Dixon v State of New South Wales (Fire & Rescue NSW)
[2022] NSWPIC 452
•10 August 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Dixon v State of New South Wales (Fire & Rescue NSW) [2022] NSWPIC 452 |
| APPLICANT: | Gregory Dixon |
| RESPONDENT: | State of New South Wales (Fire & Rescue NSW) |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 10 August 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment compensation including for pain and suffering in respect of a psychological injury with a deemed date in December 2002; dispute over the amount payable pursuant to section 67 of the Workers Compensation Act 1987 for pain and suffering; dispute also as to whether applicant had an assessable but non-compensable impairment as at 31 December 2001 and whether the transitional provisions require a deduction for such an impairment; Held — the applicant’s condition is chronic and severe; he has endured it for nearly 20 years and it is likely to persist; on balance, a finding of pain and suffering at the rate of 55% of a most extreme case is appropriate; there is insufficient evidence to establish the presence of an assessable but previously non-compensable impairment as at 31 December 2001; there is no doubt the applicant was exposed to several traumatic events before that date and experienced some symptoms consistent with his injury; however, there is no expert opinion which even suggests the presence of a rateable impairment pursuant to the Psychiatric Impairment Ratings Scale (PIRS) at or before 31 December 2001; the mere presence of some symptomology is not a substitute for evidence sufficient to make a finding of the presence of an assessable impairment at the relevant date; accordingly the transitional provisions do not apply and there is no deduction to be made. |
DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered a primary psychological injury in the course of his employment with the respondent with a deemed date of injury of 6 December 2002. 2. As a result of that injury, the applicant has been assessed by Medical Assessor Dr Suman as suffering a whole person impairment of 20%. 3. As a result of his injury, the applicant has suffered pain and suffering of 55% of a most extreme case. 4. The respondent is to pay the applicant permanent impairment compensation as follows: (a) pursuant to s 66, in the sum of $30,250. (b) pursuant to s 67, in the sum of $27,500. TOTAL $57,750. 5. The respondent’s application that the compensation be discounted by virtue of the operation of the transitional provisions is refused. 6. The respondent is to pay the applicant’s costs as agreed or assessed. |
STATEMENT OF REASONS
BACKGROUND
Gregory Dixon (the applicant) suffered an agreed primary psychological injury in the course of his employment with State of New South Wales (Fire & Rescue NSW) (the respondent), with a deemed date of injury of 6 December 2002.
By Certificate of Determination – Consent Orders dated 18 March 2022, the matter was remitted to the President for referral to a Medical Assessor to determine the degree of whole person impairment arising from the injury. The Medical Assessor was provided with the pleadings in the matter, including the respondent’s Application to Admit Late Documents (AALD) dated 11 March 2022.
On 8 June 2022, Medical Assessor Dr Suman issued a Medical Assessment Certificate (MAC) which found the applicant suffered a 20% whole person impairment.
On 28 July 2022, the matter came before me for post-MAC telephone conference. The only issue in dispute is the applicant’s entitlement to compensation pursuant to s 67 of the Workers Compensation Act 1987 (the 1987 Act) as a worker eligible to claim pain and suffering compensation.
At the telephone conference, the parties were unable to reach agreement as to the amount payable to the applicant for pain and suffering. The respondent also argued the transitional provisions contained within Sch 6, Pt 18C cl 3 to the 1987 Act applied to this matter such as to warrant a reduction to the award of compensation. The applicant disagreed, and I ordered the parties lodge and serve written submissions on these discrete points.
ISSUES FOR DETERMINATION
The parties agree that the only issues in dispute are the amount of compensation payable to the applicant for pain and suffering, and any deduction to the applicant’s compensation by virtue of the operation of Sch 6, Pt 18C, cl 3 of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. The parties were informed of my intention to determine the dispute without holding a conciliation conference or arbitration hearing.
The parties have agreed to the determination of the matter without a conference or formal hearing.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents;
(c) respondent’s AALD and attached documents dated 1 March 2022, and
(d) MAC of Dr Suman dated 8 June 2022.
Additionally, the parties lodged written submissions in relation to the outstanding issues.
Oral evidence
There was no oral evidence called in these proceedings.
FINDINGS AND REASONS
Amount payable for pain and suffering
There is no question the applicant is a worker who is entitled to make a claim for compensation for pain and suffering. The relevant issue is the appropriate amount to award in the circumstances.
The applicant submitted an award of 70% of a most extreme case would be appropriate, particularly given there has now been nearly 20 years of past pain and suffering consequent upon the injury at issue. The respondent submitted an amount of 40% of a most extreme case would be appropriate.
It is to be noted the applicant also suffered unrelated physical injuries for which he has received lump sum compensation. The respondent submitted the applicant’s ability to lead a normal life, including difficulty with sleeping, social activities and his relationships have been significantly affected by his physical injuries.
I have carefully considered the lay and medical evidence in this matter. It is apparent in my view the applicant has experienced enormous past pain and suffering as a result of the injury at issue. The applicant has undergone no fewer than 42 attendances for psychological care with one practitioner, Mr Jarvis, alone. Consultant psychiatrist Dr Williams also recorded cognitive and behavioural difficulties, including the applicant being scheduled at Wollongong Hospital.
Treating psychologist Ms Stech made clear in her report dated 15 May 2021 that the applicant was still searching for meaningfully successful psychological treatment, while treating psychiatrist Dr Cassimatis is of the view the applicant will be permanently impaired by his post-traumatic stress disorder.
I accept the applicant’s submission that his condition is plainly chronic, having lasted nearly 20 years to date, and is likely to last for the rest of his life.
Pain and suffering are compensable from the date of the compensable injury and not from the date the permanent impairment crystallises by way of assessment: Rico v Roads and Traffic Authority (1992) 8 NSWCCR 515. Moreover, the age of the claimant is relevant, as it has implications for the expected duration of any pain and suffering: Regal Paints Pty Ltd v Wasson(1993) 9 NSWCCR 301.
The applicant is 46 years of age. He is not an old man. The date of injury being December 2002, he was only 26 at the date of injury and has suffered chronic pain and suffering, including but not limited to interference with social activities and relationships owing to the injury at issue.
While I have taken into account the effect of the applicant’s physical injuries, their impact is, in my view, balanced by the impact which the applicant’s serious psychological injury has also had on the sequelae of the physical injuries. To that extent, the interplay of the two sets of injury from the context of assessing the applicant’s pain and suffering essentially balance each other out.
Having regard to the totality of the evidence in this matter and noting always the comparison must be made to a most extreme case, given the severity of his ongoing symptoms, their chronic nature and the fact the applicant’s life expectancy is approximately 33 years, in my view an appropriate award for pain and suffering in this matter is 55% of a most extreme case.
The impact of the transitional provisions on the applicant’s entitlements
Schedule 6, Pt 18C cl 3 of the 1987 Act states:
“(2) There is to be a reduction in the compensation payable under Division 4 of Part 3 (as amended by the lump sum compensation amendments) for any proportion of the permanent impairment concerned that is a previously non-compensable impairment. This subclause does not limit the operation of s 323 of the 1998 Act or section 68B of the 1987 Act.
(3) A ‘previously non-compensable impairment’ is loss or impairment that is due to something that occurred before the commencement of the amendments to Division 4 of Part 3 made by the lump sum compensation amendments, being loss or impairment that is a kind for which no compensation was payable under that Division before that commencement.”
In Fleming v NSW Police Force [2011] NSWWCCPD 33, President Judge Keating set out the alternative approaches to the process of determining whether there is a deductible proportion in circumstances such as those in this matter.
The starting point is to note the applicant has been assessed as suffering a whole person impairment of 20%, which prima facie entitles him to the sum of $30,350 pursuant to s 66 of the 1987 Act.
It is then appropriate to consider whether the applicant has suffered a previously non-compensable component to that impairment.
The first approach to this step is consistent with the approach within the Guidelines to the Evaluation of Permanent Impairment at [11.10] p 54. Using this approach, an inquiry is made as to whether the applicant had an assessable (though non-compensable) impairment on 31 December 2001. If the answer to that inquiry is in the affirmative, then a deduction is made for the non-compensable impairment which has been assessed.
The alternative approach is to undertake the causal analysis akin to that adopted pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to determine whether there was a non-compensable loss incurred.
In either case, the reduction for any proportion of the permanent impairment found to be a previously non-compensable impairment is to be affected by a reduction in the amount paid, not in the percentage of whole person impairment suffered.
The respondent alleges the applicant was plainly exposed to repeated and significant traumatic events before 1 January 2022, and as a result there should be a reduction for events which took place before that date after examining the evidence to weigh the various contributions.
I accept the evidence discloses the applicant was exposed to a number of traumatic events before 1 January 2022, having joined the respondent’s employ in 1997. The respondent impresses upon the Commission; however, having examined the medical evidence in this matter, it is apparent there is no expert who provides an opinion as to, firstly, whether there is a deductible proportion, and if so, what it is.
The respondent relies in part on commentary contained within the MAC regarding symptoms of post-traumatic stress disorder experienced by the applicant in or about 2001. However, in my opinion the mere presence of symptoms is not sufficient to satisfy the requirements for making out a deductible proportion without establishing the presence of functional limitations as required in the Psychiatric Impairment Ratings Scale (PIRS) ratings. It is those ratings which ground findings of impairment, not generalised complaints of symptomology. No medical expert in this matter has commented on whether (and to what extent) any proportion of the 20% whole person impairment assessed on the PIRS ratings is due to something which occurred before 1 January 2002.
Likewise, no doctor has undertaken a causal analysis akin to that contained in s 323 with a view to providing an opinion as to what proportion of the applicant’s loss was caused by matters occurring before 1 January 2002. Absent such medical evidence, one is left merely with the reporting of troubling incidents which beset the applicant, but no causal basis to make a finding those instances actually sounded in a rateable (but non-compensable) impairment at 31 December 2001.
Absent such analysis by any expert in the matter, it matters not which of the approaches is adopted, as the Commission is not assisted with any evidence sufficient to make a finding that a portion of the applicant’s loss was due to something that occurred before 1 January 2002, and if so to what extent.
In my view, there is no lay or medical evidence sufficient to satisfy the relevant test. Accordingly, I decline to make a deduction for any non-compensable impairment in this matter.
SUMMARY
For the above reasons, the Commission will make the Findings and Orders set out on p 1 of the Certificate of Determination.
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