Oberg v Racing NSW

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Oberg v Racing NSW [2021] NSWPIC 121
APPLICANT:	Stephanie Oberg
RESPONDENT:	Racing NSW
MEMBER:	Mr Paul Sweeney
DATE OF DECISION:	17 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Jurisdiction of Personal Injury Commission to hear and determine section 53 application during second entitlement period; Speirs v Industrial Relations Commission of NSW & Anor considered and applied; power to amend claim after Medical Assessor opines that incapacity unlikely to be of a permanent nature; Held- award for worker limited to the date she ceased to reside in Australia; respondents failure to produce relevant documents pursuant to a Notice to Produce referred to President.
DETERMINATIONS MADE:	1. Amend the claim for weekly compensation in the Application herein to limit the period claimed to 17 December 2020 to 26 December 2020. 2. The applicant suffered injury arising out of and in the course of her employment as alleged in the Application herein. 3. As a result of those injuries the applicant was incapacitated for her pre-injury employment as a trackwork rider between 17 December 2020 and 26 December 2020. 4. During that period the applicant had a current earning capacity as that term is defined in s 32A of the Workers Compensation Act 1987 (the 1987 Act) in that she was capable of working 20 hours per week in menial work. 5. It is agreed that the applicant’s pre-injury average weekly earnings were $925.78 per week. In the period 17 December 2020 to 26 December 2020 the applicant was capable of earning the sum of $380 per week in some suitable employment as that term is defined by s 32A of the 1987 Act. 6. Award for the applicant at the rate of $360.62 per week from 17 December 2020 to 26 December 2020. 7. Liberty to apply in respect of the calculations above. 8. Liberty to the applicant to apply pursuant to s 53 of the 1987 Act in respect of whether her incapacity is likely to be of a permanent nature. 9. Refer the respondent’s failure to produce documents particularised in the Notice to Produce issued by the applicant’s solicitors to the President for consideration of referral of the matter to the State Insurance Regulatory Authority or other appropriate action.

STATEMENT OF REASONS

INTRODUCTION

At the conclusion of the hearing in this matter, which was fought with regrettable ferocity, the only substantive issue in dispute was the applicant’s entitlement to weekly compensation in respect of a short closed period between 17 December 2020 and 26 December 2020.
Stephanie Oberg (the applicant) is 31 years of age. She has been a trackwork rider throughout her adult life both in her native Sweden and, after 2009, in Australia. In the course of her employment, the applicant suffered several significant injuries. Most recently, on 2 June 2020, she suffered injuries when a horse in its death throes collided with a railing injuring her neck and collarbone. Then on 2 September 2020, she fell from a horse and injured her back and right foot.
Following these injuries the applicant was paid compensation and/or wages by Racing NSW (the respondent). After the injury of 2 September 2020, she returned to work on selected duties. From 21 November 2020, she commenced a trial of riding horses. She found that she suffered severe back pain performing the riding work. She alleges that she is unable to continue to perform the duties of a trackwork rider and intends to “permanently retire from track riding”.
The applicant returned to Sweden, where she intends to reside permanently, on 27 December 2020. She has found part-time employment in that country.

PROCEDURE BEFORE THE COMMISSION

By an Application to Resolve a Dispute (the Application) lodged on 15 December 2020, the applicant claimed weekly compensation from 14 December 2020 and continuing. It was alleged that her incapacity resulted from the following:
(a)    injuries to her neck and left shoulder on 17 July 2019, when she was thrown from a horse at Warwick Farm;
(b)    injuries on 2 June 2020 to her neck and left shoulder as discussed above; and
(c)    injuries on 2 September 2020 to her back and right foot.
Although it is not readily apparent from the Application, lodgement was accepted by the Commission on the basis that the applicant sought an order that her incapacity for work resulting from the above injuries “is likely to be of a permanent nature” in accordance with s 53 of the Workers Compensation Act 1987 (the 1987 Act). As the applicant was committed to leaving Australia on 27 December 2020, the Registrar of the former Commission arranged for her to be examined by a Medical Assessor (formerly an Approved Medical Specialist (AMS)), Dr Roger Pillemer, an orthopaedic surgeon on 22 December 2020. The AMS was asked to express an opinion as to whether the applicant’s incapacity is likely to be of a permanent nature.
At all times the respondent objected to the registering of the proceedings by the Commission or the referral of the matter to an AMS. The objection was not entirely without merit, as the respondent had not had the opportunity to have the applicant examined by an independent medical specialist to address the question of the permanent nature of her incapacity. It was not explained why the applicant first provided the respondent with notice of her intention to leave Australia less than a month before her departure date.
The dispute between the parties was referred to an arbitrator and I conducted a conciliation conference and arbitration hearing in the matter on 21 December 2020. Ms Grotte, of counsel, represented the applicant and Mr Saul, of counsel, represented the respondent at the hearing which was heard over the telephone.
At the arbitration hearing, Mr Saul made an application to strike the proceedings out on the basis that the Commission did not have jurisdiction to hear or determine the dispute. Understandably, the applicant did not consent to this course of action. The balance of the arbitration hearing was taken up with objections to documents, consideration of a timetable to permit the respondent to put on evidence in the matter, including a medical report, and the delineation of documents to which Dr Pillemer might have access during his consultation with the applicant. By the time of the arbitration, the respondent had arranged for the applicant to attend a medical examination with a general surgeon prior to her departure from Australia.
At the conclusion of the arbitration hearing, I incorporated the orders of the Commission in a Direction dated 21 December 2020. It is unnecessary to reiterate those orders save for 1 and 7 which are as follows:
“1. Decline the respondent’s application to strike the matter out.
7. Stand the matter over to a telephone conference at 12 noon on 2 February 2021 to put in place a timetable for the reception of further evidence, the determination of the issue of jurisdiction and, if appropriate, the hearing of the application under s.53.”
On 2 February 2021, I conducted a telephone conference at which the applicant was represented by Mr Santone and the respondent by Mr Macken. I fixed the matter for a further arbitration hearing on 16 March 2021 and made consequential orders for the lodgement of evidence prior to that date.
While I did not address it in my Direction dated 4 February 2021, I was informed by the parties during the telephone conference that each party had issued a Notice to Produce requiring the opposite party to produce documents. I made an order extending time for service of the Notices to Produce. Neither party raised any objection to the respective Notices nor suggested that there was any potential impediment to the production of documents.
In a series of emails between 17 February and 23 February 2021, Mr Santone informed the Commission that the respondent had failed to comply with the Notice to Produce. He contended that the failure “distorts the true version of events”. On 23 February 2021, the Registrar referred the question of what action to take in respect of the failure to produce documents to me.
Dr Pillemer, AMS, issued a Medical Assessment Certificate bearing date 10 March 2021 in which he provided a medical opinion in respect of the question of the permanent nature of the incapacity flowing from the subject injuries. As the applicant was recovering from her injuries, he was unable to state that her incapacity for work was likely to be of a permanent nature.
The matter came on for further arbitration on 16 March 2021. Appearances were as before. Once again, much of the time allocated for the arbitration hearing was taken up with objection to documents and to a formulation of the claim. During the course of the arbitration hearing, the applicant abandoned her claim for weekly compensation after she left Australia on 27 December 2020. She maintained, however, that she was entitled to weekly payments in respect of her incapacity for work between 17 December and 26 December 2020.

Issues and submissions

While the respondent raised multiple issues in its Reply, it raised only two issues at the arbitration hearing. First, it asserted that the Commission did not have jurisdiction to hear and determine the claim. Secondly, it submitted that the applicant did not have an incapacity during the short closed period before she left Australia and, if she did, it did not sound in an entitlement to compensation as she was capable of earning the equivalent of her pre-injury average weekly earnings in some suitable employment.
There remains a third issue to determine relating to the respondent’s failure to produce documents in compliance with the applicant’s Notice to Produce.
As the submissions of the parties had only just commenced at the conclusion of the time allocated for the conference, I directed that both parties serve and lodge written submissions. They have been received. It is unnecessary to reiterate each of the arguments made by counsel in their written submissions.
However, it is prudent to record that Mr Saul submitted that as no claim had ever been made on the respondent for weekly payments, s 289(5) of the Workplace Injury Management Act 1998 (the 1998 Act) forbid the Commission from hearing or determining the matter. He submitted:
“s.289(1) mandates that a claim for weekly payments “cannot be referred for determination to the Commission” unless
(a)the respondent disputes liability for the claim or
(b)fails to determine the claim.”
Neither of these has occurred. He argued that:
“Absent a claim, the respondent was not given an opportunity to determine it prior to the filing of this ARD and its referral to the Commission.”
In respect of the substance of the claim for compensation between 17 December 2020 and 26 December 2020, Mr Saul canvassed the medical evidence brought into existence for the purposes of these proceedings. He conceded that there was no dispute that the applicant had sustained the injuries as alleged and had been paid weekly compensation and s 60 expenses following the injuries. He submitted, however, that the certification of the general practitioner placed no time restrictions on the applicant’s capacity to perform suitable duties from 2 December 2020 to 21 December 2020, that she had made a “good recovery” from her injuries, and that she was fit for suitable work with certain restrictions throughout the period claimed. He submitted:
“Contrary to the applicant’s submissions, the medical evidence is supportive of the applicant being fit for a wide range of suitable duties”.
In “suitable duties” the applicant would be remunerated to the same or a greater extent than her “normal wage of $925.78”. She was in fact paid this “normal wage” during the period between 10 December 2020 and 16 December 2020 and this was indicative of her ability to earn during this period. There should, therefore, be an award for the respondent in respect of the closed period claimed by the applicant.
Finally, Mr Saul submitted that there was no basis on which I could make an order giving the applicant liberty to apply in the future in respect of the question of whether her incapacity is of a permanent nature and I should not make such an order.
Ms Grotte submitted that the initial basis of the claim lodged with the Commission was s 53, which provided that a worker could apply to the Commission for a determination that her incapacity is likely to be of a permanent nature. Thus, s 53 enlivened the Commission’s jurisdiction.
Ms Grotte also addressed on the respondent’s failure to produce documents pursuant to the Notice and the applicant’s incapacity during the remaining short period claimed. In respect of the former, she stated:
“As argued at the conciliation/arbitration, the applicant has been severely prejudiced in this regard due to the Respondent electing not comply (sic) with the Notice to Produce that was issued upon it.
The Applicant should have had the benefit of the insurer file, particularly in respect of the actions it took after being notified of her intended departure from Australia.”
It will be necessary to return to these submissions in resolving the issues in dispute.

DISCUSSION AND FINDINGS

Jurisdiction

Section 53 of the 1987 Act is as follows:
(1) If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless a medical assessor certifies, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature.
(2) If the incapacity is so certified or determined to be of a permanent nature, the worker is entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as the worker establishes, in such manner and at such intervals as the insurer may require, the worker's identity and the continuance of the incapacity in respect of which the weekly payment is payable.
I accept the applicant’s evidence that at the time she instructed solicitors to commence these proceedings, she believed that she was being paid weekly compensation. Her statement, dated 18 December 2020, states:
“I am still receiving weekly benefits from Racing NSW in the sum of $685.13 per week and earnings from my employer in the sum of an additional $237.50 per week”.
Mr Saul submitted that as the documentary evidence suggested that the applicant was paid a “normal wage” during the period 10 December 2020 to 16 December 2020, it could not be established that any part of the payment was paid by Racing NSW by way of compensation. In my opinion, this submission is fraught with difficulty as the respondent’s failure to produce documents relevant to this issue has seriously impaired the applicant’s ability to rebut or challenge the evidence.
However, irrespective of whether the applicant was in receipt of wages or compensation or a combination of both on 15 December 2020, in my opinion she was entitled to bring proceedings in the Commission for the purposes of a determination of whether her incapacity is likely to be of a permanent nature. Section 53(1) permits a worker to bring an application to determine whether her incapacity is likely to be of a permanent nature and, if so, whether she is “entitled to receive a weekly payment of compensation”.
The issue of whether the applicant’s incapacity for work is of a permanent nature can be determined either by a medical assessor or by the Commission. The question of whether the applicant is entitled to receive a weekly payment of compensation is obviously a factual matter for determination by the Commission. Incapacity and an entitlement to weekly payments are different concepts. Incapacity refers to a physical or medical inability to perform some work. Entitlement to weekly compensation must be ascertained strictly in accordance with the legislative framework set out in Part 3 Division 2 of the 1987 Act as argued by Mr Saul in his submissions. Both questions can be determined retrospectively, after the worker ceases to reside in Australia: see Slack v Crop Equities Pty Ltd (1985) 9 NSWLR 231.
It is unnecessary to recite s 105 of the 1998 Act, which is well-known. It mandates that the Commission has a wide power to “hear and determine all matters arising under this Act and the 1987 Act”. It is true that the power of the Commission is not as open-ended as that possessed by the former Compensation Court of New South Wales. It is also true that the commission only has the power conferred on it by statute. In Raniere Nominees Pty Limited t/as Horizon Motor Lodge v Daley & Anor [2006] NSWCA 235; 67 NSWLR 417 Santow JA (Spigelman CJ agreeing) said:
“Section 105 of the WIM Act sets out the jurisdiction of the Commission. Thus in acting judicially in its decision-making, the Commission is governed by statute. It does not possess an inherent jurisdiction but only such powers which are incidental and necessary to the exercise of its statutory jurisdiction; see DJL v Central Authority (2000) 201 CLR 226 at [24ff] (DJL)”.
Both sub-sections (2) and (4) of s 105 and s 289 of the 1998 Act limit the jurisdiction of the Commission. But there is nothing in those provisions which would preclude the Commission registering a claim brought to obtain a determination that compensation is payable in accordance with s 53, even at short notice provided the respondent is afforded the opportunity to prepare its defence. The section specifically envisages the Commission determining whether a worker has an entitlement to weekly compensation resulting from an incapacity which is likely to be of a permanent nature.
In Speirs v Industrial Relations Commission of NSW & Anor [2011] NSWCA 206 (Speirs) Giles JA (Allsop P and Hodgson JA agreeing), dealing with the jurisdiction of the Industrial Relations Commission of NSW, said at [89]:
“There should be recalled the well established principle that a power vested in a court should not be construed as subject to limitations not clearly to be seen: see for example Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 1 at 23 per Gaudron 10 J; Knight v F P Special Assets Ltd (1992) 174 CLR 78 at 205 per Gaudron J; Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38; (2006) 226 CLR 486 at [10] per Gleeson CJ and Gummow, Kirby, Hayne and Crennan JJ; Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at [102] per Kirby J. The power vested in the Commission to order reinstatement should not lightly be construed as subject to the limitation that a necessary element must be determined elsewhere, rather than by the Commission as part of the exercise of the power.”
In my opinion, applying the approach in Speirs, s 289(1) of the 1998 Act and s 53 of the 1987 Act can operate harmoniously as they are intended to cure discrete mischiefs. Section 289(1) is clearly intended to preclude commencement of proceedings for weekly payments in the Commission before an employer has the opportunity to dispute either in whole or in part the workers entitlement to weekly payments. The purpose of the section is to preclude recourse to litigation unless there is a valid dispute concerning a claim.
Section 53 has a dual purpose. First, it suspends worker’s entitlement to weekly compensation if they leave Australia to permanently reside outside the Commonwealth. Secondly, it provides for an exception to this regime for workers with a permanent incapacity.
The exception in s 53 operates on claims for weekly compensation, whether or not they have been disputed by the employer. It can operate where a worker, who is in receipt of weekly compensation for an accepted injury, leaves the Commonwealth with the intention of permanently residing in another country. It must permit the Commission to hear and determine a claim brought by such a worker, and enter an award in her/his favour for weekly payments whether or not there is an accepted entitlement to that compensation, provided the incapacity that gives rise to that award is likely to be of a permanent nature. The sections are, therefore, complimentary.

At the time these proceedings were commenced, the respondent had accepted liability in respect of the last of the alleged injuries and had paid weekly payments of compensation. It had not given notice that the weekly compensation would cease or be reduced. Contrary to Mr Saul’s submission, the applicant had made a claim for compensation, which had been accepted by the respondent. While s 289 (1) would preclude the applicant from commencing proceedings for weekly compensation without complying with the section, she was not precluded from commencing proceedings to obtain a determination of whether she had an entitlement to receive compensation outside the Commonwealth in accordance with s 53.
In the last 12months, by reason of Covid-19, there have been many cases where workers have been compelled by exigencies associated with the disease to leave Australia while in receipt of weekly compensation. Often, they depart at very short notice. If the Commission could not make orders referring these cases to a Medical Assessor to express an opinion on the likelihood that the incapacity for which they are receiving compensation is permanent, s 53 would be emasculated.
Without the opinion of a medical assessor on the issue of permanency before she/he departs Australia, the worker may be left without appropriate evidence of the permanency of their condition and, effectively, without a remedy. Once a worker is outside the Commonwealth, it is extremely difficult to have her/him examined by a Medical Assessor. I doubt whether it is the legislative intention that s 53 be rendered ineffective because the worker is precluded from obtaining a medical assessment before departing the country.
It follows that I intend to decline to strike out the proceedings on the basis that the Commission has no jurisdiction. Once it is accepted that the Commission does have jurisdiction to hear and determine the claim, it must have the usual ancillary powers to amend the pleadings to reflect the changing nature of the evidence and to hear and determine the claim as amended. As I indicated at the arbitration hearing, the applicant should be given leave to amend the claim for weekly compensation in the Application in accordance with the reasoning in DJL .
While the closed period between 17 December 2020 and 26 December 2020 relates to the period before the applicant left Australia and does not invoke s 53, it is just and equitable that the applicant’s rights to compensation during this period be determined in these proceedings.
The respondent has had ample opportunity to prepare its case in respect of the closed period during the two months prior to the last arbitration. It has had ample opportunity to compromise the claim if it was so minded. I do not accept that it is appropriate to strike out the Application and, presumedly, compel the applicant to commence further proceedings in respect of the compensation sought during that period. To embark on further proceedings over a short closed period claim would be to encourage the misallocation of legal resources and costs.

Is the Applicant entitled to compensation in the period between 17 December 2020 and 26 December 2020?

It is probable on all the evidence that the applicant has remained unfit for her customary role of track work since the date of her last injury. I don’t understand Mr Saul to dispute this. Dr Pillemer, the AMS, expressed the following opinion in his medical assessment:
“In my opinion then her incapacity for work resulting from her injuries is not likely to be of a permanent nature, although it is certainly possible that she might not be able to get back to full-time work as a trackwork rider in the future, noting that riding racehorses is an extremely physical activity, and she has had 3 fairly significant injuries.
In my opinion Ms Oberg would be quite capable of getting back to numerous other forms of work activity that did not place excess stress on the various regions noted above, and once again, as mentioned, in my opinion further improvement at all sites is likely to occur.”
While there is some difference in emphasis in the opinion of Dr Anderson, an occupational physician, who provided a report to the applicant’s solicitors and Dr Kim Edwards, a general surgeon, who provided a report of 23 December 2020 to the respondent’s solicitors, it is common ground that the applicant is not presently capable of returning to her pre-injury duties. But there is a real possibility that she may be able to do so in the future.
In the period immediately before 16 December 2020, the applicant was provided with suitable work by the respondent and paid her pre-injury average weekly earnings. I accept that the applicant had a current earning capacity as that phrase is used in s 37 of the 1987 Act during the closed period for which compensation is sought. I also accept the medical opinion evidence which suggests that the applicant’s prognosis is for continuing improvement. If that occurs, it will undoubtedly enhance her capacity to perform work in the future.
I do not accept, however, that the fact that the applicant worked full hours for the respondent in the days before 16 December 2020 proves that she was capable of working unrestricted hours in a real job during the dispute period. In my opinion, it is likely that the work provided to her by the employer was not a real job: Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (2 September 2014) at [63]. It Is my impression that this work was artificial or made up to facilitate the applicant being paid for a full working week in the period before she left Australia. Certainly, the respondent’s failure to produce the documents relevant to this issue sought by the applicant in her Notice to Produce supports such an inference.
The applicant says in her statement that she has performed track riding work since she was a teenager. It is not evident that she has formal qualifications that would readily permit her to perform clerical work or many aspects of sedentary work. In my opinion, the only real job that the applicant could perform in some suitable employment as that phrase is defined in s 32A of the 1987 Act is menial part-time work as a process worker, courier or waitressing. In my opinion, she could only perform this work for 20 hours a week. That restriction is necessary not because of the unavailability of such work but because in the relevant period I do not believe the applicant had the capacity to perform arduous work on more than a part-time basis.
It is accepted that the applicant’s pre-injury average weekly earnings were $925.78 per week at all relevant times. I find that the applicant was able to earn $380 per week working 19 hours at $20 per hour in some suitable employment.
I therefore propose to make an award for the applicant pursuant to s 37 of the 1987 Act at the rate of $360.62 for the period 17 December 2020 to 26 December 2020.
The remaining issue concerns the respondent’s failure to produce documents pursuant to the Notice to Produce.

Notice to Produce

The Notice to Produce served by the applicant required the named respondent to produce its files in respect of the injuries sustained by the applicant on 17 July 2019, 2 June 2020 and 2 September 2020. It also required the production of the following:
“All documents including file memos and records of conversations between the insurer and the employer, particularly for the period 1 October 2020 to date, relating to Stephanie Oberg of ………….. Warwick Farm NSW 2170 .”
There is no doubt in my mind that the documents sought by the applicant were potentially relevant to issues in the case. When I made orders extending the time for service and compliance with the respective Notices to Produce at the telephone conference in the matter, Mr Macken did not suggest that the respondent did not intend to comply with the Notice or that there were grounds on which the respondent might not comply with the Notice.
I appreciate that there are multiple bases upon which an employer can withhold documents sought in a Notice to Produce. There may be questions of the width or the relevance of the documents sought; questions of legal professional privilege; and questions relating to service or the form of the Notice. None of those matters were raised. At the second arbitration hearing, Mr Macken informed me that he had not “agreed” on behalf of his client to produce the documents sought at the telephone conference. Rather, he stated that he said he would “take instructions” on whether the documents should be produced. Presumably, he did so. It is likely that the respondent took a deliberate decision not to produce the documents sought in the Notice. I should add it did not serve a Notice of Objection stating reasons why the documents were not provided to the applicant.
When asked to make a submission on this point during the arbitration hearing, Mr Macken only raised two reasons as to why his client had not produced documents. First, he stated that the worker had not complied with a Notice to Produce served on her. That, of course, does not excuse the respondent’s failure to produce documents. Mr Santone submitted that the applicant had not produced the documents sought by the respondent in its Notice to Produce because the respondent had not tendered the requisite conduct money which was sought by her in accordance with the Workers Compensation Commission Rules which were in force at that time.
The other reason Mr Macken gave for the non-production of documents was that the named respondent was not the applicant’s employer at the time of each of the injuries pleaded in the Application. Whether or not that is so does not require further investigation. Racing NSW lodged a Reply to the applicant’s claim which identified the respondent as “Racing NSW”. At no stage of the proceedings did it seek to argue that it had done so mistakenly or that the claim had not been made on the applicant’s true employer or that the name of the employer should be amended. At all material times Racing NSW was a party to the proceedings and obliged by the Rules to produce documents or lodge a Notice of Objection.
In my opinion, the respondent has not provided any acceptable explanation of its failure to produce relevant documents in the matter. The failure to produce documents sought in accordance with the Rules of the Commission adversely affects the expeditious and just determination of claims. The system of conciliation and arbitration established by the Workers Compensation Legislation is dependent on the parties being able to obtain relevant documents from the opposing party quickly and informally prior to a conciliation conference. The non-production of documents undermines the objects of the Workers Compensation Legislation.
As the matter already had a long history by the time of the second arbitration, I considered the most appropriate course of action was to determine the issues in dispute, including the factual issues that arose from the respondent’s failure to produce documents and make findings and orders in respect of each issue. Of course, by the time of the arbitration on 15 March 2021, the Workers Compensation Commission had ceased to exist as jurisdiction in respect of the Workers Compensation Legislation had been assigned to the Personal Injuries Commission on 1 March 2021. A new set of rules have been promulgated pursuant to the Personal Injuries Act 2020.
In those circumstances, I propose to refer the respondent’s flagrant breach of the former Rules to the President to consider whether the matter should be referred to the State Insurance Regulatory Authority or other appropriate action taken against the respondent.
I propose to make the following orders:
(a)    amend the claim for weekly compensation in the Application herein to limit the period claimed to 17 December 2020 to 26 December 2020;
(b)    the applicant suffered injury arising out of and in the course of her employment as alleged in the Application herein;
(c)    as a result of those injuries the applicant was incapacitated for her pre-injury employment as a trackwork rider between 17 December 2020 and 26 December 2020;
(d) during that period the applicant had a current earning capacity as that term is defined in s 32A of the 1987 Act in that she was capable of working 20 hours per week in menial work;
(e) it is agreed that the applicant’s pre-injury average weekly earnings were $925.78 per week. In the period 17 December 2020 to 26 December 2020 the applicant was capable of earning the sum of $380 per week in some suitable employment as that term is defined by s 32A of the 1987 Act;
(f)    award for the applicant at the rate of $360.62 per week from 17 December 2020 to 26 December 2020;
(g)    liberty to apply in respect of the calculations above;
(h) liberty to the applicant to apply in accordance with s 53 in respect of whether her incapacity is likely to be of a permanent nature, and
(i)    refer the respondent’s failure to produce documents pursuant to the Notice to Produce issued by the applicant’s solicitors to the President for consideration of referral of the matter to the State Insurance Regulatory Authority or other appropriate action.

[2021] NSWPIC 121

17 May 2021