Chetty v Top Knot Projects Pty Ltd
[2021] NSWPIC 202
•23 June 2021
CERTIFICATE OF DETERMINATION OF MEMBER CITATION: Chetty v Top Knot Projects Pty Ltd [2021] NSWPIC 202 APPLICANT: Avinash Chetty RESPONDENT: Top Knot Projects Pty Ltd SENIOR MEMBER: Glenn Capel DATE OF DECISION: 23 June 2021 CATCHWORDS: WORKERS COMPENSATION- Application for leave to rely on un-notified matters pursuant to section 289A (4) of the 1998 Act; applicant discontinued prior proceedings when the respondent objected to an amendment to allege a secondary psychological condition; fresh application included additional dates of injury and injuries to other parts of the applicant’s body; the respondent had not previously disputed these alleged injuries and the psychological condition, although it had paid for psychological treatment; leave sought by the respondent to raise a dispute, opposed by the applicant; Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services, Department of Education & Training v Sinclair, Begnell v Super Start Batteries Pty Ltd discussed and applied; Held- leave granted to the respondent to rely on un-notified matters.
DETERMINATIONS MADE: 1. The respondent’s application pursuant to section 289A (4) of the Workplace Injury Management and Workers Compensation Act1998 for leave to rely on un-notified matters is granted.
2. The matter is listed for a conciliation conference and arbitration hearing on 13 July 2021.
STATEMENT OF REASONS
BACKGROUND
1.Avinash Chetty (the applicant) is 35 years old and commenced employment with Top Knot Projects Pty Ltd (the respondent) as a cabinet maker in 2018. He has not worked since
5 March 2020.2.There is no dispute that the applicant injured his back arising out on 6 May 2019. Liability was accepted by icare Workers Insurance (the insurer) and weekly compensation and medical expenses were paid from 6 May 2019 to 1 March 2021. It seems that the claim has also been managed by Employers Mutual Ltd. For the purposes of this decision, I will use the generic term “insurer” to describe both entities.
3.On 6 January 2021, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that the applicant was entitled to weekly compensation and medical expenses because its evidence confirmed that he had recovered from the effects of his low back injury. It cited ss 33, 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act). The insurer maintained in its position in a notice issued pursuant to s 287A of the 1998 Act on 16 February 2021 [sic].
4.The applicant’s solicitor, Mr Ahmed, filed an Application to Resolve a Dispute in matter no. W414/21 (the prior Application) in the Personal Injury Commission (the Commission) on 15 March 2021. The applicant claimed weekly compensation from 24 February 2021 to date and continuing and medical expenses in respect of injury sustained on 6 May 2019. The injury description was as follows:
“On the date of injury, the Applicant suffered personal injury during the course of my employment. While walking, the Applicant slipped on wood dust lying on the floor and fell onto his back. The back of his head also hit the ground. The Applicant started to feel an onset of pain immediately in his lower back and neck. He was assisted off the ground by his colleagues. The Applicant suffered personal injury to his lower back, neck, and right leg.
In the alternative, the Applicant suffered an aggravation, acceleration, exacerbation, or deterioration of a degenerative disease process in his lower back, neck and right leg.”
5.The notice of claim served by the applicant’s solicitor on the respondent and/or the insurer is not in evidence.
6.The prior proceedings were listed for a telephone conference before Member Perry on
14 April 2021. I have been able to access the Commission file and note that the applicant’s legal representative, Mr Malai, sought leave to amend the particulars of injury to include a secondary psychological condition. The respondent’s solicitor, Ms Angwin, opposed the application because no previous claim had been made and the respondent did not have evidence to meet such a claim. When Member Perry declined the applicant’s application, the applicant discontinued the proceedings.7.The applicant’s solicitor filed a further Application to Resolve a Dispute (the Application) for similar compensation in the current matter on 23 April 2021. On page 2 of the Application, the applicant’s solicitor failed to disclose that there had been previous proceedings in relation to the applicant’s injury and the Certificate of Determination in matter no. W414/21 was not attached. The injury description was as follows:
“On the date of injury, the Applicant suffered personal injury during the course of his employment. While walking, the Applicant slipped on wood dust lying on the floor and fell onto his back. The back of his head also hit the ground. The Applicant started to feel an onset of pain immediately in his lower back and neck. He was assisted off the ground by his colleagues. The Applicant suffered personal injury to his lower back, neck, and right leg.
On 2 July 2019, the Applicant was involved in a Motor Vehicle Accident during the course of his employment and suffered a minor aggravation of the previous injuries.
On 5 March 2020, the Applicant underwent a radio frequency injection in his lumbar spine when he developed right leg paralysis and a ‘functional neurological disorder’.
As a consequence of all of the above injurious events, the Applicant has developed a psychological injury being anxiety, depression, and conversion disorder.
In the alternative, the Applicant suffered an aggravation, acceleration, exacerbation, or deterioration of a degenerative disease process in his lower back, neck and right leg.”
8.The respondent’s solicitor filed a Reply in the Commission on 14 May 2021. On page 2 of the Reply, the respondent’s solicitor identified additional issues to those raised in the insurer’s dispute notices as follows:
“…. the Respondent rejects the Applicant relying on a secondary psychological injury as detailed under ‘injury details’ in the ARD for the following reasons:
• There is no reference to a secondary psychological injury in the Applicant’s claim form.
• No previous claim had been made in relation to a secondary psychological injury.
• The basis for the claim is the opinion of Dr Ahmad which was only served onto the Respondent in the prior ARD, served 6 April 2021.
• Despite the inclusion of Dr Ahmad’s report in the prior ARD, there was no reference in that ARD to a secondary psychological injury and it was not clear that an injury on that basis was being pleaded or relied upon.
• Member Perry rejected the Applicant’s Application at the Teleconference to amend the ARD to plead a secondary psychological injury, which resulted in the prior ARD being discontinued on 14 April 2021.
• Immediately following this, we wrote to the Applicant to ascertain his location (his statement in the ARD indicated that he had moved interstate in February 2021). We also requested a list of treating doctors. This correspondence was not responded to.
• Despite this above, the Respondent wrote to the Applicant on 19 April 2021 confirming that a medical appointment had been arranged and provided the choice of 3 IME appointments with a psychiatrist on 2, 4 and 9 June 2021.
• The Applicant responded on 20 April 2021 confirming that the appointment with Dr Whetton on 9 June 2021 was suitable.
• The current ARD was served on the last day of service, being 30 April 2021.
• For reasons discussed above, the Respondent has been unable to respond to the claim for a secondary psychological injury.
• `The Respondent submits that they have not been afforded with the opportunity, and therefore, procedural fairness, to respond to any alleged secondary psychological injury, which has resulted in prejudice, and therefore this should not form part of the current ARD.
• In the alternative, and for the avoidance of any doubt, the Respondent disputes that the Applicant is suffering any consequential work-related psychological condition.
We confirm the Applicant attended upon Dr Potter on 4 May 2021. This report has not yet been received. Should the matter proceed, we seek leave to rely on this report, once this is available. We also put the Applicant on notice that we intend to cross-examine him at any Conciliation/Arbitration hearing.”
9.The matter was listed for a telephone conference before me on 21 May 2021. Mr Ahmed appeared for the applicant and Ms Angwin appeared for the respondent.
10.I was informed that the respondent had scheduled an appointment with the psychiatrist, Dr Whetton, on 9 June 2021 in order to deal with the consequential psychological condition. Accordingly, I set the matter down for a conciliation conference and arbitration hearing on
12 July 2021 to allow for the production of documents in answer to Directions for Production and for receipt, service and filing of the report of Dr Whetton.11.The matters in dispute were discussed in some detail and following the telephone conference, I issued a Direction on 25 May 2021 as follows:
“1. Leave is granted to the respondent pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 to dispute:
a.Injury to the applicant’s neck and right leg, or aggravation of a disease in the neck and right leg on 6/5/19, 2/7/19 and 5/3/20 - s4, 4b(i), 4(b)(ii) and 9A.
b.Consequential condition in the neck and right leg as a result of injury or aggravation of a disease on 6/5/19, 2/7/19 and 5/3/20.
c.Consequential psychological condition as a result of injury or aggravation of a disease on 6/5/19, 2/7/19 and 5/3/20.
2. The matter is listed for a conciliation conference and arbitration hearing at 10 am on 13 July 2021.
3. The admission of any late documents will be dealt with at the conciliation conference and arbitration hearing.”
12.On 25 May 2021, Mr Ahmed sent an email to the Commission as follows:
“I refer to the Direction made by Senior Member Capel on at the teleconference.
In relation to order 1, the Applicant was not heard on any of the Applications made under s289A(4). In fact no submissions were made by either party, nor were any reasons given by the Member.
The Applicant requests an urgent teleconference to deal with these issues prior to the Con/Arb.
If the Senior Member does not list the matter for a teleconference, the Applicant will lodge an interlocutory appeal of the members Direction to grant leave to the respondent.
The Applicant has been denied procedural fairness as I was not heard on any of these Applications.
I also request a transcript of the teleconference which took place on 21 May 2021.”
13.In the absence of transcript, I issued a further Direction with reasons on 26 May 2021 as follows:
“1. Direction 1 in the Direction dated 25 May 2021 is revoked.
2. The applicant is directed to file and serve an Amended Application to Resolve a Dispute, ensuring that the allegations of injury are properly particularised, by 31 May 2021.
3. The applicant is directed to file and serve a copy of the Notice of Claim that particularised the nature of the claim made by the applicant by 31 May 2021.
4. The respondent is to advise the applicant and the Commission what injuries and/or conditions are in dispute by 3 June 2021.
5. The parties are to file and serve written submissions in respect of the respondent’s application for leave pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 to dispute:
a.Injury to the applicant’s neck and right leg, or aggravation of a disease in the neck and right leg on 6/5/19, 2/7/19 and 5/3/20 - s4, 4b(i), 4(b)(ii) and 9A.
b.Consequential condition in the neck and right leg as a result of injury or aggravation of a disease on 6/5/19, 2/7/19 and 5/3/20.
c.Consequential psychological condition as a result of injury or aggravation of a disease on 6/5/19, 2/7/19 and 5/3/20.
6. If the particulars of injury are not consistent with the injuries and conditions identified in Direction 4 above, noting that the respondent only accepted liability in respect of a back injury, the parties are file and serve written submissions regarding any leave application to amend the Application to allege other injuries and any leave application to dispute these other injuries.
7. The respondent is to file and serve written submissions by 7 June 2021.
8. The applicant is to file and serve written submissions by 12 June 2021.
9. Submissions in reply are to be filed and served by 18 June 2021.
10. At the conclusion of the time allowed for submissions, this leave application will be determined on the papers.
11. The matter is listed for a conciliation conference and arbitration hearing at 10 am on 13 July 2021, subject to compliance with the above timetable.
Reasons
12. The injury details in the Application to Resolve a Dispute have been poorly drafted and during the telephone conference, I sought clarification from the applicant’s solicitor. As a result of those discussions, the respondent’s solicitor indicated that there would be a dispute in respect of the allegation of injuries to the neck, right leg and the aggravation of a disease, and consequential conditions.
13. In the circumstances and given that there was no letter of claim in evidence, I formed the view that the respondent was entitled to dispute these matters. I indicated that I would formalise the matters in dispute in a Direction, which was issued on 25 May 2021. The applicant’s solicitor did not object to leave being granted to the respondent.
14. On 25 May 2021, the applicant’s solicitor sent an email to the Commission objecting to Direction 1 in the Direction dated 25 May 2021 on the grounds of procedural fairness. He requested that a further telephone conference be scheduled to hear submissions, failing which he intended to lodge an appeal.
15. In the absence of transcript in the matter, I am not able to consider the contents of his email and this would be an issue for any interlocutory appeal.
16. In accordance with s 354(3) of the Workplace Injury Management and Workers Compensation Act 1998, I am obliged ‘act according to equity, good conscience and the substantial merits of the case.’
17. In the circumstances, the appropriate course is to revoke my direction and direct the parties to file and serve written submissions.”
14.On 1 June 2021, the applicant’s solicitor sent an email to the Commission particularising the allegations of injury in similar terms to those in the Application, apart from the allegation regarding the consequential psychological condition. The applicant proposed to amend the Application as follows:
“As a consequence of the injuries on 6/05/2019 and the consequential right leg paralysis and functional neurological disorder the Applicant developed a consequential psychological condition being anxiety, depression and conversion disorder.”
15.The applicant’s solicitor failed to comply with Directions 2, 3 and 12 at the time of this decision.
16.On 3 June 2021, the respondent’s solicitor sent an email to the Commission and to the applicant’s solicitor, confirming the nature of the matters in dispute, consistent with the matters identified in Direction 5.
17.The respondent’s solicitor filed written submissions with annexures on 7 June 2021 and
18 June 2021 in compliance with my direction.18.The applicant’s solicitor filed written submissions three days’ late on 15 June 2021.
PRELIMINARY ISSUE FOR DETERMINATION
19.The parties agree that the following issue is in dispute:
i) Whether leave should be granted pursuant to s 289A of the 1998 Act to allow the respondent to dispute that the applicant sustained an injury to or consequential condition in his neck and right leg, or aggravation of a disease, and a consequential psychological condition as a result of injury or aggravation of a disease on 6 May 2019, 2 July 2019 and 5 March 2020.
Documentary evidence
20.The following documents were before the Commission and taken into account in making this preliminary determination:
(a) The Application with attached documents;
(b) Reply with attached documents;
(c) Respondent’s written submissions with attached documents received on
7 June 2021;(d) Applicant’s submissions with attached documents received on 15 June 2012, and
(e) Respondent’s submissions in reply received on 18 June 2021.
21.The applicant filed an Application to Admit Late Documents on 17 May 2021. These documents have not yet been admitted into evidence.
22.There are annexures attached to the submissions that are not in evidence. Neither party has sought leave to have these documents admitted into evidence, but in the absence of objections, I propose to consider these documents as they will be relevant for the purpose of this preliminary dispute. The parties will need to seek to admit these documents into evidence at the arbitration hearing.
RESPONDENT’S SUBMISSIONS
23.Ms Angwin confirmed the history of the matter as described by me above, and advised that on 25 May 2021, the applicant’s solicitor advised via email that the applicant would not be attending the medical examination with Dr Whetton on 9 June 2021. This comes as surprise to me, as Mr Ahmed gave no indication at the telephone conference on 21 May 2021 that the applicant would not be attending this appointment.
24.Ms Angwin submits that the respondent disputes liability in respect of the neck and right leg injuries, and the consequential psychological condition. She submits that the applicant had not served a notice of claim in relation to any other body part or system, including any consequential psychological or conversion disorder, save for the accepted lumbar spine injury prior to the filing on the previous Application.
25.Ms Angwin submits that the current Application, which was served on 30 April 2021, was the first formal notice of the applicant’s current claim. She submits that the case has changed substantially from the previously notified injury to the lumbar spine and that pleaded in the prior Application.
26.Ms Angwin submits that in the current Application, the applicant pleads injury to the cervical spine and right leg arising from incidents on 6 May 2019 and 2 July 2019. The applicant gave no prior notice of these injuries and there is no contemporaneous evidence of ‘injury’ or a diagnosis in relation to these body parts.
27.Ms Angwin submits that it is in the interests of justice to allow the respondent to dispute the alleged cervical spine, right leg and psychological injuries, given the potential cost to the respondent.
28.Ms Angwin submits that the applicant’s claim in respect of these alleged neck and right leg injuries and for the psychological condition is without merit. She makes submissions regarding questions of liability, highlighting the lack of contemporaneous medical evidence in respect of the alleged neck and right leg injuries on 6 May 2019, 2 July 2019 or
5 March 2020, or in the applicant’s statement in respect of the right leg in the incident on
6 May 2019, and the neck and right leg injury on 6 May 2019 or 2 July 2019.29.Ms Angwin submits that whilst there are references to the applicant’s neck in the clinical records, there is no mention of any neck injury on 6 May 2019, 2 July 2019 and/or 5 March 2020. Further, there is no evidence of an injury to the right leg as a result of the incidents on 6 May 2019, 2 July 2019 and/or 5 March 2020.
30.Ms Angwin submits that the applicant’s medical certificates do not include a diagnosis of a work-related neck or right leg injury in the diagnosis section. Accordingly, the respondent was not on notice that any alleged neck or right leg injury. She disputes that there is no evidence that the applicant suffered a consequential right leg injury or aggravation of a disease on 5 March 2020 or following treatment received on that date.
31.Ms Angwin submits that the applicant has never served a notice of claim and/or a claim form in relation to any consequential psychological or conversion disorder as a result of the incidents on 6 May 2019, 2 July 2019 and/or 5 March 2020. The first notice of any claim for incapacity as a result of a secondary psychological condition was the telephone conference on 14 April 2021 in the prior proceedings. The report of Dr Ahmed dated 24 February 2021 was not served on the respondent until the service of the Application, which did not include and injury or incapacity as a result of a secondary psychological condition.
32.Ms Angwin concedes that the respondent was aware that the applicant was receiving psychological treatment, and had paid for such treatment, but this does not constitute an acceptance of liability or that the respondent is precluded from raising a dispute in relation to liability at a later stage. This was confirmed by the Court of Appeal in Department of Education & Training v Sinclair[1].
[1] [2005] NSWCA 465 (Sinclair).
33.Ms Angwin submits that the respondent was not on notice regarding any incapacity flowing from a psychological condition. It was not in receipt of any reports from the applicant’s psychologist that provided a diagnosis or opinion as to causation and incapacity. The medical certificates also made no mention of any psychological condition.
34.Ms Angwin submits that following notification of the claim for a consequential psychological condition at the telephone conference on 14 April 2021, the respondent acted promptly by putting the applicant on notice that arrangements were being made for his attendance upon an independent psychiatrist in order to respond to the claim. The applicant subsequently refused to attend this appointment.
35.Ms Angwin submits that the claim was notified after the commencement of proceedings, and the respondent has been prejudiced and precluded from obtaining evidence to respond to the claim as a result of the applicant’s failure to attend the medical examination with Dr Whetton. In the circumstances, the respondent has not been afforded an opportunity to properly investigate and determine the claim.
36.Ms Angwin submits that the nature of the applicant’s claim is still not clear, as an Amended Application has not, as at the time of filing these submissions, been served onto the respondent.
37.Ms Angwin submits that the applicant will not be prejudiced by the raising of the disputes. Rather, the respondent submits that it has been prejudiced by the applicant’s failure to notify the claim and be afforded the opportunity to obtain evidence to respond to same. The filing of the second Application and the service of further evidence on 17 May 2021 has been prejudicial to the respondent.
38.Ms Angwin submits that the granting of leave will not raise an issue of particular complexity nor difficulty for the applicant, nor does it give rise to substantial prejudice to him. Had the respondent been afforded more time, a proper notification of the dispute would have been raised. The disputes raised by the respondent have merit and substance, and it is in the interests of justice to grant leave to the respondent to raise a dispute of liability in relation to the injuries and/or conditions.
APPLICANT’S SUBMISSIONS
39.The applicant’s counsel, Mr McManamey, submits that the dispute in this matter arose as a result of the dispute notice dated 6 January 2021 that the applicant was no longer incapacitated as a result of the accepted back injury.
40.Mr McManamey submits that a review application was made by the applicant on
6 February 2021 based on the report of Dr Dryson dated 29 January 2021. Dr Dryson diagnosed an aggravation of L5/S1 spondylosis with possible S1 radiculopathy, an aggravation of cervical spondylosis, chronic pain syndrome and probable psychological consequences. He also referred to a report of a psychologist, Naomi Rose, dated
7 January 2021, which was within the respondent’s possession at that time. The respondent acknowledges receipt of reports from Naomi Rose but has not produced them.41.Mr McManamey submits that the respondent has acknowledged that it had been paying for psychological treatment since December 2019. Given the preapproval requirements, such treatment could only have been paid after notification of the condition and an acceptance by the respondent of the condition as being work related. Accordingly, the respondent had full knowledge of the applicant’s psychological condition.
42.Mr McManamey submits that the respondent would have been receiving reports from the treating doctors as part of the management of the claim. A report had been received from another treating psychologist, Colleen Sullivan in July 2020.
43.Mr McManamey submits that in its dispute notice dated 16 February 2021, the respondent acknowledged the diagnoses made by Dr Dyson, but it did not otherwise dispute his opinion in respect of the injury. It was also acknowledged that the applicant had been treated by Naomi Rose and that it had been strongly recommended that the applicant receive treatment from a psychiatrist.
44.Mr McManamey submits that according to Ms Angwin, the respondent did not have knowledge of the claim for psychological condition prior to 14 April 2021. However, it had had knowledge of the claim since November 2019, and possessed records that included the applications for treatment approval and the reports from doctors that supported that approval such as emails and a report from Naomi Rose. The respondent had not sought to place any of that information before the Commission.
45.Mr McManamey submits that the respondent accepts that it has arranged for an examination with Dr Whetton because it has no evidence to dispute the claim. He submits that whilst acceptance of liability to pay for treatment does not mean that liability cannot later be disputed, it does nonetheless show knowledge of the claim and an acceptance of the claim. That claim can now only be disputed if proper notice is given, which has not occurred.
46.Mr McManamey submits that the respondent will also need leave to rely upon any report from Dr Whetton. The admissibility of that report will depend upon its contents. There is no explanation why the respondent accepted liability for treatment of the psychological condition since November 2019, and it now seeks to dispute liability in the absence of any evidence to support that position.
47.Mr McManamey submits that there is also no explanation why liability for the neck was not disputed in the dispute notice or the prior proceedings. He submits that the applicant has not prepared the case on the basis that it is necessary to establish liability for the neck or the psychological condition, and to allow the amendment now would accordingly be prejudicial to the applicant, so the respondent’s application for leave to raise this dispute should be refused.
RESPONDENT’S SUBMISSIONS IN REPLY
48.Ms Angwin concedes that the respondent was on notice that the applicant was receiving psychological treatment. She submits that Ms Sullivan does not diagnose a work-related secondary psychological injury, nor does it comment on capacity.
49.Ms Angwin submits that in her report dated 18 February 2021, Ms Rose diagnosed chronic pain and indicated that the applicant “does not show work capacity”. She submits that chronic pain is not a psychological condition and the reference to incapacity appears to relate to the applicant’s physical condition, rather than any psychological condition.
50.Ms Angwin submits that the applicant had agreed to attend the medical appointment with Dr Whetton and the admissibility of his report was discussed at the telephone conference on
21 May 2021. The applicant subsequently refused to attend the appointment and the respondent has been prejudiced in obtaining evidence to respond to the claim and the report of Dr Ahmed.51.Ms Angwin submits that at no stage has the respondent conceded liability in respect of the alleged cervical spine, right leg and/or psychological injuries, noting that these injuries and/or conditions have not been formally claimed.
REASONS
Should leave be granted to the respondent to rely on un-notified matters? – s 289A (4) of the 1998 Act
52.Section 289A of the 1998 Act details restrictions as to when a dispute can be referred to the Commission. It provides:
“289A Further restrictions as to when a dispute can be referred to Commission
(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if—
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
53.In this matter, the insurer did not dispute that the applicant injured his neck and right leg, or developed a psychological condition as a result on the incidents on 6 May 2019, 2 July 2019 and/or 5 March 2020 in notices issued pursuant to ss 78 and 287A of the 1998 Act. Therefore, the respondent is not entitled to raise a dispute in respect of the issues identified by Ms Angwin unless “it is in the interests of justice to do so” in accordance with s 289A (4) of the 1998 Act.
54.In Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services[2], Deputy President Roche discussed the relevant principles governing leave applications pursuant to s 289A (4) of the 1998 Act. He stated:
[2] [2007] NSWWCCPD 227 (Mateus).
“In exercising her discretion under section 289A (4) the Arbitrator considered the following factors at paragraph 18 of her Reasons:
(a) the degree of difficulty or complexity to which the un-notified issues give rise;
(b) when the insurer notified that it wished to contest any un-notified issue/s;
(c) the degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability;
(d)any prejudice that may be occasioned to the worker, and
(e) any other relevant matters arising from the particular circumstances of the case.”
55.The Deputy President continued:
“In determining whether it was ‘in the interests of justice’ to allow the Respondent Employer to dispute injury, the Arbitrator correctly identified at paragraph 18 of her Reasons the matters relevant to the exercise of the discretion (see [38] above). To those matters I would add the following observations:
(a) a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved;
(b) any insurer seeking to dispute an un-notified matter is seeking to have a discretion exercised in its favour and, accordingly, must act promptly to bring the matter to the attention of the Commission and all other parties;
(c) any unreasonable or unexplained delay in giving notice of an un-notified matter will be relevant to the exercise of the discretion;
(d) in exercising its discretion the Commission may have regard to the merit and substance of the issue that is sought to be raised;
(e) in assessing prejudice to the worker it will be significant to consider when and in what circumstances the worker was first made aware of the un-notified issue that is sought to be raised;
(f) though it will be relevant to the exercise of the discretion to keep in mind that the Commission must act according to equity, good conscience and the substantial merits of the case, those matters will not be determinative, and
(g) the general conduct of the parties in the proceedings will also be relevant to the exercise of the discretion”[3].
[3] Mateus, [48].
56.Sections 61, 65, 66, 260 and 261 of the 1998 Act and Part 3 of the SIRA Workers Compensation Guidelines (the Guidelines), which apply to all claims after 1 March 2021 irrespective of when the claim was made, deal with an injured worker’s obligations to give notice of an injury and notice of a claim to his or her employer.
57.It is unclear whether the applicant submitted a claim form to the insurer, although the insurer enclosed a claim form when it wrote to the applicant on 10 May 2019 regarding the commencement of provisional payments. The insurer identified the applicant’s injury as “low back pain” due to injury sustained on 6 May 2019.
58.According to Ms Angwin, the applicant failed to serve a notice of claim in respect of any injury or condition other than in respect of his lumbar spine. Such a submission has not been challenged by the applicant, and Mr Ahmed did not comply with my Direction to file and serve any notice of claim that was made on the respondent and/or its insurer.
59.In the absence of such evidence, one can infer that such a notice was not served. Therefore, it seems that the applicant has failed to comply with the notice provisions in the 1998 Act and the Guidelines regarding the description of the injury to his neck and right leg, and the consequential psychological condition, which might well jurisdictional issues. Of course, the failure to comply with the sections can be excused in certain circumstances if there is no prejudice to the employer.
60.It is true that the applicant has included additional injuries in the current Application. There is no evidence that the respondent was advised of these injuries and the claim before receipt of the Application. I agree that the amendments to the alleged injuries sustained by the applicant have substantially altered the nature of the claim that the respondent is expected to meet. Further, there is a lack of contemporaneous complaints regarding any injury to or any symptoms in the applicant’s neck and right leg until late 2019 and the medical certificates seem to only refer to injuries to the applicant’s lower and upper back.
61.Mr McManamey’s submissions focus on the secondary psychological condition and there is little comment about the dispute that the respondent wishes to raise regarding the additional dates of injury and the injuries to the applicant’s neck and right leg. His submissions regarding these matters are limited to the lack of the notification of a dispute in the dispute notices regarding the neck and in the prior proceedings. He submits that the applicant has not prepared the case on the basis that it is necessary to establish liability for the neck or the psychological condition.
62.In my view, such a submission has little merit. There is no evidence to suggest that the respondent accepted liability for neck and right leg injuries, even though there is reference to neck symptoms in the notes of the treating clinicians in late 2019 and early 2020. The insurer only accepted liability for a low back injury. Further, these injuries were not relied upon in the prior proceedings and there is no evidence that a claim was made in respect of these body parts, so common sense would suggest that the applicant needed to prepare his case accordingly.
63.Given the opinions expressed by Dr Dryson and more recently by other treating doctors, it would seem that the applicant has evidence to address any liability dispute regarding injuries to these body parts, so he will not suffer any significant prejudice if leave is granted.
64.The situation in respect of the secondary psychological condition is somewhat different. Ms Angwin submits that the applicant did not serve a notice of claim or a claim form in relation to any consequential psychological condition, and it was not until the service of the Application, which included the report of Dr Ahmed, and following discussions at telephone conference in the prior proceedings, that the respondent was put on notice that the applicant was alleging that he was incapacitated as a result of a secondary psychological condition.
65.It is true that the respondent was paying for psychological treatment provided by Ms Rose and Ms Sullivan. The report of Ms Sullivan attached to the applicant’s submissions, which is not in evidence, does not identify the cause of the applicant’s symptoms, nor does it suggest that he was incapacitated. Ms Sullivan considered that the applicant’s condition did not warrant a referral to a psychiatrist.
66.The clinical notes of Ms Rose that are attached to the applicant’s submissions are presently not in evidence, which is surprising. It would seem that these were provided to the insurer in February 2021. According to Ms Rose’s report dated 18 February 2021, the applicant had no work capacity as a result of chronic pain, not as a result of his reported psychological symptoms of depression. However, the clinical notes report on-going psychological issues.
67.Although Mr McManamey submits that the respondent would have been receiving reports from the applicant’s treating doctors, and psychological treatment could only have been paid after notification of the condition and an acceptance by the respondent of the condition as being work related, this is mere speculation on his part.
68.Whilst there is reference to reports or clinical notes being sent to various stakeholders, that does not necessarily mean that the reports were received. There is no evidence from the insurer regarding acceptance of liability or approval of the cost of such treatment. All that we know is that the insurer paid for treatment.
69.It is true that the insurer would have been aware of the diagnoses expressed by Dr Dryson in his report dated 29 January 2021, but the history of injury that this doctor recorded only concerned the applicant’s back. The symptoms were recorded as radiating from the lumbar spine down the right leg and extending up the spine to the applicant’s thoracic spine and neck. The fact that he diagnosed an aggravation to cervical spondylosis and “probable psychiatric consequences” in the absence of any history of injury does not mean that his views would have carried weight with the insurer, particularly as the doctor is an occupational physician and not a psychologist or psychiatrist.
70.The authorities confirm that the voluntary payment of compensation does not mean that an insurer has accepted liability and that it is barred from raising a liability dispute.
71.In Sinclair, Spigelman CJ (Hodgson and Bryson JJA agreeing) stated:
“There is some authority for the proposition that payment of compensation is prima facie evidence of a compensable injury: see Vergis v Brownbuilt Ltd (1973) 5 SASR 591; Christiansen v JW Simpson & Co Pty Ltd [1971] SASR 412; Nizich v Royal Prince Alfred Hospital [1973] WCR 291; Way v Penrikyber Navigation Colliery Co Ltd[1940] 1 KB 517.
Nevertheless, in my view, this submission should be rejected.
First, it would involve a substantial stretch to apply these principles to the present circumstances that involve the complex interaction of statutory tests. While it might be appropriate to attach some small weight to such an admission in cases involving simple questions of fact (e.g. whether there was an employment injury), it would not be appropriate to develop that principle to cases of this complexity. In particular, it would be inappropriate to see such action as an admission that the statutory ‘whole or predominant test’ is established.
Secondly, any weight that could be attached to such an admission must be of the slightest weight given that medical reports have been tendered.
Finally, I would particularly reject any suggestion that an employer might adversely affect their position in the Commission by not fully investigating each possible defence prior to making their first payment. Such an outcome would have the effect of deterring precisely the kind of reasonable behaviour that beneficial legislation such as the workers compensation scheme seeks to encourage.”[4][4] Sinclair, [88] to [93].
72.This principle was confirmed in the Commission by Deputy President Roche in Begnell v Super Start Batteries Pty Ltd[5].
[5] [2009] NSWWCCPD 19.
73.Mr McManamey submits that the respondent had knowledge of the psychological claim and this claim can only be disputed if proper notice has been given. Whilst it seems that the insurer had knowledge of the applicant’s psychological issues, the applicant’s reliance on this condition in respect of his claim for compensation was not divulged to the respondent until the telephone conference in the prior proceedings. At that stage, the respondent opposed the amendment to the pleadings and the proceedings were discontinued. Therefore, it could not be said that the applicant had not been given proper notice of the dispute.
74.In order to meet the claim, the respondent provided the applicant with three examination options, and the applicant agreed to attend the appointment with Dr Whetton.
75.At the telephone conference, I was advised that the applicant would be attending this appointment, so I set the matter down for hearing in seven weeks’ time to enable the report to be served and addressed, if necessary, by the applicant. I indicated that the admissibility of the report would be dealt with at the arbitration hearing. Regrettably, the applicant later refused to attend the examination, and this has resulted in prejudice to the respondent as it has not been afforded the opportunity to respond to the report of Dr Ahmed. Whether the proceedings can continue in these circumstances will be a matter for discussion at the hearing.
76.According to Mateus, one needs to consider the degree of difficulty or complexity that the un-notified issues will cause. In this matter, the applicant has alleged that he injured his neck and right leg, and that he developed a consequential psychological condition. His recent medical evidence deals with his alleged injuries and the condition, so from the applicant’s perspective, they are not greatly difficult or complex.
77.The respondent acted promptly and without delay when it informed the applicant and the Commission that it was disputing injury to the affected body parts at the telephone conferences before Member Perry and before me. In the circumstances, I am satisfied that the respondent did its upmost to fulfil its statutory obligation to notify the applicant of the dispute via its solicitor.
78.It is true that the applicant might suffer some prejudice if leave is granted to the respondent to raise un-notified issues, but he was made aware of the issues in the prior proceedings and at the telephone conference before me. He has the benefit of evidence addressing these issues, and the prejudice to the respondent will be far greater if the application for leave is declined.
79.Given the lack of contemporaneous evidence to support the applicant’s allegations of injury to this neck and right leg, and the uncertainty regarding the cause of any consequential psychological condition, I am satisfied that there is merit in the insurer’s decision to dispute liability and it has not made the decision without proper and careful consideration of the evidence.
80.Section 354 (3) of the 1998 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”.
81.On the basis of the evidence currently before me, I am satisfied that there is merit in the respondent’s application and in the interests of justice and having regard to the greater prejudice that the respondent will suffer, I grant leave to the respondent pursuant to
s 289A (4) of the 1998 Act to dispute that the applicant sustained an injury to or consequential condition in his neck and right leg, or aggravation of a disease, and a consequential psychological condition as a result of injury or aggravation of a disease on
6 May 2019, 2 July 2019 and 5 March 2020.
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