Zohrabi v Lexington International Pty Limited - [2007] NSWWCCPD 233

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Zohrabi v Lexington International Pty Limited [2007] NSWWCCPD 233
APPELLANT:  Natasha Zohrabi
RESPONDENT:  Lexington International Pty Limited
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER:  WCC3319-07
DATE OF ARBITRATOR’S DECISION:          31 July 2007
DATE OF APPEAL DECISION:  28 November 2007
SUBJECT MATTER OF DECISION: Claims under sections 66 and 67 of the Workers Compensation Act 1987; prior referral to Approved Medical Specialist; estoppel; reconsideration; evidence
PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy
HEARING:On the papers.
REPRESENTATION:  Appellant:      Walker Legal, Solicitors
Respondent:   Sparke Helmore Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 31 July 2007 is confirmed.
Each party is to pay her or its own costs of the appeal.

BACKGROUND TO THE APPEAL

Natasha Zohrabi (‘the worker’) suffered an injury on 8 October 2002 when she fell from a ladder in the course of her employment by Lexington International Pty Limited (‘the employer’) as a shop assistant. A claim for workers compensation was made to the employer and that was referred to its insurer, NRMA Workers Compensation (NSW) (No. 2) Pty Limited. At some stage the liability of that insurer was assumed by CGU Workers Compensation (NSW) Limited (‘CGU’).
Weekly compensation and treatment expenses were initially paid without dispute. The worker’s former solicitors wrote to CGU on 13 October 2004 seeking lump sum compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) in the sum of $42,500.00 based on the reports of Dr Beer, an orthopaedic surgeon, dated 6 September 2004. Dr Beer assessed the worker’s impairment of the lumbar spine at 6% and the same for the cervical spine. From those assessments the doctor deducted 1/10^th for previous injury or pre-existing condition or abnormality pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The total whole person impairment assessed by Dr Beer was 10%.
CGU replied to this claim by letter of 25 November 2004 in which it advised that, based on a report of an occupational physician, Dr Walls, it took the view that the worker’s condition had not stabilised or reached maximum medical improvement. Accordingly, an Application to Resolve a Dispute (‘ARD’) numbered 1896-05 was registered in the Workers Compensation Commission (‘the Commission’) on 8 February 2005. This specified the date of injury as 8 October 2004 [sic] and the injury was described as “injury to back”.
CGU did not instruct solicitors but lodged a Reply to the ARD on 8 March 2005. The issues were specified as follows:
“Dr Beers report (6.9.04) calculations were incorrect & he did not comment on if ws condition stabalised. --Dr Walls report indicated 0% WPI.” [sic]
The matter was referred to a Commission Arbitrator who held a teleconference on 19 April 2005. There is no transcript or note in the Commission file as to what took place on that occasion. However, following the teleconference, the assessment of permanent impairment was referred by the Arbitrator to an Approved Medical Specialist (‘AMS’), Dr Ellis. In that referral the date of injury is specified as being 8 October 2002 and the body parts claimed were said to be “cervical spine and lumbar spine”. The Arbitrator also gave leave at the teleconference for the worker to amend the date of injury recorded in the ARD to 8 October 2002.
Dr Ellis, examined the worker on 4 July 2005 and issued an undated Medical Assessment Certificate (‘MAC’) which was sent by facsimile on 14 July 2005. Dr Ellis’ view was that the worker was not then ready for assessment of permanent impairment and declined to make such assessment.
The Registrar issued a Certificate of Determination (‘COD’) to the parties on 15 August 2005. This provided as follows:
“1. In relation to the assessment of whole person impairment for the date of injury of 8 October 2002 referred for assessment by an Approved Medical Specialist, maximum medical improvement has not been reached.
2.Liberty to both parties to apply to the Commission to restore the proceedings in 12 months from the date of the Medical Assessment Certificate.”
The worker’s solicitors wrote to the Registrar on 24 October 2006 seeking to have the matter again referred to an AMS. The Registrar wrote seeking further particulars which were not supplied and the file was then noted to be closed.
The worker’s current solicitors wrote to CGU on 28 February 2007 making a claim in respect of weekly compensation. This arose from a dispute as to the worker’s earnings in her own business which she had been carrying on concurrently with her work as a shop assistant. That letter enclosed a draft ARD in which the date of injury was correctly stated as 8 October 2002 and the injury was described as before as “low back”. There was no claim for permanent impairment made.
An ARD was lodged in the current proceedings with the Commission on 9 May 2007. This was not in accordance with the draft application referred to the insurer on 28 February 2007. Additionally compensation was sought under sections 66 and 67 of the 1987 Act. To the injury description has been added in handwriting “neck, depression/psychological sequelae”. Attached to the ARD were reports of Dr Beer dated 5 February 2007 in which he found 6% impairment of the lumbar spine and 5% impairment of the cervical spine with no deduction from either assessment pursuant to section 323 of the 1998 Act. On this occasion CGU did instruct solicitors who lodged a Reply with the Commission on 30 May 2007. That Reply relevantly denied that the worker had suffered any injury at all and additionally raised the following:
“2.That the Applicant is not permitted to allege an injury to the ‘neck, depression/psychological sequelae’ as handwritten in Part 4 of the ARD. The Respondent submits this was not pleaded in the draft ARD forwarded to the insurer on 28 February 2007. In addition, these body parts or conditions were also not alleged in the Request for a Review dated 13 April 2007.”
The matter was referred to a Commission Arbitrator and was listed for a conciliation/arbitration hearing on 16 and 17 July 2007 at which both parties were represented by counsel.
On 16 July 2007 agreement was reached between the parties as to the worker’s entitlement to weekly compensation and treatment expenses. However the question of compensation under sections 66 and 67 remained in dispute particularly whether there had been an injury to the worker’s cervical spine on 8 October 2002. On 17 July 2007 the worker gave short oral evidence and the parties made submissions in respect of this issue.
The Arbitrator at the conclusion of submissions gave an ex tempore decision in which he found that the worker had injured her lumbar spine and suffered psychological injury in the fall in question. He referred the matter to the Registrar for a referral to an AMS for assessment of any whole person impairment caused to the lumbar spine by that injury. He specifically found that any cervical impairment suffered by the worker had not been caused by the injury of 8 October 2002.
It is from this decision of the Arbitrator that the worker now seeks leave to appeal.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 31 July 2007 records the Arbitrator’s orders as follows:
“Findings:-
1. On 8 October 2002 the Applicant suffered injury when she fell off a ladder.
2. She sustained injury to her lumbar spine and suffered psychological injuries.
3.I find that the cervical impairment suffered by the Applicant has not been caused by the injury of 8 October 2002.
The orders made are as follows:
1.I remit the matter to the Registrar for referral to an AMS for an assessment of any whole person impairment caused to the lumbar spine by that injury on 8 October 2002. I also refer the matter for consideration for the provisions of s.323 of the 1998 Act. The documents to be referred to the AMS are as follows, the numbers and letters after each document referring to the markings on those documents in the Commission file:-”
[There then follows a list of medical reports and records and also orders in respect of the weekly compensation and treatment expenses which is not necessary to set out here.]
In his determination the Arbitrator noted that the applicant in her evidence said that about seven or eight months after the accident she first noticed pain in her neck. The Arbitrator noted the submissions which had been made in relation to the various histories obtained by medical practitioners who had seen the worker that there had been no complaint made by her about her neck for a period of at least eight or so months. The Arbitrator found that there was support for the proposition that the worker had a neck condition but on the material before him he was not satisfied that neck condition resulted from the fall in question.
The worker relied on the MAC of Dr Ellis to which I have earlier referred. It was argued by the worker the question of causation had already been settled by the referral in the earlier matter to the AMS in that there had been found to be an injury to the neck as well as to the back. On behalf of the employer it was submitted that there may have been a determination or there may not. It did not know. The Commission file for the prior proceedings was not before the Arbitrator and the parties. The MAC of Dr Ellis was relied on by the worker and was attached to the ARD. Neither party, it seems, took steps to ascertain what had happened in those prior proceedings and I infer that this information was available either through CGU in the case of its solicitors or through the worker’s prior solicitors in the case of her current solicitors. In any event, the file was available at the Commission if any party had sought access to it. It should be noted that the ARD registered in this matter is, in part, inaccurate and misleading in that it denied that the worker had been examined at any time by an AMS or that any prior proceedings had been taken in relation to the injury. The Arbitrator accepted the submission made on behalf of the worker that there was an estoppel as to the finding of injury in the neck. However, he indicated he was prepared to reconsider the prior decision having regard to the provisions of section 354 of the 1998 Act. The relevant part of the section is as follows:
“(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
The Arbitrator held that he had the power to reconsider the prior decision and would do so on the merits of the case. He then made the findings referred to at [16].

ISSUES IN DISPUTE

The issues in dispute in the appeal are:
·Whether the Arbitrator was in error in holding that he was able to reconsider the decision of the Registrar in the prior proceedings and whether this was an appropriate case for the exercise of the power to reconsider under section 350(3) of the 1998 Act.
·Whether on the evidence the Arbitrator erred in making a finding that the worker had no cervical spine symptoms before August 2003.

ON THE PAPERS REVIEW

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 Numbers 1 and 6, the documents that are before me, and the submission 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.

LEAVE

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The Application to Appeal was lodged on 14 August 2007 which is within 28 days of the date of the Arbitrator’s decision, namely 31 July 2007. Accordingly, section 352(4) is satisfied.
Section 352(2) prescribes a monetary threshold for appeals. That subsection is as follows:
“(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000.00 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
It is asserted on behalf of the worker that the assessment of the impairment of the cervical spine obtained by Dr Beer is 6% and an award based on this assessment would exceed the monetary threshold. There is clearly no such assessment by Dr Beer since his prior assessment of 6% was subject to a deduction under section 323 of the 1998 Act and his later assessment was 5%. However it seems to me that the assessment of impairment in respect of the cervical spine would assist the worker in reaching the section 67 threshold namely permanent impairment of 10% or more thus entitling her to a sum for pain and suffering. The assessment by Dr Beer in relation to the lumbar spine alone would not be sufficient. The employer does not dispute that the threshold in section 352 is satisfied, although this of itself is not conclusive of the matter. I am satisfied that the amount of compensation at issue on the appeal is at least $5,000.00 and at least 20% of the amount likely to be awarded. It has, however, been held that the threshold of 20% in section 352(2)(b) does not apply when no compensation is awarded in the decision appealed against (Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5).
Neither party has addressed the provisions of section 352(8) which is as follows:
“In this section, decision includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the Regulations.”
Regulation 200B of the Workers Compensation Regulation 2003 is as follows:
“For the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed.”
Although the amendment to section 352(8) was made by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 No. 113 which commenced operation on 1 November 2006, Schedule 6 Part 18J Clause 5 of the 1987 Act provides that the amendments to section 352 apply retrospectively to claims for workers compensation made before the commencement of the amendments.
In P&O Ports Limited v Alan Hawkins [2007] NSWWCCPD 87 Roche DP dealt in some detail with the question of what is and what is not an interlocutory order. A decision of an interlocutory nature must be contrasted with a final decision which disposes of the parties’ rights. At [37(k)] he said the following:
“given the Commission’s objectives, it is not appropriate to deprive an unsuccessful party of the right to appeal to a Presidential Member in respect of a final decision on a matter that finally determines the parties’ rights on issues such as worker, injury, substantial contributing factor (or other issues that finally determine the parties’ rights) until all medical disputes have been assessed and determined under Part 7. Any order or determination by an Arbitrator on such issues should not be regarded as a matter that is a ‘preliminary or interim order of an interlocutory nature’, but should be regarded as a final order in which, provided the other thresholds in section 352 have been satisfied, leave to appeal will be granted.”
Applying the principles expressed by the Deputy President as set out above and otherwise in his reasons, I do not consider that the appeal in this matter should be held to be incompetent on the basis that the decision appealed against is of an interlocutory nature. The decision of the Arbitrator that there had been no injury to the worker’s neck in the fall in question did finally determine, subject to appeal, this issue. I note that Snell ADP came to the same conclusion on facts which were very similar to those in this case in Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196.
Leave to appeal is accordingly granted.

EVIDENCE, SUBMISSION, DISCUSSION AND FINDINGS

As I have earlier indicated there are two grounds of appeal. I will consider these in order.

Reconsideration

The worker submits that the Arbitrator was not empowered by section 350(3) of the 1998 Act to reconsider the decision of the Registrar in the earlier proceedings. This submission is based on the assertion that the decision reconsidered by the Arbitrator was that of the Registrar and the Registrar was not the Commission.
Section 350 of the 1998 Act is as follows:
“(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.”
Section 375 of the 1998 Act is as follows:
“(1) For the purposes of any proceedings, the Commission is to be constituted by an Arbitrator except as provided in 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).”
Apart from this it is submitted on behalf of the worker that this was not an appropriate case for the exercise of the power to reconsider. Three propositions are relied on based on a number of decisions, namely Southern Tablelands Health Service v Solomon (1999) 19 NSWCCR 235, Comensoli v NSW Department of Juvenile Justice [2006] NSWWCCPD 138 and Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141. It is said that the employer in the present proceedings did not bring any application to reconsider and the delay between the initial referral to the AMS and the decision by the Arbitrator to reconsider is excessive. It is also submitted that the employer was not entitled to rely on new evidence in seeking reconsideration because this evidence could have been obtained in the earlier proceedings and, thirdly, that a mistake or oversight by a legal adviser does not give rise to a ground for reconsideration.
The answers to the submissions by the worker in support of this ground are to be found in what the Commission file shows to have happened in the earlier proceedings with which I have already dealt at [2] to [8]. It is clear that the referral to the AMS was in fact that of the Arbitrator thus the submission that the Registrar does not constitute the Commission may be put aside. The submission also ignores the fact that the Registrar does constitute the Commission when acting as an Arbitrator (sections 371 and 375(4) of the 1998 Act).

So far as reconsideration is concerned, the sole injury relied on by the worker in the prior proceedings was to her “low back”. There was no claim that the worker’s neck had been injured, although Dr Beer had included an assessment of cervical impairment based on the worker’s history to him in which she made complaints of pain radiating up to her neck and shoulders. CGU did not instruct solicitors and following a teleconference the matter was referred by the Arbitrator for assessment by Dr Ellis. I infer from the referral and the failure to amend the part of the body in respect of which injury was claimed that the Arbitrator simply referred for assessment by Dr Ellis the whole person impairment in relation to both neck and back in accordance with the assessment made by Dr Beer. I cannot see from the papers in the earlier proceedings that there was any issue as to injury to the neck in respect of which a determination was required to be made. Thus, in my opinion, there was no earlier decision of the Commission to be reconsidered by the Arbitrator in these proceedings.

The Arbitrator’s finding that the worker had no cervical spine symptoms before August 2003

In support of this it is said that, contrary to what was found by the Arbitrator, the worker’s evidence was that in August 2003 the symptoms became so unbearable that she reported them. Reference is made to there being no adverse finding to the worker’s credit by the Arbitrator.
The worker gave evidence in this matter on 17 July 2007. Mr Moffet appeared for the worker and Mr Marsh for the employer. The relevant part of her evidence appears to be as follows in the transcript (from page 4 line 4):
“Q.                 And when did the pain go into your neck?
A.                   I’m sorry, I can’t recall exactly when.
Q.                   Can you do your best to estimate …
Mr Marsh:      I object.
Mr Moffet:     Q--[inaudible]?
A.                   A lot has happened. I --
Arbitrator:      Just a minute, just a minute.
Q.                   When you say you can’t recall when - -
A.       Exactly when it went into my neck I don’t know. It would have been – I don’t know. I can’t recall. I’m sorry, I can’t recall exactly.
Q.       Can you recall generally? I mean, was it years?
A.       Generally – no, not years. Probably about seven months, eight months after when I had quite a lot of neck pain.
Arbitrator:      Yes, Mr Moffet.
Mr Moffet:     There are no further questions, Arbitrator.
Arbitrator:      Right.
<Cross-examination
…
Mr Marsh:
Q.       Would you accept, Ms Zohrabi, that when you started to suffer problems in your neck you complained to the treatment providers you were seeing about the problems in your neck?
A.       When the pain got so unbearable, yes I did.
Mr Marsh:      I have nothing further.”
The Arbitrator then asked a question as follows:
“Arbitrator:
Q.       Just describe – I’ll give you guys leave to ask questions – what happened in the fall?
A.       What happened is I went up the ladder to retrieve a dress – lunch hour rush. I had previously been up and down the ladder that day before but someone must have moved it to get a knit out and it was wobbly, but I didn’t know. When I went up the ladder I grabbed the dress, I was on the last rung because the dresses were actually quite high, and I went to put my leg down to go down and the ladder twisted, and it just threw me off the top and straight on my back. I just fell like a pancake onto the floor
Q.       Well, what – you say on your back?
A.       Yes.
Q.       Did any other part of your body hit the ground?
A.       Well the impact was so quick and it was so shocking all I know is I just went flat right on my back to the head, to the neck, just flat on my back, and I hit my knee on the way down …
< Further Cross-Examination
Mr Marsh:
Q.       Madam, you said you landed like a pancake and you said you hit your back and your head, but I also think you said on this occasion that you hit your neck on the floor.
A.                   My neck?
Q.                   Mmm.
A.       Well, when I landed on my back I – well, the whole of my back, I landed on a concrete tiled floor.
Q.                   Yeah.
A.       I wasn’t really taking measurements of exactly where I fell and exactly where I hit. All I know is I fell flat on my back and head.”
The worker relied on two written statements made by her. The first although undated was said to have been made on 10 March 2004. It contains extensive handwritten additions and amendments apparently made by the worker. In that statement she said:
“In addition to the pain in my back I have developed pain in my neck going predominantly into my left arm although sometimes into my right.
…
The back and leg pain has been more or less consistent from the early stages and the neck and arm pain has gradually developed from a short time after my injury.”
In her statement of 2 January 2007 the worker said that she fell two metres to the ground landing on her back and head. She said she did not initially feel physical pain only shock.
The worker was seen by her local medical officer, Dr Gilhotra, the day after her injury, on 9 October 2002. In the initial certificate of that date under the heading “diagnosis” he has recorded the following:“Back pain, (muscle spasm) & right knee painful.”
Dr Gilhotra continued to provide the worker with medical certificates referring to back pain and sciatica up until the certificate of 23 June 2003 when he has recorded again under the heading “diagnosis”: “Back pain & neck pain.” The Arbitrator was not specifically referred to this however he was referred to a certificate of the doctor dated 12 November 2002 in which he recorded pain in the worker’s upper back
The worker was treated by a number of specialists. Dr Loefler, an orthopaedic surgeon, saw the worker on 12 November 2002 at the request of Dr Gilhotra. She complained to that doctor of pain in the lower lumbar region, mainly left-sided and radiating down to the left thigh. She told the doctor that she was otherwise well. I noted that Dr Gilhotra did not ask Dr Loefler to see her about neck pain.
Dr Loefler saw her again on 18 February 2003 after the worker had had an MRI of the thoraco-lumbar spine on 11 February 2003. The clinical history was of lower back pain with injury at work. The radiologist, Dr Sachinwalla, commented on the MRI that “no significant structural abnormality is seen throughout the region imaged”.
On 7 August 2003 Dr Chapanis, a clinical psychologist, made reference in a report to heat packs to the worker’s back and neck.
A rehabilitation physician, Dr Dalton, saw the worker at the request of Dr Gilhotra on 14 November 2003. She told him that she had lumbar pain extending into the thoracoscapular region and even into the neck which had been evident over the preceding two weeks.
From the treating doctors’ notes and reports it is clear that the applicant made no complaint regarding her neck until, at the earliest, June 2003.
The worker relied on the opinions of specialists who saw her in a medico-legal context and who did not treat her. These are Dr Beer and an orthopaedic surgeon who saw the worker for the employer, Dr Bodel. Dr Beer did not record a history of injury to the worker’s neck when he first saw her in September 2004 but found some limitation of movement and pain which he attributed to the fall in October 2002. Dr Bodel who examined the worker on 19 April 2007 took a history of the worker hitting her head, upper back and lower leg [sic] and both legs. He said that: “Over time her symptoms did improve a little but they never completely recovered and she has continued to have neck and back pain and muscle spasm.” Dr Bodel agreed with Dr Beer’s Assessment of impairment of the neck based on the worker’s clinical presentation.
The worker also relied on the MAC of Dr Ellis which had been obtained in the earlier proceedings. The examination took place on 4 July 2005. He took a history that the worker had severe pain in the low back and between the shoulder blades. The neck pain was of gradual onset over a period of a year after the accident. She had a bruised feeling around the neck and shoulders which became painful.
In relation to the onset of neck symptoms the Arbitrator said the following (at 28):
“I must say that I was impressed with the applicant. I found her to be transparently telling me the truth, and she did not attempt to exaggerate either her overall condition, nor did she attempt to resile from the fact that it was a long time before she had neck symptoms and a short time after that before she complained of them. The best the applicant can do in evidence in answer to a question from me was about seven or eight months after the accident she first noticed the pain. She said she suffered immediately low back pain and after a short time some nausea and the medical certificates corroborate that.”
The precise complaint made about the Arbitrator’s findings is that he was said to have found the worker had no cervical spine symptoms before August 2003 contrary to her evidence which he said he accepted. In particular an answer to a question in cross examination is relied on namely that she reported problems in her neck to doctors when pain became “so unbearable”. There are two responses to this. The first is that the Arbitrator did not find that the worker had no neck symptoms before August 2003. Rather he said that he was not satisfied that the worker’s neck symptoms resulted from the fall. The submissions in this appeal were lodged before the transcript of proceedings was forwarded to the parties on 31 August 2007. The parties were then invited by the Commission to complete their submissions but no additional submissions were made. The second is that the Arbitrator was required, in coming to his decision, to have regard to all of the evidence and not one answer considered in isolation. Of particular relevance were the histories given to treating doctors as to the onset of neck symptoms. The opinions of doctors who saw her some years later are, I think, of little assistance in determining this question. It is in my view clear that the worker made no complaint regarding her neck for many months following her injury. The worker’s own evidence would indicate that she began to have neck symptoms after seven or eight months. This would accord with Dr Gilhotra’s reference to her neck in his certificate of 23 June 2003 to which I have referred at [43]. This ground of appeal has also not been made out and, accordingly, the appeal must be dismissed.

DECISION

The decision of the Arbitrator dated 31 July 2007 is confirmed.

COSTS

Each party is to pay her or its own costs of the appeal.

Anthony Candy

Acting Deputy President
28 November 2007

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE