McGrath v Woodose Pty Ltd

[2021] NSWPIC 471

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McGrath v Woodose Pty Ltd [2021] NSWPIC 471
APPLICANT:	Kylee McGrath
RESPONDENT:	Woodose Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	16 November 2021
CATCHWORDS:	WORKERS COMPENSATION - ARD dismissed pursuant to section 54 of the Personal Injury Commission Act 2020 (2020 Act) and rule 77 of the Personal Injury Commission Rules 2021 (Rules); matter discontinued earlier in 2021; agreement reached that applicant would attend medico-legal assessment with respondent expert in January 2022, but re-issued ARD immediately; claim for weekly benefits and surgery; psych case originally accepted but disputed in reply form to current ARD following discussion re attendance in January 2022; applicant sought to sever psychological claim; Held - applicant misconceived Commission procedure by lodging when it was aware or ought to have been aware that the matter would be relisted before the agreed assessment on January 2022; ARD dismissed; severance application dismissed pursuant to rule 64 of the Rules.
DETERMINATIONS MADE:	1.     The matter is dismissed.

Short Reasons

A.The ARD in this matter was lodged on 14 October 2021 and the injury description said:

“The worker tripped on concrete stairs at work, landing on the right side of her body and sustaining an injury to the cervical spine, neurological injury and psychological injury.”

B.The claim was for weekly benefits and for a declaration that the surgery proposed by Dr Michael Donnellan, being a C5/6 arthroplasty or an anterior cervical discectomy and fusion, was reasonably necessary.

C.These proceedings were issued earlier but were discontinued before another member on 30 September 2021. I was advised that the reason for the discontinuance was that further evidence was needed to sustain the claim for future surgery.

D.Although a psychological injury had been pleaded in the same terms as the present application, it had been addressed in the first of three s 78 notices. They were dated 8 May 2020, 22 February 2021 and 24 February 2021.  The notice of 8 May 2020 dealing with the claim for psychological injury said:

“Please note that GIO do not, at this stage, dispute liability in respect of your neurological symptoms or your psychological injury. You will continue to receive compensation in respect of those injuries at this stage”.

E.The s 78 notice denied liability for medical and related treatment. It referred to reports by Associate Professor Miniter and determined that any injury to Ms McGrath’s cervical spine had resolved.

F.At the teleconference on 12 November 2021 I was advised that when the matter discontinued on 30 September 2021 the nature of the psychological injury was not discussed. However, there was an agreement later entered into that Ms McGrath would attend a consultation with Dr Whetton, the respondent’s medico-legal psychiatric specialist, sometime in January 2022.

G.When this matter was re-lodged following the discontinuance, the respondent in its reply form sought to raise an issue relating to the nature of a psychological injury.

H.It stated, relevantly:

“In the ARD the Applicant pleads a psychological injury. We are of the opinion that this should be a secondary psychological injury. The Respondent seeks leave to raise a dispute of liability in relation to a secondary psychological injury or alternatively, that any alleged psychological injury gives rise to any incapacity.

To determine this component of the claim, on 11 October 2021, following recent Commission proceedings which were discontinued on 30 September 2021, the Respondent contacted the Applicant and provided appointments options with three different Psychiatrists and also advised that a re-examination with Dr O’Sullivan had been arranged for 24 November 2021. On 13 October 2021 the Applicant agreed, in
writing, to attend the examination with Dr Peter Whetton, Psychiatrist, on 10 January 2022. We advised the Applicant that should she refuse to attend the examination with a Psychiatrist, that a dispute will be raised in relation to any claim for a psychological injury, noting that the Respondent has been precluded and prevented from investigating same. Following this, the Applicant’s current Application was registered on 15 October 2021. Unsuccessful attempts have been made to obtain the Applicant’s clinical records.”

1. The applicant agreed that these arrangements had been made.

J.Ms Edgar who appeared for the applicant contended at one stage that the psychological injury was secondary, but the content of Ms McGrath’s statement at paragraphs 6 and 7 clearly indicated that an allegation was being made that there was a primary psychological injury that had occurred prior to the date of the physical injury, which was 22 December 2016.

K.The applicant has also lodged a report of Dr Abdal W Khan dated 26 November 2019 in which the complaint made was that Ms McGrath had been bullied and harassed from early 2016 by her manager and colleagues. Dr Khan’s opinion[1] was 

[1] ARD page 56

“Ms McGrath experienced gradual deterioration in her mental state since early 2016 as a result of work related psychological trauma she suffered during her employment …. Her initial symptoms of depression and anxiety seemed to have been perpetuated by her work-related physical injury in late 2016.”

L.It follows that it was agreed between the parties that this  matter would abide the opinion of Dr Whetton following the appointment on 10 January 2022. 

M.Rule 77 of the Personal Injury Commission Rules 2021 provide relevantly:

“77   Dismissal of proceedings
The following grounds are specified for section 54(c) of the PIC Act-
(a)            for proceedings by an application made under the workers compensation legislation—the applicant has failed to prosecute the proceedings with due despatch,..”

N.Section 54 of the Personal Injury Commission Act 2020 provides relevantly:

“54          Dismissal of proceedings
The Commission may at any stage dismiss proceedings before it-
(a)  ……..
(b)  if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c)  for any other ground of dismissal specified in the Commission rules.”

O.The applicant in lodging proceedings under these circumstances has misconceived the Commission procedure.  In its action in agreeing to attend the 10 January 2022 appointment with Dr Whetton, the applicant ought to have been aware that if proceedings were immediately reinstituted, which they appear to have been, a hearing date would in all probability be available by the end of the year.

P.There was also a suggestion that the claim for psychological injury be severed from the other claims raised in this ARD but such a proposition was not appropriate given the history of this matter to this point.  The parties are the same, and the claim for psychiatric injury has been extant since the discontinued proceedings were commenced.   Moreover, the dispute concerns whether the psychiatric injury is secondary to the physical injury, and accordingly ought to be heard together.

Q.Rule 64 of the Personal Injury Commission rules provide relevantly:

“64   Consolidation or splitting proceedings

(1)     A person may lodge an originating process for applicable proceedings that relates to -

(a) one or more disputes arising out of a claim, or

(b) the same injury or series of injuries or the same event.

(2)     If there is more than one claim or dispute arising out of the same injury or series of injuries or the same event, the appropriate decision-maker for applicable proceedings may order that-

(a) the claims or disputes be dealt with together in the same proceedings, or

(b) the proceedings for each of the claims or disputes be dealt with concurrently.

(3)     An appropriate decision-maker for applicable proceedings may order that claims or disputes in the same proceedings be dealt with in separate proceedings if satisfied that it would be more appropriate to do so.

(4)     An appropriate decision-maker may, for the purposes of an order made under subrule (2) or (3) (the principal order), make other orders the appropriate decision-maker considers necessary to facilitate the operation of the principal order, including orders for the amendment of documents lodged in the proceedings and orders for service.

(5)     An appropriate decision-maker may make an order under this rule of their own motion or on the application of a party.”

R.During discussions Ms Edgar pointed out that the injury date with regard to the primary psychological injury claim would be different from that which was pleaded. 

S.In my view that issue could have been dealt with by amendment.  Because the evidence as to the occurrence and nature of the psychological claim arises between the same parties and it encompasses the injury of 22 December 2016, being the trip and fall by which the applicant claims she received her physical injuries, it is appropriate that all the claims be dealt with together in the same proceedings.