Sharp v Sylvanvale Foundation Limited
[2022] NSWPICPD 20
•17 May 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Sharp v Sylvanvale Foundation Limited [2022] NSWPICPD 20 |
APPELLANT: | Sarah Jane Sharp |
RESPONDENT: | Sylvanvale Foundation Limited |
INSURER: | Employers Mutual Limited |
FILE NUMBER: | A1-7354/20 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 17 May 2022 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 20 August 2021 is revoked. 2. The matter is remitted to a different Member for re-determination in accordance with the consent orders signed by the parties and dated 16 May 2022. |
CATCHWORDS: | WORKERS COMPENSATION – Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 – identification of error – appeal allowed in accordance with the consent between the parties |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr J Hallion, counsel | |
| Gorman Jones Lawyers | |
| Respondent: | |
| Mr L Robison, counsel | |
| HWL Ebsworth Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Mr C Burge |
DATE OF MEMBER’S DECISION: | 20 August 2021 |
INTRODUCTION AND BACKGROUND
Ms Sarah Sharp (the appellant) was employed by Sylvanvale Foundation Limited (the respondent) as a disability care worker. On 30 October 2014, the appellant was involved in an incident in which she suffered a significant injury to her right leg when an autistic client made verbal threats to kill her and repeatedly ran over her right leg with his wheelchair. The appellant claimed compensation and liability was accepted by the respondent. The payments of compensation were originally made by QBE Workers Compensation (NSW) Ltd (QBE). Subsequently, the claim was transferred to AAI Limited trading as GIO (GIO). GIO continued to pay the appellant’s compensation entitlements until 22 December 2019, when payments ceased because of the operation of s 39 of the Workers Compensation Act 1987 (the 1987 Act), which limits the period of weekly payments to 260 weeks (except for workers with greater than 20% permanent impairment). The appellant’s right leg was assessed as 13% whole person impairment.
Following the injury to her right leg, the appellant was off work until April 2015, when she returned to work in alternate duties. On 11 May 2015, the appellant was returning paperwork to the office in the course of her employment when she observed the same client chasing and threatening to kill another client. She said that this event triggered memories of the assault on 30 October 2014. She ceased work and sought psychological treatment. Her treatment expenses associated with her psychological condition were paid by QBE and subsequently GIO, who attributed her psychological condition to the physical injury on 30 October 2014.
On 24 September 2018, the appellant completed a claim for weekly payments and treatment expenses in respect of her psychological condition, nominating 11 May 2015 as the date of injury. It appears that the claim form, together with a certificate of capacity dated 24 September 2018, was forwarded to the respondent by the appellant’s legal representatives under cover of a letter dated 17 December 2018.[1] The letter nominated the date of injury as 11 May 2015. On 31 July 2019, iCare Workers Insurance (iCare) acknowledged receipt of information that the appellant had provided and allocated a claim number.[2]
[1] Application to Resolve a Dispute (ARD), p 36.
[2] ARD, p 37.
On 16 December 2020, the appellant commenced proceedings in the former Workers Compensation Commission, claiming weekly payments and a lump sum pursuant to s 66 of the 1987 Act. The matter proceeded on the basis that the appellant had suffered a frank injury on 11 May 2015, alleging a psychological injury in the form of a post-traumatic stress disorder. The matter was allocated to an arbitrator of the Workers Compensation Commission. The respondent raised a late issue that the Commission had no jurisdiction to determine the claim now pleaded because that claim had never been made or disputed, and further asserted that Employers Mutual Limited (EML) was not the “insurer on risk” for the injury alleged.
On 1 March 2021, the Workers Compensation Commission was abolished by operation of cl 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). The matter then became one within the Workers Compensation Division of the Personal Injury Commission (the Commission) from that date.[3] The former Arbitrator was appointed a member of the Commission and continued to have carriage of the matter in that capacity.
[3] Section 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
The Member then issued a Certificate of Determination dated 20 August 2021, in which he dismissed the matter on the basis that the Commission had no jurisdiction to determine the matter because the appellant had never made the claim for injury on 11 May 2015, the insurer had not disputed the claim, and the correct insurer on risk had not been nominated.
The appellant appealed that decision. After protracted case management steps were taken, on 6 May 2022, the parties indicated that they had resolved the matter in principle. The parties forwarded consent orders on 16 May 2022, reflecting their agreement that the appeal should be allowed, and the matter should be remitted to a different Member for re-determination. The orders sought were as follows:
“Consent Orders
1. Appeal allowed.
2. Matter remitted for further determination by a Member of the Commission (retaining the same file number).
3. Order 3 of the Direction of Member Burge on 19 February 2021 [granting leave to the respondent to amend the Reply to place injury in issue] shall apply to the proceedings on remittal.
Notations
A. The worker agrees to execute any authority(ies) for the release of any clinical material.
B. The worker agrees to attend a medical examination arranged by the Respondent.”
CONSIDERATION
Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 provides that an appeal from a decision of a non-presidential member is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. On that basis, in order for the appeal to succeed and for the Certificate of Determination to be revoked, I must be satisfied that an error of fact, law or discretion has occurred.
It is patently clear from the evidence discussed at [3] above that the appellant had in fact made a claim for compensation on 17 December 2018 in respect of the pleaded injury. This fact was confirmed by responses to enquiries made by the appellant directed to iCare following a Direction issued by me on 6 April 2022. Further, the respondent was given leave by the Member to dispute the claim on the basis of “injury” before the matter proceeded to arbitration.
10. The Member’s determination that the matter should be dismissed on the basis that there had never been a claim made for the injury and that it had not been disputed, thus the Commission had no jurisdiction to determine the matter, is clearly affected by demonstrable error of the kind required by s 352(5) of the 1998 Act. The appeal therefore succeeds, and the Certificate of Determination is revoked.
DECISION
11. The Member’s Certificate of Determination dated 20 August 2021 is revoked.
12. The matter is remitted to a different Member for re-determination in accordance with the consent orders signed by the parties and dated 16 May 2022.
Elizabeth Wood
DEPUTY PRESIDENT
17 May 2022
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