Challita v Assetlink Services Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Challita v Assetlink Services Pty Ltd [2014] NSWWCCPD 9
APPELLANT:	Rita Challita
RESPONDENT:	Assetlink Services Pty Ltd
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-10662/12
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	7 November 2013
DATE OF APPEAL DECISION:	27 February 2014
SUBJECT MATTER OF DECISION:	Appeal to Presidential member; absence of proper grounds of appeal; absence of proper submissions in support of appeal; unmeritorious appeal; s 352 of the Workplace Injury Management and Workers Compensation Act; Practice Direction No 6; purpose of supplementary submissions; delay in obtaining transcript; obligation on lawyers to take a note of proceedings
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Gerard Malouf & Partners
Respondent:	HWL Ebsworth
ORDERS MADE ON APPEAL:	1.     The Arbitrator’s determination of 7 November 2013 is confirmed. 2.     Each party is to pay her or its own costs of the appeal.

INTRODUCTION

1. This appeal purports to challenge an Arbitrator’s finding that the worker suffered no injury to her neck on or about 24 July 2008. The appeal is unsupported by any proper grounds or submissions and, for the reasons given below, the Arbitrator’s determination is confirmed.

BACKGROUND

1. The appellant worker, Rita Challita, has claimed lump sum compensation for an alleged injury to her neck and right shoulder that she says occurred in the course of her employment with the respondent, Assetlink Services Pty Ltd, on or about 24 July 2008. The respondent admitted liability for the injury to the right shoulder but disputed that Mrs Challita injured her neck.

2. Mrs Challita was a cleaner. In a statement dated 7 August 2012, she said she was cleaning walls in the course of her employment on 25 July 2008 when she felt severe pain in her right shoulder and “niggling pain in [her] neck and [her] back as well”. She said that she saw her general practitioner, Dr Sanaa Barich, the next day. Her main complaint was about her right shoulder, but she said she recalled telling Dr Barich of her neck and back.

3. Mrs Challita’s husband gave evidence, also in a statement dated 7 August 2012, that he recalled his wife complaining of severe pain in her right shoulder and niggling pain in her neck after a strenuous night of cleaning on 25 July 2008. He said that, over time, she continued to complain of “pain and problems to [sic] the neck, right shoulder and also her back”.

4. The clinical records from Dr Barich revealed that Mrs Challita attended on 25 July 2008 complaining of pain in her right shoulder blade and shortness of breath, but made no reference to any neck or back symptoms. She also attended on 2 August 2008 complaining of shortness of breath and pain in her right chest that radiated into her shoulder blade. The doctor injected the right shoulder with local anaesthetic.

5. Dr Barich took no history of any work…