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Previously unnotified matters

Chami v Demetrios &c [2011] NSW WCC 142. Mr Perrignon.

Addressing 1998 Act section 289A, particularly sub-s (4) " ... a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so":

26. The factors to be taken into account when determining whether to exercise the discretion to grant leave were considered by the Commission in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488.

In that case, the worker claimed compensation for injury to his fingers in the course of his employment as a cleaner.

In a notice issued pursuant to section 74, the insurer had indicated that it would dispute that hisemployment contributed substantially to the injury, within the meaning of section 9A of the 1987 Act. It did not dispute that the injury had occurred as alleged.

However, attached to the notice was an investigator’s report, which put in issue whether the injury occurred as alleged.

The issue of injury (as distinct from substantial contribution) was raised in the Reply, and again at teleconference, though formal application for leave to dispute injury was not made until the final hearing, after the first hearing had been adjourned.

27. In that case, the arbitrator granted leave to dispute injury, after considering the following factors: (a) the difficulty or complexity to which the unnotified issues gave rise; (b) the time when the insurer first gave notice of its desire to contest unnotifedissues; (c) the degree to which the insurer had otherwise fulfilled its statutory obligation tonotify the worker of its decision to dispute liability; (d) any prejudice to the worker occasioned by granting leave, and (e) any other relevant matters arising from the circumstances of the case.

28. The decision to grant leave was affirmed on appeal. Roche DP observed [at 48]:

“To those matters I would add the following observations: (a) a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved; (b) any insurer seeking to dispute an unnotified matter is seeking to have a discretion exercised in its favour and, accordingly, must act promptly to bring the matter to the attention of the Commission and all other parties; (c) any unreasonable or unexplained delay in giving notice of an unnotified matter wil lbe relevant to the exercise of the discretion; (d) in exercising its discretion the Commission may have regard to the merit and substance of the issue that is sought to be raised; (e) in assessing prejudice to the worker it will be significant to consider when and in what circumstances the worker was first made aware of the unnotified issue that issought to be raised; (f) though it will be relevant to the exercise of the discretion to keep in mind that the Commission must act according to equity, good conscience and the substantial merits of the case, those matters will not be determinative, and (g) the general conduct of the parties in the proceedings will also be relevant to theexercise of the discretion.”

29. These principles have since been applied by Snell A-DP in The Office of the Public Guardian v Manning [2008] NSWWCCPD 94 and Oxford Art Supplies & Books Pty Limited v Gardiner (No 2) [2008] NSWWCCPD 122. In determining whether to exercise the discretion to grant leave to dispute injury to the cervical and lumbar spine in this case, it isappropriate to have regard to each of the factors identified in Mateus.

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