Grayston v Cardinal Group Services Pty Ltd (Deregistered)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Grayston v Cardinal Group Services Pty Ltd (Deregistered) & Ors [2022] NSWPIC 741
APPLICANT:	Marlene Grayston
FIRST RESPONDENT:	Cardinal Group Services Pty Ltd (de-registered)
SECOND RESPONDENT:	Ken Grayston
senior Member:	Elizabeth Beilby
DATE OF DECISION:	22 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Consideration of section 10(3)(c) of the Workers Compensation Act 1987; Held – the journey was made for the purposes of obtaining medical treatment and/or advice in connection with an accepted injury; consideration of distribution of the lump sum death benefit and interest.
determinations made:	1. Mr Errin Grayston died whilst on a periodic journey within the meaning of s 10(3)(c) of the Workers Compensation Act 1987 (1987 Act). 2. The lump sum death benefit of $775,600 is to be paid on the following basis: (a) 80% to the applicant, and (b) 20% to the second respondent. 3. The first respondent is to pay interest on the lump sum benefit from 28 September 2022 until the issuing of this Certificate of Determination at the rate of 2.5% per annum in respect of the applicant’s entitlement. 4. The first respondent is to pay interest on the lump sum benefit from 26 October 2022 until the issuing of this Certificate of Determination at the rate of 2.5% per annum in respect of the second respondent’s entitlement. 5. The first respondent was deregistered on 7 November 2014.The employer had entered into a contract with AAI Limited trading as GIO in respect of any liability under the 1987 Act (within the meaning of s 162 of the 1987 Act).

STATEMENT OF REASONS

BACKGROUND

Mr Errin Grayston (the deceased) suffered an accepted injury to his back as a result of his work as a concrete cutter and driller with Cardinal Group Services Pty Ltd (de-registered) (the first respondent) in May 2010.
In June 2015 the deceased and the first respondent entered into a complying agreement for 16% whole person impairment arising from the accepted back injury.[1]
[1] Application to Resolve a Dispute page 17.
In July 2017 the deceased embarked on a claim in respect of work injury damages.[2]
[2] Late documents dated 30 November 2022, page 1.
By way of correspondence dated 31 July 2017, Moray and Agnew lawyers, who acted on behalf of the first respondent in the workplace injury damages claim, wrote to the deceased’s lawyers outlining various “medical examinations” that had been arranged for Mr Errin Grayston. Those included a functional and vocational assessment at Pinnacle Rehabilitation. In particular, the functional assessment was to take place at Pinnacle Rehabilitation on 24 August 2017 at 10am.[3]
[3] Late documents from the first respondent dated 30 November 2022, page 7.
The deceased attended the appointment on 24 August 2017 in respect of the functional assessment. The assessment was undertaken by a registered physiotherapist Mr Dave Yager.
Mr Errin Grayston was involved in a fatal motor vehicle accident whilst on his way home. There is no dispute that he was travelling in the most direct route between the appointment in Kincumber and his residence in Green Point.
The circumstances of the fatal accident are set out in documents produced by New South Wales Police Force.[4] What is clear from those documents is that the police concluded that for the accident to happen in the manner it did, the vehicle must have been travelling in excess of the signed posted speed limit of 60 kph. There are also various witness statements which generally accord with that police opinion.
[4] Application to Resolve a Dispute page 34.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    liability for the first respondent to pay the death benefit;
(b)    apportionment between the applicant and Mr Ken Grayston (second respondent) of the lump sum death benefit, and
(c)    any entitlement to interest on the lump sum benefit.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply to the Application to Resolve a Dispute dated 14 October 2022; 26 October 2022, and
(c)    Application to Admit Late Documents dated 18 November 2022 and 30 November 2022.
The matter proceeded by way of written submissions. The applicant and second respondent have provided joint written submissions dated 23 November 2022 and 9 December 2022. Submissions were also received from the first respondent dated 30 November 2022.

The applicant’s claim - the journey provisions

The applicant makes its claim on the basis that the deceased was on a journey within the meaning of s 10(3)(c) of the Workers Compensation Act 1987 (1987 Act).
Section 10(3)(c) provides that:
“WORKERS COMPENSATION ACT 1987 - SECT 10
Journey claims
10 JOURNEY CLAIMS
(1)     A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
(1A) Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker.
(1B) A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport Act 2013 ), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily.
(1D) Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.
(2)     Subsection (1) does not apply if--
(a) the injury was received during or after any interruption of, or deviation from, any such journey, and
(b) the interruption or deviation was made for a reason unconnected with the worker's employment or the purpose of the journey,
unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation.
(3)     The journeys to which this section applies are as follows--
(a) the daily or other periodic journeys between the worker's place of abode and place of employment,
(b) the daily or other periodic journeys between the worker's place of abode, or place of employment, and any educational institution which the worker is required by the terms of the worker's employment, or is expected by the worker's employer, to attend,
(c) a journey between the worker's place of abode or place of employment and any other place, where the journey is made for the purpose of obtaining a medical certificate or receiving medical, surgical or hospital advice, attention or treatment or of receiving payment of compensation in connection with any injury for which the worker is entitled to receive compensation,
The applicant submits that at the time of the death the deceased was on a periodic journey within the meaning of s 10(3)(c) of the 1987 Act. The deceased was clearly directed to attend the functional assessment on 24 August 2017 following a claim being made in respect of work injury damages.
The applicant points out that the correspondence dated 24 August 2017, which outlined the appointments the first respondent wished the deceased to attend, does not specify that the appointments have been arranged for the purpose of work injury damages claim. They refer to “medical appointments”.
Whilst I agree with this submission that that is not specifically stated in the correspondence, it is quite clear that these appointments had been made following the issuing of a claim in respect of work injury damages.
I therefore infer that the appointments that had been organised were in respect of the deceased’s ability to work and his physical capacity. These are matters which are relevant to the first respondent’s assessment of the applicant’s condition at that time in respect of both work injury damages and payments of weekly compensation. They would be relevant if the matter needed to be assessed or determined.
The respondent’s submissions assert that the journey does not fall within the meaning of s 10(3)(c) as it was a functional assessment that had been arranged for the purposes of a claim for work injury damages and work injury damages is not compensation.
Consideration
Looking at the specific words of s 10(3)(c) and working through that section, it appears the following can be observed.
Firstly, there is no dispute that the deceased was travelling from the appointment in respect of his functional capacity directly to his home.
I accept the applicant’s description as outlined in its written submissions in reply that a registered physiotherapist is indeed a medical practitioner. The applicant helpfully refers to s 21 of the Interpretation Act 1987 which states:
“21D REFERENCES TO HEALTH PRACTITIONERS
(1) In any Act or instrument, a reference to a named class of health practitioner in a health profession within the meaning of the Health Practitioner Regulation National Law (NSW) means a person who, under that Law, is registered (other than as a student) and is authorised to use that name.
(2) However, if the reference is to a registered nurse this is taken not to include a reference to a person who is registered under that Law as an enrolled nurse.”
Further, the Health Practitioner Regulation National Law (New South Wales) provides for the registration of health practitioners and specialists. The relevant definition includes physiotherapists.
This leads to the indisputable inference that a registered physiotherapist is a health practitioner under the Health Practitioner Regulation National Law and therefore is a medical practitioner for the purpose of s 119.
I therefore find that the deceased was attending upon a medical practitioner immediately before his death.
The next question is what the purpose of the appointment was. It is quite clear that the deceased was there at the request of the first respondent in respect of a claim in relation to his accepted back injury.
I agree with the applicant’s submissions that it is not necessary that the applicant attended the appointment for the purposes of receiving compensation. The section is phrased in the alternative. It is enough to fall within the section if the journey, is clearly made for the purpose of attaining ‘medical advice, attention or treatment’.
I accept that the first respondent was to receive advice in respect of the deceased’s condition which must be, by inference, the appointment was to attain ‘medical advice and or attention’. I observe that the section does not state that the medical advice must be given directly to the applicant (deceased) but rather that he is attending there for the purpose of obtaining medical advice. That is the purpose of the journey was medical advice to the insurer.
There is no dispute that the consultation did not take place. Quite clearly, in the alternative, one would assume that in the normal process of these types of consultations that the applicant provided a history of symptoms, was examined with the intention of a report being provided to the insurer. There is no doubt in my mind that this must constitute both medical advice and or attention and therefore falls within the section.
Whilst it is not determinative, I also find that the deceased was attending the appointment in connection an injury for which a worker is entitled to receive compensation. It is quite clear that the injury in respect of this dispute is the accepted back injury. The deceased was at that time entitled to receive weekly compensation and was indeed receiving weekly benefits. Therefore, the appointment was ‘in connection’ to the accepted back injury, for which the applicant was receiving compensation. I agree with the applicant’s submissions in respect of the identification of the important connection as being the injury.
After considering the submissions, I find that whilst the deceased was seeking work injury damages, the section is satisfied as the deceased was on a journey for the purposes of obtaining medical advice and or attention.
Results from…
The first respondent submits that the deceased’s death did not ‘result from’ the back injury on 16 May 2020, but rather, results from the deceased’s negligence that caused the motor accident.
Both parties, through their erudite submissions agree that the test is one of “common sense test” as explained by Kirby P in Kooragang Cement v Bates[5], there must be a common- sense evaluation of the causal chain.
[5] Kooragang Cement v Bates (1994) 35 NSWLR 452
I agree with the applicant’s submissions that the first respondents position seems to import an application of a common law test of causation which does not apply to the present dispute.
In any event, I observe that the first respondent does not clearly identify in its submissions what the deceased’s negligent actions were. I assume that the argument relates to speed and/ or manner of driving.
There is no expert opinion to assist me in understanding the effect of, or the manner of speeding in this dispute. The police concluded that the deceased must have been travelling at a speed greater than the 60klm speed limit posted. The applicant does not dispute that the evidence indicates that the applicant was travelling at greater than 60 klm per hour but they say the incident could be consistent with the deceased suffering a medical episode such as a back spasm which caused him to lose control of the vehicle.
In the circumstances and based upon the paucity of compelling evidence, I am not persuaded that the deceased’s death in the motor accident resulted from negligence.
In respect of there being a real and substantial connection between the employment and the accident, on the basis of the evidence before me, the only finding that can be made is the purpose of the journey was for attending the functional assessment which related to his accepted back injury. Had he not been injured, there would have been no need for the assessment. I therefore find there is a real and substantial connection between the employment and the accident.[6]
[6] Australia and New Zealand Banking Group Ltd v Khullar [2020] NSWCCPD 3; Mission Australia v Eves [2020] NSWWCCPD 49.

Apportionment

A dependent is defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 to include persons who were “wholly or in part dependent for support on the worker at the time of the worker’s death”.
A reasonable expectation that the deceased would provide future support can satisfy the concept of dependency.[7] Warilla Timber and Hardware Pty Ltd v Newton[8], Albury Real Estate Pty Ltd v Rouseand Anor[9] provides authority that term “support” in s 25 of the 1987 Act is not limited to financial support and encompasses other multifactorial aspects including assistance with day-to-day activities and emotional support.
[7] TNT Group 4 Pty Ltd v Halioris (1987) 8 NSWLR 486 at [490].
[8] (1995) 11 NSWCCR 546, [554] to [555].
[9] [2006] NSWWCCPD 139, [45] to [50].
The applicant (the deceased’s mother) and the second respondent (the deceased’s father) agree that the lump sum should be apportioned 80% to the applicant and 20% to the second respondent. Both parties have filed statements in respect of their dependency, and I find that the proposed apportionment is reasonable based on that evidence. I do not propose to alter the agreement that the parties put forward regarding apportionment.
I also observe that the first respondent makes no submissions against the proposed apportionment.

Interest

The applicant and the second respondent seek an award of interest from the date of the claim which is 26 February 2021 with respect to their entitlements.
It is well observed that interest is governed by s 109 of the Workplace Injury Management Act 1998.
“Interest before order for payment
109 INTEREST BEFORE ORDER FOR PAYMENT
(1)     In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2)     Interest cannot be ordered under this section--
(a) on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b) on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c) on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
(3)     This section does not--
(a) authorise the giving of interest upon interest, or
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”
The Commission’s jurisdiction to award interest is discretionary[10]. The respondent advances no argument that the discretion should not be utilised.
[10] Haidary v Wandella Pet Foods Limited [2005] NSWCCPD 9.
The entitlement to interest does not arise until the claim has been duly made, that is until full particulars of alleged dependency have been provided. I agree that the words ‘duly made’ is more than simply making a claim.
I reject the applicant’s submission that interest should be ordered from the date of the letter of claim as it is quite clear that the particulars of alleged dependency had not been provided by that stage. The first respondent helpfully refers to the decision of President Keating in Kaur,[11] which provides clear authority on that point.
[11] Kaur v Thailes Underwater Systems Pty Ltd [2011] NSWWCCPD 6.
The entitlement to interest in this case, rests upon when the claim was duly made by each dependant. The entitlement rests with each claim and as such each claim can be determined upon its merits.
The first respondent submits that particulars of the alleged dependency were not finally provided until 17 November 2022 when the Application to Admit Late Documents was filed on behalf of the applicant by way of statement.
The second respondent has provided a statement outlining particulars of dependency dated 25 October 2022 which appears to have been provided to the first respondent by way of late documents dated 26 October 2022. It is the evidence contained in that statement that the application was made in respect of dependency and has ultimately been ordered. I therefore find that upon the provision of the statement from the second respondent that his entitlement to interest accrues, that is from 26 October 2022.
In respect of the applicant, she has filed two statements, one which was annexed to the Application to Resolve a Dispute and is dated 12 September 2022 which provided evidence so far as dependency was concerned.
In paragraph 19 of the statement the applicant outlines that the deceased would pay for groceries from time to time and contribute in whatever way he could around the home. He would also take his mother out to dinner where possible and pay the associated expenses. In addition, he provided emotional support to his mother.

To my mind it is at this date that the applicant has provided evidence of dependency and as such when the statement was provided, the claim has been duly made. I have no evidence other than that statement is contained within the application, that the first respondent first saw that statement when the application was filed which was on 28 September 2022. I therefore find that as at that date the claim in respect of the dependency of the applicant was duly made and accordingly interest should run from 28 September 2022.
I observe that further particulars of dependency were filed by the applicant by way of late documents dated 17 November 2022. These particulars are consistent with the evidence provided with the applicant in her prior statement and do not change the fact that the claim was duly made upon the provision of the first statement.
The parties agreed that the appropriate rate of interest is 2.5% and accordingly I find that interest should be awarded at 2.5% in respect of the applicant and the second respondent but the starting date in respect of their separate apportionments is different.

[2022] NSWPIC 741

22 December 2022