Holmes v Commissioner of Police
[2012] NSWDC 159
•18 June 2012
District Court
New South Wales
Medium Neutral Citation: Holmes v Commissioner of Police [2012] NSWDC 159 Hearing dates: 18 June 2012 Decision date: 18 June 2012 Before: Neilson DCJ Decision: I set aside the decision of the Commissioner of Police of 15 February 2011 stating that the infirmities of "lumbar spondylosis and osteoarthritic change involving the acromioclavicular and glenohumeral joints with tendonitis of the left rotator cuff" were not caused by the plaintiff's having been hurt on duty.
I determine that the suffering by the plaintiff of the infirmity of lumbar spondylosis was caused by his having been hurt on duty on 14 June 2008.
I determine that the suffering by the plaintiff of osteoarthritic change involving the acromioclavicular and glenohumeral joints with tendonitis of the left rotator cuff was caused by his having been hurt on duty on 16 August 2008.
I order the defendant to pay the plaintiff's costs.
Catchwords: Police - Hurt on duty - Pre-existing degenerative conditions in police officer's shoulder and lower back - Whether relevant event could aggravate pre-existing non-compensable condition absent certification by PSAC of aggravation Legislation Cited: Police Regulation (Superannuation) Act 1906 (NSW) ss 1(2), 10B(3)(a)
Workers Compensation Act 1987 (NSW) ss 4, 9(1)Cases Cited: COP v SAS Trustee Corporation [2002] NSWIR Comm 31
Commissioner of Police v Kennedy (2007) 5 DDCR 380
Day v SAS Trustee Corporation [2009] NSWCA 222
Dive v Commissioner of Police (1997) 15 NSWCCR 366Category: Principal judgment Parties: Michael Keith Holmes (Plaintiff)
Commissioner of Police (Defendant)Representation: Mr T Ower (Plaintiff)
Mr T Rowles (Defendant)
Walter Madden Jenkins (Plaintiff)
Rankin Nathan Lawyers (Defendant)
File Number(s): RJ323/11
Judgment
The plaintiff is a former sergeant of police. He was attested as a probationary constable of police on 18 September 1978 and thereupon become a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 ("the Act"). It would appear that the plaintiff last actually worked as a sergeant of police on or about 3 March 2010. On the following day he underwent arthroscopic surgery to his left shoulder. On 27 January 2011 the Police Superannuation Advisory Committee (PSAC), established under the Act, determined that the plaintiff was incapable of carrying out police duty because of three conditions. The first was:
"Bilateral high frequency noise induced sensori-neural hearing loss and severe bilateral tinnitus."
The second was:
"Post traumatic stress disorder-chronic; and major depression with psychotic features."
The third was:
"Lumbar spondylosis; osteoarthritic change involving the acromioclavicular and glenohumeral joints with tendonitis of the left rotator cuff."
On 17 February 2011 the Commissioner of Police, by his delegate, determined that the suffering by the plaintiff of the infirmity of bilateral high-frequency noise induced sensori-neural hearing loss and severe bilateral tinnitus were duty related. He also determined that the suffering by the plaintiff of the infirmity of lumbar spondylosis and osteoarthritic change involving the acromioclavicular and glenohumeral joints with tendonitis of the left rotator cuff were not caused by his having been hurt on duty.
The defendant deferred his decision concerning the infirmity of post traumatic stress disorder which was chronic and major depression with psychotic features. I am told, without objection, that the Commissioner determined that issue adversely to the plaintiff but the plaintiff has elected not to prosecute an application to this Court arising from that decision of the Commissioner of Police.
The issue, accordingly, for my determination is whether the suffering by the plaintiff of the conditions of lumbar spondylosis and osteoarthritic change involving the acromioclavicular and glenohumeral joints with tendonitis of the left rotator cuff were caused by his having been hurt on duty.
After his attestation as a probationary constable of police the plaintiff was assigned to working in general duties at Blacktown. Subsequently he worked in general duties in Surry Hills and Kogarah and Rockdale. In 1985 he became a part-time member of the Tactical Response Group. On 18 September 1987 he was promoted to the rank of senior constable of police. Later in that year he transferred back to Kogarah. Whilst he was at Kogarah he was promoted to sergeant and became a part-time member of the Operational Support Group. In September 1995 he was transferred to general duties at Riverwood and in July 1997 transferred to Hurstville.
On 10 December 2000 the plaintiff was transferred as a sergeant of police to the Camden LAC. On 11 August 2006 the plaintiff had an emotional breakdown. According to the medical evidence before me, that was because of the suicide of an offender whom the plaintiff had incarcerated for driving under the influence on the previous night. That unfortunate death caused the plaintiff severe emotional trauma, leading him to feel that he could not cope any more with active police work. According to one of his general practitioners, it caused the plaintiff to question the purpose of both his life and his work.
It would appear that thereafter the plaintiff was put on restricted duties, essentially working with exhibits. On 14 June 2008 the plaintiff was working with a motorcycle which was locked up in an exhibits cage at the Camden Police Station. He tried to move that motorcycle over an iron grate covering a drain. As the plaintiff was pushing the motorcycle over the grate it dropped by about fifteen centimetres, causing his left leg to fall that fifteen centimetres, causing him to twist his back and fall to the ground. The motorcycle fell on top of him pinning him by his legs. Two other members of the police force came to his assistance and eventually a duty officer did as well. An ambulance was called and the plaintiff was taken to the Camden Hospital. The plaintiff injured his back in that event. There was no dispute about that.
After an absence of about one month the plaintiff returned to work doing, again, restricted duties but the duties were restricted both as to dealing with members of the public and with doing any form of heavy work. Whilst the plaintiff was still doing those restricted duties a further accident occurred on 16 August 2008. The plaintiff was taking old exhibit bags and other rubbish from the Camden Police Station to a rubbish tip. He was asked to take with him a load of old chairs. He loaded the rubbish and the chairs into a utility truck. He then drove to the tip. As he was trying to unload the chairs, the edge of one of the chairs caught in the side panel of the utility and stuck, causing the plaintiff to pull heavily at it. In the course of tugging at the stuck chair the plaintiff felt pain in his left shoulder. The plaintiff has had problems with his left shoulder ever since.
The first medical report before me is a radiological report of Dr Michael Meyerson of the plaintiff's low back, made on 16 June 2008. The plaintiff had been sent to Dr Meyerson by Dr Lam of the accident and emergency department of the Camden Hospital. The plain x-ray of the plaintiff's low back showed a mild lumbar scoliosis concave to the right. There was also noted to be mild narrowing of the L4/5 disc space. To say that there was a mild lumbar scoliosis concave to the right is to say the same thing as a mild lumbar scoliosis convex to the left. The same appearance is noted in some subsequent medical reports.
Following upon the accident of 16 August 2008, the plaintiff underwent an x-ray of his left shoulder at the request of a doctor from the Camden Hospital. The radiological report of Dr Andrew Varnava of the left shoulder made on 21 August 2008 described moderate degenerative changes of the acromioclavicular and glenohumeral joints, with joint space narrowing and marginal osteophyte formation.
It is to be recalled that the accident to the plaintiff's left shoulder occurred on 16 August 2008 and this radiological investigation was made five days later. For any reactive bony change to show up on plain x-ray after an accident, one would expect at least six months to elapse. Therefore, the moderate degenerative changes of the acromioclavicular and glenohumeral joints with joint space narrowing and marginal osteophyte formation describe a degenerative condition of the plaintiff's left shoulder which pre-existed 16 August 2008.
The plaintiff had been under the care of Dr Jenny Brackenbury, a general practitioner of Camden, since the 18 May 2007. Dr Brackenbury had initially been treating the plaintiff for his psychological or psychiatric condition. She saw the plaintiff on the 3 July 2008 and noted the plaintiff was then:
"on worker's compensation for a back injury that occurred when moving a motorbike in the Exhibits' lockup - the bike slipped when a floor grate moved, injuring his lumbar spine."
Dr Brackenbury goes on to record that the plaintiff had been taken by ambulance to the Camden Hospital, where x-rays were performed and he had been treated at the Mt Annan Medical Centre and had been referred for both chiropracty and physiotherapy. The doctor went on to record that the plaintiff had also been to see the Police Medical Officer but it appears that was in relation to his psychological condition.
Dr Brackenbury reviewed the plaintiff on 22 August 2008. She recorded that the plaintiff had:
"suffered a new injury at work to his left shoulder. While lifting chairs off a utility at the tip, one chair caught another mid swing, causing forced extension in eighty degrees abduction. He experienced pain in his anterior shoulder with tingling down the arm."
Dr Brackenbury noted that the plaintiff was currently receiving physiotherapy for his back. Her provisional diagnosis of the plaintiff's shoulder injury was of a capsular tear or rotator cuff tear and she made arrangements for the plaintiff to also undergo physiotherapy for his shoulder condition. She also arranged for the plaintiff to undergo an ultrasound of his left shoulder. There was a finding noted of fluid around the biceps tendon in keeping with biceps tendonitis. However there was not thought to be any rotator cuff tear. The fluid around the biceps tendon indicates to me that biceps tendonitis would appear to be directly caused by the event of 16 August 2008.
Eventually Dr Brackenbury referred her patient to Dr Arash Nabavi, an orthopaedic surgeon, for treatment of his left shoulder condition. In the meantime there were some further radiological investigations. There were plain x-rays of both the thoracic and the lumbar spines. The comment about the plaintiff's thoracic spine is this:
"There are multiple wedge compression fractures with greater than 20% loss of height of the thoracic spine. These may be on the basis of bony osteopaenia."
That is a condition of, basically, softening of the bones antecedent to the onset of osteoporosis. Whilst one could speak of "compression fractures" they may be just part of a degenerative process. As far as the lumbar spine was concerned, Dr Varnava reported the plain x-ray thus:
"There is a lumbar scoliosis convex to the left with a thoracolumbar scoliosis convex to the right. No wedge compression fracture in the lumbar spine is seen. Degenerative change of the facet joints are present. No disc space narrowing, pars defects nor spondylolisthesis is seen. Bony spurring of the vertebral body margins is noted."
As I understand it, bony spurring of the vertebral body is another way of speaking of osteophytosis. Again, he is describing a degenerative condition in the plaintiff's lower back.
An MRI arthrogram of the left shoulder was performed on 14 December 2009. That was essentially relied upon by Dr Nabavi to reach his diagnosis. That led to his carrying out surgery on 4 March 2010. The doctor's operative findings are these:
"The findings were that of an intact glenohumeral joint, but a large bucket handle type labral SLAP tear, i.e, Type III.
The biceps underwent a tenotomy and the labrum was repaired with use of a Device Technology 2.7mm Push-Lock anchor. The sub-acromial space was then visualised and a bursectomy performed. There was evidence of impingement and therefore an acromioplasty was undertaken.
A separate incision was then made [,] the biceps tendon retrieved and tenodesed into the bicipital groove with use of a Device Technology Biotenodesis screw. The area was then irrigated and all loose debris removed, and the wounds were closed in layers with Monocryl to skin.
Of note: was an intact rotator cuff with only minor fraying, which underwent debridement and also Grade IV changes in the glenohumeral joint, particularly over the inferior border of the glenoid."
Dr Nabavi reviewed his patient two weeks, four weeks and ten weeks post operatively. After ten weeks there was a full range of motion, but the plaintiff still had minor symptoms with abduction. By 10 May 2010 Dr Nabavi thought the plaintiff should avoid manual work with his left upper limb. However, it is clear that the plaintiff was unable to return to work because of his psychological or psychiatric problems.
On 4 August 2010 the plaintiff returned to see Dr Nabavi, complaining of problems over the operation site. Dr Nabavi thought that there was some soft tissue impingement over the site of the biceps tenodesis and he injected the area, presumably with an anaesthetic. He planned to see his patient again in six weeks time but it is not clear whether he did so.
The only other matter I should comment on is an MRI scan of the plaintiff's lower back performed at the request of Dr Brackenbury on 15 October 2010. That shows mild developmental narrowing of the spinal canal and dessication - that is, a drying out - of the discs at L4/5 and also at L5/S1. There were degenerative changes within the discs, together with an annular tear at L5/S1 and suggestion of impingement of the theca and perhaps of the L5 nerve roots. However, the plaintiff has never complained of referred pain in either of his lower limbs.
The rest of the medical evidence before me is purely qualified medical evidence. There is a lengthy report from Dr James Powell, an orthopaedic surgeon, to whom the plaintiff was sent by the STC, no doubt for submission of his report to PSAC. I have also reports from Dr A L G Smith, also an orthopaedic surgeon, who saw the plaintiff for the defendant. Dr Powell examined the plaintiff on 25 October 2010 and Dr Smith examined the plaintiff on 24 November 2010, some thirty days apart. The other medical reports I have are from Dr John Scougall, also an orthopaedic surgeon, who saw the plaintiff at the request of his own solicitors on 5 September 2011.
I should have commented earlier that after the certificate was given by PSAC and after the decision that was made by the Commissioner of Police that is the subject of the current proceedings, the plaintiff was medically discharged from the police force with effect from 17 February 2011. Because the defendant accepted that the plaintiff had one infirmity which was duty related, the plaintiff became entitled to a "hurt on duty" pension.
There is no dispute that neither the degenerative condition in the plaintiff's lower back, nor the degenerative condition in his left shoulder, were caused by either of the injuries relied upon. Each degenerative condition clearly pre-existed the injuries relied upon by the plaintiff. The doctors speak of both "aggravation" and "exacerbation", and the real issue for my determination is whether, at the time of the plaintiff's medical discharge, there was any continuing aggravation or exacerbation and, if so, the proper legal construction of the Act now in question.
When Dr Powell examined the plaintiff he found some slight wasting of the left deltoid and slight tenderness of the shoulder anteriorly. He also found a limitation of external rotation to twenty degrees, causing the plaintiff anterior pain, and limitation of internal rotation to fifty degrees, but that caused less irritation than external rotation. He also found some weakness on testing the biceps with irritation in the shoulder, and marked irritability when testing the subscapularis with the lift-off test, causing anterior pain. All of those findings are objective signs of ongoing organic disability. As far as the lower back was concerned, the doctor found no objective sign of organic disability.
Dr Powell's summary is this:
"He developed mechanical back pain following a stepping incident in the course of his work, and continues to have symptoms in the low back.
He suffered injury to the left shoulder with investigations showing advancing degenerative change, and it is probably that extended a labral tear that led to the development of symptoms and subsequent surgical management from which he is currently recovering."
Dr Powell thought the plaintiff was unable to perform the functions of a police officer. On the question of the plaintiff's capacity to perform the duties of his office, Dr Powell expressed this view:
"In the lumbar spine, his incapacity to work is contributed to by his lumbar spondylosis, due to back pain aggravated and increased by movement, bending, twisting, running and jumping and prolonged sitting and standing, which decrease his ability to move about comfortably and to perform physical tasks.
His condition about the left shoulder limits his ability to reach away from the body, lift any loads beyond three kilograms to four kilograms and perform any tasks at or above shoulder height.
The doctor's prognosis was guarded, in that he thought the plaintiff's symptoms would be likely to continue indefinitely. On the question of causation, Dr Powell said this:
"The underlying pathology in both the lumbar spine and shoulder is degenerative arthropathy (and osteoarthritis). There does not appear to be any signs or symptoms to suggest a generalised synovitic arthropathy, crystal arthropathy or other form of connective tissue disorder.
The injuries described have aggravated the underlying degenerative condition resulting in the development of pain and symptoms that brought the condition both of the back and shoulder to his attention, leading to investigations which confirmed the underlying diagnosis.
The injuries described did not cause the conditions."
I interpolate at this time that doctors often do not draw any distinction between the words "aggravation" and "exacerbation". The word "aggravation" is apt to describe the making of any condition itself worse. The word "exacerbation" is apt to describe the triggering off of the painful symptoms of the condition. Sometimes, and often, medical practitioners use the word "aggravation" as if it were synonymous with the word "exacerbation". The underlying root of the word "aggravation" is the Latin adjective "gravis", which means heavy, and the underlying root of the word "exacerbation" is the Latin word "acer", which means sharp. However, I accept that at least Dr Powell thought that there was a continuing exacerbation of each of the degenerative conditions which he diagnosed.
Before I go on to discuss the opinion of Dr Smith I should point this out. The plaintiff clearly gave a history that in either 1982 or 1983 he had fallen off a motorcycle in the course of his duty and sustained injury to his low back. He thought he was only off work for a short time, perhaps a day or two. The plaintiff told me that he made a full recovery from that event and was able to manage full operational duties over the years in between. However the plaintiff did admit that prior to the incident in 2008 he had an occasional non-specific backache when, for example, he had done any heavy work but that non specific backache did not cause him a need for any treatment or any investigation. The history recorded by Dr Smith was a little different. That history is this:
"He said that before 2008 there had been some back problems in the past if he had some specific problem such as at football, when he was a younger fellow. He thought he might have seen his general practitioner for the odd occasional backache. He could not recall any particular times though."
The plaintiff told me that he used to play rugby league, he stopped playing that sport in 1993 and it limited his involvement in football thereafter to either tip or tag. He could not recall ever having visited a general practitioner after either a football injury or for an occasional backache. I have no hesitation in accepting the evidence of Mr Holmes and I accept, although he may have had the odd occasional backache after heavy activity which might have included football, he did not need to seek any medical treatment or attention at any stage between either 1982/83 and 2008. The opinion of Dr Smith is this:
"This man gives a history then that was suggestive that he has a problem with his back, the first time of some significance following this fall with the big trail bike and tripping over a grate on 14 June 2008. He describes getting certainly to 60% better and having some ongoing discomfort and problems in the lower back, which has been outlined in the history.
There is no post-traumatic lesion seen in his investigations of the lumbar spine in 2010 being an MRI and a CAT scan. He does have very extensive degenerative disease and he would have easily exacerbated that under the circumstances described on 14 June 2010 and I would have thought he would have recovered.
His clinical examination is consistent with a diagnosis of extensive degenerative disease with a reduction of lumbar extension. It is quite a surprise that he had a good range of movement actually in that regard. I would have expected lower looking at the pictures.
I think that he has long since recovered from the exacerbation of 14 June 2008.
Low back pain and degenerative disease are within normal limits. There was a paper by a Pathologist by the name of Eubanks published in 2007 where large numbers were examined (more than 750) for arthritic changes in the lumbar spine. Instances of arthritic change of the lumbar spine in those cadavers aged 20-30 was 57% rising to 83% of those cadavers between 30-40 and in those cadavers between ages 40-50 it was 93% and in the 50-60 age group it was 97%. It was 100% in all those over 60.
Glenohumeral arthritis is very uncommon but that would be the cause of his shoulder symptom. I am not sure what operation he had or for what reason and it appeared not to have caused any great disability. I cannot find anything wrong with his shoulder on today's clinical examination. He also has extensive degenerative disease in the cervical spine but that is a clinically normal examination." [my emphases]
In a supplementary opinion of 17 December 2011, Dr Smith provides me with further epidemiological evidence of the existence of what I would refer to as degenerative disease of the low back, including degenerative disc disease. The doctor points out that persons develop lumbar spondylosis with increasing age, facet joints become arthritic and osteophytes grow. The degree of arthritic or degenerative change increases with age. As far as the plaintiff's left shoulder was concerned, Dr Smith went on to say this:
"The same can be said for his osteoarthritic change in the glenohumeral joint. Rotator cuff disease is inordinately common. It increases with age.
Templehoff et al in the Journal of Shoulder and Elbow Surgery in 1999 looked at 411 patients who were asymptomatic and aged between 50 and 80 and were broken up into age groups of 50 to 59, 60 to 69, 70 to 79, 80 etc.
In the 50 to 59 age group, 13% had tears and this rose to 15.1% in those people over 80.
It can be asymptomatic.
Reilly et al published a paper in the annals of the Royal College of Surgeons of England in 2006. They state 'rotator cuff tears are common pathology'. They reviewed the literature to determine the incident of this condition in cadaveric and radiological studies.
There were 650 asymptomatic patients and 1,035 symptomatic patients. On ultrasonography, the incidence of rotator cuff tears was 39% in both groups in a paper in the annals of the Royal College of Surgeons of England in 2006. They state rotator cuff tears are a common pathology. They reviewed the literature to determine the incident of this condition in cadaveric and radiological studies.
Glenohumeral arthritic change and rotator cuff disease go hand in hand.
SLAP lesions are fairly common. Park et al in the American Journal of Roentgenology published in 2000 looked at 108 MRI/arthrograms of the shoulder in 95 asymptomatic volunteers who were auxiliary policemen aged between 19 and 24 and they found undercutting the labrum cartilage in 32% of the shoulders they looked at and prominent axillary folds were seen in 46% and abnormalities in the recesses of 33%.
There were two papers published in the early 2000s. One looked at 16 shoulders and the other 25 shoulders. The pathologists performing these post mortem studies were looking for anomalies that could be confused with a SLAP lesion on an MRI, and in the 16 cadavers' shoulders examined the incidence of a SLAP lesion was 40% and in the spheres of 25 shoulders being examined the incident of a SLAP lesion was 75%.
There is no pathology described in any of the investigations by any doctors that is consequent to his employment in the Police Force. All pathology described by them is due to the aging process, as it happens to be affecting him."
I have quoted Dr Smith's epidemiological views concerning the plaintiff's left shoulder in extenso to point out that there is an inconsistency, in my view, between Dr Smith's saying in his first report that "glenohumeral arthritis is very uncommon" and implying in the second report that it is common. However, even Dr Smith expressed the view that there can be an exacerbation of an underlying degenerative condition. The doctor said in his primary report, that of 24 November 2010, that the effects of any aggravation had long gone away, in other words to the extent that the plaintiff had recovered from any exacerbation. That is really an ipse dixit.
There must be some way that a tribunal of fact can tell whether any aggravation continues or not, or whether any exacerbation continues or not. Dr Smith says that the exacerbation has ceased to be of any pertinence. Dr Powell says otherwise. Dr Powell appears to base his opinion on the persistence of symptoms since the relevant stressor, that is, each of the injuries, the first to the plaintiff's lower back and the second to his left shoulder. Essentially Dr Scougall agrees with the opinion of Dr Powell.
The plaintiff gave this history to Dr Scougall:
"He complains of pain in the front of his left shoulder. He said the left shoulder pain is present constantly, he is never free of it. He is able to access elevated articles with his left hand but with a feeling of weakness above shoulder level and some pain in that shoulder. He wakes if he turns into his left side at night. He is able to tuck his shirt in at the back with his left hand but with aggravation of his shoulder pain and a sense of weakness. He said that he is able to carry only light articles in his left hand. Attempting to carry something heavy aggravates his left shoulder pain. He is able to do dexterous activities with his left hand, do up buttons, belts and zippers. He is able to take change in his upturned left palm.
The pain in his back is in his low back on the right side. He said he is able to bend and pick up things from the floor without back pain. However, repeated bending and lifting and working in the bent position aggravate his back and limit his involvement in those activities. Riding a bicycle for an hour to an hour and a half causes back pain. Back pain is not present all the time. If he protects his back and avoids sudden, unguarded movements and strenuous activities he is not particularly troubled by back pain. Prolonged sitting and standing aggravate his back pain. If he is able to sit on a hard, straight backed chair or at least hold his back straight, back pain is less troublesome. He said his standing tolerance is about an hour, at which point back pain becomes such that he has to change his posture. He can run but he no longer runs as a training exercise because it aggravates his back pain." [My emphasis]
The plaintiff told Dr Scougall that he had ongoing problems in his left shoulder and he is never free of pain in his left shoulder. I accept that to be the case. Dr Scougall accepted on that basis the plaintiff had an ongoing exacerbation of his left shoulder pathology and that there was still pain resulting from the injury on 16 August 2008 resulting from the underlying pathology. I accept that to be the case. Dr Scougall was of the same view concerning the plaintiff's low back but referred the ongoing exacerbation or aggravation to the event of 14 June 2008.
I emphasised in setting out the history that the plaintiff gave no history of continuous backache since the time of the event on 14 June 2008. I do not believe that it is strictly necessary or legally correct to require that there be ongoing, unremitting pain since the relevant exacerbation or relevant aggravation. There can be the raising of the condition to a higher level of being symptomatic to a higher level of dysfunction. There is no suggestion in the evidence that in the period between, say, 1983 and 2008 the then Sergeant Holmes was not able to bend repeatedly, to lift repeatedly, to work in a bent position, that he was not able to ride a bicycle for longer than an hour and a half, that there was a need to protect his back or that any unguarded movements or strenuous activities caused back pain; there is no suggestion that prolonged sitting or standing caused back pain.
Whatever the effect the exacerbation or the aggravation has had, the plaintiff still suffers from the symptoms of it. If the plaintiff had been completely asymptomatic for, say, a period of months, then one might easily see and say that the aggravation or exacerbation has ceased. That is not the plaintiff's evidence nor the history he has given to the many doctors he has seen over the years. I accept that there was an aggravation or exacerbation, at least an exacerbation of pre-existing degenerative conditions in the plaintiff's low back and left shoulder at the time of the injuries of 14 August 2008 and the injury of 16 August 2008.
The authorities are still unclear as to whether the relevant date to find the continuing aggravation or continuing exacerbation is the date of the certificate of PSAC, namely 27 January 2011, or the date of the plaintiff's medical discharge, namely 17 February 2011. In either case, I accept that as at the date of the assessment of the plaintiff by Dr Scougall on 5 September 2011, that there was still an ongoing exacerbation and perhaps aggravation of each condition found by PSAC in the certificate of 27 January 2011.
The defendant's submission is based on his construction of s 10B(3)(a) of the Act. The commencement of that subsection and paragraph are this:
"(3) Where a member or former member of the police force is duly certified under subsections (1) or (2), the Commissioner of Police shall:
(a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and..."
The defendant submits that the plaintiff has not established that each of the two specified infirmities was "caused" by the members having been hurt on duty and it must be recalled that hurt on duty is defined in s 1(2) of the Act thus:
"Hurt on duty, in relation to a member of the police force, means injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987, entitle the member to compensation under that Act."
It is also to be recalled that s 9(1) of the Workers Compensation Act 1987 is this:
"A worker who has received an injury (and, in the case of the death of the worker, his or her dependents) shall receive compensation from the worker's employer in accordance with this Act."
It is the receipt of an injury which entitles a worker to compensation under the Workers Compensation Act 1987. Injury is defined in s 4. The first two parts of the definition of injury are these:
"(a) means personal injury arising out of or in the course of employment;
(b) includes -
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration;"
As it has not been submitted otherwise, a degenerative process in a joint or joints, such as osteoarthritis of the facet joints, degeneration of the vertebral bodies, degenerative disc disease or osteoarthritis of the rotator cuff is aptly and appropriately referred to as a disease, a pre-existing morbid pathological condition. The cases to that effect are so many that it would be otiose to cite them here. Suffice to say that the Court of Appeal has pointed that out in respect of what could be quite shortly described as "shearer's backs". In argument with Mr Rowles, who appears for the respondent, I pointed out that the contention argued for by his client would mean that if the plaintiff was required to prove actual causation by his work of the degenerative conditions certified by PSAC, there would be no work for section 4(b)(ii) to perform. The riposte from the defendant was that there would still be work to do for that provision if PSAC had certified the aggravation, acceleration, exacerbation or deterioration of such a disease.
There are two short answers to that point. The first is decided case law. In Dive v Commissioner of Police (1997) 15 NSW CCR 366, the third holding of the headnote is this:
"It was open to the Court to consider an aggravation, acceleration or deterioration of a pre-existing (ie before 21 November 1979) post-traumatic stress disorder, by events occurring in the course of the appellant's employment after 21 November 1979, as evidence of the appellants having been "hurt on duty". Conroy v Commissioner of Police, Compensation Court, No. 30259/89 Manser J, 15 November 1991, unreported; Wiggins v The Commissioner of Police, Compensation Court No. 2356/90, Johns J, 22 February 1994 unreported; and Staples v Commissioner of Police (1990) 6 NSW CCR 33 referred to."
In Dive the PSAC determined that the appellant was incapable of discharging the duties of his office by the specified infirmity of mind of, "major depressive illness and post-traumatic stress disorder, both of mild to moderate severity". In Dive the defendant had determined that those infirmities were not duty related. On the evidence before me I found that the cause of the appellant's PTSD was his exposure to mayhem at the Granville train disaster on 18 January 1977. However, the relevant provisions of the Act came to force on 21 November 1979. However, in Dive's case the appellant's case was that not only was the Granville train disaster a cause of his PTSD but that subsequent events involving deceased persons were cumulatively the cause of the PTSD.
Commencing at 373F I said this:
"I am persuaded, especially on that evidence, that the effect of the appellant's dealing with bodies has been cumulative or has perpetuated the underlying condition. In other words, one can look upon, to use the terminology of the Worker's Compensation Act, that there has been an aggravation or deterioration or acceleration of the inability to heal from the PTSD by the appellants dealing with bodies after 21 November 1979.
In my view, there has been an aggravation, acceleration or deterioration of pre-existing PTSD and as the authorities make it clear that brings that condition within this court's jurisdiction. For example see Conroy's case and Wiggins v Commissioner of Police, Compensation Court, No. 2356/90, Johns J, 20 February 1994, unreported and even Staples' case where His Honour Judge Burke looked through the evidence to see whether there had been any aggravation, acceleration, exacerbation et cetera of the alcoholism of that appellant and was unable to find any in the evidence. However, in this case, I am persuaded that there was such an aggravation, acceleration, exacerbation or deterioration of the underlying condition caused by the Granville train disaster, and in particular I am persuaded by the evidence of Dr Canaris that it has in fact perpetuated or made that condition chronic."
In other words, the case law up until I decided Dive clearly established that although a condition might not be caused by an appellant's/plaintiff's relevant compensable injuries, a relevant compensable event could aggravate, accelerate, exacerbate or cause to deteriorate a pre-existing condition which was not compensable, absent any certification by PSAC of aggravation or the like. Indeed the arguments put to me by Mr Rowles are exactly the arguments I put many years ago to Judge Manser, Judge Johns and Judge Burke and which arguments they rejected.
Furthermore, there is more recent case law which points in exactly the same direction. The more recent case law relates to the demarcation of the roles of the Commissioner of Police and the STC deciding matters under the present Act. The authorities to which I refer are the COP v SAS Trustee Corporation [2002] NSW IR Comm 31, a decision of Wright J commencing at [55], the decisions of the Court of Appeal in Commissioner of Police and Kennedy (2007) 5 DDCR 380, in particular per Basten J commencing at [43] and in Day v SAS Trustee Corporation [2009] NSWCA 222 in the judgment of Basten J commencing at [77].
Were PSAC to certify an aggravation, acceleration, exacerbation or deterioration of a pre-existing disease PSAC would be usurping the role of the Commissioner of Police. If PSAC specifically denied any aggravation, acceleration, exacerbation or deterioration of a pre-existing disease process it would also be usurping the role of the Commissioner of Police. It is merely the role of PSAC to certify the infirmity not how the infirmity may or may not be compensable.
I take it no-one wants any further reasons?
OWER: No your Honour.
HIS HONOUR: Mr Rowles?
ROWLES: No your Honour, I think your Honour's covered that.
HIS HONOUR: I have inquired of counsel for the parties whether any further reasons are required, I am told that none is so required. For those reasons, I set aside the decision of the Commissioner of Police of 15 February 2011 stating that the infirmities of "lumbar spondylosis and osteoarthritic change involving the acromioclavicular and glenohumeral joints with tendonitis of the left rotator cuff" were not caused by the plaintiff's having been hurt on duty. I determine that the suffering by the plaintiff of the infirmity of lumbar spondylosis was caused by his having been hurt on duty on 14 June 2008. I determine that the suffering by the plaintiff of osteoarthritic change involving the acromioclavicular and glenohumeral joints with tendonitis of the left rotator cuff was caused by his having been hurt on duty on 16 August 2008. I order the defendant to pay the plaintiff's costs.
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Decision last updated: 25 September 2012
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