Taal Johannsen v Buslink Vivo Pty Ltd
[2018] NTLC 23
•20 SEPTEMBER 2018
CITATION: TAAL JOHANNSEN V BUSLINK VIVO PTY LTD [2018] NTLC 23
| PARTIES: | TAAL JOHANNSEN |
| V | |
| BUSLINK VIVO PTY LTD | |
| TITLE OF COURT: | WORK HEALTH COURT |
| JURISDICTION: | WORK HEALTH |
| FILE NO(S): | 21817717 |
| DELIVERED ON: | 20 SEPTEMBER 2018 |
| DELIVERED AT: | DARWIN |
| HEARING DATE(S): | 24 MAY, 13 JUNE AND 23 JULY 2018 |
| JUDGMENT OF: | JUDGE NEILL |
| CATCHWORDS: |
Joinder of the Work Health Authority before the Work Health Court in proceedings
involving Subdivision C of Part 5 of the Return To Work Act; procedure for making an
application pursuant to section 72A of that Act.
Return To Work Act
Work Health Administration Act
Work Health Court Rules
Taylor Enterprises v Pointon & Work Health Authority [2009] NTMC 029
Consolidated Press Holdings Limited v Wheeler (1992) 84 NTR 42
Mays v Rose et al Superior Court of Chancery (1884) 703
REPRESENTATION:
Counsel:
| Worker: | Matthew Littlejohn |
| Employer: | Tom Anderson |
| Work Health Authority: | Duncan McConnel |
| Solicitors: | |
| Worker: | Maurice Blackburn |
| Employer: | Minter Ellison |
| Work Health Authority: | Solicitor for the Northern Territory |
| Judgment category classification: | A |
| Judgment ID number: | 023 |
| Number of paragraphs: | 54 |
| IN THE WORK HEALTH COURT | |
| AT DARWIN IN THE NORTHERN | |
| TERRITORY OF AUSTRALIA | |
| No. 21817717 | |
| BETWEEN | |
| TAAL JOHNANNSEN | |
| Worker | |
| AND | |
| BUSLINK VIVO PTY LTD | |
| Employer |
REASONS FOR DECISION
(Delivered 20th September 2018)
JUDGE NEILL
BACKGROUND
Mr Taal Johanssen (“the Worker”) at all material times was employed by Buslink
VIVO Pty Ltd (“the Employer”) as a bus driver.
2. On a date unspecified in documentation filed with the Work Health Court the
Worker was involved in a motor vehicle accident while he was driving a bus in the
course of his employment with the Employer (“the accident”).
3. As a result of the accident the Worker sustained relatively minor physical injuries.
However, three people in the other vehicle involved in the accident died. The
Worker suffered a psychological injury as a consequence of these events (“the
injury”).
4. The Worker made a claim in respect of the injury under the Return to Work Act
(“the Act”) and his claim was accepted by the Employer’s Work Health insurer
(“the insurer”).
PERCENTAGE PERMANENT IMPAIRMENT
A – Overview
5. Where a claim is accepted an injured worker may be entitled to a number of
different types of compensation under the Act. The most common types of
compensation are payment or reimbursement of various medical expenses, and also
payment of weekly benefits while the worker continues to be wholly or partially
incapacitated for work.
6. A less common entitlement to compensation arises where the injured worker does
not fully recover from the effects of the injury. In such a case the worker may be
entitled to be paid a lump sum of money calculated on the basis of the relevant
percentage permanent impairment of the whole person arising from the injury.
7. Sections 70 to 72A inclusive of the Act are set out in Subdivision C of Part 5 of the
Act. These sections deal with how a percentage permanent impairment is to be
assessed. They deal with any challenge to the validity of such an assessment by
empowering the Work Health Authority to rule on this question. They allow for a
review of an unchallenged assessment by a panel of three medical specialists to be
appointed and organised by the Work Health Authority. They prescribe time limits
for paying an assessed lump sum.
8. Where an employer does not pay the assessed lump sum within the prescribed time
then section 72A of the Act provides a system of enforcement of payment. That
involves approaching the registry of the Work Health Court for a certificate of the
amount payable and then registering that certificate with the Local Court. The Local
Court’s usual enforcement processes are then available.
B – The History in this Matter
9. On or about 16 August 2017 the Worker was assessed by psychiatrist Dr Eric De
Leacy at the request of the Worker’s lawyers. Dr De Leacy provided a report dated
16 August 2017 (“the first report”) in which he assessed that the Worker as a
consequence of the injury had sustained a 25% permanent impairment of the whole
person (“the assessment”) calculated in accordance with the 4th Edition of the
American Medical Association Guides (“the prescribed Guides”).
The Worker’s lawyers served a copy of the first report on the insurer by email dated
28 August 2017.
11. The insurer sent a copy of the first report to NT WorkSafe by email dated 4
September 2017, one week after receiving it from the Worker’s lawyers. In that
email the insurer advised NT WorkSafe that it disagreed with the assessment. The
reason provided for the disagreement was that the Worker’s injury had not yet
stabilised as at the date of the assessment.
12. Mr Geoff Anstess of NT WorkSafe wrote to the insurer by letter dated 5 September
2017 and advised that NT WorkSafe was not satisfied the assessment had been
conducted in accordance with the prescribed Guides. He stated this was because Dr
De Leacy did not state or otherwise indicate that the Worker’s condition had
stabilised as at the date of the assessment. The insurer forwarded a copy of this
letter to the Worker’s lawyers on 24 November 2017, three months after the
Worker’s lawyers had served the first report.
13. The Worker by his lawyers then sought a further report from Dr De Leacy to
consider the question whether the Worker’s condition had stabilised as at 17 August
2017, the date of the assessment. Dr De Leacy provided a report dated 6 December
2017 in which he stated unequivocally that as at 16 August 2017 the Worker had
“reached maximum medical improvement” and “at 16 August I did not consider
that his symptoms would substantially change in the next year” (“the second
report”).
The Worker’s lawyers served a copy of the second report on the insurer’s lawyers
by a hand-delivered letter dated 22 December 2017.
15. The insurer did not provide a copy of the second report to NT WorkSafe until the
22nd of March 2018, three months after the second report had been served on the
insurer’s lawyers. The insurer asked NT WorkSafe in its accompanying email of
that date whether the second report “satisfies the legislative requirements”.
16. By email dated 26 March 2018 an officer of NT WorkSafe advised the insurer that
if a permanent impairment “reassessment request was rejected a supplementary
report would not be sufficient. We would need a full new report to be submitted”.
However, by email dated 8 May 2018 Mr Geoff Anstess of NT WorkSafe told the
insurer’s lawyers that a full, new report might not always be required – that could
depend on when the supplementary report was supplied, whether it was consistent
with the first report, and any relevant history between the first report and the
supplementary report. Mr Anstess went on to express his opinion that in the case of
this Worker, too much time had elapsed between the two reports and Dr De Leacy
would need to reassess the Worker.
17. By letter dated 12 April 2018, the insurer’s lawyers informed the Worker’s lawyers
that NT WorkSafe had advised the second report was not sufficient and the Worker
would have to be reassessed by Dr De Leacy and a third report assessing the
Worker’s percentage permanent impairment of the whole person would need to be
provided. The insurer’s lawyers did not communicate further after receipt of Mr
Anstess’s email of 8 May 2018.
The Worker’s lawyers did not seek any third report from Dr De Leacy. Rather, they
commenced enforcement proceedings against the Employer by initiating
Application filed on 17 April 2018. They did not first seek a mediation of the
dispute with the Employer or its insurer.
19. The initiating Application stated on its face that the Worker sought “Enforcement of
entitlement to compensation pursuant to section 72A of the Return to Work Act”.
This initiating Application was made inter partes rather than ex parte, and was accompanied by the affidavit of lawyer Elizabeth Utting made 18 April 2018. Ms
Utting is employed by the Worker’s lawyers.
The Worker’s lawyers then filed an interlocutory application on 30 April 2018
seeking section 109 interest on the lump sum sought by the Worker for his
percentage permanent impairment of the whole person. This interlocutory
application was not accompanied by any affidavit.
21. The Worker next by letter dated 10 May 2018 wrote to the Work Health Court
enclosing copies of the first and second reports and filing written submissions dated
9 May 2018 by Mr Matthew Littlejohn of counsel.
22. The Employer filed an affidavit of lawyer Ms Jordan Wunsch made 9 May 2018
under cover of a letter dated 11 May 2018 from Minter Ellison, the lawyers for the
Employer and insurer. That letter stated that the Employer opposed the Worker’s
request for a certificate to be issued pursuant to section 72A of the Act. The
Employer filed its Appearance in the proceeding only on 22 May 2018.
23. The matter became further procedurally complicated when the Worker filed a
second initiating Application against the Employer, this time dated 11 May 2018.
This Application set out detailed orders sought by the Worker in relation to the
history of the Worker’s assessment for a percentage permanent impairment of the
whole person. The proceeding commenced by this second initiating Application was
given the claim number 21821873 (“the second proceeding”).
24. In the second proceeding the Worker filed an Index of Documents and also an
interlocutory application which was set out almost in the form of pleadings, or
perhaps written submissions, but which in essence was seeking to join the Work
Health Authority as a Second Respondent to the second proceeding.
25. The Worker then filed an affidavit of lawyer Elizabeth Utting made 15 May 2018,
in the second proceeding.
26. The Employer on 23 May 2018 in the second proceeding filed its Appearance and
its Index of Documents.
The Worker’s interlocutory application in the second proceeding seeking to join the
Work Health Authority as a Second Respondent was listed before me on 24 May
2018. On that date I made the following Orders:
a. the Worker within seven (7) days file and serve on the Employer and on the Work Health Authority written submissions as to:
i. the power of the Work Health Court to join the Work Health Authority
as a party to this proceeding; and
ii. whether the Work Health Authority should be joined.
b. The Employer within fourteen (14) days file and serve any written submissions it wants to make on the same issues.
c. The Work Health Authority within fourteen (14) days file and serve its written submissions on the same issues.
d. Adjourned before Judge Neill for any further submissions and Decision and Directions, on Wednesday 13 June 2018 at 9:00am.
28. On 13 June 2018 the parties appeared before me and made further oral submissions
in addition to their written submissions. I reserved my Decision as to the
jurisdiction of the Work Health Court to join the Work Health Authority, and if any
such power existed, whether I should exercise my discretion to do so, until 23 July
2018 at 9:00am. I consolidated both proceedings which were now to proceed as
Claim Number 21817717. I adjourned further Directions in the consolidated
proceeding also to 23 July 2018 at 9:00am.
29. I set out below my Decision and Orders in relation to the joinder of the Work
Health Authority. I also set out below my observations as to the procedure required
in commencing proceedings and raising the sorts of questions raised in this
consolidated proceeding.
C – Joinder of the Work Health Authority
30. In Taylor Enterprises v Pointon & Work Health Authority [2009] NTMC 029
(“Pointon”) Magistrate Dr John Lowndes (as he then was) considered whether the
Work Health Court has jurisdiction to rule on the validity of the administrative
process commenced by a worker provided for in Subdivision C of Part 5 pursuant to
Sections 71 and 72 of the Act. He concluded that the Work Health Court does have
such jurisdiction – see paragraphs 42 and 43 of that Decision.
31. Dr Lowndes did not however consider whether the Work Health Authority was
properly a party to the proceeding before him, or could be made a party to that
proceeding. The proceeding was commenced with the Work Health Authority
already included as a party and it does not appear from the Reasons for Decision in
Pointon that the question was argued or even raised.
32. It is trite law that the Act and the Work Health Administration Act together establish
a complete code in respect of the jurisdiction of the Work Health Court. The Court
has no inherent jurisdiction, although it does of course have an implied jurisdiction
– see Consolidated Press Holdings Limited v Wheeler (1992) 84 NTR 42 per
Mildren J at paragraph 13.
33. The Act in three places specifically provides for the involvement of a party other
than the worker and the employer. These are first, subsection 55(3) which allows a
current employer to apply to join a previous employer where the injury is a disease
and the disease may have been contracted in a previous employment.
34. Second, pursuant to subsection 126A(2)(b)(ii) a current insurer may commence
proceedings against a previous insurer of the same employer, or apply to join it in
an existing proceeding between the Worker and Employer, where the current
insurer believes the injury may have arisen during the period when the previous
insurer covered the employer.
35. Third, pursuant to section 167 a Worker may make a claim against the Nominal
Insurer in the circumstances prescribed in that section. That can involve commencing proceedings against the Nominal Insurer only; or in proceedings
already commenced against an Employer that can involve proceeding as if the
Nominal Insurer were the named employer; or by substituting the Nominal Insurer
for the named Employer; or by joining the Nominal Insurer as a party in addition to
the Employer. The precise procedure is not prescribed but whichever method is
adopted, the Nominal Insurer can become a party to the proceeding.
36. There are no other specific provisions in the Act or in the Work Health
Administration Act for the addition or involvement of any other category of party in
a proceeding.
37. The Work Health Administration Act establishes the Work Health Authority and
sets out its functions, specifically including in subsection 5(1)(h) “the functions
conferred on it under the Return to Work Act”.
38. Section 6 of the Return to Work Act identifies the Work Health Authority’s
functions and powers under the Act. I am satisfied that these are limited to an
overview of the operation of the Act and to administrative functions involving the
Act. Specifically, I am satisfied and I rule that the Work Health Authority has no
function and no role to play under Part 5 of the Act, which relates to payment of
compensation, other than as specified in section 72 of the Act.
39. The Work Health Court Rules (“the Rules”) in Rule 4.04(e) prescribe the manner of
service of a document on the Work Health Authority. This is relevant for the
purposes of the functions of the Work Health Authority set out in section 72 of the
Act, and also in the case of any application by or involving the Work Health
Authority under section 111 in Division 3 of Part 6A of the Act.
40. The Rules otherwise go on in Rule 11 to provide for the joinder of a party. The
Rules specifically identify joinders of a prior employer, and of a previous insurer,
and then go on in subrule 11.01(1)(c) to provide for a third category, namely “a
party proposing to join another person as a party”. Counsel for the Worker
submitted that this subrule provides sufficient general jurisdiction for the joinder of
the Work Health Authority as a party. I do not accept this submission in respect of Part 5 of the Act, although it might be correct in respect of an application pursuant
to section 111 in Division 3 of Part 6A of the Act.
41. Rules of Court cannot and do not create powers and jurisdiction beyond that
established by the Act or Acts under which the Rules are made. If there is no
jurisdiction in the Act or in the Work Health Administration Act sufficient to permit
joining the Work Health Authority as a party in respect of Part 5 of the Act, then
such jurisdiction cannot be created by the Rules – “the stream cannot rise higher
than the source whence it flows” – Mays v Rose et al. Superior Court of Chancery
(1844) 703 at 716.6.
42. The Work Health Authority has no exposure in any process under Subdivision C of
Part 5 of the Act. It does not pay for any initial assessment. It does not pay for the
costs involved in a review by three medical specialists – those expenses are spread
among all the insurers operating in the Northern Territory Work Health system.
43. I am satisfied and I rule that the Work Health Court does not have jurisdiction either
to entertain an initiating Application against the Work Health Authority or to join
the Work Health Authority as a party to existing proceedings where the issue comes
under Part 5 of the Act, including in sections 70 to 72A inclusive in Subdivision C
of Part 5 of the Act.
44. The Work Health Court might have such jurisdiction in respect of an application
under section 111 in Division 3 of Part 6A of the Act, however I am not required to
rule on that.
D – Procedural Issues Generally
45. The Worker in this matter wished to take advantage of subsection 72A(2) of the Act
which requires the registrar of the Work Health Court to issue a certificate
certifying the amount of the compensation payable by way of a percentage
permanent impairment of the whole person. The registrar is required to do this “on
application by or on behalf of the worker or his or her employer”. The form of any
such application is not specified in the subsection or elsewhere in the Act.
The Act refers to “apply” or “application” in a number of places – these include the
three places already identified in relation to joinder, and also in subsection 104(2)
and in section 111 of the Act. Once again, the Act is silent on the precise form of
any such application.
47. The Rules fill this gap. Part 5 of the Rules provides for the manner of any initiating
Application to the Work Health Court. That initiating Application is not intended to
be used as a pleading. It is not intended to set out the orders the filing party is
seeking. It is intended solely to institute a proceeding before the Court within which
orders might be sought and/or pleadings might be filed. The prescribed initiating
Application form requires the filing party merely to specify the section or sections
of the Act to which the initiating Application relates – see subrule 5.02(1)(a).
48. Any more detailed application if required should be made by way of interlocutory
application filed concurrently with, or shortly after, the initiating Application.
Interlocutory applications are provided for specifically in Part 6 of the Rules.
49. In the present case, the Worker was required to file an initiating Application
specifying subsection 72A(2) of the Act as the section to which the initiating
Application related. He should concurrently have filed an interlocutory application
seeking the order that the registrar issue the required certificate. There should have
been an accompanying affidavit establishing:
a. that there was an accepted Work Health Claim; b. that a permanent impairment assessment has been carried out by a medical practitioner in respect of the accepted injury, and not in respect of any
additional or different injury, and annexing copies of the original claim and
acceptance documents as evidence of the ambit of the accepted injury;
c. the calculation of the amount of compensation payable in accordance with that assessment; and
d. annexing a copy of the assessment. 50. This initiating Application and interlocutory application in ordinary circumstances
would be made ex parte, because other than the bare fact of non-payment there
would be no dispute between the Worker and the Employer concerning the
assessment. For the same reason, there would be no need first to seek a mediation
under Part 6A of the Act.
51. In the present matter it would not have been appropriate, or useful, to proceed ex
parte. This is because the Worker was on notice of a dispute between him and the
Employer concerning the assessment. If the Worker had proceeded ex parte in the
suggested manner and if a certificate had been issued and subsequently been
registered with the Local Court in accordance with subsection 72A(3) of the Act
then the Employer upon becoming aware of this could have sought a stay – see
paragraph 31 in Pointon.
52. In this matter, because of the existence of this dispute there should have been a
mediation between the parties before any proceedings were commenced – see
subsections 103B(c) and 103J(1) of the Act.
THE OUTCOME
53. On 23 July 2018 I made the following Orders:
a. A ruling that the Work Health Court does not have jurisdiction to join the Work Health Authority as a party to a proceeding which relates to Part 5 of the
Return to Work Act.
b. The Worker’s interlocutory application dated 11 May 2018 is dismissed. c. The question of the jurisdiction of the Work Health Court in respect of Part 5 of the Act is adjourned before Judge Neill for oral submissions on 20 August
2018 at 2:00pm.
d. The Employer is to file and serve any application for any extension of time and written submissions in support of that by close of business 13 August
2018.
e. The Worker pay the costs of NT WorkSafe occasioned by the application to join it in the proceedings, fixed at the lump sum in the Supreme Court scale
for a contested interlocutory application and certified fit for senior/junior
counsel fixed at the approved rate for such counsel for one day’s work.
f. The costs of the Worker and the Employer to date are to be costs in the cause, certified fit for counsel.
54. The parties resolved the remaining issues between them shortly before 20 August
2018 and a Notice of Discontinuance was filed on 17 August 2018. Accordingly I
am no longer required further to consider or rule upon the questions of: i) whether
the second report cured the defect in the first report and the two reports together
constituted a valid assessment; ii) whether the requests by the insurer/Employer to
NT WorkSafe complied with the time requirements of Subdivision C of Part 5 of
the Act; and iii) if not, whether an extension of time can be granted in respect of the
times prescribed in Subdivision C of Part 5 of the Act, and if so, whether it should
be granted in this matter.
Dated this 20th day of September 2018
JUDGE JOHN NEILL
MANAGING JUDGE WORK HEALTH COURT
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