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 that liability for the payment of weekly compensation and medical expenses for alleged injury to upper back, right shoulder and neck was denied. Among other reasons, it disputed that employment with the respondent was a substantial contributing factor to the injuries alleged. On 4 November 2013, GIO issued a further s 74 notice denying liability for alleged injury to upper back, right shoulder and neck for the same reasons.
On 18 December 2013, Ms Sanchez lodged an Application to Resolve a Dispute (the Application) in the Commission. She sought an order for weekly compensation from 12 September 2012 to date and continuing. The alleged injury was pleaded as “Right shoulder injury – labral tear Cervical spine injury”. As to how the injury occurred the following is recorded: “Nature and conditions of employment – repetitive bending, heavy lifting, pushing, pulling and reaching above shoulder height”.
On 14 January 2014, the respondent filed a Reply to the Application. It confirmed the issues in dispute were those stated in the s 74 notices.
On 1 July 2014, a conciliation/arbitration hearing was listed before a Commission Senior Arbitrator. On that same day the Senior Arbitrator delivered an extempore decision. On 2 July 2014, the Commission issued a Certificate of Determination in the following terms:
“The determination of the Commission in this matter is as follows:
1. The applicant suffered an injury to her right upper extremity (shoulder) as a result of the nature and conditions of her employment with the respondent with a deemed date of injury of 17 January 2012.

2. Award for the applicant pursuant to section 40 at the rate of $150.00 per week from 1 October 2012 to date and continuing.

3. The respondent is to pay the applicant’s section 60 expenses in respect of the injury to her right upper extremity (shoulder) only.

4. The permanent impairment dispute in respect of the right upper extremity (shoulder) resulting from a deemed date of injury of 17 January 2012 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment. The documents to be sent to the AMS are the ARD, the Reply, and late documents filed by the applicant on 2 April 2014 only.” (emphasis included in original)

On 31 July 2014, the Senior Arbitrator issued an Amended Certificate of Determination, in the same terms as the Certificate of Determination of 2 July 2014 except that the following order was added:
“5. Award for the respondent in respect of the allegation of injury to the cervical spine.”
Ms Sanchez has challenged the Senior Arbitrator’s finding that she did not sustain an injury to her neck as alleged and her finding as to capacity to earn. It is not disputed that Ms Sanchez suffered an injury to her right upper extremity as a result of the nature and conditions of employment deemed to have occurred on 17 January 2014.

PRELIMINARY MATTERS

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act. There is no dispute that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

ON THE PAPERS

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 Nos 1 and 6; the documents that are before me, and the submissions 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.

THE EVIDENCE

Ms Sanchez provided a signed statement of evidence dated 11 December 2013. She said she was born in Al Salvador and arrived in Australia in 1995. She said “in my first years in Australia I worked at Kmart and Woolworths as a Retail Assistant and also did cleaning work. In 2006 I completed a course to do carer work”.
Ms Sanchez commenced with the corporate predecessor of her current employer in 2008. She was employed as a carer providing care to elderly and disabled clients. She worked part time averaging about 25 hours per week at $21.54 per hour. Her duties included shopping, which involved carrying shopping bags sometimes up stairs. She assisted with toileting and dressing of clients, and some cleaning and laundry duties. The work also involved vacuuming and mopping which occupied about 45 minutes per client. Placing washing on a clothes line involved reaching above shoulder level.
Ms Sanchez states that she initially felt some neck and right shoulder pain in December 2011 whilst mopping and cleaning at a client’s home. Initially it wasn’t so severe so she persevered with work hoping that during the Christmas holiday break the pain would resolve. The neck and right shoulder pain did not resolve and reoccurred on resuming work in January 2012.
On 17 January 2012, Ms Sanchez reported pain in her upper back, right shoulder and neck to the respondent. In evidence is an injury report dated 24 January 2012, in which the cause of the injury is described as “repetitive lifting and movements on the right arm”.

Medical certificates and evidence of work capacity

On 18 January 2012, Ms Sanchez attended on Dr John Fardy, general practitioner. In his clinical notes, Dr Fardy recorded a history of “sore right shoulder and neck since before Christmas”. Dr Fardy issued a medical certificate certifying Ms Sanchez unfit to work for the period from 17 January 2012 to 23 January 2012.
On 24 January 2012, Ms Sanchez again attended on Dr Fardy. In his clinical notes, Dr Fardy recorded that Ms Sanchez “presents to get referral for physiotherapy for neck and right shoulder pains…no specific injury just that it started in mid Dec2011”. On that same day Dr Fardy issued a WorkCover medical certificate diagnosing Ms Sanchez with “neck and right shoulder pain” and certifying her unfit to work from 18 January 2012 to 27 January 2012. As to how the injury occurred the following is recorded: “no specific injury, patient feels it is [sic]”.
On 27 January 2012, Dr Fardy issued a further WorkCover medical certificate certifying Ms Sanchez unfit to work from 27 January 2012 to 1 February 2012. He diagnosed Ms Sanchez with “soft tissue inflammation right shoulder and neck”. As to how the injury occurred the following is recorded: “no specific injury in history, noticed in Dec 2011”.
On 2 February 2012, Ms Sanchez attended on Dr Gobran, general practitioner. Dr Gobran practices in the same medical centre as Dr Fardy. Dr Gobran diagnosed Ms Sanchez with “soft tissue inflammation right shoulder and neck” and certified her unfit to work from 1 February 2012 to 13 February 2012. As to how the injury occurred the following is recorded: “[f]requent heavy lifting (shopping for patients), cleaning, mopping”. Dr Gobran issued further medical certificates in similar terms certifying Ms Sanchez unfit to work from 14 February 2012 to 15 March 2012.
Between 6 March 2012 and 22 May 2012, Dr Gobran issued a series of WorkCover medical certificates in which she certifies Ms Sanchez fit to work suitable duties from 16 March 2012 to 30 June 2012, for six hours per day, three days per week, with a lifting restriction of up to two kilograms. In many of these certificates it is recorded: “[n]ot to work above shoulder level, suitable for office duties”. Confusingly, in several of the certificates Dr Gobran ticked the box on the certificate indicating total incapacity however I infer that that was in error as the information provided by Dr Gobran on those certificates can only be consistent with a certification of partial incapacity.
On 13 June 2012, Dr Gobran issued a WorkCover medical certificate in which she certified Ms Sanchez fit for suitable duties from 18 June 2012 to 4 July 2012. She certified Ms Sanchez capable of working four hours per day, two days per week, with a lifting restriction of one kilogram. She also notes the following: “[n]ot to work above shoulder level, suitable for office duties, avoid repetitive movements to Rt shoulder”. Between 28 June 2012 and 22 August 2012, Dr Gobran issued several more WorkCover medical certificates in similar terms, certifying Ms Sanchez fit for suitable duties from 5 July 2012 to 30 September 2012.
On 11 September 2012. Dr Gobran issued a Centerlink Medical certificate. She diagnosed Ms Sanchez with “Rt shoulder Muscular dysfunction”, depression and pain syndrome. She noted that Ms Sanchez had symptoms of “[p]ersistant pain & restricted movement”. Dr Gobran certified Ms Sanchez totally incapacitated from 11 September 2012 to 31 December 2012. A further Centerlink certificate was issued in the same terms on 12 February 2013 relating to the period between 11 February 2013 and 11 May 2013.
On 18 June 2013, Dr Gobran issued two WorkCover medical certificates. The two certificates are contradictory. One of the certificates certifies Ms Sanchez totally unfit between 1 June 2013 and 31 August 2013. The other certifies Ms Sanchez as fit for work up to 6 hours per day 3 days per week provided she did not engage in work above shoulder height and certifies her fit for office duties during the same period.
Dr Gobran issued further WorkCover medical certificates certifying Ms Sanchez unfit to work from 1 August 2013 to 30 May 2014.
None of Dr Gobran’s certificates are signed and there is no report in evidence from her to explain the changes in her certification of Ms Sanchez’s capacity to work. However, as with the certificate issued on 6 March 2012, several of the certificates issued by Dr Gobran tick a box on the certificates to indicate total incapacity, however, it is plainly evident that by placing restrictions on the hours of work or the nature of the duties Ms Sanchez was fit to perform, the doctor was again certifying a partial incapacity.

Other evidence

Following a referral from Dr Gobran, Ms Sanchez attended on Dr Manuel Cusi, sport and exercise medicine physician. It is unclear when Ms Sanchez first attended on Dr Cusi.
On 15 March 2012, Ms Sanchez underwent an MRI scan of her right shoulder at the request of Dr Cusi. In the MRI report dated the same, it was concluded that Ms Sanchez had a “labral tear” to the right shoulder and some changes “of supraspinatus tendinopathy as well as some reactive oedema about the acromioclavicular joint”.
In a report dated 20 March 2012, Dr Cusi recorded a history that:
“[t]wo weeks prior to Christmas [Ms Sanchez] developed pain over her shoulders, scapula girdle and neck pain, with radiation to the mid thoracic area and to the arm. This happened while she was mopping and vacuuming.
The pain settled over the holiday period over Christmas, but on return to work in January the symptoms returned within two or three weeks.”
Dr Cusi noted that an “MRI arthrogram has identified a SLAP tear of the labrum, with degeneration of the AC joint, and supraspinatus tendinopathy”. He concluded that “Ms Sanchez has a combination of an injury to her right shoulder, with compensation strategies and possibly inappropriate understanding of her pathology and pain reaction”.
Dr Gobran referred Ms Sanchez to Dr Ivan Popoff, orthopaedic surgeon. Dr Popoff provided a report on 16 April 2012. In that report, Dr Popoff recorded a history that Ms Sanchez injured “her right shoulder with repetitive lifting at work” on “14 December 2011”. He noted that she first developed pain around the “periscapula region which then spread to around her deltoid and now to the anterior chest”. After noting the results of the MRI scan of her right shoulder he found Ms Sanchez to suffer from “sick scapula syndrome and a scapula dyskinesia” and “secondary impingement and pextoralis minor pseudotightness”.
Ms Sanchez attended on Kyla Hopper, physiotherapist, following a referral from Dr Popoff. In a report to Dr Popoff, dated 16 May 2012, Ms Hopper recorded a history that Ms Sanchez reported that early in the course of physiotherapy treatment Ms Sanchez’s “neck, hand and arm symptoms seemed to respond to treatment to her neck, but her shoulder symptoms persisted”. However, she noted that Ms Sanchez also reported “short-lived relief of her arm and neck symptoms following passive cervical and thoracic intervertebral joint mobilisation”.
On 12 June 2012, Ms Sanchez attended on Dr Alan Home, consultant in occupational medicine, qualified by GIO. Dr Home recorded a history that Ms Sanchez sustained injury to her neck/right shoulder in a workplace incident on 17 January 2012. He noted that Ms Sanchez recalled right sided neck and shoulder pain from mid-December 2011.
Dr Home noted the results of Ms Sanchez’s MRI scans of her right shoulder on 15 March 2012, which “demonstrate mild supraspinatus tendinopathy, mild degenerative change at the acromio-clavicular joint and an abnormal signal in the superior labrum associated with a paralabral cyst that may reflect previous SLAP lesion”.
Dr Home recorded that Ms Sanchez’s “presentation is difficult to interpret” and that she “presents with an unusual history of global right cervico-brachial pain”. He added that:
“[t]here are some clinical features of supraspinatus tendinopathy, however the presentation is not typical.
There are clinical findings of mild right-sided cervical dysfunction.
There is widespread chest wall pain of uncertain aetiology.
There is significant secondary muscle tension in the shoulder girdle.
I noted that Dr Popoff considered there to be a diagnosis of sick scapula syndrome or scapula-thoracic dysrhythmia that may arise secondary to a neck or shoulder complaint.”
Dr Home noted that he had telephone Dr Gobran “who confirmed that diagnosis of her various complaints has proved elusive. There is certification to perform selected duties”. He further noted that Ms Sanchez could return to selected duties four hours per day (pre-accident hours) provided that she avoids lifting above shoulder height and heavy manual handling.
Ms Sanchez was referred to Re-Start consulting for a workplace assessment at the request of GIO. On 20 June 2012, Re-Start issued a workplace rehabilitation progress report. In that report it states, among other things, that “Dr Gobran agreed to upgrade Ms Sanchez to suitable duties. She recommended that she adjusts the dose of her medication to avoid drowsiness”.
On 23 August 2012, a further workplace rehabilitation progress report was issued by Re-Start. In that report it records “Dr Gobran reported she would not certify Ms Sanchez unfit and reported she should continue with physiotherapy, take her analgesic medication and try to be positive”. It notes Ms Sanchez’s non-compliance with attempts to rehabilitate her, stating “Unreasonable rejection of suitable duties”. The particulars of the non-compliance was stated to be:
“Ms Sanchez is currently certified fit for suitable duties working 4 hours per day, 2 days per week. Her employer is able to provide suitable duties within her restrictions and hours of work. Ms Sanchez is currently refusing to attend work due to her pain and discomfort. Ms Sanchez in not informing her employer of why she is not attending work and a letter has been sent advising her she is currently on unauthorised leave.”
On 5 September 2012 Ms Sanchez was terminated from her employment.
On 4 September 2013, Ms Sanchez attended on Dr T Mastroianni, consultant occupational physician, qualified by the appellant’s solicitors. In a report dated the same, Dr Mastroianni recorded a history that “[o]n 8^th January [presumably 2012] she reported the problem [of right shoulder pain] to her case manager as she was having difficulty doing the domestic work for which she was employed to do”. He also recorded that Ms Sanchez stated “that the insurance company declined liability and she stopped both the physiotherapy and reviews by the specialist as she cannot afford it”.
Dr Mastroianni found that Ms Sanchez “sustained a labral tear of the right shoulder and right neck strain as a result of the nature and condition of her work”. He concluded that:
“As a result of the nature and condition of the work Mrs Sanchez sustained an injury to the right shoulder.
Considering the work she undertook as a home care worker and her social activities I have concluded that on the balance of probabilities and possibilities that the probable cause of her current shoulder condition is the result of her work activities.
The history supports my conclusion in that there was gradual onset of symptoms which resolved whilst she was away from work for 2 weeks. On resuming work the symptoms recurred and deteriorated as she continued working.”

Dr Mastroianni found that as a result of the shoulder and neck condition Ms Sanchez could not “do any physical work with the right hand” and that she can only “do tasks by using the hand with the shoulder immobilised”. He further concluded that Ms Sanchez was unfit to work in her “pre injury duties since she stopped working and continues to be unfit for that work”. He added that Ms Sanchez is “fit for left handed work only” and has “limited transferable skills and for all intents and purposes she is unemployable in the open labour market”.
Dr Mastroianni assessed Ms Sanchez to suffer 12 per cent whole person impairment in respect of the injury to the right upper extremity and six per cent whole person impairment with respect to the cervical spine due to “tenderness and asymmetric loss of range of movement”. These impairments resulted in a combined whole person impairment of 17 per cent.
On 24 October 2013, Ms Sanchez attended on Dr Frank G Machart, orthopaedic surgeon, qualified by the respondent. In a report dated 28 October 2013, Dr Machart reported a history that Ms Sanchez “developed pain in the right shoulder region around December 2011, gradually, not as a result of a specific incident. Her thoughts were that the pain developed as a result of ‘repetitive’ work”. Dr Machart did not find any demonstrable injury or structural trauma.
Dr Machart recorded that Ms Sanchez’s description of the work was not repetitive. He recorded that the “duties were varied and part-time, and did not exceed 20 hours per week. I would not describe her duties therefore as repetitive, strenuous or overwhelming”. He noted that the “SLAP lesion evident on the MRI scan is immaterial” and that the “presentation of almost no movement in the arm is bizarre, not in keeping with the objectively based pathology, and not in keeping with the description of injury”.
In response to Dr Mastroianni’s report of 4 September 2013, Dr Machart said “Dr Mastroianni did not make a compelling case of cause/effect relationship. He did not list any activity when describing the nature and conditions of work as causative”. After noting Dr Mastroianni’s assessment of 17 per cent whole person impairment, Dr Machart said that “[o]ne cannot simply accept subjective reporting of limitation of movement in the cervical spine or shoulders as representing injury pathology”.
In response to Dr Cusi’s report of 20 March 2012, Dr Machart said that Dr Cusi “diagnosed a SLAP lesion but made no attempt to equate the SLAP lesion, with the description of injury”.
Dr Machart concluded that there was no “orthopaedically-based injury” and no “orthopaedically-based pathology, that befits the useless right arm appearance”. He did not find that the description of work was repetitive or strenuous, sufficient to cause trauma. He could not find any correlation between the description of injury and the damage to the right shoulder and cervical spine.

THE SENIOR ARBITRATOR’S REASONS

The Senior Arbitrator did not accept that Ms Sanchez’s duties were particularly arduous and rejected the claim, as pleaded, that her work involved repetitive bending, heavy lifting, pushing, pulling and reaching above shoulder height. She accepted that, on occasions, Ms Sanchez was required to assist disabled persons with toileting, showering, dressing, vacuuming, mopping, cleaning bathrooms and carrying shopping, and that that was “moderately heavy work” (T26.20).
Dr Fardy, who saw Ms Sanchez on 18 January 2012, diagnosed neck and right shoulder pain. The history recorded was consistent with Ms Sanchez’s evidence of suffering neck and right shoulder pain whilst mopping and cleaning at a client’s home.
The Senior Arbitrator accepted that Ms Sanchez suffered an injury to her right shoulder in the course of her employment duties in or about December 2011 and that after resuming duties in January 2012 the symptoms intensified to the point where she sought treatment.
The Senior Arbitrator concluded (at T30.29) that, on the balance of probabilities, the applicant did not injure her neck as alleged. She gave the following reasons for reaching that conclusion. First, Dr Cusi obtained a history of pain over the shoulders, scapula and girdle. However, he ultimately concluded that Ms Sanchez suffered a combination of an injury to her right shoulder, which was demonstrated on an MRI, namely a slight SLAP tear of the labrum, with degeneration of the AC joint and supraspinatus tendinopathy.
Second, Dr Popoff obtained a history of injury to the right shoulder with repetitive lifting at work, alleged to have occurred on 14 December 2011. The Senior Arbitrator found (at T28.22) that that history was inconsistent with Ms Sanchez’s evidence. Dr Popoff concluded that Ms Sanchez suffered an injury to her right shoulder, the detail of which is referred to at [34] above.
Third, in May 2012, Ms Hopper, physiotherapist noted that symptoms in the neck and arms responded to treatment, but her shoulder condition was more persistent. This was consistent with the diagnosis by Drs Cusi and Popoff.
Fourth, the Senior Arbitrator acknowledged that Ms Sanchez had told some doctors she hurt her neck, however she concluded (at T29.22) that she was more persuaded by the evidence of the treating specialists, Drs Popoff and Cusi, neither of whom concluded that Ms Sanchez suffered an injury to her neck. The Senior Arbitrator concluded that they may have accepted that her symptomatology may have radiated over her shoulders and down her thoracic area, but ultimately concluded that there had been an injury to the right shoulder only.
Fifth, the Senior Arbitrator was not persuaded by Dr Mastroianni’s evidence. She had regard to Dr Mastroianni’s “opinion” in which he described the nature of the injury to the right shoulder. However, the doctor’s comments in his report dealing specifically with the nature of the injury sustained, referred to the labral tear of the right shoulder and right neck strain as a result of the nature and conditions of the work. The Senior Arbitrator said (at T30.26) “I accept the submission made by Mr Newton [counsel for the respondent] that the reference to the neck seems to be thrown in, if we can put it that way, at the end”.
The Senior Arbitrator concluded (at T31.1) with “considerable caution and a degree of reluctance” that Ms Sanchez’s injury to the shoulder was due to the nature of the duties that she performed in the course of her employment.

Incapacity

In terms of the extent of Ms Sanchez’s incapacity the Senior Arbitrator concluded that Ms Sanchez would have difficulty with work that involved overhead movements of her arms or repetitive mopping or vacuuming or activities of that nature. She did not accept that Ms Sanchez was totally incapacitated. She considered that Ms Sanchez was capable of working in “light retail, or light cleaning or, indeed, in home care services that involved light work only”.
The Senior Arbitrator was not assisted to any great extent by Dr Popoff and Dr Cusi as they did not address the issue of Ms Sacnhez’s capacity for work, nor did they provide current reports. Dr Mastroianni, on the other hand, considered that Ms Sanchez had only limited transferable skills and was unemployable on the open labour market.
As at June 2012, Dr Home considered that Ms Sanchez was fit to work for four hours per day, avoiding lifting above shoulder height, for example hanging washing, and avoiding any heavy manual lifting, for example mopping.
The Senior Arbitrator noted that Dr Machart ultimately concluded that there was nothing orthopedically wrong with Ms Sanchez and recommended that she undergo a psychological assessment.
The Senior Arbitrator expressed a preference for the opinion of the treating specialists, particularly Dr Cusi and Dr Popoff, in reaching her conclusion that Ms Sanchez suffered injury to her right shoulder.
From 16 March 2012, Dr Gobran commenced certifying Ms Sanchez fit for selected duties. Initially she certified Ms Sanchez fit to work six hours per day, three days per week, providing she did not do work above shoulder level. That certification continued until June 2012. From 18 June 2012, Dr Gobran certified Ms Sanchez fit to work for four hours per day, two days per week. She certified that Ms Sanchez should avoid work above shoulder level or work involving repetitive movements of the right shoulder. This remained the position until 30 September 2012, at which point liability was declined.
The Senior Arbitrator noted that “in more recent times” Dr Gobran certified Ms Sanchez totally unfit for work. There are no reports from Dr Gobran and there is no explanation for the change in the certification. This compounded the difficulty in assessing Ms Sanchez’s capacity for work.
For the two years prior to the Senior Arbitrator’s determination there is no expert evidence to explain Ms Sanchez’s “bizarre” presentation. In those circumstances the Senior Arbitrator approached the assessment of the impairment of Ms Sanchez’s earning capacity on the basis of the objective evidence of a labral tear of the right shoulder.
Ms Sanchez’s presentation would suggest that she was totally incapacitated, however in the absence of any evidence of a psychological injury related to her employment, the Senior Arbitrator determined her residual earning capacity on the basis of the proven physical injuries. She concluded that Ms Sanchez was capable of working 12 hours per week in light retail, light cleaning or light home care duties. She assessed Ms Sanchez could earn $25 per hour doing such work, a total of $300 per week.
It was agreed that Ms Sanchez’s pre-injury earnings were $450 per week. Accordingly the Senior Arbitrator entered an award for $150 per week from 1 October 2012 to date and continuing, being the difference between her pre accident earnings and her current ability to earn.

GROUNDS OF APPEAL

Ms Sanchez alleges that the Senior Arbitrator erred in finding that she:
(a) did not sustain an injury to her neck as alleged, and
(b) had a capacity to earn $300 per week at all relevant times.

The appellant’s submissions

Neck Injury

The appellant’s case of injury to her neck was supported by the opinion of her qualified consultant occupational physician, Dr Mastroianni, who concluded that she had sustained neck strain.
A history of neck pain associated with the onset of symptoms was recorded by Dr Cusi, Ms Sanchez’s treating physician, in his report of 20 March 2012. Ms Sanchez’s initial treating general practitioner, Dr Fardy, issued a WorkCover certificate on 24 January 2012 which referred to an injury to the neck.
Ms Sanchez’s evidence also referred to feeling pain in her neck in December 2011 whilst mopping and cleaning at a client’s home.
Based on this evidence it is submitted:
“There is no reason why [Ms Sanchez’s] testimony in this regard should be ignored or rejected. If accepted, it constitutes a proper basis upon which to find that she had sustained neck injury.”

Incapacity

The quantification of Ms Sanchez’s entitlement involved an assessment of the value of Ms Sanchez’s residual incapacity (if any) on the market reasonably available to her. Relative to this were all of the considerations set out in s 43A of the 1987 Act (now repealed, however, the provision remains applicable in this case). In this regard Ms Sanchez submitted that her first language is not English, having been born in El Salvador. Her entire work history in Australia has either been in retail, cleaning, or elderly and disabled care. The labour market reasonably available to her before she was injured was a limited one, confined to occupations in which she could exercise her physical capacity to work.
Ms Sanchez submits that the Senior Arbitrator’s approach to the assessment of her entitlements ignored the realities of the labour market available to her and did not apply the correct legal principles, such as those identified in Mangion v Visy BoardPty Ltd [1991] NSWCC 1; (1992) 8 NSWCCR 175.
Ms Sanchez’s physical condition renders her unfit for any job requiring physical work with her right hand due to a right subacromial impingement. Accepting, as the Senior Arbitrator appeared to, that there was an injury to the right shoulder, the physical impairment must result in a significant economic loss.
Ms Sanchez submits, as she did at first instance, that she has been totally incapacitated at all relevant times.

The respondent’s submissions

Neck Injury

The respondent submits that the appellant’s submissions fail to demonstrate any error of fact, law or discretion by the Senior Arbitrator.
The Senior Arbitrator was required to be satisfied on the balance of probabilities that Ms Sanchez injured her neck. In order to do so the tribunal of fact must be satisfied that there is an actual persuasion of the existence of a fact: Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
The Senior Arbitrator was not satisfied that there was an actual persuasion of fact that Ms Sanchez injured her neck. The Senior Arbitrator’s decision was based on what Ms Sanchez told her treating doctors which was that she had injured her right shoulder.
The respondent submits that: “[t]he [Senior] Arbitrator was also not prepared to find that the appellant satisfied her that there was a reasonable basis on the facts the appellant suffered an injury to her neck to draw a definite conclusion in her favour” (Minogue v Rudd [2012] NSWSC 305 at [66]).
There was no definite statement that a neck injury had been sustained as alleged from Ms Sanchez’s doctors including Dr Mastroianni. Therefore, there was no basis for a definite conclusion to be drawn by the Senior Arbitrator.

Incapacity

The Senior Arbitrator’s finding was based, in part, on the evidence of Dr Gobran who certified Ms Sanchez partially unfit from March 2012 until September 2012. Dr Gobran changed the certification from partial incapacity to total incapacity in or about September 2012. There is no explanation from Dr Gobran for the change in certification.
The Senior Arbitrator noted that Dr Gobran’s certification of total incapacity was difficult to accept, particularly in light of the Re-Start reports in which Dr Gobran had refused to certify Ms Sanchez as totally unfit. Dr Gobran’s certificates are a credible account of Ms Sanchez’s fitness for work and as Dr Gobran was Ms Sanchez’s general practitioner, she was in a position to provide a contemporaneous account of Ms Sanchez’s capacity.
The respondent submitted the Senior Arbitrator made no error in accepting Dr Gobran’s evidence as opposed to Dr Mastroianni’s evidence who is a medico-legal examiner who based his opinion on one consultation only.
The Senior Arbitrator calculated the reduction in Ms Sanchez’s earning capacity in accordance with s 40(2) of the 1987 Act (as it was prior to the 2012 amendments) and in accordance with the test in Mitchell v Central West Health Service (1997) 14 NSWCCR 526.
Ms Sanchez’s submission that the only labour market reasonably available to her is one confined to occupations in which she can exercise her physical capacity and that the Senior Arbitrator erred by ignoring the realities of the labour market available to her are misconceived. The Senior Arbitrator took into account her age, the limitations she has in expressing herself in English and her considerable experience in retail work and home care services.
The conclusions drawn by the Arbitrator were open to her considering Ms Sanchez’s evidence, her doctor’s opinion concerning her fitness for work and the possible barriers confronting her return to work.

DISCUSSION

Neck Injury

An appeal under s 352 of the 1998 Act is characterised by the identification and correction of error. In substance Ms Sanchez’s submissions mirror those that were considered and determined by the Senior Arbitrator. Those submissions may be relevant if this appeal was a review on the merits however, this appeal is not a review on the merits. Factual, legal or discretionary error must be identified. Ms Sanchez has not done so. Error is not established merely because of a complaint that the Senior Arbitrator reached a conclusion on the evidence that is antithetical to that advanced by the appellant.
Ms Sanchez’s failure to identify relevant error is sufficient to dispose of the appeal. However, although it has not been articulated with any clarity, if in substance the appellant’s complaint is that the Senior Arbitrator erred by failing to give sufficient weight to the evidence of injury to the neck, I will deal with that issue.
The Senior Arbitrator’s task was to decide Ms Sanchez’s claim based on the evidence as a whole. That is what the Senior Arbitrator did. She described in considerable detail the evidence given by Ms Sanchez concerning the nature of the tasks required of her in the course of her employment (T26.18). She also noted that Ms Sanchez reported symptoms of neck and shoulder pain, initially to Dr Fardy (T26.25), and subsequently to Dr Cusi (T27.27) and to her physiotherapist Ms Hopper (T29.15).
The Senior Arbitrator’s task was to weigh Ms Sanchez’s evidence with the objective evidence. Questions of weight of evidence are peculiarly within the province of the Arbitrator. In Shellharbour City Council v Rigby [2006] NSWCA 308, Beazley JA (as her Honour then was), Ipp and Basten JJA agreeing, held (at [144]):
“Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”
It cannot be said that the Senior Arbitrator’s conclusions were so against the weight of evidence that some error must have been involved.
Notwithstanding Ms Sanchez’s history of symptomatology in the neck, neither of her two treating specialists, Dr Popoff and Dr Cusi, supported her allegation of a separate injury to the neck, although they accepted that she had suffered an injury to her right shoulder. The Senior Arbitrator was entitled to give added weight to the opinions of the two treating specialists over that of Dr Mastroianni, who only saw Ms Sanchez on one occasion in September 2013.
The Senior Arbitrator acknowledged (at T30.23) that Dr Mastroianni considered that Ms Sanchez had sustained a labral tear of the right shoulder and a right neck strain. However, Dr Mastroianni’s detailed history of symptoms suffered by Ms Sanchez referred only to complaints in relation to the right shoulder. There was no mention of any pain or other symptoms in the neck.
As Dr Machart explained, in his view Ms Sanchez’s history and presentation was bizarre. Dr Machart accepted that Dr Mastroianni gave some support for an injury to the neck, however, Dr Mastroianni did not explain how Ms Sanchez could have suffered two separate conditions, that is, to the cervical spine and the right shoulder occurring concurrently in the absence of any traumatic injury.
Ms Sanchez’s subjective view of her own injuries was not determinative of the issue the Senior Arbitrator was required to resolve. Her evidence had to be weighed against the medical evidence. The Senior Arbitrator was well aware of Ms Sanchez’s complaints of neck pain and clearly took them into account in her assessment of the claim. It is not necessary for an Arbitrator to state explicitly something that is clearly implicit from a fair reading of the decision overall, Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [46] and [55]–[56]).
In the circumstances, Dr Fardy’s reference to neck symptoms was not determinative. The Senior Arbitrator noted Dr Fardy’s evidence but, after considering the whole of the evidence, preferred the evidence of Dr Popoff and Dr Cusi.
Ms Sanchez bore the onus of adducing persuasive evidence addressing the question of the alleged injury to her neck. Although there was some evidence in that regard, to which I have referred, it was not sufficient when weighed with the evidence as a whole to persuade the Senior Arbitrator that Ms Sanchez had sustained a separate injury to her neck in addition to the accepted injury to the right shoulder. Those findings were reasonably open to the Senior Arbitrator on the evidence presented and do not disclose error.

Ability to earn

As the Senior Arbitrator identified, the task of assessing Ms Sanchez’s residual earning capacity was fraught with difficulties, not the least of which were the apparent inconsistencies in her treating general practitioner’s assessment of her capacity for work over time. Added to that difficulty was the diverse range of medical opinions regarding Ms Sanchez’s condition and her capacity to work. However, the Senior Arbitrator analysed and weighed all the relevant evidence before reaching her conclusion.
The factors that the Senior Arbitrator took into account may briefly be summarised as follows:
(a)     Ms Sanchez might have some difficulty with overhead work or repetitive mopping or vacuuming and activities of that nature (T36.15);
(b)     the evidence of the treating specialists, Drs Popoff and Cusi, did not provide any real assistance in assessing Ms Sanchez’s capacity for work (T31.23);
(c)     Dr Mastroianni considered Ms Sanchez had limited transferrable skills and was effectively unemployable on the open labour market (T31.24);
(d)     Dr Home recommended that Ms Sanchez would be fit to work for up to four hours per day provided she avoid lifting above shoulder height including hanging washing and avoid heavy manual lifting including mopping (32.18);
(e)     Dr Machart considered that Ms Sanchez had no physical disability (T34.4), and
(f)      the inconsistency in Dr Gobran’s medical certificates.
Dr Gobran was clearly of the view that Ms Sanchez was only partially incapacitated up to September 2012. Thereafter the position became quite confused. At least one of the WorkCover certificates issued nine months later on 18 June 2013 was consistent with Dr Gobran remaining of the view that Ms Sanchez remained partially incapacitated and fit for work for six hours per day, three days per week at that time. Certificates to the contrary are unexplained as there was no report from Dr Gobran in evidence.
In assessing the average weekly amount Ms Sanchez would be able to earn in some suitable employment (s 40(2)(b)) the Senior Arbitrator was required to take into consideration the factors relevant to that assessment in accordance with s 43A of the 1987 Act as it was at the relevant time. The Senior Arbitrator did that. The Senior Arbitrator made reference (commencing at T36.7) to Ms Sanchez’s age, background, work experience and language skills. The Senior Arbitrator correctly noted (at T32.14) that Ms Sanchez was reluctant to pursue rehabilitation, and that as at July 2012 Ms Sanchez had been certified fit for suitable duties and that such duties were available to her through her employer.
Ms Sanchez lives in the metropolitan area not in a regional or remote area where such work may not be readily available. In the absence of evidence of any particular difficulty that Ms Sanchez would face obtaining work the Senior Arbitrator’s conclusion that, whilst there were some limitation on her returning to work, Ms Sanchez was fit for work for up to 12 hours per week was open on the evidence and discloses no error.
The Senior Arbitrator accepted at (T36.13) that Ms Sanchez should avoid overhead work and repetitive mopping or vacuuming and activities of that nature. She noted that Ms Sanchez could work in light retail or light cleaning or in home care services that involved light work only. That conclusion is consistent with the preponderance of the medical evidence save for that of Dr Mastroianni, which for the reasons explained by the Senior Arbitrator was not to be preferred. That was a conclusion that was open on the evidence.
Notwithstanding Ms Sanchez’s physical limitations, on the evidence presented the Senior Arbitrator did not err in finding Ms Sanchez capable of earning $300 per week.

CONCLUSION

The conclusions reached by the Senior Arbitrator were open on the evidence and disclose no error.

ORDERS

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

COSTS

No order as to costs.

Judge Keating
President

23 October 2014

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE