James v State of New South Wales (NSW Police Force)
[2025] NSWPIC 16
•17 January 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | James v State of New South Wales (NSW Police Force) [2025] NSWPIC 16 |
| APPLICANT: | Paul Raymond James |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| MEMBER: | Glenn Capel |
| DATE OF DECISION: | 17 January 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Claim for lump sum compensation in respect of four separate physical injuries sustained to the worker’s right shoulder and four separate physical injuries sustained to the worker’s right knee; liability and aggregation not disputed, only degree of impairment and whether assessment was fully ascertainable; confusion in the pleadings and the referral resolved at a preliminary conference and claim remitted for referral to a Medical Assessor (MA); MA assessed the claim in accordance with the referral and not in accordance with the Certificate of Determination – Consent Orders; worker appealed the Medical Assessment Certificate rather than seek a reconsideration; delegate referred matter back to MA for further assessment; matter allocated to another MA as first MA had retired; the worker 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 – uplift does not apply to lump sum claims where liability not in dispute; alternatively, submissions not persuasive; nothing intricate about the facts or the law; although there were errors on the part of the MAs, the matter no more complex than many of the matters that come before the Commission; application for uplift declined. |
| DETERMINATIONS MADE: | By and with the consent of the parties, the Commission determines: 1. The respondent to pay the applicant $15,000 for pain and suffering in respect of the injury sustained to the right upper extremity (shoulder) on 29 April 2003, 23 November 2007, 30 March 2009 and 16 August 2016 pursuant to s 67 of the Workers Compensation Act 1987. 2. The respondent to pay the applicant $12,000 for pain and suffering in respect of the injury sustained to the right lower extremity (knee) on 28 September 2006, 30 October 2007, 6 September 2011 and 17 July 2014 pursuant to s 67 of the Workers Compensation Act 1987. The Commission determines: 3. Orders 1 and 2 in the Certificate of Determination dated 10 October 2024 are confirmed. 4. The applicant’s application for an uplift in respect of his costs is declined. |
STATEMENT OF REASONS
BACKGROUND
The solicitor for Paul Raymond James (the applicant) served a notice of claim for lump sum compensation pursuant to s 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act) on 3 May 2023. The claim under s 66 of the 1987 Act was as follows:
(a) 16% whole person impairment for right shoulder injuries on 27 April 2003, 23 November 2007, 30 March 2009 and 16 August 2016 in the sum of $23,650, less $8,250.00 for 6% whole person impairment for right shoulder injuries on 29 April 2003 and 23 November 2007, and
(b) 30% whole person impairment for right knee injuries on 28 September 2006, 30 October 2007, 6 September 2011 and 17 July 2014 in the sum of $57,750, less $5,000 for 4% WPI for right knee injury on 28 September 2006 previously awarded.
In response to the claim, Employers Mutual Ltd (the insurer) issued a dispute notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act on 13 September 2023, indicating that it could not determine the claim because Dr Powell had advised that the whole person impairment was not fully ascertainable. There was no liability dispute per se. The only issue related to quantum if and when the applicant’s condition had reached maximum medical improvement. Such an issue is a medical issue that needed to be determined by a Medical Assessor.
An Application to Resolve a Dispute (the Application) in the Personal Injury Commission (Commission) on 6 March 2024. He claimed lump sum compensation pursuant to ss 66 and 67 of the 1987 Act. The claim pursuant to s 66 of the 1987 Act was as follows:
(a) 29 April 2003: right shoulder – whilst conducting forced entry into premises, struck a reinforced door with right shoulder with considerable force several times before door eventually gave way. Injuries on 29 April 2003, 23 November 2007, 30 March 2009 and 16 August 2016, and
(b) 28 September 2006: right knee – whilst involved in a rugby ruck at the Australian Police Rugby Championship in Coff Harbour. Injuries on 28 September 2006, 30 October 2007, 6 September 2011 and 17 July 2014.
This was consistent with the notice of claim served on the insurer by the applicant’s solicitor on 3 May 2023 and the assessments provided by Dr New in his report dated 3 March 2023.
The claim pursuant to s 66 of the 1987 Act was pleaded as follows:
(a) Date of injury: 29/4/2003 to 16/8/2016 – 16% right upper extremity and scarring (TEMSKI).
(b) Date of injury: 28/9/2006 to 17/7/2014 – 30% right lower extremity and scarring (TEMSKI).
As there was no liability dispute, a referral to a Medical Assessor was issued on 5 April 2024. This only identified injuries to the right upper extremity (shoulder) on 29 April 2003 and right lower extremity (knee) on 28 September 2006. One can understand why the referral was drafted in this manner, given the confusing way that the lump sum claim was pleaded in the Application.
The applicant objected to the terms of the referral and requested that a preliminary conference be scheduled.
At a preliminary conference before Member Benk on 11 April 2024, the parties agreed that the impairments arising from the separate injuries to the applicant’s right shoulder and right knee should be aggregated. The examination that had been arranged with the Medical Assessor on 16 April 2024 was confirmed. The Member issued a Certificate of Determination (COD) in the following terms:
“1. The Application to Resolve the Dispute be amended to remove any reference to a claim for scarring (TEMSKI).
2. The medical assessment scheduled for 16 April 2024 at 10.00am be confirmed for assessment as follows:
Date of Injury (1): 29 April 2003, 23 November 2007, 30 March 2009 and 16 August 2016.
Body part/s referred: Right upper extremity (shoulder)
Method of assessment: Whole person impairment
Date of Injury (2): 28 September 2006, 30 October 2007, 6 September 2011 and 17 July 2014
Body part/s referred: Right lower extremity (knee)
Method of assessment:Whole person impairment
3. The parties consent to the impairment arising from the above injuries to the right upper extremity (shoulder) being aggregated/combined
4. The parties consent to the impairment arising from the above injuries to the right lower extremity (knee) being aggregated/combined...”
Medical Assessor Berry issued a Medical Assessment Certificate (MAC) on
24 April 2024. He assessed 15% whole person impairment of the right upper extremity (shoulder) due to injury sustained on 29 April 2003 and 12% whole person impairment of the right upper extremity (shoulder) due to injury sustained on 28 September 2006. This assessment was consistent with the terms of the original referral, but not the COD.On 20 May 2024, the applicant’s solicitor sent an email to the Commission seeking clarification as to the quantification of compensation, given that the Medical Assessor had not identified the later dates of injury is respect of the right shoulder and knee.
On 21 May 2024, rather than filing an application for reconsideration of the MAC, the applicant’s solicitor filed an appeal in matter no M1-W1830/24.
On 19 June 2024, a delegate of the President, Ms Anderson, referred the matter back to Medical Assessor Berry for reconsideration of his MAC pursuant to s 329(1A) of the 1998 Act.
As Dr Berry had retired, the matter was referred to Medical Assessor Truskett, who issued a brief MAC on 4 September 2024. He initially included an additional date of 23 May 2010, but that date related toa left knee injury. The MAC was amended by removing this date. He confirmed the assessments of Medical Assessor Berry and merely added the other dates of injury to each body part.
On 10 October 2024, the applicant’s solicitor sought a 30% uplift for complexity with respect to her costs. She referred to the need for a preliminary conference, the error in the MAC of Dr Berry and the need for a further MAC from Dr Truskett and issues with his MAC.
On 4 December 2024, the request for an uplift was brought to my attention. The parties were advised that any application regarding costs would be considered after the claims for pain and suffering had been resolved.
On 19 December 2024, the applicant informed the Commission that the claims for pain and suffering had been resolved.
On 13 January 2025, the parties were directed to file written submissions regarding the request for an uplift by close of business on 15 January 2025.
The applicant’s solicitor filed written submissions on 15 January 2025.
On 16 January 2025, the respondent’s solicitor advised that the question of an 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 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) Referral dated 5 April 2024;
(d) COD dated 11 April 2024;
(e) MAC dated 24 April 2024;
(f) Appeal Against a Decision of Medical Assessor with attached documents in matter no. M1-W1830/24;
(g) Notice of Opposition Against Decision of Medical Assessor with attached documents in matter no. M1-W1830/24;
(h) MAC dated 4 September 2024, and
(i) emails dated 5 April 2024, 8 April 2024, 20 May 2024, 10 October 2024, 8 November 2024, 14 November 2024, 20 November 2024, 4 December 2024, 13 December 2024, 19 December 2024 (x 2), 20 December 2024, 13 January 2025 and 16 January 2025.
SUBMISSIONS
In the written submissions dated 15 January 2025, the applicant’s solicitor, Ms McLean referred to the history of the matter as described above. She indicated that an appeal was lodged against the MAC on 21 May 2024 (one day before the 28 period ended) because she did not receive a response from the Commission regarding her email dated 20 May 2024.
Ms McLean submits that the matter should be certified as complex and a 30% uplift in fees be awarded because the claim involved two different body parts, four dates of injury for each body part, there was a teleconference, a COD issued regarding the dates of injury, there was an incorrect MAC, Medical Assessor Berry retired, Medical Assessor Truskett reconsidered the MAC, but his MAC contained an error.
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.
Clause 4 (3)(b) of Pt 1 of Sch 6 of the 2016 Regulation provides that an entitlement to a percentage increase in costs ascertained under items 4 or 5 of Table 4 and as certified by the Commission applies to increase the costs claimable under items D, E or F of Table 1, meaning that the uplift does not apply to lump sum compensation quantum disputes where there is no liability dispute as in the present matter. Even if there was a liability dispute and the applicant could seek an uplift, I am not convinced that there was any complexity about this matter.
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
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][1] [2010] NSWWCC 437, (Lake).
[2] Lake, [27].
Whilst I agree there was a degree of complexity due to the fact that the applicant relied on separate dates of injury to two different body parts, I do not accept that there was any intricacy of fact or law. The issue to be addressed was limited to the extent and quantum of the applicant’s lump sum entitlement with respect to a series of agreed dates of injury. Each party qualified one doctor.
The insurer did not dispute that the applicant suffered an injury to his right shoulder and right knee on a number of occasions. There was no dispute regarding aggregation. The only issue related to whether the applicant’s condition had reached the stage that his injuries could be assessed.
The matter proceeded through the Commission in the normal fashion following the filing of the Application. There was a preliminary conference to address the correct dates of injury for assessment. This might have been avoided if the lump sum claim had been properly pleaded in the Application, rather than in the confusing fashion referred to in paragraph 5 above.
Ms McLeans submissions really shed little light as to what aspects of this claim made it more complex than other proceedings in the Commission. It is unfortunate that Dr Berry did not pay attention to the COD of Member Benk and then retired. Further, Dr Truskett incorrectly included a date of injury that related to the applicant’s left knee, but these errors did not make the matter complex.
Ms McLean 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. 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 liability was not in dispute.
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.
I have already determined that an uplift cannot be certified in a lump sum claim where liability is not in dispute. However, even if I am wrong, and an uplift might be possible, 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.
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