Lisson v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	*Lisson v State of New South Wales (NSW Police Force)* [2025] NSWPIC 300
APPLICANT:	Lisson
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Parnel McAdam
DATE OF DECISION:	27 June 2025
CATCHWORDS:	Workers Compensation Act 1987 (WC Act); Workplace Injury Management and Workers Compensation Act 1998 (WIM Act); applicant a police officer; claim for various physical injuries and a psychological injury; physical injuries alleged to be due to nature and conditions of employment; whether applicant suffered an injury within the meaning of section 4 of the WC Act; psychological injury due to exposure to various trauma; diagnosis of post-traumatic stress disorder (PTSD); claim not made until 8 years after employment ceased; section 254 and 261 of the WIM Act; applicant claimed entitlement to dual benefits; Held – award for the respondent for physical injuries; applicant had failed to make a claim due to ignorance, mistake or other reasonable cause; weekly payments awarded for psychological injury.
DETERMINATIONS MADE:	1. Award for the respondent in respect of the claimed injuries to the cervical spine, shoulders, lower back, both knees and hips. 2. The applicant failed to notify of his psychological injury before he voluntarily left employment but he has satisfied s 254(2) of the Workplace Injury Management and Workers Compensation Act 1998. 3. The applicant failed to make a claim within six months after the psychological injury was deemed to have occurred but the failure was occasioned by ignorance, mistake or other reasonable cause and the injury resulted in serious and permanent disablement. 4. The respondent is to pay the applicant weekly compensation in the following amounts: (a) for the period 1 July 2015 to 30 June 2016 at the rate of $55.88 per week; (b) for the period 1 July 2016 to 30 June 2017 at the rate of $941.36 per week; (c) for the period 1 July 2017 to 30 June 2018 at the rate of $846.77 per week; (d) for the period 1 July 2018 to 30 June 2019 at the rate of $688.23 per week, and (e) for the period 1 July 2019 to 30 June 2020 at the rate of $567.94 per week. 5. The respondent is to pay the applicant’s costs as agreed or assessed.

STATEMENT OF REASONS

BACKGROUND

Mr Lisson’s claim for compensation is similar to many arising out of employment with the NSW Police Force. He worked for a period of about 14 years in the employ of the respondent. He was exposed to violence, trauma, and other confronting events. He also undertook the usual requirements of a Police Officer, including general duties activities like restraining offenders, running, jumping and the like. He was required to undertake defensive tactics training, like all officers.
Mr Lisson was transferred out of general duties into covert premises entry, breaking into houses, cars and the like so that experts could safely enter and install listening and other surveillance devices.
Mr Lisson claims he suffered a psychological injury in his employment, as well as multiple physical injuries.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) for the claimed psychological injury – notice of injury and notice of claim pursuant to ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and incapacity pursuant to s 33 of the Workers Compensation Act 1987 (the1987 Act);
(b) for the claimed physical injuries – injury/substantial contributing factor pursuant to s 4 and s 9A of the 1987 Act and incapacity pursuant to s 33 of the 1987 Act, and
(c) whether the applicant is entitled to dual benefits arising out of the separate claimed injuries.

PROCEDURE BEFORE THE PERSONAL INJURY 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.
The matter proceeded to a conciliation/arbitration hearing on 23 April 2025. Mr Lisson was represented by Mr Hammond of counsel, instructed by Bourke Legal. The respondent was represented by Mr Gaitanis of counsel, instructed by Rankin Ellison Lawyers. The parties had extensive discussions on that occasion in an attempt to resolve the dispute. Preliminary issues were canvassed, including an application to cross examine the worker (which was ultimately withdrawn) and the admission of evidence. Due to the time it took and the complexity of the matter, it was unable to resolve. Accordingly, I issued a direction calling for written submissions on the issues in dispute, as articulated above.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)   Application to Resolve a Dispute (Application) and attached documents;
(b)   the Reply;
(c)   an Application to Lodge Additional Documents, lodged by the applicant on 16 April 2025;
(d)   an Application to Lodge Additional Documents, lodged by the respondent on 16 April 2025, and
(e)   an Application to Lodge Additional Documents, lodged by the respondent on 24 April 2025, pursuant to leave given at the conciliation/arbitration as set out in my direction for submissions.

Oral evidence

It was foreshadowed that an application would be made by the respondent to cross examine Mr Lisson at the hearing of this matter. On the day of the conciliation/arbitration, due to the psychological state of the applicant, and on the basis of the admission of a further document, that application was not pressed.

Mr Lisson’s statements

The applicant provides two statements in this matter. The first is attached to the Application and is dated 18 November 2024. This is an extensive (32 page) statement setting out a variety of issues of a factual and legal nature. I do not intend to quote extensively from that statement here.
Mr Lisson explains his psychological symptoms back to 2004. He sets out his history of attendance on his general practitioner and the continuation of psychological symptoms through 2014 to 2016, which resulted in him ceasing work with the respondent and moving to Newcastle.
Mr Lisson also explains the physical injuries that he did report and an extensive list of physical injuries that he did not report. He sets out his height and weight (Mr Lisson is tall) and says this is relevant because he served as a “crash test dummy” in his career. He explains the usual type of issues suffered by members of the Police Force, including arresting offenders and defensive tactics training. He says his size made him a target for criminals, and he was often paired with smaller colleagues.
Mr Lisson’s Application claims he suffered the following physical injuries:
“Chronic sprain injuries in the cervical spine, shoulders, lower back and in both knees and aggravation or exacerbation of pre-existing degenerative change also in all of those areas. An anatomical abnormality and a spherical femur head bilaterally that due to the repeated strain on the hips have caused impingement due to the CAM type femoro-acetabular impingement.”
His statement specifically addresses the back, shoulders and knee problems.
The second statement is dated 8 April 2025 and is described as an “amended” statement, although it is more akin to a supplementary statement. In this statement, which is of a further 18 pages, Mr Lisson comments on the assessment of Dr Smith (arranged by the insurer). He specifically states:
“I did not have knowledge of the contents of the section 78 notices until very recently, and certainly not at the time that I finalised my statement in November 2024.”
This further statement goes on to set out the onset of psychological problems, including Mr Lisson’s involvement with the Redfern and Cronulla riots, more extensive detail of work in the covert entry unit, and for the first time sets out a history of problems in the right hip (which are said to have stemmed in part from the long drive from Sydney to Lightning Ridge whilst wearing a pistol on the hip). Mr Lisson goes on to explain user pays jobs.
The statement then addresses Mr Lisson first obtaining legal advice from his solicitor, after meeting up with a colleague, leading to the making of a claim, assessments and proceedings in the Commission. This statement also goes some way to addressing the ss 254 and 261 issues raised in respect of the psychological claim.

Third party statements

Mr Lisson relies on a number of statements provided by third parties. The first is from his wife, Emma Lisson. This sets out the financial support provided by Mr Lisson in support of a claim that she is dependent upon him for support. Mr Lisson also has a young son, with his wife.
Mr Lisson also relies on a statement of Christopher Yates dated 18 November 2024. Mr Yates is a retired NSW Police Force Sergeant. He describes himself as a friend of Mr Lisson. He was Mr Lisson’s direct supervisor in January 2008, and worked with him in the technical investigation branch between 2008 and 2017. He states that it is “professional opinion as a Police officer with 27 years’ experience” that Mr Lisson would have been promoted to Sergeant. He also provides support for Mr Lisson’s failure to explain injuries to his superiors, including his psychological injury. He states that he “would be very surprised if he didn’t suffer injuries to his back or neck or knees or shoulders or hips or ankles or wrists or hands”.
Mr Yates provides a further statement dated 23 February 2025. He totally agrees with the “culture of not reporting injuries” at the NSW Police Force. He states he saw “Blake lie down on the office floor and stretch his back on numerous occasions”, and that he has “no doubt he suffered back pain for virtually the entire time he was carrying out duties within our unit”.
Mr Lisson also relies on a statement of Mr Lee Verran of the same date, who is also a retired NSW Police Force Sergeant. He describes himself as a “former colleague and friendly acquaintance of Blake Lisson”. He describes Mr Lisson as having “superior leadership qualities”. He states he believes Mr Lisson would have been successful in a promotion application. He states he “would also be very surprised if he didn’t suffer injuries to his back or neck or knees or shoulders or hips or ankles or wrists or hands”.
Mr Verran also provides a supplementary statement dated 9 April 2025. He sets out the history of contracting Mr Lisson in mid 2023, and referral to his psychologist (Anthony Gunn) and solicitors (Bourke Legal).

Medicolegal opinions – physical injuries

The applicant relies on the reports of Dr Porteous in support of his claim associated with physical injuries he alleges he suffered whilst employed by the respondent. The first report is dated 9 May 2024.
The history taken by Dr Porteous is consistent with Mr Lisson’s statements. He describes general duties, and then takes a history of Mr Lisson’s work in the State Technical Investigation Branch, work he performed for eight years. This involved carrying “an approximately 20kg duffel bag and tradie-like clothes”. There was often a need to move furniture and “there was frequent movement across obstacles of rough or uneven grounds in the country” whilst carrying the duffel bag. He also describes annual defensive tactics training, and the wearing of an appointment belt. Dr Porteous comments on each body part alleged to have been injured. Dr Porteous records his findings on examination of all of the body parts. He opines:
“In my opinion, he has had multiple indivisible injuries as a result of the nature and conditions of his work as a Police Officer and in my opinion that is a substantial contributing factor to injuries in each of the following.”
I note this opinion is quite similar to that expressed in the letter of instruction, particularly the descriptor of “indivisible injuries”:
“Mr Lisson suffered a series of indivisible injuries or micro-trauma arising out of the ‘nature and conditions of employment’ as a Police Officer”
Dr Porteous provides the following causation opinion:
“In my opinion, he has got evidence that indicates that it is more likely than not the mechanism of injury discussed above has been a substantial contributing factor to chronic sprain injuries in the cervical spine, shoulders, lower back and in both knees.”
Dr Porteous provides a supplementary report on 28 October 2024. He repeats his opinion in various ways. One such example is a question regarding substantial contributing factor:
“When I weighed all the evidence including repeated reported injury to these joints multiple times during his NSW Police work, and that this occurred during activity know to injure these joints it was and remains my opinion that on the balance of probabilities it is more likely than not that his employment was a substantial contributing factor to chronic sprain injuries in his cervical spine, left shoulder, right shoulder, lumbar spine, hips and knees.”
Dr Porteous goes on to explain why he disagrees with the opinion of Dr Smith, who provides a report for the respondent. Dr Porteous also provides a further supplementary report dated 14 January 2025. This report comments on Mr Lisson’s capacity for work as a result of his physical injuries. He finds that Mr Lisson has no capacity for employment outside of “sheltered work” in the open labour market.
The respondent relies on the opinions of Dr Smith. Dr Smith takes a reasonably brief history of injury:
“The low back began to be a problem in 2004. He was involved in a number of physical activities, arresting uncooperative offenders and wearing the appointment belt. There were also injuries with training exercises, whereby they had to engage in physical combat like activities with fellow police officers. His neck and shoulders became a problem in around 2004. He would see the osteopath from time to time. The headache was associated with episodes of neck pain. There would be pain in one or both shoulders….
The knees began to be a problem. They locked up from time to time. They would be sore after kneeling and squatting activities that were lengthy or repetitive. Running on uneven ground and stairs and slopes was a problem on occasion. The right knee was worse than the left knee.”
He provides the following opinion:
“There is no actual radiology available to view. He will have spinal degenerative disease affecting the cervical and lumbar spine. We all get that. It is 100% in all men and women aged 60 and over. In his age group, it is seen in 90% of men and women. Clinically, he would appear to have bilateral knee joint osteoarthritis and bilateral hip joint osteoarthritis. CAM deformity is seen in the x-rays of the hip. That is a familial inherited abnormality. He will have rotator cuff disease. That is almost as common as spinal degenerative disease.”
He opines that Mr Lisson would have suffered musculoskeletal sprains, strains and bruises from time to time, but that employment is not a substantial contributing factor to the degenerative disease seen. Dr Smith provides a supplementary report dated 14 April 2025. This report was specifically about Mr Lisson’s capacity, wherein Dr Smith recorded: “It was my opinion he is fit to work full-time, in whatever occupation he was qualified to work in, or alternatively, had the opportunity to engage in.”

Medicolegal opinions – psychiatric injury

The issues in dispute concerning Mr Lisson’s psychiatric injury are not one of injury or substantial contributing factor, but rather the notice provisions in ss 254 and 261 of the 1998 Act, as well as an incapacity issue pursuant to s 33 of the 1987 Act.
The applicant relies on the opinion of Dr Allan, a consultant psychiatrist. He takes a history consistent with that recorded elsewhere, concerning exposure to traumatic events. Mr Lisson first had treatment for mental health issues in about 2007, although he never told work and was of the view that this would be “career suicide”. He takes a history of continuing psychiatric symptoms since leaving the workplace in 2017. Mr Lisson has never had a psychiatrist and only has had a brief period of counselling and two sessions with a psychologist.
Dr Allan sets out Mr Lisson’s work since he left the Police Force in 2017, including as a locksmith. He records that work:
“Mr Lisson keeps his own hours. There are days where he will not work at all or days when he will finish early. He is selective about where he goes and what jobs he picks up. He states his level of motivation and ability to work markedly fluctuates but furthermore although the work he does appears to be relatively technical it has become quite habitual for him to do it and he does not describe it being particularly taxing for him. He does report however that his knowledge has not been “updated” and he has difficulty doing any research or study which he states is entirely required for the type of work he does so as to be “on top” of technology that he needs to be for the purpose of completing his work tasks.”
He comments on Mr Lisson’s capacity, opining that he has no capacity to return to any role in the respondent, going on to deal with the locksmithing work in the following way:
“continued to work ever since and although he is working in his own business his capacity appears to be limited and susceptible to mood changes which at times mean he will avoid work entirely. He states that there are days when he will not work and days when he will cancel work such is the fluctuant nature of his symptomatology....
His employment represents the full extent of his capacity to work. He could not work for someone else. Being able to control his own hours is entirely appropriate. He has difficulties maintaining his skills so as to keep him up to date and will have in my opinion great difficulty learning any new skills should this be attempted. His hours are sporadic, his attendance to work is sporadic but he does not work with anyone else, he has no staff and does not have to “answer to” anyone and this therefore makes his current employment appropriate and he has capacity to continue in this position but the current role he is in represents his full capacity.”
Dr Allan provides a supplementary report dated 24 February 2025 in which he opines that “The incapacity for work suffered by Mr Lisson as a consequence of his posttraumatic stress disorder is ‘separate and distinct’ to any physical incapacity.”
The respondent arranged Mr Lisson to be assessed by Dr Kirsty MacDonald, who provides a report dated 7 September 2024. She takes a consistent history of injury including traumatic incidents at work. She describes an onset of symptoms first in 2008:
“Prior to 2007/2008, he had seen his family GP for many years and had felt the police force was affecting him. He saw a psychologist in 2008 for anxiety as he was vomiting before he was going to work and started experiencing nightmares and flashbacks of the multiple events he had attended.”
In respect of the onset of injury, she opines:
“His trauma symptoms continued and ultimately it appears that he likely quit work in 2015 due to an exacerbation of his trauma symptoms, although he was unable to recognise this at the time. Overall, it appears he had trauma symptoms which commenced in 2008. They did not meet full threshold until 2015 when he required time off work and he has not returned since.”
Dr MacDonald supports injury and substantial contributing factor. She provides the following opinion in respect of capacity:
“Mr Lisson is currently working approximately 10 hours per week as a self-employed locksmith. Notably, he learned these skills within the police force. His self-employed status appears to be working well for him. I believe Mr Lisson would be able to work up to 15 or 20 hours per week depending on his symptoms, although he stated that he is currently only working 10 hours per week due to his persistent low mood and difficulties with amotivation in the mornings.”

Clinical evidence

There is some, although not a great deal, of clinical evidence in this case. Much of the clinical evidence greatly post-dates Mr Lisson’s period of employment with the respondent.
There is a referral to Susan Bourne, prepare by Mr Lisson’s treating general practitioner, dated 31 July 2009. That referral is for “psychological counselling re his PTSD which he has had for some time”. Ms Bourne then provides a report dated 26 August 2009. She provides a diagnosis of “longstanding mild generalised anxiety disorder and has developed post traumatic stress disorder as a result of exposure in the line of his duties”. At that time Mr Lisson did not want to explore options for assistance and reported a general dissatisfaction with how stress and trauma were managed.
A second report from Ms Bourne is dated 1 February 2010, following six sessions completed under a mental health plan. He reported dissatisfaction with his role in the NSW Police and was generally irritable and angry.
There is a report from Dr Phillip Ousby dated 24 November 2017. In that report he records a history of taking antidepressant medications since 2008. There are some clinical notes attached to an Application to Admit Late Documents that show very little of relevance, other than a series of attendances for “anxiety/depression” in 2016.
Attached to the Application are a series of radiological investigations of the body parts claimed in respect of the physical injuries.
There is a letter of referral from Dr Anthony Gunn (who is a psychologist, not a psychiatrist, and thus likely a doctor of letters rather than a medical practitioner) to Dr John Prossor. He diagnoses post-traumatic stress disorder and describes how this affects Mr Lisson’s capacity for employment. He opines:
“Currently, I believe that Blake doesn’t have the capacity to work due to the chronic and severe nature of his PTSD symptoms. However, Blake said he feels forced to have to continue working to support his young family. As Blake’s solicitor has applied to have his workplace psychological injury covered by insurance, the insurer is now requesting a Certificate of Capacity. As stated earlier, I believe that Blake has limited capacity, if any, to currently engage in his employment. However, I will be guided by your opinion on this matter and would be grateful if you could discuss this with Blake at your next appointment.”
Dr Gunn also provides a report dated 8 April 2025. He opines that Mr Lisson is unable to engage in his duties as a locksmith due to his post-traumatic stress disorder. He provides the following commentary on the delay in making a claim:
“I have spent considerable time building rapport with Mr Lisson and I believe he now trusts my judgement. I believe it’s due to Mr Lisson’s reluctance to seek professional help and seeing his psychological injury as a form of weakness, which is why he did not seek help from NSW Police Force and why it has taken him several years to lodge a WorkCover claim.”
There are earlier records of clinical attendances with Dr Prossor, starting from 1 May 2018. Many of the clinical notes concern mental health including post-traumatic stress disorder. On 26 August 2022, there is a record of a shoulder injury at work (at that time Mr Lisson was self employed as a locksmith). The referral for an ultrasound refers to “likely rotator cuff tear + / - bursitis injury in march this year”. There is a record of the right shoulder playing up again in April 2023.
An ultrasound injection of the right shoulder proceeded on 13 September 2022 and again on 30 May 2023.

Other documents

There are a series of tax records, over time records and various other employment documents that have been filed by the parties that I have considered but do not intend to summarise.

SUBMISSIONS

As indicated this matter proceeded by way of written submissions. I have before me a total of 145 pages of submissions between the parties. This brings to mind the adage that there was insufficient time to write a short set of submissions, so they must suffice.

Applicant’s submissions

The applicant sets out the issues in dispute and that the respondent “abandoned its claim that it has been prejudiced by the late notification of the claim”. In respect of s 254/261 issues, the applicant submits that his failure to give notice or was occasioned by ignorance, mistake or other reasonable cause, and was not aware of any time limit until provided with the s 78 notice issued by the respondent. The failure to make a claim was due to other reasonable cause, being the accepted work practice of the respondent to not report or make complaints.
The applicant makes extensive submissions about the entitlement to two awards with reference to Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125 (Cordina). The applicant also refers to later applications of the principle outline in Cordina. The applicant submits that he is entitled to an award of partial incapacity for his physical injuries. The applicant refers to other decisions of Members of the Commission on the issue of separate awards.
The applicant submits that he was an Acting Sergeant for much of his time in the Police Force and would likely have been promoted to Sergeant by 1 July 2016. The applicant also submits that there should be a finding that the applicant would have earned 10% extra for overtime and user pays. The applicant attaches a series of graphs setting out actual earnings with comparable earnings.
The applicant makes extensive submissions regarding Mr Lisson’s position on the promotions list for Sergeant, with reference to the Evidence Act 1995, on the basis that the document was admitted as a “business record”.
The applicant then sets out the claimed award that should be granted to him in two tables, representing the physical and psychological injuries.

Respondent’s submissions

The respondent commences submissions by setting out the history of the claim and the conciliation of the dispute in the Commission. The respondent submits that the applicant’s submissions regarding the Evidence Act are misconceived and erroneous, as those provisions apply to criminal proceedings only. There are representations about concessions made during the conciliation.
The respondent notes that the applicant did not submit any P902 forms (being injury notification forms). This is explained because of the police culture that they did not complain, and any injury report would have been determinantal to his career. The applicant relies on statements of two colleagues. The respondent submits that these statements should be given limited weight. They are not in a management position to comment on promotion. The respondent submits there are plenty of police officers who complain and submit appropriate forms, and that the applicant has done so in the past, including in January 2006.
The respondent submits that the best evidence of the applicant’s capacity to work in the period claimed is his turnover.
The respondent relies on the report of Dr Smith in terms of the injury dispute for the physical injuries. The respondent submits that based on Dr Smith’s opinion, the applicant does not meet the requirement to satisfy injury and s 9A of the 1987 Act, or alternatively, the applicant has a demonstrated capacity to earn more than he would have been able to earn if he remained uninjured and continued with the NSW Police Force. The applicant has no issues in carrying out his self-employed business and the experts agree this is suitable employment. Therefore the applicant has suffered no wage loss.
The respondent submits that even if injury is found as alleged, the applicant has not provided evidence of how his incapacities are separate and distinct.
In respect of the s 254/261 issue, the respondent submits that the claim should fail for want of proper explanation for the delay. It is not ignorance given he would have known he was suffering from injury and he understood how to make a claim as he did in 2006.
The respondent then addressed the report of Dr Porteous and why it would not be accepted. The respondent submits that the applicant was not working in a sympathetic sheltered environment. The best evidence for the claim between 2016 and 2020 is the applicant’s business. In respect of the psychological injury, the report of Dr Allan from 24 February 2025 does not address the real issue, that is that the extent of the applicant’s capacity since 2018 is his business once it developed after its initial formative years. The respondent disputes the history given by the applicant of attending a house and then declining a job if it reminded him of a situation he encountered in the NSW Police Force, as this was inconsistent with the records of customer reviews. The respondent submits that the closing of the business in December 2024 was due to mental health and there is no evidence from the point of view of the physical injuries.
The respondent then sets out the case law relevant to a consideration of whether the applicant is entitled to two awards of weekly compensation. The respondent submits that there has been an intermingling of symptoms leading to one incapacity.

Applicant’s submissions in response

The applicant provides a further 22 pages of submission in response. The applicant makes a number of general points about the respondent’s submissions, including that submission regarding Anthony Gunn having sympathy for the applicant is meritless. Many of the other submissions go to procedural issues or determinations, including that the respondent did not cross examine the applicant. There are many “objections” to submissions without expansion of what the objection might be.
The applicant makes a series of submissions concerning the closing of the claim, submitting that the applicant’s credit cannot be diminished by the decision to close the claim at 30 June 2020. The applicant then makes a series of representations about the respondent electing not to cross examine the applicant. There are representations of the evidence relating to “promotion” which are said to be tendered as a business record, and not opinions. The applicant also makes further representations about business records, which were tendered prior to the hearing, in the absence of cross examination. There are submissions about further steps the respondent could have taken to obtain business documents.
Submissions are made concerning the strength of Dr Smith’s and Dr Porteous’ reports, the reporting of other injuries, the ss 254 and 261 issues, separate and distinct incapacities and promotion and overtime.

FINDINGS AND REASONS

Given the breadth and complexity of the issues raised in these proceedings, I intend to deal with the submissions in a systematic way. I will consider the issues arising out of the physical injuries first, then the psychological injury, then (if necessary, based on the findings on those issues), whether the applicant is entitled to two awards of weekly payments for separate and distinct incapacities.

The physical injuries

The applicant claims he suffered injury to his cervical spine, shoulders, lower back, both knees and hips as “multiple indivisible injuries as a result of the nature and conditions of his worker as Police Officer”. Although the majority of the parties’ submissions address the claim for weekly benefits, including capacity, and that issue has loomed large in this case, there is a claim for lump sum compensation of 15% whole person impairment for the lumbar spine, cervical spine and left and right upper extremities (i.e. excluding the hips) that has also been made. In addition to the question of injury and substantial contributing factor raised in respect of the physical injuries, there is the question of the extent of any incapacity that arises from those injuries, if found.
It is first appropriate to note that the pleadings and opinion in respect of causation is expressed, in slight variations, as being “multiple indivisible injuries”. There is no such concept at law of multiple injuries to various body parts as being “indivisible”. Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker (s 322(2) of the 1998 Act). That does not mean that I need to, or indeed can determine each injured body part as a singular allegation and singular dispute. Whilst the allegation of injury on each occasion concerns a “nature and conditions” type claim, there are different mechanics involved in the various body parts. If the description of “multiple indivisible injuries” were accepted, then were I to find one body injured, then presumably all body parts would be injured. On the flip side of that, were I to find one body part uninjured, then presumably, as the injuries are “indivisible”, then all the body parts would necessarily follow as uninjured.
I would also note that the description of injury as “nature and conditions” somewhat belies the reality of the duties Mr Lisson was involved in and the way the various injuries are described in his statement. This is not a case of a factory worker or labourer completing the same duties such as bending, lifting, pushing and pulling consistently and without variation.
The applicant describes his exposure in defensive tactics training in the following terms:
“As one would expect in such situations, sometimes the force used was either disproportionate or unexpected, particularly in group tactics, and I was subjected to having my neck wrenched and twisted, my back twisted and folded, my knees crunched, and my shoulders twisted and pulled behind me.”
There are additional descriptors of activities said to have caused injury. Mr Lisson describes flipping himself over walls and the like as attributable to knee injuries. He states that he suffered “countless direct injuries to the front of my knees, which have left me with bilateral peripatellar pain and crepitus”. I note here that this is a remarkably precise medical description of injurious symptoms for a lay person. He describes numerous “wrenches and tears to both shoulders”, causing “continuing and escalating pain in both shoulders since the mid-2010s”.
In respect of back problems, Mr Lisson alleges he was injured “probably more than 50 or 60” times whilst arresting people, not a single event of which was reported as an injury.
I have reviewed the clinical records in this matter. They are consistent with an absence of reported injury and an absence of claim. The records dated back to 2016 only. There are no complaints made in that period. I have no earlier records and based on the applicant’s statement, can only presume that there were no attendances for physical injuries (I acknowledge a history of psychological issues that dates back to 2008).
In his statement, Mr Lisson explains the lack of medical treatment. He explains why he didn’t put in a claim for “accumulated injury”, until it was explained to him by his solicitor that it is “not simply part of the ageing process and not something that I could have just put up with”. Mr Lisson thought he would get better if he had the opportunity to avoid heavier work for a while.
Absent any clinical evidence, the applicant’s case medically relies largely on the opinion of Dr Porteous. He takes a fairly extensive history of Mr Lisson’s police career. From this history it appears that Mr Lisson spent the first six years on general duties. These are the types of duties referred to in Mr Lisson’s statement as having contributed to his “nature and conditions” type injury, being performing arrests, running, attending defensive tactics training and the like. It is relevant that these duties were not performed for the entirety of Mr Lisson’s career.
Mr Lisson’s duties then changed and Dr Porteous describes them in the following terms:
“Today he said he then moved to the State Technical Investigation Branch on the Entry Team and spent the next eight years undercover doing covert lock opening. He said he did carry around an approximately 20 kg duffel bag and tradie-like clothes, and on targeted locks spent between five minutes and eight hours with a set of blank keys persistently entering the key and then when it had a mark on it filing it and repeatedly doing that until the key opened the door.”
There was occasional heavy lifting moving furniture in the like. Whilst Dr Porteous takes this history, it doesn’t appear that this is part of his causation opinion, which is expressed as follows:
“In my opinion, he has had multiple indivisible injuries as a result of the nature and conditions of his work as a Police Officer and in my opinion that is a substantial contributing factor to injuries in each of the following.
In my opinion, he has got evidence that indicates that it is more likely than not the mechanism of injury discussed above has been a substantial contributing factor to chronic sprain injuries in the cervical spine, shoulders, lower back and in both knees.”
Dr Porteous also provides a supplementary report where he was asked six specific questions, which I have found confusing. Dr Porteous essentially answers the first five questions in the same way. Given these postulate different mechanisms of injury (chronic sprain injury, aggravation etc of chronic sprain injuries, aggravation etc of degenerative conditions), it is difficult to follow Dr Porteous’ reasoning here. He goes on to address the report of Dr Smith, first explaining that he has reached his opinion on the basis of the balance of probabilities. He explains: “I do agree his employment is not the substantial contributing factor to his degenerative disease in the neck, low back, rotator cuff, knee, and/or hip arthritis”, but goes on to say that Dr Smith has not considered whether employment “aggravated or accelerated or exacerbated or deteriorated the underlying degenerative changes”.
One of the issues I have with accepting Dr Porteous’ opinion is that he attributes the aggravation of underlying degenerative change to every body part injured. He does not explain what degenerative change is occurring in each part and whether it is different. It is not necessary to be medically qualified to understand that the mechanisms that operate in the back, in the knees, and in the shoulders are entirely different. In my experience as a Member of the Commission there are certainly cases where a degenerative condition will exist in multiple levels of the spine, or in both knees or both shoulders. It is not commonly seen that a degenerative change will exist in all of those body parts concurrently.
Further, Dr Porteous has not explained what the degenerative condition is. Is it age-related? Is it a constitutional condition that Mr Lisson was born with that has been aggravated by his employment? What is the pathological change that has occurred to the condition that Mr Lisson had before the “nature and conditions” that caused the injury?
There is a tendency in the physical evidence in this case to proceed on the basis of assumptions or hypotheses. There is no doubt that the work of a general duties police officer can, at times, be heavy. There is the need to restrain offenders, make chases, and attend (I would note only on a yearly basis) specific and relevant training, which is physical in nature. Not every police officer will have an aggravation of degenerative changes simply by being employed with the respondent. Otherwise every single officer that proceeded through employment would be likely to claim compensation. Each individual case must be considered on its own facts and merits. In my view there is an element of generalisation to Dr Porteous’ opinion. The simple fact that Mr Lisson was engaged in the type of duties described in his statement does not mean that he has suffered an injury, even a “nature and conditions” type one.
Consideration must also be given to two other specific factors present in this case. The first is the period of employment following general duties where Mr Lisson was working in the State Technical Investigation Branch. These duties did not involve arresting persons, chases and the like. There was the yearly defensive tactics training (which, from what I can understand, all officers must attend regardless of their day to day role). The second is the extensive period of time following Mr Lisson’s departure from the police force and self-employment as a locksmith. If the aggravating effects of injury ceased (largely, but not totally, acknowledging the occasional need to move furniture following covert entry and yearly defensive tactics training), why has it taken until 2022/2024 for any reports to be made to his general practitioner or any investigations undertaken of various body parts that were supposedly injured.

I would also note, specifically in respect of the shoulders, there is a clinical note of 26 August 2022 that states:
“injured his shoulder at work

he was under a dashboard getting a steering column out of a car

gave way and loaded the shoulder”
The applicant’s instructions to Dr Porteous provides the following:
“I would like you to assume for the purposes of preparing your report that Mr Lisson advises that he did not “injure” his shoulder on this occasion.
Mr Lisson advises that this was the activity he was doing when he most recently experienced shoulder pain. This particular incident was no more significant than brushing his teeth, or throwing a ball, or taking off a jumper.
Mr Lisson advises that the injuries to both shoulders had well and truly crystallised years before reaching under the dashboard of the car, which was not an “event” or “incident”.”
Dr Porteous deals with that history (to some extent) in the following way:
“I do note that he has had bilateral shoulder pain for a long time and he remembers repeated instances when both of them became injured and sore in the General Duties discussed above and it is only more recently that it has restricted his work working as a locksmith, sometimes reaching out, but it certainly is not the cause of his shoulder injury. The history is consistent with him having a significant shoulder injury prior to working as a locksmith.”
As the respondent submits, Mr Lisson’s explanation of a culture within the Police Force, even if supported in statements of colleagues, does not explain the lack of medical report for so many years. I find Dr Porteous’ opinion of the specific (and only) incident recorded in the clinical evidence concerning the shoulders (or any other body part) dismissive. The history recorded is inconsistent with the clinical evidence and not really explained.
The submissions in reply, made by the applicant under the heading “Response to Respondent Submissions on Credibility or Interpretation of Applicant’s Evidence” are discussions of matters that occurred during the conciliation phase of the hearing. It is always open for a Member to make credit findings about an applicant in the absence of cross-examination.
In his submissions, the applicant refers to my decision of Wade v State of New South Wales (NSW Police Force) [2024] NSWPIC 661. Whilst facts do not make law, and each decision must proceed on its own evidence, it is worth observing the factual differences in that case, particularly in respect of defensive tactics training. Mr Wade was, like Mr Lisson, a general duties Police Officer for a period, exposed to the same kinds of duties and stressors. He then transferred into a role as a defensive tactics trainer. He was exposed to the types of stressors referred to by Mr Lisson in his tactics training (annually) on a daily basis. There is a significant difference here.
In contradiction of the applicant’s claim and the report of Dr Porteous, the respondent relies on the opinion of Dr Smith. Dr Smith takes a similar history of the onset of problems in the back, neck and shoulders, as well as his knees. Dr Smith also discusses the radiological reports, which, other than in respect of the shoulders, date from 2024. Dr Smith provides the following opinion:
“There is no actual radiology available to view. He will have spinal degenerative disease affecting the cervical and lumbar spine. We all get that. It is 100% in all men and women aged 60 and over. In his age group, it is seen in 90% of men and women. Clinically, he would appear to have bilateral knee joint osteoarthritis and bilateral hip joint osteoarthritis. CAM deformity is seen in the x-rays of the hip. That is a familial inherited abnormality. He will have rotator cuff disease. That is almost as common as spinal degenerative disease.”
Dr Smith acknowledges that “there were numerous musculoskeletal injuries occurring fairly frequently during the regular course of his employment activities”. He states: “None of the abovementioned pathologies are injuries. They are part of the ageing process, as it is affecting him.” Dr Smith seems to acknowledge that during the course of his duties Mr Lisson would have suffered minor strains, sprains and bruises from time to time but that the actual injuries he now presents with and claims are not due to employment.
Dr Smith takes Mr Lisson’s presentation on quite a high-level view, with generality. He relies on the assumption that the vast majority of the population demonstrate degenerative disease. This makes his report less persuasive than it would otherwise be. However, he does take a relevant history of Mr Lisson’s duties and has reached a conclusion on that history.
Whilst Dr Smith’s report is not particularly persuasive, I have also found issue with Dr Porteous’ opinion, as expressed above. The applicant bears the onus to prove his case. This is not as simple as accepting one independent medical opinion over another – I must consider all of the relevant factual and medical evidence before me in reaching my conclusion. This includes the absence of clinical evidence in support of a contemporaneous nature, and the absence of due consideration given to subsequent employment. In order to find an injury as a fact, I must feel an actual persuasion of it occurring. Per Nguyenv Cosmopolitan Homes [2008] NSWCA 246 this approach requires:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.” (at [55])
Dr Porteous appears aware of these principles, or at least of the requisite standard of proof required. He expresses as much with multiple references to the balance of probabilities throughout.
I am unable to distinguish between the degenerative changes identified by Dr Smith as being present in Mr Lisson, in the various body parts pleaded, and the aggravation of those degenerative changes arising out of or in the course of his employment. The evidentiary basis, in particular the lack of clinical evidence and the pleading of injury as “multiple indivisible injuries”, as well as the broad and overall hypothetical approach taken by Dr Porteous, are all relevant factors. For the above reasons I am not satisfied on the balance of probabilities that Mr Lisson has suffered any of the physical injuries alleged arising out of or in the course of his employment with the respondent.
Having so found I am not required to consider the issue of incapacity arising from those physical injuries as pleaded which means the claim for dual benefits is also not required to be decided.

Psychiatric injuries

The issue in dispute in the applicant’s psychiatric claim is different. There is an acceptance of injury, being post-traumatic stress disorder. The issue here is one of notice of claim/notice of injury, as well as incapacity pursuant to s 33 of the 1987 Act.
The relevant notice provisions provide (s 254):
“(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances—
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,
(e) the employer has contravened section 231,
(f) the injury has been treated in a first aid room at the place of work,
(g) if the employer is the owner of a mine—the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011.”
And s 261:
“(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2) If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either—
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7) If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8) In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9) When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”
Mr Lisson’s claim for a psychological injury is brought with a date of injury of 31 August 2016 with a description of “Diagnosed with PTSD from exposure to violent, traumatic, and stressful events between 2003 and 2016 whilst our client was a member of the NSW Police Force.” The claim for the psychological injury was first made on 18 June 2024. This makes the applicant’s claim significantly out of time. In order to be entitled to compensation, Mr Lisson must show that his failure to notify of his injury was “occasioned by ignorance, mistake, absence from the State or other reasonable cause”. Pursuant to s 261, Mr Lisson has not made a claim within six months so therefore must satisfy the requirements that the “failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause” and the claim is in respect of an injury resulting in serious and permanent disablement of the worker.
The parties have approached the issue in a concurrent way on the basis of ignorance and/or other reasonable cause. The respondent does not seem to suggest that Mr Lisson does not satisfy the conjunctive requirement of s 261 of the 1998 Act, that is that the injury has resulted in “serious and permanent disablement”. Given that Mr Lisson has made his claim around eight years after he ceased employment then he must satisfy the “serious and permanent disablement” test. The issue was considered in Gregson v L & Mr Dimasi Pty Ltd [2000] NSWCC 47; (2000) 20 NSWCCR 520. That case concerned the predecessor to the present section (s 65(13)) but remains relevant. Burke CCJ said of that section:
“In this matter the question becomes whether Mr Gregson suffers a serious and permanent disablement. Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work? If all questions were answered in the affirmative then he would satisfy that requirement. The basic question then presenting is the degree of the applicant’s incapacity and losses before a considered answer to those previous questions is available.” (at [78])
Disablement primarily means disablement in respect of a capacity to perform work (Broken Hill Proprietary Company Ltd v Kuhna (1992) 8 NSWCCR 401 at 402B). The applicant’s capacity in the period claimed is in dispute. The claim for weekly compensation ends in 2020 but the applicant’s incapacity has, allegedly, extended beyond that time. The claim for weekly payments for the psychological injury was made on 18 June 2024. Mr Lisson’s claim was based on the report of Dr Allan dated 11 April 2024, who provided the following commentary on Mr Liasson’s capacity:
“His employment represents the full extent of his capacity to work. He could not work for someone else. Being able to control his own hours is entirely appropriate. He has difficulties maintaining his skills so as to keep him up to date and will have in my opinion great difficulty learning any new skills should this be attempted. His hours are sporadic, his attendance to work is sporadic but he does not work with anyone else, he has no staff and does not have to “answer to” anyone and this therefore makes his current employment appropriate and he has capacity to continue in this position but the current role he is in represents his full capacity.”
Dr MacDonald, reporting on 11 September 2024, said this of the applicant’s capacity:
“Mr Lisson is currently working approximately 10 hours per week as a self-employed locksmith. Notably, he learned these skills within the police force. His self-employed status appears to be working well for him. I believe Mr Lisson would be able to work up to 15 or 20 hours per week depending on his symptoms, although he stated that he is currently only working 10 hours per week due to his persistent low mood and difficulties with amotivation in the mornings.”
At the date of making the claim (18 June 2024) Mr Lisson had a reduced capacity to work, which, on the evidence of both independent medical experts, was caused by his psychological injury. Compared with his level of functioning in his employment with the respondent, this is a significant reduction. This, in my view, represents a “serious and permanent disablement” within the meaning of s 261(4)(b) of the 1998 Act.

104.The above is separate to the issue of the applicant’s capacity during the period claimed and in dispute in the present proceedings.
105.I will now turn to the issue of ignorance/other reasonable cause, the exception within both ss 254 and 261 of the 1998 Act to the bar to recovery due to time.
106.The applicant submits that he was unaware of the existence of any time limits until he was provided with the s 78 notice, and he was not aware he could make a claim in a disease type setting where there was no identifiable trigger or specific event, with reference to the report of Anthony Gunn. He also submits that it was accepted work practice for injuries not to be reported nor complaints made.
107.The respondent submits that the applicant’s explanation in his supplementary statement is no satisfactory and should be rejected, and his claim should fail for want of explanation. It is not ignorance given he would have known he was suffering from injury and had previously made a claim in 2006.
108.I do not accept the respondent’s submissions.
109.Mr Lisson has displayed symptoms of psychological distress for some time, perhaps dating back to 2008. He was exposed to a great many psychological traumas during his time employed in the NSW Police Force. Whilst I have taken into account Mr Lisson’s failure to report a singular physical injury in respect of the dispute above, I do not think that is of great weight when considering Mr Lisson’s psychological injury. As he explains in his supplementary statement, Mr Lisson was not really aware of his post-traumatic stress disorder until he had a conversation with Lee Varran. He spoke to his solicitor in September 2023 and then saw Anthony Gunn in May of 2024.

The respondent’s submission that Mr Lisson would have been aware of his obligation to make a report of injury and claim is not persuasive. He had psychological sequalae whilst employed by the Police Force, as he explains in his statement. However, Mr Lisson is not an insurance agent or the like and is not an expert in the requirements of the NSW Workers Compensation legislation, which is complex.

111.The applicant’s submissions are supported by the opinion of his treating psychologist, Dr Gunn. He opines that Mr Lisson was not accepting that he suffered from post-traumatic stress disorder until he was formally diagnosed (from May 2024). He records that Mr Lisson was extremely guarded when he first started engaging and that he saw “his psychological injury as a form of weakness, which is why he did not seek help from NSW Police Force and why it has taken him several years to lodged a WorkCover claim.”
112.I find this opinion of Dr Gunn persuasive. He has provided an explanation for Mr Lisson’s failure to report his injury to the respondent (s 251) and his failure to make a claim (s 264). This is due in part to ignorance (Mr Lisson was not aware of his post-traumatic stress disorder diagnosis and how it was connected to work, or his entitlement to make a claim) and in part due to other reasonable cause (his guarded nature and consideration that psychological distress was a form of weakness). I am satisfied that Mr Lisson has established that he failed to notify injury and failed to make a claim was occasioned by ignorance, mistake, absence from the State or other reasonable cause.

Capacity

113.The final issue is Mr Lisson’s capacity in the period claimed (which is from 1 July 2015 to 30 June 2020), at various rates in that period. There are additional factors to be considered in that the applicant asserts he would achieved a rank of Sergeant (and eventually inspector) in his career. It is appropriate to consider the capacity issue first before calculating the entitlement to weekly compensation.

114.I have set out the medicolegal opinions in respect of capacity above. There is an agreement that self employment represents the only type of work Mr Lisson would be capable of working in. Mr Lisson’s employment history since leaving the NSW Police Force was sporadic until his self employment. He was unable to work for the first half of 2016, and was living on accrued long service leave. He worked for a short period as a supervisor in a halfway house. He did a short burst of work for an auto electrician, then worked full time for Cubic Transportation whilst starting his own locksmithing business. It was then he realised he could not work for other people.
115.I accept this history as accurate and it is consistent with the clinical and medicolegal evidence in this case. Mr Lisson’s locksmithing business took some time to develop but was eventually quite successful. Mr Lisson suggests that for the first four years his capacity was around $50,000-$60,000 a year.
116.Given the issue in this case concerns the 1987 Act prior to its amendment in 2012, the relevant consideration is in accordance with s 40 and the Mitchell test, as set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (Mitchell), that is:
“... the Court is required:
1. To determine the weekly amount the worker would probably have been earning if uninjured (section 40(2)(a)) ...
2. To determine ‘the average weekly amount that the worker is earning or would be able to earn in some suitable employment from time to time after the injury’ (section 40(2)(b)). Section 40(3) provides that the determination of this amount is subject to the following:
‘(a) the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker;
(b) the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A’ ...
3. to subtract the figure derived from 2 from the figure derived from 1 (section 40(2)).
4. to 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 of the case (section 40(1)) ...
5. to make an award in the amount arrived at in Step 4.” (at 529)

117.The first step is to determine the applicant’s probable earnings. Submissions were made concerning his promotion to Sergeant. The applicant relies on two statements of colleagues. I have not found this evidence particularly persuasive. As the respondent submits, these are not individuals with a special knowledge of the working of the promotion system within the NSW Police Force. Whilst I have no doubt Mr Lisson was a diligent and qualified worker, promotion is based on more than just the views of supervisors (in the case of Mr Schofield) or a colleague (Mr Varan).
118.The respondent was granted leave to lodge an Application to Lodge Additional Documents, attaching an email setting out the ranking of Mr Lisson on the promotions list from 2012-2017. This was on the basis that it was admitted as a “business record”. The applicant made extensive submissions about the document pursuant to the Evidence Act that I do not intend to delve into here. They have no relevance. The Commission is not a court and the rules of evidence do not apply, pursuant to s 43(2) of the PIC Act:
“(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.”

119.The objection seems to centre on the final line of the email which provides an opinion that it would be unlikely Mr Lisson would have been successful in a promotion to Sergeant. I do not give that “opinion” part of the document great weight. It is not identified who “the Manager” is, how they were able to form that opinion, or why it has been reached. What is clear from the evidence is that Mr Lisson’s position on the list varied on a yearly basis, as high as 551 and as low as 246. It did not, however, advance at a significant rate indicating that it was inevitable that Mr Lisson would eventually be promoted to Sergeant. On the other hand, Mr Lisson was an acting Sergeant for five years. The applicant must prove his probable earnings which in his case includes a likely promotion to Sergeant, which would attach with it promotion through the ranks on an annual basis, as set out in the applicant’s claim letter of 12 November 2024. I am not satisfied he has met his onus.
120.The applicant also relies on user pays and overtime. The applicant submit that he was completing user pays and overtime prior to March 2009. The reason he stopped doing this was, again according to the letter of 12 November 2024:
“He was unable to attend sporting matches, music festivals, vehicle escort work and other User Pays duties due to his reduced ability to sit for long periods, stand for long periods, engage in wrestles and violent arrests with drunk and unruly patrons of sporting and music festivals.”

121.According to this Mr Lisson ceased user pays and overtime work for physical, not psychological reasons. In those circumstances I do not accept the general proposition that 10% should be added to his probable earnings.
122.I am satisfied, however, the Mr Lisson would have continued in the position of acting Sergeant.
123.Pursuant to s 40(2)(a) I find Mr Lisson’s probable earnings were the award rate of a Sergeant level 1, in the amount of $98,142.
124.The next step is to determine the average weekly amount the worker was earning or would be able to earn in suitable employment, pursuant to s 40(2)(b). I am satisfied that Mr Lisson’s ability to earn is represented by his actual earnings. He provides evidence of a psychological incapacity to cope in positions where he had to deal with others, including employers. Whilst he was not working in a true sheltered workshop, as a self employed person running his own business, he was afforded a greater degree of flexibility than an employee of another would be entitled. He also worked closely with his wife who, on his evidence, provided him with a degree of assistance and support to complete his duties. I do not place great weight on the Google reviews contained in the ConsilAD report dated 13 April 2025 to counter the evidence considered above.
125.The applicant has provided a table of actual earnings, including an adjusted income to normalise earnings. I have used these as the basis for my calculation of the applicant’s average weekly amount Mr Lisson would have been able to earn:
(a)   1 July 2015 to 30 June 2016 - $95,236;
(b)   1 July 2016 to 30 June 2017 - $49,191;
(c)   1 July 2017 to 30 June 2018 - $54,110;
(d)   1 July 2018 to 30 June 2019 - $62,354, and
(e)   1 July 2019 to 30 June 2020 - $68,589.

126.Thereafter Mr Lisson was able to earn more than his probable earnings and the claimed period ends there.
127.Step 3 is to make a deduction of step 2 from step 1, leaving the following amounts:
(a)   $2,906;
(b)   $48,951;
(c)   $44,032;
(d)   $35,788, and
(e)   $29,533.

128.In terms of the discretion in s 40(1), there are no real submissions from the respondent as to why or how I would apply that discretion. I cannot see any real reason to exercise a discretion in this case.
129.The final step is to make an award. The applicant has made some calculations which differ from those I have made above. The award of weekly payments will reflect the figures as set out at [125].

[2025] NSWPIC 300

27 June 2025