Inman v NSW Police Force

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	AP v NSW Police Force [2013] NSWWCCPD 11
APPELLANT:	AP
RESPONDENT:	NSW Police Force
INSURER:	Employers Mutual Ltd
FILE NUMBER:	A1-4020/12
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	27 September 2012
DATE OF APPEAL HEARING:	19 February 2013
DATE OF APPEAL DECISION:	6 March 2013
SUBJECT MATTER OF DECISION:	Psychological injury; causation; disease; aggravation of disease; application of principles in State Transit Authority (NSW) v Chemler [2007] NSWCA 249; 5 DDCR 286; Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566 and Stewart v NSW Police Service (1998) 17 NSWCCR 202 distinguished
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr P Stockley, instructed by Carroll & O’Dea
Respondent:	Ms E Wood, instructed by Bartier Perry
ORDERS MADE ON APPEAL:	The determination of 27 September 2012 is revoked and the following orders made: 1. The applicant worker suffered a disease injury under s 4(b)(i) of the Workers Compensation Act 1987 in that she contracted a disease in the course of her employment to which her employment was a contributing factor. 2.  The applicant’s employment was a substantial contributing factor to the injury. 3. The deemed date of injury for the s 4(b)(i) injury is 22 September 2011. 4. The applicant suffered an aggravation injury under s 4(b)(ii) of the Workers Compensation Act 1987 to which her employment was a substantial contributing factor. 5. The deemed date of injury for the s 4(b)(ii) injury is 4 November 2011. 6.  The respondent is to pay the applicant’s costs of the arbitration on 24 August 2012. 7. The arbitration on 24 August 2012 is certified complex for the purposes of Schedule 6, Table 4, Item 4, of the Workers Compensation Regulation 2010 and there is a 30 per cent increase applied to the costs applicable to each party. 8.  The matter is remitted to a different Arbitrator for determination of the applicant’s entitlement to weekly and other compensation, and any other outstanding issues. The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,530 plus GST.

INTRODUCTION

1. The appellant worker, a Senior Constable with the NSW Police Force, (the appellant), claimed compensation for a psychological injury alleged to have been caused by difficulties coping with work, the suicide death of a fellow police officer (Ms AQ), lack of support from fellow workers, and harassment by supervisors.

2. Though provisional liability was accepted, and compensation paid until 26 April 2012, the NSW Police Force’s insurer denied liability in a s 74 notice, dated 12 April 2012, on the grounds that:

   (a) the appellant had not suffered a psychological injury because the death of a co-worker was not compensable within the definition of injury in s 4 of the Workers Compensation Act 1987 (the 1987 Act);

   (b)     if the appellant suffered a psychological injury, employment was not a substantial contributing factor to that injury;

   (c)     no bullying or harassment occurred,…