NSWPICPD|2025-04-10|Before: Mr J

Kapp v St Josephs Village Limited [2025] NSWPICPD 33 (10 April 2025)

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

Kapp v St Josephs Village Limited [2025] NSWPICPD 33

The monetary threshold in s 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 is not satisfied, and there is no right of appeal.

WORKERS COMPENSATION - the monetary threshold to appeal - section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 - Grimson v Integral Energy [2003] NSWWCCPD 29; Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25; Patrick Operations Pty Ltd v Watson [2013] NSWWCCPD 18; Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3; Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7; Anderson v Secretary, Department of Education [2018] NSWWCCPD 32; O'Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1; Hamilton v Sydney Water Corporation [2008] NSWWCCPD 5; Lambropoulos v Qantas Airways Limited [2019] NSWWCCPD 17 discussed and applied

Kapp v St Josephs Village Limited [2023] NSWPIC 685

Kapp v St Josephs Village Limited [2024] NSWPIC 406

This appeal has a long and complicated history, commencing from 2015 when Ms Griselda Kapp (the appellant) lodged an Application to Resolve a Dispute (ARD) in the former Workers Compensation Commission, seeking weekly payments, treatment expenses and lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The appellant alleged that she suffered from a psychological injury in the form of chronic post-traumatic stress disorder with major depression and anxiety as a result of the 'nature and conditions' of her employment from 2008 up to 25 October 2013, and, or in the alternative, injury occurring on 5 October 2013 when she was subjected to inappropriate behaviour from a client.
The appellant's employer, St Josephs Village Limited (the respondent), disputed the injury, however when the matter came to conciliation and arbitration, the parties reached agreement in respect of the weekly payments and treatment expenses and her claim for permanent impairment pursuant to s 66 of the 1987 Act was referred to an Approved Medical Specialist (AMS) for assessment. On 18 March 2016, the AMS issued a Medical Assessment Certificate (MAC) certifying that the appellant had 6% whole person impairment. The appellant appealed to a Medical Appeal Panel (Appeal Panel), who revoked the MAC and issued a fresh MAC dated 22 June 2016, certifying the appellant as suffering 7% whole person impairment.
On 27 July 2016, the Commission issued a Certificate of Determination (the original COD) determining that the appellant suffered a 7% whole person impairment and was thus not entitled to lump sum compensation. (Section 66(1) of the 1987 Act provides that lump sum compensation is only payable if the degree of permanent impairment is greater than 10%.)
On 10 September 2019, the appellant sought to file an appeal against the decision of the Appeal Panel, citing a deterioration in her condition and seeking to rely upon further evidence, but the appeal application was rejected by the Team Leader, Registry Services on the basis that there is no appeal against a certificate issued by an Appeal Panel.
On 1 March 2021, the Workers Compensation Commission was abolished and any matters pending were transferred to the Personal Injury Commission (the Commission).[1]
On 31 May 2022, the appellant lodged an application for reconsideration pursuant to the now repealed s 378 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Section 378 was repealed when the 2020 Act came into force, however it was saved by cl 14B of Sch 1 to the 2020 Act in circumstances where the proceeding was a "pending non-court pre-establishment proceeding". The appellant asserted that, consistent with the decision handed down by the NSW Court of Appeal in Sleiman v Gadalla Pty Ltd,[2] the appeal application filed on 10 September 2019 should have been treated as an application for reconsideration and the Team Leader, Registry Services, acting as delegate of the Registrar of the Workers Compensation Commission, should have considered the merits of the application.
The application for reconsideration lodged on 31 May 2022 was rejected by a delegate of the President of the current Commission on the basis that s 378 had been repealed and the proceedings were not 'pending pre-establishment proceedings'. The appellant appealed to the Supreme Court seeking judicial review of the Delegate's decision. On 20 December 2022, the parties lodged consent orders in the Court, which purported to "quash" the Delegate's decision and it was noted that the power to refer the matter for reconsideration by the Appeal Panel pursuant to s 378 was retained.
The application for reconsideration pursuant to s 378 was returned to the Commission and proceeded to arbitration before Principal Member Harris on 20 November 2023. The Principal Member issued a Certificate of Determination on 20 December 2023. He determined that the Certificiate of Determination dated 27 July 2016 (the original COD) was final and binding pursuant to s 350 of the 1998 Act and that the matter could not be remitted for reconsideration by the Appeal Panel until that certificate was rescinded. He made an order that the "application to refer the matter to the Appeal Panel is refused".
On 2 May 2024, the appellant filed an application for reconsideration of the Certificate of Determination dated 27 July 2016 (the original COD), seeking to have that COD set aside and the Appeal Panel to reconsider its decision dated 22 June 2016, in which the Appeal Panel certified that the appellant's permanent impairment was 7%. The appellant sought the reconsideration in the hope of obtaining a higher assessment so that she could satisfy the requisite threshold in s 151H of the 1987 Act in order to make a claim for work injury damages.
That application proceeded to arbitration before Member McDonald of the Commission. Member McDonald issued a Certificate of Determination on 29 July 2024, in which she declined the application for reconsideration.
The appellant lodged this appeal on 26 August 2024. The appellant seeks to appeal both the decision of Principal Member Harris dated 20 December 2023 and the decision of Member McDonald dated 29 July 2024.

"(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing."

The appellant submits that the appeal is capable of being determined on the basis of the documents but submits that the Commission may be assisted by oral submissions "having regard to the legal issues involved."[3] The respondent indicates that the appeal can be determined on the basis of the written submissions.
I have had regard to Procedural Directions PIC2 and WC3; the written submissions and documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that the parties have had the opportunity to address the issues in writing and that I have sufficient information to proceed 'on the papers' without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

Section 352(3) of the 1998 Act provides as follows:

"(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both -

(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and

(b) at least 20% of the amount awarded in the decision appealed against."

The appellant submits that, if the reconsideration is successful, then she could be assessed as having 22% whole person impairment as found by Dr Buce Westmore, psychiatrist, which is greater than the percentage of 15% required for a work injury damages claim and would mean that she also satisfied the threshold of 20% in order to have her weekly payments reinstated in accordance with s 39 of the 1987 Act, backdated to 2020. The appellant says that the amount in dispute therefore exceeds $5,000.

The respondent disputes that the threshold is satisfied. The respondent submits that in the original proceedings, the appellant claimed $37,550 in respect of 22% whole person impairment as well as weekly payments and treatment expenses. The respondent says that the claim for weekly payments and treatment expenses resolved by consent in the proceedings in 2016 and are no longer in issue, so they are therefore irrelevant to the threshold question.
The respondent refers to the claim made in the proceedings before Principal Member Harris and before Member McDonald, in which the appellant confirmed that it was not a claim pursuant to s 66 but was a "threshold dispute", as recorded by Principal Member Harris at paragraph [21] and again at [94] of his reasons.
The respondent submits that the appellant's own submissions in these proceedings confirm that the appellant does not make any claim for compensation under the 1987 Act. The respondent adds that in the proceedings before Principal Member Harris, it objected to the appellant proceeding solely on the basis of a threshold claim. The respondent submits that Principal Member Harris dealt with its submissions at paragraphs [94] to [96] of his reasons and determined that the appellant could proceed with the claim solely on the basis of it being a threshold dispute.
The respondent contends that the appellant has conceded that there is no compensation actually in dispute. The respondent quotes from Deputy President Fleming's reasoning in Grimson v Integral Energy[4] that:

"The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance."

The respondent adds that Fleming DP observed that where the dispute concerns a lump sum claim and the amount in issue cannot be determined, it can be determined by reference to the amount claimed in the Application to Resolve a Dispute. The respondent says that, in this case, because the appellant withdrew her claim pursuant to s 66 of the 1987 Act, there was no compensation at issue.
The respondent adds that in Abu-Ali v Martin-Brower Australia Pty Ltd,[5] Snell DP considered whether the monetary threshold was met in circumstances where the worker sought a re-assessment. He said:

"The orders sought by the appellant on the appeal are revocation of the Certificate of Determination dated 5 December 2016, and referral to an AMS 'to assess WPI attributable to his secondary psychological condition for the purposes of s 32A'. If that assessment exceeded 20 per cent or 30 per cent, this would potentially increase the appellant's entitlement to benefits under the Workers Compensation Acts, if he was otherwise entitled. There was no amount of compensation claimed before the Arbitrator, and there is no amount of compensation directly at issue on the appeal. If the appeal were to succeed, there would be no orders for the payment of compensation. In my view the threshold is not met. In the circumstances, no appeal lies pursuant to s 352, due to the application of s 352(3) of the 1998 Act."[6]

The respondent submits that because the appellant did not press any claim under s 66 or any other compensation, the threshold requirement in s 352(3) is not satisfied and the appeal therefore should be dismissed.

By a direction dated 29 August 2024, a delegate of the President directed that the appellant was to lodge with the Commission and serve on the respondent any submissions in reply she would like to make to the respondent's submissions, if required, by 24 October 2024. Despite the detailed submissions and the references to relevant caselaw on this threshold point provided by the respondent, the appellant did not avail herself of the opportunity to lodge any submissions in response, including any submissions in response to this threshold issue.

There is no discretion vested in a Presidential member in respect of the monetary threshold requirements in relation to s 352(3) of the 1998 Act in the legislation or in the Personal Injury Commission Rules 2021. The Commission, therefore, has no power to permit conduct of an appeal if the monetary threshold has not been met.[7]
Section 4 of the 1998 Act defines "compensation" as "compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts". It does not include "damages" (s 149 (1) of the 1987 Act).
It is necessary that "the amount of compensation at issue on the appeal" is both "at least $5,000" and "at least 20% of the amount awarded in the decision appealed against". Where there is no amount awarded (such as where there is an award for the respondent), subs (3)(b) of s 352 cannot apply, and the amount at issue is to be determined by reference to the compensation claimed in the proceedings before the member.[8]
In Sheridan v Coles Supermarkets Australia Pty Limited,[9] the injured worker claimed weekly payments and treatment expenses, quantified by the then Arbitrator as a total amount of $3,736.46. The worker had also been assessed by Dr Alan Hopcroft, orthopaedic surgeon, as suffering from 10% permanent impairment pursuant to s 66 of the 1987 Act. Dr Hopcroft's report was in evidence, but a lump sum was not claimed in the proceedings before the Arbitrator. The appellant worker submitted that the amount in issue was $9,736.00, which included the amount of $6,000.00 in respect of the 10% permanent impairment. Deputy President Fleming observed as follows:

"The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. The Application to Resolve a Dispute does not identify an amount of $6000.00 for a 10% permanent impairment of the Applicant's back as being in dispute. On any reading of the Arbitrator's statement of reasons for decision it is clear that he was not considering any such claim."[10]

Deputy President Fleming also considered the monetary threshold in Fletchers International Exports Pty Limited v Regan,[11] in which she said that the decision must have a real capacity to put the amount of compensation in issue, determined by reference to the decision or the claim.
I made the following observations in relation to s 352(3) in Anderson v Secretary, Department of Education[12] (citations omitted):

"Section 352(3) of the 1998 Act is expressed in clear terms. It provides that there is no appeal under this section unless the amount of compensation at issue on the appeal, in this case, exceeds $5,000.

As explained by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:

'the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.'

The general purpose and policy of the provision is to require a certain monetary threshold to be met, that is, there is 'an amount in issue'. The provision restricts the right of appeal in a number of circumstances, as the authorities referred to below illustrate. The requirement is not a simple formality or technicality and its application does not offend the principles and objectives of the Commission ...".

In O'Callaghan v Energy World Corporation Ltd,[13] Acting President Roche found that an application for reconsideration of consent orders did not satisfy the monetary threshold partly because there was no compensation claimed in the proceedings. It was not sufficient that the result had the potential to allow future compensation.
In Hamilton v Sydney Water Corporation,[14] the appellant sought to rely on a potential future withdrawal of suitable duties, which if it eventuated would enliven a claim for weekly payments. In response to that submission, Acting President Byron observed that:

"In any event, to suggest that the monetary threshold, which must be met before the appeal can proceed, may be fixed by reference to what might flow from a possible outcome of the very appeal for which leave is sought, is misconceived."[15] (emphasis in original).

The circumstances in this case are similar to those in the authority of Abu-Ali (quoted and relied upon by the respondent) and in my decision in Lambropoulos v Qantas Airways Limited.[16]
In Lambropoulos, the appellant applied for an assessment by an AMS in order to be assessed for the purposes of ascertaining whether he suffered from a whole person impairment of greater than 20%. Such an assessment would entitle him to claim continuing weekly payments beyond the first 260 weeks of weekly compensation, pursuant to s 39 of the 1987 Act. There was no actual amount of compensation claimed.
Mr Lambropoulos sought to rely on earlier proceedings in which he had made a claim for treatment expenses pursuant to s 60, listed in a schedule as totalling approximately $107,000.00. That claim was discontinued. Mr Lambropoulos sought to rely on that schedule of s 60 expenses in his appeal from the Arbitrator's decision in the application for assessment by an Approved Medical Specialist, in order to establish that monetary compensation satisfying the threshold would flow if the decision was overturned. I determined that there was no amount of compensation claimed before the Arbitrator, and there was no amount of compensation directly at issue on the appeal. If the appeal were to succeed, there would be no orders for the payment of compensation.
I note that Snell DP reached a similar view in Abu-Ali.
Taking into account the above authorities, and in the absence of any authorities put forward by the appellant in support of her assertion that the threshold has been met, I am not satisfied that the monetary threshold in s 352(3)(a) of the 1998 Act has been met.