Bolwell v NSW Electoral Commission - [2021] NSWPIC 229

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bolwell v NSW Electoral Commission [2021] NSWPIC 229
APPLICANT:	Mary Bolwell
RESPONDENT:	NSW Electoral Commission
MEMBER:	Catherine McDonald
DATE OF DECISION:	6 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for future treatment expenses commenced as application for expedited assessment; operation of section 59A of the 1987 Act; Held- no order.
DETERMINATIONS MADE:	1. No order.

STATEMENT OF REASONS

BACKGROUND

Mary Bolwell was employed by the NSW Electoral Commission as a poll attendant. She fell and suffered an injury to her back in the early hours of 24 March 2019 when packing up the polling booth after a State election. The Electoral Commission does not dispute that she suffered an injury.
Ms Bolwell’s injury occurred after she reached the retiring age, determined in accordance with s 52 of the Workers Compensation Act 1987 (the 1987 Act). Ms Bolwell did not claim weekly compensation but, if she had done so, her entitlement would probably have ceased in late March or early April 2020 in accordance with s 52(2)(b) (subject to the date of commencement of any incapacity for work).
Ms Bolwell claims the cost of bilateral radiofrequency denervation at L3/4 which was recommended by Dr M Coughlan in September 2020. The Electoral Commission argues that those costs are not payable because of s 59A of the 1987 Act.
The issue to be determined is very narrow and turns on the meaning of claim in s 59A.

PROCEDURE BEFORE THE COMMISSION

The matter was commenced as an Application for Expedited Assessment. It was fixed for telephone conference on 26 May 2021 when Mr Carney of counsel appeared for Ms Bolwell, instructed by Mr Counter, and Mr Hodges, solicitor appeared for the Electoral Commission.
The parties agreed to the determination of the matter without a conference or formal hearing. Mr Carney sought leave to file written submissions because Ms Bolwell had not previously been given advice about important issues.
I prepared a direction in which I noted that the claim was for future medical treatment under s 60(5) of the Workers Compensation Act 1987 (the 1987 Act) so that it should be determined by the Commission rather than by issuing an interim payment direction, the latter procedure applying only to past medical expenses.
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 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

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application for Expedited Assessment and attached documents;
(b) Reply.

SUBMISSIONS

Mr Counter, solicitor, prepared submissions on behalf of Ms Bolwell. He said that it was not disputed that Ms Bolwell was not entitled…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Bolwell v NSW Electoral Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWPIC 229
Decision Date: 6 July 2021

CaseChat Overview and Summary

The plaintiff in Bolwell v NSW Electoral Commission brought a claim for future treatment expenses before the New South Wales Civil and Administrative Tribunal, arguing that his claim should be considered under the expedited assessment process provided for by section 59A of the Workers Compensation Act 1987. The defendant, the NSW Electoral Commission, opposed the plaintiff's claim, asserting that the claim did not meet the criteria for expedited assessment. The court was required to determine whether the plaintiff's claim for future treatment expenses was eligible for expedited assessment under section 59A of the 1987 Act.

The court considered the language of section 59A of the 1987 Act, which provides that an application for expedited assessment may be made if the injured worker has suffered a permanent impairment and requires ongoing medical treatment. The court found that the plaintiff's claim did not meet the criteria for expedited assessment, as the plaintiff had not suffered a permanent impairment and did not require ongoing medical treatment. The court held that the plaintiff's claim for future treatment expenses did not fall within the scope of section 59A of the 1987 Act.

As a result of the court's decision, the plaintiff's claim for future treatment expenses was not eligible for expedited assessment. The court dismissed the plaintiff's application for expedited assessment and ordered that the claim be determined through the ordinary assessment process. The court did not make any orders for costs.

Orders