Fleming v NSW Police Force

[2011] NSWWCCPD 33

WORKERS COMPENSATION COMMISSION
REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT
CITATION:		Fleming v New South Wales Police Force [2011] NSWWCCPD 33
APPLICANT:		Eric Fleming
RESPONDENT:		New South Wales Police Force
INSURER:		TMF/Allianz Australia Insurance Limited
INTERVENER:		WorkCover Authority of NSW
FILE NUMBER:		9268/10
DATE OF DECISION:		23 June 2011
SUBJECT MATTER OF DECISION:		Novel or complex question of law; Sch 6 Pt 18C cl 3(2) Workers Compensation Act 1987; method of assessing reduction in compensation for previously non-compensable impairment
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Applicant:	Harris Wheeler Lawyers
Respondent:	Sparke Helmore Lawyers
Intervener:	WorkCover Authority of NSW
ORDERS MADE:		Leave in respect of the first question of law is granted. The answer to the question is: The reduction for any proportion of the permanent impairment found to be a previously non-compensable impairment referred to in Sch 6 Pt 18C cl 3(2) of the 1987 Act is to be effected by a reduction “in the compensation payable”, not by a reduction in degree of whole person impairment. Leave in respect of the second question of law is refused.
COSTS:		(a)        As between the parties, the costs of this application be costs in the cause. (b)       The WorkCover Authority of New South Wales is to pay its own costs.

BACKGROUND TO THE REFERRAL OF THE QUESTION OF LAW

1. Mr Fleming is a former serving police officer. He alleges that, whilst serving as an operational officer from 14 February 1995 to August 2007, he was exposed to a series of traumatic events, as a result of which he suffered a disease of gradual onset, namely, post-traumatic stress disorder.

2. On 10 May 2010, Mr Fleming claimed lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a 21 per cent alleged whole person impairment as assessed by Dr Mark Scurrah on 18 March 2010.

3. In response to Mr Fleming’s claim, he was assessed at the request of the police force by Dr Brian Potter. Dr Potter assessed him to be suffering from 15 per cent whole person impairment as a result of his psychological condition. A dispute arose between the parties concerning the application of the transitional provisions found in Sch 6 Pt 18C(3)2 of the 1987 Act (the transitional provisions) concerning the reduction in the compensation payable for any proportion of the permanent impairment concerned that is a previously non-compensable impairment.

4. On 12 November 2010, Mr Fleming filed an Application to Resolve a Dispute in the Commission. He claimed $33,000 in respect of a 21 per cent whole person impairment in respect of “psychiatric/post-traumatic stress disorder” with a deemed date of injury initially identified as 4 November 2005 and subsequently amended by consent to May 2007. Mr Fleming also claimed $25,000 in respect of 50 per cent of the maximum sum payable for pain and suffering pursuant to s 67.

5. On 2 December 2010, the police force filed a Reply in which it…