State of NSW (Illawarra Shoalhaven Local Health District) v Bosevski - [2020] NSWWCCPD 17

DETERMINATION OF AN APPLICATION TO STRIKE OUT A PRE-FILING STATEMENT
CITATION:	State of NSW (Illawarra Shoalhaven Local Health District) v Bosevski [2020] NSWWCCPD 17
APPLICANT DEFENDANT:	State of NSW (Illawarra Shoalhaven Local Health District)
RESPONDENT CLAIMANT:	Vesko Bosevski
FILE NUMBER:	3598/19
DATE OF DECISION:	25 March 2020
SUBJECT MATTER OF DECISION:	Application to Strike Out a Pre-Filing Statement; s 151DA of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	On the papers
REPRESENTATION:	Applicant Defendant:	Turks Legal
Respondent Claimant:	Taylor & Scott
ORDERS MADE ON APPLICATION:	1. Mr Bosevski’s pre-filing statement is struck out pursuant to s 151DA of the Workers Compensation Act 1987. 2. No order as to costs.

INTRODUCTION

This matter concerns an application filed by the applicant defendant employer seeking an order pursuant to s 151DA of the Workers Compensation Act 1987 (the 1987 Act) that the respondent claimant worker’s pre-filing statement be struck out. For the following reasons, the application is successful.

BACKGROUND

Mr Bosevski commenced employment with Illawarra Area Health Service at the Shellharbour Hospital in 1986. In April 1988 he became employed as a Carpenter at the Port Kembla District Hospital. Throughout his time at the Port Kembla Hospital, he held the position of Carpenter/Joiner.
On 29 August 1996, Mr Bosevski sustained injuries in the course of his employment when the steel handlebar of a trolley fell onto his left big toe.
Mr Bosevski alleges suffering injuries to the left big toe (crush injury, partial amputation of distal phalanx), back injury as a result of altered gait, right shoulder injury, depression and brain injury as a result of this work incident.
On 20 August 2007, Mr Bosevski lodged an Application to Resolve a Dispute (ARD) (Matter No 6272/07) claiming lump sum compensation, medical expenses and domestic assistance.
On 24 September 2007, a Certificate of Determination – Consent Orders was issued in the following terms:
“1.     That [the State of NSW] pay to [Mr Bosevski] $26.25 per week for domestic assistance under Section 60 such payments to be made fortnightly.
2.      That [the State of NSW] pay the costs of [Mr Bosevski] as agreed or assessed.
3.      That the balance of the proceedings be discontinued with the need to file an Agreement to Discontinue dispensed with.”
On 25 October 2017, Mr Bosevski’s legal representatives served notice of his claim for work injury damages on the State of NSW,[1] relying on reports from neurosurgeon, Dr Michael Davies dated 3 July 2017[2] and orthopaedic surgeon, Dr Robert Breit dated 6 July 2017.[3] The letter refers to a further letter dated 17 October 2017 in which the parties agree that Mr Bosevski suffers from a combined total impairment of 37% whole person impairment. I note the letter of 17 October 2017 was not in evidence but was provided to the Commission by the employer’s representatives on 13 March 2020 upon the Commission’s request. The Commission sought confirmation from Mr Bosevski’s representative, Mr Simon Meigan, that the letter provided was in fact the correct letter referred to in his 25 October 2017 letter, however Mr Meigan failed to comply with this request. Notwithstanding, it does appear from the correspondence of 17 and 25 October 2017 that Mr Bosevski was assessed at an agreed combined total impairment of 37% WPI.
[1] Pre-Filing Statement, p 17.
[2] Pre-Filing Statement, p 82.
[3] Pre-Filing Statement, p 74.
On 3 November 2017, the State of NSW requested further and better particulars of the work injury damages claim from Mr Bosevski. By letter dated 12 February 2018, Mr Bosevski responded to the request for further and better particulars.
A Section 74 dispute notice disputing liability for the work injury damages claim was subsequently issued by Employers Mutual Limited and served on Mr Bosevski on 13 April 2018.
On 23 May 2018, Mr Bosevski served a pre-filing statement on the State of NSW. The letter was received by the State of NSW on 24 May 2018.
On 6 June 2018, the State of NSW filed its defence to Mr Bosevski’s pre-filing defence.
On 22 June 2018 Mr Bosevski lodged an Application for Mediation to Resolve a Work Injury Damages Claim (Matter No 3175/18) in the Commission. The application was served on 26 June 2018, and the State of NSW filed a response on 11 July 2018.
The work injury damages claim proceeded to mediation on 24 August 2018. The matter did not resolve at mediation and a Certificate of Mediation Outcome was issued on 27 August 2018. An Amended Certificate of Mediation Outcome was issued on 31 August 2018 in which the defendant was correctly identified as the State of New South Wales.
On 8 July 2019 solicitors for the State of NSW sent a letter to Mr Bosevski’s solicitors, advising as follows:
“I note that a pre-filing statement was served in May 2018. The matter then failed to resolve at mediation, and a Certificate of Mediation was issued on 27 August 2018. The plaintiff has, since that date, been at liberty to commence Court proceedings but has not done so.
I advise that should you not provide written confirmation within 7 days from the date of this letter as to whether the plaintiff’s claim for work injury damages is withdrawn, the respondent will be applying to the Workers Compensation Commission to have the pre-filing statement struck out without further notice to you.
The respondent further reserves the right to rely upon this letter in response to any future application for leave pursuant to section 151D of the Workers Compensation Act 1987 in the event that the damages claim is not withdrawn.”
The State of NSW received no response to its letter of 8 July 2019 from Mr Bosevski’s solicitors.
On 17 July 2019, solicitors for the State of NSW lodged an Application to Strike Out a Pre-Filing Statement (Matter No 3598/19) (Application), which is the current matter before me. The Application was served on Mr Bosevski’s solicitors on 19 July 2019.
In accordance with the Registrar’s Direction dated 18 July 2019, Mr Bosevski was directed to file and serve a Notice of Opposition and supporting documentation by 29 August 2019. No Notice of Opposition was filed by that date.
On 2 September 2019, the Commission attempted to contact Mr Bosevski’s solicitors by telephone, to no answer. An email was also sent to the solicitor on the record, Mr Meigan, and to the solicitor’s general email address.
On 3 September 2019 the Commission contacted Mr Meigan’s secretary, “Paula”, to confirm whether Taylor & Scott were still acting for Mr Bosevski. Paula informed the Commission that she was not sure as the file has been archived. Paula noted the firm’s record stated that the work injury damages claim did not settle and that Mr Bosevski remained on his statutory entitlements. The Commission explained that the State of NSW had filed an Application and that the Commission needed to know whether Mr Bosevski opposed the Application. Paula said she would bring this to Mr Meigan’s attention when he returned to the office that afternoon.
On 6 September 2019, Taylor & Scott filed a letter with the Commission, which stated as follows:
“We refer to the above matter and the defendant’s application to strike out a Pre-Filing Statement filed in the Workers Compensation Commission on 18 July 2019.
The applicant does not wish to make any submissions in relation to the insurer’s application.”
On 13 September 2019, Ms Nyomi Gunasekera, Senior Lawyer at the Commission emailed Mr Meigan (copying in Ms Adele Fletcher, Turks Legal), seeking clarification on whether Mr Bosevski sought to file a Notice of Opposition in the matter. Ms Gunasekera noted that if Mr Bosevski did not seek to file a Notice of Opposition, the Commission requested that the parties either file Consent Orders, or an Agreement or Election to Discontinue Proceedings to dispose of the matter. In a further email dated 17 September 2019, Ms Gunasekera requested “in the event that your client does not elect to discontinue the matter and rather seeks to have the matter determined by the President, the Commission seeks your submissions on this point.”
In emails dated 13 and 17 September 2019, Ms Fletcher submitted that in the absence of a response from Mr Bosevski’s solicitors, the Application should proceed to determination and that Mr Bosevski’s solicitor had already stated that the worker makes no submissions.
In an email to the parties dated 18 September 2019, Ms Gunasekera responded as follows:
“Whilst the claimant respondent’s representative has said he ‘does not wish to make any submissions in relation to the insurer’s application’, he has not said he consents to the application to strike out the Pre-Filing Statement (PFS), nor that he will withdraw his PFS.
There is therefore some ambiguity in respect of the claimant respondent’s position. Given the impact on the worker in having his PFS struck out, the Commission seeks confirmation from the claimant respondent of his position in respect of the PFS strike out application.
In the event that the claimant respondent does not seek to oppose the application to strike out his PFS, the Commission requests that Consent Orders be filed by parties to dispose of the matter in the following terms:
‘1. The Claimant withdraws his Pre-Filing Statement
2. The Defendant withdraws their Application to Strike Out a Pre-Filing Statement’.”
In an email dated 20 September 2019, Ms Fletcher requested the matter be referred to me for determination in light of Mr Bosevski’s solicitor’s lack of response. She noted it had been more than 2 months since the Application was served and that Mr Bosevski was now well out of time to make submissions in opposition.
On 27 September 2019, the Commission phoned Taylor & Scott as no response had been received to its emails dated 13 September 2019, 17 September 2019 and 18 September 2019. The Commission was advised that Mr Meigan was on leave and that a message would be left for him to return the call. Ms Gunasekera sent an email to the parties on the same date, stating as follows:
“In light of the below correspondence, and the lack of response from Mr Meigan in respect of his client’s position, the Commission says the following.
The claimant respondent is to provide his response to the matters contained in the emails below in respect of his position regarding the Application on or before 4pm Friday 4 October 2019.
If no response is provided by the claimant respondent by this date, the Commission will take this to mean the claimant respondent consents to the Application. In circumstances where there is no active opposition to the Application, the President will independently consider whether the requirements for allowing a Pre-Filing strike out application have been met, in making his determination.” (bold emphasis in original, underlined emphasis added)
To date, there has been no further contact from Taylor & Scott in respect of this matter.

ON THE PAPERS

Section 354(6) of the Workplace Injury management and Workers Compensation Act 1988 (the 1998 Act) provides:
“(6) 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.”
Having regard to Practice Direction Number 1, the documents that are before me, and the submission by the applicant defendant that the matter can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEGISLATION

Section 151DA of the 1987 Act provides:
“151DA Time not to run for commencement of proceedings in certain cases
(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.”

SUBMISSIONS

The State of NSW

The State of NSW submits no response was received from Mr Bosevski’s solicitors to its letter dated 8 July 2019. The State of NSW further submits Mr Bosevski has not filed a Notice of Opposition, has stated that he does not wish to file any submissions and has not responded to any of the Commission’s email or telephone correspondence.
The State of NSW submits that since the mediation, Mr Bosevski has not taken any steps to commence proceedings in the District Court to pursue his work injury damages claim.
The State of NSW submits that the pre-filing statement should be struck out pursuant to s 151DA of the 1987 Act.

Mr Bosevski

Mr Bosevski has not filed a Notice of Opposition to the Application, however he has submitted that he “does not wish to make any submissions in relation to the insurer’s application”, in a letter dated 6 September 2019.

DISCUSSION

A claim for work injury damages must be brought within three years after the date of injury, except with leave of the court (s 151D of the 1987 Act). However, time may be suspended for one of the reasons set out in s 151DA of the 1987 Act. Section 151DA(1)(b) of the 1987 Act suspends time for the purposes of s 151D while a pre-filing statement in respect of the claim remains current. That is, until the pre-filing statement is struck out on the application of the State of NSW or withdrawn by Mr Bosevski.
An employer may apply to have the pre-filing statement struck out by order, once six months have elapsed after it served the pre-filing defence (s 151DA(3) of the 1987 Act). A pre-filing statement may be struck out by order if the degree of permanent impairment is fully ascertainable (s 151DA(4) of the 1987 Act).
There are no impediments presented by s 151DA(3) or (4) of the 1987 Act to the Application being determined at this time. Since the failed mediation, Mr Bosevski has taken no active steps to resolve the work injury damages claim. More than six months have elapsed after the State of NSW served the pre-filing defence and the medical evidence indicates that the degree of permanent impairment is fully ascertainable.
It is now over 2 years since Mr Bosevski’s claim was notified and approximately 18 months since the parties were unable to resolve the claim at mediation. It is now apparent from Mr Bosevski’s solicitor’s communications with the Commission that Mr Bosevski has no intention of pursuing his work injury damages claim and does not oppose the State of NSW’s Application.
In all the circumstances, given:
(a)    the time delay;
(b)    the fact Mr Bosevski does not oppose the Application; and
(c)    the degree of permanent impairment is fully ascertainable;
I consider it appropriate to exercise my discretion to strike out the pre-filing statement.

DECISION

Mr Bosevski’s pre-filing statement is struck out pursuant to s 151DA of the 1987 Act.
No order as to costs.

Judge Phillips

President

25 March 2020