Klimovska v George Weston Foods Limited

Judgment ex tempore 1By summons the plaintiff, Mrs Lubica Klimovska, seeks leave under s 151D of the Workers Compensation Act 1987 ("the Act") to commence proceedings outside the limitation period provided by that section. Although the summons does not say so I have proceeded on the assumption that the plaintiff seeks leave to commence within 14 days of today's date. 2The evidence in the application consisted of three affidavits, one by the plaintiff, one by the plaintiff's solicitor and one by the defendant's solicitor. There were no objections to those affidavits and no cross-examination. 3The affidavit of the plaintiff's solicitor included a chronology, which was not in dispute. It sets out the relevant history of the matter as follows: "CHRONOLOGY 26/9/2007 Sustained injury in a fall at work. Reported to employer and completed claim form. Transported via ambulance to Dr Antoun in Chullora then referred to Bankstown Hospital, underwent x-ray right shoulder and right hip. 10/10/2007 MRI scan right shoulder 29/10/2007 MRI right knee 13/11/2007 Right shoulder arthroscopy 12/12/2007 Cortisone injection to right shoulder and right knee 20/06/2008 Arthroscopy performed by Dr Rahme 27/06/2008 Ultrasonic scan right calf 29/08/2008 Right hip ultrasound 24/10/2008 Acromioplasty, extension of degenerative spurs and a subacromial bursectomy performed by Dr Rahme at Sydney Private Hospital 3/04/2009 Instructed C & M Lawyers 22/04/2009 CT scan cervical spine, CT brain scan 12/05/2009 Injection of the acromio-clavicular joint performed by Dr Dugal 11/07/2009 C & M Lawyers serve s281 and s282 notices on Moray &. Agnew Lawyers (for WCC claim & WID claim) 22/07/2009 C & M Lawyers serve s66/67 lumps sum claims on Moray & Agnew Lawyers 24/07/2009 CT guided injection into right hip performed by Dr Dugai 4/08/2009 Employment with George Weston Foods t/as Tip Top terminated 07/08/2009 Right sided trochanteric bursal cortisone injection to right hip performed by Dr Dugal 09/10/2009 MRI right hip 19/10/2009 Counter s66/67 offer by Moray & Agnew Lawyers served on C & M Lawyers relying on report of Dr Millons who determines 17% WPI 22/10/2009 Further counter offer from C&M Lawyers served on Moray & Agnew Lawyers 05/11/2009 Moray & Agnew serve counter offer enclosing Complying Agreement for execution 12/11/2009 s66/67 Complying Agreement executed and sent to Moray & Agnew Lawyers 07/01/2010 CT scan right hip, Xray right hip 02/02/2010 CT guided hip injection 01/03/2010 MRl right shoulder 24/03/2010 Underwent total hip replacement performed by Dr Nabavi at Campbelltown Hospital, hospitalised for 3 weeks 31/03/2010 Post operative x-ray of right hip 09/06/2010 Attends on specialist Dr Jerome Goldberg, orthopaedic surgeon. Has also attended on specialists Dr Dave, Dr Rahme, Dr Ireland and Dr Nabavi. Remains in the care of Dr Kafiris 28/09/2010 3 years since date of accident 03/12/2010 Plaintiff sees Dr Ellis for further WPI assessment 24/01/2011 C & M Lawyers serve report of Dr Max Ellis dated 8 December 2010 together with Amended Section 281 & Section 282 notice (for WCC & WID claims). Dr Ellis determines 45% WPI. Further claim made for s 66/67. 08/02/2011 Letter from Allianz to Dr Ellis requesting further details 24/02/2011 Letter from C&M Lawyers to Allianz enclosing Dr Ellis supplementary report 22/03/2011 Moray & Agnew Lawyers deny liability for injuries and deny liability relating to work injury damages claim 19/04/2011 Moray & Agnew Lawyers serve report of Dr Bosanquet dated 24/3/2011 determining 29% WPI and make counter s66/67 offer 03/06/2011 Plaintiff instructs JDM of Paramount Lawyers 03/06/2011 Paramount Lawyers write to C & M Lawyers requesting file transfer 09/06/2011 Jason Di Michiel telephones Robert McKenna, solicitor from Moray & Agnew to advise of change in solicitor 15/06/2011 Paramount Lawyers write to Moray & Agnew confirming change of solicitors 15/06/2011 C&M respond to Paramount request via email confirming file transfer is forthcoming 20/06/2011 Paramount Lawyers send further follow up email correspondence requesting file transfer from C & M Lawyers 21/06/2011 Paramount Lawyers formalise settlement of claim for further lump sum compensation serving executed s66A Complying Agreement dated 21/6/2011 on Moray & Agnew Lawyers. Agreement is for 29% WPI as per the opinion of Dr Bosanquet 12/07/2011 C & M Lawyers send file to Paramount Lawyers 20/07/2011 Client admitted to hospital due to breathing difficulties 29/09/2011 Paramount Lawyers arrange further medico-legal assessment for January 2012 06/10/2011 Paramount Lawyers write to employer confirming workers compensation claim now finalised and work injury damages claim to follow, in addition to requesting comparable earnings. Further letters together with signed authorities sent to Centrelink, WorkCover NSW & ATO including GIPA application 06/10/2011 Paramount Lawyers serve s281/282 particulars on all parties 07/10/2011 Paramount Lawyers commission liability expert report 07/11/2011 Paramount Lawyers cancel January medico-legal appointment as Plaintiff advises she is scheduled to undergo further surgery in February 2012 11/01/2012 Paramount Lawyers chase up completion of expert report 18/01/2012 Paramount Lawyers serve pre-filing statement on all parties 15/02/2012 Moray & Agnew Lawyers deny liability and serve pre-filing defence 29/02/2012 Dr Nabavi performs hip arthroscopy and bursectomy of greater trochanter 05/03/2012 Paramount Lawyers file application for mediation of a work injury damages claim (x3), pre-filing documents, proposed SOC & SOP and all supporting documentation, to Workers Compensation Commission 07/03/2012 Workers Compensation Commission returns incomplete application for mediation due to use of out-dated form 16/03/2012 Paramount Lawyers re-lodge application for mediation in correct form 22/03/2012 Plaintiff instructs Paramount she requires further surgery, is receiving ongoing treatment, Plaintiff further instructs to hold off on completion of claim until further surgery and treatment is sought, requests are made for insurer to pay future surgery 02/04/2012 Attends orthopaedic surgeon Dr Matthew Lyons 13/04/2012 Paramount Lawyers serve expert liability report on Moray & Agnew Lawyers 30/05/2012 Plaintiff confirms surgery scheduled for 07/06/2012 07/06/2012 Plaintiff undergoes hip replacement surgery 26/06/2012 Application for mediation filed on workers compensation commission and served on all parties together with certificate of service 09/07/2012 Workers Compensation Commission rejects lodgement due to use of outdated form 10/07/2012 Application for mediation re-lodged in correct format as requested 13/07/2012 Paramount Lawyers re-serve sealed application for mediation on all parties 16/07/2012 Paramount Lawyers lodge certificate of service with Workers Compensation Commission 19/07/2012 Allianz write to Paramount Lawyers regarding issues with late payment of the Plaintiff's weekly payments 24/07/2012 Workers Compensation Commission write to Paramount Lawyers confirming notice of mediation conference 24/07/2012 Moray & Agnew file sealed response to the application for mediation of a work injury damages claim 31/07/2012 Mediation is listed for 06/09/2012, all parties informed 4/08/2012 Paramount Lawyers write to Moray & Agnew Lawyers requesting up to date list of all workers compensation payments 30/08/2012 Paramount Lawyers request list of payments from Allianz Insurance 06/09/2012 Mediation 03/10/2012 Further GIPA application on Workcover Authority of NSW 03/10/2012 Paramount Lawyers serve Summons and Plaintiff's affidavit on all parties 05/10/2012 Paramount Lawyers serve signed agreement to injury management plan on Allianz insurance 11/10/2012 Moray & Agnew Lawyers file District Court Appearance 26/10/2012 Moray & Agnew Lawyers serve unsealed affidavit of Robert McKenna"