Krstevska v Fast & Fluid Management Australia Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Krstevska v Fast & Fluid Management Australia Pty Ltd [2012] NSWWCCPD 69
APPELLANT:		Vera Krstevska
RESPONDENT:		Fast & Fluid Management Australia Pty Ltd
INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-4241/12
ARBITRATOR:	Ms M Dalley
DATE OF ARBITRATOR’S DECISION:		24 August 2012
DATE OF APPEAL DECISION:		21 November 2012
SUBJECT MATTER OF DECISION:		Principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 and Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; assessment of evidence; absence of evidence of injury; unsatisfactory submissions by respondent on appeal
PRESIDENTIAL MEMBER:		Acting President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Nikolovski Lawyers
Respondent:	Kaden Boriss
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 24 August 2012 is confirmed. No order as to costs.

BACKGROUND TO THE CLAIM

1. Vera Krstevska started work for the respondent as a process worker in 1987 or 1988. She is right-hand dominant. Her job was to machine valves for use in a paint-mixing machine. She worked standing up with her head and neck craned forward. Her duties initially required constant and repetitive movement of her right arm in particular. In the early years, there was no job rotation and the only breaks she got were at morning tea and lunch.

2. She developed symptoms in her right hand and left elbow in 1999. She remained at work and had physiotherapy, which gave some initial relief though the symptoms returned some months later. Her left elbow symptoms resolved, but her right-sided symptoms spread up her arm to her shoulder.

3. In January 2003, Ms Krstevska reduced her working week from full-time to 7.5 hours per day three days per week. With the reduction in her hours, she found her pain more bearable, but she still had a problem. By May 2003, Ms Krstevska had pain in the whole of her right arm, right shoulder, and her neck.

4. In or about 2002 or 2003, Ms Krstevska’s job became automated and her duties became much easier. She was now only required to insert a valve into a machine and press a button. Once the valve was machined, she removed it and put it into a box. In addition to her duties becoming easier, the respondent introduced a rotation system and workers were moved to different machines. Ms Krstevska felt that the new arrangement was a much better work system.

5. Ms Krstevska stopped work in December 2006 and has not returned to paid employment. She claimed lump sum compensation for whole person impairment as a result of the condition of her right arm/shoulder and neck. In the course of that claim, the insurer arranged for her to be examined by Dr Ho, who found her to have a restricted range of movement in her left shoulder.

6. The claim for lump sum compensation was settled in February 2007 for $11,250 in respect of…