Birleson v State of New South Wales (NSW Police Force)
[2021] NSWPIC 459
•16 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Birleson v State of New South Wales (NSW Police Force) [2021] NSWPIC 459 |
| APPLICANT: | Kane Birleson |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 16 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for compensation for pain and suffering by police officer pursuant to the former section 67 of the Workers Compensation Act 1987 (1987 Act); the applicant claims in respect of loss of sense of smell and taste and other disabilities as a result of suffering a fractured nose when assaulted in the course of his duties; agreement to accept section 66 of the 1987 Act compensation for 10% whole person impairment in respect of loss of sense of smell, taste and nasal distortion; principal claim for pain and suffering in respect of loss of sense of smell and taste which affects his social life and continuing duties as a policeman; restriction in sporting activities; some anxiety sequelae as a result of the injury; Tyler v Marsden Industries referred to; Held - finding that the applicant worker entitled to compensation for pain and suffering of 45% of the maximum amount payable pursuant to section 67 of the 1987 Act of $50,000; award for the applicant of $22,500 and costs. |
| DETERMINATIONS MADE: | 1. The respondent is to pay the applicant $22,500 compensation for pain and suffering pursuant to the former s 67 of the Workers Compensation Act 1987 as a result of injury sustained in the course of the applicant’s employment with the respondent on 19 October 2019. 2. The respondent is to pay the applicant’s costs as agreed or assessed. |
STATEMENT OF REASONS
BACKGROUND
Kane Birleson (the applicant/Mr Birleson) claims compensation for pain and suffering pursuant to the repealed s 67 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury sustained on 19 October 2019 in the course of his employment by the respondent as a police officer in the NSW Police Force.
On that day Mr Birleson was kneed in the face by an offender he was in the process of searching. He suffered a fractured nose, causing nasal deformity and nasal obstruction, and loss of sense of smell and taste.
Mr Birleson underwent surgery in the form of a closed reduction nasal fracture on 30 October 2019 at the hands of Dr J Huang, ear, nose and throat specialist. He was subsequently assessed by Dr Huang on 17 February 2020 due to pain in the nasal area and discomfort in his teeth. On 2 June 2020 Dr Huang referred the applicant to the Sydney Ear Nose & Throat Clinic for objective smell testing.
On 22 September 2020 the applicant was independently medically examined by Dr Paramatma Dhasmana, ear, nose and throat specialist, at the request of his solicitor. Dr Dhasmana noted that Mr Birleson suffered chipped front teeth in addition to his fractured nose, for which he was advised to seek dental opinion. He also noted that he was under the care of an ear, nose and throat specialist and would probably need surgical treatment. Dr Dhasmana carried out tests for tase and smell and assessed an estimated 80% loss of sense of smell, equivalent to 4% whole person impairment (WPI) together with an estimated 50% loss of sense of taste, equivalent to 2% WPI. He also assessed nasal distortion at 4% WPI for a total impairment of 10% WPI.
On 29 October 2020 the applicant underwent further surgery, a rhinoplasty and septoplasty, carried out by Dr Daron Cope, ENT consultant. On post-operative review by Dr Cope on 10 November 2020 Dr Cope noted that Mr Birleson’s nose and sinuses seemed to be healing well with no evidence of any ongoing pathology in the nose or sinuses. A full recovery was anticipated.
In early 2021 Mr Birleson settled his claim for compensation for permanent impairment pursuant to s 66 of the 1987 Act for $13,750 payable for 10% WPI. The respondent’s insurer, icare, made no offer for compensation for permanent impairment pursuant to s 67, and the parties have been unable to agree on what the quantum of such compensation should be.
The applicant commenced proceedings in the Commission with the lodgement of an Application to Resolve a Dispute (ARD) dated 27 September 2021 containing a claim for $25,000 compensation for pain and suffering, being 50% of the maximum amount payable pursuant to s 67 of $50,000.
The proceedings were the subject of a telephone conference on 26 October 2021 at which no agreement was reached in respect of the applicant’s claim. Directions were issued for written submissions to be lodged and served by the parties, which have now been received and are referred to hereunder.
ISSUES FOR DETERMINATION
The parties agree that the only issue remaining in dispute is the amount of compensation for pain and suffering to which the applicant is entitled as a result of injury sustained on 19 October 2019, having settled or agreed to settle his claim for permanent impairment compensation under s 66 of the 1987 Act for a figure payable in respect of 10% WPI.
PROCEDURE BEFORE THE 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.
The parties have agreed to the determination of the matter without a conference or formal hearing.
EVIDENCE
Documentary evidence and submissions
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) the applicant’s written submissions dated 5 November 2021, and
(d) the respondent’s submissions dated 9 November 2021.
SUBMISSIONS
Applicant
The applicant submits, relying on authorities of Staker v North Broken Hill Pty Ltd[1] and Jones Bros Bus Co Pty Ltd[2], that there is no automatic correlation or relationship between the permanent impairment found in relation to s 66 and the proportion of the maximum sum awarded for pain and suffering under s 67. The applicant also refers to the comment of Burke CCJ in Cooper v Gollel Holdings Pty Ltd[3] as to the severity of the loss that a worker is likely to suffer, the interference with daily living and the frustration and distress caused to the worker. The severity of the loss is a factor to be used a as guide in making an assessment under s 67.
[1] (1992) 8 NSWCCR 332.
[2] (1992) 26 NSWLR 322.
[3] [1990] NSWCC 8.
The applicant therefore submits that the assessment of his claim under s 67 should be totally independent of the assessment of 10% WPI and quotes a decision of an Arbitrator of the former Workers Compensation Commission in support of this submission.
The applicant notes his age, and that his life expectancy in accordance with the Life Expectancy Tables calculated by the Australian Bureau of Statistics to be a further 47 years. The loss of sense of smell and taste will continue to have a profound negative impact on his quality of life.
The applicant relies on the opinion of his treating psychologist. Mr Ross Calvi, in report dated 9 September 2021[4] to highlight the long term effects as a result of the loss of sense of smell and taste.
[4] ARD p 28.
The applicant relies on the detail provided in his statement dated 2 May 2021[5] in respect of his treatment, sequelae of the assault and current disabilities, including the stress and anxiety caused by his losses. This includes what has occurred over the past two years since the injuries were sustained, the treatment he has received and the prospect for the future.
[5] ARD p 2.
The applicant submits that, having regard to all these matters, he is entitled to an award representing 50% of the maximum sum payable for pain and suffering under s 67 of $50,000.
Respondent
The respondent notes that, pursuant to the former s 67(7) of the 1987 Act that pain and suffering means:
(a) actual pain, or
(b) the stress or anxiety, suffered or likely to be suffered by the injured worker, whether resulting from the loss concerned or from any necessary treatment.
The respondent refers to the well known decision of Commissioner Wright in the former Compensation Court of New South Wales of Tyler v Marsden Industries[6] which contains a summary of the factors and principles to be taken into account when determining s 67 awards.
[6] [2001] 22 NSWCC 644 (Tyler).
Relying on the authority of Pacific Dunlop Limited v Krivec[7], the respondent submits that there should not be double compensation when awarding compensation under ss 66 and 67. The respondent submits that the applicant has received compensation for facial disfigurement under s 66, having been assessed at 4% WPI in accordance with Table 6.1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, which takes into account nasal distortion that affects personal appearance. Therefore, the applicant has already been compensated under s 66 in this regard.
[7] (1996) 13 NSWCCR 353 at 358.
The respondent submits that there is no evidence that the applicant has lost income, through loss of career opportunities, because of his nasal injury, as alleged.
The respondent also submits that there are events, other than the assault, which have contributed to the applicant’s psychological symptoms, and cited the opinion of Mr Calvi, psychologist, who provided a diagnosis of Complex Post Traumatic Stress Disorder (CPTSD) which he attributed to repeated exposure to traumatic events, witnessing others experiencing traumatic events and being directly involved in these events. These also included repeated and extreme exposure to physical and verbal threats.
The respondent notes that Dr Cope in his report dated 24 November 2020[8] says that the applicant has no evidence of ongoing pathology in the nose and sinuses.
[8] Reply p 2.
The respondent submits that when weighing the facts and degree of impairment resulting from injury on 18 [sic, 19] October 2019, the applicant would fall within the range of 25% to 35% of a most extreme case under s 67 entitling him to $12,500 to $17,500 compensation for pain and suffering.
FINDINGS AND REASONS
The former s 67 of the 1987 Act was repealed by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) with effect from 5 January 2012. Relevant subsections are as follows:
“67 Compensation for pain and suffering
(1) A worker who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive from the worker’s employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000. Pain and suffering compensation is in addition to any other compensation under this Act.
….
(2) Because there is a distinction between injury and impairment resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from impairment), the pain and suffering for which compensation is payable does not include pain and suffering that results from the injury but not from the impairment.
…
(3) The maximum amount of compensation under this section is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the permanent impairment.
…
(4) The amount of compensation payable under this section in any particular case shall, in default of agreement, be determined by the Commission.
…
(7) In this section:
pain and suffering means:
(a) actual pain, or
(b) distress or anxiety,
suffered or likely to be suffered by the injured worker, whether resulting from the permanent impairment concerned or from any necessary treatment.”
Pursuant to cl 26 of Pt 19H of Sch 6 of the 1987 Act, the amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter, and the Workers Compensation Acts apply to and in respect of such an injury as if those amendments had not been enacted.
The following is a summary of the factors and principles referred to by Commissioner Wright in Tyler, omitting authorities:
(a) pain and suffering awards under s 67, unlike the objective criteria in s 66 awards for physical impairment, must take into consideration the actual individual experiences of the claimant, as to his or her past and future pain and suffering;
(b) the measure of the most extreme case must be compared with the measure of a most extreme case and does not need to make a comparison with the most extreme case;
(c) the pain and suffering must result from the loss or impairment not merely the injury;
(d) pain may be compensated even if the extent of the loss and its effects are not assessable until a later date;
(e) pain and suffering is compensable from the date of the compensable injury and not merely from the date on which the loss or impairment is crystallised;
(f) there is no necessary relationship between the loss or impairment and the intensity and duration of the pain and suffering. If an award is excessive upon a review of all the circumstances, an award may be overturned on the basis of falling outside the range of sound discretionary judgement;
(g) the age of the claimant is relevant. The younger that a person is at the time of injury (loss) the greater is the chance that the worker would get into an extreme case category, but each case has to be looked a on its own merits due to the potential for the same injury to affect different workers differently. Age is a relevant consideration because age at injury has implications for the expected duration of any pain and suffering;
(h) distress caused by interference with social activities or by the effects of the compensable injury on a worker’s relationships including marriage can be relevant, and
(i) objective factors may include the type of surgical procedures undergone, the nature of the convalescent process ad any complications flowing there from as well as the need for medication and difficulty with sleeping.
The principal matters relied upon by the applicant in support of his claim are summarised in the applicant’s submissions as follows:
“The Applicant’s evidence provided in his statement dated 2 May 2021 … is consistent with the evidence from his treating Psychologist, as he outlines his ongoing disabilities …, including facial disfigurement, loss of sense of smell, requirement to seek dental treatment, loss of sensation around the nose, discoloration around the bridge of the nose, frequent headaches, constant large mucous discharge from nose, reliance on nasal medication flushes, requirement to sleep in a separate room to partner due to snoring, difficulty breathing through nose, sleep disturbance, impact on professional duties, stress, frustration, depression, mood swings, anger bouts, loss of concentration, lethargy, reclusive habits, loss of self-esteem, loss of confidence, loss of career opportunities, internal scarring, queasiness when blowing nose, dizziness, bad breath, and reliance on family to detect hazards.”
As a consequence of his loss of smell and taste, the applicant derives no enjoyment from food, which is distressing as he has always enjoyed the social aspect of dining out with friends and family. This is now a lifelong disability which causes him anxiety.
In respect of facial disfigurement, I accept the respondent’s submission that Mr Birleson has been compensated to the extent of 4% WPI pursuant to s 66. However, to the extent that such disfigurement causes him anxiety and distress, and reclusive habits through a lack of the desire to socialise (and I suspect that any facial disfigurement is not the sole reason for this, but it is also because of other injury caused disabilities), I think that such anxiety and distress can be considered in a s 67 award.
I also accept the respondent’s submission that, although the applicant puts forward loss of career opportunities as a factor which must be considered, apart from the applicant’s evidence there is no other evidence to support that the nasal injury he suffered has caused lack of success in his applications for alternative roles within the Police Force. In any event, any monetary loss caused by such alleged lack of success is not compensable under s 67. To be fair to the applicant, I note however that he does not quantify or claim any such loss. As I understand his evidence, it is his perception that he has missed out on alternative roles that upsets him. If that is the case, I do not think that it is a matter that I should consider in assessing compensation for pain and suffering.
I also accept the respondent’s submission, based on the report of the treating psychologist Mr Ross Calvi dated 9 September 2021, that the CPTSD that Mr Calvi diagnoses caused by events in the course of Mr Birleson’s duties as a police officer other that the assault on 19 October 2019, should be ignored. Mr Calvi also comments on the long term psychological effects as a result of the loss of two senses, smell and taste, which can be considered, and these are not insignificant having regard to Mt Birleson’s life expectancy of 47 years. In this respect also, the upset caused by not being able to detect dangerous odours, both in the course of his work and socially, can be considered. This upset and anxiety caused by the loss of sense of smell is in my view compensable as it is pain and suffering resulting from impairment pursuant to s 67(2) if the 1987 Act.
The applicant has suffered interference with his social and recreational activities in the form of his sporting pursuits. He has been able to return to Ju Jitsu, but only this year and against the advice of his specialist as it is a contact sport. I assume that he has been able to return to the gym. Mr Birleson has returned to soccer training but not yet played a game due to the fear of a ball striking him in the face.
In terms of travel, Mr Birleson does have some concern as to his ability to tolerate the cabin pressure of airplanes. There is no evidence to support this concern, although I understand why he may be feeling it. Dr Cope has certified that, following the last surgery he performed on 29 October 2020 there was no evidence on ongoing pathology in the nose and sinuses and there should be a full recovery. There is no further report from Dr Cope. The concern expressed by the applicant that he will end up needing a sleep apnoea machine as he gets older does not have any medical support. Similarly, the occasional ringing in the ears of which he complains is not supported by medical evidence.
Mr Birleson complains of problems with concentration, frequent headaches, and tension in his head, worse when he sleeps on his back. He says he also experiences increased fatigue, and flashbacks as a result of the incident. Mr Calvi comments on flashbacks about traumatic work incidents during waking hours, nightmares experienced about the incident of 19 October 2019 and other experiences while on duty as a police officer, and irritability and hypervigilance.
I accept that a degree of these reactions result from the assault in which the applicant’s nose was fractured, but probably the majority are from other incidents described by Mr Calvi as being responsible for his diagnosis of CPTSD.
In terms of treatment, Mr Birleson has undergone surgery on his nose on two occasions; once with Dr Huang and once with Dr Cope. This has largely been successful, but the assault has left him with the loss of sense of smell and taste. This disability is probably the one that affects him most day-to-day, both in terms of his social life and work activities.
The agreement that the applicant is entitled to compensation for 10% WPI pursuant to s 66 represents a comparatively modest award. However, I accept that there is no necessary correlation between an entitlement to compensation for permanent impairment under s 66 and compensation for pain and suffering under s 67. The assault on the applicant and its sequelae has had a significant effect on the applicant’s enjoyment of life. He has been able to continue in his employment, albeit with the restrictions imposed on him by his loss of sense of smell.
The respondent submits that an award in the applicant’s favour should be in the range of 25% to 35% of a most extreme case. The applicant submits that 50% of a most extreme case in the correct assessment. I think that a figure between these two submissions is appropriate.
In my view the applicant should receive compensation for pain and suffering pursuant to the former s 67 of the 1987 Act of 45% of a most extreme case. That results in an award in his favour of $22,500.
It is not clear from the evidence if the parties have entered into a complying agreement under s 66A of the 1987 Act in respect of the applicant’s acceptance of the offer to settle his claim for s 66 compensation, which was contemplated in the letter from icare to Mr Birleson dated 10 March 2021[9]. I assume that the parties have done so. The only orders sought by the applicant in submissions are for payment of the compensation awarded pursuant to s 67 of the 1987 Act and costs. Those orders are set out in the attached Certificate of Determination.
[9] ARD p 11.
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