Ooi v NEC Business Solutions Ltd (No 2)

RECONSIDERATION OF DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Ooi v NEC Business Solutions Ltd (No 2) [2020] NSWWCCPD 68
APPELLANT:	Leay Ceng Ooi
RESPONDENT:	NEC Business Solutions Ltd
INSURER:	AAI Ltd trading as GIO
FILE NUMBER:	A1-5574/04
ARBITRATOR:	Mr R Foggo
DATE OF ARBITRATOR’S DECISION:	10 May 2005
DATE OF FIRST APPEAL DECISION:	26 June 2006
DATE OF RECONSIDERATION DECISION:	25 November 2020
SUBJECT MATTER OF DECISION:	Reconsideration pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Self-represented
Respondent:
Mr B Quillan, solicitor
Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:	1. The appellant’s application pursuant to section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 to reconsider the Commission’s decision dated 26 June 2006 is refused.

INTRODUCTION AND BACKGROUND

Leay Ceng Ooi (Ms Ooi) worked as a senior administrative officer with NEC Business Solutions Ltd (NEC) from 1990. She ceased work with NEC in September 2003 and did not work thereafter. She alleged injury in the nature of repetitive strain to the neck and right upper limb.[1] Ms Ooi made a claim for weekly compensation, medical expenses and lump sum compensation which was disputed.[2] Ms Ooi commenced Commission proceedings No 5574/04 against NEC (the 2004 proceedings). The issues disputed were whether Ms Ooi had suffered ‘injury’, whether the requirements of s 9A of the Workers Compensation Act 1987 (the 1987 Act) were satisfied, whether Ms Ooi was incapacitated for work, whether she was entitled to the recovery of medical expenses and the quantum of any entitlement to lump sum compensation.[3]
[1] Claim form 8/10/03, referred to in Presidential decision of Snell ADP (Presidential decision), [4], transcript of arbitration hearing 19/4/05 (T), T 2.37–49.
[2] Reasons for decision of Arbitrator Foggo dated 10/5/05 (Foggo reasons), [17]–[19].
[3] Foggo reasons, [7]–[11].
The matter was listed for an arbitration hearing before Arbitrator Foggo on 19 April 2005. Both parties were represented by solicitors. No oral evidence was called. NEC’s solicitor handed up written submissions, both solicitors made oral submissions and the Arbitrator reserved his decision.[4] The Commission issued a Certificate of Determination dated 10 May 2005 accompanied by reasons. The Arbitrator did not accept that Ms Ooi had suffered injury in the course of or arising out of her employment. There was an award in favour of NEC.
[4] Foggo reasons, [12]–[13].
Ms Ooi lodged an appeal against the arbitral decision, which came before me in my then capacity as an Acting Deputy President. The appeal was dealt with on the papers and a decision was issued dated 26 June 2006.[5] The Arbitrator’s decision in NEC’s favour was confirmed, subject to a technical variation to the orders to substitute an award in NEC’s favour, in place of three separate awards in NEC’s favour, one on each of the three heads of compensation claimed. This variation is not material to issues that are raised in the current matter.
[5] [2006] NSWWCCPD 131, 5 DDCR 461 (Presidential decision).
Ms Ooi appealed my decision dated 26 June 2006. A letter from NEC’s solicitors indicates the appeal was dismissed with costs by the Court of Appeal on 22 March 2007.[6] The basis of this is not apparent from that letter or the material before me. A “Summary of Workers Compensation Claim”, attached to Ms Ooi’s reconsideration material that is now before the Commission, states that on 26 February 2007 the matter was “dismissed by the Court of Appeal, represented by Walker Legal (advised to pursue matter with the Commission)”.
[6] Letter from Gillis Delaney 29/4/09, Reasons for decision of Arbitrator Wynyard dated 3 May 2012 (Wynyard reasons), [26].
Ms Ooi commenced further proceedings against NEC in the Commission, No 9131/10 (the 2010 proceedings). The subject matter was generally similar to that previously litigated in the 2004 proceedings. Consent Orders dated 16 December 2010 provided that by consent the 2010 proceedings were discontinued with no order as to costs.
Ms Ooi commenced further Commission proceedings, No 2434/12. These proceedings were listed for telephone conference before Arbitrator Wynyard on 27 April 2012. Ms Ooi was self-represented and Mr Hodges, solicitor, appeared for NEC. Arbitrator Wynyard, with the agreement of the parties, dealt with the matter without holding a conference or formal hearing. The Commission issued a Certificate of Determination dated 3 May 2012, accompanied by reasons. The Arbitrator described the allegations of injury in those proceedings as:
“Repetitive Strain and Stress Injuries with permanent impairment to right upper extremities (sic) and spine
Psychological Trauma Injury – severe anxiety, stress, depression
Post Traumatic Stress Disorder; all work related”.[7]
[7] Wynyard reasons, [2]–[3], [5].
Arbitrator Wynyard expressed doubt regarding whether an allegation of psychological injury was included in the injury allegations in the 2004 proceedings. He said he was satisfied the allegations relating to the upper extremities and spine had been the subject of “prior determinations”, although with the rider that the reference in No 2434/12 to ‘spine’ meant the ‘cervical spine’.[8] (I note there is specific reference in the decision of Arbitrator Foggo to a statement by Ms Ooi’s solicitor, at the 2005 hearing, that he did not assert psychological injury.[9])
[8] Wynyard reasons, [17]–[23].
[9] Foggo reasons, [27].
Arbitrator Wynyard said the application before him in No 2434/12 (the 2012 proceedings) although not pleaded as such, was “an application for reconsideration of earlier decisions of a case brought by [Ms Ooi] in matter no 5574/2004”.[10] He said that he was bound by Presidential decisions, and thus lacked the power to consider the merits of Arbitrator Foggo’s decision, it having been affirmed in the Presidential decision. He said the appropriate forum for the reconsideration was before a Presidential member.[11] The Arbitrator made an order striking out the application before him.
[10] Wynyard reasons, [8].
[11] Wynyard reasons, [31].

THE DECISION BEING RECONSIDERED

There is no form provided for an application to reconsider pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Ms Ooi’s current application was commenced by way of a letter to the President, Phillips DCJ, dated 8 July 2020. It seeks the reconsideration of “my workers compensation claim of WCC 5574 of 2005” (sic, 2004). It refers to Ms Ooi, in the 2012 proceedings, seeking reconsideration and being advised by Arbitrator Wynyard that she should “seek legal representation to appeal to the President of WCC”. In the reconsideration letter Ms Ooi refers to a “serious miscarriage of natural justice” in the finding in favour of NEC.[12] I have previously confirmed the arbitral decision in the 2004 proceedings, in the Presidential decision dated 26 June 2006. Because that decision involved an appeal from the decision of Arbitrator Foggo, it needs to be understood in the context of that arbitral decision.
[12] Letter from Ms Ooi to the President 8/7/20 (reconsideration letter), pp 1–2.

Arbitrator Foggo’s decision

Arbitrator Foggo described the allegation of injury as relating to the neck, right shoulder and right arm, as a result of repetitive keyboard use in Ms Ooi’s employment with NEC from 1990 to September 2003.[13] He described the evidence before him. It was the practice in the Commission at the time that, where a matter included a claim for lump sum compensation, it would commonly be referred for assessment by an Approved Medical Specialist (AMS) prior to liability issues such as ‘injury’ being determined by an arbitrator.
[13] Foggo reasons, [3].
Consistent with this there was a referral to an AMS, Dr Bodel, before the issue of ‘injury’ was determined. A MAC of Dr Bodel dated 25 January 2005 certified there was 8 per cent permanent impairment of the neck and 4 per cent loss of use of the right arm at or above the elbow resulting from injury prior to 1 January 2002. It certified 2 per cent whole person impairment as a result of injury after 1 January 2002.[14] (The system for assessing and compensating permanent impairment and loss changed as at 1 January 2002.)
[14] Foggo reasons, [15].
The Arbitrator made reference to this MAC. The Arbitrator referred to the submissions. He noted Ms Ooi’s reliance on Dr Champion to establish that Ms Ooi’s injuries resulted from her employment. The Arbitrator noted Ms Ooi’s reliance on Dr Bodel’s opinion. There was an issue regarding the significance of a motor vehicle accident (not work related) in which Ms Ooi was involved on 24 January 2001 (the motor vehicle accident). Ms Ooi’s solicitor submitted Ms Ooi had disclosed this accident to Dr Bodel. The Arbitrator noted Ms Ooi’s solicitor stated he did not assert psychological injury, and NEC’s solicitor accordingly said its report from Dr Haralambous was no longer relevant.[15] The Arbitrator referred to various histories regarding the motor vehicle accident, and Ms Ooi’s solicitor’s submissions that the accident was “a very minor one”. He referred to Ms Ooi’s statement dated 15 June 2004 regarding housework she had undertaken for a friend, Mr Johnstone,[16] activities that also had become an issue.
[15] Foggo reasons, [24]–[27].
[16] Foggo reasons, [28]–[29].
The Arbitrator referred to NEC’s submissions. NEC submitted those doctors who supported Ms Ooi’s case, Drs Champion and Kanduru, did so on the basis of an incorrect history regarding the effects of the motor vehicle accident. It submitted Ms Ooi only revealed the motor vehicle accident when she knew NEC had discovered its existence. She would have been aware of this from August 2004, when her statement and that of Mr Johnstone, from material produced by the GIO, was served. This explained why she told Dr Bodel about the motor vehicle accident when examined on 8 November 2004. NEC submitted Ms Ooi had sought to mislead both the GIO and Dr Bodel, to “make the best of each of her claims”.[17]
[17] Foggo reasons, [31].
NEC’s submissions referred to Ms Ooi’s statement dated 19 March 2004, in which she described difficulties with her housework. It submitted that 12 weeks after this she gave a statement, apparently to support Mr Johnstone’s third party claim, in which she said that she would sometimes spend up to 10 to 12 hours per week helping Mr Johnstone by doing his housework and shopping. She said that other friends did lifting for Mr Johnstone. NEC submitted these statements were “totally inconsistent”.[18]
[18] Foggo reasons, [33]–[34].
The Arbitrator said it was a matter for him (not the AMS) to deal with the issue regarding whether Ms Ooi’s work duties caused the medical conditions of which she complained. In the absence of oral evidence, he needed to evaluate her credibility on the documentary material. He referred to Ms Ooi’s statement dated 13 October 2003, made as part of the factual investigation of her workers compensation claim. Ms Ooi stated: “I have not suffered from any similar type of injuries that I presently have”. The Arbitrator described the “discrepancy between [Ms Ooi’s] statement of 15 June 2004 and 19 March 2004 [as] particularly troubling” (see the paragraph immediately above). He said the “two statements cannot stand together and there has been no adequate explanation from [Ms Ooi] that allows me to reconcile their differences”.[19]
[19] Foggo reasons, [37]–[39].
The Arbitrator referred to a history to the AMS that from October 2001 Ms Ooi experienced the onset of employment related symptoms. The Arbitrator said no mention was made to the AMS of “concurrent symptoms” in the neck and shoulders stemming from the motor vehicle accident, recorded by Dr Sooy on 12 April 2002. The Arbitrator said that as a result of these conflicts of evidence he was not persuaded that the histories and mechanism of injuries relied on by the various doctors were “credible and accurate”. He was not persuaded that the impairments certified by Dr Bodel related to any employment injury. He entered awards in favour of NEC on the various heads of claim brought by Ms Ooi.[20]
[20] Foggo reasons, [41]–[43].

The Presidential decision

The grounds of appeal raised by Ms Ooi on the appeal pursuant to s 352 of the 1998 Act were:
(a)    The Arbitrator erred in that he failed in the finding of fact and in arriving at the finding against the weight of evidence:
The appellant in fact suffered an injury arising from and in the course of employment with the respondent.
(b)    The Arbitrator erred in misinterpreting the law:
The fact as found by the AMS was not conclusively presumed;
The fact as found by the AMS which was conclusively presumed was incorrectly rebutted by the Arbitrator without contrary evidence.
(c)    The Arbitrator erred in failing to give adequate reasons according to law, and failing in his statutory duty to determine the matter according to law:
The Arbitrator did not consider or adequately consider ss 326 and 327 of the relevant Act, and did not consider both ss 326 and 327 together as being an integral part of the statutory scheme of presumption.
(d)    The Arbitrator erred in making a decision by not taking into account relevant considerations and/or by taking into account irrelevant considerations:
There was a failure by the Arbitrator to consider what the appellant did exactly (not in broad terms) in Mr Johnstone’s home.
The Arbitrator considered what the applicant [sic] did in broad terms in Mr Johnstone’s home as relevant consideration when it was not.
There was a failure by the Arbitrator to consider the content of Dr Champion’s medical report as relevant information.
(e)    The Arbitrator erred by not making enquiry of facts which are readily available and centrally relevant:
The Arbitrator did not ask the appellant of what she did exactly in Mr Johnstone’s home.
(f)    The appellant was denied procedural fairness and natural justice:
There are issues relating to ‘contrary’ evidence adverse to the appellant which were not flagged beforehand.
The appellant was not given sufficient or adequate opportunity to present evidence in respect to the above-said issues.
The Arbitrator’s relevant dispositive findings were summarised:
“10. The arbitrator’s reasoning is to be found at paragraphs 36 to 42 of his Reasons for Decision. He held that, notwithstanding the MAC, the issue of causation, being whether the appellant’s condition resulted from her work activities with the respondent, fell to be determined by him. He reasoned an AMS cannot decide issues of credibility or questions of fact, as opposed to clinical findings and opinions. He noted an evaluation of the appellant’s credibility had to be done on the documentary material, the appellant having given no oral evidence. He then proceeded to consider contradictions in the documentary material, particularly in histories given by the appellant for different purposes. He concluded that, as a result of conflicts of evidence which he identified, he was persuaded the histories and mechanism of injury given by the appellant to various doctors were not credible and accurate. The word ‘not’ has been omitted from the first sentence in paragraph 42 of the Reasons, but the arbitrator’s meaning is clear, in context. As a consequence of this finding on credit, the arbitrator concluded he was not persuaded the impairments found by Dr Bodel related to injury arising out of or in the course of the appellant’s employment with the respondent. In his summary of his findings, at paragraph 43, he found the appellant did not receive injury arising out of or in the course of her employment, employment with the respondent was not a substantial contributing factor, and the impairments found by Dr Bodel in the MAC were due to a motor vehicle accident in which the appellant had been involved on 24 January 2001.”
I rejected the arguments described at ‘(b)’ and ‘(c)’ of [17] above.[21] Those issues, going to decision making in the bifurcated system in the Commission, have since been authoritatively decided in a manner contrary to Ms Ooi’s arguments at that time.[22] The balance of the grounds related to how the Arbitrator dealt with the lay evidence regarding Mr Johnstone, and whether Ms Ooi was denied procedural fairness in how the evidence from the GIO file was dealt with. There was also an allegation that the Arbitrator failed to take account of Dr Champion’s evidence.
[21] Presidential decision, [32]–[45].
[22] Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264; 13 DDCR 156 (per Emmett JA), [111], Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79, [253] and the cases cited therein (reversed in the Court of Appeal, but on a different issue).
The lay statement of Mr Johnstone was summarised.[23] Mr Johnstone’s statement dated 17 June 2004 described his difficulty “doing things around his house due to a back injury”. This included laundry, hanging out washing, vacuuming, ironing and general household chores. Mr Johnstone said Ms Ooi often spent her whole weekend helping him and stayed overnight in the spare room. Ms Ooi also helped with weekly shopping.[24]
[23] Presidential decision, [23]–[24].
[24] Presidential decision, [23].
There were statements of Ms Ooi dated 19 March 2004 and 15 June 2004. The earlier of these was used in the workers compensation proceedings and described difficulties experienced by Ms Ooi in performing her various household chores. The second of these was put into evidence by NEC, and came from material produced by the GIO, the third party insurer involved in claims from both Ms Ooi and Mr Johnstone arising out of the motor vehicle accident (Ms Ooi was a passenger in a vehicle driven by Mr Johnstone).[25] The second of these statements by Ms Ooi described her spending “sometimes up to 10 or 12 hours in a week” helping Mr Johnstone, performing vacuuming, hanging out washing, keeping the house tidy and shopping.[26]
[25] Presidential decision, [18], [26].
[26] Presidential decision, [26].
There was a statement by Ms Ooi dated 13 October 2003, given to investigators engaged by NEC to investigate the work injury. Ms Ooi said that she had “not suffered any other injuries that I recall and I have never submitted a claim prior to this. I have not suffered from any similar type injuries that I presently have.” She said that at “the end of 2001 due to working on the computer all day except to put documents around, my right shoulder, right arm, neck and back were very painful.”[27] Ms Ooi’s statement dated 19 March 2004 said that she first noticed aches and pains in her hands, arms and shoulders “around end 2001”, and that “working and typing at data entry became increasingly difficult and gradually my neck and shoulder became affected”.[28]
[27] Presidential decision, [21].
[28] Presidential decision, [18].
The material produced by the GIO included a motor vehicle claim form by Ms Ooi (a statutory declaration) dated 15 April 2002, relating to the motor vehicle accident. The injuries described in the motor vehicle claim form were “Whiplash injuries Neck and Shoulder pain Headaches Frequent neck and shoulder muscular spasms Injury to left knee”. A question “Have you had any other injuries or illnesses – before or since the accident – to the same parts of your body” is followed by the ticking of a box marked “No”. A medical certificate dated 12 April 2002, part of the motor vehicle claim form, described Ms Ooi as unfit to work from 24 January 2001 and thereafter fit to resume normal duties.[29]
[29] Presidential decision, [27].

The GIO file included a report of Dr Sooy dated 4 September 2002. It recited a history from Ms Ooi of neck injury in the motor vehicle accident. It referred to examination of Ms Ooi on 12 April 2002, with all active neck movements “somewhat limited”, and radiating pain into both shoulders. Ms Ooi described only temporary pain relief from acupuncture, massage and various pain relief medications. Dr Sooy also recorded anxiety and left knee symptoms since the motor vehicle accident. Dr Sooy’s report did not record any resolution of the symptoms from the motor accident prior to October 2001 (contrary to the history given to the AMS, Dr Bodel). It did not record any history of neck, right shoulder and right arm symptoms in about October 2001, which Ms Ooi associated with the nature and conditions of her employment.[30]
[30] Presidential decision, [28]–[29].
The GIO file indicates a claim against the GIO was settled for a modest sum ($3,500) by way of deed in about January 2003.[31]
[31] Presidential decision, [31].
The Arbitrator considered the discrepancies between the various statements and histories (see [13] to [16] above) and concluded he could not accept that Ms Ooi’s histories of injury were “credible and accurate”. This led to his rejection of those doctors who supported Ms Ooi’s case on ‘injury’. The Arbitrator referred to Makita (Australia) Pty Ltd v Sprowles.[32]
[32] [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218.
I described the statements dealing with activities at Mr Johnstone’s house as, on their face, inconsistent. I agreed with the Arbitrator’s conclusion that they “cannot stand together”. I regarded the argument that there was procedural unfairness in how that material was used, and the opportunity Ms Ooi had to respond to it, as lacking in substance.[33] Regarding the alleged failure to have proper regard to the reports of Dr Champion, I noted the case of NEC that Dr Champion’s opinion, like that of Dr Bodel, was deprived of weight. Both doctors had proceeded on a factually incorrect understanding of the history, regarding the motor vehicle accident and its medical consequences. I regarded the Arbitrator’s approach as “well open”, and the challenge to the rejection of Ms Ooi’s case on ‘injury’ failed. I regarded the Arbitrator’s reasoning as adequately exposed.[34]
[33] Presidential decision, [51]–[56], [59]–[62].
[34] Presidential decision, [58].
There was a generally expressed ground that the Arbitrator’s finding on ‘injury’ was against the weight of the evidence. I noted there was a factual issue between the parties regarding Ms Ooi’s duties. On the version in the statement of NEC’s state manager (Mr Smoker) Ms Ooi’s computer work amounted to about two hours per day, not constant. There was no time Ms Ooi was consistently inputting data into the computer. I concluded Ms Ooi’s case on ‘injury’ was “seriously compromised” by the material relating to the motor accident. The Arbitrator said he was not persuaded Ms Ooi’s histories and descriptions of the mechanism of injury were accurate. This deprived the medical evidence on which Ms Ooi relied of weight, and she could not discharge her onus of proving ‘injury’. I was not persuaded the Arbitrator’s decision on ‘injury’ was against the weight of the evidence.[35]
[35] Presidential decision, [63]–[70].
For the reasons summarised above I concluded that Ms Ooi’s appeal failed. She seeks a reconsideration of that decision.

THE NATURE OF THE RECONSIDERATION POWER

Section 350(3) of the 1998 Act provides:
“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 power is discretionary. There is a helpful summation of the principles governing the reconsideration power in the decision of Samuel v Sebel Furniture Limited, which has been repeatedly applied in the Commission. Following a review of the authorities Acting Deputy President Roche said:
“Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:
1.      the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
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’);
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’);
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’);
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’), 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).”[36]
[36] [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel), [58].

THE BASIS ON WHICH THE RECONSIDERATION APPLICATION IS BROUGHT

Ms Ooi forwarded the reconsideration material to the Commission under cover of two emails on 9 July 2020. These had attached a letter to the President dated 8 July 2020 seeking reconsideration (the Reconsideration letter) and various documents, including reports of Dr Champion dated 29 July 2013 and 29 May 2018 and some witness statements. The letter to the President states:
“During the appeal process in 2006, there was no hearing or oral evidence given about my work duties, nature of work, working long hours, the difficult work situation and the lack of duty of care at the workplace for my safety and well-being. It was determined that more evidence was necessary to discharge the onus of proof of work-related injuries as the medical evidence and expert opinions alone were insufficient.”[37]
[37] Reconsideration letter, p 1.
Ms Ooi says that her work-related injuries occurred during her employment from 1990 to 2003. She alleges there is a “[d]eterioration of pre-existing work-related injuries manifesting in bilateral shoulder pain”. She says x-rays of the left shoulder requested in 2013 by Dr Browne, a rheumatologist, reported tendonitis. She says that left shoulder pain pre-existed at work and was “progressively worsened with overcompensating for right shoulder”. She refers to long hours, an “ever increasing workload” and “pressured, fast and intensive keyboard applications”. She also refers to “ongoing long term stress and strain on mind and body”. She says she regularly worked a “constant 60 hour week”.[38]
[38] Reconsideration letter, pp 3–4.
Ms Ooi addresses at some length on negligence and alleged failures by NEC to comply with its occupational health and safety obligations.[39] This is largely irrelevant to the application to reconsider. She addresses on s 9A of the 1987 Act and whether there are ‘lifestyle factors’ that could have contributed to her injury.[40] This is of little relevance to the reconsideration application. Ms Ooi’s application failed on the issue of ‘injury’, not on the basis of whether s 9A was satisfied or not.
[39] Reconsideration letter, pp 4–6.
[40] Reconsideration letter, p 6.
Ms Ooi refers to two specific matters that were important in how the arbitral proceedings and appeal were dealt with in the 2004 proceedings. In respect of the motor vehicle accident and her activities at Mr Johnstone’s house, she submits:
(a) “The minor traffic accident in January 2001 is not a contributing factor to my pre-existing work related Repetitive Strain Injury (RSI) or Occupational Overuse Syndrome; which is typical of nature of work and heavy reliance on keyboard work for an office worker at the workplace over many years as medically proven.” (emphasis in original)
(b) “Life situation in the real world – in 2004 I (the Applicant) lend support in a life threatening medical situation for a frail elderly person (the late Mr Johnstone). As a short-term carer with a disability, I relied on the existing automated domestic system, with no heavy lifting or heavy manual work required of me. I take great care of my own health and safety first. A copy of statement from Mr R Kelso (a close friend of the late Mr Johnstone, as attached) confirms this life circumstance that did not cause or serve to aggravate my pre-existing work injuries.”[41]
[41] Reconsideration letter, p 7.
Ms Ooi refers to various aspects of her duties that she describes as “other relevant considerations” (emphasis in original). These include not being allowed to take her son to a dentist in her lunch hour without taking annual leave and not being allowed to leave work slightly early to take her son to athletics training. She regards the division of work between herself and other workers as having been unfair. She says she managed her “chronic pains and fatigue” with sick leave, annual leave and her own expense. She says she suffers from post-traumatic stress disorder and heart palpitations.[42]
[42] Reconsideration letter, pp 7–8.
Ms Ooi says she seeks weekly compensation, medical and related expenses, permanent impairment compensation, payment for pain and suffering, psychological injury and past and future economic loss.[43]
[43] Reconsideration letter, pp 8–9.
Ms Ooi refers to various “Rules of Law” on which she relies. She refers to the statutory objectives of the Commission (s 3 of the 1998 Act) and to ss 4, 9, 9A, and 11A of the 1987 Act. She submits that on the probabilities her work was the substantial contributor to the aggravation, acceleration, exacerbation, and continued deterioration of her work-related injuries that arose out of and during her employment from the 1990s to 2003. She refers to s 350(3) of the 1998 Act and submits reconsideration should be allowed as there is new evidence that could not have been reasonably been obtained prior to the decision, which would likely have led to a different result. She refers to s 352(6) of the 1998 Act, which governs the admission of fresh or additional evidence in Presidential appeals. She submits s 352(7) permits a Presidential member to revoke a decision and make a new decision in its place. She refers to s 356(3) of the 1998 Act which permits the Commission to refuse a right of legal representation to an insurer if a worker is unrepresented.[44]
[44] Reconsideration letter, pp 9–12.
I have read and taken into account the whole of the reconsideration letter, including those parts that are not referred to in this summation of Ms Ooi’s description of the submissions and issues. Ms Ooi’s material includes a document headed “LC OOI MEDICAL FACTS SUMMARY”. It is seven pages in length and sets out matters of history (things such as Ms Ooi’s height, weight, family history and the like). Much of its content involves topics on which her opinion as a lay person would not carry weight (for example matters such as the ergonomics of her work-station, causation of various medical conditions and complaints, comments on NEC’s failure to comply with work, health and safety guidelines, broad judgements on the non-supportive nature of her work situation).
Ms Ooi also attaches a medical certificate of Dr Konduru dated 22 February 2020. It nominates an injury date of 26 September 2003 and describes the work related injury/disease as “Rt shoulder/ neck injury/ anxiety/ depression/ lower back pain, chronic pain/ PTSD”.
Ms Ooi attaches a statement of Ronald Kelso dated 24 August 2019. Mr Kelso states that his son and Ms Ooi’s son were “schoolmates”. Mr Kelso says he was a “mate” of Mr Johnstone for over 25 years, before Mr Johnstone’s death in 2011. He states that Mr Johnstone’s home was “well equipped with modern domestic appliances”, there was “no heavy lifting or strenuous labour required for his domestic chores”. There was “no messy cooking required”. His shopping trolley was “never anything over 5 kg or 10 kg to carry”. He said that Ms Ooi only helped out when Mr Johnstone was “considered medically unstable”, a “couple of weeks only”.
Ms Ooi relies on two further reports of Dr Champion, dated 29 July 2013 and 29 May 2018, that are attached to her correspondence. In the earlier of these Dr Champion described the “overview” set out in his last previous report dated 10 November 2009:
“I concluded that the right cervicobrachial, right shoulder and thoracolumbar regional back pain disorders had been substantially causally influenced by the nature and conditions of her employment. These were not primarily psychologically driven disorders but, as with all chronic pain syndromes, psychological factors had been caused by the chronic pain disorder and in turn had no doubt contributed to worsening of the pain experience and disability. I had acknowledged that the motor vehicle accident in January 2001 probably contributed 5 – 10% to the chronic neck pain.”[45]
[45] Dr Champion report 29/7/13, p 1.
Dr Champion said Ms Ooi underwent surgical decompression of the right shoulder with patch repair of the supraspinatus tendon at the hands of Dr Cass in November 2011. Dr Champion quoted from an MRI report on the right shoulder dated 23 November 2011, in which the reporting doctor described “Full thickness tear of the supraspinatus tendon with only mild tendon retraction of up to 1 cm. Prominent acromial spurring.” Dr Champion referred to a report from the Royal North Shore Hospital Pain Management Service dated 14 May 2013. He said an accompanying psychological report diagnosed an “adjustment disorder with mixed anxiety and depression, related to her pain disorder.” Dr Champion referred to “thoracolumbar back pain” that was “less well documented over the years”. He said there was “evidence that Ms Ooi reported her back pain relatively early and concluded that there had been a substantial biomechanical causal influence related initially to the nature and conditions of her employment”. The doctor described Ms Ooi as “permanently unfit for work”.[46]
[46] Dr Champion report 29/7/13, pp 5–7.
Dr Champion’s report dated 29 May 2018 referred to and quoted from a statement of Ms Ooi in support of her reconsideration application. The doctor said he understood that Ms Ooi wished to write to the President of the Commission seeking reconsideration “based on new evidence, or rather evidence not previously presented”. Dr Champion said he “will support her to the best of my capacity, while endeavouring to remain realistic and objective”.[47]
[47] Dr Champion report 29/5/18, pp 1, 3.
Dr Champion said “Her current symptoms are the same as they have been for many years. The most important regions of chronic pain are the shoulders, more on the right side, right pectoral region, neck, upper back, right upper quadrant of abdomen, lower back. There has been a gradual worsening trend.” Dr Champion set out a “long and somewhat repetitive” document from Ms Ooi, which he said he had edited “mainly to change to third person expression and to adjust grammar”.[48] It is generally consistent with the matters Ms Ooi put to the President in the reconsideration letter. Dr Champion gave a diagnosis:
“… Ms Ooi’s chronic multiregional work-related and post-traumatic pain disorders have extended to be classifiable as a chronic widespread pain disorder (while the primary regions of trauma-related chronic pain are still evident over and above the widely extended pain). The validity of her pain reporting is strongly supported by the somatosensory test findings, which provide good clinical evidence of central sensitisation, now widespread/generalised”. (emphasis in original)
[48] Dr Champion report 29/5/18, pp 5–7.
Ms Ooi also relies on a joint statement by Jason Chung and Land Chung, her siblings. The statement is generally laudatory of Ms Ooi’s character, work ethic and the like. It makes multiple assessments of the causes of matters such as Ms Ooi’s divorce, mental state, medical situation and injuries. It is by and large impossible to know which of the siblings was responsible for which of the views contained in the document. It is of little probative force, having regard to the provisions of r 15.2 of the Workers Compensation Commission Rules, 2011 (the Rules).[49]
[49] See generally, Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282, 13 DDCR 351, [3], [59].
The material relied on also includes a 19 page document headed “Reasons for Reconsideration of Work Injury Claim”. Although more lengthy, its contents are generally consistent with the submissions made in the Reconsideration letter.
The Reasons for Reconsideration also refer to the specific matters which assumed significance in the Foggo reasons and the Presidential decision. The motor vehicle accident is described as “minor”, it is said that “all medical evidence proved that this incident cannot cause such an entrenched pre-existing occupational overuse injuries sustained and progressively deteriorated from working as an office worker with NEC from 1990 till 2003 (injury manifested through an extended period of many years)”.[50] (emphasis in original)
[50] Reasons for Reconsideration, [16.1].
Ms Ooi refers to her domestic services for Mr Johnstone as “short term domestic help rendered (not by choice) to support the late Mr Johnstone after his plea for support with life threatening ailments”. She states this “did not cause my pre-existing occupational overuse work-related injuries” (emphasis in original). She says that Mr Johnstone’s home was “well equipped with fully automated appliances”. “There was no need for heavy lifting or intensive manual labour”. She submits the medical evidence proves her injuries resulted from her performance of office work.[51]
[51] Reasons for Reconsideration, [16.2].

The Respondent’s Response

The Response is contained in a letter from the respondent’s solicitors to the Registrar dated 2 October 2020. It states that the initial proceedings (5574/05 (sic 04)) resulted in an award for the respondent. It submits that since that time two applications for reconsideration were dismissed by the Commission “as a consequence of [Ms Ooi’s] failure to adequately particularise her claim and her failure to comply with the Commission’s procedures”. The respondent submits the claim continues to be “deficient and misconceived”.
Ms Ooi’s reconsideration letter, near its outset, states that reconsideration is requested “under Sections 329(1A), 350(3) and 378” of the 1998 Act. The respondent submits that, to the extent that the application relies on s 329(1A), the submissions are misconceived. Section 329(1A) “is directed to the procedure for reassessment of a medical dispute” and cannot qualify the effect of a Certificate of Determination issued by the Registrar. The respondent submits s 378 is directed towards correcting uncontentious errors in Medical Assessment Certificates issued in accordance with s 325. Reliance on s 378 is misconceived and to the extent that the application has that basis it should be dismissed.

The respondent submits that, in the absence of an appeal, Ms Ooi cannot continue a ‘dispute’ by refusing to accept the Commission’s determination. The respondent quotes the passage from Samuel set out at [31] above. The respondent notes that 15 years have passed since Ms Ooi’s claim was determined with an award for the respondent. It is eight years since Ms Ooi’s most recent application for reconsideration was dismissed by Arbitrator Wynyard. The respondent observes that Ms Ooi makes no attempt to provide a reason for the extent of the delay. There are references to her difficulties in obtaining “legal help”, but this does not account for the extensive delay.
The respondent refers to the two most recent reports of Dr Champion, 29 July 2013 and 29 May 2018. It submits there is no explanation for why these have “only recently surfaced”. Their issue, approximately 10 to 15 years after the alleged injury “suggests they would carry little, if any evidentiary weight”. The respondent submits Ms Ooi did not appeal the prior decisions which she now seeks to challenge.
The respondent submits it is prejudiced by the “significant time which has elapsed since the initial decision”. It submits the current application, like those that preceded it, is “frivolous or vexatious or otherwise misconceived or lacking in substance [and] should be dismissed in accordance with Section 354(7A) of the 1998 Act”.

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.”
The parties have not specifically addressed the topic of whether the matter can be dealt with on the papers. Ms Ooi makes submissions critical of the fact that the 2004 proceedings were dealt with in the absence of oral evidence. An application to adduce oral evidence in the current proceedings has not been presaged. Ms Ooi has had ample opportunity to put on such statements and other material as she wishes and has lodged statements from her siblings and Mr Kelso in support of this application. Having regard to Practice Directions Nos 1 and 6 and the documents that are before me, 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.

CONSIDERATION

Section 375 of the 1998 Act provides:
“375 Constitution of Commission for particular proceedings
(1)     For the purposes of any proceedings, the Commission is to be constituted by an Arbitrator except as provided by this section.
(2)     The Registrar may give directions as to which Arbitrator is to constitute the Commission for the purposes of any particular proceedings or class of proceedings.
(3)     For the purposes of any proceedings on an appeal against a decision of the Commission constituted by an Arbitrator, the Commission is to be constituted by a Presidential member.
(4)     The Registrar does not constitute, and does not exercise functions as, the Commission (except when acting as an Arbitrator pursuant to the Registrar’s power to exercise the functions of an Arbitrator).”
I accept that I have power to deal with an application for reconsideration of an appeal. Such an appeal is conducted in compliance with s 352 of the 1998 Act. In the circumstances, the various threshold requirements of s 352, such as time (subs (4)) and the amount at issue (subs (3)) have been satisfied when the appeal, the subject of the reconsideration application, was brought in the 2004 proceedings. Section 352(5) of the 1998 Act has application:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
It follows that decisions dealing with the conduct of appeals pursuant to s 352(5) have application.[52] Applications for the admission of fresh evidence are subject to s 352(6).[53]
[52] See Raulston v Toll Pty Ltd, [2011] NSWWCCPD 25; 10 DDCR 156, Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, [72] and Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54, [20].
[53] See CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501, [27], [30]–[31].
In Hilliger v Hilliger[54] Street CJ dealt with a provision, similarly worded to s 350(3) of the 1998 Act, in the Landlord and Tenant Amendment Act 1948. The decision of Hilliger was applied by the Court of Appeal, to the exercise of the reconsideration power (at the time s 36(2) of the Workers Compensation Act 1926) by the then Workers Compensation Commission of New South Wales, in Hardaker v Wright & Bruce Pty Ltd. Their Honours Owen and Walsh JJ referred to “the width of the power” and said:
“It is important, naturally, to keep well in mind the distinction between the existence of the power and the occasion of its exercise, and courts should not lose sight of the general rule that public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the legislature intended to leave with the prescribed courts the power of reviewing any decision to see that justice is done between the parties.”[55]
[54] [1952] SR (NSW) 105 (Hilliger), 108.
[55] Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244 (Hardaker), 248.
In Maksoudian v J Robins & Sons Pty Ltd Bishop J discussed the principles in reconsideration applications (at that time governed by s 17(4) of the Compensation Court Act 1984):
“The legal basis for a reconsideration for an award of the Court as laid down in section 36 of the previous legislation and section 17 of the present is well settled. There is no doubt that the discretion of this Court to reconsider is wide and far reaching. The task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. The cases do not comprehensively indicate how the Court is to approach this task, but it does seem that two broad requirements are laid down. The first of these is that the material leading to an application for reconsideration must be what can broadly be described as ‘fresh evidence’, namely material that with reasonable diligence could not have been put before the Court at the time of the original proceedings and the application for reconsideration has to move with appropriate speed and diligence to bring that matter to the Court's attention. The second point is that the fresh evidence must be of such a nature that if it had been before the Court when the original proceedings were heard it would more likely than not have affected the outcome of the proceedings.”[56] (citations omitted)
[56] [1993] NSWCC 36; 9 NSWCCR 642 (Maksoudian), 645.
In Galea v Ralph Symonds Pty Ltd O’Meally J said there was “a distinction between fresh evidence and more evidence”. His Honour continued:
“Even if it could properly be said that fresh evidence were now available the applicant must satisfy me that that evidence was not discoverable by the exercise of reasonable diligence at the time of the hearing before Williams J and that if believed would be at least a determining factor in the outcome of the case.”[57]
[57] (1989) 5 NSWCCR 192, 201.
The reconsideration power is a discretionary one. There are multiple factors that militate against its exercise in the circumstances of this case.
The presence of unexplained delay, and the principle that litigation should not proceed interminably, are important in the circumstances of this case. Ms Ooi worked with the respondent, performing duties that allegedly caused injury, from 1990 to 26 September 2003. The decision of Arbitrator Foggo was dated 10 May 2005. My appeal decision was dated 26 June 2006. Ms Ooi’s appeal to the Court of Appeal was dismissed in early 2007 (both February and March are suggested – see [4] above). That was the conclusion of the formal appeals process, over thirteen years ago.
A document headed “Summary of Workers Compensation Claim (Amended)” is attached to the reconsideration application. It provides a brief chronology of steps taken in the matter. The period from early 2007, when the appeal to the Court of Appeal was dismissed, to October 2010 (when an application was lodged in the 2010 proceedings) consists of entries that Walker Legal “continued to pursue matter with NEC”, that a threatening letter was received from the respondent’s solicitors, and that “Walker Legal could not pursue claim”.
The chronology then refers to the 2010 proceedings which were dismissed by Arbitrator Capel on 16 December 2010. The period from late 2010 to January 2012 is dealt with by a statement that the “Applicant diligently search for legal representation and has no luck”, together with reference to the shoulder surgery undergone by Ms Ooi in November 2011. The chronology then describes a letter to the respondent’s insurer in January 2012 seeking reconsideration, followed by a denial of liability by the insurer in February 2012, followed by the 2012 proceedings which were dismissed by Arbitrator Wynyard on 3 May 2012.
The period from “2012 – current” is dealt with in a single entry:
“Applicant diligently search for legal help and contacting several solicitors/barristers but failed – lack of funds to pay for their services with the persistent lack of accountability and transparency by NEC (the Respondent) impacting on confidence of legal representatives.”
The concluding entry is a reference to the giving of notice to the insurer of the current reconsideration application. The respondent submits it is prejudiced by the delay, although does not proffer particulars of this.
During the period of thirteen years, from early 2007 when the formal appeals process finished to the commencement of the current proceedings in mid-2020, the only steps that sought to positively advance the matter were the reconsideration applications in 2010 and 2012. The period of eight years from 2012 to 2020 is largely unexplained. The presence of very extensive delay, which is not adequately explained, militates heavily against exercise of the discretion in Ms Ooi’s favour. The course that is being followed amounts to effectively litigating the same matter “again and again” (see the passage of Hardaker quoted at [59] above).
The fundamental reason why Ms Ooi failed before the Arbitrator was because he made an adverse credit finding (see [28] above and the Foggo reasons, [38]–[42]). There were two areas of the evidence that led to this:
(a) There was overlap between the symptoms Ms Ooi complained of (neck and shoulders) as a result of the motor vehicle accident and the injury due to her employment duties.
On 12 April 2002 Ms Ooi attended a general practitioner, Dr Sooy, who she had previously seen on 25 January 2001 and 27 March 2002 about her injuries in the motor vehicle accident. Dr Sooy examined her and completed the “Medical Certificate” which formed part of a motor vehicle claim form dated 15 April 2002 submitted by Ms Ooi in the third party claim relating to the accident that occurred in January 2001. Dr Sooy reported to the third party insurer on 4 September 2002. He reported that as at 12 April 2002 Ms Ooi complained of limited neck movements, pain at the base of the neck radiating to the shoulders, that she had been treated by an acupuncturist and massage therapists, and had taken various pain relief medication with some temporary relief. The history did not suggest Dr Sooy was informed of any injury due to Ms Ooi’s work duties, or that symptoms from the motor vehicle accident had resolved by October 2001. In the motor vehicle claim form dated 15 April 2002 Ms Ooi responded “No” to a question “Have you had any other injuries or illnesses – before or since the accident – to the same part(s) of your body?” The third party claim settled in about January 2003.[58]
In her statement dated 13 October 2003, given to investigators investigating the workers compensation claim, Ms Ooi did not mention the motor vehicle accident. She stated that she had not suffered any other injuries that she could recall, and that she had not suffered “any similar type injuries that I presently have”. In her statement dated 19 March 2004, for the purposes of the workers compensation claim, she described symptoms commencing in late 2001 and made no mention of the motor vehicle accident. When assessed by Dr Meares in November 2003, in connection with the workers compensation claim, Ms Ooi gave “no history of prior injury”, the history was silent as regards the motor vehicle accident. There was no indication, in the reports of Dr Champion, used in Ms Ooi’s case in the 2004 proceedings, that Dr Champion was at that time aware of the motor vehicle accident. Dr Bodel examined Ms Ooi on 8 November 2004. He recorded a history of the motor vehicle accident in January 2001 with injury to the neck, and that the “neck resolved before the onset at work in October 2001”.[59] It appears likely Ms Ooi and those acting for her were aware of the third party material from about 27 August 2004 when NEC lodged an Application to Admit Late Documents attaching the material.[60]
(b) The discrepancy between Ms Ooi’s statement dated 19 March 2004 about her difficulties doing her own household chores, compared with her statement dated 15 June 2004, in which she said she provided Mr Johnstone with domestic assistance for 10 to 12 hours per week.
[58] Presidential decision, [26]–[29].
[59] Presidential decision, [18]–[19], [21]–[22], [25].
[60] Presidential decision, [52].
Ms Ooi, in the material put on in support of the reconsideration application, refers to the motor vehicle accident as “minor” and states it did not cause her condition. This does not solve the credit issue. Ms Ooi’s claim failed because the Arbitrator was not satisfied that her history of injury, relied on by the doctors who supported her case, should be accepted. There was significant unexplained inconsistency, particularly prior to August 2004, between statements and medical histories involving the two injuries. For reasons given in the Presidential decision at [66] to [70], I concluded that the Arbitrator’s decision was “well open to him on the evidence” and did not demonstrate appealable error.
The fresh evidence on which Ms Ooi seeks to rely, most specifically relevant to matters that led to the credit finding, is the statement of Mr Kelso (see [35] above). He essentially states that caring for Mr Johnstone would not have been arduous as Mr Johnstone’s house had modern, labour saving appliances and his wants (for example meals) were not great. Ms Ooi’s submissions on the reconsideration support this. The prime significance of the evidence before Arbitrator Foggo, about Mr Johnstone, was that it was difficult to reconcile Ms Ooi’s evidence of the difficulties she had with her own domestic duties, with the proposition that she was doing up to 12 hours per week of another person’s domestic care. If it were accepted that the activities at Mr Johnstone’s house were of a relatively undemanding nature, this could lessen the impact of that apparent discrepancy.
There is, however, a difficulty with the use of Mr Kelso’s evidence and the associated material from Ms Ooi. The passage from Maksoudian quoted at [60] above refers to the need for fresh evidence, relied on in a reconsideration, to be “material that with reasonable diligence could not have been put before the Court at the time of the original proceedings and the application for reconsideration has to move with appropriate speed and diligence to bring that matter to the Court’s attention”. There was no good reason why Ms Ooi could not have sought to put on evidence, either in statement form or orally, at the hearing before Arbitrator Foggo, to deal with the nature of the activities she carried out in caring for Mr Johnstone.[61]
[61] See the discussion in the Presidential decision at [51]–[56].
Shortly after the commencement of the arbitration hearing, the Arbitrator asked the legal representatives whether they wished for Ms Ooi to give some evidence. No application was made by either party.[62] To permit such evidence to be relied on now, in the context of a reconsideration of the Presidential decision, approximately 15 years after the arbitration hearing before Arbitrator Foggo, would be contrary to the principles that govern reconsiderations. The material would not satisfy the requirements to be admissible as fresh evidence pursuant to s 352(6) of the 1998 Act, applying the decision in Strickland. It could not be said that Ms Ooi moved “with appropriate speed and diligence” to rely on the further evidence.
[62] T 1.25–54.
Additionally, the evidence regarding Ms Ooi’s activities looking after Mr Johnstone is not of such a nature that it would, “if admitted, … more likely than not have affected the outcome of the proceedings” (see the passage of Maksoudian quoted at [60] above). The evidence may have lessened the impact of the apparent discrepancy regarding Ms Ooi’s ability to perform domestic activities. The difficulty with the inconsistent statements, regarding the two potential causes of injury, remains, and would justify the view formed by the Arbitrator, and confirmed by me on the Presidential appeal, regarding credit. It follows that, applying the principles in Strickland, the evidence of Mr Kelso would not satisfy the criteria for admission as fresh evidence pursuant to s 352(6) of the 1998 Act. If admitted, it would not constitute “material that with reasonable diligence could not have been put before the Court at the time of the original proceedings”. It follows that the material from Mr Kelso, and material from Ms Ooi to similar effect, does not assist in Ms Ooi’s application for reconsideration.
Ms Ooi relies on further reports of Dr Champion dated 29 July 2013 and 29 May 2018. It has, throughout, been Dr Champion’s view that Ms Ooi suffers from repetitive strain injury as a result of her duties with NEC. In his most recent report in evidence, dated 29 May 2018, Dr Champion said of the diagnosis:
“… it is better in her context to go with work-related and trauma-related chronic multiregional pain disorders which have extended to a chronic widespread pain disorder.”
To pick up the language of O’Meally J in Galea (see [61] above) the further medical reports of Dr Champion constitute “more evidence” rather than “fresh evidence”. It does not lead to the conclusion that reconsideration is appropriate.
I accept the respondent’s submission that Ms Ooi’s reliance on ss 329(1A) and 378 is misconceived.

CONCLUSION

Ms Ooi has not persuaded me that the Commission’s discretionary power of reconsideration pursuant to s 350(3) of the 1998 Act should be exercised in the circumstances. The factors overall do not support that conclusion.

DECISION

Ms Ooi’s application pursuant to s 350(3) of the 1998 Act to reconsider the Commission’s decision dated 26 June 2006 is refused.

Michael Snell

DEPUTY PRESIDENT

25 November 2020

[2020] NSWWCCPD 68

10 May 2005