South Western Sydney Area Health Service v Roodenrys
[2014] NSWWCCPD 43
•11 July 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT | |||
| CITATION: | South Western Sydney Area Health Service v Roodenrys [2014] NSWWCCPD 43 | ||
| APPLICANT DEFENDANT: | South West Sydney Area Health Service | ||
| RESPONDENT CLAIMANT: | Christopher Roodenrys | ||
| FILE NUMBER: | 1769/14 | ||
| DATE OF DECISION: | 11 July 2014 | ||
| SUBJECT MATTER OF DECISION: | Application to Strike Out a Pre-Filing Statement; s 151DA of the Workers Compensation Act 1987 | ||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Applicant Defendant: | Thompson Eslick Solicitors | |
| Respondent Claimant: | Beilby Poulden Costello Lawyers | ||
| ORDERS MADE ON APPLICATION: | 1. Pursuant to s 151DA(4) of the Workers Compensation Act 1987, the claimant’s pre-filing statement is struck out. 2. No order as to costs. | ||
BACKGROUND TO THE APPLICATION
Mr Roodenrys (the claimant) was employed by South Western Sydney Area Health Service (the defendant) as a registered nurse, working in the adolescent psychiatric unit at Campbelltown Hospital on a permanent part time basis.
On 17 August 2002, whilst attempting to retrieve a ball from the roof of the mental health building, Mr Roodenrys fell from the roof and suffered a fracture to his right tibia and ankle. As a consequence of complications experienced by Mr Roodenrys following surgery arising from the injuries received, he elected to undergo a below knee amputation on 6 June 2003 under the hand of Dr Chandra Dave, orthopaedic surgeon.
On 29 March 2004, by agreement entered into between Mr Roodenrys and the defendant, it was agreed that Mr Roodenrys had a whole person impairment of 28 per cent as a consequence of the work injury of 17 August 2002. This assessment provided Mr Roodenrys with an entitlement to compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the sum of $47,500. It was also agreed at that time, that Mr Roodenrys had an entitlement to lump sum compensation pursuant to (the now repealed) s 67 of the 1987 Act, reflecting pain and suffering in the sum of $40,000.
Following the postoperative period and rehabilitation, Mr Roodenrys returned to part-time employment. Prior to 17 July 2013, when the defendant carried out a work capacity assessment of Mr Roodenrys’ residual work capacity, the defendant voluntarily paid weekly compensation benefits and met any medical expenses incurred by him.
The defendant submits that as a result of the work capacity assessment on 1 June 2013 it ceased payment of weekly compensation benefits to Mr Roodenrys on 17 July 2013. However a review of that assessment indicates an ongoing entitlement of $136.07 per week.
Since 2008, in addition to his part time employment with the defendant, Mr Roodenrys has been self-employed as a counsellor and hypnotherapist, trading under the business name of “Macarthur Calm Clinic”.
On 17 September 2012, Mr Roodenrys’ legal representatives, Beilby Poulden Costello Lawyers, served a pre-filing statement on the defendant’s legal representatives.
On 12 October 2012, the defendant served a pre-filing defence upon Mr Roodenrys’ legal representatives.
On 11 December 2012, the matter was subject to an unsuccessful mediation before a Commission Mediator. Pursuant to s 318B of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), on that same day, a Certificate of Mediation Outcome was issued.
On 6 August 2013, the defendant’s legal representatives, Thompson Eslick solicitors, wrote to Mr Roodenrys’ legal representatives seeking an indication of Mr Roodenrys’ intention to commence proceedings to recover work injury damages. The defendant was put on notice that if proceedings were not commenced promptly an application to strike out the pre-filing statement would be filed.
On 11 March 2014, the defendant’s legal representatives again wrote to Mr Roodenrys’ legal representatives indicating its intention to lodge an application to strike out Mr Roodenrys’ pre-filing statement. There is no evidence that Mr Roodenrys’ legal representatives responded to either of those letters.
On 10 April 2014, the defendant filed an “Application to Strike Out a Pre-Filing Statement” (the Application) pursuant to s 151DA(3) of the 1987 Act.
On 15 April 2014, the Commission issued a direction which included among other things, an order that Mr Roodenrys lodge with the Commission and serve on the defendant a Notice of Opposition and supporting documentation by 30 May 2014. That Direction was not complied with.
Between 5 June 2014 and 11 June 2014 there were a number of attempts made by Commission staff to clarify whether Beilby Poulden Costello Lawyers continued to represent Mr Roodenrys.
On 11 June 2014, Mr Roodenrys’ solicitor, Mr Driscoll, informed the Commission in an email to my associate, Ms Camp, that he continued to act for Mr Roodenrys and sought an extension of time in which to file a Notice of Opposition.
On 12 June 2014, the Commission issued further directions including a direction that the claimant lodge with the Commission and serve on the defendant a Notice of Opposition and supporting documentation on or before 26 June 2014.
On 5 July 2014, following further enquiries made by Commission staff concerning non-compliance with the Direction issued on 12 June 2014, Mr Driscoll sent an email to the Commission stating:
“I have instructions to neither consent nor oppose the application in the Commission.”
No further submissions have been received on behalf of Mr Roodenrys.
ON THE PAPERS
Pursuant to s 354(6) of the 1998 Act, if the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.
The defendant has indicated that, in its view, it is appropriate for the matter to be dealt with solely on the basis of the written application and any Notice of Opposition lodged.
In the absence of any opposition to the Application, I am satisfied that I have sufficient information to proceed “on the papers” to determine this application without holding a conference or formal hearing and that this is the appropriate course in the circumstances.
LEGISLATION
Section 151DA of the Workers Compensation Act 1987
Section 151DA of the 1987 Act provides:
(1) Time does not run for the purposes of section 151D:
(a1) while the determination of the claim concerned is delayed as permitted by section 281 of the 1998 Act, but not including delay beyond 2 months after the claimant has provided all relevant particulars about the claim as required by section 281 (2) (b) of that Act, or
Note : Delay in determining a claim beyond 2 months is only permitted on the basis that degree of permanent impairment is not fully ascertainable and the insurer has notified the claimant of this. In such a case, paragraph (a) of this subsection can apply (if a dispute about whether degree of permanent impairment is fully ascertainable is the subject of medical assessment) to further prevent time running for the purposes of section 151D.
(a) while a medical dispute as to whether the degree of permanent impairment of the injured worker is at least 15%, or whether the degree of permanent impairment of the injured worker is fully ascertainable, is the subject of a referral for determination by the Commission or a referral for assessment under Part 7 of Chapter 7 of the 1998 Act (including any further assessment under section 329 of that Act), or
(a2) during the period of 1 month after an offer of settlement is made to the claimant pursuant to the determination of the claim as and when required by the 1998 Act, or
(a3) while an assessment under Part 7 of Chapter 7 of the 1998 Act in respect of a medical dispute referred to in paragraph (a) is the subject of a pending appeal under section 327 of the 1998 Act, or
(b) while a pre-filing statement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current.
(2) A pre-filing statement remains current from the time it is served until it is struck out under this section on the application of the person (‘the defendant’) on whom it was served or it is withdrawn by the person who served it, whichever happens first.
(3) The defendant may apply to the President to have the pre-filing statement struck out by order of the President. Such an application may not be made until at least 6 months have elapsed after the defendant served on the claimant a defence to the claim in accordance with section 316 of the 1998 Act.
(4) The President may order that a pre-filing statement be struck out but must not do so if satisfied that the degree of permanent impairment of the injured worker is not yet fully ascertainable and the matter is the subject of a referral under Part 7 of Chapter 7 of the 1998 Act for assessment of the degree of permanent impairment of the injured worker.
(5) A medical dispute is considered to be the subject of a referral for assessment under Part 7 of Chapter 7 of the 1998 Act even if the approved medical specialist has declined to make an assessment of the degree of permanent impairment of the injured worker until satisfied that the degree of permanent impairment is fully ascertainable.
(6) The President may delegate to a Deputy President any function of the President under this section (except this power of delegation), but only if the President is satisfied that the delegation is necessary to avoid a conflict of interest or the appearance of bias.”
THE DEFENDANT’S SUBMISSIONS
The defendant submits that s 151DA(3) of the 1987 Act provides the parties with sufficient time to finalise the pre-litigation phase of the proceedings and to explore mediation and/or resolution of the claim. The six-month preclusion period under that sub section has expired with some 19 months having passed since the service of the pre-filing defence.
There was no dispute that the degree of permanent impairment of the injured worker has been fully ascertained and the matter is not subject to a referral under Chapter 7 of the 1998 Act for assessment of the degree of permanent impairment of an injured worker.
The defendant last received correspondence from Mr Roodenrys’ legal representatives on 11 December 2012 which was around the time of the mediation.
The defendant’s requests to Mr Roodenrys’ legal representatives, seeking to ascertain Mr Roodenrys’ intentions with respect to progressing his work injury damages claim, have remained unanswered.
The defendant does not seek an order for costs.
DISCUSSION AND FINDINGS
I accept the defendant’s submissions that in the circumstances of this case there are no impediments presented by ss 151DA(3) or (4) to the Application being determined at this time.
Mr Roodenrys has had ample opportunity to pursue his work injury damages claim, but has failed to do so. As I said in Luke v McCarthy [2008] NSWWCCPD 123, the policy reasons underpinning s 151DA(3) are to provide the parties with sufficient time to finalise the pre-litigation phase of the proceedings and also to provide a degree of certainty by not extending time indefinitely while the pre-filing statement remains current.
Mr Roodenrys has declined to make any submissions in response to the Application, including whether he intends to pursue his work injury damages claim and has offered no explanation or reasons for the delay in pursuing his claim.
It is now more than 12 years since Mr Roodenrys’ initial injury. His continued failure to prosecute his claim, knowing that he is at risk of having his pre-filing statement struck out, and his deliberate decision to offer no resistance to the Application, are powerful factors in favour of granting the defendant’s application.
Notwithstanding the substantial nature of the injuries suffered by Mr Roodenrys, in the absence of any indication by Mr Roodenrys that he will pursue his work injury damages claim, and in view of the substantial delay in taking any steps to progress the claim since the mediation in December 2012, I consider that, in the exercise of my discretion, the Application should be granted.
DECISION
Pursuant to s 151DA of the 1987 Act the claimant’s pre-filing statement is struck out.
COSTS
No order as to costs.
Judge Keating
President
11 July 2014
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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