i-Teknik Pty Ltd T/A Brabyn Bees Early Learning Center v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	i-Teknik Pty Ltd T/A Brabyn Bees Early Learning Center v Workers Compensation Nominal Insurer (iCare) [2024] NSWPIC 277
APPLICANT:	i-Teknik Pty Ltd T/A Brabyn Bees Early Learning Center
RESPONDENT:	Workers Compensation Nominal Insurer
MEMBER:	Rachel Homan
DATE OF DECISION:	24 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application seeking orders that the applicant was not liable to reimburse the Insurance Fund an amount specified in a notice pursuant to section 145(1); extent of incapacity resulting from injury; whether treatment expenses reasonably necessary; whether notice valid in circumstances where applicant believed the payments had not been adequately explained or justified; Held – the injured worker had current work capacity for part of the period in which she was paid on the basis of no current work capacity; amount the applicant is required to reimburse the Insurance Fund reduced; the medical and related treatment expenses were reasonably necessary as a result of the injury.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 145(4) of the Workers Compensation Act 1987, the applicant is to reimburse the respondent the amount of $14,965.77.

STATEMENT OF REASONS

BACKGROUND

These proceedings concern an application lodged by i-Teknik Pty Ltd T/A Brabyn Bees Early Learning Center (the applicant) seeking various orders in respect of a notice issued under issued under s 145(1) of the Workers Compensation Act 1987 (the 1987 Act) by the Workers Compensation Nominal Insurer (the respondent).
The notice in question was issued on 15 November 2023 and sought reimbursement of the amount of $15,922.91 being compensation paid to Harsimranjit Kaur (the injured worker) in respect of an injury to her left little finger on 1 February 2023. An earlier notice, dated 13 October 2023, sought reimbursement of the same amount.
Particulars of the compensation paid annexed to the s 145(1) notice indicated that an amount of $4,884.41 had been paid as weekly compensation for the period from 6 February 2023 to 9 April 2023. In addition, $11,038.50 had been paid in treatment expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared for a preliminary conference on 31 January 2024. Mr Faruque Ahmed attended on behalf of the applicant. Mr Ainsworth, legal practitioner, accompanied by Mr Butcher from iCare, appeared on behalf of the respondent.
At the preliminary conference, the Personal Injury Commission (Commission) raised with the parties whether orders should be made joining the injured worker to the proceedings. The respondent advised that the claim file was closed and no compensation had been paid since early 2023. In the circumstances, it was agreed that the matter could proceed without impacting the injured worker’s rights.
The issues in the proceedings were identified as involving the extent of incapacity resulting from the injury and whether the medical and related treatment expenses paid were reasonably necessary as a result of injury. The applicant was referred to the applicable legislation and the Commission’s procedures were explained. It was noted, in particular, that the issues raised by the applicant were medical questions and that the Commission would be confined to the evidence before it if called upon to determine the dispute. The respondent was directed to lodge Directions for Production for the injured worker’s clinical records. The matter was referred for conciliation conference and arbitration hearing. The applicant was strongly encouraged to consider obtaining legal advice ahead of the next date.
The parties appeared for conciliation conference and arbitration hearing on 28 March 2024. The applicant again appeared without legal representation. Leave was granted to the respondent to be legally represented pursuant to s 48(4)(a) of the Personal Injury Commission Act 2020.
I was advised that an offer had been made by the respondent to resolve the matter on a compromise basis. That offer had been rejected and no further offers were forthcoming.
The matter proceeded to arbitration hearing. At the conclusion of oral submissions, the applicant was offered and accepted the opportunity to supplement its oral submissions in writing. Directions were made for a transcript to be provided to the parties and a timetable for the lodgement of written submissions established.
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 agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    the extent and quantification of incapacity resulting from the injury pursuant to s 33 of the 1987 Act;
(b)    whether the medical and related treatment expenses paid were reasonably necessary as a result of the injury pursuant to s 60 of the 1987 Act, and
(c)    whether the applicant is liable to reimburse the respondent the amount specified in the notice issued pursuant to s 145 of the 1987 Act dated 15 November 2023.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents;
(c)    written submissions lodged by the applicant on 23 April 2024, and
(d)    written submissions lodged by the respondent on 30 April 2024.

Application

In the Application lodged in the Commission on 13 December 2023, the applicant made the following submissions:
“I dispute iCare's account of costs in this claim. The claim is for medical expenses and loss of income due to injury (fracture) to small finger left hand of employee. iCare claims 8 weeks of loss of income (total ‘incapacity’ to perform any work) and medical expenses including approx $8,000 for ‘plastic surgery’. I do not accept these claims and have disputed this with iCare on more than one occasion but they refuse to correct their account of claims. Instead they had offered $5,000 of reduction as a ‘business decision’ but still refuse to correct the account of claims, details below:
(1)     Proposed light duties were not accepted, commented on or objected to. Light-duties offered was absolutely unconditional, I had requested just presence of the employee on site and any duties deemed okay by her doctor. The nature of our business is such (Child Care Center) that by regulation we are required to have certain number (ratio) of qualified staff on site, even though at the time we only had 3 enrolled childs at the center and 3 full-time staff. There was hardly any work for staff as such. Its has cost us about $1,500 per week just to have an qualified staff present on site so we could remain compliant with the department of education’s regulation. iCare did not state that workplace assessment by a rehab consultant was a ‘pre-condition’ to accept proposed light duties. It was a ‘option’ proposed to me and I stated that I do not see why this would be necessary. iCare did not mandate it and I did not refuse it. Therefore iCare can not claim that offer of light-duties was not considered due to this reason. iCare has presented ‘Certificate of Capacity’ past 28 days which do not show or list clinical reasons for the incapacity as required by law, therefore these certificates are invalid. Therefore no valid claim for loss of income after 26/2/2023 to date of resignation 26/3/2023
(2)     Plastic Surgery is not mandated or agreed to by me The standard cost of similar minor surgery is approx. $500 - $1500. Instead, the costs reached approx. $8000 for opting for plastic surgery. I do not agree to this.
(3)     Employee resigned at own will on 26/3/2023 and opted NOT to work the following week of notice period, at own will. Therefore there can be no further loss of income claim past 26/3/2023. iCare’s account of claim shows loss of income payment for week of 27 – 31/3/2023 which contradicts above and they have refused to correct this despite my request.”
The applicant sought orders for the amount set out in the s 145(1) notice to be reduced by the value of the weekly compensation paid beyond 26 February 2023 and the costs of plastic surgery as opposed to “ordinary” surgery. The applicant also sought compensation in the amount of $6,000 for the cost of hiring temporary staff during period when injured worker declined its offer of light duties.
Attached to the Application was a written statement prepared by Mr Ahmed which traversed the matters extracted above. The applicant submitted that it had offered light duties to the injured worker which,
“…were absolutely unrestricted and simply requesting that employee be on site to cover our requirement to have qualified staff on site, and any other duties that is suitable as per doctor’s advice.”
With regard to the certificates of capacity that had been presented, the applicant submitted:
“After the first 4 weeks of ‘no capacity to work’ and having been paid in full for loss of income, employee presented further Certificate of Capacity, which does not show/list of clinical reasons for ‘no capacity to work’, as legally required. Therefore the certificate is not valid. Hence I do not accept claim of any loss of income, from week 5 onwards.”
The applicant reiterated its view that as the injured worker had voluntarily resigned on 24 March 2023, no compensation ought to have been paid for the period 27 March 2023 to 9 April 2023.
With regard to the treatment expenses paid, the applicant stated:
“There is no rationale that I am aware of, for opting for an plastic surgery when a standard surgery would have prevailed. This has added approx. $8,000 in additional medical costs. I have requested iCare to explain reason for this but they will not.”
Various emails exchanges between the parties were attached to the Application. These recorded various complaints with regard to the Certificates of Capacity including, that they were void due to being unsigned, illegible and missing details.
In an email dated 8 March 2023, the applicant wrote:
“I informed and explained to you about a month ago when we first spoke, that suitable light duties are available on offer, to the extent that just being present onsite, even serves a purpose to our workplace. I explained to you clearly, that as a Child Care center, we are required by law to have a certain mix of qualified staff on site regardless of how much work is available. In the last 4 weeks, we have offered Simran the option of light/suitable duties on several occasions, and requested her to call to discuss anytime. She simply ignores and does not discuss with us. In her - a 4 injury management plan, return to work/suitable duties is an important recovery point and yet for 4 weeks iCare has completely failed to address the issue or follow it up. Effectively this situation is costing me thousands of dollars that I have to spend to fill in the staff shortage. Your assurance that you will make an ‘attempt’ to discuss this with her doctor is at best, inadequate. I would like this addressed immediately. Failure may result in delay in future payments.
As for suitable duties, some details were communicated to Simran over and over again via emails for the last 4 weeks. mostly would consist of ‘paper-work’ such as writing childs ‘observations’, reading through/updating policies, etc. It would be possible to elaborate and list suitable activities in more detail if the doctor can provide details of her restrictions for the next few weeks. Best to work it out with Simran, she has been requested several times to call and discuss to identify suitable duties.”
On 29 May 2023, the applicant wrote to the respondent indicating that some invoices for treatment had been duplicated. The applicant reiterated that that it had offered suitable duties to the injured worker:
“I had spoken to the case officer and also detailed in email, my concerns that employee was not responding/accepting or commenting on offer of light/alternative duties and the case office was not following up. I am required to offer alternative/light duties and unless employee can provide reasons why not to accept and or can provide valid medical reasons, I have no legal obligation to pay lost wages. The alternative/light duties I offered (and explained to your case officer at length), consisted of ‘just being present on site’ to admin work what employee is able to perform. I beleive it was most generous and supportive offer of alternative/light duties possible anywhere.”
An email from Mr Butcher to the applicant on 27 June 2023 responded:
“I have confirmed to you the hospital charges (whilst having similar descriptions) are not duplicated despite your concerns as one lot of charges is for theatre fees and some charges are surgeon fees. In our discussions you explained that you believe that the worker did not need plastic surgery which has increased the costs and that you offered the suitable duties, but you allege the doctor was not told that you had offered it, and then proceeded to provide a certificate with no capacity. I confirmed the file note that the case manager advised that a rehab consultant could be engaged to assess the workplace for suitable duties but you refused saying it would costs too much. I have reviewed this and our records show as follows: Case Manager contacted Nominating Treating Doctor (NTD) on 21 February 2023, as well as sending email requesting the NTD call her to discuss worker progress and following up response to questions that had been sent. The claimant then had surgery on 27 February 2023. NTD responded to questions on 28 February 2023 stating claimant would be fit for some duties in
4-6 weeks, PIDs 6-12 weeks. Certified with capacity to work 5 hours/ 2 days per week from 20 March 2023. Claimant resigned 24 March 2023 & advised she gave a week’s notice which expired on 30 March 2023.”
In response to the first notice issued pursuant to s 145(1) of 1987 Act dated 13 October 2023, the applicant wrote to the respondent indicating that there were a number of inaccurate entries in the list of payments and suggesting that the claim was invalid as a result. In particular, the applicant submitted that there was no valid claim for loss of income after 26 February 2023 to the date of resignation on 26 March 2023. The applicant also submitted that plastic surgery had not been “mandated or agreed to”. It was asserted that the standard cost of similar minor surgery was approximately $500-$1,500.

Reply

The evidence attached to the respondent’s Reply included correspondence addressed to the applicant dated 8 February 2023 advising that a claim for workers compensation benefits had been made against the respondent by the injured worker in respect of a fracture to her left little finger on 1 February 2023. The correspondence attached a Notice to Employer issued under s 141(2) of the 1987 Act requesting further information.
Answers given in response to the s 141(2) notice by the applicant indicated, amongst other things, that:
(a)     the applicant obtained a workers compensation policy on 3 February 2023;
(b)    the applicant employed two staff and estimated that $119,000 in gross wages would be paid for all employees for the current financial year;
(c)    the injured worker had commenced employment with the applicant on 3 January 2023 and worked 20 hours per week at an hourly rate of $33.50;
(d)    the injury occurred at around 11.00am on 1 February 2023 during an outdoor play activity with children. The injured worker tripped over a child’s shoe and fractured her left little finger, and
(e)    the applicant indicated that it was able to provide suitable duties but the injured worker had produced Certificates of Capacity certifying her as totally incapacitated for work.
Correspondence addressed to the applicant on 13 February 2023, advised that the claim for workers compensation benefits by the injured worker had been accepted.
It was determined that the applicant was not an employer exempt from holding a workers compensation policy of insurance for the 2022/2023 financial year but was an uninsured employer as at 1 February 2023.
The injured worker’s pre-injury average weekly earnings (PIAWE) rate had been determined to be $804 based on verbal discussions with the applicant and the injured worker indicating that her hourly rate was $33.50 with a minimum of 20 hours a week.

Treating evidence

A clinical note prepared by general practitioner, Dr Jeevith Rajagopal, recorded that the injured worker presented on 1 February 2023 with a swollen and bruised left fifth finger. The finger had decreased movement mainly at the metacarpophalangeal (MCP) joint. The injured worker was noted to have declined to go to the Emergency Department that night but was given a referral for an X-ray the next day.
The report of an X-ray performed on the injured worker’s left hand on 2 February 2023 recorded a clinical history of the injured worker tripping and falling the previous day, injuring her left little finger. The X-ray found a recent oblique fracture of the proximal phalanx of the little finger with minimal displacement and separation.
A Certificate of Capacity was issued by Dr Navdeep Shukla on 5 February 2023 certifying the injured worker as having no current work capacity in respect of the injury to her finger. According to the certificates, the injury was to be treated conservatively. Certificates to the same effect were issued for the period until 20 March 2023 when the injured worker was certified as having capacity for suitable employment five hours per day two days per week.
On 20 February 2023, Dr Shukla recorded that the injured worker was experiencing left finger pain. She had been using a splint and was seeing a specialist at the injury clinic that Thursday. The finger was noted to be in a splint and bandage.
The report of a further X-ray of the left hand performed on 23 February 2023 showed an oblique undisplaced fracture with fracture lines still visible.
Plastic surgeon, Dr Peter Laniewski, prepared a report on 23 February 2023, which stated:
“She will require open reduction and internal fixation with access from the ulnar side of the finger to avoid the tendon and neurovascular structures. She will also benefit from post-operative LED light therapy to facilitate bone healing as well as reduce swelling and facilitate a faster return to pre-injury duties.”
An operation report indicated that the procedure was performed on 27 February 2023 by Dr Laniewski.
On 28 February 2023, Dr Shukla responded to a series of questions from the respondent. Dr Shukla was asked to provide a timeframe for when the injured worker would be able to commence a return to work performing suitable duties as well as a timetable for return to pre-injury duties. Dr Shukla estimated that the injured worker could perform some duties in four to six weeks and pre-injury duties in six to 12 weeks.
A report from Westmead Hand Therapy Centre, dated 21 March 2023, indicated that the injured worker fell and fractured her finger on 1 February 2023. She had undergone surgery to reduce and fixate the fracture on [27] February 2023 and was due to commence hand therapy three weeks later.
In a letter to Dr Laniewski, dated 27 March 2023, physiotherapist Pak Yin (Kevin) Chu from the Westmead Hand Therapy Centre, reported;
“Thank you for reviewing Harsimranjip who presented to Westmead Hand Therapy Centre for management and rehabilitation of her left little finger proximal phalanx following a fracture at work on 1/2/2023 and subsequently ORIF procedure on 27/2/2023. Harsimranjip commenced hand therapy 3 weeks post op on 21/03/2023 and treatment comprised of dynamic splinting, range of motion, grade strengthening and desensitisation exercises. Harsimranjip has attended two sessions so far. Harsimranjip currently presents as follows:
1. 4 weeks post-op, nil pain at rest
2. Relative motion splint during day. Dynamic splint while not using left hand.
3. Scar flat, tight, sensitive – managing with regular scar massage, use of silicone products, and desensitisation exericses
4. Mild swelling in left little finger
5. Left little finger AROM:
a. MCPJ: 0/85
b. PIPJ: -15/58
c. DIPJ: 0/45 6.
Function: Harsimranjip is encouraged to use her left hand for light ADLs with her relative motion splint on. She has not returned to work yet. In summary, Harsimranjip is demonstrating some stiffness over the left little finger and sensitivity over the scar, potentially due to lack of use following her operation in late February. I have fabricated her a relative motion splint to encourage PIPJ and DIPJ flexion and encouraged her to use her left hand for light ADLs while wearing the splint.”

From 30 March 2023 onwards, the injured worker was certified by Dr Shukla as having capacity for six hours per day, three days per week. The injured worker was certified as being fit for pre-injury duties on 3 July 2023.

Applicant’s oral submissions

The applicant reiterated its submission that it had offered the injured worker suitable duties. As a result of the inured worker’s failure to take up those duties, it had experienced financial difficulty due to having to pay for a member of staff to replace the injured worker.
The applicant submitted that there had been no explanation as to why the injured worker could not perform light duties. iCare should have pursued this rather than accepting the certificates at face value.
The applicant said it could not understand why a plastic surgeon had performed the surgery to the injured worker’s finger as opposed to a normal procedure being performed.
The applicant said the respondent had miscalculated the dates during which weekly compensation ought to have been paid. The injured worker resigned and declined to perform her one week’s notice. The injured worker said she did not wish to be compensated. Despite this, the respondent had paid her a further $1,500 which should not have been paid.
The applicant said it was happy to meet the respondent half way. It had incurred a lot of costs and lost time as a result of the respondent’s handling of the claim.

Respondent’s oral submissions

The respondent noted the applicant’s obligation under s 155 of the 1987 Act to take out workers compensation insurance. It was the applicant’s failure to comply with that legislation which gave rise to the proceedings.
The respondent summarised the applicable statutory framework, noting in particular that the Commission lacked power to waive the debt. The notice was evidence of the matters set out in that notice.
Many of the applicant’s complaints related to the management of the claim or potential costs savings rather than the applicant’s liability to reimburse the respondent.
With regard to the applicant’s offer of suitable duties, the respondent noted that the injured worker had been certified as having no current work capacity until 19 June 2023. From 20 March 2023 until 9 April 2023, the injured continued to be certified as having an incapacity for work. In that period, the injured worker was certified as having capacity to work less than half of her pre-injury hours.
The respondent submitted that if it was asserted that there were suitable duties which could have been performed in that period, there would need to be evidence of that put before the Commission. In particular, there would need to be medical evidence that the duties offered were within the injured worker’s restrictions. No such evidence had been put before the Commission.
With regard to the treatment expenses, the treating medical evidence indicated that the fracture was still troublesome months after the injury. The applicant had not lodged any evidence to overcome the medical evidence indicating that the surgery was reasonably necessary. There was no evidence to suggest that some other surgeon could have performed the surgery.
The applicant’s liability had not been displaced.

Applicant’s oral submissions in reply

The applicant indicated that it accepted liability in respect of the injury but “queried the route” taken by the respondent.
There had to be some checks and balances on the payment of compensation and it was not clear how the respondent had determined that compensation should continue to be paid even after the injured worker’s resignation.
The case officer did not properly consider whether suitable duties could be performed. All the injured worker had to do was come and sit in the workplace.

Applicant’s written submissions

In written submissions lodged after a transcript of the oral submissions had been made available, the applicant submitted:
“…I do not agree with the account of expenses incurred and I have sought explanation/clarification from iCare, on more than one occasion, but have not received satisfactory response. Therefore, the notice is not valid hence not enforceable. Until and unless a valid notice is issued to me, I am unable to fulfil my obligation to reimburse iCare on the expenses incurred, as required under section 145 of the 1987 Act.”
Acknowledging that the Commission’s jurisdiction was limited to s 145 of the 1987 Act, the applicant purported to submit further evidence in support its claim that the notice was invalid.
The applicant summarised its various communications with iCare regarding the claim, including a phone call with Mr Butcher on or around 27 June 2023. Copies of relevant emails were attached to the submissions.

Respondent’s written submissions

The respondent objected to the applicant’s reliance on additional evidence.
The respondent noted the applicant’s contention that, as it had not received a ‘satisfactory response’ to requests for an explanation or clarification of compensation being paid by the respondent, the notice was not valid or enforceable.
The respondent said that no statutory provision or decision of a court or the Commission had been identified to support the contention that the validity of the notice was dependent on the uninsured employer having a response (that is satisfactory to it) to any queries it has raised in relation to claims management or claim payments.
The issuing of a notice was at the discretion of the respondent. Section 145(1) “required” the uninsured employer to reimburse the Insurance Fund. The notice was valid ab initio subject to the challenge as to liability which was the subject of submissions at the arbitration. The respondent referred the Commission to the authority in Raniere Nominees Pty Ltd v Daley [2005] NSWCA 121.

FINDINGS AND REASONS

Section 155 of the 1987 Act makes it compulsory for an employer to obtain and maintain in force, a policy of insurance for the full amount of the employer’s liability under 1987 Act in respect of all workers employed by the employer for any injury to any such worker.
Part 4 Division 6 of the 1987 Act permits workers who consider that they have a claim against an employer for compensation to make a claim against the Nominal Insurer if the employer is uninsured: s 140 of the 1987 Act.
Sub-section 141(3) provides that if a payment is made in respect of a claim under Division 6, the Nominal Insurer may recover the amount paid from the employer. The process for requiring an uninsured employer to reimburse the Insurance Fund is set out in s 145 of the 1987 Act and requires a notice to be served under s 145(1):
“145 Employer or insurer to reimburse Insurance Fund
(1) The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was—
(a) in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, or
(b) an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.”
Sub-section 145(2) makes provision for the Nominal Insurer to waive an employer’s liability under s 145(1) in certain circumstances.
Sub-section 145(3) provides that a person on whom such a notice has been served may apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.
In hearing such an application, s 145(4) provides that the Commission may make such determination in relation to the application, and such awards or orders as to the payment of compensation or in respect of the injured worker concerned, as the Commission thinks fit. However, s 145(4A) provides that the Commission is not authorised to make a determination that “waives” the liability of an employer or that limits or otherwise affects any function of the Nominal Insurer to decide whether or not any such liability should be waived.
In Ballantyne v WorkCover Authority of NSW[1] (Ballantyne) the Court described the Commission’s function in determining an application under s 145(3) as follows:
“(f) In determining an application under sub-s (3), pursuant to the power conferred by sub-s (4)(a), the function of the Commission is to determine whether the payment made by the Authority was in fact a payment of ‘compensation in accordance with this Act’, which would otherwise have been payable by the employer or its insurer, and also, if the matter were in issue, to determine whether the person served was indeed the relevant employer or insurer of such employer.
(g) If satisfied as to the amount of the payment concerned and the identity of the employer, the Commission would ordinarily make whatever order it thought appropriate to dispose of the application according to law. As now envisaged by sub-s (7), the appropriate order would be that the person served with the notice pay the amount to the Authority by way of reimbursement of the WorkCover Authority Fund, within a specified time.”
[1] [2007] NSWCA 239.
Sub-section 145(5) provides that for the purpose of proceedings in the Commission a certificate certifying that payments were paid to or in respect of an injured worker is evidence of the matters stated in the certificate:
“(5) In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that—
(a) the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b) a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,
is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.”

Validity of the notice

The applicant has asserted that the notice issued under s 145(1) of the 1987 Act in this case is invalid and unenforceable, essentially on the grounds that it requires reimbursement of payments which have not been properly explained, justified or approved by the applicant.
The Court in Ballantyne held that liability under s 145 depends on the following factors:
“(a) was the person properly served with a notice under s 145(1);
(b)     did the notice require payment of an amount not exceeding the payment made by the Nominal Insurer;
(c)     was the person served the employer or an insurer of the employer of the injured worker, and
(d)     was the payment made by the Nominal Insurer a payment of ‘compensation in accordance with this Act’.”
No issue has been taken by the applicant with respect to the service or form of the notice issued pursuant to s 145(1) of 1987 Act. There is no suggestion that the applicant was not the injured worker’s employer. Nor is there any suggestion that the notice required payment of an amount exceeding the payment made by the Nominal Insurer to the injured worker.
The sole basis on which the applicant’s liability may be displaced in the circumstances of this case is therefore by reference to the question of whether the payments made by the respondent were payments of compensation in accordance with the 1987 Act.
As noted by the respondent, there is no statutory provision or court authority to suggest that a notice issued pursuant to s 145(1) is invalid or unenforceable due to a failure on the part of the Nominal Insurer to provide an explanation, justification or seek prior approval from the uninsured employer for the payments made to the injured worker.
The applicant’s complaints with regard to the management and handling of the claim do not form any basis on which the Commission could find the applicant was not required to reimburse the respondent.
I am satisfied that the notice issued on 5 November 2023 was a valid notice issued in accordance with s 145(1) of the 1987 Act.

Were the payments of weekly compensation made in accordance with the 1987 Act?

The applicant does not dispute that the injured worker sustained a compensable injury in accordance with ss 4 and 9A of the 1987 Act for which it is liable. The applicant does, however, dispute the extent and quantification of any incapacity resulting from the injury.
The particulars annexed to the s 145(1) notice and s 145(5) certificate indicate that the injured worker was paid $87.10 per week for the period 6 February 2023 to 26 February 2023. The other materials before the Commission suggest that during this period, the injured worker continued to be paid wages by the applicant.
From 27 February 2023 onwards, the injured worker was paid $763.80 (or 95% of her PIAWE) per week until 9 April 2023 by the respondent. It is these payments which the applicant disputes, on the grounds that the certificates on which the respondent relied were invalid or inaccurately represented the extent of incapacity. In addition, the applicant submits that after 24 March 2023, the injured worker had resigned and had indicated that she did not wish to claim any further compensation.
Liability to pay weekly compensation under the 1987 Act is not tied to the injured worker’s employment status or any expression of intent by the worker. Rather, it arises when incapacity for work has resulted from a compensable injury.
Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable to an injured worker shall include a weekly payment during the incapacity.
The rate at which weekly compensation is payable during the first thirteen weeks (the first entitlement period) is governed by s 36 of the 1987 Act:
“36    Weekly payments during first entitlement period (first 13 weeks)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
The expressions, “no current work capacity” and “current work capacity” are defined in cl 9 of Schedule 3 to the 1987 Act:
“9      Meaning of ‘current work capacity’ and ‘no current work capacity’
(1)     An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2)     An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The expression, “suitable employment” is defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)     having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b)     regardless of—
(i)  whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
Deputy President Roche in Wollongong Nursing Home Pty Ltd v Dewar[2] commented in this regard:
“However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).
The word ‘employment’ is not defined in the legislation. Its common meaning is ‘the state of being employed’. However, ‘worker’ is defined. It means, subject to specified exclusions, ‘a person who has entered into or works under a contract of service or a training contract with an employer’ (s 4 of the 1998 Act). In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.
Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise and Mason P’s reference to the ‘eye of the needle’ test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”
[2] [2014] NSWWCCPD 55.
The evidence before the Commission indicates that the injured worker was certified by her nominated treating doctor as having no capacity to engage in any work until 19 March 2023.
During this period, the injured worker was noted to be experiencing finger pain by her doctor on 20 February 2023. Dr Laniewski performed surgery on the finger on 27 February 2023. The injured worker commenced twice weekly hand therapy on 21 March 2023, approximately three weeks after the surgery.
In his report dated 27 March 2023, Mr Chu noted that the injured worker, at that stage, had nil pain at rest but some stiffness and sensitivity over the post-operative scar. The injured worker was encouraged use her left hand for light activities of daily living.
The injured worker had been certified as having capacity to work five hours per day, two days per week in suitable duties from 20 March 2023 onwards. The certificates of capacity from that date onwards did not specify any restrictions on lifting/carrying, sitting, standing, pushing/pulling, bending/twisting, driving or in any other respect.
The applicant has not presented any evidence, medical or lay, to contradict the evidence as to the extent of the injured worker’s capacity as set out in the State Insurance Regulatory Authority (SIRA) certificates of capacity. Whilst the applicant has proffered an opinion that the injured worker was fit to perform the light duties it had offered, the applicant is not qualified to make that assessment.

Whilst the applicant might, perhaps understandably, perceive that the injured worker could perform the duties offered to her, comprising being present in the workplace to satisfy regulatory obligations, there may have been several reasons why Dr Shukla concluded that the injured worker was not fit to perform that or any other work. These include the experience of pain, the effects of medication and any psychological sequelae of the injury.
While I accept that the certificates of capacity gave little insight as to the actual reasons for the doctor’s certifications, the fact remains, they are the only evidence as to the injured worker’s capacity for work.
In its correspondence to the respondent, the applicant queried the validity of the certificates, noting the lack of explanation and partially incomplete forms. The material before the Commission indicates, however, that the certificates had been verified by the doctor. They are also broadly consistent with the doctor’s estimate on 28 February 2023 that the injured worker could perform some duties after four to six weeks and return to her pre-injury duties after six to 12 weeks. Similarly, the treating evidence confirms that during this period the injured worker continued to experience pain, was using splints and subsequently underwent and was recovering from surgery.
I am not satisfied that there is any evidentiary basis on which to find that injured worker had any greater capacity for work than was certified by her nominated treating doctor in the period form 6 February 2023 to 19 March 2023. I find that the applicant is liable to reimburse the Insurance Fund the payments of weekly compensation made to the injured worker during that period.
I do, however, note that despite being certified as fit to perform some work for 10 hours per week on 20 March 2023, the respondent continued to pay compensation on the basis of no current work capacity between that date and 9 April 2023.
As noted above, the certificates set out no restrictions on the type of work the injured worker could perform. The treating evidence suggested that by 27 March 2023, the injured worker had no pain at rest and was able to use her left hand to perform light activities of daily living. Other than some stiffness and tenderness over the scar, the injury was not identified as being symptomatic.
I am satisfied that in this period, the injured worker had capacity to perform some work for 10 hours per week, consistently with her age, education, skills and work experience, including the work that was offered to her by the applicant.
In these circumstances, s 36(2)(a) of the 1987 Act provided that the injured worker should be paid 95% of the PIAWE, less her “current weekly earnings”. The expression, “current weekly earnings” is defined in cl 9 of Schedule 3 to the 1987 Act as,
“Current weekly earnings, of an injured worker in relation to a week, means whichever of the following is the greater amount—
(a) the worker’s actual gross earnings in respect of that week,
(b) the weekly amount that the worker is able to earn in suitable employment.”
There is no evidence before the Commission to suggest that the injured worker was in receipt of any actual earnings during this period. The evidence indicates that the injured worker was paid an hourly rate of $33.50 when performing work for the applicant.
I am satisfied on the evidence described above that the injured worker’s “current weekly earnings” during the period from 20 March to 9 April 2023 were $335 per week. The rate at which weekly compensation ought to have been paid during that period under the 1987 Act was therefore $428.80, being 95% of the PIAWE rate of $804 less $335.
There will be an order that the amount the applicant is required to reimburse the Insurance Fund is reduced by $335 per week from 20 March 2023 to 9 April 2023, giving a total deduction of $957.14.

Were the medical and related treatment expenses paid in accordance with the 1987 Act?

The only real challenge to the medical and related treatment expenses paid is the applicant’s assertion that the surgery to the injured worker’s finger could have been performed in a “standard” or “normal” procedure at a cost of between $500-$1,500. In other words, it is suggested that the surgery, performed by plastic surgeon Dr Lanieweski, was not “reasonably necessary” as a result of the injury.
Section 60 of the 1987 Act provides:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
In Diab v NRMA Ltd,[3] Roche DP provided a summary of the relevant principles for determining whether treatment can be said to be “reasonably necessary” as follows:
[3] [2014] NSWWCCPD 72.
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[4]
[4] At [88] to [90].
Deputy President Roche commented further:[5]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[5] At [86].
The treating evidence before the Commission indicates that three weeks after the injury, the injured worker was still experiencing pain at her finger, despite conservative treating including splinting. Radiological investigations at that time showed fracture lines still visible. Dr Laniewski explained the need for treatment in his correspondence dated 23 February 2023.
Dr Laniewski was qualified to perform the surgery and the Commission notes that it is not uncommon for plastic surgeons to perform hand surgery.
No evidence has been presented of any alternative, potentially effective, treatment available to the injured worker. I note that the injured worker persisted with conservative treatment for three weeks before surgery was recommended.
The applicant has provided no evidence in support of its assertion that surgery could have been performed in a “standard” procedure at the significantly lower cost of $500 to $1,500. In the absence, for example, of evidence from a doctor or suitably qualified surgeon, I am not satisfied that an alternative, more cost-effective procedure was actually available.
The evidence from the Westmead Hand Therapy Centre suggests the surgery performed was in fact effective in treating the injury.
There is no evidence that the surgery would not be accepted by other medical experts as being appropriate and likely to be effective.
I am satisfied, in all the circumstances, that the surgery performed by Dr Laniewski was reasonably necessary as a result of the injury.
I am satisfied that the applicant is liable for the medical and related treatment expenses paid. There will be an order for the applicant to reimburse the Insurance Fund the amount specified in the s 145(1) notice paid for medical and related treatment expenses.

Other matters

The Commission has, in making the findings above, noted the respondent’s objection to the admission of the new material attached to the applicant’s post-hearing written submissions. The material in question did not, in the Commission’s view, advance the applicant’s claim beyond that which was already before the Commission, nor did it give rise to any prejudice to the respondent. In the circumstances, that material has been admitted in the proceedings pursuant to r 67(4) but has not, for the reasons set out above, altered the Commission’s findings.
The Application lodged in the Commission sought orders for compensation to be paid to the applicant for costs incurred in connection with hiring a member of staff to replace the injured worker after she failed to accept the light duties offered to her.
The claim was not pressed in submissions and it was explained to the applicant that the Commission’s jurisdiction to make orders was confined to a determination of the applicant’s liability in respect of the payments specified in the s 145(1) notice.
Accordingly, the Commission declines to make any order regarding compensation payable to the applicant.

[2024] NSWPIC 277

24 May 2024