Sanchez v Diverse Community Care - [2014] NSWWCCPD 69

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sanchez v Diverse Community Care [2014] NSWWCCPD 69
APPELLANT:	Noemy Sanchez
RESPONDENT:	Diverse Community Care
INSURER:	GIO General Ltd
FILE NUMBER:	A1-9484/13
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	31 July 2014
DATE OF APPEAL DECISION:	23 October 2014
SUBJECT MATTER OF DECISION:	Weekly compensation; application of s 40 and s 43A of the Workers Compensation Act 1987, as they stood prior to the enactment of the Workers Compensation Legislation Amendment Act 2012; challenge to a finding of no injury to the neck; assessment of suitable employment; weight of evidence; challenge of finding of partial incapacity
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Shine Lawyers
Respondent:	Hicksons Lawyers
ORDERS MADE ON APPEAL:	1. The Senior Arbitrator’s determination of 31 July 2014 is confirmed. 2. No order as to costs.

INTRODUCTION

This appeal concerns a Senior Arbitrator’s findings in respect of injury and an award for weekly compensation for partial incapacity pursuant to s 40 of the Workers Compensation Act 1987 (the 1987 Act), as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012.
It was not disputed that the worker was an “existing recipient” of weekly compensation immediately before 1 October 2012 and as no work capacity assessment had been conducted the worker remained entitled to compensation under Div 2 of Pt 3 of the 1987 Act “as if the weekly payments amendments had not been made” (cl 6 of Pt 19H of Sch 6 to the 1987 Act).
It is accepted that the worker injured her right shoulder (although that was initially in dispute). The Senior Arbitrator's finding that the worker did not injure her neck is challenged on appeal as is the Senior Arbitrator’s conclusions as to the extent of the worker’s residual ability to earn.

BACKGROUND

The appellant worker, Noemy Sanchez, was born in El Salvador. She immigrated to Australia in 1995. She is 47 years of age.
In 2008, Ms Sanchez commenced employment with Community Independence Support Services Inc, which was either taken over by or merged with Diverse Community Care (the respondent) in February 2009. Diverse Community Care is an Australian public company and is registered with the Australian Charities and Not-for-Profits Commission. Ms Sanchez was employed part-time to provide care to elderly and disabled clients.
In December 2011, whilst mopping and cleaning at a client’s home Ms Sanchez felt some neck and right shoulder pain. That pain did not resolve. Ms Sanchez states that she continues to experience pain in her neck and right shoulder. Because of the physical demands of carer duties she claims to be unable to return to that type of work.
The respondent initially accepted liability for weekly benefits. However, on 12 September 2012, the respondent’s insurer, GIO General Ltd (GIO), issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) advising…

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.

Continue reading Sanchez v Diverse Community Care

Details

AGLC: Sanchez v Diverse Community Care [2014] NSWWCCPD 69
Case: [2014] NSWWCCPD 69
Decision Date: 23 October 2014

CaseChat Overview and Summary

Sanchez v Diverse Community Care involved the claimant, Sanchez, who sought compensation for a work-related injury from his employer, Diverse Community Care. Sanchez claimed that he had sustained a neck injury during the course of his employment, but the employer disputed this, leading to a complex legal dispute over the nature and extent of the injury. The case was heard by the New South Wales Supreme Court, which was tasked with interpreting the relevant sections of the Workers Compensation Act 1987 and determining whether Sanchez was entitled to weekly compensation and a finding of partial incapacity.

The primary legal issues before the court were whether Sanchez had sustained a compensable injury to his neck and, if so, the extent of his incapacity and entitlement to weekly compensation. The court was required to consider the application of sections 40 and 43A of the Workers Compensation Act 1987, which were in force prior to the enactment of the Workers Compensation Legislation Amendment Act 2012. Sanchez argued that the Senior Arbitrator had erred in finding no injury to the neck and in assessing his partial incapacity. Diverse Community Care maintained that the findings of the Senior Arbitrator were correct and that Sanchez was not entitled to the compensation he sought.

The court examined the evidence presented and the reasoning of the Senior Arbitrator, ultimately concluding that the findings of no injury to the neck and of partial incapacity were supported by the weight of the evidence. The court held that the Senior Arbitrator had appropriately applied the relevant sections of the Act and that the decision to confirm the Senior Arbitrator’s determination was correct. The court found that Sanchez had not demonstrated any error in the decision and that no order for costs was warranted.

In summary, the court confirmed the Senior Arbitrator’s determination, finding that Sanchez was not entitled to weekly compensation or a finding of partial incapacity. The court held that the findings of the Senior Arbitrator were supported by the weight of the evidence and that there was no basis for overturning the decision. The parties were to bear their own costs.

Orders

Orders of the court

1. The Senior Arbitrator’s determination of 31 July 2014 is confirmed.

2. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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