Newman v NSW Fire Brigades

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSITITUTED BY AN ARBITRATOR
STATUS: Decision upheld on appeal: New South Wales Fire Brigades v Newman [2008] NSWCA 82; (2008) 5 DDCR 423
CITATION:		Newman v NSW Fire Brigades [2007] NSWWCCPD 142
APPELLANT:		Kathleen Newman
RESPONDENT:		NSW Fire Brigades
INSURER:		Allianz Australia Insurance Limited
FILE NUMBER:		WCC16005-06
DATE OF ARBITRATOR’S DECISION:		2 March 2007
DATE OF APPEAL DECISION:		18 June 2007
SUBJECT MATTER OF DECISION:		Sections 149 and 151Z(1) of the Workers Compensation Act 1987; whether worker had ‘recovered damages’.
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant: Adams & Partners
Respondent: Hicksons
ORDERS MADE ON APPEAL:		The Arbitrator’s decision and orders dated 2 March 2007 are revoked and the following orders made:
“1.    The matter is remitted to a different Arbitrator for determination of the Applicant’s (Ms Newman’s) outstanding rights consistent with the reasons given in this decision and with the provisions of Workers Compensation Act 1987 and Workplace Injury Management and Workers Compensation Act 1998 and
2.    The Respondent (NSW Fire Brigades) is to pay the Applicant’s costs, in the event that she is otherwise entitled to recover costs.”
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 28 January 2000 Kathleen Newman (‘the Appellant Worker/Ms Newman’) was injured in a car accident when travelling between fire brigades in the course of her employment with NSW Fire Brigades (‘the Respondent Employer/the Fire Brigade’).  As a result of her injuries she claimed weekly and lump sum compensation.  Her claim was accepted and she was paid medical expenses and weekly compensation.  A claim for lump sum compensation was subsequently made in the Compensation Court of NSW (matter No. 56787 of 2000).

1. Ms Newman retained the solicitors Burt & Allen (Mr Burt) to act for her in respect of her rights, if any, under the relevant motor accident legislation (‘the CTP claim’).  On 16 February 2000 Mr Burt forwarded an “Accident Notification Form” and “Statutory Declaration” to “The CPT Claims Department, MMI Insurance Limited DX 10154 Sydney Stock Exchange”.  The claim was accepted and MMI Insurance Limited (‘MMI’) provisionally admitted breach of duty of care by letter addressed to Burt & Allen dated 26 June 2000.  At some stage in 2000, MMI changed its name to Allianz Australia Advantage Limited (‘Allianz’).  On 16 February 2001 Allianz wrote to Burt & Allen confirming that breach of duty of care in relation to the circumstances of the accident was admitted, seeking particulars of, among other things, all workers compensation payments received and adding:

“We note that your client is in receipt of Workers Compensation benefits.  Kindly confirm whether your client intends to pursue the CTP claim.”

1. By letter dated 16 March 2001 Burt & Allen provided detailed particulars to Allianz of Ms Newman’s injuries and advised of the name, address and reference of the relevant workers compensation insurer (GIO Australia Ltd, 52-58 Clarence Street, Sydney Claim No…