Sharp v Sylvanvale Foundation Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sharp v Sylvanvale Foundation Limited [2021] NSWPIC 300
APPLICANT:	Sarah Jane Sharp
RESPONDENT:	Sylvanvale Foundation Limited
MEMBER:	Cameron Burge
DATE OF DECISION:	20 August 2021
CATCHWORDS:	WORKERS COMPENSATION - Whether the Commission has jurisdiction to hear applicant’s claim; whether a “dispute” in relation to amended injury; representation of parties and indemnity of respondent; Held - there is no dispute enlivened in relation to the amended date of injury relied on by the applicant; as such, the Commission has no jurisdiction to hear the matter; the respondent was indemnified by a different insurer at the amended date of injury to that which indemnified it at the date originally pleaded; as such, the present representatives of the insurer which responded to the present proceedings are not in a position to respond to the substantive claim relating to the amended date of injury; that being so, the respondent would not be afforded procedural fairness were the matter to proceed; matter dismissed.
DETERMINATIONS MADE:	1. Matter dismissed.

STATEMENT OF REASONS

BACKGROUND

The dispute the subject to this decision concerns the Commission’s jurisdiction to hear Sarah Jane Sharp’s (the applicant) claim in circumstances where Sylvanvale Foundation Limited (the respondent) alleges the amended date of injury relied on by the applicant has led to circumstances where there is no relevant dispute between the parties, and that the insurer standing behind it with respect to these proceedings (EML) was not on risk at the amended date of injury.
It is necessary to set out in some length the factual and procedural background to this matter.
The applicant worked for the respondent from 2010 as a disability care worker. On 30 October 2014, she suffered a serious injury to her right leg as a result of the violent actions of an autistic patient who threatened to kill her and then assaulted her by running over her leg repeatedly with a wheelchair. That injury was the subject of Worker’s Compensation Commission proceedings number 2584/18 and led to payment to the applicant of permanent impairment compensation in respect of a 13% whole person impairment. She returned to work in April 2015 following that injury.
In her statement, the applicant alleges that on 11 May 2015, she suffered a psychological injury as a result of observing the client who had assaulted her chasing another client down the driveway of the workplace, screaming that he was going to kill the other client. The applicant states her psychological injury was initially dealt with as part of the claim which was the subject of her physical injury.
The applicant completed a claim form in relation to her psychological injury. The date of injury recorded on that claim form was 11 May 2015. On 17 December 2018, the applicant’s then solicitors wrote to the respondent advising they acted for the applicant and made a claim with respect to a date of injury of 11 May 2015. Enclosed with that document was a claim form and a certificate of capacity dated 24 September 2018.
In or about 2019, the applicant instructed new solicitors. On 19 June 2019, the applicant’s new solicitors filed a further claim form with the respondent. The letter serving the claim form indicated the form attached to it was dated 4 January 2019 and in referring to the injury, that letter described the claim as arising from “nature and conditions of employment on and prior to 11 May 2015.”
On 9 July 2019, Turks Legal wrote to the applicant’s solicitors noting that “as your correspondence alleges a new injury, namely ‘the nature and conditions of employment on and prior 11 May 2015’, it is a new claim and must therefore be lodged with EML.”
Following receipt of that correspondence, the applicant’s solicitors lodged through an email address provided to them by Turks Legal an online claim form with EML. That claim was lodged on 29 July 2019. EML is the insurer indemnifying the respondent in these proceedings.
On 1 November 2019, the respondent issued a section 78 dispute notice declining liability on the basis the applicant had not given notification of her claim within the time frames prescribed by section 254 and section 261 of the Workplace Injury Management and Worker’s Compensation Act 1998 (the 1998 Act).
On 25 August 2020, the applicant’s solicitors made a claim for a permanent impairment compensation, relying on the report of Dr Takyar, Independent Medical Examiner (IME) suited undercover of that letter. The claim form listed the date of injury as 11 May 2015 and in providing clarification concerning the date of injury, the claim form stated “the nature and conditions of employment on and prior 11 May 2015.” The covering letter also referred to the nature and conditions of employment on and prior to 11 May 2015 as being the date of injury. Dr Takyar’s report noted the date of injury as.11 May 2015 and the condition was diagnosed as post-traumatic stress disorder (PTSD).
On 27 August 2020, iCare wrote to the applicant advising her personal injury claim with a date of injury of 11 May 2015 was being assessed.
On 16 December 2020, the applicant lodged the Application to Resolve a Dispute (the Application) in these proceedings. That document pleaded a date of injury of 11 May 2015, being a personal injury.
At the initial teleconference of this matter held on 27 January 2021, the respondent for the first time sought to dispute injury on the basis the applicant’s condition relates to the prior accepted claim concerning her right leg. That application was opposed and the matter was adjourned for further telephone conference to hear argument over whether leave should be granted to the respondent to raise the question of injury.
The second telephone conference was held on 19 February 2021. At that telephone conference, the parties then agreed to make the following consent directions:
(a)    leave granted to the applicant to amend the date of injury to 15 May 2015;
(b)    leave granted to the applicant to file and serve a supplementary statement within seven days;
(c)    leave granted to the respondent to place injury in issue;
(d)    leave is granted to the respondent to have the applicant medically examined, and
(e)    matter listed for conciliation/arbitration hearing on 26 April 2021.
At the conciliation/arbitration hearing, a dispute then arose for the first time surrounding the Commission’s jurisdiction to deal with the proceedings and concerning questions of which insurer was on risk for the respondent at the newly pleaded date of injury. Directions were then made for the filing of written submissions concerning these matters and the parties have made submissions accordingly.

ISSUES FOR DETERMINATION

The parties agreed that the following matters remain in dispute for determination:

(a) the jurisdiction of the commission to hear the applicant’s claim, and
(b) ancillary issues relating to indemnity and representation of the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence and taking into consideration by the Commission in reaching this determination:

(a)    the Application and annexures;
(b)    Reply and annexures;
(c)    applicant’s Application to Admit Late Documents (AALD dated 15 February 2021);
(d)    applicant’s AALD dated 2 March 2021, and

(e) the respondent’s AALD dated 19 April 2021.

Additionally, each of the parties written submissions were taken into account.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Jurisdiction

The respondent submitted the applicant abandoned any suggestion of a nature and conditions claim at the telephone conference, which is plainly the case. The respondent submits the injury which was claimed and for which liability was declined was “emphatically not a frank injury”, as the claim form relies on “nature and conditions of employment on and prior 11 May 2015” [Application 24]. The respondent submitted that was the injury which was the subject of the declinature in the section 78 notice dated 1 November 2019 [Application 27].
The applicant noted that when she instructed new solicitors, they served the claim form on the respondent on 19 June 2019. The applicant’s submissions state the claim form attached to the letter of 19 June 2019 was dated 4 January 2019, however, the document identified in the applicant’s submissions appears to be a claim form dated 24 September 2018 [see Application 15].
Counsel for the applicant, however, identified the document served with the letter dated 19 June 2019 as the claim form reproduced at page 15 of the Application. He did so by referring to the description of injury contained within that document, which is as follows:
“returning paperwork to office… a client was yelling at another client that he was going to kill her and was chasing her. This triggered a traumatic attack that occurred to me.”
The diagnosis referred to in the claim for was “PTSD” and the date of injury was given as “11 May 2015.” The description of injury was given as “at work after her work-related injury to the foot when she felt threatened again after restarting work as another person was threatened by the same accused patient.”
The applicant submitted that the claim form and medical certificate were the documents necessary to satisfy section 260 of the 1998 Act, and the fact the correspondence serving these documents referred to “Nature and Conditions of Employment” was irrelevant, especially when the injury description relied on in the claim form could in no way be said to give rise to a suggestion of a disease process or anything other than a frank injury on the relevant date.
The applicant also noted the response from Turks Legal dated 9 July 2019 referenced a Nature and Conditions Claim, notwithstanding the claim form and medical certificate did not make any mention of such a claim.
On 29 July 2019, the applicant lodged a claim with EML via the email address provided to her in the Turks letter dated 9 July 2019. The iCare section 78 notice dated 1 November 2019 disputed that claim purely on the basis that had not been lodged within the time required by sections 254 and 261 and the 1998 Act.
The applicant submitted the respondent’s contention that her original claim with a deemed date of injury enlivens the disease provisions of the Worker’s Compensation Act 1987 (the 1987 Act) and therefore gave rise to EML being the insurer on risk for a claim made after 2018 is misconceived. The applicant submitted, that a reference to Nature and Conditions of Employment can equally apply to a personal injury as defined in section 4 of the 1987 Act as it may a disease injury pursuant to section 4(b) of the 1987 Act. I accept that submission. Decisions such as that of the High Court in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 make it clear a worker can rely on a personal injury despite the presence of an underlying condition.
The difficulty with the applicant’s position in this instance is the claims documentation relied on by her referred to a deemed date of injury referrable to the nature and conditions of her employment over a period of time, not to a frank injury. The claims documentation which the Commission has before it makes as much clear, as do the various covering letters forwarded by her solicitors. The permanent impairment claim form, which these proceedings are directly concerned with, explicitly pleads nature and conditions of employment as the injury in issue.
On reading the material and evidence before the Commission, in my view the injury claimed in the claim form explicitly claims the nature and conditions of employment as the injury in issue.
It should also be noted that the respondent had the benefit of considering the applicant’s claim form and the certificate of incapacity accompanying it before issuing its section 78 notice. Having done so, the respondent sought only to rely on questions of time limits and only sought to raise a question of injury at the telephone conference. It did so, however, in answer to the claim being made with respect to the nature and conditions of employment on and up to 11 May 2015.
As the applicant’s counsel pointed out in the submissions, the respondent lodged a certified Reply to the effect that the jurisdictional pre-conditions for the referral of the dispute had been met and acknowledged that the dispute was limited to the matters set forth in the dispute notice. However, the applicant both consented to the respondent placing injury in issue at the teleconference and sought to amend the date of injury to withdraw the claim surrounding nature and conditions of employment, instead pleading a frank injury on that date. It was the latter amendment which enlivened the present dispute concerning jurisdiction.
As the respondent submitted, determination of matters in the Commission necessitates there be a dispute, which in turn requires either a denial of liability or failure to determine a claim. Each of a denial of liability or failure to determine requires that a claim has been made (see section 289 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)). The respondent contends, and I accept, that for the purposes of these proceedings, once the nature and conditions claim was abandoned, there is no claim currently on foot which gives rise to a dispute which can be referred to the Commission. As such, in my opinion the embargo in section 289 of the 1998 Act is enlivened.
This is not, in my view, a matter of mere non-compliance with the relevant regulations for making a claim. There is a substantive difference in this matter between eh original nature and conditions claim, and the frank injury claim now pleaded. That claim also effects the respondent from the point of view of its representation in the proceedings, and also which insurer its rights are subrogated to. The applicant submitted the Commission is not a jurisdiction of strict pleading. That is so, however, the amendment to the applicant’s claim has the effect of leaving the respondent without its relevant insurer having been served with a claim which the applicant now seeks to litigate. That is despite the evidence disclosing the respondent at all relevant times held workers compensation insurance. In my view, were the matter to proceed in those circumstances, the respondent would not be afforded procedural fairness.
The amended date of injury is of importance in this matter because EML is not the insurer which was on risk on 11 May 2015 (or indeed 14 May 2015, as the date was referred to at the hearing). That much is clear from the Certificates of Currency which were lodged with the respondent’s submissions. Those documents reveal the insurer on risk for the date of injury now alleged was QBE Workers Compensation (NSW) Ltd (QBE). EML’s period of risk for the respondent is 1 January 2018 onwards, and it responded to the applicant’s nature and conditions claim as it was served on 3 July 2020.
In the event the applicant succeeded in these proceedings, EML would not be liable to pay compensation in respect of any entitlements arising from the amended date of injury. The stated position of EML, were the matter as now pleaded to proceed is that its representatives would appear but take no position on the merits of the applicant’s alleged entitlements. As such, the respondent would not be meaningfully represented with respect to the substantive entitlements of the applicant to compensation.
Given I have found the Commission lacks jurisdiction in this matter, the Commission will make orders dismissing the proceedings.

[2021] NSWPIC 300

20 August 2021