Taylor-Johnson v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Taylor-Johnson v State of New South Wales (NSW Police Force) [2024] NSWPIC 138
APPLICANT:	Debbie Taylor-Johnson
RESPONDENT:	State of New South Wales (NSW Police Force)
PRINCIPAL MEMBER:	Glenn Capel
DATE OF DECISION:	21 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; applicant an exempt worker; claim for weekly payments, medical expenses and lump sum compensation in respect of a psychological injury; employer did not dispute injury but relied on section 11A; minimal relevant medical evidence relied upon by the parties; dispute resolved at a conciliation conference; weekly claim withdrawn; voluntary payment made for medical expenses; lump sum claim remitted for referral to a Medical Assessor, who provided an assessment below the threshold; applicant sought a 30% uplift for complexity in accordance with Table 4 of part 2 of schedule 6 of the Workers Compensation Regulation 2016; Lake v Hunter Institute of Technology – NSW TAFE considered and discussed; Held – submissions not persuasive; nothing intricate in the matter about the facts or the law; matter no more complex than many of the matters that come before the Commission; employer ordered to pay the applicant’s costs, excluding counsel’s fees for drafting submissions; uplift of 5% certified for both parties.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent to pay the applicant’s costs, excluding any fees of counsel for drafting submissions in respect of the uplift for complexity, as agreed or assessed. 2. I certify a 5% uplift for both parties pursuant to Schedule 6 Part 2 Table 4 Item 4 of the Workers Compensation Regulation 2016 due to the issues arising from this claim.

STATEMENT OF REASONS

BACKGROUND

Debbie Taylor-Johnson (the applicant) filed an Application to Resolve a Dispute (the Application) in the Personal Injury Commission (Commission) on 21 August 2023. She claimed weekly compensation from 21 May 2019 on the basis or having no current or some work capacity, past medical expenses and lump sum compensation due to a psychological injury sustained on 21 May 2019 (deemed).
The matter was listed for a preliminary conference before Member Burge on
18 September 2023. In his preliminary outcome Direction, he noted that the respondent relied on s 11A of the Workers Compensation Act 1987 (the 1987 Act). It would seem that there were no settlement negotiations and the Member listed the matter for a conciliation conference and arbitration hearing via MS Teams on14 November 2023.
During the conciliation conference on 14 November 2023, the parties resolved the liability dispute. Certificate of Determination – Consent Orders (COD) was issued as follows:
“By and with the consent of the parties, the Commission determines:
1.     The claim for weekly compensation is discontinued.
2.     The claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following:
Date of injury:  21 May 2019
Body system referred:                   psychological injury
Method of assessment:                 whole person impairment.
3.     The documents to be referred to the Medical Assessor to assist with their determination are to include the following:
a.Application to Resolve a Dispute, and
b.Reply.
4.     The Application to Admit Late Documents lodged by the respondent on 8 November 2023 IS NOT to be referred to the Medical Assessor.
5.     The balance of the Application to Resolve a Dispute is discontinued.

Notations
A. The respondent agrees to pay reasonably necessary past s 60 expenses up to $4,000 upon production of accounts, receipts and/ or Medicare Australia Notice of Charge.”

On 14 November 2023, the applicant’s solicitor, Mr Forshaw, sent an email directly to Member Burge. Corresponding directly with a Member via email is highly inappropriate. He advised the Member that the parties had failed to include an order for costs, and he requested that the COD dated 14 November 2023 be amended. He also asked for a 15% uplift for complexity. No action was taken by the Member.
The Medical Assessor, Dr Doris, provided a Medical Assessment Certificate (MAC) on
4 December 2023. He diagnosed a persistent adjustment disorder with mixed anxiety and depressed mood and assessed 7% whole person impairment.
On 17 January 2024, a post MAC COD, executed by me, was issued by the Commission as follows:
“The Commission determines:
1.     The applicant suffers 7% permanent impairment resulting from psychological injury deemed to have happened on 21 May 2019.
2.     The applicant has no entitlement to lump sum compensation resulting from psychological injury deemed to have happened on 21 May 2019.
Brief statement of reasons
3. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.
4.     The applicant did not reach the threshold for lump sum compensation, as
required by section 65A(3) of the Workers Compensation Act 1987.
5.     The proceedings were commenced after 2 April 2013 and therefore no order is
made as to costs.”

PROCEDURE BEFORE THE COMMISSION

On 15 February 2024, Mr Forshaw sent an email to the Commission and requested that the issue regarding a costs order be referred to the Member. The request was sent to me on
16 February 2024 and I directed that the parties file submissions by 28 February 2024.
Written submissions were filed by the applicant on 26 February 2024 and by the respondent on 5 March 2024.

ISSUE FOR DETERMINATION

There is no dispute that the respondent should pay the applicant’s costs in the proceedings because the applicant is an exempt worker and there was a resolution in the applicant’s favour regarding the claim for medical expenses.
The parties agree that the following issue remains in dispute:
(a) whether the applicant and/or the respondent are entitled to an uplift for complexity in respect of their costs, and if so, at what level.

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    Application with attached documents;
(b)    Reply with attached documents;
(c)    Direction dated 18 September 2023;
(d)    Application to Admit Late Documents received on 8 November 2023;
(e)    COD dated 14 November 2023;
(f)    MAC dated 4 December 2023;
(g)    COD dated 17 January 2024, and
(h)    emails dated 14 November 2023 and 15 February 2024.

SUBMISSIONS

Applicant’s submissions

The applicant’s counsel, Mr McEnaney, submits that the applicant seeks an uplift of 30% for the following reasons:
(a)    the application was in respect of claims under ss 4 [sic], 60, 66 and 67, namely the full sweep of potential entitlements arising from an injury;
(b) the claim concerned a psychological injury due to allegations of bullying, harassment and corruption. There was a considerable amount of lay witness material, and careful consideration of s 11A of the 1987 Act;
(c)    there were two lengthy dispute notices;
(d)    the applicant’s solicitor prepared an extensive statement, two separate letters of demand, a letter in response to a request for particulars, qualified an IME,
Dr Oldtree-Clark, who prepared two reports, and there was forensic consideration of the medical evidence, and
(e)    the applicant’s solicitor had to consider a Notice to Produce for financial records, advise the applicant on that Notice (relevance, scope, proper purpose) and then to assist her in complying with it.

Mr McEnaney submits that this is a clear instance of the most complex type of matter, and an uplift of 30% is appropriate. Any uplift should apply both parties.

Respondent’s submissions

The respondent’s solicitor. Ms Psirakis, submits that the applicant’s legal costs are not payable by the respondent in relation to the COD dated 17 January 2024, but costs are payable in relation to the COD dated 14 November 2023 because the matter resolved during the conciliation.
Ms Psirakis submits that a 30% uplift is a slightly excessive in the circumstances and an uplift of 0-15% may be more appropriate. Any uplift should applied equally to both parties.

REASONS

Item 4 of Table 4 of Pt 2 of Sch 6 of the Workers Compensation Regulation 2016 (the 2016 Regulation) permits an increase in the flat rate expressed in Table 1 in matters that involve some complexity.
Clause 11 of Pt 1 of Sch 6 of the 2016 Regulation sets an upper limit, and the maximum payable is determined within the range from nil to 30%, by reference to any applicable direction issued by the President or the Commission rules and a consideration of the nature and extent of the service performed.
The uplift does not apply to lump sum compensation quantum disputes, but the present matter involved a liability dispute regarding ss 4, 11A, 33, 59, 66 and 67, bringing it within Item E in Table 1 of Pt 1 of Sch 6 of the 2016 Regulation.
In Lake v Hunter Institute of Technology – NSW TAFE,[1] Registrar Parsons (as he was then known) observed that:
“‘Complexity’ is not defined in the workers compensation legislation, but in the
[1] [2010] NSWWCC 437, (Lake).
[2] Lake, [27].
context of proceedings in the Commission, the term indicates an intricacy of fact, law and legislation that is higher than that usually encountered in other proceedings for workers compensation disputes. Factors to be considered include preparation, skill, care, time, novelty and difficulty of a case in terms of legal, medical, factual, procedural, evidentiary and multiplicity of issues.”[2]
Employer’s Mutual Ltd (the insurer) issued a dispute notice on 16 August 2019. It did not dispute that the applicant had suffered a psychological injury. Rather, it alleged that the injury was wholly or predominantly caused by reasonable action with respect to transfer and the provision of employment benefits. It cited ss 11A, 33, 59 and 60 of the 1987 Act.
The insurer relied on a series of documents and certificates, so the dispute was largely factually based. There were only two medical reports in evidence from Drs Martin and Oldtree Clark that dealt with the liability dispute.
The dispute notice issued 11 May 2022 addressed the applicant’s lump sum claim and also included an injury dispute pursuant to s 4 of the 1987 Act, but his was presumably included because of the dispute in respect of s 11A of the 1987 Act.
The number of documents attached to the Application was not excessive. The clinical notes were dated. There were no statements obtained from work colleagues to corroborate the applicant’s evidence.
There were two letters of demand in identical terms, only addressed to different entities. There was also a brief letter in response to a request for particulars. These letters would have hardly required any great care or skill above a standard workers compensation matter.
It is true that the applicant provided a detailed statement, but there was already a detailed statement obtained by the investigator, so a brief supplementary statement might have sufficed that addressed the statements relied upon by the respondent.
The statement was only 10 pages in length, but much of the content is historical and is not relevant. It does not address in any great detail the matters that were in dispute in respect of s 11A of the 1987 Act..
It is true that the dispute notices were lengthy, but they merely summarised the contents of the statements obtained by the investigator. These notices mirror many of the dispute notices that are filed in the Commission. Further, there were only 152 pages in the Reply.
The applicant qualified Dr Oldtree Clark on one occasion in May 2021. He completed two reports because his lump sum assessment did not form part of the main report. Given that these proceedings were not filed until August 2023, one must query why a re-examination was not arranged in 2023.
The Application to Admit Late Documents attached various financial material. Such material should have been attached to the Application. No care and skill over and above that required in a standard matter would have been needed. The weekly claim was withdrawn for reasons unknown, so perhaps that aspect of the claim was not ready to be litigated.
Whilst I agree there was a degree of complexity, I do not accept that there was any intricacy of fact or law. The principles regarding disputes that concern s 11A of the 1987 Act are largely settled. It is more a case of applying the accepted principles and authorities to the facts of an individual case.
The matter proceeded through the Commission in the normal fashion following the filing of the Application. There was a preliminary conference and a conciliation conference when the parties reached agreement regarding the referral to the Medical Assessor and an agreement to pay medical expenses of up to $4,000. This often occurs in matters in the Commission and is not something out of the ordinary. It is fortunate that there was some form of resolution at the conciliation conference, otherwise the applicant would not have received any costs.
Mr McEnaney’s submissions shed little light as to what aspects of this claim made it more complex than other proceedings in the Commission. It is true that the applicant had suffered a psychological injury, but there were only two qualified specialists who engaged with the
s 11A dispute. The applicant’s treating doctors were not asked for their views.
Mr McEnaney did not explain what additional steps over and above the usual preparation of proceedings were undertaken by the applicant’s solicitor. Perhaps Mr Forshaw should have drafted the submissions and he would have been in a better position to explain what extra preparation, care, skill and time was required that made this matter more complex, or how it was more difficult regarding legal, medical, factual or evidentiary issues.
The nature of the dispute would not have required extensive factual and legal analysis over and above that required for the standard lump sum claim when the primary issue related to a defence in accordance with s 11A of the 1987 Act.
In Lake, Mr Lake’s solicitor sought an uplift for complexity. The claim had involved weekly payments, medical expenses and lump sum compensation.
At the telephone conference, the claim for weekly compensation was discontinued and the medical expenses claim was resolved. This is precisely what transpired in the present matter.
The lump sum claim was referred for assessment to an Approved Medical Specialist, and later proceed to a Medical Appeal Panel. The worker received lump sum compensation in respect of 4% whole person impairment.
Registrar Parsons declined to certify an uplift for complexity because he did not accept that the preparation of the case evidenced the care and skill to warrant an increase for complexity. He commented that better preparation, care and skill in settling the pleadings and the compensation claim may have avoided the difficulties that Mr Lake’s solicitor encountered and upon which he relied in support of the claim for an increase in party/party costs.
Having regard to all of the matters referred to above and in the absence of any compelling explanation as to why this matter was more complex than many of the matters that come before the Commission, I am not satisfied that a 30% uplift for complexity for both parties is warranted.
In the circumstances and in the exercise of my discretion, I certify an uplift of 5% for complexity for both parties.
Given that the issue to be determined by me was simple, in my view it was not necessary for Mr Forshaw to retain counsel to draft submissions regarding the uplift. The respondent should not have to bear this cost. Accordingly this will be reflected in the costs order.

[2024] NSWPIC 138

21 March 2024