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

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Slater v State of New South Wales (NSW Police Force) [2025] NSWPIC 379
APPLICANT:	Nicholas Slater
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Karen Garner
DATE OF DECISION:	6 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for permanent impairment lump sum compensation pursuant to section 66 of the 1987 Act; whether applicant sustained injury to his cervical spine arising out of his employment with the respondent pursuant to sections 4(a) and 9A of the 1987 Act; whether applicant sustained injury to his lumbar spine and left knee as a result of the nature and conditions of his employment being an acceleration, exacerbation and deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to section 4(b)(ii) of the 1987 Act; whether applicant’s claims for compensation is precluded by operation of section 254 or section 261 of the 1998 Act; Held – applicant sustained injury to his cervical spine pursuant to sections 4(a) and 9A of the 1987 Act; applicant sustained injury to his lumbar spine and left knee pursuant to section 4(b)(ii) of the 1987 Act; applicant’s claims for compensation is not precluded by operation of section 254 or section 261 of the 1998 Act; matter remitted to the President to be referred to a Medical Assessor for assessment of whole person impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury to his cervical spine, with a date of injury of 16 September 2015, arising out of his employment with the respondent pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) to which his employment was a substantial contributing factor pursuant to s 9A of the 1987 Act. 2. The applicant sustained injury to his lumbar spine as a result of the nature and conditions of his employment, with a deemed date of injury of 13 August 2024, being an acceleration, exacerbation and deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act. 3. The applicant sustained injury to his left knee as a result of the nature and conditions of his employment, with a deemed date of injury of 13 August 2024, being an acceleration, exacerbation and deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act. 4. The applicant’s claim for compensation in respect of each of the injuries is not precluded by operation of s 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). 5. The applicant’s claim for compensation in respect of each of the injuries is not precluded by operation of s 261 of the 1998 Act. The Commission orders: 6. The matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows: Date of injury: 16 September 2015. Body parts: cervical spine. Method: whole person impairment. Date of injury: 13 August 2024 (deemed). Body parts: lumbar spine and left knee. Method: whole person impairment. 7. The materials to be referred to the Medical Assessor are to include: (a) the Application to Resolve a Dispute and all attachments, and (b) the Reply and all attachments. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Nicholas Slater (the applicant) is 33 years old. The applicant was employed by the State of New South Wales (NSW Police Force) (the respondent) as a member of the NSW Police Force since he was attested on 13 December 2013.
By Complying Agreement dated 31 October 2023, the respondent’s insurer (the insurer) agreed to pay the applicant compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 6% whole person impairment (WPI) for injury to the applicant’s left knee and ankle with a date of injury of 19 October 2022, (pursuant to a report of Dr James Bodel dated 17 October 2023).
By letter dated 6 August 2024, the applicant’s solicitor notified the respondent’s insurer (the insurer) of a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the amount of $6,875 in respect of 5% WPI for injury to the applicant’s cervical spine (being flexion/extension injury of the cervical spine, aggravation, acceleration, exacerbation or deterioration of degenerative disease of the C4/5 and C5/6, sustained in a motor vehicle collision) with a date of injury of 2016.
By letter dated 13 August 2024, the applicant’s solicitor notified the insurer of a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act in the amount of $9,968.75 in respect of 4% WPI for injury to the applicant’s right shoulder (while doing push-ups and burpee exercises during OSG physical training), with a date of injury of 27 November 2018.
By letter dated 13 August 2024, the applicant’s solicitor notified the insurer of a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act in the amount of $5,500 in respect of 7% WPI (inclusive of a 5% uplift for the lumbar spine) for injury to the applicant’s lumbar spine (being aggravation, acceleration, exacerbation or deterioration of degenerative disease) and left knee (being patellofemoral arthritis) as a result of the nature and conditions of the applicant’s employment. The letter stated that the deemed date of injury was the date of that letter, being 13 August 2024.
By notice dated 12 December 2024 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the insurer disputed the applicant’s entitlement to compensation in respect of his lumbar spine and left knee on the grounds that it disputed that there was compliance with ss 4, 9A, 4(b) and 66(1) of the 1987 Act and ss 254 and 261 of the 1998 Act.
By Complying Agreement dated 13 December 2024, the insurer (agreed to pay the applicant compensation pursuant to s 66 of the 1987 Act in respect of 1% WPI for scarring with a date of injury of 3 October 2020 and 17 March 2022).
By notice dated 10 January 2025 issued pursuant to s 78 of the 1998 Act, the insurer disputed the applicant’s entitlement to compensation in respect of his cervical spine on the grounds that it disputed that there was compliance with ss 4, 9A, 4(b) and 66(1) of the 1987 Act and ss 254 and 261 of the 1998 Act.
By notice dated 10 January 2025 issued pursuant to s 78 of the 1998 Act, the insurer disputed the applicant’s entitlement to compensation in respect of his right shoulder on the grounds that it disputed that there was compliance with ss 4, 9A, 4(b) and 66(1) of the 1987 Act.
By notice dated 14 May 2025 issued pursuant to s 78 of the 1998 Act, the insurer disputed the applicant’s entitlement to compensation in respect of his right shoulder on the grounds that it disputed that there was compliance with ss 4, 9A, 4(b) and 66(1) of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The applicant initiated proceedings in the Personal Injury Commission (Commission) by an Application to Resolve a Dispute (ARD) lodged on 9 May 2025, which claimed permanent impairment compensation pursuant to s 66 of the 1987 Act, being:
(a)    5% WPI totalling $6,875 in respect of injury to the applicant’s cervical spine, with a date of injury of 16 September 2015;
(b)    4% WPI totalling $5,500 in respect of injury to the applicant’s right upper extremity (shoulder), with a date of injury of 27 November 2018, and
(c)    7% WPI totalling $9,968.75 in respect of injury to the applicant’s lumbar spine and left lower extremity (knee) with a deemed date of injury of 13 August 2024.
The respondent lodged a Reply to the ARD (Reply) on 2 June 2025.
At a hearing before me on 24 July 2025, the applicant was represented by Mr James McEnaney of counsel, instructed by Ms Melissa Arndell of Bourke Legal Lawyers. The respondent was represented by Mr John Gaitanis of counsel, instructed by Mr Anthony Pryor of Gair Legal Lawyers.
At the hearing, Mr McEnaney advised that the applicant withdrew and did not press any claim in respect of injury to the applicant’s right shoulder with a date of injury of 27 November 2018.
The parties proceeded on the basis that the claim pressed in relation to the cervical spine injury was a frank injury sustained on 16 September 2015, noting that there appears to have been some confusion and error at times as to whether the injury was alleged to have occurred in 2015 or 2016. I note that there is some inconsistency in the evidence in relation to whether it occurred in 2015 or 2016, which may be attributed to such an error in that regard.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained injury to his cervical spine, with a date of injury of 16 September 2015, arising out of his employment with the respondent pursuant to s 4(a) of the 1987 Act to which his employment was a substantial contributing factor pursuant to s 9A of the 1987 Act;
(b) whether the applicant sustained injury to his lumbar spine as a result of the nature and conditions of his employment, with a deemed date of injury of 13 August 2024, being an aggravation, acceleration, exacerbation or deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act;
(c) whether the applicant sustained injury to his left knee as a result of the nature and conditions of his employment, with a deemed date of injury of 13 August 2024, being an aggravation, acceleration, exacerbation or deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act;
(d) whether the applicant’s claim for compensation in respect of any of the injuries should be precluded by operation of s 254 of the 1998 Act;
(e) whether the applicant’s claim for compensation in respect of any of the injuries should be precluded by operation of s 261 of the 1998 Act, and
(f) the extent and quantification of the applicant’s entitlement to payment of permanent impairment compensation pursuant to s 66 of the 1987 Act.

EVIDENCE

Oral evidence

No party applied to adduce oral evidence nor to cross-examine any witness.

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents, and
(b) the Reply and attached documents.

Lay evidence

The applicant

By a statement dated 1 May 2025, the applicant stated:
(a)    the applicant was attested as a police officer with the respondent on 13 December 2013 and ultimately achieved the rank of Sergeant. During his employment as a police officer, he worked in general duties and was also a member of the physically arduous Operations Support Group (OSG) for seven years between 2017 and 2023;
(b)    5 May 2023 was the applicant’s last day of work;
(c)    on 14 October 2024, the applicant was medically discharged on account of post-traumatic stress disorder, caused by violent, stressful and traumatic incidents that the applicant was exposed to during the course of his employment as a police officer;
(d)    in relation to the cervical spine injury:
(i)the applicant sustained injury to his cervical spine on 16 September 2015 when he was attempting to exit a police vehicle and, as he was still in his seat with his left foot out of the door, another vehicle reversed suddenly, ramming backwards into the police vehicle. Consequently, the applicant was thrown violently backwards, causing his neck to hyperextend when it contacted forcibly with the passenger headrest and the doorframe of the vehicle. The applicant did not immediately experience any pain straight after the incident, however over the next 24 hours, he developed pain in his neck which radiated into the tops of his shoulders;
(ii)shortly afterwards at the scene, the applicant’s supervisor, Acting Sergeant Craig Jory, told the applicant “You should report any injuries”, however the applicant never reported the injury because the applicant felt weak and ‘soft’ if he did, and he wanted to be brave around the other police officers;
(iii)in July 2019, the applicant’s wife took him to Dr Ian Edwards, chiropractor, regarding the applicant’s complaints of ongoing pain in his cervical spine;
(iv)in 2019, the applicant also sought treatment from Sportspoint Physiotherapy when his cervical spine pain flared up temporarily following a gym session;
(v)the applicant experiences ongoing cervical spine pain, stiffness and restriction of movement;
(e)    in relation to the lumbar spine injury and left knee injury:
(i)the applicant progressively sustained injury to his lumbar spine and left knee arising out of heavy and repetitive duties as a police officer between 13 December 2013 and 5 May 2023;
(ii)during active duty over the course of his employment, the applicant was involved in hundreds of arrests, many of which involved aggressive and violent perpetrators and the applicant was required to become physically involved through chasing, restraint, wresting, fighting and trying to avoid being struck; the applicant was frequently involved in rolling, wrestling, bending, twisting, lifting, holding, falling and being engaged in high impact events; the applicant frequently fell into things, onto things, over things and through things; was knocked over and fell over;
(iii)also during active duty over the course of his employment, the applicant was required to assist to lift persons out of motor vehicles, and help to carry persons, bodies and objects up and down steep embankments, slopes, stairs, narrow and tight spaces and was forced into awkward and twisting positions;
(iv)during training programs and Defensive Tactics training exercises where, the applicant was required to play the role of both “attacker” and “victim” in exercises which involved him tackling, being tackled, dragging, being dragged, leg-sweeping, being leg-swept, head-locking, being head-locked, and so on;
(v)the applicant was required to wear a 9kg appointments belt with various appointments attached, which was not only heavy to wear, but also was uncomfortable and required his body to be in a twisted position when sitting in a police car;
(vi)as a member of the OSG, the applicant was also required to wear heavy ballistic vests and helmets and carry 20kg of heavy shields, kit backs and other items during training and real-life situations. The vest frequently caught on the seat belt when the applicant was quickly exiting police vehicles;
(vii)as a result of these activities, the applicant frequently: forcefully banged various body parts including his back, head and knees; carried heavy objects; and was forced to twist his body;
(viii)on numerous occasions, the applicant fell directly onto his kneecap with great force, causing significant and ongoing pain;
(ix)the applicant also “ground” each of his knees onto the roadway or footpath or hard ground when kneeling on one leg and using the other to restrain a violent offender, using one of his knees to “hold the ground” and the other to hold the offender, and that process caused the same sort of pain as a direct blow to the kneecap when falling onto a hard surface;
(x)the applicant began to notice lumbar spine pain within the first three years of commencing general duties, he then felt back pain on a regular basis particularly when he was driving and when wearing his appointments belt and vest;
(xi)the applicant just accepted the back pain and felt that it was not something that was worth reporting;
(xii)the applicant did not lodge incident reports on all occasions as the expectations of reporting incidents was not always encouraged or supported early in his career;
(xiii)the applicant experiences ongoing lumbar spine and left knee pain, stiffness and restriction of movement and clicking and crunching in his left knee;
(xiv)the applicant had two prior, injuries to his left knee: a non-work related injury that required an Anterior Cruciate Ligament (ACLl) reconstruction in 2008; and a work-related injury to his Medial Collateral Ligament (MCL) on 19 October 2022. In October 2023, the applicant resolved a claim for permanent impairment compensation in relation to the left knee MCL injury. The symptoms arising from both of those injuries have now largely resolved and are not related to his ongoing left knee pain and symptoms;
(f)    the applicant was fit prior to his employment with the respondent and he has not sustained any injury to his cervical spine nor lumbar spine outside of his employment with the respondent;
(g)    the applicant found his assessment by Dr Geoffrey Miller to be more thorough than the assessment by Dr Anthony Smith;
(h) the applicant did not understand that he was required to give notice of his cervical spine, lumbar spine and left knee injuries within relevant legislative timeframes. Prior to reading the s 78 notice, the applicant had never heard of ss 254 and 261 of the 1998 Act;
(i)    the applicant admits that he made a mistake and may have been ignorant by not reporting his cervical spine, lumbar spine and left knee injuries earlier but he was “just trying to get on with things”, and
(j)    there is stigma for reporting injuries in the NSW Police Force, and he didn’t want to appear “weak” nor that he couldn’t look out for his colleagues. The applicant tried to just focus on his job and self-manage his physical symptoms because he did not believe that seeking medical treatment would resolve those symptoms and that they might resolve once he left the respondent. In addition, his symptoms of post-traumatic stress disorder became severe towards the final years of his policing career and his focus became seeking treatment for those symptoms.

Alyssia Slater, the applicant’s wife and senior constable with the NSW Police Force

By a statement dated 13 March 2025, Ms Slater stated:
(a)    in or about 2017 or 2018, the applicant told Ms Slater that he sustained an injury to his neck in 2015 when he was involved in a motor vehicle incident at work;
(b)    since she has known the applicant, he has regularly complained about issues with his neck and his back;
(c)    the applicant regularly complained that certain work duties would aggravate his lower back, particularly wearing the full appointment belt;
(d)    despite her encouragement, the applicant was hesitant to seek medical treatment for his injuries and expressed the opinion that it would not assist;
(e)    the applicant sought treatment for his neck from a chiropractor with Unwind Health in about mid-2017 and from a physiotherapist at Sportspoint Physiotherapy in about 2019;
(f)    the applicant continues to have difficulty with various activities and expresses ongoing pain and symptoms in his neck, back and right knee and she hears his left knee clicking and crunching when he moves;
(g)    the applicant’s psychological health has been his focus and priority for a long time and he was formally diagnosed with post-traumatic stress disorder in 2023, and
(h)    the applicant complained to her regarding Dr Smith’s assessment of his injuries.

Peter Gibson, previously sergeant employed by the NSW Police Force

By a statement dated 18 March 2025, Mr Gibson stated:
(a) Mr Gibson was the applicant’s supervising sergeant on 27 November 2017 when the applicant was undertaking OSG physical training during a working shift, and
(b) upon his return from the training, the applicant stated to Mr Gibson words to the effect: “I stuffed my right shoulder in that training”. A P902 Incident Notification Form was completed by the applicant in relation to that incident.

Craig Jory, previously senior constable employed by the NSW Police Force

By a statement dated 29 April 2025, Mr Jory stated:
(a) on 16 September 2015, upon attending the scene of a motor vehicle accident in which the applicant had been involved, Mr Jory told the applicant and his colleague words to the effect: “If anyone is injured, make sure you report it”. On some date following the accident, the applicant said to Mr Jory words to the effect: “My neck is sore from that crash”. Subsquently when they were off duty at a local gym, the applicant said to Mr Jory words to the effect: “My neck is stil sore”.

P902 Incident Reporting Form

A P902 Incident Reporting Form dated 27 November 2028 recorded an incident on
27 November 2018 when his shoulder was injured whilst he was performing pushups and burpees during an agility test during OSG physical training.
A P902 Incident Reporting Form dated 21 October 2022 recorded an incident on
19 October 2022 when the applicant injured his left ankle and knee during a Tactical Operations Regional Support selection course.

Treating medical evidence

Imaging

On 24 October 2022, an MRI Left Knee was reported to show: ill-defined perillgamentous oedema associated with MCL predominantly over the anterior and proximal portion and mild thickening of meniscal femoral ligament of the deep component of the MCL, which suggested subacute grade 1-2 MCL sprain; previous ACL reconstruction surgery; grade 2 chondromalacia of the patellae; and small suprapatellar and semimembranosus-gastrocnemius bursal effusion.
On 26 May 2023, an MRI Left Knee was reported to show evidence of: a chronic sprain injury of the MCL with slight thickening/scarring proximally but intact; chronic vertical longitudinal tear of the peripheral rim of the medial meniscus posterior horn (chronic Ramp Type 1 lesion); ACL graft deficiency; and Incidental Grade III chondromalacia patellae.
On 11 April 2024, a CT Cervical Spine was reported to show no significant abnormality apart from: at C4-5, loss of disc height associated with a tiny focal central posterior disc protrusion not causing significant canal foraminal narrowing; at C5-6, loss of disc height associated with a broad-based posterior disc bulge with posterior endplate osteophytes causing very mild canal narrowing and tiny uncovertebral joint osteophytes extend into the right C6 exit foramen unlikely causing nerve root compression.

Clinical records of Sportspoint Physiotherapy

Clinical records of Sportspoint Physiotherapy relevantly recorded:
(a)    on 10 January 2019, the applicant attended and was diagnosed with “right low ex facet strain from return to gym”;
(b)    on 14 January 2019, the applicant reported a five-year history of “right neck pain with overhead work”. The applicant indicated that he attended for the reason that he was “Currently on holidays…” and that he was the patient type of “Private Patient” and not “Medicare (Under the EPC Scheme)”, and
(c)    the applicant attended in relation to his cervical spine on 27 February 2025 and was discharged.

Clinical records of Unwind Health

Clinical records of Unwind Health relevantly recorded:
(a) on 28 July 2017, the applicant completed a patient introduction form which stated that the applicant had intermittent pain and stiffness in his neck and shoulders on an ongoing basis for a number of years and that the applicant had a history of left knee reconstruction, and
(b) consultation records during August 2017 recorded that the applicant continued to have neck soreness.

Clinical records of Bridge Medical Centre

Clinical records of Bridge Medical Centre relevantly recorded:
(a)    on 22 October 2022 (and subsequently), the applicant consulted regarding a workers compensation claim regarding a work injury to his left knee and ankle when a tractor tyre landed on his leg during a police course. The applicant was referred for investigation and treatment;
(b)    various Certificates of Capacity recorded the applicant’s work capacity arising from injury to the left knee and left ankle on 19 October 2022;
(c)    on 2 November 2022, Dr Mark Pearce, orthopaedic surgeon, reported that the applicant sustained a valgus injury to the medial collateral ligament of his left knee in a work-related incident and the knee became painful and stiff. Dr Pearce noted that previously, the applicant’s left knee underwent a cruciate reconstruction and was functioning normally at the time of the recent injury.
Dr Pearce opined that the applicant had been appropriately treated in a knee brace and should remain off duties for at least another month;
(d)    Injury Management Plans set out a management plan in relation to the injury to the applicant’s left knee on 19 October 2022, and
(e)    a statement of the general duties of NSW Police General Duties Police Officers detailed the work description of officers holding the rank of Constable and Senior Constable and included tasks of first response/patrol duties, custody assist and station duties. The statement noted that officers performing patrol duties: may spend up to 11 hours of a 12-hour shift in a police vehicle, either performing driver duties or as a passenger; may be required to undertake the restraint and arrest of offenders and that they can encounter offenders who may be violent; and must have the physical capacity to restrain and arrest and that the use of appointments may be necessary. It noted that officers performing custody assist duties: are exposed to offenders that may be violent; and the need to restrain is possible. Further, it noted that officers must carry all appointments if uniformed and operational and may also wear a light armour vest.

Clinical records of Dr Mark Pearce, consultant orthopaedic surgeon

Clinical records of Dr Pearch relevantly recorded:
(a) Dr Mark Pearce reviewed the applicant and reported on the injury to the applicant’s left knee on 19 October 2022 and its management.

Independent medical evidence

Dr James Bodel, orthopaedic surgeon qualified by the applicant

In a report dated 17 October 2023, Dr Bodel:
(a)    recorded an occupational history, which included that: the applicant was a member of the NSW Police Force since he was attested on 13 December 2013; rose to the position of sergeant; and that the applicant ceased work in May 2023 with post-traumatic stress disorder;
(b)    recorded a history of injury to the applicant’s left knee and ankle when the applicant was undergoing tactical training on 19 October 2022;
(c)    recorded that a P902 form stated the mechanism of injury;
(d)    a past medical history which included a previous successful left knee ACL reconstruction performed in 2008 before the applicant joined the NSW Police Force;
(e)    recorded a sporting history which included playing rugby league, surfing and snowboarding;
(f)    recorded on examination that the applicant had: a mild left-sided limp; slight wasting of the left thigh and left calf; slight restriction of knee movement and ankle movement on the left; mild medial ligament laxity in the region of the left knee; slight weakness or resisted ankle dorsi flexion and eversion of the left ankle;
(g)    diagnosed a medial ligament strain to the left knee and a possible strain of the previous ACL reconstruction, which was caused by the training exercise event on 19 October 2022, and
(h)    recorded that the applicant was off work at that time primarily because of post-traumatic stress disorder, was “partially incapacitated because of the knee injury although I do note that the applicant did pass a ROSA and was able to return to operational duties for a few months before going off with the PTSD diagnosis… From the physical injury point of view, he has been cleared to return to operational policing duties but there are other issues which are preventing him from doing so”.
In a further report dated 17 October 2023, Dr Bodel stated that he assessed 6% total WPI for the left lower extremity, which was calculated on the basis of an assessment of 10% WPI for the left knee and 7% WPI for the left ankle.

Dr Geoffrey Miller, specialist surgeon qualified by the applicant

In a report dated 7 July 2024, Dr Miller:
(a)    recorded a background and occupational history, which included that: the applicant joined the NSW Police Force in May 2013; underwent training and then had several postings performing general duties; and the applicant was currently awaiting medical discharge for post-traumatic stress disorder;
(b)    recorded a past medical history which included a left knee ACL reconstruction at the age of 17;
(c)    recorded that inherent in the applicant’s work was: injuries he sustained during arrests which involved the apprehension of offenders, which often required violent contact, grappling, twisting, tackling and contact with the ground with various parts of the body; injuries to various parts of his body during vigorous defensive training during which he also sustained multiple; injuries he sustained carrying injured persons over rough an uneven terrain, up and down embankments and over soft and uneven surfaces; working in tight and confined spaces; being required to wear heavy utility belt (which contained his firearm, taser, pepper spray and baton) for long periods of time when he was on active duty, which twisted his body into awkward positions, particularly when sitting in a vehicle; being required to frequently wear a heavy tactical vest, which put strain on his neck and back and altered his posture;
(d)    recorded a history of injury to the applicant’s neck in 2016 when he was a passenger in a police car and, as he attempted to get out of the police car another vehicle reversed into the police car, which caused: the applicant to be thrown backwards; the applicant to make contact with the door frame and passenger seat; and the applicant’s neck to be hyperextended by the process of falling; immediately after the incident, the applicant had no pain but was “shaken”; over the next 24 hours, the applicant developed pain in the whole of his neck, which radiated into both trapezius and both scapular regions; the applicant saw his general practitioner and a chiropractor one or two times after the incident but did not take time off work; over the years, various work activities (listed in the preamble) aggravated his neck problem;
(e)    recorded that the applicant reported: pain in the right paravertebral region of his cervical spine which radiated into the right trapezius and right scapula and also restricted range of motion, which caused problems with various activities of daily living and he had given up various sporting and leisure activities;
(f)    on examination, recorded that the applicant: was tender over the right paravertebral region with muscle guarding, and was also tender over his right trapezius and right scapula; in regard to range of movement, flexion was reduced by half, extension was normal, rotation to the right was reduced by half and rotation to the left was reduced by one third;
(g)    referred to a CT Cervical Spine performed on 10 April 2024;
(h)    stated a diagnosis of flexion/extension injury to the applicant’s cervical spine as a result of a motor vehicle accident in 2016, which aggravated degenerative change at C4/5 and C5/6, and also that the applicant developed an axial condition;
(i)    expressed the opinion that the applicant’s work as a NSW Police Officer was a substantial contributing factor to the problem, and
(j)    assessed the applicant as having a 6% total WPI in respect of his neck/cervical spine, which was calculated on the basis of DRE Cervical Category II equating to a 5% WPI of the neck/cervical spine, with loss of activities of daily living of 1%.
Dr Miller applied a one-tenth deduction due to pre-existing underlying constitutional change, giving a 5.4% WPI, rounded down to 5% for the cervical spine.
In a report dated 8 July 2024, Dr Miller:
(a)    recorded a background and occupational history, which included that: the applicant joined the NSW Police Force in May 2013; underwent training and then had several postings performing general duties; and the applicant was currently awaiting medical discharge for post-traumatic stress disorder;
(b)    recorded a past medical history which included a left knee ACL reconstruction at the age of 17;
(c)    recorded that inherent in the applicant’s work was: injuries he sustained during arrests which involved the apprehension of offenders, which often required violent contact, grappling, twisting, tackling and contact with the ground with various parts of the body; injuries to various parts of his body during vigorous defensive training during which he also sustained multiple; injuries he sustained carrying injured persons over rough an uneven terrain, up and down embankments and over soft and uneven surfaces; working in tight and confined spaces; being required to wear heavy utility belt (which contained his firearm, taser, pepper spray and baton) for long periods of time when he was on active duty, which twisted his body into awkward positions, particularly when sitting in a vehicle; being required to frequently wear a heavy tactical vest, which put strain on his neck and back and altered his posture;
(d)    recorded a history of injury to the applicant’s lumbar spine that: the applicant sustained multiple injuries to his back which arose cumulatively from a series of indivisible injuries or micro-trauma over many years of hard and heavy physical work as a Police Officer; included problems wearing a vest and sitting in motor vehicles and striking the ground and straining his back when involved in scuffles with offenders; and the applicant continued to work despite his back problems;
(e)    recorded that the applicant reported: constant pain in his lumbar region, which radiates into both buttocks; problems sitting for longer than 30 minutes and standing for periods of 30 minutes; which caused problems with various activities of daily living and he had given up various sporting and leisure activities;
(f)    on examination, recorded that the applicant: was tender over L3/4 with muscle guarding; had full range of movement; reflexes were decreased symmetrically in his lower limbs;
(g)    stated a diagnosis of: aggravated degenerative change in the applicant’s lumbar region, and also that the applicant developed an axial condition;
(h)    expressed the opinion that the applicant’s work as a NSW Police Officer was a substantial contributing factor to applicant’s lumbar spine problem;
(i)    assessed the applicant as having: 5% WPI of the lumbar spine calculated on the basis of a DRE Lumbar Category II; Dr Miller applied a one-tenth deduction due to pre-existing underlying constitutional change, giving a 4.5% WPI, rounded down up to 5% for the lumbar spine.
(j)    recorded a history of injury to the applicant’s left knee that the applicant: developed pain in the left patellofemoral region as a result of multiple falls on his left knee, being direct trauma to the patella femoral region;
(k)    recorded that the applicant reported: left knee pain, which rendered him unable to kneel on his left knee; and his left knee “crunches” when he moves it;
(l)    on examination, recorded that the applicant: was tender over the left patella femoral region; there was marked crepitus when his knee was moved; and he had full range of motion;
(m)     stated a diagnosis of: patella femoral arthritis of the left knee;
(n)    expressed the opinion that the applicant’s work as a NSW Police Officer was a substantial contributing factor to the applicant’s left knee condition, and
(o)    assessed the applicant as having: 2% WPI for arthritis of the left knee; Dr Miller applied a one-tenth deduction due to pre-existing underlying constitutional change, giving a 1.8% WPI, rounded down up to 2% for the left knee.

Dr Anthony Smith, orthopaedic surgeon, independent medical examiner qualified by the respondent

In a report dated 30 October 2024, Dr Smith:
(a)    recorded a detailed history of injury, which included: a number of physical injuries during the course of the applicant’s employment caused by often violent contact between the applicant and offenders; difficulty with a heavy utility belt; wearing a heavy tactical vest and also injury whilst undertaking training;
(b)    recorded a history of injury to the applicant’s left knee when the applicant was undergoing tactical training on 19 October 2022;
(c)    recorded that the applicant reported that his left knee was painful and crunches from time to time;
(d)    noted that he considered images of an MRI Left Knee from 24 October 2022 and a report of an MRI Left Knee from 26 May 2023;
(e)    on examination, reported that the applicant had: normal cervical lordosis; neck movements were 90% of the expected range in all directions; there was no neurological deficit in either upper limb; normal lumbar lordosis and movement; both knees had no hypertension, flexed to 130 degrees and were stable; both knees had some crepitus that is patellofemoral;
(f)    stated a diagnosis of bilateral knee joint osteoarthritis, noting that both knees were very similar clinically, also noting noting that the MRI of the left knee demonstrated triple compartment osteoarthritis, with no particular injury to the right knee, apart from scarring;
(g)    stated that knee joint arthritis is seen in 20% of the population of Caucasian origin and is inherited and unrelated to employment; accidents and injuries can cause post-traumatic arthritis, which can cause one knee to be dramatically more severely affected than the other, which is not the case in respect of the applicant; there appeared to be no relationship between the applicant’s knee reconstruction when he was aged 17 and the clinical condition now affecting both his knees; Mr Smith expected that the same changes would be seen on both knees;
(h)    stated a diagnosis of lumbar degenerative disease, noting that the incidence of that pathology in the applicant’s age group is over 80%;
(i)    expressed the opinion that, having regard to the nature and conditions of the applicant’s employment, the applicant could have sustained sprains/strains/aggravations to his knee joint osteoarthritis on either side during the course of his employment, which includes a lot of physical activities;
(j)    expressed the opinion that any aggravations/sprains/strains to the applicant’s lumbar spine and/or the knee joints would resolve after a period of days, weeks, or three months at the most, with or without treatment;
(k)    assessed the applicant as having no assessable impairment of either knee, and
(l)    assessed the applicant as having 0% WPI of the lumbar spine and cervical spine.
In a report dated 25 February 2025, Dr Smith:
(a)    stated that the diagnosis regarding the cervical spine is symptomatic cervical degenerative disease, there was no dysmetria and there was no assessable impairment regarding the cervical spine as at 10 August 2024;
(b)    in relation to the applicant’s cervical spine, stated that the incidence of spinal degenerative disease at the age of 25 years (as the applicant was in 2016), is 57%;
(c)    stated that the applicant could have aggravated his cervical spine degenerative disease, or had a soft tissue sprain to the lamentous structures and muscles around the cervical spine, under the circumstances of the motor vehicle accident in 2026, which would have recovered after less than month;
(d)    the CAT scan of the cervical spine in April 2024 did not describe any post-traumatic lesion of the cervical spine, and
(e)    assessed the applicant as having 0% WPI of the cervical spine.

SUBMISSIONS

Both counsel made oral submissions which were recorded. Both counsel referred to various legal authorities and evidence.
As noted above, the parties proceeded on the basis that the claim pressed in relation to the cervical spine injury was a frank injury sustained on 16 September 2015, noting that there appears to have been some confusion and error at times as to whether the injury was alleged to have occurred in 2015 or 2016. I note that there is some inconsistency in the evidence in relation to whether it occurred in 2015 or 2016, which may be attributed to such an error in that regard.
In summary, on behalf of the applicant, Mr McEnaney:
(a) in relation to the claimed neck injury, submitted that: the consistent and undisputed evidence of the nature of the incident on 16 September 2015 and the applicant’s subsequent neck symptoms are precisely consistent with a mechanism of a whiplash injury sustained in that incident; the Commission should prefer and accept the opinion of Dr Miller; having regard to the evidence, the Commission should be satisfied that the applicant did give oral notice of the neck injury which was sufficient for the purposes of s 254(1) of the 1998 Act and, in the alternative, special circumstances exist pursuant to ss 254(3)(b) and (c) of the 1998 Act; the provisions of s 261(4)(b) of the 1998 Act are satisfied because the cervical spine injury resulted in the serious and permanent disablement of the applicant and his failure to make a claim within the period required was occasioned by ignorance, mistake or other reasonable cause; in particular, the applicant did not take time off work nor give notice of injury nor make a claim because he was stoic and did not want to appear “soft” at a relatively early stage of his policing career, he was ignorant of the requirement to take action within a specific time frame, his symptoms of post-traumatic stress disorder were a focus and priority and he thought his cervical spine symptoms would resolve in time once he ceased active policing duty, and
(b) in relation to the claimed lumbar spine and left knee injury, submitted that: the consistent and undisputed evidence of the nature and conditions of the applicant’s employment and the applicant’s subsequent symptoms and pathology are consistent with the mechanism of disease injuries to the applicant’s lumbar spine and left knee sustained through numerous physical traumas in the course of the applicant’s training and active policing duties; the Commission should prefer and accept the opinion of Dr Miller; notice of the injuries was given when the claim for permanent impairment compensation was made on 13 August 2024; pursuant to s 16 of the 1987 Act, the injuries were deemed to occur when the claim for compensation was made on 13 August 2024, supported by the report of Dr Miller; on that basis, ss 254 and 261 of the 1998 Act do not preclude the award of compensation in relation to those injuries; in the alternative, the provisions of s 261(4)(b) of the 1998 Act are satisfied because the lumbar spine and left knee injuries resulted in the serious and permanent disablement of the applicant and his failure to make a claim within the period required was occasioned by ignorance, mistake or other reasonable cause.
In summary, on behalf of the respondent, Mr Gaitanis:
(a) submitted that the Commission should find that ss 254 and 261 operate to preclude the award of compensation on the basis that the exemptions to those provisions have no application;
(b)    challenged the credibility of the applicant’s evidence; submitted that the Commission should not accept the applicant’s evidence that he lacked knowledge of the requirement to give notice of injury and make a claim for compensation in a timely manner and that the culture of NSW Police Force and his psychological symptoms precluded him from doing so, because the applicant is an experienced police office and did lodge P902 forms and a claim for workers compensation on some occasions;
(c)    submitted that there is insufficient evidence for the Commission to make a finding that the applicant sustained serious disablement; Mr Jory’s evidence indicates that the applicant was made aware of the requirement for him to report injury; the Commission should also exercise caution regarding the evidence of Mr Jory to the extent that it relates to the applicant reporting a neck injury because it is unclear from his evidence when the applicant reported that he had a sore neck from the motor vehicle accident and in any event it suggests that the applicant was still doing gym work at that time; further, the Commission can infer, from the fact that the applicant did not lodge a P902 form after being instructed to do so by Mr Jory, that the applicant did not sustain any injury;
(d)    having regard to the decision of Haddad v The CEO Group Australia Pty Ltd, [1] the deemed date of injury in respect of the applicant’s lumbar spine and left knee would be the date of the first incapacity;
(e)    submitted that the claimed injuries are not supported by the treating medical evidence as there is no contemporaneous medical evidence of the applicant sustaining injury through a work-related motor vehicle accident nor as a result of the nature and conditions of his employment nor seeking early treatment for such injuries;
(f)    submitted that treating medical evidence supports an alternative cause of injury, such as injury to the applicant’s left knee as a result of a football accident in 2008, neck injury as a result of overhead work and injury to the applicant’s neck and shoulders as a result of exercise including gym;
(g)    submitted that the Commission should find that it is implausible that the applicant sustained injury through wearing the appointments belt because it is clear from the evidence that the applicant was a person of some vigor with an active sporting history, which including attending the gym;
(h)    the Commission should give little weight to the evidence of the applicant’s wife because she could not be regarded as impartial;
(i)    submitted that the Commission should prefer and accept the evidence of
Dr Anthony Smith, and
(j)    submitted that, having regard to the evidence, the Commission should find that the applicant’s injuries were not caused by the applicant’s work, but rather were constitutional and also a result of his active sporting lifestyle.
[1] [2024] NSWCA 135 (Haddad).
In reply, on behalf of the applicant, Mr McEnaney:
(a)     submitted that in the circumstances the Commission should not make any adverse finding regarding the applicant’s credit, noting that the applicant was not cross-examined and that he was an attested police officer and there is no suggestion that he is a dishonest person;
(b)    submitted that it a speculative theory, and not supported by evidence, that the applicant sustained injuries as a result of his active sporting history rather than as a result of his employment with the respondent;
(c)    submitted that the evidence as a whole supports finding that the applicant sustained the claimed injuries, and
(d) further, the evidence supports a finding that the provisions of ss 254 and 261 do not operate to preclude the applicant’s entitlement to compensation.

THE LAW

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer.
The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9A of the 1987 Act states:
“(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)    The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
In AV v AW,[2] Snell DP considered the expression, “main contributing factor” in s 4(b)(ii) and observed:
“The following may be taken from the above:
(a)The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[2] [2020] NSWWCCPD 9.
The expression, “aggravation, acceleration, exacerbation or deterioration” of a disease for the purposes of s 4(b)(ii) of the 1987 Act was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch[3] (Semlitch):
“The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.”[4]
[3] [1964] HCA 34; 110 CLR 626.
[4] Semlitch, 640.
Justice Kitto in the same case found:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’. Accordingly if salt be applied to an open wound, making the would no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.”[5]
[5] Semlitch, at 635.
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[6] (Kooragang), where Kirby J stated:
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[7]
[6] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[7] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated at [463] – [464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Although the High Court in Comcare v Martin[8] raised some concerns about the commonsense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the commonsense approach still has place in the application of the legislation to the present case.
[8] [2016] HCA 43, [42].
Principles regarding the discharge of the onus of proof were considered by President Keating in Department of Education & Training v Ireland[9] (Ireland). In order for the applicant to discharge the onus that he sustained the alleged injury, I “must feel an actual persuasion of the existence of that fact”.
[9] [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
Section 16 of the 1987 Act relevantly provides:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a)the injury shall, for the purposes of this Act, be deemed to have happened—
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
…
(4) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.”
…”
In Inghams Enterprises Pty Ltd v Thoroughgood,[10] Basten JA stated (in relation to s 16(1) of the 1987 Act, which is similar to s 15(1) of the 1987 Act in material terms):[11]
[10] [2014] NSWCA 166 (Thoroughgood).
[11] Thoroughgood, [46] – [51].
“46.   … the authorities do not stand for the proposition that ‘the incapacity’ referred to in s 16(1)(a) is one which gives rise to an entitlement to weekly compensation payments: rather, the authorities stand for the proposition that the existence of an incapacity must depend upon an entitlement to compensation, being an entitlement of the kind the subject of a claim, that is, one encompassing economic loss.
47.    The basis on which the Deputy President rejected the finding of the arbitrator appears to have been encapsulated in the following passages:
‘69 As Mr Thoroughgood has not claimed weekly compensation, I infer that, like Mr Stone, he could not do so because he had no entitlement to that compensation, presumably because he suffered no economic loss as a result of his aggravation injury.
...
73 Just as no claim for weekly compensation was made in Stone, Mr Thoroughgood made no such claim. It follows that the incapacity found by the Arbitrator could not support a deemed date of injury of 10 October 2006 ....’
48. If those passages imply that "incapacity" in s 16(1)(a) is only satisfied where there was a claim, or at least a proven entitlement to claim, weekly compensation, that arguably involves a misreading of the authorities. It ignores the statement of Hodgson JA in Stone that this reasoning applies "if the claim under consideration is for weekly compensation based on incapacity". If the claim is for another form of compensation, as the Deputy President correctly stated at [64], in the context set out at [42] above, ‘the relevant deemed date of injury was... the date of the incapacity for which compensation was claimed or entitled to be claimed.’
49.    To the extent that incapacity must be reflected in an entitlement to claim for economic loss, the conclusion that incapacity was not established appears to be inconsistent with the Deputy President's later conclusion that the claimant had an entitlement to claim (and did claim) compensation for therapeutic treatment. That depended upon there being an injury causing incapacity leading to economic loss. The injury complained of caused a relevant incapacity identified as the swelling, veins popping and pain in the legs. There may have been an issue as to whether that claim gave rise to a deemed date of injury as at 8 or 12 September, rather than 10 October (a point relied on by the respondent), in which case it would have been necessary to make a relatively minor amendment to the application in the Commission, but almost certainly one which could have caused no prejudice to the applicant.
50. On the other hand, the conclusion that incapacity was not established could have reflected the proposition that the claim for a lump sum for permanent impairment under s 66 was not in relation to the same incapacity as that for which the claim for medical or related treatment was made under s 60. However, that was not a point relied by the Deputy President; further, it would appear to be inconsistent with the need to establish the date of injury for the purpose of s 261(1) of the Workplace Injury Act, which is not dependent on the particular compensation claimed.
51. In relation to the concession that the claimant needed to establish ‘incapacity’, there was ambiguity as to the nature of the incapacity relied upon. In order to succeed against Inghams the worker had to establish that it was Inghams who last employed him in employment that substantially contributed to the aggravation of the condition for which he sought compensation under s 66. It is unlikely that he was conceding a need to establish an entitlement to claim weekly compensation, as that was not part of his claim.”

In Haddad, Griffiths AJA said:[12]
[12] Haddad, [69] – [74], [80], [81], [105].
“69. Both Acts also recognise that some, but not all, work-related injuries may result in a worker being incapacitated for work. This applies to both frank injuries and disease injuries. In the case of injuries of the latter kind, s 15(1) provides two alternative limbs which operate to deem a point in time when this kind of injury is taken to have happened. Putting to one side the circumstance where the disease results in death, the determination of which limb in s 15(1) applies turns on whether or not the worker has an incapacity. That is a question of fact, to be determined by the relevant evidence.
70.    Nothing in the text of s 15(1) or, indeed, elsewhere in either Act, suggests that the deeming provision operates simply by reference to how the worker’s claim for compensation is formulated. The fact that it is a claim for compensation is a critical aspect of the second limb of the deeming provision in s 15(1)(a)(ii) because it constitutes the deemed date of injury where that limb applies. But the text of s 15(1) does not make the content of that claim determinative in selecting which of the two limbs applies.
71.    The text of s 15 should be read and understood with an appreciation of its raison d’être. It is necessary to have a provision which deems the date of injury where the injury is one of gradual process because of the intrinsic difficulties which would otherwise arise in identifying a finite and single point in time when such an injury happened given that the disease may not be static. Those difficulties are unlikely to arise when a worker suffers either a one-off frank injury or death. The timing of those events will ordinarily be readily ascertained.
72. In applying s 15 it may be accepted that there are multiple scenarios which reveal whether or not a particular worker may have an incapacity as defined in s 4(1) of the 1998 Act (see at [39] above and as applied and understood in the cases referred to below, particularly Thoroughgood) and may be entitled to make a claim for compensation arising from that incapacity. One scenario is where the worker makes a claim for compensation which in its terms asserts or depends upon incapacity, as was the case here with the appellant’s initial claim dated 19 January 2021, when he sought weekly payments of compensation on the basis of an incapacity which he claimed dated from 20 January 2017. Another possible scenario is where incapacity for work may be apparent from objective facts which are independent of any formal claim or entitlement to claim compensation, such as the worker’s unauthorised absence from work. In the circumstances here, merely because the claim was then reformulated so as to seek a benefit which does not depend upon incapacity does not mean that the previous evidence indicating that there may have been incapacity can be ignored.
73.    Another scenario, which is also reflected in the present case, is where the worker has made a claim for compensation under different legislation and it emerges either from that claim or in related proceedings that there is or was an incapacity.
74.    These scenarios are not exhaustive.
…
80.    As explained in Thoroughgood, the correct position is that where a disease injury causes an incapacity (in the sense of a reduction in earning capacity) and at the same time gives rise to an entitlement to compensation under the 1987 Act (whether for permanent impairment or treatment expenses or otherwise), s 15(1)(a)(i) operates to deem the date of injury relevant to any such claim to be the time when the worker suffered incapacity. This does not turn on the framing of the claim by the claimant but rather on the entitlement to claim, as illustrated most clearly in Thoroughgood, as to which see especially at [124] below. It means that since, in this case, on 20 January 2017, the appellant suffered a disease injury that caused both an incapacity giving rise to an entitlement to claim weekly compensation and also, at the same time, an entitlement to claim treatment expenses, that was the deemed date of injury relevant to both claims. That is not altered by the fact that he ultimately abandoned the claim for weekly compensation.
81.    It is only where neither aspect of s 15(1)(a)(i) operates that s 15(1)(a)(ii) is engaged. That would be so, for instance, where a disease causes a need for treatment without any reduction in earning capacity. And it would also be so where a disease first causes an incapacity and then, some time later, causes a permanent impairment but no further incapacity. That explains the outcomes in a number of the cases discussed below.
…
105. … It is only if an entitlement to compensation is unrelated to any incapacity, as was the case in Alto Ford, that the deemed date of injury is the date of the claim.”
In Razmovski v NIB Health Funds Ltd [2025] NSWPICPD 9, Deputy President Snell discussed and applied Haddad and Thoroughgood in the context of that case.
Section 254 of the 1998 Act states:
“254   Notice of injury must be given to employer
(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.
(4)    In addition, if the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop, each of the following constitutes special circumstances—
(a)the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section,
(b)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,
(c)the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop.”
Section 261 of the 1998 Act states:
“261Time within which claim for compensation must be made
(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.”
In Albury Real Estate Pty Ltd v Rouse and anor [2006] NSWWCCPD 139 at [20] to [39], then Acting Deputy President Bill Roche considered a claim for compensation in relation to the death of a worker and failure to make a claim within six months of the date of death because of ignorance or other reasonable excuse. Deputy President Roche set out case law relevant to s 65(13) of the 1998 Act), which is similar in relevant respects to the above provisions.

FINDINGS AND REASONS

Credibility of the evidence of the applicant and the lay witnesses generally

At the hearing, on behalf of the respondent, Mr Gaitanis submitted that the Commission should not accept the credibility of the evidence of the applicant and his wife, Ms Slater.
In the case of the applicant, Mr Gaitanis noted inconsistencies in the evidence and submitted that, in the circumstances, the applicant’s evidence that he sustained the claimed injuries in the manner alleged and that he was unaware of time limits to notify and claim compensation for work injuries is unlikely and should not be accepted.
In the case of Ms Slater, Mr Gaitanis submitted that her evidence should not be accepted because of her close familial relationship with the applicant and lack of impartiality.
I note that at the preliminary conference, solicitors for the respondent raised the possibility that they would seek leave to cross-examine the applicant at the hearing. However, no application for leave to cross-examine any witness was subsequently made.
Further, at material times, all lay witnesses were attested members of the NSW Police Force (and it appears that Ms Slater may still be so). There is no suggestion, and certainly no evidence, that any of them are other than upstanding citizens of general moral integrity.
On that basis, I make no general findings that the evidence of the lay witnesses should not be accepted.
However, I will consider the evidence of the lay witnesses further in more detail below, in the context of the specific evidence and the weight that should be given in each case.

Factual findings in relation to the motor vehicle collision on 16 September 2015

The applicant’s evidence is that he sustained the injury to his cervical spine on 16 September 2015 when he had one foot out of a police vehicle as he attempted to exit the police vehicle, and an offender’s vehicle rammed (backwards) into the front of the police vehicle, causing the applicant to be thrown violently backwards, his neck to be hyperextended and the applicant’s body to forcibly strike the headrest and doorframe of the police car.
The applicant’s evidence that such a motor vehicle accident occurred is consistent with
Mr Jory’s evidence that on 16 September 2015, he attended the scene of a motor vehicle accident in which the applicant had been involved. However, I note that Mr Jory has not provided any details of the nature of the accident and the specific context and nature of the applicant’s involvement.
The respondent has not disputed the occurrence of the motor vehicle accident on
16 September 2015.
Further, there is no evidence which is inconsistent with the occurrence of a motor vehicle accident occurring on 16 September 2015 in the manner generally alleged by the applicant and, further, of the applicant’s body being impacted by the force of the collision as he was exiting the police vehicle.
Considering the evidence as a whole, I accept that on 16 September 2015, when the applicant had one foot out of a police vehicle as he attempted to exit the police vehicle, an offender’s vehicle rammed into the front of the police vehicle, causing the applicant to be thrown violently backwards, his neck to be hyperextended and the applicant’s body to forcibly strike the headrest and doorframe of the police car.
Further, I accept that such physical force to the applicant’s body in the manner described as a result of that motor vehicle collision, would have caused the applicant’s neck to hyperextend and then be forcibly jolted.

Factual findings in relation to the nature and conditions of the applicant’s employment

The applicant’s evidence detailed the physical demanding nature of his work and training and bodily traumas that he sustained on a regular basis in undertaking that work and training.
I note that the evidence of Mr Gibson, previously the applicant’s supervising sergeant, corroborates the applicant’s evidence that he injured his right shoulder when undertaking OSG physical training on 27 November 2017.
There is no dispute that the applicant’s duties as a police officer on active duty, and particularly as a member of the OSG, were physically demanding.
In any event, I note that is consistent with the written statement of duties which is in evidence (as part of the clinical records of the Bridge Medical Centre). It states that the general duties of NSW Police General Duties Police Officers holding the rank of Constable and Senior Constable and included tasks of first response/patrol duties, custody assist and station duties. It noted that such police officers: may be required to undertake the restraint and arrest of offenders; can encounter offenders who may be violent; must have the physical capacity and may need to restrain and arrest; and may exposed to offenders that may be violent.
I note that all of the independent medical experts recorded a similar history of the nature and conditions of the applicant’s work as a police officer.
Having regard to the evidence as a whole, I accept that the applicant’s work as a police officer, and particularly as a member of the OSG, was generally of a physically demanding nature. Further, I consider it likely and I accept, that in the course of his work, the applicant did regularly sustain forceful and damaging impacts, strains and stresses to his body from time to time, including to his lumbar spine and left knee. I also accept that during the course of his work, from time to time, the applicant fell and forcefully applied pressure to his knees, including against hard surfaces, in the course of performing his duties.
The applicant also gave evidence that he was required to wear an appointments belt and light armour vest, which hurt his lower back, particularly when in a police vehicle.
I note that the Statement of NSW Police General Duties Police Officers states that police officers holding the rank of Constable and Senior Constable must carry all appointments if uniformed and operational and may also wear a light armour vest and, further, that they may spend up to 11 hours of a 12-hour shift in a police vehicle
Having regard to the evidence as a whole, I also accept that the applicant was required to wear an appointments belt, and sometimes a vest, for long periods of time including in a police vehicle. Further, I consider it likely and I accept, that that would have caused the applicant to twist and manoeuvre his body to accommodate those appointments.

Evidence in relation to injury to the applicant’s cervical spine

The applicant’s evidence is that he injured his neck in the collision on 16 September 2015 and has experienced, and continues to experience, ongoing cervical spine pain, stiffness and restriction of movement as a result of that injury.
On behalf of the respondent, Mr Gaitainis submitted that the Commission should not accept that the applicant sustained cervical spine injury arising from the collision on 16 September 2015 because it is apparent from the evidence of Mr Jory, and other evidence, that the applicant continued to engage in physical activity such as gym work, which is inconsistent with such an injury and certainly inconsistent with a debilitating injury.
In that regard, I note that, notwithstanding the applicant’s evidence that he sustained injury, there is no evidence that he took time off work and it appears that he largely remained on active duty which likely would have required ongoing fitness training. That is consistent with the applicant’s evidence that he tried to just focus on his job and didn’t want to appear “weak” nor that he couldn’t look out for his colleagues. Considering the evidence as a whole, I find such an attitude by the applicant to be unsurprising, and indeed likely, given the nature of the applicant’s work and training in the OSG.
The applicant’s wife, Ms Slater, has given evidence that the applicant told her in about 2017 or 2018 that he sustained injury to his neck in 2015 when he was involved in a motor vehicle accident at work and that he has regularly complained about issues with his neck and that he was reluctant to seek treatment because he considered that it would not assist. Again, I find it unsurprising and indeed likely that the applicant, who was otherwise stoic, would confide and complain about such matters to his wife who, herself also an attested police officer, would also likely have some understanding of the demanding nature of the applicant’s work.
In any event, I note that is consistent with the clinical records of Unwind Health which indicate that on 28 July 2017, the applicant completed a patient introduction form which stated that the applicant had intermittent pain and stiffness in his neck and shoulders on an ongoing basis for a number of years. Further, I note that consultation records during August 2017 recorded that the applicant continued to have neck soreness.
It is not in dispute that in 2019, the applicant attended Dr Ian Edwards, chiropractor, regarding complaints of ongoing pain in his cervical spine, and the applicant also sought treatment from Sportspoint Physiotherapy when his cervical spine pain flared up temporarily following a gym session.

I accept that the P902 forms were the respondent’s forms, prepared for the purpose of recording work incidents and injuries. At the top of the P902 form, it states:
“NSW Police Force
Incident Notification Form
To be completed by the affected employee by the end of the shift (or in his/jer absence by their immediate line of management. A Safety Incident investigation form must be completed for every incident and near miss.”
I note that there is evidence of only two P902 forms lodged by the applicant over the approximately 10 years that the applicant was employed as a police officer working in general duties, including being a member of the OSG for seven years between 2017 and 2023. There is no evidence to indicate whether or not the applicant lodged more than those two P902 forms over the course of his employment in active duty.
I do not accept the respondent’s submission that, because of the applicant’s position as a police officer, ultimately holding the rank of Sergeant, he would have known of the requirements of ss 254 and 261 of the 1998 Act.
There is no indication on those forms of specific legal requirements to notify injury or to made any claim for compensation within a specific time period.
There is no evidence that, prior to or during the course of his employment with the respondent, the applicant was made aware of the specific requirements of ss 254 and 261 of the 1998 Act.
I have discussed the credibility of the applicant’s evidence in a general sense above. Having regard to the evidence as a whole I accept the applicant’s evidence that he was not aware of the requirements of ss 254 and 261 of the 1998 Act prior to reading the s 78 notice.
There is no direct evidence, apart from the applicant’s own evidence, of any particular culture at the relevant time of not police officers within NSW Police Force not reporting injuries.
In the context of the evidence as a whole, I accept the applicant’s evidence that at the relevant time the applicant perceived that sustaining injuries performing such physically demanding work was essentially part of the job and that he would be poorly regarded amongst his colleagues and not engender confidence in his abilities if he reported such injuries.
The applicant’s wife also corroborated the applicant’s evidence that his psychological health has been his focus and priority for a long time and he was formally diagnosed with post-traumatic stress disorder in 2013. I note that it is not in dispute that the applicant ceased work on 5 May 2023 and was ultimately medically discharged on grounds of post-traumatic stress disorder on 14 October 2024.
On that basis, I consider it likely that the applicant would have been preoccupied with and primarily focused on his psychological symptoms and psychological health.
This is particularly the case when taken in context with the applicant’s evidence, which I accept, noting that it is consistent with the evidence of Ms Slater and the evidence as a whole, that the applicant did not believe that treatment would assist his physical injury and that his physical symptoms may naturally resolve once he ceased active police duties.

Findings in relation to the provisions of s 254 of the 1998 Act

As noted above:
(a)    in relation to the cervical spine injury, I accept that the applicant did, at some point in time, give Mr Jory oral notice that he injured his neck as a result of the motor vehicle collision on 16 September 2015. It is not in dispute that the applicant did not give any other notice of cervical spine injury to the respondent prior to making the claim for compensation in that regard. Further, I accept that the applicant did not experience neck pain immediately after the collision on
16 September 2015;
(b) in relation to the cervical spine injury and also the lumbar spine injury, left knee injury and other injuries generally, I accept that at the relevant time the applicant was not aware of the requirements of ss 254 and 261 of the 1998 Act;
(c)    I also accept that the applicant perceived that sustaining injuries performing such physically demanding work was essentially part of the job and that he would be poorly regarded amongst his colleagues and not engender confidence in his abilities if he reported such injuries, and
(d)    further, I accept that the applicant would have been preoccupied with and primarily focused on his psychological symptoms and psychological health. I note that it is not in dispute that the applicant ceased work on 5 May 2023 and was ultimately medically discharged on grounds of post-traumatic stress disorder on 14 October 2024. I accept that the applicant did not believe that treatment would assist his physical injuries and that his physical symptoms may naturally resolve once he ceased active police duties.
Having regard to my findings above and the evidence as a whole, I am satisfied on the balance of probability that there is a logical, likely and reasonable explanation for the applicant’s failure to give notice of the cervical spine injury (to the extent that such oral notice given to Mr Jory may be insufficient notice), lumbar spine injury and left knee injury in accordance with the requirements of s 254(1) of the 1998 Act.
Accordingly, I am satisfied that special circumstances exist pursuant to s 254(3)(b) of the 1998 act being “other reasonable cause” for the applicant’s failure to comply with the provisions of s 254(1) of the 1998 Act in respect of those injuries.
On that basis, I find that the applicant’s claim for compensation in respect of each of the injuries is not precluded by operation of s 254 of the 1998 Act.

Should the applicant’s claims for compensation in respect of any of the injuries be precluded by operation of s 261 of the 1998 Act?

The cervical spine injury

The date of injury of the cervical spine injury, being a frank injury pursuant to ss 4(a) and 9A of the 1987 Act, is 16 September 2015.
The claim for compensation for permanent impairment compensation pursuant to s 66 of the 1987 Act was made in respect of injury to the applicant’s cervical spine, under cover of a letter dated 6 August 2024, being approximately 11 years after the date of injury.
On that basis, I find that the applicant did not make the claim for permanent impairment compensation in respect of the cervical spine injury within the time limit prescribed by s 261(1) of the 1998 Act.
On behalf of the applicant, Mr McEnaney submitted that the provisions of s 261(4)(b) of the 1998 Act apply, with effect that the applicant’s failure to make a claim within the period required by s 261(1) of the 1998 Act is not a bar to the recovery of compensation in respect of the applicant’s cervical spine. Mr McEnaney submitted that the provisions of s 261(4)(b) of the 1998 Act are satisfied because the cervical spine injury resulted in the serious and permanent disablement of the applicant and his failure to make a claim within the period required was occasioned by ignorance, mistake or other reasonable cause. Mr McEnaney submitted that, in particular, the applicant did not take time off work nor give notice of injury nor make a claim because he was stoic and did not want to appear “soft” at a relatively early stage of his policing career, he was ignorant of the requirement to take action within a specific time frame, his symptoms of post-traumatic stress disorder were a focus and priority and he thought his cervical spine symptoms would resolve in time once he ceased active policing duty.
On behalf of the respondent, Mr Gaitanis submitted that there is no basis to find an exemption pursuant to s 261(4)(b) of the 1998 Act because the applicant has not discharged its onus to prove on the balance of probability that the cervical spine injury resulted in the serious and permanent disablement of the applicant and that his failure to make a claim within the period required was occasioned by ignorance, mistake or other reasonable cause.
I refer to my factual findings above in relation to the applicant’s alleged failure to give notice of injury consistent with s 254 of the 1998 Act. I consider that those factual findings are also pertinent to consideration of the application of s 261 of the 1998 Act. In particular:
(a) in relation to the cervical spine injury, I accept that at the relevant time the applicant was not aware of the requirements of ss 254 and 261 of the 1998 Act;
(b)    I also accept that the applicant perceived that sustaining injuries performing such physically demanding work was essentially part of the job;
(c)    I accept that the applicant then perceived that there was a culture of not reporting injuries and that he would be poorly regarded amongst his colleagues and not engender confidence in his abilities if he reported such injuries;
(d)    I accept that the applicant would have been preoccupied with and primarily focused on his psychological symptoms and psychological health;
(e)    further, I accept that the applicant did not believe that treatment would assist his physical injuries and that his physical symptoms may naturally resolve once he ceased active police duties, and
(f)    this occurred in the context that the applicant was relatively young and at a relatively early stage of his police career when he sustained the cervical spine injury.
Having regard to my findings above and the evidence as a whole, I am satisfied on the balance of probability that there is a logical, likely and reasonable explanation for the applicant’s failure to make a claim in respect of his cervical spine within the period required by s 261(1) of the 1998 Act.
Having regard to my findings above and the evidence as a whole, I am satisfied on the balance of probability that the applicant’s failure to make a claim for compensation in respect of his cervical spine injury within the period required by s 261(1) of the 1998 Act was occasioned by ignorance, mistake and other reasonable cause in accordance with the provisions of s 261(4)(b) of the 1998 Act.
Turning to the other component of s 261(4)(b) of the 1998 Act, clearly the cervical spine injury did not result in the death of the applicant. The issue arises as to whether the cervical spine injury did result in the serious and permanent disablement of the applicant.
The applicant’s evidence is that he has experienced ongoing cervical spine pain, stiffness and restriction of movement and that he has had to cease various sporting activities.
The applicant’s wife, Ms Slater, has given evidence that the applicant continues to have difficulty with various activities and expresses ongoing pain and symptoms in his neck.
There is no other contemporaneous evidence in that regard apart from the clinical records of Unwind Health in July and August 2017 and Sportspoint Physiotherapy in January 2019. Those records corroborate that the applicant then sustained a history of ongoing cervical pain and stiffness, however they do not detail the extend of the applicant’s disablement arising from the cervical spine injury.
I note that in a report dated 7 July 2024, Dr Miller recorded on examination, that the applicant was tender over the right paravertebral region, right trapezius and right scapula, flexion was reduced by half, rotation to the right was reduced by half and rotation to the left was reduced by one third. Dr Miller diagnosed a flexion/extension injury to the applicant’s cervical spine as a result of a motor vehicle accident in 2016, which aggravated degenerative change at C4/5 and C5/6, and also that the applicant developed an axial condition. Dr Miller assessed the applicant as having a 6% total WPI in respect of his neck/cervical spine, calculated on the basis of DRE Cervical Category II equating to a 5% WPI of the neck/cervical spine, with loss of activities of daily living of 1% and applied a one-tenth deduction due to pre-existing underlying constitutional change, giving a 5.4% WPI, rounded down to 5% for the cervical spine.
In a report dated 25 February 2025, Dr Smith diagnosed symptomatic cervical degenerative disease. Dr Smith stated that the applicant could have aggravated his cervical spine degenerative disease, or had a soft tissue sprain to the lamentous structures and muscles around the cervical spine, under the circumstances of the motor vehicle accident in 2016. Dr Smith stated that any such aggravation would have recovered after less than month. Dr Smith stated that the CT scan of the cervical spine in April 2024 did not describe any post-traumatic lesion of the cervical spine. Dr Smith assessed the applicant as having 0% WPI of the cervical spine.
Having regard to the evidence as a whole and my findings above, I accept that the applicant does have ongoing pain and restrictions of his cervical spine.
I have explained in my reasoning above why I prefer and accept the opinion of Dr Miller. In the context of the evidence as a whole and all of my findings above, I consider that the opinion of Dr Miller provides a logical and likely explanation for the applicant’s ongoing cervical spine symptoms and limitations.
On that basis, I accept on the evidence before me that the applicant does have a serious and permanent disablement caused by the cervical spine injury.
Accordingly, I am satisfied that the applicant’s failure to make a claim in respect of the cervical spine injury within the period prescribed by s 254(1) of the 1998 Act was occasioned by ignorance, mistake and other reasonable cause and was in also in respect of an injury resulting in the serious and permanent disablement of the applicant.
On that basis, s 261(1) does not operate to preclude the applicant’s entitlement to recover permanent impairment compensation in respect of the cervical spine injury.

The lumbar spine injury and the left knee injury

The respective dates of injury of the lumbar spine injury and the left knee injury, both being acceleration, exacerbation and deterioration of disease processes pursuant to s 4(b)(ii) of the 1987 Act, are regulated by the provisions of s 16(1) of the 1987 Act, which provides that:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a)the injury shall, for the purposes of this Act, be deemed to have happened—
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
…
(4) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.”
…”
Neither the lumbar spine injury nor the left knee injury resulted in the applicant’s death.
To determine the relevant date of injury, it is necessary to firstly determine whether either or both the lumbar spine injury and the left knee injury resulted in the applicant’s incapacity.
I note that, by Complying Agreement dated 31 October 2023, the respondent’s insurer (the insurer) agreed to pay the applicant compensation pursuant to s 66 of the 1987 Act in respect of 6% WPI for injury to the applicant’s left knee and ankle with a date of injury of
19 October 2022, (pursuant to a report of Dr James Bodel dated 17 October 2023).
In that regard, I note that in his report dated 17 October 2023, Dr Bodel recorded that the applicant was off work at that time primarily because of post-traumatic stress disorder.
Dr Bodel stated that the applicant was:
“… partially incapacitated because of the knee injury although I do note that the applicant did pass a ROSA and was able to return to operational duties for a few months before going off with the PTSD diagnosis… From the physical injury point of view, he has been cleared to return to operational policing duties but there are other issues which are preventing him from doing so.”
With that exception (to the extent that it may be relevant to the present claim in respect of the applicant’s left knee), there is no evidence of the applicant making any claim for weekly compensation or other compensation in respect of any of the lumbar spine injury nor the left knee injury prior to the making of the present claims for permanent impairment compensation on 13 August 2024.
Further, there is no Certificate of Capacity nor other medical certificate in evidence which gave rise to a claim for weekly compensation in relation to either the lumbar spine injury or the left knee injury. There is also no other evidence that the applicant was incapacitated for work as a result of the lumbar spine injury nor the left knee injury. Indeed, it appears that the applicant continued to work despite those injuries. It appears from the evidence that the applicant’s incapacity to work was caused by his psychological injuries, in particular, post-traumatic stress disorder.
Having regard to the evidence as a whole, I find that incapacity caused by the lumbar spine injury and the left knee injury has not been established.
On that basis and having regard to the provisions of s 16(1)(a) of the 1987 Act, I accept that the respective dates of injury in respect of injury pursuant to s 4(b)(ii) of the 1987 Act of both the lumbar spine and the left knee are 13 August 2024, which is the date that the applicant’s solicitor notified the insurer of a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act in respect of those injuries.
The claims for compensation for permanent impairment compensation pursuant to s 66 of the 1987 Act was made in respect of injury to the applicant’s lumbar spine and left knee, under cover of a letter dated 13 August 2024, being within six months of the deemed date of injury.
On that basis, I find that the applicant did make the claim for permanent impairment compensation in respect of the lumbar spine injury and the left knee injury within the time limit prescribed by s 261(1) of the 1998 Act. On that basis, s 261 does not operate to preclude the applicant’s entitlement to recover permanent impairment compensation in respect of the lumbar spine injury and the left knee injury.

What is the extent and quantification of the applicant’s entitlement to payment of permanent impairment compensation pursuant to s 66 of the 1987 Act?

There is a dispute in relation to assessment of WPI.
Given my findings above, it is appropriate to refer the matter to the President for referral to a Medical Assessor for determination of WPI. The Medical Assessor should be provided with the following documents:
(a) ARD and attached documents, and
(b) Reply and attached documents.

SUMMARY

On that basis, I determine that:
(a)    the applicant sustained injury to his cervical spine, with a date of injury of
16 September 2015, arising out of his employment with the respondent pursuant to s 4(a) of the 1987 Act to which his employment was a substantial contributing factor pursuant to s 9A of the 1987 Act;
(b)    the applicant sustained injury to his lumbar spine as a result of the nature and conditions of his employment, with a deemed date of injury of 13 August 2024, being an acceleration, exacerbation and deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act;
(c)    the applicant sustained injury to his left knee as a result of the nature and conditions of his employment, with a deemed date of injury of 13 August 2024, being an acceleration, exacerbation and deterioration of a disease process to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act;
(d) the applicant’s claim for compensation in respect of each of the injuries is not precluded by operation of s 254 of the 1998 Act, and
(e) the applicant’s claim for compensation in respect of each of the injuries is not precluded by operation of s 261 of the 1998 Act.

On that basis, it is appropriate to make the following orders:
(a)    the matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows:
Date of injury:        16 September 2015.
Body parts:             cervical spine.
Method:                  WPI.
Date of injury:        13 August 2024 (deemed).
Body parts:             lumbar spine and left knee.
Method:                  WPI.
(b)    the materials to be referred to the Medical Assessor are to include:
(i)the Application to Resolve a Dispute and all attachments, and
(ii)the Reply and all attachments.

[2025] NSWPIC 379

6 August 2025