Ooi v NEC Business Solutions Ltd (No 2) - [2020] NSWWCCPD 68

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWWCCPD 68
Decision Date: 10 May 2005

CaseChat Overview and Summary

The case involves Ooi as the appellant and NEC Business Solutions Ltd as the respondent. The appellant was previously awarded workers’ compensation in 2006 by the Commission. The appellant applied for reconsideration of the decision under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998. The appellant claimed that the Commission failed to consider various aspects of her duties and conditions of employment as “other relevant considerations” in its decision. She sought weekly compensation, medical and related expenses, permanent impairment compensation, payment for pain and suffering, psychological injury, and past and future economic loss.

The court had to determine whether there was new evidence that could not have been reasonably obtained prior to the original decision, which would likely lead to a different result. The appellant relied on several sections of the 1998 and 1987 Acts, including sections 3, 4, 9, 9A, 11A, 350(3), 352(6) and 352(7) of the 1998 Act. The court had to assess the significance of the new evidence provided by the appellant and whether it was sufficient to warrant reconsideration.

The court found that the appellant’s submissions did not establish that the new evidence was of such a nature that it could not have been reasonably obtained prior to the decision. The court also found that the new evidence did not establish that the Commission’s decision was wrong or unjust. The court noted that the appellant’s submissions were largely based on her own opinions and perceptions, which were not supported by expert evidence. The court held that the appellant had not discharged the onus of proving that the new evidence was significant and that it would likely lead to a different result. The court refused the appellant’s application for reconsideration.

The court's decision was that 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.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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”.