Tartaro v State of New South Wales (NSW Police Force)
[2022] NSWPIC 556
•6 October 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Tartaro v State of New South Wales (NSW Police Force) [2022] NSWPIC 556 |
| APPLICANT: | Antonio Tartaro |
| RESPONDENT: | State of New South Wales |
| PRINCIPAL Member: | Josephine Bamber |
| DATE OF DECISION: | 6 October 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Applicant is in receipt of weekly compensation for psychological injury sustained when he was a police officer; claims entitlement to second award of weekly compensation for physical injuries sustained in the same employment; Held – applicant has a separate and distinct incapacity for employment from his physical injuries as opposed to from his psychological injury; Cordina Chicken Farms Pty Ltd v Thoa Hong Le discussed; applicant entitled to separate award of weekly compensation; award entered at the maximum statutory rate for a worker with a dependent spouse from 20 August 2021 to date and continuing. |
| determinations made: | 1. The applicant has a separate and distinct incapacity for employment arising from his physical injuries on 5 September 2004 (with recurrences on 3 September 2008 and 13 September 2011), 15 April 2010, 22 November 2009 and 3 February 2008 to that of his incapacity from his psychological injury on 17 December 2018 (deemed). 2. Pursuant to s 40 of the Workers Compensation Act 1987 (as it applies to the applicant), the respondent is to pay a second award of weekly compensation at the statutory maximum rate for a worker with a dependent spouse from 20 August 2021 to date and continuing, as adjusted. 3. The respondent is to pay the applicant’s costs as agreed or assessed. 4. The application for an uplift for the applicant’s costs for complexity is declined. |
STATEMENT OF REASONS
BACKGROUND
Antonio Tartaro, the applicant, was employed by the respondent, State of New South Wales, as a police officer. He has suffered a number of injuries in the course of his employment including the following:
(a) On 5 September 2004 to his lumbar spine when involved in a fight with two offenders at Grafton Gaol, with recurrences on 3 September 2008 and 13 September 2011. He has received lump sum compensation for his lumbar spine based on a total of 12% whole person impairment (WPI).
(b) On 15 April 2010 to his cervical spine as a result of the hard and heavy nature and conditions of his employment as a police officer. He has received lump sum compensation for 5% WPI in relation to his cervical spine.
(c) On 22 November 2009 to his right knee when chasing an offender at Lismore. He has received lump sum compensation for 4% WPI in relation to his right knee.
(d) On 3 February 2008 to his left wrist when he fell on his outstretched arm while arresting an offender.
(e) On 17 December 2018 (deemed) he sustained a psychological injury due to constant and repetitive exposure to violent, traumatic and stressful events in the course of his employment.
As a result of these injuries the applicant alleges he is partially incapacitated for employment.
As set out in his Application to Resolve a Dispute (ARD), the claim for compensation in these proceedings is confined weekly compensation from 20 August 2021 ongoing at the comparable earning figure of $2,627.58 based on the Crown Employees (Police Officers-2021) Award NSW for Detective 10th Year. Mr Tartaro has a dependent spouse.
The respondent issued a dispute notice pursuant to s 79 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) stating that they did not agree that Mr Tartaro is entitled to a concurrent payment of weekly compensation for his physical injuries in addition to the weekly payments he is receiving for his incapacity related to his psychological injury[1]. That notice confirmed there was no issue that Mr Tartaro had suffered the injuries set out above. The respondent relies on a report from Dr Kinny dated 18 August 2021 who was of the opinion, that if it was not for Mr Tartaro’s psychological diagnosis, he would probably still be fit to work.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
[1] Reply p 4.
The matter was listed for conciliation conference/arbitration hearing before me on
20 July 2022. Mr Mischa Hammond, counsel, instructed by Ms Lisa Robertson, solicitor, appeared for Mr Tartaro, who was present. Ms Lyn Goodman, counsel, instructed by Ms Angellina Psirakis, solicitor, and Ms Melissa K, from the insurer and Ms Kate Bolton from NSW Police, appeared for the respondent. The proceedings were conducted by Ms Teams audio-visual platform due to the COVID-19 situation.6.
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.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) written submissions from the applicant dated 20 July 2022.
Oral evidence
There was no oral evidence. Both counsel made oral submissions, which were sound recorded, and a copy of the recording is available to the parties.
FINDINGS AND REASONS
Treating medical evidence
Dr Rouan Lerm issued a WorkCover NSW Medical Certificate dated 26 November 2004 certifying that Mr Tartaro was fit for pre-injury duties. That certificate was issued in respect to the injury on 30 September2004 to his lumbar spine, with the diagnosis “sciatica L5/S1 left.”[2] The doctor recommended ongoing chiropractor treatment and general fitness and weight loss.
[2] Reply p 14.
10.Dr George Forgan-Smith issued a WorkCover NSW Medical Certificate dated 16 December 2008 certifying that Mr Tartaro was fit for pre-injury duties. That certificate referred to ‘Flare up of previous workplace lower back injury” with the diagnosis “sciatica”[3]. The doctor recommended physiotherapy, analgesia, rest, orthopaedic review, hydrotherapy and exercise regime.
[3] Reply p 15.
11.Dr Nicholas De Marco issued a WorkCover NSW Medical Certificate dated 23 September 2011 certifying that Mr Tartaro was fit for pre-injury duties. That certificate was issued in respect to the injury on 13 September 2011 with a diagnosis “lumbar mechanical back pain”[4]. He recommended chiropractic treatment and analgesia.
[4] Reply p 17.
12.Dr David Sare issued a WorkCover NSW Medical Certificate dated 2 December 2011 certifying that Mr Tartaro was fit for pre-injury duties. That certificate was issued in respect to the injury on 13 September 2011 with a diagnosis “resolved lumbago and L5 sciatica”[5]. He recommended two chiropractic treatments.
[5] Reply p 16.
13.Dr Forgan-Smith issued a WorkCover NSW Medical Certificate dated 4 December 2009 certifying that Mr Tartaro was fit for pre-injury duties. That certificate was issued in respect to the injury on 22 November 2009 with a diagnosis “? Ruptured bakers cyst vs knee strain”. the doctor recommended X-rays and ultrasound be undertaken.[6]
[6] Reply p 19.
14.A report is before the Commission from Mr Tartaro’s treating psychiatrist, Dr Mark Scurrah, dated 1 February 2020[7]. It is noted that he has interrelated psychiatric illnesses of a chronic post-traumatic stress disorder, a chronic depressive disorder with anxiety symptoms and pattern of excess alcohol intake consisting of Alcohol Abuse which is now infrequent.
[7] ARD p 53.
15.Dr Scurrah finds that Mr Tartaro’s mood symptoms do not allow him to perform operational or non-operational roles as a police officer. The doctor states that he doubts he would be able to obtain/maintain alternative forms of open market employment. He says Mr Tartaro has anxiety, lowered mood, sleep disturbances and lowered energy amongst other symptoms.
16.In addition the ARD contains SIRA Certificates of Capacity from Dr De Marco from 20 August 2021 to 26 May 2022 in relation to Mr Tartaro’s psychological injury certifying he has capacity for some type of work for four hours a day three days per week.
Dr Clayton
17.Dr Clayton, orthopaedic surgeon, provided a medico-legal report for Mr Tartaro dated 21 June 2021[8]. He confirmed that Mr Tartaro has not worked since he left the Police Force on 18 October 2019. Dr Clayton assessed Mr Tartaro’s capacity for work as follows:
“Regarding injuries to Mr Tartaro’s lumbar spine, cervical spine, left wrist and right knee, Mr Tartaro is not fully fit to carry out each and every physical activity required of a police officer. Mr Tartaro is only medically advised to undertake an office administrative roles and as a non-uniformed police officer if he were to continue in the New South Wales Police Force. He could not perform any prolonged standing activities and is not able to run, lift greater than 5 kg or undertake any combative type roles. In a seated role, he would be required to be able to stand regularly each hour due to his lumbar spine complaints. A sit and stand desk would be appropriate in this manner.”
[8] ARD p 59.
18.Dr Clayton placed restrictions on Mr Tartaro’s employment outside of the police force including that he could not perform any site-related work. In an office administrative role, he would require frequent breaks every hour of five to ten minutes at a minimum to stand. He would require a sit and stand desk and has a lifting capacity of 5kg and not below waist height and not above shoulder height. However, the doctor did state Mr Tartaro could work full hours, five days per week in an office administrative role.
Dr Oates
19.Dr Oates, occupational physician, has provided a report dated 27 April 2022 for Mr Tartaro[9]. Dr Oates advised that Mr Tartaro is not fit to carry out the full and unrestricted duties of a general duties police office due to his lumbar spine, cervical spine, knee and wrist conditions. He added that he knee condition would preclude him from running, prolonged standing, squatting, kneeling and climbing. He advised that while his wrist is fairly asymptomatic, it would be exacerbated if he had to wrestle with offenders, physically retrain them and use force through his arms/hands to effect an arrest. He opined that the lumbar injury prevents Mr Tartaro from running, bending, twisting, doing heavy lifting and carrying heavy objects.
[9] ARD p 82.
20.Dr Oates advised that Mr Tartaro’s cervical spine would cause difficulties with sedentary tasks such as administration and desk duties because muscle stiffness would be exacerbated during prolonged periods of sedentary work, and he would have headaches and difficulty with concentrating and erosion of work performance.
21.The doctor estimated that Mr Tartaro would only be fit for three half days per week on a four hour per day basis on alternate days due to his physical deconditioning since he last work and the effect of his physical injuries. He estimated he could only sit for an hour maximum at a time and some days 30 minutes due to variable level of symptomatology in his lumbar spine and he recommended a walking limit of 200 metres and driving limit of one hour.
Dr Kinny
22.Dr Kinny, orthopaedic surgeon, has provided two reports to the insurer dated 18 August 2021[10] and 20 June 2022[11]. In his first report Dr Kinny takes a history of the physical injuries sustained by Mr Tartaro and sets out his current symptoms and examination findings. He provides the opinion that if it were not for his psychological injury Mr Tartaro probably would still be fit for work as a result of his various orthopaedic injuries when considered in isolation. He adds that in relation to his lumbar spine he should avoid heavy lifting, working in a stooped posture, resisted pushing or pulling activity, or prolonged sitting. In relation to his right knee he stated that Mr Tartaro should avoid prolonged standing or walking on uneven ground.
[10] ARD p 70.
[11] Reply p 1.
23.In his supplementary report Dr Kinny said he asked Mr Tartaro is his psychological injury totally resolved could he perform operational police duties considering his various orthopaedic conditions. The doctor recorded that Mr Tartaro stated that “he felt he possibly could”. Dr Kinny says on this basis he concludes that Mr Tartaro does not have a separate and distinct incapacity for work in respect of his physical injuries as opposed to his psychological injury.
24.However, Dr Kinny then finds that Mr Tartaro is likely to have some difficulty with stairs due to his knee injury, perhaps some difficulty with driving due to his cervical injury and his lumbar condition due to the effect on him sitting for prolonged time. Dr Kinny also states due to his knee arthritis he would not be able to perform heavy lifting tasks, he would not be able to participate in struggles with offenders involving forceful pulling or pushing. He then expresses his conclusion that Mr Tartaro might have difficulty with full police duties from a physical point of view and he may have to be placed on restricted duties long-term.
25.Dr Kinny states ignoring his psychological injury he would certify Mr Tartaro as only fit for suitable duties and avoid customer contact wherever possible.
Antonio Tartaro’s statement
26.Mr Tartaro has provided a statement in which he details his various physical injuries. He says he continues to suffer back pain, even though it has reduced in level after the September 2011 relapse. He also describes his neck pain. He states at [87] due to his back, neck, wrist and right knee he is restricted in lifting, carrying, typing and pulling/pushing activities. At [88] he lists his ongoing restrictions.
27.He also says he has difficulties concentrating and he discusses a number of jobs that he feels he could not perform due to the risk of being placed in a confronting situation. In relation to his physical ability to work he relies on the opinion of Dr Oates, but he states at [138] he thinks he could work a bit more than Dr Oates indicted. He says he thinks physically he could work five hours per day four days per week, with a rest day on Wednesday. From [143] to [159] he sets out his views about his physical restrictions precluding him from working in a number of jobs.
Mark Puglisi’s statement
28.Mr Puglisi is a former Senior Constable. In his statement dated 3 June 2022 he says police officers earn about 10% extra from shift penalties, overtime, special events, RMS escort work and assisting at road construction jobs. He says a designated Detective would be offered all of the same overtime and user pays opportunities as a general duty officer.
Respondent’s application to admit further evidence
29.At the outset of the arbitration hearing the respondent made an application to cross-examine Mr Tartaro and for the Commission to admit into evidence a Procare Investigation report dated 18 July 2022. A copy of the report was emailed to me just prior to the hearing commencing to enable me to rule on the respondent’s application. Mr Tartaro’s counsel opposed the application to cross-examine and opposed the admission into evidence the Procare report.
30.The respondent says the report demonstrates that some work is being done on Mr Tartaro’s house and the report refers to a job that Mr Tartaro does, being the Vice President of the Sub-Branch of the Ballina RSL. It is argued that on his most recent medical certificate he has signed the document to say he does not work. The Procare report was requested by the respondent on 4 July 2022 being the date of the telephone conference.
31.Mr Tartaro’s counsel submitted that the Procare report does not state that the applicant did the work himself on his house. There is only a reference to him having an owner builder licence. It was also submitted the report is late and at the telephone conference there was no indication given by the respondent that they were intending to obtain such evidence or that an application would be made to cross-examine.
32.For the reasons given orally at the hearing, I refused both the application to cross-examine and to admit into evidence the Procare report. I advised the parties I had given brief oral reasons because of the time imperatives at the time of the hearing and that I would give further written reasons.
33.One of the factors I considered was the fact that the respondent had issued its dispute notice on 2 June 2022. I considered that the purpose of the requirement for an insurer to issue a notice under s 78 of the 1998 Act was to give a worker notice of the reasons the insurer was disputing any aspect of the claim. Section 78(2) prescribes that notice must state the reasons for the decision. In the case of Mateus v Zodune Pty Limited t/as Tempo Cleaning Services[12] Roche DP observed that a decision by an insurer to dispute a claim for compensation should not be made lightly and a careful consideration of the factual and legal issues involved should be undertaken. With this in mind, I advised the respondent that it should make a soundly based decision and it was not satisfactory for it to undertaken investigations after the telephone conference. Such investigations should be made when the claim is made and certainly before a dispute notice is issued.
[12] [2007] NSWWCCPD 227, Mateus.
34.While Mateus is concerned with applications under s 289A(4) of the 1998 Act, I consider the principles discussed are also relevant to a party seeking to adduce additional evidence. In Mateus Roche DP at [48] stated that the general conduct of the parties in the proceedings are relevant to the exercise of discretion. In this case the evidence sought to be introduced is extremely late. I now observe that the Procare report refers to an earlier report dated 2 August 2021. That earlier report is not in evidence nor was it sought to be admitted. There is no explanation, if an earlier report had been commissioned almost a year earlier, why it was felt it necessary to obtain another report and if so, why the further report was not requested so as to be available when the reply was filed or before the telephone conference at the latest.
35.It is relevant to note that the insurer has been paying Mr Tartaro weekly compensation for years in relation to his psychological injury, so it has had opportunity to conduct investigations into his activities for some time. After I ruled that the report could not be admitted into evidence the respondent’s counsel mentioned that it had been obtained for other purposes but did not expand upon this statement.
36.The application to admit the report into evidence was coupled with an application to cross-examine Mr Tartaro as to its contents because there was reference to him having an owner builder licence. However, it seems the main work on Mr Tartaro’s property since the earlier report has been associated with the installation of a swimming pool. On page 6 of the report there is reference to a builder, Craftsman Homes Pty Ltd and on page 7 to Ballina Pool Shop. On page 9 of the report it is noted that the fact that Mr Tartaro had an owner builder permit was “located in our earlier report. No changes have been made”.
37.So the insurer was aware of this fact in August 2021, yet the earlier Procare report has not been filed. Had it been included in the Reply Mr Tartaro could have put on a further statement before the hearing and, if necessary, obtained further medical evidence. His counsel came to the hearing having prepared written submissions based upon the evidence that was before the Commission when the matter was listed for hearing.
38.The other aspect of the report that the respondent mentioned was the reference to Mr Tartaro being the Vice-President of the Ballina Sub-Branch of the RSL club. On page 13 of the report is an article from April 2018 mentioning that Mr Tartaro at that time was the President of that club. I do not know if this fact was in the earlier Procare report however, they could have ascertained that information at that time.
39.The other document that was emailed to me with the Procare report was a SIRA Certificate of capacity dated 22 June 2022 and the respondent’s counsel referred to the employment declaration. There are two points to make about this document, firstly the declaration is filled out in exactly the same way as in all other certificates that are before the Commission, the first being dated 20 August 2021. So the respondent cannot argue they just found out about this response by Mr Tartaro on the certificate. Secondly, the typed passage on the certificate states: I have not “Engaged in any form of paid employment, self-employment or voluntary work for which I have received or am entitled to receive payment in money or otherwise since the last certificate was provided, that I have not yet declared to the insurer.” There is absolutely no evidence that Mr Tartaro receives payment for his role as Vice President Ballina RSL Sub-Branch. Additionally, the respondent appears to have not even made the basic enquiry as to whether the holder of such a role in the Sub-Branch of an RSL can even be paid payment under the constitution of the organisation. Mr Tartaro’s taxations returns are in the ARD, and they do not include such a sum. I find there is no evidence to find that the employment declaration Mr Tartaro signed on the certificate was incorrect.
40.There is also mention in the report of Mr Tartaro on 6 October 2020 being a runner up in a bowls match for the Cherry Street Sports Sandflies Bowls Club. Again this was before the earlier Procare report was obtained and could have been ascertained then. In any event, Mr Tartaro told Dr Clayton in his examination as recorded in the report dated 24 June 2021, that he plays lawn bowls once per week and attends the gym a couple of times a week to try to maintain his fitness[13]. Mr Tartaro also informed Dr Oates, as recorded in his report dated 27 April 2022, that he plays lawn bowls once a week or once a fortnight but some days he feels soreness in his back afterwards[14].
[13] ARD p 62.
[14] ARD p 86.
41.Given Mr Tartaro suffers from an agreed psychological injury which resulted in his termination of employment with the respondent, I consider an application to cross-examine him should be approached carefully so that the process of the arbitration hearing is not also an event from which he will be placed under further distress unless there is evidence warranting the same. In this case, where the Procare report was served extremely late, and does not in fact contain evidence of Mr Tartaro performing paid employment or having built his swimming pool, I consider that the respondent has not satisfied me that I should admit the late evidence or that I should give leave for cross-examination. I have considered the principles in Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng[15]. There is no right to cross-examine in the Commission and the respondent has not persuaded me that they will suffer from a denial of natural justice if cross-examination is not granted.
[15] [2006] NSWCA 34; (2006) 4 DDCR 358, Zheng.
42.The respondent has had Mr Tartaro examined by Dr Kinny who has provided his report dated 18 August 2021 and a supplementary report dated 20 June 2022. The second report was prepared without a re-examination. There is no evidence that the respondent sought a re-examination. The respondent prepared its case in that manner and in its Reply form on page 2 under the heading “matters in dispute: other issues” they did not indicate they were undertaking further investigation or there were other issues.
43.For all of the abovementioned reasons, the respondent’s applications were refused.
Relevant legal principles
Two awards of compensation
44.Mr Tartaro’s counsel provided written submissions relying on the principles in Cordina Chicken Farms Pty Ltd v Thoa Hong Le[16] wherein Roche DP discussed the circumstances in which a worker is entitled to two awards of weekly compensation against the one employer and how that should be calculated. The principles were set out at [59] as follows:
“a) a worker who has received two injuries that have resulted in two separate and distinct incapacities may, in the appropriate case, supported by relevant evidence, recover two concurrent awards of weekly compensation regardless of whether the second injury has resulted in total or partial incapacity (Doudie, Holmes and Ince;
b) the two injuries do not have to be received with different employers in order for the worker to be entitled to two awards (Ince at 701D and Holmes at 592);
c) Whilst a finding of a total incapacity, subsequent to a finding of partial incapacity, will not eliminate the liability for the initial partial incapacity, the calculation of compensation payable under section 40 for the initial partial incapacity calls for the application of the discretion in section 40(1) (Holmes at 592) in determining the amount of compensation that is ‘proper in the circumstances of the case’ (Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50). The proper application of the discretion in such a case (where the subsequent incapacity is total) may well result in the award for the initial partial incapacity being reduced to a nominal amount because the subsequent total incapacity will have eliminated the workers ability to earn in any event. The exercise of the discretion may also be relevant in a situation where the subsequent incapacity is partial, but the precise impact on the initial partial incapacity will depend on the facts of the particular case, and
d) an entitlement to two awards is subject to the following limit on the quantum of compensation that may be awarded. The combined compensation under the two awards, plus the worker’s residual earning capacity, must not exceed the amount the worker would have earned had he or she remained uninjured (Alcan Australia Ltd v Jordan (1995) 11 NSWCCR 475 at 482E (Jordan)). This does not offend section 40(5) of the 1987 Act, which restricts the compensation payable for ‘any period of partial incapacity’ as a result of an injury (see section 33 of the 1987 Act) but says nothing about the quantum of compensation payable in respect of multiple awards resulting from multiple injuries.
[60] The determination of whether two injuries have resulted in separate and distinct incapacities is not done in the abstract, but is done by looking at the labour market in which the worker is working or may reasonably be expected to work to look for work. It will be question of fact in each case and it should not be assumed that it will be norm for two injuries to result in two incapacities.”
[16] [2008] NSWWCCPD 125, Cordina Chickens.
45.Roche DP also stated:
“[64] The facts in Jordan are a good illustration of the kind of situation where it was held to be appropriate to find that separate incapacities had resulted from multiple injuries. In that case, the worker developed ‘pot room asthma’ in 1982. In August 1986 he injured his back but continued working. In March 1989 he injured his left knee and back and underwent knee surgery in September of that year. He lost no time from work until his employment was terminated in 1990. Because of the effect of the transitional provisions in the 1987 Act, his first back injury was deemed to have happened in March 1989 and these constituted a single injury for the purposes of the 1987 Act (at 483C).
[65] The trial judge made three awards: first, a closed period in respect of the asthma (not the subject of appeal), second, under section 11(2) of the 1926 Act based on the asthma, and third, under section 40 of the 1987 Act based on the knee and back injuries (the orthopaedic injuries). The Court of Appeal (Handley JA with Gleeson CJ agreeing) set aside the section 11(2) award on the basis that the orthopaedic injuries destroyed the mutuality, which is central to an employer’s obligation under section 11(2) (at 481G). The Court also found error in that the quantum of the awards exceeded the worker’s probable earnings had he not been injured. The Court added (at 483E), however, that the worker had ‘two distinct partial incapacities’ (one as a result of his inability to work in the pot room because of his asthma and one as a result of his inability to engage in lifting heavy weights or traverse uneven ground or climb stairs because of his orthopaedic injuries) resulting from separate injuries and he was therefore ‘entitled to separate awards under section 40(1)’. The matter was remitted for the calculation of the quantum of those awards.
[65] The matter of Cullen v Oceanic Coal Australia Limited (West Wallsend Colliery) (unreported 6 October 2004, Bishop CCJ, No. RJ18 of 2004) is also instructive. In that matter his Honour entered two separate awards against the employer for partial incapacities in addition to confirming the continuation of a third (existing) award of partial incapacity. His Honour found ‘separate’ partial incapacities for a right shoulder injury in 1993, a right eye injury on 15 December 2000, and a left knee injury on or about 26 June 2001. No challenge was made to the fact that the total compensation payable greatly exceeded the maximum in section 40(5) of the 1987 Act.
46.Mr Tartaro’s counsel submitted that a more recent application of the principles in Cordina Chickens is found in Stewart v State of New South Wales (NSW Police Force)[17]. That was a decision of Member Sweeney and involved a worker who was also a police officer who was discharged from that employment due to a psychological injury and was in receipt of weekly compensation for that injury. He also sought a separate award of weekly compensation in relation to physical injuries he had suffered while in the Police Force. Notwithstanding these similarities, needless to say, every case turns upon its own particular facts and evidence.
[17] [2021] NSWPIC 133, Stewart.
47.The respondent in its submissions does not dispute that these are the applicable legal principles.
Injury
48.Roche DP in Cordina Chickens at [61] stated that the first question to be asked was whether the worker had received one injury or two. In Mr Tartaro’s case the answer to this question is quite clear, as the evidence establishes he has received a psychological injury and a series of physical injuries. They are separate injuries. The psychological injury is a primary psychological injury.
Incapacity
49.The second question posed in Cordina Chickens at [61] was whether the worker has sustained one incapacity or two separate and distinct incapacities. In Cordina Chickens Roche DP did not accept that the evidence established separate or distinct incapacities. In that case Roche DP examined the medical evidence and found the treating medicine did not discern any separate or distinct incapacity as a result of the carpel tunnel injury as opposed to the crush injury. He also observed that the worker’s statement made no attempt to identify the restrictions she had as a result of one injury as compared to another.
50.Mr Tartaro’s submissions in relation to the psychological injury noted that Mr Tartaro was currently certified by Dr De Marco as being fit to carry out suitable duties for four hours per day, three days per week from 20 August 2021.
51.Counsel referred to the evidence before the Commission in relation to the nature and extent of his physical incapacity. It was submitted, relying on Dr Oates’ report, that as a result of his lumbar spine injury, Mr Tartaro has restrictions with lifting limited to no more than 10kg, walking for 200 metres, sitting for 30 to 60 minutes, difficulty with stairs and driving and interference with sleep. In addition, in relation to his cervical spine he has difficulty with pain, stiffness, headaches, pain with arms overhead or outstretched, need to lie down for relief and sleep disturbance.
52.As a result of his right knee injury, it was submitted that Dr Oates found Mr Tartaro suffered from constant pain, pain when going downstairs and squatting, stiffness and the knee giving way. In relation to his left wrist, counsel referred to Mr Tartaro experiencing pain when pushing, pulling, lifting, and twisting with the left hand and wrist.
53.Mr Tartaro’s counsel submitted that Dr Oates found Mr Tartaro was not fit to carry out the full and unrestricted duties of a general duties police officer because of the restrictions he sets out in his report. Counsel also relied upon Dr Oates’ opinion of the physical restrictions on employment outside the police force for three half days per week on a four hours per day basis on alternative days, to allow a rest and recovery day between work days.
54.Counsel also relied upon Dr Clayton’s opinion, which he said confirmed Dr Oates’ opinion. Dr Clayton also found that Mr Tartaro is unfit for his pre-injury employment as a police officer and is fit only for suitable duties in an office administrative role, provided that he had has frequent breaks every five to ten minutes and is able to keep standing to a minimum. He would require a sit/stand desk and would not be able to lift more than 5kg below waist height or above shoulder height.
55.It was submitted that Dr Kinny expressed the view that Mr Tartaro’s prognosis in relation to his lumbar spine and cervical spine is of gradual deterioration. And that Mr Tartaro will need a knee replacement in the next few years and he should avoid heavy lifting, working in a stooped posture, resisted pushing or pulling activity, or prolonged sitting as well as prolonged standing, or walking on uneven ground. It was submitted that Dr Kinny supports that Mr Tartaro could not perform his full police duties.
56.Counsel relied upon Mr Tartaro’s self-assessment of his work capacity is noted paragraph 139 of his witness statement dated 3 June 2022 as five hours per day, four days per week (with Wednesdays off).
57.The upshot of the submissions made on behalf of Mr Tartaro is that he has separate and distinct incapacities for employment.
58.The respondent argues that there is no separate and distinct incapacity for employment. The respondent’s counsel made the following arguments:
(a) after each of the pleaded physical injuries any incapacity Mr Tartaro suffered from employment was short lived. Reliance was placed on the general practitioner’s medical certificates, summarised earlier in these reasons. It was submitted that each of the certificates in relation to Mr Tartaro’s back certified him fit for pre-injury duties. In relation to the left wrist, it was submitted that the medical certificate is only for one day and for the right knee at best he was unfit for two weeks and then fit for pre-injury duties.
(b) That Mr Tartaro has not placed before the Commission any other treating medical evidence. It was argued that in his statement Mr Tartaro refers to having chiropractic treatment regularly, but has not provided evidence from the chiropractor or clinical notes from his general practitioner. Counsel submitted that an inference can be drawn that any incapacity for work from these physical injuries would have been very minor because he did not go to see a doctor.
However, I find that I cannot draw such an inference because Mr Tartaro in his statement at [163] explains “I don’t really consult my GP in relation to each of my physical injuries as there is not much my GP can do for me.” He advises he generally only took over the counter analgesic medication for his pain when required. He also stated at [47]:
“I would end up with a sore back, but then again everything was sore, but if I could carry out my duties next time I turned up to my shift, I generally wouldn’t both with an incident report or a workers compensation claim. Particularly if I was on my last shift before 4 or 5 days off.”
(c) Dr Clayton lists he had before him a number of treating reports from Dr Mahony which are not before the Commission nor are the radiological investigation reports. However, as all of those reports he lists from Dr Mahony are from 2006, I am not persuaded that the absence of them affects the determination as to whether there is a separate and distinct incapacity for employment when the claim for a separate award dates from 20 August 2021. I also do not accept this submission because I note that Dr Kinny lists that the respondent had sent him the reports from Dr Mahony, the radiology reports as well as other medical reports. He gives a detailed commentary about the radiological reports and therefore I do not consider that the Commission’s determination will suffer by not having the actual reports before it. There was no submission in relation to any particular aspects of the radiology. Furthermore, if the respondent wished to rely on any of those reports it could have filed them.
(d) The respondent also submits that in relation to Mr Tartaro’s back there was only a slight increase in WPI from 11% on 29 March 2007 to 7 October 2021, of an additional 1% WPI, based upon the complying agreements entered into between the parties. Mr Tartaro’s counsel submitted that the increase in WPI was due to increase in the effect on the back injury on activities of daily living. I do not regard this fact as determinative, and I note the respondent later submitted that it conceded it had paid permanent impairment compensation, but submitted that does not equate to incapacity. I agree with this aspect of the submission.
(e) It was also submitted that it is not sufficient for a medico-legal doctor to provide a report using the language that there is a “separate and distinct incapacity”. It was further submitted that they have to demonstrate that the physical injuries have caused an incapacity from 20 August 2021. This is an unobjectionable submission, however the medico-legal doctors in this case, I find, do not merely use that language they explain what their opinion is regarding Mr Tartaro’s physical incapacity.
(f) It was noted that the general practitioner has provided certificates from that date in 2021 to say Mr Tartaro has capacity to work for 12 hours per week in relation to the psychological injury but has not provided any recent certificates in relation to the physical injuries. The respondent’s counsel drew attention to Mr Tartaro’s statement where he concedes he could work more than this estimated at five hours, four days per week with a Wednesday off.
(g) The respondent referred to Dr Clayton’s report and submitted that if Mr Tartaro remained as a police officer he could perform administrative type work provided he could have breaks and a sit and stand desk would be appropriate and he could work full time hours, five days per week. Counsel submitted that Mr Tartaro sets out in great detail why he cannot do various jobs, but he does not give the positive side as to what he could do. It was noted that Dr Clayton’s answer in paragraph 10 is inconsistent with the earlier paragraphs.
(h) Dr Kinny says he asked Mr Tartaro to assume if his psychological condition resolved could go back to work as a police officer and he replied possibly he could. It was argued by the respondent that Mr Tartaro has some physical limitations which means he could struggle on the open labour market, but his restrictions are very minor such as a lifting restriction of 5kg. It was submitted he could work in an office where it would be most unlikely he would need to lift. It was also submitted that it is a fact that Mr Tartaro did demonstrate he could keep physically working as a police officer and it is the psychological injury that put him off work. It is submitted that both Dr Clayton and Dr Kinny support this proposition. The respondent submits that this fact is against the proposition that Mr Tartaro has a separate and distinct incapacity.
(i) It was submitted that Dr Oates states Mr Tartaro cannot do general operational police duties but that does not mean he cannot do administration duties. It was submitted that the Commission should accept Dr Kinny and Dr Clayton that full time duties with some restrictions, is his ability to perform physical duties.
(j) The respondent relies on Jones v Dunkel[18] to argue that an inference should be drawn that regarding the absence of medical certificates and general practitioner reports or notes and the respondent relies on Department of Education and Training v Ireland[19] and submits the Commission should find that Mr Tartaro has not discharged his onus of proof. For the reasons given earlier, I do not accept any inferences can be drawn. In addition, Mr Tartaro submitted in reply that this is a claim going back to only August 2021 and there are three medico-legal reports spanning to period to date. So he argues it is not correct to characterise this as a case where there is no evidence in relation to incapacity. For the reasons discussed below I find that Mr Tartaro has discharged his onus of proof.
[18] [1959] HCA 8; (1959) 101 CLR 298, Jones v Dunkel.
[19] [2008] NSWWCCPD 134, Ireland.
59.The question of whether Mr Tartaro has a separate and distinct incapacity for employment, I find, has to be answered in the affirmative based upon the consideration of all of the evidence before the Commission. Firstly, he clearly has an incapacity in relation to his psychological injury. His medical certificates certify he has capacity for some type of work for four hours a day three days per week. This means he has incapacity for the balance of a normal full time working week. He has incapacity in performing work as a police officer. Dr Scurrah finds that Mr Tartaro’s mood symptoms do not allow him to perform operational or non-operational roles as a police officer. The doctor states that he doubts he would be able to obtain/maintain alternative forms of open market employment. He says Mr Tartaro has anxiety, lowered mood, sleep disturbances and lowered energy amongst other symptoms. Also much of Mr Tartaro’s statement deals with his views about various jobs that he says he would find difficult to undertake dealing with people.
60.While it seems superficially attractive to assert Mr Tartaro has no incapacity from his physical injuries because he had been able to undertake the physical demands of a police officer until he stopped work due to his psychological injury, I find this is an incomplete analysis. The respondent conceded that Mr Tartaro has physical restrictions on the open labour market, but he could do administration work.
61.Dr Kinny found in relation to Mr Tartaro’s lumbar spine he should avoid heavy lifting, working in a stooped posture, resisted pushing or pulling activity, or prolonged sitting. In relation to his right knee, he stated that Mr Tartaro should avoid prolonged standing or walking on uneven ground and stairs, and he should avoid heavy lifting. He also found that he may have some difficulty with driving due to his cervical injury and his lumbar condition due to the effect on him sitting for prolonged time. He then expresses his conclusion that Mr Tartaro might have difficulty with full police duties from a physical point of view and he may have to be placed on restricted duties long-term.
62.Mr Tartaro’s counsel submitted that Dr Kinny was not asked, and he did not express an opinion, about the hours that Mr Tartaro could perform in suitable duties. His counsel urged the Commission to give weight to the opinion of Dr Oates because he has a speciality as an occupation physician.
63.Mr Tartaro’s counsel cited Arnotts Snack Products Pty Ltd v Yacob[20] in relation to the concept of partial incapacity with the High Court at [178] stating:
“The concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work. Under s. 11(1) (section 40 of the 1987 Act) an applicant’s entitlement to compensation will depend on his loss of earning power.”
[20] (1985) 155 CLR 171, Yacob.
64.I consider all three experts have found that due to Mr Tartaro’s various workplace injuries he suffers from physical restrictions on his employment in the open labour market. To the extent their opinions differ, I accept the submission of Mr Tartaro that Dr Oates’ opinion should be preferred because of his particular expertise in the area of occupational medicine. I find that Dr Oates is of the opinion that Mr Tartaro does have an incapacity for employment because of his physical injuries that is separate and distinct from the incapacity from his psychological injury.
65.Dr Oates believed that Mr Tartaro is not fit to carry out the full and unrestricted duties of a general duties police officer due to his lumbar spine, cervical spine, knee and wrist conditions. Dr Oates also found a myriad of restrictions on Mr Tartaro’s employment such as the knee condition would preclude him from running, prolonged standing, squatting, kneeling and climbing. He opined that the lumbar injury prevents Mr Tartaro from running, bending, twisting, doing heavy lifting and carrying heavy objects.
66.In addition, Dr Oates advised that Mr Tartaro’s cervical spine would cause difficulties with sedentary tasks such as administration and desk duties because muscle stiffness would be exacerbated during prolonged periods of sedentary work, and he would have headaches and difficulty with concentrating and erosion of work performance.
67.Due to all of these physical restrictions Dr Oates estimated that Mr Tartaro would only be fit for three half days per week on a four hour per day basis on alternate days due to his physical deconditioning since he last work and the effect of his physical injuries. He estimated he could only sit for an hour maximum at a time and some days 30 minutes due to variable level of symptomatology in his lumbar spine and he recommended a walking limit of 200 metres and driving limit of one hour.
68.As noted earlier Mr Tartaro believes Dr Oates assessment is too restrictive and his self-assessment is that he could undertake five hours per day, four days per week (with Wednesdays off). I find this seems a reasonable estimate particularly if one focuses on the restrictions applicable for sedentary administrative work, in employment where he could sit and stand at will. Accordingly, I find that Mr Tartaro has an incapacity to perform full time unrestricted physical duties on the open labour market but has a capacity to work in an office in an administrative capacity where he could stand and sit at will for 20 hours per week.
69.This incapacity is separate and distinct from his psychological incapacity, which is likely to further restrict his employment to workplaces where he does not need to deal with the public or stressful situations.
Calculation of compensation
70.Because Mr Tartaro sustained injury while a police officer he is exempt from the weekly payments amendments introduced by the Workers Compensation Legislation Amendment Act 2012. The applicable weekly payment provision of the Workers Compensation Act 1987 (the 1987 Act) in relation to partial incapacity is s 40, as set out below:
“(1) Entitlement The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.
Note—
Section 35 limits the maximum weekly payment of compensation under this section.
(2) Calculation of reduction in earnings of worker—general
The reduction in the worker’s weekly earnings is (except as provided by this section) the difference between:
(a) the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment, and
(b) the average weekly amount that the worker is earning or would be able to earn in some suitable employment, from time to time after the injury.
Note—
The difference between (a) and (b) is the maximum amount of compensation payable to the worker. It is not a limit on the combined total of compensation and earnings.”
71.As submitted by Mr Tartaro’s counsel in Mitchell v Central West Health Service[21] the Court of Appeal set out the steps to calculate an award under s 40 as follows:
1. Determine in accordance with section 40(2)(a) the weekly amount that the worker would have been earning but the for the injury;
2. Determine in accordance with section 40(2)(b) the weekly amount that the worker is earning or would be able to earn in suitable employment (the determination of this amount is subject to the matters referred to in section 40(3));
3. Subtract the figure calculated in step 2 from that calculated in step 1;
4. Decide in accordance with section 40(1) whether and to what extent the reduction so calculated appears proper in the circumstances of the case and exercise that discretion accordingly;
5. Make an award in the amount arrived at by step 4.
[21](1997) 14 BSWCCR 526, Mitchell.
72.Mr Tartaro’s counsel submits but for the injuries which have prevented him working as a police officer he would be a Detective Level 10. He relies on the evidence from Mr Puglisi that the salary would be the award rate plus 10% for overtime and other user pay roles performed by police officers. Counsel relies on mathematical calculations are set out in the letter of demand on pages 49 and 50 of the ARD. The respondent did not cavil with these calculations or the evidence of Mr Puglisi.
73.It was submitted by Mr Tartaro’s counsel that even without the allowance for overtime and User Pays, Mr Tartaro would be earning at minimum the current Award Rate of $126,745 gross per annum for a Detective Level 10. This equates to $2,437.40 (gross) per week. It is noted that at present Mr Tartaro is receiving the statutory maximum payments allowable under s 37 of $694 per week in respect of his psychological injury.
74.It is argued on behalf of Mr Tartaro even if he were to be awarded the statutory maximum payment in respect of the physical injury (a further $694 per week), the applicant would still be receiving $1,049.40 per week less than he would be earning if he was uninjured.
75.It is submitted that Mr Tartaro had a discrete and significant incapacity caused by his physical injuries before the onset of his psychiatric condition and applying Jacob he has a partial incapacity. I have accepted this submission.
76.It is argued that the incidents that caused Mr Tartaro’s physical injuries were separate to the incidents/traumatic scenes that caused the applicant’s psychological injury and PTSD symptoms. Therefore, his counsel submits in accordance with the principles in Cordina Chickens, this entitles him to a second weekly compensation payment. I find that Mr Tartaro is entitled to a second award of weekly compensation.
77.It is submitted that there are no discretionary factors to give rise to a reduction under step 4 of the Mitchell test because the claim does not traverse any period in which Mr Tartaro was certified wholly incapacitated as a result of psychological injury. It is submitted that the s 78 notice relied upon by the respondent does not refer to any discretionary factors warranting a reduction. The respondent’s counsel did not submit that there were any discretionary factors to reduce the award.
78.Mr Tartaro seeks an award at the maximum s 40 rate for an injured worker with a dependent spouse from 20 August 2021 to date and continuing.
79.The respondent’s counsel stated it does not dispute the mathematics of the amounts claimed in letter of claim[22]. As discussed during the hearing, the current statutory maximum applicable to Mr Tartaro is agreed to be $694. From 1 April 2021 to 30 September 2021 the figure is $670.10, from 1 October 2021 to 31 March 2022 $665.90 and from 1 April 2022 to 30 September 2022 for a worker with a dependent spouse it is $688.90.
[22] ARD p 50.
80.I have accepted that Mr Tartaro’s physical incapacity equates to 15 hours per week. Based upon the salary claimed without overtime of $2,437.40 per week leaves an hourly rate in excess of $60 and so the loss for 15 hours per week well exceeds the statutory maximum. Therefore, I make an award in favour of Mr Tartaro at the maximum statutory rate for a worker with a dependent spouse from 20 August 2021 to date and continuing, as adjusted.
Costs
81.Because Mr Tartaro is an exempt worker the Commission has power to make a costs order. I order that the respondent pay his costs as agreed or assessed.
82.His counsel sought an uplift on his costs for complexity by 25%. He submitted that his statement was very detailed as were the submissions and even though the ARD evidence was a comparatively small bundle it took effort to achieve that. Counsel also submitted that a measure of the complexity was that the respondent’s oral submissions took 45 minutes. The respondent submitted that there was nothing out of the ordinary and 25% too high.
83.I am not satisfied that a complexity uplift should be granted. Obviously every matter that comes before the Commission involves disputed evidence. Here there was a need to consider the opinions of three medico-legal experts and Mr Tartaro’s statement and some well-known and established legal authorities. In my view this does not make a matter complex. The hearing was able to be completed in the usual time. I exercise my discretion and refuse to make a complexity uplift order.
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10
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