Parfitt v State of New South Wales

[2021] NSWPIC 533

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Parfitt v State of New South Wales [2021] NSWPIC 533

APPLICANT:

Wesley Parfitt

RESPONDENT:

State of New South Wales

PRINICIPAL MEMBER:

Josephine Bamber

DATE OF DECISION:

23 December 2021

CATCHWORDS:

WORKERS COMPENSATION - Applicant was a police officer and therefore an ‘exempt worker’ with an entitlement to lump sum compensation pursuant to sections 66 and 67 of the applicable version of the Workers Compensation Act 1987; this application was made pursuant to Schedule 6, Part 2, Table 4 of the Workers Compensation Regulation 2016 for an increase in applicant’s costs for complexity; Held - application granted on basis that complexity was established due to the Approved Medical Specialist (AMS) raising issues regarding sleep apnoea which then had to be investigated before the AMS finally assessed the permanent impairment as a result of the injury; costs order made with a 20% increase on the parties’ costs.

DETERMINATIONS MADE:

1. The respondent to pay the applicant $20,000 compensation for pain and suffering pursuant to section 67 of the Workers Compensation Act 1987 in respect of the psychological injury on 19 May 2017 (deemed).

2.     The respondent is to pay the applicant’s costs as agreed or assessed.

3.     The application for an increase of the parties’ costs by 20% for complexity is granted.

The following is not a determination of the Commission; however, I note that the parties have agreed:

1. The parties have agreed that the amounts payable for section 66 and 67 compensation have been reduced by 10% on account of incidents occurring before 1 January 2002 in accordance with Schedule 6, Part 18C of the Workers Compensation Act 1987 with the total compensation to be paid equalling $40,770.

STATEMENT OF REASONS

1. The applicant was a police officer and pursuant to Schedule 6, Part 19H, Clause 25 of the Workers Compensation Act 1987 (the 1987 Act) the amendments made by the 2012 amending Act do not apply to him. The applicant therefore is an exempt worker and has an entitlement to claim compensation pursuant to section 67 of the Workers Compensation Act 1987 (the 1987 Act).  The Commission also has the power to make a cost order in this matter.

2. On 2 June 2021 I issued a Certificate of Determination making orders for the payment of lump sum compensation pursuant to section 66 of the 1987 Act and an order that the respondent pay the applicant’s costs as agreed or assessed. It was noted that the parties could apply to the Commission in relation to the entitlement under section 67.

3. On 26 October 2021 the parties filed a Certificate of Determination-Consent Orders in relation to their agreement regarding compensation payable pursuant to section 67 of the Workers Compensation Act 1987 (the 1987 Act) and to reflect their agreement about a reduction in the compensation payable due to the application of Schedule 6, Part 18C of the 1987 Act.

4. In those Consent Orders the parties included an order that the respondent was to pay the applicant’s costs as agreed or assessed including an increase of 20% and that the respondent is entitled to an increase of 20% with respect to its costs.

1. Under Schedule 6, Part 2, Table 4 of the Workers Compensation Regulation 2016 the Commission can certify a matter as complex and order an increase on costs otherwise payable. The decision whether to certify a matter as complex is discretionary.

2. The applicant has made submissions dated 3 August 2021 setting out why the discretion should be exercised. I will only outline briefly these submissions. The submissions refer to the fact that AMS Hong in 2019 found that the applicant’s sleep apnoea was compounding his current overall psychiatric impairment. Thereafter, the applicant undertook sleep studies, and a report was then obtained from the applicant’s treating specialist. It was noted the respondent obtained a further examination and report and as the parties remained in dispute, the matter was referred back to AMS Hong, who issued his certificate assessing permanent impairment of 17%. The applicant also submitted that the negotiations relating to section 67 and the reduction for pre 1 January 2002 component were lengthy.

3. On 12 August 2021 the insurer in written submissions argues the matter was not unduly complex to warrant an increase in costs. It argues that the complexity in the matter was the applicant’s insufficiently treated sleep apnoea. It does agree that additional work was performed by the lawyers because of the divergence of opinion in relation to the sleep apnoea. However, it submits that the negotiation in relation to section 67 and to apply the transitional provisions is par for the course and does not present additional complexity. It submits that that matter was not unduly complex to warrant an increase of 20% of the costs.

4. I find that while the applicant’s solicitor submits that the psychological injury over a period of time necessitated consideration of the factors relevant to Schedule 6, Part 18C of the 1987 Act, I do not accept this has rendered the matter complex. Routinely in matters before the Commission legal practitioners are required to such evaluate evidence. In order to attract an increase in legal costs a legal practitioner needs to demonstrate complexity, such as with additional preparation over the norm for any contested matter which is before the Commission. In this matter I find there was additional work due to the AMS Hong’s concerns about the sleep apnoea.

5. Therefore, the application for a certification of complexity is granted. It is appropriate, notwithstanding the respondent’s submissions, that a complexity uplift order is made in relation to both parties’ costs as they both had to do additional work.