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Silent on witnesses 21 WCMS 4

Maricic v Medina Serviced Apartments PL [QBE] [2007] NSWWCCPD 196. Snell ADP. 17.09.07.

An arbitrator referred back injury to AMS but made an award respondent in respect of neck and left shoulder, after the 47yo woman cleaner fell in June 2004.

Snell ADP said [20]: "The appellant worker submits the nature of the arbitrator's determination is that 'the injuries determined to have been suffered as a result of the appellant's workplace accident have been finally and bindingly determined'.

"Reference is made to both the decision in P & O Ports Limited v Hawkins [2007] NSWWCCPD 87, and the decision of the High Court in Licul v Corney (1976) 50 ALJR 439. I accept this submission.

"It is consistent with the reasoning in Hawkins. It is the nature of the arbitrator's decision that the appellant worker could no longer succeed in recovering compensation of any description, on the basis of symptoms in his neck and left shoulder, on the basis they resulted from the pleaded incident.

"This decision on 'injury' is final and binding, and should not be characterized as 'interlocutory'. Thus s 352(8) and Regulation 200B are not an impediment to the granting of leave."

Appeal process was delayed.

Snell ADP: "The sequence of events leading to the application to appeal being lodged outside the 28 day period specified in s 352(4) of the 1998 Act is set out in the submissions accompanying the appellant worker's application to extend time.

"The appeal was initially lodged on 18 April 2007, within 28 days of the arbitrator's decision.

"However it was rejected by the Registrar, due to failure to attach a copy of the certificate of determination, in contravention of Rule 16.2(4) of the WCC Rules 2006.

"It was then re-lodged, with this deficiency corrected, on 23 April 2007. Again it was rejected, this time on the basis the certificate of reasonable prospects was unsigned. It was ultimately lodged successfully, on 27 April 2007."

Later, at [26]: " 'Exceptional circumstances' are required to enliven the discretion to extend time. The phrase is not defined. I have previously held that, where an appellant lodged its application to appeal out of time, due to administrative error in calculating the time in which an appeal could be brought, this was insufficient to constitute 'exceptional circumstance': Dept of Corrective Services v Buxton [2007] NSWWCCPD 55.

"This was consistent with the approach taken by Handley ADP in Dept of Education & Training v Mekhail [2006] NSWWCCPD 1. In that matter appeal documents went to the filing section of the appellant's solicitors, but were not filed immediately, resulting in the appeal being out of time by a matter of days.

"Handley ADP described this as 'administrative error', and held it did not constitute 'exceptional circumstances'.

"However I found 'exceptional circumstances' did exist, where an appeal was initially lodged out of time, due to misapprehension as regards the date of the Certificate of Determination: Silk v SRA [2006] NSWWCCPD 79.

"I recently found 'exceptional circumstances' to exist, where an appeal, initially in time, was rejected due to failure to attach a copy of the certificate of determination, the appellant having declined to attach an unsealed copy of that certificate. The Commission had failed, inadvertently, to seal it: Forests NSW v Hancock No 2 [2007] NSWWCCPD 191.

"In Kaibau v Gillespie's Produce & Packing PL [2006] NSWWCCPD 168, Roche DP, extending time where an appeal, initially filed in time but rejected for procedural reasons, was then lodged out of time, said: '...The appeal raises important issues that are strongly arguable. In my opinion there will be a substantial injustice to the appellant worker if leave to appeal is refused'."

Snell ADP extended time.

On the injury findings, the acting deputy president noted the arbitrator's reference to the range of lay and medical evidence.

Infra [52], the acting deputy president said: "The arbitrator did not say that he rejected the evidence of any of these lay witnesses.

"However the reasons are effectively silent as regards the significance ... of this lay evidence. The arbitrator's reasons suggest the gap in complaint of neck and shoulder symptoms, to Dr Todorovic, was a factor in his preference for the evidence - I infer medical evidence - of the respondent employer.

"Acceptance or rejection of these lay witnesses was required, to determine whether there was in fact a significant delay in the onset of neck and left shoulder symptoms after the fall.

"Accordingly, in my view the first two grounds of appeal are made out, that the arbitrator failed to consider or properly consider the evidence of Ms Citlak, together with the appellant worker's husband and daughter. This failure has the capacity to affect the result."

Award revoked, matter remitted to another arbitrator, employer to pay costs of appeal.

A: Petrovich Accident Lawyers. R: QBE In House Legal.

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