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

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Newby v State of New South Wales (NSW Police Force) [2025] NSWPIC 442
APPLICANT:	Jason Newby
RESPONDENT:	State of New South Wales (NSW Police Force)
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	28 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim by former police officer for back payment of weekly benefits in respect of dependent spouse; dispute as to amount to which applicant entitled; review of payments revealed all payments of weekly benefits in relevant period were incorrect; respondent paid shortfall in periods when applicant was underpaid and did not seek to recover overpayment during period in which applicant’s spouse had incorrectly not been included as a dependant; respondent did not pay additional weekly benefits in periods during which applicant had been overpaid but did not seek to recover overpayments; respondent paid additional weekly benefits in periods where applicant had been underpaid; Held – applicant has been paid all weekly benefits to which he is entitled and has in fact been overpaid; award for respondent.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. there is an award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant, Jason Newby (Mr Newby) was employed by the respondent, State of New South Wales (NSW Police Force), as a police officer.
Mr Newby has sustained an accepted psychological injury, deemed to have occurred on
20 May 2006. He has been in receipt of weekly benefits compensation during all periods in respect of which he has been totally or partially incapacitated for work.
On 26 June 2024, the applicant’s solicitors wrote to the respondent’s insurer, EML, advising that the applicant’s wife had become his dependent [sic] from 12 May 2018.
The applicant sought an adjustment of his weekly benefits to reflect the addition of a dependent spouse, and back pay to date.
After further communication between the applicant’s solicitors and EML regarding this issue, the applicant’s solicitors wrote to EML on 11 September 2024.
The applicant’s solicitors claimed it had been anticipated the applicant would receive approximately $40,000 in outstanding payment of benefits.
The applicant had instructed his solicitors that EML had informed him the figure owed to him was approximately $26,000. This was apparently because the applicant had not added to a statutory declaration his eldest’s daughter’s date of birth. This had resulted in an overpayment that had been recovered without the applicant’s knowledge or agreement.
The applicant’s solicitors stated that each of the applicant’s statutory declarations, with the exception of that in 2020, included his children’s dates of birth. In 2020, the month and year of birth, but not the day, were added.
The applicant’s solicitors “consider[ed]” the information relating to the children’s dates of birth was easily available to EML, and if his benefits were overpaid, it was through no fault of the applicant.
The applicant’s solicitors “expect[ed]” that EML would process the full amount of the amount owed to the applicant and update his dependents [sic].
On 16 October 2024, the respondent’s solicitors advised that EML had accepted the applicant’s claim for a dependant [sic] spouse and had calculated the applicant’s additional entitlement as $26,886.02.
The respondent’s solicitors attached EML’s calculation of back payment, as well as the calculated overpayment, which EML would not pursue or deduct.
The respondent’s solicitors advised that the applicant’s total back payment, based on the applicable statutory rate, inclusive of his dependent spouse, had been calculated to be $20,316.94.
EML had identified an overpayment of $6,569.08. EML did not seek repayment, and nor was this amount being deducted from the applicant’s entitlement. EML had therefore calculated that the applicant was entitled to the sum of both totals, being $28,886.02 [sic: $26,886.02].
The respondent’s solicitors advised that EML’s calculations did not deduct any over payments. EML only sought recognition that there were a number of weeks during the period claimed where the applicant had already been paid more than he was entitled to and therefore suffered no financial loss. The applicant had, in fact, had a financial gain, which was not pursued or deducted by EML.
There then followed a series of emails between the parties’ solicitors, to which I will refer below.
With a dispute over the amount of back pay to which the applicant was entitled unresolved, the applicant lodged a Miscellaneous Application (the Application) on 18 March 2025.
The Application claimed that an adjustment to the applicant’s weekly payments was required due to a change in his wife’s dependant [sic] status, resulting in a back payment of approximately $43,000 owed by the insurer.
The Application claimed that the applicant had been informed by the case manager that he would be paid only $26,000, due to an alleged overpayment of benefits relating to a dependant [sic] child. The applicant later received assurances this would not occur, “however, received only the $26,000 and not the full [sic] anticipated by him and calculated by us.”
The Application set out the calculations which had previously been sent to the respondent’s solicitors, and to which I will refer below.
The respondent lodged its Reply on 10 April 2025.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant has been paid all the back pay to which he is entitled, and, if not, the additional amount to which the applicant is entitled.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing by the Teams platform on 24 July 2025. Mr Hammond of counsel, instructed by Mr Granter, appeared for the applicant, who was present. Mr Barter of counsel, instructed by Mr Mead, appeared for the respondent. Ms Zena “T” of EML also attended.
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 and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Emails

The evidence in this matter consists largely of a series of emails between the parties, and their respective wages schedules.
I will set out the email trail, as it is otherwise impossible to ascertain each party’s position.
By email to the respondent’s solicitors on 17 October 2024, the applicant’s solicitors advised they did not understand the spreadsheet sent by the respondent’s solicitors on 16 October 2024.
The applicant’s solicitors [understood] the following was not in issue:
(a) the applicant was entitled to be paid for his dependent spouse, pursuant to ss 37(1)(b) and 37(1)(c) of the Workers Compensation Act 1987 (the 1987 Act)
(b)    those payments were to commence from 15 May 2018;
(c)    the rates of those payments were:
·1 October 2023 to 31 March 2024: $150.30
·1 April 2023 to 30 September 2023: $148.50
·1 October 2022 to 31 March 2023: $145.20
·1 April 2022 to 30 September 2022: $143.70
·1 October 2021 to 31 March 2022: $141.50
·1 April 2021 to 30 September 2021: $139.80
·1 October 2020 to 31 March 2021: $139.00
·1 April 2020 to 30 September 2020: $137.90
·1 October 2019 to 31 March 2020: $136.10
·1 April 2019 to 30 September 2019: $135.00
·1 October 2018 to 31 March 2019: $133.00
·1 April 2018 to 30 September 2018: $132.00
(d)     EML “purport[ed]” to have identified an overpayment of $6,569.08, which was not agreed.
However, EML did not seek repayment, nor was this being deducted from the entitlement.
The applicant’s solicitors asked: “if the alleged overpayments are not being taken into account”, why they appeared as minuses on EML’s spreadsheet for the back payment?
The applicant’s solicitors stated that the total, gross, and underpayment was “simply calculated”.
The applicant’s solicitors set out the following calculation:
·        1 October 2023 to 31 March 2024: $150.30 (26 weeks) = $3,907.90
·        1 April 2023 to 30 September 2023: $148.50 (26 weeks) = $3,861.00
·        1 October 2022 to 31 March 2023: $145.20 (26 weeks) = $3,775.20
·        1 April 2022 to 30 September 2022: $143.70 (26 weeks) = $3,736.20
·        1 October 2021 to 31 March 2022: $141.50 (26 weeks) = $3,679.00
·        1 April 2021 to 30 September 2021: $139.80 (26 weeks) = $3,634.80
·        1 October 2020 to 31 March 2021: $139.00 (26 weeks) = $3,614
·        1 April 2020 to 30 September 2020: $137.90 (26 weeks) = $3,585.40
·        1 October 2019 to 31 March 2020: $136.10 (26 weeks) = $3,538.60
·        1 April 2019 to 30 September 2019: $135.00 (26 weeks) = $3,510.00
·        1 October 2018 to 31 March 2019: $133.00 (26 weeks) = $3,458.00
·        5 May 2018 to 30 September 2018: $132.00 (21 weeks = $2,772.00
The applicant’s solicitors calculated the above amount as $43,072.10, “not the $20,000 ish that your client purports it to be, after taking into account the alleged overpayment (which your client indicated that they would not do, but evidently has, according to their own spreadsheet). Please confirm that the above is correct and that payment will be made to our client forthwith.”
By email to the respondent’s solicitors at 1:30pm on 21 October 2024, the applicant’s solicitors advised that the applicant had been told by EML that a payment was being processed for him that day.
The applicant’s solicitors advised they understood the matter of the amount had not been resolved. If the amount being processed was not as had been claimed, the applicant asked that EML not proceed with the payment until agreement had been reached as to the amount to be paid.
By email to the applicant’s solicitors at 2:51pm on 21 October 2024, the respondent’s solicitors advised that EML had paid weekly compensation during the entire period claimed, “which we say cannot be ignored.”
The respondent’s solicitors attempted to explain the spreadsheet. They advised that EML had identified periods in which the applicant had been paid more than he was entitled to under the correct statutory rate.
The respondent’s solicitors provided an example. For the period from 5 April 2022 to
30 September 2022, EML had calculated the correct statutory rate (including a dependent spouse) to be $1,069.40 per week. However, the applicant was paid $1,080.40 per week and therefore was overpaid $11 per week for that period (except in the short weeks, which were highlighted).
“In other words,” the respondent’s solicitors stated, when the applicant’s correct statutory rate was applied, he had suffered no financial loss during the above period, as he had already received more than that to which he was entitled. EML did not seek to have that paid back but contended that the applicant could not receive additional overpayment.
The respondent’s solicitors explained that the “-11” shown only indicated an overpayment for the week and was not a deduction from the total. The weeks where there had been an overpayment were not included in EML’s final calculation, as the applicant had already been overpaid. The total of the amount in weeks in which an overpayment [sic] was due was $26,886.02. The respondent maintained this was the correct approach and an accurate calculation of the applicant’s entitled back payment.
The respondent’s solicitors were instructed by EML that the applicant’s payment had been processed that morning and could not now be undone.
By email to the respondent’s solicitors at 5:02pm on 21 October 2024, the applicant’s solicitors stated that the total overpayment amounted to $6,59.06 [sic: $6,569.06]. The total underpayment was $43, 072.10. EML had not paid for a dependent spouse for the relevant period, so that was the actual underpayment.
The applicant’s solicitors stated that EML asserted it had overpaid the applicant for a period but was not taking that into account “: but they are”.
The applicant’s solicitors claimed the overpayment could only be in relation to (a) a child dependent [sic] or (b) the applicant earning money that would impact his “s 40s” (of the 1987 Act). “Which of those situations is applicable?”
The applicant’s solicitors stated that it was very simple to calculate the alleged overpayment, which had not been particularised, and the applicant was told, was not being taken into account, “but it is.” The explanation about the spreadsheet that had been provided was “trite. It is a spreadsheet. It says what it says. [I]t says that there is $11,000 difference between $43,072.10 (less the alleged overpayment).” [sic].

SUBMISSIONS

Counsels’ submissions have been recorded. I will therefore provide a summary.

Applicant

The applicant submitted it was not in dispute that since 12 May 2018, he had had a dependent spouse.
The parties were in dispute as the amount of back pay to which the applicant was entitled. It was unclear how the respondent reached its position.
The applicant submitted that the dispute related to his spouse. The extent to which he was overpaid for his children was not before me.
The applicant submitted he was entitled to payment of $43,072.10, less the amount paid by the respondent.
In reply to the respondent, the applicant submitted the respondent was seeking to offset one issue against the other. The only issue that was justiciable was the underpayment in respect of the applicant’s spouse.
The applicant also submitted he was entitled to a modest uplift in his costs, for complexity.

Respondent

The respondent submitted that, pursuant to s 9 of the 1987 Act, it was obliged to pay the applicant in accordance with the Act.
Because the applicant had been a police officer, it was necessary to go back to the “old Act”. The individual payments were lower, but workers also had the benefit of calculations that took into account their domestic situation.
The respondent referred to its wages schedule, which it submitted showed the payments made by EML, and the correct payments that should have been made. All the payments were wrong, for one reason or another. The sections coloured orange showed fractions of weeks because the payments were indexed during that week.
The respondent submitted that, during the period from 31 August 2021 to 20 November 2023, there was an overpayment, because EML took into account “dependent” children it should not have included in its calculations (because they were not in fact dependent), but did not take into account the applicant’s wife, who was dependent on him. That resulted in the overpayment of $6,569.08, which the respondent did not seek to recover.
The respondent submitted the total underpayment to the applicant had been paid. To the extent that there were overpayments between August 2021 and November 2023, that was a windfall to the applicant.
The respondent submitted it was irrelevant how EML “got it wrong”. What was relevant was that the applicant received the right compensation. The overpayment was EML’s fault, and it did not seek to recover it.
The respondent submitted that any increase in costs for complexity should apply to both parties.

SUMMARY

The applicant submitted that the only justiciable issue is the underpayment for his spouse, and the respondent was attempting to “offset” one issue against the other.
That is not what the respondent sought to do. In order to address the underpayment for the applicant’s spouse, it was necessary for the respondent to review the weekly payments it had made to the applicant from 15 May 2018, when the applicant’s wife became dependent on him. That necessarily involved calculating his correct entitlements, including during periods where one or more of his children was dependent on him. There is no other way the calculation could be made. In any event, the applicant’s solicitors had raised in correspondence with EML the issue of the children’s dependency. The submission is rejected.
As the respondent submitted, when the payments to the applicant were reviewed, EML ascertained that there were periods during which the applicant received more than his statutory entitlement, and periods during which he received less. Extraordinarily, none of the payments was actually correct.
In the Application (and in an email to the respondent’s solicitors) the applicant’s solicitors have calculated the payments to which the applicant would be entitled if his statutory rate included a dependent spouse. The underpayment is not, as the applicant stated in the Application, “simply calculated” in this manner.
The applicant’s solicitors have multiplied the amount payable in respect of the applicant’s dependent spouse by 26 weeks, for each relevant period (with the exception of the period from 5 May 2018 to 30 September 2018 which was 21 weeks). They have then calculated the total amount payable as $43,072.10.
However, as I have noted, at times during the relevant period the applicant was paid weekly benefits that were greater than the statutory maximum to which he was entitled. The respondent does not seek to recover the overpayments, but submitted it was obliged to pay the applicant in accordance with the legislation.
I accept the respondent’s submission. The respondent has calculated the applicant’s entitlement to weekly benefits, including the allowances for a dependent spouse and child/ren, and where there was a shortfall, has adjusted the amount appropriately. Where there was an overpayment, the respondent has not adjusted the amount – it has not paid further compensation, and nor has it sought to recover the overpayment. In my view, that is the correct approach.
The respondent relied on its wages schedule, which it prepared using data from EML’s payment system, and explained how the appropriate weekly benefits were calculated.
The applicant has not submitted that the respondent’s wages schedule is incorrect. The wages schedule is attached to these reasons, and I gratefully adopt it.
The applicant has been paid all weekly benefits to which he is entitled and has in fact been overpaid. There is no further compensation payable to the applicant in respect of the period claimed.
There will be an award for the respondent.

APPENDIX – WAGE SCHEDULE

The Respondent’s Wages Schedule

As the Respondent understands it, the Applicant claimed dependants are as follows:
a)    GW, daughter (DOB 29 August 2000). This dependency ceased on 30 August 2021. This resulted in the overpayment from 31 August 2021 as evident below.
b)    MW, daughter (DOB 8 March 2002). This dependency ceased on 9 March 2023 and resulted in the lower rate recorded from 1 April 2023.
c)     JW, son (DOB 6 February 2004)
d)    HN, son (DOB 21 May 2018)
e)    Kylie Newby, dependant spouse (claimed from 15 May 2018)
The Respondent contents that the Table below properly and accurate presents the Applicant’s entitlement for the period. The information from the Table is from data directly collected from EML’s payment system and should therefore be read in conjunction with the list of payments attached to this Reply.
There are a number of instances when the regular increase of statutory maximum entitlements falls in between EML’s pay cycles, resulting in short weeks. These are represented in orange. They represent a fraction of a week, which is multiplied by the relevant entitlement to arrive at the amount paid or owed. For example, the period of 25 September 2018 to 30 September 2018 was paid on the basis of 0.8 weeks. The correct payment per week was $1,124.10 at the time. Therefore, 0.8 x $1,124.10 = $899.28 which is reflected in the Table. This is deducted from the amount EML had paid, calculated the same way.

The following row is 1 October 2018 (the remaining 0.2) and reflects the increase to the statutory entitlements. The appropriate rate during that period was $1,132.90. 0.2 x $1,132.90 = $226.58. This is again deducted from the amount EML had already paid, to arrive at the resulting difference.
The Plaintiff’s daughter (GW) was no longer a dependent from her 21^st birthday on 29 August 2021. This had the affect or reducing the Applicant’s dependants from 4 dependent children + dependant spouse to 3 dependant children + dependant spouse. However, EML had erroneously continued to pay the Applicant at the higher rate of 4 dependant children, resulting in an overpayment. The overpayment was the result of the amount for the 4^th dependent child being slightly greater than the rate for a dependant spouse.
As a result, for the period of 31 August 2021 to 20 November 2023, the Applicant had received more than his statutory weekly entitlement (inclusive of a dependant spouse) and therefore suffered no economic loss. In fact, the Applicant enjoyed a financial gain, from which EML does not seek pay back. The Table below is simply a reflection that for the relevant periods, the Applicant had not suffered any financial loss.
For example, from 1 October 2021 to 31 March 2022, the correct statutory maximum entitlement is $1,053.20 per week (3 dependent children + dependant spouse). The Applicant agrees with this rate as demonstrated by their calculations at page 29 of the Application. However, the Applicant continued to be paid at the rate of $1,064.00 per week as per the list of payments. Therefore, as can be seen, for the period the Applicant has been overpaid by $10.80 per week. There is no financial loss and therefore no addition entitlement.
The same can be seen for the following period of 1 April 2022 to 30 September 2022. The correct statutory entitlement is $1,069.40 per week (3 dependent children + dependant spouse). As can be seen from the list of payments, the Applicant was paid at the rate of $1,080.40 per week. Therefore, once again the Applicant has suffered no financial loss for the period, even including

the addition of the dependant spouse. This extended until 20 November 2023 when the error was identified by EML.

The Respondent submits that, even on the Applicant’s own schedule, EML’s position and calculation is correct.
The Respondent’s calculations of the Applicant’s additional entitlement is outlined below:

Period	Weeks paid	Payment by EML1	Correct payment2	Difference	Total3
15/05/2018 to 21/05/2018	1 week	$850.00	$982.00	$132.00	$132.00
22/05/2018 to 11/06/2018	3 weeks	$850.00	$1,124.10	$274.10	$822.30
12/06/2018 to 24/09/2018	15 weeks	$992.10	$1,124.10	$132.00	$1,980.00
25/09/2018 to 30/09/2018	0.8 weeks	$793.68	$899.28	$105.60	$105.60
1/10/2018 to 1/10/2018	0.2 weeks	$199.98	$226.58	$26.60	$26.60
2/10/2018 to 25/03/2019	25 weeks	$999.90	$1,132.90	$133.00	$3,325.00
26/03/2019 to 31/03/2019	0.8 weeks	$799.92	$906.32	$106.40	$106.40
1/04/2019 to 1/04/2019	0.2 weeks	$202.98	$229.98	$27.00	$27.00
2/04/2019 to 30/09/2019	26 weeks	$1,014.90	$1,149.90	$135.00	$3,510.00
1/10/2019 to 30/03/2020	26 weeks	$1,023.40	$1,159.50	$136.10	$3,538.60
31/03/2020 to 31/03/2020	0.2 weeks	$207.32	$231.90	$24.58	$24.58
1/04/2020 to 6/04/2020	0.8 weeks	$829.28	$939.60	$110.32	$110.32

1 List of payments.

2 Applicable statutory maximum as per the Benefits Guide.

3 Difference x number of weeks.

7/04/2020 to 28/09/2020	25 weeks	$1,036.6	$1,174.50	$137.90	$3,447.50
29/09/2020 to 30/09/2020	0.4 weeks	$414.64	$469.80	$55.16	$55.16
1/10/2020 to 5/10/2020	0.6 weeks	$627.12	$710.52	$83.40	$83.40
6/10/2020 to 29/03/2021	25 weeks	$1,045.20	$1,184.20	$139.00	$3,475.00
30/03/2021 to 31/03/2021	0.4 weeks	$418.08	$473.68	$55.60	$55.60
1/04/2021 to 5/04/2021	0.6 weeks	$630.54	$714.42	$83.88	$83.88
6/04/2021 to 30/08/2021	21 weeks	$1,050.90	$1,190.70	$139.80	$2,935.80
31/08/2021 to 30/09/20214	4 weeks	$1,050.90	$1,040.20	NIL	NIL
1/10/2021 to 31/03/2022	26 weeks	$1,064.00	$1,053.20	NIL	NIL
1/04/2022 to 30/09/2022	26 weeks	$1,080.40	$1,069.40	NIL	NIL
1/10/2022 to 31/03/2023	26 weeks	$1,080.40	$1,080.40	NIL	NIL
1/04/2023 to 30/09/20235	26 weeks	$1,116.50	$949.30	NIL	NIL
1/10/2023 to 20/11/2023	7 weeks	$1,116.50	$960.50	NIL	NIL
21/11/2023 to 25/03/2024	18 weeks	$810.20	$960.50	$150.30	$2,705.40
26/03/2024 to 31/03/2024	0.8 weeks	$648.16	$768.40	$120.24	$120.24
1/04/2024 to 1/04/2024	0.2 weeks	$162.04	$197.98	$35.94	$35.94
2/04/2024 to 8/04/2024	1 week	$810.20	$989.90	$179.70	$179.70
9/04/2024 to 9/09/2024	23 weeks	$989.90	$989.90	NIL	NIL

4 GW was no longer a dependant.

5 MW was no longer a dependant.

The ‘Total’ column provides an amount of $26,886.02 which reflects the true and actual economic loss for the relevant periods. The Respondent contends that this is the Applicant’s entitlement, which he has already received as evidenced by the list of payments.
The Respondent submits that there is no further weekly compensation owing to the Applicant to date. Any additional award for weekly compensation payments would result in the Applicant receiving more that the applicable statutory maximum.

[2025] NSWPIC 442

28 August 2025