Dunn v Westruss Manufacturing Pty Ltd

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

1. 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.

2. 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…