Chetty v Top Knot Projects Pty Ltd - [2021] NSWPIC 202

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…

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.

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Details

Case: [2021] NSWPIC 202
Decision Date: 23 June 2021

CaseChat Overview and Summary

In the case of Chetty v Top Knot Projects Pty Ltd, the applicant sought compensation for injuries sustained during employment. The dispute involved the applicant's ability to rely on additional matters in proceedings, following an objection by the respondent to an amendment in earlier proceedings. The case was heard in the Workers Compensation Court of Queensland. The primary issue before the court was whether the respondent could rely on previously un-notified matters, particularly whether it could contest the applicant’s claims of secondary psychological conditions and additional injuries.

The court examined the statutory provisions under section 289A (4) of the Workers Compensation Act 1998. It considered the principle that a party should not be allowed to raise new matters unless there was a good reason, such as a dispute on the matter or a genuine belief that the matter would be raised. The respondent argued that it had not previously disputed the alleged injuries and psychological condition, despite having paid for treatment, but sought to challenge these claims now. The applicant opposed this, citing the respondent's prior payment of treatment as an implicit acknowledgment of the claims.

In reaching its decision, the court referred to precedents such as Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services, Department of Education & Training v Sinclair, and Begnell v Super Start Batteries Pty Ltd. The court found that the respondent's payment for psychological treatment did not constitute an explicit acknowledgment of the secondary psychological condition. The court concluded that the respondent was entitled to challenge these claims as it had not previously disputed them. Therefore, the court granted leave to the respondent to rely on the un-notified matters, allowing the respondent to contest the secondary psychological condition and the additional injuries.

Orders