Izzard v State of New South Wales (New South Wales Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Izzard v State of New South Wales (New South Wales Police Force) [2021] NSWPIC 168
APPLICANT:	Wendy Izzard
RESPONDENT:	State of New South Wales (New South Wales Police Force)
MEMBER:	Elizabeth Beilby
DATE OF DECISION:	3 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Consideration of whether the disease provisions apply (sections 15 and 16 of the 1987 Act); incapacity; Aitkin v Goodyear Tyre and Rubber Co applied; Mitchell v Central West Health Service applied; consideration of probable earnings, if uninjured including career progression; Held- the disease provisions do not apply; partial incapacity; respondent to pay the applicant’s costs as agreed or assessed.
DETERMINATIONS MADE:	1 The disease provisions do not apply so that the last employer has not been joined (sections 15 and 16 of the Workers Compensation Act1987). 2 The applicant suffers from a partial incapacity for work such that her experienced employment is a proper measure of her ability to earn. 3 The correct comparable and probable figures in circumstances where the applicant claims she would have been promoted if she was not injured, is that of an Inspector. 4 The respondent is to pay the applicant’s costs as agreed or assessed. Such costs are certified as ‘complex’ for both parties and it is determined that a 30% uplift is appropriate in the circumstances.

STATEMENT OF REASONS

BACKGROUND

Wendy Izzard (the applicant) seeks weekly compensation from 1 April 2015 to date and continuing. Her primary employment, from which the claim is mounted, was in the New South Wales Police Force and as such she is an exempt worker as her claim for weekly compensation was in existence prior to the significant changes made in 2012.
The applicant commenced police training in July 1988 and was attested into the New South Wales Police Force on 27 January 1989 as a probationary constable of police.
The applicant initially worked in general duties at Fairfield Police Station and was also seconded to the Merrylands Highway Patrol Unit, to the North-West Major Crimes Squad and to the Child Mistreatment Unit.
In October 1997 the applicant was transferred to the Quakers Hill Local Area Command where she worked as a crime prevention officer and general duties. The applicant then in March 2002 moved to Hawkesbury Local Area Command and was promoted to the rank of Sergeant.
The applicant was appointed as an Inspector for the period 28 September 2003 to 29 April 2005.
In June 2004 the applicant first experienced psychological symptomatology, including panic attacks. She attended the Hawkesbury Hospital for treatment.
The applicant consulted with Ms Shelly Bannon, psychologist, in February 2005 and also an EAP psychologist.
The applicant was unwell from 30 April 2005 until 10 October 2005 and did not attend work.
On 9 February 2007 the applicant returned to unrestricted duties.
In June 2007 the applicant was transferred to Parramatta Police headquarters performing an education development officer role and on 9 March 2008 she was relieving as a Senior Sergeant in the position of Regional Training Coordinator for Special Commands.
In 2010 the applicant was relieving at the rank of Acting Inspector performing a human resources role as the Professional Standards Manager for the Forensic Services Group. Significantly, she was performing the role as an Acting Inspector when she went off work in September 2010. She has not returned to work as a police officer following that day and was medically discharged on 15 March 2012.
The applicant has been able to obtain alternative employment which included working for a council and also in relation to investigative work primarily relating to personal injury claims. The alternative employment will be discussed later in this decision.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Do the disease provisions apply so that the last employer has not been joined?
(b)    Does the applicant suffer from a partial or total incapacity?
(c)     What are the correct comparable and probable figures in circumstances where the applicant claims she would have been promoted to a Sergeant of police if she was not injured?

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (the Application);
(b)    Reply to Application to Resolve a Dispute and attached documents (the Reply), and
(c)    Late documents dated 29 January 2021.
Extensive negotiations took placed at the listed arbitration requiring written submissions to be filed due to the expiry of time. Submissions were received from the applicant on 1 April 2021 and 13 April 2021. Submissions were received by the respondent on 8 April 2021.

Oral Evidence

There was no application to adduce oral evidence

FINDINGS AND REASONS

I will now turn to the issues in dispute.

Disease provisions

The respondent has raises an issue that it was not the employer who last employed the applicant where employment was a substantial contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the disease injury as required by sections 15 or 16 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant relied primarily upon the medical opinion of Associate Professor Robertson. The respondent did not proffer any further or alternate medical opinion. In order to understand the argument raised by the respondent, it is necessary that I examined the opinion of Associate Professor Robertson in detail.

Associate Professor Michael Robertson

Associate Professor Michael Robertson (psychiatrist) prepared a report at the request of the applicant’s solicitors dated 22 November 2019.[1] He took a history of the applicant’s work with the Police Force and then also the applicant’s work as a personal investigator. In relation to that work, Associate Professor Robertson commented that the effect of this work was to
[1] Page 58 of the Application
re-traumatise the applicant to a point where she seemed to be on the cusp of a recurrence of her previous panic disorder. That is, that the applicant’s mental state has gradually deteriorated, presumably due to the triggering effect of the personal investigation work which was clearly highly salient to her previous work as a police officer.
Associate Professor Robertson therefore opined that the applicant appeared to be suffering a recurrence of a panic disorder with agoraphobia and a comorbid major depression. Indeed, he commented that the applicant was having a current exacerbation of her previous panic disorder with agoraphobia which would adversely affect the sustainability of her duties as a private investigator.
Associate Professor Robertson prepared a further report date 31 July 2020. In that report he clarified his opinion somewhat to the extent that it was his opinion that the original injury, that is, the panic disorder with agoraphobia and depression, emerged in the course of her employment as a police officer due to the effects of chronic exposure to traumatic stress. That is, the original injury persisted as a long-term psychopathological state that had fluctuated in intensity.
Associate Professor Robertson then went on to say the nature and conditions of employment as a private investigator had aggravated the applicant’s extant panic disorder with agoraphobia and depression and any such employment as a private investigator had been the primary source of aggravation, exacerbation, acceleration or deterioration of a psychological injury she developed in the course of her work as a police officer. The work-related psychological injury that developed in the course of her employment with the New South Wales Police Force did not remit or fully recover. Rather, it persisted in a variable severity level which was exacerbated by subsequent employment, although not with the New South Wales Police Force. That is, the adverse effects of a private investigator work on her mental state was evident in the history that was provided to him.
Associate Professor Robertson in his report also indicated that there was an underlying existing psychological injury however the work as a private investigator was the apparent source of exacerbation of that injury. It was Associate Professor Robertson’s view that this was not a new injury but rather an exacerbation of a long-term injury attributable to the nature and conditions of employment with the New South Wales Police Force. The subsequent employment was the primary cause of the exacerbation of the previous injury that had never remitted but rather persisted in low grade form.
Associate Professor Robertson prepared a third report dated 25 August 2020.[2] In that report the Associate Professor once again refines his view which was that the original psychological injury arose from the applicant’s exposure to violent, traumatic and stressful events encountered in the course of her employment with the respondent. The psychological injury had persisted in variable levels of severity over time. He opined that regardless of the cause of the recent exacerbation of the original injury, the substantial contributing factor to the onset of that injury was exposure to violent, traumatic and stressful events during the course of her employment with the respondent.
[2] Page 77 of the Application
A further report was prepared by Associate Professor Robertson dated 10 December 2020.[3] Associate Professor Robertson confirmed his previous opinion and then stated that on his previous examination of the applicant he opined that she was suffering from the emergence of a recurrence of her previous psychological injury. Before preparing this report, Associate Professor Robertson had been provided with an extensive statement regarding the nature and conditions of the applicant’s work for Brooksight Investigations. The evidence from the document was, in Associate Professor Robertson’s view, that the investigative work was largely procedural with no direct contact with traumatic events. Associate Professor Robertson opined that the seemingly innocuous stimuli she describes in the course of her work with Brooksight Investigations triggered a minor and transient symptom exacerbation of her original psychological injury and was not a substantive cause of the recurrence of the injury or the production of a new injury. That is, the original psychological injury had persisted in a sub-clinical form and flared up in response to the stimuli that could be encountered in any aspect of her life. Further, to make his opinion patently clear, it was the doctor’s view that no attribution of cause of psychological injury could be made to her employment as a private investigator.
[3] Page 81 of the Application
The respondent’s submissions, unsurprisingly, focus on the opinions of Associate Professor Robertson in his earlier reports namely 22 November 2019. In that report it appears that he holds the view that the PI work had a triggering effect on the applicant’s psychological symptomatology. Further that the worker seemed to have a re-traumatise the applicant to a point where she was on the cusp of a recurrence of a previous paint disorder and he suspected there was an emerging depressive illness.
I am of the view that the opinion must be looked at in full. It is not representative of his final and ultimate opinion to focus on the early report of 22 November 2019, which was prepared at a time before Associate Professor Robertson had the benefit of an updated statement from the applicant outlining the nature of the work that she did as a private investigator. It is that time that the opinion is refined to state that the original injury related to police work remained the whole and prominent cause of psychological distress and partial work and capacity.
Once Associate Professors Robertson’s opinion has been looked at, that is his ultimate opinion, once he has factual information that is relevant to his opinion, it leads to a finding that the applicant can demonstrate an incapacity for work caused by her employment as a police officer.[4] And that the subsequent employment did not cause an aggravation or exacerbation as required by the diseases provisions.
[4] Calman v Commissioner of Police [1999] HCA 60
I therefore find that the applicant’s subsequent employment did not cause a new injury within the meaning of the disease provisions. Psychological injuries by their very nature wax and wane and just because there is evidence of a new wave in symptomology does not mean necessarily that there has been a new injury.
Further there is no evidence supplied by the respondent as to the nature of the subsequent employment being causative of an aggravation. Having closely read the evidence supplied by the applicant together with the ultimate opinion of Associate Professor Robertson, I am not persuaded that there has been an aggravation of the applicant’s condition.
Finally, there is no medical opinion supplied by the respondent to suggest that the subsequent employment was causative aggravation. I am therefore left with Associate Professor Robertson whose concluded opinion was that there is no new injury.
The respondent’s submissions refer to disclosures made to the Commissioner of Taxation in paragraphs 16 to 23. The purpose of submission regarding the apparent “disclosure” is to support an argument that Associate Professor Robertson’s initial assumption regarding the work having a contributary effect on the applicant such that there was an aggravation or exacerbation of a pre-existing psychological injury.
I am uncertain as the intention of the submission as the characterisation of the applicant’s employment in taxation documents does little to assist me as to questions of injury.
Having a look at subsequent employment, I am of the view that the applicant is in the best position to provide evidence as to what she experienced in her work at Fairfield City Council and Brooksight Investigations, Quantum Corp Investigations or as a factual investigator. The applicant has provided an extensive statement to explain the nature of her employment with subsequent employers.
In respect of her work at Brooksight the applicant explains in her extensive statement that the work involved instructions from workers compensation insurers or law firms[5]. The type of claims she investigated were travel claims, stolen motor vehicles and motor vehicle accidents which primarily involve the applicant taking a statement from the claimant and establishing loss. There is no evidence from the applicant that the duties involved in her employment exposed her to graphic images severely injured persons or the delivery of death messages. Indeed the applicant’s evidence is that her employment with Brooksight was not particularly stressful.
[5] The applicant quite clearly outlines her role with Brooksight in her statement between paragraphs 147 to 162
In relation to the applicant’s employment with QuantumCorp her evidence is that she subtracted to them in a casual capacity in around May 2015 which then began a full-time subcontracting relationship with them in March 2017. Once again the applicant explains in her statement that she investigated claims on behalf insurance companies and legal firms in relation to workers compensation and personal injury claims. The applicant said that the greater majority of factual investigations involved psychological injuries often on account of workplace bullying and harassment. The applicant would attend the claimant’s house and take a statement to establish the specific events which is claimed have caused psychological injury.
The applicant says that there was investigation involving serious injury or death and at times involved next of kin’s who are claiming spousal benefits. The purpose of the interview was to establish the relationship of deceased and the benefits. The applicant says that she was not exposed to graphic images, drownings, decapitations, scenes of violence and violent accidents or injuries and other significant events. In particular there was no exposure to murders, sexual violence, serious physical violence or child abuse.
The applicant in her statement candidly describes that she was involved in two suicide matters and factual investigations regarding fatalities this involved interviewing the next of kin. The applicant observed that where there was serious injury or death that the parties were more often than not legally represented.
The applicant understands that Associate Professor Robertson in his initial report stated that “her mental state gradually deteriorated, presumably due to the triggering effect of the PI work which was clearly highly salient to a previous work as a police officer.” In response the applicant explains that in early 2019 she was working most days, being a wife and mother and had noticed a gradual increase in her anxiety. She lived with post chronic stress disorder and anxiety disorder since her initial diagnosis in 2004 and recognise the symptomatology she was experiencing. It was on this basis that she attended on her general practitioner
Dr Theocaurus to seek treatment.
Whilst the applicant is not medically trained, she is in a position to provide insight into the effect the work as a Private/ Factual Investigator has had on her. Quite clearly the applicant’s evidence is that she does not consider that work to have triggered or contributed to the recurrence of her police related injury as she was not exposed anything that is highly salient to the work she previously performed as a police officer. I must say I find her comparison to the work involved by a police officer to that as an investigator to be quite compelling that the roles have significantly divergent exposures.
After considering the argument raised by the respondent so far as the disease provisions apply, I am not persuaded for reasons outlined above. I therefore reject the respondent’s submission that the named respondent was not the last employer who employ the applicant in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease.

INCAPACITY

The respondent makes no submissions in relation to the incapacity claim.
The common approach to determining an award for weekly compensation pursuant to s 40 is that known as the Mitchell test.[6] The authority identifies 5 steps to be taken in determining the award for weekly compensation pursuant to s 40 as follows:
(1)    Determine the amount the worker would have been earning if uninjured
(s 40(2)(a));
(2)    Determine the average weekly amount the worker is earning and would be able to earn in some suitable employment from time to time after the injury subject to the worker’s ability to earn in the general labour market reasonably accessible to the worker, having regard to suitable employment for the worker within the meaning of s 43A;
(3)    Subtract the figure from (2) from the figure derived from (1);
(4)    Decide whether and to what extent the reduction calculated as above bears such relation to the amount of that reduction as may appear proper in the circumstances;
(5)    Make an award arrived at in step (4).
[6] Mitchell v Central West Health Service (1997) 14 NSWCCR 526
I will now embark on that process.

Step 1 – Probable Earnings

In calculating a worker’s probable earnings, it must be assumed that the worker but for the injury would have continued in the same or some comparable employment.
In determining what comparable employment is, the Court of Appeal in Pantaleo[7] confirmed that a reasonably expected career progression, if the worker had remained uninjured, is an indicia to consider when looking at a comparable wage rate.
[7] Australian Wheat Board v Pantaleo [1984] 3 NSWLR 530
Indeed, the worker’s probable career progression must be looked at in determining probable earnings. The applicant has helpfully provided two unchallenged statements in support of her claim. It appears to me that the evidence from the two independent witnesses appears to be logical and probative and does not seem to be based on speculation or unsubstantiated assumptions.[8]
[8] Round the Clock Transport Services Pty Ltd v Flynn [2007] NSWCCPD 204
The first statement is from Stephen Oswald [9] who was attested as a police officer in 1981. He was promoted through the ranks and in September 2000 was promoted to the rank of inspector at Windsor local area command is ultimately medically retired in July 2015. He is therefore in a good position, to my mind, to understand the requirements and personal attributes which were important in attaining such a senior rank.
[9] Page 5 Late documents
Mr Oswald worked with the applicant at Windsor police station from March 2002 until June 2007. During that time he was her direct line commander whilst she was a team leader at the substantive rank of Sergeant. He observed the applicant as a keen and thorough police officer, who had the skills, ability and temperament to move into a leadership role. In addition he understood she had relieving opportunities at the rank of Inspector afforded to her at Windsor Police Station and subsequently at the police headquarters following her transfer.
Mr Oswald’s opinion of the applicant is complimentary and he states that he observed her to be a competent and capable police officer, an outstanding team leader and during her many periods of relieving at the higher rank of inspector, she undertook those duties with ease and the authority of an officer with a far greater level of senior management experience. He describes the applicant as a natural leader who had the ability to work independently and as a member of multi-disciplinary teams.
Quite clearly it is the opinion of Mr Oswald that it was most likely that she would have been able to attain the rank of Inspector by about 2009 to 2010 at the latest if she had not suffered a recurrence of a post-traumatic stress disorder injury.
The second statement is from Sharon Newton[10] who is a Senior Constable in the New South Wales Police Force however currently on sick leave. Ms Newton had the opportunity to work with the applicant in the Hawkesbury Local Area Command between 2002 and 2007, during which time the applicant was Ms Newton’s team leader.
[10] Page 8 Late documents
Ms Newton’s observations of the applicant was that she was practical and had an eye for detail. She was well respected and demonstrated a general regard concern towards her team. Based on her observations Ms Newton held the opinion that the applicant was destined to move into a leadership role. She considered that this was why she often relieved as Acting Duty Office (Inspector) whilst at the Hawkesbury command.
It is Ms Newton’s view that the applicant but for her injury, would be promoted to the rank of Inspector in or around 2010.
I find that the unchallenged evidence and conclusion reached by these two witnesses, that is that the applicant would have, but for her injury, being promoted to the rank of Inspector in or around 2009 to 2010, to be correct. Their evidence has not been challenged and as a matter of fact I accept the evidence of these two witnesses,
I have already discussed the evidence in this case as to what I find would have been the expected career progression of the applicant in circumstances where she illustrated impressive work capacity and experience, in particular performing Acting roles as an Inspector. I find that she would have been promoted to the rank of Inspector by no later than the end of 2010.
The applicant has helpfully prepared a detailed table setting out the applicant’s actual earnings since April 2015 and the comparable earnings of an Inspector.
I therefore find that the probable earnings of the applicant were as follows:
2015        $124,925;
2016         $133,958;
2017        $137,306.95;
2018        $140,739.62;
2019        $144,258.11;
2020        $147,864.57, and
2021        $151,561,18.

Step 2

Step 2 of the Mitchell steps requires the determination of the average weekly amount of which the worker was earning, or would have been able to earn in some suitable employment from time to time after the injury.[11]
[11] Section 40(2)(b)
The applicant submits that in circumstances where the worker is employed and is earning, this should fix the lower limb of the s 40 equation without the need to further enquire into her ability to earn in some suitable employment.[12]
[12] Aitken v Goodyear Tyre and Rubber Co (Aust) Ltd (1945) 62 WN (NSW) 233
Justice Beazley in Tucker[13] considered the Aitken approach which was regarded as appropriate for assigning a figure for s 40(2)(b) as follows:
“One has to approach the matter on a prima facie basis and only move from that basis if the evidence establishes that the actual earnings are not, in the circumstances of the case, a proper test”.
[13] Pira Pty Ltd v Tucker [1996] NSWSC 569
The respondent has filed on a vocational assessment report prepared by Ash Hedayet dated 25 March 2012.[14] No reference was made to the vocational assessment report in the respondent’s submissions which is unsurprising given how long ago was prepared. Given the expiry of time I would give it little weight. In any event it appears to me that the applicant’s statement clearly identifies why the proposed work was not appropriate for the applicant.
[14] Page 1
The only evidence before me that appears to have significant weight is that of Associate Professor Robertson. Associate Professor Robertson found that the applicant had an ongoing capacity for work in that she could not work in the Police Force but could work in lesser remunerated work. There is no reason for me not to accept that opinion and I do.
I am of the view that the test in Aitken v Goodyear to the extent that it is a fair measure of her capacity to work is reflective in her earnings to date should be applied in the factual matrix of this case.
In the circumstances of this matter it appears that the applicant has had employment and there is no reason for me to find that unemployment is a false measure of her ability to earn. Indeed, no submissions were made by the respondent that this is the incorrect approach. I therefore find that the applicant’s earnings are an appropriate measure of her ability to earn.
The actual earnings were as follows:
2015         $88,411;
2016         $90,418;
2017        $82,351;
2018        $64,197;
2019        $73,175;
2020        $77,932, and
2021        $67,852.87.

Step 3 – Deduct Actual Earnings (Step 2) from Probable Earnings (Step 1)

This step has been clearly articulated in the table annexed to the applicant’s submissions at page 10.
The loss is identified in that table and is reflected below,
2015        $740.65 per week;
2016        $837.31 per week;
2017        $1056.85 per week;
2018        $1471.97 per week;
2019        $1366.98 per week;
2020        $1344.86 per week, and
2021        $1609.78 per week.

Step 4 - Discretion

Section 40(1) provides a discretion when awarding weekly payments of compensation for partial incapacity. There is no argument made in this case that the discretion should be exercised, or any argument raised as to the basis of the exercise of the discretion.
I should add that no challenge has been made by the respondent to the calculations presented in the applicant’s submissions.

Conclusion

The applicant is entitled to the weekly loss identified in paragraph 74 within the limitations of the 1987 Act.

Costs

A complexity uplift is sought in respect of costs in this matter. My observation of the material before me, which no doubt has been prepared and considered by the parties, is that it is extensive and has required and involved a significant amount of work. This is not only limited to consideration and the request for further reports from medical experts, but also detailed consideration of the applicant’s employment with the respondent and subsequent employment and calculations which have assisted me to a great extent.
I have no difficulty in finding that a complexity uplift be ordered of 30% for both parties. I have been greatly assisted by the parties in their detailed submissions and the careful preparation of the dispute and evidence.

SUMMARY

My findings in this matter are outlined below:
a.     The disease provisions do not apply so that the last employer has not been joined (ss 15 and 16 of the 1987 Act).
b.     The applicant suffers from a partial incapacity for work such that her experienced employment is a proper measure of her ability to earn.
c.     The correct comparable and probable figures in circumstances where the applicant claims she would have been promoted, if she was not injured, is that of an Inspector.
d.     The applicant is entitled to be paid weekly benefits in accordance with my findings in paragraph 69 (above).
e.     The respondent is to pay the applicant’s costs as agreed or assessed. Such costs are certified as ‘complex’ for both parties and it is determined that a 30% uplift is appropriate in the circumstances.

[2021] NSWPIC 168

3 June 2021