Poulis v Deicorp Pty Ltd
[2025] NSWPIC 57
•19 February 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Poulis v Deicorp Pty Ltd [2025] NSWPIC 57 |
| APPLICANT: | Janice Poulis |
| RESPONDENT: | Deicorp Pty Limited |
| MEMBER: | Fiona Seaton |
| DATE OF DECISION: | 19 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; whether applicant can pursue a claim for weekly compensation pursuant to section 38; Held – the applicant is able to pursue her claim for weekly compensation after the second entitlement period pursuant to section 38. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant is able to pursue her claim for weekly compensation after the second entitlement period pursuant to s 38 of the 1987 Act. A brief statement is attached setting out the Commission’s reasons for the determination |
STATEMENT OF REASONS
BACKGROUND
These proceedings were commenced by Ms Janice Poulis (the applicant) on 11 April 2024 by an Application to Resolve a Dispute (ARD) claiming 19% whole person impairment under s 66 of the Workers Compensation Act 1987 (1987 Act) and weekly benefits compensation from 18 July 2022.
Her claim was brought as a result of a psychological injury suffered while she was employed as a sales representative by Deicorp Pty Limited (the respondent) with deemed date of injury 15 July 2020.
The claim made for weekly benefits compensation in the ARD is for the period from 14 July 2022 (as amended) for the entitlement period of weeks 14 to 130 pursuant to s 37 of the 1987 Act and ongoing at the preinjury average weekly earnings (PIAWE) rate of $2,060.
The respondent filed a Reply on 3 May 2024 which raised among other issues that the applicant is not incapacitated at all or as alleged, that any incapacity is not related to any injury at work and the rate of weekly compensation claimed is disputed.
The applicant was assessed by Dr Andrews, Medical Assessor, as having 6% whole person impairment on 26 July 2024, confirmed on Appeal on 5 December 2024.
The matter came before Division Head Capel for a further preliminary conference on 30 January 2025.
It was noted at the preliminary conference on 30 January 2025 that the applicant confirmed she sought weekly compensation pursuant to ss 37 and 38 of the 1987 Act.
This was disputed by the respondent who submitted the applicant had only pleaded weekly compensation pursuant to s 37 and no claim had been made in respect of s 38 of the 1987 Act.
Division Head Capel noted the Personal Injury Commission (Commission) is not a tribunal of strict pleadings, the applicant’s Notice of Claim dated 7 December 2023 was in respect of weekly compensation and medical expenses to date and continuing, and the claim was consistent with a claim pursuant to ss 37 and 38 of the 1987 Act.
The Direction issued on 30 January 2025 includes that the ARD is amended so that the claim for weekly compensation commences on 14 July 2022, the respondent was directed to file and serve a list of payments by 7 February 2025, and the matter was listed for a conciliation conference and arbitration hearing on 12 February 2025.
The applicant’s PIAWE was agreed at the preliminary conference and the matters in dispute were set out in the Direction of 30 January 2025 as:
(a) whether the applicant has recovered from the effects of her accepted psychological injury – s 4 of the 1987 Act, and
(b) extent and quantification of the applicant’s entitlement, if any, to weekly compensation – ss 37 and 38 of the 1987 Act.
At the conciliation conference held on 12 February 2025 the respondent maintained its dispute as to whether a claim had been made by the applicant pursuant to s 38 of the 1987 Act.
The parties agreed it was necessary to determine this interlocutory issue prior to determining the issues set out in in paragraph 12 above.
An interlocutory decision was made on 12 February 2025 that the applicant is able to pursue her claim for weekly compensation pursuant to s 38 of the 1987 Act with written these reasons to follow.
ISSUE FOR DETERMINATION
The parties agree the interlocutory issue requiring determination is whether the applicant is able to pursue her claim for weekly compensation after the second entitlement period pursuant to s 38 of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
At the conciliation conference held on 12 February 2025 the applicant was represented by Mr Phillip Perry of counsel instructed by Ms Allanah Giuttari, legal representative. The respondent was represented by Ms Lyn Goodman of counsel instructed by Ms Jenny Nichols, legal representative. Ms Hatfield was present for the insurer.
After determination of the interlocutory issue the parties are to provide written submissions on the two issues identified in paragraph 12 above and directions were issued to that effect on 12 February 2025.
I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) the respondent’s Application to Admit Late Documents dated 13 May 2024.
Applicant’s evidence
The ARD attaches the applicant’s statements of 12 March 2024 and 8 June 2021, correspondence from icare dated 7 January 2022 and 11 January 2022, a request for review dated 31 January 2022, a s 78 notice dated 26 May 2022, a letter seeking a review and making the s 66 claim dated 7 December 2023, the s 287A internal review outcome dated 20 December 2023, the respondent’s request for particulars and the applicant’s answers dated 15 January 2024, the reports of Dr Kumagaya dated 21 November 2023, Dr Schur dated 5 May 2021 and 18 January 2024, and Dr Samari dated 27 October 2023 and 11 May 2021, as well as clinical notes of Gold Coast Hospital, The Hills Clinic Hornsby and Dr Samari, and Dr Samari’s Certificates of Capacity.
Reference will be made to documents to which attention has been drawn by the applicant in her submissions.
Respondent’s evidence
The Reply attaches the s 78 notice of 26 May 2022, the s 287A review outcome of 20 December 2023, the request for particulars and response, an email chain between the parties, the termination of employment letter dated 15 July 2020, the applicant’s statement dated 7 September 2020, Advanced Investigations reports of 22 October 2020 and 25 October 2021, as well as medical reports, clinical records and Certificates of Capacity dated 20 July 2020 and 11 June 2022. The applicant’s payslips are also with the Reply.
Reference will be made to documents to which attention has been drawn by the respondent in its submissions.
Applicant’s submissions
The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
The applicant made a claim and that has been denied so a dispute exists.
On 7 December 2023 a letter was sent by the applicant’s solicitors to the insurer seeking a review of its decision to decline liability for the applicant’s psychological injury of 26 May 2022.
The report of Dr Kumagaya dated 21 November 2023 was served with that letter. Dr Kumagaya’s opinion is that the applicant continues to be totally incapacitated for work as result of her psychological injury.
The insurer was of course invited to read this report.
Dr Samari’s report of 27 October 2023 was also served with the letter of 7 December 2023. Dr Samari’s consultations are up to and including 15 August 2023. His opinion is that the applicant does not have any capacity for work at that stage due to her condition.
That material provided to the insurer is clear evidence not only of incapacity in 2022 and 2023, but the letter explicitly advised the insurer of the intention of the applicant to claim her weekly compensation and medical and treatment expenses from the date of the declinature notice to date and continuing.
The applicant’s claim was not ambiguous and it was clear what was being sought.
At least up until the time of Dr Kumagaya’s report in November 2023 there had been a continuation of a situation where, at least on the evidence of these doctors, the applicant remained without any capacity for work and she clearly claimed benefits on a continuing basis based on that evidence.
Subsequent to that there was a declinature notice issued on 20 December 2023 where the entire issue arises. Having been notified there was a claim for continuing benefits the insurer rejected that the applicant had an entitlement.
The dispute notice of 20 December 2023 states:
“Conversely, we note both Dr Clarke and Dr Martin considered you have a pre-existing psychiatric condition, which appears consistent with clinical records available. We consider Dr Clarke's evidence as to the cause of your presentation is preferred in the circumstances, considering they view any exacerbation to have resolved and your symptoms attributable to a pre-existing condition.”[1]
[1] ARD page 38.
That is the basis on which the application for continuing benefits was rejected, and there is no ambiguity about the applicant’s claim.
The ARD includes a claim for post 2012 weekly compensation. This refers to s 37 and through oversight the words “s 38” do not appear. However the next part of this section of the ARD is clear and completely consistent with the claim formally made in writing on 7 December 2023, and that is that weekly compensation is sought from 18 July 2022 and ongoing.
That evinces to anybody that the claim is not restricted to s 37, which obviously had expired well before the ARD was filed.
The claim communicated in the ARD was for ongoing post 2012 compensation and that is why the word “Ongoing” was ticked. If that word had have been left vacant or if the box for the period had identified the precise date of the end of the s 37 period, which may have been difficult to ascertain, that would be consistent with an intention to claim only s 37 benefits.
There could be no doubt in the applicant’s submission that the claim was exactly as it was articulated in the written claim, which was rejected in the second dispute notice.
The insurer has been on notice since 7 December 2023 that ongoing weekly benefits are claimed which can only mean a claim for benefits pursuant to s 38.
Respondent’s submissions
The respondent made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
It would have been very easy for the applicant to include the words “s 38” and “Weeks 131 onwards” in the ARD but she did not do so.
The review application letter of 7 December 2023 was not directed to the insurer but to icare. It is an entirely different entity which does the review.
The dispute notice of 20 December 2023 includes:
“We note you have also provided notice for a permanent impairment lump sum compensation claim pursuant to s 66 of the 1987 Act. We note our review is limited to the issues in dispute under the section 78 notice dated 26/5/22, that being liability for your claimed psychological injury. We suggest you discuss determination of a claim for permanent impairment with your claims team at EML.”[2]
[2] ARD page 37.
This dispute notice is not dealing with the weekly benefits being sought. It is a dispute about liability that has been reviewed in this decision and nothing else. It specifically says to discuss the s 66 claim with the EML claims team.
The decision is about liability and it does not deal with any purported claim pursuant to s 38 because it has not been articulated as such.
The letter of 7 December 2023 in the middle of a paragraph advises of the client’s intention to claim her weekly compensation and medical and treatment expenses from the date of the declinature notice to date and continuing. That is the sum total of the claim for weekly compensation.
There are a number of decisions in the Commission regarding s 38 of the 1987 Act.
Section 38 is quite specific. Weekly compensation ceases at the end of the second entitlement period unless certain things happen. The insurer must be given an opportunity to assess the worker’s capacity.
There has been no assessment of the applicant’s capacity, and the respondent says that is because no formal s 38 claim has been made.
It is only when the insurer fails to do something that the Commission steps in and makes an assessment, as discussed in Roberts v University of Sydney[3] and Dominguez v De Martin and Gasparini Pty Ltd.[4]
[3] [2021] WCC 25.
[4] [2021] NSWPIC 131.
The Commission has to be satisfied that the worker has no current capacity and that is likely to continue indefinitely, and only then is a worker entitled to benefits according to s 38(2).
Where a worker has some capacity, they have to apply in writing on a State Insurance Regulatory Authority approved form and have returned to work for not less than 15 hours per week and receive at least $155 per week according to s 38(3).
It is only where the insurer fails to determine where a formal claim under s 38 has been made that the Commission steps in and that is not the situation here.
The applicant has been seen by a Medical Assessor and there is an assessment of capacity to work but we are not dealing with capacity at the moment.
The Commission has no jurisdiction in the absence of a formal claim having been made to assess capacity, with reference to Nzobakenga v Costaexchange Pty Ltd,[5] Ferro v Mercon Group Pty Ltd[6] and Sydney Catholic Schools Limited v Bridgefoot.[7]
[5] [2023] NSWPIC 11 (Nzobakenga).
[6] [2023] NSWPICPD 4 (Ferro).
[7] [2021] NSWPICPD 17.
The s 78 notice or s 287A notice is not a work capacity decision. A decision to dispute liability for weekly compensation is not a work capacity decision in accordance with s 43(2)(a).
The 1987 Act requires the insurer to make an assessment of work capacity. As there is no work capacity assessment before the Commission it has no jurisdiction to deal with the s 38 entitlement period.
The applicant has the option to discontinue and make the claim and the respondent then has the opportunity to do the work capacity assessment.
Applicant’s submissions in reply
Where there is a failure to determine the Commission is able to make an assessment.
The claim for weekly compensation was directed to the people who declined the claim supported by two medical reports that assessed the applicant with no work capacity.
The respondent knew from 7 December 2023 that the application is for weekly payments on a continuing basis, and on the basis of expert evidence that the applicant has no capacity.
No jurisdictional issue has been raised in the Reply or by Division Head Capel.
FINDINGS AND REASONS
I have determined the applicant is able to pursue her claim for weekly compensation after the second entitlement period pursuant to s 38 of the 1987 Act for the reasons discussed below.
Section 38(1) of the 1987 Act provides that a worker's entitlement to compensation in the form of weekly payments ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
Under s 38(2) a worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
Under s 38(3) a worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if:
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period;
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings.
Under s 38(4) an insurer must, for the purpose of assessing an injured worker's entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted:
(a) during the last 52 weeks of the second entitlement period, and
(b) thereafter at least once every two years.
On 26 May 2022 the respondent’s insurer declined ongoing liability for the applicant’s injury and payment of weekly compensation ceased on 18 July 2022.[8]
[8] ARD page 27.
The dispute notice includes that the respondent’s insurer does not agree the applicant is entitled to weekly payments and medical or related treatment as she does not have total or partial incapacity for work resulting from the injury.
The applicant next made a claim for weekly compensation to date and continuing by her letter of 7 December 2023 without reference to sections of the 1987 Act.
Evidence was served with that letter including two medical opinions that the applicant has no current work capacity.
The review decision of 20 December 2023 confirms the respondent’s insurer disputes ongoing liability for payment of weekly compensation.
It states that in conducting the review, consideration was given to the evidence available to the insurer as well as the information contained within the application for review,[9] being the applicant’s letter of 7 December 2023 and attached documents.
[9] ARD page 37.
The ARD filed on 11 April 2024 omitted by oversight reference to s 38 of the 1987 Act.
The claim made in the ARD is for weekly compensation from 14 July 2022 (as amended) for weeks 14 to 130 in accordance with s 37 of the 1987 Act on an ongoing basis.
The letter of 7 December 2023, the review decision of 20 December 2023 and the ARD lodged on 11 April 2024 each came into existence well past the expiry of the second entitlement period, which appears to have been on or about 11 January 2023.
In these circumstances it is clear the applicant intends to claim weekly compensation past the second entitlement period, which of necessity is a claim made pursuant to s 38 of the 1987 Act.
I do not accept the applicant’s claim pursuant to s 38 of the 1987 Act has not been articulated or formally made in this case.
I note in Lee v Fletcher International Exports Pty Ltd[10] the respondent’s allegation that the ARD failed to include a claim for weekly compensation pursuant to s 38 of the 1987 Act did not prevent Member Homan being satisfied a claim for weekly compensation pursuant to s 38 was properly made.
[10] Lee v Fletcher International Exports Pty Ltd [2023] NSWPIC 399 at [286].
The jurisdiction of the Commission to determine disputes with respect to s 38 has been addressed in a number of cases including those referred to by the respondent.
In Nzobakenga[11] Senior Member Bamber determined the Commission has jurisdiction to make findings about work capacity and make orders for payment of weekly compensation relating to the s 38 period.
[11] [2023] NSWPIC 1, Oliver Roberts v University of Sydney NSWWCC 25.
Member McDonald agreed in Chea v Woolworths Group Limited[12] that the Commission has jurisdiction to determine s 38 disputes.
[12] [2022] NSWPIC 26.
In Clarke v Local Farm Fresh Pty Ltd t/as Big River Milk[13] Member Wynyard was satisfied the Commission has jurisdiction to make an order pursuant to s 38, and in circumstances where in the respondent’s view the applicant had not made a formal application for weekly compensation pursuant to s 38.
[13] [2023] NSWPIC 379.
It appears Acting Deputy President Parker SC determined in Ferro v Mercon Group Pty Ltd[14] that the Commission had no authority to make findings with respect to current work capacity for the purpose of s 38 of the 1987 Act, however this was later found not to be the issue determined in that case.
[14] [2023] NSWPICPD 4.
In Fletcher International Exports Pty Ltd v Lee[15] President Judge Phillips confirms the Commission has jurisdiction to make an award for weekly compensation under s 38 of the 1987 Act. The actual application of s 38 and the Commission’s role in determining a dispute about an insurer’s decision pursuant to s 38 were not matters the Acting Deputy President was called upon to determine in Ferro.[16]
[15] Fletcher International Exports Pty Ltd v Lee [2023] NSWPICPD 67.
[16] Fletcher International Exports Pty Ltd v Lee [2023] NSWPICPD 67 at [26].
I accept the respondent’s submission that it would have been very easy for the applicant to include a claim in the ARD for week 131 and ongoing pursuant to s 38.
In accordance with s 43 of the Personal Injury Commission Act 2020 the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
The omission by oversight of reference to s 38 in the ARD does not in my view prevent the applicant from pursuing a claim for weekly compensation after the second entitlement period has expired.
I am not persuaded by the respondent’s submission that it was not in a position to respond to the applicant’s claim for weekly compensation due to the letter of 7 December 2023 being forwarded to icare.
As the applicant submits, the letter was addressed to icare as icare had issued a s 78 dispute notice on 26 May 2022.
It was suggested in the review decision of 20 December 2023 that the applicant discuss the determination of her claim for permanent impairment with her claims team at EML.[17]
[17] ARD page 37.
I do not accept the submission made by the respondent that by suggesting the applicant discuss her claim for permanent impairment with the claims team at EML she was to understand her claim for weekly compensation was not considered as part of the review.
Having regard to the evidence, the submissions and the guiding principle to be applied to practice and procedure in the Commission to facilitate the just, quick and cost effective resolution of the real issues in the proceedings,[18] I determined the applicant is able to pursue her claim for weekly compensation after the second entitlement period in these proceedings pursuant to s 38 of the 1987 Act.
[18] Section 42 Personal Injury Commission Act 2020.
SUMMARY
The applicant is able to pursue her claim for weekly compensation after the second entitlement period pursuant to s 38 of the 1987 Act.
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