Grace v State of New South Wales (NSW Police Force)
[2022] NSWPIC 280
•9 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| Citation: | Grace v State of New South Wales (NSW Police Force) [2022] NSWPIC 280 |
| APPLICANT: | Natalie Margaret Grace |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| Member: | Rachel Homan |
| DATE OF DECISION: | 9 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for compensation pursuant to sections 60, 66 and 67 of the Workers Compensation Act 1987 in respect of a primary psychological injury; no liability dispute as to “injury”; particular traumatic event in April 2016 in respect of which a claim for post-traumatic stress disorder (PTSD) was made; applicant also relies on other events over the course of employment as causative of psychological injury; where claim for compensation based on a single assessment of impairment arising from both causative events; proper terms of referral to Medical Assessor; Held- consistently with Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes applicant made a single claim for compensation in respect of a single impairment resulting both from the accident in April 2016 as well as events over the course of her employment; no basis to seek separate assessment of impairment resulting from the event in April 2016 or an opinion on apportionment. |
| determinations made: | 1. 1. The matter is remitted to the President for referral to a Medical Assessor for an assessment as follows: Date of injury: 5 April 2016 and December 2010 to 12 July 2019 Body part / system: primary psychological injury Method:whole person impairment 1. 2. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments, the Reply and all attachments and the report of Dr Saboor, dated 29 July 2021. 2. 3. The matter to be listed for further teleconference upon receipt of the Medical Assessment Certificate. |
STATEMENT OF REASONS
BACKGROUND
1. Ms Natalie Margaret Grace (the applicant) was employed as a police officer by the State of New South Wales (NSW Police) (the respondent).
2. In these proceedings, the applicant seeks lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act) and compensation pursuant to s 60 of the 1987 Act for incurred medical expenses in relation to a primary psychological injury caused by exposure to trauma during the course of employment at various locations and various times.
PROCEDURE BEFORE THE COMMISSION
3. The parties appeared for initial teleconference on 26 April 2022. At that teleconference, the parties agreed that the matter should be referred to a Medical Assessor for assessment of the degree of permanent impairment. The claims for compensation pursuant to ss 60, 66 and 67 of the 1987 Act would then be resolved at further teleconference upon receipt of the Medical Assessment Certificate.
4. The parties were not, however, able to agree on the terms of the referral to a Medical Assessor.
5. In particular, the parties disagreed as to whether the Medical Assessor should be asked to provide an assessment of the degree of permanent impairment resulting from a particular motor vehicle accident on 5 April 2016 separately to an assessment of the degree of permanent impairment resulting from injury due to exposure to trauma during the course of the applicant’s employment at various locations and various times deemed to have occurred on 29 September 2021.
6. A timetable was established for written submissions on this issue. The parties were informed of my intention to remit the matter to the President for referral to a Medical Assessor at the conclusion of that timetable.
7. 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.
ISSUES FOR DETERMINATION
8. The parties agree that the following issue remains in dispute:
a. (a) the proper terms of referral of the dispute as to the degree of permanent impairment to a Medical Assessor.
EVIDENCE
Documentary evidence
a.9. The following documents were in evidence before the Commission and considered in making this determination:
b. (a) Application to Resolve a Dispute (ARD) and attached documents;
c. (b) Reply and attached documents;
d. (c) written submissions lodged by the respondent on 10 May 2022; and
e. (d) written submissions lodged by the applicant on 24 May 2022.
FINDINGS AND REASONS
Respondent’s submissions
a.10. The respondent submits that the referral to a Medical Assessor should be made in the following terms:
“a. The matter is remitted to the President for referral to a Medical Assessor not
before 24 May 2022 in respect to whole person impairment arising from
psychological injury.
b. The Medical Assessor is requested to assess whole person impairment arising
out of:
i. the motor vehicle accident on 5 April 2016; and
ii. the nature and conditions of employment with a deemed date of injury
of 29 September 2021.
c. The Respondent accepts that the Applicant is entitled to combine the above
assessments of whole person impairment for the purpose of the Applicant's
entitlement to compensation pursuant to s.66 of the Workers Compensation
Act 1987 (1987 Act).
Notation
d. The above orders do not prevent the Respondent from bring an action under
section 151Z of the 1987 Act against the CTP insurer in the event that the
Applicant lodges a CTP claim in respect of the motor vehicle incident on 5 April
2016.”
a.11. The respondent submits that the applicant has indicated an intention to bring a claim against the CTP insurer in respect of the motor vehicle accident on 5 April 2016.
b.12. A referral on the above basis would assist with the timely and cost-effective resolution of both the workers compensation claim and any future recoveries claim. First, it would prevent the applicant from being required to undergo a further medical assessment in the event that she proceeds with a CTP claim, as the portion of impairment relating to the motor vehicle incident will have been determined. Second, it would expedite any future recoveries claim brought by the respondent against the CTP insurer.
c.13. The respondent accepted that the applicant would be entitled to combine the assessments of whole person impairment as arising out of the motor vehicle accident on 5 April 2016 and the general nature and conditions of employment for the purpose of her entitlement to lump sum compensation under s 66 of the 1987 Act.
d.14. In addition, the respondent confirmed that it did not intend to raise a threshold dispute under s 65A of the 1987 Act following issue of the Medical Assessment Certificate.
e.15. The respondent submitted that, without causing any material prejudice to the applicant's workers compensation claim, the proposed terms of referral would assist both parties in the event of any future action brought in respect of the motor vehicle accident on 5 April 2016.
Applicant’s submissions
a.16. The applicant submitted that the referral should be made in the following terms:
“The Medical Assessor is requested to assess whole person impairment arising from a deemed date of injury for a primary psychiatric injury deemed to have been suffered by the applicant on the date of the duly made claim, namely 29 September 2021.”
a.17. The applicant submitted that she suffers one primary psychiatric injury from a number of events.
b.18. Any future recoveries action pursuant to s 151Z of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) was irrelevant in these proceedings.
c.19. The applicant submitted that the respondent sought a referral in its proposed terms for a purpose ulterior to the determination of the applicant’s s 66 entitlements. Any such apportionment would not, however, be binding because a Medical Assessment Certificate in the Workers Compensation Division is not binding on the Commission in motor accident proceedings.
d.20. The present claim was made in reliance upon the assessment of Dr Glen Smith dated 22 September 2021, which found 26% whole person impairment arising from a primary psychiatric injury, which was not apportioned between the various incidents or events. The injury was properly categorised as a disease process and a deemed date of injury under s 15 of the 1987 Act was the correct date of injury for referral to the Medical Assessor.
Consideration
a.21. On 17 March 2021, the applicant completed a claim form in respect of an injury which occurred between December 2010 and 12 July 2019 in the nature of post-traumatic stress disorder (PTSD), anxiety and depression.
b.22. The applicant had previously completed Incident Notification Form in respect of a motor vehicle accident on 5 April 2016. It appears a claim was made in respect of a psychological injury arising out of that incident insofar as there is attached to the Application to Resolve a Dispute (ARD) a list of payments of compensation commencing on 13 April 2016 and a report from an Independent Medical Examiner for the respondent, Dr John Lam-Po-Tang, dated 17 June 2016, diagnosing PTSD causally related to the incident on 5 April 2016.
c.23. The claim for the compensation sought in these proceedings was made by a letter from the applicant’s solicitor dated 29 September 2021. That letter claimed compensation in respect of:
“Date of Injury: 17 June 2016 and Period of Employment: December 2010 to 12 July 2019”.
a.24. The claim letter attached a report by consultant psychiatrist, Dr Glen Smith dated 22 September 2021.
b.25. Dr Smith diagnosed:
“1. Posttraumatic stress disorder (PTSD).
2. Persistent depressive disorder, with intermittent major depressive episodes, with current major depressive episode, with anxious distress.
3. Alcohol use disorder.”
a.26. Dr Smith gave the following opinion on causation:
“She reported the initial development of anxiety and distress in the context of bullying and harassment at the Mount Druitt Station throughout 2011 but she did not receive any treatment at that time. She experienced marked anxiety and depressive symptoms after being exposed to a significantly traumatic accident involving fatalities in April 2016. Her alcohol consumption escalated after that incident to cope with her emotional distress. She returned to work, but she remained markedly anxious and hypervigilant with an exaggerated startle response and frequent memories and nightmares of the traumatic incident. She ultimately ceased work with the NSWPF in mid 2018 and she remained anxious and depressed.”
a.27. Dr Smith made a single assessment of 26% whole person impairment (WPI) resulting from these events.
b.28. Correspondence between the parties indicates that an offer to settle the claim was made by reference to a date of injury of “5 April 2016” (incorrectly identified elsewhere as “17 June 2016”) based on an assessment of 24% WPI by the respondent’s Independent Medical Expert, Dr Saboor.
c.29. That offer was not accepted and a counter offer made to settle the claim by reference to a psychological injury encompassing the entire course of the applicant's employment from exposure to traumatic events.
d.30. As the matter was unable to be resolved, proceedings were commenced in the Commission. The ARD described only a single date of injury being 29 September 2021. That date is the date of the claim for the compensation sought. The applicant asserts that the “injury” is a disease injury for the purposes of s 15 of the 1987 Act and, as such, a deemed date applies having regard to the authorities in Saad Bros Motor Pty Limited v Simon,Stone v Stannard Brother Launch Services Pty Limited and SAS Trustee Corporation v Pearce.
e.31. It appears from the procedural history described above that the circumstances of this case are not dissimilar to those considered in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes. In that case, a single claim for lump sum compensation for permanent impairment of the back arising from three separate events was made. Deputy President Roche commented:
“However, the letters made it clear that Ms Barnes was making only one claim, namely, a claim for $49,087.50, being the compensation payable for a 26 per cent whole person impairment that has resulted from the three work incidents. It is open to her to make that claim and the use of the singular (“an injury”) in s 66(1) does not prevent her doing so. That is because, as Mr Stanton submitted, and for the reasons discussed below, a single loss can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]).
Moreover, Mr Stanton’s submissions, which were consistent with Dr Assem’s evidence, made it clear that Ms Barnes was claiming that, as a result of the three incidents pleaded, she has suffered one impairment and that was and is the basis of her claim. Cases are determined on the evidence and arguments presented (Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 296–297), not on the pleadings or particulars, which are only a ‘means to an end’ (Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd [1916] HCA 81; 22 CLR 490 at 517 (applied in CMA Corporation Ltd v SNL Group Ltd [2012] NSWCA 138 at [14] and [15])). Thus, if the particulars did claim separately for each incident, and I am firmly of the view that they did not, then, having regard to the way the case was argued, that makes no difference to the result.
I therefore do not accept Mr Saul’s submission that Ms Barnes separately claimed permanent impairment compensation for each of the three incidents. Even if that were her claim, it would be strongly arguable that, as the Arbitrator said, if the pathology is the same in each incident the three impairments should be “assessed together” under s 322(2). However, because of the way Ms Barnes has pleaded and argued her claim, that issue does not directly arise and I do not base my decision on it.
Further, under the Interpretation Act 1987, unless a contrary intention appears, the reference to a word in the singular form includes a reference to the word in the plural form (see ss 5 and 8 of the Interpretation Act 1987). (In making this statement, I am not suggesting that Merchant, which dealt with a similar issue, but in a significantly different factual and statutory context, was wrongly decided.) With respect to the current claim, no contrary intention appears in the legislation. Therefore, as a matter of statutory interpretation, in the appropriate case, ‘injury’ in s 66(1) can include ‘injuries’ and is not confined to a single injurious incident or single injury. Having regard to Dr Assem’s evidence, the present case is an appropriate case for such an interpretation.”
a.32. In the present case, I find that the applicant has made a single claim for compensation in respect of a single impairment resulting both from the accident on 5 April 2016 as well as events over the course of her employment with the respondent.
b.33. In making this finding, I note that the applicant’s submissions suggest that a single “injury” with a deemed date should be referred to the Medical Assessor. This is not, however, consistent with the claim made upon the respondent, the procedural history or the evidence suggesting the event of 5 April 2016 was causally distinct.
c.34. The respondent has not in these proceedings raised any liability dispute as to injury.
d.35. The appropriate course is to remit the matter to the President for referral to a Medical Assessor for a single assessment of permanent impairment resulting from both the accident on 5 April 2016 as well as events over the course of her employment with the respondent.
e.36. I accept the respondent’s submission that there may be some future convenience in asking the Medial Assessor for an assessment of the degree of permanent impairment resulting just from the event on 5 April 2016. The applicant has not, however, made a separate claim for permanent impairment resulting from the single event on 5 April 2016 and I can see no statutory basis for such a referral.
f.37. Furthermore, insofar as there may be some convenience in an opinion from the Medical Assessor on “apportionment” between the two causative events, I note that there is only a single employer involved and so no issue of apportionment of liability arises in these proceedings. In those circumstances, I am not satisfied that it is appropriate to request an opinion on apportionment from the Medical Assessor.
g.38. The applicant has claimed lump sum compensation for one “impairment” and she seeks to have that impairment assessed by Medical Assessor. For the reasons explained in Barnes, that is a claim the applicant is entitled to make and is the only claim capable of referral to a Medical Assessor in these proceedings.
h.39. There will be a referral in the terms set out in the Certificate of Determination.
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