Visic v Essilor Australia Pty Limited - [2018] NSWWCCPD 19

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Visic v Essilor Australia Pty Limited [2018] NSWWCCPD 19
APPELLANT:	Zorka Visic
RESPONDENT:	Essilor Australia Pty Limited
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-3535/17
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	17 January 2018
DATE OF APPEAL DECISION:	11 May 2018
SUBJECT MATTER OF DECISION:	Failure to deal with an issue in dispute; findings with respect to ability to earn; s 32A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Millicevic Solicitors
Respondent:	Rankin Ellison Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination of 17 January 2018 is confirmed, except for order [3] which is varied as follows: “Award in favour of the respondent in respect of the condition claimed by the applicant in the left upper extremity (shoulder).”

INTRODUCTION

This appeal concerns a claim for weekly and lump sum compensation under the Workers Compensation Act 1987 (the 1987 Act). In particular, it concerns an alleged failure to determine the worker’s claim of injury to her left upper extremity and challenges the Arbitrator’s finding concerning the worker’s capacity for suitable employment as defined in s 32A of the 1987 Act.

BACKGROUND

Zorka Visic, the worker, was employed by Essilor Australia Pty Ltd, the respondent, from April 2011 to 3 March 2016. She worked in a lens factory where she was required to unpack large boxes of lenses, scan the barcode on lens packages, and, amongst other things, fill a lens order. After six months scanning lens packages, she rotated between these tasks.
In November 2011, Ms Visic started to feel pain in her right arm and shoulder. That pain increased in severity over time. She claims that on 3 March 2016 the pain in her arms, shoulders and neck became severe.
On 10 March 2016, Ms Visic completed a worker’s injury claim form in which she recorded injury to her right shoulder with sub-cromial bursitis. She described the injury as having occurred in the following terms: “extremely high air flow from an air-conditioning unit which was directly in front of me.”
On 18 March 2016, Ms Visic completed a second worker’s injury claim form in which she recorded the same injury but described the injury as having occurred when she “was a pick packer scanning products in the direct airflow and the air-conditioning unit onto my neck & shoulders.”
On 3 June 2016, the respondent’s insurer, Allianz Australia Workers Compensation (NSW) Limited (Allianz), issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability for injury to both shoulders and neck. It did not accept that Ms Visic had sustained injury or that employment was a substantial contributing factor to the injury (ss 4 and 9A of the 1987 Act). It did not accept that Ms Visic was prevented from working (s 33 of the 1987 Act) and did not accept that any treatment claimed was reasonably necessary for the injury (s 60 of the 1987 Act).
On 16 September 2016, Allianz reviewed and confirmed its decision of 3 June 2016.
On 17 July 2017, Ms Visic lodged an Application to Resolve a Dispute (the Application) in the Commission, seeking weekly compensation, lump sum compensation and medical expenses. She claimed she suffered:
“Injury to:

Cervical spine
Right upper extremity
And/or consequential injury to the left upper extremity”
The injury is described to have occurred in the “[n]ature and conditions of employment including scanning, sorting and packing large quantities of optical lenses.” The deemed date of injury was identified as 3 March 2016.

On 7 August 2017, the respondent filed a reply to the Application relying on the s 74 notices.
On 26 October 2017 and 18 December 2017, conciliation and arbitration proceedings were held before Arbitrator Batchelor. The Arbitrator reserved his decision.
On 17 January 2018, the Arbitrator issued a Certificate of Determination in Ms Visic’s favour in respect of injury to the right upper extremity (shoulder) and cervical spine. The Arbitrator entered an award in favour of the respondent in respect of the condition in the left upper extremity (shoulder) as a result of injury to the right upper extremity (shoulder). An award for weekly payments of compensation and medical expenses was entered in favour of Ms Visic. The matter was remitted to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment as a result of injury to the right upper extremity (shoulder) and cervical spine on 3 March 2016.
The Certificate of Determination is in the following terms:
“The Commission determines:

1. The applicant sustained injury to the right upper extremity (shoulder) and cervical spine arising out of or in the course of her employment with the respondent on 3 March 2016.

2.     The applicant’s employment with the respondent was the main contributing factor to injury to the right upper extremity (shoulder) the cervical spine.
3.     Award in favour of the respondent in respect of the condition claimed by the applicant in the left upper extremity (shoulder) as a result of injury to the right upper extremity (shoulder).
4.     The respondent is to pay the applicant weekly benefits as follows:
(a)$349.90 per week from 4 March 2016 to 3 June 2016 pursuant to section 36 of the Workers Compensation Act 1987, and

(b)$223.60 per week from 4 June 2016 to date and continuing in accordance with section 37 of the Workers Compensation Act 1987.

5. The respondent is to pay the applicant’s costs and expenses pursuant to section 60 of the Workers Compensation Act1987 in respect of injury to the right upper extremity (shoulder) and cervical spine on 3 March 2016.

6. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of permanent impairment as a result of injury to the right upper extremity (shoulder) and cervical spine on 3 March 2016.
7. The documents to be referred to the Approved Medical Specialist are:
(a)the Application to Resolve a Dispute and attachments;

(b)Reply and attachments;

(c)Application to Admit Late Documents received 19 October 2017;
(d)Report of Professor Frederick Erhlich dated 9 December 2016 – Exhibit “A”, in the respondent’s case, and

(e)Application to Admit Late Documents dated 20 October 2017 – Exhibit “B” in the respondent’s case.

A brief statement is attached setting out the Commission’s reasons for the determination.”

Ms Visic appeals the Arbitrator’s determination. The appeal is limited to the Arbitrator’s finding on capacity for suitable employment and an alleged failure to determine the claim of injury to the left shoulder, which Ms Visic claimed was due to the nature and conditions of her employment. Ms Visic does not challenge the Arbitrator’s finding that she did not suffer a consequential condition in the left shoulder.

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.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

Zorka Visic

In her statement of 10 July 2017, Ms Visic states that she was employed by the respondent from April 2011 to 3 March 2016. She records that in the first six months she was required to scan an average of between five to six thousand lenses daily. The lenses would arrive in boxes, with each individual pair of lenses in an envelope with a barcode on it, which she was required to scan with a scanner gun.
In November 2011, Ms Visic started to feel pain in her right arm and shoulder, which she initially ignored because it was not severe. However, by late November the pain became more severe and she reported it to her supervisor. She also consulted her general practitioner, Dr Kris Tomka, on 26 November 2011, about the pain. She was later involved in job rotation, which included duties such as “lens put away” which involved unpacking the large boxes of lenses, labelling them and placing them in their correct boxes on the shelves and “picking” which involved filling orders.
Ms Visic states that over time the constant and repetitive nature of the work caused her symptoms in the right shoulder and arm to increase in severity. She adds that:
“I found that in order not to use the injured right shoulder and arm, I worked as much as I could using my left shoulder and arm. I started to experience pain in my left shoulder and neck. I attended the acupuncture clinic of J. Maglic for treatment in the right shoulder, right arm and now neck and left shoulder. I complained to my general practitioner, Dr Tomka about the pain I was experiencing.
Over time the pain increased in both intensity and frequency. In August 2014, I complained to Dr Tomka again and her referred me for an ultrasound of the left shoulder.”
Ms Visic states that on 3 March 2016 she was opening large boxes that contained six or seven smaller boxes of lenses and “… pain in my arms and shoulders became severe.” She consulted Dr Tomka, stopped work and subsequently lodged a workers’ compensation claim.
Ms Visic specifically records her injuries as follows:
“Right shoulder
Right arm
Consequential injuries to the left shoulder, left arm and neck”

Dr Tomka

In a report, dated 5 September 2016, Dr Tomka records that Ms Visic first complained of right shoulder and neck pain in January 2014. He records that:
“Despite all of this she continued to work using more of the left shoulder in order to minimise pain in the right shoulder but this only aggravated her neck pain and she started to feel pain in her left shoulder. She saw a chiropractor and had acupuncture.”
Dr Tomka records that Ms Visic complained of pain in both shoulders and neck on 4 March 2016, and on examination her range of movement in both shoulders was minimal and limited with pain. Imaging confirmed damage tendon of the supraspinatus muscle and subacromial bursitis of the left shoulder.
Dr Tomka further records:
“I have no doubt that the injuries sustained are a direct consequence of the injury at work over prolonged period of time, the company failed to rotate workers on different tasks to avoid workers to be injured all to negative work. There was no pre existing condition.”
Dr Tomka adds that Ms Visic is unable to go back to work as a process worker in a lens factory. He states that there is “a loss of capacity in the form of loss of earning capacity which is of permanent character.”
In evidence are the clinical notes of Dr Tomka. Those clinical notes record initial complaint of neck pain in March 2011 (prior to commencement of employment with the respondent) and right shoulder pain from December 2011. There is no recorded complaint of pain in the left shoulder.
In evidence are also several WorkCover certificates of capacity issued by Dr Tomka, in respect of Ms Visic’s capacity for work. In the WorkCover certificate of capacity, dated 4 March 2016, Dr Tomka records diagnosis of work-related injury/disease to both shoulders and neck. He certifies Ms Visic to have no current work capacity for employment from 4 March 2016 to 18 March 2016. He also records Ms Visic’s capacity: “no lifting”; standing tolerance “as tolerated”, and should avoid pushing/pulling and bending/twisting/squatting. Several WorkCover certificates of capacity were subsequently issued in what appears similar terms, recording no current work capacity. The last WorkCover certificate of capacity is dated 3 October 2017.

Injury Claim Form

In evidence are two workers injury claim forms completed by Ms Visic. The first claim form, dated 10 March 2016, records the injury as right shoulder with sub-acromial bursitis. It records that the injury occurred in the following terms: “extremely high air flow from an air-conditioning unit which was directly in front of me.”
In the second claim form, dated 18 March 2016, Ms Visic records the same injury as right shoulder with sub-acromial bursitis. She records how she was injured as follows:
“I was working as a pick
         packer scanning products in the
         direct airflow from the airconditi-
         oning unit onto my neck & shoulders”

Imaging of left shoulder

In evidence is a report of an ultrasound of the left shoulder, conducted on 18 August 2014. In the ultrasound report it records supraspinatus tendinopathy and mild sub acromial bursitis.
In evidence is also a report of an MRI scan of the left shoulder, conducted on 20 February 2017. In a report dated 21 February 2017, mild subacromial-subdeltoid bursal inflammation and “no cuff tear” is recorded. This is confirmed in a further ultrasound of the left shoulder conducted on 3 March 2017.

Dr Giblin

In evidence are several reports by Dr Matthew Giblin, orthopaedic surgeon. Ms Visic was referred to Dr Giblin by Dr Tomka. She first attended on Dr Giblin on 3 March 2016. No compliant in respect of the left shoulder is recorded in the report for that consultation.
On 10 August 2016, Dr Gilblin issued a medico-legal report. In that report, he recorded his opinion and prognosis in respect of injury to the right arm and neck. He recorded:
“It is my opinion that this lady’s injuries are consistent with the nature and conditions of her employment. She initially started work in 2011 and was doing nothing but scanning for six months when she started to get pain in the neck and the right upper limb. She continued for a further two months and then spoke to her employer, but it was a further two months before she changed her job. Since then she had been doing intermittent picking, packing and scanning, up until the time that she stopped working in early 2016. This would confirm her ongoing symptomatology, which I believe is right rotator cuff disease and the pain in her arm may be due to either brachial plexus irritation or cervical pathology as well as radiculopathy, but that has not yet been ascertained. Again I consider these symptoms are due to the nature and conditions of her employment.”
Dr Giblin records his agreement with Professor Federick Ehrlich, orthopaedic and rehabilitation specialist, that there is no significant injury that caused her symptoms but Ms Visic was undertaking a highly repetitive job for a period of six months which seemed to have caused her symptoms. He agreed that Ms Visic was suffering from an underlying condition of chronic rotator cuff disease but stated that she did not have any pain prior to undertaking the job and considered that the onset of her symptoms related to the “nature and conditions of her employment.”
Dr Giblin recorded that Ms Visic remains unfit for work that involves “repetitive, heavy use of the right upper limb or work above the level of the shoulders.” He did not consider her able to return to her pre-injury duties.
On 6 June 2017, Dr Giblin issued a report to Ms Visic’s legal representatives. Dr Giblin records a history of left shoulder pain, for which she had a steroid injection but it did not provide the relief expected. He also records a complaint of “neck pain with radiation into both upper limbs and alleges she has had the pain in the left shoulder since 2014”. He adds that he asked Ms Visic why she did not indicate that problem to him in 2016, Ms Visic said “she brought x-rays with her, but the majority of symptoms seemed to be in the neck and the right arm.”
He records his opinion and prognosis:
“My opinion remains the same as my previous report; I do also believe there is some pain focused behaviour. There has been no major change in this lady’s condition with regard to her cervical spine and right shoulder, but according to her the left shoulder has become more of an issue to her. I consider that the left shoulder symptoms are not so much due to the nature and conditions of her employment, but more a secondary phenomena as she has overused the left arm to protect the right. The symptoms in the left shoulder would appear to be rotator cuff disease for which she has steroid injections done by Dr. Manohar in 2017.”
In respect of future work, Dr Giblin records that Ms Visic remains unfit for work that involves repetitive forward flexion of the cervical spine or work above the level of the shoulders.
In a supplementary report, also dated 6 June 2017, Dr Giblin records:
“In relation to her left shoulder… I feel that this is a rotator cuff injury due to the fact that she has been protecting the right arm by overuse of the left arm and over a period of years it has become an issue to her. I do not believe it is due to the nature and conditions of her employment. I also note that she has Ultrasounds of the left shoulder going back to 2014, so she obviously had that problem prior to my seeing her, but made no mention of it when I initially saw her and I assume that is due to the fact that her major problem was the neck and the right shoulder.”

Professor Ehrlich

In evidence are several reports by Professor Ehrlich, who she attended on at the request of the insurer. In his report, dated 22 April 2016, Professor Ehrlich records a history that there was no specific incident of injury but Ms Visic recalls opening boxes which she carried out over her whole shift and that this produced increased pain in her right shoulder. Professor Ehrlich records present complaint in the right shoulder and arm, moving the neck on both sides. There is no reference to the left shoulder.
In a supplementary report, dated 20 May 2016, Professor Ehrlich records his opinion that Ms Visic’s “ongoing symptoms” are not a result of her employment with the respondent. Although not specified, the “ongoing symptoms” appear to relate to the pain in the right shoulder as there is no reference to the left shoulder in the report.
In a report, dated 9 December 2016, Professor Ehrlich specifically addresses the causal connection between injury and employment following a request by the respondent’s solicitor. Professor Ehrlich records:
“1. There was no specific event of injury in the course of her employment.
2. There was nothing about the nature of her duties which could be regarded as causing her complaints. Her thoughts were about the effect of working with a cold blast of air behind her, whilst undoubtedly unpleasant for her, this cannot be considered to be a cause of rotator cuff pathology.”
Professor Ehrlich adds that Ms Visic’s work duties could not have aggravated, accelerated, exacerbated or deteriorated pre-existing changes. Employment is not the main contributing factor to her present condition. Although, he notes that he:
“would have no difficulty agreeing that doing manual work when there is underlying pathology would be a source of discomfort. That is taking into consideration the nature and conditions of her duties as revealed by Ms Visic as well as the statement by Mr Singh [Ms Visic’s work colleague].”
In a further report, dated 24 February 2017, Professor Ehrlich records Ms Visic’s present complaints as “widespread pain, affecting her neck, the tops of her shoulders and both arms.” He conducts an examination of Ms Visic and records limitation of movement in the neck and both upper limbs. He later records:
“She said that her left shoulder was getting increasingly painful because she had so much trouble using her right arm, hence the left shoulder was over-worked but an MRI scan of the left shoulder displayed little other than some bursitis according to the radiologist.”

Professor Ehrlich records his opinion:
“Little can be added to what has previously been said about Ms Visic. Her account of her history was revised with her and she still thought that the blast of cold air was important but she now made the point that she was also doing constantly repetitive work with her hands. She re-enacted what were very small movements with her fingers and wrists.”
Professor Ehrlich adds “[f]rom the description of her duties, there appears to be no provocative factor which could cause injury” and “…moving her right arm should not cause any problems with her left.” He describes Ms Visic as a person with “abnormal pain behaviour” and “it is difficult to identify any organic barrier to her working as a sandwich maker, a kitchen hand, process worker, sales assistant or cashier or any other such activities.” There is no reason, in his opinion, why Ms Visic could not work full time in a suitable job.

Dr Powell

Ms Visic attended on Dr Richard Powell, orthopaedic surgeon, at the request of the respondent. In his first report dated 20 October 2017, Dr Powell records an onset of symptoms involving the neck and right shoulder, which was aggravated by the position of an overhead air conditioning unit which directed airflow to the posterior aspect of her neck and right shoulder. He also recorded ongoing symptoms of the neck and both shoulders.
Dr Powell conducted an examination of the neck and both shoulders. He reviewed the radiological investigations. He recorded that “[t]here appears to be a significant psychosomatic component to her presentation with non-organic clinical findings.”
In response to a question whether Ms Visic suffers a left shoulder injury, and, if so, what is the diagnosis, Dr Powell recorded “Ms Visic also complains of some mild left shoulder symptoms, which also most likely reflect some underlying rotator cuff pathology.”
Dr Powell was asked to consider Professor Ehrlich’s report and comment on whether Ms Visic suffers from a diagnosable left shoulder injury. Dr Powell recorded:
“Ms Visic’s left shoulder symptoms most likely reflect some underlying constitutional pathology in the rotator cuff. The presence of observed change in the rotator cuff is well documented. She is known to have similar changes on the contralateral side. There is no evidence that she suffered a specific injury to the left shoulder in the course of her employment, nor is there evidence to indicate that she has suffered a consequential injury of the left shoulder in protecting her injured right upper limb.”
Dr Powell did not consider the left shoulder injury was a direct result of work conditions.
Dr Powell was asked to comment on Ms Visic’s work capacity. Dr Powell commented that it was difficult to address this in the “presence of abnormal illness behaviour and the psychosomatic component of Ms Visic’s presentation.” He considered the degenerative pathology in the cervical spine and right shoulder, and did not recommend that Ms Visic return to work involving “repetitive use of the upper limbs above shoulder height and periods of prolonged fixed gaze.” However, he considered that Ms Visic was fit to return to her pre-injury duties as he considered they appeared to meet the lighter end of the physical spectrum but said this would likely result in persisting complaint of the neck and shoulders.
In his second report, also dated 20 October 2017, Dr Powell comments on Ms Visic’s impairment assessment. He stated that Ms Visic had not suffered any assessable permanent impairment as a result of any injury sustained in the course of her employment. He added that her symptoms are “…not conclusively or definitively the result of any injury sustained in the course of her employment.”

Gurmaij Singh

In evidence is an interview statement made by Gurmaij Singh, dated 16 November 2016. Mr Singh is employed by the respondent as logistics manager. He supervised Carlos Silvestre, the warehouse supervisor and Ms Visic’s supervisor. There is no evidence from Mr Silvestre.
Mr Singh describes the work tasks undertaken by Ms Visic. He states that Ms Visic:
“… recorded about a pain the right shoulder due to the air conditioning floor on 6 January 2012. Part of picking is scanning the lenses to make sure the right lenses are picked. [Ms Visic] was saying air conditioning was blowing right on top of her and that was causing the injury to her shoulder.”
Ms Singh states that, following that report, Ms Visic was placed on job rotation.
In about March 2016, Ms Visic claimed to have “injuries again due to her shoulder with the airflows and she went on sick leave with WorkCover after that.” After January 2012, there was no record of complaint about shoulder pain or further injury until March 2016.

ARBITRATOR’S REASONS

The Arbitrator considered, in some detail, the duties required of Ms Visic, noting that there was some dispute between the parties as to the frequency of the scanning of lenses. The Arbitrator accepted, however, that she was required to scan a significantly large number of lenses and the work she undertook was fast and repetitive.[1]
[1] Visic v Essilor Australia Pty Limited [2018] NSWWCC 118 (Reasons), [50].
The Arbitrator did not accept that the history relied on by Dr Tomka was an accurate description of her duties. The doctor described the work as very physical including frequent lifting, bending and working above head height. The Arbitrator accepted that the work was physical in nature, fast and repetitive, but it did not include frequent bending and lifting. The work did involve some above shoulder activity when required to retrieve boxes of lenses from shelves.
The Arbitrator outlined, the nature of treatment undertaken by Ms Visic with Drs Tomka and Giblin and the chiropractor, Wayne Gard.[2] Having regard to the totality of the evidence, the Arbitrator was satisfied that Ms Visic suffered an injury to her right shoulder and cervical spine as a result of the “nature and conditions” of her employment. He found that she suffered a disease injury to the right shoulder as defined in s 4(b)(i) of the 1987 Act, namely, a disease contracted by her in the course of her employment, her employment being the main contributing factor to contracting the disease.[3]
[2] Reasons, [54]-[67].
[3] Reasons, [74].
With respect of the injury to cervical spine, the Arbitrator did not accept Professor Ehrich’s opinion. He held that Ms Visic sustained injury to her cervical spine in the form of aggravation or exacerbation of the pre-existing degenerative condition of the spine.[4]
[4] Reasons, [75].
With respect to the left shoulder, the Arbitrator encapsulated the issue before him in these terms: “[Ms Visic’s] claim is that she suffered a consequential condition in her left shoulder.”[5]
[5] Reasons, [76].
The Arbitrator noted an absence of complaints in respect of the left shoulder to Dr Giblin when she first saw him in March 2016 and to Professor Erhlich when she saw him in April 2016. Further, there was no record in the clinical notes of Dr Tomka of complaints in respect of the left shoulder. He noted, however, that there was an ultrasound undertaken of the left shoulder on 18 August 2014 “with a clinical history recorded therein of ‘?’ Rotator cuff disease.”
The Arbitrator recorded that Dr Tomka stated in his report, that when he saw Ms Visic on 4 March 2016 she complained to him of pain in both shoulders and the neck. However, that history was not supported by Dr Tomka’s clinical note of that date. The clinical note referred only to symptoms of the right shoulder. Having regard to Dr Tomka’s clinical notes, the Arbitrator did not accept Dr Tomka’s view that Ms Visic sustained injuries as a direct consequence of her work over an extended period of time in both shoulders and neck.[6]
[6] Reasons, [77].
The Arbitrator referred to Ms Visic’s statement. Ms Visic said that after her initial symptoms, she persevered with her duties using her left shoulder and arm and began to experience pain in her left shoulder and neck. She did not identify the point in time when those symptoms were first experienced.
The Arbitrator found Dr Giblin to be the only medical practitioner to express an opinion that the left shoulder condition arose as a result of overuse of that should due to the right shoulder injury. He did not accept Dr Giblin’s opinion that Ms Visic suffered a consequential condition in her left shoulder as alleged.[7] Dr Giblin said that Ms Visic had not reported any symptoms relating to her left shoulder when he saw her in 2016.
[7] Reasons, [79].
The Arbitrator acknowledged that Ms Visic had visited an acupuncture clinic for treatment of the right shoulder, right arm, neck and left shoulder in July 2014.
The Arbitrator concluded:
“Dr Tomka’s opinion is that [Ms Visic] sustained injury to both shoulders and the neck as a direct consequence of her activities at work. [Ms Visic] has presented her case on the basis of a condition in her left shoulder consequent upon injury to her right shoulder. I do not think she has discharged the onus of proof on her to show that this is the case. Accordingly, there will be an award in favour of the respondent in respect of the condition claimed in the left shoulder.”[8]
[8] Reasons, [80].
The Arbitrator referred to the WorkCover NSW certificate of capacity issued by Dr Tomka on 4 March 2016, certifying Ms Visic with no current work capacity for any employment until 18 March 2016. He stated that subsequent certificates “continued with that certification,” with the last certificate in evidence being 3 October 2017.[9]
[9] Reasons, [82].
The Arbitrator then considered Professor Ehrlich’s evidence, where the Professor recorded that Ms Visic could work as a sandwich maker, a kitchen hand, process worker, sales assistant or cashier or any other such activities.[10] He then considered Dr Giblin’s evidence, where the doctor recorded that Ms Visic remains unfit for work that involves repetitive forward flexion of the cervical spine or work above the level of the shoulders.[11]
[10] Reasons, [83].
[11] Reasons, [84].
The Arbitrator considered Ms Visic’s statement regarding her employment in former Yugoslavia as a supervisor in shoe factories and her work in Australia with a company distributing optical lenses in 2003 and subsequent work with the respondent.[12]
[12] Reasons, [86].
The Arbitrator then considered s 32A of the 1987 and the definition of suitable employment. He recorded that Ms Visic relies on s 47 of the 1987 Act in respect of her claim that she has either no current work capacity for any employment for the period of her claim, or alternatively that any such capacity is minimal. The Arbitrator considered the application of s 47 and my decision in DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCC PD 22. He considered the WorkCover NSW certificates of capacity issued by Dr Tomka to fall within the category of certificates described in DHL Exel Supply Chain. On that basis, he preferred to rely on the opinions expressed by Professor Ehrlich and Dr Giblin regarding Ms Visic’s capacity for employment.[13]
[13] Reasons, [91].
The Arbitrator observed that Professor Ehrlich and Dr Giblin’s evidence on capacity was consistent with the evidence of Dr Powell, who considered Ms Visic had physical capacity to return to her pre-injury duties but thought this would result in persisting complaints of the neck and shoulders.[14] Dr Powell recorded that Ms Visic should avoid repetitive work above shoulder height, she should alternate her tasks and have the opportunity for regular rest breaks.
[14] Reasons, [91].
The Arbitrator also noted Ms Visic’s evidence that she is presently unable to work.[15]
[15] Reasons, [92].
The Arbitrator observed that Ms Visic does not have a good command of the English language.[16] He noted she attended the conciliation/arbitration proceedings over two days and the medio-legal experts with a Serbian interpreter, except when she attended on Dr Powell when she was accompanied by her husband.
[16] Reasons, [93].
The Arbitrator found Dr Giblin to be the “best placed to assess [Ms Visic’s] fitness for work”, having treated her from March 2016 to March 2017.[17] He then stated:
“Having regard to [Ms Visic’s] poor command of the English language it is difficult to see her employed as a sales assistant, cashier, or other occupation involving interaction with the public. However Dr Giblin’s certification as to [Ms Visic’s] fitness for work would not prevent her being employed for example as a sandwich maker or kitchen hand, two occupations suggested by Professor Ehrlich. In my view [Ms Visic] could be employed in such an activity which I think, having regard to the nature of such an occupation, would be on a casual basis or a limited number of hours each week.”[18]
[17] Reasons, [94].
[18] Reasons, [95].
The Arbitrator found that Ms Visic could be employed in such occupation for 20-25 hours per week at an hourly rate of $20.[19] Having regard to all of the evidence, the Arbitrator assessed Ms Visic as having an ability to earn $450 per week in suitable employment.[20] Following this finding, the Arbitrator determined Ms Visic’s weekly benefits from 4 March 2016.
[19] Reasons, [96].
[20] Reasons, [97].

GROUNDS OF APPEAL

Ms Visic alleges that the Arbitrator erred in:
(a)failing to decide that she suffered an injury to her left upper extremity as a result of the nature and conditions of her employment, and
(b)finding that she has capacity for work as a sandwich maker or kitchen hand.

SUBMISSIONS

GROUND 1

Failing to decide the claim for injury to the left upper extremity

Ms Visic’s submissions

Ms Visic submits that the Arbitrator erred in dealing with the allegations in respect of her left shoulder only as a consequential condition. She submits that the claim that was pleaded was an alternative allegation of either an injury to the left upper extremity caused by the nature and conditions of her employment and/or a consequential injury to the left upper extremity arising from the accepted injuries to the right upper extremity and neck. She submits that this was clarified at the Arbitration hearing at 26 October 2017.[21]
[21] Citing, Transcript of Proceedings, Visic v Essilor Australia Pty Limited (WCC, [2018] NSWCC 118, Arbitrator Batchelor, 26 October 2017) (T1), 23.25-26.15.
Ms Visic submits that the evidence in support of the allegation of an injury to the left upper extremity is in the form of WorkCover certificates of capacity of Dr Tomka[22] and the Workers Injury Claim Form completed on 18 March 2016[23] where she records:
“A pick packer scanning products in the direct air flow from the air conditioning unit onto my neck and shoulders.”
[22] Citing, Application to Resolve a Dispute (ADR) dated 17 July 2017, pp 85-138.
[23] Citing ARD, p 44.

In addition, Ms Visic relies on her statement of 10 July 2017 where she states that “on 3 March 2016, I did this work and the pain in my arms and shoulders became severe.” Ms Visic submits that she was referring to work opening large boxes containing six or seven smaller boxes of lenses. The larger boxes were opened with a knife cutting the tape, she was the required to remove small boxes containing lenses and put them away. The “put away” work involved putting the boxes onto the shelves which were about two metres high.
Ms Visic submits that, therefore, there was evidence before the Arbitrator to support a finding that she suffered an injury to her left shoulder as a result of the nature and conditions of her employment. However, the Arbitrator did not deal with this evidence. He neither accepted or rejected the evidence and was therefore in error.
Ms Visic seeks an order that the Arbitrator’s determination in respect of her left upper extremity be revoked and re-determined. Other than the submissions before the Arbitrator, no additional submissions are made on appeal to support the allegation of injury to the left shoulder as a result of the nature and conditions of employment.

The respondent’s submissions

The respondent submits that Ms Visic’s pleading on injury was undoubtedly confusing. It submits that the following transcript exchange clarified that Ms Visic was claiming only a consequential injury to the left arm:
“Ms Goodman: under the heading 'investigations', so it's the fourth paragraph, ‘left shoulder was getting an increase and is painful not so much from use’ ---
Arbitrator: but she is claiming a consequential condition ---
Ms Goodman: in the left arm.
Arbitrator --- in the left arm as an alternative to an injury?
Ms Goodman: yes.”[24]
[24] Citing, T1 23.25-34.
The respondent also submits that Ms Visic’s counsel withdrew any allegation of frank injury to the left arm.[25] The respondent submits that the following transcript exchange demonstrates that the claim in respect of the left arm was limited to a consequential injury allegation:
“MISS GOODMAN: It said ‘and/or’; it says both there.
MR ROBERTSON: Oh, I see, but there's no allegation of a frank injury, so that means you---
MISS GOODMAN: ‘And/or consequential condition to the left upper extremity.’
MR ROBERTSON: There's no allegation of a frank injury. One of the alternatives you put was frank injury or nature and conditions or consequential.
MISS GOODMAN: Yes.”[26]
[25] Citing, T1 24.20-25.
[26] Citing, T1 25.1-14.
The respondent submits that Ms Visic’s claim was on the basis of a consequential condition of the left shoulder which was determined against her and in respect of which no appeal has been pursued.
In the alternative, the respondent submits that the evidence does not support a finding that there was an injury to the left arm. It submits that all of the evidence referred to by Ms Visic in her argument suggests that if she had pain in the left arm, it was due to overuse by favouring the right arm. She relied on the evidence of Dr Tomka in his report of 5 September 2016 where he said “[d]espite all of this she continued to work using more of the left shoulder in order to minimise pain… using more of the left shoulder in order to minimise pain in the right shoulder. This only aggravated her neck pain and started to feel pain in the left shoulder.”
The respondent submits that Dr Giblin supported an allegation of the consequential injury in the left shoulder but failed to provide sufficient explanation for his opinion. Ms Visic’s references to Dr Giblin’s evidence supports only an allegation of a consequential condition.
Ms Visic failed to adduce sufficient evidence to establish that she suffered an injury to the left shoulder as a result of the nature and conditions of her employment. She also failed to establish that the employment was the main contributing factor to the alleged injury to the left shoulder injury.
Therefore, so it is submitted, Ms Visic’s argument should fail and the Arbitrator’s determination should be upheld.

Consideration

The appeal challenges the Arbitrator’s failure to consider an allegation of injury to the left shoulder arising from the “nature and conditions” of her employment. There is no challenge to the Arbitrator’s finding that Ms Visic did not suffer a consequential condition in her left shoulder arising from the accepted injuries to the right shoulder.
I have extracted the pleading at [8] above. It was a confused and confusing pleading, that was the subject of discussion during the course of the arbitration hearing.
It is apparent from the transcript of 26 October 2017 that Ms Visic’s counsel conceded that Ms Visic was not alleging any frank injury to the left shoulder.[27] The pleadings are further clarified having regard to the submissions of the respondent’s counsel during the arbitration proceedings, where he states:
“As I understood my learned friend's submissions, [Ms Visic’s] case in relation to the left shoulder is in the alternative nature and conditions or consequential.”[28]
[27] T1 25.24.
[28] Transcript of Proceedings, Visic v Essilor Australia Pty Limited (WCC, [2018] NSWCC 118, Arbitrator Batchelor, 18 December 2017), 10.15.

Notwithstanding the confusion over the pleadings, I accept Ms Visic’s submission that the Arbitrator was required to determine whether the condition of the left shoulder was a consequential condition arising from the accepted injuries to the right shoulder and neck and whether Ms Visic suffered an injury to the left shoulder arising from the nature and conditions of her employment with the respondent.
I also accept Ms Visic’s submission that the Arbitrator did not deal with the allegation of injury to the left shoulder arising from the nature and conditions of her employment with the respondent. His consideration of the left shoulder was limited to a determination of the consequential condition allegation.
Perhaps the most graphic illustration of that failure is where the Arbitrator said “[Ms Visic’s] claim is that she suffered a consequential condition in her left shoulder.”[29] This was consistent with his articulation of the issues in dispute, where he said:
“Did [Ms Visic] suffer a condition in her left upper extremity (shoulder) consequent upon injury to the right upper extremity (shoulder) deemed to have occurred on 3 March 2016?”[30]
[29] Reasons, [76].
[30] Reasons, [6(d)].
It follows that given the way the case was conducted the Arbitrator was required to deal with the allegation of injury to the left shoulder arising from the nature and conditions of employment. He did not do so and that was an error.
However, for the reasons that follow, I do not accept Ms Visic’s submission that there was evidence of an injury to the left shoulder arising out of the nature and conditions of employment with the respondent.
The evidence of Ms Visic’s treating medical expert, Dr Giblin, does not assist Ms Visic on the nature and conditions claim. In his report of 10 August 2016, Dr Giblin made no reference to the left shoulder. Indeed, he did not even examine the left shoulder. In his report of 6 June 2017, Dr Giblin noted that Ms Visic had submitted to an ultrasound of the left shoulder which showed mild sub acromial/subdeltoid bursal inflammation. He recorded complaints of pain in the left shoulder since 2014. He noted Ms Visic’s explanation for not mentioning the left shoulder a year earlier when he first saw her, which was because she was focused on the symptoms in her neck and right shoulder. He opined that the symptoms in the left shoulder were not so much due to the nature and conditions of her employment, but were a secondary phenomenon due to overuse of the left arm to protect the right arm. Dr Giblin’s does not support a claim of injury to the left shoulder as a result of the “nature and conditions” of employment.
The opinion expressed by Dr Tomka in his report of 5 September 2016 was somewhat equivocal. He stated that, notwithstanding persisting pain in the right shoulder and neck, Ms Visic continued to work “using more of the left shoulder in order to minimise the pain in the right shoulder but this only aggravated her neck and she started to feel pain in her left shoulder.” He then described an episode of work in March 2016 which aggravated the pain in the shoulders and neck. He concluded that he had no doubt that the injuries sustained were a direct consequence of the injury at work over a “prolonged period of time.” It is tolerably clear that Dr Tomka supported a consequential condition claim in respect of the left shoulder. However, he did not explain what he meant when referring to the injuries being a direct consequence of work over a “prolonged period.”
Ms Visic relies on the WorkCover Certificates of Capacity issued by Dr Tomka commencing on 4 March 2016 and concluding in late 2017. Dr Tomka diagnosed the injury in those certificates as “injury to both shoulders and neck.” As the Arbitrator noted, these certificates cannot be read in isolation and must be read in conjunction with the opinion he expressed in his report of 5 September 2016 and his clinical notes.
Dr Tomka’s reference in the medical certificates to injuries to both shoulders is consistent with the comments in his report, namely that Ms Visic suffered an injury to her neck and right shoulder as a result of the general nature and conditions of her employment, together with a consequential injury to the left shoulder when she began to use that limb to “minimise the pain in the right shoulder.” The certificates are not consistent with the clinical notes as there appears to be no recorded complaint of the left shoulder.
If Dr Tomka’s report is to be understood as supporting an allegation of injury to the left shoulder arising out of the nature and conditions of employment such opinion would be inconsistent with the opinion of Drs Powell and Giblin and Professor Ehrlich. It would also be inconsistent with Ms Visic’s evidence, which supports a consequential condition of the left shoulder (discussed below).
The expert opinions have been referred to in some detail above. In respect of the left shoulder, Dr Powell did not support the nature and conditions claim or a claim of a consequential condition. Dr Giblin supported an allegation of a consequential condition but did not accept that Ms Visic suffered any injury arising from the nature and conditions of her employment. Professor Ehrlich did not accept that Ms Visic was injured as alleged and considered she suffered from an abnormal illness behaviour.
For these reasons, I do not accept that Dr Tomka’s certificates of capacity lend any weight to the submission that the condition of the left shoulder was an injury arising from the nature and conditions of her employment.
Ms Visic relies on the workers injury claim form completed on 18 March 2016. It is submitted that this document supports the claim that the left shoulder condition was due to the nature and conditions of employment. I do not accept that submission. Describing how she was injured, Ms Visic stated that she was working as a pick-packer, scanning products in the direct air flow from the air conditioning unit onto her neck and shoulders. However, in answer to the question on the claim form describing the nature of the injury she suffered, she said “right shoulder with sub acromial bursitis.” When completing that document, Ms Visic made no reference to any injury or condition concerning the left shoulder.
Ms Visic relies on her statement of 10 July 2017. In that statement, Ms Visic stated that she began to experience symptoms in her right arm and shoulder in November 2011 but it was not until August 2014 that she noticed symptoms in her left shoulder. She said that she was determined not to lose her job and, although she was continuing to suffer the pain in the right shoulder and arm, she worked as much as she could, using her left shoulder and arm and started to experience pain in the left shoulder in August 2014. Tellingly, she described her injuries as follows:
“my injuries include the following:
-Right shoulder
-Right arm
-Consequential injuries to the left shoulder, left arm and neck”
Ms Visic’s statement does not provide any support for an allegation of a nature and conditions injury to the left shoulder. Ms Visic plainly described long standing injuries to the right shoulder and neck and an attempt to favour the right limb by concentrating on using the left arm. She said in plain terms that she regarded the injury to the left shoulder as a consequential injury.
Ms Visic submitted to an ultrasound of the left shoulder on 18 August 2014, which demonstrated some rotator cuff disease. The results of the ultrasound were noted and considered by Dr Giblin, Professor Powell and Dr Ehrlich, however, neither of them concluded it provided any evidence to support an injury arising from the nature and conditions of employment. It follows that the ultrasound is of no probative force in establishing a causal connection between the condition of Ms Visic’s left shoulder and her employment.
Ms Visic submitted that the work of putting packed boxes back on the shelves supported her claim that the injury to the left shoulder was sustained as a result to the nature and conditions of employment. I do not accept that submission. There is no medical support for the proposition that the “putting away work”, which involved some use of the limbs above shoulder height, caused or contributed to her condition.
It follows that the Arbitrator’s error in not dealing specifically with the allegation of a nature and conditions injury to the left shoulder is of no consequence because the evidence did not support the claim, in any event.
It follows that ground one is not upheld.

GROUND 2

Ms Visic’s submissions

Ms Visic submits that, contrary to the Arbitrator’s findings, the work of a kitchen hand or sandwich maker is not suitable employment within the meaning of s 32A of the 1987 Act.
The work, whether it be a kitchen hand or a sandwich maker involves a great deal of repetitive work, particularly with the right hand/arm. The work of a kitchen hand generally involves cutting and preparing food including vegetables; activities that are highly repetitive. The work may also involve stirring large pots of food that would need to be lifted off a stove and the washing up of pots and pans and other utensils. These activities are repetitive and involve use of both arms.
The work of a sandwich hand may also involve interaction with the general public in the taking of orders and handling cash which would be difficult for Ms Visic, where the Arbitrator found she did not have a good command of English. It is submitted that she would have difficulty handing sandwiches to customers and/or taking cash from them as these activities are likely to involve her reaching over counters and therefore having to extend her arms/shoulders.
Further, it is submitted that Dr Giblin was of the view that Ms Visic was unfit for work involving repetitive forward flexion of the cervical spine. The work of either a kitchen hand or sandwich hand would require a great deal of forward flexion of the cervical spine. Such employment is not suitable employment within the meaning of s 32A of the 1987 Act.

The respondent’s submissions

The respondent does not accept that the work of a kitchen hand or sandwich maker involves repetitive use of the hands/arms.
The duties of a sandwich maker do not involve cutting vegetables but buttering bread and making sandwiches. This work is not repetitive nor does it involve any time pressure. Taking orders and handling of cash would not cause any difficulties for Ms Visic. This work would not involve repetitive forward flexion of the cervical spine or repetitive above shoulder activities.
Ms Visic’s command of English is sufficient for her to have been able to interact with her co-workers and supervisors, for example, insisting on a rotation of duties. It also appears from the signed claim form that she has sufficient skills to complete documents such as a claim form.
In the respondent’s submission, Ms Visic is not totally incapacitated and the evidence before the Commission demonstrates that she is fit for full time work in suitable employment as defined in s 32A of the 1987 Act and comfortably capable of earning greater than $673.60 (80% of pre-injury average weekly earnings). Therefore, so it is submitted, Ms Visic should not be entitled to any award of weekly payments.
In addition to the work of a kitchen hand or sandwich maker, the respondent submits that Ms Visic is capable for a range of other jobs such as car park attendant, cashier, shop assistant, sales assistant, child care worker or as a clerk on a full-time basis. It submits that s 43A of the 1987 Act should be used to determine what suitable employment is as found in Port Macquarie Hastings Council v Crowe.[31]
[31] [2010] NSWWCCPD 93.
Further it is submitted that, the Commission’s Arbitrators have the experience and qualifications to determine suitable employment options and the range of earnings of an injured worker in suitable employment.

Consideration

This appeal is brought pursuant to s 352 of the 1998 Act. An appeal under that provision is characterised by the identification and correction of legal, factual or discretionary error.
Ms Visic’s submissions reflect a general disagreement with the Arbitrator’s assessment of her earning capacity. The submissions fail to identify any error in the Arbitrator’s approach to his assessment of Ms Visic’s residual earning capacity. I further note that, whilst Ms Visic challenges the Arbitrator’s assessment of her ability to earn, she has made no attempt either before the Arbitrator or on appeal to identify the nature of any suitable employment.
The Arbitrator accepted that Ms Visic was a worker with a current work capacity, noting the evidence of medical experts which certified her fit for suitable employment, with restrictions. That finding has not been challenged. The Arbitrator was therefore required to consider Ms Visic’s residual ability to return to work in suitable employment. Section 32A of the 1987 Act defines “suitable employment” as follows:
“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
(i)the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker's age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of:
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker's pre-injury employment, and
(iv)the worker's place of residence.”
The Arbitrator considered s 32A of the 1987 and the definition of suitable employment. He carefully analysed all of the available evidence on Ms Visic’s capacity to earn in suitable employment. He noted that Ms Visic regarded herself as totally incapacitated. He referred to Dr Giblin’s report of 6 June 2017, where he opined that Ms Visic remained unfit for work that involved repetitive forward flexion of the cervical spine or work above the level of the shoulders. He also referred to Dr Tomka’s evidence that Ms Visic was unfit to return to her per-injury duties. He further referred to Professor Ehrlich’s report of 24 February 2017, where he noted Ms Visic to present with abnormal illness behaviour and found that it was difficult to identify any organic barrier to her returning to work as a sandwich maker, kitchen hand, process worker, sales assistant, cashier or any other activities.
The Arbitrator found the certificates of capacity issued by Dr Tomka, which certified Ms Visic to have no current work capacity, to lack probative force. For the reasons discussed above at [105], I accept that finding. On that basis, the Arbitrator preferred to rely on the opinions expressed by Professor Ehrlich and Dr Giblin regarding Ms Visic’s capacity for employment.[32]
The only evidence of the type of work Ms Visic could undertake was found in Professor Ehrlich’s evidence. Professor Ehrlich assessed Ms Visic as fit for work as a sandwich maker, kitchen hand, process worker, sales assistant or cashier.
Having regard to the medical evidence, the Arbitrator considered Ms Visic’s work history in the former Yugoslavia before coming to Australia. He also considered that Ms Visic had a poor command of English and that she had been supported by interpreters at medico legal assessments and during both conciliation/arbitration hearings. He found that this would make it difficult to undertake employment as a sales assistant, cashier or other occupations involving interactions with the public. That finding was open on the evidence presented.
The Arbitrator concluded that Dr Giblin was best placed to assess Ms Visic’s fitness for work, having been her treating doctor from March 2016 to March 2017. I note that Ms Visic does not challenge the Arbitrator’s acceptance of Dr Giblin’s assessment of her physical restrictions. The challenge is limited to the Arbitrator’s acceptance of the range of suitable occupations Ms Visic could undertake, on a part-time basis, having regard to those restrictions.
The Arbitrator considered the requirements of s 32A of the 1987 Act, including the definition of suitable employment in reaching his conclusion that Ms Visic is fit for work as a kitchen hand and/or sandwich maker. The Arbitrator’s finding was a finding of fact that may only be interfered with on appeal if error is demonstrated.[33]
[33] Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, 506.
The occupations assessed by Professor Ehrlich and accepted by the Arbitrator as suitable are consistent with Dr Powell’s opinion, namely work which does not involve “repetitive use of the upper limbs above shoulder height and periods of prolonged fixed gaze.” They are not inconsistent with Dr Giblin’s opinion that Ms Visic was unfit for work that involves repetitive forward flexion of the cervical spine or work above the level of the shoulders. I make these observations bearing in mind the Arbitrator’s assessment that Ms Visic would be limited to undertaking such work for 20 to 25 hours per week.
The Arbitrator analysed the range of expert opinion concerning the physical limitations on Ms Visic residual ability to earn. He received some assistance from the respondent with respect to occupations Ms Visic could undertake on part-time basis through the evidence of Dr Ehrlich. However, as noted above, Ms Visic did not either before the Arbitrator or on appeal provide any evidence on the types of occupations she may be capable of undertaking in the event that she was found to have a current work capacity.
In Fitzsimmons v Coles Supermarkets Australia Pty Ltd,[34] Mc Dougall JA held:
“I accept, as Basten JA says at [23], that it is for the parties to run the trial as they see fit. But if, as a consequence of a decision made (whether for forensic reasons, economic reasons or others is irrelevant), relevant evidence is not called or not tested, and as a result the tribunal of fact is left in a position where it cannot be satisfied that the party bearing the onus on a particular issue has discharged it, the responsibility for, and consequences of, that decision must remain with that party.”[35]
[34] [2013] NSWCA 273 (Fitzsimmons).
[35] Fitzsimmons, [173].
The Arbitrator’s reasons demonstrate that he had regard to the relevant criteria in s 32A of the 1987 Act in finding Ms Visic’s ability to earn in suitable employment as a kitchen hand or sandwich maker. His conclusions were open on the evidence and no contrary evidence was adduced. Ms Visic must accept responsibility for, and the consequences of, the forensic decision she made with respect to evidence of current work capacity.
It follows that no error has been demonstrated.
Ms Visic does not take issue with the Arbitrator’s assessment of the quantum of her pre-injury average weekly earnings or her ability to earn $450 per week as a sandwich maker or kitchen hand.
The respondent’s submissions with respect to the application of s 43A of the 1987 Act are misguided. Section 43A was repealed in 2012 and has no application in the circumstances of this case.
For these reasons ground two fails.

ORDERS

The Arbitrator’s Certificate of Determination of 17 January 2018 is confirmed, except for order [3] which is varied as follows:
“Award in favour of the respondent in respect of the condition claimed by the applicant in the left upper extremity (shoulder).”

Judge Keating

President

11 May 2018