Swift Car Removal Newcastle Pty Ltd v Workers Compensation Nominal Insurer (iCare)
[2022] NSWPIC 291
•15 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| Citation: | Swift Car Removal Newcastle Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Ors [2022] NSWPIC 291 |
| APPLICANT: | Swift Car Removal Newcastle Pty Ltd |
FIRST RESPONDENT: | Workers Compensation Nominal Insurer (icare) |
| SECOND RESPONDENT: | Andrew Robert Hankin |
| Member: | Jacqueline Snell |
| DATE OF DECISION: | 15 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant sought review of Notice to Reimburse issued under section 145(1) of the Workers Compensation Act 1987; the applicant sought an order that the applicant is not liable for the Notice to Reimburse; the applicant also sought an order under section 119 and/or section 120 of the Workplace Injury Management and Workers Compensation Act 1998 that the second respondent be independent medically examined for the purposes of determining his capacity for work; Held- the orders sought by the applicant are refused. |
| determinations made: | 1. 1. The applicant’s claim for an order that it is not liable to reimburse the first respondent (being the Workers Compensation Nominal Insurer (icare) the sum of $105,813.23, being the sum specified in the Notice to Reimburse issued under s 145(1) of the Workers Compensation Act 1987 dated 25 January 2022 by the first respondent is refused. 2. 2. The applicant’s claim for an order that the second respondent (being the injured worker Andrew Robert Hankin) be medically assessed for the purpose of determining his capacity to return to work is refused. |
STATEMENT OF REASONS
BACKGROUND
1. The applicant (Swift Car Removal Newcastle Pty Ltd) (Swift) seeks review of the Notice to Reimburse issued under s 145(1) of the Workers Compensation Act 1987 (1987 Act) dated 25 January 2022. The Workers Compensation Nominal Insurer (icare) (the Nominal Insurer), the first respondent in these proceedings, seeks reimbursement of $105,813.23 being compensation benefits paid under the 1987 Act to or in respect of Andrew Robert Hankin (Mr Hankin), the second respondent.
2. Swift’s application proceeded to arbitration hearing on 2 May 2022. Kyle Kutasi, solicitor, appeared for Swift. Mr Combe of counsel appeared for the Nominal Insurer instructed by Mr Myles, solicitor. Mr Schipp of counsel appeared for Mr Hankin instructed by Mr Davey, solicitor. Hamed Taheri from Swift was present. Mr Butcher from icare was present. Mr Hankin was present.
3. During my discussions with Mr Kutasi prior to this matter proceeding to arbitration hearing, Mr Kutasi confirmed the orders that Swift was seeking were specifically:
a. (a) that Swift is not liable for the amount in the Notice to Reimburse dated 25 January 2022 in the sum of $105,813.23, and
b. (b) that Mr Hankin be medically assessed for the purpose of determining his current work capacity.
c.4. Although in the application lodged with the Personal Injury Commission (the Commission) Swift also sought review of the Notice to Reimburse issued under s 145(1) of the 1987 Act dated 4 February 2021, this aspect of the application was not ultimately pursued by Swift.
ISSUES FOR DETERMINATION
a.5. The parties agree the following issues are to be determined:
a. (a) whether Swift is liable in respect of payment of the notice issued by the Nominal Insurer on 25 January 2022 in the sum of $105,813.23, and
b. (b) whether the Commission can order Mr Hankin to be medically assessed for the purpose of determining his current work capacity, with such application being made by Swift with reference to s 119 and s 120 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).
PROCEDURE BEFORE THE COMMISSION
a.6. These proceedings initially came before me for teleconference on 11 March 2022. Mr Kutasi appeared on behalf of Swift and Mr Myles appeared on behalf of the Nominal Insurer. Mr Taheri was present. Mr Butcher was present. With Swift seeking an order Mr Hankin be medically assessed for the purpose of determining his current work capacity, the proceedings were stood over for further teleconference on 1 April 2022 to enable Mr Hankin to be joined to the proceedings.
b.7. When the proceedings came before me for teleconference on 1 April 2022, Mr Kutasi appeared on behalf of Swift, Mr Myles appeared on behalf of the Nominal Insurer and Mr Davey appeared on behalf of Mr Hankin. Mr Taheri was present. Mr Butcher was present. Mr Hankin was present. On this occasion the proceedings were listed for conciliation/arbitration hearing on 2 May 2022 and directions were issued to the parties to lodge written submissions so as to assist me with preparation for the conciliation/arbitration hearing.
c.8. Following my discussions with Mr Kutasi and counsel appearing on behalf of the Nominal Insurer and Mr Hankin 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 that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
d.9. The parties have agreed to determination of the matter with reference to the written submissions lodged and served by the parties prior to the conciliation/arbitration hearing.
EVIDENCE
Documentary evidence
a.10. The following documents are before the Commission and considered in making this determination:
a. (a) Swift’s application and attached documents (A);
b. (b) the Nominal Insurer’s Reply and attached documents (NIR);
c. (c) Mr Hankin’s Reply (which has no documents attached) (HR);
d. (d) correspondence dated 31 March 2022 prepared by Swift’s solicitors (C);
e. (e) written submissions prepared on behalf of Swift;
f. (f) written submissions prepared on behalf of the Nominal Insurer, and
g. (g) written submissions prepared on behalf of Mr Hankin.
FINDINGS AND REASONS
Brief review of evidence
Statement of Mr Taheri
a.11. Swift relies on a statement prepared by Hamed Taheri, which is dated 8 February 2022. Mr Hankin is the Director of Swift. He confirmed Mr Hankin has been an employee of Swift since 21 June 2020, working as truck driver. He confirmed Mr Hankin suffered an injury in the workplace on 3 August 2020. He understood Mr Hankin to have “stood up suddenly and hit his head on a cupboard”. Mr Tahiri said “to my knowledge, nobody witnessed the injury”.
b.12. Mr Taheri explained Mr Hankin did not report his injury to Swift, but failed to attend work between 3 August 2020 and 18 August 2020, without explanation. Mr Hankin returned to work on 18 August 2020 and worked until 22 August 2020 “and seemed in that week to have no impairment or incapacity for work”. Mr Taheri said of Mr Hankin that he “did not report any issues during that week”.
c.13. While Mr Hankin was expected to return to work on 25 August 2020, Mr Taheri said Mr Hankin has not returned to work since 11 August 2020, and despite Swift attempting to contact Mr Hankin “on multiple occasions, and in different ways” in order to obtain explanation for his absence from work, contact with Mr Hankin was not achieved.
d.14. Mr Taheri said:
“it was a number of weeks before we were made aware that Andrew had no intention of returning to work, and only when Swift was officially notified of the claim.”
a.15. Mr Taheri conceded that at the time Mr Hankin sustained injury, Swift did not hold a valid policy of insurance. Mr Taheri said Swift has only recently been able to acquire legal advice in respect of Mr Hankin’s claim and now “seeks relief from the Personal Injury Commission to have the claim and claimant independently medically reviewed”.
Correspondence prepared by Swift’s solicitors
a.16. There are two letters prepared by Swift’s solicitors that are in evidence before the Commission. The first is dated 8 February 2022 and the second is dated 31 March 2022.
b.17. In the initial correspondence Swift accepted Mr Hankin sustained injury on 3 August 2020. Swift also accepted Mr Hankin was employed by Swift and confirmed he remains employed by Swift to date. Swift was aware of Mr Hankin’s claim for compensation benefits under the 1987 Act and confirmed it had been served with two section 145 Notices to Reimburse by icare in respect of Mr Hankin in which icare sought reimbursement of payments made to and in respect of Mr Hankin for weekly compensation and medical and related treatment expenses. While Swift’s solicitor wrote “The Employer does not seek to dispute liability on present instructions”, they wrote:
“The Employer has only recently been able to acquire legal advice in respect of this claim. It is for this reason that it did not dispute the February 2021 s 145 Notice within the time limit.
The Claimant was subject to a relatively minor workplace accident wherein the Claimant was initially prescribed mild over-the-counter pain killers as short-term pain relief and two (2) days’ medical leave to recover. The Claimant then returned to work for two (2) weeks after the two (2) days of medical leave without any impairment to his capacity to work. Though the Claimant thereafter ceased attending the workplace.
Outside a vague itemized bill that merely lists the items sought to be reimbursed in the Notices, the Employer has not been provided with the relevant invoices, receipts, reports, bills or other medical documentation in respect of the claim.
Having regard to the relatively minor nature of the injury and lack of documentary evidence in support of the amounts sought to be reimbursed in respect of the claim, the Employer reasonably believes that the medial disbursements sought in the s 145 Notices should be reviewed by an independent medical expert, as the amount claimed in the s 145 Notices is now in excess of $120,000.
The Employer also reasonably suspects that the Claimant may be able to return to work (and perhaps has been for some time), and therefore seeks to have the Claimant medically assessed to determine the status of the Claimant’s current and past capacity to work.
On the results of the medical assessment and report sought in this application, the Employer seeks orders in respect of the Notices, the claim generally, and reimbursement of Employer’s payments in respect of this claim as appropriate.”
a.18. In the subsequent correspondence, relevant to the issue of jurisdiction, Swift’s solicitors made reference to the teleconference occurring on 11 March 2022 and expressed puzzlement at submission made by the Nominal Insurer “that the Commission had no jurisdiction to hear a matter of this nature, namely an application for a medical assessment of injury”, submission with which I reportedly agreed. Swift’s solicitors pointed out that the Commission’s website referred to the fact the Commission deals with “medical disputes” and referred me to s 119 and s 120 of the 1998 Act which “quite plainly provides that the employer may, on request, require the worker to submit themselves for examination by a medical practitioner”. Swift’s solicitors wrote:
“Part 7 of the Workplace Injury Management and Workers Compensation Act 1998 concerns Medical Assessments. Part 7 makes it quite clear that the Commission has jurisdiction to hear this matter and that it has the powers under the act to refer the matter for assessment.
…
Our client had on several occasions attempted to contact Mr Hankin, though we are instructed that all their attempts were unsuccessful. Mr Hankin was, for all intents and purposes, uncontactable. Our client, as Mr Hankin’s employer, had no ability to directly require Mr Hankin to attend a medical assessment. As such, our client has reached out to the Commission for relief in this regard.
As Mr Hankin is now a party to these proceedings, our client herein givens notice that it requires Mr Hankin to submit himself for medical examination. Should he refuse, our client hereby requests the Commission stay any compensation under the Workplace Injury Management and Workers Compensation Act 1998 until he does so – for the avoidance of any doubt this ought to include the reimbursement sought under the Section 145 Notice to Reimburse issued to our client, and that, pursuant to Section 120, the Commission require Mr Hankin to likewise subject himself to a medical assessment at the request of our client.”
a.19. Also in the subsequent correspondence, relevant to the issue of liability, Swift’s solicitors wrote:
“The representatives for iCare and for Mr Hankin have on several occasions erroneously asserted that our client had asserted that it does not dispute liability in this matter. This is incorrect, this was never stated or asserted by our client. Our client was under the impression that the correct means through which to seek a medical assessment of Mr Hankin was via the ‘medical disputes’ route as outlined on the Commission’s website.
However, as our client disputes the section 145 notice and wishes to dispute what it seeks to reimburse, it follows that it also disputes liability to pay it. Our client’s application therefore satisfies the requirements of Section 145(3).”
The balance of this correspondence is relevant to Notice for Production which Swift’s solicitors said Swift sought to supply the medical assessor, and while this particular issue was not raised at the teleconference occurring on 1 April 2022 or subsequently at the conciliation/arbitration hearing on 2 May 2022, the issue was addressed in Swift’s written submissions.
Correspondence prepared by the Nominal Insurer
a.20. Under cover of letter dated 4 February 2021 the Nominal Insurer served Swift with Notice issued under s 145(1) of the 1987 Act requesting reimbursement of payments made to and in respect of Mr Hankin by the Workers Compensation Insurance Fund (the Fund) in the sum of $15,797.11. It is apparent that Swift reimbursed the Fund $12,000 in response to this initial Notice.
b.21. Under cover of letter dated 25 January 2022 the Nominal Insurer served Swift with another Notice issued under s 145(1) of the 1987 Act requesting reimbursement of payments made to and in respect of Mr Hankin by the Fund in the sum of $105,813.23.
List of Payments
a.22. A list of payments made under the 1987 Act to and in respect of Mr Hankin as at 24 January 2022 is in evidence before the Commission. The payments for Mr Hankin’s claim total $117,813.23 and with Swift having previously reimbursed the Fund for payments made to and in respect of Mr Hankin in the sum of $12,000, the balance to now be reimbursed is $105,813.23.
b.23. A review of the list of payments demonstrates the payment categories to be weekly compensation benefits paid to Mr Hankin and medical and related treatment expenses paid in respect of Mr Hankin, including those relating to the surgical treatment Mr Hankin came to under the care of Dr Curtis in late 2021.
Treating medical evidence relevant to Mr Hankin
Belmont District Hospital
a.24. Mr Hankin attended the Emergency Department at Belmont District Hospital during the afternoon of 6 August 2020. The Discharge Referral is in evidence before the Commission.
b.25. The triage nurse noted:
“work related injury, presents stood up suddenly at work on Monday hitting head on cupboard. states brief LOC, not seen by Dr at the time. Today C/O ongoing headache and right sided neck and shoulder pain, no C spine tenderness, nil dizziness or headaches…”
a.26. Diagnosis was provided:
“Primary Diagnosis
•• Blunt Trauma to Head
Secondary Diagnosis
•• Musculoskeletal pain.”
a.27. Mr Hankin was discharged by the hospital into the care of his general practitioner, who Mr Hankin was advised to consult with the following day. Mr Hankin was advised to take nurofen and paracetamol, and provided with an initial Certificate of Capacity in which he was certified totally incapacitated for work for two days.
Belmont District Hospital
a.28. Mr Hankin is under the general medical care of Dr Harvey, and as advised by the hospital, Mr Hankin consulted with Dr Harvey on 7 August 2020. Dr Harvey has provided Mr Hankin with a number of Certificates of Capacity which are in evidence before the Commission.
b.29. Dr Harvey provided diagnosis in terms of “concussional injury, ensuing right upper limb radiculopathy” with the date of injury noted as 3 August 2020. Dr Harvey described the circumstances of injury as “hit head on shelf when standing”. Planned medical management at that stage was in terms of “CT scan cervical spine, rest physio at this point, possible neuropathy”. Dr Harvey certified Mr Hankin as totally incapacitated for work.
c.30. Unfortunately, the remainder of the Certificates of Capacity in evidence before the Commission, which are dated 11 August 2020, 21 August 2020, 31 August 2020 and 14 September 2020, are incomplete copies and are of no assistance to me.
Independent medical evidence relevant to Mr Hankin
a.31. The Nominal Insurer relies on a report dated 13 August 2021 prepared by Dr Stening in his capacity as independent medical examiner. Dr Stening is a neurosurgeon. Dr Stening noted in his report that the reason for the assessment “is to assess causation, work capacity and treatment”. Dr Stening reported a history of injury:
“He told me that on 3 August 2020, he was at work as a truck driver. He worked for a firm which stripped cars for their parts. Whilst performing stacking duties, he was working from beneath a shelf, and, when he came out and stood up, he hit his head on the shelf, briefly losing consciousness for a second or two. He was aware of an immediate onset of neck pain.
A co-worker assisted him to the lunchroom, where he stayed until his partner came to pick him up and take him home.
Once arriving home, he rested, but by this time he could hardly move his neck.
Approximately eight days later, as the pain was not resolving, he attended Belmont Hospital. He was assessed and sent home. He subsequently attended his local doctor who sent him for a course of physiotherapy and referred him to a psychiatrist. These did not help.
Some 2 to 3 days after the injury he tried to return to work but the pain stopped him. He has not worked since and cannot drive a truck.
He has had a CT and MRI. He has had a CT guided injection, which helped for some three days only. He has been referred to Dr Jonathan Curtis who recommended two disc replacements and a fusion.”
a.32. Following clinical examination, which was limited due to the telehealth nature of the assessment, review of the cervical MRI dated 21 December 2020 and report, and medical information that included a cervical spine CT report dated 7 August 2020, a SPECT/CT dated 5 March 2021 and the reporting of the treating neurosurgeon, Dr Curtis, in response to specific reporting Dr Stening provided opinion:
“There are significant degenerative changes at multiple levels in the cervical spine, most marked at C4/5, C6/7 and C7/T1. In addition to this there is right sided radiculopathy, at C6/7 and, more marked, at C8.
These pre-existing degenerative changes were significantly aggravated by the work-related incident which occurred on 3 August 2020, which caused the onset of neck pain, and also the onset of the radicular symptoms.
…
The work-related injury has not resolved. I do not believe that it will resolve until the appropriate surgical procedure is carried out and is successful.
…
The most recent certificate of capacity has stated that the worker has no capacity for work. I would agree with this.
…
The suggested C6/7 and C7/T1 ACDF is the treatment which is reasonably necessary treatment for the worker’s current condition.
Although the degenerative changes were present in the cervical spine prior to the work-related subject accident, the surgery would not have become necessary had the accident not occurred, aggravating those pre-existing degenerative changes.
The surgery is certainly necessary to relieve the radiculopathy.
…
The worker has had more than 12 months of nonsurgical management, with no significant improvement in his symptoms. Therefore, I would state that the worker has exhausted all reasonable nonsurgical treatments.”
Submissions
a.33. Each party has lodged and served written submission, which I have carefully considered, and I am grateful for the assistance provided to me in this particular matter.
Swift’s submissions
a.34. In essence it is submitted on behalf of Swift that after Mr Hankin purportedly suffered injury on 3 August 2020 in the course of employment with Swift he was absent for work without explanation until 18 August 2020. Mr Hankin then worked his usual duties between 18 August 2020 until 22 August 2020 without sign or complaint of injury, impairment or incapacity for work and without providing notice of injury. Mr Hankin did not return to work after 22 August 2020, again without explanation, and “despite many attempts by Swift to contact him, Mr Hankin was uncontactable”.
b.35. Swift accept that as at 3 August 2020 Swift did not have a valid policy of insurance and accept that following receipt of the first Notice issued under s 145(1) of the 1987 Act, settlement was achieved. However, following receipt of the second Notice issued under s 145(1) of the 1987 Act Swift lodged “a Miscellaneous application to the Commission in respect of icare’s notices and Mr Hankins claim at large”.
c.36. As regards Swift’s request for an independent medical examination of Mr Hankin, Swift submitted that in circumstances where Mr Hankin was, despite attempts made by Swift to contact him, “entirely uncontactable and unresponsive” after 22 August 2020 and the Nominal Insurer seeks reimbursement of payments made to and in respect of Mr Hankin, that it is reasonable for Swift to appeal to the Commission “in order to obtain relief in this regard”.
d.37. Swift submitted it would be unreasonable and incorrect to suggest that:
“a. the Applicant cannot subject Mr Hankin to a medical examination either as his employer, or failing that for whatever reason outside of direct fault of the Applicant, by way of order from the Commission;
b. the Applicant is somehow barred either legally or practically from collecting and submitting its own medical evidence for the Commission’s consideration in respect of Mr Hankin’s capacity to work and his necessary medical expenses;
c. the Applicant cannot apply to the Commission, and that the Commission does not have jurisdiction to make orders to provide a remedy to above or to consider the Applicant’s foreshadowed medical evidence in respect of said remedy;
d. the Commission does not have jurisdiction, after considering the Applicant’s foreshadowed medical evidence, to make orders requiring Mr Hankin to be examined by an independent medical expert appointed by the Commission;
e. the Commission cannot rely on the evidence provided to the Commission by the independent medical expert; and/or
f. on review of the evidence of both parties and the independent medical expert, the Applicant cannot apply to the Commission, and that the Commission cannot make orders in respect of the s 145 Notices already issued, Mr Hankin’s past, current and future capacity to work and what past, present or future treatment is reasonably necessary.”
a.38. Swift submitted that to “suggest otherwise in respect of the above would create a fundamentally unjust outcome and would constitute a denial of justice for the Applicant”.
b.39. As regards Swift disputing liability to pay the notices issued by the Nominal Insurer, Swift submitted “that it at no stage waived its right to contest liability to pay the Notices”. Swift submitted:
“It is simply the case that it understood that there are two ‘routes’ available via the Commission to deal with such a matter, namely the ‘medical disputes’ route and the ‘legal disputes’ route. The Applicant quite reasonably suspected the correct route to take was the medical route, and this was confirmed to the Applicant after enquiring with the Commission’s support staff.
When the Applicant stated ‘the Applicant does not seek to dispute liability on present instructions’ in its application, it simply meant ‘liability’ in the sense that it anticipated that the matter would centre on medical issues rather than legal issues.
We reiterate that the words ‘…on present instructions’ cannot be ignored; the Applicant may amend its application, if necessary. Doing so comes at no cost to the Respondents.
Therefore, in short, this issue is simply a case of misunderstanding and miscommunication of the nomenclature.
In any event, the Applicant maintains and has maintained at all material time in these proceedings that it is not liable to pay the Notices.”
a.40. With reference to s 145(4) of the 1987 Act, Swift submitted:
“As the Applicant’s application before the Commission was made pursuant to Section 145(3) of the Workers Compensation Act 1987, it is within the Commission’s jurisdiction and power to firstly, hear this matter, and second, grant the Applicant the relief it seeks by virtue of the discretionary powers it is granted by Section 145(4) alone.”
The Nominal Insurer’s submissions
a.41. The Nominal Insurer noted Swift as having disputed liability under s 145(1) of the 1987 Act and submitted the Commission does not have jurisdiction to entertain the nature of the application made by Swift, which is before the Commission.
b.42. As regards Swift’s request for medical examination of Mr Hankin, the Nominal Insurer did not accept there is “any proper ‘medical dispute’ on foot” that provides Swift with entitlement to subject Mr Hankin to attend an independent medical examination. The Nominal Insurer pointed out an independent medical examiner’s report, which addressed specialist opinion “on aspects such as surgery” had been provided to Swift and no medical evidence had been provided by Swift “to suggest that was not appropriate”. The Nominal Insurer pointed out a “medical dispute” is defined by s 121(1) of the 1998 Act to mean “a disagreement between a worker and the ‘employer’ as to a worker’s condition or the worker’s fitness for employment” and no medical evidence had been provided by Swift to establish a ‘medical dispute’ existed before lodging its application with the Commission.
c.43. The Nominal Insurer also pointed out the nature of the Uninsured Liability Scheme is such that the Nominal Insurer “is subrogated to an uninsured employer and administers a claim under the 1987 Act where an employer is uninsured”. The Nominal Insurer submitted s 119 and s 120 of the 1998 Act are modified by clause 167(a) of the Workers Compensation Regulation 2016 (NSW) (the Regulation) such that the Nominal Insurer is inserted in the stead of an employer and accordingly Swift cannot seek an order that compels Mr Hankin to attend an independent medical examination pursuant to either s 119 or s 120 of the 1998 Act.
d.44. As regards Swift disputing liability to pay the notices issued under s 145(1) of the 1987 Act, the Nominal Insurer pointed out the Commission’s jurisdiction to determine a liability issue under s 145 of the 1987 Act was considered by the Court of Appeal in Ballantyne v WorkCover Authority of New South Wales with submission that in that matter the court found:
“ that there is no greater role for the Commission than to determine liability issues such as:
•• Was the person properly served with a notice under section 145(1),
•• Did the notice require payment of an amount not exceeding the payment made by the Authority.
•• Was the person served the employer, or an insurer of the employer, of the injured worker.
•• Was the payment made by the authority a payment of “compensation in accordance with this Act.”
a.45. The Nominal Insurer submitted these issues referred have been admitted by Swift and are evident in the application made by Swift and the correspondence attached to the application. The Nominal Insurer submitted the Commission does not have jurisdiction to entertain the application made by Swift relevant to liability for the notices issued under s 145(1) of the 1987 Act.
Mr Hankin’s submissions
a.46. Mr Hankin correctly noted he was joined to these proceedings “as an affected party” because of potential requirement he attend the independent medical examination sought by Swift, which he said Swift had no entitlement to.
b.47. As regards Swift’s request for medical examination of Mr Hankin, Mr Hankin submitted there is no “medical dispute” between Swift and Mr Hankin, as defined by s 122 of the 1998 Act and made reference to clause 167 of the Regulation. Mr Hankin submitted Swift had no entitlement to require Mr Hankin to attend a medical examination either under s 119 or s 120 of the 1998 Act and again made reference to clause 167 of the Regulation.
c.48. As regards Swift disputing liability to pay the notices issued under s 145(1) of the 1987 Act, Mr Hankin submitted:
“It is by no means clear what the Applicant seeks to achieve by its application. In some correspondence, it does not dispute liability. This is contradicted in other material.
Even assuming that ‘liability’ is disputed under s 145(1) of the 1987 Act, the precise nature and extent of that dispute remains unspecified.
The 2nd Respondent agrees with the submission of the Applicant (sic) in respect to the Court of Appeal’s decision in Ballantyne v Workcover Authority of New South Wales [2007] NSWCA 239. There are 4 aspects that may be the subject of dispute:
a. Was the person properly served with a notice under s 145(1);
b.Did the notice require payment of an amount not exceeding the payment by the Authority?
c.Was the person served the employer, or an insurer of the employer, of the injured worker?
d.Was the payment made by the authority a payment of ‘compensation in accordance with this Act’?
This proposition is found in [106].
If ‘liability’ has been the subject of an admission by the Applicant, then there is no dispute before the Commission. Certainly no issue of liability was raised in regard to the first s 145 notice, which was paid by the Applicant.
In any event, the outcome of the Commission’s determination on this issue does not affect the 2nd Respondent. It is only if the 2nd Respondent is required to submit to a medical examination that there is any effect on the 2nd Respondent. Even then, the outcome of that appointment can have no effect on his entitlements.”
Determination
a.49. The role of the Commission is to resolve disputes between people injured in motor accidents and workplaces in NSW, insurers and employers. Section 105(1) of the 1998 Act provides the Commission with exclusive jurisdiction to examine, hear and determine all matters arising under the 1987 Act and the 1998 Act and Members of the Commission only have powers that are incidental and necessary to the exercise of their statutory jurisdiction.
b.50. Although s 9 of the 1987 Act imposes the liability to pay compensation on an injured worker’s employer, the employer is required by s 155 of the 1987 Act (unless the employer is a self-insurer) to obtain and maintain in force a policy of insurance with a licensed insurer and in the circumstances of this particular matter it is common ground Swift did not have insurance at the time Mr Hankin sustained injury.
c.51. Part 4 Division 6 of the 1987 Act concerns uninsured liabilities with s 140 relevantly providing a claim may be made against the Nominal Insurer by an injured worker who considers he or she has a claim against an employer for compensation payable under the 1987 Act if the injured worker’s employer is uninsured.
d.52. In the circumstances of this particular matter s 142A of the 1987 Act relevantly provides for the Nominal Insurer to become the insurer for Mr Hankin’s claim and s 142B of the 1987 Act relevantly provides for the Commission to make orders relevant to reimbursement of the Fund by Swift under s 145 of the 1987 Act.
Is Swift liable in respect of payment of the notice issued by the Nominal Insurer on 25 January 2022 in the sum of $105,813.23?
a.53. It is common ground Swift did not have insurance at the time Mr Hankin sustained injury on 3 August 2020 and consequent on his claim for compensation resulting from that injury, the Nominal Insurer became the insurer for Mr Hankin’s claim against Swift. The payments on the claim total $117,813.23 and with Swift having earlier reimbursed the Fund in the sum of $12,000, the balance now sought to be reimbursed to the Fund is $105,813.23.
b.54. Swift has referred the notice issued under s 145(1) of the 1987 Act by the Nominal Insurer on 25 January 2022 in the sum of $105,813.23 to the Commission for determination of liability to reimburse the Fund in the sum of $105,813.23.
c.55. Swift’s application is made under s 145(3) of the 1987 Act, which provides:
“A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.”
Section 145(4) of the 1987 Act provides:
“The Commission may hear any such application and may –
(a) make such determination in relation to the application, and
(b) make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned, as the Commission thinks fit.”
a.56. Relevant to any determination to be made by the Commission under s 145(4) of the 1987 Act is determination of the Court of Appeal in the matters of Raniere Nominees Pty Ltd v Daley and Ballantyne v WorkCover Authority of NSW.
b.57. In Ballantyne the Court held that consistent with Raniere No 2 the powers of the Commission conferred by s 145(4) are for the sole purpose of determining an application made under s 145(3) with respect to the liability of a person served with a notice under s 145(1) “as it is ‘any such application’ which the Commission is empowered to hear and determine, and no other”. The Court held in effect that liability under s 145 depends on the following factors:
“(a) was the person properly served with a notice under s 145(1);
(b) did the notice require payment of an amount not exceeding the payment made by the Nominal Insurer;
(c) was the person served the employer or an insurer of the employer of the injured worker, and
(d) was the payment made by the Nominal Insurer a payment of “compensation in accordance with this Act.”
a.58. The evidence before the Commission demonstrates Swift has been properly served with a notice under s 145(1) of the 1987 Act, the notice requires payment of an amount not exceeding the payment made to the Nominal Insurer, Swift was the employer of Mr Hankin, and the payment made by the Nominal Insurer was a payment of compensation made under the 1987 Act.
b.59. While there is complaint by Swift that Swift has not had the opportunity to have Mr Hankin medically examined and submission made by Swift that the injury Mr Hankin sustained on 3 August 2020 was “relatively minor”, the Nominal insurer (which became the insurer for Mr Hankin’s claim as Swift did not have insurance at the time Mr Hankin sustained injury) had the opportunity to have Mr Hankin medically examined by Dr Stening on 10 August 2021 in his capacity as independent medical examiner with Dr Stening providing opinion that clearly supported Mr Hankin’s claim for weekly compensation and medical and related treatment expenses payable under the 1987 Act. The Nominal Insurer has made payment accordingly.
c.60. With reference Reniere No 2 and Ballantyne, and following a review of the evidence as a whole and careful consideration of the submissions made by the parties, I am of the view that Swift is liable in respect of the payment sought by the Nominal Insurer under cover of Notice to Reimburse issued under s 145(1) of the 1987 Act dated 25 January 2022 in the sum of $105,813.23.
Does Swift have entitlement to have Mr Hankin medically assessed for the purpose of determining his current work capacity?
a.61. Division 7 of the 1998 Act concerns medical examination and disputes. Both the Nominal Insurer and Mr Hankin have submitted there is no “medical dispute” before the Commission for determination. While the Nominal Insurer referred me to the definition of “medical dispute” in s 121 of the 1998 Act and Mr Hankin referred me to the definition of “medical dispute” in s 122 of the 1998 Act, such definitions are relevant to those specific sections of the 1998 Act. In seeking an order for Mr Hankin to medically assessed for the purpose of determining his current capacity for work Swift relies on s 119 and s 120 of the 1998 Act and not s 121 and s 122 of the 1998 Act. Section 119 of the 1998 Act does not provide definition of “medical dispute” specific to s 119 and likewise s 120 of the 1998 Act does not provide definition of “medical dispute” specific to s 120.
b.62. However, s 4 of the 1998 Act defines “medical dispute” as having the meaning given by s 319 of the 1998, which relevantly defines “medical dispute” to mean:
“…a dispute between a claimant and the person on whom a claim is made about any of the following matters or question about any of the following matters in connection with a claim –
(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker’s fitness for employment.
…”.
a.63. Section 119 of the 1998 Act provides for the medical examination of a worker at the direction of an employer. It provides, in part:
“(1) A worker who has given notice of an injury must, if so required by the employer, submit himself or herself for examination by a medical practitioner, provided and paid by the employer.
(2) A worker receiving weekly payments of compensation under this Act must, if so required by the employer, from time to time submit himself or herself for examination by a medical practitioner, provided and paid by the employer.
(3) If a worker refuses to submit himself or herself for any examination under this section or in any way obstructs the examination –
(a) the worker’s right to recover compensation under this Act with respect to the injury, or
(b) the worker’s right to weekly payments,
Is suspended until the examination has taken place.
(4) A worker must not be required to submit himself or herself for examination by a medical practitioner under this section otherwise than in accordance with the Workers Compensation Guidelines or at more frequent intervals than may be prescribed by the Workers Compensation Guidelines.”
a.64. Regulation 167 of the Regulation concerns uninsured liabilities and the modification of provisions of the workers compensation legislation. Regulation 167 provides in part for reference in section 119 of the 1998 Act to an “employer” to be read as reference to the Nominal Insurer. I accept submission by the Nominal Insurer and Mr Hankin that s 119 of the 1998 Act does not provide Swift with an entitlement to have Mr Hankin medically assessed for the purpose of determining his capacity for work as in the circumstances of this particular matter as such entitlement rests with the Nominal Insurer.
b.65. Section 120 of the 1998 Act provides for medical examination of a worker at the direction of the Commission. Section 120 is a discretionary power and provides, in part:
“(1) The Commission may, at any time or from time to time, require any worker –
(a) who claims compensation under this Act, or
(b) who is in receipt of weekly payments of compensation under this Act,
to submit himself or herself for examination by a medical assessor on a date and at a place arranged by the Commission.
(2) If a worker refuses to submit himself or herself for any such examination or in any way obstructs the examination –
(a)the worker’s right to compensation under this Act with respect to the injury, or
(b)the worker’s right to weekly payments,
Is suspended until the examination has taken place.”
a.66. Section 319 of the 1998 Act relevantly defines “medical dispute” to mean “…a dispute between a claimant and the person on whom a claim is made…” and submission is made by Swift that Swift was notified of Mr Hankin’s injury and claim “through iCare”. With Swift only being notified of Mr Hankin’s claim “through iCare” I do not accept a medical dispute has arisen between Mr Hankin and Swift as defined by s 319 of the 1998 Act and I accept submission by the Nominal Insurer and Mr Hankin there is no “medical dispute” before the Commission for determination. In any event as the Nominal Insurer, which manages Mr Hankin’s claim, has had the opportunity to have Mr Hankin medically examined by an independent medical examiner I do not believe it to be at all appropriate for the Commission to require Mr Hankin to submit himself for examination by a Medical Assessor.
SUMMARY
a.67. Swift’s claim for an order that it is not liable to reimburse the Nominal Insurer the sum of $105,813.23, being the sum specified in the Notice to Reimburse issued under s 145(1) of the 1987 Act dated 25 January 2022 by the Nominal Insurer, is refused.
b.68. Swift’s claim for an order that the Mr Hankin be medically assessed for the purpose of determining his capacity to return to work is refused.
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