NSW Police Force v Cox

[2009] NSWWCCPD 20

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			New South Wales Police Force v Cox [2009] NSWWCCPD 20
APPELLANT:			New South Wales Police Force
RESPONDENT:			Paul Cox
INSURER:			Allianz Australia Insurance Limited Treasury Managed Fund
FILE NUMBER:			A1- 4363/08
DATE OF ARBITRATOR’S DECISION:			22 October 2008
DATE OF APPEAL HEARING:		20 February 2009
DATE OF APPEAL DECISION:			27 February 2009
SUBJECT MATTER OF DECISION:			Sections 9A and 10 of the Workers Compensation Act 1987; substantial contributing factor; journey provisions; whether a worker in the course of employment can also be on a journey
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr Saul instructed by DLA Phillips Fox
Respondent:	Mr Harris instructed by Oates and Smith Solicitors
ORDERS MADE ON APPEAL:			The Arbitrator’s determination of 22 October 2008 is revoked and the following order made in its place: “1.     Award for the respondent employer. 2.      No order as to costs.”
Each party is to pay his or its own costs of the appeal.

BACKGROUND

1. In June 2004, Mr Cox was a member of the New South Wales Police Force (‘the Police Force’) serving in the Forensic Service Group Crime Scene Unit at Albury.  He had been away from work on 11 and 12 June 2004 because of a viral infection with a sore throat, headaches and repeated dry cough.  On 13 June 2004, he was rostered as the “on call officer” for the Unit.  He left his home at about 6am in the “on call police vehicle” intending to drive to Albury police station.  He alleges that while he was driving to the police station he turned his head and reached for the police radio and that, as he did so, he coughed and experienced severe pain in his head, together with weakness in the left side of his body.  The nature of his injury and the exact manner in which it was sustained is the subject of conflicting evidence and will be considered in detail below. 

1. The Police Force initially accepted the claim, but ultimately disputed liability on the basis that Mr Cox had not turned his head, or reached for the radio, at the time he coughed and felt pain and that, as a result, his employment was not a substantial contributing factor to his injury. 

1. On 25 August 2005, Mr Cox injured his right knee when, as a result of the symptoms he developed on 13 June 2004, he experienced pain in his head and fell down two stairs at his home. 

1. On 11 December 2007, Mr Cox claimed lump sum compensation in respect of a 13% whole person impairment.  As agent for NSW Self Insurance Corporation, Allianz Australia Insurance Limited (‘Allianz’) disputed liability for the claim by a section 74 notice dated 16 April 2008.

1. By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 10 June 2008, Mr Cox claimed weekly compensation from 13 June 2004 to date and continuing,…