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

In this matter, the applicant, a former police officer, sought additional compensation for incapacity resulting from physical injuries suffered earlier in his career. The case was heard by the Workers Compensation Commission of New South Wales. The applicant argued that, but for his psychiatric injury in 2010, he would have been promoted to the rank of Detective Sergeant. The dispute centred on the application of section 40 of the Workers Compensation Act to determine the appropriate compensation for his physical incapacity.

The primary issue for the Commission to decide was whether the applicant’s entitlement to weekly compensation for his physical injuries should be reduced during periods of total incapacity caused by his psychiatric injury. This required the Commission to consider the principles established in Cordina Chicken Farms Pty Ltd v Thoa Hong Le and J C Ludowici & Sons Ltd v Cutri, which outline the circumstances in which compensation for physical injuries may be reduced due to concurrent incapacity from a psychiatric injury. The Commission also had to address the respondent’s failure to press the argument regarding reduction during partial incapacity at the arbitration hearing.

The Commission accepted that the applicant would have been promoted to the rank of Detective Sergeant but for his psychiatric injury. It applied the principles from Cordina and Ludowici, determining that a 75% reduction in the weekly compensation for the physical injury was appropriate during periods of total incapacity due to the psychiatric injury. However, because the respondent did not press the argument regarding reduction during concurrent partial incapacities, no such reduction was applied. The Commission ordered the parties to bring in short minutes reflecting its findings.

As a result of the Commission's decision, the applicant's weekly compensation for physical injury was reduced by 75% during periods of total incapacity due to his psychiatric injury. There was no reduction applied during periods of concurrent partial incapacity. The parties were further instructed to prepare short minutes summarising the Commission's findings.