Laundy (Trading) Pty Ltd v Kopko
[2024] NSWPIC 711
•19 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Laundy (Trading) Pty Ltd v Kopko [2024] NSWPIC 711 |
| APPLICANT: | Laundy (Trading) Pty Ltd |
| RESPONDENT: | Jonalee Magtoto Kopko |
| SENIOR MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 19 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; following an accepted psychological injury the respondent was paid weekly benefits of compensation in accordance with medical certificates certifying total incapacity; consideration of the evidence; Held – finding that there was a change in employment that had affected the workers earnings within the meaning of section 58; the basis for this finding was the respondent had returned to work with another employer; no finding as to the quantification of any ‘refund’ or ‘ adjustment’ in respect of future payments as more financial material was required. |
| DETERMINATIONS MADE: | The Commission determines: 1. Section 58(1) of the Workers Compensation Act 1987 has been satisfied in the circumstances of this case. 2. The matter is listed for further telephone conference on 14 February 2025 at 10.30am. 3. Leave is granted to issue Directions for Production on Cambridge Tavern, Green Valley Hotel and the Proper Officer, Department of Home Affairs. 4. The applicant is to notify the respondent of this Decision. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Ms Jonalee Magtoto (the respondent) was employed by Laundy (Trading) Pty Limited (the applicant) at the Twin Willows Hotel. Ms Magtoto was the venue manager and was hired in essence to manage the entire Twin Willows Hotel. She commenced employment with them in May 2022.
Ms Magtoto submitted a workers compensation claim in relation to a psychological injury in or around July 2022.
The claim for psychological injury was accepted by the relevant insurer, Hotel Employers Mutual Limited (HEM) in October 2022. Following the acceptance Ms Magtoto issued certificates of capacity from her general practitioner stating that she had no capacity for any form of work.
The applicant became concerned that Ms Magtoto was performing duties at the Cambridge Tavern in Fairfield which were in contravention of her certificates of capacity saying she had no capacity to work.
The circumstances of the psychological injury, or injury in general have not been put in dispute in this application.
The applicant now seeks that the respondent refunds the workers compensation insurer of the applicant, weekly payments that have been paid to the respondent on the basis that she had no capacity to work.
ISSUE FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) is s 58(1) of the Workers Compensation Act 1987 (the 1987 Act) engaged.
PROCEDURE BEFORE THE PERSONAL INJURY 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.
The dispute was listed for Conciliation and Arbitration on 24 October 2024. There was no appearance on behalf of the respondent. This followed non-appearance by the respondent at two preliminary conferences, namely 20 August 2024 and 6 September 2024.
The respondent was telephoned on each occasion with no answer to the call.
Mr Brendan Jones of Counsel appeared on behalf of the applicant instructed by Mr van der Hout (Solicitor) at the listed hearing.
In order for the respondent to be able to understand the claim made against her I directed those written submissions be filed and served upon her.
The respondent has not sought to engage in the proceedings.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) submissions from the applicant dated 30 October 2024.
LEGISLATION
Section 58 of the 1987 Act provides:
“WORKERS COMPENSATION ACT 1987 - SECT 58
Refund of weekly payments paid after return to work etc
(1) If, because of a worker's return to employment or a change in employment that affects the worker's earnings--
(a) the worker is not entitled under this Act to any weekly payments of compensation that have been paid to the worker, or
(b) the amount of any weekly payments of compensation that have been paid to the worker exceed the amount to which the worker is entitled under this Act (including under the former Act),
the Commission may order the worker to refund to the person who made the payments any amount to which the worker is not entitled in respect of payments during any period not exceeding 2 years (or such shorter or longer period as the Commission considers to be appropriate) from the date of payment.
(2) Any such refund may, in accordance with the terms of the Commission's order, be deducted from future weekly payments of compensation to the worker or be recovered as a debt in a court of competent jurisdiction.
(3) This section applies even though the weekly payments of compensation are payable under an interim payment direction by the President.
(4) Without limiting this section, the Commission may make such orders as the Commission thinks fit for the adjustment of weekly payments of compensation to a worker to take account of any overpayments made to the worker (whether or not in the circumstances referred to in subsection (1)) in respect of any previous period.
(5) In this section--
(a) a reference to the worker's return to employment includes a reference to the worker's commencing employment, and
(b) a reference to employment includes a reference to employment in the worker's own business.
(6) A court before which proceedings for an offence under section 57 are taken against a person may, on the application of the Authority (whether or not the person is convicted of the offence), make any order that it is satisfied the Commission could make under this section as a result of the return to employment or change in employment to which the alleged offence relates. The standard of proof that applies in connection with an application under this subsection is proof on the balance of probabilities.
(7) The power conferred on a court by subsection (6) is subject to the following limitations--
(a) it does not authorise the making of an order providing for the refund to be deducted from any future weekly payments of compensation to the extent that they are payable under an award of the Commission,
(b) it does not authorise the making of an order of the kind described in subsection (4).
(8) An order under subsection (6) is enforceable as a civil debt and may be recovered as such in any court of competent jurisdiction by the person to whom the order requires payment to be made.
(9) The Local Court cannot order the payment of an amount under subsection (6) that when added to the amount of any penalty imposed for the offence concerned would exceed an amount equivalent to 500 penalty units.
(10) This section does not limit any other right of recovery that a person may have against another person in respect of any overpayment of compensation to that other person.”
The preliminary issue is to determine whether the criteria in s 58(1) of the 1987 Act has been satisfied.
The evidence before me clearly establishes that there has been a change in employment that has affected the worker’s earnings. The evidence in this case is contained in the following relevant evidence:
(a) Mr Arthur Laundy in a statement dated 13 June 2024[1] explains how he became suspicious of the respondent’s employment circumstance. He had been given information by a staff member who had seen the respondent performing duties at the Green Valley Hotel. In a further statement dated 13 June 2024,[2] Mr Laundy explained that he was made aware by patrons of the hotel that the respondent had been seen performing duties at the Cambridge Tavern at Fairfield. This was in approximately October 2022, when her workers compensation claim was ongoing and payments were being made for incapacity, and
(b) surveillance was undertaken by Lee Kelly who prepared a report dated
29 February 2024[3] which captured footage of the respondent working in the gaming area inside the Green Valley Hotel.[1] Application page 1.
[2] Application page 3.
[3] Application page 132.
Putting all that evidence together it appears to me that there has been a change in employment because the worker has returned to employment, with another employer, and as such the provisions are enlivened in respect of seeking an order that may involve the worker refunding payments that have been made to which she was not entitled (though s 58 provides that they can be deducted from future weekly payments of compensation to the worker or be recovered as a debt in a court of competent jurisdiction).
The written submissions from the respondent dated 30 October 2024 helpfully refer to one of the limited authorities in relation to the operation of s 58(1) which is Labourpower Recruitment Services Pty Limited v Nolland.[4] That decision related to a plaintiff, the employer, appealing the decision of a Magistrate to dismiss proceedings in the Local Court to recover an alleged overpayment to Brett Nolland (the defendant/worker). Her Honour Justice Adamson commented at paragraph 31:
“In the present case, the plaintiff seeks recovery of an alleged overpayment made as a consequence of alleged false or misleading conduct by the defendant worker. In neither case does s 58(1) of the 1987 Act provide the employer with an avenue for recovery in the Commission, as was common ground in the present case. It was also common ground that there was no other provision in the Workplace Injury Management and Workers Compensation Act which gave the plaintiff a right to commence proceedings in the Commission to recover what it is alleged to have been an overpayment to the defendant.”
[4] Labourpower Recruitment Services Pty Limited v Nolland [2019] NSWSC 512.
In this dispute, the Labourpower decision can be differentiated as in that case the plaintiff sought recovery of an alleged overpayment made as a consequence of alleged false and misleading conduct by the defendant worker. In this dispute all that can be sought in this jurisdiction is in effect that the ‘overpayments’ can be deducted from future weekly payments of compensation to the worker.
In this case the claim being pursued is simply relying on the respondent’s return to work/change of employment as a foundation for seeking an order for repayment. I have found that there has been a change in employment and as such s 58 of the 1987 Act is engaged and is a matter to which the Commission has jurisdiction.
NEXT STEPS
I am satisfied the respondent worker has been notified of these proceedings at all times and has elected to not participate.
It is necessary to quantify any payment with some exact detail noting that the respondent may not wish to participate in the proceedings and should not be left without the merits of her circumstances being considered.
In those circumstances it seems appropriate to me that directions for production are to be issued to various entities as identified in the applicant’s submissions dated 30 October 2024. The directions for production include two venues where the respondent appears to have been working whilst receiving weekly compensation, namely Green Valley Hotel and Cambridge Tavern. Documents produced from these entities are directly relevant to the dispute before me.
The applicant also seeks directions for production on QBE Insurance (Australia) Limited and AAI Limited trading as GIO to seek information regarding a motor vehicle accident in which the respondent was involved and to ascertain if there were ongoing payments made to her in respect of that claim.
In R v Saleam [1999] NSWCCA 86 (Saleam), the test for determining whether a party is required to produce documents was stated in the following terms: “Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case.” (at [11])
These applications to QBE Insurance (Australia) Limited and AAI Limited t/as GIO are rejected as they do not appear to be relevant to the enquiry that is being made at this stage, that is whether the respondent has been working in another venue and what income she has been receiving. I am not convinced that there is a legitimate forensic purpose in this dispute. The ambit of the request for the direction of production on these two bodies goes beyond what has been contemplated in this application and as such they are rejected.
The respondent also seeks directions for production on the Commonwealth Bank of Australia and Westpac Group in relation to payments which may or may not have been made by an insurer. Once again, these two documents go outside the ambit of the dispute which is whether the respondent was working and has been paid incorrectly in respect of the workers compensation weekly payments.
The applicant also seeks directions for production on the Proper Officer of the Department of Home Affairs so that they can ascertain the respondent’s international movements/travel records including but not limited to departure and arrival dates in and out of Australia. To my mind this is relevant to the non-appearance of the respondent in these proceedings and that direction for production is permitted.
A separate direction for production document will be prepared and issued for these proceedings.
The matter will be listed for further telephone conference on 14 February 2025 at 10.30am.
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