Bama v The College of Nursing
[2025] NSWPIC 441
•28 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Bama v The College of Nursing [2025] NSWPIC 441 |
| APPLICANT: | Jamaylah Bama |
| RESPONDENT: | The College of Nursing |
| MEMBER: | Anne Gracie |
| DATE OF DECISION: | 28 August 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury; claim for weekly compensation pursuant to section 37 and treatment expenses pursuant to section 60; respondent withdrew the disputes pursuant to section 37 and section 60 during the conciliation phase of the conciliation/arbitration; applicant maintains she is entitled to an award; written submissions provided by both parties on the issue of whether the Commission has the jurisdiction to make an award in the circumstances; decision made “on the papers”; Held – the applicant is entitled to an award pursuant to section 37 and section 60; Djuric v Kia Ceilings Pty Ltd, Patricks Stevedores Holdings Pty Ltd v Fogarty, and Raniere Nominees Pty Ltd t/as Horizon Motor Lodge v Daley considered. |
| DETERMINATIONS MADE: | The Commission determines: 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. 2. Award for the applicant pursuant to s 60 of the 1987 Act in respect of reasonably necessary treatment expenses relating to the psychological injury with a deemed date of injury, A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Jamaylah Bama, the applicant, suffered a psychological injury in the course of her employment with The College of Nursing, the respondent, as a result of a variety of stressors during 2024 up to and including 28 August 2024, being the deemed date of injury.
On 16 December 2024, the respondent’s workers compensation insurer, GIO, issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing liability for the applicant’s injury and any obligation to compensate the applicant, on the following basis:
“We do not agree that your injury arose out of employment as required by section 4 of the Workers Compensation Act 1987.
We do not agree that your injury was received in the course of employment as required by section 4 of the Workers Compensation Act 1987.
We do not agree that your employment was a substantial contributing factor to your injury as required by section 9A of the Workers Compensation Act 1987.
We do not agree that employment was the main contributing factor to the contraction of your disease injury as required by section 4(b) of the Workers Compensation Act 1987.
We do not agree that employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of your disease injury as required by section 4(b) of the Workers Compensation Act 1987.
We do not agree that you are entitled to weekly payments and medical or related treatment for your claimed injury because you do not have total or partial incapacity for work resulting from an injury as required by section 33 of the Workers Compensation Act 1987 and because the medical or related treatment is not reasonably necessary as a result of an injury as required by sections 59 and 60 of the Workers Compensation Act 1987.” (page 50 of the Application to Resolve a Dispute (ARD))
On 7 January 2025, the applicant’s solicitors sought review of the insurer’s decision (page 57 of the ARD).
On 24 January 2025, the respondent issued a notice pursuant to s 287A of the 1998 Act, maintaining the dispute and declining to pay compensation to the applicant (page 58 of the ARD).
On 13 February 2025, the respondent issued a further notice pursuant to s 78 of the 1998 Act, disputing liability for the applicant’s injury on the basis of a report obtained by the insurer from Dr Sudhakar dated 8 February 2025 (page 62 of the ARD- incorrectly dated
26 February 2025 in the index to the ARD). In this notice, the respondent included a denial of liability of the applicant’s claim pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act) in respect of discipline and the provision of employment benefits.On 26 February 2025, the applicant’s solicitors provided the respondent with the report of
Dr Khan and again sought review by the insurer of its decision to dispute liability (page 111 of the ARD).On 10 March 2025 the respondent issued a further s 287A review notice pursuant to the 1998 Act maintaining the declinature of liability of the applicant’s claim for compensation (page 112 of the ARD).
The applicant lodged an ARD in the Personal Injury Commission (Commission) on
13 May 2025.The respondent lodged a Reply on 5 June 2025, maintaining the dispute.
The preliminary conference was held on 17 June 2025. At the preliminary conference, the respondent withdrew the denial of liability for injury pursuant to s 4 of the 1987 Act but maintained the denial of liability for compensation base on s 11A of the 1987 Act. A direction was issued by the Commission following the preliminary conference recording the basis upon which the respondent resisted the applicant’s claim. The direction read as follows:
“The respondent confirms the issues remain s 11A in respect of discipline and the provision of employment benefits, s 33 in respect of capacity, s 59 and s 60 in respect of medical expenses. Injury, per se, is no longer in issue.”
The matter was set down for conciliation/arbitration on 12 August 2025.
The conciliation/arbitration hearing proceeded on 12 August 2025. During the conciliation phase of the conciliation/arbitration hearing, the respondent requested a preliminary view in relation to the matter. Having provided a preliminary view, the respondent’s representative announced the withdrawal of the disputes pursuant to s 4 (which had already been withdrawn at the preliminary conference) and s 11A, and that the respondent intended to attend to the payment of weekly compensation and treatment expenses on a voluntary basis.
The applicant sought an award pursuant to ss 37 and 60 rather than having the matter discontinued with the respondent’s withdrawal of the disputes pursuant to ss 4 and 11A endorsed as a notation on the Certificate of Determination.
As the parties could not reach agreement in relation to this aspect of the claim, I issued the following direction:
“1. Noting that the respondent has withdrawn the disputes raised pursuant to s 4 and s 11A of the Workers Compensation Act 1987, the parties are to provide submissions as to whether the applicant is entitled to awards pursuant to s 37 and s 60, as claimed in the application to resolve a dispute.”
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) noting that the respondent has withdrawn the disputes raised pursuant to ss 4 and 11A of the 1987 Act, is the applicant is entitled to awards pursuant to ss 37 and 60, as claimed in the ARD.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreement in relation to the appropriate vehicle to record the resolution of the dispute.
A conciliation conference was held on 12 August 2025. Mr Craig Tanner of counsel appeared on behalf of the applicant instructed by Ms Dunlop, solicitor from Turner Freeman Lawyers. Mr Ross Hanrahan of counsel appeared on behalf of the respondent instructed by Ms Hose, solicitor from Gair Legal. The applicant, Ms Jamaylah Bama was present as was the representative from the insurer, GIO, Ms Jones.
The conciliation conference proceeded on 12 August 2025. Having sought a preliminary view, the respondent’s representatives then advised the withdrawal of the disputes pursuant to s 4 of the 1987 Act (which had already been withdrawn at the preliminary conference) and s 11A, and advised that the respondent intended to attend to the payment of weekly compensation and treatment expenses on a voluntary basis and requested that the matter be discontinued and the Certificate of Determination Consent Orders be endorsed with a notation that the respondent had withdrawn the disputes pursuant to ss 4 and 11A of the 1987 Act and would make payments of compensation on a voluntary basis.
The applicant did not accept this method of disposing of the matter and sought a determination of the issues and an award pursuant to ss 37 and 60 of the 1987 Act. The parties were unable to reach agreement in relation to this issue and have agreed that this issue should proceed to a determination based on written submissions as to whether the applicant is entitled to an award.
A direction for written submissions was made as follows:
“1. The applicant is to lodge and serve by 19 August 2025 written submissions on the following issue: Noting that the respondent has withdrawn the disputes raised pursuant to s 4 and s 11A of the Workers Compensation Act 1987, the parties are to provide submissions as to whether the applicant is entitled to awards pursuant to s 37 and s 60, as claimed in the application to resolve a dispute.
2. The respondent is to lodge and serve by 26 August 2025 written submissions in reply.
3. At the conclusion of the time allowed for submissions the dispute will be determined ‘on the papers’”.
The parties have agreed to the determination of the issue without a conference or formal hearing on the basis of the written submissions filed by each party.
The applicant filed written submissions on 18 August 2025.
The respondent filed written submissions on 25 August 2025.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Lodge Additional Documents filed by the respondent and annexures dated 16 July 2025;
(d) Application to Lodge Additional Documents filed by the applicant and annexures dated 7 August 2025;
(e) Application to Lodge Additional Documents filed by the respondent and annexures dated 7 August 2025;
(f) Application to Lodge Additional Documents filed by the applicant and annexures dated 11 August 2025;
(g) written submissions filed by the applicant on 18 August 2025, and
(h) written submissions filed by the respondent on 25 August 2025.
Oral evidence
There was no oral evidence called.
FINDINGS AND REASONS
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 Fogarty 2014 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:
“1. Award for the applicant pursuant to section 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.
2. Award for the applicant pursuant to section 60 of the 1987 Act in respect of reasonably necessary treatment expenses relating to psychological injury she is deemed to have received on 28 August 2025 (sic 2024) subject to production of accounts, receipts and Medicare Notice of Charge.”
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 Fogarty 2014 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.
The respondent refers to s 71 of the Personal Injury Commission Rules 2021 which reads as follows:
“71 Determination of dispute in Commission proceedings by consent order
(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.
(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.”
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:
“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.
2. 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.”
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