Fuelink Pty Ltd v Ballestin
[2015] NSWWCCPD 30
•5 May 2015
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT | |||
| CITATION: | Fuelink Pty Ltd v Ballestin [2015] NSWWCCPD 30 | ||
| APPLICANT DEFENDANT: | Fuelink Pty Ltd | ||
| RESPONDENT CLAIMANT: | Nives Ballestin | ||
| FILE NUMBER: | 631/15 | ||
| DATE OF DECISION: | 5 May 2015 | ||
| SUBJECT MATTER OF DECISION: | Application to Strike Out a Pre-Filing Statement; s 151DA of the Workers Compensation Act 1987 | ||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Applicant Defendant: | Sparke Helmore Lawyers | |
| Respondent Claimant: | Mackenzie & Vardanega Solicitors | ||
| ORDERS MADE ON APPLICATION: | 1. The Application to Strike Out a Pre-Filing Statement is dismissed. 2. I grant the parties liberty to apply, within seven days, on the question of costs. | ||
INTRODUCTION
This matter concerns an application filed by the applicant defendant, Fuelink Pty Ltd (Fuelink), seeking an order pursuant to s 151DA of the Workers Compensation Act 1987 (the 1987 Act) that the respondent claimant’s Pre-Filing Statement be struck out.
BACKGROUND TO THE APPLICATION
The claimant, Ms Nives Ballestin, was employed by Fuelink as a customer service team leader at a refuelling depot for large trucks and diesels in Griffith. Part of her duties included serving customers and selling products such as 20 litre drums of oil, additives and grease.
On 1 September 2006, Ms Ballestin served a customer at the depot who wanted to purchase a 20 litre drum of oil. The drums of oil were stacked on top of each other; about four or five high. The customer wanted to see the use by date and, as Ms Ballestin was inspecting the drums, one fell on to Ms Ballestin from above head height. Ms Ballestin took the full weight of the drum as it fell and as a result suffered an injury to her back and right shoulder.
As a result of ongoing pain arising from the injury, Ms Ballestin has undergone various forms of treatment. She underwent a periradicular injection and cortisone injections in her right shoulder. She has also undergone physiotherapy, hydrotherapy and counselling.
Ms Ballestin has not worked since the injury and has been in receipt of weekly payments of compensation since that time.
On 11 June 2009, Ms Ballestin attended on Dr John Bosanquet, orthopaedic surgeon, at the request of Fuelink’s insurer, Allianz Australia Workers Compensation (NSW) Ltd (the insurer). In a report dated 19 June 2009, Dr Bosanquet found that Ms Ballestin sustained an injury to her right arm and her low back during the course of her work with Fuelink on 1 September 2006. That injury caused a “tendinopathy in the right rotator cuff of the shoulder and a disc lesion at L4/5. This has been superimposed on underlying spinal canal stenosis”.
Ms Ballestin was referred to Dr John Silver, an Approved Medical Specialist. On 28 October 2009, Dr Silver issued a Medical Assessment Certificate in which he certified Ms Ballestin to have a combined total whole person impairment of eight per cent, comprising of six per cent whole person impairment to the lumbar spine and two per cent whole person impairment to the right upper extremity.
On 27 November 2009, Ms Ballestin made an application to appeal against the medical assessment made by Dr Silver. That application was accepted and the Commission’s Medical Appeal Panel issued a Medical Assessment Certificate on 25 February 2010.
The Appeal Panel found Ms Ballestin to suffer a combined whole person impairment of 19 per cent, comprising of 12 per cent whole person impairment to her lumbar spine and eight per cent whole person impairment to her right upper extremity. The insurer has paid compensation pursuant to ss 66 and 67 of the 1987 Act in respect of 19 per cent whole person impairment.
On 12 July 2010, Ms Ballestin made a claim in respect of the injury, pursuant to s 282 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). No response to that claim was received.
On 11 May 2012, Marcia Lusted provided an expert report which was served on the insurer on 20 May 2012. The report is not in evidence and Ms Lusted’s expertise is not stated. However, I infer her report relates to liability issues. On 18 June 2012, the insurer responded advising that they did not receive the original claim allegedly made two years earlier. The insurer denied liability for the claim on 31 July 2012.
On 6 August 2013, Ms Ballestin served a Pre-Filing Statement with supporting documentation on Fuelink.
On 23 December 2013, Fuelink served on Ms Ballestin’s legal representatives a Pre-Filing Defence.
On 28 October 2013, the insurer issued a work capacity decision and issued a notice pursuant to s 54 of the 1987 Act terminating Ms Ballestin’s weekly payments of compensation.
On 8 May 2014, Ms Ballestin filed an Application for merit review of the insurer’s work capacity decision. On 11 June 2014, a merit review officer handed down her findings and recommendations. The merit review officer was satisfied that the medical evidence supported a finding that Ms Ballestin has no current work capacity for any employment and found that she was entitled to a continuation of weekly payments of compensation.
On 27 October 2014, Ms Ballestin underwent a L5 decompression operation at the hand of Dr Parkinson, a neurosurgeon. Dr Parkinson provided a report dated 9 February 2015 to Dr Mohammed Chowdhury, Ms Ballestin’s treating general practitioner, concluding that, post-surgery, Ms Ballestin still “has back pain and significant right leg pain” and that she should be able to “perform part-time duties at two to four hours per day but not more than this and will not be able to do any lifting at all”.
On 6 February 2015, Fuelink lodged in the Commission an Application to Strike Out a Pre-Filing Statement. An Amended Application to Strike Out a Pre-Filing Statement was filed on 12 February 2015.
On 2 March 2015, Ms Ballestin lodged in the Commission an Application for Mediation.
ON THE PAPERS
Pursuant to s 354(6) of the 1998 Act, if the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under that Act without holding any conference or formal hearing.
Having regard to the terms of Practice Direction No 1 and the submissions received from the parties, I am satisfied that I have sufficient information to proceed “on the papers” to determine this Application without holding a conference or formal hearing, and that this is the appropriate course in the circumstances.
LEGISLATION
Section 151DA of the 1987 Act provides:
“Time not to run for commencement of proceedings in certain cases
(1) Time does not run for the purposes of section 151D:
(a1) while the determination of the claim concerned is delayed as permitted by section 281 of the 1998 Act, but not including delay beyond 2 months after the claimant has provided all relevant particulars about the claim as required by section 281 (2) (b) of that Act, or
Note. Delay in determining a claim beyond 2 months is only permitted on the basis that degree of permanent impairment is not fully ascertainable and the insurer has notified the claimant of this. In such a case, paragraph (a) of this subsection can apply (if a dispute about whether degree of permanent impairment is fully ascertainable is the subject of medical assessment) to further prevent time running for the purposes of section 151D.
(a) while a medical dispute as to whether the degree of permanent impairment of the injured worker is at least 15%, or whether the degree of permanent impairment of the injured worker is fully ascertainable, is the subject of a referral for determination by the Commission or a referral for assessment under Part 7 of Chapter 7 of the 1998 Act (including any further assessment under section 329 of that Act), or
(a2) during the period of 1 month after an offer of settlement is made to the claimant pursuant to the determination of the claim as and when required by the 1998 Act, or
(a3) while an assessment under Part 7 of Chapter 7 of the 1998 Act in respect of a medical dispute referred to in paragraph (a) is the subject of a pending appeal under section 327 of the 1998 Act, or
(b) while a pre-filing statement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current.
(2) A pre-filing statement remains current from the time it is served until it is struck out under this section on the application of the person (the defendant) on whom it was served or it is withdrawn by the person who served it, whichever happens first.
(3) The defendant may apply to the President to have the pre-filing statement struck out by order of the President. Such an application may not be made until at least 6 months have elapsed after the defendant served on the claimant a defence to the claim in accordance with section 316 of the 1998 Act.
(4) The President may order that a pre-filing statement be struck out but must not do so if satisfied that the degree of permanent impairment of the injured worker is not yet fully ascertainable and the matter is the subject of a referral under Part 7 of Chapter 7 of the 1998 Act for assessment of the degree of permanent impairment of the injured worker.
(5) A medical dispute is considered to be the subject of a referral for assessment under Part 7 of Chapter 7 of the 1998 Act even if the approved medical specialist has declined to make an assessment of the degree of permanent impairment of the injured worker until satisfied that the degree of permanent impairment is fully ascertainable.
(6) The President may delegate to a Deputy President any function of the President under this section (except this power of delegation), but only if the President is satisfied that the delegation is necessary to avoid a conflict of interest or the appearance of bias.”
FUELINK’S SUBMISSIONS
Fuelink submits that pursuant to s 151DA of the 1987 Act, Ms Ballestin’s Pre-Filing Statement should be struck out. It submits that the relevant matters when determining whether to strike out a Pre-Filing Statement were considered by the Commission in John Lacey Earth Moving Pty Ltd v Campbell-Willis [2007] NSWWCCPD 197 (John Lacey). In the circumstances of that case, Bryon AP stated (at [46]) that the relevant matters were:
“• a pre-filing statement is not intended to extend time indefinitely;
• limitation periods exist to protect parties from potential prejudice caused by the passage of time between the date of injury and the commencement of court proceedings;
• this application was made more than 6 months after the serving of the Defendant’s reply to the pre-filing statement, in accordance with section 151DA(3);
• the prohibition on the exercise of my discretion as stated in section 151DA(4) does not apply;
• twelve months have elapsed since the service of the pre-filing statement and no steps have been taken to progress the matter by making application for mediation;
• there is no evidence that court proceedings have been commenced nor that any other active steps have been taken to resolve the matter, since service of the pre-filing statement, and
• the Claimant has been given every opportunity to be heard on this application and has failed to make submissions opposing the Defendant’s strike out application.”
Fuelink also relies upon Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108 (at [15]) where it was stated:
“It is clearly not the intention of the legislature that the time limit within which a claimant may bring work injury damages proceedings should be extended indefinitely by the operation of [s 151DA]. Claimants must actively pursue the required steps throughout this pre-litigation process. The pre-filing statement should remain current for the purpose of completing those required steps.”
Fuelink argues that a claimant should be ready to proceed at the time of serving a Pre-Filing Statement and s 315 of the 1998 Act requires that evidence upon which the claimant intends to rely should be served with the Pre-Filing Statement.
It is submitted that Ms Ballestin has not actively pursued the required steps to proceed with the work injury damages claim. It is further submitted that eight years and five months have elapsed since the injury occurred and more than 12 months have elapsed since the Pre-Filing Defence was served.
DISCUSSION AND FINDINGS
Ms Ballestin submits that she is actively pursuing the required steps to proceed with her claim by proceeding to mediation. I note that an Application for Mediation was received by the Commission on 2 March 2015.
Ms Ballestin also submits that the matters raised in John Lacey, as relevant to determining whether to strike out a Pre-Filing Statement, should be distinguished because in that case:
(a) the claimant failed to make any submissions for the delay despite having been ordered twice by the President to do so;
(b) there was no explanation for the delay in lodging an Application for Mediation, and
(c) there was no evidence that the claimant’s condition had deteriorated or was having substantial ongoing treatment.
Ms Ballestin further submits that the delay has not caused prejudice to Fuelink. The claim was clearly set out in the Pre-Filing Statement. An expert’s report in relation to the liability issues was provided to Fuelink in May 2012 and no opposing report has been served. Fuelink is fully aware of Ms Ballestin’s medical condition and has paid all s 60 medical expenses to date.
It is also submitted that no further application pursuant to s 66 is proposed and Ms Ballestin is now ready to proceed to mediation.
Ms Ballestin’s submissions should be accepted.
Shortly after Ms Ballestin issued a Pre-Filing Statement on 6 August 2013 her medical condition deteriorated markedly, and, as a result she submitted to spinal decompression surgery on 27 October 2014.
Clearly, after undertaking such surgery, any final assessment of Ms Ballestin’s condition, including her capacity for employment and other matters relevant to an assessment of damages, could not be made until her condition fully stabilised.
Dr Parkinson, Ms Ballestin’s treating neurosurgeon, issued a final report on 9 February 2015 reporting on Ms Ballestin’s post-surgery progress and prognosis.
Ms Ballestin could not have reasonably been expected to pursue her claim for work injury damages until such time she had a reasonable opportunity to recuperate from her spinal surgery and obtain relevant evidence, particularly from the treating surgeon.
I accept that Ms Ballestin is now in a position to pursue her claim for work injury damages and to proceed to mediation. The fact that she has recently filed an Application for Mediation confirms that view.
In the circumstances, I do not accept the submission that Ms Ballestin has not actively pursued the required steps to proceed with a work injury damages claim.
As observed by Acting President Gary Byron, in John Lacey (at [36]):
“The legislative intention of these provisions is to provide time, both to facilitate the resolution of the claim prior to commencing court proceedings, through the early exchange of information and evidence, and to enable the participation of the parties in mediation.”
In the circumstances of this case, it would be inconsistent with the stated legislative intention to strike out Ms Ballestin’s Pre-Filing Statement whilst mediation is being actively pursued.
DECISION
The Application to Strike Out a Pre-Filing Statement is dismissed.
COSTS
I note that Ms Ballestin has not sought an order for costs. In the circumstances, I do not propose to make any orders as to costs. However, I grant the parties liberty to apply, within seven days, on the question of costs.
Judge Keating
President
5 May 2015
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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