Issue 3: March 2019

Snell DP

15 February 2019

Facts

On 14 November 2005, the appellant worker was operating a scraper at a mine when it dropped suddenly, throwing him around the cabin and injuring his head, neck and left shoulder. The worker came under the care of Dr Kossmann, orthopaedic surgeon, who wrote to the insurer on 8 January 2015 seeking approval for the cost of surgery involving “mini arthrotomy, removal of his bursa and decompression of his left shoulder joint”. The insurer issued a s 74 notice on 24 March 2015 declining liability for the cost of this surgery.

The worker later came under the care of Dr Pak, orthopaedic surgeon, who sought approval from the insurer to carry out surgery involving “left shoulder scope, subdeltoid bursectomy, acromioplasty, lateral clavicle excision and a labral debridement and repair if required”. The insurer issued a further s 74 notice dated 16 February 2017. The notice referred to a report (involving a file review) by Dr Doig dated 30 January 2017. The reasons for denial included that the appellant did “not have a left shoulder condition resulting from” the employment injury, and that the treatment was “not reasonably necessary as a ‘result of an injury’”.

The Arbitrator made an ultimate finding of fact, that on the whole of the evidence he did not feel an “actual persuasion that the requirement for surgery ... results from injury to the left shoulder in November 2005”. He made an award for the respondent. The worker appealed.

The issues on appeal were whether the Arbitrator:

(a) erred in law in finding that, in the absence of contemporaneous evidence of complaint or treatment, he was not satisfied that the need for surgery was causally related to the injury on 14 November 2005 (Ground No 1);

(b) erred in finding that the respondent had discharged its evidentiary onus to establish that the effects of the injury on 14 November 2005 to the left shoulder had ceased (Ground No 2);

(c) erred in finding that there was a failure by the appellant to discharge his onus of proof, on the causal linkage between the injury on 14 November 2015 and his need for surgery, on the basis of an absence of complaint to doctors after 2005 (Ground No 3), and

(d) failed to decide the matter in accordance with the issues in dispute in the s 74 notice dated 16 February 2017 (Ground No 4).

Held: The Arbitrator’s decision dated 31 August 2018 was confirmed.

Leave regarding Ground No 4

1. Ground No 4 was included in the appellant’s supplementary submissions dated 1 November 2018, put on after the transcript was made available to the parties. The respondent opposed the appellant having leave to rely on it. The substance of Ground No 4 was that the Arbitrator decided the matter on a basis that was not raised in the relevant s 74 notices, which constituted error. Whilst such a ground was not spelled out in the original three grounds of appeal, it was raised in the submissions in support of each of those grounds. The respondent did not assert prejudice and was given the opportunity to address Ground No 4 at the oral hearing of the appeal. As Ground No 4 largely relied on points made previously in respect of the other grounds, the preferable course was to grant leave to add the grounds and for the Deputy President to deal with it on its merits. ([31]–[32])

Dealing with the Grounds of Appeal

2. There was substantial overlap between all four grounds. All dealt with the scope of the s 74 notice dated 16 February 2017, and whether the notice raised the causation issue in a general sense, or whether the issue raised was restricted to that identified in Dr Doig’s report dated 30 January 2017. The grounds were dealt with together. ([33])

3. In Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488 (Mateus) an issue before Roche DP was the adequacy of a s 74 notice putting ‘injury’ in issue. The Deputy President’s approach to this issue was referred to with approval by the Court of Appeal in Fairfield City Council v Arduca [2015] NSWCA 166. Mateus has been regularly applied in the Commission. ([51]–[52])

The section 74 notices

4. The s 74 notice dated 24 March 2015 raised only the disentitling provisions of s 59A of the 1987 Act. It declined liability for expenses pursuant to s 60 of the 1987 Act, in respect of treatment after 31 December 2013. The application of s 59A was not controversial in the running of the arbitration hearing. The appellant did not pursue a claim for medical and related expenses beyond 31 December 2013, save for the cost of the proposed surgery, in respect of which a declaration was sought. ([53])

5. Section 74(1) of the 1998 Act applied where the insurer “disputes liability in respect of a claim”. The causation issue was one in respect of liability. Section 74 required that the insurer give notice of the dispute regarding liability. This dispute was spelled out in clear terms in the description of the insurer’s ‘decision’, being that treatment under s 60 is only available if the treatment is reasonably necessary “as a result of an injury”. The notice set out s 60(1) of the 1987 Act; such compensation is dependent on treatment being “as a result of an injury”. It provided the reasons for decision. The notice, in clear terms, spelled out that the dispute was one in which the insurer denied the left shoulder condition, for which Dr Pak’s surgery was proposed, resulted from the employment injury (which it did not dispute). ([55]–[56])(Divertie v Startrack Express Pty Limited [2008] NSWWCCPD 45; 6 DDCR 26; Favetti Bricklaying Pty Limited v Benedek [2017] NSWSC 417; Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124; 5 DDCR 337 referred to)

6. Section 74(1) of the 1998 Act requires an insurer to give notice of the dispute, when it disputes liability. Section 74(2) requires that the notice contain a concise and readily understandable statement of the reason the insurer disputes liability and the relevant issues. ([58])

7. The causation issue was squarely raised in the proceedings. There is not an obligation to refer to all of the evidence which may become relevant, or all of the submissions that may ultimately be made. Such an obligation would be unworkable, and is not required by s 74. Section 289A(1) of the 1998 Act prevents referral of a dispute for determination by the Commission unless it concerns only matters previously notified as disputed. Section 289A(2) provides relevantly that a matter is previously notified as disputed if it was notified in a notice of dispute. The reference to a “matter” is a reference to what was required in the notice of dispute (the s 74 notice), being notice of the dispute about liability. If the insurer sought to raise a different or further ‘liability’ issue, beyond what was referred to in the s 74 notice, this would require leave pursuant to s 289A(4). ([59]–[60])

8. It followed that s 289A(1) of the 1998 Act did not prevent the dispute, as identified in the relevant s 74 notice, being determined by the Commission. There was not a requirement for leave pursuant to s 289A(4). ([61])

How the case was conducted

9. The issue of whether the history of treatment supported the alleged causal link between the injury in 2005, and the surgery recommended by Dr Pak, was plainly explored in the running of the arbitration. The case was conducted on the basis of an acceptance by the parties (in the Deputy President’s view correctly) that the ‘liability’ issue was whether the condition of the left shoulder, for which surgery was recommended by Dr Pak, resulted from the injury on 14 November 2005. The hearing was not conducted on the basis that the issue was restricted to whether the opinion of Dr Doig should be accepted. ([66])

Conclusion on the s 74/s 289A(4) issue

10. Deputy President Snell rejected the appellant’s argument on these matters. Accordingly, Ground No 4 failed. This also dealt with many of the submissions made in respect of Grounds Nos 1 to 3. To the extent to which Grounds Nos 1 to 3 went beyond this argument, they were further dealt with below. ([67])

Dr Doig

11. Deputy President Snell held that the Arbitrator’s reasoning process was not dependent on an acceptance of Dr Doig’s opinion. It followed that those parts of the appellant’s submissions that dealt critically with Dr Doig’s views were irrelevant to the result, as the reasoning did not rely on Dr Doig. ([68])

The respondent’s initial acceptance of liability

12. The appellant, in various passages of his submissions referred to the respondent’s initial acceptance of liability, in the letter dated 10 November 2011. Deputy President Snell held that the respondent’s acceptance of liability on 10 November 2011 was simply one piece of evidence, to be weighed with the evidence in the matter as a whole. The Arbitrator was aware of the earlier acceptance of liability. The probative force of an admission must be determined “by reference to the circumstances in which it is made and may depend altogether upon the party’s source of knowledge”. The Arbitrator said that the respondent’s payment or reimbursement of treatment expenses during 2012 indicated that it “at that time, accepted a causal relationship based upon the reports of Dr Billett and Dr Kossman[n]”. ([69], [72])

(Lustre Hosiery Ltd v York [1935] HCA 71; 54 CLR 134 applied)

13. The Arbitrator said that Dr Kossmann and Dr Billett were given a history in 2012, by the appellant, that he had “a history of left shoulder pain and restriction of movement going back six to seven years”. The Arbitrator said that he did not accept the accuracy of that history. This was consistent with the admission being deprived of weight, as it was based on medical evidence which itself did not have weight due to the lack of correlation between the history assumed in the relevant reports, and the facts as proved. The Arbitrator both identified the admission, and gave a valid reason for why the admission, when weighed with the evidence as a whole, lacked probative force. There was no error in how the Arbitrator dealt with the respondent’s acceptance of liability on 10 November 2011. ([74])

(Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399 applied)

The respondent’s onus of proof

14. Ground No 2 spoke of whether the respondent had discharged its evidentiary onus of proving the effects of the work injury to the left shoulder had ceased. The appellant, as the moving party, carried the ultimate onus of proof. This was consistent with the Arbitrator’s reasons at [167]. ([75])

(Commonwealth v Muratore [1978] HCA 47; 141 CLR 296, [11] applied)

The appellant’s failure to discharge his onus

15. Ground No 3 was critical of the Arbitrator’s finding that the appellant failed to discharge his onus on the causation issue, based on an absence of chronicled complaints to doctors from February 2006 to January 2012. Deputy President Snell found that the Arbitrator summarised the treating material from 14 November 2005 to 2012 carefully and his analysis of such material was properly available. The Arbitrator was clearly aware that the causation issue revolved not around whether there were recorded complaints, but rather whether there were symptoms present after the 2005 injury. ([78]–[80])

(Nominal Defendant v Clancy [2007] NSWCA 349; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 and King v Collins [2007] NSWCA 122 referred to)

16. The appellant had not demonstrated factual error based on the principles discussed in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156. The Arbitrator’s finding on the causation issue was properly open to him on the evidence. ([83])

The issue of credit

17. The appellant submitted that the respondent did not, at the arbitration hearing, seek to raise credit as an issue, or seek leave to cross-examine. Deputy President Snell noted that there is no right to cross-examine in the Commission. The Deputy President held that it followed that the respondent’s failure to seek leave to cross-examine did not assist the appellant. The material on which the respondent made the relevant submissions, and on which the Arbitrator relied in reaching his conclusion, was contained in the documentary evidence exchanged between the parties, and both parties had the opportunity to make submissions on it. ([84]–[86])

(Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358; New South Wales Police Force v Winter [2011] NSWCA 330 and JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17 applied)

18. It was not incumbent on the respondent to put to the appellant that he was being deliberately untruthful, there were various possible explanations for why the appellant’s evidence may have been unreliable. The reliability of the appellant’s evidence was sufficiently challenged in the circumstances. ([88])

19. Grounds Nos 1, 2, 3 and 4 failed. ([90])

No error in exercise of discretion to exclude cross-examination; Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied; consideration of objective evidence when witness evidence unreliable; Devries v Australian National Railways Commission (1992) 8 CA 41; (1993) 177 CLR 472 and Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 considered and applied

Wood DP

20 February 2019

Facts

The worker suffered an injury to his right knee on 20 October 2015, for which Ku-ring-gai Council (the Council) accepted liability. These proceedings concerned a claim by the worker, that on 1 December 2016, while travelling by train to a rehabilitation assessment instituted by the Council following surgery to his right knee, the worker suffered an injury to his right shoulder.

The Arbitrator determined that he was not satisfied that the worker suffered an injury to his right shoulder in the manner alleged and entered an award in favour of the Council. The worker appealed.

The issues on appeal were whether the Arbitrator erred:

(a) in law in finding that he was not satisfied that the worker was injured as alleged (Ground One), and

(b) by failing to determine, or failing to accept, that the worker suffered (Ground Two):

(i)      an injury pursuant to ss 4 and 9A of the 1987 Act; or alternatively

(ii)     an injury condition causally related to his right knee injury (a “consequential injury”), or alternatively

(iii)     an injury to which s 10 of the 1987 Act applies.

Held: The Certificate of Determination dated 14 September 2018 was confirmed.

Discussion

1. The worker’s appeal rose or fell on whether the Arbitrator erred in respect of his determination that he was not satisfied that the pleaded mechanism of injury occurred as alleged. The worker identified the errors as:

(a) failing to allow cross-examination (denial of procedural fairness), and

(b) preferring the evidence of the general practitioner, Dr Kalra, the occupational therapist, Ms Do and the opinion of Dr Morton (the weight of the evidence). ([113]).

2.. The worker’s complaint that the Arbitrator ought to have allowed oral evidence and observed his demeanour under cross-examination before proceeding to assess his credibility failed to take into account the well-established principles that apply to proceedings in the Commission. The basis upon which the worker asserted that he should have been cross-examined was that the Arbitrator ought to have had the opportunity to observe his demeanour. The decision to allow, limit or deny an application to cross-examine is a discretionary decision. ([114]–[115])

(Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 and applied)

3. In order to succeed in disturbing the Arbitrator’s discretionary decision to deny him the opportunity to give oral evidence, (following the principles in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 (Micallef), [45]), the worker must establish that the Arbitrator either:

“(a)    made an error of legal principle,

(b)     made a material error of fact,

(c)     took into account some irrelevant matter,

(d)     failed to take into account, or gave insufficient weight to, some relevant matter, or

(e)     arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.” ([116])

4. In his submissions, the worker had failed to identify any of the errors following the principles in Micallef. His complaint was that the Arbitrator should have observed his demeanour before rejecting his evidence on the basis of credit, and the Arbitrator’s decision was plainly wrong. Deputy President Wood held that there is no obligation on a decision maker to observe the demeanour of a witness and the assessment of the credibility of a witness by observations of demeanour should be treated with caution. ([117]–[118])

(Micallef; MZWIQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1636; Fox v Percy [2003] HCA 22; 214 CLR 118, and Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 applied)

5. In any event, the Arbitrator is entitled to assess the credibility of the evidence before them without it having been tested in cross-examination. Evidence that is uncontested by cross-examination may be rejected where it is inherently inconsistent, or where there is a credible body of evidence that contradicts it. ([119])

(M & E M Hull Pty Ltd v Thompson [2001] NSWCA 359 and HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302 applied)

6. The Arbitrator made no error of fact or legal principle, did not fail to take into account a relevant matter nor did he give insufficient weight to a relevant matter. He did not take into account an irrelevant matter. His decision was not so unreasonable or unjust that it would suggest such an error had occurred. ([121])

(Micallef applied)

7. The worker further complained that the Arbitrator should have preferred his evidence over that of the Council. Deputy President Wood observed that questions of the acceptance of evidence and the weight it is given are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of the evidence that some error must have been involved. ([122]–[123])

(Shellharbour City Council v Rigby [2006] NSWCA 308 applied)

8. The Arbitrator’s finding in relation to the acceptance or otherwise of the evidence is a finding of fact. ([124]–[125])

(Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 and Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 applied)

9. Deputy President Wood found that the Arbitrator gave logical and cogent reasons as to why he preferred the evidence of the general practitioner’s notes, Ms Do’s email and the Rehabilitation Closure Report by Ms Forsyth to that of the worker and his three co-workers. Even if the Deputy President, after a consideration of the evidence, had reached a different conclusion to that of the Arbitrator (which she did not), that was insufficient to overturn the decision. ([128]–[131])

10. The worker had not established any error on the part of the Arbitrator in respect of ground one of the appeal and that ground failed. ([132])

11. The worker’s second ground of appeal was contingent on the worker succeeding in establishing the mechanism of injury was as pleaded. He had failed to establish that it was. In the circumstances, it was not necessary for the Arbitrator to consider whether the worker suffered a “consequential injury” or an injury to which s 10 of the 1987 Act applied. ([133])

12. In respect of ground two of the appeal, the worker asserted that the pleaded injury should have been accepted. He made no other submission. An allegation of error on the part of the decision maker must be supported by submissions identifying why it is that the decision-maker erred and how the error is alleged to have occurred. In the circumstances, the Arbitrator’s decision that the worker did not suffer an injury in the manner as alleged was not tainted by error and must stand. It followed that this second ground of appeal, which was dependent upon an acceptance of the injury having occurred as alleged, must also fail. ([135])

Wood DP

28 February 2019

Facts

The worker suffered injury to his back in the course of his employment as a boilermaker with the appellant on 26 September 2011. The injury occurred while he was lifting and stacking two metal plates, each weighing approximately 2 kilograms.

The worker made a continuing claim for weekly payments and treatment expenses (including further surgery on 20 June 2013), and he also sought compensation in respect of 16% whole person impairment pursuant to s 66 of the 1987 Act.

The Arbitrator found in favour of the worker, awarding weekly payments of compensation until 29 May 2014, found the surgery was reasonably necessary as a result of the injury, and remitted the matter to the Registrar for referral to an Approved Medical Specialist to assess the whole person impairment of the lumbar spine. The employer appealed.

The appellant relied on the following grounds of appeal:

(a) Ground 1: failure to provide sufficient reasons for the decision, and

(b) Ground 2: failure to apply the “Aitkin” (Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 (Aitkin)) test.

Held: The Certificate of Determination was revoked in part and the remaining orders were confirmed.

Ground 1: Failure to provide sufficient reasons for her decision

1. The appellant essentially complained that:

(a) it was not open to the Arbitrator to accept the worker’s case, when she had found significant credit issues in respect of the evidence of the worker and his mother;

(b) the Arbitrator failed to set out the steps she took to arrive at her conclusion, so that justice was not seen to have been done;

(c) the Arbitrator reversed the onus of proof by requiring the appellant to establish there had been a subsequent injury;

(d) the Arbitrator should not have accepted the evidence from the worker’s wife, Ms Palmer;

(e) the medical evidence was unreliable because it was based on incorrect histories, and

(f) there was no inconsistency in Dr Munoz’s evidence. ([192])

2. The only submission by the appellant that went to this ground of appeal, that is that the Arbitrator has failed to give sufficient reasons, was (b) above. The remaining submissions contended that in some way, the Arbitrator had erred in her acceptance of the evidence. The Commission has repeatedly reminded practitioners of the requirement in Practice Direction No 6 to clearly and succinctly set out the grounds of appeal and that all submissions must clearly and succinctly address each ground of appeal. The presentation of the issues raised in this appeal was unsatisfactory. ([193])

Did the Arbitrator err in her acceptance of the evidence?

3. The appellant complained that the evidence of Ms Palmer should not have been accepted. Deputy President Wood held that, as submitted by the worker, Ms Palmer’s evidence was not challenged at the arbitration. No objection was taken to the admission of that evidence and no submission made as to why it should not have been accepted. It is not open to a party to allege error on the part of the Arbitrator in failing to deal with an issue not raised. ([197])

(Dick’s Diesel Pty Ltd v Caddaye [2015] NSWWCCPD 68 (Caddaye), [68] applied)

4. The appellant submitted that Ms Palmer’s evidence was unsworn and was hearsay. Deputy President Wood observed that Ms Palmer’s evidence was in written form and was signed by her. This is the procedure adopted by the Commission and it was unnecessary for Ms Palmer to provide sworn testimony. The Commission is not bound by the rules of evidence. There was no logical reason to reject the evidence of Ms Palmer. ([198]–[199])

(Section 354(2) of the 1998 Act applied)

5. The appellant further contended that the Arbitrator could not accept the medical opinions on causation because those opinions were based on incorrect histories. Deputy President Wood concluded that in the light of the Arbitrator’s findings, which were open to her, the appellant’s complaint as to the Arbitrator’s acceptance of the medical opinions was unfounded. ([200]–[207])

Did the Arbitrator reverse the onus of proof?

6. The appellant contended that by taking into account the absence of evidence that there had been a subsequent injury, the Arbitrator had reversed the onus of proof. ([208])

7. Deputy President Wood accepted the worker’s submission that the absence of evidence of a subsequent injury was only one of the factors the Arbitrator took into account when reaching her conclusion. The task before the Arbitrator was to assess the evidence before her. That is, to balance the evidence that tended to support the causal chain of connection between the injury, the pathology identified at the L4/5 level, and the need for the subsequent surgery, against the evidence that did not. The Arbitrator’s observation that there was no evidence of a subsequent injury was just one factor in her consideration of the whole of the evidence that led her to accept the worker’s case. It did not amount to a shifting of the onus of proof from the worker’s legal burden to make out his case. ([209])

Did the Arbitrator provide sufficient reasons for her decision?

8. Putting aside the question of whether the Arbitrator ought to have accepted that evidence, she had clearly identified the steps taken and the reasoning process by which she arrived at her ultimate determination that the injury suffered by the worker on 26 September 2011 involved an injury to the lumbar spine at the L4/5 level. It followed that the appellant’s complaint that the Arbitrator failed to provide sufficient reasons for her decision could not be accepted. ([215]–[216])

(Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117; Divall v Mifsud [2005] NSWCA 447, and Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 applied)

9. This ground of appeal failed. ([217])

Ground 2: Failure to apply the “Aitkin” test

10. At the arbitration hearing, the appellant did not seek leave to cross-examine the worker in respect of the entries in the taxation returns relating to payments to “associated persons” and the appellant put no questions to the worker in respect of those entries. ([220])

11. The appellant’s allegation that the Arbitrator erred in determining that the worker’s actual earnings were an accurate reflection of his ability to earn was based on the false premise that the contrary proposition was argued at the arbitration. The appellant’s submission to the Arbitrator that the worker could earn $980 per week was not based on an argument that the presumption in Aitkin had been displaced by the evidence. It was based on an assertion that for a period the worker actually earned $980 per week post injury, which was clearly not supported by the evidence, as submitted by the worker and as explained by the Arbitrator. ([223])

12. The point raised in this appeal was that there was evidence of payments to “associated persons” which allowed the worker to minimise his actual earnings, presumably by “income splitting”. ([224])

13. The Commission has repeatedly pointed out that arbitrations are not a dress rehearsal and appeals are not a rehearing. It is not open to the appellant to argue that the Arbitrator erred in not dealing with an issue that was never argued before her. ([225])

(Caddaye, [68] applied)

14. Even if it were open to the appellant to raise this issue on appeal, the argument would fail in any event. ([226])

15. Whether actual earnings truly reflect the ability to earn is a question of fact for the trial judge. The Arbitrator followed a proper reasoning process to arrive at her conclusion that she was satisfied that there was no evidence that would shift the prima facie acceptance that the worker’s actual earnings were a true reflection of his ability to earn, in accordance with Aitkin. The appellant had not established error on the part of the Arbitrator in respect of this ground of the appeal and ground 2 of the appeal failed. ([227]–[228])

A further matter

16. In her determination of the claim for weekly payments, the Arbitrator calculated the difference between the worker’s probable earnings but for injury, and his actual weekly earnings. ([229])

17. The amount awarded by the Arbitrator after the first 26 weeks and before 1 January 2013 exceeded the statutory limits. ([232])

18. At the arbitration, both parties were represented by experienced counsel, but neither party submitted to the Arbitrator that she was required to apply the statutory limits to the amount of compensation awarded, and neither party had raised this issue on appeal. ([233])

19. Following receipt of submissions from the parties in response to a Direction issued by Deputy President Wood, the Deputy President found that there was an error of law in the award of weekly payments made by the Arbitrator for the period from 31 May 2012 to 31 December 2012. Deputy President Wood, therefore, revoked the Arbitrator’s determination in respect of that period and re-determined the worker’s entitlements to weekly compensation for that period. The Arbitrator’s Certificate of Determination was otherwise confirmed. ([234]–[239])