Harper v State of New South Wales Fire and Rescue NSW

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Harper v State of New South Wales - Fire and Rescue NSW [2023] NSWPIC 587
APPLICANT:	Grant Harper
RESPONDENT:	State of New South Wales – Fire and Rescue NSW
MEMBER:	Anne Gracie
DATE OF DECISION:	3 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation pursuant to section 67; claim for costs uplift; consideration of applicant’s statement, medical reports and other treatment records, claim correspondence, and factual material; consideration of the competing submissions in relation to the application for an uplift in relation to costs; considered Tyler v Marsden Industries, Bourke v State of New South Wales (Ambulance Service of NSW), Pen v Arborglen Pty Ltd and Regal Paints Pty Ltd v Wasson; Held – the applicant is entitled to compensation for pain and suffering pursuant to section 67 in the sum of $25,000 representing 50% of a most extreme case; respondent ordered to pay the applicant’s costs as agreed or assessed with a 10% uplift for complexity.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has suffered a psychological injury in the course of his employment. 2. As a result of the injury, it is agreed that the applicant is suffering a whole person assessment of 20%. 3. As a result of his injury, the applicant has suffered pain and suffering of 50% of a most extreme case. 4. The respondent is to pay the applicant permanent impairment compensation pursuant to s 67 of the Workers Compensation Act 1987 in the sum of $25,000. 5. The respondent is to pay the applicant’s costs as agreed or assessed. 6. I order an uplift of 10% for complexity in respect of the cost order in order 5.

STATEMENT OF REASONS

BACKGROUND

Grant Harper (the applicant) suffered an agreed psychological injury in the course of his employment with the State of New South Wales (Fire and Rescue NSW) (the respondent), with a deemed date of injury of 30 August 2020.
On 11 October 2023, the matter came before me for a preliminary conference. The only issues that were before me were the amount of compensation payable to the applicant pursuant to s 67 of the Workers Compensation Act 1987 (the 1987 Act) for pain and suffering arising out of the psychological injury and the applicant’s claim for an uplift in relation to costs.
At the preliminary conference the parties were unable to reach agreement as to the amount payable to the applicant for pain and suffering. The parties agreed to have the issue determined “on the papers”. Upon request by both parties, I made a direction that the applicant was to file written submissions within seven days of the preliminary conference in relation to s 67 and the application for an uplift in relation to costs and the respondent was to file written submissions in response within seven days of receipt of the applicant’s submissions or no later than 24 October 2023. I have received written submissions from both parties.

ISSUES FOR DETERMINATION

The parties agree that the following issues remains in dispute:
(a) The amount of compensation payable to the applicant pursuant to s 67 of the 1987 Act for pain and suffering arising out of a psychological injury deemed to have occurred on 30 August 2020.
(b) The amount (if any) of the uplift in relation to complexity for costs

PROCEDURE BEFORE THE PERSONAL INJURY 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 have agreed to the determination of the matter without a conciliation conference or formal hearing by way of arbitration.
No oral evidence was called.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    written submissions by the applicant dated 16 October 2023, and
(d)    written submissions by the respondent dated 24 October 2023.

Consideration of the evidence

There is no dispute that the applicant is entitled to compensation pursuant to s 67 of the 1987 Act for pain and suffering. The parties have agreed that the applicant suffers 20% whole person impairment as a result of his psychological injury.
I have read the written submissions provided by both parties. I have also considered the documentary evidence attached to the papers before me.
Both parties have taken me to the decision of Wright C in the matter of Tyler v Marsden Industries [2001] NSWCC 194 at [14]. I will not repeat the principles set out in that decision however when determining an appropriate amount to be awarded to the applicant pursuant to s 67 I have considered those principles.

The applicant’s submissions

The applicant has submitted that an award of 70% of a most extreme case would be appropriate taking into consideration the following factors:
The applicant’s age. The applicant was born on 2 May 1964. He was 56 at the date of injury and is presently 59 years of age. The applicant refers to the Australian Bureau of Statistics Life Expectancy Tables and notes his life expectancy is another 25 years.
The applicant suffers from flashbacks, intrusive thoughts, insomnia, nightmares, hypervigilance, dissociation, irritability, risk taking behaviour, heightened anxiety, deep depression, and suicidal thoughts. (See report of Dr Teoh dated 16 September 2022 at page 51 of the ARD.)
The applicant has experienced the loss of a 22-year partner. He has difficulty maintaining a relationship with his children and he has lost contact with his friends.
He neglects to shave and shower. He neglects to eat and has experienced significant weight loss. (See report of Dr Das dated 9 January 2023 at page 21 of the Reply.)
His injury has interfered with social activities. He feels alienated and isolated. He has had to move house to another area to avoid exposure to fire engine sirens.
He has developed a rapid heart rate, headaches and irritable bowel syndrome as a result of his injury. (See statement of the applicant at page 6 of the ARD.)
He has difficulty concentrating and performing basic tasks.
He suffers from distress as a result of his treatment which includes exposure therapy, eye movement desensitization and reprocessing (EMDR )and medication.
He has difficulty sleeping and suffers nightmares.
He is unable to work and was medically retired on 11 August 2022. He remains permanently unfit for work.

The respondent’s submissions

The respondent has submitted that an award of between 25% to 35% of a most extreme case pursuant to s 67 would be appropriate for the following reasons:
The applicant was 56 years of age as at the date of injury and is currently 59 years of age. As such the respondent submits that the applicant would not fall within the mid to high range of compensation payable pursuant to s 67.
The respondent submits that the applicant’s claim of 70% of a most extreme case is excessive and would fall outside the range of a sound discretionary judgement.
The respondent notes Dr Das’s comments on non-work-related personal matters and that some degree of the applicant's distress or anxiety is affected by these personal matters and should be considered.
The respondent relies on the following decisions in support of its argument: Bourke V State of New South Wales (Ambulance Service of NSW [2022] NSW PIC 332 (28 June 2022) (Bourke), Pen v Arborglen Pty Ltd [2013] NSWWCC 455 (Pen) and Regal Paints Pty Ltd V Wasson (1993) 9 NSWCCR 301.

Findings and reasons

I have considered the parties submissions, the case law referred to and the documents before me.
In addition to the matters raised by the applicant in his submissions I note in the report from Mr Greg Anning, psychologist, dated 17 January 2022, Mr Anning recommends ongoing treatment from his general practitioner, psychologist, psychiatrist and an exercise physiology program for reported muscular tension due to his injury. Mr Anning was retained by the insurer to undertake a psychological assessment report. (See pages 12 and 32 of the ARD.)
In addressing the respondent’s submission that the applicant had some non-work-related personal matters that should be considered I note the following. In his report of 17 January 2022, Mr Anning states “Following the traumatic event in August 2020 Mr Harper has engaged in reckless behaviour, buying a fast car, and subsequently speeding. His de-facto relationship of 20 years ended when he had an affair with his massage therapist “(see page 28 of the ARD). The respondent has not elaborated on its submission in this regard and I accept the applicant’s submission that these personal matters were a consequence of his psychiatric injury. The respondent has not produced any evidence to suggest that the applicant engaged in reckless behaviour or experienced relationship issues in the years leading up to the diagnosis of his psychological injury.
In his report of 16 September 2022, Dr Teoh notes the applicant’s prognosis is poor as his condition has become chronic (see page 53 of the ARD).
The applicant had been a firefighter reaching the rank of Senior Firefighter employed by the respondent for 20 years. He was largely based in Wagga Wagga. As a result of his injury, he was medically retired on 11 August 2022 at the age of 58. I agree with the applicant’s submission that this would have caused the applicant significant feelings of grief and loss. His role in the community as a professional firefighter would have been regarded as an important role and to be medically retired as a result of a psychological injury would have been a cause for great shame and feelings of loss. In addition to his work as a firefighter, the applicant also ran a small video production company which he stepped away from in July 2022 due to the ongoing effects of his injury. The impact of this decision would have caused further loss of dignity and self-esteem. It is apparent from the applicant’s statement that prior to developing his psychological injury he was a successful entrepreneur. The effects of his psychological injury on his ability to pursue these interests cannot be underestimated.
The applicant also deposes in his statement that he continues to see his general practitioner, his psychologist, an exercise physiologist and his psychiatrist on a regular basis. He is also reliant on medication for treatment of his psychological condition. He has also tried alternative therapies (see page 4 of the ARD).
The applicant has lost friendships. He has lost pleasure in artistic pursuits that he had previously enjoyed including music, art and cooking. He has lost interest in sex which has increased the distress in his life (see the applicant’s statement at pages 1-7 of the ARD).
In his report of 9 January 2023, Dr Das, the psychiatrist qualified by the respondent, describes the applicant’s condition as a “chronic post-traumatic stress disorder and co-morbid depression” (see page 23 of the Reply).
I have considered the actual individual experiences of the applicant when considering the appropriate amount to be awarded for pain and suffering. I have also considered the appropriate amount of compensation for pain and suffering in the context of where the claim falls in respect of a most extreme case.
In this respect, I have considered the decisions put forward by the respondent in its submissions but note each case must be determined on its own facts. The decision of Pen and the decision of Bourke both involved workers who had sustained injuries to the back. The applicant in the matter of Bourke had returned to work.
I have considered the applicant’s age however as Priestley JA observed in the matter of Regal Paints Pty Ltd v Wasson and repeated by Wright C in the decision of Tyler v MartinIndustries[2001] NSWCC 194 “each case has to be looked at on its own merits due to the potential for the same injury to affect different workers differently.”
Having regard to the evidence in this matter and noting always the comparison that must be made to a most extreme case, I have considered the severity of the applicant’s ongoing symptoms, the chronic nature of his complaint and the fact that the applicant's life expectancy is approximately 25 years, in my view the appropriate amount for pain and suffering in this matter pursuant s 67 is 50% of a most extreme case.
At the conclusion of the preliminary conference held on 11 October 2023, I asked the parties to address the issue of complexity in relation to costs in their written submissions.
The applicant has requested an uplift of 20%.
The respondent has submitted that an award for the applicant’s costs should not be made against the respondent as the negotiations relating to the claims pursuant to s 66 and s 67 prior to the commencement of these proceedings were made on a ‘without prejudice’ basis.
I disagree with this submission. I have considered the chronology of the pre-litigation negotiations. The applicant’s s 66 claim was resolved on 20 April 2023. The s 67 claim was the subject of pre-litigation negotiations however the claim did not resolve. On 16 August 2023, the applicant’s legal representatives wrote to the respondent’s legal representatives and advised the respondent that they were instructed to reject the respondent’s offer pursuant to s 67 and were proceeding to file an ARD in the Commission. The ARD was filed on 6 September 2023.
I agree with the applicant’s submissions that the negotiations were protracted. I agree with the applicant’s submissions that the additional issues raised by the respondent including the matter of the applicant’s relationship breakdown and the dispute concerning the reduction of any compensation payable in accordance with Schedule 6 Part 18C of the 1987 Act in relation to incidents occurring pre 1 January 2002, which was later abandoned by the respondent, must be considered when addressing the issue of complexity.
The applicant also provided a detailed seven-page statement which I have found most useful in addressing the applicant’s claim pursuant to s 67.
In light of the above I order the respondent to pay the applicant’s costs and exercising my discretion, I further order an uplift of 10% on those costs pursuant to Schedule 6 Part 2 Table 4 of the Workers Compensation Regulation 2016.

[2023] NSWPIC 587

3 November 2023