NSW Police Force v Phipps
[2010] NSWWCCPD 116
•3 November 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT | |||||
| CITATION: | NSW Police Force v Phipps [2010] NSWWCCPD 116 | ||||
| APPLICANT DEFENDANT: | NSW Police Force | ||||
| RESPONDENT CLAIMANT: | Pinar Phipps | ||||
| FILE NUMBER: | WCC 003394/10 | ||||
| DATE OF DECISION: | 3 November 2010 | ||||
| SUBJECT MATTER OF DECISION: | Application to strike out pre-filing statement under s 151DA of the Workers Compensation Act 1987 | ||||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||||
| HEARING: | 1 November 2010 | ||||
| REPRESENTATION: | Applicant Defendant: | DLA Phillips Fox | |||
| Respondent Claimant: | Self-represented | ||||
ORDERS MADE ON APPLICATION: | Pursuant to s 151DA of the Workers Compensation Act 1987, the claimant’s Pre-Filing Statement is struck out by consent. Each party is to bear its/her own costs of the Application. | ||||
BACKGROUND TO THE APPLICATION
Pinar Phipps (the claimant) alleges she sustained psychological injury during the course of her employment with the NSW Police Force (the defendant).
The claimant claimed workers compensation benefits from the defendant, which were disputed. On 7 February 2007, an Application was lodged in the Workers Compensation Commission. On 10 January 2008, Arbitrator Duncombe found that the claimant suffered from a major depression and adjustment disorder arising out of the course of her employment from 1991 to 18 April 2004. The Arbitrator found that the claimant was totally incapacitated from 1 October 2004 and awarded her maximum compensation for a worker with three dependent children from 1 October 2004.
On 17 April 2008, Dr Parmegiani, an Approved Medical Specialist, issued a Medical Assessment Certificate certifying the claimant to be suffering from a whole person impairment of 22 per cent.
In May 2009, the claimant’s then solicitors filed a Pre-Filing Statement on her behalf, claiming damages in respect of the injuries sustained by the claimant during the course of her employment with the Police Force.
On 27 July 2009, a mediator appointed by the Workers Compensation Commission (the Commission) held a mediation conference. The parties were unable to resolve the dispute at mediation as the defendant wholly disputes liability.
Since the mediation in July 2009, the claimant has taken no active steps to progress her claim for work injury damages. In October 2009 and March 2010, the defendant’s solicitors attempted, unsuccessfully, to clarify whether the claimant intended proceeding with an application for work injury damages.
On 28 April 2010, the defendant filed an Application to Strike Out a Pre-Filing Statement.
On 30 April 2010, the Commission made a series of Orders which, inter alia, required the defendant to file a Notice of Opposition to the Application. Those Orders were not complied with.
Following inquiries with the claimant’s former legal representatives, the Commission ascertained that the claimant was unrepresented.
On 19 August 2010, I caused the matter to be listed for a telephone conference with the solicitor for the defendant, Mr Medak. Subsequently, I issued further Orders requiring personal service of the Application to Strike Out the Pre-Filing Statement on the claimant.
On 3 September 2010, the defendant filed a Certificate of Service which included an Affidavit of Service of Kurt Hippe of 30 August 2010, confirming that the claimant had been personally served with the Application and further Directions issued by me on 20 August 2010.
The Orders of 20 August 2010 required, inter alia, the claimant to file a Notice of Opposition to the Application by 1 October 2010. That Order was not complied with.
On 14 October 2010, the Commission contacted the claimant by telephone after having been given contact details by the defendant’s solicitor. Having established contact with the claimant, the matter was then set down for a telephone conference on 1 November 2010.
A telephone conference was conducted by me on 1 November 2010. Mr and Mrs Phipps participated without the benefit of legal representation. Mr Flocco, solicitor, represented the defendant. Mrs Phipps indicated that she wished to consent to the Application for the pre-filing statement to be struck out. Her reasons for doing so are:
(a) She is in a poor state of health, suffering stress, anaemia, a cardiological condition and sleep apnoea. In view of the general state of her health, she does not wish to endure the stress of further litigation.
(b) Mrs Phipps has the benefit of an award of this Commission for weekly payments at the maximum statutory rate, which she wishes to retain.
(c) The claimant wishes to maintain the security of her medical expenses being met by the defendant.
Mrs Phipps has assured me that she has obtained legal advice in relation to the Application and fully understands the consequences of the Application being struck out.
I am satisfied that the claimant does not wish to pursue an action for work injury damages for the reasons stated. With the benefit of legal advice, she has elected to preserve her workers compensation entitlements in preference to commencing an action for damages.
The requirements of sub-ss 151DA(3) and (4) are satisfied.
The parties are agreed that, in the event of the Application being struck out, each party will bear its own costs of the proceedings to date.
ORDERS
Pursuant to s 151DA of the Workers Compensation Act 1987, the claimant’s Pre-Filing Statement is struck out by consent.
Each party is to bear its/her own costs of the Application.
Judge Keating
President
3 November 2010
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
0
0