Schweikert v State of New South Wales (Mid North Coast Local Health District)
[2025] NSWPIC 394
•11 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Schweikert v State of New South Wales (Mid North Coast Local Health District) [2025] NSWPIC 394 |
| APPLICANT: | Jane Ellen Schweikert |
| RESPONDENT: | State of New South Wales (Mid North Coast Local Health District) |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 11 August 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; weekly payments and medical expenses claim; the applicant suffered an accepted left shoulder injury in the course of her employment; claimant also claimed a cervical spine in jury in the nature of an aggravation to underlying pathology which was disputed; Held – the applicant suffered cervical spine and left shoulder injury in the course of her employment with the respondent; as a result of her injury the applicant suffered ongoing partial incapacity for the period claimed; the surgery carried out to the applicant’s neck was reasonably necessary as a result of her injury; the respondent is to pay the applicant weekly compensation on an ongoing basis in respect of a partial incapacity, and for the costs of and incidental to the neck surgery. |
| DETERMINATIONS MADE: | The Personal Injury Commission determines: 1. The applicant suffered injury to her neck and left shoulder in the course of her employment with the respondent with a deemed date of injury of 22 May 2023. 2. As a result of her injury, the applicant has been partially incapacitated for employment from 3. At the date of her injury, the applicant’s pre-injury average weekly earnings were $2,164.46, subject to periodic indexation from time to time. . 4. Pursuant to s 37 of the 1987 Act, the respondent is to pay the applicant weekly compensation as follows: (a) from 2 February 2024 to 31 March 2024 at the rate of $1,291.02 per week; (b) from 1 April 2024 to 30 September 2024 at the rate of $1,339.02 per week; (c) from 1 October 2024 to 31 March 2025 at the rate of $1,371.02 per week, and (d) from 1 April 2025 to date and continuing at the rate of $1,379.02 per week. 5. As a result of her injury, the applicant underwent a C4/5 and C5/6 cervical discectomy and fusion at the hands of Dr Siu. 6. The surgery performed by Dr Siu was reasonably necessary as a result of the applicant’s injury. 7. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987, including but not limited to the costs of and incidental to the surgery carried out by Dr Siu. A brief statement is attached setting out the Personal Injury Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
On 22 May 2023 the applicant, Jane Ellen Schweikert suffered an accepted injury to her left shoulder in the course of her employment as an enrolled nurse with the Mid-North Coast Local Health District (the respondent).
The applicant also claims to have suffered an injury to her cervical spine by way of aggravation of an underlying disease process (s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act)).
The applicant seeks payment of weekly compensation from 2 February 2024 to date on the basis she is totally incapacitated as a result of her injuries. The applicant also claims the cost of a cervical fusion which was carried out by Dr Siu, neurosurgeon on 11 November 2024.
The respondent disputes liability in relation to the applicant’s cervical spine, alleging there was no work-related injury to that body system. Additionally, the respondent alleges the cervical fusion surgery was neither reasonably necessary nor brought about as a result of any work injury.
The factual background to the matter is somewhat complicated by the applicant having suffered numerous prior motor vehicle accidents together with a serious surf boat incident in 2008. As a result of the latter incident, the applicant was, at the time of the injurious event at issue, in receipt of benefits pursuant to the Workers Compensation (Bushfire Emergency and Rescue Services) Act 1987 (the Rescue Services Act).
The respondent alleges that as a result of the payments to the applicant under the Rescue Services Act, any award of weekly compensation in these proceedings should be reduced to prevent dual benefits of the same kind being payable by the respondent during and in respect of the applicant’s incapacity (s 46 of the 1987 Act).
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered an injury to her cervical spine;
(b) whether the applicant has suffered incapacity for employment during the period claimed, and if so to what extent;
(c) whether the cervical fusion surgery was reasonably necessary as a result of the applicant’s injury;
(d) the applicant’s pre-injury average weekly earnings (PIAWE), and
(e) the effect, if any, of the operation of s 46 of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (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.
On 19 February 2025, the matter was listed for preliminary conference before me. At that conference, the respondent sought the matter be struck out, and orders were therefore made for written submissions on that application. After receipt of those submissions, on
19 March 2025 a Certificate of Determination and Statement of Reasons was issued refusing the application to strike out the proceedings.The parties then attended a hearing before me on 23 May 2025 and 6 June 2025. On those occasions, Mr Hickey of counsel appeared for the applicant and Mr Robison of counsel appeared for the respondent.
At the conclusion of the hearing, directions for written submissions were made in relation to the application of s 46 of the 1987 Act. The parties lodged and served written submissions in accordance with that timetable.
A Certificate of Determination in this matter was originally issued on 15 July 2025. That certificate contained directions for the lodging of source material in relation to the applicant’s PIAWE together with written submissions. Those Directions were issued in error, as documentation which had been filed by the respondent on 10 April 2025 containing relevant source material during the proceedings had been overlooked. Upon that error being identified, the Certificate of Determination was rescinded.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attachments;
(c) applicant’s Application to Lodge Additional Documents (ALAD) dated
15 May 2025and attachments;(d) applicant’s ALAD dated 20 May 2025 and attachments;
(e) respondent’s ALAD dated 10 April 2025 and attachments, and
(f) respondent’s ALAD dated 16 May 2025 and attachments.
Additionally, the parties’ written submissions lodged in accordance with the Commission’s directions have been taken into consideration.
Oral evidence
There was no oral evidence called for hearing.
FINDINGS AND REASONS
Whether the applicant suffered a neck injury
The applicant carries the onus of proving she suffered an injury to her cervical spine. As Mr Hickey made clear at the hearing, the applicant’s claimed injury was in the nature of an aggravation. As such, the provisions of s 4(b)(ii) of the 1987 Act apply.
This being so, the applicant must demonstrate her employment was the main contributing factor to the aggravation of any underlying condition in her cervical spine.
As with all questions of causation in a workers compensation context, this issue must be decided on a commonsense basis having regard to the totality of the evidence, both lay and medical: (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang)).
In evaluating the cause of injuries in the nature of aggravation, it is important to keep in mind the injury consists of the aggravation itself, and not the underlying pathology which has been aggravated: see for example Kelly v Western Institute NSW TAFE Commission [2010] NSWCCPD 71, where Deputy President Roche said at [66]:
“An aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms (Federal Broom Co Pty Ltd v Semlitch) (1964) 110 CLR 626)” (Semlitch).
There is a long line of authorities in the Commission and its predecessors to the effect the matter to which employment must be the main contributing factor is the aggravation of the disease process at issue. This approach is consistent with Semlitch and has been adopted in decisions such as Ariton Mitic v Rail Corporation of NSW (Matter No. 8497/2013)
8 April 2014 and Mylonas v The Star Pty Ltd [2014] NSWWCC 174.The approach of the Commission and its predecessors is consistent with the decision of the Court of Appeal in Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 (Mecha), where the Court of Appeal held (per Sheller JA at 616) that injuries in the nature of an aggravation “should be construed as not referring to something which is an injury independently of its aggravating effects on previously existing disease, but is being confined to what are entirely injuries by aggravation”.
It can therefore be said that the proper test is whether the aggravation has impacted the individual concerned. It is not necessary for the particular disease itself to be made worse: Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132 (Raymond). In Raymond, Roche ADP (as he then was) was satisfied that, on whole of the evidence, it was open to the arbitrator to conclude that the worker suffered an aggravation of his occupational asthma, in the sense that the symptoms increased and became more serious whilst employed.
In AV v AW [2020] NSWCCPD 9, Snell DP held the test of main contributing factor is more stringent than that of substantial contributing factor which is contained in s 4(a) of the 1987 Act. The Deputy President noted the requirement in s 4(b) of the 1987 Act that employment be “the main contributing factor to… an aggravation” permits the existence of only one such factor. The test involves a more stringent connection with employment than the requirement of a substantial contributing factor. It is therefore clearly established there can only be one main contributing factor to an injury.
In this matter, the factual background of the applicant’s condition is somewhat complicated by her having suffered three motor vehicle accidents when she was a child. Additionally, in 2008 the applicant suffered a serious boat accident whilst working as a volunteer surf lifesaver. In her statement, the applicant said:
“7. ... I injured both my hamstrings and my left knee in that accident. I made a claim for workers compensation which was accepted by Surf Life Saving NSW. I have had a number of surgeries to repair my hamstrings with Dr Darrin Marshall and left knee meniscus. And in 2020, I had a left total knee replacement surgery with Dr David Wood. My treatment and surgeries have been paid for as part of that claim. I have also experienced back pain since that accident as I walked with a limp. My right knee has also become very painful as I have been favouring it for several years due to the weakness and restrictions in my left knee. Dr Wood has now advised me that I will need to have a right total knee replacement as well.”
The applicant also deposed to having injured her right shoulder whilst working at a retirement village in July 2013. She had some time off work and had a right shoulder arthroscopy at the hands of Dr Jovanovic. The applicant conceded she had some neck pain after this injury but made a reasonable recovery and returned to work at the nursing home. According to her evidence, she did not recall having any significant ongoing problems with her neck or left shoulder and arm prior to working with the respondent.
At [11] to [17] of her statement, the applicant sets out the nature and conditions of her employment. What is apparent is the applicant carried out repetitive and heavy work in the course of her employment with the respondent. No attack was made by the respondent on the version of her duties provided by the applicant. As such, I accept they were as set out in her statement.
On 22 May 2023, the applicant was caring for several patients in the bariatric ward of the hospital where she was working. She stated she recalled doing a lot of lifting and physical assistance on that day, and as the day went on, she noticed she was getting pain in her neck and left shoulder which became increasingly painful as her shift proceeded. She reported this pain to her supervisor, Ms Barnes.
The applicant first saw her general practitioner (GP) on 26 May 2023 in relation to the injury at issue and alleges she referred to problems with both her shoulder and her neck.
For the applicant, Mr Hickey noted that although there had been instances of prior injuries including to both shoulders, the applicant was able to carry out her heavy and repetitive work until the injurious event at issue. He noted there was a mention in the GP clinical records on 27 June 2022 of right neck pain since the previous day and submitted this was evidence of an aggravation caused by work to the applicant’s neck.
This clinical entry records the applicant’s neck pain as having started at work following the movement of patients. Swelling to the right side at the base of the applicant’s neck was noted.
On 10 November 2022, the applicant underwent an MRI of her cervical spine which demonstrated arthropathy on the right side and moderate foraminal narrowing at C3/4, moderate bilateral foraminal narrowing with central canal narrowing at C4/5, severe bilateral foraminal narrowing at C5/6. GP records from November 2022 also confirmed the presence of ongoing issues with the cervical spine without radicular symptoms at that time.
In support of her claim of cervical spine injury, the applicant relies on a number of treating practitioners, together with reports from her Independent Medical Examiner (IME), Dr Hopcroft. Broadly speaking, this medical evidence and the manner in which it came into being can be summarised as follows.
As noted, the GP records show a visit on 26 June 2022, a year after the applicant commenced her employment, with complaints of right-side neck pain which commenced while moving patients. There is also a right shoulder injury referred to at this time, and an MRI in November 2022 showed the existence of cervical canal narrowing with possible nerve involvement. The presence of that underlying pathology is not in dispute.
After the development of symptoms relating to the condition at issue on or about
22 May 2023, the applicant attended her GP four days later and complained of left shoulder pain. She was referred for an ultrasound and X-ray. She again attended on 14 June 2023, at which time the GP recorded symptoms consistent with cervical radiculopathy. She was referred to Dr Kennedy, orthopaedic surgeon.The applicant consulted Dr Kennedy on 11 August 2023. He confirmed the left shoulder SLAP tear, however, was of the view the applicant’s shoulder symptoms were caused by pathology in her cervical spine. He recommended she consult a spinal surgeon, noting there were no neurosurgeons in the Coffs Harbour region.
On 29 August 2023, the applicant consulted Dr Sherlock, orthopaedic surgeon. He also opined her symptoms were emanating from the neck rather than the shoulder and said the applicant would benefit from review by a neck surgeon.
The applicant was then referred to Prof Stoodley, neurosurgeon, who she consulted in October 2023. Prof Stoodley noted a consistent history of neck and left upper limb pain, with paraesthesia into the thumb and index finger. He recorded the onset of the symptoms coincided with heavy and repetitive duties as a nurse and recommended surgical intervention.
This diagnosis was confirmed after a further examination on 8 May 2024 by Dr Siu, a neurosurgeon from Prof Stoodley’s practice, at which time a CT guided foraminal injection was recommended.
The applicant came to fusion surgery at C4/5-C5/6 at the hands of Dr Siu on
11 November 2024. Dr Siu sought payment for that surgery by the respondent’s insurer, which was declined. The applicant has, by all reports, had a good outcome from the surgery.Dr Hopcroft, IME, has also provided three reports in which he supports the view of the applicant’s neck issues relate to her employment, noting her underlying pathology only became symptomatic once she began working with the respondent.
In summary therefore, the applicant’s GP accepted her symptoms arose from her employment. She was referred to an orthopaedic surgeon who opined her symptoms were due to a neck injury, not her shoulder. A second orthopaedic surgeon confirmed this to be the case. The applicant then consulted no less than a professor of neurosurgery who agreed her issues were caused by her neck, accepted her version of their onset arising from heavy work as a nurse with the respondent and noted surgery may be necessary. A second neurosurgeon from that professor’s practise agreed, carried out a cervical fusion and plainly thought the problems were work-related, as he attempted to bill the respondent for the procedure.
Against this evidence, the respondent offers the opinion of Dr Walker, IME, who states the requirement for surgery was brought about by the underlying pathology in the applicant’s neck rather than any work-related aggravation.
Dr Walker provides this opinion without, in my view, adequately explaining why this is the case. The applicant does not resile from the underlying pathology in her neck. However, there is no evidence which points to it being symptomatic until she commenced carrying out her heavy duties as a nurse.
It is axiomatic to say symptomology, not pathology, necessitates treatment. A worker may have underlying pathology in a given body system for many years which is asymptomatic until a precipitating event or series of events causes the onset of symptoms, at which time they require either conservative treatment and/ or surgery. Such a course of events is well known and widely accepted not only in this jurisdiction, but more broadly.
Dr Walker’s views seem to fly in the face of the accepted understanding of injuries in the nature of aggravations. In cases involving such injuries, as previously stated in these reasons, it is necessary to examine what has been caused by an aggravation itself rather than any underlying condition. Dr Walker does not make this important differentiation in his report.
It is trite to say any requirement for surgery is brought about by the presence of some pathology, as absent such pathology there can be no onset of symptoms to or in it.
However, if the mere presence of underlying but previously asymptomatic pathology is said to be the cause of a requirement for surgery, it follows treatment can never be said to be necessary because of an aggravation to the pathology. Such a conclusion flies in the face of long-standing authority which has its genesis in the High Court’s decision in Semlitch, referred to earlier in these reasons.
In my view, the evidence in this matter overwhelmingly supports a finding of injury in the nature of aggravation to the applicant’s neck, and it is apparent the symptomology of that aggravation has made a material contribution to the requirement for surgery, which is all that is required to satisfy s 60 of the 1987 Act.
It follows that in a claim for medical expenses where both an aggravation and the underlying condition have played a part in causing the need for surgery, the aggravation at issue must have made a material contribution to the necessity of the procedure. It is long settled that such a contribution satisfies the “as a result of the injury” requirements of s 60 of the 1987 Act.
Capacity for employment
Having found the applicant’s neck condition was brought about by a work injury, and noting the acceptance of her left shoulder condition, I have no difficulty accepting the applicant has, for the period claimed, been incapacitated for employment.
The applicant’s wages schedule lodged in her ALAD dated 15 May 2025 claims weekly payments from 22 May 2023. At the hearing, the claim from that date was not pressed, and the applicant claimed only weekly payments from 2 February 2024 to date and continuing.
There is no issue the applicant has not worked for the entirety of the period claimed.
The respondent claims the applicant has had capacity for employment during the period claimed. Mr Robison also submitted that if the presence of a neck injury was accepted, the claim for weekly payments should be for a closed period.
In her statement, the applicant noted at [44] she had returned to work for a brief period in around August 2023. However, due to pain and physical restrictions in her neck and left shoulder, she was unable to keep working.
Mr Robison submitted that given the applicant has had a good recovery from her neck surgery, she ought to be able to work in some capacity.
In my view, that submission is well put and broadly accords with the totality of the lay and medical evidence. The applicant discloses she has ongoing issues in relation to her neck, albeit her condition has improved. There is also no issue she suffered a left shoulder injury, for which liability has been accepted, but her problems with that body system have almost resolved.
Although the applicant describes her neck pain levels as between 2 and 4 out of 10, she continues to have left hip pain from the site of her bone graft for the neck surgery which she describes as between 6 and 7 out of 10, while her left shoulder symptoms are virtually gone. Her evidence in relation to her attempts to work is as follows:
“44. I returned to work for a brief period in or around August 2023, however due to my pain and the physical restrictions in me being able to work I could not keep working.
45. Since that time, I have not been able to return to work because of the ongoing pain and restriction I have in my neck and left shoulder.
46. Based on my age, my limited work experience and the ongoing pain and restriction I have from my work injuries I no longer believe there is any realistic work I can do.
47. My GP has continued to certify I have no capacity to work since February 2024.”
It is understandable a GP would continue to certify a worker as totally unfit, at least in part based on the worker’s own complaints of ongoing issues. However, the specialist evidence and the applicant’s own statement evidence as to the extent of her ongoing pain do not support such a finding.
Dr Hopcroft, IME provided the following opinion in relation to capacity:
“It is my opinion this patient should be considered totally incapacitated for her pre-injury employment as an enrolled nurse, as to return to such employment would simply see an acceleration of the development of Adjacent Segment Disease, and the degree of that deterioration would be significant.
It is my opinion that this patient has very limited realistic capacity for alternative suitable work following that surgery, and at best cold be considered for part-time sedentary work where repetitive bending and lifting and protracted head and neck flexion manoeuvres can be avoided.
It is my opinion it could be possible to predict that she could do three hours of work per day five days a week, with rest breaks, that did not involve protracted flexion of her head and neck or repetitive bending and lifting activity.”
The respondent’s IME, Dr Walker stated in relation to capacity:
“Her current spinal pain would make it very difficult for her to return to general nursing duties. She would certainly be able to fulfil other jobs however of a sedentary nature perhaps even whilst remaining in the nursing field….”
Given there is agreement between the two IMEs that the applicant has some capacity for employment, the preponderance of the medical evidence satisfies a finding of partial incapacity on the part of the applicant for the period claimed to date and continuing.
Doing the best I can, and noting Dr Hopcroft provides some guidance as to the number of hours the applicant is capable of working, I find she has capacity to work for 15 hours per week at her pre-injury hourly rate in a role which does not require prolonged flexion of her head and neck.
The applicant’s PIAWE
There is a dispute in relation to the applicant’s PIAWE. The applicant claims her original PIAWE was $2,164.46 per week and has been subject to periodic indexation. For its part, the respondent claims the applicant’s PIAWE was in fact $1,527.66 per week, subject to indexation.
The applicant asserts a change in her employment status led to an increase in her hourly rate of pay, which constituted a change in circumstances sufficient to enliven the operation of regulation 8C of the Workers Compensation Regulations 2016 (the Regulations). The respondent disputes such change in circumstances has taken place.
Momentarily setting aside the argument surrounding Reg 8C, I have examined the applicant’s payslips attached to the respondent’s ALAD dated 10 April 2025. The first relevant payslip reflecting the applicant’s earnings for the 12 months preceding the date of injury is dated 2 June 2022. The total gross payments to the applicant during the 12-month period leading up to the date of injury on 22 May 2023 total $98,796.21. I calculate this equates to a PIAWE of $1,899.92.
The applicant submits there had been a financially material change in the employment relationship from 31 October 2022, when her base hourly rate of pay increased from $30.6157 to $31.2657. She asserts that the relevant earnings period for the purposes of calculating her PIAWE should therefore be shortened to 29 weeks.
An examination of the applicant’s payslips reveals this change was made as alleged.
Regulation 8C provides for an adjustment to an injured worker’s PIAWE where there has been a financially material change to their earnings. The regulation relevantly provides:
“(1) The relevant earning period for a worker is to be adjusted in accordance with this clause if, during the unadjusted earning period, there was a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker (for example, a change from full-time to part-time work).
(2) The relevant earning period is to be adjusted by excluding from the period any period before the change to the earnings of the worker occurred.”
The respondent submitted the employment relationship between the parties was not sufficiently changed by the increase in the applicant’s hourly rate of pay, given her duties remained unchanged. However, the increase in the hourly rate represented a permanent increase in the applicant’s base rate of pay of just over 2%. In my view, such change was plainly ongoing and was a financially material alteration to the applicant’s earnings.
Having accepted the change in hourly rate was sufficient to enliven Reg 8C, it follows that the applicant’s PIAWE should be adjusted by reducing the relevant earning period to
29 weeks. Her earnings between 31 October 2022 and the date of injury were $62,769.70 and accordingly the applicant’s PIAWE is calculated at $2,164.46, subject to periodic indexation.
The operation of s 46 of the 1987 Act
Section 46 (1) of the 1987 Act provides:
“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 to the incapacity for work.”
There is no issue the applicant was in receipt of payments under the Rescue Services Act. The respondent submits the operation of that legislation and the 1987 Act together means the amount payable by the respondent to the applicant for weekly compensation should be reduced by the amount of compensation received by her under the Rescue Services Act.
In support of this submission, the respondent notes that s 3 of the Rescue Services Act defines “Principal Act” to mean the 1987 Act.
The respondent identifies the question relevant to this issue as whether the payments under the Rescue Services Act are of the same kind as weekly benefits. Even if the Rescue Act benefits were of the same kind as the as those payable under the 1987 Act, they cannot be said to be “payable by the employer.”
The applicant submits the phrase “to prevent dual benefits of the same kind being payable by the employer...” is referable only to any payments already being made by the respondent before the applicant suffered the injury at issue.
I accept that submission, noting the Court of Appeal’s decision in Department of Corrective Services v Patikas [1993] NSWCA 81 (Patikas). In that matter, the worker had been in receipt of payments under the State Superannuation Act and was also entitled to compensation under the 1987 Act. The employer sought to argue that the employer’s payment under the 1987 Act should be reduced pursuant to s 46 to prevent the payment of dual benefits to the Worker. Cripps JA noted that even if he assumed that the pension the worker had received from the Board arose out of his anxiety state, which was the same anxiety state that entitled him to the maximum award of compensation the submission of the employer ignored the:
“…fundamental problem… that [the employer] has not established any dual benefits of the same kind being paid by the employer during and in respect of the incapacity to work. Any such payments that were received by the worker in the nature of superannuation came from the Superannuation Board, not the employer.” (emphasis
added)
His Honour Clarke JA further noted in agreement with Cripps JA:
“The other ground mentioned by his Honour Cripps is one with which I also agree, and
that s that the evidence in this case falls far short of showing that any benefits, apart
from workers compensation, were paid by the appellant to the respondent during and in respect of his incapacity.”
In Workers Compensation Dust Diseases Board of NSW v Cook [2015] NSWCA 270 (Cook), the Court of Appeal again addressed the application of s 46 in the context of a worker’s prior recovery of common law damages. Basten JA stated:
“Further, s 46 refers to ‘dual benefits of the same kind’, not to the payment of compensation and damages. The benefits are to be payable ‘by the employer’, which does not engage the present case.
…
Of critical importance in this context is that the primary purpose of the Workers Compensation Act is to confer on a worker who has received an injury (being a personal injury arising out of or in the course of his or her employment) a right to receive compensation from the worker’s employer. The Dust Diseases Act does not provide for payments of compensation by an employer, but by the Board, albeit from a fund created under s 6 of the Dust Diseases Act which will include payments by workers’ compensation insurers.”
As the applicant noted in her written submissions, Basten JA’s reasoning reinforces the applicability of s 46 to payments made by the employer, and not to payments of the same kind from other entities.
In the same matter, MacFarlan JA said:
“… the reference to ‘dual benefits’ is, in its context, a reference to duplicated Workers Compensation Act benefits and does not refer to common law damages. These observations confirm that section 46 is narrowly tailored to prevent duplication of
workers’ compensation benefits paid by the employer, excluding other forms of redress
such as damages awarded at common law.”
It follows from the Court of Appeal’s reasons in Patikas and Cook that in order to enliven s 46 of the 1987 Act, there must be two sets of benefits of the same kind which are being paid by the same employer. That is, the section is designed to avoid receipt of overlapping benefits from the employer for the same in capacity under the 1987 Act.
That is plainly not the case in this matter, and accordingly, there will be no deduction.
Additionally, I note there is an absence of specific evidence as to the nature of the payments made to the applicant under the Rescue Services Act during the relevant period claimed. Even were I to interpret s 46 as applying to payments from more than one entity, there is a lack of specific evidence in the present matter as to whether the benefits are of the same kind as the weekly payments payable in these proceedings. In Roads & Traffic Authority of New South Wales v Smith & Anor [2007] NSWWCCPD 134 (Smith), Acting Deputy President Snell (as he then was) elucidated the discretionary nature of s 46 and its purpose of preventing overlapping benefits, observing:
“The power conferred by section 46 is discretionary and operates to prevent payment of ‘dual benefits of the same kind’. The submission made by the worker is that the settlement in the Industrial Relations Commission of NSW was ‘of all claims the worker brought against his former employer’, and one cannot distinguish what part of the settlement is ‘actual wages’. The evidence does not include the pleadings in the Industrial Commission of NSW, nor the deed (or whatever other document) effected the settlement. Accordingly, the only information available for the purpose of characterising the settlement payment is the worker’s evidence at T11 to 14.”
As with the facts of Smith, there is an absence of specific evidence detailing the nature of the payments under the Rescue Services Act, which makes it impossible to accurately quantify which part of those benefits, if any, is in the nature of weekly payments of compensation.
The amount of weekly benefits payable
Having quantified the applicant’s PIAWE and made findings as to her incapacity for the period at issue, I make the following findings in relation to the benefits payable to the applicant.
The entirety of the period claimed falls within the second entitlement period and is subject to s 37 of the 1987 Act. Having determined the applicant has capacity for employment and noting she has not returned to work, the provisions of s 37(3) apply:
“(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates--
(a) 80% 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.”
Clause 8 of Sch 3 to the 1987 Act defines “current weekly earnings” as including the weekly amount a worker is able to earn in suitable employment.
At the date of the commencement of the claim, the indexed PIAWE totalled $2,220. On
1 April 2024, the indexed amount rose to $2,260 before increasing on 1 October 2024 to $2,300 and on 1 April 2025 to $2,310.Having found the applicant has had capacity for employment for 15 hours per week at her pre-injury hourly rate, I find her ongoing capacity for the period of the claim and continuing totals $468.98.
I therefore find the respondent liable to pay the applicant weekly compensation pursuant to s 37 of the 1987 Act as follows:
(a) from 2 February 2024 to 31 March 2024 at the rate of $1,291.02 per week;
(b) from 1 April 2024 to 30 September 2024 at the rate of $1,339.02 per week;
(c) from 1 October 2024 to 31 March 2025 at the rate of $1,371.02 per week, and
(d) from 1 April 2025 to date and continuing at the rate of $1,379.02 per week.
The reasonable necessity of the surgery – s 60
Having found the applicant has suffered a neck injury, in my view, the fusion surgery was reasonably necessary as a result of it. No substantive attack was made by the respondent at the hearing on the surgical procedure itself. Rather, it was said to not be reasonably necessary as a result of a work-related injury.
Having found the injury did take place, I have no difficulty in finding the surgery itself was medically necessary, and the injury made a material contribution to the need for it by rendering the degenerative changes to the applicant’s spine symptomatic such that they required the surgical intervention. The injury need only make a material contribution to the requirement for the treatment sought. It does not need to be either a substantial contributing factor to the need for surgery or the main contributing factor.
For these reasons, the respondent will be ordered to pay the costs of an incidental to the cervical spine surgery and the applicant’s reasonably necessary medical expenses in relation to the neck injury.
SUMMARY
For these reasons, the Commission will make the findings and orders set out on Page 1 of the Certificate of Determination.
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