The applicant maintains that she is entitled to seek a determination of the issues and have an award entered by the Commission in the terms set out in paragraph 15 above.
I have read the submissions by both parties. I have considered the decision of Deputy President Roche in Patricks Stevedores Holdings Pty Ltd v Fogarty2014 NSWWCCPD 76 (Fogarty). I have considered the fundamental proposition found in the Personal Injury Commission Act 2020 regarding the Commission's objects, functions and general principles.
Although the submissions made by the respondent deserve consideration, I am of the opinion that the decision of DP Roche in Fogarty clearly sets out the basis upon which the applicant is entitled to an award of compensation in the terms put forward in her submissions.
The procedural position in the present case is not dissimilar to the position in the matter of Fogarty. As set out in the background above, the respondent denied liability for the claim on 16 December 2024 and despite two further applications for review made by the applicant prior to the commencement of proceedings, the respondent maintained the denial of liability for the claim up until the conciliation phase of the hearing on 12 August 2025. I acknowledge that the dispute in relation to injury pursuant to s 4 of the 1987 Act was withdrawn at the preliminary conference on 17 June 2025 however the s 11A issue remained alive.
It is clear from the decision of Fogarty that the Commission has jurisdiction in respect of the issues that remained outstanding in respect of the s 11A defences of discipline and the provision of employment benefits, s 33 in respect of capacity and ss 59 and 60 in respect of medical expenses.
The Commission does not have inherent jurisdiction but only such powers that are incidental and necessary to the exercise of its statutory jurisdiction (Raniere Nominees Pty Ltd t/asHorizon Motor Lodge) v Daley[2006] NSWCA 235 (Raniere). However, under s 105 (1) of the 1998 Act, the Commission has "exclusive jurisdiction to examine, hear and determine all matters arising under the 1998 Act and the 1987 Act. That jurisdiction is not removed when one of the parties concedes that the matters previously disputed are no longer in dispute. If that were correct, the Commission would not have power to make consent orders after the parties have agreed to settle a claim" Fogarty at [59].
I accept the applicant's submission that despite the fact that during the conciliation phase of the hearing on 12 August 2025, the respondent withdrew the disputes pursuant to ss 4 and 11A of the 1987 Act, the Commission continues to have jurisdiction to determine the applicant's claims for weekly benefits of compensation and payment of medical expenses.
I acknowledge that the applicant has been deprived of her benefits under the workers compensation legislation for over seven months from 24 December 2024 until the morning of the hearing on 12 August 2025. I also recognise that the applicant seeks certainty and the security of an award issued by the Commission which will compel the respondent to comply with its statutory obligation as determined by the Commission.
I agree with the respondent's submission that proceedings are to be conducted with as little formality and technicality as the proper consideration of the matter permits however the respondent has had the opportunity to accept the applicant's claim for compensation since it denied liability in the s 78 notice dated 16 December 2024 and it has not done so. The applicant has applied on two occasions to have the decision reviewed prior to the commencement of proceedings. The respondent was given the opportunity to review the matter at the preliminary conference. On each occasion the respondent maintained the denial of liability and in the notice dated 13 February 2025, the respondent added a further defence to the claim pursuant to s 11A of the 1987 Act in respect of discipline and the provision of employment benefits.
"71 Determination of dispute in Commission proceedings by consent order
[3]
(1) If the parties to Commission proceedings about a dispute, or some of the parties, agree on the terms of an order to determine the dispute, the Commission may determine a dispute between the parties by making the order, provided the order is an order the Commission otherwise has power to make.
[4]
(2) Before the Commission may make the order, the parties may lodge a proposed order that is signed by each party or the party's legal representative or agent."
[5]
In the present matter, the parties have agreed on the terms of the order however the respondent agrees to the terms of the order being recorded as consent orders whereas the applicant seeks to have the orders recorded as an award.
I reject the respondent's submission that I do not have the power to make an award and I rely on the decision of Fogarty in support of my decision. I am satisfied that the applicant has provided convincing reasons as to why she asks for the agreed orders to be recorded as an award, and in the circumstances and in light of the decision in Fogarty, I am prepared to make the award sought.
In the circumstances, I accept the applicant's submissions and I make the following award in favour of the applicant:
[6]
"1. Award for the applicant pursuant to s 37 of the Workers Compensation Act 1987(the 1987 Act) at the maximum statutory rate, as indexed, from 27 December 2024 to date and continuing.
[7]
Award for the applicant pursuant to s 60 of the 1987 Act in respect of reasonably necessary treatment expenses relating to the psychological injury she is deemed to have received on 28 August 2024 subject to production of accounts, receipts and Medicare Notice of Charge."
Parties
Applicant/Plaintiff:
Bama
Respondent/Defendant:
The College of Nursing [2025] NSWPIC 441;
Legislation Cited (5)
Injury Management and Workers Compensation Act 1998
Injury Commission Act 2020
Compensation Act 1987
Workers Compensation Act 1987
Injury Commission Rules 2021
Cases Cited (2)
Bama v The College of Nursing [2025] NSWPIC 441; (28 August 2025)
At the outset I note that agreement has been reached between the parties that the claim for compensation, previously disputed by the respondent has now been accepted by the respondent. In the circumstances I do not find it necessary to summarize the evidence before me apart from the written submissions from both parties and the liability documents referred to in the Background that I have set out above. I have however considered the matter and I was in a position to provide the parties with a preliminary view based on the evidence before me during the conciliation phase of the hearing on 12 August 2025.
I further note that the respondent has accepted the applicant's claim in its entirety. That concession carried with it clear admissions that the worker had received a compensable injury in the course of or arising out of her employment and that she was incapacitated as alleged and that the medical expenses claimed were reasonably necessary as a result of her accepted injury. "The obligation to give reasons is related to and dependent upon the submissions presented to the judicial officer. There is no need to give reasons for accepting concessions by counsel or to give reasons rejecting submissions never put." Djuric v Kia Ceilings Pty Ltd[2011] NSWCA 34 at [15] (Djuric) and Patricks Stevedores Holdings Pty Ltd v Fogarty2014 NSWWCCPD 76 at [69].
I also note in rule 78 of the Personal Injury Commission Rules 2021 that the reasons are to be stated sufficiently to make the parties to the proceedings aware of my view of the case made by each party. I have limited my reasons to the one issue that I was asked to determine in light of the respondent's withdrawal of the disputes before the Commission during the conciliation phase of the hearing on 12 August 2025.
I also note in the submissions received, the respondent's position is now that they would agree to the Commission making orders by consent in the terms set out in paragraph 24 of the applicant's submissions which reads as follows: