Linfox Australia Pty Ltd v Hales
[2016] NSWWCCPD 30
•3 June 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT | ||
| CITATION: | Linfox Australia Pty Ltd v Hales [2016] NSWWCCPD 30 | |
| APPLICANT DEFENDANT: | Linfox Australia Pty Ltd | |
| RESPONDENT CLAIMANT: | Peter Hales | |
| FILE NUMBER: | 1607/16 | |
| DATE OF DECISION: | 3 June 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: | Hicksons |
| Respondent Claimant: | P K Simpson & Co | |
| ORDERS MADE ON APPLICATION: | 1. Pursuant to s 151DA(4) of the Workers Compensation Act 1987 the claimant’s pre-filing statement is struck out. 2. No order as to costs. | |
INTRODUCTION
This matter concerns an application filed by the applicant defendant, Linfox Australia Pty Ltd, 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. For the following reasons the application is successful.
BACKGROUND
The claimant was a storeman and packer for the applicant defendant, working at various locations across New South Wales.
The claimant alleged that he suffered injuries to his back in the course of his employment with the applicant defendant in the following circumstances:
(a) on 2 February 2000, when he lifted a large size medium density fibreboard;
(b) from 5 July 1998 to 31 December 2001 while he was engaged in heavy lifting work, sliding and lifting sheets of medium density fireboard;
(c) on 14 November 2003, when he was driving a forklift over rough terrain;
(d) on 23 March 2004, when he was cutting strapping with tin snips;
(e) on 29 November 2004, when he was lifting and sliding heavy sheets of medium density fibreboard, and
(f) from 1 January 2002 to 3 April 2006 while he was engaged in work involving repetitive and strenuous back and upper body movements.
On 15 September 2008, the claimant filed an Application to Resolve a Dispute seeking lump sum compensation in respect of the above injuries. The Commission referred the claimant to Dr Roland Middleton, Approved Medical Specialist, for assessment of any impairment arising from his injuries.
On 6 February 2009, Dr Middleton issued a Medical Assessment Certificate in respect of injury to the back arising from the above incidents. The total permanent impairment arising from the injuries received before 1 January 2002 was assessed at 2.5 per cent each in accordance with the Table of Disabilities. The total whole person impairment arising from the injuries received after 1 January 2002 was assessed at eight per cent in accordance with AMA5 and the WorkCover Guidelines for the Evaluation of Permanent Impairment.
On 16 February 2009, Dr Middleton issued a further Medical Assessment Certificate, providing the same assessment referred to above.
On 26 March 2009, the Commission issued a Certificate of Determination ordering that the applicant defendant pay the claimant lump sum compensation in accordance with Dr Middleton’s assessment.
On or about 31 July 2009, the claimant underwent an L4/L5 microdiscectomy and right L5 nerve root rhizolysis. The pain in his lower back persisted and he subsequently underwent spinal fusion surgery on 7 November 2009.
On 14 February 2011, the claimant filed another Application to Resolve a Dispute seeking compensation for medical expenses and further lump sum compensation in respect of the above injuries. The claimant was again referred to Dr Middleton for assessment of permanent impairment arising from the injuries.
On 23 June 2011, Dr Middleton issued a further Medical Assessment Certificate. The permanent impairment arising from the injuries received before 1 January 2002 was assessed at 3 per cent each in accordance with the Table of Disabilities. The total whole person impairment arising from the injuries received after 1 January 2002 was assessed at 21 per cent whole person impairment in accordance with AMA5 and the WorkCover Guidelines for the Evaluation of Permanent Impairment.
On 14 March 2012, the Commission issued a Certificate of Determination ordering the applicant defendant to pay the claimant lump sum compensation pursuant to s 66 of the 1987 Act in accordance with Dr Middleton’s assessment of 23 June 2011. An order for lump sum compensation in respect of pain and suffering under s 67 of the 1987 Act was also made. On 3 May 2012, a Certificate of Determination – Consent Orders was issued confirming the orders made on 14 March 2012, and certifying the matter as complex with a 10 per cent uplift in costs.
On 18 June 2012, the claimant’s legal representatives served on the defendant a pre-filing statement.
On 17 July 2012, the claimant filed an application for mediation to resolve the work injury damages claim (application for mediation) in the Commission.
On 18 July 2012, the applicant defendant’s legal representatives served on the claimant a pre-filing defence.
On 3 October 2012, the applicant defendant filed a Response to the application for mediation, declining to participate in the mediation on the ground that liability was wholly disputed.
On 4 October 2012, the Commission issued a Certificate of Mediation certifying that the applicant defendant declined to participate in mediation on the ground that it wholly disputed liability in respect of the claim.
On 30 March 2016, the applicant defendant filed an Application to Strike Out a Pre-Filing Statement (the Application).
On 12 May 2016, the claimant filed a Notice of Opposition to the Application. Under the heading “Orders Sought” the claimant submits that he “consents to the Application being struck out” and sought no orders as to costs. No further submissions were made.
On 16 May 2016, the Commission sent a letter to the parties referring to the Notice of Opposition and noting that the claimant consents to the “Application being struck out”. The Commission advised that often in such circumstances parties elect to file either:
(a) an Agreement to Discontinue Proceedings (Form 14A), or
(b) an Election to Discontinue Proceedings (Form 14B), or
(c) draft consent orders.
The Commission encouraged the parties to consider the above options.
No advice has been received in response to the Commission’s letter of 16 May 2016.
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.”
SUBMISSIONS
The applicant defendant submits that the claimant has not taken any steps to prosecute the claim for work injury damages since 4 October 2012. The applicant defendant also submits that it is an abuse of process to serve a pre-filing statement to prevent time from running. There is no evidence that court proceedings have been commenced or any active steps have been taken since the Commission issued the Certificate of Mediation.
The applicant further submits that it is prejudiced by the delay caused by the claimant in not prosecuting his claim. Relying on Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108, John Lacey Earth Moving Pty Ltd v Campbell-Willis [2007] NSWWCCPD 197 and WorkersCompensation Nominal Insurer v England [2011] NSWWCCPD 41, the applicant defendant seeks to have the pre-filing statement struck out pursuant to s 151DA.
The claimant does not oppose the Application. As noted above, the claimant consents to the “Application being struck out”.
DISCUSSION AND FINDINGS
I accept the applicant defendant’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 three years since the applicant defendant filed its pre-filing defence and the Commission issued a Certificate of Mediation, certifying that the applicant defendant wholly disputed liability. Further, the claimant has elected to offer no resistance to the Application that his pre-filing statement be struck out. That is clearly a powerful factor in favour of granting the applicant defendant’s application (Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104; 54 NSWLR 207).
As the claimant has taken no steps to explain the substantial delay in pursuing his work injury damages claim or provide any assurance to the Commission that he intends to pursue the litigation, I consider in the exercise of my discretion that the Application should be granted.
I note that the parties do not seek an order as to costs.
DECISION
Pursuant to s 151DA(4) of the Workers Compensation Act 1987 the claimant’s pre-filing statement is struck out.
COSTS
No order as to costs.
Judge Keating
President
3 June 2016
0
4
0