Federation Council v Carpenter

[2025] NSWPICPD 16

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Federation Council v Carpenter [2025] NSWPICPD 16
APPELLANT:	Federation Council
RESPONDENT:	Noel Eric Carpenter
INSURER:	StateCover Mutual Ltd
FILE NUMBER:	A1-W8665/23
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	3 March 2025
ORDERS MADE ON APPEAL:	1. The monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 have not been met and there is no right of appeal.
CATCHWORDS:	WORKERS COMPENSATION – Section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1; Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25; Inghams Enterprises Pty Ltd v Grigor [2017] NSWWCCPD 23; Flying Solo Properties Pty Ltd v Collet [2015] NSWWCCPD 14; 16 DDCR 223
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Stockley, counsel
Kemp & Co Lawyers
Respondent:
Mr D Adhikary, counsel
Carroll & O’Dea Lawyers
DECISION UNDER APPEAL:	Carpenter v Federation Council [2024] NSWPIC 199
SENIOR MEMBER:	Ms K Haddock
DATE OF MEMBER’S DECISION:	22 April 2024

INTRODUCTION AND BACKGROUND

1. Noel Carpenter (the worker/respondent) commenced working with the Federation Council (the employer/appellant) when it was known as the Urana Shire Council, in about 1988/89. He was initially a labourer, he later obtained ‘tickets’ as a truck driver and a plant operator, and most recently was a gardener. He suffered an injury to his back (which is not disputed) on 20 July 2005 when he fell through a square metal manhole cover.[1] The worker said that he never made “some sort of full recovery” and was not free of pain and discomfort.[2] He said his “level of pain fluctuated over the years”. He said that he “had to carefully manage himself over many years to make sure he could keep working”.[3] The worker saw many doctors over the years, whose reports are carefully summarised in the Senior Member’s reasons.

   [1] Statement of Noel Carpenter (the worker), 12/9/23, [1]–[3], Application to Resolve a Dispute (ARD), p 2.

   [2] Worker’s statement 28/2/24, [2], [11], Application to Admit Late Documents (AALD) 29/2/24, Carpenter v Federation Council [2024] NSWPIC 199 (reasons), [47], [59].

   [3] Reasons, [35].

2. Dr Casikar, neurosurgeon, examined the worker at the insurer’s request and reported on 30 November 2022. Dr Casikar considered the worker had suffered a workplace aggravation of pre-existing degenerative disease of his lumbar spine, and that the effects of the aggravation had ceased. He described the left-sided disc protrusion at L5/S1 as “consistent with the natural progression of the degenerative disease”, not caused by the injury.[4]

   [4] Reply, p 17.

3. Dr McMahon, neurosurgeon, reported on 5 December 2022 that the worker had “ongoing lumbar back pain and left-sided sciatica secondary to L4/5 intervertebral disc degeneration and left-sided disc prolapse”. Dr McMahon considered that lumbar fusion surgery was warranted and referred the worker to Dr Rogers, also a neurosurgeon.[5] Dr Rogers reported on 12 December 2022. He recommended that the worker undergo “a left-sided decompression at L4/5”. He said he could not see “compelling reason” for a fusion.[6]

   [5] ARD, p 79.

   [6] ARD, p 78.

4. The insurer issued a dispute notice dated 10 January 2023. It disputed that the worker’s lumbar condition “arose out of or in the course of [his] employment”. It disputed that employment was the main contributing factor to the aggravation of the condition. It disputed that s 9A of the Workers Compensation Act 1987 (the 1987 Act) was satisfied. It disputed there was an entitlement to weekly payments or medical expenses. The notice relied on Dr Casikar’s opinion in disputing liability.[7]

   [7] Reply, pp 1–7.

5. The current proceedings were commenced on 16 November 2023. The Senior Member issued a Direction dated 9 January 2024. It was noted the date of injury may require amendment and that the claim was for “the cost of proposed L4/5 decompression surgery”. The Direction noted the appellant did not dispute the reasonable necessity of the treatment but disputed whether it resulted from relevant injury. There were procedural orders.

6. The matter was listed for hearing on 7 March 2024. Mr Adhikary appeared for the worker and Mr Stockley appeared for the appellant. Towards the conclusion of counsel’s submissions, the Senior Member enquired: “Do we need to deal with a possible 59A issue … do you need to get some instructions …”.[8] The Senior Member referred to a need for the appellant to notify the worker and the Commission whether reliance would be placed on s 59A of the 1987 Act and the reasons for that.[9]

   [8] Transcript of hearing, 7/3/24 (T), T 52.33–53.1.

   [9] T 54.1–55.11.

7. A Direction was issued on 8 March 2024 providing that, on or before 14 March 2024, the appellant would advise the worker and the Commission whether it sought to rely on s 59A and the reasons therefore. There was liberty to request a further preliminary conference. On 15 March 2024 the appellant’s solicitors, by email, informed the Registry and the worker’s solicitors that the appellant would rely on s 59A. On 21 March 2024, a Direction was issued giving the appellant until 2 April 2024 to file submissions in reply and providing that the parties, by 8 April 2024, would advise whether a further preliminary conference was required.

8. Further submissions from the appellant were dated 15 March 2024. It submitted that, as the claim was now amended to seek orders in respect of a lumbar decompression procedure, rather than a spinal fusion, the surgery could not fall within the ‘exclusion’ in s 59A(6) of the 1987 Act. It submitted this made the present application futile as it could not result in “an enforceable determination or order”. The appellant referred to the decision in Flying Solo Properties Pty Ltd v Collet[10] at [74]. It submitted the Commission had not determined, in the current matter, that the surgery was “reasonably necessary treatment as a result of [the worker’s] work injury”. It submitted that, in the absence of “an enforceable remedy, there [was] no jurisdiction to further consider the present dispute”.[11]

   [10] [2015] NSWWCCPD 14; 16 DDCR 223 (Collet).

   [11] Appellant’s submissions regarding s 59A, [1]–[5].

9. The worker put on written submissions in reply dated 25 March 2024. It was submitted the worker sought a declaration pursuant to s 60(5) of the 1987 Act with respect to the surgery in dispute. The worker submitted the proposition that there was no jurisdiction was contrary to ss 105, 288, 289 and 289A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It quoted from Patrick Stevedores Holdings Pty Ltd v Fogarty[12] in which Roche DP said:

   “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].”

   [12] [2014] NSWWCCPD 76 (Fogarty), [55].

10. The worker submitted that none of the restrictions on this jurisdiction, in ss 288 to 289A of the 1998 Act, were applicable in the current matter, and once the Commission had jurisdiction this could not be removed.[13] The worker submitted that, consistent with Collet, the Senior Member should determine the matter and make findings on the disputed treatment. The worker quoted from Collet at [75] and [78], and submitted the Senior Member had jurisdiction to determine whether the disputed surgery was reasonably necessary.

    [13] Fogarty, [55], [59]–[66].

11. A Certificate of Determination was issued on 22 April 2024.

THE SENIOR MEMBER’S REASONS

1. The Senior Member quoted from the injury report completed by the worker on or about 20 July 2005. It stated the worker fell as the lid on a stormwater pit turned when he was walking over it, he fell in and was struck on the head. A co-worker removed the lid from on top of him. There was injury to the left hip/head. Liability for injury to the lumbar spine was accepted. The Senior Member referred to the claim lodged on 22 March 2022. It referred to worsening of the previous injury which involved the lower back, had not resolved and required surgery. The appellant’s insurer, StateCover Mutual Ltd (StateCover) described the injury date as 22 March 2022, denied the worker had suffered injury to the lumbar spine, and denied his entitlements to either medical treatment or weekly payments. It confirmed this decision on review.[14]

   [14] Reasons, [3]–[10].

2. The Senior Member noted the claim was for the cost of future surgery to the lumbar spine. The issues were whether the Commission had jurisdiction to determine the dispute having regard to s 59A of the Workers Compensation Act 1987 (the 1987 Act), and if so, whether the proposed surgery was reasonably necessary as a result of the injury on 20 July 2005. This issue of jurisdiction was ultimately conceded, although the appellant continued to argue that the need for surgery did not result from the work injury. The parties put on written submissions dealing with the application of s 59A. The Senior Member noted there were no applications to adduce oral evidence or to cross-examine.[15]

   [15] Reasons, [13]–[25].

3. The Senior Member summarised the respondent’s evidence in his statements dated 23 June 2023, 12 September 2023 and 28 February 2024.[16] The respondent did not believe there was ever a time when he was symptom-free after his injury, his pain fluctuated, he had to “carefully manage himself” to continue working. Through 2020 the pain levels increased. There were issues with incontinence and bowel function. After seeing the “Incident and Injury Register” he accepted that his date of injury was 20 July 2005.[17] The Senior Member referred to the respondent’s description of the injury. The lid to the pit “turned over like a trap door, he fell into the pit … The steel plate lid fell on top of him. The pit was approximately 1m deep … he hit the side of the pit fairly hard and fell into the pit at a very awkward angle.”[18]

   [16] Reasons, [26]–[60].

   [17] Reasons, [35], [47]–[48], [55].

   [18] Reasons, [56]–[57].

4. The Senior Member summarised the significant body of medical evidence that had built up since the date of injury. I will not repeat that summary here. There were extensive notes from the Urana Medical Centre, the Corowa Medical Centre, and “iHealth Albury”. The Senior Member summarised material from multiple specialists who treated the respondent over the years. She summarised the parties’ submissions.

5. The respondent said he had not been able to return to his pre-injury work for a number of years. There were “underlying degenerative issues” of which the doctors, including treating specialists, were aware. The totality of the treating evidence demonstrated the effects of injury had not resolved, and there was no expectation they would. The respondent referred to Watts v Rake[19] and Purkess v Crittenden[20] – the onus was on the appellant to demonstrate “the effects of the accepted injury had resolved”. The doctors, with the exception of Dr Casikar, considered the surgery to be related to the effects of the injury. The respondent submitted the work injury made a material contribution to the need for surgery, referring to Murphy v Allity Management Services Pty Ltd[21].[22]

   [19] (1960) 108 CLR 158.

   [20] (1965) 114 CLR 164.

   [21] [2015] NSWWCCPD 49.

   [22] Reasons, [297]–[309].

6. The Senior Member referred to the submissions going to s 59A of the 1987 Act. The respondent submitted the Commission had jurisdiction to make a declaration pursuant to s 60(5) of the 1987 Act, that the surgery was reasonably necessary as a result of the accepted injury. The respondent referred to Fogarty and Guettaf v Spotless Services Australia Pty Ltd.[23] The respondent submitted the restrictions in ss 288 to 289A of the 1998 Act did not apply. The appellant’s dispute notices triggered the dispute and the Commission’s jurisdiction could not be removed. The matter could be referred for determination because the respondent had disputed liability. The respondent referred to Collet, which it submitted did not suggest the contrary. The respondent submitted the Senior Member should determine the matter and make a finding that the disputed treatment was reasonably necessary as a result of the work injury.[24]

   [23] [2020] NSWWCCPD 13.

   [24] Reasons, [310]–[320].

7. The Senior Member referred to the appellant’s submissions. The question was the extent to which the injury affected the degenerative pathology and whether it made a material contribution to the need for surgery. It submitted there was an absence of references to back pain on particular occasions, consistent with Dr Casikar’s view that there were periods of remission. Dr Casikar’s opinion was consistent with the progression of a degenerative condition. The appellant submitted the Application originally pleaded that s 60(5) of the 1987 Act applied, as the surgery would involve an ‘artificial aid’ within the meaning of s 59A(6) of the 1987 Act. The appellant submitted that, as the proposed surgery now involved a decompression (rather than a fusion), the surgery could not fall within the s 59A(6) exclusion. The appellant submitted the application was futile as it could not result in an enforceable determination or order. The appellant referred to Collet at [74] and submitted that in the current matter there was not a finding that the surgery was reasonably necessary treatment as a result of a work injury. The appellant submitted that in those circumstances there was not an enforceable remedy, and there was no jurisdiction to further consider the dispute.[25]

   [25] Reasons, [321]–[330].

8. The Senior Member set out ss 59A and 60 of the 1987 Act. She said it was appropriate that she first consider the jurisdiction issue. She said she accepted the respondent’s submissions on the effect of ss 105, 288, 289 and 289A of the 1998 Act, which the appellant had not submitted on. The Senior Member said she had jurisdiction pursuant to s 60(5) of the 1987 Act. She said that what Roche DP held in Collet was not that the Commission lacked jurisdiction to determine the dispute, but rather that it erred in ordering the respondent to pay the costs of the relevant treatment. She said that acceptance of the appellant’s submission would leave the respondent without a remedy.[26]

   [26] Reasons, [331]–[351].

9. The Senior Member referred to comments from various specialists dating back to 2006 regarding the possibility of surgery. She referred to an opinion from Dr Ow-Yang in 2022 that the respondent had “undergone a more rapid degenerative process due to the injury” (emphasis added by the Senior Member). The Senior Member referred to the opinion of Dr Le Leu, following a comprehensive review of the records, that there was a “direct relationship between the original injury and the respondent’s current condition”. She accepted Dr Le Leu’s opinion. She noted Dr Casikar conceded the proposed surgery was appropriate treatment although disputed the causation issue.[27]

   [27] Reasons, [354]–[363].

10. The Senior Member rejected the appellant’s position. She found that left-sided decompression surgery at L4/5 was reasonably necessary as a result of the injury on 20 July 2005. She said she was unable to order the appellant to pay the costs due to the operation of s 59A of the 1987 Act and therefore declined to make any order.[28]

    [28] Reasons, [365]–[366].

ON THE PAPERS

1. Section 52(3) of the Personal Injury Commission Act 2020 provides:

   “(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.”

2. Having regard to Procedural Directions PIC2 and WC3; the 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 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.

THRESHOLD MATTERS

1. There is no dispute between the parties that the threshold requirements as to time pursuant to s 352(4) of the 1998 Act have been met. There is an issue regarding whether the requirements of s 352(3) of the 1998 Act have been met. Section 352(3) of the 1998 Act provides:

   “(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.”

Appellant’s submissions on threshold

1. The appellant submits “[t]he amount in issue in the application was $20,000 in respect of lumbar surgery”.

Respondent’s submissions on threshold

1. The respondent submits the claim initially was for the cost of fusion surgery, which overcame the limitation provision in s 59A as this claim involved provision of an artificial aid (see s 59A(6) of the 1987 Act). It submits discontinuance of the “fusion surgery component” enlivened the s 59A limitation as the decompression surgery at L4/5 did not involve an ‘artificial aid’. There was thus no monetary compensation that could be awarded pursuant to s 59A and the claim became one for a declaration pursuant to s 60(5) of the 1987 Act in respect of this treatment. The Senior Member determined this remaining dispute. The respondent submits there is no compensation at issue on the appeal. The appellant quotes from O’Callaghan v Energy World Corporation Ltd[29] and Abu-Ali v Martin-Brower Australia Pty Ltd.[30]

   [29] [2016] NSWWCCPD 1 (O’Callaghan).

   [30] [2017] NSWWCCPD 25.

2. The respondent submits it flows from the above that:

   (a)   there was no amount of compensation at issue before the Senior Member;

   (b)   the Senior Member did not make an award for compensation, and

   (c)   if the appeal succeeded, there would be no reversal of orders for the payment of compensation.

3. The respondent also refers to Inghams Enterprises Pty Ltd v Grigor,[31] as authority that the amount at issue on appeal cannot be ascertained by reference to other sums, that are not claimed or at issue in the current proceedings and may or may not be claimed at some future time. It submits the possibility of a sum being claimed for the cost of surgery does not establish the present requirement for compensation at issue of at least $5,000.[32]

   [31] [2017] NSWWCCPD 23.

   [32] Respondent’s submissions, [1]–[12].

Consideration of the threshold issue

1. The appellant’s submission, dealing with quantum of the claim as originally pleaded is of little relevance. The reasons note the claim was “amended to limit the proposed surgery to a decompression”. The threshold issue stems from the fact that, due to s 59A of the 1987 Act, the Senior Member did not make any order for payment by the appellant of compensation for the cost of the left sided decompression surgery at L4/5, notwithstanding that she found the surgery to be reasonably necessary as a result of the conceded work injury. The difficulty was explained in Collet where Roche DP said at [74]–[75]:

   “However, s 59A(3) will be relevant when Mr Collet ceases work to have the recommended surgery to his cervical spine. Obviously, Mr Collet will be unable to work while he has the surgery, or while he is recovering from it. Thus, for a period, he will have no current work capacity. As the Commission has determined that the surgery is reasonably necessary treatment as a result of his work injury, when Mr Collet ceases work for the surgery, he will ‘become entitled to weekly payments of compensation’. There is no scope for a contrary argument. As a result, his entitlement to compensation under Div 3 will revive ‘but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to [him]’ (s 59A(3)). That is, while he is having, and recovering from, the surgery.

   As that is in the future, and as it is not known how long that period will be, it is not possible to make any finding or order in advance. However, it should be clearly understood that the fact that the time off work for the surgery will result in Mr Collet being entitled to weekly compensation will also entitle him to compensation under Div 3 for the cost of the surgery. In these circumstances, though the Commission cannot currently order the payment of the cost of the surgery, the insurer will have an obligation to meet that cost. I fully expect the insurer to meet that cost without the need for further proceedings in the Commission. A failure to do so would be, in the circumstances of this case, a most serious breach of the insurer’s statutory obligations.”

1. The words of s 352(3) of the 1998 Act direct attention to “the amount of compensation at issue on the appeal”. The Deputy President in Collet did not make orders for payment of the cost of surgery, given such orders were not available because of the operation of s 59A of the 1987 Act.

2. In Fletcher International Exports Pty Ltd v Regan Fleming DP said:

   “While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson), the appeal must nonetheless affect an ‘amount of compensation at issue on the appeal’ to pass the threshold test in section 352(2)(b). Purely procedural decisions, such as a decision to adjourn a telephone conference (Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSWWCCPD 5), a decision in relation to costs only (Grimson v Integral Energy [2003] NSWWCCPD 29), and a decision to schedule a further telephone conference (Falcon v Narellan Enterprises Pty Limited [2003] NSW WCC PD 34) do not meet this threshold criterion. The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21)).”[33]

   [33] [2004] NSWWCCPD 7, [27].

3. In O’Callaghan Roche DP at [50] said:

   “The Commission is concerned with the current claim and whether, in respect of that claim, the amount of ‘compensation at issue on the appeal’ is at least $5,000. That claim is not one for compensation but one that relates to the threshold for a potential work injury damages claim. As a result the monetary threshold cannot be met. (I note, in passing, that ‘damages’ does not include ‘compensation’ under the 1987 Act (s 149(1) of the 1987 Act).)”

4. The Senior Member did not actually make any orders for the payment of compensation. Her conclusion was expressed in the following terms:

   “The surgery as claimed by the [worker], that is left-sided decompression surgery at L4/5, is reasonably necessary as a result of injury on 20 July 2005.

   I am unable to order that the [appellant] pay the costs of the surgery, due to the operation of s 59A of the 1987 Act; and I therefore decline to make any order.”[34]

   [34] Reasons, [365]–[366].

5. The above (which was consistent with the reasoning in Collet) made no orders for the payment of monetary compensation. If the employer in Collet declined to voluntarily pay the cost of the relevant surgery when it was performed, the decision of Roche DP would not have created enforceable orders. It would have been necessary for the worker to take further proceedings if and when s 59A did not prevent the recovery of relevant compensation. The same situation would apply in the circumstances of the current matter.

6. The test in s 352(3) of the 1998 Act concerns itself with “the amount of compensation at issue on the appeal” (emphasis added). The passage from O’Callaghan quoted above (with which I agree) concluded that the test was not satisfied where the claim was “not one for compensation”. The respondent correctly submits that, “if the [a]ppellant was successful in this appeal, there would be no reversal of orders for the payment of compensation”.

7. It follows from the above that the appeal does not satisfy the requirements of s 352(3) and cannot be brought.

DECISION

1. The monetary thresholds in s 352(3) of the 1998 Act have not been met and there is no right of appeal.

Michael Snell

DEPUTY PRESIDENT

3 March 2025