Lean v Raygal Pty Ltd - [2025] NSWPIC 313

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lean v Raygal Pty Ltd [2025] NSWPIC 313
APPLICANT:	Brian Lean
RESPONDENT:	Raygal Pty Limited
MEMBER:	John Turner
DATE OF DECISION:	2 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (WC Act); Workplace Injury Management and Workers Compensation Act 1998 (WIM Act); claim for weekly benefits compensation; sections 32A, 33, 37 and clause 9 of Schedule 3 of the WC Act; sections 78, 79, 80, 289, 287A, and 289A of WIM Act; validity of section 78 dispute notice and work capacity decision following issue of a section 287A review notice; discretion; notice period; incapacity; estoppel by conduct; suitable employment; Mateus v Zodune Pty Limited t/as Tempo Cleaning Services, Commonwealth v Verwayen, Begnell v SuperStart Batteries Pty Ltd and Wollongong Nursing Home Pty Ltd v Dewar considered and applied; Held – section 78 notice and work capacity decision revoked following section 287A review outcome; no dispute as to incapacity or weekly compensation; respondent not estopped from disputing incapacity or weekly compensation; suitable employment and capacity to earn assessed; respondent to pay weekly compensation.
DETERMINATIONS MADE:	1. That the work capacity decision of 20 June 2024 and the notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) dated 15 July 2024 were revoked by the notice of the outcome of the review requested pursuant to s 287A of the 1998 Act of 9 December 2024 and are not valid and extant. 2. That following the issue of the review notice dated 9 December 2024 there was no dispute in respect to incapacity and the payment of weekly compensation. 3. Pursuant to s 289A(4) of the 1998 Act the respondent is granted leave to dispute incapacity for work. 4. The respondent is not estopped from disputing incapacity, disputing payments of weekly compensation after 30 April 2025, from relying on the vocational assessment report by Pinnacle Rehab dated 7 June 2024 or from asserting that a Parking Inspector is suitable employment. 5. The vocational assessment report of Pinnacle Rehab dated 7 June 2024 is admitted into evidence. 6. The applicant has had from 30 April 2025 and continues to have the capacity to earn $816 per week working 24 hours per week as a Parking Inspector. 7. The applicant is entitled to a six week period of notice pursuant to s 80(4)(b) of the 1998 Act from 1 May 2025 to 11 June 2025. 8. The respondent is to pay the applicant the following: (a) $1,392 per week from 7 August 2024 to 30 September 2024 pursuant to s 37(1) of the Workers Compensation Act 1987 (1987 Act); (b) $1,416 per week from 1 October 2024 to 31 March 2025 pursuant to s 37(1) of the 1987 Act; (c) $1,424 per week from 1 April 2025 to 11 June 2025 pursuant to s 37(1) of the 1987 Act, and (d) $608 per week from 12 June 2025 to date and continuing subject to indexation pursuant…

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.

Continue reading Lean v Raygal Pty Ltd

Details

AGLC: Lean v Raygal Pty Ltd [2025] NSWPIC 313
Case: [2025] NSWPIC 313
Decision Date: 2 July 2025

CaseChat Overview and Summary

Lean brought a claim against Raygal Pty Ltd in the Workers Compensation Claims Tribunal of New South Wales, seeking weekly benefits compensation. The dispute involved the validity of a section 78 dispute notice and a work capacity decision issued by Raygal following the applicant’s request for a review under section 287A. Lean argued that the review notice rendered the earlier section 78 notice invalid, and that Raygal was estopped from disputing the applicant’s incapacity or the weekly compensation amount. Raygal, on the other hand, contended that the review notice did not affect the section 78 notice and that it was not estopped from disputing the applicant’s incapacity or the compensation amount.

The Tribunal had to determine whether the section 78 notice was valid after the applicant’s request for a review under section 287A. It also had to assess if Raygal was estopped from disputing the applicant’s incapacity or the weekly compensation amount. These issues required interpretation of the relevant sections of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act) and the Workers Compensation Act 1987 (WC Act). The Tribunal examined the requirements for a valid section 78 notice under section 79 of the WIM Act, the effect of a section 287A review notice, and the principles of estoppel by conduct. It considered the authority of Mateus v Zodune Pty Limited t/as Tempo Cleaning Services, Commonwealth v Verwayen, Begnell v SuperStart Batteries Pty Ltd and Wollongong Nursing Home Pty Ltd v Dewar.

The Tribunal found that the section 78 notice was invalid following the outcome of the section 287A review. It noted that the review notice referred to the applicant's request for review made on 5 November 2024, and while it did not explicitly mention the section 78 notice, it did state that the effect of the review decision was an increase in weekly compensation payments to the applicant. The Tribunal held that Raygal was not estopped from disputing the applicant’s incapacity or the weekly compensation amount. The Tribunal assessed the applicant’s work capacity and capacity to earn, and concluded that the applicant was entitled to weekly compensation. The Tribunal ordered Raygal to pay the applicant weekly compensation from 1 October 2024 at the increased rate of $1,360.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 79 of the 1998 Act states:“79 How notice of decision is given(1)A notice required by this Division must be given—(a)to the claimant or worker concerned, and(b)in the case of a notice of a decision to dispute liability—to the worker’s employer, if required by the regulations.(2) The notice must contain a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision.(3) In addition, notice of a decision to dispute liability for a claim for compensation must identify any provision of the workers compensation legislation on which the insurer relies to dispute liability.(4) The regulations may make provision for—(a)the manner in which a notice under this Division is to be given, and(b)the form of and other information to be included in or to accompany the notice.” Section 287A of the 1998 Act states:“287A Request for review(1) A worker may request an insurer to review—(a)a work capacity decision of the insurer that is disputed by the worker, or(b)a claim, or any aspect of a claim, that is disputed by the insurer.(2) A request may be made at any time before the dispute is referred for determination by the Commission.(3) The insurer must conduct the review, and notify the worker of the decision on the review, within 14 days after the request is made.Maximum penalty—50 penalty units.” Where an insurer disputes liability in respect of a claim and/or wishes to terminate or reduce payments of weekly compensation it is, pursuant to ss 78 and 79 of the 1998 Act, required to provide the worker with reasons for disputing liability. It is important to note that the notice is given to the claimant or worker and pursuant to s 79(2) “must contain a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision.” Roche DP in Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227 (Mateus) when considering notices issued under the former s 74 (repealed) of the 1998 Act stated at [45]:“A section 74 notice must state in plain language, in the body of the document, the reason the insurer disputes liability and the issues relevant to the decision. An obscure reference to a document attached to the notice, but dealing with a different issue to that identified in the notice, is not sufficient.” In Mateus Roche DP went on to state at [48(a)]:“a decision to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved” I am of the view that there is no valid extant notice disputing liability. Whilst the respondent in the review notice of 15 July 2024 raised disputes in respect to injury, substantial contributing factor, incapacity and whether treatment was reasonably necessary as a result of an injury the applicant requested a review pursuant to s 287A of both the work capacity decision of 20 June 2024 and the s 78 notice of 15 July 2024. The review notice of 9 December 2024 refers directly to the request for review made on behalf of the applicant of 5 November 2024. Whilst I accept that the review notice does not refer to the s 78 notice of 15 July 2024 and only refers to the work capacity decision of 20 June 2024 being withdrawn it clearly states that the effect of the decision is that the payments of weekly compensation to the applicant would increase to $1,360 from 1 October 2024.

Ratio Decidendi

Legal Principle Established

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