Kathia v The Frank Whiddon Masonic Homes t/as Whiddon Group - [2018] NSWWCCPD 22

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Kathia v The Frank Whiddon Masonic Homes t/as Whiddon Group [2018] NSWWCCPD 22
APPELLANT:	Ishrat Kathia
RESPONDENT:	The Frank Whiddon Masonic Homes t/as Whiddon Group
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-5095/14
ARBITRATOR:	Ms E Beilby
DATE OF ARBITRATOR’S DECISION:	22 November 2017
DATE OF APPEAL DECISION:	29 May 2018
SUBJECT MATTER OF DECISION:	Reconsideration; s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; fresh evidence; application of Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482; absence of contemporaneous evidence of injury
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Self-represented
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination dated 22 November 2017 is confirmed.

INTRODUCTION

This appeal challenges a decision of a Commission Arbitrator refusing, pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), to reconsider a Certificate of Determination dated 25 February 2015.

BACKGROUND

Ms Kathia was employed by the respondent, Whiddon Group, as a registered nurse, until she ceased employment on 6 July 2012. She worked at the respondent’s nursing home.
On 9 April 2010, Ms Kathia was acting assistant director of care services. She claims that on this day she sustained several injuries when she bent over to pick up a phone she had dropped. She suffered an accepted injury to her lumbar spine and an accepted consequential gastrointestinal condition. She also claimed to have suffered an injury to her neck, right shoulder and right arm.
On 20 June 2012, the parties entered a complying agreement providing for settlement of 7% Whole Person Impairment (WPI) in respect of the lumbar spine.
On 3 July 2013, the respondent’s insurer, Allianz, issued a notice pursuant to s 74 of the 1998 Act declining her claim in respect of the neck. That decision was confirmed in a further s 74 notice dated 16 August 2013. Allianz relied on the report of Dr Robert Breit, medico-legal orthopaedic surgeon, dated 12 December 2012, which only supported complaint of lumbar spine pain as a result of employment.
On 14 February 2014, Ms Kathia made a claim in respect of 29% WPI. That assessment comprised of a further 5% WPI of the lumbar spine, 14% WPI of the cervical spine and 5% in respect of the consequential gastrointestinal tract condition.
In December 2014, the parties entered a second complying agreement providing for settlement of 11% WPI of the lumbar spine with credit for the previous settlement of 7% WPI of the lumbar spine.
On 26 September 2014, Ms Kathia lodged an Application to Resolve a Dispute (the Application) in the Commission seeking lump sum compensation and medical expenses. The injury is described as lower back, neck and secondary upper and lower gastro-intestinal track. The injury is described to have occurred on 9 April 2010, in the following terms:
“Carry patient files with left arm and office phone on top of the files. The office phone fell down to the floor and underneath a table. The Applicant pushed the table out of the way and bent down to pick up the phone and immediately felt pain in the lower back, radiating down to the right leg and to the neck.
Secondary injury to the upper and lower gastro-intestinal tract from consumption of pain medication to treat the subject injuries.”
On 17 October 2014, the respondent lodged a reply to the Application relying on the s 74 notices.
On 4 February 2015, the matter proceeded to a conciliation and arbitration hearing before Arbitrator Beilby. The issues in dispute concerned liability for injury to the neck only.
On 25 February 2015, Arbitrator Beilby delivered an extempore decision in favour of the respondent in respect of the claim for injury to the neck. The accepted claim in respect of the gastro-intestinal condition was remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of WPI.
On 30 March 2015, Ms Kathia attended Dr Paul Myers, AMS. On that same day, Dr Myers issued a Medical Assessment Certificate (MAC) certifying Ms Kathia with 2% WPI of the upper digestive system and 0% WPI for the lower digestive system.
On 12 May 2015, Ms Kathia appealed against the MAC. On 30 October 2015, the appeal was struck out due to the decision in Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250. However, the appeal was restored following changes to legislation in March 2016. A Medical Appeal Panel confirmed the MAC on 2 June 2016.
On 7 July 2016, the Commission issued a Certificate of Determination certifying Ms Kathia to have a whole person impairment of 13%.
On 9 June 2017, Ms Kathia made an application pursuant to s 350 of the 1998 Act to reconsider the decision of 25 February 2015 in respect of the finding of no injury to the cervical spine. Ms Kathia sought to rely on fresh evidence in support of the Reconsideration Application, namely reports of Dr Sheikh Habib, orthopaedic surgeon, dated 2 June 2017 and Dr Manku, general practitioner, dated 5 June 2014. (There is some confusion as to the date of Dr Manku’s report. It is unclear whether it is dated 5 June 2014 or 5 June 2017. This issue is addressed below.)
On 22 November 2017, Arbitrator Beilby issued a Certificate of Determination declining to reconsider the decision of 25 February 2015.
Ms Kathia appealed Arbitrator Beilby’s decision of 22 November 2017.

ON THE PAPERS

Section 354(6) of the 1998 Act 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.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties 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.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

Ms Kathia

Ms Kathia prepared a statement, dated 10 October 2013. In her statement, she describes the incident of 9 April 2010. She states that while walking to a colleague she held a stack of patient files and the office phone in her left hand and her right hand was free. She dropped the office phone and it went underneath a table. She pushed the table out of the way and bent down to pick up the phone. She claims that she felt immediate pain in her back. She claims that the next morning she noticed pain “not only in [her] lower back but also in [her] neck”. That pain was radiating into her right shoulder and arm. She claims injury to her neck, amongst other locations including right shoulder and right arm.
Ms Kathia did not return to work after the incident of 9 April 2010. Her employment with the respondent was terminated on 6 July 2012.
Ms Kathia prepared a further statement, dated 27 January 2015. In this statement, Ms Kathia states that she recalled complaining to “all the treating doctors of pain in the neck. The common response I would receive was ‘I am only treating you for the back as the referral is only for the back.’” She recalls asking her physiotherapist, who she commenced seeing after 16 April 2010, to treat her neck and right shoulder. She states that the physiotherapist gave her the same response – “he could only treat my lower back as that was the only body part the referral from my doctor noted”. She then gave up making further “noise about the neck and right shoulder pain as it was not as bad as the lower back.” She adds that “no treating doctor was taking my complaints of neck and right shoulder pain seriously.”
Ms Kathia claims that the pain in her neck and right shoulder was “light and manageable” during the 12 months after the incident, because she was taking strong pain killers and anti-inflammatories for her lower back. However, due to gastro-intestinal problems she cut back on the pain medication and as a result the neck and right shoulder pain became worse.
Ms Kathia states that she visited family in Pakistan for about 6 months, from December 2011 to May 2012, during which time she attended on the local general practitioner Dr Asif. She claims she complained to Dr Asif of lower back, neck and right shoulder pain. On her return to Australia she asked Dr Manku for a nerve block injection to her neck, but Dr Manku referred her to Dr Habib.
Ms Kathia lists a series of injuries and disabilities, including pain in the neck, “[s]tiffness and restricted movement in neck” and “[p]ain radiating from neck into right shoulder and arm.”

Dr Manku

In evidence are the clinical notes of Dr Manku, Ms Kathia’s treating general practitioner. Ms Kathia attended on Dr Manku immediately after the incident reporting symptoms in the lower back. She subsequently underwent treatment for symptoms in the lower back and gastrointestinal complaint, due to medication taken for lower back pain.
The first reference to right arm pain appears on 6 June 2012, when Dr Manku records in his clinical notes “on 1/6/12 still having pain right arm and right leg. Saw Dr in Pakistan and had physio.” The next reference appears on 23 July 2012 when Dr Manku records “c/o pain right shoulder. told not associated with back.”
On 29 November 2012, Dr Manku refers Ms Kathia to Dr Habib. He records the following presenting problem: “had back injury at work not getting better wants opinion and rx”. The clinical notes for that day record: “finding hard to go to far away places.wants off tomorrow bacause [sic] in pain,Letter created – re. Referral Letter1.”
On 3 December 2012, Dr Manku again refers Ms Kathia to Dr Habib. He records the following presenting problem:
“had back injury at work not getting better wants opinion and rx also c/o pain in neck and rigt [sic] arm since long time but mentioned to me on 6/6/12 after coming back from Pakistan,” (emphasis in original)
Dr Manku’s clinical notes for 3 December 2012 record “still having pain in neck and right shoulder blade”. He records the examination of the bilateral neck: “not red, not swollen, not hot, tender, restricted ROM. also tender right shoulder and decreased abduction.”
On 4 December 2012, Dr Manku records in his clinical notes “having pain in right arm and right side of neck, says was scared to say about it because she thought she will lose her job.” There are several subsequent clinical entries regarding symptoms in the neck.
In evidence are also several WorkCover NSW Medical Certificates issued by Dr Manku, from 12 April 2010 until December 2012. The early certificates record “soft tissue injury lower back with radiculopathy”. However, it is not until 6 December 2012 that there is any reference to the neck. In the medical certificate of 6 December 2012, Dr Manku records the diagnosis as: “soft tissue injury lower back with radiculopathy, pain worse now also c/o neck pain and right shoulder pain.”
In evidence is a report by Dr Manku, dated 15 May 2015, where he records neck pain. He records that he examined Ms Kathia every two weeks since the 9 July 2013, since Ms Kathia was diagnosed with chronic gastritis. He records a series of symptoms, including neck and right shoulder and arm. He adds:
“In fact her initially less perceived pain in right side of neck and right shoulder soon became severe and she started complaining about it forthwith on regular basis.
In my opinion her right neck and shoulder pain is related to the same injury as the way she picked up the phone subscribes to the same as there was no such pre-existing condition.”
In evidence is a report by Dr Manku, undated, which refers to pain in the neck radiating to the right arm.

Dr Abraszko

On 23 July 2010, Ms Kathia attended on Dr Renata Abraszko, neurosurgeon and spinal surgeon, following a referral from Dr Manku. No complaint of neck or right arm appears in that report. Dr Abraszko does not record complaint of neck symptoms until 7 February 2013, despite attending on Dr Abraszko on several occasions from July 2010. In his report of 7 February 2013, Dr Abraszko records “… neck pain radiating to her right arm to the level of the right hand”. He adds:
“Her past history of her neck pain, back in 10th April 2010, she was unfit from work & did not go to the doctors to see what the problem was. Since then the neck pain has continued & she has been taking Panadol for it.”
Dr Abraszko records that on examination there were painful movements of her neck to the right side. He adds an MRI of the cervical spine revealed disc protrusion compressing slightly C6 right nerve root.
Ms Kathia continued to attend on Dr Abraszko. In her report of 22 April 2014, Dr Abraszko records that “the neck pain is due to c5/C6 disc protrusion”. These injuries were said to be “consistent and are caused by the work related incident.” Dr Abraszko added that Ms Kathia’s clinical condition has arisen as a result of “the nature and conditions of employment ([b]ending, twisting, lifting) and also as a result of specific event at work – April 2010”. She assessed Ms Kathia with 15% WPI of the cervical spine and 7% for the lumbar spine, using the Combined Values Chart that resulted in 21% whole person impairment.

Dr Papatheodorakis

On 23 March 2011, Ms Kathia attended on Dr G Papatheodorakis, occupational medicine and injury management consultant, at the request of the insurer. In his report dated 23 March 2011, Dr Papatheodorakis records that Ms Kathia sustained a soft tissue injury to her lower back on 9 April 2010. He does not record any symptoms in the neck or right shoulder.

Dr Salmon

Ms Kathia attended on Dr Daryl Salmon, pain specialist, on 25 August 2011 following a referral by Dr Abraszko. In a report dated 31 August 2011, Dr Salmon provides some advice on pain management but does not refer to any complaint of symptoms in the neck or shoulder.
Ms Kathia attended on Dr Salmon again on two further occasions, on 21 December 2011 and 8 October 2012. In his two subsequent reports, Dr Salmon does not refer to any complaint of symptoms in the neck. However, in his report of 8 October 2012, Dr Salmon records “[s]he also reported having right shoulder dysfunction.”

Dr Scougall

At the request of her then legal representative, Ms Kathia attended on Dr J Scougall, medico-legal orthopaedic surgeon, in respect of injury to her lumbar spine. In his report of 22 November 2011, Dr Scougall recorded that Ms Kathia had mild symmetric restriction of all ranges of movement in her neck. That comment was not further evaluated in the report.

Dr Habib

Ms Kathia attended on Dr Habib, orthopaedic surgeon, following a referral by Dr Manku. In evidence is a report from Dr Habib to Dr Manku, dated 4 December 2012. In that report, Dr Habib records a history of neck pain radiating in the right arm soon after the incident on 9 April 2010. He records that the prescription medication for the back pain kept the neck/arm symptoms bearable, but over the last year she has noted a steady increase in the neck and right arm symptoms.
In Dr Habib’s second report, dated 18 April 2013, he records a history of neck pain and right upper limb symptomology. He opined that Ms Kathia suffered from moderately severe cervical and lumbar discopathics with radicular involvement.

Dr Breit

In evidence are the medical reports of Dr Breit, medico-legal orthopaedic surgeon, qualified by the respondent. In his report of 12 December 2012, Dr Breit records that Ms Kathia complains of pain in the neck and arm. Ms Kathia claimed this pain was present on the same day of the incident. He records that on examination there was tenderness in the right side of the neck and restricted movement. He accepted ongoing complaint of pain to the back. He then refers to complaint of pain in the neck and right arm and states that “it is not the mechanism of injury that one would consider likely to produce any such symptoms at all”.

Dr Mastroiani

On 29 October 2013, Ms Kathia attended on Dr T Mastroianni, medico-legal consultant occupational physician, qualified by her then legal representative. In a report dated the same, Dr Mastroianni recorded a history of neck complaint to Dr Abraszko after a year of pain management for the back. He noted Dr Abraszko recommended neck surgery. Dr Mastroianni records:
“Mrs Kathia states that she mentioned the neck pain to her doctor but the doctor concentrated on her back and prescribed medication. She said that whilst on the medication her neck pain was not a major problem and the main/severe pain was in the back and right leg.”
Dr Mastroianni records that Ms Kathia states her “neck is sore all the time. Neck pain varies in intensity for no particular reason and aggravated with activities generally.” She complains of “constant right arm pain”. The neck and arm symptoms were controlled with medication until last year, being 2012.
Dr Mastroianni further records:
“In my opinion as there is degenerative disc disease in the neck and back her flexing and bending under a table to get the telephone that she dropped whilst holding a folder in the left arm could have caused both the neck and back symptoms.
The main problem appears to have been the back but with time the neck pain and right arm brachalgia has increased and become the more prominent problem.
With regard to causation in my opinion, on the balance of probabilities and possibilities, it is more probable than not that she sustained both the neck and back injury in the same incident.”
He acknowledges that this complaint of pain has not been documented but said he has “no reason to disbelieve [Ms Kathia] who presents in a genuine manner.” He added, “[w]hether liability is accepted will depend on whether one accepts the history that [Ms Kathia] gives”.
Dr Mastroianni records that on examination he found tenderness and restricted movement in the neck and back. He diagnoses Ms Kathia with a cervical disc lesion, amongst other things. He assessed her to have a 24% whole person impairment, comprising of 14% whole person impairment in respect of the cervical spine and 12% wholes person impairment in respect of the lumbar spine.

Other evidence

In evidence is the injury claim form dated 12 April 2010. The form does not record injury to the neck or right upper extremity/shoulder.
In evidence is an MRI report of the cervical spine by Dr Denise Lee, dated 4 January 2013. That report records disc-osteophyte complex at C5/6 with mild to moderate central canal stenosis and moderate to severe right exit foraminal stenosis. There is an impingement of the right C6 nerve root.

NEW EVIDENCE

In support of her Reconsideration Application Ms Kathia sought to have admitted two reports, namely, Dr Manku’s report of 5 June 2014 and Dr Habib’s report of 2 June 2017. Arbitrator Beilby declined to admit these reports for reasons discussed below. As these reports are relevant to the appeal, they have been briefly summarised below.

Dr Manku

Dr Manku’s report of 5 June 2014, is in very similar terms to her report of 15 May 2014. He records that Ms Kathia attended his clinic again two days after the incident and “complained of pain in her neck, right shoulder and right arm”. She records that the pain management specialist administered various medications for the lower back, right leg, neck, right shoulder and right arm pain. She states that Ms Kathia’s symptoms have not improved despite all the diagnostic reports, medication, procedures and examinations. Dr Manku records that the symptoms are directly related to the injury and there was no pre-existing condition. She is unable to perform any work and her future fitness to work cannot be predicted.

Dr Habib

Dr Habib’s report of 2 June 2017 records a history of neck discomfort developing soon after the incident “but the low back and the right lower limb symptoms were severe requiring regular use of fairly strong analgesics.” Dr Habib records the examination findings of his previous consultations with Ms Kathia. Dr Habib further records:
“When considering the manner in which she injured herself at work on 09/04/10 it would appear logical that she also severely strained the neck and the right shoulder. With the above background it is my opinion that on the balance of probabilities (and possibilities) Mrs Kathia’s current complaints of the neck and right shoulder and the back were sustained and the result of the said incident at work on 09/04/10.”
Dr Habib diagnosis is as follows:
“[c]ervical discopathy with referred radicular pain but non verifiable radiculopathy
Chronic musculo ligamentous strain and subacromial impingement of the right shoulder
Lumbar discopathy with right radiculopathy.”
Dr Habib assessed Ms Kathia’s WPI to be 19%, comprising of 5% in respect of the neck, 12% in respect of the lumbar spine and 5% in respect of the right shoulder.

THE ARBITRATOR’S DETERMINATION OF 25 FEBRUARY 2015

The Arbitrator identified the only issue in dispute before her as whether the claim for lump sum compensation in relation to an alleged cervical spine injury arose out of or occurred in the course of employment on 9 April 2010. The claims in respect of other injuries had either been resolved or had by agreement been referred to the Registrar for referral to an AMS for assessment.
The Arbitrator noted Ms Kathia stated that she was working on night shift on 9 April 2010. Whilst in the course of her duties, she was walking and carrying a stack of files and a phone. She dropped the phone and bent down to retrieve it. Ms Kathia says that she immediately felt a sharp pain in her lower back which radiated down to her right leg. The incident was reported. Ms Kathia said that the next day she was in significant pain in her lower back, neck, right shoulder and arm.
The Arbitrator noted that the general practitioner’s records reflect complaints only in respect of the back immediately after the alleged incident, there being no complaints with respect to the neck. This was consistent with the medical certificates issued by Dr Manku. Notwithstanding numerous opportunities to raise complaints of neck pain with Dr Manku, Ms Kathia did not do so. When Ms Kathia consulted with Dr Salmon, she did not complain of neck symptoms. Ms Kathia made no complaint of neck pain to Dr Papatheodorakis or Dr Scougall. Dr Scougall examined Ms Kathia on a medico-legal basis, but did not record a history of neck pain even though, as the Arbitrator noted, medico-legal assessors are in the habit of recording all complaints and symptoms. The Arbitrator observed that the complaints of neck pain to Dr Abraszko were not contemporaneous.
It was agreed by the parties that Ms Kathia’s first recorded complaint of neck pain was in 2012.
Ms Kathia stated that the late complaint of neck pain was because she was focused on pain in her back. Ms Kathia also states that she consistently complained of neck pain, but as the Arbitrator put it, she was “put off” by her doctors and told that they would only treat her in respect of the condition of her back and not her neck.
Ms Kathia also states that her long-term use of serious pain medication including Neurontin and Endone masked the pain in her neck. This was the case until she was hospitalised in March 2011 with gastrointestinal complaints. After that time, the medication regime was altered. The Arbitrator observed that this did not explain the hiatus in between March 2011 and 2012 when the first complaint of neck pain was made.
Ms Kathia also advanced the theory that her back pain was masking the pain in her neck and right shoulder. Ms Kathia’s evidence is that for the first 12 months or so after the injury the pain in her neck and the right shoulder were light and manageable as she was taking strong pain medication.
The Arbitrator considered the content of Dr Manku’s notes. His entry of 3 December 2012 referred to Ms Kathia still having pain in the neck and right shoulder blade. The Arbitrator accepted the use of the word “still” demonstrated that Ms Kathia had been experiencing some pain in the neck and the right shoulder blade before that entry. However, the Arbitrator was unable to determine on the evidence how long that pain was being experienced.
The next entry the Arbitrator found to be significant was on 4 December 2012, when Dr Manku recorded Ms Kathia “having pain in the right arm and right side of the neck. Says was scared to say anything about it before because she thought she might lose her job.” The Arbitrator considered it a significant entry because prior to that point Ms Kathia had not proffered the explanation that she did not complain because of the fear of losing her job. The Arbitrator observed that this entry is inconsistent with Ms Kathia’s evidence concerning complaints of neck pain.
The Arbitrator accepted that Ms Kathia suffers from significant problems in her neck. This was demonstrated by an MRI on 4 January 2013, which showed a disc protrusion.
In so far as Dr Mastroianni’s evidence is concerned, the Arbitrator observed that the doctor opined that Ms Kathia’s neck symptoms were masked by medication. He considered it more likely than not that Ms Kathia suffered a neck injury at the same time as the injury to her back. As the Arbitrator observed, Dr Mastroianni offered no explanation for that opinion.
The Arbitrator also observed that Dr Manku also opined that Ms Kathia suffered a neck injury at the same time she injured her back and continued to complain forthwith once she perceived the pain on the right neck and shoulder. Dr Manku also failed to adequately explain the lack of complaints by Ms Kathia of neck pain until 2012. Further, he offered no opinion to assist in an understanding of how the neck could have been injured in the circumstances described.
Dr Abraszko supported Ms Kathia’s case, however, the Arbitrator found that his evidence offered no explanation of how the neck could have been injured in an innocuous incident as described by Ms Kathia.
The Arbitrator observed that the claim form completed by Ms Kathia three days after the injury was sustained made no mention of neck pain.
Although Dr Papatheodorakis says that Ms Kathia’s back pain was fluctuating and was occasionally severe, the Arbitrator did not accept the explanation that the neck pain had been masked by Ms Kathia’s back pain and medication for the period between April 2010 and 2012.
Having considered all of the evidence, the Arbitrator concluded that Ms Kathia had not discharged the onus of proof with respect to the alleged injury to the cervical spine.
The Arbitrator did not give any weight to the evidence of Dr Breit. That was because Dr Breit did not address the alleged neck injury in any detail.
The Arbitrator did not accept Ms Kathia’s evidence that she regularly complained to doctors about her neck symptoms in the absence of any recorded complaints. Further, the Arbitrator was not satisfied that Ms Kathia sustained an injury to her neck in the circumstances of the alleged injury in 2010.
The Arbitrator was not satisfied that there was any adequate explanation of the delayed onset of symptoms.
For those reasons, the Arbitrator entered an award for the respondent with respect to the alleged cervical spine injury.

RECONSIDERATION APPLICATION

On 9 June 2017, Ms Kathia applied for reconsideration of the Arbitrator’s decision of 25 February 2015. A brief summary of the reasons for seeking reconsideration are:
(a)that Ms Kathia made a contemporaneous complaint of neck, right shoulder and right arm pain when she visited Dr Manku’s clinic, two days after the incident on 9 April 2010. Dr Manku had been able to recall those complaints;
(b)the effect of analgesics had masked the effects of the neck, right shoulder and arm symptoms;
(c)Dr Manku and Dr Mastroianni supported her claim of an injury to the neck. Dr Scougall 2011 noted restriction of neck movement;
(d)the Arbitrator accepted that Ms Kathia suffered a condition in her neck;
(e)Dr Abraszko supported the allegation of neck injury on 9 April 2010, and
(f)that the condition of the neck had also arisen as a result of the nature and conditions of her employment.
Ms Kathia argued that the extensive use of analgesic medication masked the effect of injury to the neck. The use of the analgesic medication resulted in gastrointestinal issues resulting in hospitalisation on 30 March 2011.
Ms Kathia relied on the MRI in January 2013 which demonstrated a disc protrusion between C5/C6. Ms Kathia asserted that Dr Abraszko and Dr Salmon opined that the condition of her neck was due to the injury sustained on 9 April 2010. She submitted that those opinions were binding on the Arbitrator.
Ms Kathia submitted that had she been permitted to speak herself in the course of the arbitration proceedings she would have insisted upon an “independent medical examination.”
Ms Kathia maintained that she had continuously requested for her solicitor to obtain a copy of the transcript of the Arbitrator’s oral reasons with a view to pursuing an appeal, but instructions were not followed. She alleged that she obtained a copy of the transcript herself, two months before lodging the Application for Reconsideration. She then sought another opinion from Dr Habib, which she sought to rely upon in the Reconsideration Application.
Ms Kathia therefore submitted that:
“a. Decision of the arbitrator is not based upon evidence and in the current application reliance is being placed on fresh evidence not available at the time of the original decision eg Dr. S M Habib's fresh medical report etc.
b. The decision under review to be reconsidered is based upon admissions by the applicant solicitor which cannot be binding as it has not acquired finality.
c. The decision bifurcates the injuries without justification or any reasons relating to causation except contemporaneous reporting of the symptoms, which cannot be a reason as held in ‘Chanaa v Zarour’ of the Court of Appeal as followed by the Presidential decision of WCC in Bi-Lo case. The decision therefore requires to be set aside as it took into consideration irrelevant matters.”

For the reasons identified above, Ms Kathia sought a reconsideration of the Arbitrator’s decision of 25 February 2015 pursuant to s 350(3) of the 1998 Act.

RECONSIDERATION DETERMINATION OF 22 NOVEMBER 2017

The Arbitrator identified the relevant statutory provisions, namely s 350(3) of the 1998 Act. She also referred to the decision of Deputy President Roche in Samuel v Sebel Furniture Ltd.[1] In Samuel, the Deputy President identified nine general principles relevant to the reconsideration power in s 350(3).
[1] [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel).
Ms Kathia sought to rely on fresh evidence on the reconsideration application, namely, a further report of Dr Habib dated 2 June 2017 and an amended report of Dr Manku dated 5 June 2017.
With respect to Dr Habib’s further report, the Arbitrator held:
“Dr Habib in that report is supportive of a finding that [Ms Kathia] injured her cervical spine on 9 April 2010. It is noted that Dr Habib’s opinion is similar to that of Dr Mastroianni whose opinion was filed in the proceedings and admitted into evidence. This medical opinion was considered in my oral reasoning.
In respect of the additional medical evidence, there is no explanation or evidence to show that such opinion was not available with reasonable care and diligence used at the time of the initial hearing.”[2]
[2] Kathia v The Frank Whiddon Masonic Homes trading as Whiddon Group [2018] NSWWCC 275 (Reasons), [17]-[18].

With respect to the report of Dr Manku dated 5 June 2017, the Arbitrator held that “this report appears to be in the same format” as the report of 15 May 2014, save in respect of an additional comment noting that the doctor recalled Ms Kathia complaining of pain in her neck when attending the surgery some two days after the incident on 9 April 2010.[3]
[3] Reasons, [19].
The Arbitrator held that there was no explanation for these reports not being before the Commission during the arbitral proceedings. She further held “given that the opinion is not of such significance that it would likely lead to a different result, their admission is rejected.”[4]
[4] Reasons, [20].
The Arbitrator considered the delay in initiating the reconsideration proceedings. She noted that during the period following the delivery of oral reasons in February 2015, Ms Kathia had requested that her solicitors obtain a copy of the transcript of the Arbitrator’s decision without success. Ms Kathia stated that she had been given “frivolous excuses and explanations”. She had been advised by her solicitor’s not to appeal. Ms Kathia obtained a copy of the transcript herself, two months before lodging the application.
Ms Kathia then approached her treating surgeon, Dr Habib, for a fresh medical report which she received shortly before filing the Reconsideration Application. She also obtained a further report from Dr Manku.
The Arbitrator, whilst sympathetic to Ms Kathia, found that no explanation had been provided for the delay from the expiry of the appeal period in April 2015 until Ms Kathia obtained a copy of the transcript in or around April 2017.[5] Notwithstanding the domestic pressures on Ms Kathia, the Arbitrator held that there was no adequate explanation for the delay in filing the reconsideration application which was a period of two years from the original decision.[6] That failure was weighed against the public interest that litigation should not proceed indefinitely.[7]
[5] Reasons, [23].
[6] Reasons, [23].
[7] Reasons, [24].
The Arbitrator concluded on that basis that she would not exercise her discretion in favour of Ms Kathia.[8]
[8] Reasons, [25].
Notwithstanding the above findings, the Arbitrator addressed the substantial merits of the reconsideration application.
The Arbitrator accepted that, contrary to her earlier decision, the first report in Dr Manku’s treating notes in respect of her right arm disability occurred on 6 June 2012 and again on 23 July 2012. She had been mistaken in finding that the first report of neck and arm symptoms was not until December 2012. That was because the earlier entries had not been brought to her attention during the course of the arbitration. Nevertheless, so the Arbitrator held, accepting that there was an earlier recording of pain in the right arm, there was still a significant delay between 9 April 2010 and 6 June 2012 where there was an absence of complaints.
Between April 2010 and October 2012, Ms Kathia consulted Dr Salmon on many occasions. Dr Salmon provided three reports, however, there is no mention in any of them of neck or arm pain. Further, the Arbitrator noted that the failure to complain to other doctors including Dr Abraszko was not adequately explained. With respect to Ms Kathia’s submission that she declined to report symptoms for a fear of losing her job, the Arbitrator held:
“Such a submission flies in the face of [Ms Kathia’s] evidence and prior submissions that she did tell her doctors about her neck problem however was only treated in relation to her back.”[9]
[9] Reasons, [31].
The Arbitrator concluded that she remained of the view that whilst Ms Kathia presented some evidence in support of her claim of injury to the cervical spine, she “simply had not shifted the burden of proof in respect of it.”[10]
[10] Reasons, [32].
The Arbitrator concluded that the absence of an adequate explanation of the delayed onset of neck complaints was unsatisfactory.[11]
[11] Reasons, [33].
The Arbitrator concluded that Ms Kathia’s submission that she should have been referred to an Independent Medical Examination was misguided.[12] The Arbitrator stated that a referral to an AMS may only take place after there has been a determination by an Arbitrator of the liability issue. She concluded that had the liability issues been found in favour of Ms Kathia then an order for referral to the Registrar for referral to an AMS would have been made.[13]
[12] Reasons, [35].
[13] Reasons, [35].
For these reasons, the Arbitrator rejected the Reconsideration Application and confirmed the orders made on 25 February 2015.[14]
[14] Reasons, [36].

GROUNDS OF APPEAL

Ms Kathia is self-represented. She submits, and I accept, that she had made several attempts to obtain legal representation for the purposes of this appeal without success.
Ms Kathia’s appeal does not comply with the requirements of Practice Direction No 6 – Appeal Against a Decision of the Commission Constituted by an Arbitrator in that the grounds of appeal have not been clearly identified.
Allowing for the fact that Ms Kathia is self-represented and doing the best I can from the way in which the appeal has been presented, I propose to treat the appeal as identifying the following issues. Namely, the Arbitrator:
(a)failed to accept that Ms Kathia suffered neck and right shoulder discomfort “soon after” the incident of 9 April 2010;
(b)accepted that complaints of neck and right shoulder pain were noted by her treating general practitioner, Dr Manku, on 23 July 2012 and in a report dated 5 June 2014;
(c)failed to accept that entries in clinical notes referring to arm pain is a reference to referred pain to the arm arising from the alleged injury to the neck (Dr Manku’s notes of 6 June 2012 and 23 July 2012);
(d)failed to accept Dr Manku’s statement, in her report dated 5 June 2014, that she had an independent recollection of complaints of neck, right shoulder and arm pain two days after the accepted injuries were sustained on 9 April 2010;
(e)failed to accept Dr Mastroianni’s opinion that, having regard to degenerative changes and disc disease in the neck and back, the incident described “could have caused the neck and back symptoms”;
(f)failed to have regard to Dr Salmon’s report dated 8 October 2012, concerning right shoulder dysfunction;
(g)failed to have regard to Dr Manku’s referral letter to Dr Habib dated 3 December 2012 which made reference to neck and right arm pain;
(h)failed to have regard to the masking effect of pain medication for the back-condition on symptoms in the neck and shoulder;
(i)wrongly rejected the submissions (unspecified) relating to Dr Manku’s notes and reports;
(j)misinterpreted Ms Kathia’s evidence concerning the absence of contemporaneous reports of neck and shoulder injury being due to her being scared to report the injury to her employer, and
(k)failed to “constitute an independent medical board” to assess the neck, right shoulder and arm injuries.

MS KATHIA’S SUBMISSIONS

Ms Kathia submits that she reported neck and right shoulder discomfort soon after the incident of 9 April 2010. She submits that Dr Manku’s notes of 23 July 2012 and her report dated 5 June 2014 support that submission.
Ms Kathia also submits that she was given strong analgesics for her back pain. She opted not to have recommended back surgery because of a lack of suitable care arrangements for her very young children when she would be recovering from surgery.
Ms Kathia further submits that Dr Manku stated in her report of 5 June 2014 that she recalled contemporaneous complaint of neck and shoulder pain. She submits that this is also confirmed in Dr Manku’s clinical note of 23 June 2012 and 23 July 2012.
In submissions in first instance, Ms Kathia’s counsel, Mr Lucas submitted:
“Now the earlier entries, though, in relation to pain in the arm, I think it is conceded that most doctors that have seen my client, that she doesn’t have shoulder pain per say, in terms of injury – the pain in the shoulder and arm is referred pain to the neck.”[15]
[15] Transcript of Proceedings, Kathia v The Frank Whiddon Masonic Homes trading as Whiddon Group ([2017] NSWWCC 275, Arbitrator Beilby, 20 March 2015), 17.4.

Injury to the cervical spine is confirmed by the pathology demonstrated on the MRI report, dated 4 January 2013, which shows right sided C5/C6 foraminal stenosis and pressure on the C6 nerve root. The condition of the neck and right arm resulted in a recommendation by Dr Abraszco to undertake C5/C6 cervical discectomy infusion. She characterised the injury to her right arm as brachialgia, relying on Dr Mastroianni’s report of 29 October 2013.
Ms Kathia referred to Dr Mastroianni’s evidence. Dr Mastroianni opined that she suffered degenerative changes in her cervical spine and concluded that the flexing and bending under the table to retrieve the telephone she had dropped whilst holding a folder in the left arm “could have caused the neck and back symptoms”.
Ms Kathia submits that “in searching for a specific reference to neck pain, the references to importance of right arm pain in the notes of Dr Manku in mid-2012 for these symptoms were overlooked.”
Thus, so it is submitted, the alleged injury to the neck was sustained at the same time as the accepted injury to the back on 9 April 2010, in respect of which, contemporaneous complaints were made within two days. This evidence was not given “due consideration” by the Arbitrator.
Ms Kathia refers to the report of Dr Salmon dated 8 October 2012, where he states: “She also reported having right shoulder dysfunction.” Ms Kathia submits that the reason Dr Salmon did not refer to the neck injury was consistent with her assertion that “no one was listening to [her].” The Arbitrator overlooked the significance of the complaints of right shoulder dysfunction.
Ms Kathia also submits that the importance of the masking effects of pain medication was overlooked or was given insufficient weight.
Ms Kathia refers to Dr Manku’s entry in his clinical notes of 4 December 2012, which states:
“Having pain in right arm and right side of neck, says was scared to say anything about it before because she thought she will lose her job.”
The Arbitrator, so it is submitted, misconstrued Dr Manku’s notes to indicate that Ms Kathia was scared of saying anything about neck and right shoulder symptoms for fear of losing her job. She submits that:
“properly read, this entry can only mean that [she] was scared to say anything to her employer because she thought she would lose the job.” (emphasis in original)
Ms Kathia submits that her concerns regarding her employment were realised because her employment was terminated on 6 July 2012. She submits the timing of the termination is consistent with the further report of Dr Manku of 8 June 2012 which referred to the pain in her neck and right arm.
Ms Kathia refers to Dr Habib’s report where he states:
“This was not an innocuous incident. It was sufficient enough to cause an injury to the lumbar spine and where there is no other explanation for the neck/arm symptoms, it is submitted that it should be accepted on the balance of probabilities that she sustained the cervical disc injury in the manner described.”
Ms Kathia also submits that the Arbitrator’s decision was not based upon evidence. Dr Habib’s report of 15 June 2014 was “not properly appreciated by the Arbitrator hence her decision to reconsider her original decision should be revoked.”
Ms Kathia finally submits that:
“The decision under appeal is based upon submissions by [her] solicitor which cannot been binding as it has not acquired finality.
The decision bifurcates the injuries without justification or any reasons relating to causation except a contemporaneous reporting of symptoms which cannot be a reason as held in ‘Channar v Zarour’ of the Court of Appeal as followed by the Presidential decision of WCC in Bi-Lo Case. The decision therefore requires to be set aside as it took into consideration irrelevant matters.”

THE RESPONDENT’S SUBMISSIONS

The respondent submits that the Arbitrator was correct to refuse to allow the reports of Dr Habib of 2 June 2017 and Dr Manku of 5 June “2014(?)” being admitted into evidence. Reports of Drs Habib and Manku were admitted in the proceedings before the Arbitrator. Both were Ms Kathia treating doctors.
The respondent also submits that Dr Habib’s report of 2 June 2017 could have been obtained prior to the arbitration proceedings, with reasonable diligence.
The respondent further submits that Dr Manku’s recall of Ms Kathia making contemporaneous complaints of neck, right shoulder and right arm pain should not be accepted on the basis that such a history is inconsistent with Dr Manku’s clinical records and her previous report of 15 May 2014.
Dr Habib’s supplementary report is of a similar opinion to Dr Mastroianni, in that Ms Kathia’s injury to the cervical spine was caused by the incident on 9 April 2010. Although, Dr Habib may go somewhat further than Dr Mastroianni on the mechanism of injury, stating it was logical that Ms Kathia severely strained her neck and right shoulder in the incident. However, it is flawed by failing to acknowledge or explain the lack of contemporaneous complaints. Further, Dr Habib only commenced treatment after Ms Kathia had complained of cervical symptoms.
The Arbitrator’s conclusion that the fresh evidence was unlikely to lead to a different result was, therefore, correct.
The respondent traversed the submissions made by Ms Kathia in “Annexure 2” to the Appeal which she describes as her “Grounds of Appeal” and which are summarised at [102] above. The following is a summary of the respondent’s submissions.
The Arbitrator was not required to reconsider the clinical records of Dr Manku in the context of a Reconsideration Application. In any event, the clinical records are devoid of any reference to complaints of neck or right arm symptoms until 6 June 2012.
No weight should be placed on the evidence contained in Dr Manku’s report of 5 June 2014 for the reasons previously given, namely there is no explanation as to how or why the report came into existence. Either it was not relied upon in the proceedings before the Arbitrator or if the correct date of the report is 5 June 2017, as referred to by the Arbitrator in her Statement of Reasons, there is no explanation as to why it could not have been obtained with due diligence prior to the arbitration.
Ms Kathia’s contention is that she suffered pain in the neck and right arm on the day of the injury, not that it was a consequential condition with the symptoms emerging later.
Ms Kathia is a registered nurse. She would have understood the importance of providing a proper history and ensuring that doctors recorded her symptoms, notwithstanding her claim that they refused to do so.
Doctors Salmon and Abraszco failed to record any complaints of the neck and right arm. The information sheet completed by Ms Kathia for Dr Abraszco made no mention of any injury to the neck.
Ms Kathia made no complaint of neck or right upper extremity complaints to Dr Scougall when he examined her for medico-legal purposes on 22 November 2011. This was notwithstanding that his report contained a lengthy description of her present symptoms.
The claim form, completed by Ms Kathia on 12 August 2010, made no mention of an injury to the neck or right upper extremity.
Given the lack of contemporaneous reports of complaints, the respondent submits that it cannot be accepted that Ms Kathia complained of neck or right arm symptoms from 9 April 2010 or indeed that her cervical spine was injured on that day.
Ms Kathia’s explanation that symptoms in her neck and right arm were masked because of analgesic medication taken for the accepted back injury is inconsistent with other evidence that she said she had been telling her providers of pain in the neck and arm from the date of the injury.
Further, the respondent submits that Ms Kathia’s statement that she was scared of reporting symptoms of her neck and right arm for fear of losing her job was contradictory to the explanation of making no complaints because of the masking effect of medication.
Ms Kathia’s employment was terminated after she reported neck symptoms. The first recorded complaints of neck symptoms were not until after her employment was terminated.
The Arbitrator did not err in failing to refer Ms Kathia to an AMS. The Arbitrator or Registrar had not power to do so until such times as the liability issues have been determined.[16]
[16] Citing Favetti Bricklaying Pty Ltd v Benedek [2017] NSWSC 417.
Further, Ms Kathia made no application during the course of the Arbitration proceedings for referral to an Approved Medical Specialist for a non-binding assessment.

DISCUSSION AND FINDINGS

This is an appeal pursuant to s 352 of the 1998 Act. Appeals under s 352 of the 1998 Act are characterised by the identification and correction of legal, factual or discretionary error. It is not a review or rehearing.

The Arbitrator appropriately referred to the reconsideration power in s 350 of the 1998 Act, which is in the following terms:
“350   Decisions of Commission
(1)    Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2)    A decision of or proceeding before the Commission is not:
(a)to be vitiated because of any informality or want of form, or
(b)liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3)    The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
The Arbitrator set out the summary of principles governing the reconsideration applications as found in Samuel. The applicability of those principles has not been challenged on this appeal, although I note that the reference in Samuel to the broad power of ‘review’ in s 352 of the1998 Act is no longer correct. In Samuel, Deputy President Roche identified the following nine principles as relevant to the reconsideration power in s 350(3) of the 1998 Act:
“1. the section gives the Commission a wide discretion to reconsider its previous decisions (‘[Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244]);
2. whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include ‘an award, order, determination, ruling and direction’. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3. whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration ([Schipp v Herfords Pty Ltd [1975] 1 NSWLR 413]);
4. one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘[Hilliger v Hilliger (1952) 52 SR (NSW) 105 (Hilliger)]);
5. reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘[Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC 36; (1993) 9 NSWCCR 642]’);
6. given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7. depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8. a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘[Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] WCR 29]), and
9. the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”[17]
[17] Samuel, [58].
Ms Kathia sought to introduce fresh evidence in support of her Reconsideration Application, namely a further report of Dr Habib dated 2 June 2017 and a further report from Dr Manku. The date of Dr Manku’s further report is surrounded in some controversy. The handwritten date at the bottom of the report could either be 5 June 2014 or 5 June 2017. Ms Kathia relied on the report as dated 5 June 2014, however the Arbitrator treated it as dated 5 June 2017. The actual date of the report has not been clarified.
No evidence or explanation has been provided to explain how and what year Dr Manku’s report of 5 June came into existence. As the report is addressed to the solicitors acting for Ms Kathia in 2014, it is more likely than not that the correct date is 5 June 2014. Further, as Ms Kathia relies on it as a 2014 report, I will treat it as such for the purpose of this appeal.
The Arbitrator declined to admit these reports into evidence for two reasons. First, because there was no explanation why they were not before her during the arbitral proceedings. Second, the opinion expressed in the further reports were “not of such significance that it would likely lead to a different result.”[18]
[18] Reasons, [20].

Dr Manku’s report

The Arbitrator observed that Dr Manku’s report of 5 June 2014 appeared in the same format of Dr Manku’s report of 15 May 2014, except for the following additional comment contained in the 5 June 2014 report:
“I can recall that she also complained of pain in her neck, right shoulder and right arm.”

However, Dr Manku’s report of the 5 June 2014 differs from the report of 15 May 2014 in other respects. The report of 5 June 2014 does not contain the following passage from the 15 May 2014 report:
“In fact her initially less perceived pain in right side of neck and right shoulder soon became severe and she started complaining about it forthwith on a regular basis.”
For the reasons that follow, I do not accept the submission that the Arbitrator wrongly excluded Dr Manku’s report of 5 June 2014.
Dr Manku’s report of 5 June 2014 was not fresh evidence. It was in existence prior to the arbitration hearing. It was in the possession of Ms Kathia’s solicitors. No attempt was made to explain why the report was not tendered in the Arbitration proceedings.
Therefore, it is reasonable to infer that a forensic decision was taken not to rely upon the report during the arbitration proceedings. It is trite law that parties must live with the consequences of their forensic decisions.[19]
[19] Caruana v Darouti [2014] NSWCA 85, [124].
The Arbitrator provided brief reasons for concluding that Dr Manku’s opinion in her report of 5 June 2014 was unlikely to lead to a different result. I accept those reasons. In addition to those reasons, I note the following further reasons why that conclusion was correct.
The gravamen of the additional comments made by Dr Manku in the report of 5 June 2014 is her statement of having an independent recollection of complaints of neck, right arm and shoulder pain made by Ms Kathia in a consultation on 11 April 2010, two days after the accepted injuries were sustained. That evidence is not credible for the following reasons.
First, Dr Manku’s brief notes of the consultations that took place after the initial consultation on 9 April 2010, namely on 12, 16 and 28 April 2010, make no reference to any symptoms in the neck. All they refer to is WorkCover certificates being issued on those dates. There is no evidence in the clinical notes of a consultation on 11 April 2010.
Second, the WorkCover medical certificate issued by Dr Manku on 12 April 2010 diagnosed Ms Kathia’s condition as “soft tissue injury lower back with radiculopathy”. It is not until 6 December 2012 that there is any reference to the neck in the WorkCover medical certificates.
Third, as noted at [30] above, Dr Manku’s recollection of contemporaneous complaints of neck pain is inconsistent with the referral letter she wrote to Dr Habib on 3 December 2012, which recorded:
“had back injury at work not getting better wants opinion and rx also c/o pain in neck and rigt [sic] arm since long time but mentioned to me on 6/6/12 after coming back from Pakistan,” (emphasis in original)
It follows from the referral letter that, contrary to Dr Manku’s amended report of 5 June 2014 indicating an independent recollection of neck and arm pain in April 2010, her referral letter to Dr Habib makes it abundantly clear that no such complaints were made until 6 June 2012, more than two years later, following Ms Kathia’s visit to Pakistan.
Fourth, the alleged independent recollection of complaint of neck, right shoulder and right arm pain is inconsistent with the symptoms recorded by Dr Manku in her report of 15 May 2014. In that report, Dr Manku reported that Ms Kathia “presented at my clinic after two days with no improvement in her back pain in the lower back radiating towards the right leg and the toe”. There was no reference to complaint of neck or right shoulder or arm symptoms.

Fifth, in the interval between taking the alleged history of neck, shoulder and arm on or about 12 April 2010 and recording it in her report of 5 June 2014, Dr Manku presumably would have taken hundreds of histories of symptoms and complaints from a variety of patients. I do not accept that a busy general practitioner could have a reliable independent recollection of symptoms discussed in a specific consultation more than four years earlier, in the absence of any contemporaneous notes to refresh her recollection. I have not been taken to any contemporaneous notes regarding complaint of neck pain.
Sixth, no explanation or evidence has been given to explain the delay in obtaining the “fresh evidence".
The admission of fresh evidence on a reconsideration application is discretionary. For the reasons given by the Arbitrator and for the additional reasons above, the Arbitrator properly exercised her discretion to refuse the admission of Dr Manku’s report of 5 June 2014. The report could not be properly characterised as fresh evidence. Even if it were considered fresh evidence, for the reasons discussed above, the evidence was not credible and could not have led to a different result. No error has been demonstrated in the refusal to admit Dr Manku’s report of 5 June 2014.
If Dr Manku’s report is a 2017 report, then the reasons for rejecting its admission are even more compelling. Dr Manku’s purported recollection of events occurring more than seven years earlier, for the reasons stated above, is not credible. The reconsideration power is not available to perpetuate a dispute that has been finally determined by the Commission.[20] It is certainly not an avenue to circumvent the appeal process by attempting to overcome deficiencies in the evidence disclosed in the Arbitrator’s determination.
[20] 1998 Act, s 350(1).

Dr Habib’s report

The Arbitrator rejected the admission of the further report of Dr Habib, dated 2 June 2017, on two bases. First, Dr Habib’s opinion was similar to that of Dr Mastroianni which the Arbitrator considered and rejected. Therefore, so the Arbitrator concluded, the additional evidence was unlikely to lead to a different result.
In her oral reasons for decision on 25 February 2015, the Arbitrator rejected Dr Mastroianni’s opinion because of a failure to explain how the circumstances of a relatively innocuous incident could have caused the alleged injuries to the neck, right arm and shoulder. The failure to explain an opinion goes to weight to be given to it.[21]
[21]Brambles Industries Limited v Bell [2010] NSWCA 162, [19]-[20].

It is apparent from Dr Habib’s diagnosis and from the report of the MRI by Dr Lee dated 4 January 2013 that Ms Kathia suffers from degenerative disease processes in the cervical spine. However, the application was not pleaded as a disease injury, caused or aggravated by the employment (s 4 (b)(i) and (ii) of the 1998 Act). It was pleaded as a frank injury occurring on 9 April 2010 (s4(a) of the 1998 Act).
Other than on a temporal association, neither Dr Mastroianni nor Dr Habib explained how the injuries occurred from such an innocuous incident.
With respect to the temporal association, Dr Mastroianni opined that the symptoms with respect to the neck, arm and shoulder would have been masked by pain relieving medication taken for the accepted back injury. The Arbitrator did not accept that the symptoms in the neck, arm and shoulder could have been masked for the period suggested by Ms Kathia. That is, the period between the incident on 9 April 2010 and 6 June 2012 when Ms Kathia first reported symptoms in her right arm. That was a finding of fact that was open to the Arbitrator.
Dr Mastroianni’s opinion acknowledged that there was an absence of any contemporaneous complaints of neck, arm and shoulder pain. However, he opined that, if one accepted the history of immediate complaints of neck, shoulder and arm pain after the incident in 2010, then it could be accepted that the neck condition was probably the result of that incident.

The Arbitrator did not accept Ms Kathia’s evidence with respect to the alleged onset of neck, shoulder and arm pain in April 2010. Given the absence of contemporaneous complaints being recorded in the reports of Drs Manku, Salmon, Scougall and Abraszko, the Arbitrator concluded that Ms Kathia had not discharged the onus of proving that the neck, arm and shoulder symptoms occurred at or soon after 9 April 2010. In view of that finding, which was a finding of fact that was clearly available, the Arbitrator concluded that Dr Habib’s further opinion suffered from the same deficiency as Dr Mastroianni and therefore it carried no weight. That finding was clearly open on the evidence presented and does not disclose error.
Moreover, given Dr Habib’s diagnosis of a severe strain of the neck and right shoulder, he failed to explain why the effects of a soft tissue injury, even if it was severe, have persisted for over eight years.
The second reason given by the Arbitrator for the refusal to entertain Dr Habib’s report was because, no explanation or evidence was given to explain why Dr Habib’s opinion could not, with reasonable diligence, have been available at the time of the Arbitration hearing. That finding was correct. In any event, I do not accept that Dr Habib’s report of June 2017 is fresh evidence. It is simply more evidence and an attempt to rectify an obvious gap in the evidence presented at first instance.
For these reasons, it follows that the Arbitrator’s exclusion of Dr Habib’s report of 2 June 2017 discloses no error.

Delay

The Arbitrator found that the delay in bringing the reconsideration application was inadequate. She said that the failure to provide an explanation for the delay must be weighed against the public interest that litigation should not proceed indefinitely.
Ms Kathia did not lead any evidence to explain the substantial delay in initiating the reconsideration, which was over two years since the Arbitrator’s original determination. However, she made some brief submissions to the effect that she had “continuously requested” her solicitors to obtain a transcript with a view to pursuing an appeal. That submission was not further developed.
The Arbitrator’s conclusion that the delay in lodging the reconsideration application was a matter that militated against the exercise of the discretion to reconsider her previous decision, as was the need to balance the policy requirement of finality of litigation with the obligation to rectify any injustice. These were valid reasons for her decision not to exercise her discretion to reconsider her previous decision. The Arbitrator’s decision was correct and discloses no error.

Conclusion

This appeal is limited the Arbitrator’s decision on the reconsideration application. It is not an avenue to circumvent the appeal process by affording an unsuccessful party a second opportunity to make out his or her case.
The Arbitrator determined the reconsideration application in accordance with s 350 of the 1998 Act and the principles in Samuel. In particular, the Arbitrator applied the principles regarding fresh evidence, delay and the public interest that litigation should not proceed indefinitely. In the context of this case and the matters before the Arbitrator on the reconsideration application, no error in the exercise of her discretion has been demonstrated.
It is unnecessary to deal with the remaining grounds. That is because the remaining grounds merely reventilate the merits of the original decision.
For these reasons, the appeal fails.

ORDERS

The Arbitrator’s Certificate of Determination dated 22 November 2017 is confirmed.

Judge Keating

President

29 May 2018