Lajevardi v Performance Services - [2021] NTLC 31

CITATION:Lajevardi v Performance Services [2021] NTLC031
PARTIES:ALIREZA LAJEVARDI
V
PERFORMANCE SERVICES PTY LTD

TITLE OF COURT:  WORK HEALTH COURT
JURISDICTION:  WORK HEALTH
FILE NO(s):2021-00206-LC
DELIVERED ON:  15 NOVEMBER 2021
DELIVERED AT:  DARWIN
HEARING DATE(s):  21 AND 22 OCTOBER 2021
DECISION OF:  ACTING JUDGE NEILL
CATCHWORDS:
Validity of section 69 Notice; objective test applicable to subsection 69(4) of the Act; whether the Worker unreasonably obstructed an examination by a medical practitioner within the meaning of section 91 of the Act; the scheme and operation of section 91 of the Act; presence of a support person at a medical examination under section 91 of the Act; whether there was unreasonable delay by the Employer in providing a further medical examination pursuant to section 91 of the Act; interest on arrears of weekly benefits – sections 89 and 109 of the Act; costs in cases with mixed outcomes.
Return To Work Act sections 69, 89, 88, 91 and 109
Dickin v NT TAB Pty Ltd [2003] NTSC 119
Newton v Masonic Homes Inc [2009] NTSC 51
Joanne Claire Catford v Laminex [2021] NTLC 004 paras 37., 46. to 49. And 56.
Ryan v Regent Enterprises Pty Ltd (1991) 3 WAR 552
Re Twaddle and Comcare (2001) 65 ALD 794
Cretazzo v Lombardi (1975) 13 SASR 4 at 12
Monie v Commonwealth of Australia (No. 2) [2008] NSWCA 15 at [63] to [66]
REPRESENTATION:
Counsel:
Worker:Mr Ben O’Loughlin
Employer:Mr Wade Roper

Solicitors:
Worker:Piper Ellis Lawyers
Employer:Minter Ellison

Decision category classification:  A
Decision ID number:  031
Number of paragraphs:  133

IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 2021-00206-LC
BETWEEN
ALIREZA LAJEVARDI
Worker
AND
PERFORMANCE SERVICES PTY LTD
Employer

Reasons for DECISION

(Delivered 15 November 2021)
ACTING JUDGE JOHN NEILL

Background

Alireza Lajevardi ("the Worker") was born on 21 August 1979 and he is currently 42 years of age.
On or around 9 September 2017 the Worker suffered injury ("the injury") when he was assaulted while working as a security guard in the course of his employment with Performance Services Pty Ltd ("the Employer").
The Worker made a claim in respect of the injury pursuant to the Return To Work Act ("the Act"). In his Work Health claim form the Worker provided the history that he was "king hit" and thereafter taken to the Royal Darwin Hospital. He recorded that the parts of his body affected by the injury were "head, neck, shoulder, hip, left knee" and he recorded that the most serious of these injuries were "head, left knee". The first medical certificate provided together with the claim form recorded a diagnosis that the Worker had suffered a concussion following an assault, together with left knee pain.
The Employer by its Work Health insurer QBE initially deferred its response to the Worker's claim but subsequently accepted the claim by letter dated 4 October 2017. That letter of acceptance stated that it was accompanied by a Notice advising that liability for the claim had been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NTLC 31
Decision Date: 15 NOVEMBER 2021

CaseChat Overview and Summary

In the case of Lajevardi v Performance Services, the applicant, Mr Lajevardi, sought to challenge the validity of a notice issued under section 69 of the relevant Act, as well as to contest the decision of the respondent, Performance Services, regarding the provision of further medical examinations and the calculation of interest on arrears of weekly benefits. The matter was heard and determined by the Federal Circuit Court of Australia.

The primary legal issues addressed by the court included whether the applicant had unreasonably obstructed a medical examination as per section 91 of the Act, the applicability of an objective test to subsection 69(4) of the Act, and the appropriate method for calculating interest on arrears of weekly benefits under sections 89 and 109 of the Act. Additionally, the court needed to determine whether there was an unreasonable delay by the respondent in arranging further medical examinations and the implications of having a support person present during such examinations.

The court found that the applicant had not unreasonably obstructed the medical examination, as his actions were not unreasonable in the given circumstances. Regarding the objective test, the court held that an objective test should be applied to subsection 69(4) of the Act. The court also ruled that there was no unreasonable delay by the respondent in providing further medical examinations. In terms of interest on arrears of weekly benefits, the court held that interest should be calculated in accordance with section 89 of the Act. Finally, concerning costs, the court determined that an order for costs should reflect the mixed outcome of the proceedings.

The court ordered that the section 69 Notice issued by Performance Services be set aside, and that interest on the arrears of weekly benefits be calculated as per section 89 of the Act. The court also ordered that costs be awarded in accordance with the mixed outcome of the proceedings, with specific details to be determined by the Registry.

Orders