Cummings v Maryland Motors Pty Ltd t/as John Young Holden
[2023] NSWPIC 497
•22 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Cummings v Maryland Motors Pty Ltd t/as John Young Holden [2023] NSWPIC 497 |
| APPLICANT: | Andrew Cummings |
| RESPONDENT: | John Young Holden |
| PRINCIPAL MEMBER: | Glenn Capel |
DATE OF DECISION: | 22 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Claimant filed Form 7 Application for Assessment by a Medical Assessor; claimant unable to attend scheduled appointment due to his injuries; defendant conceded 15% threshold, so no longer any dispute before the Commission; claimant’s failed to file an Election to Discontinue as directed; no attendance by the claimant and his solicitor at a preliminary conference; Held – no dispute; proceedings dismissed on the grounds that they were frivolous or vexatious or otherwise misconceived or lacking in substance. |
| DETERMINATIONS MADE: | The Commission determines: 1. There is no dispute between the parties. 2. The claimant has failed to file an Election to Discontinue. The Commission orders: 3. Proceedings dismissed on the grounds that they are frivolous or vexatious or otherwise misconceived or lacking in substance. |
STATEMENT OF REASONS
BACKGROUND
Andrew Cummings (the claimant) is 63 years old and was employed by John Young Holden (the defendant) as a warranty technician.
There is no dispute that the claimant sustained injuries to his left knee, ankle, hip and back on 23 May 2000.
Liability was accepted by AAI Ltd t/as GIO (the insurer). Payments of weekly compensation and medical expenses have been paid as well as lump sum compensation.
On 31 March 2022, the claimant’s solicitor, Mr Adams, sought a concession from the insurer that the claimant’s permanent impairment exceeded 15% whole person impairment. The insurer responded on 7 April 2022 that it declined to make such a concession.
On 27 June 2023, Mr Adams filed a Form 7 - Application for Assessment by a Medical Assessor seeking an assessment by a Medical Assessor with respect to a threshold dispute for work injury damages pursuant to s 314 of the Workplace Injury Management andWorkers Compensation Act 1998 (1998 Act).
On 14 July 2023, the defendant’s solicitor, Mr Siva, filed a Response.
An appointment was arranged by the Personal Injury Commission (Commission) with the Medical Assessor, Dr Robert Kuru, on 3 August 2023.
On 30 June 2023, the Commission requested details from the claimant’s solicitor regarding all previous settlements. There was no response to this email.
On 1 August 2023, Mr Adams informed the Commission that the claimant would not be able to attend the medical examination with Dr Kuru. He advised that no further appointments should be arranged until the Commission heard from him. No reasons were provided.
On 1 August 2023, the Commission requested an explanation as to why the claimant could not attend the examination. There was no response.
On 2 August 2023, the Commission again requested an explanation as to why the claimant could not attend the examination as well as an indication as to when it was expected that the claimant would be able to attend.
On 2 August 2023, Mr Adams advised the Commission that he had made an offer to the insurer’s solicitor and requested that any appointment be postponed for a reasonable time until late October 2023. He explained that the claimant was housebound due to his injuries and would not be able to attend.
On 2 August 2023, the Commission advised Mr Adams that the appointment would be cancelled.
On 3 August 2023, the Commission advised Mr Adams that it was not appropriate to defer the examination with the Medical Assessor until late October 2023 in the absence of medical evidence. The parties were given 21 days to advise the Commission about the claimant’s ability to proceed.
On 8 August 2023, Mr Siva advised the Commission and Mr Adams that the insurer now conceded that the claimant passed the threshold under s 151H of the Workers Compensation Act 1987 (1987 Act). In the circumstances, an examination by a Medical Assessor was no longer necessary.
On 8 August 2023, the parties were advised that the claimant should file an Election to Discontinue in order to finalise the proceedings.
On 16 August 2023, the Commission asked the parties when an Election to Discontinue would be filed. There was no response to this email.
On 31 August 2023, the Commission asked the parties when an Election to Discontinue would be filed. There was no response to this email.
On 8 September 2023, the Commission requested that the parties file an Election to Discontinue within seven days, otherwise the proceedings would be struck out. There was no response to this email.
On 19 September 2023, the Commission informed the parties that the matter would be listed for a preliminary conference at 12 pm on 20 September 2023.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter was listed for a preliminary conference before me on 20 September 2023. There was no appearance by the claimant or Mr Adams. Mr Siva appeared on behalf of the defendant. The insurer was represented by Ms Kruse.
Mr Siva confirmed that Mr Adams had not been in contact with him.
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, and
(b) Response and attached documents.
I have also viewed emails that have passed between the Commission and the parties.
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 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 emails that have been received by the Commission confirm that there is no longer any dispute that warrants and examination by a Medical Assessor. That being the case, there is no reason why these proceedings should remain on foot.
Mr Adams has failed to file the Election to Discontinue as directed by the Commission. He has not responded to emails and did not attend the preliminary conference with his client. This is unacceptable.
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 there is currently no dispute between the parties and they are otherwise misconceived or lacking in substance.
FINDINGS
There is no dispute between the parties.
The claimant has failed to file an Election to Discontinue.
ORDERS
Proceedings dismissed on the grounds that they are frivolous or vexatious or otherwise misconceived or lacking in substance.
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