Browne v State of New South Wales (NSW Police Force)
[2023] NSWPIC 92
•7 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Browne v State of New South Wales (NSW Police Force) [2023] NSWPIC 92 |
| APPLICANT: | Matthew Warren Browne |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| Member: | Jacqueline Snell |
| DATE OF DECISION: | 7 March 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant claims weekly compensation payable under section 40 for partial incapacity resulting from multiple physical injury sustained in the course of his employment with the respondent; the applicant claims he has an entitlement to two awards of weekly compensation payable under section 40 because he suffers from separate and distinct incapacities arising from his physical and psychological injuries sustained in the course of his employment with the respondent; the respondent disputes the applicant’s claim; Held – the applicant suffers a partial incapacity resulting from multiple physical injury sustained in the course of his employment with the respondent; the applicant has an entitlement to two awards of weekly compensation payable under section 40; he suffers from separate and distinct incapacities arising from his physical and psychological injuries sustained in the course of his employment with the respondent. |
| determinations made: | (a) The applicant suffers an incapacity for employment as a result of the injuries he sustained to his right elbow, right shoulder, right ankle and lumbar spine in the course of his employment with the respondent. This incapacity for employment is a separate and distinct incapacity for employment to that of his incapacity for employment resulting from the psychological injury he sustained in the course of his employment with the respondent. (b) But for injury, the applicant would have progressed to the rank of Sergeant by 1 July 2011 and to the rank of Inspector by 1 July 2018. (c) The applicant’s probable weekly earnings for the purposes of s 40(2)(a) of the Workers Compensation Act 1987 between 23 December 2011 and 30 June 2018 is the loaded rate applicable to the rank of Sergeant from time to time plus an above award payment of 10%, and the applicant’s probable earnings for the purposes of s 40(2)(a) of the Workers Compensation Act 1987 between 1 July 2018 and 30 June 2020 is the rate applicable to the rank of Inspector from time to time. (d) The applicant’s actual earnings for the purposes of s 40(2)(b) of the Workers Compensation Act 1987 between 23 December 2011 and 30 June 2018 is as follows: (a) between 23 December 2011 and 30 June 2012 at the rate of $0 per week; (b) between 1 July 2012 and 30 June 2013 at the rate of $319 per week; (c) between 1 July 2013 and 30 June 2014 at the rate of $1,287 per week; (d) between 1 July 2014 and 30 June 2015 at the rate of $1,279 per week; (e) between 1 July 2015 and 30 June 2016 at the rate of $1,083 per week; (f) between 1 July 2016 and 30 June 2017 at the rate of $1,291 per week; (g) between 1 July 2017 and 30 June 2018 at the rate of $1,214 per week; (h) between 1 July 2018 and 30 June 2019 at the rate of $1,603 per week, and (i) between 1 July 2019 and 30 June 2020 at the rate of $1,663 per week. (e) Pursuant to s 40 of the Workers Compensation Act 1987 the respondent is to pay a second award of weekly compensation between 23 December 2011 to 30 June 2020 to the applicant as follows: (a) Between 23 December 2011 and 30 June 2012 at the rate of $616.40 per week; (b) Between 1 July 2012 and 30 June 2013 at the rate of $616.40 per week; (c) Between 1 July 2013 and 30 June 2014 at the rate of $69 per week; (d) Between 1 July 2014 and 30 June 2015 at the rate of $110 per week; (e) Between 1 July 2015 and 30 June 2016 at the rate of $302 per week; (f) Between 1 July 2016 and 30 June 2017 at the rate of $400 per week; (g) Between 1 July 2017 and 30 June 2018 at the rate of $789 per week; (h) Between 1 July 2018 and 30 June 2019 at the rate of $548 per week, and (i) Between 1 July 2019 and 30 June 2020 at the rate of $628 per week. (f) The respondent is to pay the applicant’s costs as agreed or assessed. The matter is certified as complex and a 20% uplift on costs for both parties is recommended. |
BACKGROUND
At the time the applicant Matthew Warren Browne (Mr Browne) sustained injury the subject of these proceedings, Mr Browne was employed by the respondent, State of New South Wales (NSW Police Force) (NSWPF). Mr Browne commenced his employment with NSWPF in or about 1997.
While Mr Browne initially performed general duties, in or about 2002 Mr Browne was transferred to the State Protection Dog Unit (Dog Unit) where he performed the duties of a dog handler. In or about 2002 Mr Browne was promoted to the rank of Senior Constable. While performing general duties and those duties required of a dog handler, Mr Browne was exposed to events which ultimately resulted in his medical discharge from NSWPF on or about 22 December 2011 due to psychological injury.
Subsequent to his medical discharge from NSWPF, in 2013 Mr Browne commenced employment with the RSPCA and remains so employed to date. Mr Browne’s work duties with the RSPCA are home based and involve Mr Browne overseeing field based operatives. Mr Browne has a partially dependent wife and three dependent children. Mr Browne is currently 51 years of age. Mr Browne has been in receipt of weekly compensation payable under s 40 of the Workers Compensation Act 1987 (1987 Act) resulting from the psychological injury he sustained in the course of his employment with NSWPF.
In these proceedings Mr Browne alleges he sustained a number of physical injuries in the course of his employment with NSWPF. The circumstances of injury are described in the following terms:
“The Applicant first injured his right elbow in approximately July 2006, when he was throwing a dog over the fence during the course of his work in the Dog Squad. This caused a hyperextension injury which caused pain swelling and discomfort. His elbow never completely recovered and then on 14 November 2006 he fell onto his right elbow when a fellow officer fell onto his right arm whilst they were arresting an offender.
Dr David Duckworth performed an opening excision olecranon spur, olecranon bursectomy and reattachment of triceps on the right elbow on 13 December 2006. The Applicant has received lump sum compensation (5% WPI) for his right elbow injury by way of the attached Complying Agreement. He is partially incapacitated for employment by reason of his right elbow injury.”“The Applicant injured his right shoulder on 20 January 2008 when he was in the Dog Squad and was climbing over a fence when his foot got caught and he stumbled and fell, with his right arm extended while still holding onto a dog. He was immediately aware of pain in his right shoulder region and has had ongoing problems ever since. His shoulder injury was originally treated conservatively with medication, physiotherapy and injections. However, unfortunately his symptoms continued, and he was required to undergo an excision of the distal clavicle and an arthroscopic acromioplasty on 19 February 2009. The Applicant has received lump sum compensation (11% WPI) for his right shoulder injury by way of the attached Complying Agreement. He is partially incapacitated for employment by reason of his right shoulder injury.”
“The Applicant injured his right ankle on 20 December 2009 when he was tracking an offender with a Police Dog. He was required to scale a six-foot timber fence and on landing on the other side, his right foot rolled over onto its side causing pain throughout the ankle joint. The Applicant filled out a recurrence form on 3 February 2010, advising his ankle was still sore since returning to preinjury duties. He was diagnosed with a subtalar joint effusion of the right ankle. He had some time off work and was sent for an MRI; however, no invasive treatment was required. The Applicant has received lump sum compensation (4% WPI) for his right ankle injury by way of the attached Complying Agreement. He is partially incapacitated for employment by reason of his right ankle injury.”
“The Applicant suffered injury to his lumbar spine during the course of his employment with the NSW Police Force. The Applicant relies upon the entirety of his employment carrying out hard and heavy physical duties which are outlined in the report of Dr Oates. A CT of his lumbar spine taken on 17 June 2020 showed degenerative change at L5/S1 with effacement of the left ventral thecal sac and moderate left neuroforaminal stenosis with likely contact of the exiting nerve root. He has sought treatment from Dr Simon Tame from Northern Integrated Pain Management who has been treating him with radiofrequency neurotomy treatment. The Applicant has received lump sum compensation (6% WPI) for his lumbar spine injury by way of the attached Complying Agreement. He is partially incapacitated for employment by reason of his lumbar spine injury.”
NSWPF have accepted liability for the injuries Mr Browne alleges sustained to his right elbow, right shoulder, right ankle and lumbar spine in the course of his employment with NSWPF. In these proceedings Mr Browne claims he suffers a separate and distinct incapacity for work resulting from these injuries to that which he suffers resulting from his psychological injury, and as a consequence he has entitlement to a separate award of weekly compensation payable under s 40 of the 1987 Act from 22 December 2011 to 30 June 2020.
Mr Browne’s claim for weekly benefits payable under s 40 of the 1987 Act resulting from the physical injuries he sustained in the course of his employment with NSWPF is declined. NSWPF disputes Mr Browne has an entitlement to a second award of weekly compensation on the basis that any incapacity resulting from his physical injuries is a separate and distinct incapacity from his incapacity resulting from his psychological injury. NSWPF also disputes Mr Browne’s actual earnings during the period of his claim, Mr Browne’s comparable/probable earnings during the period of his claim, and the rate at which
Mr Browne claims he has an entitlement to paid weekly compensation.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether Mr Browne suffers an incapacity for work as a result of the injuries he sustained to his right elbow, right shoulder, right ankle and lumbar spine in the course of his employment with NSWPF as alleged and if so;
(b) whether Mr Browne has an entitlement to two awards of weekly compensation because he suffers from separate and distinct incapacities arising from his physical and psychological injuries respectively, and if so;
(c) Mr Browne’s actual earnings during the period of his claim for compensation, and
(d) Mr Browne’s comparable/probable earnings during the period of his claim for compensation.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr Browne’s claim came before me for preliminary conference on 21 September 2022. Mr Bourke appeared for Mr Browne. Ms Cincotta appeared for NSWPF. A representative of the insurer was present. Mr Browne was present. With Mr Browne’s claim unresolved at preliminary conference, these proceedings came before me for conciliation/arbitration hearing on 7 November 2022. Mr Hammond of counsel appeared for Mr Browne and Ms Goodman of counsel appeared for NSWPF. Mr Browne was present.
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.
When it became apparent the arbitration hearing would not conclude during the day of
7 November 2022, while Mr Hammond had already prepared written submissions which were handed to me during the arbitration hearing, I issued directions for the lodgement and service of written submissions to be made on behalf of NSWPF and for written in submissions in reply (if any). This has now occurred.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents dated 14 September 2022 and attached documents lodged on behalf of Mr Browne;
(d) Wages schedules lodged on behalf of NSWPF;
(e) Application to Admit Late Documents dated 4 October 2022 and attached documents lodged on behalf of Mr Browne;
(f) Application to Admit Late Documents dated 3 November 2022 and attached documents lodged on behalf of Mr Browne, and
(g) Application to Admit Late Documents dated 14 November 2022 and attached documents lodge on behalf of Mr Browne.
I have also reviewed a document entitled “chronology” as aide-memoire.
Oral evidence
Neither party sought to adduce oral evidence or cross-examine any witness.
FINDINGS AND REASONS
Brief review of relevant evidence
Statements of Mr Browne
Mr Browne provided a number of statements. His initial statement is dated 30 April 2021 and his subsequent statements are dated 1 August 2022, 4 October 2022, 2 November 2022 and 10 November 2022.
It is evident from Mr Browne’s statements that his wife is partially dependant, and he has three dependent children.
Relevant to Mr Browne’s career prospects with NSWPF but for injury, Mr Browne said in his initial statement:
“If I had not been medically discharged from the NSW Police Force, as a combination of both my PTSD and my back and shoulder injury, I would say that my career would have continued the generally upward trajectory that I had experienced during my
14 years on the job.Prior to being discharged from the police, I successfully completed the Sergeants assessment centre. This meant that I had successfully completed all testing required to become a Sergeant of Police. Therefore all I had to do was attend a police station where there was a Sergeant’s position available, and I would take up the rank of Sergeant.
Unfortunately I was discharged prior to taking up my Sergeant’s position.
I have seen several of my police colleagues (who were junior to me) go on to become Sergeants and Inspectors. In fact, the Sergeant who works in the Command where I live, was trained by me on his leaving the Police Academy as a Probationary Constable.
I am not for a minute dismissing their ability, but in my own personal view I had equal ability and superior experience to many of my colleagues who have gone on to either Sergeant or Inspector.
I lost good years between early 2006 when I sustained significant injuries to my elbow and shoulder, and the close succession of my ankle, carpal tunnel and back injuries, and December 2011 when I was medically discharged.
There is no doubt that the continued injuries I was sustaining, requiring extended periods of time having to be taken off work after surgery had a significant effect on my ability to get promoted, particularly when I was struggling with the ankle problems and lower back issues. I probably could have done virtually any role if I only had one physical injury, because I would have been able to ‘carry it’ but having the combination of several physical injuries made it difficult to carry out the full range of general duties required of most non-desk/admin/managerial positions with the Police Force.
The emerging PTSD would have prevented me working in any non-operational or non-physical role.
During that time, I was either off work, returning to work on light duties, or back at work on permanently modified duties (often, forbidden from leaving the Station).
I could not apply for a promotion until I knew I was ready to return to the physical aspects of the job.
There is no doubt that I would have received a posting as a Sergeant, most likely by 2011, as all that was required of me to do was choose a Station that suited me, as I had successfully completed the Sergeant Assessment Centre.
I am very confident that with 4 – 5 years’ experience under my belt as a Sergeant I would have been eligible for promotion to Inspector.
The Police Force has grown substantially since 2006, as has the population of NSW. There are now more Commands, and more senior Police required, and there is obviously more crime, and more complicated and organised crime than ever before.
I do not have any doubt at all that I would have been able to secure one of the many increased positions as Inspector by 2016/2017. 2018 at the absolute latest.”
In his subsequent statement dated 2 November 2022 Mr Browne said that it was his “firm and unshaken belief” that he “would have been an Inspector of many years’ experience by now” but for injury.
Relevant to “extra income from User Pays and overtime” while working with NSWPF,
Mr Browne said in his statement dated 4 October 2022:“Every police officer in NSW has the ability to take home extra money on top of their Loaded Salary by working overtime and doing ‘user pays’ work.
The user pays work involved things like music festivals, escorting wide loads down the Pacific Highway, going to sporting carnivals.
In addition to User Pays, there was also lots of overtime involved in a Dog Handler’s life. You might get a call shortly before the end of your shift to go and investigate a murder, rape, robbery, a motor vehicle or industrial accident, a fire, whatever.
You don’t simply go out to the scene and clock off when your shift ends. You stay until the scene has been secured, evidence has been secured, statements have been taken and the Investigation has been secured.
If this means that you stay an extra six hours or eight hours, you just do it.
In any given year, it’s very common for a relatively senior police officer and particularly any dog handlers to receive 10% extra on top of their loaded award salary in a combination of user pays and overtime.
In the Dog Squad, however, there were other financial benefits for the dog handlers. You got paid an extra five hours per fortnight because you are expected to care for your dog (walk it, feed it, train it etc.) and were paid this allowance each and every pay run.
It added up to a little over $2,500 per year and this is on top of the 10% extra earnings that I could have expected on top of my earnings as a Sergeant (any Sergeant) or Inspector as the case may be.
In addition to the dog squad work, there were also lots of other jobs that extended beyond the end of a regular shift, and of course there were numerous occasions where a colleague would be off sick or out injured and you would need to come in early or stay late or work a couple of extra shifts to cover them.”
Relevant to Mr Browne’s earnings with his current employer, RSPCA, in his latest statement Mr Browne makes the following explanation:
(a) Reportable Fringe Benefit items. Mr Browne explained that the RSPCA provides him with a work vehicle and the RSPCA calculation as to the Fringe Benefit Tax (FBT) relevant to this vehicle is based on a statutory formula. Mr Browne explained the base value of the vehicle affects the value of the FBT. Mr Browne relevantly said:
“I don’t receive any financial benefit or reward for driving the vehicle, and it’s not a ‘salary sacrifice’, namely my earnings have not been reduced because I am driving this vehicle.
It’s not part of a salary package for me to receive this vehicle. It is compulsory that I use this vehicle for RSPCA purposes.”
(b) Salary sacrificing. Mr Browne explained that he has elected to put more money into his superannuation fund than the base rate required to be paid by the RSPCA. Mr Browne said:
“I’ve elected to put more money into superannuation because it is tax effective and is earning me money.
My employer doesn’t pay me any higher salary, or any more money, or provide me with any other benefits because I salary sacrifice by putting extra money into superannuation. I’m getting the same salary as other Inspectors who are at the same level as me; I just used to take home less in my hand and put more into superannuation than they do.”
(c) Ordinary Time earnings. Mr Browne explained that he does not understand any reference to Ordinary Time earnings in his income tax returns and confirmed:
“I have clearly set out the salary that I received from the RSPCA. That figure is what I earn.
The figure that I take home is less than the salary, as I salary sacrifice.
I don’t earn one cent more than the (approximately) $96,000 salary I am presently earning.”
Statement of Jamie Wakefield
Mr Wakefield provided a statement dated 30 April 2021. Mr Wakefield is a retired NSWPF Sergeant. Mr Wakefield said he was aware Mr Browne had successfully completed the promotion process to obtain the rank of Sergeant but because of psychological and physical injuries Mr Browne was not in a position to accept a Sergeant role and further his career with NSWPF. Mr Wakefield said that Mr Browne was medically discharged in 2011 as a result of psychological and physical injuries. Mr Wakefield said, “I have no doubt that Matthew Browne would have gained the rank of Sergeant or above had he been injury free”.
Statement of Donna Wakefield
Ms Wakefield provided a statement dated 8 December 2021. Ms Wakefield is a Sergeant with NSWPF. Sergeant Wakefield said she believed Mr Browne would have been successful in his promotion to the role of Sergeant. She said, “I believe Matthew had the maturity and experience to perform the role of Sergeant or above if had he continued his service with the NSW Police”. Sergeant Wakefield said that Mr Browne was medically discharged as a result of psychological and physical injuries.
Statement of Brian O’Donoghue
Mr O’Donoghue provided a statement dated 22 July 2022. He is a Chief Inspector with NSWPF. Chief Inspector O’Donoghue said he worked closely with Mr Browne between 2002 and 2009, being a time when Mr Browne was working with the Dog Unit. Chief Inspector O’Donoghue said that he has 31 years of overall police experience, having joined NSWPF in 1991. He said that during this time he has worked with many police officers who have been promoted to the rank of Sergeant and Inspector. He said:
“In my professional opinion, Matt had what it takes to be promoted to Sergeant had he continued his service with NSW Police. In fact, I knew Matt had successfully completed the Sergeant Assessment Centre and was in line to take up a Sergeant’s position.
I believe Matt had the required attributes to be promoted to Inspector, had he continued his service with NSW Police.
He had good communication skills, was well respected by his superior officers and was well liked within the various commands.
I am aware that he regularly acted as Sergeant/Team Leader, and it was while he was carrying out this role that I would liaise closely with him in relation to operational matters.
I am aware that whilst Matt was the relieving Sergeant within the dog unit, he had the responsibility for the day to day management, supervision and mentoring of team members, and daily shift requirements.
In my capacity as Detective Chief Inspector, I am responsible for the development of teams, overseeing the supervisors and team members from an operational and human resources perspective, as well as censuring the professional execution of duties and responsibilities to the Command.
In my capacity as Detective Chief Inspector, I have sat on countless various assessment committees, assessing applications for promotion where Police Officers were applying for internal promotion (within the Command) as well as countless officers applying for external promotion, namely officers from outside our Command applying for positions within our Command.
As part of that role, I had many discussions with other Inspectors and Superintendents in which the qualities of applicants for promotion were discussed. These included leadership, mentoring, intelligence, commitment, honesty, integrity, credibility, capability to work as part of a team, decision making prowess and physical capability.
I had numerous discussions with Sergeants (in their capacity as the supervisors of the various officers) to ask their personal opinion on the qualities of various applicants for promotion.
Generally, the decision-makers in the promotional process were interested in:
(a)ability to work as part of a team;
(b)ability to control and direct the team;
(c)ability to inspire a team and mentor those within the team;
(d)intelligence, and
(e)all round police skills, including knowledge of street level policing, tactical decision-making and physical capabilities
Matt was well known as a keen and thorough Police Officer who had the skills, ability, and temperament to be in a permanent leadership role. In addition, he had extensive relieving opportunities at the rank of Sergeant.
My observations of Matt were that he undertook the supervisory and management duties with ease and the authority of an officer with a far greater level of senior management experience. In my opinion, he was a natural leader who had the ability to work independently and as a member of a multidisciplinary team.
I observed Matt having to juggle multiple competing responsibilities, having to work his own police dog in trying environments, as well as dealing with matters involving other dog handlers requiring assistance at the same time. Matt was able to think on his feet and take decisive action in demanding environments. Matt, in his role as a team leader, had the ability to manage staff at serious incidents and take control with professionalism and diligence.
I remember that Matt had numerous injuries in his time as a NSW police dog handler. In particular I recall Matt sustained a serious injury to his elbow in 2006 and his shoulder in 2008 whilst on duty. Both injuries required surgery and resulted in Matt being confined to station duties for a substantial period of time.
An injury to your shoulder or elbow which required surgery that confined you to station duties would be enough to stop you from carrying out operational roles within the Police Force.
I recall that Matt also trained as a tactical dog handler which required him to assist the Tactical Operations Unit in the State Protection Group during his time in the NSW Police. This section of the NSW Police Force requires its officers to maintain an extremely high level of fitness in order to carry out the role.
If his shoulder and/or elbow injuries confined him to station duties, he would not have been able to maintain the high level of fitness and athleticism in order to carry out his role as a NSW Police dog handler.”
It is Chief Inspector O’Donoghue’s understanding that Mr Browne was medically discharged as a result of psychological injury. He said, “if this correct, then the PTSD would have prevented him from carrying out roles such as a Sergeant and or Inspector”.
Statement of Jason Stewart
Mr Stewart provided a statement dated 11 November 2021. Mr Stewart is a retired NSWPF Detective Senior Constable. Mr Stewart said he was Mr Browne’s supervisor for extended periods while he was attached to the Dog Unit. Mr Stewart described Mr Browne as a high performing officer with “significant Policing skills.” Mr Stewart said:
“I personally witnessed Matthew Browne at countless Operational policing jobs. He had superior leadership qualities in taking charge at these jobs and coordinating multi agencies for the successful arrest of many offenders.”
Mr Stewart provided opinion Mr Browne possessed the “maturity and experience” to perform the duties required of Sergeant “and even Inspector had he continued his service with NSW Police”. Mr Stewart said he was aware Mr Browne had successfully completed the promotion process to obtain the rank of Sergeant and said he had no doubt Mr Browne would have gained the rank of Sergeant “or above” had he been injury free. Mr Stewart said Mr Browne had been discharged from NSWPF in 2011 because of “PTSD and his physical injuries”.
Mr Stewart said, “I believe Matthew Browne had the skills and qualities to be promoted to Sergeant, if not Inspector”.
Statement of Wayne Humphrey
Mr Humphrey provided a statement dated 14 August 2022. He is a Detective Superintendent with NSWPF. Detective Superintendent Humphrey said he worked with Mr Browne between 2009 and 2011 when Mr Browne was attached to the Dog Unit. Detective Superintendent Humphrey has over 42 years of overall police experience, having joined NSWPF in early 1980. Detective Superintendent described Mr Browne as “a very fit and active officer and very capable with both weapons and tactics”. He relevantly said:
“During my career, I have worked with many Police Officers who have been promoted to the rank of Sergeant, Senior Sergeant and Inspector.
Matt had successfully completed the Sergeant Assessment Centre Course which measures an officer’s suitability to be promoted to that rank. Given his history relieving at that rank, and my observations of his work performance, I am of a view he could have been promoted to Sergeant.
Matt had good communication skills, was well respected by his superior officers within Port Stephens and the various other Northern Region Commands.
Matt was regularly acting Sergeant/Team Leader whilst attached to the Dog Unit, and it was while he was carrying out this role that I would liaise closely with him in relation to operational matters.
I am aware that whilst Matt was the relieving Sergeant within that the dog unit, he had the responsibility for the day-to-day management, supervision and mentoring of team members, and daily shift requirements.
In my capacity as a Chief Inspector at that time, I was responsible for the development of teams, overseeing the supervisors and team members from and operational and human resources perspective, and to ensure the professional execution of duties and responsibilities to the command. Matt was well-known as a keen and committed police officer, who had the strong operational skills and temperament to be in a leadership role. The extensive relieving opportunities he was afforded as the rank of Sergeant demonstrated this.
My observations of Matt were that he undertook the supervisory and management duties with ease. In my opinion he had the ability to work independently and as a member of a multiple disciplinary team.
I observed Matt having to juggle multiple competing responsibilities. He had to work his own police dog in widely varying environments. He supported other dog handlers requiring assistance at the same time. Matt, in his role as a team leader, displayed the ability to manage staff at serious incidents and take control with professionalism and diligence stop
I was made aware of numerous injuries that he had sustained whilst attached to the Dog Unit and prior to relocating to the North Region. Of note I was aware of him sustaining a broken elbow and a serious injury to his shoulder. Both these injuries required surgical intervention.
From 2009, Matt also sustained further injuries whilst working in the Dog Unit. Matt sustained carpal tunnel syndrome a result of working his Police dogs which required surgical intervention to alleviate the pain. Matt sustained an ankle injury whilst tracking an offender at Coffs Harbour around 2009 which resulted in him being restricted from his normal duties for a period of time. Ongoing this injury would flare up and he would enter restricted duties until the injury was brought under control. Matt would regularly be in discomfort from a back injury that was sustained throughout his tenure in the Dog Unit. Matt would remove his duty belt and lie on the floor in an attempt to relive the pain in his back.
These injuries resulted in Matt being confined to station duties for a period and prevented him from carrying out his normal operational roles.
I was aware that Matt was also trained as a Tactical Dog Handler which required him to assist the Tactical Operations Unit in the State Protection Group during his time in the NSW Police. This section of the NSW Police Force requires its officers to maintain an extremely high level of fitness to carry out the role.
If the injuries that I mentioned confined him to Station Duties, he was not able to maintain the high level of fitness and athleticism in order the carry out his role as a NSW Police Dog handler.
I am aware that Post Traumatic Stress Disorder caused Matt to be Medically Discharged in about 2011.
If this is correct, then the PTSD would have prevented him from carrying out roles such as a Sergeant should he have been promoted to that rank…”
Financial material
I have carefully reviewed the financial material in evidence.
I understand the schedule dated 4 October 2022 prepared on behalf of Mr Browne relevantly particularised his claim for weekly compensation payable under s 40 of the 1987 Act:
(a) period;
(b) RSPCA earnings;
(c) weekly compensation paid under s 40 of the 1987 Act for primary psychological injury;
(d) total of (b) and (c);
(e) comparable earnings but for injury, and
(f) loss.
(a)
(b)
(c)
(d)
(e)
(f)
23/12/2011 – 30/6/2012
-
$18,172
$18,172
$48,704.34
$30,532.34
1/7/2012 – 10/3/2013
-
$25,628.80
$25,628.80
$67,714.41
$42,085.61
11/3/2013 - 30/6/2013
$16,973
$12,023.50
$29,046.50
$29,591.73
$545.73
Year ending 30/6/2014
$66,926
$37,727
$104,653
$107,570
$2,917
Year ending 30/6/2015
$66,497
$38,502
$104,999
$114,924
$9,925
Year ending 30/6/2016
$56,292
$45,061
$101,353
$124,925
$23,572
Year ending 30/6/2017
$67,151
$31,575
$98,726
$133,958
$35,232
Year ending 30/6/2018
$78,722
$23,879
$102,601
$147,764
$45,163
Year ending 30/6/2019
$83,338
$23,293
$106,631
$156,837
$50,206
Year ending 30/6/2020
$86,490
$26,397
$112,887
$162,727
$49,840
Mr Browne’s gross earnings with RSPCA (ABN87000001641) are demonstrated in his income tax returns for the financial years ending 2013 through to 2020, and save for his gross earnings for the financial year ending 2013, Mr Browne’s income tax returns demonstrate his gross earnings with RSPCA as particularised above:
2013
$16,595
2014
$66,926
2015
$66,497
2016
$56,292
2017
$67,151
2018
$78,722
2019
$83,338
2020
$86,490
The Awards relevant to Police Officers with NSWPF are in evidence and noting concession made by NSWPF that Mr Browne but for injury would have attained the rank of Sergeant at least from December 2011 and Mr Browne’s allegation that but for injury he would have attained the rank of Inspector by 2016/2017 or 2018 by the latest, I make the following observations relevant to Mr Browne’s claim:
(a) period;
(b) Sergeant (loaded salary);
(c) 10% for overtime for Sergeant, and
(d) Inspector (loaded salary).
Period
Sergeant
10% for overtime
Inspector
To commence on or after 1 July 2011
1st year $87,057
$95,763
-
To commence on or after 1 July 2012
No published award
2nd year
($92,740 alleged)
$102,014
-
To commence on or after 1 July 2013
3rd year $98,423
$108,265
-
To commence on or after 1 July 2014
4th year $100,658
$110,724
-
To commence on or after 1 July 2015
5th year $106,467
$117,114
-
To commence on or after 1 July 2016
6th year $108,639
$119,503
1st year $127,473
To commence on or after 1 July 2017
7th year $117,653
$129,418
1st year $131,841
2nd year $138,547
To commence on or after 1 July 2018
8th year $120,594
$132,653
1st year $135,137
2nd year $142,011
3rd year $151,458
To commence on or after 1 July 2019
9th year $124,994
$137,493
2nd year $145,561
3rd year $155,244
4th year $160,297
While NSWPF have lodged no financial documents in response to Mr Browne’s claim, the respondent a wages schedule was lodged in accordance with my directions made at the preliminary conference on 21 September 2022. In essence NSWPF quibble with the manner in which Mr Browne has calculated his actual earnings during the period of claim. NSWPF assumed Mr Browne as having adopted the “gross payment” particularised in his PAYG summaries for the purpose of estimating his actual earnings and argued that the extent of Mr Browne’s actual earnings was unclear from the PAYG summaries. Mr Browne has explained, with example, that reference in his pay slips to his “annual salary” includes compulsory superannuation contributions made by RSPCA, that reference in his pay slips to the deduction of “extra tax” is relevant to prepayment of an “extra tax bill” that he receives at the end of each year for reasons that are not entirely clear to him and that reference to the deduction of “salary sacrificing” is relevant to his election to pay more money into his superannuation fund than the contribution made by RSPCA. In light of the comments made by NSWPF relevant to Mr Browne’s PAYG summaries and the fact that Mr Browne’s income tax returns are in evidence I do not propose to canvass the PAYG summaries that are in evidence.
NSWPF have lodged what appears to be a further wages schedule attached to written submissions lodged and served on behalf of NSWPF. This further wages schedule purports to particularise Mr Browne’s probable earnings but for injury during the period of his claim, Mr Browne’s actual earnings during the period of his claim, the difference between Mr Browne’s probable earnings and his actual earnings during the period of his claim, the maximum statutory rate payable under s 40 of the 1987 Act from time to time, and the weekly compensation paid under s 40 of the 1987 Act for Mr Browne’s primary psychological injury. As submissions in reply have been lodged and served on behalf of Mr Browne in response to those lodged and served on behalf of NSWPF I have reviewed this further wages schedule.
Of note is that NSWPF had lodged no evidence to refute Mr Browne’s assertion he would have attained the role of Inspector by 2016/2017 or 2018 by the latest, or Mr Browne’s assertion that he would have earned an additional 10% over and above the loaded salary applicable to the rank of Sergeant.
MEDICAL EVIDENCE
Treating medical evidence
It is evident that over time Mr Browne has received treatment for the physical injuries he sustained in course of his employment with NSWPF, including but not limited to medication and physiotherapy treatment, right elbow surgical treatment in 2006, ultrasound guided cortisone injections in his right shoulder in 2008 and 2016, right shoulder surgical treatment in 2009, and radiofrequency neurotomy treatment for his low back during 2021.
Independent medical evidence
Dr Bertucen
Mr Browne was assessed by Dr Bertucen in his capacity as independent medical examiner. Dr Bertucen is a psychiatrist. Dr Bertucen provided a report dated 14 September 2011. In his report Dr Bertucen noted Mr Browne’s last active day of work with NSWPF had been in
mid-October 2010 as a Senior Constable in the Dog Squad. Dr Bertucen noted Mr Browen was seeking medical discharge from NSWPF due to an inability to return to work due to his psychological symptoms. Mr Browne reported that while he deeply regretted leaving his work which he described as “the best job in the cops” he saw medical discharge from NSWPF “as a matter of personal and emotional survival”. Dr Bertucen noted Mr Browne was attested in 1997. Dr Bertucen noted a history of a number of traumatic incidents to which Mr Browne was exposed during his 13 years with NSWPF, including suicides, homicides, domestic violence and the aftermath of numerous motor vehicle accidents, often involving fatality.Following interview, which included mental state examination, Dr Bertucen provided diagnosis of chronic post-traumatic stress disorder and comorbid major depressive disorder with features of anxiety. Dr Bertucen provided opinion Mr Browne’s psychological injury was primary in nature and had arisen as a result of an accumulation of workplace related traumatic incidents to which Mr Browne had been exposed in the course of his employment with NSWPF. Dr Bertucen described diagnosis as “essentially in accord with those expressed by his treating psychologist Martin Peters and his treating psychiatrist Dr Geoffrey Robinson in their respective reports”.
Relevant to Mr Browne’s capacity for work, Dr Bertucen is strident in opinion Mr Browne suffers an incapacity for work resulting from his psychological injury. In response to specific questioning, Dr Bertucen relevantly said:
“In my opinion, Mr Browne is currently psychologically incapable of returning to any form of employment, even outside the police force.
…
In my opinion, Mr Browne is totally and permanently incapable of returning to work with the NSW Police Force in any capacity.
…
Regrettably, I am of the opinion that Mr Browne, despite being a capable officer who enjoyed his job, will be permanently incapacity with regards to any form of police work and therefore I would recommend his medical (psychological) discharge from the NSW Police force at the earliest opportunity.”
Dr Pillemer
Mr Browne was assessed by Dr Pillemer in his capacity as independent medical examiner. Dr Pillemer is an orthopaedic surgeon. Dr Pillemer provided a report dated 21 January 2013. In his report Dr Pillemer relevantly said:
“From a purely orthopaedic point of view it is my opinion he would be able to get back to a wide range of employment opportunities and activities, but I would accept that he would need to avoid work that placed excessive stress on his right shoulder region or on both hands. In all probability then he would be unlikely to be able to get back to normal full pre-injury duties.
… it is predictable that he is going to have ongoing problems with his right shoulder in the medium to long term.”
Dr Oates
Mr Browne was assessed by Dr Oates in his capacity as independent medical examiner.
Dr Oates specialises in occupational medicine. Dr Oates provided a report dated
14 April 2021. In his report Dr Oates relevantly provided diagnosis:(a) tear of triceps tendon attachment at posterior elbow with associated olecranon bursitis and aggravation of degenerative spur of the olecranon;
(b) soft tissue injury of the right shoulder necessitating excision of distal clavicle and acromioplasty;
(c) inversion sprain right ankle with formation of subtalar joint infusion, and
(d) aggravation of degenerative changes (lumbar spondylosis) producing mechanical low back pain from lower lumbar facet joint irritation.
Dr Oates reported:
“… based on the history given and the evidence available to me, I obtained no history of any injuries to these parts outside of his employment and he gave no history of any symptomatic condition affecting the injured parts prior to the specified injuries.”
Dr Oates provided opinion Mr Browne is not fit to carry out full and unrestricted duties of a general duties officer, including those required of “a dog squad officer”. Dr Oates explained that he formed his opinion because the physical demands of the role exceeded the physical capacity limitations imposed on Mr Browne by his injuries, particularly the injuries he had sustained to his right upper limb (which I assume to be reference to Mr Browne’s right shoulder), his lumbar spine and his right ankle. While Dr Oates provided opinion Mr Browne is fit for full work, five days each week, in sedentary to light work, he cautioned:
(a) he should restrict repetitive bending and twisting at the waist;
(b) he should restrict lifting from ground level to 10kg up to chest height and 5kg above chest height;
(c) he should restrict heavy pushing and pulling to 20kg equivalent;
(d) he should restrict sitting or standing to one hour at a time and then have postural variation, and
(e) he should restrict driving to one hour at a time and then have postural variation.
SUBMISSIONS
Mr Hammond and Ms Goodman provided written submissions. I have carefully considered counsels’ submissions and I am grateful to counsel for the assistance they have afforded me in this particular matter. Copies of counsels’ submissions are available to the parties and are not reproduced here save to note NSWPF concedes Mr Browne would have become a Sergeant at least from December 2011.
DETERMINATION
Does Mr Browne suffer an incapacity for work as a result of the physical injuries he sustained in the course of his employment with NSW Police Force, as alleged?
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
The concept of a partial incapacity for work was relevantly canvassed in Arnotts Snack Products Pty Ltd v Yacob:[1]
“… the concept of partial incapacity for work is that or reduced physical capacity, by reason of physical disability, for actually doing work in the labour market which the employee was working or might reasonably be expected to work.”
[1] [1985] HCA 2 at [178].
NSWPF does not dispute Mr Browne sustained multiple physical injury in the course of his employment with NSWPF, including:
(a) injury sustained to his right elbow in 2006;
(b) injury to his right shoulder in 2008;
(c) injury to his right ankle in 2009, and
(d) injury to his lumbar spine as a result of the nature and conditions of his work duties with the Dog Unit.
It is evident Mr Browne has undertaken a range of medical and related treatment for such injuries, including surgical treatment of his right elbow in 2006, surgical treatment of his right shoulder in 2009, radiofrequency neurotomy treatment for his low back during 2021, and physiotherapy and pain medication for multiple injury. It is also evident Mr Browne has been paid permanent impairment compensation resulting from the injuries he sustained to his right shoulder, his right ankle, and his lumbar spine in the course of his employment with NSWPF.
Relevant to his right shoulder injury, Mr Browne said he has difficulty with holding his arm over his head, throwing objects, and holding weight in front of his body. Relevant to his low back injury, Mr Browne said he had difficulty bending, twisting, squatting, and kneeling. Relevant also to his low back injury, Mr Browne said he can only stand for approximately
30 minutes and can only remain in the same spot for short periods of time before he has to transfer his weight. Relevant to a combination of his right elbow injury, right shoulder injury and low back injury, Mr Browne said he is restricted in activities that include lifting, carrying, pulling, and pushing.Dr Pillemer provided opinion as early as 21 January 2013 that Mr Browne
“would need to avoid work that placed excessive stress on his right shoulder region or both hands. In all probability, then he would be unlikely to get back to normal full pre-injury duties.”
In more recent times, Dr Oates provided opinion on 14 April 2021 that Mr Browne suffered an incapacity for the duties required of a general duties police officer and those of a Dog Squad officer, because the physical demands of the duties that would be required of him in such roles exceeded the physical capacity limitations imposed by the physical injuries he had sustained in the course of his employment with NSWPF, particularly those injuries sustained to his right shoulder, right ankle and low back. Dr Oates provided opinion Mr Browne had capacity for sedentary to light duties on a full-time basis (being seven and half hours each day for five days each week). I consider Dr Oates has provided opinion then that Mr Browne suffers an incapacity for work due to the physical injuries he sustained in the course of his employment with NSWPF that is separate from the incapacity for work Mr Browne suffers due to the psychological injury he sustained in the course of his employment with NSWPF.
I accept Mr Browne suffers a partial incapacity for work resulting from the physical injuries he has sustained in the course of his employment with NSWPF, particularly those sustained to his right shoulder, right shoulder, and low back. Dr Oates has a specialty in occupational medicine and I have no reason not to accept Dr Oates’ opinion.
Is Mr Browne entitled to two awards of weekly compensation because he suffers from separate and distinct incapacities arising from the psychological injury and the physical injuries he sustained in the course of his employment with NSWPF?
In his report dated 14 September 2011 Dr Bertucen provided opinion Mr Browne had sustained primary psychological injury in the course of his employment with NSWPF and was strident in opinion Mr Browne suffers an incapacity for work resulting from his primary psychological injury. NSWPF does not dispute Mr Browne has sustained primary psychological injury in the course of his employment with NSWPF and that he suffers an incapacity for work arising from his primary psychological injury.
NSWPF do not dispute Mr Browne sustained physical injuries in the course of his employment with NSWPF and I accept Mr Browne’s physical injuries have resulted in a separate and distinct incapacity for work. Dr Pillemer provided opinion as early as 21 January 2013 that Mr Browne suffered an incapacity for work resulting from the injury he sustained to his right shoulder in the course of his employment with NSWPF. Dr Oates subsequently provided opinion on 14 April 2021 that Mr Browne suffered an incapacity for work resulting from the injuries he sustained to his right shoulder, left ankle and low back in the course of his employment with NSWPF. I accept the opinions provided by Dr Pillemer and Dr Oates relevant to Mr Browne’s incapacity for work resulting from his physical injuries. I also accept Mr Browne suffers an incapacity for work due to the physical injuries he sustained in the course of his employment with NSWPF that is separate from any incapacity for work Mr Browne suffers due to the psychological injury he sustained in the course of his employment with NSWPF.
The principles outlined in Cordina Chicken Farms Pty Ltd v Thoa Hong Le[2] have application to this matter. In Cordina Chickens Roche DP discussed the circumstances in which a worker is entitled to two awards of weekly compensation from a single employer and the method of calculation. The Deputy President said:
[2] [2008] NSWWCCPD125 (Cordina Chickens).
“[59] (a)a worker who has received two injuries that have resulted in two separate and distinct incapacities may, in the appropriate case, supported by relevant evidence, recovered two concurrent awards of weekly compensation regardless of whether the second injury has resulted in total or partial incapacity (Doudie, Holmes and Ince);
(b)the two injuries do not have to be received with different employers in order for the worker to be entitled to two awards (Ince at 701D and Holmes at 592);
(c)whilst a finding of total incapacity, subsequent to a finding of partial incapacity, will not eliminate the liability for the initial partial incapacity, the calculation of compensation payable under section 44 the initial partial incapacity calls for the application of the discretion in section 40 (1) (Holmes at 592) in determining the amount of compensation that is ‘proper in the circumstances of the case’ (Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSCCR 50). The proper application of the discretion in such a case (where the subsequent incapacity is total) may well result in the award for the initial partial incapacity being reduced to a nominal amount because the subsequent total incapacity will have eliminated the worker’s ability to earn in any event. The exercise of the discretion may also be relevant in a situation where the subsequent incapacity is partial, but the precise impact of the initial partial incapacity will depend on the facts of the particular case; and
(d)an entitlement to two awards is subject to the following limit on the quantum of compensation that may be awarded. The combined compensation under the two awards, plus the workers residual earning capacity, must not exceed the amount the worker would have earned had he or she remained uninjured (Alcan Australia Ltd v Jordan (1995) 11 NSWCCR 475 at 482E (Jordan)). This does not offend section 40(5) of the 1987 Act, which restricts the compensation payable for ‘any period of partial incapacity’ as a result of an injury (see section 33 of the 1987 Act) but says nothing about the quantum of compensation payable in respect of multiple awards resulting from multiple injuries.
[60] The determination of whether to injuries have resulted in separate and distinct incapacities is not done in the abstract but is done by looking at the labour market in which the worker is working or may reasonably expected to work to look for work. It will be question of fact in each case and it should not be assumed that it will be the norm for two injuries to result in two incapacities.”
The Deputy President also said:
“[64] The facts in Jordan are a good illustration of the kind of situation where it was held to be appropriate to find that separate incapacities had resulted from multiple injuries. In that case the worker developed ‘pot room asthma’ in 1982. In August 1986 he injured his back but continued working. In March 1989 he injured his left knee and back and underwent knee surgery in September of that year. He lost no time from work until his employment was terminated in 1990. Because of the effect of the transitional provisions in the 1987 Act, his first back injury was deemed to have happened in March 1989 and these constituted a single injury for the purposes of the 1987 Act (at 483C).
[65] The trial judge made three awards: first, a closed period in respect of the asthma (not the subject of appeal), second, under section 11(2) of the 1926 Act based on the asthma, and third, under section 40 of the 1987 act based on the knee and back injuries (the orthopaedic injuries). The Court of Appeal (Handley JA with Gleeson CJ agreeing) set aside the section 11(2) award on the basis that the orthopaedic injuries destroyed the mutuality, which is central to an employer’s obligation under section 11(2) (at 481G). The Court also found error in that the quantum of the awards exceeded the workers probable earnings had he not been injured. The court added (at 483E), however, that the worker had ‘two distinct partial incapacities’ (one as a result of his inability to work in the pot room because of his asthma and one as a result of his inability to engage in lifting heavy weights or traverse uneven ground or climb stairs because of his orthopaedic injuries) resulting from two separate injuries and he was therefore ‘entitled to separate awards under section 40(1)’. The matter was remitted for the calculation of the quantum of those awards.
[66] The matter of Cullen v Oceanic Coal Australia Limited (West Wallsend Colliery) (unreported 6 October 2004, Bishop CCJ No. RJ18 of 2004) is also instructive. In this matter his Honour entered two separate awards against the employer for partial incapacities in addition to confirming the continuation of a third (existing) award of partial incapacity. His Honour found ‘separate’ partial incapacities for a right shoulder injury in 1993, a right eye injury on 15 December 2000, and a left knee injury on or about 26 June 2001. No challenge was made to the fact that the total compensation payable greatly exceeded the maximum in section 40(5) of the 1987 Act.”
As I accept Mr Browne suffers an incapacity for work due to the physical injuries he sustained in the course of his employment with NSWPF that is separate from any incapacity for work Mr Browne suffers due to the psychological injury he sustained in the course of his employment with NSWPF, I am of the view Mr Browne has an entitlement to two awards of compensation payable under s 40 of the 1987 Act.
Quantification of entitlement to weekly compensation
As I accept Mr Browne has an entitlement to two awards of weekly compensation because he suffers from separate and distinct incapacities, with Mr Browne’s incapacity for employment resulting from his injuries being in the nature of a partial incapacity for employment, Mr Browne’s entitlement to weekly compensation is to be assessed in accordance with s 40 of the 1987 Act. Mitchell v Central West Health Service [3] usefully identifies the five steps to be taken in determining an award for weekly compensation pursuant to s 40 of the 1987 Act:
(a) to determine in accordance with s 40(2)(a) the weekly amount the worker would probably have been earning if uninjured;
(b) to determine in accordance with s 40(2)(b) the weekly amount that the worker is earning or would be able to earn in suitable employment (the determination of this amount is subject to the matters referred to in s 40(3));
(c) subtract the figure calculated in (a) from that calculated in (b);
(d) decide in accordance with s 40(1) whether and to what extent the reduction so calculated appears proper in the circumstances of the case and exercise that discretion accordingly, and
(e) make an award in the amount arrived at by (d).
[3] (1997) 14 NSWCCR.
Mr Browne joined NSWPF in 1997 and undertook general duties until he transferred to the Dog Unit in 2002. That same year Mr Browne was promoted to the rank of Senior Constable. Mr Browne was medically discharged from NSWPF on 22 December 2011 as a result of the primary psychological injury he sustained in the course of his employment with NSWPF. Mr Browen has been in receipt of weekly compensation benefits payable under s 40 of the 1987 Act for his primary psychological injury.
Of significance is that prior to his medical discharge on 22 December 2011 Mr Browne successfully completed all the testing required of promotion to the rank of Sergeant. and that subsequent to his medical discharge from NSWPF Mr Browne commenced employment with RSPCA in 2013 (for which he is to be commended) with his employment with RSPCA continuing to date.
Mr Hammond submitted that but for Mr Browne’s physical injuries, Mr Browne would have achieved promotion to the rank of Sergeant by 2011 and the rank of Inspector by 2016. NSWPF concede Mr Browne would have achieved promotion to the rank of Sergeant by December 2011. Mr Browne said in his statement that but for injury he would have attained the role of Inspector by 2018 “at the absolute latest”.
It is evident from the statements provided by Mr Wakefield, Sergeant Wakefield, Chief Inspector O’Donoghue, Mr Stewart and Detective Superintendent Humphrey that Mr Browne could be expected to have achieved promotion to the rank of Sergeant following his successful testing of the requirement to achieve such promotion and NSWPF have conceded that Mr Browne would have achieved promotion to the rank of Sergeant by December 2011.
While NSWPF have adduced no evidence on the issue of any probable promotion of
Mr Browne but for injury to the rank of either Sergeant or Inspector, the applicant has the onus of proving he would have achieved promotion to this rank. In Nguyen v Cosmopolitan Homes (NSW) Limited[4] the Court stated:“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the actual existence of that fact.”
[4] [2008] NSWCA 246.
While I am not persuaded by the evidentiary statements provided by Mr Browne,
Mr Wakefield, Sergeant Wakefield, Mr Stewart and Detective Superintendent Humphrey that Mr Browne would have but for injury attained the rank of Inspector as early as 2016, on the balance of probabilities, I am satisfied (in that I “feel an actual persuasion”) that Mr Browne but for injury could have expected to achieve promotion to the rank of Sergeant by
1 July 2011 and Inspector by 1 July 2018.Mr Browne is confident he would have attained the role of inspector by 2018 at “the absolute latest” and Mr Wakefield (a retired NSWPF Sergeant), Sergeant Wakefield, Chief Inspector O’Donoghue, and Mr Stewart (a retired NSWPF Detective Senior Constable), have all said that but for injury Mr Browne would have attained the rank of Sergeant “or above”. While Detective Superintendent Humphrey, who is the longest serving officer with NSWPF and holds the most senior rank with NSWPF of all the witnesses who have provided statements in support of Mr Browne’s claim, has provided no comment as to the probability of Mr Browne but for injury attaining the rank of Inspector, Detective Superintendent Humphrey’s stated observations of Mr Browne and his stated opinion of Mr Browne’s operational and leadership skills do not appear to me to be incongruous with Mr Browne but for injury attaining the rank of Inspector some seven years after attaining the rank of Sergeant in 2011, the latter being a fact conceded by NSWPF.
I am particularly comforted in my conclusion Mr Browne would have but for injury attained the rank of Inspector by 2018 by Chief Inspector O’Donoghue’s opinion Mr Browne would have but for injury attained the rank of Inspector. Chief Inspector O’Donoghue has an excess of
30 years’ experience with NSWPF and holds a senior rank with NSWPF. Chief Inspector O’Donoghue worked closely with Mr Browne between 2002 and 2009 and appears to me to possess an insightful knowledge of the promotion process relevant to the rank of Inspector, including the selection criteria, and I have no reason not to accept Chief Inspector O’Donoughe’s opinion that Mr Browne would have but for injury attained the rank of Inspector. While Chief Inspector O’Donoghue provided no time frame as to when it may have been that Mr Browne would have but for injury attained the rank of Inspector, I have no reason not to accept Mr Browne’s assertion that this would have occurred by 2018 “at the absolute latest”.
Following a review of the evidence as a whole and careful consideration of counsel’s submissions I accept Mr Browne’s probable earnings but for injury between
22 December 2011 and 30 June 2018 would have accorded with those of the loaded salary of a Sergeant with an additional 10% over and above the loaded salary. Following a review of the evidence as a whole and careful consideration of counsel’s submissions I also accept Mr Browne’s probable earnings but for injury between 1 July 2018 and 30 June 2020 would have accorded with those of the salary of an Inspector.Following a review of the evidence as a whole and careful consideration of counsel’s submissions I accept Mr Browne’s actual earnings with RSPCA between when he commenced his employment with RSPCA on 11 March 2013 and 30 June 2020 are as evidenced in his income tax returns for the financial years ending 30 June 2013 through to 30 June 2020.
With my acceptance that Mr Browne would have attained the rank of Sergeant by 1 July 2011 and Inspector by 1 July 2018, doing the best that I can having regard to financial material in evidence, I am satisfied Mr Browne’s annual losses to approximate as follows:
(a) period;
(b) RSPCA earnings (actual earnings);
(c) weekly compensation payments under s 40 of the 1987 Act for primary psychological injury;
(d) total of (b) and (c);
(e) comparable earnings but for injury, and
(f) loss.
| (a) | (b) | (c) | (d) | (e) | (f) |
| 23/12/2011- 30/6/2012 | - | $18,172 | $18,172 | $48,704 | $30,532 |
| 1/7/2012 – 10/3/2013 | - | $25,629 | $25,629 | $67,714 | $42,086 |
| 11/3/2013 – 30/6/2013 | $16,595 | $12,024 | $28,619 | $29,592 | $973 |
| Year ending 30/6/2014 | $66,926 | $37,727 | $104,653 | $108,265 | $3,612 |
| Year ending 30/6/2015 | $66,497 | $38,502 | $104,999 | $110,724 | $5,725 |
| Year ending 30/6/2016 | $56,292 | $45,061 | $101,353 | $117,114 | $15,761 |
| Year ending 30/6/2017 | $67,151 | $31,575 | $98,726 | $119,503 | $20,777 |
| Year ending 30/6/2018 | $78,722 | $23,879 | $102,601 | $129,418 | $26,817 |
| Year ending 30/6/2019 | $83,338 | $23,293 | $106,631 | $135,137 | $28,506 |
| Year ending 30/6/2020 | $86,490 | $26,397 | $112,887 | $145,561 | $32,674 |
Calculated on a weekly basis, Mr Browne’s loss during the period of his claim for weekly compensation payable under s 40 of the 1987 Act appears to be as follows:
(a) period;
(b) RSPCA earnings (actual earnings);
(c) weekly compensation payments under s 40 of the 1987 Act for primary psychological injury;
(d) total of (b) and (c);
(e) comparable earnings but for injury, and
(f) loss.
| (a) | (b) | (c) | (d) | (e) | (f) |
| Between 23/12/2011 and 30/6/2012 (27 weeks) | - | $673 | $673 | $1,804 | $1,131 |
| Year ending 30/6/2013 | $319 | $724 | $1,043 | $1,871 | $828 |
| Year ending 30/6/2014 | $1,287 | $726 | $2,013 | $2,082 | $69 |
| Year ending 30/6/2015 | $1,279 | $740 | $2,019 | $2,129 | $110 |
| Year ending 30/6/2016 | $1,083 | $867 | $1,950 | $2,252 | $302 |
| Year ending 30/6/2017 | $1,291 | $607 | $1,898 | $2,298 | $400 |
| Year ending 30/6/2018 | $1,214 | $459 | $1,700 | $2,489 | $789 |
| Year ending 30/6/2019 | $1,603 | $448 | $2,051 | $2,599 | $548 |
| Year ending 30/6/2020 | $1,663 | $508 | $2,171 | $2,799 | $628 |
No submissions have been made on behalf of NSWPF as to whether the discretion under
s 40(1) of the 1987 Act should be exercised in the circumstances of this particular matter and in the absence of submissions made on behalf of NSWPF in response to those made on behalf of Mr Browne, I am not inclined to exercise the discretion available under s 40(1) of the 1987 Act.I am satisfied Mr Browne has suffered a separate and distinct incapacity from the physical injuries he sustained in the course of his employment with NSWPF between
23 December 2011 and 30 June 2020 (being the period of his claim for weekly compensation payable under s 40 of the 1987 Act) on the basis of a partial incapacity for work. Accordingly Mr Browne’s entitlement to weekly compensation during the period of his claim is as follows:(a) between 23 December 2011 and 30 June 2012 at the rate of $616.40 per week (applicable maximum statutory rate);
(b) between 1 July 2012 and 30 June 2013 at the rate of $616.40 per week (applicable maximum statutory rate);
(c) between 1 July 2013 and 30 June 2014 at the rate of $69 per week;
(d) between 1 July 2014 and 30 June 2015 at the rate of $110 per week;
(e) between 1 July 2015 and 30 June 2016 at the rate of $302 per week;
(f) between 1 July 2016 and 30 June 2017 at the rate of $400 per week;
(g) between 1 July 2017 and 30 June 2018 at the rate of $789 per week;
(h) between 1 July 2018 and 30 June 2019 at the rate of $548 per week, and
(i) between 1 July 2019 and 30 June 2020 at the rate of $628 per week.
Costs
As I accept Mr Browne has sustained a separate and distinct incapacity for work as a result of the physical injuries he sustained in the course of his employment with NSWPF and I accept Mr Browne has an entitlement to a second award of weekly compensation payable under s 40 of the 1987 Act between 23 December 2011 and 30 June 2020, it follows
Mr Browne has entitlement to his costs.It has been submitted this matter involved a degree of complexity with which I agree. I am satisfied in the circumstances where there was a contested hearing following protracted settlement discussions, which involved written submissions lodged by both parties, an uplift for complexity is appropriate. I recommend an uplift of 20% relevant to the parties’ costs.
SUMMARY
Mr Browne suffers an incapacity for employment as a result of the physical injuries he sustained in the course of his employment with NSWPF. This incapacity for employment is a separate and distinct incapacity for employment to that of any incapacity for employment resulting from the psychological injury he sustained in the course of his employment with NSWPF.
Mr Browne has an entitlement to a second award of weekly compensation payable under
s 40 of the 1987 Act. NSWPF is to pay a second award of weekly compensation between
22 December 2011 to 30 June 2020 as follows:(a) between 23 December 2011 and 30 June 2012 at the rate of $616.40 per week (applicable maximum statutory rate);
(b) between 1 July 2012 and 30 June 2013 at the rate of $616.40 per week (applicable maximum statutory rate);
(c) between 1 July 2013 and 30 June 2014 at the rate of $69 per week;
(d) between 1 July 2014 and 30 June 2015 at the rate of $110 per week;
(e) between 1 July 2015 and 30 June 2016 at the rate of $302 per week;
(f) between 1 July 2016 and 30 June 2017 at the rate of $400 per week;
(g) between 1 July 2017 and 30 June 2018 at the rate of $789 per week;
(h) between 1 July 2018 and 30 June 2019 at the rate of $548 per week, and
(i) between 1 July 2019 and 30 June 2020 at the rate of $628 per week.
Mr Browne has an entitlement to his costs on these proceedings. NSWPF are to pay
Mr Browne’s costs as agreed or assessed. I accept this matter involved a degree of complexity and recommend an uplift of 20% relevant to the parties’ costs.
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