Kurt's Plumbing Services Pty Ltd v Shahin
[2016] NSWWCCPD 24
•4 May 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT | ||
| CITATION: | Kurt’s Plumbing Services Pty Ltd v Shahin [2016] NSWWCCPD 24 | |
| APPLICANT DEFENDANT: | Kurt’s Plumbing Services Pty Ltd | |
| RESPONDENT CLAIMANT: | Jeries Shahin | |
| FILE NUMBER: | 147/16 | |
| DATE OF DECISION: | 4 May 2016 | |
| 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: | Rankin Ellison Lawyers |
| Respondent Claimant: | Taylor & Scott Lawyers | |
| ORDERS MADE ON APPLICATION: | 1. Pursuant to s 151DA(4) of the Workers Compensation Act 1987, the respondent’s pre‑filing statement is struck out. 2. No order as to costs. | |
INTRODUCTION
This matter concerns an application filed by the applicant defendant, Kurt’s Plumbing Services Pty Ltd (Kurt’s Plumbing), 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. The application has not been opposed by the respondent.
BACKGROUND
Mr Shahin (the respondent) was a working director of Kurt’s Plumbing (the applicant) and worked as a plumber.
On 4 March 2009, Mr Shahin suffered an injury to his back when lifting and carrying a 15 to 20 kilogram tool box. At the time Mr Shahin was installing a water service at a site in Caringbah, New South Wales. As a result of the injury Mr Shahin claimed that he suffered a large left-sided disc prolapse at L4/5 level.
In May 2009, Mr Shahin ceased work and has not returned to duties.
On 30 June 2009, Mr Shahin underwent a laminectomy and discectomy operation at L5/S1 at the hand of Dr Matthew Giblin, orthopaedic surgeon. He later underwent physiotherapy and hydrotherapy treatment.
On 29 July 2009, Mr Shahin lodged a workers compensation claim in respect of the 4 March 2009 incident.
On 1 June 2010, pursuant to s 66A of the 1987 Act, the applicant’s insurer, CGU Workers Compensation (NSW) Ltd, entered a complying agreement with Mr Shahin. The complying agreement provided for the payment of lump sum compensation in respect of 15 per cent whole person impairment arising from the injury on 4 March 2009. The report of Dr Peter Conrad, general surgeon, dated 1 April 2010 was relied upon.
Following the complying agreement, Mr Shahin claimed that his condition deteriorated. He claimed that he had increasing back pain, which radiated down the back of both his legs. He also claimed that on 27 December 2010 he was walking up to his car when his left leg suddenly collapsed and he suffered a consequential injury being a facture to his right ankle.
On 18 February 2014, Mr Shahin served a notice of claim for work injury damages on the applicant. Mr Shahin relied on Dr Conrad’s reports of 1 April 2010 and 6 February 2012 to support the claim for compensation in respect of the lumbar spine, both legs and right ankle.
On 17 September 2014, Mr Shahin’s legal representatives served a pre-filing statement on the applicant’s legal representatives claiming work injury damages following the injury sustained on 4 March 2009.
On 15 October 2014, the applicant served a pre-filing defence on Mr Shahin’s legal representatives. It disputed the occurrence of the injury and any alleged negligence.
On 24 November 2014, Mr Shahin filed an application for mediation to resolve the work injury damages claim.
On 5 December 2014, the applicant declined to participate in the mediation on the grounds that liability was wholly disputed. On 6 January 2015, a Certificate of Mediation was issued certifying that the applicant declined to participate in mediation on the grounds that it wholly disputed liability in respect of the claim.
On 7 July 2015, the applicant’s legal representatives, Rankin Ellison Lawyers, wrote to Mr Shahin’s legal representatives, Taylor & Scott Lawyers, enquiring whether the respondent intended to pursue his claim for work injury damages. There was no reply.
On 27 August 2015, Rankin Ellison Lawyers wrote again to Taylor & Scott Lawyers enquiring as to whether the respondent intended to pursue his claim. Rankin Ellison Lawyers requested that the pre-filing statement be withdrawn if the respondent did not intend to pursue his claim. Again there was no reply.
On 15 October 2015, Rankin Ellison Lawyers further wrote to Taylor & Scott Lawyers enquiring as to whether the respondent intended to pursue his claim. It advised that if a response was not received within 14 days of the date of the letter an Application to Strike Out a Pre-Filing Statement would be filed. Taylor & Scott Lawyers did not respond.
On 15 January 2016, Rankin Ellison Lawyers filed an Application to Strike Out a Pre-Filing Statement (the Application) on the applicant’s behalf. The Application was served on Taylor & Scott Lawyers on 19 January 2016.
On 18 January 2016, the Commission issued a series of directions, which included a direction that Mr Shahin lodge and serve on the applicant a Notice of Opposition by 29 February 2016. That direction was not complied with.
Subsequent correspondence with Mr Meigan, solicitor for Taylor & Scott Lawyers, and his staff was vague and unhelpful in terms of Mr Shahin’s instructions regarding the Application. In the circumstances I caused the matter to be listed for a telephone conference on 14 April 2016.
On 14 April 2016, Mr Meigan and Ms Robbs, solicitor for Rankin Ellison Lawyers, participated in the telephone conference. After some discussion I acceded to an application by Mr Meigan for an extension of time to comply with the direction to lodge a Notice of Opposition. Accordingly I directed the respondent to lodge and serve a Notice of Opposition and supporting documents on or before 28 April 2016. That direction was also not complied with.
Subsequent correspondence from Mr Meigan to the Commission was again vague and ambiguous as to his client’s instructions, and indeed whether he continued to represent Mr Shahin at all.
In the circumstances, I caused the matter to be listed for a further telephone conference on 3 May 2016 and made arrangements for Mr Shahin and an interpreter, Ms Smith, to participate. Shortly prior to the telephone conference the Commission received correspondence from Mr Meigan stating that he had been instructed by Mr Shahin “not to oppose the insurer’s Application to Strike out his Pre-Filing Statement.”
As a result of the letter of 3 May 2016 and Mr Shahin’s participation at the telephone conference the same day, I am satisfied that he has had appropriate legal advice, which he comprehends, and that he has made an informed decision to offer no resistance to the Application.
I think it is appropriate to place on record my view that Mr Meigan’s conduct of the matter on behalf of his client was most unsatisfactory. The Commission and the applicant were put to the expense and inconvenience of several attendances by my staff and two telephone conferences which would have been avoided had instructions from Mr Shahin been sought in a timely manner and the Commission’s initial directions been complied with.
LEGISLATION
Section 151DA of the 1987 Act provides:
“(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.”
APPLICANT DEFENDANT’S SUBMISSIONS
The applicant submits that pursuant to s 151DA of the 1987 Act, Mr Shahin’s pre-filing statement should be struck out. It submits that Mr Shahin has provided no explanation for the delay in prosecuting his claim and has not responded to several of their requests for advice as to whether he intends to pursue his claim.
The requirements of s 151DA(4) have been meet as Mr Shahin’s lump sum claim was resolved in June 2010 by way of a complying agreement, which provided for the payment of compensation in respect of 15 per cent whole person impairment for injury arising from the 4 March 2009 incident.
The legislation is silent as to the grounds upon which an application may be made to strike out a pre-filing statement, however, the applicant relied on the common law authorities in Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108 (at [15]) and Luke v McCarthy [2008] NSWWCCPD 123 (at [29]) to support its application.
The pre-litigation stages have been completed and Mr Shahin has failed to commence formal proceedings in the District Court. Accordingly, it would be inappropriate for the pre-filing statement to remain current indefinitely in circumstances where Mr Shahin is not actively pursuing a formal claim for work injury damages (Workers Compensation Nominal Insurer v England [2011] NSWWCCPD 41 and South Western Sydney Area Health Service v Roodenrys [2014] NSWWCCPD 43).
DISCUSSION AND FINDINGS
I accept the applicant’s submissions.
In the circumstances of this case there are no impediments presented by s 151DA to the Application being determined at this time. The pre-litigation steps have been completed and the medical evidence indicates that the degree of permanent impairment is fully ascertainable.
It is now more than seven years since Mr Shahin’s injury in 2009 and over 18 months since he filed his pre-filing statement. With the benefit of legal advice Mr Shahin has now elected to offer no resistance to the application to have the pre-filing statement struck out. That is clearly a powerful factor in favour of granting the applicant’s application (Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104; 54 NSWLR 207).
Therefore, in the exercise of my discretion, I consider that the application to strike out the respondent’s pre-filing statement should be granted.
I note that the applicant does not seek costs.
DECISION
Pursuant to s 151DA(4) of the Workers Compensation Act 1987, the respondent’s pre-filing statement is struck out.
COSTS
No order as to costs.
Judge Keating
President
4 May 2016
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