Brady v State of New South Wales (NSW Police Force)
[2021] NSWPIC 258
•23 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Brady v State of New South Wales (NSW Police Force) [2021] NSWPIC 258 |
| APPLICANT: | Kenneth Brady |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 23 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for weekly benefits and medical expenses by exempt worker, as a result of accepted psychological injury; applicant has been compensated for 22% whole person impairment; and for pain and suffering; respondent relied on evidence of independent medical examiner described by Approved Medical Specialist as biased and an outlier; submitted the applicant is partially incapacitated for work and sought to rely on decision in Cordina Chicken Farms Pty Ltd v Thoa Hong Le to reduce award of weekly benefits to nominal amount, due to physical injury also sustained in employment with respondent; Lawarra Nominees Pty Ltd v Wilson, Moran Heath Care Services v Ivy Alice Woods and Ric Developments Pty Ltd t/as Lane Cove Poolmart v Muir considered; Held- the respondent was granted leave to raise the issue of the applicant’s physical injury as a basis for reducing any award of weekly benefits for partial incapacity; the applicant has at all relevant times been totally incapacitated for work; award for the applicant of weekly benefits pursuant to sections 36 and 37 of the 1987 Act; award for the applicant pursuant to section 60 of the 1987 Act; respondent to pay applicant’s costs as agreed or assessed; increase for complexity of 15% of each party’s costs. |
| DETERMINATIONS MADE: | 1. That there is an award for the applicant of weekly benefits, pursuant to section 36 of the Workers Compensation Act 1987 at the rate of $1,653.84 per week from 3 February 2012 to 3 August 2012. 2. That there is an award for the applicant of weekly benefits, pursuant to section 37 of the Workers Compensation Act 1987, as follows: (a) $432.50 per week from 4 August 2012 to 30 September 2012; (b) $439.50 per week from 1 October 2012 to 31 March 2013; (c) $447.70 per week from 1 April 2013 to 30 September 2013; (d) $452.60 per week from 1 October 2013 to 31 March 2014; (e) $458.40 per week from 1 April 2014 to 30 September 2014; (f) $464.30 per week from 1 October 2014 to 31 March 2015; (g) $470.20 per week from 1 April 2015 to 30 September 2015; (h) $474.20 per week from 1 October 2015 to 31 March 2016; (i) $480.50 per week from 1 April 2016 to 30 September 2016; (j) $484.10 per week from 1 October 2016 to 31 March 2017; (k) $490.40 per week from 1 April 2017 to 30 September 2017; (l) $494.30 per week from 1 October 2017 to 31 March 2018; (m) $500.60 per week from 1 April 2018 to 30 September 2018; (n) $504.60 per week from 1 October 2018 to 31 March 2019; (o) $512.10 per week from 1 April 2019 to 30 September 2019; (p) $516.40 per week from 1 October 2019 to 31 March 2020; (q) $523.10 per week from 1 April 2020 to 30 September 2020; (r) $527.40 per week from 1 October 2020 to 31 March 2021, and (s) $530.30 per week from 1 April 2021 to date and continuing. 3. That there is an award for the applicant pursuant to section 60 of the Workers Compensation Act 1987. 4. That the respondent is to pay the applicant’s costs as agreed or assessed. 5. That each party is entitled to an increase in his or its costs of 15%, due to the additional work involved in considering medical and clinical records over several years since the date of the injury, and the factual and legal issues regarding the claim for weekly benefits. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Kenneth Brady (Mr Brady) was employed by the respondent as a police officer. He sustained psychological injury, deemed to have occurred on 3 February 2012, arising out of or in the course of his employment
The applicant previously made a claim for weekly benefits, medical expenses and permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act). The claim was disputed, and the applicant brought proceedings in the Workers Compensation Commission (WCC) in Matter Number 6171 of 2017.
On 19 March 2018, Arbitrator Bamber of the WCC, as she then was, issued a Certificate of Determination – Consent Orders (the first COD).
The first COD provided that the date of injury was pleaded as 3 February 2012 (deemed). The applicant discontinued the claim for weekly benefits and future medical expenses. The applicant’s claim for permanent impairment compensation was referred to an Approved Medical Specialist (AMS) for assessment of whole person impairment (WPI) as a result of psychological injury, with the deemed date of injury 3 February 2012. The respondent was to pay the applicant’s costs, including an uplift of 20% for complexity.
The parties agreed that the respondent was to pay the applicant’s incurred medical expenses upon production of accounts/receipts up to the sum of $1,500. The respondent conceded that the applicant sustained a diagnosable psychological condition in the form of a Major Depressive Disorder, with 3 February 2012 identified as the relevant date of injury, for the purpose of satisfying section 4 of the 1987 Act. The parties acknowledged that the extent of impairment, degree of incapacity (if any) and need for any future medical treatment did not form part of the agreement (although the issue of impairment would be the subject of assessment by an AMS).
The applicant was assessed by AMS Associate Professor Michael Robertson, who issued a Medical Assessment Certificate (MAC) dated 20 April 2018. He assessed the applicant’s WPI as 22%.
On 23 May 2018, the WCC issued a Certificate of Determination – Consent Orders (the second COD). The respondent was to pay the applicant the sum of $35,750, pursuant to section 66 of the 1987 Act; the sum of $17,500 pursuant to section 67 of the Act; and the applicant’s costs as agreed or assessed. The awards were reduced by 12.5%, pursuant to Part 18C (3) of Schedule 6 of the 1987 Act, so the total compensation payable was $46,593.75.
By letter dated 17 April 2019, the applicant’s solicitors advised that they were instructed to press a claim for weekly compensation from the date of injury, that is 3 February 2012. They advised by letter dated 26 July 2019 that the claim was made from 1 April 2008 [sic] to date and continuing, under sections 36 and 37 of the Workers Compensation Act 1998 [sic].
The respondent’s insurer, Employers Mutual Limited (EML) issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 24 April 2020. It disputed that the injury arose out of employment, as required by section 4 of the 1987 Act; that the applicant had either a total or partial incapacity for work resulting from an injury; and that medical or related treatment was reasonably necessary as a result of injury.
The applicant lodged an Application to Resolve a Dispute (the Application) on 7 April 2021. He claims weekly benefits compensation from 3 February 2012 to date and continuing; and past and future medical expenses.
The respondent lodged its Reply on 29 April 2021.
ISSUES FOR DETERMINATION
The parties agreed at the conciliation/arbitration hearing that the following issues remain in dispute:
(a) the applicant’s entitlement to weekly benefits; and
(b) the applicant’s entitlement to payment of medical and related expenses, pursuant to section 60 of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for conciliation/arbitration hearing by telephone on 7 July 2021.
Mr Hammond of counsel appeared for the applicant, instructed by Mr Attique. Mr Adhikary of counsel appeared for the respondent, instructed by Ms Jenkins. The applicant was present. Mr McCulloch attended on behalf of EML; and Mr Grima on behalf of the respondent.
The Application was amended by consent to claim a general order for medical expenses. The applicant confirmed that his claim for weekly benefits commences on 3 February 2012.
During submissions, counsel for the respondent sought to rely on an injury to the applicant’s right shoulder, sustained in the respondent’s employ, as being relevant to the issue of incapacity. For reasons provided during the hearing, and which were recorded, I determined that the respondent required leave, pursuant to section 289A (4) of the 1998 Act, to raise this as a matter in dispute.
The applicant did not claim that he would be prejudiced by the grant of leave, and conceded that if leave were to be granted, he would not seek an adjournment to meet the issue. For reasons provided during the hearing, and which were recorded, the respondent was granted leave to rely on this issue.
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.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) The Application and attached documents;
(b) Reply and attached documents; and
(c) Application to Admit Late Documents dated 25 June 2021 and attached documents, filed by the respondent, and admitted by consent.
Oral Evidence
There was no application by either party to call oral evidence or cross-examine any witness.
FINDINGS AND REASONS
Evidence of the applicant, Kenneth Brady
The applicant’s statement is dated 6 December 2020. Much of the statement refers to the events that were causative of his injury. As injury has been conceded, it is unnecessary to refer in detail to that evidence.
The applicant was employed by the Road and Traffic Authority (RTA) performing clerical duties, from approximately 1970 to 1994. He was seconded to the Tow Truck Industry Council, which fell under the “umbrella” of the RTA, and due to a restructure his position was made redundant.
Mr Brady was attested as a Constable of Police with the NSW Police Force on or about 16 February 1996, achieving the rank of Senior Constable. He resigned on or about 8 February 2013, having exhausted his leave entitlements.
The applicant referred to a great many effects of the injury. I do not intend to list them all, but they include sleep disturbance; hypervigilance; irritability and aggressive outbursts; anxiety attacks; social avoidance; lack of self-esteem and confidence; depression; demotivation; inability to concentrate; inability to perform simple tasks; memory loss; reliance on medication and treatment; and inability to work in any capacity.
Medical evidence
Dr Luke Johnson – Consultant Psychiatrist
Dr Johnson reported to Dr McQueen-Thomson, the applicant’s general practitioner, on 19 November 2012.
Dr Johnson noted that the applicant stated that the reason for the appointment was to obtain an assessment, but he highlighted that his focus would be on treatment. The applicant had presented with his “partner”, Ovara, whose name is spelled in various ways throughout the evidence. I have adopted this spelling.
Dr Johnson diagnosed Major Depressive Disorder. The applicant had prominent cognitive deficits, in the setting of his partial response to treatment. He displayed obsessional traits, but Dr Johnson deferred comment until his mood symptoms were more adequately managed.
On 31 January 2013, Dr Johnson reported that the applicant was slowing showing signs of response to treatment. He therefore recommended that he work towards returning to work and understood this was being negotiated.
On 23 September 2013, Dr Johnson referred the applicant to Dr Emma Devenney, of Neuroscience Research Australia. He reported that the applicant had worsening memory difficulties. He frequently forgot to turn off taps and struggled with sequencing and organisation.
The applicant’s symptoms had not responded to anti-depressants and did not appear to be associated with his mood disorder. Dr Johnson wondered if he had an early onset dementing illness and requested Dr Devenney to assess him. There is no evidence from Dr Devenney.
On 13 December 2013, Dr Johnson reported to Unified Health Group P/L. His initial impression was that the applicant had a Major Depressive Disorder.
The applicant presented as somewhat isolated, apart from his relationship with Ovara. He had a fairly stable lifestyle, revolving around domestic activities. He had considered buying a property and working on a farm.
Dr Johnson considered the applicant’s primary disability related to his memory impairment. Both the applicant and Ovara had observed significant deterioration in his cognitive function over the past two years. His forgetfulness had led to a number of “misadventures” and Ovara had to keep an eye on him.
The applicant had Major Depressive Disorder in partial remission. He struggled with low mood and energy, as well as forgetfulness. He had responded to medication for his sleep disturbance and his anxiety had decreased. He was independent with Activities of Daily Living, but his social functioning and recreational activities were very dependent on Ovara’s support. His concentration, persistence and pace and adaptation were poor.
Dr Johnson opined that the applicant had a poor prognosis for ongoing occupational rehabilitation, and it appeared inappropriate for him to engage in vocational assessment or occupational rehabilitation program. It was unlikely that he would ever have medical capacity to return to work in any occupation. His cognitive functioning was significantly limited, with his capacity for planning, organisation, sequencing and attention preventing him from returning to meaningful occupational function. His capacity for work was very limited.
Dr Rick McQueen-Thomson – General Practitioner
Dr McQueen-Thomson reported on 18 September 2013. He noted that the applicant had ceased work on 3 February 2013 [sic: 2012].
The applicant first saw Dr McQueen-Thomson on 7 December 2012, when he complained of a feeling of inadequacy. He was off work and was referred to a psychologist and treated with anti-depressants. He had not worked since and Dr McQueen-Thomson doubted he would ever return to the Police Force. He was still depressed and anxious, but better than he was. Dr McQueen-Thomson was not sure about other work.
Dr Peter Anderson – Consultant Psychiatrist
Dr Anderson was qualified by the applicant and reported on 18 September 2015.
The applicant presented as unshaven, dishevelled, agitated and tearful. He was disorganised and Dr Anderson presented the history as it was obtained.
The applicant’s family background was quite reasonable. He had been married and separated from his wife before being transferred to the country in 2008. He had resigned to access his superannuation and bought a five-acre property in Leeton.
Dr Anderson recorded that the applicant had no nervous or psychological symptoms until his transfer to Griffith Local Area Command (LAC) in 2008. He noted the events after the transfer, which it is unnecessary to recount.
The applicant went on long term sick leave in February 2012. He slept poorly, was not coping and was agitated. He was preoccupied “with the whole matter” and his mood was low. He believed treatment had helped him by easing his symptoms, but they had continued.
The applicant described variable sleep; rumination; dreams about work; agitation; depressed mood; disorganisation; poor concentration; irritability and getting on poorly with people. He often did not understand what happened in that context.
Mr Brady lived on a 5.5-acre property, “well away from people”. He resided with his friend Ovara, whom he regarded as his carer. He did not think he could have a relationship. She did all the shopping and cooking, and generally pushed him with regard to activities. She got his medication at the chemist and did most of the work in the home and on the property. He was leaving the gas on in his previous premises and did not trust himself to do any cooking.
The applicant had travelled alone to see Dr Anderson. He was agitated travelling on the train and had to change seats. He was anxious at the station. He usually stayed at home and rarely left the property. He did not see neighbours, police officers or any others regularly. He had stayed with his sister in Sydney, but there was no regular contact, and he had Facebook contact with his other sister.
Dr Anderson recorded that the applicant repetitively played simple computer games. He had stopped attending vintage car club meetings and playing golf. “He goes nowhere”. He could travel locally if required but was usually with Ovara. His memory was very poor, and he forgot to turn off taps. He did not read as his concentration was not up to it. He could not manage his medications away from home, as he relied on a calendar.
The applicant’s mood was depressed. He had depressive cognitions. He did not see any future for himself with respect to employment or in any other respect.
Dr Anderson opined that the applicant’s presentation was that of Major Depressive Disorder of at least moderate severity, with very prominent cognitive deficits. His presentation and account of functioning were congruent. He was likely to need continuing treatment with a psychiatrist and medication on an indefinite basis. As a result of the injury, he was totally incapable of engaging in any gainful employment for which he was reasonably qualified by his education, training or experience.
Dr Anderson assessed the applicant’s WPI as 23%. Applying the Psychiatric Impairment Rating Scale (PIRS), he assigned Class 5 to Employability. He noted that the applicant was not doing the work on the property. His level of functioning suggested he was not fit for any employment on the open labour market.
Dr Leonard Lee – Consultant Medico-Legal Psychiatrist
Dr Lee was qualified by the respondent and reported first on 15 February 2016. He administered the Structured Interview of Malingered Symptomatology (SIMS), the Medical Symptom Validity Test (MSVT) and the Minnesota Multiphasic Personality Inventory – 2 and MMPI Revised Format.
Dr Lee recorded the history of the applicant’s issues after being transferred to Griffith LAC. The applicant denied other stressful life events. His marriage breakup was amicable, and his former wife lent him $25,000 for his mortgage. While undergoing the testing, he asked Dr Lee to remind him to tell him about Ryan Simpson, saying this was an example of how he tends to remember things he has forgotten.
The applicant said he had to resign after his claim was declined, to access his superannuation. He did not want to resign and supposed he would have kept working with treatment. He had injured his right shoulder on a covert operation and “I’ve never been 100% since”.
Dr Lee reported that the applicant’s family background, early life and employment background were unremarkable.
The applicant frequently had broken sleep and got out of bed late. He rushed things because of anxiety. He didn’t shop or socialise, struggled with managing his finances and had given up golf. He even forgot to “lock up the chooks”. He probably drank half a bottle of red wine when he learnt he had to go somewhere or do something but did not otherwise drink excessively.
Dr Lee noted that the applicant was pleasant, casually dressed, polite and cooperative. He was not clinically anxious or depressed, his speech was logical and sequential, although at times he was discursive and said he had only just remembered many things. His major problems were memory, anxiety and depression.
Dr Lee reported that the applicant’s total score for SIMS was well above the cut off for the identification of likely feigning. His score on the Neurological Impairment Scale indicated that he endorsed a high number of illogical, inconsistent and atypical symptoms. His score on the Amnestic Disorders Scale was similar. His score on the Affective Disorder Scale suggested his presentation was either highly atypical or very inconsistent with genuine affective disorder.
On the MSVT, the applicant’s scores indicated that he made poor effort, despite maintaining the contrary. The result was implausible.
The applicant’s response to MMPI-2 items was unusual. Dr Lee opined that he may have consciously distorted test responses to create a particular impression or may be generally unsophisticated.
Dr Lee concluded that the applicant did not suffer with a DSM-IV condition. There was no evidence that he had suffered a psychological injury. It was unlikely that future treatment would lead to further benefit. There was no objective evidence that he was unfit for work. He would potentially be suited to vocational roles that suited his personality and technical leanings.
On 6 January 2020, Dr Lee again reported, having re-examined the applicant. He recorded a consistent history of the applicant’s issues at the Griffith LAC.
The applicant said he suffered from depression and anxiety, as well as hypertension. He got agitated when he had to do anything. He hardly left the house and did not want to be with people. His mood went “up and down”; and he only played computer games and watched television. He consulted Dr Johnson about once every six months and took antidepressants.
Dr Lee again noted that the applicant was a pleasant, casually dressed man. He highlighted severe anxiety and inability to function. His speech was logical and sequential, with no evidence of psychosis, although his perception of a plot against him had a paranoid flavour. If so, this may have occurred in the context of social isolation. He frequently described himself as getting lost in the details and feeling like all that had happened to him was “like a cobweb”. His presentation was inconsistent with the reported symptomatology.
Dr Lee opined that the applicant had not suffered from an injury, for the reasons detailed in his previous report. Although liability had been accepted and lump sum compensation paid, he did not consider the applicant had a current diagnosis. He did not believe there were any ongoing effects of any work injury, or that there was any work-related incapacity.
Dr Lee considered the applicant was feigning the condition, noting inconsistency between his reported symptoms and his presentation. Previous examination revealed implausible reporting on psychometric testing, consistent with feigning. Treatment was not reasonably necessary or likely to benefit the applicant.
Associate Professor Michael Robertson – Approved Medical Specialist
A/Prof Robertson assessed Mr Brady on 16 April 2018. I note that the date of injury was stated to be 1 April 2008, despite the date recorded in the first COD.
A/Prof Robertson recorded a history that the applicant lived on a small property where he kept fowl and “a few head of sheep”. He and his former partner were “separated under one roof”. He had resigned from the Police Force in 2013 and had remained job detached since.
A/Prof Robertson referred to the applicant having had a significant amount of vicarious traumatic stress exposure from 2005 to 2008, while he was employed in the Telephone Intercepts Branch (TIB). He sought a transfer to Griffith LAC in 2008. There he “fell foul of a convoluted series of interpersonal difficulties”.
The applicant developed psychiatric symptoms, primarily manifesting as anxiety, and first sought treatment through an Employee Assistance Provider in the late 2000’s. He ceased duties in February 2012 amidst a moderately severe depressive illness with significant concurrent anxiety.
A/Prof Roberson noted that Dr Johnson had been concerned about the applicant’s cognitive function but had performed a structured battery neurocognitive assessment of executive functioning that identified otherwise good performance.
The respondent relied heavily on Dr Lee’s 2016 report. Dr Lee did not make a psychiatric diagnosis but relied heavily on psychometric testing. A/Prof Robertson observed that
Dr Lee’s report appeared to make no attempt to engage the applicant in an account of his psychiatric symptoms, and he had also accepted uncritically the opinion of a factual investigation.A/Prof Robertson recorded that the applicant was emotionally labile. He felt “triggered” when talking about his workplace difficulties and tried to avoid doing so. He frequently avoided social interactions. He described his mood as “chronically depressed”.
The applicant described low self-esteem and chronic anxiety symptoms manifesting as panic attacks. He had had several presentations to medical care with unexplained symptoms that were attributed to anxiety. He was prone to irritability and a “whole range of emotions”. He was “triggered” by several non-specific stimuli relating to his work at the TIB, for example, recent stories involving offences against children. He had a physical response.
The applicant remained concerned about his cognitive impairment. He was forgetful and inattentive. He left gates open and allowed foxes to attack his poultry. He had also left taps running and “wasted thousands of litres of water”. He frequently misplaced belongings, repeated himself and forgot details of conversations or appointments. He often lost focus after reading a paragraph. There were numerous unassembled electrical kits, and this had previously been a passion of his.
As regards employment, the applicant had not engaged in any voluntary or paid employment. He had bought a small property, expecting it to be his “retirement place”. He performed multiple odd jobs, attending to poultry or a vegetable garden, performing most tasks in “bite sized chunks”. He was productive for around one to two hours per day.
A/Prof Robertson reported that the applicant was unshaven, dishevelled and had clearly taken little care with his appearance. His affect was anxious, and he was emotionally labile but not shallow in affect. He broke down several times. There were no psychomotor changes or signs of psychosis. He did not provide an over-inclusive history, although he was quite focused on his previous difficulties with the Police Force.
Due to concerns about Mr Brady’s cognitive impairment, A/Prof Robertson performed a more expansive clinical battery of cognitive assessment. The applicant registered five items after one attempt and recalled three at one minute and at five minutes. He made two errors with the serial seven’s task. His general knowledge was reasonable. There was a marginal decrease in his verbal fluency. He interpreted a proverb abstractly. There was no ideomotor or ideation or apraxia. He completed the Trail Making Test – B without error and constructed a clock face appropriately.
A/Prof Robertson diagnosed persistent Depressive Disorder. The applicant had some cross-cutting features of panic and post-traumatic stress disorder, but neither was fully present. He presented with a persistent work-related psychological injury. There had been no apparent deterioration from the observations of his cognitive function by Dr Johnson in 2012, which seemed to eliminate progressive organic mental syndrome. It appeared Mr Brady’s cognitive impairment was attributable to his underlying depression and anxiety.
A/Prof Robertson noted that the applicant presented as a credible historian with no evidence of dissimulation or over-reporting of symptoms.
A/Prof Robertson extrapolated the applicant’s report of productive activity on his property to a theoretical work capacity of 10 hours or less per week. He required prompting for self-care. He was assessed with 22% WPI. A/Prof Robertson opined that Dr Lee’s report was biased in its formulation and his opinion best considered an “outlier”.
In applying the PIRS Table, A/Prof Robertson assigned Class 4 to Employability. He referred to the applicant performing odd jobs around his property.
SUBMISSIONS
Both parties’ submissions have been recorded, so I will provide only a summary of the submissions.
Applicant
The applicant submitted that, as an exempt worker, his claim is to be determined pursuant to the former sections 36, 37 and 40 of the 1987 Act. It is accepted that he has 22% WPI. The respondent’s section 78 notice raised incapacity and section 60 expenses. The dispute as to “injury” is not pressed.
The applicant submitted that the respondent’s case was built on acceptance of the opinion of Dr Lee. His reports both before and after the assessment of WPI say that the applicant has no psychological injury. The respondent has accepted that he has an injury, and Dr Lee’s opinion should be rejected on that basis alone.
The applicant referred to his evidence. He submitted that he should be accepted as a witness of truth. He had held responsible positions before and joined the police in 1996. He went off work sick on 3 December 2012. He submitted that the medical evidence established that he had Major Depression and was unsuitable for any work. He relied in particular on the evidence of Dr Johnson in 2013 that he was unlikely to have the capacity to return to work. He submitted that remains the case. The applicant also relied on Dr Anderson’s evidence in 2015 that he was not fit for employment on the open labour market.
The applicant submitted that it is important that the AMS did not accept Dr Lee’s evidence. He referred to A/Prof Robertson’s description of his symptoms. As for employment, he did some work around the property, which is a five-acre hobby farm. This is not an indication of capacity for employment. The AMS considered that, theoretically, he could work for 5 to 10 hours per week. Even if that were to be adopted, he would still be entitled to weekly benefits at the statutory maximum rate. He submitted that his claimed pre-injury average weekly earnings (PIAWE) are not in dispute.
The applicant submitted that Dr Lee’s evidence should not be accepted. His GP, Dr Johnson, Dr Anderson and the MAC say one thing, while Dr Lee says another. A/Prof Robertson described his report as biased and his opinion as an outlier. The applicant has continued to seek treatment and medication has been prescribed. He referred to the clinical records in evidence. He presented to his GP with anxiety on 22 February 2021.
The applicant submitted he has the same condition now that he had in 2012, and the same total incapacity for work. If he has any residual incapacity, it is theoretical. We are dealing with the “old way” of assessing capacity, with the reality of the open labour market open to him. He referred to the decisions in Lawarra Nominees Pty Ltd v Wilson [1996] NSWSC 106; (1996) 25 NSWCCR 206 (Lawarra Nominees), Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171 and Holden v Toll Chadwick Transport Ltd (1987) 8 NSWLR 222.
The applicant finally submitted that he should be awarded weekly benefits in accordance with the amounts claimed in the Application, at the maximum statutory rate, and it follows that there should be an award in his favour pursuant to section 60 of the 1987 Act.
In reply to the respondent, the applicant submitted that the decision in Cordina ChickenFarms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125 (Cordina) does not apply to this claim, as it dealt with dual entitlements pursuant to section 40 of the 1987 Act. There is no disclosure in the section 78 notice that it is asserted the applicant is incapacitated as a result of any other injury, and no expert evidence from the respondent regarding the shoulder injury.
Respondent
The respondent submitted that its case is that the applicant has no entitlement to weekly benefits; and it relies on Dr Lee’s evidence. As regards the criticism of his opinion, it is based on his specialist knowledge, assessment of the applicant’s mental state and psychometric testing. The report is not limited solely to injury, but also refers to incapacity. Dr Lee did not consider the applicant had a current diagnosis, although liability had been accepted and lump sum compensation paid. There was no work-related incapacity.
Alternatively, the respondent submitted that, at least since 2019, the award should be reduced. The applicant was doing odd jobs around the property and had a theoretical capacity to work 10 hours or less per week. He could undertake farm or greenkeeper work up to 10 hours per week. The respondent referred to the PIRS rating of 4 for Employability by A/Prof Robertson, which it submitted provides an evidentiary basis to find a partial incapacity.
The respondent submitted that I would have regard to the applicant’s right shoulder condition. Certificates have been issued in respect of this injury, but there are no corresponding workers’ compensation certificates that indicate an inability to work was related to the psychological injury.
The respondent submitted that, working 10 hours per week, based on his tax returns, the applicant could have earned $338.70 per week in 2019 and $350.60 per week in 2020. On that basis alone, he would theoretically be entitled to the statutory maximum weekly rate. However, his right shoulder injury has rendered him totally incapacitated for work.
The respondent relied on the decision of Deputy President Roche in Cordina. It submitted that, although that matter involved concurrent injuries, its facts were similar. The respondent submitted that the Mitchell discretion should be applied to reduce any award of weekly benefits to a nominal amount from 4 March 2019, when the applicant consulted his GP in respect of his right shoulder injury, under WorkCover. The reference is to the decision of the Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527.
The respondent resisted the applicant’s claim for future section 60 expenses, relying on
Dr Lee’s evidence.
SUMMARY
The applicant is an exempt worker, having been employed as a police officer. His claim is therefore to be determined pursuant to the legislation as it was before the amendments made by the Workers Compensation Legislation Amendment Act 2012. The respondent has not disputed his PIAWE.
The respondent has conceded that the applicant sustained psychological injury, the deemed date of which has been accepted as 3 February 2012. The applicant has been compensated for 22% WPI and for pain and suffering. The only issue to be determined is whether he is incapacitated for work as a result of the injury, and, if so, the extent of that incapacity.
The respondent’s primary case, relying on the evidence of Dr Lee, is that the applicant has no incapacity for work as a result of his accepted psychological injury. Dr Lee has consistently maintained his opinion that the applicant has not sustained any injury arising out of or in the course of his employment.
I reject Dr Lee’s evidence, which is at odds with the other medical evidence. The AMS was critical of his report, describing it as biased in its formulation and his opinion as an “outlier”. That is an apt description. Dr Lee’s opinion is also completely inconsistent with the concession by the respondent that the applicant has sustained a psychological injury and the assessment of 22% WPI, by an independent medical assessor, as a result of that injury.
The respondent’s alternative case is that the applicant has some capacity for work, and that he has since 4 March 2019 been incapacitated for work as a result of an injury to his right shoulder, which was also sustained in the course of his employment with the respondent, so any award of weekly benefits should be reduced to a nominal amount.
Whether the applicant is totally incapacitated for work is to be determined with regard to the realities of the reasonably accessible labour market. In Lawarra Nominees, Mahony P, with whom Handley and Powell JJA agreed, upheld a finding that the worker was totally incapacitated for work. His honour said (at 213):
“Normally, a court in determining whether a worker is totally or partially incapacitated will, in a practical sense, ordinarily consider two questions: what is the relevant labour market, i.e. what work was the worker doing or could he reasonably be expected to do; and of that kind of work, what is he physically able to do.
In considering the second of these, it is necessary to bear in mind that what is in question is capacity or incapacity ‘for work’. The legislation is not concerned merely in the abstract with work or work capacities as such. It is concerned with the capacity to do work of a particular kind or kinds and in a context which will produce income…the Court will ordinarily not be concerned, for example, to determine in an artificial or theoretical situation what [the worker] could do if the work available to him would allow him to…generally work, as in his condition, he would fairly wish to work…The exercise is, in my opinion, a more practical exercise. It involves the assessment of a capacity ‘for work’ having regard to the realities of the labour market in which he is to be engaged.” (Emphasis added).
Lawarra Nominees was applied in Moran Health Care Services v Ivy Alice Woods [1997] NSWSC 147; (1997) 14 NSWCCR 499 (Woods). Mason P (Beazley JA and Grove AJA agreeing) held:
“The expression [‘total incapacity’] is not defined in the Act. However, an authoritative point of reference is Ball v William Hunt & Sons Limited [1912] AC 496. There Lord Lorburn LC said (at 499):
‘In the ordinary and popular meaning which we are to attach to the language of this statute I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonable accessible to him, and there is a partial incapacity for work when such defect makes his labour saleable for less than it would otherwise fetch’”. (at 502).
Further, in Woods, Mason P said:
“…The appellant submits that occasional part-time work of a light nature may be available in the labour market with the result that it was not open for his Honour to find total incapacity.
In my view the appellant’s ‘eye of the needle’ test does not represent a correct approach to the concept of ‘total incapacity’. There will be a number of cases where, despite evidence or concession that the worker might be able to perform some tasks in some circumstances, such a finding is sustainable in law….”
The applicant in this matter obviously does not have a “physical defect” that affects the “sale” of his labour, but a psychological injury that has made it impossible for him to continue employment as a police officer. I have referred to his evidence of some of the effects of the injury on his ability to function. The medical reports on which he relies provides further evidence of the limitations on his capacity for work.
In considering the medical evidence as to the applicant’s capacity for work, I have not given any weight to Dr Lee’s evidence, for the reasons provided.
While Dr Johnson reported that the applicant was slowly improving in November 2012, and recommended that he work towards resuming employment, that improvement was not sustained. By September 2013, the doctor was so concerned about the applicant’s condition that he referred him for assessment of possible dementia. He opined in December 2013 that Mr Brady’s capacity for work was very limited.
Dr Anderson examined the applicant in September 2015. I have recorded the history and his findings above. His opinion was that the applicant was totally incapable of engaging in any gainful employment for which he was reasonably qualified. His friend did most of the work on his small property, as well as in the home.
A/Prof Robertson reported that the applicant performed odd jobs around the property, in “bite sized chunks”, and was productive for one to two hours per day. His PIRS assessment of 4 for Employability, as compared to Dr Anderson’s of 5, suggests some improvement in the applicant’s capacity. However, A/Prof Robertson also described this as a theoretical work capacity.
The applicant presented to A/Prof Robertson, as he did to Dr Anderson, unshaven, dishevelled and having taken little care of his appearance. He broke down several times during the assessment. Unlike Dr Lee, A/Prof Robertson found him to be a credible historian, with no evidence of dissimulation or over-reporting of symptoms.
The fact that the applicant may be capable of performing odd jobs around his own property, at his own pace, in “bite sized chunks”, and pushed and assisted by his friend, does not mean that he is not totally incapacitated for work (Woods). Such a situation is very different to that he would face should he obtain employment elsewhere, even assuming that any employer would be prepared to offer him an opportunity.
Apart from the other factors militating against the applicant obtaining employment, he has been out of the workforce for over nine years. That is unlikely to make him an attractive candidate to most employers. His employment with the RTA ended in 1994. He was in his late 50’s when he left the Police Force, and is now almost 67 years old, which would also tell against him in competing for employment on the open labour market.
In Ric Developments Pty Ltd t/as Lane Cove Poolmart v Muir [2008] NSWCA 155, a decision that addressed section 40 of the 1987 Act, Campbell JA, referring to rehabilitation reports on which the appellant relied, said:
“[the reports] did not address the Worker’s practical prospects in the labour market…That the Worker had the physical and mental capacity to carry out the tasks involved in some particular job is not sufficient to establish that there was a realistic prospect that anyone would actually give him such a job, or that he would be able to keep it.” ([at 48]). Emphasis added.
The respondent submitted that the applicant has the capacity to undertake farm or greenkeeper work for up to 10 hours per week. I do not accept that he has the capacity to perform such work, or any work on the open labour market. Even assuming he obtained employment as a farm labourer, it is most unlikely that he would keep it if he allowed foxes to attack the animals, or wasted thousands of litres of water, as he has done on his own property. He would certainly not be able to work at his own pace, if and when he was motivated to do so.
The applicant has no experience as a greenkeeper, and the same issues of lack of concentration, inability to perform simple tasks and memory loss would, in my view, mean he would be most unlikely to be able to maintain that employment, even if it were to be offered to him. He relies heavily on the support and assistance of his friend/carer, which would of course not be available to him in performing employment duties.
The applicant’s “theoretical” work capacity is just that. In my view, there is no realistic prospect that anyone would give him a job, or that he would be able to keep it if were offered. He has at all relevant times been totally incapacitated for work.
In view of my finding of total incapacity as a result of his psychological injury, it is unnecessary that I consider the respondent’s submission that the Mitchell discretion should be applied to reduce the award of weekly benefits. I note that the applicant’s tax returns for the years 2019 and 2020 are not in fact before me. However, counsel for the respondent provided me with the relevant figures, which have been recorded. I would add that I do not regard it as significant that Certificates of Capacity were not issued with respect to the applicant’s psychological injury, given that liability for the claim had been disputed.
I determine that the applicant has since 3 February 2012 been totally incapacitated for work as a result of psychological injury deemed to have occurred on that date.
There will be an award for the applicant of weekly benefits, on the basis of total incapacity, from 3 February 2012 to date and continuing.
The applicant seeks a general order for payment of medical and related expenses pursuant to section 60 of the 1987 Act. The respondent resisted an order for payment of future medical expenses, relying on Dr Lee’s evidence. I see no reason why the applicant should not be entitled to an order for payment of his medical expenses, particularly as I attach no weight to Dr Lee’s evidence, and there will be an award in the applicant’s favour pursuant to section 60 of the 1987 Act.
The applicant, having succeeded in his claim, is entitled to an order that the respondent pay his costs. He submitted that there should an increase for complexity, at the mid-point. The respondent made no submissions as to costs, apart from agreeing with the applicant regarding the complexity of the matter. I note that Arbitrator Bamber allowed a 20% increase in each party’s costs in the first COD. As some of the same factors apply, I will allow a 15% increase in the costs of each party.
The orders are as set out in the Certificate of Determination.
0
3
0