Ausgrid v Marcellino
[2017] NSWWCCPD 22
•17 May 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT | ||
| CITATION: | Ausgrid v Marcellino [2017] NSWWCCPD 22 | |
| APPLICANT DEFENDANT: | Ausgrid (formerly Energy Australia) | |
| RESPONDENT CLAIMANT: | Leonardo Marcellino | |
| FILE NUMBER: | 685/17 | |
| DATE OF DECISION: | 17 May 2017 | |
| SUBJECT MATTER OF DECISION: | Application to Strike Out a Pre-Filing Statement; s 151DA of the Workers Compensation Act 1987 | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Applicant Defendant: | Leigh Virtue & Associates |
| Respondent Claimant: | Gerard Malouf & Partners | |
| ORDERS MADE ON APPLICATION: | 1. The Application to strike out the respondent claimant’s pre-filing statement is dismissed. 2. No order as to costs. | |
BACKGROUND TO THE APPLICATION
This is an application filed by the applicant defendant Ausgrid (formerly Energy Australia) seeking an order under s 151DA of the Workers Compensation Act 1987 (the 1987 Act) that the plaintiff’s pre-filing statement served on 22 November 2011 be struck out.
The respondent claimant, Mr Marcellino, was employed by Ausgrid as a cleaner. On 23 September 2008, whilst in the course of his duties, Mr Marcellino slipped and fell on a wet concrete surface landing heavily on his lower back and left hip.
On 11 December 2008, Mr Marcellino submitted to a total left hip replacement. Three to four days post operatively, Mr Marcellino dislocated the prosthesis requiring revision surgery on 19 December 2008.
In due course, Mr Marcellino made a claim for lump sum compensation pursuant to s 66 of the 1987 Act. On 7 April 2011, the parties entered into an agreement pursuant to s 66A of the 1987 Act. It was agreed that Mr Marcellino received the sum of $26,950 in respect of an 18 per cent whole person impairment and the sum of $20,000 for pain and suffering, pursuant to ss 66 and 67 of the 1987 Act.
On 13 January 2012, Mr Marcellino filed an Application for Mediation in the Commission. A mediation took place on 22 February 2015, however, the parties failed to reach agreement and the matter remained unresolved.
Mr Marcellino’s condition deteriorated. He developed a condition known as metallosis, which I understand is a condition involving deposits and a build-up of metal debris in soft tissues of the body arising from implant surgery.
On 11 March 2013, Mr Marcellino submitted to a second total hip replacement. Following the surgery he developed a staph infection and required multiple operations and extensive courses of antibiotics.
In August 2015 Mr Marcellino attempted to return to work on suitable duties but ceased after six months, finding that he was unable to cope with the work.
On 17 March 2016, Mr Marcellino made a further claim for lump sum compensation, claiming 33 per cent whole person impairment. On 8 December 2016, the parties entered into a second agreement pursuant to s 66A of the 1987 Act whereby Mr Marcellino was compensated for a further 12 per cent whole person impairment.
On 13 February 2017, Ausgrid filed an Application Strike Out a Pre-Filing Statement (the Application) in the Commission. The Application was procedurally deficient. Pursuant to the Commission’s Directions the Application was refiled.
Between March and April 2017, a series of exchanges took place between the parties and the Commission concerning Mr Marcellino’s position with respect to the Application. Following an extension of time to file a Notice of Opposition, the Notice was eventually filed on 12 April 2017.
THE EVIDENCE
In a report dated 12 August 2010, Dr E D Price, an injury management consultant retained by Ausgrid, noted that Mr Marcellino remained on suitable duties with a lifting restriction of up to 14 kg with no prolonged walking, sitting, standing and no excessive or repetitive left hip flexion or extension and was required to take care lifting above waist height.
The most recent medical evidence from Dr Hutabarat, Mr Marcellino’s treating orthopaedic surgeon, is a report dated 12 October 2010. Bearing in mind that that report pre-dated the most recent surgical procedure, Dr Hutabarat was of the view at that time that Mr Marcellino was likely to be permanently restricted to modified duties.
In a report dated 12 July 2016, Dr James Bodel, orthopaedic surgeon qualified by Mr Marcellino, opined that Mr Marcellino has no prospect of returning to normal duties and his prospects of returning to any form of work are poor.
Mr Marcellino was also assessed by Dr Roger Rowe, an orthopaedic surgeon, at the request of Ausgrid on 5 September 2016. Dr Rowe considered that Mr Marcellino was unfit for work. He opined:
“Given his entire presentation, it is considered that overall, he has no capacity for work. It is anticipated that he will not return to the workforce in any capacity. Theoretically he may be fit for half time sedentary type work as long as he could make his way satisfactorily to and from work.”
SUBMISSIONS
Ausgrid’s submissions
After outlining the chronology of the matter, Ausgrid submitted that no steps to commence proceedings in the District Court had been taken following the unsuccessful mediation. Further, it submitted that almost five years have elapsed since the Certificate of Mediation Outcome was issued. In the absence of any steps taken by Mr Marcellino’s solicitors to prosecute the pre-filing statement, it sought an order that the pre-filing statement be struck out.
Other than general delay, no submissions of any actual prejudice were made.
Mr Marcellino’s submissions
Mr Marcellino submitted that he had been hospitalised for three weeks following the surgical procedure on 11 March 2013 due to high level infection. Following his discharge he continued to battle with infection and was on a strong course of antibiotics. The infection did not resolve for six months.
Mr Marcellino submits that it was only at that stage that he was able to commence strenuous rehabilitation through physiotherapy and hydrotherapy.
Between March 2016 and November 2016 the parties were in negotiation in relation to Mr Marcellino’s claim for further compensation pursuant to s 66 of the 1987 Act.
Mr Marcellino submits that at the time of the mediation in February 2012 the degree of permanent impairment was not fully ascertainable. It was not until November 2016 that the parties agreed on the extent of the impairment, which by that point had deteriorated and was agreed at 30 per cent whole person impairment.
It is submitted that Mr Marcellino was justified in not pursuing the claim to finality following the mediation, given the significant degree of deterioration that was occurring in his condition.
Mr Marcellino submits that it is his intention to now recommence the claim for work injury damages by issuing a revised s 282 notice under the Workplace Injury Management and Workers Compensation Act 1998.
Mr Marcellino further submits:
“Considering the unforseen deterioration of [Mr Marcellino] over the years, it would be unfair to disallow him the opportunity to proceed with the work injury damages claim by allowing the striking out of the Pre-Filing Statement.”
Costs
Neither party sought an order for costs.
DISCUSSION AND FINDINGS
I am not persuaded by Ausgrid’s submissions that the matter should be struck out. Ausgrid’s only submission supporting its application is one of general delay and presumptive prejudice. No actual prejudice has been alleged.
The submissions ignore the significant deterioration in Mr Marcellino’s condition after the mediation took place in February 2012. Since then he has submitted to a second total hip replacement. His recovery from surgery was delayed for at least six months due to serious infection.
Between July 2016 and December 2016 the parties were in negotiation in relation to the level of whole person impairment arising from Mr Marcellino’s complicated medical history. Clearly it would have been inappropriate for him to have pursued his claim to finality whilst the question of the extent of his residual impairment remained unresolved.
Subject to establishing liability, Mr Marcellino’s claim for work injury damages is significant. He is 50 years of age. His attempts to return to the workforce thus far have been unsuccessful. There is a significant body of evidence, including Ausgrid’s own evidence, from Dr Rowe, to support Mr Marcellino’s claim that he is totally and permanently incapacitated.
Whilst Mr Marcellino’s submissions on this application are extremely brief, he has submitted that it is his intention to proceed with his action for work injury damages without further delay. I have no reason not to accept that submission.
In the circumstances the Application to strike out the respondent claimant’s pre-filing statement is dismissed.
As neither party has sought an order for costs, I make no order for costs.
ORDERS MADE ON APPLICATION
The Application to strike out the respondent claimant’s pre-filing statement is dismissed.
No order as to costs.
Judge Keating
President
17 May 2017
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