The Late Wineera v Tony Isgroves Painting and Decorating Pty Limited
[2022] NSWPIC 728
•16 December 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | The Late Wineera v Tony Isgroves Painting and Decorating Pty Limited [2022] NSWPIC 728 |
| APPLICANT: | Edison Wineera |
| RESPONDENT: | Tony Isgrove’s Painting and Decorating Pty Limited |
| PRINCIPAL Member: | Glenn Capel |
DATE OF DECISION: | 16 December 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Applicant died before assessment by a Medical Assessor (MA); MA assessed whole person impairment on the papers; Administrator of the applicant’s estate not appointed after almost two years; Held – matter cannot be finalised until Administrator appointed and substituted for the applicant; no indication when this might happen; delay inconsistent with statutory obligations under sections 42 and 43 of the Personal Injury Commission Act 2020; applicant failed to prosecute his claim; proceedings dismissed for want of due despatch. |
| determinations made | 1. The matter cannot be finalised following the death of the applicant. |
| orders made: | 2. Proceedings dismissed for failing to prosecute the claim with due dispatch. 3. Liberty to restore the matter once an Administrator of the Estate is appointed. |
STATEMENT OF REASONS
BACKGROUND
Edison Wineera (the applicant) was employed by Tony Isgrove’s Painting and Decorating Pty Ltd (the respondent) as a painter.
There is no dispute that the applicant sustained an injury to his back during the course of his employment on 25 September 2017.
Liability was accepted by Employers Mutual Ltd (the insurer) and it made some payments of weekly compensation and medical expenses have been paid.
On 6 August 2020, the applicant’s solicitor served a claim for lump sum compensation on the insurer in respect of 12% whole person impairment of the lumbar spine in accordance with a report of Dr Tong dated 3 August 2020.
On 30 September 2020, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act), disputing that it was liable for lump sum compensation because its qualified specialist, Dr Bak, assessed 7% whole person impairment, which was under the threshold in s 66(1) of the Workers Compensation Act 1987 (the 1987 Act).
By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission (the Commission) on 18 February 2021, the applicant claims lump sum compensation pursuant to s 60 of the 1987 Act as a result of injury sustained to his lower back on 25 September 2017.
PROCEDURE BEFORE THE COMMISSION
The applicant’s claim was remitted directly to a Medical Assessor, Dr Assem, who was scheduled to examine the applicant on 19 April 2021.
On 19 March 2021, the Commission was advised that the applicant had passed away. Accordingly, Medical Assessor Assem assessed the claim on the papers. He issued a Medical Assessment Certificate on 19 April 2019 in respect of 11% whole person impairment of the lumbar spine.
On 28 May 2021, the Commission sent an email to the applicant’s solicitor, enquiring as to whether an Administrator or Executor of the Estate had been appointed.
On 18 June 2021, the applicant’s solicitor advised that the appointment of an Administrator could take a number of months. Emails were received about delays in the appointment of an Administrator, in response to the Commission’s enquiries, on 26 August 2021, 8 December 2021, 27 April 2022, 2 November 2022 and 16 December 2022.
Following the last email, the respondent’s solicitor requested that the proceedings be discontinued.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application and attached documents;
(b) Reply and attached documents, and
(c) Medical Assessment Certificate dated 19 April 2021.
FINDINGS AND REASONS
President Keating issued e-Bulletin No 56 in November 2013 that included the following:
“Unprepared Matters
Over recent months, the Commission has noted an increased number of matters that are not ready to proceed at the teleconference. Where an application has been commenced without adequate supporting evidence, the current time delays to teleconference provide ample opportunity for an applicant to obtain such evidence. Parties are advised that a matter not adequately prepared at teleconference, where no attempts have been made to prepare since filing, may be dismissed for want of due despatch (Rule 15.8, Workers Compensation Commission Rules 2011).”
What I need to consider is whether the current proceedings should remain on foot to allow the appointment of an Administrator or whether the proceedings should be struck out or dismissed for want of due dispatch.
Section 54 of the Personal Injury Act 2020 (the PIC Act) deals with the dismissal of proceedings. It provides:
“54 Dismissal of proceedings
The Commission may at any stage dismiss proceedings before it—
(a)if it is satisfied that the proceedings have been abandoned, or
(b)if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.”
Rule 15.8 of the Workers Compensation Commission Rules 2011 referred to by President Keating above has been replaced by Rule 77 of Personal Injury Commission Rules 2021 (the 2021 Rules). It provides:
“77 Dismissal of proceedings
The following grounds are specified for section 54(c) of the PIC Act—
(a) for proceedings by an application made under the workers compensation legislation—the applicant has failed to prosecute the proceedings with due despatch…”
Rule 9 of the 2021 Rules deals with procedural orders that can be made by members of the Commission. It provides:
“9 Procedural orders by non-presidential members and merit reviewers
A non-presidential member or merit reviewer to whom applicable proceedings are referred may make any order relating to the procedure to be followed in the proceedings, including an order striking out the proceedings or any step in the proceedings, that could be made by the President.”
Section 42 of the PIC Act refers to the guiding principle that applies to practice and procedure in the Commission. It provides:
“42 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
(2) The Commission must seek to give effect to the guiding principle when it—
(a) exercises any power given to it by this Act or the Commission rules, or
(b) interprets any provision of this Act or the Commission rules.”
Clearly, as the applicant has died, he has no legal standing, and the Administrator of his estate must be substituted in these proceedings.
It is now a little under two years since the applicant’s death, and in my opinion, there is little prospect of the matter being advanced within a reasonable time in accordance with the Commission’s statutory obligations. There is still no word as to when an Administrator might be appointed. Any further delay would be prejudicial to the respondent and it will incur unnecessary costs for the respondent and the Commission.
There is nothing to prevent the Administrator, once he or she is appointed, from seeking to have these proceedings restored. Once they are restored, the Administrator can be substituted for the applicant, and a Certificate of Determination can be issued in accordance with the Medical Assessment Certificate.
In order to achieve this, I need to dismiss these proceedings for want of due despatch, which is a prerequisite for dismissing or striking out any proceedings in accordance with the principles in Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited[1].
[1] [2004] NSWWCCPD 83.
It is the objective of the Commission to provide a timely, fair and cost-effective system for the resolution of disputes. Section 43 (3) of the PIC Act provides that the Commission is to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”.
In the circumstances, I am satisfied that these proceedings should be dismissed because the applicant has failed to prosecute his claim with due dispatch. I propose to make such orders.
FINDINGS
The matter cannot be finalised following the death of the applicant.
ORDERS
Proceedings dismissed for failing to prosecute the claim with due dispatch.
Liberty to restore the matter once an Administrator of the Estate is appointed.
0
1
0