Corliss v State of New South Wales (NSW Police Force)
[2023] NSWPIC 566
•26 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Corliss v State of New South Wales (NSW Police Force) [2023] NSWPIC 566 |
| APPLICANT: | Danielle Corliss |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| PRINCIPAL MEMBER: | Glenn Capel |
| DATE OF DECISION: | 26 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for lump sum compensation in respect of seven separate injuries; dispute regarding notice of injury and notice of claim regarding some injuries; applicant successful; claim remitted for referral to a Medical Assessor; Certificate of Determination issued ordering the respondent to pay lump sum compensation and costs; applicant subsequently sought an uplift for complexity in accordance with Table 4 of Part 2 of Schedule 6 of the Workers Compensation Regulation 2016; Lake v Hunter Institute of Technology – NSW TAFE considered and discussed; Held – matter complex; certified 10% uplift for complexity for both parties. |
| DETERMINATIONS MADE: | The Commission determines: 1. The respondent to pay the applicant’s costs as agreed or assessed. I certify a 10% uplift for both parties pursuant to Schedule 6 Part 2 Table 4 Item 4 of the Workers Compensation Regulation 2016 due to the issues arising from this claim. |
STATEMENT OF REASONS
BACKGROUND
An arbitration hearing was held in this matter by Member Burge on 5 July 2023. He issued a Certificate of Determination (COD) on 11 July 2023.
In his statement of reasons, Member Burge noted that the only issue in dispute was whether the applicant was precluded from recovering compensation by reason of the operation of
ss 254 and/or 261 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act).Member Burge issued a COD in the following terms:
“The Commission determines:
1. The claim for compensation in respect of the injury suffered on 1 January 2019 by way of acute traumatic right lateral epicondylitis is discontinued.
2. Leave is granted to amend the date of injury to the lumbar spine by deleting the deemed date of injury of 5 July 2020 and substituting the date ‘26 October 2021 (deemed)’.
3. The claims for permanent impairment compensation in respect of the following injuries are remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from them:
Date of Injury
Body Systems Referred
Method of Assessment
8/10/08
Right upper extremity (hand and forearm)
WPI
1/01/09
Right lower extremity (knee and leg, scarring)
WPI
20/04/09
Left upper extremity (hand and thumb)
WPI
11/01/11
Left upper extremity (elbow)
WPI
15/12/17
Right lower extremity (knee)
WPI
26/10/21
Lumbar spine
WPI
4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following:
(a)this Certificate of Determination and Statement of Reasons;
(b)Application to Resolve a Dispute and attachments;
(c)Reply and attachments, and
(d)applicant’s Application to Admit Late Documents dated 11 May 2023.”
The applicant, Ms Corliss, was examined by a Medical Assessor, Dr T Mastroianni, who provided a Medical Assessment Certificate (MAC) on 12 September 2023.
On 17 October 2023, I issued a COD as follows:
“The Commission determines:
1. The applicant suffers 0% permanent impairment resulting from injury on 20 April 2009.
2. The applicant has no entitlement to lump sum compensation resulting from injury on 20 April 2009.
The Commission orders:
3. The respondent pay the applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987:
a) $1,375 in respect of 1% permanent impairment resulting from injury on 8 October 2008;
b) $1,375 in respect of 1% permanent impairment resulting from injury on
1 January 2009;
c) $1,375 in respect of 1% permanent impairment resulting from injury on 11 January 2011;
d) $1,375 in respect of 1% permanent impairment resulting from injury on 15 December 2017;
e) $10,106.25 in respect of 7% permanent impairment resulting from injury on 26 October 2021.4. The respondent pay the applicant’s costs as agreed or assessed.”
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
On 17 October 2023, the applicant’s solicitor wrote to the Personal Injury Commission (Commission) and requested that a preliminary conference be convened so that he could apply for a complexity uplift with regards to costs.
On 17 October 2023, I directed that the applicant file and serve written submissions in respect of the uplift by 5 pm on 20 October 2023, and the respondent was directed to file submissions by 5 pm on 25 October 2023, following which a decision would be made.
The applicant filed submissions on 18 October 2023. The respondent did not file any submissions.
ISSUE FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether the applicant and/or the respondent are entitled to an uplift for complexity in respect of their costs, and if so, at what level.
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) the Application with attached documents;
(b) Reply with attached documents;
(c) audio recording of the arbitration hearing on 5 July 2023;
(d) COD dated 11 July 2023;
(e) Medical Assessment Certificate dated 12 September 2023, and
(f) COD dated 17 October 2023.
SUBMISSIONS
Applicant’s submissions
The applicant’s solicitor made the following submissions:
(a) the Application involved seven injuries to different body parts and systems. It contained a statement from the applicant, seven letters of demand, two reports of Dr Oates, radiology and physiotherapy reports and the clinical notes of treating physiotherapist and doctors extending back to 2009;
(b) the insurer issued s 78 notices on 24 December 2021 and
23 December 2022 in which it disputed all of the applicant’s injuries. At the preliminary conference on 8 May 2023, the respondent confirmed that it pressed the dispute regarding notice of injury and notice of claim in accordance with ss 254 and 261 of the 1998 Act;(c) at the hearing on 5 July 2023, the applicant discontinued the claim in respect of the right elbow;
(d) the applicant’s specialist, Dr Oates, was not able to deal with all of the injuries and required two appointments and two reports;
(e) Dr Wallace for the respondent did not carry out thorough or appropriate examination of the applicant. A letter was sent to the respondent’s solicitor identifying the shortcomings in Dr Wallace’s report and making a reasonable offer of settlement;
(f) the applicant’s “historical claims” required extensive research and review of medical records dating back as far as 2008;
(g) the applicant’s “nature and conditions claims” required extensive research and review of medical records, as well as obtaining detailed statements from the applicant and from corroborating witnesses;
(h) the matter went to a preliminary conference, a hearing and a medical assessment. Each of which stage generated further consideration by the applicant’s representatives of the changing or evolving aspects of the claim. The matter involved extensive factual and some legal analysis;
(i) the MAC required extensive and careful review to determine whether appeals should be lodged in respect of the orthopaedic injury to the right knee and the scarring injury, and
(j) the matter is at the mid-level of complexity justifying an uplift of 15%.
REASONS
Table 4 of Pt 2 of Sch 6 of the Workers Compensation Regulation 2016 (the 2016 Regulation) permits an increase in the flat rate expressed in Table 1 in matters that involve some complexity.
Clause 11 of Pt 1 of Sch 6 of the 2016 Regulation sets an upper limit, and the maximum payable is determined within the range from nil to 30%, by reference to any applicable direction issued by the President or the Commission rules and a consideration of the nature and extent of the service performed.
The uplift does not apply to lump sum compensation quantum disputes, but the present matter involved a liability dispute regarding ss 254 and 261 of the 1998 Act, bringing it within Item F in Table 1 of Pt 1 of Sch 6 of the 2016 Regulation.
In Lake v Hunter Institute of Technology – NSW TAFE,[1] Registrar Parsons (as he was then known) observed that:
“‘Complexity’ is not defined in the workers compensation legislation, but in the
context of proceedings in the Commission, the term indicates an intricacy of fact, law and legislation that is higher than that usually encountered in other proceedings for workers compensation disputes. Factors to be considered include preparation, skill, care, time, novelty and difficulty of a case in terms of legal, medical, factual, procedural, evidentiary and multiplicity of issues.”[2][1] [2010] NSWWCC 437, (Lake).
[2] Lake, [27].
Whilst I agree that there was a degree of complexity due to the fact that the applicant relied on seven separate injuries, I do not accept that there was any intricacy of fact or law. There was a discrete issue in dispute.
It was unnecessary to serve seven separate notices of claim on EML when one letter would have sufficed. This resulted in unnecessary duplication that could have easily been avoided.
It is also not entirely clear from the evidence why it was necessary for Dr Oates to have two appointments and to complete two reports. One would have thought that only one appointment and one report was appropriate. Perhaps better scheduling of the initial appointment would have avoided this.
The number of documents filed in this matter were not extensive, being 325 pages in total. It is unclear whether there was other evidence obtained that was not relied upon in these proceedings.
There was a detailed 12-page statement from the applicant that would have taken some time to collate and finalise. Although extensive, it did not address the matters identified in the dispute notice regarding ss 254 and 261 of the 1998 Act. Had this been attended to, it would not have been necessary to obtain a supplementary statement from the applicant.
There is reference to obtaining detailed statements from corroborating witnesses. Given the matters in dispute, it is unclear why such statements were required. Certainly, there were none filed in the Commission.
The insurer challenged the degree of whole person impairment claimed by the applicant in respect of her accepted injuries and those that had not previously been claimed. This is common in lump sum assessment disputes that come before the Commission and did not raise any novel issues.
In its two dispute notices, the insurer disputed liability in respect of the injuries for which no claim had been made (the back, neck, right shoulder and right elbow) in accordance with
ss 254 and 261 of the 1998 Act. It did not dispute that the injuries had not occurred so no further medical and factual evidence was required apart from evidence addressing the notice of claim and notice of injury issues. The claim in respect of the right elbow was withdrawn at the hearing.Given the discrete nature of the dispute identified in the dispute notices, there was no real need to conduct extensive research and review of medical records which only numbered about 179 pages.
The applicant’s solicitor sent a letter to the respondent’s solicitor in which he expressed his views about the report of Dr Wallace. His comments about Dr Wallace’s assessments included “pathetic and unsatisfactory” and he challenged how the doctor carried out his examination. This was on the background of Dr Oates conducting his assessment via Telehealth. It is admirable that the applicant’s solicitor proposed a compromise resolution, but in my view, this could have been put in less challenging terms and in a more concise fashion.
I agree that the matter proceeded through the Commission in the normal fashion following the filing of the Application. I have listened to the recording of the arbitration hearing and note that the submissions of both counsel were completed in under 12 minutes. Member Burge reserved his decision, and he issued a COD six days later.
Apart from the fact that there were seven separate injuries and the dispute related to notice issues, in my view it would not have required extensive factual and legal analysis over and above that required for the standard lump sum claim when there were issues in respect of
ss 254 and 261 of the 1998 Act.There was nothing intricate about the facts or the law. The issue to be addressed was limited to notice of injury and notice of claim in respect of certain injuries that had not been the subject of a claim. This would usually warrant a statement from a worker and/or from his or her solicitor explaining why there had been non-compliance with the statutory provisions.
The applicant’s solicitor submitted that the MAC required extensive and careful review to determine whether appeals should be lodged in respect of the right knee (1%) and the scarring (0%). I do not believe that there is merit in this submission.
The applicant’s claim was not extensive, the assessment by Dr Mastroianni largely mirrored that of the applicant’s qualified specialist. His MAC contained a detailed description of the applicant’s complaints, his physical findings, his opinion and his assessment. An examination of the MAC in respect of the claims for scarring, left hand and right knee would not have required any higher degree of care and scrutiny than that required of a comparative assessment.
In Lake, Mr Lake’s solicitor sought an uplift for complexity. The claim had involved weekly payments, medical expenses and lump sum compensation.
At the telephone conference, the claim for weekly compensation was discontinued and the medical expenses claim was resolved. The lump sum claim was referred for assessment to an Approved Medical Specialist, and later proceed to a Medical Appeal Panel. The worker received lump sum compensation in respect of 4% whole person impairment.
Registrar Parsons declined to certify an uplift for complexity because he did not accept that the preparation of the case evidenced the care and skill to warrant an increase for complexity. He commented that better preparation, care and skill in settling the pleadings and the compensation claim may have avoided the difficulties that Mr Lake’s solicitor encountered and upon which he relied in support of the claim for an increase in party/party costs.
I consider that the applicant’s solicitor has realistically acknowledged that the matter did not warrant a complexity rating at the upper end of the scale. However, I would not rate the complexity of the matter as high as warranting a 15% uplift.
Having regard to the fact that there were seven injuries claimed, the fairly standard nature of the evidence, the limited matters in dispute, the need for a hearing and the ultimate outcome, in the exercise of my discretion, I propose to certify a 10% uplift for complexity for both parties.
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