Arrogante v State of NSW (St George Hospital)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Arrogante v State of NSW (St George Hospital) [2022] NSWPIC 368
APPLICANT:	Lilibeth Arrogante
RESPONDENT:	State of NSW (St George Hospital)
MEMBER:	Glenn Capel
DATE OF DECISION:	7 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Applicant resolved lump sum claim in 2019 by Complying Agreement; sought further compensation relying on section 66A(3) of the Workers Compensation Act 1987 (1987 Act); failed to prosecute claim in first set of proceedings and declined to discontinue second set of proceedings despite poor prospects of success; Cram Fluid Power Pty Ltd v Green discussed and applied; Held – proceedings misconceived and lacking in substance; proceedings dismissed.
DETERMINATIONS MADE:	1. These proceedings are misconceived and lacking in substance.
ORDERS MADE:	2. Proceedings dismissed.

STATEMENT OF REASONS

BACKGROUND

Lilibeth Arrogante (the applicant) is 64-years-old and was employed by the State of New South Wales (St George Hospital) (the respondent) as a registered nurse.
There is no dispute that the applicant sustained injury to her right upper extremity and a consequential condition in her left upper extremity during the course of her employment prior to 2 August 2016 (deemed).
Liability was accepted by Employers Mutual Ltd (the insurer) and payments of compensation have been paid.
On 3 October 2019, the applicant’s prior solicitor served a notice of claim for lump sum compensation on the insurer in respect of 12% whole person impairment (7% whole person impairment of the right upper extremity and 5% whole person impairment of the left upper extremity), based on a report of Dr Assem dated 26 August 2019.
On 21 January 2020, the applicant and the insurer entered into a Complying Agreement for $25,750 in respect of 12% whole person impairment due to injury sustained to the applicant’s right shoulder, left shoulder and left elbow.
On 19 October 2021, the applicant’s solicitor served a notice of claim for lump sum compensation on the insurer in respect of 37% whole person impairment (13% whole person impairment of the right upper extremity, 14% whole person impairment of the left upper extremity, 12% whole person impairment of the cervical spine and 5% whole person impairment of the lumbar spine), based on a report of Dr Endrey-Walder dated
11 October 2021.
On 3 February 2022, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act), disputing that the applicant was entitled to bring a further lump sum claim due to the provisions in s 66(1A) of the Workers Compensation Act 1987 (the 1987 Act).
On 15 February 2022, the applicant’s solicitor filed an Application to Resolve a Dispute (the Application) in the Personal Injury Commission (the Commission) in matter no. W842/22, claiming weekly compensation from 12 November 2021, medical expenses for proposed treatment, and lump sum compensation in respect of 37% whole person impairment.
On 21 February 2022, the insurer wrote to the applicant and advised that it had accepted that she was a worker with highest needs and that it would pay her $1,376 per week from
15 November 2021.
On 23 February 2022, the applicant’s solicitor served a further notice of claim for lump sum compensation on the insurer in respect of 37% whole person impairment based on the report of Dr Endrey-Walder dated 11 October 2021. It was indicated that the applicant proposed to rely on s 66A(3) of the 1987 Act.
The proceedings in matter no. W842/22 were listed for a telephone conference before Member McGrowdie on 15 March 2022. It is unclear from the file what transpired on that occasion, but the matter was listed for a conciliation conference and arbitration hearing on
6 May 2022. Given that the insurer had already accepted that the applicant was a worker with highest needs and had agreed to pay weekly compensation as from 15 November 2021, one can only assume that the dispute centred on the claims for proposed treatment and lump sum compensation.
The matter did not proceed to a hearing because the parties filed consent orders 1 April 2022. The proceedings were discontinued, and it was noted that the respondent agreed that the applicant was a worker with highest needs. Given that the insurer had already accepted this before the telephone conference, this notation was hardly necessary.
By an Application registered in the Commission on 7 June 2022, the applicant claims lump sum compensation in respect of 37% whole person impairment pursuant to s 66 of the 1987 Act as a result of injury sustained on 2 August 2016 (deemed).

PROCEDURE BEFORE THE COMMISSION

The matter was listed for a preliminary conference before me on 6 July 2022. Mr Moffet of counsel, instructed by Ms Brown, solicitor, appeared with and on behalf of the applicant and Ms Kim, solicitor, appeared on behalf of the respondent.
I clarified the issues in dispute and was informed that the respondent maintained its decision to deny the applicant’s claim based on s 66(1) of the 1987 Act because the applicant had already made a claim for lump sum compensation in 2019 and this had been resolved it in
January 2020.
I questioned Mr Moffet as to why the lump sum dispute had not been prosecuted during the course of the prior proceedings, but he was unable to provide an explanation. I expressed a preliminary view regarding the applicant’s prospects of success, and he acknowledged that the applicant would have difficulty in succeeding with her claim. Nevertheless, after conferring with the applicant, he advised that he was instructed to continue with the claim rather than discontinue the matter. He requested that the matter be listed for a conciliation conference and arbitration hearing. I declined his request. I indicated that I proposed to strike out the matter, and I would provide written reasons for my decision.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application and attached documents, and
(b) Reply and attached documents.
I also reviewed the Commission file in matter no. W842/22, which involved the same parties and the same legal representatives.

FINDINGS AND REASONS

Section 66 of the 1987 Act concerns lump sum compensation. It provides:
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note —
No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury….”.
Section 66A of the 1987 Act deals with agreements for compensation. It provides:
“66A   Agreements for compensation
(1)     In this section, complying agreement means a written agreement—
(a)  under which a worker who has received an injury, and an employer or insurer, agree as to the degree of permanent impairment that has resulted from the injury, and
(b)  in which there is a provision in which the employer or insurer certifies that it is satisfied that the worker has obtained independent legal advice or has waived the right to obtain independent legal advice, before entering into the agreement.
(2)     If a worker enters into a complying agreement in relation to an injury, the permanent impairment compensation to which the worker is entitled in respect of the injury is the compensation payable in respect of the degree of impairment so agreed.
(3)    The Commission may award compensation additional to the compensation payable under subsection (2) by virtue of a complying agreement if it is established that —
(a)  the agreed degree of permanent impairment is manifestly too low, or
(b)  the worker has been induced to enter into the agreement as a result of fraud or misrepresentation, or
(c)  since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed….”.
There is no dispute that the applicant made a lump sum claim in 2019 and this was resolved when the parties executed a Complying Agreement in January 2020. This represented her one claim in terms of s 66(1) of the 1987 Act.
According to the notice of claim served by the applicant’s solicitor on 23 February 2022, the applicant relied on s 66A(3) of the 1987 Act, even though she had already made her one claim in 2019.
It is true that there seems to be conflict between the provisions in both sections, but this issue was addressed by the Court of Appeal in Cram Fluid Power Pty Ltd v Green[1].
[1] [2015] NSWCA 250 (Cram Fluid).
Gleeson JA (Beazley ACJ and Emmett JA agreeing) noted the apparent conflict between
s 66(1) of the 1987 Act and s 66A(3) of the 1987 Act[2] and said:
“Here, giving effect to the purpose and language of the 2012 amendments while maintaining the unity of the statutory scheme, requires that the one claim limitation in the new s 66(1A) be taken to be the leading provision and the Commission’s power under s 66A(3) must give way to it. This is because the Commission’s power to award additional compensation under s 66A(3)(c) is not independent of a worker’s entitlement to receive compensation under s 66. So much was accepted by counsel for Mr Green (tcpt, CA at 34, lines 29-47).
It should be accepted, as the applicant contended, that following the introduction of s 66(1A), s 66A(3) only has a limited operation with respect to claims for lump sum compensation additional to that payable under a complying agreement, where the further claim is made before 19 June 2012. Such a claim would answer the description in cl 11 of a claim that specifically sought lump sum compensation before 19 June 2012 and thus would be exempted from the one-claim limitation in the new s 66(1A).
It follows that s 66A(3)(c) does not assist Mr Green because his further claim for lump sum compensation, based on his deterioration since the 2010 complying agreement, was not made before 19 June 2012.”
[2] Cram Fluid, [105].
This interpretation has been applied in the Commission by President Keating in Campbelltown Tennis Club Ltd v Lee[3] and by Deputy President Roche in Stella Maris College v Robin-True[4].
[3] [2013] NSWWCCPD 50.
[4] ]2015] NSWWCCPD 57, (Robin-True).
Section 54 of the Personal Injury Act 2020 (the PIC Act) deals with the dismissal of proceedings. It provides:
“54 Dismissal of proceedings
The Commission may at any stage dismiss proceedings before it—
(a)if it is satisfied that the proceedings have been abandoned, or
(b)if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.”
I raised my concerns about the merits of the claim during the conference with Mr Moffet. I was also concerned that the current claim and issues largely mirrored those in the prior proceedings. the lump sum dispute should have been prosecuted in the prior proceedings that concluded only three months ago.
During our discussions, Mr Moffet acknowledged that the applicant’s prospects were poor and that in order for her to succeed, it would be necessary for me to disregard the Court of Appeal authority. As Deputy President Roche stated in Robin-True:
“The issue before me is indistinguishable from the issue determined by Cram Fluid and, absent a successful appeal to the High Court, the Commission is bound to apply the law stated in that decision. That leads to only one conclusion: the appeal must succeed and, having already made one claim for permanent impairment compensation, the worker is not entitled to make a second.”
In my opinion, the current application is misconceived and lacking in substance. Had this matter proceeded to an arbitration hearing, I would have been obliged to apply the interpretation of the legislation as discussed in Cram Fluid, and the applicant would have inevitably failed in her claim.
It is unfortunate that the applicant is unable to make a further claim, but this is prohibited by the legislation. It is apparent from her statement that was completed in 2019 that her concerns related to her upper extremities, although she had CT scans of her neck and back in 2016.
According to her more recent statement and the history recorded in the report of Dr Bentivoglio, the applicant complained of neck symptoms in December 2020, and it seems that she had not consulted a specialist for her neck and back symptoms until she saw Dr Kohan on 22 December 2020. The clinical notes of Dr Wei also make no mention of any neck or back complaints until December 2020.
When Dr Assem saw the applicant in August 2019, she only complained about symptoms in her upper extremities, so it is not surprising that Dr Assem restricted his assessments to her upper limbs and that the applicant’s prior solicitors only made a claim for the applicant’s upper extremities.
Sections 42 and 43 of the PIC Act refer to the guiding principles that applies to practice and procedure in the Commission, namely “to facilitate the just, quick and cost effective resolution of the real issues in the proceedings”, and “to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. The commencement of fresh proceedings based on the same qualified medical evidence is inconsistent with the statutory provisions in the PIC Act. It has caused inconvenience and has come at a cost for the respondent and the Commission.
In the circumstances, I am satisfied that these proceedings should be dismissed. I propose to make such orders.

FINDINGS

These proceedings are misconceived and lacking in substance.

ORDERS

Proceedings dismissed.

[2022] NSWPIC 368

7 July 2022