Icejade Pty Ltd t/as Ryan's Hotel v Summers

[2012] NSWWCCPD 31

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Icejade Pty Ltd t/as Ryan’s Hotel v Summers [2012] NSWWCCPD 31
APPELLANT:			Icejade Pty Ltd
FIRST RESPONDENT:			Laurelle Summers
SECOND RESPONDENT:		CGU Workers Compensation (NSW) Ltd
THIRD RESPONDENT:		Gallagher Bassett Services Pty Ltd
INSURER:		Hotel Employers Mutual Ltd
FILE NUMBER:			A1-7996/11
ARBITRATOR:	Ms C D’Souza
DATE OF ARBITRATOR’S DECISION:			12 March 2012
DATE OF APPEAL DECISION:			15 June 2012
SUBJECT MATTER OF DECISION:			Disease; deemed date of injury; incapacity; s 16(1)(a)(i) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			On the papers
REPRESENTATION:			Appellant:	Hicksons
First Respondent:	Nikolovski Lawyers
Second and Third Respondents:	Moray & Agnew
ORDERS MADE ON APPEAL:			The Arbitrator’s decision of 12 March 2012 is confirmed. The appellant in the interests of Hotel Employers Mutual Ltd is to pay the costs of each of the respondents to the appeal, as agreed or assessed.

INTRODUCTION

1. This appeal concerns the correct deemed date of injury where the injury consists in the aggravation of a disease under s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act). Specifically, as there is now no dispute that the worker is incapacitated as a result of an aggravation injury, the appeal turns on when the worker became incapacitated. That is, when she became entitled to weekly compensation.

2. The Arbitrator found that, as a result of her injury, the worker became incapacitated on 31 August 2009, having last worked on 30 August 2009. At the arbitration, the appellant’s counsel submitted that the correct deemed date of injury was 2004, though he provided no specific date. On appeal, the appellant has submitted that the correct date is 26 January 2006. For the reasons explained below, the Arbitrator’s finding is not affected by any error and is confirmed.

BACKGROUND

1. The worker, Laurelle Summers, worked as a bar attendant for the appellant employer, Icejade Pty Ltd trading as Ryan’s Hotel, from 1983 to 30 August 2009. Her duties involved repetitive bending, twisting, flexing and rotating her neck. She developed neck pain in about 2005, which increased over time.

2. Ms Summers had x-rays of her cervical spine in July 2005, which revealed degenerative scoliosis and degenerative changes in the form of spondylosis and osteoarthritis. She continued her normal duties, but, on a date not disclosed in the evidence, reduced the number of shifts she worked per week.

3. By August 2009, the worker’s symptoms had spread to include left arm pain and tingling that radiated into her hands and she stopped work because of her symptoms after her shift on 30 August 2009. She saw Dr Mobbs, neurosurgeon, on 26 August 2009, who recommended a cervical discectomy at the C6/7 level, which he performed on 28 September 2009. He performed a fusion (with fixation) on 26 March 2010.

4. Ms Summers claimed weekly compensation for partial incapacity from 1 July 2004 to 31 August 2009 and for total incapacity from 1 September 2009 to date and continuing, and lump sum compensation in respect of a 23 per cent whole person impairment due to her neck condition.

5. The hotel had three insurers:

   (a)   CGU Workers Compensation (NSW) Ltd (CGU) from 10 March 1999 to 10 March 2006;

   (b)   Gallagher Bassett Services (GBS) from 10 March 2006 to 10 March 2009, and

   (c)   Hotel Employers Mutual Ltd (HEM) from 10 March 2009 to date.

6. The insurers disputed the following issues at the arbitration:

   (a) whether Ms Summers had received an injury to her cervical spine within the meaning of s 4(b)(ii) of the 1987 Act;

   (b)     whether she suffered an incapacity as a result of that injury, and

   (c)     the correct deemed date of injury under s 16 of the 1987 Act.

7. The Arbitrator found that, as a result of her duties with the appellant, Ms Summers suffered an aggravation of the disease of cervical spondylosis (s 4(b)(ii)) and that her employment was a substantial contributing factor to that aggravation. She also found Ms Summers was totally incapacitated from 31 August 2009 to date and continuing. These findings have not been challenged.

8. The Arbitrator found the worker’s incapacity commenced on 31 August 2009 and that that was the deemed date of injury under s 16(1)(a)(i) of the 1987 Act. She essentially based this finding on “insufficient medical or other evidence to support a finding of economic incapacity as a result of the work injury prior” to that date (Arbitrator’s decision at [58]).

9. The appellant in the interests of HEM has challenged the Arbitrator’s finding of a deemed date of injury on 31 August 2009. The appeal is opposed by CGU and GBS, who are both represented by the same solicitor. The worker’s solicitors have filed no submissions dealing with the merits of the appeal, but have made brief submissions as to costs.

ON THE PAPERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 provides:

   “(6)   If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

2. The appellant has submitted “there ought to be oral submissions”, but has not explained why that is so. Both Ms Summers and the legal representative for CGU and GBS have submitted that the appeal can be determined on the papers.

3. There are no features about this appeal that warrant an oral hearing. The issue on appeal is a narrow one. The parties have had every opportunity to provide written submissions and (except for Ms Summers) have filed detailed written submissions. I do not believe I would be assisted by oral submissions.

4. Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the respondents that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

THE ARBITRATOR’S REASONS

1. The Arbitrator correctly stated (at [53]) that the incapacity referred to in s 16 must be economic incapacity for which a worker is entitled to weekly compensation. This statement is consistent with appellate authority (P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481 (Alfonzo)).

2. She said that it was clear from the wages material that the worker’s earnings fluctuated over time from 2002, specifically noting an increase in earnings in the financial year ending 30 June 2009 over earnings in comparable periods in 2007 and 2008, and a similar increase in 2006 compared to 2005. Based on this evidence, she was “not persuaded that Ms Summers experienced a consistent decrease in her earnings from 2004 as submitted” ([54]).

3. The Arbitrator added, at [55]:

   “Further, given the evidence recorded in the clinical notes of numerous visits to doctors for non-work related matters, the relatively minor number of visits concerning neck problems and the lack of WorkCover certification of incapacity due to the neck condition despite these visits, and Mr Driver’s evidence that Ms Summers was given time off for both her neck surgery and for travel overseas, I am not persuaded that where Ms Summers did experience reduced earnings it was as a result of her neck condition and not for some other reason.”

4. The Arbitrator observed that the first WorkCover certificate from Dr Lyon, which certified the worker unfit from 13 August 2009, was not obtained until 21 October 2010 (the first WorkCover certificate was in fact issued by Dr Lyon on 20 August 2010). She also referred to evidence from Dr Mobbs that Ms Summers had been able to manage her long-standing neck pain with rest and simple pain medication until two months prior to his examination on 26 August 2009, when he said she had to give up work. As the history recorded by Dr Mobbs (as to when Ms Summers stopped work) was inconsistent with evidence that “firmly establish[ed]” that Ms Summers stopped work from 30 August 2009, the Arbitrator gave little weight to it.

5. She accepted that Ms Summers suffered symptoms in her neck, which gradually increased in severity from about mid-2005, but for the reasons stated (see [18] above), there was “insufficient medical or other evidence to support a finding of economic incapacity as a result of the work injury prior to 31 August 2009” ([58]).

ISSUE IN DISPUTE

1. The issue in dispute is whether the Arbitrator erred in finding the deemed date of injury to be 31 August 2009 instead of 26 January 2006. Rather than properly identifying the grounds of appeal, as required by Practice Direction No 6, the appellant’s counsel has listed five broad topics and made submissions under those headings in which he has alleged that the Arbitrator made various factual errors. That was unsatisfactory. Legal practitioners practising in the Commission are expected to comply with the Commission’s Practice Directions. With regard to appeals, Practice Direction No 6 specifies that the appeal application must state briefly, but specifically, the grounds relied on in support of the appeal.

2. The five general topics listed in the appellant’s submissions, which are identified as “grounds”, are:

   (a)     decrease in earnings between 2004 and 2009;

   (b)     the treating doctors’ notes;

   (c)     the lack of WorkCover medical certificates;

   (d)     Mr Driver’s evidence, and

   (e)     Dr Mobbs’s history.

DECREASE IN EARNINGS BETWEEN 2004 AND 2009

Appellant’s submissions

1. The evidence of the worker’s earnings for the financial years from 2002 to 2009 was as follows:

   (a)     2002                    $8,916

   (b)     2003  $9,302

   (c)     2004  $12,103

   (d)     2005  $7,525

   (e)     2006  $8,915

   (f)      2007  $7,403

   (g)     2008  $7,757

   (h)     2009  $8,612

2. The worker’s evidence was clear that she had reduced her working hours after developing neck pain. She said in her statement dated 31 August 2011, “over the last 4–5 years because of the increasing neck pain and problems I was experiencing, I had reduced the number of shifts I worked each week”. The earnings are supportive of a “decrease [in earnings] although a varied decrease”.

3. Mr Spencer, the appellant’s licensee between 2000 and 2008, confirmed that, after 2004/5, the worker’s shifts reduced from three or four (per week) to one or two (per week). He added that the reduction in the worker’s shifts coincided with a period in which the hotel was being upgraded and younger staff being recruited. This was not inconsistent with Ms Summers needing to reduce her hours due to her neck pain.

4. The earnings demonstrate that, after 2004, and after allowing for CPI increases, the worker’s earnings were down. The significant decrease between 2004 and 2005 is evidence of the worker being off work due to neck pain, among other complaints recorded in the general practitioner’s notes. The increase in earnings in 2006 was not inconsistent with a partial recovery, but was not an increase to the 2004 earnings.

5. The Arbitrator gave too much weight to the evidence of an increase in earnings in 2006 in the face of other evidence available and drew an incorrect inference.

Discussion and findings

1. I do not accept the above submissions.

2. The Arbitrator did not draw any inference from the evidence, but said she was not persuaded that, where Ms Summers experienced reduced earnings, the reduction was as a result of her neck condition and not for some other reason. She based that finding on the matters listed at [55] (see [18] above). Those findings were open on the evidence and disclose no error.

3. Notwithstanding the worker’s evidence, the mere reduction in income in 2005 compared with 2004, without medical evidence with a proper history, diagnosis and opinion, does not support a finding that Ms Summers suffered an incapacity prior to August 2009 that entitled her to compensation. There is no persuasive medical evidence that the reduction in the worker’s income in the financial year ending 30 June 2005 (compared to 2004) resulted from any work injury.

4. While it is true that the Arbitrator did not explain why she did not accept Mr Spencer’s evidence about the reduction in the worker’s hours, on this point, his evidence did not advance the appellant. His evidence was that the reduction in the worker’s hours coincided with a period when the appellant was recruiting younger staff. He gives no support to the suggestion that Ms Summers reduced her hours because of her neck symptoms. Contrary to the appellant’s submissions, Mr Spencer’s evidence is inconsistent with the assertion that Ms Summers reduced her hours because of her neck symptoms and does not support the appellant’s argument.

5. The earnings are far from definitive and I do not accept that the Arbitrator gave too much weight to the increase in earnings in 2006. The records demonstrate, as the Arbitrator observed, that the worker’s income fluctuated over time. There is no explanation for the relatively high earnings in 2004. The worker’s earnings in 2006 were comparable to her earnings in 2002 and 2003, before she developed any neck symptoms and this evidence, together with Mr Spencer’s evidence, significantly undermines the appellant’s position.

THE TREATING DOCTORS’ NOTES

Appellant’s submissions

1. The Arbitrator “has drawn the inference that [Ms] Summers[’s] relatively minor number of attendances for neck problems was a factor leading her to find that she was not persuaded that [Ms] Summers did experience reduced earnings due to her neck condition prior to August 2009” (appellant’s submission, at [1] under Ground 2 on page 10). The evidence leads to an inference that is opposite to that drawn by the Arbitrator.

2. The appellant relied on the following entries in the medical records:

   (a)     27 July 2005, Ms Summers was referred for x-rays of her cervical spine, which revealed degenerative changes with osteoarthritis;

   (b)     17 November 2005, medication was prescribed for Ms Summers for neck pain;

   (c)     25 January 2006, “Can’t sleep in agony [with] neck pain feels pale & weak”;

   (d)     4 October 2006, “neck pains & feeling sick not up to work been having physio and accupuncture [sic]”;

   (e)     21 February 2007, “neck pains again knots, lumps & headaches. Not taking anything at all – chiropract [sic], physio, massage, accupuncture [sic] in agony all the time – last x-ray 2 ½ years ago”, and

   (f)      18 March 2008, Dr Jolliffe referred Ms Summers to Dr Day for an opinion on her neck. The referral letter said she had “L sided neck and shoulder pain and has a C6/7 area of osteoarthritis which is impinging on the canal”.

3. Reliance was also placed on the following medical evidence:

   (a)     Dr Day, neurosurgeon, reported on 13 May 2008 that Ms Summers had had difficulties (with neck pain) for a number of years. Massage and physiotherapy gave no consistent relief. Dr Day diagnosed “mechanical neck pain more likely related to cervical spondylosis”;

   (b)     Dr Mobbs reported on 26 August 2009 that Ms Summers had had “annoying neck pain to [sic] many years. She has been able to manage this with simple pain medication and rest”;

   (c)     Dr Mobbs reported on 25 September 2009 that “[e]ssentially she has had enough of her pain. She has tried to put up with her pain over the last 3–4 years and has sought every conservative management option available”;

   (d)     Dr Lyon reported on 14 March 2011 that he first saw Ms Summers for neck pain on 25 April 2005 “when she complained of left arm and chest pain” and that ironing aggravated her symptoms;

   (e)     Dr Gray, orthopaedic surgeon qualified by CGU, reported on 16 May 2011 that Ms Summers had “experienced a ‘bad neck’ for about five years before requiring  cervical surgery in 2009”. After seeing Dr Day, about two years after the onset of symptoms, Ms Summers kept working but the situation “slowly deteriorated”. She “then started to take time off work because of the symptoms and found that she specifically had difficulty lifting”, and

   (f)      Dr Deveridge, specialist qualified by the worker’s solicitor, recorded in his report of 14 June 2011 (wrongly referred to as 14 November 2011 in the appellant’s submissions) a history that Ms Summers had been unable to lift shopping bags for four years and that, for the last couple of years of work, she could not open twist top bottles at the bar.

4. The inference drawn by the Arbitrator was clearly wrong. It was not the number of attendances (on doctors) that was important, but the nature of the complaints made and the response given in the form of treatment or investigations undertaken. The need for treatment in the form of acupuncture, massage, physiotherapy, medication, rest, the referral for CT scans and, eventually, the referral to Dr Day in 2008 were all overwhelmingly supportive of the inference that Ms Summers was suffering significant symptoms in this period and that she was likely to be forced to take time off work and be unable to work more than the number of shifts that she was offered between 2005 and 2009.

Discussion and findings

1. The above submissions miss the point. It is not disputed that Ms Summers complained of neck pain since 2005, though her first complaint of neck pain to Dr Lyon (or a doctor at his practice) was on 27 July 2005, not on 25 April 2005, as Dr Lyon suggested in his report of 14 March 2011. The Arbitrator had to determine the date of incapacity, that is, the date on which Ms Summers was entitled to compensation, not the date of first complaint of symptoms.

2. The Arbitrator observed that there were a “relatively minor number of visits” to doctors about neck symptoms and “numerous visits” for non-work related matters. Though that observation was correct, it was not determinative of the issue before her and she did not suggest that it was, it was relevant to the issue in dispute and one that she was entitled to consider in her assessment of the claim.

3. What is more important is that, as noted in the submissions by the solicitor for CGU and GBS, neither party has referred to any evidence of Ms Summers having been certified unfit because of her neck injury until the WorkCover certificate from Dr Lyon dated 20 August 2010, which certified her unfit from 13 August 2009.

4. Counsel for the appellant placed particular importance on the entries in the clinical notes for 25 January 2006 and 4 October 2006, emphasising that it was not the number of attendances but the nature of the complaints made that was important. However, counsel has not taken the Commission to any medical evidence that Ms Summers was unfit for work at that time because of a work injury and actually lost income because of that injury.

5. I also note that counsel for the appellant, who also appeared at the arbitration, made no reference to the clinical notes for 25 January 2006 and 4 October 2006 in his submissions to the Arbitrator. A party is bound by the conduct of his or her case at arbitration (University of Wollongong v Metwally (No 2) (1985) 60 ALR 68, at 71 (Metwally)) and it is not open to argue on appeal that an Arbitrator has erred in failing to refer to evidence to which neither party drew attention (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 (Bell)). I raise this point in passing, but have not based my decision on it and have considered all of the appellant’s submissions.

6. The need for treatment, and the fact that Ms Summers had acupuncture and other forms of conservative treatment prior to August 2009, is of no consequence to the issue the Arbitrator had to determine. It does no more than establish that she had symptoms in that period, not that she suffered an incapacity that entitled her to compensation.

1. Dr Deveridge’s evidence provides the appellant with no support. Whether Ms Summers was able to lift shopping bags and open twist top bottles is not determinative of whether she had an incapacity in the sense discussed in Alfonzo.

LACK OF WORKCOVER MEDICAL CERTIFICATES

Appellant’s submissions

1. The first WorkCover certificate is dated 20 August 2010. Ms Summers made no report of injury until 2010. Given that the Arbitrator accepted that Ms Summers suffered an injury to her neck and was symptomatic from at least 2005, and that that pain related to her work, it was inconsistent – and an error – to “draw an inference that this necessarily supported the fact that [Ms Summers] had not suffered any incapacity prior to that time” (appellant’s submissions at page 11 under Ground 3 at [2]).

Discussion and findings

1. The Arbitrator drew no inference of the kind referred to in the preceding paragraph. She concluded that there was insufficient medical or other evidence to support a finding of economic incapacity as a result of the work injury prior to 31 August 2009 ([58]). That conclusion was open on the evidence and is consistent with the lack of contemporaneous evidence prior to August 2009 to the effect that Ms Summers was unfit because of her neck symptoms and that she suffered an economic loss as a result of a work injury as opposed to some other reason. The Arbitrator’s conclusion was open to her and discloses no error.

2. Her conclusion is also supported by the lack of evidence from Dr Lyon, one of the worker’s treating general practitioners, that any incapacity from the injury commenced before August 2009.

MR DRIVER’S EVIDENCE

Appellant’s submissions

1. Mr Driver, the hotel’s current licensee, said, and it is not disputed, that Ms Summers was always given time off for many overseas holidays and for her neck surgery. This evidence is supportive of Ms Summers having not provided medical certificates for time off or making a claim until she did.

2. The Arbitrator’s drawing of an inference that Mr Driver’s evidence was supportive of Ms Summers not needing to take time off work due to pain was not available and an error of fact. Ms Summers saw a neurosurgeon (Dr Day) in 2008 who told her that she may come to surgery, which she did. The overwhelming inference from this evidence is that the worker’s “condition in her neck had reached a point that it would be unlikely [sic] that she would need time off work as she stated particularly given her evidence that was accepted by the Arbitrator that the work was [sic] she was performing was heavy” (appellant’s submissions at page 11 under Ground 4 at [3]).

3. I have assumed, in favour of the appellant, that the reference to “would be unlikely” in the preceding paragraph should be read as “would be likely”.

Discussion and findings

1. I do not accept the above submissions.

2. The Arbitrator summarised Mr Driver’s evidence at [31] and referred to it (at [55]) as one of the reasons she was not persuaded that, where Ms Summers experienced reduced earnings, it was as a result of her neck condition and not for some other reason.

3. Mr Driver’s evidence that Ms Summers was always given time off for overseas holidays and for neck surgery does not establish that Ms Summers was incapacitated in either 2004 or from January 2006, and does not support the appellant’s case. Even if it were accepted that it provides an explanation for why Ms Summers did not provide medical certificates before 2010, it does not establish that, as a result of her injury, she suffered an economic loss prior to August 2009 and it does not fill in the gap in the medical evidence.

4. In addition to the evidence from Mr Driver noted at [47] above, he also said, consistent with the worker’s evidence, that she “had never previously recorded an injury or requested light duties” prior to ceasing work in August 2009. This evidence is consistent with Ms Summers suffering no incapacity until August 2009 and supports the Arbitrator’s conclusion, which was open to her and discloses no error.

5. The fact that Ms Summers saw a neurosurgeon in 2008 is of limited, if any, relevance to the question of incapacity. Of more significance is the fact that Dr Day did not suggest that she had an incapacity at that time and this tells heavily against the appellant’s argument. While it may well have been likely that Ms Summers would need to stop work and have surgery at some time, that did not happen until her condition deteriorated in or about August 2009.

DR MOBBS’S HISTORY

Appellant’s submissions

1. The Arbitrator said (at [46]) that she found the evidence of Dr Lyon and Dr Mobbs to be persuasive. This evidence is strongly supportive of Ms Summers suffering neck pain for a considerable time, that she was, at times, in agony, and that she had various forms of treatment and needed to rest.

2. The Arbitrator did not say why she found the history recorded by Dr Mobbs in his report of 26 August 2009 was inconsistent.

3. Given that the Arbitrator was generally accepting of Dr Mobbs’s views, and given the weight of the contemporaneous evidence available from the treating general practitioner and other doctors in the period, the Arbitrator erred in fact in her conclusion and in drawing an inference that was not available.

4. The evidence supports a finding that, at least from 25 January 2006, when Ms Summers presented to Dr Lyon, she was incapacitated for her pre-injury employment to the extent that it was necessary for her to reduce her hours of employment from three to four shifts a week.

Discussion and findings

1. As previously noted, there is no dispute that Ms Summers has had neck pain since 2005. The issue before the Arbitrator was when she first suffered an incapacity in the sense described in Alfonzo. The Arbitrator was entitled to place considerable weight on the evidence from Dr Lyon, one of the treating general practitioners, and Dr Mobbs, the treating specialist. The relevance of the treatment Ms Summers received before August 2009 has been dealt with at [43] above.

2. The Arbitrator correctly observed that the history recorded by Dr Mobbs was inconsistent with other evidence that “firmly established” that Ms Summers gave up work from 30 August 2009. This was clearly a reference to the doctor’s history that “over the last two months however she has had to give up work”. The reference to the “last two months” was a reference to the two months prior to 26 August 2009. If the doctor was suggesting that Ms Summers had stopped work in July or June 2009, that was incorrect, because the documentary evidence confirmed that Ms Summers worked up to and including 30 August 2009.

3. The lack of any relevant incapacity as a result of neck symptoms prior to August 2009 is consistent with the history recorded by Dr Mobbs in his report of 26 August 2009, when he said that Ms Summers presented with “a long background history of annoying neck pain, and more recently two month history of severe left sided arm pain, numbness and tingling that radiates into the hands” (emphasis included in original). This history is consistent with Ms Summers having continued her normal duties until the end of August 2009 and with a significant deterioration in her condition in the months leading up to her stopping work.

4. The submission that the worker suffered an incapacity from at least 25 January 2006, when she saw Dr Lyon and complained of being unable to sleep because of neck pain and that she felt “pale & weak”, is unsupported by any persuasive medical evidence and is unsustainable. In his report of 14 March 2011 and his WorkCover certificate of 20 August 2010, Dr Lyon made no mention of Ms Summers being incapacitated by her neck symptoms prior to August 2009. This is consistent with the Arbitrator’s observation that there was “insufficient” medical or other evidence to support a finding of economic incapacity as a result of the work injury prior to 31 August 2009.

5. I also note that the submission that Ms Summers was incapacitated from 26 January 2006 is inconsistent with the submission counsel made on behalf of the appellant at the arbitration. At the arbitration, counsel submitted that there was a “seamless period of incapacity”, based on Ms Summers having reduced the number of shifts she worked, which commenced “somewhere around about 2004” (T10.22) and the deemed date of injury was 2004. He made no reference to the clinical notes of 25 January 2006 or 4 October 2006.

6. Parties are bound by the conduct of their case at the arbitration and will not normally be permitted to raise new arguments for the first time on appeal (Metwally). It is not open to argue that an Arbitrator erred in failing to deal with an argument never put (Bell). Notwithstanding that the appellant has advanced a completely different argument on appeal, and referred to evidence not drawn to the Arbitrator’s attention, I have considered the new argument and, for the reasons explained, reject it.

7. The Arbitrator’s conclusion about the evidence from Dr Mobbs was open to her and involves no error.

OTHER MATTERS

1. The parties also made submissions about the correct deemed date of injury for the claim for lump sum compensation. Those submissions only became relevant if the appellant succeeds with its claim that the correct deemed date of injury is 26 January 2006. As that submission has not been upheld, it is not necessary to deal in any detail with the submission about the correct deemed date of injury for the claim for lump sum compensation.

2. It is sufficient to note that, in the circumstances of this case, the Arbitrator’s finding that the same deemed date of injury applied to the lump sum claim as applied to the claim for weekly compensation was consistent with Alfonzo (at [32]).

CONCLUSION

1. Consistent with the evidence and the meaning of incapacity discussed in Alfonzo, the Arbitrator found that the worker’s incapacity occurred when she stopped work at the end of August 2009 and, under s 16(1)(a)(i), the deemed date of injury is 31 August 2009. It follows that the appellant has not established that the Arbitrator’s decision is affected by any error of fact and her decision is confirmed.

DECISION

1. The Arbitrator’s decision of 12 March 2012 is confirmed.

COSTS

1. The appellant in the interests of Hotel Employers Mutual Ltd is to pay the costs of each of the respondents to the appeal, as agreed or assessed.

Bill Roche

Deputy President  

15 June 2012

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE