Tasevski v Westpac Banking Corporation
[2022] NSWPIC 372
•11 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Tasevski v Westpac Banking Corporation [2022] NSWPIC 372 |
| APPLICANT: | Mirjana Tasevski |
| RESPONDENT: | Westpac Banking Corporation |
| SENIOR MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 11 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Applicant made claim for whole person impairment as a result of accepted psychological injury; respondent arranged for applicant to undergo forensic psychological testing, and the applicant refused; respondent asserted that the applicant was in breach of sections 71, 119 and 282 of the Workplace Injury and Workers Compensation Act 1998 (1998 Act); applicant sought orders that there had been no refusal to submit to examination by a “medical practitioner” and entitlement to recover compensation was not suspended; respondent withdrew the dispute and submitted the Application should be dismissed, as there was no longer a dispute before the Personal Injury Commission (Commission); applicant proposed various notations to orders, all of which were rejected by respondent; Held - respondent having withdrawn its reliance on sections 71, 119(1), 119(3) and 282 of the 1998 Act, there is no longer a dispute before the Commission, and the Application is therefore dismissed. |
| ORDERS MADE: | 1. That the respondent having withdrawn its reliance on ss 71, 119(1), 119(3) and 282 of the Workplace Injury Management and Workers Compensation Act 1998, there is no longer a dispute before the Commission, and the Miscellaneous Application is therefore dismissed. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Mirjana Tasevski (Ms Tasevski) was employed by the respondent, Westpac Banking Corporation (Westpac), as a customer service officer.
Ms Tasevski has sustained an accepted psychological injury as a result of various incidents during the course of her employment with Westpac.
The applicant has made a claim for whole person impairment (WPI) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The respondent, which is self-insured, arranged for the applicant to attend an independent medical examination by a psychiatrist, in order to assess her WPI. He recommended that she be referred for forensic psychological testing before an assessment of WPI was made.
The respondent arranged an appointment with a forensic psychologist, which the applicant refused to attend.
On 17 March 2022, Westpac issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Westpac asserted that, pursuant to ss 71, 119 and 282 of the 1998 Act, the applicant was not entitled to pursue her claim until she had submitted herself to the examination it had arranged. The notice also set out a great deal of irrelevant material, to which I do not intend to refer.
By letter dated 22 March 2022, the applicant’s solicitors requested a review of Westpac’s decision, referring it to decisions of both the Workers Compensation Commission and the Personal Injury Commission (the Commission).
On 12 April 2022, Westpac advised that it had reviewed its decision, which it maintained. It repeated its previous assertions and made no attempt to engage with the submissions made by the applicant. This notice was issued pursuant to s 287A of the 1998 Act.
The applicant lodged a Miscellaneous Application (the Application) on 27 April 2022. She sought orders that there had been no refusal to submit herself for examination by a “medical practitioner”, pursuant to s 119(1) of the 1998 Act; and any entitlement to recover compensation was not suspended pursuant to s 119(3) of the Act.
The respondent lodged its Reply on 19 May 2022.
ISSUES FOR DETERMINATION
The issue to be determined was whether the applicant was entitled to the orders sought in the Application.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for telephone conference on 26 May 2022. Mr Horan of counsel, instructed by Ms Woollacott, appeared for the applicant; and Mr Cooper, instructed by Ms Anota of Westpac, appeared for the respondent. The applicant was present.
The respondent’s attention was again drawn to the decisions of the Workers Compensation Commission and the Commission, with which it had failed to engage in the review of its decision. It maintained its position.
The parties agreed that the dispute could be determined “on the papers”. Mr Horan relied on the submissions included in the Application, subject to a right of reply to the respondent’s submissions. A direction was made for written submissions to be filed and served.
On 16 June 2022, the respondent lodged its submissions.
The respondent withdrew the s 287A notice issued on 12 April 2022, to the extent that it no longer disputed [sic] that the applicant was in breach of, or had failed to comply with, ss 71, 119(1), 119(3) and 282 of the 1998 Act.
The respondent submitted that the balance of the s 287A notice “remains” and is not the subject of a dispute in these proceedings. It therefore asserted there was no dispute before the Commission that required determination, and the proceedings should therefore be dismissed.
Then followed a series of emails between the parties, copied to the Commission. The parties found themselves unable to agree on the orders to be made.
On 24 June 2022, the applicant’s solicitors advised that, as the respondent had withdrawn its objections to the Application, there was no longer a dispute before the Commission. It agreed that the proceedings should be dismissed.
The applicant sought a notation that “On 16 June 2022 the respondent withdrew its objections pursuant to the s 287A notice dated 12 April 2022 to the extent that it is no longer in dispute that the applicant is in breach of, or has failed to comply with, ss 71, 119(1), 119(3) and 282 of the 1998 Act”.
On 27 June 2022, as no response to the above email had been received from the respondent’s solicitors, I caused an email to be sent to both parties. I advised that, absent any objection by the respondent by 30 June 2022, I proposed to make the orders and notations sought by the applicant.
On 30 June 2022, the respondent’s solicitors sent an email stating that the only order that should be made was in respect of the dismissal of the proceedings, as, absent a dispute, there was no jurisdiction.
On 1 July 2022, the applicant’s solicitors sent an email agreeing to amend the notation to read: “The Commission notes that on 16 June 2022 the respondent withdrew its contention that the worker was in breach of ss 71, 119(1), 119(3) and 282 of the 1998 Act”.
As this email was sent after close of business on a Friday afternoon, and it was unclear whether the respondent consented to the amended notation, I caused an email to be sent to the respondent’s solicitors on 4 July 2022, requesting that they advise the respondent’s position in respect of the applicant’s proposal.
On 6 July 2022, the respondent advised that it maintained the position that the only appropriate order was that the proceedings be dismissed. As it did not appear that the applicant’s solicitors were copied into this email, I caused it to be forwarded to them on 7 July 2022.
On 8 July 2022, the applicant’s solicitors emailed that the parties could not agree orders/notations and “look forward to receiving the Member’s Certificate of Determination”.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attachments, and
(b) Reply and attachments.
FINDINGS AND REASONS
In view of the respondent having withdrawn its assertion that the applicant is in breach of ss 71, 119(1), 119(3) and 282 of the 1998 Act, it is not necessary that I discuss either the evidence or the case law.
The parties agree that that there is no longer a dispute before the Commission, and the proceedings should be dismissed.
The orders are set out in the Certificate of Determination.
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