Nicolaides v Blacktown City Council

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Nicolaides v Blacktown City Council [2023] NSWPIC 409
APPLICANT:	George Nicolaides
RESPONDENT:	Blacktown City Council
Member:	Brett Batchelor
DATE OF DECISION:	15 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application for review of weekly payments following decision between the same parties which resulted in an award for weekly benefits and section 60 compensation as a result of psychological injury sustained by the applicant worker; submission that an acknowledgement by the applicant during the hearing of the matter that the respondent have credit for payments made to the applicant since he was suspended from work created an estoppel preventing the applicant seeking payment of weekly benefits ordered in the Certificate of Determination (COD) during the same period the applicant received ‘special leave’ from the respondent while it investigated allegations of misconduct by the applicant; Viney v Burwood Council and section 46 considered in respect of the alleged receipt of ‘dual benefits’ during the period that weekly benefits were ordered in favour of the applicant; the respondent submitted Viney could be distinguished and that the applicant suffered no loss during the period he was paid ‘special leave’, therefore he should not receive weekly payments during this period; submission by the respondent that the Commission lacked jurisdiction to hear the current application; the applicant also claimed section 60 expenses for car travel to and from his general practitioner, after having moved out of the area in which that practitioner practised; the respondent opposed this claim, relying inter alia, on section 60(2B); Held – the applicant was not estopped from seeking payment of weekly benefits ordered in the COD during the same period the applicant received ‘special leave’ from the respondent while it investigated allegations of misconduct by the applicant; that the Commission had jurisdiction to reconsider the COD in matter number W395/22; section 57 of the Personal Injury Commission Act 2020 considered; finding that the expenses claimed by the applicant for travel by car to and from his general practitioner’s surgery were not reasonable; the respondent was ordered to pay the weekly benefits awarded to the applicant during the period he was in receipt of ‘special leave’ from the respondent. .
determinations made:	The Commission determines: 1. The Commission has jurisdiction to reconsider the Certificate of Determination dated 15 August 2022. 2. The acknowledgement by counsel for the respondent at the arbitration hearing on 10 August 2022 does not create an issue estoppel preventing the applicant from claiming the weekly benefits for the period from 20 January 2022 to 24 March 2022 awarded to him in the Certificate of Determination dated 15 August 2022. 3. The payment of special leave to the applicant for the period 20 January 2022 to 24 March 2022 does not constitute dual benefits of the same kind being payable by the respondent during and in respect of the applicant’s incapacity for work for the period from 20 January 2022 to 24 March 2022. 4. The respondent is to pay to the applicant weekly benefits in accordance with [7(c)] of the Certificate of Determination dated 15 August 2023 for the period from 20 January 2022 to 24 March 2022 5. The travel expenses claimed by the applicant for travel by motor vehicle from his place of residence to Blacktown and return related to treatment or service rendered by the applicant’s general practitioner in Blacktown necessitates more travel than is reasonably necessary to obtain the treatment or service. 6. The Certificate of Determination dated 15 August 2022 is otherwise confirmed.

STATEMENT OF REASONS

BACKGROUND

This dispute between the parties in this matter comes back again before the Personal Injury Commission (the Commission) pursuant to a Miscellaneous Application (MA) lodged by George Nicolaides (the applicant/Mr Nicolaides) on 6 April 2023 with attachments, which include a Certificate of Determination and Statement of Reasons dated 15 August 2022 in matter number W395/22 (the previous proceedings).
The Certificate of Determination (COD) issued in the previous proceedings contains the following determination made by me:
“1.     The psychological injury sustained by the applicant arising out of or in the course of his employment with the respondent was not wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the respondent with respect to discipline.
2.     The action taken or proposed to be taken by or on behalf of the respondent with respect to discipline was not reasonable.
3.     The applicant had no current work capacity from 24 May 2021 to 4 January 2022.
4.     The applicant has had current work capacity from 5 January 2022.
5.     The applicant's pre-injury average weekly earnings are $1,245.
6.     The applicant's ability to earn in suitable employment from 5 January 2022 is $500 per week.
7.     The respondent is to pay the applicant weekly benefits as follows pursuant to Workers Compensation Act 1987:
(a)24 May 2021 to 23 August 2021 - $1,182.75 per week pursuant to s 36(1);
(b)24 August 2021 to 4 January 2022 - $996 per week pursuant to s 37(1), and
(c)5 January 2022 to date and continuing - $496 per week pursuant to s 37(3).
8.     The respondent is to have credit for payments made to the applicant since he was suspended from work.
9. The respondent is to pay the applicant's costs and expenses pursuant to s 60 of the Workers Compensation Act 1987.”
In the MA the applicant seeks “Review of weekly payments”, details of which are set out under “Matters in Dispute” as follows:
“This Application is made in relation to the Applicant's entitlement to weekly compensation during the periods he was paid 'special leave' by his employer in accordance with Viney v Burwood Council [2021] NSWPIC 236 (8 July 2021). We also make this Application with respect to the Applicant's travel expenses incurred as a result of reasonably necessary medical treatment.”
In the Reply to the MA, after noting the previous proceedings, Blacktown City Council (the respondent) sets out the issues as follows:
“2.    At [8], [98] and [107] of the Certificate, Member Batchelor ordered that the Respondent is to have credit for payments made to the Applicant since he was suspended from work. This was in response to discussions/submissions made by both parties during the Conciliation/Arbitration that the Applicant was suspended on full pay whilst it conducted its investigations into an allegation of sexual harassment and received payments recorded as ‘special leave’ during these periods. The Applicant did not suffer any wage loss during these periods.
3.      The Applicant did not lodge any appeal or re-consideration of the Certificate, and compensation was paid to the applicant in accordance with the orders of Member Batchelor dated 15 August 2022. At [49] of the Certificate, Member Batchelor noted the Applicant's submission that any award for weekly benefits should allow for credit to be given to the Respondent for payments made to him during the period claimed. The Respondent submits the Applicant conceded that the order for re-accreditation was appropriate in the circumstances, noting the Applicant did not suffer any wage loss for the period whilst suspended and in receipt of special leave payments.
4. On 22 December 2022, the applicant made a further claim in reliance upon the decision of Viney v Burwood Council [2012] NSWPIC 236 for additional compensation payments on top of the special leave received, contrary to decision of Member Batchelor. The Respondent refutes the proposition that the decision of Viney has any application to the circumstances of this matter.
5.      The Respondent submits that the applicant is not entitled to further compensation payments for weeks he has already received payment from the Respondent for 'special leave'. There was no wage loss suffered by the Applicant during these periods. The Respondent submits that it has discharged its obligations with respect to the Certificate issued on 15 August 2022 and attended to payment of compensation in accordance with the precise terms of that Certificate which allowed for the credit applied to payments made by the respondent whilst the Applicant was suspended on full pay.
6.      Additionally and/or alternatively, the Respondent submits that the applicant should be estopped from re-litigating this issue in circumstances where the decision relied on by the Applicant was available at the time of the earlier proceedings, and this issue was not raised at the relevant time and no reconsideration or appeal of the determination of Member Batchelor dated 15 August 2022 was made. Rather, the re-accreditation was specifically conceded by the Applicant to be appropriate in the circumstances.
7.      In relation to the travel expenses claimed, the Respondent submits that the travel claimed is not reasonable or within the definition of sections 59 and 60 of the 1987 Act.
8.      The Respondent respectfully requests that this matter be referred to Member Brett Batchelor for determination noting his Certificate issued 15 August 2022.”
The current proceedings were listed before me for a preliminary conference on 9 May 2023. The matter did not resolve at conciliation and the parties were issued with a direction for short outline submissions, drafted in accordance with the details of the applicant’s claim and/or orders being sought by him in the MA, as to whether he is entitled to receive weekly compensation on top of the ‘special leave’ received during certain periods of employment, and if the applicant is entitled to reimbursement of his travel expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) incurred as a result of reasonably necessary travel. The matter was stood over for conciliation/arbitration to 13 June 2023 on the basis of the MA and attachments and Reply and attachments.
The matter did not resolve on 13 June 2023 and further directions were issued for submissions.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Is the applicant entitled to receive weekly compensation in addition to the ‘special leave’ payments received by him during the period in which he was suspended from work with the respondent while it investigated the allegations made against him?
(b)    Is the applicant estopped from seeking weekly payments pursuant to the award dated 15 August 2022 when he was in receipt of the special leave payments?
(c)    Has the Commission jurisdiction to determine the issue referred to in (a) above?
(d) Is the applicant entitled to be reimbursed, pursuant to s 60 of the 1987 Act, for the cost of travel by car from where he now resides in Berkeley Vale to Blacktown to consult his long time general practitioner and return?

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 agreed resolution of the dispute.
Mr Hickey of counsel appeared for the applicant at the conciliation/arbitration on 13 June 2023 briefed by Mr Dougall. The applicant attended. Mr Young of counsel appeared for the respondent briefed by Ms Palamara.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the MA and attached documents;
(b)    Reply and attached documents;
(c)    applicant’s submissions dated 24 May 2023 of Mr Dougall;
(d)    respondent’s submissions dated 6 June 2023 of Ms Palamara;
(e)    respondent’s submissions dated 27 June 2023 of Mr Young;
(f)    applicant’s submissions dated 11 July 2023 of Mr Hickey, and
(g)    respondent’s submissions in reply dated 18 July 2023 of Mr Young.

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

Applicant’s submissions dated 24 May 2023

The applicant asserts that the respondent incorrectly applied a credit to themselves [sic] for periods of special leave utilised by him. This would appear to equate to a period of some 9.8 +weeks for the period 20 January 2022 to 24 March 2022. The summary of payments from the insurer reveals a period of 372.4 hours of special leave credited to the applicant. The applicant notes that he weeks a 38-hour week which would equate to 9.8 weeks claimed for special leave. That would be payable at the rate of $496 per week in accordance with the Certificate of Determination and Statement of Reasons of Member Batchelor dated 15 August 2023.
The applicant submits that at the preliminary conference on 9 May 2023, the representative for the respondent referenced “concessions” made within the transcript of proceedings as well as an estoppel issue arising from such concessions. The applicant said that he was not able to respond to those submissions (at that stage) and reserved the right to respond to those issues once fully particularised.

Respondent’s submissions dated 6 June 2023

The respondent refers to [1], [2] and [8] of the COD dated 15 August 2022 and to the applicant’s claim on 22 December 2022 in reliance on the principles referred to in Viney v Burwood Council[1] for additional compensation payments on top of the special leave received (emphasis in submissions), contrary to the COD dated 15 August 2022. The respondent submits that the matter of Viney has no application in the circumstances of the current matter.
[1] [2021] NSWPIC 236 (Viney).
The respondent submits that in the previous proceedings, Member Batchelor determined at [8], [98] and [107] of the COD that the respondent is to have credit for payments made to the applicant since he was suspended from work.
The respondent submits that this was in response to discussions/submissions made by both parties during the conciliation and arbitration.
The respondent submits that at p 41 of the verified transcript of the proceedings on 10 August 2022, the applicant concedes at paragraph 10 that the respondent is to have credit for any payments.
The respondent submits that the applicant was suspended on full pay whilst it conducted the investigation into an allegation of sexual harassment and received payments recorded as “special leave” during these periods. The applicant did not suffer any wage loss during these periods.
The respondent furthermore submits that the applicant did not lodge any appeal or (application for) reconsideration of the COD, and compensation was paid to the applicant in accordance with the COD. At [49] of the COD, Member Batchelor noted the applicant’s submissions that any award for weekly benefits should allow for credit to be given to the respondent for payments made to the applicant during the period claimed.
The respondent submits that the order for “…re-accreditation was appropriate in the circumstances, noting that the Applicant did not suffer any wage loss for the period whilst suspended and in receipt of special leave payments.”
The respondent submits that the applicant is not entitled to further compensation payments for (the) weeks he has already received payment from the respondent for special leave as claimed. There was no wage loss suffered by the applicant during these periods.
The respondent submits that it has discharged its obligations with respect to the certificate issued on 15 August 2022 and attended to payments of compensation in accordance with the precise terms of the Certificate.
The respondent submits that the applicant is estopped from re-litigating this issue in the circumstances where a decision relied on by the applicant was available at all times of the earlier proceedings and the applicant did not submit a formal reconsideration or appeal of the earlier determination.
The respondent maintains the notice dated 24 October under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) with respect to s 60 travel expenses.
In respect of quantum, the respondent notes that applicant’s claim for weekly compensation is limited to $496 per week for the period 20 January 2022 to 24 March 2022 (emphasis in submissions) when the applicant received special leave payments for a total of 372 hours (nine weeks).

Respondent’s submissions dated 27 June 2023

By way of Background, counsel for the respondent repeats the respondent’s submissions dated 6 June 2023.
In respect of the issue of estoppel, the respondent submits that:
(a)    on 15 August 2022 during conciliation and arbitration, the parties agreed that the respondent have credit for payments made since the applicant was suspended from work;
(b)    based on that agreement, Member Batchelor made an order to that effect, and
(c)    accordingly, there is estoppel akin to judicial estoppel preventing the applicant from seeking to revoke the order made.
On the issue of jurisdiction, the respondent submits that:
(a)    the applicant did not appeal the decision made on 15 August 2022;
(b)    the current proceedings relate to a Miscellaneous Application to “review weekly payments”;
(c)    there is no jurisdiction to review. Even the repealed s 54 of the 1987 Act required proof of a material change in circumstances, and
(d)    the “slip rule” does not apply as there is no obvious error and the respondent does not agree to the proposed order, and the applicant had the opportunity to appeal and failed to do so.
In respect of the issue of s 60 travelling expenses the respondent notes that the applicant claims such expenses from his home in Berkeley Vale to his general practitioner at Blacktown (182km return) at $0.65 per km (MA p 39).
The respondent submits that the travel expenses of 3,402 kms claimed by the applicant is excessive, and not reasonably necessary within the meaning of s 60 of the 1987 Act. The respondent has offered a number of reasonable alternatives to the applicant, including utilising public transport to a maximum of $15 per day and/or seeing a medical practitioner closer to the applicant’s place of residence.
The respondent maintains that the travel claim is not reasonably necessary under s 60(2B) of the 1987 Act.
The respondent also submits that the amount of $0.65 claimed per kilometre by the applicant exceeds the maximum amount that many be claimed as set out in the Workers Compensation Benefits Guideline as of July 2023 (being $0.55 per kilometre).
The respondent notes that it has already paid the applicant $15 per visit claimed based on the NSW Transport Infoline public transport fares from Berkeley Vale to Blacktown, including all connecting bus and train travel. The respondent attaches to its submissions a copy of the remittance for these trips.
The respondent submits that, as set out in the s 78 notice dated 24 October 2022 (MA p 7), it is reasonable to pay s 60 travelling expenses for general practitioner visits on the basis of either:
(a) return car travel to a general practitioner in Berkeley Vale (4.6 km) at $2.52, or
(b) return public transport to Blacktown at $15.

Applicant’s submissions dated 11 July 2023

The applicant responds to the respondent’s submission dated 27 June 2023.
The applicant notes that the primary position of the respondent’s insurer is that he is estopped in the current proceedings from seeking compensation, and, effectively, by extension that the Commission does not hold jurisdiction to deal with the matter by reference to the prior determination. The applicant submits that the basis of that argument is contingent on the interpretation the respondent places upon the term ‘credit for payments made’. The applicant asserts that the payment of ‘special leave’ does not constitute payments made to him in respect of an incapacity of the worker, that payment being made under an industry award or agreement. As a result there can be no ‘credit for payments made’ pursuant to the previous award of the Commission in respect of such payments.

In respect of the nature of the special leave payment, the applicant notes the acceptance by the respondent that payments of “special compensation” were made to him over the period from 20 January 2022 through to 24 March 2022 pursuant to an award or industry agreement whilst he was suspended pending an investigation. That payment was not made in respect of an incapacity of the applicant but rather pursuant to an enterprise agreement giving rise to a ‘special leave’ entitlement in such circumstances.
The applicant notes that in the period from 20 January 2022 to 24 March 2022:
(a)    he was not in a position to return by virtue of his psychological injury as per the determination of Member Batchelor;
(b)    he had not returned to work and was informed that he was suspended;
(c)    from the time he was suspended, in that period:
i.he did not receive payment of his wages;
ii.he did not receive any sick leave payments, and
iii.he did not receive any payments of weekly compensation by the respondent.
Therefore, according to the applicant, his “…entitlement to weekly compensation commences from 8 November 2020 [sic] and there ought to be no re-crediting to the Respondent as there has been no payment made that constitutes payments in respect of incapacity.”[2]
[2] See applicant’s submissions dated 11 July 2023 at [5].
The applicant refers to the point made by Member Isaksen in Viney in circumstances similar to the present. The applicant notes that the Member in that case considered the issue of whether a respondent was entitled to re-credit for payments to the applicant whilst suspended on pay, and determined that there was no such entitlement. The applicant quotes and relies upon excerpts from Viney, which include reference to a decision of (then) Arbitrator Harris in Kirkbride v State of New South Wales (Ambulance Service),[3] and also which includes reference to the decision of (then) ADP Snell in Roads & Traffic of NSW vSmith[4] in which the Acting Deputy President considered s 46 of the 1987 Act dealing with the reduction of weekly benefits to prevent dual benefits.
[3] [2019] NSWWCC 236 (Kirkbride).
[4] [2007] NSWWCCPD 134 (RTA v Smith).
The applicant submits that for the foregoing reasons and noting the reasons of Member Isaksen, the payment of special leave does not meet the definition of income received for work performed and cannot thereby constitute payments for which ‘credit for payments made’ can be ordered.
The applicant submits that, to the extent that the respondent seeks to assert that there has been a concession on the part of the applicant that it was to have credit for payments made, that point misunderstands the nature of the types of payment for which credit can be made. The applicant did concede, as is usually the case in the jurisdiction, that the respondent was to have credit for payments made. That concession, however, was made on the basis of the correct interpretation of the type of payments for which credit could be sought, which did not include ‘special leave’.
In respect of the estoppel argument, the applicant submits that in light of the characterisation of the ‘special leave’ entitlement paid to him, there can be no estoppel against him in seeking to enforce the award previously made. Indeed, the only estoppel that can arise is as against the respondent in seeking to reargue and recast the nature of the ‘special leave’ payments as being payments for which re-credit is available.
In respect of the respondent’s submission that the Commission has no jurisdiction to determine the current issue, for similar reasons as are summarised above, it is in fact the respondent which is prevented from now arguing that the payments of ‘special leave’ constitute payments in respect of incapacity for which credit is to be made. The respondent failed to articulate or make that argument and, moreover, failed to appeal the determination of Member Batchelor.
The applicant seeks payment of compensation to which he is entitled pursuant to the correct characterisation of the leave paid and payments ordered under the prior COD of Member Batchelor.
In respect of the claim for s 60 expenses, the applicant notes that he has been attending on his treating general practitioner since he was 10 years of age, and has a close relationship with him who holds an intimate knowledge of his medical background, personal background and unique circumstances relating to his psychological injury. The applicant’s general practitioner was located within the respondent council’s local government area and, by extension, the local government area which the applicant worked.
The applicant submits that it is therefore not surprising nor unreasonable that he sought treatment from his general practitioner in those circumstances and particularly where:
(a) his psychological injury was emerging in that context, and
(b) he had hoped to recover from his injury and return to work.
The approach of the applicant is entirely reasonable in seeking that treatment and the travel expenses incurred in seeking such treatment is reasonably necessary.
In terms of the respondent’s payment of train and bus travel expenses, such approach would require the applicant to undertake 2.5 hours of travel each way for a medical assessment, over twice as long as his usual journey time. Such an approach is not reasonable.

Respondent’s submissions dated 18 July 2023

The respondent notes that s 46 of the 1987 Act provides for a reduction in weekly payments to prevent dual benefits. It submits that ‘special leave’ can be distinguished from annual leave, long service leave or sick leave. The ‘special leave’ payment effectively represents earnings during the periods of incapacity for work. In the event that credit was not given for these payments, the applicant would receive a dual benefit of the same kind during the relevant period in contravention of s 46. The effect would be to place the applicant in a better financial position than he was prior to the injury. This offends the fundamental principle of compensation to restore the injured worker to his pre-injury status.
The respondent further rejects the applicant’s assertion that there was a misunderstanding as to the nature of the type of payment for which credit can be made. A list of payments was made available to the applicant at the conciliation/arbitration hearing on 10 August 2022 and was again emailed to the applicant’s representatives on 14 September 2022 (Reply pp 76-77). The purpose of this was to confirm the nature of the payments made.
The respondent therefore submits that the applicant was aware of the nature of the payments already made for which it sought credit, which led to the concession made by the applicant that the respondent have credit for payments made since he was suspended from work.
The respondent maintains that the applicant is estopped (akin to judicial estoppel) from seeking the relief sought in these proceedings. The respondent’s submissions on estoppel and jurisdiction are not contingent on the characterisation of the payments received by the applicant.
The respondent maintains it submission distinguishing the facts of this case from those in Viney.
The respondent submits that the applicant’s submissions on s 46 are a “red herring” as the issues of estoppel and jurisdiction are not contingent on payments being made “during and in respect of incapacity for work”.
In respect of the issue of s 60 expenses, the respondent submits that the nature of the applicant’s injury is that of psychological injury, which does not require in person consultation with his general practitioner. Moreover, the respondent submits that there is no evidence before the Commission which suggests that the applicant is unable to undertake telehealth consultations with his general practitioner, or to travel via public transport, should ne continue to elect to see his general practitioner. In such circumstance, the respondent submits that the options set out in the s 78 notice dated 24 October 2022 (MA p 7) are entirely reasonable.
The respondent repeats its reliance on s 60(2B) of the 1987 Act in submitting that the claim for travel from the Central Coast to Blacktown to see a general practitioner is not reasonably necessary.

FINDINGS AND REASONS

Payment of ‘special leave’

Section 46 of the 1987 Act is as follows:
“46 Reduction of weekly payments to prevent dual benefits
(cf former s 13)
(1)    The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment be reduced to prevent dual benefits of the same kind being payable by the employer during and in respect of the incapacity for work.
(2)    Any such order shall have effect according to its tenor.
(3)    This section does not affect the operation of section 49 or 50.”
Section 49 of the 1987 Act provides that weekly compensation is payable to a worker in respect of any period of incapacity even though the worker has received or is entitled to receive in respect of the period any payment, allowance or benefit for holidays, annual holidays or long service leave under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment.
Section 50 of the 1987 Act provides that weekly compensation is payable to a worker in respect of a period of incapacity for work even though the worker has received or is entitled to receive in respect of that period any wages for sick leave under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment.
In Viney, Member Isaksen dealt with a situation of a worker who received payment of salary, full pay, during a period during a period when she was suspended pending the outcome of current disciplinary investigations. It was submitted on behalf of the respondent that there would have to be credit for payments already made, otherwise the applicant worker would be ‘double-dipping’ and there would be an injustice to the respondent. At [178] Member Isaksen said:
“In my view there is no statutory power available to re-credit the respondent for payments made to the applicant while suspended with pay. This particular issue is similar to a dispute which arose in a decision of then Arbitrator Harris in Kirkbride v State of New South Wales (Ambulance Service) [2019] NSWWCC 236, where the worker was paid maternity leave during a period when she was found to be totally incapacitated for work and the employer sought credit for the payment of maternity leave. That application made by the employer was unsuccessful.”
Arbitrator Harris said at [63] in Kirkbride:
“...there is no statutory provision under the 1987 Act to order a re-creditation to the respondent of maternity leave benefits paid under the Award. The statutory powers of the Commission arise under the 1987 Act and the Workplace Injury Management & Workers Compensation Act 1998. If there has been any suggestion of unjust enrichment or receipt of an entitlement not otherwise owing, then that remedy arises in another jurisdiction. There is no statutory power in the Commission to order other than what the applicant is entitled to receive pursuant to the provisions of the 1987 Act.”
Acting Deputy President Snell in RTA v Smith considered whether a settlement for a wrongful dismissal action was a ‘dual benefit’, and referred to the High Court decision of Steggles Pty Ltd v Vandenberg[5], and then said:
“Whilst Steggles dealt with a differently worded section, there are similarities. In section 46, as in the previous section 13, application of the section requires that the amount payable by the employer be related to the worker’s incapacity. Indeed the required connection between the payment and the incapacity is greater under section 46 than its forerunner. Section 13 required that the payment be ‘during the period of his incapacity’, whereas section 46 requires that it be ‘during and in respect of the incapacity for work’ It is impossible to characterise the sum paid by the RTA, in settlement of the wrongful dismissal proceedings, in this way. The precise basis of the payment is unclear from the evidence. The RTA submits it represented a payment pursuant to section 89(5) of the Industrial Relations Act 1996. Assuming this to be so, having regard to the wording of section 89 of that Act, the payment could not possibly be regarded as one ‘in respect of the incapacity for work’. Accordingly, the discretion pursuant to section 46 is not enlivened, and this ground of appeal cannot succeed.”
[5] [1987] HCA 35.
Member Isaksen held at [181] in Viney that the payment by the respondent of salary while the applicant was suspended cannot be regarded as payment in respect of incapacity of the worker, and accordingly s 46 of the 1987 Act did not assist the respondent.
As in Viney, the payment to the applicant of weekly benefits over the period from 20 January 2022 to 24 March 2022 falls within the period when the provisions of s 37(3) of the 1987 Act apply. Clause 6 of Schedule 3 of the 1987 Act states that the term “earnings” is to mean: “the amount that is income of the worker received by the worker for work performed in any employment during the week.” The applicant in this case did not work during the period he was paid special leave.
The applicant in this case was paid special leave over the period from 20 January 2022 through to 24 March 2022 pursuant to an award or industry agreement whilst he was suspended pending an investigation. As submitted by the applicant, that payment was not made in respect of an incapacity of the applicant but rather pursuant to an enterprise agreement giving rise to a ‘special leave’ entitlement in such circumstances. During that time the applicant did not receive payment of his wages, sick leave or any payments of weekly compensation.
The respondent submits that the facts in this case can be distinguished from Viney, and the applicant’s reliance of on that case is a “red herring.” I do not agree. In Viney, the worker received payment of salary whilst she was suspended pending the outcome of disciplinary investigations. That is a similar situation to that in which Mr Nicolaides found himself. I think that it is relevant to consider if the decision in Viney assists the applicant in this case, bearing in mind that it is not binding on me, and that there is a discretion under s 46 to order the reduction of weekly payments “…to prevent dual benefits of the same kind being payable by the employer during and in respect of the incapacity for work.”
The applicant was not suspended because he was incapacitated for work; he was suspended pending an investigation into his conduct. The special leave was not a benefit of the same kind payable by the employer during and in respect of the incapacity for work. Having regard to the facts of this case, I am of the view that the applicant would not be in receipt of dual benefits during the period from 20 January 2022 to 24 March 2022 it he was to be paid the compensation per week ordered for this period in accordance with the COD. The weekly compensation awarded to the applicant for the period in question period is $496.
The respondent submits that in the event that credit is not given for the special leave payment, the applicant is then placed in a better financial position that he was prior to the injury. If he is placed in a better financial position, as Arbitrator Harris pointed out in Kirkbride, there is no statutory power in the Commission to order other than what the applicant is entitled to receive pursuant to the provisions of the 1987 Act.

Estoppel

The respondent submits that the applicant is estopped from re-litigating the issue in circumstances where the decision relied on by the applicant was available at all times of the earlier proceedings and the applicant did not submit a formal reconsideration or appeal of the earlier determination. In the submissions of 27 June 2023 the respondent submits that on 15 August 2022 during conciliation and arbitration, the parties agreed that the respondent have credit for payments made since he was suspended from work. There is no evidence that any such agreement was reached at conciliation on 15 August 2022, and that is not surprising. A member of the Commission has an obligation under cl 6 of Part 5 of Schedule 3 to the Personal Injury Commission Act 2020 (the PIC Act) not to make an award or otherwise determine a dispute without first using his or her best endeavours to bring the parties to the dispute to a settlement acceptable to all of them. This conciliation phase occurs both at the preliminary conference and prior to commencement of an arbitration hearing in the event of failure to reach a settlement. It allows a full and frank exploration of the issues in the case and a free exchange of views between the parties. These events are not transcribed unless requested by the parties.[6]
[6] See Fairfield City Council v Comlekci [2023] NSWPICOD 45 at [8].
To the extent that there was any agreement as such between the parties during arbitration, this appears from the transcript, relevant parts of which are set out hereunder.
The respondent submits that, based on that “agreement”, I made an order to that effect, and that accordingly there is an estoppel akin to judicial estoppel, preventing the applicant from seeking to revoke the order made.
I am not sure what the respondent means by the term “judicial estoppel”. The respondent did not expand on that submission. It appears to me that the respondent is referring to issue estoppel rather than res judicata. Fullagar J discussed these two terms in Jackson v Goldsmith[7] when he said at p 466-467:
“The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy …”
…
“The rule as to issue estoppel is generally stated in the words of Lord Ellenborough in Outram v. Morewood (1803) 3 East, at p 355 (102 ER, at p 633). His Lordship said that parties and privies are ‘precluded from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them has been, on such issue joined, solemnly found against them.’ This is, I think, a true case of estoppel, analogous to estoppel by deed and estoppel by representation. The same rule was concisely stated by Dixon J. in Blair v. Curran (1939) 62 CLR, at p 531 where his Honour said: - ‘A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.’"
…
“In the second place, it follows from the very nature of the difference between the plea of res judicata and the plea of issue estoppel that different materials are relevant in each case. Where the plea is of res judicata, only the actual record is relevant. Where the plea is of issue estoppel, any material may be looked at which will show what issues were raised and decided. Reasons given for the judgment pronounced are likely to be particularly important for this purpose: see Ord v. Ord (1923) 2 KB, at p 440 and Marginson v. Blackburn Borough Council (1939) 2 KB, at p 437. Both those cases were cases of issue estoppel and were clearly treated as such, though I think, with great respect, that both illustrate the unfortunate absence of a clear legal terminology, to which I have already referred.”
[7] [1950] HCA 22; (1950) 81 CLR 446.
Johnson J in Kuppers v New South Wales Fire Brigades[8] said at [12] and [13]:
“12 It is clear that a court, in determining whether an issue estoppel has been made out is entitled to look at the record, including the reasons for judgment, of the court whose determinations in the first proceedings are said to create the estoppel in order to see what was actually decided: Egri v DRG Australia Ltd(1988) 19 NSWLR 600 at 607F. In R v Humphrys(1977) AC 1 at 41, Lord Hailsham observed, in this context, that ‘the court will inquire into realities, and not mere technicalities’.
13 A court, in ascertaining whether a finding has been made on which an estoppel is raised, is entitled to look not only at the record, but also at any material that shows what issues were raised and decided: Jackson v Goldsmith[1950] HCA 22; (1950) 81 CLR 446 at 467; Rogers v The Queen(1994) 181 CLR 251 at 263. It is permissible to look at the evidence in the first proceedings to show what issues were decided: Ord v Ord(1923) 2 KB 432 at 442; Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2)[1967] 1 AC 853 at 965; Murphy v Abi-Saab(1995) 37 NSWLR 280 at 288; Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed, 1996, paragraph 204. Accordingly, it is permissible to consider the transcript of the first proceedings, together with the other materials tendered, to show what issues were decided.”
[8] [2005] NSWSC 193.

Relevant parts of the transcript of the hearing on 10 August 2022 are on pp 40-41 of such transcript as follows:
“MEMBER: So you would say – you’d be claiming the weekly award on the basis of no capacity for work at 80 per cent of the - - -
MR MORGAN: Yes – 1265.70, Member.
MEMBER: 1278, is that what you’re saying?
MR MORGAN: 1265.70.
MEMBER: 1265. And he wasn’t paid anything at all, so there’d be a section 36 award if there was an award in his favour, from what that date?
MR MORGAN: From the date he goes off – well, from the date of claim with the respondent, you have credit with respect to any payment claims from the worker..(not transcribable 01.23.43)..
MEMBER: And the date claimed is the 24th of May?
MR MORGAN: Yes.
MEMBER: So it would be section 36, for 13 weeks, from the 24th of May.
MR MORGAN: It’s, in my submission, Member, $1214.44.
MEMBER: 1214.44. That’s the 95 per cent – yes. Or 90 – 95 or something.
MR MORGAN: And otherwise, it would be $1012.56.
MEMBER: The 80 percent.
MR MORGAN: 80 per cent of that. The only other piece of material that I’d draw your attention to, Member, in the evidence, is the attendance on the GP - - -
MEMBER: Before we get off that. So you’re advocating a figure of $1265.70, and the respondent is advocating a figure of $1225.03, I think. So essentially they’re $40 apart, is that right? O.K.
MR DODD: Well, I don’t have any – I don’t know how they involved the figure - - -
MEMBER: No – well, anyhow, I’ll deal with that as I see fit. Now, you’re going on to something else?”[9]
[9] Reply pp 65-66.
That discussion between Mr Morgan, counsel for the applicant, and me commences with reference to “…weekly award on the basis on the basis of no capacity for work at 80 per cent of the - - -“, and proceeds with reference to figures of “1265.70”, “1278”, “1265.70” again, and then reference by me to a figure of “1265”, followed by the comment:
“And he wasn’t paid anything at all, so there’d be a section 36 award if there was an award in his favour, from what that date?”
Mr Morgan then says:
“From the date he goes off – well, from the date of claim with the respondent, you have credit with respect to any payment claims from the worker..(not transcribable 01.23.43)..”
That is the statement relied upon by the respondent as an acknowledgement by the applicant that the respondent is to have credit for the special leave payments it made to the applicant. That is the basis on which [8], [49], [98], and [107] were inserted in the COD and Statement of Reasons.
The subsequent discussion referred to in the quotation from the transcript, also involving Mr Dodd counsel for the respondent, is relates to the differing figures put forward by the applicant and respondent in respect of pre-injury average weekly earnings.
It is apparent from the foregoing that the discussion between Mr Morgan and me as to the award of weekly benefits should the applicant be successful in his claim was concerned with any weekly benefits to which the applicant may be entitled to. It proceeded on the basis that he had received nothing from the respondent from the date he went off work, 24 May.
In that circumstance I do not think that the acknowledgement given by Mr Morgan created an issue estoppel preventing the applicant from claiming the weekly benefits for the period from 20 January 2022 to 24 March 2022 awarded to him in the COD.

Jurisdiction

The applicant lodged a MA to commence the current proceedings on the Commission’s “Generic Form” dated 4 April 2023 seeking “Review of weekly payments.” The “Matters in Dispute” are set out in [3] above. The “Claim Details and/or Orders Sought” are as follows:
“We assert the Applicant is entitled to receive weekly compensation on top of the 'special leave' recieved [sic] during certain periods of employment.
We also assert the Applicant is entitled to reimbursement of his travel expenses incurred as a result of reasonably necessary travel expenses.”
The “Submissions in Support” contained a reference to p 9 of the attachments to the MA, a letter from the applicant’s solicitors to the respondent dated 21 December 2022 enclosing a supplementary statement of the applicant, COD dated 15 August 2022, and a wage reconciliation. The author of the letter requested that the respondent attend to payment of the applicant’s benefits in accordance with the COD, after which the following paragraphs appeared:
“Failing this, proceedings may need to be commenced in the Local Court for recovery of the amounts ordered to be paid with interest. We are most hopeful to avoid this course of action and would be grateful for your response as soon as possible.
Separately, with respect to travel expenses incurred as a result of reasonably necessary medical treatment, we draw your attention to the enclosed Supplementary Statement of George Nicolaides dated 21 December 2022. We are instructed that our client has consulted with his treating medical professionals for much of his life and would not be comfortable consulting with different doctors.
We therefore take this opportunity to request a review of your decision and look forward to hearing from you within the prescribed time period.”
The response from the respondent on the “Form 2A - Reply to Application to Resolve Dispute” dated 27 April 2023 is set out at [4] above, clause [8] of which contains a request that the matter be referred to me for determination, noting the COD issued 15 August 2022.
Section 57 of the PIC Act is as follows:
“57 Reconsideration of decisions of Commission
(1)     The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.
(2)     If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may—
(a) alter the decision to correct the error, or
(b) direct a registrar to alter the decision to correct the error.
(3)     Without limiting subsection (2), if the decision is contained in a certificate, the President may—
(a) issue a replacement certificate with the error corrected, or
(b) direct a registrar to issue a replacement certificate with the error corrected.
(4)     If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5)     If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6)     Examples of obvious errors in a decision are where—
(a) there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision and the stated reasons.”
Section 57(1) replaced the former s 350(3) of the 1998 Act which was considered by (then) Acting Deputy President Roche at [58] in Samuel v Sebel Furniture Ltd.[10] It is accepted by the Commission that the observations of Roche ADP are relevant to the consideration of s 57(1) of the PIC Act. They are as follows (omitting authorities with the exception of Anshun):
[10] [2006] NSWWCCPD 141 (Sebel).
“58. Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:
1.the section gives the Commission a wide discretion to reconsider its previous decisions;
2.whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include ‘an award, order, determination, ruling and direction’. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3.whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration;
4.one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely;
5.reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result;
6.given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7.depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd[1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8.a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration, and
9.the Commission has a duty to do justice between the parties according to the substantial merits of the case.”
Items [1], [2], [3], [4] and [9] of the abovementioned observations of Roche ADP are in my view relevant to the current proceedings, if it is accepted that the applicant’s MA in these proceedings can be regarded as a request pursuant to s 57 of the PIC Act. Item [6] is no longer relevant, given that s 352(5) of the 1998 Act now provides that an appeal to a presidential member of the Commission from a decision of a non-presidential member is:
“…limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The respondent makes the point that the applicant did not appeal against my determination in the COD on the basis that “…the re-accreditation was specifically conceded by the Applicant to be appropriate in the circumstances.” Having regard to my findings in [78]-[79] above, I am not satisfied that such is the case.
Section 42(1) of the PIC Act defines the guiding principle (emphasis in legislation) for the PIC Act and Commission rules, in their application to proceedings in the Commission, “… is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.”
Section 3 of the PIC Act sets out the objects of the PIC Act which include:
“(c) to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.”
In the Reply the respondent requests that the issues currently in dispute between the parties, that is the ‘special leave’ issue, and also the issue in respect of the s 60 travel expenses for the applicant to see his general practitioner, be referred to me for determination.
I agree with the respondent’s submission that the “slip rule” (see s 57(2) and (6) of the PIC Act) does not apply.
The respondent refers to the former s 54 [sic, 55] of the 1987 Act, which has no application to the current proceedings.
In my view, having regard to what is now in issue between the parties and the provisions of the PIC Act, the Commission has jurisdiction to determine the current matters in dispute between the parties. I accept that the letter dated 21 December 2022 referred to at [81] above and the MA can be regarded as a request pursuant to s 57(1) of the PIC Act.
In respect of item [3] of the observations of Roche ADP in Sebel, I do not find that there has been any undue delay in bringing the matter back before the Commission. As to item [4], the current dispute is the third time the matter has been before me, with the brief history of the matter being set out in [1] of the Statement of Reasons attached to the COD. Hopefully, it will be the last time the matter is before the Commission.

Section 60 expenses

The respondent relies upon s 60(2B) of the 1987 Act which states:
“The worker’s employer is not liable under this section to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.”
The respondent’s position is set out in the s 78 notice dated 24 October 2022 attached to the MA as follows:
“Your claim is declined on the following basis:
Council is only required to reimburse you for reasonably incurred travel expenses while attending medical treatment.
As Council is of the view that you can obtain the same level of service within your locality but you opt to continue to travel to Blacktown for your GP reviews, it has undertaken a review of your request and has identified there are several Medical Centres available in Berkley Vale which would reduce your travel considerably.
As such, Council is prepared to reimburse your current travel expenses and any future expenses for your GP reviews as follows:
Option 1 - Return travel from your home 3 Taroona Avenue, Berkley Vale to Berkley Vale
Medical Centre, 10 Lorraine Avenue, Berkley Vale via car (4.6 klm’s) = $ 2.53
Option 2 – Return travel from your home 3 Taroona Avenue, Berkley Vale to Dr Chandra rooms at 134 Stephen Street, Blacktown via public transport = $15.00.”
The respondent’s submissions are summarised at [55] above.
At [76]-[90] in Diab v NRMA Ltd[11] Deputy President Roche discussed the meaning of the term “reasonably necessary”, referring to a number of well-known authorities decided by Burke CCJ in the Compensation Court of NSW, namely:
(a)    Rose v Health Commission (NSW);[12]
(b)    Bartolo v Western Sydney Area Health Service;[13]
(c)    Pelama Pty Ltd v Blake,[14] and
(d)    Wall v Moran Hospitals Pty Ltd t/as Annandale Nursing Home.[15]
The Deputy President also referred to what Grove J said in Clampett v WorkCover Authority (NSW)[16] in the context of a claim for proposed home modifications for a paraplegic.
[11] [2014] NSWWCCPD 72 (Rose).
[12] [1986] NSWCC 2; (1986 2 NSWCCR 32 (Pelama).
[13] [1997] NSWCC 1; 14 NSWCCR 233.
[14] [1988] NSWCC 6; (1988) 4 NSWCCR 264.
[15] Unreported, Compensation Court of NSW, 30 June 2003 (Wall).
[16] [2003] NSWCA; (2003) 25 NSWCCR 99 (Clampett).
Grove J, referred to the dictionary definitions of “necessary” as being “‘…indispensable, requisite, needful, that cannot be done without’ (Shorter Oxford English Dictionary, 3^rd ed) and ‘that cannot be dispensed with’ (Macquarie Dictionary).” He then said that the essential issue is what effect flows from conditioning such qualities as ‘reasonably’, and at [23]:
“The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
Deputy President Roche noted that Burke CCJ in Wall acknowledged that, contrary to Rose and Pelama, Clampett held that the word “reasonably” was “effectively used as a diminutive and moderated the effects of the word “necessary.”
In this case there is no suggestion that the applicant is not able to travel by public transport to see his general practitioner in Blacktown should he wish to maintain that contact. There is no suggestion that another general practitioner who the applicant might consult in the area where he lives could not properly advise him, with the assistance if necessary of records obtained from the Blacktown doctor. There is also no suggestion that applicant is unable to undertake telehealth consultations with his general practitioner, or that these are not appropriate. In essence, the applicant submits that it is not unreasonable that he continues to consult his long tine general practitioner, notwithstanding that he has now moved out of the area of his doctor’s practice, and that it is unreasonable to undertake an additional two and a half hours of travel to do so.
In my view, the expenditure claimed by the applicant to travel to and from Blacktown by motor vehicle should not be borne by the respondent. If the applicant wishes to continue to consult his Blacktown general practitioner, it is not unreasonable that he travel by public transport. In terms of s 60(2B) of the 1987 Act, the travel expenses related to treatment or service given or provided in Blacktown necessitates more travel than is reasonably necessary to obtain the treatment or service.

SUMMARY

My findings are as follows.
The Commission has jurisdiction to reconsider the COD.
The acknowledgement given by counsel for the respondent at the arbitration hearing on 10 August 2022 does not create an issue estoppel preventing the applicant from claiming the weekly benefits for the period from 20 January 2022 to 24 March 2022 awarded to him in the COD.
The payment of special leave to the applicant for the period 20 January 2022 to 24 March 2022 does not constitute dual benefits of the same kind being payable by the respondent during and in respect of the applicant’s incapacity for work for the period from 20 January 2022 to 24 March 2022.
The respondent is to pay to the applicant weekly benefits in accordance with [7(c)] of COD for the period 20 January 2022 to 24 March 2022.
The travel expenses claimed by the applicant for travel by motor vehicle from his place of residence to Blacktown and return related to treatment or service rendered by the applicant’s general practitioner in Blacktown necessitates more travel than is reasonably necessary to obtain the treatment or service.
The COD is otherwise confirmed.

[2023] NSWPIC 409

15 August 2023