Harrington v New South Wales Police Force - [2015] NSWWCCPD 31

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Harrington v New South Wales Police Force [2015] NSWWCCPD 31
APPELLANT:	Mathew Raymond Harrington
RESPONDENT:	New South Wales Police Force
INSURER:	Employers Mutual Limited (TMF)
FILE NUMBER:	A1-3506/14
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:	19 February 2015
DATE OF APPEAL DECISION:	25 May 2015
SUBJECT MATTER OF DECISION:	Two injuries received by worker; whether one incapacity results from such injuries; whether worker suffers separate and distinct incapacities as a result of each injury; consideration of Sydney City Council v Ince (1989) 16 NSWLR 690
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Bourke Love Lawyers
Respondent:	Moray & Agnew Lawyers
ORDERS MADE ON APPEAL:	1. The respondent’s application seeking leave to appeal out of time is refused. 2. The Arbitrator’s findings and his orders as found in the Certificate of Determination dated 19 February 2015 are confirmed.

BACKGROUND

This appeal concerns the question as to whether two particular pathological conditions each suffered by a worker as a result of injury received in the course of his employment have resulted in separate and distinct partial incapacities, thereby entitling the worker to two separate payments of weekly compensation.
Mr Matthew Raymond Harrington commenced service as a police officer with the NSW Police Force (the respondent) on 20 December 2001. There is no dispute that Mr Harrington, in the course of that employment, suffered an injury to his right shoulder when he tackled an offender who was attempting to abscond. That incident occurred on 27 July 2009.
Before that incident, and during the course of his service as a police officer, Mr Harrington had suffered a serious assault causing a head injury, leading to neurosurgical treatment, and was subjected to a number of terrifying and stressful experiences. Included among those experiences was a confrontation which occurred on 3 July 2009, when Mr Harrington was dealing with two intoxicated offenders. One of the offenders, a woman, advanced towards Mr Harrington armed with two large carving knives and threatened to kill him. Mr Harrington managed to secure the female offender in custody without resort to use of his firearm. At that time he experienced severe physical and mental disturbance. He was shaking and his legs “felt like jelly”. He could not “put his thoughts together and felt quite numb”.
Mr Harrington continued to experience unsettling emotional symptoms following the 3 July 2009 incident which persisted until the incident which occurred on 27 July 2009. Immediately before sustaining the shoulder injury, Mr Harrington had been investigating the activities of an arsonist. He located a suspect following his identification by a member of the public. During his search for that alleged offender he experienced a panic attack with fear and anxiety and hoped that he would not locate the suspect. Once apprehended, the suspect made serious threats directed to Mr Harrington.
Mr Harrington ceased work following that incident and sought medical treatment the following day in respect of his injured shoulder. Within a few days he consulted a counsellor in Bourke concerning his mental and emotional state. He was advised to leave Brewarrina, the town at which he was stationed, and to see a psychologist. Mr Harrington thereafter relocated to the east coast where his fiancée lived. He has not returned to his duties as a police officer. He was medically discharged from the NSW Police Force on 22 July 2010.
Mr Harrington had claimed and has been paid weekly compensation benefits at the statutory maximum rate payable in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 Act). Those payments have continued to date, and it is to be noted that Mr Harrington, being a former police officer, retains his entitlements in accordance with the provisions of the 1987 Act as they stood before the passage of the Workers Compensation Legislation Amendment Act 2012: Sch 6.19H.25 to the 1987 Act.
On 17 December 2013, Mr Harrington’s solicitors wrote to the respondent’s insurer, in which correspondence it was asserted that Mr Harrington had two separate entitlements to s 40 weekly compensation payments, and a claim was made on his behalf that the insurer “pay for two causes of action [sic]/injuries not just one”. It was subsequently made clear that the assertion was that, by reason of Mr Harrington’s orthopaedic and psychiatric conditions and resultant disability, he suffers separate and distinct incapacities in respect of each, and that he was seeking payment, in addition to those payments already made, of a further weekly sum representing the maximum statutory rate in respect of the past and into the future.
That claim was denied on behalf of the insurer by its solicitors in February 2014. A notice was issued and served pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) concerning the dispute, which stated in part that Mr Harrington “has not suffered separate injuries so as to give rise to distinct partial incapacities for the purposes of s 40 of the 1987 Act” and, further, that Mr Harrington “has not suffered two separate and distinct incapacities for the purposes of s 40 of the 1987 Act”. The insurer’s solicitors relied upon the decision of Cordina Chicken Farms Pty Ltd v Le [2008] NSWWCCPD 125 (Cordina).
Mr Harrington commenced these proceedings in the Commission by the filing of an Application to Resolve a Dispute in July 2014. That Application, in its amended form, claimed weekly benefits compensation between 2 October 2010 and 31 December 2011. At the subsequent hearing before Arbitrator Graham Edwards it was made clear that the claim made was in respect of one of two co-existent separate and distinct partial incapacities allegedly suffered by Mr Harrington as a result of the orthopaedic and psychological injuries received by him. It was emphasised in argument that he alleged two separate injuries.
The hearing of the matter concluded before the Commission on 14 November 2014 at which time the Arbitrator reserved his decision. A Certificate of Determination accompanied by a statement of the Arbitrator’s Reasons was issued by the Commission on 19 February 2015. The following was recorded in that certificate:
“The Commission determines:
1. Award for the respondent in respect of the applicant’s claim for concurrent awards of weekly payments of compensation as a result of two injuries.
2. No order as to costs.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
This appeal was instituted by Mr Harrington by way of Application filed on 18 March 2015. The respondent in its Notice of Opposition to the Appeal makes reference (at [7] of submissions) to its application seeking leave to file a “cross appeal” challenging a finding said to have been made by the Arbitrator that “there were two separate injuries”. The respondent acknowledges that there is no provision made in the relevant legislation or the Rules for the commencement of a “cross appeal”. Accordingly, an application has been made, which accompanies the respondent’s opposition to the appeal, seeking leave pursuant to Rule 16.2(12) of the Workers Compensation Commission Rules 2011 to appeal out of time. Submissions filed subsequently on behalf of Mr Harrington oppose the granting of such leave.
Given my conclusion as to the outcome of the appeal and my views, as noted below, concerning the findings as to injury expressed by the Arbitrator, I have reached the conclusion that leave as sought by the respondent should not be granted.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

The grounds of appeal relied upon by Mr Harrington are as follows:
“The Arbitrator erred as follows:
a.   Failing to find that the worker suffers from two separate and distinct incapacities;
b.   Failing to give adequate reasons as to why the Arbitrator did not find that the worker suffered an incapacity arising from his shoulder injury during the period of the claim;
c.   Failing to properly address the evidence given by the worker as to his suitability or otherwise in relation to the alternative employment which is theoretically available to him;
d.   Misapplying the Presidential decision of Sedrak v Rooty Hill RSL Club Ltd [2014] NSWWCCPD 40 [Sedrak] in finding that the Applicant was not entitled to compensation because there was an ‘intermingling’ of symptoms leading to an incapacity for employment.”

THE ARBITRAL PROCEEDINGS

The evidence before the Arbitrator

The factual matters which have been summarised above between [2] and [6] were not in dispute. It was recorded by the Arbitrator (at T1, 7) that:
“Ms Wood has said in the conciliation stage that the respondent is paying [Mr Harrington] monetary weekly payments of compensation on the basis of his incapacity resulting from not only the psychological injury but the physical injury, which happened during that injurious event on 26 July [sic] 2009.”
Counsel for Mr Harrington, Mr Somerville, was granted leave to amend the claim as being one in respect of entitlement to weekly compensation between 2 October 2010 and 31 December 2011 (at T1, 14). The reason for the commencement date of the period of claim was stated by counsel as being that 2 October 2010 “is the date that [Mr Harrington] became no longer totally incapacitated”. The transcript does not record any explanation as to why the period of claim concludes at 31 December 2011 other than a statement by the Arbitrator, which was accepted as correct by Mr Harrington’s counsel, that the closed period was “the claim for the separate and distinct incapacity in respect of the right shoulder”. That acknowledgment by counsel was followed by a confusing discussion between counsel, Mr Harrington’s solicitor and the Arbitrator, in which it was made clear that no award was then extant. It then appears to have been agreed between the parties that “two separate awards” were being sought, one in respect of the orthopaedic injury and the other in respect of the psychological injury. It was noted that the respondent would receive credit, should such awards be made, for payments already made. That was not the end of discussion concerning amendment of the claim as it appeared in the Application. I note in passing that the amendment of the application seeking awards with respect to a closed period remained in place following that discussion.
The transcript immediately thereafter records exchanges between the Arbitrator and counsel which demonstrate that the Arbitrator was attempting to crystallise precisely the nature of the claim which was before him for determination. The outcome of those discussions ultimately established that the claim was in respect of a “closed period from 2 October 2010 to 31 December 2011 when (sic) [Mr Harrington] is seeking a separate and distinct award in respect of the injury to his right shoulder” (at T1, 26). It was then made clear by Ms Wood, counsel for the respondent, that payments that had been made on a voluntary basis to Mr Harrington since his cessation of work were in respect of, as stated by the Arbitrator when summarising the discussion, “one separate distinct incapacity for work as a result of the injurious event on 26 July [sic] 2009 being a physical injury to the right shoulder and a psychological injury” (at T1, 27). Mr Harrington’s allegation was that he was entitled to such award in addition to the weekly payments voluntarily paid at that time by the respondent.

Expert medical evidence concerning incapacity

There were a number of WorkCover medical certificates in evidence issued by Dr Zaki, general practitioner, which were dated within the period of the claim. Those certificates were issued between 3 March 2011 and 17 October 2011. The earliest certificate makes reference to a diagnosis of “PTSD” and certifies that Mr Harrington was fit for suitable duties between 3 March 2011 and 3 May 2011. The balance of the certificates record a diagnosis of “PTSD and R shoulder chronic pain” and certified Mr Harrington as being “unfit to work”. Other, later, certificates state that Mr Harrington was fit for suitable duties from June 2012.
A number of medical reports compiled by treating practitioners and those qualified to provide an opinion for the purposes of this litigation were tendered on behalf of the parties. Those reports may be summarised, in chronological order, as follows:
Dr Mark Pearce, consultant orthopaedic surgeon
Report dated 24 March 2010. Dr Pearce treated Mr Harrington and provided this report to Dr Dent, Mr Harrington’s then general practitioner. Dr Pearce records that, following treatment, Mr Harrington had “improved 90 per cent to his first presentation”. Dr Pearce expressed the view that “it’s possible that [Mr Harrington] may come through all this treatment and not be able to return to full policing duties…”.
Dr Graham George, psychiatrist
Report dated 12 April 2010 addressed to the respondent which had qualified Dr George to provide that report. Dr George expressed the view that Mr Harrington suffered ongoing symptoms of post traumatic stress disorder and major depression with anxious mood. Dr George considered that “medical discharge in this case would be highly recommended”. Dr George had earlier stated his opinion that Mr Harrington was “unable to return as an operational police officer”. That inability was said to be by reason of ongoing symptoms of post traumatic stress disorder and major depression.
Dr Tim Anderson, consultant occupational physician
Report dated 12 April 2010. Dr Anderson examined Mr Harrington and provided this report at the request of the respondent. Dr Anderson diagnosed a partial thickness tear of the shoulder complex. The view was expressed that Mr Harrington “would be able to manage all police work with the complete exception of confrontational work”. Dr Anderson further stated that by reason of his shoulder disability, Mr Harrington was not able to return to operational police work.
Dr Mark Scurrah, consultant psychiatrist
Report dated 28 June 2010. This report is addressed to the respondent’s Medical Discharge Unit. Dr Scurrah, Mr Harrington’s treating psychiatrist, certified that, “because of ill health, it is unlikely that [Mr Harrington] can ever be gainfully employed in the capacity for which he is reasonably qualified because of education, experience or training. [Mr Harrington] is not able to return to any form of policing duties”. In an earlier report dated 21 January 2010 addressed to an insurer Dr Scurrah noted that Mr Harrington’s shoulder condition was “a contributing factor to his psychological distress”.
Dr Joseph Santos, general practitioner
Report dated 30 June 2010 addressed to the respondent’s Medical Discharge Unit. Dr Santos states in that report that he had been treating Mr Harrington in respect of post traumatic stress disorder since 8 February 2010. The report included certification that “it is unlikely that [Mr Harrington] can ever be gainfully employed in [the] capacity for which he is reasonably qualified because of education, experience or training”.
Dr Scurrah, psychiatrist, to Dr Patterson (general practitioner at Ocean Shores Medical Centre)
Handwritten report dated 17 August 2010. Dr Scurrah states in that correspondence that Mr Harrington’s “combination of physical/psychological injuries suggests he is currently unfit for work”.
Dr Philip Allen, orthopaedic surgeon
Report dated 20 September 2010 addressed to Dr Patterson. Mr Harrington had been referred by Dr Patterson to Dr Allen for consultation concerning his ongoing impingement in his right shoulder. Dr Allen expressed the opinion that Mr Harrington suffered from ongoing subacromial inflammation. Dr Allen suggested a rehabilitation course and prescribed anti-inflammatories. No opinion was expressed as to capacity to carry out work duties.
Dr John Ashwell, orthopaedic surgeon
Report dated 29 March 2011 addressed to Mr Harrington’s solicitors. Dr Ashwell had been qualified to provide this report. The report of Dr Ashwell does not appear to be complete. This apparent deficiency has not been addressed by the parties. Whilst Dr Ashwell assesses a whole person impairment of three per cent with respect to the shoulder injury, there is no evidence of Dr Ashwell’s view as to his capacity to perform policing work having regard to the shoulder injury.

Evidence concerning Mr Harrington’s earnings and capacity to earn

In evidence there is a wages schedule tendered on behalf of Mr Harrington. There is no evidence which challenges the content of that document. That schedule demonstrates that, during the relevant period, Mr Harrington’s probable earnings but for injury were $1,651.07 per week. That figure no doubt represents the basis for the respondent’s voluntary payment of weekly compensation, for what it asserts is a single partial incapacity, of the statutory maximum weekly allowance.
The evidence established that Mr Harrington gained employment in the real estate industry, being a work trial, in September 2010. His earnings were $476 per week. That employment came to an end on 30 April 2011.
Mr Harrington remained unemployed until he commenced work as a part time teachers’ aide at St John’s College, Woodlawn. His weekly income in that position was, at most, $273.36 per week. That work ceased on 24 December 2012. I note that Mr Harrington’s employment history beyond December 2011 is of no relevance to the present appeal.
Mr Harrington, in his statement made on 13 June 2014, referred to that work performed by him in the real estate industry and said:
“This did not go well (due to aggravation of PTSD symptoms) and I had to stop work after three months.”
It is further stated by Mr Harrington that:
“Jobs that do not allow me to control the environment would increase my PTSD symptoms. Positions of expected authority and demanding tasks of others are not possible for PTSD symptoms. Jobs that involve conflict are also not possible.”
Mr Harrington’s statement contains much detail of the physical restrictions caused by his shoulder injury and its effect on performance of a very wide variety of identified occupations.

Submissions before the Arbitrator

It was argued on behalf of Mr Harrington that incapacity flowing from the shoulder injury was “a clear and distinct incapacity and a compensable incapacity” and that there should be an award of weekly compensation made in respect of partial incapacity during the relevant period. Such weekly payments, by reason of the distinction between the incapacity flowing from the orthopaedic injury and that flowing from the psychological injury, would be in addition to the compensation payments presently being made on a voluntary basis by the respondent.

Concerning the quantum of such an award, reliance was placed by Mr Harrington upon the decision of the Full Court of the Supreme Court of New South Wales in Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 19 WCR (NSW) 104; 46 SR (NSW) 20 in support of an argument that any calculation of entitlement would be founded upon the actual earnings demonstrated in the wage schedule filed on behalf of Mr Harrington. It was argued that the relevant mathematical calculations would justify an award in respect of the alleged separate and distinct incapacity arising from the shoulder disability at the maximum statutory rate.
Ms Wood, counsel appearing on behalf of the respondent, argued that the evidence established that any incapacity suffered by Mr Harrington “flows out of this incident on 28 July 2009” (T2, 36). It was argued that the incapacity resulted from a single injury. It was acknowledged in argument that there had been a history of Mr Harrington being exposed to earlier psychological stressors but that there was no demonstration of “any symptoms or signs of post traumatic stress disorder until at least July 2009, and in the context of this incident he becomes [sic] incapacitated” (at T2, 37).
Counsel for the respondent made reference to earlier authority, including the decision in Cordina. It was argued that Mr Harrington, to make out a case concerning entitlement as claimed, “has to show two distinct injuries, and in all of the other cases that have been on point, those two distinct injuries are two different events with different dates…” (at T2, 42).
In reply Mr Somerville argued that the incapacity did not result from “one big event” but rather was the result of a discrete injury that occurred on a particular date and a second injury that occurred or developed over a long period of time. It was further argued that there were distinguishable incapacities, one being physical incapacity, the other psychological incapacity: “the body and the mind, and that’s what this case is about” (T2, 67).

The Arbitrator’s decision

Following a brief summary of the factual background to the claim, the Arbitrator noted that the parties had agreed that the following issues were in dispute:
“(a) Did [Mr Harrington] suffer two injuries?
(b) Is [Mr Harrington] entitled to concurrent awards of weekly payments of compensation as a result of two injuries which have resulted in separate and distinct incapacities for work?”
The Arbitrator proceeded to summarise the submissions put on behalf of each party and the evidence concerning the various incidents which occurred in the course of Mr Harrington’s police service. Mr Harrington’s post-injury employment was also summarised.
The decision of Cordina was cited by the Arbitrator as being relevant to the resolution of the matter and reliance was placed upon the analysis in that matter made by Roche DP in which relevant authority is discussed with particularity (between [59] and [66] of that decision).
The Arbitrator proceeded to make a finding, based on the medical evidence, that:
“… the psychological injury evolved as a result of exposure to traumatic events during Mr Harrington’s police service, although it seems that the two most traumatic events which affected his psyche occurred on 3 and 27 July 2009” (at [57] of Reasons).
The Arbitrator proceeded to consider the expert medical evidence concerning the onset of Mr Harrington’s psychiatric condition. He concluded that the psychological injury “evolved over time but that the significant event which impacted on Mr Harrington’s psyche was the incident with the woman armed with the knives [on 3 July 2009] threatening to kill him” (at [65] of Reasons). The Arbitrator’s ultimate factual conclusion concerning injury was expressed at [67] of Reasons as follows:
“I find that Mr Harrington suffered two injuries (physical and psychological) notwithstanding that the deemed date for fixing the date of injury for the psychological injury is the same date as the physical injury.”
I note that the Arbitrator had earlier accepted Mr Harrington’s submission that the psychiatric condition which he suffered was a disease within the meaning of s 4 of the 1987 Act.
The question as to whether the two injuries, as found, had resulted in separate and distinct incapacities for work was then addressed by the Arbitrator. The opinion of the medical experts concerning the question of incapacity was summarised by the Arbitrator. It was accepted by the Arbitrator that Mr Harrington “would not be able to perform operational police work as a result of his physical injury but fit for suitable duties in the general labour market reasonably accessible to him” (at [77] of Reasons). A further finding was made (at [85] of Reasons) that Mr Harrington “has continuing problems with his right shoulder and that he remains partially incapacitated for work as a result of his physical injury”.
The Arbitrator immediately stated that he was also satisfied that “Mr Harrington is partially incapacitated for work as a result of his psychological injury.” Following a consideration of the specialist psychiatric medical evidence, the Arbitrator stated:
“I am not satisfied on balance that Mr Harrington has two separate and distinct capacities [sic, incapacities] for work as a result of the two injuries” (at [93] of Reasons).
The Arbitrator proceeded to state his reasons for that last mentioned finding of fact. Those reasons are addressed in the course of discussion below. The determination, as appears at [10] above, was then made.

DISPOSITION OF THE APPEAL

The grounds relied upon by Mr Harrington are noted at [16] above. The manner in which the appeal is presented demonstrates, yet again, that the profession is often failing to comply with the Commission’s Practice Direction No 6 which prescribes those requirements with which a party must comply when presenting an appeal such as the present. Whilst the grounds of appeal have been enumerated, the submissions which are furnished in support of the appeal do not address the individual grounds. The difficulty in dealing with an appeal presented in such a manner is self-evident. Notwithstanding the shortcomings it is proposed to address each ground and to attempt to discern relevant argument.
Before addressing the individual grounds relied upon, I note that, in submissions filed in reply to the respondent’s Opposition to the Appeal received by the Commission on 20 May 2015, argument is advanced in support of the Arbitrator’s findings that two injuries had, relevantly, been received by Mr Harrington. Given my conclusion as to the correctness of such findings, there is no need to address those arguments other than to observe that the drafter has taken the opportunity to repeat matters relevant to such question, and concerning the incapacity question, which were put to the Arbitrator and which have been earlier put on this appeal.

Ground (a)

This ground asserts factual error on the part of the Arbitrator in failing to make a finding that Mr Harrington suffers from two separate and distinct incapacities.
Mr Harrington, at the commencement of submissions, correctly observes that the Arbitrator, at [67] of his Statement of Reasons, had made a finding that two distinct injuries had been received. Those submissions also correctly record the Arbitrator’s findings concerning the incapacitating consequences of each injury as found, which I have recorded at [38] and [39] above. It is then put in argument that:
“Curiously, at [93] the Arbitrator arrives at the following conclusion:
‘I am not satisfied on balance that Mr Harrington has two separate and distinct capacities for work as a result of the two injuries’.”
As earlier indicated, I am of the view that a slip was made and that the Arbitrator plainly intended that the word “incapacities” should appear where the word “capacities” is found in that sentence of his Reasons.
Mr Harrington’s submissions thereafter address the medical and lay evidence which related to both the physical and psychological disabilities suffered as a result of the injuries. No specific argument is advanced founded upon the summary which has been presented. The substance of the challenge to the Arbitrator’s factual finding appears at [52] where it is put:
“When one has regard to the evidence filed, the accepted incapacities (per [85] and [86]) are readily distinguishable and separate if not completely different. To state the obvious, the shoulder injury manifests as physical symptomatology and consequent physical incapacity for employment whereas the PTSD/depression manifests as psychological distress and consequent incapacity for employment.”
In my opinion the suggestion of error must be rejected. It is clear on the authorities that a question as to the existence of incapacity and, if such is established, its causal nexus with a particular injury is one of fact. It is also clear that a determination by the Commission as to the existence of separate incapacities in the case of multiple injuries, or whether such multiple injuries have given rise to a single incapacity, is also a question of fact to be determined having regard to all the circumstances of the case (Sydney City Council v Ince (1989) 16 NSWLR 690 (Ince) per Clarke JA (with whom Hope JA and Meagher JA agreed) at 703–704).
The argument as advanced by Mr Harrington fails to acknowledge, as was made clear by Deane J (with whom all members of the Court agreed) in National & General Insurance Co Ltd v South British Insurance Co Ltd (1982) 149 CLR 327, that a single incapacity may, for purposes of workers compensation legislation, be attributable to more than one injury (at 332) where his Honour made reference to the decisions in Harwood v Wyken Colliery Co [1913] 2 KB 158 and Bushby v Morris [1980] 1 NSWLR 81), which decisions, as acknowledged by Deane J, had been cited by the judge at first instance, Yeldham J.
In the present matter the evidence suggested, and the Arbitrator concluded, that the psychological injury had been caused, in part, by events experienced by Mr Harrington before the last incident which occurred on 27 July 2009 (at [65] of Reasons). That last incident (the injurious event) caused two injuries (two pathologies), the orthopaedic injury and the aggravation of the psychological injury. The effects of those injuries, in combination, caused, for the first time, incapacity for work as a police officer. In my view the evidence permitted the Arbitrator’s conclusion that Mr Harrington suffered but one incapacity.
The present circumstances, as established on the evidence, may readily be distinguished from those considered by the House of Lords in Doudie v Kinneil, Cannel & Coking Coal Co Ltd [1947] AC 377 (Doudie), which decision was discussed by Clarke J in Ince (at 697-698) where separate incapacities were stated to be discernible in circumstances where a worker, who is partially incapacitated by reason of a work injury, suffers further injury with the same employer, or with a different employer, which results in a further diminution of his earning capacity. The views of Viscount Simon as expressed in Doudie are not to be taken as an exhaustive description of circumstances that might lead to a finding of separate incapacities, however the views as expressed demonstrate the need to take into account all relevant circumstances when the question is being considered. The Arbitrator’s conclusion was one open on the evidence and Ground (a) fails.

Grounds (b) and (c)

These two grounds may conveniently be addressed together. That there is a duty upon an Arbitrator to give adequate reasons for a decision, and that failure to do so constitutes error, is clear: see discussion per McColl JA (with whom Ipp JA and Bryson AJA agreed) in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]–[59]. As her Honour stated, reasons must be adequate to permit exercise of an appeal and must “do justice to the issues posed by the parties’ cases”.
Mr Harrington’s principal complaints appear to concern the suggested disregard by the Arbitrator of the unchallenged evidence found in his “165 paragraph” statement concerning the nature of the restrictions on his work capacity resulting from each injury.
The Arbitrator’s findings concerning incapacity (recorded at [85] and [86] of Reasons) demonstrate, in my opinion, that the very exhaustive description concerning the effects of injury made by Mr Harrington as found in that statement have been accepted by him. There was, in that event, no need to trawl through that lengthy statement merely to repeat Mr Harrington’s allegations. Any complaint of error of law in failing to refer to that material must be rejected.
Another argument which appears to address the complaints made in these two grounds is that found at [50] of Mr Harrington’s submissions where it is put:
“Absent proper qualification and explanation, it would seem that the findings of incapacity for shoulder injury [85] and incapacity for psychological injury [86] are inconsistent with a finding that Mr Harrington [does not have] ‘two separate and distinct capacities for work as a result of the two injuries’[93]” (emphasis in original).
The question before the Arbitrator was whether the injuries had resulted in separate compensable incapacities or whether the combined effect of the pathologies found to be present had resulted in one incapacity.
That question was answered, in accordance with earlier authority to which the Arbitrator made reference, having regard to all relevant circumstances. At [100] of Reasons the Arbitrator concluded that there was an “intermingling of symptoms”. That view of the evidence was reached, in part, having regard to the evidence of Dr Scurrah (noted at [101] of Reasons) that “the physical injury of his right shoulder is a contributing factor to his psychological distress”.
I am not persuaded that there has been any failure on the Arbitrator’s part to provide sufficient reasons for his conclusion, nor am I satisfied that Mr Harrington’s complaint of failure to address the evidence has been made out. The Arbitrator’s reasoning is demonstrated plainly by those matters stated (at [103] of Reasons) as follows:
“In my view, the evidence does not on balance establish that Mr Harrington suffers with two separate and distinct incapacities as a result of the physical and psychological injuries. Whilst the psychiatric condition was evolving after Mr Harrington had been exposed to traumatic events, including the incident with the woman armed with the knives, he nevertheless was exposed to a final traumatic event resulting in physical and psychological injuries. It was the physical and psychological injuries suffered as a result of the injurious event on 27 July 2009 that resulted in Mr Harrington’s incapacity for work.”

Ground (d)

This ground, which makes complaint that the Arbitrator erred in “misapplying the … decision of [Sedrak]”, is not supported by any meaningful analysis of that decision, nor is any argument advanced which suggests error of law in failing to apply a correct principle, or by applying a wrong test.
I have earlier noted that, as in Sedrak, the question as to the nature of the resultant incapacity was one of fact for the Arbitrator to determine. I have earlier found that the Arbitrator’s factual conclusion was open on the evidence. There being nothing put on behalf of Mr Harrington which suggests relevant error of law under this ground, the ground is rejected.
The appeal fails and the Arbitrator’s determination must be confirmed. Having regard to confirmation, on appeal, of the Arbitrator’s findings as to injury it is clear that the respondent’s proposed appeal is without merit. As foreshadowed in these reasons, leave to proceed with the appeal as sought by the respondent should be refused. Appropriate orders appear below.

DECISION

The respondent’s application seeking leave to appeal out of time is refused.
The Arbitrator’s findings and his orders as found in the Certificate of Determination dated 19 February 2015 are confirmed.

Kevin O'Grady
Deputy President

25 May 2015

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE