Shin v The Star Entertainment Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Shin v The Star Entertainment Group Ltd [2023] NSWPIC 362
APPLICANT:	Hyo Jin Shin
RESPONDENT:	The Star Entertainment Group Ltd
Member:	Anne Gracie
DATE OF DECISION:	20 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits pursuant to section 37; claim for section 60 expenses; issues in relation to resolution of injury and incapacity and residual earning capacity; consideration of applicant’s statements, medical reports and other treatment records, vocational and functional capacity reports, certificates of capacity, claim correspondence, Deed of Release and wage material; Wollongong Nursing Home Pty Ltd v Dewar, DHL Excel Supply Chain (Australia) PtyLtd v Hyde and Greif Australia Pty Ltd v Ahmed considered; Held – the applicant’s left shoulder injury has not resolved; the applicant remains partially incapacitated for work; the applicant is entitled to ongoing benefits of weekly compensation pursuant to section 37; the applicant is also entitled to medical and related expenses pursuant to section 60.
determinations made:	The Commission determines: 1. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 as follows (a) $688.88 per week for the period 10 August 2021 to 25 March 2022; (b) $417.68 per week for the period 26 March 2022 to 31 March 2022; (c) $436.08 per week for the period 1 April 2022 to 19 June 2022; (d) $503.85 per week for the period 20 June 2022 to 30 June 2022; (e) $132.78 per week for the period 1 July 2022 to 30 September 2022; (f) $171.73 per week for the period 1 October 2022 to 31 March 2023, and (g) $222.08 per week for the period 1 April 2023 to date and continuing as adjusted. 2. A general order pursuant to s 60 of the Workers Compensation Act 1987 that the respondent pay the applicant’s reasonably necessary medical and related treatment expenses as a result of the injury deemed to have occurred on 24 August 2015

STATEMENT OF REASONS

BACKGROUND

Hyo Jin Shin (the applicant) is 45-years-old. She was born in South Korea. In 1997 she came to Australia to study graphic design and completed a three-year bachelor’s degree at the Wesley Institute in Sydney.
She returned to South Korea and worked as a graphic designer.
She then applied for permanent residency in Australia which was granted in 2002.
In 2004, she permanently moved to Australia and became an Australian citizen in March 2008. In 2004 after returning to Australia she worked as a banquet service attendant from August 2005 to May 2006
She was then offered a position with the respondent, the Star Casino and did unpaid training for one month in October 2006.
She was formally employed by the respondent from the 6 November 2006. She was employed as a blackjack dealer.
In mid-2007 she started to experience pain in her left shoulder after two hours of dealing cards.
The applicant sought medical treatment and was able to return to normal duties.
In March 2010 she felt a sudden sharp pain in her left shoulder. She was put on supervising duties and attended the respondent’s company doctor. She did supervisory work for two and a half months. She made a claim for workers compensation which was accepted. She was paid for her treatment expenses however she did not need to have any time off work as she was permitted to perform supervisory work during this time. Her claim was closed in June 2010 however upon her return to normal duties the pain in her left shoulder increased and she struggled to complete her shifts.
In August 2015 her supervisor noticed she was struggling during her shift due to her left shoulder pain and a further workers compensation claim was lodged. She sought medical treatment and was given permanently modified duties until March 2020 when the casino shut down due to COVID-19.
The applicant rested during the lockdown and her left shoulder improved. On 30 November 2020 she was called back to work with the respondent and was assigned to the roulette table which she thought she would be able to do as she was able to use both hands. Unfortunately, her left shoulder pain returned and it did not get better.
On 21 March 2021 she was told by the respondent that they could no longer roster her on the roulette table as the number of tables was limited. As the applicant was unable to perform her preinjury duties as a blackjack dealer the respondent gave her a choice. She could resign and receive four weeks of wages in lieu and an ex-gratia payment totalling approximately $27,000 or alternatively, if she didn’t resign, her employment would be terminated. The applicant signed a resignation on 26 March 2021 effective from 26 March 2021.
The applicant continued to do the stretches she had been shown by her physiotherapists after she resigned. She also used Voltaren gel and returned to swimming which she had been advised would be beneficial for her injury. She also used heat packs and painkilling medication. As she was not working, she was also able to rest her left arm.
The applicant was paid workers compensation benefits up until 10 August 2021. On 27 July 2021 and 29 July 2021 and 31 August 2021, the respondent issued three s 78 notices denying liability for the applicant's claim for workers compensation and making a work capacity decision. The applicant sought a review of the decisions to decline liability for her claim. On 14 December 2022 the respondent issued a s 287A review decision confirming that liability for her claim had been denied as and from 10 August 2021. The applicant remained unemployed between 26 March 2021 and 19 June 2022. On 20 June 2022 the applicant secured a part time position with Menzies Aviation as a passenger services officer. She was contracted to work a minimum of 20 hours per week at Sydney Airport (see page 206 of the Application to Resolve a Dispute (ARD)). The applicant has provided clear details of her earnings and hours worked since securing this employment. The applicant remains so employed.
According to her statement, the applicant continues with the following difficulties with her left shoulder:
(a)    If she carries anything on the left shoulder, she has pain for about an hour.
(b)    She tries to avoid carrying anything on her left shoulder.
(c)    If she carries anything weighing more than three kilograms, she notices pain in the left shoulder after about one hour.
(d)    She also gets pain in her left shoulder when she needs to push or pull things over a few hours.
(e)    She avoids repetitive movements but still needs to carry and lift things in her ordinary day-to-day life. She gets pain in the left shoulder after carrying and lifting things with her left arm but it often disappears overnight.
(f)    Since ceasing work with the respondent, the pain in her neck has somewhat improved.
The ARD claiming weekly benefits of compensation was filed on behalf of the applicant in the Personal Injury Commission (Commission) on 18 May 2023. The injury description/cause of injury is pleaded as follows:
“The applicant was required to undergo the following work duties during the course of her employment with the respondent as a blackjack dealer and operating the ‘Caribbean stud’ game.
Using her left hand and shoulder to quickly and respectively pull cards from a ‘shoe’.
Pulling a roulette table.
The applicant was required to perform the aforementioned work duties during the course of her employment between October 2006 to 26 March 2021 (deemed date 24 August 2015).
The applicant alleges that the aforementioned work duties had led to the contraction, aggravation, exacerbation, acceleration and/or deterioration of a disease condition and/or pre-existing condition to her left shoulder”.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    injury – the applicant no longer suffers from the effects of the injury sustained on 24 August 2015 (deemed date of injury);
(b)    injury – the injury sustained by the applicant on 24 August 2015 has resolved;
(c)    capacity for work;
(d)    residual earning capacity, and
(e) medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).

Matters previously notified as disputed

The following matters were previously advised by the respondent as disputed but later agreed:
(a)    The injury to left shoulder was conceded by the respondent in submissions during the arbitration. The respondent however maintained the dispute that, on its evidence, the left shoulder injury had now resolved.
(b)    The applicant’s pre-injury average weekly earnings (PIAWE) was agreed during the arbitration.
(c)    The effect of the Deed of Release signed by the applicant upon termination/resignation of her employment with the respondent on 26 March 2021 whereby the applicant received 24 weeks wages made up of four weeks wages in lieu of notice and 20 weeks as an ex-gratia payment, representing the period 26 March 2021 to 9 September 2021 was raised by the respondent in respect of the claim for weekly benefits in the reply. This issue was abandoned by the respondent during the arbitration.

Matters previously not notified

During the arbitration, the applicant amended the ARD to include a claim pursuant to s 60 of the 1987 Act for a general order in respect of medical and related expenses. The respondent consented to this amendment.
The applicant also amended the ARD during submissions in relation to the starting date for the weekly payments claim. By consent, the claim for weekly benefits pursuant to s 37 of the 1987 Act is to commence on 10 August 2021.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 11 July 2023.
Mr Ross Stanton of counsel appeared on behalf of the applicant instructed by Ms Kha, solicitor. The applicant, Ms Shin attended in person. Mr Thomas Grimes of counsel appeared on behalf of the respondent instructed by Ms Metawa, solicitor. Ms Barham from The Star Entertainment Group Limited attended by Teams as her office is in Brisbane.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents filed on 18 May 2023 with the exception of the report from Dr Keller dated 24 January 2017 and the report from Dr Anderson dated 27 April 2016 which were both withdrawn by the applicant’s counsel prior to the commencement of the arbitration following consideration of cl 44 of the Workers Compensation Regulation 2016.
(b) Application to Admit Late Documents attaching the Reply and attached documents filed on 15 June 2023 and admitted without objection during the preliminary conference on 20 June 2023;
(c) Wage Schedule filed by the applicant on 26 June 2023 in accordance with Directions made during the preliminary conference, admitted by consent.

Oral evidence

There was no oral evidence called at the arbitration. Both counsel made oral submissions which were sound recorded and a copy of the recording is available to the parties.

Applicant’s evidence

The applicant relies on two statements dated 8 November 2021 and 31 March 2022. (see pages 34 and 41 of the ARD).
The applicant also relies on medical reports, clinical notes and certificates of capacity from her treating doctors together with an ultrasound of the left shoulder dated 11 September 2015 (see page 94 of the ARD).
The applicant relies on the independent medical reports prepared on her behalf by Dr Mastroianni, consultant occupational physician, dated 27 October 2021 and 27 November 2022 (see page 85 and page 92 of the ARD).
In the report dated 27 October 2021, some seven months after the applicant ceased working with the respondent, Dr Mastroianni takes a detailed history of how the applicant developed symptoms in her left shoulder whilst working for the respondent. Under the heading “Opinion” (see page 89 of the ARD), Dr Mastroianni provides the following opinion:
“Ms Shin developed left shoulder pain as a result of the nature and condition of her work whilst dealing at the blackjack tables. The repetitive activities in getting the card out of the shoe caused and continually aggravated the left shoulder problem.
Investigations at the time revealed bursitis. The condition improved the treatment but she did not fully recover. When she went to work doing repetitive arm activities the problems recurred…
She was given permanent modified duties in 2017 following the flare up in 2015 and she coped with those duties as she only did table work requiring repetitive left shoulder movements, 4 hours on alternative days and the rest of her duties were supervisory duties. She left the company when alternative duties were no longer available in 2021.
My clinical diagnosis is left shoulder impingement and rotator cuff disruption caused by the nature and condition of the work…
There is an underlying problem with the shoulder which will flare up with repetitive activities…”
In relation to her current problems as at October 2021, Dr Mastroianni noted the following complaints:
“There is discomfort over the left anterior shoulder joint… Left shoulder movements were normal but at the extreme of elevation she complains of tightness in the shoulder. Impingement test was positive in the left shoulder…”
In relation to causation Dr Mastroianni opines:
“In my opinion the condition was caused by the nature and condition of her employment in 2007 and subsequently aggravated whilst working and doing repetitive activities dealing at the tables… in my opinion work was the main contributing factor to her injuries”.
In his report of 27 November 2022, Dr Mastroianni addresses the conclusions reached in the functional and vocational assessments prepared by Mr Hiscox and Ms Ugov from IMAC in July 2021. The IMAC reports determined that the applicant could perform full time work as a receptionist, sales assistant or general clerk. Dr Mastroianni considers the recommended occupations and concludes that these jobs are not suitable for the applicant as her left shoulder would restrict her. Furthermore, the activities in the jobs suggested by Mr Hiscox from IMAC all have the potential to aggravate the applicant's left shoulder. Dr Mastroianni is of the opinion that the applicant is fit for full time work with restrictions in use of the left arm in repetitive activities, activities requiring static overloading, restrictions in heavy lifting and restrictions on above shoulder height activities.
The applicant also relies on the report of Dr Wallace, orthopaedic surgeon, dated 19 January 2016 who the applicant first saw on behalf of the respondent on 19 January 2016 (see page 57 of the ARD). Dr Wallace takes a history from the applicant in respect of her work duties and the development of symptoms in her left arm. At that time, Dr Wallace diagnosed a musculoligamentous strain to her left shoulder girdle. Dr Wallace was of the opinion that the applicant’s left shoulder girdle condition was due to injuries sustained in the course of her duties at work on 24 August 2015. He opined that her employment with the respondent was a substantial contributing factor to her left shoulder condition. At that time, Dr Wallace was of the opinion that the applicant was unfit to return to her full pre-injury duties as a dealer. Dr Wallace opined that the applicant would not be fit for activities requiring repetitive bending or twisting movements at her left shoulder or overhead use of her left arm or repetitive lifting over five kilograms at her left arm. She was fit to continue work at full time light duties with due consideration given to the restrictions on her activities he previously advised. Dr Wallace was of the opinion that she would be fit for a trial to return to work at her preinjury duties as a dealer, without restriction, within one month of the consultation in 2016. Dr Wallace agreed that the applicant’s employment with the respondent was a substantial contributing factor to her left shoulder condition.
The applicant also relies on an ultrasound report which was commented on by Dr Zita Gacs on 13 September 2015. Dr Gacs reported the following findings:
“There is tendinosis of the subscapularis tendon. The supraspinatus tendon is normal. The infraspinatus tendon is normal. No evidence of rotator cuff tendon tear. A small effusion is present in the sub acromial/subdeltoid bursa. No evidence of bursal impingement.
The nerve in the supraglenoid notch appears to be thickened, compared to the right side. There is no obvious mass lesion.
Impression: No evidence of rotator cuff tendon tear. Mild subacromial bursitis. If clinically indicated, we can perform ultrasound guided steroid injection for management purposes. Note is made of mild thickening of the nerve in the supraglenoid notch. Clinical correlation and further evaluation with MRI study might be of value”.
The applicant also relies on the Deed of Release that she signed for the respondent on 26 March 2021 when she ceased employment with the respondent (see page 23 of the ARD).
Of relevance are the recitals set out in the Deed of Release which are as follows:
“A.     The Employee was employed by the Company from 6 November 2006 to 26 March 2021 (the Employment). Most recently, the Employee held the position of Dealer/Supervisor (the Position).
B.     From on or around September 2010 the Employee was unable to perform all duties associated with the Position due to an injury they had incurred. The Company subsequently provided the Employee with modified duties (Alternative Duties).
C.     On or around 2 March 2021, the Company required the Employee to undertake an Independent Medical Examination (IME) to assess whether or not the Employee could perform the inherent requirements of the position.
D.      On 24 March 2021, the Company met with the Employee to discuss the results of the IME, including the Company's preliminary view that the employee could not perform the inherent requirements of the Position, and that the alternative duties could not be continued to be provided.
E.      Following the meeting of 24 March, the Employee notified the Company that they intended to end the Employment effective 26 March 2021 (the resignation) and without admission of liability, the parties wish to settle all matters between them on the confidential terms set out in this Deed of Release (the Deed).”
The applicant relies on her pay records with the respondent and her pay records from her current employment with Menzies Aviation (see pages 182 and 188 of the ARD). The applicant has summarised her payslips from Menzies Aviation in the wage schedule which was filed separately by the applicant. The applicant also relies on her offer of employment letter from Menzies Aviation dated 14 June 2022 (see page 206 of the ARD).

Applicant’s submissions

The applicant’s submissions can be summarised as follows:
In relation to current capacity, the applicant submits that it is unfair to focus on one of the applicant’s pay slips from her current employer. The applicant has worked for one year with Menzies Aviation. The applicant submits that it is more appropriate to look at the average earnings over the entire year, not unlike the calculation of the PIAWE.
The applicant urged upon me to examine the pay slips in detail as they contained penalty loadings and different hourly rates.
The applicant submitted that I should be impressed with the applicant taking into consideration her background, training, work performed in Australia and the fact that she worked with the respondent for many years.

The applicant further submitted that the work she performed with the respondent was very repetitive. The applicant pointed out that it is not disputed that the work she performed with the respondent caused the problem with her left shoulder and the problems continued throughout her employment with the respondent. The applicant pointed out that whilst still employed with the respondent, the respondent took care to provide the applicant with permanently modified duties and undertook numerous investigations to address the cause of her injury and ongoing symptoms.
The applicant pointed out that workers compensation benefits were paid up until 10 August 2021 and therefore there was no need to include certificates of capacity in the ARD prior to this date for periods for which the applicant was paid weekly benefits.
The applicant made submissions with regards to the definition of “suitable employment” and took me to the decision of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar). In that decision Deputy President Roche commented that when considering an applicant’s capacity to earn you have to look at the applicant’s ability to earn in a “real job”. The applicant’s submitted that in this matter I would be well satisfied that the applicant's actual earnings with Menzies Aviation provide a proper measure as to what the applicant can earn in suitable employment.
The applicant was critical of the vocational and functional assessments relied on by the respondent prepared by Graham Hiscox, psychologist and Leudmila Ugov, occupational therapist, from IMAC dated 16 July 2021 and 15 July 2021. The applicant submitted that the authors of the reports prepared by IMAC lacked expertise. The applicant described the reports as very artificial and contrived and submitted that the reports did not address the real world and the “real jobs” that Roche DP was referring to in the matter of Dewar. The applicant points out that one of the IMAC reports was authored by a psychologist who was not a clinical psychologist and no weight should be given to that report. The applicant conceded that the second report prepared by Ms Ugov was prepared by an occupational therapist however the applicant submits that an occupational therapist was less qualified than a medical practitioner to provide an opinion in relation to the applicant’s capacity to work and was of no assistance in this regard.
The applicant noted that some guidance can be gained from the nominated treating doctor, Dr Kim. However, the applicant submits that the most reliable evidence was provided in the reports from Dr Mastroianni who is an occupational physician. In particular, the second report from Dr Mastroianni dated 27 November 2022 explains in detail why the positions recommended in the IMAC reports were not suitable for the applicant when considering
the nature of her injury. The applicant submitted that I should prefer the opinion of Dr Mastroianni.
The applicant conceded that the treating medical evidence in the ARD is somewhat dated. The applicant referred me to a report from Dr Kim dated 18 January 2022. In that report, Dr Kim confirms that the left shoulder injury is permanent (see page 47 of the ARD). The applicant also referred me to a report from Dr Kuo dated 24 May 2007 who found the applicant’s symptoms in the left shoulder were muscular in origin and related to overuse (see page 45 of the ARD). The applicant then referred me to a report from Dr Ibrahim dated 9 October 2015 in which Dr Ibrahim found hypertonic change around the trapezius and levator scapular area (see page 46 of the ARD). Dr Mastroianni in his opinion provided the following diagnosis “Left shoulder rotator cuff disruption with impingement” (see page 49 of the ARD).
The applicant then provided a detailed analysis of the opinion expressed by Dr Wallace in his report dated 16 July 2021 (see page 65 of the ARD). The report of Dr Wallace of 16 July 2021 is relied upon by the respondent. The applicant submitted that the history and analysis relied upon and provided by Dr Wallace is flawed. In his report, Dr Wallace states that there is no further history of injury at the left shoulder since the applicant was last assessed in January 2016. The applicant submits that Dr Wallace seems to suggest that if the applicant had not had a further injury, she cannot still have a problem with her left shoulder. Dr Wallace accepted that the applicant had sustained an injury on 24 August 2015 in his report of 19 January 2016. At that time, Dr Wallace also acknowledged that the applicant would need physiotherapy and restricted duties. The applicant submits that Dr Wallace has failed to recognise that the applicant has continued to complain of pain in her left shoulder since 2016 and has sought medical treatment in relation to the pain and ongoing symptoms in her left shoulder. The applicant submits that Dr Wallace’s conclusion that the applicant's left shoulder has resolved is unfounded and not supported by the evidence. The applicant submits that Dr Wallace’s opinion appears to be based on an incorrect understanding that the applicant injured her left shoulder in August 2015 and has not had any further injuries since that time. It is the applicant’s submission that Dr Wallace has disregarded the work performed by the applicant with the respondent since 2015 and her ongoing complaints of pain and treatment that she has undertaken since his last report.
The applicant submits that Dr Wallace also reports that the applicant advised him she had no “current pain” in her left shoulder. This evidence is of little value as Dr Wallace does not identify what he means by “current pain”. The applicant submitted that the phrase “current pain” could refer to whether the applicant was experiencing pain in her left shoulder while she was sitting in Dr Wallace’s practice in July 2021 or it could be interpreted in a much wider context to refer to day to day pain in general. The applicant submits that if I was to accept the latter interpretation of this comment made by Dr Wallace this would clearly be at odds with the applicant’s statement where she has identified she continues with pain in her left shoulder. The applicant submits that there has been no cessation of problems and the report from Dr Wallace contains illogical flaws and, in the circumstances, I should prefer the opinion expressed by Dr Mastroianni.
The applicant then made submissions on the periods that I had to address in relation to weekly benefits of workers compensation should I decide in favour of the applicant. The applicant’s counsel confirmed that the applicant had been paid for the first entitlement period pursuant to s 36 of the 1987 Act. The applicant confirmed the applicant’s claim pursuant to s 37 of the 1987 Act commences on 10 August 2021. As the deemed date of injury for the purpose of calculating the applicant’s PIAWE is 24 August 2015, the 2018 amendments to the 1987 Act dealing with the calculation of preinjury earnings are not relevant. Fortunately, the parties have agreed that the PIAWE as at the date of the commencement of the claim is $1,556 as of 10 August 2021. It is agreed between the parties that the 52-week period in relation to the calculation of the PIAWE ended on the 25 March 2022. The PIAWE after this date drops to $1,217 as it no longer includes shift allowances and overtime. The PIAWE figure was indexed on 1 April 2022 and increased to $1,240. As of 26 March 2022, the applicant was not working so in the event that she is successful in her claim, I must look at 80% of her PIAWE for the period between 26 March 2022 and 20 June 2022. On 21 June 2022, the applicant commenced working with Menzies Aviation on a part time basis and remains so employed. From 21 June 2022, in the event that the applicant is successful with her claim for weekly benefits, I must look at 95% of her PIAWE as indexed which at that time is agreed to be $1,240. The wage schedule filed by the applicant summarises the applicant’s payslips from Menzies Aviation and also provides the indexed PIAWE for increases on 1 October 2022 and 1 April 2023. The current indexed PIAWE is $1,334.00 as agreed.
In respect of the applicant’s earnings with Menzies Aviation the applicant submits that her wages could be averaged for the financial years that she has been working. In the financial year ending 30 June 2022 the applicant had worked for two weeks with Menzies Aviation and earnt, on average, $674.15 per week. For the financial year 1 July 2022 to 18 June 2023 (a period of 50 weeks) the applicant had earned $52,260.91 which yields an average earning of $1.045.22 per week.
In respect of the period between 10 August 2021 to 19 June 2022, which was the day before she commenced employment with Menzies Aviation, the applicant submits that I should take into account the weekly amounts the applicant was initially able to earn with Menzies Aviation which was on average, at that time, $674.15 per week.
The applicant also seeks a general order pursuant to s 60 of the 1987 Act which the applicant submits will flow should I find that the applicant’s left shoulder injury has not resolved.

Respondent’s evidence

The respondent relies on the PIAWE determination dated 22 June 2021 (see page 1 of the Reply) together with the s 78 notices dated 27 July 2021 and 29 July 2021 (see pages 2 and 3 of the ARD) and the s 78 notice (work capacity decision) dated 31 August 2021 (see page 8 of the ARD) and the s 287A review decision dated 14 December 2022 (see page 16 of the ARD).
The respondent also relied on the forensic medical report from Dr Raymond Wallace dated 16 July 2021 (see page 65 of the ARD). In that report Dr Wallace notes that since his last review of the applicant in 2016, she has not undergone any further medical treatment. She had continued on permanently modified duties working four hours dealing per shift and four hours undertaking supervisor duties. In relation to her present complaints, Dr Wallace notes:
“She notes no current pain at her left shoulder. She complains of intermittent aching pain at the superior border of the trapezius muscle radiating to the left scapular spine, left clavicle after prolonged periods of dealing cards. She notes no paraesthesia, numbness or weakness of her left arm. She notes no stiffness at her left shoulder”.
On examination, Dr Wallace notes:
“Examination of bilateral shoulders showed no swelling or deformity. She had a range of movement of her bilateral shoulders of flexion 180`, extension 60`, abduction 180`, adduction 50`, external rotation 80` and internal rotation 70`. At the left shoulder there were no tender areas. Her biceps tendons were intact. She had normal strength in abduction and external rotation.”
Dr Wallace opines that the previously diagnosed musculoligamentous strain of the left shoulder girdle has now resolved and she has no current work incapacity as a result of any work-related condition at her left shoulder. He no longer held the opinion that the applicant's employment with the respondent was a substantial contributing factor to any current left shoulder girdle condition.
The respondent also relies on a functional assessment report dated 15 July 2021 (see page 7 of the Reply) and a vocational assessment report dated 16 July 2021 (see page 166 of the ARD). Following assessment of the applicant the functional assessment report and the vocational assessment report concluded that the applicant was fit to perform full time work as either a receptionist, sales assistant or general clerk.

Respondent’s submissions

In submissions, the respondent acknowledged the concessions made by the respondent in the Deed of Release.
The respondent confirmed that depending on my findings, a general order for s 60 expenses would flow and no further submissions were made by the respondent in relation to the applicant’s claim pursuant to s 60 of the 1987 Act.
The respondent then took me to the report of Dr Wallace dated 16 July 2021 and noted Dr Wallace’s findings on examination support the doctor’s opinion that the applicant’s injury had resolved.
The respondent then took me to the certificates of capacity issued by the applicant’s nominated treating doctor from 24 August 2021 (see page 96 of the ARD). The respondent pointed out the restrictions the doctor placed upon the applicant’s capacity to work in relation to her left shoulder injury. He also noted the treating doctor certified the applicant to have the capacity to work eight hours per day five days per week subject to the restrictions the doctor listed on the certificate. The respondent submitted that the certificates of capacity were consistent with the functional assessment report and the vocational assessment report prepared in July 2021 which were relied upon by the respondent. The respondent submits the reports are largely based on self-reporting by the applicant during the assessments. Those reports determined that the applicant could work full time as a sales assistant, a receptionist, concierge or a general clerk. In these roles she would be able to earn between $944.30 and up to $992.94 gross per week.
The respondent then examined the payslips of the applicant with Menzies Aviation and submitted that she has been able to work 30.5 hours per week (see page 194 of the ARD). The respondent conceded that this represented the “high point” of the applicant’s earnings with Menzies Aviation but submitted that on the basis of the certificates of capacity and the functional assessments and the applicant’s demonstrated capacity prior to her termination, the applicant was able to work 40 hours per week and as such is unable to demonstrate a loss since weekly payments of workers compensation ceased.
The respondent submitted that I did not have before me any certificates of capacity between March 2021 and August 2021 however it was later conceded that weekly benefits of compensation were paid up until 10 August 2021.
Finally, in his submissions in reply, the respondent noted that the vocational assessment and the functional assessment that the applicant’s counsel was critical of during his submissions are based on the applicant’s own self reporting in relation to her capacity. The vocational assessment and the functional assessment are also in line with the certificates of capacity issued by the applicant’s treating doctor. The respondent further notes that Dr Mastroianni in his report finds the applicant fit for full time work with restrictions so long as suitable duties are provided. The respondent also relies on the later report of Dr Wallace dated 16 July 2021 in relation to the applicant’s capacity. In that report, Dr Wallace finds the applicant has no current work incapacity as a result of any work-related condition of her left shoulder girdle.

FINDINGS AND REASONS

Has the injury the applicant sustained to her left shoulder resolved – Issues (a) and (b)

I have considered the documentary evidence relied on by the applicant and the respondent in this matter together with the submissions made by counsel at the arbitration hearing. Having considered the evidence I am of the view that the injury the applicant sustained to her left shoulder during the course of her employment with the respondent has not resolved.
I make this finding based on the following evidence.
The applicant in her statement dated 8 November 2022, outlines the difficulties she still has in relation to her left shoulder. I have recorded those difficulties in paragraph 15 above. In her statement of 31 March 2023, the applicant records that if she carries her handbag on her left shoulder, she doesn’t immediately feel pain in her left shoulder however she does note an increase in left shoulder pain, one to two hours after she has carried her handbag on the left shoulder. The applicant estimates the weight of her handbag between one to two kilograms. The applicant also records that when the left shoulder pain is bad, she uses heat packs, massages and Voltaren to manage the pain.
The applicant’s claim for weekly benefits of compensation is from 10 August 2021 to date and continuing. When considering the issue as to whether or not the left shoulder injury has resolved I have considered the clinical notes of Dr Antoun and Dr Kim. In the clinical notes produced by Dr Antoun, who is the respondent’s company doctor, the clinical notes date from the applicant’s first attendance on 29 March 2010 up to the applicant’s last attendance with Dr Antoun on 22 May 2017. During that period, the applicant attended Dr Antoun on a regular basis. What is significant from the clinical notes are the repeated entries in the notes by Dr Antoun confirming that the applicant will only ever be fit for permanently modified duties, (PMD), due to her injury (see page 110 of the ARD). Dr Antoun also records that the applicant has reached maximum medical improvement. Dr Antoun records that the applicant experiences an increase in pain in the left shoulder when she returns to dealing and he is satisfied that she should not do more than 4 hours dealing per shift and the remainder of her shift should be supervisory work.
The clinical notes from Dr Kim cover the period 26 November 2020 up to 3 June 2021 (see page 48 of the ARD). The clinical notes are supplemented with a helpful, short report from Dr Kim dated 18 January 2022 (see page 47 of the ARD). It is clear from the clinical notes that Dr Kim was aware that the applicant was on permanently modified duties with the respondent up until her forced resignation in March 2021. At an attendance with Dr Kim on 21 January 2021, two months before her forced resignation, Dr Kim records the following:
“…returned for medical certificate/ her L arm pain is very painful/ has to stretch many times/ needs to do swimming 2kms after work otherwise she cannot lift her L arm/ gets pain after dealin [sic] roulette/ after one hour of card games pain is quite severe/ at the moment she doesn't deal the card [sic] for more than 2 hours/ not given any supervising roles/ not too sure what to do at the moment/ the work has all the power to arrange the work/ she is concerned that they are trying to get rid of all the permanent injury people”.
In the report dated 18 January 2022, Dr Kim records:
“She was given PMD (permanently modified duties) from her workplace (Star Casino) in the past for L shoulder injury from repetitive movements (from dealing for long hours). She has been on alternating duties at her work - supervising and dealing just before COVID pandemic started… She tried returning to dealing duties for extended hours which resulted in return of her L shoulder pain. She told me she had seen three diffrent (sic) specialists for her L shoulder injury in the past where they confirmed her L shoulder injury is permanent – i.e. she was put on PMD at her work. She still suffers from L shoulder pain and needs to keep up with strengthening specific muscle groups to minimise her pain by stretching and exercising every day. If she stops this, her pain of L shoulder gets quite severe. I believe her L shoulder injury is permanent and she is not able to perform any duties that involve L shoulder movements”.
The clinical notes and the report referred to above support my finding that the applicant’s left shoulder condition is permanent and has not resolved. I acknowledge that the nature of the applicant’s injury to her left shoulder can result in periods where she is pain free or suffers only minimal pain however in the event that she is required to perform any activities that involves repetitive use of her left arm and activities that put pressure on her left shoulder, her pain returns.
In further support of this, I refer to the report of Dr Ibrahim dated 9 October 2015 (see page 46 of the ARD). In that report, Dr Ibrahim records that the applicant had undergone a number of injections which helped to settle her left shoulder symptoms however since then the symptoms have returned and continue, despite rest.

The report from Dr Kuo orthopaedic surgeon dated 24 May 2007 is also helpful, despite the age of the report. The applicant consulted Dr Kuo in 2007 (see page 45 of the ARD). I only have page 1 of that report before me however I do note that on that page Dr Kuo expresses the opinion that if the applicant’s left shoulder symptoms do not settle, “she may need to consider redeployment to a different section of the casino”. In making this comment it would appear to me that as far back as 2007, Dr Kuo was expressing a guarded prognosis and the condition that the applicant had developed in her left shoulder as a result of the repetitive work she was performing with the respondent may not resolve and a permanent reallocation of her work duties may be necessary.
The report from Dr Mastroianni dated 27 October 2021 was prepared two months after liability was declined by the respondent. The report is the most up to date evidence before me following the cessation of liability by the respondent. Dr Mastroianni examined the applicant on 27 October 2021. His report clearly supports my finding that the applicant’s condition has not resolved. Under the heading “Present complaints/symptoms” Dr Mastroianni records that the applicant's left shoulder is sore with certain activities and repetitive shoulder movements cause pain. Dr Mastroianni further records “Pulling, pushing and lifting with any force causes pain”. Further, Dr Mastroianni records the applicants sleep is disturbed and the shoulder pain wakes her up as she can't sleep on the left side for long. On examination, Dr Mastroianni found the applicant’s left shoulder movements were normal but at the extreme of elevation she complained of tightness in the left shoulder. The impingement test was positive in the applicant's left shoulder. Dr Mastroianni also states that in view of the chronicity of the condition the applicant’s prognosis is guarded.
The respondent relies on the report of Dr Wallace dated 16 July 2021 (see page 65 of the ARD). Dr Wallace is of the opinion that the applicant’s injury has resolved. I do not accept the opinion expressed by Dr Wallace for these reasons. Dr Wallace has based his opinion on a misguided assumption that the applicant only sustained an injury to her left shoulder on 24 August 2015. The 24 August 2015 is the deemed date of injury for the applicant’s injury to her left shoulder. It is clear from the medical evidence before me, including an earlier report prepared by Dr Wallace dated 19 January 2016, that the injury the applicant sustained during the course of her employment was due to the repetitive actions that she undertook in her duties as a dealer over an extended period and did not simply develop on one day. Dr Wallace has failed to consider that the applicant remained employed with the respondent after the 24 August 2015 and whilst on permanently modified duties still had to perform work as a dealer. The medical evidence I have referred to above supports that even whilst the applicant was performing permanently modified duties, she continued to experience symptoms in the left shoulder.
I agree with the applicant’s submission in relation to the comment recorded in the report of Dr Wallacedated 16 July 2021 at page 3 (see page 67 of the ARD), where under the heading “Present Complaints” Dr Wallace records the applicant has “no current pain at her left shoulder” and further records “no paraesthesia, numbness or weakness at her left arm. She notes no stiffness at her left shoulder”. These comments are equivocal and provide no time reference as to what the doctor means by “current”. It is unclear from the report whether or not the applicant is not experiencing symptoms of paraesthesia, numbness, weakness or stiffness of her left shoulder at the time of the examination or whether she no longer experiences these symptoms at all. In the same paragraph Dr Wallace does however note that the applicant reported “intermittent aching pain at the superior border of the trapezius muscle radiating to the left scapular spine, left clavicle after prolonged periods of dealing cards”.
Furthermore, at the time of the applicant’s re-examination by Dr Wallace, she had not been working with the respondent for three months and according to her statement, the applicant had been resting her left shoulder. It may well be that when the applicant attended Dr Wallace’s appointment on the 16 July 2021 her symptoms were negligible. Dr Wallace does not address how the nature of the injury the applicant sustained to her left shoulder during the course of her employment with the respondent was susceptible to an increase in symptoms in the event she resumes repetitive work involving her left arm and shoulder and is required to put pressure on her left shoulder.
The respondent also relies on the vocational and functional assessments prepared by IMAC prepared in July 2021 which I have already referred to. I note at the time of the assessments the applicant had not been working for three months. Despite this the reports do record that the applicant advised the assessor that she experienced pain in her left shoulder when performing dealing duties. The pain was described as pressing, burning and sparking inside the muscle. Furthermore, under the heading Activity Level/Reported Tolerances, the applicant advised that she was only able to lift with her left hand up to three kilograms and bilaterally up to five kilograms. She self-reported she can only carry approximately five kilograms. She self-reported that she was unable to push/pull up to five kilograms. In relation to the use of her arms below shoulder level, at shoulder level and above shoulder level she reported that she may have difficulty performing repetitive tasks with the left arm at these levels (see page 16 of the Reply). In my opinion this provides further support for my finding that the applicant’s injury to her left shoulder has not resolved.
Before I leave this issue, I would also point out that the Deed of Release signed by the applicant on 26 March 2021 (see page 23 of the ARD) provides an acknowledgement by the respondent that, as of 26 March 2021, the applicant was unable to perform the inherent requirements of her position due to her injury and permanently modified duties could no longer be provided by the respondent. It should also be noted that according to the Deed of Release, the employer arranged for the applicant to undertake an independent medical examination on or around 2 March 2021 to assess whether the applicant could perform the inherent requirements of her position. I do not appear to have a copy of the independent medical examination report referred to in the Deed of Release but on the basis of the examination the employer reached the preliminary view that the applicant was no longer able to perform the inherent requirements of her position and permanently modified duties could no longer be provided. This acknowledgment in the Deed of Release lends further support that the applicant’s injury had not resolved at the time she ceased working for the respondent.
Apart then the second report from Dr Wallace there is nothing to indicate from the available evidence that the applicant is not genuine in her ongoing complaints of pain and the difficulties she experiences in her left shoulder. I accept the applicant’s statements and, on the evidence, detailed above find that the left shoulder injury has not resolved. The fundamental issue that I now have to decide in this dispute is the extent of her incapacity as a result of that ongoing injury on her work capacity since 10 August 2021.

Capacity for work and residual earning capacity – issues (c) and (d)

I have considered the documentary evidence relied on by the applicant and the respondent in this matter together with the submissions made by counsel at the arbitration hearing. Having considered the evidence I am of the view that the injury the applicant sustained to her left shoulder during the course of her employment has left her with an ongoing partial incapacity for work based on the following reasons:
In my view, the medical evidence I have referred to above clearly discloses that the applicant remains totally unfit to resume her preinjury duties as a full-time dealer with the respondent. The respondent themselves have acknowledged this by providing the applicant with permanently modified duties at various times during her employment in 2007, 2009, 2010 and from 2015 until her forced resignation on 26 March 2021, when her employment was effectively terminated by the respondent as they were of the opinion that she would not be able to resume her pre-injury duties and they were no longer able to employ her in the permanently modified duties that she had been performing for several years. The permanently modified duties enabled her to work with the respondent at her full-time hours albeit with pain in her left shoulder, at times, due to overuse. Up until March 2021, the applicant had not had any time off work due to her injury. During the period 2015 to March 2021, the applicant saw several doctors at her own request and at the request of her employer in an attempt to address the ongoing symptoms she was experiencing. At times, when attempts were made to increase the hours she would perform dealing work or be rostered on another game that involved repetitive use of the arms, for example roulette, the applicant immediately experienced an increase in her symptoms. The applicant has provided a clear history of the attempts she has made to return to her preinjury duties since first experiencing the left shoulder pain in 2007 up until her termination in 2021. The applicant has also described the increase in the pain she felt in her left shoulder if the permanently modified duties were changed by the respondent to increase the number of hours she was required to undertake repetitive card games.
The applicant was not cross examined on her statements. I accept the applicant’s statement evidence. I also accept the applicant’s submission that I would be impressed by the applicant’s determination to continue in the workplace despite ongoing pain and discomfort in her left shoulder.
Now turning to the issue of capacity and residual earning capacity. In this regard I am dealing with two periods. The first period is between 10 August 2021 and the day before the applicant secured part time employment with Menzies Aviation on 20 June 2022. The second period is from 20 June 2022 to date and continuing.
I have considered the arguments put forward by counsel representing the applicant and the respondent in relation to capacity.
I do not accept the argument put forward by the respondent that the applicant is fit for full time work, 40 hours per week, as either a receptionist, sales assistant or general clerk. I acknowledge that the certificates of capacity issued by Dr Kim certify the applicant fit for full time work, 40 hours per week however Dr Kim also places restrictions on the applicant's capacity in those certificates including a lifting/carrying capacity of no more than five kilograms and a pushing/pulling ability of no more than five kilograms. The certificates of capacity also note there will need to be modifications to her work. I also note that none of the certificates of capacity annexed to the ARD certify the applicant fit for preinjury work.
In reaching my conclusion in relation to the applicant’s residual capacity for work I am mindful of the limitations on the information provided in certificates of capacity. In DHL Excel Supply Chain (Australia) PtyLtd v Hyde [2011] NSWWCCPD 22, Keating P said at [93];
“The certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based: Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229;6 DDCR 461”.
I do not have before me any certificates of capacity in relation to the period before the applicant’s employment was terminated. It is however clear from the medical evidence that the applicant had persevered with her full-time work with the respondent for many years despite ongoing symptoms. It should however be noted that she was only able to achieve this due to the modified duties the respondent put in place to allow her to continue working full time albeit with difficulty and increased symptoms when the applicant attempted to do more hours dealing or was rostered to work on games that required the use of her left shoulder on a repetitive basis. Dr Kim has issued the certificates of capacity that are annexed to the ARD. It is important that the certificates are read in conjunction with the report from Dr Kim dated 18 January 2022 who advises in that report that the doctor has been issuing monthly certificates to the applicant since 26 November 2020. Considering the fact that the applicant was able to do her permanently modified duties with the respondent on a full-time basis up until her forced resignation it is not surprising that Dr Kim issued certificates of capacity after the applicant was forced to resign certifying her fit for eight hours per day, five days per week with restrictions. The certificates of capacity therefore must be considered with caution as although the applicant was able to work full time hours with the respondent on permanently modified duties, I am not convinced that her injury would permit her to work full time in another form of employment particularly in the jobs put forward by the IMAC reports relied on by the respondent. The respondent took me through some of the findings recorded in the IMAC reports referable to the applicant’s ability to sit and stand and squat and walk and climb stairs and kneel however the applicant’s injury is to her left shoulder. The work she had performed with the respondent since 2006 and in her earlier years in food service and preparation and as a graphic designer all require the use of her left shoulder. In this respect I note in the report of Dr Mastroianni dated 27 November 2022 Dr Mastroianni rejects the occupations put forward by IMAC and provides detailed reasons as to why the positions are not suitable. I accept Dr Mastroianni’s opinion in this respect particularly bearing in mind Dr Mastroianni is an occupational physician.
I acknowledge the respondent's submission that Dr Mastroianni finds the applicant has the capacity to work full time however Dr Mastroianni places restrictions on the applicant’s capacity which limit repetitive activities, static overloading, heavy lifting and work above shoulder height. I also note that Dr Mastroianni advises that in light of the chronicity of the applicant’s condition the prognosis is guarded. In his second report, Dr Mastroianni addresses the vocational assessment report of Mr Hiscox dated 16 July 2021. Without repeating the contents of the report, Dr Mastroianni forms the view that none of the positions recommended by Mr Hiscox are suitable for the applicant due to her injury. Dr Mastroianni states that all of the jobs identified by the psychologist have the potential to aggravate her left shoulder.
In relation to capacity, Dr Wallace in his report of 19 January 2016 opined that the applicant was “fit to continue work at full-time light duties with due consideration given to restrictions on her activities detailed above”. The restrictions noted by Dr Wallace were as follows: no repetitive bending or twisting movements at the left shoulder, no overhead use of the left arm and no repetitive lifting above five kilograms with her left arm. At that time Dr Wallace was of the opinion that she would be fit for a trial of her preinjury duties within a month of the consultation. According to the applicant’s statement, which I accept, she attempted a return to normal duties in December 2016 which resulted in severe left shoulder pain following which she was placed on permanent modified duties.
In his report of 16 July 2021, Dr Wallace opined that the applicant had no current work incapacity as a result of a work-related condition at her left shoulder. Yet again, Dr Wallace has used the word “current” which I find particularly unhelpful. As I have already pointed out, at the time of this consultation, the applicant had not been working for three months. According to her statement she had been able to “relax, rest and stretch” whenever she had pain or stiffness. She used heat packs and pain killers when she had pain. Dr Wallace has failed to comment on whether the applicant’s residual earning capacity has been impacted by the permanent condition that she developed during the course of her employment with the respondent in her left shoulder and how this condition would impact upon her residual earning capacity in the future. The report from Dr Wallace is now two years old and predates the employment the applicant secured with Menzies Aviation in June 2022 by 12 months.
I further note in her statement dated 8 November 2022, the applicant advised that after she was terminated by the respondent she rested her shoulder as much as she could. She started to look for suitable work but found it difficult to find a position that did not involve the use of her left arm/left shoulder. This is confirmed in the clinical notes from Dr Kim. In an attendance on 1 July 2021, Dr Kim has recorded “left shoulder not 100% comfortable all the time. On lifting heavy things or doing repetitive activity – pain. Uses voltaren gel. Can still function but with pain. Patient states her shoulder will not get any better. Hard to find work.” At a further attendance with Dr Kim on 29 July 2021 Dr Kim considered referring the applicant to see Dr Kannangara however liability was declined by the respondent. As already noted, on 20 June 2022, the applicant secured a part time position with Menzies Aviation working minimum hours of 20 hours per week at an hourly rate of $24.49. The applicant has provided a comprehensive statement dated 31 March 2023 setting out how she has modified her duties with Menzies Aviation to accommodate her injury. During the initial five months of her employment with Menzies Aviation she performed all of the duties of a ground services officer. The applicant explains that some of the duties were beyond her capacity. In December 2022 she was able to avoid doing the heavier aspects of her duties as a ground services officer. According to her statement she is currently working 22 hours per week, on average, and no longer picks up extra shifts due to the heavy demands of pushing and lifting. The applicant says in her statement of 31 March 2023 that she does not think she would be able to do full time work with Menzies Aviation (see page 43 of the ARD). This is the most recent information I have before me in relation to the applicant’s capacity. It is unfortunate that Dr Mastroianni and Dr Wallace have not been asked to comment on the suitability of this employment and how many hours per week the applicant could reasonably undertake this work without causing an increase in the pain in her left shoulder. The applicant herself expresses concern that if her current employer becomes aware of her inability to lift luggage this may affect her continued employment.
In light of the evidence before me, in respect of the period 10 August 2021 to 19 June 2022, I find that the applicant’s residual earning capacity during that period was $555.92 per week calculated on the base rate of pay she is now earning with Menzies Aviation, that is an hourly rate of $24.49 for 22.7 hours per week. I have carefully examined the payslips from Menzies Aviation attached to the ARD. The payslips cover the period 20 June 2022 to 12 February 2023, a period of 34 weeks. During this time, on average, the applicant has worked 22.7 hours per week. At the base rate of $24.49 per hour this provides weekly earnings of $555.92 per week. The applicant has said in her statement of 31 March 2023 that she is currently only working 22 hours per week due to her injury and would not be able to do the position with Menzies Aviation on a full time basis. I find that this is the most reliable evidence before me upon which to base my calculations for the period which preceded the period when the applicant secured employment. Although the medical evidence suggests the applicant can work 40 hours per week, I am not persuaded that this is a true indication of the applicant’s capacity for work. The applicant was only able to work 40 hours per week with the respondent because she was given permanently modified duties by the respondent. On each occasion that she attempted to vary the permanently modified duties she experienced an increase in pain and symptoms in her left shoulder. The jobs put forward in the IMAC reports are not suitable so I do not wish to rely on those occupations or the hourly rates for those positions recommended as suitable by IMAC. The respondent have not put forward any other suitable occupations for me to consider. I note the earlier vocational assessment report prepared by Rehabitation Services by Altius dated 30 March 2017(see page 139 of the ARD) recommends the following positions: customer service, gaming worker or concierge, all of which I consider unsuitable on the same basis that Dr Mastroianni found the positions put forward by IMAC as unsuitable. All of these positions involve frequent use of the left shoulder. The applicant found the position with Menzies Aviation herself without the assistance of a rehabilitation provider or Centrelink. The applicant has provided a statement detailing how she has modified her position to accommodate her injury since commencing with Menzies Aviation on 20 June 2022. I have also considered the comments made by Roche DP in the matter of Dewar in coming to my decision. I consider the position the applicant has secured with Menzies Aviation a “real job” and despite the difficulties the applicant advises that she has with some aspects of the position in her statement dated 31 March 2023, I believe the position the applicant has secured with Menzies Aviation demonstrates the applicant's residual earning capacity.

In relation to the period 20 June 2022 to date and continuing, I accept the applicant’s submission that the appropriate way for me to assess the applicant’s residual earning capacity is to look at what the applicant has earned with Menzies Aviation in the financial year ending 30 June 2022 (a short period of two weeks) and the financial year 1 July 2022 to 18 June 2023 (50 weeks) which is the last pay information I have before me contained in the payslips and the wage schedule I see no reason not to accept the method put forward by the applicant. In the period 1 July 2022 to 18 June 2023, the applicant earnt on average, $1045.22 per week. I would point out that if the applicant was able to work 40 hours per week with Menzies Aviation at the base rate she would only be earning $996 per week. As I have advised above, the applicant secured the position herself without the intervention of a rehabilitation provider and she has modified the position to accommodate her injury. In the circumstances I believe it represents the best evidence upon which to base my findings in relation to the applicant’s residual earning capacity. In his submissions in reply, the respondent did not dispute that I could approach the issue of residual earning capacity in this manner. I also note in the applicant’s statement of 31 March 2023, the applicant advises that she is currently only able to work 22 hours per week and she does not think she could work full time for Menzies Aviation. Apart from the position of ground services officer and the positions recommended in the respondent’s vocational assessment reports, which I do not accept, the applicant’s current employment is the best evidence before me.
The respondent has not disputed the PIAWE figures contained in the applicant’s wage schedule filed pursuant to my Directions at the Preliminary Conference. The respondent was given the opportunity to file a wage schedule in response however they did not do so. In any event the respondent’s counsel confirmed that the PIAWE figures as set out in the applicant’s wage schedule were agreed.
In the period 20 June 2022 to 30 June 2022, I find the applicant’s residual earning capacity $674.15 per week.
In the period 1 July 2022 to date and continuing I find the applicant’s residual earning capacity $1045.22 per week.
The parties agree that as the applicant’s entitlement to weekly compensation is in respect of an injury with a deemed date, 24 August 2015, the weekly compensation is to be assessed having regard to the weekly payment provisions of the 1987 Act pertaining to the calculation of the applicant’s PIAWE that was in force prior to the Workers Compensation Legislation Amendment Act 2018, in particular, s 44D.
The applicant’s indexed PIAWE in respect of the period 10 August 2021 to 25 March 2022 is agreed at $1,556.
The 52-week period in respect of the initial calculation of the PIAWE ended on 25 March 2022 (s 44D). The indexed PIAWE as provided by s 82A of the 1987 Act, and agreed, is as follows:
(a)    from 26 March 2022 – $1,217;
(b)    from 1 April 2022 – $1,240;
(c)    from 1 October 2022 – $1,281, and
(d)    from 1 April 2023 – $1,334.
I find that during the period 10 August 2021 to 19 June 2022, the applicant was able to earn $555.92 per week in suitable employment.
I find that during the period 20 June 2022 to 30 June 2022, the Applicant was able to earn $674.15 per week in suitable employment.
I find that during the period 1 July 22 to date and continuing the applicant was able to earn $1,045.22 per week.

SUMMARY

In light of my findings, I enter the following award in favour of the applicant:
(a)    $688.88 per week for the period 10 August 2021 to 25 March 2022;
(80% of the PIAWE, $1,556 = $1,244.80 less residual earning capacity $555.92);
(b)    $417.68 per week for the period 26 March 2022 to 31 March 2022;
(80% of the PIAWE, $1,217 = $973.60 less residual earning capacity $555.92);
(c)    $436.08 per week for the period 1 April 2022 to 19 June 2022;
(80% of the PIAWE, $1,240 = $992 less residual earning capacity $555.92);
(d)    $503.85 per week for the period 20 June 2022 to 30 June 2022;
(95% of the PIAWE, $1,240 = $1,178 less residual earning capacity $674.15);
(e)    $132.78 per week for the period 1 July 2022 to 30 September 2022;
(95% of the PIAWE, $1,240 = $1,178 less residual earning capacity $1,045.22);
(f)    $171.73 per week for the period 1 October 2022 to 31 March 2023;
(95% of the PIAWE, $1,281 = $1,216.95 less residual earning capacity $1,045.22), and
(g)    $222.08 per week for the period 1 April 2023 to date and continuing as adjusted
(95% of the PIAWE, $1,334 = $1,267.30 less residual earning capacity $1,045.22)
I note that there are two different dates in the s 78 notices issued by the respondent advising when weekly benefits will cease. In the first s 78 notice dated 27 July 2021 the date for the cessation of benefits is 10 August 2021 (see page 2 of the ARD) In the second s 78 notice dated 29 July 2021, the date for the cessation of benefits is 12 August 2021 (see page 3 of the ARD). I have used the earlier date in respect of the commencement of the claim. In light of this anomaly, the respondent is to have credit for any payments of weekly compensation already paid in respect of the orders I have made.
In light of my findings that the applicant’s left shoulder injury has not resolved, I make a general order in respect of the applicant’s medical and associated expenses pursuant to s 60 of the 1987 Act.

[2023] NSWPIC 362

20 July 2023