NSW Police Service v Snape

[2008] NSWWCCPD 89

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		NSW Police Service v Snape [2008] NSWWCCPD 89
APPELLANT:		NSW Police Service
RESPONDENT:		Dallas Snape
INSURER:		Allianz Australia Workers Compensation Ltd
FILE NUMBER:		WCC4891-08
DATE OF ARBITRATOR’S DECISION:		28 April 2008
DATE OF APPEAL DECISION:		22 August 2008
SUBJECT MATTER OF DECISION:		Section 65A(4) of the Workers Compensation Act 1987; entitlement to benefits under section 67 where physical and psychological impairments are found which exceed section 67(1) threshold.
PRESIDENTIAL MEMBER:		President, Judge Greg Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:		Sparke Helmore
Respondent:		Stacks
ORDERS MADE ON APPEAL:		As regards the Arbitrator’s decision dated 28 April 2008: Paragraphs (1) and (3) of the Arbitrator’s determination are confirmed.  Paragraph (2) is revoked and the following order is substituted: ‘The Respondent is to pay the Applicant the sum of $32,500.00 pursuant to section 67 of the Workers compensation Act 1987.’
No order as to the costs of this appeal

BACKGROUND TO THE APPEAL

1. On 26 May 2008, the NSW Police Service (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 28 April 2008.

1. The Respondent to the appeal is Dallas Snape (‘Mr Snape/Respondent Worker’).

1. Mr Snape is 48 years of age.  He was 47 years old at the date of the Arbitrator’s decision.

1. The Respondent Worker was employed by the NSW Police Service as a Police officer from 1989 until early March 2003. 

1. During the course of his employment with the NSW Police Service Mr Snape had been required to attend at numerous traumatic incidences including fatal road accidents, a suicide and the accidental drowning of a child. 

1. In 2003, Mr Snape was diagnosed as suffering from Post-traumatic Stress Disorder and Major Depressive Disorder. There was no dispute that his condition was work related. He lodged a claim for workers compensation and has continued to receive weekly compensation payments.

1. In November 2004, the Respondent Worker suffered acute onset Type 1 diabetes.  There is no dispute the onset of diabetes is causally related to the Post-Traumatic Stress Disorder suffered in 2003. 

1. On 2 July 2007, Mr Snape filed an Application to Resolve a Dispute in the Commission, claiming lump sum compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of both his psychiatric and endocrine conditions.

1. Mr Snape was referred for assessment to Dr John Garvey, an Approved Medical Specialist, General Surgeon, who issued a Medical Assessment Certificate on 30 January 2008.  Dr Garvey assessed Mr Snape as suffering 25% whole person impairment in respect of the endocrine system/diabetes mellitus. 

1. Mr Snape was also referred for assessment to Dr Brian Parsonage, an Approved Medical Specialist, Psychiatrist, for assessment of the Post-traumatic Stress Disorder and associated Major Depressive Disorder. He was assessed as suffering 28% whole person impairment in respect of his psychological impairment.

1. The matter proceeded to a telephone conference on 5 March 2008. The parties agreed that, pursuant to section 65A(4)(b) of the 1987 Act, Mr Snape was entitled to compensation in respect of one of the impairments assessed and was entitled to elect to receive the compensation for the impairment that provided for the greatest amount of compensation. Not surprisingly Mr Snape elected to pursue compensation in respect of the assessment of 28% whole person impairment in respect of his psychiatric condition as assessed by Dr Parsonage.

1. The parties were unable to resolve the claim in respect of his section 67 entitlement and the matter proceeded to arbitration on 10 April 2008. At issue was whether the Respondent Worker was entitled to receive compensation pursuant to section 67 for pain and suffering, in respect of both the Post-Traumatic Stress Disorder and the diabetes mellitus condition.

1. The Arbitrator found in favour of the Respondent Worker and awarded compensation under section 67, taking into account both conditions. A decision together with a statement of reasons was issued on 28 April 2008, and it is from this decision that the NSW Police Service now seeks leave to appeal.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 28 April 2008 records the Arbitrator’s orders as follows:

The Commission determines:

“1.The Respondent is to pay the Applicant the amount of $47,500.00 pursuant to section 66 in respect of 28% findings of a most extreme case by Dr Parsonage in his Medical Assessment Certificate dated 30^th January 2008.

2.The Respondent is to pay the Applicant the sum of $40,000.00 pursuant to section 67.

3.The Respondent is to pay the Applicant’s costs as agreed or assessed.”

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6)     If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

LEAVE TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. There is no dispute that the thresholds in sections 352(2) are satisfied.

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. I grant leave to appeal.

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred:

(a)In finding the Respondent Worker was entitled to compensation for the pain and suffering arising from both the physical injury and psychological injury, contrary to the provisions of section 65A of the 1987 Act which restricts the Respondent Worker to compensation in respect of either the physical or psychological injury, but not both.

(b)In awarding the Respondent Worker $40,000.00 under section 67 which was excessive and did not exercise common sense and judgment as required in Galley v Pasminco Mining Limited (1993) 9 NSWCCR 288 at 297 (‘Galley’).

(c)In awarding the Respondent Worker $40,000.00 because the award is not “reasonably proportionate to that maximum amount having regard to the degree and duration of the pain and suffering and severity of permanent impairment” pursuant to section 67(3) of the 1987 Act.

(d)In awarding the Respondent Worker an excessive amount of compensation for pain and suffering and not applying the principles that the pain and suffering experienced by a quadriplegic is considered to be ‘a most extreme case’: Government Supply Depot v Abbott (1993) 9 NSWCCR 276 (‘Abbott’).

(e)By failing to apply the principles in Malcolm v Roads and Traffic Authority (NSW) (1995) 12 NSWCCR 258 which requires age to be a relevant consideration in determining awards under section 67 (‘Malcohm’).

(f)By failing to take into account the principles in Scrimshaw v SAR Wood Pty Limited (1997) 14 NSWCCR 225 (‘Scrimshaw’) which require that the pain and suffering must result from the loss, rather than the injury, to be compensable.

(g)By not applying the principles in Jones Bros. Bus Company Pty Ltd v Baker (1992) 26 NSWLR 322; 8 NSWCCR 30 per Kirby P at 49-50 (‘Baker’) which outlines an award under section 67 that may not compensate the Respondent Worker’s inability to undertake, following injury, activity previously undertaken, but only for the ‘actual pain, distress or anxiety’ resulting from any diminished abilities.

(h)By not applying the principles in Pacific Dunlop Limited v Krivec (1906) 13 NSWCCR 353 at 358 (‘Kirvec’) which prohibit the Respondent Worker being entitled to be awarded compensation for pain and suffering for impairment already compensated under section 66.

EVIDENCE AND SUBMISSIONS

1. The Appellant Employer submits, in accordance with their grounds of appeal as listed above:

Ground (a)

(i) The intention of section 65A of the 1987 Act is that the Respondent Worker is only to be compensated in respect of either the physical or psychological injury;

(ii) That despite section 65A(4) appearing to make the distinction between “impairment” and “compensation”, the effect of section 65A(4) results in the Respondent Worker to only being entitled to receive lump sum compensation in respect of impairment for one of the injuries.

(iii)   Parliament intended that the workers be entitled to compensation for pain and suffering in relation to either the physical injury or the psychological injury;

1. Further, that if the Arbitrator’s decision is upheld in relation to awarding compensation for pain and suffering arising out of the impairment for both the psychological injury and the physical injury, the Appellant Employer makes further submissions on this basis.

Grounds (b), (c) and (d)

(i) An award under section 67 involves questions of fact and degree, matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment (‘Galley’) and $40,000.00 under section 67 is excessive.

(ii)     Dr Brian Parsonage’s Medical Assessment Certificate dated 30 January 2008 stated:

“Present treatment: Mr Snape saw his GP about once every three months and took Valium intermittently if he had particularly severe periods of anxiety.

Present symptoms: Mr Snape reported ongoing distressing recollections of past traumatic events triggered off by common occurrences… Mr Snape reported that he tried to avoid thinking about past incidents but he was unable to do so.  He tried to avoid travelling because driving caused him to re-experience traumatic motor vehicle accidents and he was hyper vigilant… Mr Snape reported that he was depressed for most of the time… He felt he was a worthless person and had had thoughts of suicide”

(iii)   The Appellant Employer notes that Dr Garvey’s Medical Assessment Certificate dated 30 January 2008 stated:

“Present treatment: Mistard 30/70 Insulin, 16 units in the morning and 26 units in the evening.  Valium for anti-anxiety occasionally.

Present symptoms: Hypoglycaemic incidents.  Mr Snape sometimes gets up once a night to pass his urine.  Mr Snape indicates that his vision has deteriorated and he now has to wear glasses but he has been seen by a specialist ophthalmologist in Taree and no blood vessel damage from his diabetes was evidence.”

(iv) It is the Respondent Worker’s symptoms and treatment for his psychological condition and physical condition are minor compared to a quadriplegic and the Arbitrator’s award of $40,000.00 lacks common sense and judgment and is not “reasonably proportionate to that maximum amount having regard to the degree and duration of the pain and suffering and severity of permanent impairment” pursuant to section 67(3) of the 1987 Act;

Ground (e)

(v)     That the Arbitrator erred in finding that the Respondent Worker was ‘relatively young’ at the age of 47. Retirement age is 65, and the Respondent Worker would be considered to ‘relatively old’ in terms of workplace injuries. Accordingly, the Arbitrator failed to appropriately apply the principle in Malcolm, which requires age to be a relevant consideration in determining awards under section 67.

Ground (f)

(vi)   Scrimshaw requires that pain and suffering must result from the loss or impairment rather than the injury, to be compensable under section 67. For example, in Scrimshaw, the worker was not entitled to compensation under section 67 in relation to a secondary condition of tiredness and limb pains that resulted from his cardiac condition because the cardiac condition was the only condition for which he was awarded for impairment.

(vii)     Paragraph [26] of the Arbitrator’s statement of reasons states:

“It was submitted that the effects of the Applicant’s diabetes condition would have to be productive of other symptoms such as difficulty with circulation, vision and cardiovascular problems, and accordingly an award of 100% of the most extreme case would be appropriate.”

(viii) Consideration of circulation, vision and cardiovascular problems is not compensable pursuant to section 67 as it is not pain and suffering arising out of the impairment and the Arbitrator erred in considering these conditions when awarding $40,000.00 for compensation for pain and suffering pursuant to section 67.

Ground (g)

(ix)   The Arbitrator erred by not applying the decision in Baker which outlined that an award under section 67 may not compensate a worker for an inability to undertake, following injury, activity previously undertaken, but can only for be the ‘actual pain, distress or anxiety’ resulting from any diminished abilities.

(x)     At [31] of the Arbitrator’s statement of reasons the Arbitrator referred to Dr Parsonage’s findings that Mr Snape:

“tended to neglect himself, rarely went out and only then with considerable encouragement, could only go walking within distance from the house by himself, had significant strain on his marriage and his wife and he needed ‘time out’ periods. He also found that he had some concentration deficits and had not been able to work at all for the last 4 years and had not been able to undertake paid employment.  These are all problems that stem from the Applicant’s post traumatic stress disorder and major depressive disorder.”

(xi) The Respondent Worker’s failure to continue to be able to perform activities such as employment and travelling outside of the house is not compensable under section 67 because it does not result in actual pain, distress or anxiety.

Ground (h)

(xii)     The Arbitrator erred by not applying the decision of the Court of Appeal in Krivec which held at 358:

“Where pain is avoided by restricting back movements, compensation is properly payable under s 66 for impairment but not under s 67 for pain and suffering. Where that movements which the worker chooses to make and cannot help making, cause pain, compensation is properly payable under s 67 for pain and suffering rather than under s 66 for impairment. At all events, compensation shall not be awarded twice for what is in substance the same pain and suffering.”

(xiii)   The ‘WorkCover Guides for the Evaluation of Permanent Impairment’ dated 27 October 2006 provide the criteria for evaluating the Applicant’s WPI in relation to the psychological injury under Chapter 11 as follows:

§Table 11.1 assesses the Respondent Worker’s “Self Care and personal hygiene”

§Table 11.2 assesses the Respondent Worker’s “Social and recreational activities”

§Table 11.3 assesses the Respondent Worker’s “Travel”

§Table 11.4 assesses the Respondent Worker’s Social Functioning”

§Table 11.5 assesses the Respondent Worker’s “Concentration, persistence and pace”

§Table 11.6 assesses the Respondent Worker’s “Employability”

(xiv) The Arbitrator has erred in considering the Respondent Worker’s neglect of himself, inability to go outside, difficulties with his marriage, concentration deficits and lack of employment in awarding $40,000.00 for compensation for pain and suffering because these symptoms have already been compensated under section 66 and has awarded the Respondent Worker double compensation, contrary to the principles in Krivec.

1. In response, the Respondent Worker submits on appeal:

Ground (a):

(i) That he sustained injury in the form of Post-Traumatic Stress Disorder and Type 1 Diabetes Mellitus, as a result of the nature and conditions of his services as a Police officer up to 8 March 2003. The issues placed in dispute by the Appellant in its Reply were all directed to the quantum of his entitlements pursuant to section 66 and 67 of the 1988 Act.

(ii)     Dr Parsonage, Psychiatrist, issued a Medical Assessment Certificate on 30 January 2008.  His diagnosis Post-Traumatic Stress Disorder and associated Major Depressive Disorder, both of which are described as primary psychiatric disorders.  Dr Parsonage assessed a whole person impairment of 28%.

(iii)   Mr Snape was also referred to an Approved Medical Specialist, Dr John Garvey, a general surgeon.  His diagnosis was Type 1 Diabetes Mellitus.  He assessed a whole person impairment of 25%. Dr Garvey observed that the “acute onset of diabetes in November 2004 is related to the diagnosis of post traumatic stress disorder in 2003.”

(iv)   Dr Garvey’s opinion was consistent with the opinion expressed by Associate Professor John N Carter, consultant endocrinologist, qualified by Mr Snape, who recorded on 13 December 2006 that:

“I believe it would be reasonable to conclude that the stress (in the form of the PTSD) was a substantial contributing factor to the development of Mr Snape’s diabetic condition.”

(v)     Whilst causation is not in issue the medical histories demonstrate that the situation is atypical in that there is a primary psychological injury and a consequential physical injury.

(vi)   Legislature intention is found by examining the language of the legislation (see Higgins J in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (‘Amalgamated Society of Engineers’) and it is only necessary to report to the analysis expounded by the High Court in Project Blue Sky v ABA [998] 194 CLR 355 when the language of the statute is ambiguous. Further it is only necessary to categorise the legislation as beneficial when there is doubt as to the legislative intent (Bull v Attorney General (1913) 17 CLR 370 (‘Bull’)).

(vii) The language of section 67 is unequivocal and when sections 67 and 65A are read together the effect is:

§no section 66 compensation is payable in respect of secondary psychological conditions

§there is a 15% whole person impairment threshold in respect of an entitlement to section 66 compensation for a primary psychological condition

§where there is both a primary whole person impairment assessment of both a primary psychological condition and a physical condition the worker is only entitled to receive impairment compensation for the greater of the two assessments.

(viii) The prohibition under section 65A(4)(b) only relates to the aggregation of primary psychological and physical injuries in determining the whole person impairment. If it were to apply to section 67 “it would have used different phraseology in section 65A(4)(b) and the worker is entitled to pain and suffering compensation flowing from the physical injuries.

Grounds (b), (c), (d), (f) and (g)

(ix)   In assessing pain and suffering flowing from whole person impairment a broader approach, as adopted by the Arbitrator is necessary.

(x)     Pain and suffering cannot be limited by the assessment of criteria for the particular impairment under the WorkeCover Guides and the proper approach is to consider the pain and suffering resulting from the condition constituting the impairment rather than from the assessment by which it is quantified.

(xi)   It is erroneous to compare Mr Snape’s injuries with a quadriplegic because the class of persons to whom the category of “most extreme case” applies is more extensive.

(xii)     The effect of the injuries on the Worker is enormous and his pain and suffering is significant and there is no demonstrable error in the Arbitrator’s award or reasoning.

Ground (e)

(xiii)   The assessment of the Worker as relatively young was correct. He had a working life uninjured of approximately 20 years.

Ground (h)

(xiv)   The functional and social limitations are a “necessary ingredient” in the assessment of pain and suffering resulting from the psychological impairment and the evaluation criteria contained in Chapter 11, cannot of themselves constitute pain and suffering. It is the emotional response to those limitations, which must be assessed.

DISCUSSION AND FINDINGS

1. The Respondent Worker submits this was an atypical application. It involved whole person impairment findings for both physical and psychological injuries, both of which exceeded the threshold requirements for compensation under section 67.

1. Pursuant to section 65A(4) the Worker elected to receive compensation in respect of the primary psychological condition, as this resulted in a greater amount of compensation being payable to him than had he elected to receive compensation for the physical injury (diabetes mellitus). The issue on appeal is whether the Arbitrator was correct in finding that for the purposes of assessing the Worker’s entitlement to compensation for pain and suffering, he was entitled to take into consideration the effects of both the physical and psychological conditions.

1. The Appellant Employer argues that the Arbitrator was in error by finding that the Respondent Worker was entitled to compensation for pain and suffering for both the physical and psychological injuries. Due to the operation of section 65A of the 1987 Act, the Appellant employer submits that the Worker is only to be compensated in respect of either the physical or psychological injury. The Appellant Employer argues that this is so, even though in Mr Snape’s submission section 65A(4) draws a distinction between “impairment” and “compensation”.

1. Before the Arbitrator, Counsel for the Appellant Employer drew attention to the provision of section 67(1), which provides that:

“a worker who receives an injury that results in a degree of permanent impairment of 10% or more, is entitled to receive from the Worker’s employer as compensation for pain and suffering resulting from the permanent impairment, an amount not exceeding $50,000.00.  Pain and suffering compensation is in addition to any other compensation under this Act.” (emphasis added)

1. The Arbitrator conceded that it was his initial interpretation that section 67 benefits would apply only to “the impairment”, that is, the effects of the psychological injury for which the Worker was to be compensated under section 66.

1. However, the Arbitrator was influenced by the inclusion of the word “impairment”, which is repeated twice in section 65A(4)(b), which reads:

“the Worker is entitled to receive compensation under this division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the Worker under this division (and is not entitled to receive compensation under this division for impairment resulting from any other injury.” (emphasis added)

1. The Arbitrator came to the view that the inclusion of the word “impairment” and its repetition in section 65A(4)(b) restricts the operation of the section to claims for impairment under section 66. The Arbitrator then cited Bull as authority for the proposition that in the case of beneficial legislation any ambiguity should be construed in the favour of the person upon whom the benefit is to be conferred.  He referred also to Widdup v Hamilton 2006 NSWWCCPD 258 at [40], where His Honour Justice Sheahan, quoted with approval, Fullager J in Wilson v Wilson Tile Works Pty Limited (1960) 104 CLR 328 at 335 to:

“The established principle that, where two constructions of a Workers Compensation Act are possible, that which is favourable to the Worker should be preferred.”

1. By citing these passages and the authorities for which they stand, I infer, although it is not expressly stated by the Arbitrator, that he relied upon them to construe provisions of section 65A(4)(b) beneficially. The Arbitrator stated at [20]:

“The restriction on the aggregation of the primary psychological injury and the physical injury are created by Section 65A(4) seems clearly in sub-paragraph (b) to be confined to impairment, that is entitlement to section 66. Although the sub-section does refer twice to “Compensation under this Division” in each instance the phrase “Compensation under this Division” is modified or qualified by the words “in respect of impairment…” (Section 65A(4) or the words “for impairment resulting…” (Section 65A(4)(b)). Thus Section 65A(4)(b) appears to me to be confined to the operation of section 66 and not Section 67 as there is no mention of pain and suffering or Section 67 in Section 65A(4)(b), nor does section 67(2) restrict the compensation for pain and suffering with compensation payable under Section 66 by the operation of section 65A(4).”

1. Accordingly, the Arbitrator found that the Worker was entitled to have the pain and suffering assessed under section 67 on the basis of the impairments found under both Medical Assessment Certificates of 30 January 2008, for psychological injury and physical impairments.

1. Mr Snape submits that consistent with the Arbitrator’s decision (at [20]), section 65A(4)(b) creates a prohibition on the aggregation of primary psychological and physical injuries for the purpose of determining whole person impairment only.

1. Mr Snape submits he is reinforced in this submission by the plain words of section 67, which he submits provides a distinction between compensation for impairment and compensation for pain and suffering. He submits “if the Parliament had intended section 65A(4)(b) to apply to section 67 compensation, it would have used different phraseology in section 65A(4)(b)”.

1. In my view, section 65A(4) is clear in its terms. It provides that:

“If a worker receives a primary psychological injury and physical injury, arising out of the same incident, the Worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries…”(emphasis added).

1. The reference to ‘This Division’ in section 65A(4) is a reference to Part 3 Division 4 of the 1987 Act, which includes section 67 ‘Compensation for pain and suffering’.

1. Section 65A(4)(b) then provides a mechanism for a worker to elect whether to receive compensation for physical injury or psychological injury, depending upon which injury results in the greater amount of compensation being payable. Section 65A(4)(b) is in these terms:

“the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury)”.(emphasis added).

1. “Compensation” is defined in section 4 of the 1998 Act to mean “compensation under the Workers Compensation Acts and includes any monetary benefits under those Acts” (emphasis added).

1. Section 67(7) is in these terms:

“(7) In this section:

‘pain and suffering’ means:

(a) actual pain, or

(b) distress or anxiety,

suffered or likely to be suffered by the injured worker, whether resulting from the permanent impairment concerned or from any necessary treatment.” (emphasis added)

1. Mr Snape cites Amalgamated Society of Engineers at 161:

“That intention has to be found by examination of the language used in the statue as a whole.  The question is, what does the language mean: and when we find what the language means in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient, in politic [sic impolitic] or improbable.”

1. The passage is cited to support the construction for which Mr Snape contends, namely, that the use of the words “impairment” and “compensation” in section 65A(4), when read with the provisions of section 67 indicate an intention in the legislation to limit the Respondent Worker to one lump sum of compensation in respect of impairment for one of his injuries (section 66 entitlements), but does not limit the compensation for pain and suffering to injuries, in respect of which, the particular impairment has been found.

1. I agree that the passage cited in Amalgamated Society of Engineers is instructive in terms of the approach to be taken, but it does not, in my view, support Mr Snape’s argument. On the contrary, the intention of the legislation is quite the opposite. Section 65A, as the heading suggests, is a special provision dealing with compensation for pain and suffering, both psychological and psychiatric injury. Section 65A(4) restricts compensation for those suffering primary psychological injury and a physical injury arising out of the same incident, as is the position with Mr Snape, from receiving compensation for both. The Worker is only entitled to receive compensation under the division in respect of impairment resulting from one or the other of those injuries. In this instance, relying on section 65A(4)(b), Mr Snape elected to receive compensation for impairment for psychological injury, it being the impairment resulting in the greatest amount of compensation payable to him. The words in section 65A(4) “under this division” are, in my opinion, deliberate and include compensation under section 67. I am reinforced in that view by the definition of “pain and suffering” in section 67, which is expressly limited to actual pain or distress and anxiety suffered, or likely to be suffered, by the injured worker whether resulting from the permanent impairment concerned or from any necessary treatment. In other words, in my view, the section, when read in conjunction with section 65A(4)(b), is intended to limit compensation for pain and suffering to losses arising from the permanent impairment for which the worker has elected to receive benefits.

1. Applying the principles for which Amalgamated Society of Engineers stands, and the language of the statute as a whole, I am of the view that the Arbitrator was in error in paragraph 20 in construing the relevant provisions to create liability for compensation under section 67 in respect of the impairments for both physical and psychological injury arising from the same incident. It follows that the Arbitrator’s decision in that respect must be revoked, and the matter re-determined.

RE-DETERMINATION

1. Having revoked the Arbitrator’s decision and upheld the appeal it is desirable, where appropriate, that a Presidential Member finally determine the matter (see Chubb Security Australia Pty Ltd v Trevarrow (2004) NSWCA 344). I have the transcript of submissions made at the arbitral hearing, and on appeal, and the evidence relied upon by the parties. No oral evidence was called at the hearing and the Worker’s credit is not in issue. In my view, it is appropriate that I re-determine the matter.

1. A useful summary of matters to be taken into account when assessing compensation under section 67 is set out in Tyler v Marsden Industries (2001) 22 NSWCCR 644 where Commissioner Wright said at [14]- [15]:

“14. There are a number of factors and principles to take into account in determining an appropriate amount under s 67-

·Pain and suffering awards under s 67, unlike the objective criteria in s 66 awards for physical loss and impairment, must take into consideration the actual individual experiences of the claimant, as to his or her past and future pain and suffering.

·The measure of the extreme case must be compared with the measure of a most extreme case and does not need to make a comparison with the most extreme case.

·The pain and suffering must result from the loss/impairment and not merely the injury (s 67(1A); Scrimshaw v SAR Wood Pty Ltd (1997) 14 NSWCCR 335).

·Pain may be compensated even if the extent of the loss and its effects are not assessable until a later date (Selimovic v Airfoil Registers Pty Ltd (1999) [1999] NSWCC 29; 18 NSWCCR 143).

·Pain and suffering is compensable from the date of the compensable injury and not merely from the date on which the loss/impairment is crystallised (Rico v Roads and Traffic Authority (1992) 8 NSWCCR 515; Corporate Ventures Pty Ltd v Borovac (1995) 12 NSWCCR 84; Bohanna & Appleton t/as Anscot Partnership v Bohanna (1996) NSWCCR 724).

·There is no necessary relationship between the impairment/loss and the intensity and duration of the pain and suffering. If an award is excessive upon a review of all the circumstances, an award may be overturned on the basis of falling outside the range of a sound discretionary judgment (Ainsworth Nominees Pty Ltd v Crouch (1995) 11 NSWCCR 640).

·The age of the claimant is relevant. In Regal Paints Pty Ltd v Wasson (1993) 9 NSWCCR 301, the Court of Appeal observed (Priestley JA at 306C) that the younger a person is at the time of injury (loss) the greater is the chance that the worker would get into an extreme case category, but each case has to be looked at on its own merits due to the potential for the same injury to affect different workers differently. The Court of Appeal reiterated in Ainsworth Nominees Pty Ltd v Crouch (Kirby A-CJ at 652F) that age was a relevant consideration because age at injury had implications for the expected duration of any pain and suffering.

·Distress caused by interference with social activities (Department of School Education v Boyd (1996) 13 NSWCCR 289) or by the effects of the compensable injury on a worker’s relationships including marriage (Pacific Dunlop Ltd v Krivec (1996) 13 NSWCCR 353) can be relevant.

·Objective factors may include the type of surgical procedures undergone, the nature of the convalescent process and any complications flowing there from, as well as the need for medication and difficulty with sleeping (Dubbo Base Hospital v Harvey (1996) 13 NSWCCR 545).

15. In most instances, the Court has the advantage of hearing from the claimant, and weighing the oral evidence with all its poignancy, emotion, levels of articulateness and other factors that will aid the court in its judgment. Claimants in their self-descriptions may be stoic, laconic, dismissive, histrionic, philosophical, lacking in insight or less than proficient in use of language. All these matters have to be taken into account in assessing the claimant and reaching conclusions about the impact of the loss.”

1. Mr Snape is 48 years of age.  He left school at the age of 16 and began an apprenticeship as a motor mechanic.  He worked as a mechanic for 13 years.  He began working for the New South Wales Police in 1989.  He was stationed in the Manning (Great Lakes area) for his entire career.  In about 1999 he was promoted to the rank of leading Senior Constable and became a field-training officer.  This role meant that he was continually working in the field, rather than performing station or custody duties. 

1. Prior to the onset of his condition, Mr Snape was previously physically active and engaged in normal social and recreational activities. He regularly cycled 30 km most days and enjoyed swimming.  He and his partner would go out with friends to the local club or to barbeques and he enjoyed riding a motorbike. Though he sometimes goes for a bicycle ride in the early morning to avoid being exposed to traffic, he has now stopped most of his social and recreational activities and spends most of his time at home.  He no longer uses his motorbike.  He has very few relationships with other people, and they are generally strained.  He is less tolerant of other people and his concentration is impaired.  He previously enjoyed reading, particularly biographies, but he can no longer concentrate long enough to read a book, and apart from skimming the local newspaper, he reads nothing.  He reports feelings of worthlessness and has had thoughts of suicide. 

1. Mr Snape was medically discharged from the Police Service in about March 2004 and has not worked since.  Mr Snape feels that he has become a burden to his wife and this has put extra strain on their relationship.  He reports suffering from intrusive thoughts, flashbacks, nightmares and impaired sleep.  He is constantly in a hyper vigilant state.  He is anxious about car travel and generally he will not drive, unless it is necessary.  Mr Snape reports a loss of libido.  He takes medication as required.

1. Taking all of these matters into account, and noting his life expectancy of 38 years, it appears to me that an award of 65% of a most extreme case, that is $32,500.00, is appropriate to compensate Mr Snape for pain and suffering arising from his psychiatric disorder.

DECISION

1. Paragraphs (1) and (3) of the Arbitrator’s determination of 28 April 2008 are confirmed.

1. Paragraph (2) of the Arbitrator’s determination is revoked and the following order is substituted.

‘The Respondent is to pay the Applicant the sum of $32,500.00, pursuant to section 67 of the Workers Compensation Act 1987.’

COSTS

1. I make no order as to the costs of this appeal.

Judge Greg Keating

President

22 August 2008

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE