Honey v State of New South Wales (Fire & Rescue NSW)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Honey v State of New South Wales (Fire & Rescue NSW) [2024] NSWPIC 43
APPLICANT:	Jeffrey Mark Honey
RESPONDENT:	State of New South Wales (Fire & Rescue NSW)
PRINCIPAL MEMBER:	Glenn Capel
DATE OF DECISION:	6 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation in respect of 11 separate physical injuries and deemed date of injury; minimal evidence relied upon by the parties; dispute regarding injuries to some body parts, but dispute resolved at a preliminary conference and claim remitted for referral to a Medical Assessor in respect of the deemed date of injury; separate proceedings filed in respect of a psychological injury; Consent Orders filed after Medical Assessment Certificate in respect of a different date of injury that had not been pleaded or assessed by the Medical Assessor, something that also occurred in the concurrent proceedings; notation that the respondent agreed to pay the applicant’s costs as agreed or assessed; applicant subsequently sought an uplift for complexity in accordance with Table 4 of Part 2 of Schedule 6 of the Workers Compensation Regulation 2016; Lake v Hunter Institute of Technology – NSW TAFE considered and discussed; Held – submissions not persuasive; nothing intricate in the matter about the facts or the law; matter no more complex than many of the matters that come before the Commission; application for uplift declined.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s application for an uplift in respect of his costs is declined.

STATEMENT OF REASONS

BACKGROUND

Matter no. W1636/23

Jeffery Mark Honey (the applicant) filed an Application to Resolve a Dispute (the Application) in the Personal Injury Commission (Commission) in matter no. W1636/23 on 10 March 2023. Although he relied on 10 pleaded incidents, his claim for lump sum compensation was restricted to his upper extremities, lower extremities and his cervical, thoracic and lumbar spines due to an injury sustained on 3 October 2019 (deemed). The relevant individual body parts involved were not identified on page 13 of the Application.
At a preliminary conference before Member Snell on 12 April 2023, which proceeded in the applicant’s absence, the Application was amended to delete the allegation of injury occurring on 1 January 1998 and 1 December 2003 and to add an injury to the right wrist. The respondent accepted that the applicant had sustained injury to his right shoulder and right wrist in the course of his employment.
Member Snell issued a Direction in which she noted that the issues in dispute whether the applicant had injured his cervical spine, left shoulder, lumbar spine, left hip, left knee, right hip and right knee in the various specific incidents alleged and/or as a result of the nature and conditions of his employment.
The matter was listed for an in person conciliation conference and arbitration hearing before Member Drake on 8 May 2023 at 2.00 pm.
During the conciliation conference , the parties resolved the injury dispute and the applicant’s claim was remitted to the President for referral to a Medical Assessor for assessment of whole person impairment in respect of the lumbar and cervical spine, left upper extremity (shoulder), right upper extremity (shoulder and wrist) , left lower extremity (hip) and right lower extremity (hip) arising out of his employment with the respondent until
3 October 2019, with a deemed date of injury of 10 June 2022 being the date of the claim. There was an award for the respondent in respect of the allegation of injury to the applicant’s left knee, right knee and thoracic spine.
The Medical Assessor, Dr Gothelf, issued a Medical Assessment Certificate (MAC) on
20 June 2023. He assessed 36% whole person impairment due to injury sustained on
10 June 2022 (deemed).
Before the Commission issued a post MAC Certificate of Determination (COD) the respondent filed consent orders on 24 July 2023, which were executed by me, in the following terms:
“Consent Orders
1. Respondent to pay the Applicant lump sum compensation under Section 66 of the Workers Compensation Act 1987 at $74,750 representing 36% WPI in relation to his physical injuries deemed to have occurred on 3 December 2019 (Claim No. 217021EML).
2. Respondent agrees to pay the Applicant lump sum compensation under Section 67 of the Workers Compensation Act 1987 at $32,500 in relation to his physical injuries deemed to have occurred on 3 December 2019 (Claim No. 217021EML).
Notations
A. Respondent to pay the applicant's costs as agreed or assessed.”
Curiously, the date of injury identified in the Consent Orders was inconsistent with the original pleaded injury of 3 October 2019 (deemed), the referred date of injury of
22 June 2022 (deemed) and the assessed date of injury of 22 June 2022 (deemed). No application has been made to address this error

Matter no. W707/23

The applicant had previously filed an Application on 7 February 2023 in matter no. W707/23 in which he claimed lump sum compensation of $35,750 in respect of 22% whole person impairment due to a psychological injury sustained on 3 October 2019 (deemed).
The applicant’s claim was referred directly to a Medical Assessor, Dr Suman, who issued a MAC on 14 April 2023. He assessed 20% whole person impairment due to injury sustained on 3 October 2019 (deemed). It is unclear why a post MAC COD was not issued in mid-May 2023. This was an unfortunate oversight by the Commission, but it was open to the parties to file consent orders after the appeal period had expired.
At a preliminary conference on 10 July 2023, Member Benk listed the matter for a conciliation conference and arbitration hearing 26 July 2023 as the parties were unable to resolve the claim for pain and suffering pursuant to s 67 of the 1987 Act.
On 24 July 2023, the parties filed Consent Orders, which were executed by me, as follows:
“Consent Orders
1. Respondent to pay the Applicant lump sum compensation under Section 66 of the Workers Compensation Act 1987 at $30,250 representing 20% WPI in relation to his psychological injury deemed to have occurred on 7 April 2011 (deemed).
2. Respondent agrees to pay the Applicant lump sum compensation under Section 67 of the Workers Compensation Act 1987 at $22,000 in relation to his psychological injury deemed to have occurred on 7 April 2011 (deemed).
Notations
A. Respondent to pay the applicant's costs as agreed or assessed.”
Yet again, the date of injury identified in the Consent Orders was inconsistent with the original pleaded injury of 3 October 2019 (deemed) and the referred date of injury of
3 October 2019 (deemed). No application has been made to address this error.

PROCEDURE BEFORE THE COMMISSION

On 1 August 2023, the applicant’s solicitor, Mr McCabe, wrote to the Commission and requested an uplift in his costs in respect of matter no. 1636/23. He did not seek an uplift in matter no. W707/23. This correspondence was not actioned and when a follow up email was sent on 13 December 2023, the dispute officer indicated that he had no record of receiving it.
Following receipt of this email, the application for an uplift was brought to my attention. As the respondent had not been advised of the application, I requested that this be done and on 21 December 2023, the dispute officer requested a written response be provided from the respondent.
On 17 January 2024, Mr McCabe wrote to the respondent’s solicitor, Ms Shivaji, seeking her views regarding the application for an uplift. A follow up email was sent on 1 February 2024.
On 1 February 2024, the respondent’s solicitor indicated that the question of a complexity uplift was a matter for the Commission.

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant and/or the respondent are entitled to an uplift for complexity in respect of their costs, and if so, at what level.

Documentary evidence

The following documents in matter no. W1636/23 were in evidence before the Commission and taken into account in making this determination:
(a)    Application with attached documents;
(b)    Reply with attached documents;
(c)    Direction dated 14 April 2023;
(d)    COD dated 9 May 2023;
(e)    Application to Admit Late Documents received on 11 May 2023;
(f)    MAC dated 20 June 2023;
(g)    COD dated 24 July 2023;
(h)    emails dated 1 August 2023, 13 December 2023, 14 December 2023,
21 December 2023 (x 2), 17 January 2024 and 1 February 2024, and
(i)    letters dated 1 August 2023 and 17 January 2024.
Given that there was another Application filed in the Commission in matter no. W707/23 that might contain relevant material, I also reviewed and had regard to the following documents:
(a)    Application with attached documents;
(b)    Reply with attached documents;
(c)    Direction dated 10 July 2023;
(d)    MAC dated 14 April 2023, and
(e)    COD dated 24 July 2023.

SUBMISSIONS

In his letter dated 1 August 2023, Mr McCabe indicated that he did not seek an uplift for complexity in matter no. W707/23.
In respect of matter no. W1636/23, Mr McCabe submits that he had obtained a detailed 27 page statement from the applicant and qualified an independent medical specialist (IME), Dr Dixon. The respondent had qualified its own IME, Dr Ho. The respondent had offered $17,050 in respect of 12% whole person impairment, consistent with Dr Ho’s assessment, and $10,000 for pain and suffering pursuant to s 67 of the1987 Act.
Mr McCabe submits that the matter was listed for a preliminary conference on 12 April 2023. He identified the participants, including the applicant, but Member Snell indicated in her outcome notes that the applicant was not in attendance on MS Teams and could not be contacted by his solicitor. This obviously prevented the Member from using her best efforts to assist the parties to resolve the dispute in accordance with her statutory obligations.
Mr McCabe submits that in the dispute notice dated 16 February 2023, the insurer had disputed that the applicant had sustained an injury, that his employment was a substantial contributing factor and that he was entitled to lump sum compensation.
Mr McCabe submits that the matter was to be “hotly contested” and was listed for an in person hearing in Sydney on 8 May 2023. It is not readily apparent from the file why the matter did not proceed on MS Teams. At the conciliation, the parties resolved the dispute and the matter was remitted to the President for referral to a Medical Assessor, consistent with the COD dated 9 May 2023. The Medical Assessor assessed 36% whole person impairment.
Mr McCabe submits that there were substantial negotiations regarding the applicant’s entitlement to s 67 of the 1987 Act and eventually that component resolved for $32,500.
Mr McCabe submits that the matter was extremely complex and that it warranted a 30% for complexity.
No submissions were made by the respondent’s solicitor.

REASONS

Item 4 of Table 4 of Pt 2 of Sch 6 of the Workers Compensation Regulation 2016 (the 2016 Regulation) permits an increase in the flat rate expressed in Table 1 in matters that involve some complexity.
Clause 11 of Pt 1 of Sch 6 of the 2016 Regulation sets an upper limit, and the maximum payable is determined within the range from nil to 30%, by reference to any applicable direction issued by the President or the Commission rules and a consideration of the nature and extent of the service performed.
The uplift does not apply to lump sum compensation quantum disputes, but the present matter involved a liability dispute regarding ss 4, 9A and 66, bringing it within Item E in Table 1 of Pt 1 of Sch 6 of the 2016 Regulation.
In Lake v Hunter Institute of Technology – NSW TAFE,[1] Registrar Parsons (as he was then known) observed that:
“‘Complexity’ is not defined in the workers compensation legislation, but in the
[1] [2010] NSWWCC 437, (Lake).
[2] Lake, [27].
context of proceedings in the Commission, the term indicates an intricacy of fact, law and legislation that is higher than that usually encountered in other proceedings for workers compensation disputes. Factors to be considered include preparation, skill, care, time, novelty and difficulty of a case in terms of legal, medical, factual, procedural, evidentiary and multiplicity of issues.”[2]
The reason that I have reviewed matter no W707/23 is because normally separate matters that involve the same parties are usually consolidated pursuant to rule 64(2) of the Personal Injury Commission Rules 2021 and conducted under the one matter number. The Application in matter no. W707/23 only contained 159 pages and the Reply also had 159 pages, many of which were duplicated.
The number of documents filed in matter no. 1636/23 was minimal. There were only 93 pages in the Application and 84 pages in the Reply, but these were already in the Application. There was only one page in the Application to Admit Late Documents and this was of no relevance to the dispute. Therefore, the volume of documents in both sets of proceedings was not extensive.
There is no compelling reason why the applicant filed two separate Applications when the claims could have been addressed in the set of proceedings, particularly given that the claims related to physical and psychological injuries with the same deemed date of injury of
3 October 2019.
If there was only one set of proceedings, there would be some merit in the applicant’s application for an uplift for complexity. The separate proceedings have resulted in two separate costs orders, an unreasonable impost on the respondent’s insurer, and this has also come as an unnecessary and additional cost to the Commission.
Whilst I agree that in matter no. W1636/23, there was a degree of complexity due to the fact that the applicant relied on 11 separate dates of injury in addition to the deemed date of
3 October 2019, I do not accept that there was any intricacy of fact or law.
It is true that the insurer disputed the alleged injuries to the applicant’s hips, knees, left shoulder and whole of the spine, which is understandable, given that there was minimal medical evidence from the applicant’s treating doctors and the primary support came from the qualified IME, Dr Dixon, who saw the applicant two years after the deemed date of injury.
Significantly, no attempt had been made to obtain and file copies of the clinical notes of the applicant’s treating doctors. One would have thought that if this was a “hotly contested” dispute, more evidence would have been obtained by the applicant to strengthen his position.
There was a detailed 26 page statement from the applicant dated 20 April 2022 that would have taken some time to collate and finalise. The document is double spaced, meaning that the actual content would about half that number of pages. An example of excessive spacing is on pages 4 and 11 of the applicant’s statement. Much of the content is not relevant and does not address the nature of the applicant’s claim and the matters that were in dispute.
In matter no. W707/23, the applicant relied on statements dated 6 January 2020 and
22 January 2020. He also relied on a statement dated 20 April 2022, the same date of the statement that was obtained for his physical injuries. This statement is also double spaced, some pages are only partially filled and some content is identical to the statement in matter no. W1636/23. Presumably a conference was held with the applicant on or before
11 April 2022 when both statements were completed.
The matter proceeded through the Commission in the normal fashion following the filing of the Application. There was a preliminary conference and a conciliation conference when the parties reached agreement regarding the referral to the Medical Assessor and an award for the respondent in respect of certain body parts. This often occurs in matters in the Commission and is not something out of the ordinary.
Mr McCabe’s submissions shed little light as to what aspects of this claim made it more complex than other proceedings in the Commission. He merely summarised the nature of the claim and the dispute identified in the dispute notice, the assessments of the qualified specialists, the offer that had been made by the respondent, the attendance at the preliminary conference and the agreement between the parties at the conciliation conference.
Unfortunately, Mr McCabe did not explain what aspects of the dispute were “hotly contested” or what additional steps over and above the usual preparation of proceedings were undertaken by him. He did not explain what extra preparation, care, skill and time that was required that made this matter more complex, or how it was difficult with respect to any legal, medical, factual or evidentiary issues. Further, the nature of the “substantial negotiations” regarding the applicant’s entitlement pursuant to s 67 of the 1987 Act was not disclosed.
In my view, the nature of the dispute would not have required extensive factual and legal analysis over and above that required for the standard lump sum claim when there were issues relating to ss 4, 9A and 66 of the 1987 Act regarding certain body parts.
There was nothing intricate about the facts or the law. The issue to be addressed was limited to injury, substantial contributing factor and the extent and quantum of the applicant’s lump sum entitlement with respect to a single deemed date of injury.
This would usually warrant a statement from a worker, reports from the applicant’s treating doctors, copies of the clinical notes and doctors and an opinion from a qualified specialist. Three of these aspects were covered.
In Lake, Mr Lake’s solicitor sought an uplift for complexity. The claim had involved weekly payments, medical expenses and lump sum compensation.
At the telephone conference, the claim for weekly compensation was discontinued and the medical expenses claim was resolved. The lump sum claim was referred for assessment to an Approved Medical Specialist, and later proceed to a Medical Appeal Panel. The worker received lump sum compensation in respect of 4% whole person impairment.
Registrar Parsons declined to certify an uplift for complexity because he did not accept that the preparation of the case evidenced the care and skill to warrant an increase for complexity. He commented that better preparation, care and skill in settling the pleadings and the compensation claim may have avoided the difficulties that Mr Lake’s solicitor encountered and upon which he relied in support of the claim for an increase in party/party costs.
Having regard to all of the matters referred to above and in the absence of any compelling explanation as to why this matter was more complex than many of the matters that come before the Commission, I am not satisfied that an uplift for complexity for both parties is warranted.
In the circumstances and in the exercise of my discretion, the applicant’s application for an uplift for complexity is declined.

[2024] NSWPIC 43

6 February 2024