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NSW Police Force v Kearns

NSW Police Force v Kearns

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Case Copied 4 March 2008 58 min read

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WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:NSW Police Force v Kearns and Anor [2008] NSWWCCPD 29
APPELLANT:  NSW Police Force
FIRST RESPONDENT:  Darren Paul Kearns
SECOND RESPONDENT:  Insurance Australia Group Services Pty Ltd
FIRST RESPONDENT’S INSURER:                 Allianz Australia Insurance Limited, as agent for NSW Self Insurance Corporation
SECOND RESPONDENT’S INSURER:            Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER:  WCC6830-07
DATE OF ARBITRATOR’S DECISION:          2 November 2007
DATE OF APPEAL DECISION:  4 March 2008
SUBJECT MATTER OF DECISION: Disease provisions; apportionment; sections 15, 16, 22 and 40 of the Workers Compensation Act 1987; fresh evidence on appeal; calculation of probable earnings but for injury
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      DLA Phillips Fox
First Respondent:     Palmieri Law Firm
Second Respondent:  Edwards Michael Lawyers

ORDERS MADE ON APPEAL: The Arbitrator’s decision dated 2 November 2007 is confirmed.
The Appellant Employer is ordered to pay the costs of each of the Respondents to the appeal.

INTRODUCTION

This matter concerns a claim for weekly compensation by Darren Kearns (‘the Respondent Worker’) a former police officer who suffers a partial incapacity for work as a result of post traumatic stress disorder (‘PTSD’) sustained as a result of his employment with the NSW Police Service (‘the Appellant Employer/Police Service’) while working with the Hunter Region Crash Investigation Unit (‘Hunter Crash Unit’) from 1999 until 27 January 2001, and as a result of his employment with Insurance Australia Group Services Pty Ltd (‘the Second Respondent/IAG’) from 2001 until December 2004. Mr Kearns succeeded before the Arbitrator who ordered that the award of weekly compensation be satisfied 80% by the Police Service and 20% by IAG. The appeal concerns:

(a)whether the Police Service should be allowed to tender as additional or fresh evidence on appeal, wage material that was available but not tendered at the arbitration;

(b)the application of the disease provisions of the Workers Compensation Act 1987 (‘the 1987 Act’), and

(a)the application of the apportionment provisions in section 22 of the 1987 Act.

BACKGROUND TO THE APPEAL

Mr Kearns joined the Police Service as a Probationary Constable in April 1992 and resigned on 27 January 2001, by which stage he had reached the rank of Senior Constable Level 3. In the course of his duties with the Hunter Crash Unit he investigated numerous fatal and serious motor vehicle accidents. As a result he developed PTSD. On 5 February 2001 he commenced employment with IAG as an internal personal injury investigator. Until late 2002 or early 2003 his work only required him to investigate minor accidents and public liability claims. Whilst he did not have to attend accident scenes immediately after an accident, he continued to experience the symptoms of PTSD, though to a lesser degree. In late 2002 or early 2003 Mr Kearns began to investigate more serious accidents, which resulted in his symptoms of PTSD worsening. As a result he ceased work from November 2003 until March 2004 when…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWWCCPD 29
Decision Date: 4 March 2008

CaseChat Overview and Summary

This appeal concerns a claim for weekly compensation by Darren Paul Kearns, a former police officer, who suffered a partial incapacity for work as a result of post traumatic stress disorder (PTSD) sustained as a result of his employment with the NSW Police Service. Mr Kearns claimed weekly compensation from both the Police Service and Insurance Australia Group Services Pty Ltd (IAG) under section 40 of the Workers Compensation Act 1987. The appeal was brought by the Police Service, who claimed that the Arbitrator erred in law by finding that Mr Kearns' probable earnings but for injury were $1,490.00 per week. The Police Service also claimed that the Arbitrator failed to correctly apply section 16 of the Act and section 22 of the Act. The Arbitrator found that the Police Service should be liable for 80% of the award of weekly compensation and IAG should be liable for 20% of the award. The appeal was dismissed. The Deputy President found that the Arbitrator's finding of probable earnings of $1,490.00 per week was open on the evidence and the correct approach was taken in calculating those earnings. The Deputy President also found that the Arbitrator correctly applied section 16 of the Act and section 22 of the Act.

Orders