Dunn v Westruss Manufacturing Pty Ltd
[2023] NSWPICPD 20
•20 April 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Dunn v Westruss Manufacturing Pty Ltd [2023] NSWPICPD 20 |
APPELLANT: | Sydney Kevin George Dunn |
RESPONDENT: | Westruss Manufacturing Pty Ltd |
INSURER: | Employers Mutual NSW Limited |
FILE NUMBER: | A1-W2857/22 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 20 April 2023 |
ORDERS MADE ON APPEAL: | 1. Leave to appeal the decision of Member Young dated 13 July 2022 is refused. 2. The matter is remitted to Member Young to make such directions as to the further conduct of this matter as is necessary for the just, quick and cost-effective settlement of the real issues in dispute. |
CATCHWORDS: | WORKERS COMPENSATION – interlocutory appeal – failure to determine claim for whole person impairment – s 281 of the Workplace Injury Management and Workers Compensation Act 1998 - leave to appeal denied - s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr L Morgan, counsel | |
| Toby Tancred Solicitor | |
| Respondent: | |
| Mr C Tanner, counsel | |
| Moray & Agnew Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Mr P Young |
DATE OF Member’s DECISION: | 13 July 2022 |
INTRODUCTION
The appellant worker was injured on 24 October 2019. He allegedly sustained a primary psychological injury whilst unloading a truck wherein other physical injuries were suffered after timber trusses fell on him. Whilst the nature of the injuries accepted by the respondent insurer are unclear in these proceedings, the respondent insurer commenced the payment of weekly compensation and of medical or related treatment expenses. The chronology of events set out in the appellant’s submissions[1] is not in dispute, save for one matter,[2] which as I understand it is disputed by the respondent. Based upon a report of Dr Graham George, consultant psychiatrist, dated 15 February 2022,[3] the appellant claims 15% whole person impairment with respect to the primary psychological injury pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
[1] Appellant’s appeal submissions dated 9 August 2022, [8]–[22].
[2] Appellant’s appeal submissions dated 9 August 2022, [11].
[3] Application to Resolve a Dispute (ARD), p 5.
The essence of the dispute before the Member involved the following proposition. The appellant had made a claim under s 66 of the 1987 Act on the insurer on 24 February 2022. The respondent insurer, it is maintained, did not respond to the claim consistent with the obligations in s 281 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). As a consequence, the appellant filed proceedings in the Personal Injury Commission (Commission) on 10 May 2022. The appellant asserted that in the absence of the respondent complying with its obligations under s 281 of the 1998 Act, orders based on the appellant’s evidence alone should be entered in his favour. The appellant also asserted that he was not obliged to attend a medical examination arranged by the respondent. The respondent resisted this course of action, noting that it had arranged for the appellant to be medically examined and was entitled to schedule such an examination consistent with s 119 of the 1998 Act. I would note, with some relief, that subsequent to the hearing before the Member, the appellant did attend a medical examination at the respondent’s request.
The Member made orders on 13 July 2022 suspending the appellant’s weekly compensation and payment of medical expenses pursuant to s 119 of the 1998 Act until such time as he attended an independent medical examination scheduled by the respondent. The Member vacated the hearing date set for 4 August 2022. The respondent was ordered to arrange the medical examination before 30 September 2022, and parties were given liberty to apply to the Commission in respect of the vacated hearing date or the scheduled Medical Assessment in November 2022.
The appellant lodged an appeal against the Member’s orders of 13 July 2022 which effectively declined the appellant’s application that the matter be dealt with in the manner he had proposed.
After this matter was allocated to me, I caused enquiries to be made of the parties about whether Member Young’s orders of 13 July 2022 had been complied with. By email dated 12 April 2023, the respondent’s solicitor confirmed the following:
(a) that the appellant had attended a medical examination on 15 August 2022 as arranged by the respondent and that the report had been served upon the appellant’s solicitors, and
(b) weekly benefits and treatment expenses continue to be paid to the appellant.
The appellant’s solicitor has confirmed this position, though purported that it was unclear whether the weekly benefits continue to be paid in respect of the appellant’s physical injuries or the primary psychological injury which is subject of the claim for whole person impairment before the Commission. Notwithstanding this medical examination taking place in accordance with Member Young’s order, neither party has applied to the Commission to reinstate the hearing before the Member or the Medical Assessment.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
A brief virtual hearing on MS Teams was held on Wednesday 19 April 2023 to clarify a few short matters with the parties, but otherwise this matter will be dealt with on the papers.
THRESHOLD MATTERS
Both parties agree that Member Young’s decision is interlocutory and as a result leave is required in order for the appellant to pursue this appeal.[4] The touchstone for the grant of leave is found in the second sentence of s 352(3A) of the 1998 Act which says as follows:
“The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
[4] Section 352(3A) of the 1998 Act.
On this appeal, the appellant asserts two errors, namely, the Member fell into error of law in:
(a) failing to determine the substantive issue between the parties; or
(b) if there was a determination of the substantive issue between the parties, failing to provide any adequate reasons for same.
The “substantive issue”, says the appellant, was the impairment dispute and the appellant’s desire to have the matter heard on the basis of his evidence alone, given the respondent’s failure to determine the claim.[5]
[5] Appellant’s appeal submissions dated 9 August 2022, [2.4.15].
In Collingridge v IAMA Agribusiness Pty Ltd,[6] Roche DP said that the discretion to be exercised under s 352(3A) involved “a consideration of the nature of the dispute and the orders sought on appeal.”[7] Pursuant to s 352(3A) of the 1998 Act, the Commission is not to grant leave to appeal against an interlocutory decision unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. The nature of the dispute in this matter is as articulated by the appellant’s “substantive issue” which I have set out above. The orders sought in this appeal are for the revocation of the Certificate of Determination dated 13 July 2022 and that the matter be remitted to the Member to determine the dispute.
[6] [2011] NSWWCCPD 31 (Collingridge).
[7] Collingridge, [17].
The substantive issue raised by the appellant is without merit. The claim that the appellant was entitled to have his case heard and determined on the basis of his evidence only is an issue or argument that was created by the appellant. It is, at best, only obliquely related to the real issue in dispute, which is a whole person impairment dispute. I am not satisfied that determining this appeal is necessary, or desirable, for the proper or effective determination of the whole person impairment dispute.
It would appear that the appellant is effectively asserting a right to have a default judgment entered in his favour due to the respondent’s apparent failure to comply with its obligations pursuant to s 281 of the 1998 Act. Such a “right” does not exist and is entirely contrary to the Commission’s statutory mandate.[8]
[8] See ss 3(c) and 42(1) and (3) of the 2020 Act.
If the respondent has breached s 281, and I make no comment or finding in this regard, the remedy is found in the offence provisions commencing at s 283 and following of the 1998 Act. Insurers are reminded of the importance of complying with their obligations under the legislation. Nonetheless, the Commission may hear a dispute about a claim for lump sum compensation where the person on whom the claim is made “fails to determine the claim as and when required by [the 1998] Act”.[9]
[9] Section 289(3) of the 1998 Act.
Once a dispute is before the Commission, the provisions of the 2020 Act, the Commission’s Rules and Procedural Directions as well as the Member’s independence and discretion as a decision-maker govern how a dispute is to be conducted. In particular, the appellant’s assertion that he has a right for the matter to be determined solely on the basis of his evidence alone is contrary to the procedure envisaged by s 43 of the 2020 Act and in particular s 43(3) of that Act.
The appellant points to the prospect of a significant delay in the proceedings.[10] I do not accept this proposition. The appellant’s claim is a relatively straightforward claim for whole person impairment. The Commission deals with such applications routinely, which usually involve an expert medical assessment and the issuing of a Certificate of Determination where there is a failure to determine. The only cause of delay in this matter before the Commission has been occasioned by the prosecution of the “substantive issue” as asserted by the appellant.
[10] Appellant’s appeal submissions dated 9 August 2022, [9]–[10].
I decline to exercise my discretion to grant the appellant leave. The “substantive issue” sought to be argued is without merit. Additionally, the appellant’s own conduct of this matter in the Commission, effectively pursuing an argument aimed at shutting out the respondent contrary to the terms of the 2020 Act, does not warrant the granting of leave. The prosecution of this argument and its associated costs and delays is contrary to the objects of the 2020 Act and its guiding principle.[11]
[11] Section 42(1) of the 2020 Act.
DECISION
Leave to appeal the decision of Member Young dated 13 July 2022 is refused.
The matter is remitted to Member Young to make such directions as to the further conduct of this matter as is necessary for the just, quick and cost-effective settlement of the real issues in dispute.
Judge Phillips
President
20 April 2023
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