Harris v State of New South Wales (NSW Police Force)
[2021] NSWPIC 26
•16 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Harris v State of New South Wales (NSW Police Force) [2021] NSWPIC 26 |
| APPLICANT: | Mark Anthony Harris |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| MEMBER: | Mr John Wynyard |
| DATE OF DECISION: | 16 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Section 66 and 67 claim; psychiatric injury with Police exacerbated by minor event with a later employer; Johnson considered; legal principles advanced to respondent’s medico-legal expert untenable; whether medical dispute existed to refer to AMS; whether reduction to be made for pre-2002 impairment; Held- no medical dispute as applicant accepted respondent’s assessment; attempt to ‘clarify’ respondent expert’s view rejected; 25% WPI assessment for section 66, applicant 45% most extreme case; totals reduced by 10% for pre-2002. |
| DETERMINATIONS MADE: | 1. The subject injury was exacerbated by the later injury caused by the incident at Tweed River High School in 2017, which later injury would not have occasioned any damage had the subject injury not occurred. 2. The applicant has suffered thereby a 25% WPI, in accordance with the report of Dr Roger Wenden dated 15 January 2020, which assessment was accepted by the applicant. 3. There is accordingly no medical dispute. 4. The applicant has suffered pain and suffering pursuant to s 67 of the Workers Compensation Act 1987 (the 1987 Act) as preserved, of 45% of a most extreme case. 5. The reduction applicable pursuant to Schedule 6 Part 18C Clauses 3 and 3A, is 10%. |
| ORDERS MADE | 1. The respondent will pay to the applicant the sum of $44,000 pursuant to s 66 of the 1987 Act, less $4,400 pursuant to Schedule 6, Part 18C of the 1987 Act – a total of $39,600. 2. The respondent will pay to the applicant the sum of $22,500, being 45% of a most extreme case pursuant to s 67 of the 1987 Act as preserved, less $2,250 pursuant to Schedule 6, Part 18C of the 1987 Act – a total of $20,250. |
STATEMENT OF REASONS
BACKGROUND
Mark Anthony Harris, the applicant, brings an action against State of New South Wales (NSW Police Force), the respondent for lump sum compensation caused by injury on a deemed date of 17 June 2009.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and the Reply were duly lodged.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) What is the effect of the subsequent exacerbation of Mr Harris’s psychiatric state which occurred whilst he was a school support officer in 2017?
(b) What is the appropriate amount to be awarded pursuant to s 67 of the Workers Compensation Act 1987 (the 1987 Act) as preserved?
(c) What percentage should be deducted with regard to the transitional provisions?
(d) Does the Commission have power in these circumstances to make a determination as to whole person impairment (WPI) without referring the matter to an AMS?
PROCEDURE BEFORE THE COMMISSION
The matter was heard by way of telephone conference conciliation and arbitration on 13 January 2021. The applicant was represented by Mr Paul Stockley of counsel instructed by Ms Susan McTegg from Messrs Walter Madden Jenkins Lawyers. The respondent was represented by Mr Misha Hammond of counsel instructed by Ms Angelina Psirakis from Messrs TurksLegal Lawyers. 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.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Oral evidence
No application was made with regard to oral evidence.
FINDINGS AND REASONS
The facts in this matter are not in dispute.
The applicant was born in 1967 and joined the Police Force in February 1988. He was stationed at Walgett for some six and a half years and encountered frequent traumatic events and was required to intervene in riots in the town.
In October 1994 he was transferred to Lismore where again he was subjected to traumatic incidents and threatened by offenders, which threats extended to his wife and two children, as he married and had a family during his time in Lismore. In February 1999 Mr Harris was transferred from Lismore to Richmond Local Area Command, where he was stationed until 2004, when he was transferred to Byron Bay and made Sergeant.
He continued to witness the usual traumatic events that accompany first responders such as Police Officers. He dealt with fatal motor vehicle accidents, including that of a 3 year old girl who looked like his own daughter. He had to confront a drunken male who was holding an active chainsaw. He had to attend another fatal motor vehicle accident which involved his wife, who was injured, but survived the crash. Following an event where he thought he would be shot, he decompensated and eventually on 17 June 2009 left the service. He first sought medical treatment the following day when he saw his GP, Dr Christopher Mitchell.[1]
[1] ARD page 51.
Mr Harris was seen by Dr Gregory Pearson, Consultant Psychiatrist, who reported on 11 February 2010. As to diagnosis, Dr Pearson said:[2]
“Mr Harris developed symptoms of anxiety, hyperarousal, re-experiencing phenomena in the form of flashbacks and nightmares, and avoidance behaviour in the setting of exposure to an accumulation of stressful events in the NSW Police Force, particularly during his time in Walgett. The symptoms have run a chronic course. Mr Harris did not bring them to medical attention and persevered despite the presence of symptoms, eventually in the setting of experiencing two episodes of severe anxiety he discontinued work. His symptoms have improved with appropriate treatment though he has ongoing phobic avoidance of anything to do with the Police Service.”
[2] ARD page 84.
As to prognosis, Dr Pearson said:[3]
“Mr Harris' capacity to work with an alternative organisation will improve with time. It is likely that dealings with the public, particularly situations of conflict, will be problematic for him. Any exposure to aggression, threat or trauma will trigger a recurrence of his symptoms. However, it is foreseeable that he would be able to return to full-time employment in an alternative position in due course.”
[3] Ibid.
On 1 November 2010, in one of his four statements, Mr Harris said:[4]
“It has been some time since I had to walk out of my career. I am relieved to be away from the Police Force however it is a 'Bitter Sweet' feeling. Before the PTSD and back injury in 2004 I had a career that I thought I would be until retirement and my quality of life was much better than it is today.”
[4] ARD page 17.
Mr Harris brought an action against the Police Force and was diagnosed in a Medical Assessment Certificate of 8 July 2011 as suffering from a chronic post-traumatic stress disorder and associated depression in partial remission together with a history of alcohol abuse which was also in remission[5].
[5] ARD page 101.
He was assessed as having 7% WPI, which assessment was upheld by a Medical Appeal Panel on 21 October 2011.
Mr Harris was off work until 2017 when he found employment at Tweed River High School, Tweed Heads as a Schools Learning Support Officer for four days a week.
In mid-2017 he had an unpleasant encounter with an aggressive mother of a 13 year old student which was accepted by the medical experts to have caused an exacerbation of Mr Harris’s psychological illness. He had remained under psychiatric care with psychologists or psychiatrists continuously since he left the Police Force. Mr Harris did not cease work immediately but worked to the remainder of the year and transferred to Port Macquarie in February 2018. There he found employment in the same capacity at Camden Haven High School. However, his post-traumatic stress disorder continued to manifest itself and he was certified unfit on 21 August 2018.
Mr Harris retained the services of Dr Mark Scurrah, Consultant Psychiatrist, as his medico-legal specialist. In his report of 23 July 2020 Dr Scurrah took a consistent history and concluded:[6]
“Mr Harris has a chronic Post Traumatic Stress Disorder, a chronic Depressive Disorder and Alcohol Abuse, all of which have remained long-term since he developed them as a NSW Police Officer. They never entered complete remission. By not entering remission, I mean the illnesses never stopped existing.
Mr Harris' current symptom profile remains those of the original police-related traumas in which members of the Police Force died/a serving Police Officer's wife was killed. Mr Harris' symptoms are not currently theme-wise those of fearing an assault by a parent.
From my perspective, Mr Harris has a chronic PTSD, a chronic Depressive Disorder with anxiety symptoms and Alcohol Abuse from police-related traumas. The relatively mild/minor threat (in comparison with the original traumas as a Police Officer) of being threatened by a parent at school led to an exacerbation of the police-related PTSD/Depression/Alcohol Abuse.
In my opinion, if it were not for his original police-related traumas, I doubt he would have been disabled by the single threat by the parent of a student. His current symptoms are those of police service, not those of being threatened by a parent.”
[6] ARD page 142.
The respondent retained the services of Dr Roger Wenden, Psychiatrist. He first saw Mr Harris on 10 January 2020 and reported on 15 January 2020. He took a consistent history and diagnosed a chronic post-traumatic stress disorder, chronic major depressive disorder and alcohol abuse “which has been exacerbated by the further workplace injury in 2017”[7]. In giving his opinion as to the relationship between the psychological injury and Mr Harris’s police service, Dr Wenden said:[8]
“In my opinion, based on the history I obtained, the documentation provided and my clinical examination, the worker's employment as a NSW Police Officer caused the initial injury which is diagnosed as Chronic Post Traumatic Stress Disorder, Chronic Major Depressive Disorder and Alcohol Abuse and this injury has been exacerbated by the alleged psychological injury in 2017 whilst working as a School Support Worker.”
[7] ARD page 129.
[8] ARD page 130.
Dr Wenden certified a WPI of 25%.
In a subsequent report of 12 February 2020 Dr Wenden was asked for further clarification. He was asked a question in the following terms:[9]
“1. Could you please explain whether the worker's subsequent employment as a teacher's aide was the substantial cause for his new psychological injury claim? In particular, was the incident in mid-2017 involving an aggressive parent the reason for the worker's deterioration and if so, did this result in a new injury or aggravation (as opposed to an exacerbation or recurrence of the existing PTSD)?”
[9] ARD page 134.
Dr Wenden responded, unsurprisingly, as follows:
“Yes, in my opinion the incident in mid 2017 involving an aggressive parent was the
reason for the worker's deterioration. This resulted in an exacerbation of the existing
Chronic Post Traumatic Stress Disorder, Chronic Major Depressive Disorder and
Alcohol Abuse. I have stated this in my original report in the section under Diagnosis
(see page 6 of the report):‘In my opinion Mr Harris continues to suffer from Chronic Post Traumatic Stress
Disorder, Chronic Major Depressive Disorder and Alcohol Abuse which has beenexacerbated by the further workplace injury in 2017’."
Dr Wenden was then asked a further question, which he answered in his report of 12 February 2020:
“2. In this regard, should your total assessment of 25% WPI be apportioned between the worker's employment as a NSW Police officer and his subsequent employment as a teacher's aide? If so, please provide the apportionment that would apply?
In my opinion, given that his previous WPI calculation provided in the documentation was 7% as a result of the previous reported calculation, the apportion for the employment as a NSW Police Officer was 7% and the apportion that is due to the subsequent employment as a teacher's aid based on my calculations is 25% - 7% which equals 18%.”
Dr Wenden also said[10]:
“The 7% WPI was the previous calculated WPI as given in the documentation provided. You are correct in assuming that the 7% WPI portion was due to employment with the police and the subsequent deterioration was considered due to the worker's latter employment.”
[10] ARD page 134.
Not content with Dr Wenden’s answers, his retaining solicitors then sought a further report, which was provided on 21 February 2020. In that report Dr Wenden considered a further question[11]:
“For the sake of clarify could you please confirm if you consider the incident in mid-2017 to have in fact been an aggravation (as opposed to an exacerbation) of the worker's pre-existing PTSD, noting that an aggravation of a disease is a new injury (in accordance with the legislation), whereas an exacerbation is not. In this regard, if the worker suffered merely an exacerbation, your entire assessment of WPI would be attributable to his original psychological injury sustained with NSW police. If however the event in mid-2017 were an aggravation (and thus a new injury) the assessment could be apportioned between the two injury dates.
In my opinion the event in mid-2017 caused an aggravation (and thus a new injury) of his condition of Chronic Post Traumatic Stress Disorder, Chronic Major Depressive Disorder and Alcohol Abuse which was already in existence at the time of the incident in mid-2017. The condition could not be considered a recurrence (or exacerbation) as it had not been previously in remission but had continued with symptoms and dysfunction from the time of developing the injury on 17/06/2009 and was made worse by the incident in mid-2017.”
[11] ARD page 137.
It was this opinion on which the respondent based its denial of liability. The s 78 notice was issued on 3 March 2020 where it was alleged that the respondent was only liable for the original 7% assessed by Dr Gertler as the additional 18% has been caused by subsequent employment.[12]
SUBMISSIONS
Respondent
[12] ARD page 41.
As noted by the respondent, the conciliation phase at the hearing was protracted and a timetable was set, with the parties directed to file and serve written submissions.
The respondent submitted that the evidence of the 2017 incident was a significant factor in aggravating Mr Harris’s pre-existing psychiatric condition. However, it could also be viewed as a minor incident, the respondent contended as the uncontested facts show that Mr Harris continued at Tweed River High School for the rest of 2017, and transferred to Camden Haven High School in February 2018, where he did not cease work until 21 August 2018.
The respondent submitted that Dr Wenden’s opinion was that the 2017 incident aggravated Mr Harris’s pre-existing injury. The aggravation itself had created 18% WPI. Accordingly, the respondent argued, the application should be dismissed and the matter referred to an AMS.
The submission that the matter should be referred to an AMS was based on the respondent’s claim that there was a dispute as to the level of WPI. It was submitted that the claim that Dr Wenden had in reality certified 25% WPI did not “quell the dispute.”
The respondent submitted further that in order to bring a further claim, the applicant was required to demonstrate a deterioration since the 7% WPI finding in 2011, which brought the dispute squarely within the description of a medical dispute, which an Arbitrator did not have jurisdiction to decide.
With regard to pain and suffering, the respondent submitted that the appropriate range in the light of the evidence was between 20% and 30% of a most extreme case. The respondent conceded that the psychological injury was significant. It had ended his chosen career and limited him to sporadic employment since. The respondent noted that Mr Harris is now 53 years old but noted that he had been suffering his psychiatric illness for some time.
The transitional provisions in Schedule 6, Part 18 C clauses 2 and 3 were applicable, the respondent submitted, as the applicant’s condition had been caused by events he experienced prior to 2002, the year that psychiatric and psychological injuries became compensable.
The applicant had been a serving police officer for almost 11 years up to 2002, Mr Hammond said. His post 2002 career lasted a further four years where the applicant was working in the anti-theft squad and at Byron Bay as a sergeant. Mr Hammond submitted that the post 2002 employment, which involved a supervisory component, involved less exposure to trauma than the general duties he had hitherto performed.
Mr Hammond submitted that the medical evidence showed that the applicant’s service at Walgett was highly causative of his condition, and that by 2002/2003 the applicant’s condition was manifest in that he was having to pull over to the side of the road to be physically sick. I was referred to other reports that supported the respondent’s submission. An appropriate deduction pursuant to the transitional provisions was suggested of 50%.
Applicant
Mr Stockley described the controversy in the matter as being “illusory,” as the respondent had based its denial of liability on a mistake of law. The content of the question on which Dr Wenden was asked to report on 21 February 2020 misstated the law and invited an opinion that had no probative value.
Mr Stockley noted that the relevant law had been communicated to the respondent by the applicant’s solicitors on 10 March 2020 when asking the insurer to review the grounds set out in the s 78 notice.[13] The letter noted:
“The apportionment undertaken by Dr Roger Wenden is inconsistent with the current law. We refer you to the decision of the Court of Appeal in Secretary, NSW Department of Education v Johnson [2019] NSW CA 321 handed down on 20 December 2019. The facts in Johnson are not dissimilar to the facts in this matter.”
[13] ARD page 43.
Ms McTegg, the author of that letter, then set out the relevant portions of the judgement.
Mr Stockley submitted that the application of the principles in Johnson to the evidence in this matter must lead to the conclusion that Dr Wenden’s original assessment of 25% WPI was correct.
Mr Stockley contended that the respondent’s submission that somehow the matter should be referred to an AMS was misconceived, as the applicant accepted Dr Wenden’s original assessment, and there was accordingly no medical dispute to be referred.
With regard to pain and suffering Mr Stockley argued that 50% of a most extreme case was appropriate under the circumstances. Mr Harris’s diagnosis was agreed by the medical specialists as being broadly similar to his condition at the time he was assessed by the AMS in 2011. However, their effects were now much worse. Mr Stockley referred to the supporting evidence which described that Mr Harris was now unable to work, and his ability to partake in domestic and recreational activities had deteriorated.
Mr Stockley submitted that the prognosis was poor, and that, at 53, Mr Harris had been deprived of any opportunity to advance his police career, which otherwise might have continued, and that Mr Harris has compromised in marking usual mileposts of middle-age, watching his children’s progress to adult hood, and planning for retirement.
Rather, Mr Stockley argued, Mr Harris was trapped in the cycle of symptoms recorded in his statements and in the medical histories. Mr Harris had been suffering these symptoms for 12 years and could expect to do so for another 30 years. Mr Stockley noted that the respondent, notwithstanding that it argued for only a 7% WPI, nonetheless conceded that an estimate of between 20-30% of most extreme case would be appropriate for Mr Harris.
As to the transitional provisions, Mr Stockley noted that their purpose was to limit the recovery of compensation that was due to events that occurred only after the commencement of the 2002 amendments, which introduced the concept of compensation for psychiatric impairment.
Mr Stockley referred to the opinion of Dr Pearson in 2010, which predicted the danger of a recurrence of Mr Harris’s symptoms, was precisely what had occurred in 2017, Mr Stockley said. A cascade of symptoms had emerged and worsened as described by Mr Harris in his 2020 statement. Mr Stockley conceded that some of Mr Harris’s experiences prior to 2002 had contributed to his permanent condition, however he submitted that a review of his statements showed that it was the events following 2002 that were responsible for his present psychological state. Mr Stockley submitted that the evidence justified a 5% assessment as to the previously non-compensable impairment.
DISCUSSION
The legal effect of the subsequent exacerbation of Mr Harris’s psychiatric state
The submission that the matter should be referred to an AMS is rejected. Matters may only be referred when there is a medical dispute, and what is in dispute in the present case is a legal dispute. The ARD (see [2] above) sought a lump sum payment pursuant to s 66 of the 1987 Act of 23% WPI. The respondent lodged an opinion by Dr Wenden that certified, at one stage, 25% WPI, and the applicant accordingly submitted that there was no dispute, as it accepted that assessment.
The real question is whether there was any legal basis for the assumptions Dr Wenden was subsequently asked to accept, and on which he altered his opinion.
Johnson
Ms McTegg was correct in her assertion that the facts in the present case are similar to Johnson. Ms Johnson had sustained a psychological injury whilst working for the respondent on 30 April 2014, but also subsequently sustained further psychological injury whilst working for another employer on 30 March 2017. The matter was referred to an AMS, who originally found a WPI of 19%. He was not then aware that there had been a second injury. The matter was referred back to him when this knowledge became apparent, and he confirmed that the applicant was suffering a19% WPI, but deducted 1/10th for the effects of the second injury.
This led to an appeal to Medical Appeal Panel, as s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) does not permit deductions for subsequent injury. The Appeal Panel found that the AMS had erred in that respect, but then apportioned only 6%WPI to the first injury, finding that the circumstances of the second injury caused a significant and traumatic psychological injury.
The matter came before Garling J[14] , who found that the Appeal Panel erred in making the above apportionment. In the Court of Appeal Emmett AJA said at [70]:
“70. The question for determination by the Appeal Panel was the degree of permanent impairment now suffered by the Worker as a result of the First Injury. That question was one of fact and the Appeal Panel’s reasoning was consistent with conventional principles of causation. There are three possible categories where an earlier injury is followed by a later injury, as follows:
·Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.
·Where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.
·Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained.”
Facts not in dispute
[14] Johnson v NSW Workers Compensation Commission [2019] NSWSC 347.
It is common ground that the first injury of 17 June 2009 (deemed) was exacerbated by the 2017 incident, and there is no suggestion that any part of the damage Mr Harris has subsequently suffered would have been occasioned if the first injury had not occurred. I therefore accept that necessary causal connection between Mr Harris’s present psychological condition and his injury with the respondent has been established. Dr Scurrah held that view.
This was also the conclusion originally drawn by Dr Wenden in his report of 19 January 2020. He found that Mr Harris’s employment with the NSW Police Force caused his chronic PTSD, major depressive disorder and alcohol abuse. These conditions had been exacerbated by the injury of 2017.
The respondent’s attempt to put a gloss on that opinion must be rejected.
“Injury” is defined by s 4 of the 1987 Act:
"‘injury’ -
(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means--(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
Dr Wenden’s apportionment rejected
Dr Wenden was invited to consider that the 2017 incident was the “substantial cause” for the “new psychological injury claim,” and whether that incident was the reason for the workers “deterioration.” Dr Wenden was then asked to accept the legal proposition that the 2017 incident resulted in “a new injury or aggravation.” Dr Wenden was told that this was “opposed” to an “exacerbation” or a “recurrence,” which he was told related to the “existing PTSD.”
It can be seen that the words “deterioration” “aggravation” and “exacerbation” were liberally used, but in a confused and inaccurate legal context. There is no legal principle that an “exacerbation” is only applicable in cases of a recurrence of an existing injury, neither is there any legal principle that an “aggravation” connoted a new injury. The legal principles upon which Dr Wenden was asked to base his assessment were untenable, and the respondent did not assist matters by asking Dr Wenden to assume they were correct.
Far from the respondent’s declared intent to “clarify” Dr Wenden’s opinion, it did nothing but confuse him, and his opinion as to an apportionment of the WPI is accordingly rejected. In any event, the aggravation, acceleration, exacerbation and deterioration of a disease condition in these circumstances is not in contest. Dr Wenden and Dr Scurrah both described the applicant’s condition as an exacerbation of his earlier injury. Apart from the failed attempt by the respondent to have Dr Wenden alter his opinion, there was no support for the respondent’s contention that the 2017 injury was a new injury. It was common ground that the applicant had never recovered from his psychiatric state, but that he was in partial remission at the time of the 2017 incident.
Pain and suffering
The assessment of pain and suffering, together with that of the contribution of the pre-2002 history, are matters of discretion. I have referred to the submissions of the parties, which I have considered in making these discretionary assessments.
I find to be persuasive the medical evidence that Mr Harris’s decompensation after 2017 was an exacerbation of his pre-existing psychiatric condition. It was not suggested that Mr Harris had recovered from his injury with the Police Service, and the expert evidence was ad idem that the apparently minor causative trigger exacerbated his underlying psychiatric condition, which had been in partial remission. It has increased his WPI from 7% to 25% (Dr Scurrah assessed 23%).
I accept Mr Stockley’s submissions in this regard. At 53 years old, the trajectory of Mr Harris’s life has been badly affected. His prognosis is poor, and any opportunity to advance his police career has been taken from him. He has indeed been trapped in the circle of symptoms he described. He is unable to maintain a social life, with little interest in involving himself with others[15]. He has suffered the failure of his marriage and his later relationship.[16] He has lost interest in relationships, and is hypervigilant, with a short fuse and is easily angered. He continues to suffer nightmares and broken sleep patterns, and to experience flashbacks. He has lost motivation to look after his domestic environment and needs assistance of friends to maintain his household tasks. He regularly suffers headaches and is confused. He remains under the care of Dr Scurrah and his GP. He has been under Dr Scurrah’s care since 2009. Dr Scurrah thought that Mr Harris’s conditions were severe, and likely to be lifelong.[17]
[15] Statement 8 April 2019 ARD page 28.
[16] Statement 1 November 2010 page 4; statement 15 January 2020 page 30.
[17] Report Dr Scurrah 9 September 2019; ARD page 121.
Mr Harris on the other hand has not been institutionalised, and is able to live in his community. It may be that his condition will remit to the extent that he could find some work in the future. I think an appropriate percentage of a most extreme case is 45%.
Transitional provisions
With regard to the reduction of compensation payable due to the causative history prior to the introduction of compensation for psychiatric injury, Schedule 6 Part 18C Clause 3 and 3A provide relevantly:
“3 LUMP SUM COMPENSATION AMENDMENTS
(1) The lump sum compensation amendments do not apply in respect of an injury received before the commencement of the amendments (even if the injury is the subject of a claim made after the commencement of the amendments)…..
…..
(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 section 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 of a kind for which no compensation was payable under that Division before that commencement.”
The evidence establishes that Mr Harris encountered much of his trauma when he was a young police officer in the period up to 2002. There is no contemporaneous record of any complaint or need for medical treatment, the first occasion being on 18 June 2009. Dr Mitchell took a history of 15 years of nightmares, and Mr Harris said in his statement of 1 November 2010:[18]
“For much of my career as a police officer I had weekly (if not more) nightmares of people trying to kill me, for many the setting was inside my home. The nightmares have not gone and my reactions at the time, vary.”
[18] ARD page 5.
The deemed date of injury in Mr Harris’s action against the Police Service was 17 June 2009, so it can be seen that Mr Harris’s condition did not become critical until he sought help from Dr Mitchell. Whilst Mr Harris may have been exhibiting symptoms of PTSD for many years, he nonetheless persevered. It is common knowledge that first responders, be they police officers, ambulance service personnel, or members of the Fire and Rescue service, regularly encounter as part of their daily duties, the most horrible and traumatic circumstances. Not every such encounter necessarily causes injury, and it is also common sense that many of them will remember those scenes. Mr Harris alluded to this in his statement of 1 November 2010, when he said that he thought he had a career until his retirement, until the onset of his PTSD and a back injury in 2004. It follows from that statement that although he may have been experiencing symptoms earlier in his career, he did not consider that he needed medical treatment, nor that he should cease his career. The year 2004, although perhaps referring to the back injury, also suggests that it was around that time that Mr Harris became aware that he had become injured by his experiences.
The question accordingly is whether Mr Harris’s loss was due to something that occurred before 2002. With hindsight Mr Harris recalled the nightmares that his experience had caused and it is reasonable to assume that they were the first symptoms in the development of what has become such a significant psychiatric condition. However he stayed in employment with the Police Force until 2009 and his more contemporaneous recollection was that he still intended to maintain his career path well after 2002. I think that the reduction therefore ought to be in the region of 10%. There is no evidence to support such a large reduction as 50%, as the respondent contended, and I think that the contribution of those earlier experiences to the eventual impairment was more significant than the 5% argued for by Mr Harris.
DECISION
The Commission finds:
(a) The subject injury was exacerbated by the later injury caused by the incident at Tweed River High School in 2017, which later injury would not have occasioned any damage had the subject injury not occurred.
(b) The applicant has suffered thereby a 25% WPI, in accordance with the report of Dr Roger Wenden dated 15 January 2020, which assessment was accepted by the applicant.
(c) There is accordingly no medical dispute.
(d) The applicant has suffered pain and suffering pursuant to s 67 of the 1987 Act as preserved, of 45% of a most extreme case.
(e) The reduction applicable pursuant to Schedule 6 Part 18C Clauses 3 and 3A, is 10%.
The Commission orders:
(a) The respondent will pay to the applicant the sum of $44,000 pursuant to s 66 of the 1987 Act, less $4,400 pursuant to Schedule 6, Part 18C of the 1987 Act – a total of $39,600.
(b) The respondent will pay to the applicant the sum of $22,500, being 45% of a most extreme case pursuant to s 67 of the 1987 Act as preserved, less $2,250 pursuant to Schedule 6, Part 18C of the 1987 Act – a total of $20,250.
John Wynyard
MEMBER
16 March 2021
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