Abdon Pty Ltd t/as Liverpool Diagnostic v Gress

[2013] NSWWCCPD 5

WORKERS COMPENSATION COMMISSION
DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT
CITATION:		Abdon Pty Ltd t/as Liverpool Diagnostic v Gress [2013] NSWWCCPD 5
APPLICANT DEFENDANT:		Abdon Pty Ltd t/as Liverpool Diagnostic
RESPONDENT CLAIMANT:		Margaret Gress
FILE NUMBER:		20/13
DATE OF DECISION:		6 February 2013
SUBJECT MATTER OF DECISION:		Application to strike out pre-filing statement under s 151DA of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Applicant Defendant:	Goldbergs Lawyers
Respondent Claimant:	PK Simpson & Co
ORDERS MADE ON APPLICATION:		Pursuant to s 151DA of the Workers Compensation Act 1987, the claimant’s Pre-Filing Statement is struck out by consent. No order as to costs.

BACKGROUND TO THE APPLICATION

1. Margaret Gress was born on 11 April 1946. She is currently 66 years old. Ms Gress alleged that she suffered a psychological injury due to the nature and conditions of her employment with Abdon Pty Ltd t/as Liverpool Diagnostic (Liverpool Diagnostic) from 2003 to
   6 October 2009.

2. On 21 October 2010, Ms Gress filed an Application to Resolve a Dispute in the Commission claiming lump sum compensation and compensation for pain and suffering pursuant to s 66  and s 67 of the Workers Compensation Act 1987 (the 1987 Act) as a result of her alleged psychological injury.

3. On 16 May 2011 the Application to Resolve a Dispute was resolved by consent in Ms Gress’ favour following the issuing of a Medical Assessment Certificate by Dr Lana Kossoff, Approved Medical Specialist, assessing Ms Gress with 17 per cent whole person impairment as a result of the psychological injury.

4. On 20 October 2011, Ms Gress served a Pre-Filing Statement on Liverpool Diagnostic.

5. On 22 November 2011, Liverpool Diagnostic served a Pre-Filing Defence on Ms Gress. 

6. On 22 November 2011, Ms Gress filed an Application for Mediation of a Work Injury Damages Claim in the Commission.  A mediation conference was held before Mediator Harding on 16 February 2012.  The parties, however, failed to reach agreement at the mediation.

7. On 18 December 2012, Liverpool Diagnostic lodged an Application to Strike Out a Pre-Filing Statement in the Commission seeking an order that Ms Gress’ Pre-Filing Statement be struck out pursuant to s 151DA(4) of the 1987 Act.

8. Liverpool Diagnostic submit that the Pre-Filing Statement should be struck out for the following reasons:

   (a)     at best Ms Gress had an entitlement to twenty-seven weeks loss of wages on the basis that she ceased work for the first time as a result of the pleaded injury on
   6 October 2009 and reached retirement date as at 11 April 2010 when she was entitled to social security benefits;

   (b)     subsequent to Ms Gress reaching retirement date she was paid a further total sum of weekly compensation of $20,992.00;

   (c)     between 9 October 2009 and 11 April 2010 Ms Gress was paid weekly compensation at the rate of $403.70 per week;

   (d)     the total payments for weekly compensation therefore from the date Ms Gress ceased employment is $31,488.00;

   (e)     even if Ms Gress’ claim is allowed in full at $700.00 per week the total amount that could be awarded for damages is a figure of $18,200.00 plus Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 for the period from October 2009 to
   11 April 2010;

   (f)      the total amount of weekly compensation payments vastly exceed the verdict
   Ms Gress could achieve assuming that she were to win her case entirely and be found to be totally incapacitated for all relevant periods, and

   (g)     accordingly, the claim has no real prosects of success.

9. On 21 January 2013 Ms Gress filed a Notice of Opposition to Strike Out a Pre-Filing Statement in which she consented to the Pre-Filing Statement being struck out.

10. In the circumstances, the claimant’s pre-filing statement is struck out, by consent.

COSTS

1. The parties have agreed that each party is to pay its own costs.

ORDERS MADE ON APPLICATION

1. Pursuant to s 151DA of the Workers Compensation Act 1987, the claimant’s Pre-Filing Statement is struck out by consent.

2. No order as to costs.

Judge Keating

President

6 February 2013

I, EMMA LETHBRIDGE-GILL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE