May v State of New South Wales (NSW Police Force)
[2023] NSWPIC 347
•13 July 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | May v State of New South Wales (NSW Police Force) [2023] NSWPIC 347 |
| APPLICANT: | Robin Lindsay May |
RESPONDENT: | State of New South Wales (NSW Police Force) |
| PRINCIPALMember: | Glenn Capel |
| DATE OF DECISION: | 13 July 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Assessment of costs; claim for lump sum compensation resolved; complying Agreement included an agreement that the respondent pay the applicant’s costs as agreed or assessed; applicant claimed the cost of a second Independent Medical Examination (IME) report that did not establish an entitlement to lump sum compensation; opposed by the respondent; Gulic v GMG Transport and Sipple v Trustee for KF Administrative Services Trust discussed and applied; Held – respondent liable for the cost of the second IME report because it was deemed to be a medical or treatment expense in accordance with section 73 of the Workers Compensation Act 1987; no order as to the costs of the assessment. |
| determinations made: | The Commission determines: 1. The respondent is to pay for cost of the reports of Dr R Gertler dated 1 June 2022 in the sum of $1,815.66 inclusive of GST. 2. No order as to the costs of the assessment. |
STATEMENT OF REASONS
BACKGROUND
Robin Lindsay May (the applicant) is 40 years old and was employed by the State of New South Wales (NSW Police Force) as a police officer. He sustained a psychological injury on 27 November 2020.
Liability was accepted by Employers Mutual Ltd (the insurer) on 7 December 2020. The applicant was medically discharged on 15 September 2022.
On 8 March 2022, the applicant’s solicitor, Mr Clarke, qualified Dr Robert Gertler to provide a report regarding the applicant’s psychological injury and an assessment of whole person impairment.
Dr Gertler provided two reports on 1 June 2022. He diagnosed a post-traumatic stress disorder with associated depression as a result of the applicant’s work injury. He assessed 9% whole person impairment.
On 6 June 2022, Mr Clarke qualified another psychiatrist, Dr Shannon Paisley, to provide a report regarding the applicant’s psychological injury and an assessment of whole person impairment. He was provided with a similar medical file, but the report of Dr Gertler was excluded. In a report dated 10 August 2022, Dr Paisley assessed 20% whole person impairment.
On 6 September 2022, Mr Clarke served a notice of claim for $30,250 in respect 20% whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), and $37,500 for pain and suffering pursuant to s 67 of the 1987 Act due to a psychological injury sustained on 27 November 2020.
The respondent qualified Dr Chalmers, who assessed 19% whole person impairment.
Dr Chalmers’ report is not before me.On 20 February 2023, the parties agreed to resolve the applicant’s claim for $28,600 in respect of 19% whole person impairment pursuant to s 66 of the 1987 Act and $22,000 for pain and suffering pursuant to s 67 of the 1987 Act.
The parties executed a Complying Agreement on 20 February 2023 and 27 February 2023 respectively. It was a term of the settlement that the respondent would pay the applicant’s costs as agreed or assessed.
On 27 February 2023, Mr Clarke submitted a tax invoice to Ms Mikaelian for $8,531.91 (inclusive of GST), comprising $4,557.19 (inclusive of GST) in respect of professional costs together with the following disbursements:
Disbursements
Amount
Total
Craig Thomas Holt - clinical records
$60
Tweed Health for Everyone
$154.18
R Gertler Pty Ltd - report
$1,650.60
Dr M McDornan- clinical notes
$38
Dr Shannon Paisley - report
$1,650.60
Craig Thomas Holt - clinical records
$60
GST on disbursements
$361.34
$3,974.72
A number of emails passed between the solicitors. Mr Clarke conceded that the report of
Dr Gertler had not been served. There was some discussion regarding the application of s 73 of the 1987 Act, but there were no actual costs negotiations.A copy of the substantive report of Dr Gertler was sent to Ms Mikaelian on 6 March 2023.
On 5 April 2023, Mr Clarke advised via email that if the applicant’s professional costs and disbursements were not paid within seven days, he would be filing applying for an assessment of costs in the Personal Injury Commission (Commission).
On 6 April 2023, Ms Mikaelian requested a copy of Dr Gertler’s whole person impairment assessment report and the clinical notes of Dr McDornan that had not been previously served. These documents were provided on 6 April 2023.
On 6 April 2023, Ms Mikaelian advised that she would recommend payment of the applicant’s costs and disbursements excluding the fees for the two reports of Dr Gertler dated 1 June 2022. Mr Clarke responded that he would proceed to an assessment of his costs.
An electronic funds transfer from the insurer dated 26 April 2023 confirmed that a payment of $6,674.45 (inclusive of GST) was made to the applicant’s solicitors. There was no payment for the reports of Dr Gertler or for the fees claimed for the clinical notes of Dr McDornan.
On 19 June 2023, Mr Clarke lodged an Application for Assessment of Costs in respect of the above disbursements. He attached submissions, tax invoices and a large number of emails that passed between the parties.
The respondent’s solicitor filed submissions and supporting documents on 4 July 2023.
Unfortunately neither party attached Dr Gertler’s report, so I directed that the applicant file additional documents that I considered would be relevant to the assessment.
On 11 July 2023, Mr Clarke filed the additional documents that I had requested and he advised the Commission that the insurer had paid for the fees charged by Dr McDornan, so the only matter in dispute related to the fees for the reports of Dr Gertler.
ISSUE FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether the respondent is liable to pay the cost of the reports of Dr Gertler dated 1 June 2022 in the sum of $1,815.66 inclusive of GST.
EVIDENCE
I have reviewed the material attached to the submissions of the parties and further documents that were filed at my direction.
Unfortunately the task of assessing the applicant’s costs has been unnecessarily complicated by both parties annexing multiple copies of email trails and copies of various claim documents and clinical notes that have no relevance to the assessment of costs.
Further, the applicant’s solicitor failed to attach copies of the disputed documents and reports, when they were obviously relevant for this assessment. I had to arrange for relevant documentation to be filed and this delayed the finalisation of the assessment.
SUBMISSIONS
Applicant’s submissions
Mr Clarke submits that the applicant seeks payment of the fees for the reports of Dr Gertler dated 1 June 2022 in accordance with s 73 of the 1987 Act. He relies on Gulic v GMG Transport[1] and Sipple v Trustee for KF Administrative Services Trust.[2]
[1] WCC 12342/12, 19 February 2013, (Gulic).
[2] [2014] NSWWCC 7, (Sipple).
Mr Clarke submits that a claim was duly made based on the report of Dr Paisley. The respondent arranged a medico-legal assessment with Dr Chambers, who assessed 19% whole person impairment. The claim subsequently settled for 19% whole person impairment.
Mr Clarke concedes that the report of Dr Gertler was not served in the duly made claim, but it was served after the Complying Agreement was finalised.
Mr Clarke submits that Dr Gertler is a trained assessor of permanent impairment and prepared a report consistent with the permanent impairment guidelines for the assessment of a primary psychiatric injury. The fact that the doctor provided an assessment below the 15% threshold was immaterial to the recovery of the cost of that report under s 73 of the 1987 Act.
Mr Clarke submits that the applicant sought a second opinion from Dr Paisley. Dr Paisley’s assessment allowed the applicant to make a claim for lump sum compensation under s 66 of the 1987 Act.
Mr Clarke submits that the objective of s 73 of the 1987 Act is to compensate a worker in circumstances where a report is obtained in preparation for a permanent impairment claim which was subsequently successful or determined, consistent with the reasoning in Gulic[3] and Sipple.[4] The facts in the present matter are similar, and the applicant is entitled to recover the cost of the report of Dr Gertler.
[3] Gulic [94].
[4] Sipple, [37].
Mr Clarke submits that the obvious intent of s 73(1)(2) of the 1987 Act is to allow for reports to be paid for when they are not going to be paid for as a disbursement. He submits that it would be contrary to the concept of beneficial legislation that a worker would not be able to recover such cost.
Mr Clarke submits that the applicant claims the cost of this assessment for two hours of work at a rate to be determined by the Commission. He also reserves the right of reply to the respondent’s submissions.
Respondent’s submissions
Ms Mikaelian has made submissions regarding the fees claimed for the clinical notes of
Dr McDornan. Given that these are not pressed because they have been paid, I will have no regard for these submissions.Ms Mikaelian submits that s 73 of the 1987 Act can be applied to instances where a worker has been assessed below the threshold for lump sum compensation to be payable and nonetheless is entitled to payment of the fees for that report that initially supported the making of the claim.
Ms Mikaelian submits that in the present matter, the report of Dr Gertler did not support the making of any claim, because he assessed 9% whole person impairment. Dr Paisley’s assessment was relied upon in making the claim and the cost of that report has been paid by the respondent.
Ms Mikaelian submits that the present case differs from the facts in Gulic and Sipple. In Gulic, the respondent was ordered to pay for the cost of the Independent Medical Expert (IME) report of the applicant, even though the assessment was below the whole person impairment threshold. The parties had agreed that Mr Gulic’s impairment was under the threshold. This decision was by way of an expedited assessment and is not binding.
Ms Mikaelian submits that the respondent was liable to pay for the cost of Mr Gulic’s report because he was not to know that, prior to being assessed, the report would result in a below threshold assessment.
Ms Mikaelian submits that in the present case, the applicant relied on Dr Paisley’s report in making the claim and was subsequently compensated under ss 66 and 67 of the 1987 Act. Dr Gertler’s report was not served on the respondent for consideration.
Ms Mikaelian submits that in Sipple, Arbitrator Egan agreed that the costs of a “medical certificate” were payable by the respondent under s 73 of the 1987 Act as they related to the permanent impairment claim. Mr Sipple was claiming the cost of only one IME report, and the costs were payable once the Commission had determined the matter.
Ms Mikaelian submits that Arbitrator Egan was not dealing with the cost of a second IME report that was obtained and relied upon in support of the lump sum claim. She submits if payment for Dr Gertler’s report fee is allowed, it will endorse the practice of IME “phishing” and could result in multiple IME reports from different doctors that would come at the cost of the respondent until an assessment over the threshold was obtained.
Ms Mikaelian submits that there was no justification in the present matter for a subsequent report from a different IME barely three months after the appointment with Dr Gertler. There is also no evidence that the worker suffered any deterioration in that time. Furthermore,
Dr Gertler certified the applicant as having reached maximum medical improvement.Ms Mikaelian submits that the most obvious conclusion to be drawn is that the applicant was dissatisfied with the assessment of Dr Gertler and was intent on obtaining an over-threshold assessment to justify the payment of lump sum compensation under ss 66 and 67 of the 1987 Act. This is not a suitable practice by any party. She submits that the respondent should not be ordered to pay for the cost of the report of Dr Gertler.
Legislation
The 1987 Act
Section 73 of the 1987 Act provides:
“73 Reimbursement for costs of medical certificate and examination
(1) The obtaining of a permanent impairment medical certificate and any examination required for the certificate are taken to be a medical or related treatment for the purposes of Division 3 if—
(a) the medical practitioner has completed such training as the Authority may require in respect of the assessment of the degree of permanent impairment as provided by this Act, and
(b) the worker has given the employer a copy of the certificate.
(2) In this section—
permanent impairment medical certificate means a report or certificate of a medical practitioner that certifies—
(a) that a worker has received an injury resulting in permanent impairment,
and(b) the degree of permanent impairment (assessed as provided by this Act)
resulting from the injury.(3) The following provisions apply to compensation to which a worker is entitled in respect of the obtaining of a permanent impairment medical certificate and any examination required for the certificate—
(a) the compensation is not payable until the claim for the permanent
impairment compensation to which the certificate or examination relates
is determined,(b) a claim for the compensation is to be treated as part of the claim for the
permanent impairment compensation to which the certificate or
examination relates (and so is subject to the requirements of section 281
of the 1998 Act as to when the claim must be determined),(c) section 279 (Liability to be accepted within 21 days) of the 1998 Act
does not apply to the compensation.”
Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)
Section 335 of Pt 8 of the 1998 Act deals with the assessment of costs. It provides that an assessment of costs is to be made so as to give effect to the provisions of Pt 8 of the 1998 Act. This is the task that I am presently undertaking.
Personal Injury Commission Act 2020 (the PIC Act)
Clause 5 of Schedule 3 to the PIC Act provides for the Commission to be constituted by one non-presidential Member assigned to the Workers Compensation Division when dealing with costs assessments under the regulations. Therefore, as a Principal Member of the Commission, I am able to assess the applicant’s costs and disbursements.
REASONS
The applicant seeks that the respondent pay the sum of $1,815.66 inclusive of GST for the cost of reports of Dr Gertler.
The applicant relies on two decisions of the Workers Compensation Commission, Gulic and Sipple, in support of his claim for fees. Ms Mikaelian submits that the facts in those cases differ from this matter, however, in my view they are remarkably similar. The main difference is that the two cited decisions only involved the payment for one IME report and in this matter, the applicant qualified two specialists.
In Gulic, the matter related to a claim for payment for the report of an IME who had provided an assessment that was below the statutory threshold for lump sum compensation. The insurer had declined to pay for the cost of the IME report.
Delegate Paterson found that ss 73(1) and 73(2) of the 1987 Act deemed the cost of a permanent impairment medical certificate or report to be a medical or related treatment expense which was recoverable as soon as the payment was claimed. He considered that
s 73(3) of the 1987 Act was directed to the timing of recovery of the cost of the medical impairment medical certificate where payment was deferred until a claim for permanent impairment had been determined either by agreement or by the Commission. The delegate also found that it was not necessary to have a degree of whole person impairment for the expense to be payable.In Sipple, the worker’s solicitor served a notice of claim on the insurer with copy of a report from an IME. The insurer declined to pay for the cost of the worker’s IME report on the grounds that no lump sum compensation was payable because the degree of whole person impairment was assessed at 9%. The insurer relied on s 73(3)(b) of the 1987 Act in support of its position.
Arbitrator Egan observed that the IME report had to satisfy the criteria in ss 73(1) and 73(2) of the 1987 Act, and he was satisfied that the report did so. The Arbitrator noted that s 73(3) of the 1987 Act implies that a worker has an entitlement to compensation for the costs of the report or certificate. It provides that the compensation is not payable until the claim for permanent impairment compensation to which a report or certificate relates is determined. A determination of a claim will occur whether or not it amounts to an entitlement to lump sum compensation. Section 73 of the 1987 Act did not change the expense from a medical expense to permanent impairment compensation and was merely temporal in nature for dealing with claims.
Arbitrator Egan stated that s 73(3)(b) required the claim for compensation for the report fee to be treated as part of the claim for permanent impairment compensation to which the report relates, but the effect of s 73(1) of the 1987 Act deemed those expenses to be medical expenses. Accordingly, he determined that the applicant’s IME report was a medical or related treatment expense and he ordered that the respondent pay for the cost of the report.
It is true that the delegate’s decision is not binding, but in my view, it is highly persuasive. The analysis of the statuary provisions by delegate Paterson is excellent and I can find no fault in the delegate’s interpretation and findings.
Arbitrator Egan’s analysis was extensive and I respectfully agree with their conclusions. Section 73 of the 1987 Act deems the report fee to be a medical or treatment expense and not a medico-legal disbursement.
In the present matter, it is true that the applicant qualified two IMEs, but the deeming provisions in ss 73(1) and 73(2) of the 1987 Act works in his favour. In the absence of this provision, the applicant would not be entitled to payment for the reports of Dr Gertler.
The applicant’s solicitor understandingly refrained from serving the reports of Dr Gertler because they did not establish an entitlement to lump sum compensation. The reports were served, albeit after the parties had executed the Complying Agreement. The section does not stipulate when the report should be served, only that it be served on the employer.
It is also understandable that Mr Clarke qualified another IME shortly after he received
Dr Gertler’s reports. There might be some merit in the respondent’s submission regarding “phishing” and the possibility of multiple IME reports from different doctors, however, in my view, the terms of s 73 of the 1987 Act are clear and unambiguous..Therefore, in my view, the criteria in ss 73(1) and 73(2) of the 1987 Act have been satisfied, meaning that the report is deemed to be a medical or related treatment expense, even though it did note establish an entitlement to lump sum compensation. That entitlement did not materialise until the applicant obtained the report of Dr Paisley.
Accordingly, the cost of the reports of Dr Gertler should be paid by the respondent in accordance with ss 73(1) and 73(2) of the 1987 Act.
Mr Clarke claims the cost of this assessment. The email trail shows that much of the work was done before the decision to file this Application and would be encompassed in his professional costs for the matter.
Mr Clarke has given no particulars of the work that was undertaken by him for the purpose of this Application. He has merely asked for two hours at a rate to be determined by me.
I am unable to assess whether or not the work that he did was reasonable and what amount is fair and reasonable for his costs. In the circumstances, I do not propose to make any order in respect of the costs of the assessment.
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