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The Commission emphasises the NO in un-NOtified disputes

Gandhi v Coles Supermarkets Australia Pty Ltd [2022] NSWPIC 475
Member: Glenn Capel
Date of decision: 29 August 2022

BACKGROUND

The Applicant (Gandhi) was employed as a night filler with the Respondent (Coles Supermarkets Australia Pty Ltd). On 22 August 2018 (deemed) he sustained a back injury during the course of his employment, and liability for the injury was accepted. Thus, the Applicant proceeded to make a claim for lump sum compensation in respect of a lumbar spine and digestive tract injury that had resulted in 29% WPI.

In response to this claim, the Respondent made an offer in respect of a 13% WPI solely on the lumbar spine, in accordance with the reports of Dr Phil Truskett and Dr Richard Powell. The offer did not contain any mention of the digestive tract injury, nor was a s78 notice issued for the same.

Nevertheless, there was no response to this offer.

Rather, on 20 May 2022 the Applicant filed an Application to Resolve Despite (ARD) for his accepted lumbar spine injury, and consequential digestive system injury.

A late Reply was filed by the Respondent on 21 June 2022. Within the Reply, the Respondent’s solicitors conceded that the insurer had failed to determine the claim, specifically for the alleged consequential digestive system injury. Thus, leave would be sought to dispute liability of the same.

At the preliminary conference, the Member noted that the only matter in dispute was whether the Applicant had developed a consequential condition in his upper digestive tract. The parties could not come to an agreement at the preliminary conference, and thus the matter proceeded to an arbitration conciliation.

ISSUES:

The main issue in dispute was whether the Respondent should be granted leave to raise an un-notified matter, specifically to dispute liability for the alleged consequential upper digestive tract injury.

DECISION

When considering if the Respondent should be granted leave to raise the issue of liability for the consequential upper digestive tract injury, one must look at s289A (4) of the Workplace Injury Management and Workers Compensation Act, 1998 Act (the 1998 Act), which states that an unnotified matter may be heard by the Commission if it is in the interests of justice to do so.

Member Glen Capel noted that the principles contained within the case of Mateus[1] is used to interpret this section. Mateus places emphasis on considering the degree of difficult/complexity that an unnotified injury will cause.

In doing this, the Member noted the following:

  • The commission regularly hears matters concerning consequential injuries and given that there is only one body part in dispute, it is arguably not a complex matter.
  • However, the Respondent had at no point in the preliminary conference provided reasons as to why they had failed to issue a dispute at any stage. The Member was therefore not convinced that the insurer had properly considered the factual and legal issues, which is one of the criterions in Mateus.
  • He did not accept that the mere service of Dr Truskett’s report, in which the doctor opined that the digestive tract injury was not consequential, and was rather a non-work-related injury, placed the Applicant on notice of the dispute.
  • The Member was not convinced that the Insurer had acted promptly, as required by Mateus. The issue of liability had only been raised in the Reply, when it should have been raised when the report of Dr Truskett was received. As no explanation was provided for the delay in raising the issue of liability, the Member considered the delay unreasonable.
  • Prejudice is a crucial question. In circumstances where there was no dispute notice, medical expenses were being paid, the Applicant only became aware of the dispute a couple of days before the preliminary conference due to the late Reply, and the digestive tract only makes up 3% of the WPI, the Member found that the Applicant had been prejudiced. He also placed emphasis on the Applicant’s past experiences, being that he had previously received s78 notices when a body part was in dispute, and thus would have been expecting the same in this matter.
  • The issues being raised must have substance or merit, which involves careful assessment of the probative value of the evidence. The Member was not convinced of the same.

Therefore, the Respondent’s Application for leave to dispute liability for the consequential injury was declined.

 LESSONS FOR INSURERS AND EMPLOYERS

  • Mateus is still good law. Thus, the principles contained within continue to be relevant in assessing if an unnotified matter should be heard by the Commission.
  • The mere service of a report where a doctor opines that an injury is not work-related, does not constitute notice of a dispute. Nor can it be assumed that an Applicant is now aware that liability is in dispute by the service of such report.
  • Notice of a dispute should be raised as soon as possible, and one should not await to raise such issues in a Reply or Preliminary Conference.
  • If leave to dispute an un-notified matter is sought, extensive reasoning as for the failure to previously notify should be provided immediately.

[1] [2007] NSWWCCPD 227.

Contributor: Melissa Cuadros Lu

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.