Celik v Ashmont Australia Pty Limited
[2023] NSWPIC 31
•24 January 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Celik v Ashmont Australia Pty Limited [2023] NSWPIC 31 |
| APPLICANT: | Engin Celik |
| RESPONDENT: | Ashmont Australia Pty Limited |
| principal Member: | Glenn Capel |
DATE OF DECISION: | 24 January 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Applicant failed to attend respondent’s medical examination after claim for lump sum compensation served; applicant filed Form 7 Application for Assessment by a Medical Assessor (MA); referral to the MA opposed as respondent had not yet had the applicant examined; at a second preliminary conference, the Personal Injury Commission was advised that the applicant had been incarcerated; the applicant’s solicitor was unable to contact the applicant and had no instructions; Held – the applicant failed to prosecute his claim; proceedings dismissed for want of due despatch. |
determinations made: | 1. The matter cannot be finalised in a timely fashion due to the incarceration of the applicant. |
orders made: | 2. Proceedings dismissed for failing to prosecute the claim with due dispatch. |
STATEMENT OF REASONS
BACKGROUND
Engin Celik (the applicant) is 47years old and was employed by Ashmont Australia Pty Ltd (the respondent) as an assembler.
There is no dispute that the applicant sustained a psychological injury during the course of his employment on 20 February 2017(deemed).
Liability was accepted by Allianz Australia Ltd (Allianz) and the claim was later transferred to AAI Ltd t/as GIO (the Insurer). Payments of weekly compensation and medical expenses were paid until 18 September 2022 when 260 weeks had elapsed.
It appears that the applicant made a claim for lump sum compensation in 2018. A copy of this claim is not in evidence. The insurer issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) disputing liability because the applicant had not disclosed a history about his past psychological and substance abuse issues.
On 10 January 2020, the applicant’s former solicitor served a claim for lump sum compensation on the insurer in respect of 20% whole person impairment in accordance with reports of Dr Glen Smith dated 1 May 2018 and 13 December 2019.
On 7 August 2020, the insurer issued a notice pursuant to s 78 of the 1998 Act, disputing liability because the applicant had not disclosed a history about his past psychological and substance abuse issues to the independent medical examiners, Drs Smith and Whetton.
By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission (the Commission) on 19 March 2021 in matter no. W458/21, the applicant claimed lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) due to a psychological injury sustained on 20 February 2017 (deemed). These proceedings were listed for a telephone conference before Member Young on 6 May 2021 and were discontinued by the applicant on 3 June 2021.
On 3 May 2022, the Dr Whetton provided a report to the respondent’s solicitor. Whilst he raised issues regarding some discrepancies in the applicant’s history and questioned his truthfulness, Dr Whetton diagnosed a chronic Major Depressive Disorder, the cause of which was dubious. Nevertheless, he assessed 22% whole person impairment.
On 5 August 2022, the applicant’s solicitor wrote to the insurer and questioned why it disputed the applicant’s claim, given that Dr Whetton had, like Dr Smith, assessed 22% whole person impairment due to the applicant’s work injury.
On 15 August 2022, the applicant’s current solicitor served a claim for lump sum compensation on the insurer in respect of 22% whole person impairment in accordance with the report of Dr Glen Smith dated 27 July 2022.
On 17 August 2022, the insurer issued a notice pursuant to s 78 of the 1998 Act, disputing liability because it had sufficient evidence to determine the claim, largely because authorities for the provision of copies of the notes of the applicant’s treating clinicians had not been returned, and because there were inconsistencies in the drug and forensic history.
The applicant filed a Form 7 Application for Assessment by a Medical Assessor (the Form 7 Application) in the Commission on 30 September 2022, seeking an assessment as to whether the applicant’s degree of permanent impairment was more than 20% for the purposes of s 39 of the 1987 Act.
An appointment was arranged with the Medical Assessor, Dr Hong, on 31 March 2023. However, the respondent opposed this examination because the applicant had made a claim for lump sum compensation, an appointment had been scheduled with Dr Whetton on
21 November 2022, and the lump sum claim and threshold dispute should proceed together. The respondent’s solicitor requested that a preliminary conference be convened.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for a preliminary conference before Member Garner on 18 January 2023. Ms Hanna , solicitor, appeared on behalf of the applicant, and Ms Tancred, solicitor, appeared on behalf of the respondent. The applicant was not in attendance, but Ms Garner was advised that he was available on the telephone if necessary.
According to Ms Garner’s outcome summary, Ms Tancred opposed the assessment by Dr Hong on 31 March 2023, because the applicant had also made a claim for lump sum compensation which was still in the process of being determined by the respondent.
Ms Tancred advised that the applicant had failed to attend the appointment with Dr Whetton on 21 November 2022, and the next earliest appointment was in March 2023. The respondent would still need to determine the lump sum claim when Dr Whetton’s report because available. Once that had occurred , the applicant could file proceedings for lump sum compensation in the Commission. Ms Tancred submitted that it was preferable that the lump sum claim proceed and there be only one examination by a Medical Assessor.
Both parties agreed that it was appropriate to defer the examination by Dr Hong to June 2023, at which time the Medical Assessor could make an assessment for the purposes of both issues. Ms Hanna did not want to discontinue the Form 7 Application.
Member Garner sought my views regarding the proposal, and after reviewing the file, I had some concerns regarding the insurer’s management of the file after it had received Dr Whetton’s report dated 3 May 2022. Accordingly I scheduled a preliminary conference before me at 2.00pm on 23 January 2023.
Ms Hanna appeared on behalf of the applicant, and Ms Tancred appeared on behalf of the respondent. Her client, Mr Mackle, was in attendance.
Ms Hanna advised that the applicant was not in attendance because he was in gaol. She had been unable to contact him and she did not know how long he would be incarcerated.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Form 7 Application and attached documents;
(b) Reply and attached documents,
(c) Application to Admit Late Documents received on 16 January 2023, and
(d) Commission file in matter no. W458/21.
FINDINGS AND REASONS
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.”
Rule 77 of Personal Injury Commission Rules 2021 (the 2021 Rules) provides:
“77 Dismissal of proceedings
The following grounds are specified for section 54(c) of the PIC Act—
(a) for proceedings by an application made under the workers compensation legislation—the applicant has failed to prosecute the proceedings with due despatch…”
Rule 9 of the 2021 Rules deals with procedural orders that can be made by members of the Commission. It provides:
“9 Procedural orders by non-presidential members and merit reviewers
A non-presidential member or merit reviewer to whom applicable proceedings are referred may make any order relating to the procedure to be followed in the proceedings, including an order striking out the proceedings or any step in the proceedings, that could be made by the President.”
Section 42 of the PIC Act refers to the guiding principle that applies to practice and procedure in the Commission. It provides:
“42 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
(2) The Commission must seek to give effect to the guiding principle when it—
(a) exercises any power given to it by this Act or the Commission rules, or
(b) interprets any provision of this Act or the Commission rules.”
The applicant was not in attendance at the two preliminary conferences conducted in this matter. I was informed that he was in gaol, and Ms Hanna had no other information. Clearly, she was unable to obtain instructions from the applicant regarding the further conduct of this matter.
This claim has an unfortunate history. The original claim was made in 2018 and has not progressed some five years later. The documents produced by Corrective Services show that the applicant has had a troubled past with the law and he is currently in gaol.
In my opinion, there is little prospect of the matter being advanced within a reasonable time in accordance with the Commission’s statutory obligations. We do not know when the applicant will be released from gaol and when he will be available to attend examinations by Dr Whetton and a Medical assessor.
Given that that lump sum claims were made in 2018 and 2020, the filing of the Form 7 Application after payments had ceased in September 2022 was inappropriate. A Form 2 Application should have been filed shortly after the prior proceedings were discontinued in June 2021, subject to any issues that the applicant might have had with the police.
There is nothing to prevent the applicant from lodging a further application in the Commission, provided I dismiss these proceedings for want of due despatch, which is a prerequisite for dismissing or striking out any proceedings in accordance with the principles in Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited[1].
[1] [2004] NSWWCCPD 83.
It is the objective of the Commission to provide a timely, fair and cost-effective system for the resolution of disputes. Section 43 (3) of the PIC Act provides that the Commission is to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”.
In the circumstances, I am satisfied that these proceedings should be dismissed because the applicant has failed to prosecute his claim with due dispatch. I propose to make such orders.
There is one further matter that requires comment. Despite the insurer claiming that it had insufficient information to determine liability based on the absence of clinical notes and the like, Dr Whetton did not request copies of further material or indicate that he might change his assessment if further material was made available to him.
It seems that a case manager has made the decision to dispute liability in the absence of any medical evidence to support the insurer’s position. Given that the insurer is bound by the Model Litigant Policy, such action is, in my view, highly questionable.
Dr Whetton was advised about the applicant’s past history of drug abuse and his incarceration and whist he expressed some concerns about the applicant’s history and truthfulness, he still maintained an assessment of 22% whole person impairment, a figure that mirrors that of Dr Glen Smith, who made a one-tenth deduction in pursuant to s 323 of the 1998 Act.
I would highly recommend that the insurer review its decisions and consider reinstating weekly compensation pursuant to s 38 of the 1987 Act, to be reviewed once Dr Whetton’s further report is available which may support its decision to cease payments because the applicant’s permanent impairment is less than the threshold in s 39(2) of the 1987 Act.
FINDINGS
The matter cannot be finalised in a timely fashion due to the incarceration of the applicant.
ORDERS
Proceedings dismissed for failing to prosecute the claim with due dispatch.
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