Issue 8: August 2010

Attorney General’s Department v K [2010] NSWWCCPD 76

Psychological injury; relevance of worker’s perception of events; excessive workload; causation; unsuccessful application for promotion; whole or predominant cause; s 11A of the Workers Compensation Act 1987; application of State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286; unmeritorious appeal; obligation of legal practitioners to comply with s 345 of the Legal Profession Act 2004 when certifying reasonable prospects of success in Part 3 of Appeal Against Decision of Arbitrator

Roche AP

21 July 2010

Facts:

K is a solicitor who worked in that capacity for the Attorney General’s Department (‘the AGD’) from about December 2000. She claimed weekly compensation from 2 June 2009 until 13 December 2009 as a result of a psychological injury (Adjustment Disorder with Depressed and Anxious Mood and a Major Depressive Episode) allegedly caused by an excessive workload, chronic pain from a work-related foot injury and harassment at work.

The AGD’s insurer, Allianz, disputed liability for the claim on the basis that K’s condition had arisen as a consequence of her “misperception of events” such that the injury did not arise out of or in the course of employment and was not “substantially work related”.  Alternatively, the injury had been wholly or predominantly caused by reasonable action taken by the employer with respect to “performance appraisal and promotion” (s 11A of the 1987 Act).  The insurer did not dispute incapacity.

The Arbitrator found that K had received a psychological injury arising out of or in the course of her employment to which her employment had been a substantial contributing factor. He was not satisfied that the injury had been wholly or predominantly caused by reasonable action taken by the appellant employer with respect to performance appraisal and/or promotion. The Arbitrator awarded weekly compensation from 2 June 2009 to 26 July 2009 (total incapacity), 27 July 2009 to 4 November 2009 (s 38), 5 November 2009 to 30 November 2009 (s 40) and for the period 1 December 2009 to 13 December 2009.  The Arbitrator also made a general order in favour of K in respect of s 60 expenses.

Held:  Arbitrator’s decision confirmed.

1. The AGD disputed the award for total incapacity from 2 June 2009 to 26 July 2009.  Roche AP found this ground of appeal to be completely without merit as Allianz never disputed incapacity in its s 74 notice.

2. At [45] to [51] Roche AP examined the current authorities on the relevance of a worker’s perception of events and at [52] he drew the following conclusions from these authorities:

• employers take employees as they find them.  There is an “egg-shell psyche” principle (Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 at [40]);
• 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 Chemler at [54]);
• if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
• so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Leigh Sheridan v Q-Comp [2009] QIC 12; 191 QGIG 13);
• there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an “objective measure of reasonableness” (Von Doussa J in Wiegand v Comcare Australia [2002] FCA 1464 at [31]), and
• it is not necessary that the worker’s reaction to the events must have been “rational, reasonable and proportionate” before compensation can be recovered.

3. Roche AP (at [54]) noted that the critical question was whether the event or events complained of occurred in the workplace.  If they did and the worker perceived them as creating an “offensive or hostile working environment”, and a psychological injury resulted, then it is open to find that causation is established.  Submissions made on behalf of the AGD were rejected on the basis that they were linked to the incorrect assumption that a worker’s reaction to events at work must be “rational, reasonable and proportionate”.  The Arbitrator only had to consider if the events complained of by K actually occurred, and if they did, whether her injury resulted from these events.  He did not have to consider if K’s perception was erroneous or irrational.

4. The AGD submitted that the Arbitrator failed to give reasons for discounting the evidence addressing “promotional failure”.  Roche AP was satisfied that the Arbitrator comprehensively explained the basis for his conclusion on this issue.  The Arbitrator considered the “promotional incident” in February 2008 (when K was advised that her most recent promotion application was unsuccessful and she ceased work) was “a factor” in K leaving work but did not conclude that it was the whole or predominant cause of K’s injury.  The Arbitrator correctly noted that the AGD bore the onus of proof to establish its defence under s 11A and it failed to do so.

5. To succeed with such a defence under s 11A, the AGD had to establish that K’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the AGD with respect to, in this case, promotion.  The suggestion that K may have had an “adverse reaction” to an unsuccessful application fell well short of establishing this.  The evidence made it clear that K was suffering from the effects of her workload and the clash with her manager well before she ceased work on 5 February 2008. [96]  Roche AP noted (at [40] and [89] to [96]) that the AGD called no relevant evidence on this issue and the s 11A defence had to fail.

6. The psychologist retained by the AGD did not consider s 11A because she concluded that the worker had not received a psychological injury.  Therefore, it had no evidence on that issue.

7. It was accepted by Roche AP (at [86]) that K perceived that she had been unfairly treated at work, that her workload was excessive and the medical evidence confirmed that her work was demanding to the point that it caused her injury.

8. Roche AP (at [98] and [99]) noted that the appeal was completely without merit and reminded legal practitioners of their obligations pursuant to s 345 of the Legal Profession Act 2004 when certifying reasonable prospects of success in Part 3 of an Appeal Against Decision of Arbitrator.

Ponce v Department of Education and Training [2010] NSWWCCPD 77

Psychological injury; relevance of worker’s perception of events; application of State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286

Roche AP

23 July 2010

Facts:

Filomena Ponce worked for the Department of Education and Training (‘the Department’) as a library technician from May 2005.

Ms Ponce alleged that she received two injuries in the course of her employment with the Department. The first was a psychological injury (anxiety and depression) alleged to have been caused by “harassment, discrimination and victimisation” at her place of employment between 17 January 2007 and 13 December 2007. The second was an injury to her neck, back and shoulders as a result of a motor vehicle accident (‘MVA’) on 10 October 2007 whilst driving from her residence to her place of employment.

Ms Ponce functioned effectively, both at work and socially, until the events on 17 January 2007. On that day, there was a meeting between Ms Ponce and her superiors, during which one of her superiors informed her that she had made a mistake in her work. They were unable to provide proof of the mistake, because it had been corrected and no longer existed.

Ms Ponce claimed weekly compensation from 13 December 2007 and continuing, together with lump sum compensation in respect of both her psychological injury and her orthopaedic injuries sustained in the MVA.  An AMS assessed Ms Ponce to have nil WPI in respect of her physical injuries.

The Arbitrator found (on 10 March 2010):

• Ms Ponce had not suffered any psychological injury in the course of or arising out of her employment with the Department;
• any aggravation to Ms Ponce’s underlying psychological condition as a result of the motor vehicle accident on 10 October 2007 was minor and short-lived, and had ceased by early December 2007, and
• the Department should pay any outstanding medical expenses in respect of Ms Ponce’s underlying psychological condition from the date of the motor vehicle accident until 13 December 2007, when the insurer ceased weekly benefit payments.

The Department sought a reconsideration on the ground that Ms Ponce had never claimed s 60 expenses in the ARD.  On reconsidering the matter, the Arbitrator made an award for the Department (on 10 May 2010) with respect to the psychiatric injury, but deleted her previous order for the payment of s 60 expenses.

The issues in dispute on appeal were whether the Arbitrator erred in determining that Ms Ponce did not suffer a psychiatric injury in the course of or arising out of her employment and in finding that any aggravation of her psychiatric injury arising from the MVA was minor, short-lived and ceased on 13 December 2007.

Held:  Arbitrator’s decision revoked.  

1. Given the agreement at the arbitration as to the claim for s 60 expenses, the Arbitrator erred in finding that she had no jurisdiction in respect of that part of the claim.  The ARD was amended on appeal to include a claim for a general order for the payment of s 60 expenses. The appeal proceeded against the first determination issued by the Arbitrator.

2. The Arbitrator’s reasoning was inconsistent and could not stand. [204]  The Arbitrator should not have concluded, on the one hand, that the events complained of by Ms Ponce “were not real” and, on the other hand, that she was “wont on occasion to misinterpret what was being said”. If the worker misinterpreted what was said, then the fact that something was said was obviously real.

3. It is not the law that a worker can only recover compensation if his or her reaction to events that happened at work was rational and reasonable (Attorney General’s Department v K [2010] NSWWCCPD 76 at [52]).

4. The Arbitrator erred in placing weight on the fact that Ms Ponce’s complaints to the Human Rights and Equal Opportunity Commission were dismissed. Ms Ponce’s complaints related to specific allegations of discrimination on the basis of race and immigration status under the relevant legislation. Her entitlement to compensation under the 1987 Act posed entirely different questions and legal tests. [206]

5. The conversation on 17 January 2007 took place and the evidence established that it caused her distress. Therefore, the events of 17 January 2007 were real and not imagined. [211]

6. Ms Ponce’s reaction to these events may have been considered irrational, but her reaction was to real events. [217]  She genuinely believed that she had been treated unfairly.

7. The medical evidence unanimously established that Ms Ponce suffered from Major Depression, a recognised psychiatric disorder (s 11A(3) of the 1987 Act).  She had not previously been treated for psychiatric illness although the medical evidence noted that her personality and background made her more vulnerable to small slights that other people would not notice.  A condition can have more than one substantial cause.  Applying the commonsense test in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, the necessary causal connection between employment and injury had been established.

8. The Arbitrator erred in finding that Ms Ponce’s aggravation as a result of the MVA was minor or short-lived, as there was no evidence that her symptoms had resolved.  The evidence was that Ms Ponce suffered from a pain disorder that related to the MVA and Ms Ponce’s unchallenged evidence was that her symptoms were ongoing.

9. Application was amended on appeal to include a claim for s 60 expenses.  The Department was ordered to pay weekly compensation at the statutory rate for a worker with one dependent child under s 37 from 6 December 2008 to 1 December 2009 and at the statutory rate for a worker with no dependants under s 37 from 2 December 2009 to the date of the order and continuing.  The Department was also ordered to pay s 60 expenses and the claim for WPI as a result of her psychological injury was remitted to the Registrar for referral to an AMS.  The deemed date of injury was 13 December 2007.  The Department was ordered to pay the worker’s costs, as agreed or assessed, together with the costs of the appeal.

Woolworths Limited v Kassem [2010] NSWWCCPD 72

Rejection of relevant evidence; Commission not bound by the rules of evidence, s 354(2) of the Workplace Injury Management and Workers Compensation Act 1998; admissibility of return to work co-ordinator’s case notes

Roche AP

12 July 2010

Facts:

The worker, Mr Kassem, worked with the appellant, Woolworths, as a reserve stock hand.  On 10 October 2006, he received injuries to his ankles, lumbar spine, neck and shoulders in the course of his employment. He was unloading boxes from a truck into roll cages when one of the cages fell onto him, causing his left ankle to fracture.

Woolworths accepted liability in respect of Mr Kassem’s left ankle and lumbar spine, but disputed liability in respect of the injuries to his neck, shoulders and right ankle.

After several weeks off work, Mr Kassem returned to work on restricted duties, initially on restricted hours but eventually on full hours. In August 2008, he applied for his hours to be reduced to 24 hours per week and then 16 hours per week.

The dispute concerned the reason for his application to reduce his hours.  Woolworths claimed that Mr Kassem had reduced his work hours from full-time to part-time in order to accommodate his “study requirements”, not because of his injury.

Woolworths sought to rely on two case notes from the return to work co-ordinator that were in almost identical form, but one included the comment “Ziad’s reduction in hours is due to his university commitments”.  At the hearing, the Arbitrator excluded the case note with the above comment on the ground that it was “extremely prejudicial” to the worker.

In relation to the disputed injuries, the Arbitrator was not satisfied Mr Kassem had injured his neck, shoulders or right ankle and made an award in favour of Woolworths in respect of that part of the claim.

In relation to the claim for weekly compensation, the Arbitrator made an award for Mr Kassem based on the reduced hours from August 2008.

Appeal

On appeal, Woolworths argued the Arbitrator had erred in excluding from evidence the return to work co-ordinator’s case note dated 13 October 2008.

Held:  Arbitrator’s determination is confirmed; appellant employer to pay the respondent worker’s costs of the appeal, as agreed or assessed.

1. There was no valid reason for rejecting the case note. The Arbitrator’s decision failed to acknowledge that the Commission is not bound by the rules of evidence (s 354(2) of the 1998 Act).

2. In Aluminium Louvres & Ceilings P/L v Xue Qin Zheng [2004] NSWWCCPD 26, it was held that, where the rules of evidence do not apply, the conduct of proceedings will be determined according to the principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the case.  Fairness must guide the weight given to the evidence.  These principles were approved by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421 (‘Edmonds’).

3. In Edmonds at [128], McColl JA added that, where the rules of evidence do not apply, in order to find an error of law based on an absence of evidence, there must be an absence of material, whether strictly admissible according to the rules of evidence or not.

4. In relation to the admissibility of hearsay evidence in the AAT, Brennan J stated in Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64 that “hearsay ‘has a wide scale of reliability’ … and there is no reason why logically probative hearsay should not be given credence”.

5. The content of the excluded document was clearly relevant to the issue in dispute. In a tribunal not bound by the rules of evidence, Mr Kassem’s objections to the admissibility of the document (that the source of the comment had not been identified, it was potentially hearsay or just speculation, no explanation had been given as to why the document had been amended, and it was unfair to the worker as he was unable to answer it) went to the weight to be attached to it, not admissibility.

6. At the telephone conference, the Arbitrator gave Mr Kassem leave to file further evidence in response to the issue.  He did not do so.  He had already dealt with the issue in his original statement.

7. In any event, the case note appeared to be a business record of Woolworths (s 69 Evidence Act 1995) and may have been admissible as an exception to the hearsay rule if the representation was made by a person who had or might reasonably be supposed to have had, personal knowledge of the asserted fact:  see Jackson v Lithgow City Council [2010] NSWCA 136.

8. If a worker is working, then prima facie, that is his or her ability to earn. In Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20, Jordan CJ stated that, if it is proved that his actual earnings are not a proper test, because there is some reason unconnected with his earning power which makes them lower, then what he is able to earn must be adopted.

9. The objective evidence from the doctors and physiotherapist supported Mr Kassem’s complaints of continuing symptoms and restrictions as a result of the injury.  That Mr Kassem’s desire to work reduced hours resulted from his back and left ankle symptoms was consistent with the objective evidence of his continuing problems.

10. The admission of the case note made no difference to the result.

Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71

Injury, compensation for consequential loss; pleadings; need for claims to be properly particularised; assessment of evidence

Roche AP

6 July 2010

Facts:

Mr Kelly was employed as a security officer at TAFE’s Orange campus. His duties included walking long distances, going up and down ladders and stairs, and traversing rough ground. He was also expected to do maintenance work and move furniture from one part of the campus to another.

In May 2006, he injured his left knee when he twisted whilst getting out of a car. He subsequently underwent two arthroscopies. In April 2008, he fell when his left knee gave way whilst walking down the stairs at his home. Since that fall, he has suffered pain and discomfort in his hip and back. He alleged that he injured his right knee as a result of the nature and conditions of his employment and/or as a consequence of his left knee injury.

The ARD claimed lump sum compensation in respect of a 29 per cent WPI as a result of the condition of his knees and lumbar spine.  Under injury details the ARD claims “the nature and conditions of employment between 28/02/1995 and 27/07/2007 including frank injury on 04/05/2006 …”.

The ARD further claimed a disease of gradual onset, being osteoarthritic changes in both knees.

The Arbitrator found against Mr Kelly in respect of the claim for lump sum compensation as a result of the condition of his lumbar spine and right knee, stating there was no evidence to support such a claim.  A referral was made to an AMS for assessment of WPI in relation to the left lower extremity for the injury of May 2006.

Appeal

On appeal, Mr Kelly argued that the Arbitrator had erred in concluding that he was unable to sustain his claim for injury to the lumbar spine and his right knee.

Held:  Arbitrator’s determination revoked; matter remitted to a different arbitrator for re-determination.

1. The Commission has repeatedly held that the expression “nature and conditions of employment” is meaningless and should not be used (see Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70).  The ARD needs to be amended to indicate the nature of the claim, injuries alleged and cause of those injuries.

2. Parties should request doctors correct errors in their reports.  The Arbitrator misdirected herself due to a failure to recognise an obvious error in Dr Burgess’s report, being a reference to the right knee rather than to the left knee.

3. The Arbitrator erred in suggesting that Dr Burgess had not addressed “the issue of consequential injury in adequate clinical terms and reasoning” given his expertise and experience as an orthopaedic surgeon and his findings on examination.

4. The Arbitrator erred in rejecting Dr Burgess’s evidence of changes in the right knee.  The doctor did state the “mechanism” for the deterioration in the right knee, being the “favouring” of the left knee.  An aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms (see Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626). Mr Kelly needed to prove he suffered a consequential loss as a result of the accepted May 2006 injury.  This required the application of the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.  The question was whether Mr Kelly suffered a consequential loss to his right knee as a result of his injury to his left knee.

5. The Arbitrator erred in stating there was no description of the April 2008 fall mechanism.  She ignored the evidence of Mr Kelly and the histories obtained by numerous doctors to the effect that Mr Kelly fell because his left knee gave way.

6. Following the April 2008 incident, Mr Kelly saw Dr Drabsch, who provided him with a medical certificate. Although Dr Drabsch’s clinical notes were produced, there was no report from Dr Drabsch as to the reason for the fall.  Mr Kelly also saw Dr Ashton during 2008 and no report was provided by him as to any history he took of the April 2008 incident.  However, there is no Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference to be drawn from the absence of a report from Dr Drabsch or Dr Ashton, if Mr Kelly’s evidence as to the reason for the fall is accepted. Further, although Dr Drabsch’s notes were difficult to decipher, an entry on 29 April 2008 appeared to confirm that Mr Kelly fell due to his knee having given way.

7. An arbitrator is not bound to accept unchallenged evidence if that evidence is inconsistent with other evidence or is inherently incredible (see Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 at [105]).

8. Mr Kelly’s lawyers filed the appeal in time, but submitted that time commenced from the day after receipt by them of the COD. The time for appeal commences to run on the day after the COD is issued (see Dennis v NSW Fire Brigades [2007] NSWWCCPD 165 at [23]).

9. The respondent breached clause 43 of the Regulation by tendering three forensic medial reports.  It was only entitled to tender one such report and will need to elect which report it intends to use.

10. Due to the unsatisfactory state of preparation, the matter was remitted to a different arbitrator for re-determination.

Cromb v Roads & Traffic Authority of New South Wales [2010] NSWWCCPD 75

Injury; disease; s 4 of the Workers Compensation Act 1987; causation

Roche AP

14 July 2010

Facts:

On 17 May 1999, Mr Cromb, whilst working as a truck driver for Roads & Traffic Authority of New South Wales (‘RTA’), fell from the back of a truck in the course of his employment, causing injury to his neck.  He underwent surgery to his cervical vertebrae (C5/6 were fused) and was off work for several months as a result.  He returned to light duties in mid 2001 and full duties in approximately February 2003.  Lump sum compensation in respect of this injury was determined by Burke CCJ in the former Compensation Court of New South Wales.

Mr Cromb alleged that, in January 2008, when he turned and rotated his head continually as he drove trucks over rough ground, he developed severe pain in his neck that radiated into his left arm and hand. He was off work between 18 June 2008 and 12 January 2009 and underwent further surgery to his neck (C6/7 were fused) on 13 November 2008. The insurer accepted his claim for weekly compensation under s 37 and paid compensation at the appropriate statutory rate.

Mr Cromb claimed additional lump sum compensation and weekly compensation at his current weekly wage rate pursuant to s 36.  This claim was disputed on the basis that his neck symptoms in 2008 resulted from his May 1999 injury and therefore his further entitlement to weekly compensation was under s 37, not s 36.

The Arbitrator found in favour of the RTA in respect of Mr Cromb’s claim for a further injury to the cervical spine in January 2008 or in respect of his driving duties between February 2003 and 18 June 2008.  The Arbitrator remitted the claim for additional lump sum compensation as a result of the 1999 injury to the Registrar for referral to an AMS.

Mr Cromb appealed the determination made by the Arbitrator that he had not received a further injury.

Held:  Arbitrator’s determination confirmed.

1. The issues in dispute were whether the Arbitrator failed to consider the “correct test for compensation” and failed to “apply the law to the evidence correctly”.

2. Mr Cromb’s general practitioner made no reference to his symptoms resulting from work between 2003 and 2008, only that his problems resulted from “previous trauma”.  The medical evidence did not support Mr Cromb’s assertion that the change in pathology was caused by driving on rough ground and having to turn his head continually.  This history first appeared, and only appeared, in Mr Cromb’s statement of 16 August 2009.

3. Evidence from the consultant neurologist suggested that Mr Cromb had suffered a “further injury”.  This evidence was unpersuasive given that it was not supported by the history recorded by the doctor, there was significant inconsistency between Mr Cromb’s evidence and the history recorded, and the doctor failed to adequately explain the cause of the change in pathology. [77]

4. An orthopaedic surgeon qualified by the insurer concluded that the 1999 injury was a “direct cause” of Mr Cromb’s symptoms.  Roche AP noted (at [81]) that “This conclusion did not rule out the possibility that there may also have been other relevant causes”.  In determining the weight to be attached to those other causes, regard was had to the doctor’s history that Mr Cromb’s further symptoms developed without a further specific incident. It was noted that if, contrary to the view held by Roche AP, Mr Cromb received an injury in January 2008 or between February 2003 and 18 June 2008, it was not accepted that employment was a substantial contributing factor.

5. In respect of Mr Cromb suffering a “permanent aggravation” as suggested by the same orthopaedic surgeon, Roche AP said (at [82]) “in the absence of a history of the events alleged to have caused the increase in Mr Cromb’s symptoms in 2008, and given the history of the 1999 injury and its significant consequences” the evidence did not establish an aggravation caused by the work in January 2008 or between February 2003 and 18 June 2008.  The conclusion drawn by the orthopaedic surgeon was that “the major cause of the disc prolapse conditions at C5/6 and C6/7” was the 1999 injury.  He further said that Mr Cromb’s neck condition would deteriorate as part of a natural process after the 1999 injury.

6. Mr Cromb’s neck condition in 2008 resulted from his injury in 1999 and not a separate injury or an aggravation in January 2008 or between February 2003 and 18 June 2008.

7. Mr Cromb failed to establish that he received a further injury (either pursuant to s 4(a) or s 4(b)(ii) of the 1987 Act) and that his employment was a substantial contributing factor to that injury.

Sutherland Shire Council v Wurzel [2010] NSWWCCPD 79

Nature and extent of partial incapacity; ability to earn; discretion; s 40 Workers Compensation Act 1987

Roche DP

27 July 2010

Facts:

Mr Wurzel worked as a labourer for Sutherland Shire Council from approximately 2004.  He injured his back at work on 10 April 2007 whilst lifting rubbish.  The injury was not disputed.

Mr Wurzel returned to work on light duties after having a few weeks off.  His symptoms increased on 1 May 2007.  His employment was terminated on 22 May 2007 due to misconduct and he was paid weekly compensation.  He received a s 54 notice dated 16 June 2009 advising that, as from 29 July 2009, his weekly compensation payments would be reduced to $28.99 per week, being the difference between his pre-injury earnings and those which the Council asserted that he had the ability to earn post-injury.

Mr Wurzel had previously applied to the Commission for compensation in respect of permanent impairment of his lumbar spine as a result of his injury on 10 April 2007.  He was assessed by an AMS as having a nil WPI. On appeal to a Medical Appeal Panel, he was assessed as having five per cent WPI.  That compensation had been paid.

At arbitration, Mr Wurzel was awarded weekly compensation pursuant to s 40 at the rate of $294.00 per week from 30 July 2009 and continuing.

The Council appealed this determination.

Held:  Arbitrator’s determination was revoked – decision substituted – the Council to pay Mr Wurzel weekly compensation in the sum of $158.00 per week under s 40 from 30 July 2009 and continuing.  

1. It was accepted that Mr Wurzel had ongoing symptoms as a result of his injury.  However, due to the surveillance evidence, clinical notes from his general practitioner, evidence from a functional capacity assessment carried out by an occupational therapist, and a s 40 assessment report prepared by a psychologist and rehabilitation consultant, it was not accepted that the extent of Mr Wurzel’s incapacity was as severe as claimed by him.

2. The evidence of the orthopaedic surgeon qualified by Mr Wurzel was preferred as to the nature of the injury.  It was accepted at [79] “that Mr Wurzel aggravated pre-existing degenerative changes in his lumbar spine and sustained ‘some degree’ of discal damage at the L4/5 and L5/S1 levels.”  The effect of that aggravation was found to be continuing.

3. Mr Wurzel attended on his general practitioner on a number of occasions between June 2008 and December 2009 and only complained of back symptoms on 15 December 2009.  This was said to be significant but not determinative and did not indicate that his symptoms had resolved.  Further, no weight was placed on entries in his general practitioner’s clinical notes that made reference to him experiencing neck pain after lifting a ladder and, on another occasion, doing weights at home.  Regular exercise was part of Mr Wurzel’s rehabilitation.

4. In determining whether Mr Wurzel was fit for his pre-injury duties, the detailed description of his pre-injury duties (“push/pull a buggy weighing up to 5 kg when full, pick up litter weighing 1-2 kg, collect leaves and mulch using a broom and shovel, and clean toilets”) contained in the s 40 assessment report relied on by the Council was accepted.  Mr Wurzel did not dispute the accuracy of this description.  These duties were not considered to be heavy or arduous and were determined to be within the restrictions set by the general practitioner.

5. It was noted at [83] that “Mr Wurzel’s ability to earn in the labour market reasonably accessible to him” must be determined (Steggles Pty Ltd v Aguirre (1988) (1988) 12 NSWLR 693) and that he would not necessarily be precluded from recovering an award even if it was established that he was fit for his pre-injury job (Ranvet Pty Ltd v Vasilevski [2008] NSWWCCPD 81).

6. Mr Wurzel was found not to be fit for his pre-injury duties as he was required to work much longer hours than a normal 38 hour week in those duties and he was only certified fit for normal hours.  If Mr Wurzel was said to be fit for pre-injury duties, “that would not be determinative of his entitlement to weekly compensation.” [83]

7. To assess Mr Wurzel’s capacity, Roche DP considered the surveillance film showing Mr Wurzel bending freely from the waist, holding this position and returning to an upright position in a fluid motion.  The contents of the medical evidence and rehabilitation reports were also considered, as was the certification by the occupational therapist and general practitioner that he was fit for “normal full-time hours” and could “Try 8 HR days 5 days a week”.  Mr Wurzel’s restrictions were modest.

8. It was accepted that Mr Wurzel could undertake light cleaning work or process work for 38 hours per week and that the labour market was “good” within 30 to 60 minute travel radius of his home.

9. After having regard to the factors in s 43A, Roche DP found Mr Wurzel able to earn $769.00 per week in full-time cleaning work and the difference between the agreed comparable earnings and this amount was $158.00. [89]

10. In respect of s 40 discretion, Roche DP determined (at [94]) that “Whether Mr Wurzel has been diligent in seeking employment is not a discretionary factor (Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526).  His ability to earn remains as I have determined whether he is looking for that work or not.”  As to the issue that Mr Wurzel did not have a driver’s licence, his ability to earn was assessed on the basis that he would be able to find employment regardless of being without a driver’s licence.  In view of the scant and unsatisfactory evidence, it was impossible to determine the impact, if any, of his dismissal on his claim.  Therefore, the discretion was not exercised and the award was not reduced.

11. Once the worker established that comparable earnings exceed ability to earn, the evidentiary burden shifted to the employer to lead evidence as to why, in the exercise of the discretion, that difference should be reduced. [92]

Abraham Seda Ghati v Sayan & Ors [2010] NSWWCCPD 74

Former ss 25, 26 and 27A of the Workers Compensation Act 1987; dependency; s 7 of the Telecommunications (Interception and Access) Act 1979 (Cth); ss 7 and 13 Listening Devices Act 1984 (NSW)

O’Grady DP

14 July 2010

Facts:

Ms Sayan is the widow of the late Farhang Tizfahm Mindoab, who died on 30 November 2006 as a result of injuries received by him on 27 November 2006.  The deceased was welding steel roof trusses in place in a partly-constructed storage shed erected at premises at Glenhaven.  He was carrying out this welding work on a mobile scaffold when he fell from the scaffold to the concrete floor of the structure and sustained fatal injuries.

Ms Sayan made a claim for workers compensation benefits on her own behalf and on behalf of her son against Golden Lands Investment Properties Pty Ltd and Abraham Seda Ghati (‘Mr Ghati’) on the basis that the deceased’s death was in the course of his employment.  Employment was denied by both respondents and Mr Ghati did not have workers compensation insurance.

Ms Sayan filed an Application with the Commission, and WorkCover was joined as a respondent to the Application.

The Arbitrator found in favour of Ms Sayan and awarded compensation.  The deceased was a worker in the employ of Mr Ghati.

For some years prior to, and at the time of his death, the deceased received a disability pension and Ms Sayan received a carer’s pension.  The Arbitrator found that the two pensions were “inextricably linked” and constituted a total income solely attributed to the deceased. The Arbitrator determined that Ms Sayan and her son were wholly dependent upon the deceased.

Mr Ghati appealed. It was submitted that the Arbitrator erred in:

• allowing the admission of evidence, including the recording of a mobile telephone conversation between the deceased’s son and the appellant;
• finding that there was a contract of employment, and
• finding dependency.

Held: Arbitrator’s determination partly confirmed partly revoked.

Evidence

1. In respect of the admissibility of a recording of a telephone conversation between Mr Ghati and the deceased’s older son, Mr Tesfan, O’Grady DP found that the evidence in the case permitted an inference that the recording of the telephone conversation occurred after the conversation had become accessible to Mr Tesfan.  He heard the conversation contemporaneously with it being recorded.

2. O’Grady DP concluded, having regard to the matters summarised by Brereton J in Chao v Chao [2008] NSWSC 584 (‘Chao’), that the Telecommunications (Interception and Access) Act 1979 (Cth) had no application.

3. Mr Tesfan acquired knowledge of the conversation not as a result of the use of the listening device but rather, as in Chao, as a result of him participating in the conversation. O’Grady DP concluded that s 13 of the Listening Devices Act 1984 (NSW) did not operate to render evidence of the conversation inadmissible. The Arbitrator’s admission of the evidence was correct.

4. Whilst O’Grady DP accepted the submission put on behalf of Mr Ghati that the provision of s 354 of the 1998 Act and Rule 15.2 of the Workers Compensation Commission Rules 2006 did not, as found by the Arbitrator, permit the admission of material that is expressly prohibited by statute, his factual conclusions concerning the conduct of the recording and the application of the Acts led to the conclusion that the Arbitrator’s ruling concerning admissibility was correct.

Employment relationship

5. Mr Ghati submitted that there was no evidence of an intention to create a contract of service between himself as employer and the deceased as worker within the meaning of the Acts.  Mr Ghati submitted that the deceased was a volunteer.  The documentary evidence concerning the circumstances of the deceased’s presence on Mr Ghati’s premises was conflicting, inconsistent, and contradictory.

6. On the balance of probabilities, the evidence established that Ms Sayan discharged the onus on her to prove the existence of a contract of employment between Mr Ghati and the deceased. [72] The contract was entered into for an indefinite period and Mr Ghati could not establish that the employment was for one period only of not more than five working days, and that the deceased was employed otherwise than for the purposes of Mr Ghati’s trade or business. O’Grady DP found (at [72]) that the deceased’s employment was not casual employment which would exclude a worker as defined in the 1998 Act.  The fact that the deceased may have worked for less than five days before the accident was not material in the absence of any arrangement to work for five days or less.

Dependency

7. The entitlement of dependants in NSW to compensation benefits in the case of death of a worker has, since amendments in 1964 to the then relevant statute, the Workers Compensation Act 1926 (‘the 1926 Act’), been founded upon proof of dependency for support.  Earlier provisions made reference to dependency upon earnings.

8. O’Grady DP was of the view that, when considering the existence or otherwise of dependency and whether such is total (whole) or partial, account should be taken of that evidence concerning the performance by the deceased of sundry services about the home, as well as that evidence which suggests that some support was afforded by the pooling of the deceased’s pension income with that of Ms Sayan. As was stated by Ferrari J in Cooper v Commissioner for Railways [1972] WCR 47, the death of the deceased resulted in the loss of the benefit of the support from the deceased that arose from the joint sharing of expenses.

9. McTiernan J stated in Aafjes v Kearney [1975-1976] 180 CLR 199 (at 205) “whether the relation of dependency exists, and if it does, whether the dependency is total or partial are questions of fact”.

10. O’Grady DP said (at [81]) that consideration of “past events and future probabilities” (Lee v Munro [1928] 21 BWCC 401 at p 408) was relevant, both to the question of the existence dependency, and to the extent of dependency (whole or partial). (See also Grant v Dick Benbow and Associates [2000] 20 NSW CCR 484 (per Burke J) at [14]).

11. The deceased had not secured paid employment since arriving in Australia in 1986 or 1987. In 1998 and again in August 2003, the deceased was certified by a medical practitioner as suffering a severe spinal disability, depression and unable to engage in forceful physical activity.

12. It was probable that, had he not been injured, upon completion of the work for Mr Ghati, the deceased would have remained unemployed and in receipt of his pension. He rejected the evidence of Ms Sayan and her son regarding the deceased’s intentions to return to the workforce.

13. The only support lost to Ms Sayan and her son was the pooling of the pensions and the value of sundry services performed by the deceased.  Ms Sayan and her son were each partially dependent upon the deceased at the time of his injury and subsequent death. [86] The sum awarded is to be reasonable and proportionate to the injury to the dependants. [87] O’Grady DP said (at [89]) that the sum awarded for the pooling of the pensions was “somewhat arbitratory however such extrapolation based upon the limited facts is permissible: Warilla Timber and Hardware v Newton [1995] 11 NSWCCR 546 per Mahoney A-P at 549”.  He also estimated the value of the deceased’s work about the house (Government Insurance Office (NSW) v Cox [1976] 50 ALJR 559).

New South Wales Police Force v Lovett [2010] NSWWCCPD

Psychological injury; expert evidence, s 11A defence, reasonable action

McFee ADP

28 July 2010

Facts:

Ms Lovett, a police officer, lodged a workers compensation claim alleging an Adjustment Disorder with Mixed Anxiety and Depressed Mood, as a result of “close personal surveillance by unknown police for unknown reasons” which she detected on 20 September 2006 and for which no explanation was given. She sought compensation for weekly benefits and medical expenses from 26 September 2006 to date and continuing.

Ms Lovett was under internal investigation and surveillance by the Professional Standards unit.  She was not informed of this investigation. However, as part of this process, she was, at short notice, reassigned from a training course to work on a special project at another station. She was confused by the instructions she received from her superiors about the work she was to perform. She also felt unsupported when she informed them she believed that she was under surveillance. Her supervisors were unable to reassure her because they were aware that the events were part of an internal investigation.

The Police Force did not dispute injury or s 9A, but liability was declined on the basis of s 11A of the 1987 Act, that compensation was not payable because the psychological injury was caused by reasonable action taken with respect to discipline. The reasons in support of this decision were as follows:

“Based upon report by psychologist Jane Randall dated 16^th January 2007, it has been found that your employer has acted reasonably in relation to matters pertaining to discipline and performance appraisals. The report notes that the duties assigned to Ms. Lovett while she was under surveillance are not uncommon given the severity of the matter against her.”

The two issues in dispute at arbitration were:

• whether Ms Lovett’s injury was wholly or predominantly caused by reasonable action taken by the employer with respect to discipline, and
• if so, whether Ms Lovett’s entitlements to weekly payments should be calculated from 19 May 2008 when her daughter was born, on the basis that she has a dependent child.

The Arbitrator found in favour of Ms Lovett in respect of both the s 11A and dependency issues.

The Police Force submitted on appeal that:

• Ms Lovett’s knowledge that she was being investigated was the whole or predominant cause of the injury and not the conduct of the investigation, as found by the Arbitrator, and
• the investigation was reasonable and the s 11A onus was discharged.

Held: Arbitrator’s decision confirmed but for different reasons.

1. The report by Jane Randall, relied on by the Police Force in its s 11A defence, was unacceptable and the Arbitrator’s implicit rejection of it soundly based.

2. An expert must identify the facts assumed as the basis of an opinion. An expert may rely on facts elicited from other witnesses. However, it is not appropriate for an expert to act as a mere conduit for the opinions or perceptions and uninformed speculation of others.

3. Experts, assuming Ms Randall was a qualified psychologist, who venture opinions which are merely their own inference of fact outside their field of specialist knowledge invest those opinions with a spurious appearance of authority which misleads and misconstrues the facts (see HG v R (1999) 160 ALR 554 at 563-4).

4. Ms Randall’s assertion that there was a lack of evidence to suggest that the investigation process had been poorly handled was an opinion not within the field of her expertise.  Her opinion that the actions of the appellant were reasonable was based on the mere assertion that:

• the events occurring during the course of the investigation were a consequence of instructions received by Superintendent King and Inspector Viera, and
• the duties assigned to Ms Lovett whilst she was under surveillance were not uncommon “given the severity of the matter against her”.

5. The issue of reasonableness within the defence of s 11A applies to both the decision to carry out the action and the manner of its implementation.  No action can be divorced from the way in which it is performed.  The manner of its doing is part of the action.  The action is not merely its end result (see Melder v Ausbowl Pty Limited (1997) 15 NSWCCR 554).

6. A significant issue was whether the reasonableness related to the conduct of the employer from its point of view, because the requirement for an investigation (as portrayed in the Commissioner’s Warning Notice) had primacy and whether this overrode the position of Ms Lovett, because she knew that she was being investigated.

7. Although the fact that Ms Lovett’s superiors, when imposing the “task conditions”, were complying with instructions and policy was to be taken into account, it was not determinative of the issue. However, they did not act fairly or reasonably when the position of Ms Lovett was taken into account. They knew of the detrimental effect of the “unusual conditions”. At the very least, advice and instructions should have been sought from superiors on being informed of her distress.

8. No evidence was adduced to:

• explain why it was “reasonable” to not respond to the understandable and real concerns of a valued officer;
• show why the needs of the investigation necessarily overrode considerations relating to the possible detrimental effects of the investigation on the officer concerned, or
• show the propriety of the action taken in respect of Ms Lovett and that the investigation process complied with the relevant statutory scheme for investigating officers.

9. The Arbitrator was obliged to determine the reasonableness of the action of the employer.  He found that he was unable to do so [at 44], “without knowing what was being investigated at the time those actions were taken...”  That approach was misconceived. The Arbitrator failed to address the distinction between the decision to investigate Ms Lovett and implementation of the investigation.

10. As to the manner of the implementation of the investigation, it was not necessary to reach a conclusion as to why the investigation was implemented and whether the decision to investigate was reasonable.  There was no need to determine whether there was a proper basis for the directions concerning the allocation of tasks to Ms Lovett.  Nor would it be possible to attempt to retrospectively determine those matters.

11. The appellant did not make out its case under s 11A. It failed to establish that the relevant causal stressor was Ms Lovett’s knowledge of the investigation and that the investigation was reasonable.  The evidentiary material on which the appellant relied was significantly flawed.

Allen v Department of Community Services [2010] NSWWCCPD 78

Section 11A of the 1987 Act; injury, wholly or predominantly caused by reasonable action taken by an employer with respect to performance appraisal

O’Grady DP

26 July 2010

Facts:

Ms Allen commenced employment with the Department of Community Services in January 2002. She continues in that employment and is presently a senior caseworker. When Ms Allen was a caseworker at the Department’s Coffs Harbour office, she alleged that, on and before 1 May 2008, she was subjected to “undue psychological stressors” causing injury and resultant incapacity. Ms Allen ceased work on 8 May 2008 and remained absent until 10 April 2009.

Ms Allen claimed to have experienced psychological symptoms as a result of excessive workload over many months.

Ms Allen made a claim for workers compensation benefits shortly after her cessation of work. The Department did not dispute injury or s 9A but declined the claim on the basis that the injury suffered by Ms Allen had been wholly or predominately caused by reasonable action taken or proposed to be taken by or on behalf of the Department with respect to matters addressed by the provisions of s 11A the 1987 Act.

The Department alleged that, whilst Ms Allen had problems prior to May 2008, the predominant cause of her psychological condition was a meeting on 1 May 2008 with her manager. The meeting was in relation to performance appraisal and the Department’s conduct was reasonable. Ms Allen’s work performance was addressed, and she received directions about completing certain tasks within timeframes. The meeting was a particularly stressful incident and there was a serious deterioration in Ms Allen’s symptoms at that time.

Ms Allen brought proceedings in the Commission. The matter proceeded to an arbitration hearing.

An award was entered in favour of the Department on the basis that it had established a defence to the claim under section 11A in that Ms Allen’s injuries were wholly or predominantly caused by performance appraisal which was reasonable.

Ms Allen appealed.

Held: Arbitrator’s decision revoked – new decision substituted.

1. The onus of proving those matters which give rise to a defence pursuant to s 11A is on the employer. It requires proof by the employer that the injury was caused wholly or predominantly by action taken or proposed to be taken by it in relation to one or more of the matters referred to in that subsection and, further, that such action was reasonable.

2. Ms Allen’s evidence as to her excessive workload and its detrimental effects upon her for many months prior to 1 May 2008, unchallenged and corroborated by other co-workers, was accepted.

3. The evidence from a number of lay witnesses supported an inference that injury had occurred well prior to the date of the subject meeting.

4. The Arbitrator erred in rejecting this evidence on the basis that the history was not supported by the general practitioners’ notes and, secondly, that those practitioners had not been given a full and accurate history, particularly concerning other stressors experienced by Ms Allen in the relevant period.

5. O’Grady DP held that the general practitioner’s clinical notes could not cast doubt upon Ms Allen’s assertions that she experienced symptoms of stress and anxiety for many months prior to the subject meeting. Whilst Ms Allen had other stressors in her life, there were a number of attendances during the relevant period at which Ms Allen complained to the doctor of work-related stressors.

6. The evidence established that the events of the workplace in May 2008 were, in part, causative of the injury in that those events caused an aggravation of the then existing anxiety condition.

7. The term “predominantly” as it appears in section 11A(1) was considered by Snell ADP in Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 where he stated at [31]:

I accept ‘mainly or principally caused’ is the meaning that should be ascribed to    the word ‘predominantly’ in section 11A(1). The test on causation to be applied, as was observed in Temelkov, is the test enunciated in Kooragang Cement Pty Limited v Bates.

8. The aggravation occasioned to Ms Allen’s underlying psychiatric injury by the events in May 2008 were but part of the many factors causative of the condition. It was true that incapacity followed very soon after the meeting of 1 May 2008. However, the occurrence of such incapacity was not determinative of the question which was before the Arbitrator, namely whether the injury was wholly or predominantly caused by the actions of the employer which were taken in May.

9. Ms Allen’s evidence was that her experiences in May were “the straw that broke the camel’s back”. That description was in keeping with the expert medical view expressed by Ms Ellis and Dr Strum.  The actions taken by the Department in May 2008 did not wholly or predominantly cause the subject injury. Ms Allen’s poor work performance was causally related to her excessive workload. That workload caused anxiety which, by May 2008, had been present for months. The work performance appraisal concerned a consequence of the workload. That workload was the predominant cause of injury.

10. The Department failed to establish that the events of May 2008 wholly or predominantly caused the subject injury. In the circumstances, it was unnecessary to determine whether the Department’s action was reasonable action taken with respect to performance appraisal.

11. The Department’s reliance upon s 11A failed. The Arbitrator’s orders were revoked and a new decision substituted with an award for the worker.

Moree Secondary College P & C Association v Van Vegchel [2010] NSWWCCPD 81

Section 352(4) of the 1998 Act; leave to appeal

O’Grady DP

30 July 2010

Facts:

Mrs Kay Van Vegchel was employed as a canteen supervisor. On 19 August 2005, she was standing on a freezer approximately one metre from the ground, attempting to connect an electrical cord, when she fell backwards, striking her right scapula and shoulder and landing heavily on her buttocks.

The injuries initially particularised by the worker related to her arm, shoulder and back. It appeared that the appellant’s insurer accepted the claim. After a period off work, the worker returned to work until her services were terminated in July 2007.

In 2008, Ms Van Vegchel commenced proceedings in the Commission seeking lump sums in respect of WPI resulting from injuries received in the fall. The worker was examined by Dr Blue (AMS) on 17 November 2008 and a MAC was issued on 20 November 2008. That certificate assessed WPI by reason of injury to her right upper extremity as being 14 per cent. Dr Blue’s assessment noted that the worker had claimed in respect of a “body part” outside his field of expertise which he particularised as “gynaecological problems complicating [sic] work fall of August 19, 2005”.

The proceedings were settled by consent.  A COD was issued on 16 February 2009 ordering payment pursuant to s 66 in the sum of $18,500.00 in respect of 14 per cent WPI, together with an award pursuant to s 67 of the 1987 Act in the sum of $13,000.00.

In 2009, a further claim was made by the worker in respect of additional lump sum entitlement in respect of WPI arising from injury to the lumbar spine and “the urinary system, the bladder” and an additional claim in respect of lump sum payment for pain and suffering pursuant to s 67.

The appellant filed a Reply disputing injury to the urinary system and disputing that her employment was a substantial contributing factor to the urinary system injury.

In a COD dated 12 November 2009, the Arbitrator made findings of fact in the worker’s favour concerning her allegation of injury to the urinary system and that her employment was a substantial contributing factor to that injury. The COD included an order that the worker’s claims “for section 66 lump sums for the urinary system and the lumbar spine” were to be remitted to the Registrar for referral to an AMS for assessment.

Dr Burke examined the worker on 1 February 2010. A MAC was issued on 8 February 2010 which assessed five per cent WPI by reason of injury to the lumbar spine. That assessment was subsequently reflected in an order made by consent in a COD. Although Dr Burke expressed a view on causation, he did not include an assessment of WPI in respect of the urinary system injury because the worker intended to undergo surgical repair and he considered that the condition had not stabilised.

The Arbitrator conducted a further teleconference, at which time an agreement was reached between the parties for payment of an additional lump sum in respect of five per cent WPI arising from injury to the lumbar spine as found in the MAC dated 8 February 2010 and a further lump sum in respect of pain and suffering pursuant to s 67. A COD making appropriate orders was issued on 16 April 2010.

On 29 April 2010, the appellant sought leave to appeal the CODs dated 12 November 2009 and 16 April 2010.

Held: Leave to appeal refused.

1. Whilst the appeal was registered within 28 days of the decision dated 16 April 2010, nothing in that determination, which provided for orders by consent, was challenged.

2. The Arbitrator’s determination dated 12 November 2009 concerned findings by the Arbitrator on injury, and whether employment was a substantial contributing factor to that injury. In the words of Gibbs J, those findings “finally dispose of the rights of the parties” (Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 at 225). Such findings bound the parties and defined the rights and liabilities of each concerning entitlement to compensation benefits as provided by the Acts.

3. The need, by reason of the provisions of Part 7 of the 1998 Act, for an assessment by an AMS did not detract from the finality of those findings.

4. This conclusion was consistent with a long line of authority in the Commission which includes Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196; Zohrabi v Lexington International Pty Limited [2007] NSWWCCPD 233; Edmund Diab v Salem Naji [2010] NSWWCCPD 33; and Yum Restaurants Australia Pty Ltd t/as Pizza Hut Restaurants v Watters [2010] NSWWCCPD 31.

5. The appellant’s application seeking leave to appeal the determination dated 12 November 2009 did not comply with the provisions of s 352(4) in that it was not filed within 28 days of that decision and was therefore out of time. There was no application before the Commission seeking an extension of time with respect to bringing that appeal.

6. Leave to appeal refused due to non-compliance with the provisions of s 352(4).