue 8: August 2009

Welcome to the Eighth edition of ‘On Appeal’.

Edition 8 - August 2009 includes a summary of the July 2009 decisions.

These summaries are prepared by the Presidential Unit and are designed to provide a brief overview of, and introduction to, the most recent Presidential and Court of Appeal decisions. They are not intended to be a substitute for reading the decisions in full, nor are they a substitute for a decision maker’s independent research.

Please note that the following abbreviations are used throughout these summaries:

Index

Presidential Decisions:

Toll Pty Ltd v Morrissey (No 3) [2009] NSWWCCPD 85. 4

Discretionary admission of unserved DVD – Rule 10.3(3); assessment under section 40 of the Workers Compensation Act 1987 – application of JC Ludowici & Son Limited v Cutri (1992) 26 NSWLR 580

The RedRock Company Pty Limited v Scharrer [2009] NSWWCCPD 72. 6

Scharrer v The RedRock Company Pty Limited [2009] NSWWCCPD 73. 6

In the course of employment; journey claim; serious and willful misconduct; high blood alcohol reading; disobeyence of employer’s direction not too drive; sections 4, 9, 10 and 14 of the 1987 Act; weight of evidence

Romanous Constructions Pty Ltd v Arsenovic [2009] NSWWCCPD 82. 8

Section 65A of the 1987 Act; psychological injury - whether worker received a primary psychological injury or a secondary psychological injury - entitlement to compensation where worker has received both a physical injury and psychological injury - effect of payment of lump sum compensation for physical injury before assessment of impairment from psychological injury

South Eastern Sydney and Illawarra Area Health Service v Nikolis [2009] NSWWCCPD 74  10

Psychological injury - section 11A of the 1987 Act - performance appraisal – discipline - reasonable action

Cemco (Australia) Pty Ltd t/as Carrall’s Engineering & Mining v Carrall [2009] NSWWCCPD 76. 12

Lump sum compensation claim - whether the assessments can be aggregated – application of section 322 of the 1998 Act

Kirkpatrick v Heckendorf Family Trading Pty Ltd [2009] NSWWCCPD 84. 13

Injury - causation

J & K Bricklaying Pty Ltd v Brown [2009] NSWWCCPD 89. 14

Sections 52A and 38A of the 1987 Act - whether worker seeking suitable employment

Hadchiti v New South Wales Police Force (No.1) [2009] NSWWCCPD 87. 16

Hadchiti v New South Wales Police Force (No. 2) [2009] NSWWCCPD 88. 16

Section 52A of the 1998 Act – worker not seeking suitable employment

Rail Corporation of New South Wales v B [2009] NSWWCCPD 81. 18

Sections 40(1) and 40(2A) of the 1987 Act - whether worker unreasonably rejected suitable employment by resigning - exercise of the discretion in a claim for weekly compensation

Cumming v Colin Sullivan and Dorthey Sullivan [2009] NSWWCCPD 80. 20

Weekly payments claim – assessment of comparable earnings – applicability of award rates of pay – adequacy of evidence – application of section 40 of the 1987 Act

Adecco Industrial Pty Limited v Bilaver [2009] NSWWCCPD 77. 21

Partial incapacity - weekly compensation; section 40 of the 1987 Act - weight of evidence

Sumaktas v Air Grilles Pty Limited [2009] NSWWCCPD 78. 22

Partial incapacity - section 40 of the 1987 Act - application of Mitchell v Central West Area Health Service (1997) 14 NSWCCR 527

Huynh v Parilla East Pty Ltd [2009] NSWWCCPD 86. 24

Duty to give reasons for decision – continuing partial incapacity – weight attached to evidence – totality of the evidence

Cargill Australia Limited v Hardwick [2009] NSWWCCPD 83. 25

Sufficiency of reasons; section 40 1987 Act

NSW Police Force v Newby [2009] NSWWCCPD 75. 26

Adequacy of reasons; section 40 of the 1987 Act and ability to earn; fresh evidence on appeal

Byrom v Inghams Enterprises Pty Limited and another [2009] NSWWCCPD 79. 28

Reconsideration – s350(3)of the 1998 Act – appeal against Arbitrator’s decision to refuse reconsideration - leave to have “fresh evidence” admitted refused

Toll Pty Ltd v Morrissey (No 3) [2009] NSWWCCPD 85

Discretionary admission of unserved DVD – Rule 10.3(3); assessment under section 40 of the Workers Compensation Act 1987 – application of JC Ludowici & Son Limited v Cutri (1992) 26 NSWLR 580

ADP Snell

29 July 2009

Facts:

This matter has been the subject of a number of appeals including a successful appeal to the Court of Appeal.

The Arbitrator determined that the worker was entitled to weekly compensation pursuant to section 40 from 21 October 2005 to date.

The employer raised a number of grounds of appeal however the conclusion reached regarding the admission of the DVD was sufficient to dispose of the appeal though the grounds relating to the worker’s actual earnings were dealt with briefly.

Held – Arbitrator’s decision revoked, remitted to another arbitrator

(1) In reviewing the arbitrator’s discretionary decision not to admit the DVD unnecessary to find error (see Tan v National Australia Bank Ltd [2008] NSWCA 198 at [11]).

(2) Presidential member may reopen consideration of a matter of which an arbitrator has disposed (Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34 at [38]).

(3) Nelson Bay Pest Service Pty Limited v Morrison [2007] NSWWCCPD 135 – unexplained failure to serve document found to be a significant factor militating against exercise of discretion - distinguished on facts.

(4) Principles discussed by DP Roche in P & N Beverages Australia Pty Ltd v Hammoud [2008] NSWWCCPD 102 at [47] and [48] followed.

(5) On balance the interests of justice favour allowing the introduction of the DVD into evidence.

(6) Principles relating to admission of fresh or additional evidence on appeal in Haider v JP Morgan Holdings Australia Limited t/as JP Morgan Operations Australia Limited (2007) 4 DDCR 634, [2007] NSWCA 158 followed - DVD admitted into evidence on appeal.

(7) Exclusion of the DVD an error of such a nature that it could have affected the result, and it follows that the appeal should be allowed (Stead v State Government Insurance Commission (1986) 161 CLR 141, Toll Pty Limited v Morrissey [2008] NSWCA 197).

(8) The Arbitrator misstated the evidence regarding the assessment of worker’s actual earnings.

(9) The Arbitrator made the same error as the trial judge in JC Ludowici & Son Limited v Cutri (1992) 26 NSWLR 580

(10) Arbitrator erred in his determination of the section 40 award subsequent to 1 July 2008 as lower limb of the section 40 equation can not be a figure lower than the actual earnings.

The RedRock Company Pty Limited v Scharrer [2009] NSWWCCPD 72

Scharrer v The RedRock Company Pty Limited [2009] NSWWCCPD 73

In the course of employment; journey claim; serious and willful misconduct; high blood alcohol reading; disobeyence of employer’s direction not too drive; sections 4, 9, 10 and 14 of the 1987 Act; weight of evidence

O’Grady DP

1 July 2009

Facts:

This matter was the subject of two appeals. The employer appealed the Arbitrator’s determination that the worker’s injuries occurred in compensable circumstances while the worker challenged the quantification of her weekly entitlement.

The worker was employed as a sales representative with RedRock, a wholesaler of beverages, attending customers in the Sydney metropolitan area.  She was provided with a motor vehicle to undertake her duties, which also entitled her to retain possession of the vehicle outside working hours and for personal transport.

On 14 December 2001 RedRock arranged a Christmas party for staff, which the worker attended, having driven there directly after completing her duties.  She remained at the party until approximately 2.00am, having consumed alcohol during the course of the party.  RedRock alleged that a director of the company told the worker not to drive that evening as she had been drinking.  At 3.00 am she was involved in a motor vehicle accident whilst driving the staff car and received significant injuries.

A claim for compensation benefits was made by the worker and liability accepted by RedRock’s insurer.  Compensation was paid up until July 2005, at which time liability was declined.

The Arbitrator determined that the injury arose in the course of employment and that as the injuries suffered caused serious and permanent disability, the disqualifying provisions of s 14 of the 1987 Act did not apply.  Continuing weekly compensation and medical expenses were awarded and the worker referred to an AMS.

RedRock appeal

Held – Arbitrator’s decision revoked

(1) Evidence established that the worker, while attending the Christmas party organized by RedRock, was in the course of her employment (Cunningham v Tobin (2001) 21 NSWCCR 524 at [27]-[29]). Beyond that point she was entitled to the benefit of the provisions of the Acts if it was established that her intention was to travel home, however her disobedience of her employer’s directions concerning driving and her decision to drive whilst having a blood alcohol reading of 0.124, was conduct that prevented the characterization of her subsequent conduct up until the point of the accident, as being in the course of employment in terms of s 4 of the 1987 Act. [91]

(2) The worker failed to establish that she was in the course of employment during the one hour period between leaving the party and the occurrence of injury. [101]

(3) The worker was disqualified from receiving compensation, notwithstanding acceptance that the subject accident occurred whilst on a journey, by reason of the application to the facts of the provisions of s 10(1A) and (1B).

(4) The worker’s arguments that, by reason of acceptance of liability, a contract existed between the worker and RedRock or its insurer and/or that the facts gave rise to an estoppel, were rejected.

Worker’s appeal

(5) Having regard to the outcome of RedRock’s appeal, leave to appeal was refused.

Romanous Constructions Pty Ltd v Arsenovic [2009] NSWWCCPD 82

Section 65A of the 1987 Act; psychological injury; whether worker received a primary psychological injury or a secondary psychological injury; entitlement to compensation where worker has received both a physical injury and psychological injury; effect of payment of lump sum compensation for physical injury before assessment of impairment from psychological injury

Roche DP

17 July 2009

Facts:

Mr Arsenovic sustained multiple injuries in a car accident on his way home from work in 2002. In 2004 he settled a claim for lump sum compensation in respect of the injury to his back sustained in the car accident. In 2008 he made claims for lump sum compensation in respect of an injury to his right upper extremity and in respect of a primary psychological injury allegedly resulting from the car accident. GIO denied liability for the latter claims.

The Arbitrator determined that Mr Arsenovic injured his right upper extremity and suffered a primary psychological injury, referring the claims to an AMS.

The issues on appeal were whether the Arbitrator erred in finding that the worker suffered a primary psychological injury; and as the worker had already received lump sum compensation for his physical injuries, whether he was precluded from receiving lump sum compensation for a primary psychological injury.

Held – Arbitrator’s decision confirmed

(1) Whether a worker has sustained a primary psychological injury depends on an assessment of all the evidence. Though the medical evidence is of great importance, it is not the only evidence to be considered. [59], [62]

(2) The worker’s uncontested evidence was that he was referred to a psychiatrist as a consequence of his preoccupation with the accident, his panic attacks and nightmares, not because of his pain. The evidence established that he suffered from PTSD as a result of the accident, and his recorded symptoms of anxiety, depression and hyper vigilance were consistent with that diagnosis. [60]

(3) For unexplained reasons, the employer only tendered a supplementary report which presumably was a supplement to a more detailed report. In the absence of any history or findings on examination, the supplementary report was of little or any weight because it provided a bare conclusion (Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705). [65]

(4) Section 65A(4) does not act to exclude workers from claiming compensation to which they are otherwise entitled, but merely limits the recovery of compensation in certain specified circumstances. [69]

(5) Section 65A(4)(a) and (b) make it clear that the impairments resulting from the psychological injury and from the physical injury must be assessed separately.  A worker “is entitled” to receive lump sum compensation for whichever injury results in the “greater amount of compensation being payable” and is not entitled to compensation for the impairment resulting from the other injury. In respect of the primary psychological injury, the assessment must be at least 15% WPI for compensation to be payable. [70], [73]

(6) The 1987 Act acknowledges that workers’ conditions change over time and, as a result, workers are entitled to claim additional compensation in the event of a deterioration in a previously compensated condition or injury (see sections 66(2A) and (2B) of the 1998 Act). [71]

South Eastern Sydney and Illawarra Area Health Service v Nikolis [2009] NSWWCCPD 74

Psychological injury; section 11A of the 1987 Act; performance appraisal; discipline; reasonable action

Roche DP

3 July 2009

Facts:

Ms Nikolis claimed weekly compensation arising from a psychological injury due to her employment with the Health Service. The Health Service denied liability on the grounds that no harassment or bullying occurred, there was no psychological injury and if there was, section 9A and section 11A applied.

The worker commenced employment as a technical offer on a three month probation from 19 June 2006. From 11 July 2006, Ms Nikolis occassionally arrived at work late, for reasons usually involving her children. Her supervisor cautioned her about her punctuality and when she responded that another colleague was able to “make up” time at the end of the day when late for work, was advised that that was none of her business.

On 2 August 2006, the supervisor suggested to Ms Nikolis that, given her poor attendance and punctuality, her children may have a “chronic illness” which could affect whether her position would become permanent following probation, which he was trying to extend. Ms Nikolis felt discriminated against and went home that day feeling stressed and crying. She was at work the next day, although had not slept well and vomited several times.

On 6 September 2006 Ms Nikolis attended the first of many meetings with her supervisor, another supervisor and her support person. She was advised that her attendance and punctuality were a concern.

On 30 October 2006 Ms Nikolis was off work for 3 days due to her children being sick. When she returned she was told her absence was recorded as unpaid sick leave, which upset her as she had taken carer’s leave, or annual leave in lieu of carer’s leave, allegedly known by her supervisor.

From November 2006 Ms Nikolis began having disturbed dreams, migraines, her vision was impaired and she was vomiting. She lodged a complaint against her supervisor in December 2006 and on 14 September 2007 obtained a WorkCover medical certificate stating she was unfit for a month. Her ARD claimed weekly compensation from 14 September 2007 to date and continuing.

Held – Arbitrator’s decision confirmed.

(1) Medical evidence established that Ms Nikolis suffered from a psychological injury resulting from her employment, which was a substantial contributing factor. [116]

(2) A ‘perception of real events’, which are not ‘external events’, can satisfy the test of injury ‘arising out of or in the course of employment’ (Spigelman CJ in State Transit Authority v Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 at [54]). [118]

(3) The onus of establishing a section 11A defence is on the employer (Ritchie v Department of Community Services [1998] NSWCC 40; (1998) 16 NSWCCR 727; Department of Education and Training v Sinclair (2005) 4 DDCR 206; [2005] NSWCA 465. [121]

(4) The Commission has to decide whether the whole or predominant cause of the psychological injury was the employer’s action or proposed action with respect to, in this case, performance appraisal or discipline, and, if so, whether the action or proposed action with respect to the performance appraisal or discipline was reasonable (see Manly Pacific International Hotel Pty Limited v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181 at [4]) [122]

(5) The section 11A defence was not made out [134]:

(a)  the meetings and the employer’s conduct in general could not be classified as matters with respect to discipline, especially as the Health Service’s own witnesses expressly stated that the meetings were not disciplinary in nature.

(b)  nor could it be classified as “performance appraisal”. Whilst the worker’s work performance and efficiency was “on the slower end of the scale, it “wasn’t an issue” according to her supervisor.

(6) In the alternative, if the respondent’s conduct did amount to either performance appraisal or discipline, it could not be said that its actions, in there entirety, were reasonable. [135] The supervisor’s evidence was unsatisfactory and unconvincing, and his actions amounted to intimidation and discrimination.

(7) Finally, even if the section 11A issues were found in the respondent’s favour, there was no evidence that the psychological injury was wholly or predominantly caused by its reasonable conduct with respect to performance appraisal or discipline. [139]

Cemco (Australia) Pty Ltd t/as Carrall’s Engineering & Mining v Carrall [2009] NSWWCCPD 76

Lump sum compensation claim - whether the assessments can be aggregated – application of section 322 of the 1998 Act

ADP Moore

8 July 2009

Facts:

The worker claimed three injuries occurring on three separate dates. Injury to the right and left upper extremities as a result of the nature and conditions of employment from 2002 to date and continuing, frank injury to the right upper extremity on 29/10/2004, and frank injury to the left upper extremity on 02/10/2003.

The arbitrator found that the worker could aggregate the WPI arising from the injury to his left and right upper extremities as a result of the nature and conditions of his employment with the WPI relating to the frank injury to his right shoulder for the purposes of the threshold contained in section 67(1) of the 1987 Act.

The appellant disputed whether the Arbitrator was entitled to aggregate the assessments.

Held – Arbitrator’s decision revoked, new decision substituted

(1) Similar issues have been considered in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6, New South Wales Fire Brigades v Turton [2008] NSWWCCPD 68, Kolak v Hunami Pty Ltd & Anor [2008] NSWWCCPD 60 and XITMS Pty Ltd formerly known as Ion Transmissions Pty Limited v Castles [2007] NSWWCCPD 222.

(2) These decisions clearly illustrate the need to carefully consider the evidence in each particular case.

(3) Castles and Kolak distinguished.

(4) Arbitrator’s findings correct to the extent that the injury sustained to each shoulder falls into the category of section 4(b)(ii) of the 1987 Act. That being the case, the two ‘frank injuries’ must be seen as merely contributing to the overall pathology found in each shoulder.

(5) There is no doubt that impairments assessed as a consequence of the ‘nature and conditions’ injury are capable of assessment together as they clearly arose as a consequence of the same ‘injurious event’. Based on the evidence in this case the same pathology has occurred as a consequence of both the ‘nature and conditions’ injury and each of the frank incidents such that it is impossible to separate the consequences of each ‘event’ (see Edmed at [27]).

(6) Therefore the proper conclusion given the facts and evidence in this particular case is that the worker has suffered a 9% WPI in the right upper extremity and an 8% WPI in the left. It is not appropriate to aggregate those two assessments since the pathology in each shoulder is not ‘identical’.

Kirkpatrick v Heckendorf Family Trading Pty Ltd [2009] NSWWCCPD 84

Injury; causation

Roche DP

22 July 2009

Facts:

On 11 September 2006, Mr Kirkpatrick, a shearer, fell down a catching chute whilst attempting to catch a sheep. He suffered a twisting injury to his left knee and liability was accepted.

In July 2008, Mr Kirkpatrick claimed lump sum compensation for injury to his left lower extremity and lumbar spine. The insurer disputed that the worker injured his lumbar spine or that it was an injury secondary to the left knee injury.

At arbitration, the Arbitrator did not accept that Mr Kirkpatrick had injured his back. The left knee claim was referred to an AMS.

Held – Arbitrator’s decision confirmed, with the addition of an award for the Respondent in respect of the claim to the lumbar spine.

(1) Mr Kirkpatrick’s claim form and his statements of 17 April 2007 and 1 August 2007 made no mention of any back pain or symptoms despite setting out in detail the nature and extent of his injuries including a list of seventeen disabilities as a result of his knee injury. Treating medical evidence also refer only to a twisting knee injury. Back pain and symptoms were not mentioned until Mr Kirkpatrick’s statement of 28 March 2008. [33]

(2) Medical evidence that recorded back pain was based on a false history that Mr Kirkpatrick sustained a torsional injury to his lumbar spine as a result of the fall at work or suffered back pain at or immediately after the fall, which was inconsistent with the worker’s own evidence.

(3) In respect of Mr Kirkpatrick’s allegation that back pain resulted from an altered gait, there was no evidence as to when the limp commenced or how persistent or significant it was. There was also no medical evidence, radiological or otherwise as to what, if any, pathology existed in the lower back. The worker’s own medical evidence did not support a link between the altered gait and back symptoms and at best, the employer’s medical evidence indicated that any ongoing disability present in the back region did not relate to the limping. [37]

(4) Given the long delay between the 2006 incident and the development of back symptoms, and Mr Kirkpatrick’s own evidence that he had experienced back pain before the 2006 incident, it was not established that he injured his back when he fell at work on 11 September 2006.  [38]

J & K Bricklaying Pty Ltd v Brown [2009] NSWWCCPD 89

Sections 52A and 38A of the 1987 Act; whether worker seeking suitable employment

Roche DP

31 July 2009

Facts:

Since a work injury in July 2002, Mr Brown had been in receipt of weekly compensation, either on a voluntary basis or under a consent determination made by the Commission on 11 August 2003.

A vocational assessment, carried out in June 2007, identified Mr Brown as being “very employable” but with limited transferable skills due to work history and low level of education. The vocational goals of truck driver and store person were approved by the treating GP as appropriate.

Training for truck driving was arranged which Mr Brown failed to attend and after twice failing his RTA licence theory test Mr Brown declined to continue training. Over the course of the next year, numerous unsuccessful attempts were made to engage Mr Brown in rehabilitation. Mr Brown cited “family issues” for the lack of contact and cooperation with rehabilitation attempts.

Mr Brown was requested to job search and to submit “job logs”, and was advised of a special job seeking or training benefit available under section 38 of the 1987 Act if he was taking reasonable steps to obtain suitable employment or seeking or receiving rehabilitation training to improve his chances of obtaining suitable work. A list of reasonable steps, such as registering with job network members, to seek suitable employment was provided.

Following an increase in physical work restrictions placed by the treating GP, CGU arranged for another vocational assessment for Mr Brown in August and September 2008 which Mr Brown failed to attend.

Mr Brown’s job log indicated that his job search methods were by “word of mouth” or cold canvassing businesses for jobs which were not available or for which he was “not capable”.

On 17 December 2008, CGU served on Mr Brown a notice of its intention to discontinue weekly compensation payments under section 52A(1)(a) of the 1987 Act.

The Arbitrator made an award in favour of the worker on the ground that he was satisfied that Mr B had been seeking suitable employment.

Held – Arbitrator’s decision revoked. Liability to pay weekly compensation payments ceased as of 17 December 2008

(1) The “relevant time” in section 52A of the 1987 Act is “the time at which the notice under section 54 of intention to discontinue payment of compensation pursuant to this section is given”.  That is not a fixed point in time, but covers a period leading up to the date on which the notice is served (Hughston v Hughston & Sons Pty Ltd (1999) 18 NSWCCR 312 at 321).  The “relevant time” in the present matter is from mid-2008 until 17 December 2008. [89]

(2) To succeed with an application under section 52A an employer must establish that, at the time at which the notice of intention to discontinue payment of compensation under the section is given (at [90]):

(a)      the worker is partially incapacitated;

(b)      the worker has been partially incapacitated for at least 104 weeks;

(c)       the worker is not suitably employed, and

(d) the worker is not seeking suitable employment.

(3)      Whether a worker is seeking suitable employment for the purposes of section 52A(1)(a) is determined in accordance with section 38A.  Under section 38A(2) a worker is not to be regarded as seeking suitable employment unless he or she complies with the four sub-sections listed. [93]

(4)      90% of the 24 jobs listed by Mr Brown in his job log related to businesses that either had no work or no suitable work for Mr Brown. The requirement in section 52A is for a worker to seek “suitable employment”. A worker is not to be regarded as seeking suitable employment unless he or she is “taking reasonable steps to obtain suitable employment from some other person” (section 38A(2)(d)).  Merely approaching several businesses, regardless of whether those businesses have, or are likely to have, suitable employment available does not satisfy that requirement. Mr B was therefore not seeking suitable employment. [103]

(5)      In the alternative, by unreasonably refusing to participate in the vocational assessment and functional capacity evaluation arranged for August and September 2008, Mr B was not to be regarded as seeking suitable employment (section 38A(5)). [112]

Hadchiti v New South Wales Police Force (No.1) [2009] NSWWCCPD 87

Hadchiti v New South Wales Police Force (No. 2) [2009] NSWWCCPD 88

Section 52A of the 1998 Act – worker not seeking suitable employment

Candy ADP

29 July 2009

(No. 1) – PD 87

Facts:

The worker was employed by the Police Force in 1990.  In 1992 a claim for worker’s compensation was made, the worker alleging that she suffered pain in her right arm and shoulder as a result of her employment as a data entry operator.  She consulted several medical practitioners and continued to work on and off on alternative duties until August 1993, at which time she submitted a further claim for compensation and took leave from work.  Her services were terminated in September 1993.

The worker commenced proceedings in the Compensation Court and was awarded ongoing weekly compensation on the basis of partial incapacity form September 1993 and medical expenses.  On August 2006 the Police Force’s insurer gave notice to the worker that weekly compensation was to cease from 26 September 2006 in accordance with s 52A of the 1987 Act.  Reliance was also placed in the notice on the worker’s statement to a rehabilitation worker concerning her job seeking activities since 2002.

The worker lodged an ARD in July 2008 claiming ongoing weekly compensation from 26 September 2006 together with lump sums in respect of loss of use of her left arm and neck and pain and suffering compensation. The Arbitrator found in favour of the Police Force in relation to weekly benefits and remitted the matter to be referred to an AMS.

The worker appealed the Arbitrator’s finding that the Police Force was entitled to rely on s 52A to cease payments of weekly compensation and that the decision was not supported by the evidence.

Held – Arbitrator’s decision confirmed

(1) The question which the Arbitrator was required to answer was whether the Police Force had established that, at the time the notice was given in September 2006, the worker was not taking reasonable steps to seek suitable employment in accordance with s 38A of the 1987 Act.

(2) The worker relied on her voluntary work at Liverpool Hospital and her attendance on two rehabilitation providers as being “rehabilitation training” within s 38A(2). The Arbitrator had concluded that the worker had refused retraining because she did not like the options presented.

(3) The worker had no real intention to return to any form of paid employment at all because she considered that, contrary to medical opinion, she was incapable of doing so. The worker was not seeking or receiving rehabilitation training by attending upon a rehabilitation service for an initial assessment and vocational review.

(4) The worker’s voluntary work at the hospital could not be seen as ‘suitable employment’ or ‘taking reasonable steps to obtain such employment’.  It also did not constitute ‘rehabilitation training’ as it was not “reasonably necessary to improve the worker’s employment prospects” (s 38A(2)) or “training of a vocationally useful kind” (s 38A(7)). [93]

(5) In relation to s 52A, the onus was in the employer not the worker.  The only evidence that she was seeking suitable employment was the assertion in the rehabilitation report, which was inconsistent with the balance of the available evidence.

(No. 2) – PD 88

Facts:

The Police Force lodged an alternate ARD in this matter, seeking a review of weekly payments pursuant to s 55 of the 1987 Act (5845/08).  The Arbitrator, having found in favour of the Police Force in the worker’s ARD (5055/08), did not consider it necessary to determine the Police Force’s application and dismissed it making no order as to costs.

The worker appealed the Arbitrator’s failure to make a costs order in her favour.

Held – Leave to appeal refused.

(1)        No amount of compensation was at issue on appeal (Robert Grimson v Integral Energy [2003] NSWWCCPD 29; El-Said v 3 WJ Pty Limited [2008] NSWWCCPD 50)

Rail Corporation of New South Wales v B [2009] NSWWCCPD 81

Sections 40(1) and 40(2A) of the 1987 Act; whether worker unreasonably rejected suitable employment by resigning; exercise of the discretion in a claim for weekly compensation

Roche DP

17 July 2009

Facts:

Following several work injuries, Mr B was retrained and worked in suitable duties at Railcorp. He took extended leave from October to December 2005, but failed to return to work until 11 January 2006. Upon returning to work, he was advised to attend another of RailCorp’s premises to do data entry as the light duties he had been performing were no longer available. That same day Mr B was asked about discrepancies in his timesheets and he allegedly admitted having forged his supervisor’s name. He never returned to work after 11 January 2006.

Railcorp wrote to Mr B on 13 January 2006 advising that Railcorp wished to discuss his future career options, both internal and external to Railcorp, given that he was no longer fit for pre-injury duties. If he were unsuccessful in finding alternate work in Railcorp possible termination on medical advice may be considered.

In March, RailCorp handed Mr B a letter requesting a disciplinary interview on 18 March 2006, presumably about his timesheets, but this meeting never occurred as Mr B resigned immediately upon receiving the letter.

Mr B then had short periods of employment and commenced fulltime employment with his current employer as a clerical officer from 14 July 2006. His ARD sought weekly compensation from 18 March 2006 to date and continuing.

Railcorp disputed that Mr B was entitled to weekly compensation as he had unreasonably rejected suitable employment and his entitlement to weekly compensation was to be calculated by reference to section 40(2A) of the 1987 Act. Under that subsection, if a worker has unreasonably rejected suitable employment the reduction in the worker’s weekly earnings is the difference between the current weekly wage rate for his pre-injury employment and the current weekly wage rate for some suitable employment from time to time after the injury. RailCorp argued that the difference between those two figures is nil because Mr B suffered no loss of earnings whilst on suitable duties with it.  In the alternative, RailCorp argued that Mr B is capable of earning an amount that is at least comparable to the amount he would probably have earned but for his injury and had he continued to be employed in the same or some comparable employment with it.

The Arbitrator made an award in favour of RailCorp from 18 March 2006 to the date of his decision (8 January 2009) and thereafter an award for the worker under section 40.

Held – Arbitrator’s decision revoked. The Worker received an award under section 40 from 18 March 2006 to date and continuing.

(1) In the absence of evidence as to the suitability of data entry work Mr B was directed to do on 11 January 2006, the employer failed to establish that Mr B was engaged in or was offered suitable employment within the terms of section 43A. [57]

(2) As Mr B was not engaged in or offered suitable employment, section 40(2A) did not arise.

(3) Even if it could be said that Mr B was engaged in or was offered suitable employment, Mr B did not unreasonably reject suitable employment. Any assessment of whether Mr B’s conduct was unreasonable depends on an assessment of his state of knowledge at that time (per Davies A-JA, Handley and Beazley JJA agreeing, in Freightcorp v Duncan [2000] NSWCA 309 at [19], citing Fazlic v Milingimbi Community Inc [1982] HCA 3 at [13]; (1982) 150 CLR 345). [64]

(4) In applying section 40(2A), it is important to note that it does not operate for all time. The legislation acknowledges that a worker may be provided with suitable employment by his/her pre-injury employer or may obtain such employment elsewhere. The legislation does not require that an injured worker must stay with his or her pre-injury employer forever under pain of having his or her compensation permanently reduced to the amount thrown up by the section 40(2A) formula for all time. Such a requirement would make a worker a slave to the employer. [73]

(5) Section 40(2A) is a disentitling provision in beneficial legislation, therefore the employer carries the onus of proof (see Burdens and Standards in Civil Litigation by C R Williams [2003] SydLRev 9; citing Darling Island Stevedoring and Lighterage Company Limited v Jacobsen (1945) 70 CLR 635; [1946] ALR 119; (1945) 19 ALJR 237). The subsection provides a method for calculating weekly compensation in circumstances where a worker has unreasonably rejected suitable employment and is out of work, but does not apply when a worker is in suitable employment. [53], [74]–[75]

(6) Under section 40(2A), the reduction in Mr B’s weekly earnings whilst not employed in suitable employment is the difference in the relevant current weekly wage rates for pre-injury employment and suitable employment.  Once suitable employment was obtained, his entitlements are calculated according to the terms of section 40 (1) and (2) and the relevant authorities.

(7) The Mitchell test (Mitchell v Central West Area Health Service (1997) 14 NSWCCR 527) was applied to calculate Mr B’s entitlement to weekly compensation. A discretion was applied at step 4 of the test given that Mr B had voluntarily abandoned any opportunity he had of securing other positions with Railcorp at appropriate rates of pay, given his training, experience and education (see Rooney v State Transit Authority of New South Wales [2001] NSWCC 104 at [23]). As that was a matter directly related to his “employment history” (McHugh in Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50), it was a relevant factor to take into account in the exercise of the discretion under section 40(1) in determining the amount of compensation that was “proper” in the circumstances of the case. [100]

Cumming v Colin Sullivan and Dorthey Sullivan [2009] NSWWCCPD 80

Weekly payments claim – assessment of comparable earnings – applicability of award rates of pay – adequacy of evidence – application of section 40 of the 1987 Act

ADP Moore

17 July 2009

Facts:

The worker claimed weekly benefits of compensation from 1 July 2005 to date and continuing together with lump sum compensation pursuant to the 1987 Act.

The parties reached agreement in respect to the claim for lump sum compensation and the Arbitrator made an award in favour of the worker for weekly compensation under section 40 at various rates for various periods commencing on 2 October 2006.

The worker appealed the Arbitrator’s findings as to his earnings but for the injury and the consequent award based on those findings.

Held – Arbitrator’s decision revoked, new decision substituted

(1) The introduction of the Building and Employees Mixed Industries (State) Award 2001 on appeal does not constitute ‘fresh evidence’ (see Combined Civil Pty Ltd v Rikaloski [2007] NSWWCCPD 181 at [32]) and therefore leave to adduce this evidence not necessary.

(2) Any award merely sets the minimum as opposed to the actual wages paid in an industry. An award does not form part of the contract of employment unless the terms are incorporated into the contract (see Byrne v Australian Airlines Pty Ltd (1995) 185 CLR 410 at 420).

(3) There was clear evidence of the actual wages paid to the worker and the worker was not employed pursuant to an Award. Accepted the appellant’s submission that “…it is unfair to use the Award as a guide when there is evidence of actual wages paid…”

(4) Appropriate to use knowledge and experienced gained as a member of a specialist tribunal together with the evidence to assess the value of the work in the labour market (see J & H Timbers Pty Ltd v Nelson [1972] HCA 12; (1972) 126 CLR 625, Akawa Australia Pty Ltd v Cassells (1995) 25 NSWCCR 385, Goktas v Goodyear Australia Pty Limited [2007] NSWWCCPD 1 and Forests NSW v Hancock No.2 [2007] NSWWCCPD 191).

(5) Appropriate to apply CPI increases of 3% per annum in assessing comparable earnings since that time (see Miller v A & R Pearson Pty Limited [2007] NSWWCCPD 111).

(6) Given the acceptance by the parties of the worker’s actual post-injury earnings, he is entitled to an award from 1 July 2005 to date and continuing.

Adecco Industrial Pty Limited v Bilaver [2009] NSWWCCPD 77

Partial incapacity; weekly compensation; section 40 of the 1987 Act; weight of evidence

Roche DP

9 July 2009

Facts:

It was not disputed that Mr Bilaver injured his right foot on 31 May 2007. However Adecco denied liability for continuing weekly compensation on the grounds that his treating physicians had certified him fit to resume his pre-injury duties.  Mr Bilaver also rejected the insurer’s offer of lump sum compensation for 1% WPI, claiming 8% WPI.

An AMS assessed Mr Bilaver to have a 1% WPI as a result of his work injury. At arbitration the Arbitrator awarded section 66 lump sum compensation in accordance with the MAC assessment, and ongoing section 40 payments.

Adecco appealed the Arbitrator’s decision alleging it was against the weight of medical evidence from Mr Bilaver’s own treating doctors. They also sought a costs order against the worker as a result of his rejection of QBE’s earlier offer of 1% WPI.

Held – Arbitrator’s decision confirmed

(1) The medical evidence supported Mr Bilaver’s claim of a partial incapacity as a result of his right foot fracture.

(2) The employer’s submission that the Arbitrator’s assessment of the worker’s ability to earn was too low was based on the incorrect assumption that he was fit for pre-injury employment. [55]

(3) Even if it were accepted that he was fit for pre-injury employment, the Commission was still required to assess his ability to earn in the labour market reasonably accessible to him (Steggles Pty Ltd v Aguire (1988) 12 NSWLR 693). [56]

(4) There were no grounds for exercising the discretion to reduce the section 40 award (step 4 of Mitchell v Central West Area Health Service (1997) 14 NSWCCR 527) and the employer did not point to any. [58]

(5) Given that Mr Bilaver’s medical evidence contained different WPI assessments to that provided in the employer’s medical evidence and that he also had a claim for weekly compensation, costs were not unreasonably incurred. [59]

Sumaktas v Air Grilles Pty Limited [2009] NSWWCCPD 78

Partial incapacity; section 40 of the 1987 Act; application of Mitchell v Central West Area Health Service (1997) 14 NSWCCR 527

Roche DP

14 July 2009

Facts:

The worker alleged a crush injury to her right thumb on 24 July 2000, an injury due to prolonged heavy and persistent use to her arms, shoulders, neck and back in the course of her employment from 24 July 2000 and an injury to her neck, shoulders, arms and back as a result of operating a drill at work on 17 August 2004. She claimed lump sum compensation and weekly compensation from 10 December 2004 to date and continuing.

Her right thumb injury was conceded and, as a result, she was placed on light duties. All other injuries were disputed, as was the question of incapacity.

The Arbitrator accepted injury to the thoracic spine in 2004 but not injury to the other parts claimed. Although he found she had an incapacity as a result of her thumb injury, he did not accept that she had any economic incapacity beyond December 2007.

Held – Arbitrator’s decision relating to the section 40 award was revoked and replaced by new figures as calculated, for the period from 10 December 2004 to date and continuing.

(1) Having found that Ms Sumaktas had a continuing incapacity as a result of her thumb injury it was not open to then find that she had no entitlement to weekly compensation beyond December 2007. [70]

(2) Step 1 in the Mitchell analysis is the determination of Ms Sumaktas’ probable earnings but for her injury under section 40(2)(a) of the 1987 Act.  The parties agreed that amount was $629.14 per week, as at December 2004, adjusted by 3% per annum. [72]

(3) Step 2: calculation of ability to earn under section 40(2)(b), was complicated by the fact that Ms Sumaktas’ clearly believes that she is significantly, if not totally, incapacitated.  Considering the nature of the incapacity and pre-injury employment, her age, education, skills and work experience, her place of residence, and the lack of any rehabilitation training, the ability to earn in some suitable employment is $250.00 per week, adjusted by 3% per annum.  This figure was arrived at on the basis that Ms Sumaktas is fit to perform light process work or work as a cleaner, but, as a result of her injuries, will experience difficulty in obtaining and retaining such employment in the labour market reasonably accessible to her (Summerson v Alcan Australia Ltd [1994] NSWCC 24; (1994) 10 NSWCCR 571) and may only be able to obtain part-time work at different times. [80]

(4) Step 3 is the difference between the figures in Steps 1 and 2.

(5) Step 4 requires the application of the discretion in section 40(1) to determine the amount of the reduction in the worker’s weekly earnings that is “proper in the circumstances of the case” (Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50). The figures at step 3 are reduced by 25% to reflect reduced earning capacity as a result of the worker’s non-compensable conditions, excluding the carpal tunnel syndrome and diabetes. [82]

Huynh v Parilla East Pty Ltd [2009] NSWWCCPD 86

Duty to give reasons for decision – continuing partial incapacity – weight attached to evidence – totality of the evidence

O’Grady DP

29 July 2009

Facts:

The worker claimed to have suffered injuries to her neck, back and right shoulder as a result of the nature and conditions of her employment.

The worker first started to notice back pain in January 2007 and in March 2007 she injured her right elbow.  After the March incident she attended a “factory doctor” and returned to work the following day.  She continued to experience pain in the neck and right arm and was advised by her GP to take one week off work.

Upon return to work she was assigned to the labeling section, after six to seven months later to the packing section, where she remained working to date.  Since her injury her earnings have reduced and she continues to experience pain in her neck, back and shoulder.

Conflicting medical evidence re: interpretation of CT scan reports.  AMS assessed 0% WPI.  The Arbitrator awarded weekly compensation for a closed period of 16 weeks and medical expenses.

The worker appealed, the Arbitrator’s finding that she had no ongoing incapacity for work and his preference for the opinions of the AMS and Parilla’s medical expert, re: the matters demonstrated in the CT scans.

Held – Arbitrator’s decision revoked

(1) The Arbitrator summarised the differing views regarding the CT scans results but did not address the conflict.  Instead he placed considerable reliance upon the similarities of the assessments made by the AMS and Parilla’s medical expert.

(2) While it is a matter for an arbitrator to determine the weight to be attached to the evidence before him, his duty is to address the totality of the evidence and reveal his reasoning which led to the conclusion as to which view was more logical and probative, having regard to the issues as raised by the parties (see Toll Pty Ltd v Ballantyne [2008] NSWWCCPD 46)

(3) A true and correct view of the totality of the medical evidence was that Ms Huynh sustained injury to her back as demonstrated by the CT scans and described by her medical experts. This supported the proposition that she had been and remained incapacitated for her pre-injury duties.

(4) An award for ongoing weekly payments was substituted.

Cargill Australia Limited v Hardwick [2009] NSWWCCPD 83

Sufficiency of reasons; section 40 1987 Act

DP O’Grady

20 July 2009

Facts:

The worker suffered a crush injury to his hand working in an abattoir. He returned to light duties which he continued to perform until his resignation at which time he was certified fit for permanently modified duties.

A dispute arose concerning a claim for continuing weekly benefits. The Arbitrator awarded weekly benefits under section 40 from 15 July 2008 to date and continuing.

The employer appealed - the Arbitrator erred in fact and law regarding the adequacy of reasons; the assessment of the worker’s ability to earn; the reasonableness of the worker wearing a bandage and splint to job interviews; failure to exercise the discretion granted by the provisions of section 40, and the reasonableness of the worker’s ‘voluntary retirement’.

Held – Arbitrator’s decision revoked, new decision substituted

(1) Arbitrator failed to sufficiently state the reasons for his conclusions of fact concerning, in particular, the worker’s ability to earn in terms of section 40(2)(b) (see Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270 and Meagher JA in Beale v GIO of NSW (1997) 48 NSWLR 430 at 443).

(2) On review of the evidence the Deputy President found the worker remained partially incapacitated for his pre-injury duties.

(3) Section 40(2)(a) (probable earnings) agreed between the parties. Section 40(2)(b) (ability to earn) in issue.

(4) Determination of ability to earn of a partially incapacitated worker is a hypothetical exercise (see Singh v TAJ (Sydney) Pty Limited [2006] NSWCA 330 per Beasley JA at [33] – [35]) based on available evidence and the factors in section 43A(1).

(5) Arguments raised by the appellant concerning the Arbitrator’s finding of fact regarding the reasonableness of the worker wearing bandaging and a splint to job interviews was of no relevance to the assessment of the worker’s ability to earn.

(6) The conclusion that the worker’s resignation was a consequence of the relentless nature of his work was open on the evidence however not a relevant consideration in the determination of entitlement under section 40 because the appellant elected not to argue that worker’s resignation was an unreasonable refusal of suitable work in terms of section 40(2A).

(7) Findings made regarding ability to earn and award entered pursuant to section 40. No reason to exercise the discretion in section 40(1) because the Deputy President accepted the worker’s evidence in relation to his resignation.

NSW Police Force v Newby [2009] NSWWCCPD 75

Adequacy of reasons; section 40 of the 1987 Act and ability to earn; fresh evidence on appeal

His Hon. Judge Keating, President

7 July 2009

Facts:

Mr Newby suffered Post Traumatic Stress Disorder and a Major Depressive Disorder. He was medically retired from the Police Force and had for dependent children.

The issue in dispute was the extent of his incapacity and the amount of compensation payable under section 40 of the 1987 Act.

Arbitrator found he could work 20 hours a week self-employed mowing lawns such as ‘Jims Mowing’ earning $20.00 per hour.

Appeal

The Police Force appealed - there was no factual basis for the conclusion reached in respect of Mr Newby’s ability to earn in suitable employment, self-employed mowing lawns; the reasons were inadequate and the decision was speculative and unsubstantiated.

The Police Force sought to admit and rely on new evidence of a statement from the divisional manger of Jim’s Mowing setting out average franchisee turnover purporting to establish the correct earnings of a ‘Jim’s Mowing’ franchisee.

Held – Fresh evidence rejected-Arbitrator’s decision revoked- matter remitted for determination of the worker’s ability to earn in suitable employment

Fresh Evidence Application

(1) The Commission must balance the public interest that litigation should not continue indefinitely against the need to ensure that justice is done in all the circumstances of the case. (Police Force v Kearns and Anor[2008] NSWWCCPD 29) keeping in mind its statutory duty to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (section 354(3) of the 1998 Act).

(2) Mr Maunder’s statement provided evidence of business income not the value of a franchisee’s labour as a worker. It did not enable an appropriate assessment of the worth of the worker’s labour to such a business.

(3) The statement lacked probative force and therefore it was not in the interests of justice to admit it.

Weekly Compensation

(4) Mr Newby was not working therefore the Arbitrator’s task was to assess his ability to earn in suitable employment under section 40(2)(b) of the 1987 Act.  (See Mangion v Visy Board Pty Ltd (1992) 8 NSWCCR 175).

(5) The Commission:

1. is a specialized tribunal-same power to use its general knowledge of conditions of employment and rates of pay as that used by the Compensation Court;
2. has greater flexibility in its proceedings-not bound by the rules of evidence and may inform itself on any matter (section 354(2) of the 1998 Act), and
3. is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (section 345(3) of the 1998 Act). (see Office of the Director of Prosecutions v Olsen [2009] NSWWCCPD 26 at [28].

(6) But a decision maker must disclose the essential steps in the reasoning process leading to the figure assessed to represent probable earnings. Must demonstrate how figure was arrived at (see Mitchell v Central West Health Service (1997) 14 NSWCCR 527).

(7) In Mitchell, the Court of Appeal observed, in respect of the Compensation Court, that this obligation to disclose the reasoning steps may be greater when the Court was using its general knowledge and experience: (page 533 [F])

(8) Arbitrators have a statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act; Part 15 Rule 15.6 of the Workers Compensation Commission Rules 2006 (‘the Rules’); Absolon v NSW TAFE [1999] NSWCA 311).

(9) A failure to provide adequate reasons constitutes an error of law and may be a ground to set aside the Arbitrator’s decision. (YG & GG v Minister for Community Services [2002] NSWCA 247).

(10) Reasons must set out the Arbitrator’s reasoning process and merely incorporating counsel’s submissions is not appropriate (Sourlos v Luv a Coffee Lismore Pty limited & anor [2007] NSWCA 203 at [30]).

(11) The Arbitrator’s reasons did not disclose that he had regard to the all of the medical evidence, that he considered the labour market reasonably accessible to the worker, or that he considered each of the factors in section 43A(1).

(12) It was not clear from the Arbitrator’s reasons, whether he was relying on his knowledge as a member of a specialist tribunal when he assessed the worker’s ability to earn at $20.00 per hour and $760.00 per week, nor did he explain the reasoning process he undertook to arrive at that rate of pay.

(13) The Arbitrator failed to exercise his statutory duty to fairly and lawfully to determine the application

(14) Deficiencies in the evidence necessitate that the matter be remitted for re-determination of Mr Newby’s ability to earn in suitable employment.

Byrom v Inghams Enterprises Pty Limited and another [2009] NSWWCCPD 79

Reconsideration – s350(3)of the 1998 Act – appeal against Arbitrator’s decision to refuse reconsideration - leave to have “fresh evidence” admitted refused

O’Grady DP

14 July 2009

Facts:

This matter has a complex history before the Commission.  In January 2008 the worker appealed the Arbitrator’s decision of 17 December 2007 in which an award was made in favour of the first and second respondents in relation to her condition of bilateral carpel tunnel syndrome.

In June 2008 a Presidential member on appeal confirmed the Arbitrator’s decision.  The worker subsequently filed a Notice of Intention to Appeal in the Supreme Court however did not proceed with that appeal.

In October 2008 the worker sought a reconsideration by the Arbitrator of his decision pursuant to s 350(3) of the 1998 Act. On 18 March 2009 the Arbitrator refused leave to reconsider his earlier decision.

On 15 April 2009 an application to appeal the Arbitrator’s decision to refuse reconsideration was lodged.  The worker sought to have the Arbitrator’s decision of 18 March 2009 set aside and an award made for the worker for her claim for weekly compensation and medical expenses.

The worker during conduct of the first appeal had sought leave to have “fresh evidence” admitted.  Leave was declined.  In her application for reconsideration the worker placed reliance on the same evidence, referred to as “fresh evidence” and again leave to admit and consider that evidence was declined.  The Arbitrator’s refusal was on the basis that it could have been obtained with reasonable diligence and offended against principle 5 of Samuel v Sebel Furniture Pty Limited [2006] NSWWCCPD 141.

Held – Arbitrator’s decision confirmed

(1) The Arbitrator was correct to refuse the admission of the “fresh evidence” consisting of a further medical report, the worker’s supplementary statement and “research material”, as that evidence would, in all probability, not have had an important influence on the outcome of the litigation [42].

(2) Notwithstanding the breadth of the discretion granted by s 350(3), it is incumbent upon the appellant to lay the foundation for the proper exercise of that power to reconsider.  In the present case the reconsideration was sought upon the basis of further evidence, which had been rejected by the Arbitrator and earlier on appeal.  Such rejection by the Arbitrator was a proper exercise of his discretion having regard to all the circumstances.  There being no basis upon which a review could be sought once the evidence was excluded, it was inevitable that the application for reconsideration be refused [45].

(3) The test to be applied concerning the admission of fresh evidence on a reconsideration application requires not only that the evidence be probative but that it be material that could not, with reasonable diligence, have been capable of presentation at the time of the original hearing.  Overriding such considerations is the need to meet the demands of justice.

(4) The reconsideration application and appeal were both directed to a reopening of the original matter as it was heard before the Arbitrator when it was determined that the appellant’s case was deficient [68].

(5) The availability of an appeal process within the Commission and the existence of the Commission’s power to reconsider any decision made are not processes intended to afford a disappointed party a second opportunity to make out his or her case [69].

(6) The public interest in achieving finality of litigation demanded that the appellant’s argument on appeal be rejected [71].