Wakefield v State of New South Wales (NSW Police Force)
[2022] NSWPIC 610
•3 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Wakefield v State of New South Wales (NSW Police Force) [2022] NSWPIC 610 |
| APPLICANT: | Jamie Wakefield |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| Member: | Cameron Burge |
| DATE OF DECISION: | 3 November 2022 |
CATCHWORDS: | WORKERS COMPENSATION - Separate accepted physical and psychological injuries; whether applicant is entitled to claim weekly compensation for two partial incapacities; requirement to establish separate and distinct incapacities for employment; Cordina Chicken Farmers Pty Ltd v Thuoa Hong Le discussed and followed; Held – the evidence discloses the applicant suffers separate and distinct incapacities as a result of his physical and psychological injuries; whether the applicant would have been promoted to inspector as alleged by him; the evidence does not discharge the applicant’s onus of proving he would have been promoted from sergeant to inspector as alleged, however, the applicant would have progressed to sergeant level 9; the applicant’s post-injury earnings reflect his capacity for employment; Aitkin v Goodyear Tyre Company) followed; whether the discretion in the former section 40(1) of the Workers Compensation Act 1987 (1987 Act) should be exercised to reduce the amount of compensation payable; Mitchell v Central West Health Service applied; aside from short periods of total incapacity and another where the applicant was not working despite being certified partially fit, this is not a matter where the discretion pursuant to section 40 of the 1987 Act should be exercised; the quantum of the applicant’s actual loss is readily identifiable; there is also no suggestion the value of applicant’s combined partial incapacities exceed the amount which he would have earned but for injury; respondent ordered to pay the applicant weekly compensation pursuant to section 40 of the 1987 Act. |
| determinations made: | 1. The applicant suffered an injury to his left leg at or above the knee on 27 March 1997 in the course of his employment with the respondent. 2. The applicant suffered an injury to his right upper extremity (wrist) in the course of his employment with the respondent on 20 January 2004. 3. The applicant suffered an injury to his left lower extremity (ankle and Achilles) in the course of his employment with the respondent on 17 June 2004. 4. The applicant suffered injury to his right lower extremity (right knee and ankle) in the course of his employment with the respondent on 21 February 2009. 5. The applicant suffered injury to his lumbar spine in the course of his employment with the respondent in or about July 2010. 6. The above injuries have given rise to a partial incapacity for employment. 7. The impairment for employment caused by the above injuries is separate and distinct from the partial impairment for employment caused by the applicant’s accepted psychological injury with a deemed date of injury of 22 October 2010. 8. But for injury, the applicant would have progressed to the rank of sergeant level 9 in his employment with the respondent. 9. The applicant’s probable weekly earnings for the purposes of s 40(2)(a) of the Workers Compensation Act 1987 (the 1987 Act) is the loaded rate applicable to that position from time to time plus an above award payment of 10%. 10. The applicant’s weekly ability to earn in some suitable employment from time to time for the purposes of s 40(2)(b) of the 1987 Act is as follows: (a) 1 July 2012 to 30 June 2013, $19.92; (b) 1 July 2013 to 30 June 2014, $369.81; (c) 1 July 2014 to 30 June 2015, $904.77; (d) 1 July 2015 to 30 June 2016, $865.87; (e) 1 July 2016 to 30 June 2017, $781.08; (f) 1 July 2017 to 30 June 2018, $827; (g) 1 July 2018 to 30 June 2019, $867.10; (h) 1 July 2019 to 30 June 2020, $915.17; (i) 1 July 2020 to 30 June 2021, $1,005.38, and (j) 1 July 2021 to date and continuing, $1,030.52. 11. In the exercise of the discretion granted by s 40 of the 19987 Act, reduce the compensation payable for the period 25 November 2011 to 17 June 2012 to $100 per week and for the period 18 June 2012 to 18 February 2013 to $1 per week. 12. The respondent is to pay the applicant weekly compensation pursuant to s 40 of the 1987 Act as follows: a. for the period 25 November 2011 to 17 June 2012 at the rate of $100 per week; b. for the period 18 June 2012 to 18 February 2013 at the rate of $1 per week; c. for the period 19 February 2013 to 30 June 2013 at the rate of $852.66 per week; d. for the period 1 July 2013 to 30 June 2014 at the rate of $448.06 per week; e. for the period 1 July 2014 to 30 June 2015 at the rate of $390.90 per week; f. for the period 1 July 2015 to 30 June 2016 at the rate of $454.55 per week; g. for the period 1 July 2016 to 30 June 2017 at the rate of $673.99 per week; h. for the period 1 July 2017 to 30 June 2018 at the rate of $690.66 per week; i. for the period 1 July 2018 to 30 June 2019 at the rate of $720.63 per week; j. for the period 1 July 2019 to 30 June 2020 at the rate of $675.08 per week; k. for the period 1 July 2020 to 30 June 2021 at the rate of $617.14 per week, and l. for the period 1 July 2021 to date and continuing at the rate of $645.34 per week. 13. Liberty to apply in respect of the above calculations. 14. The respondent is to pay the applicant’s costs as agreed or assessed, including an uplift for complexity at the maximum allowable rate, the uplift being payable to the legal representatives of both parties. |
STATEMENT OF REASONS
BACKGROUND
The applicant brings a claim for weekly payments from 1 November 2011 to date and continuing in respect to physical injuries suffered in the course of his employment with the respondent as a police officer.
The fact of the physical injuries is not in issue, nor is the fact they have caused some incapacity for employment. However, the matter was complicated by the applicant already receiving payments for partial incapacity in respect of an accepted psychological injury also suffered in the course of his employment with the respondent.
By s 78 notice dated 30 November 2021, the respondent denied liability in respect to the claim for weekly compensation on the basis the applicant is not entitled to claim multiple awards for weekly benefits as the impairments relating to the psychological and physical injuries are intertwined. It is this dispute, which brings the matter before the Personal Injury Commission (the Commission).
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant is entitled to two awards of weekly compensation because he suffers from separate and distinct incapacities arising from physical and psychological injuries respectively, and
(b) what were the applicant’s probable earnings but for his injuries and accordingly, what is the amount of any compensation payable by the respondent.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 29 July 2022. 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.
Following the hearing, the Commission issued a direction for written submissions, and the last of those submissions was received on 12 August 2022.
At the hearing, Mr Hammond of counsel instructed by Mr Burke appeared for the applicant. Mr Gaitanis of counsel instructed by Mr Marsh appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents, and
(c) respondent’s Application to Admit Late Documents (AALD) dated 21 July 2022.
Additionally, the parties lodged written submissions which, though not in evidence, were taken into account in reaching this decision.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant suffered separate and distinct incapacities
The applicant submitted he suffers separate and distinct incapacities for employment. He claims his psychological injury caused him incapacity for work as a police officer, whereas his physical injuries have left him partially incapacitated for other employment.
Mr Hammond for the applicant took the Commission to the decision of Deputy President Roche in Cordina Chicken Farmers Pty Ltd v Thuoa Hong Le [2008] NSWWCCPD 125 (Cordina). At [59] in that decision, the Deputy President said:
“(a)A worker who has received two injuries that had 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;
(b)The two injuries to not have to be received with different employers in order for the worker to be entitled to two awards (Sydney City Council v INCE (1989) 1616 NSW LR 690 at 701D and Holmes v Civil and Civic Pty Ltd (1972) SR (NSW) 583 (Holmes) at 592);
(c)Whilst a finding of 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 s40 for the initial partial incapacity calls for the application of the discretion in s40(1) 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 worker’s 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 limits 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 s40(5) of the 1987 Act, which restricts the compensation payable for ‘any period of partial incapacity’ as a result of an injury (see s33 of the 1987 Act) but says nothing about the quantum of compensation payable in respect of multiple awards resulting from multiple injuries.
The determination of whether two injuries have resulted in separate and distinct incapacities is not done on the abstract, but is done by looking at the labour market in which the worker is working or may reasonably be expected to look for work. It will be a question of fact in each case and it should not be assumed that it will be the norm for two injuries to result in two incapacities."
The applicant submitted the preponderance of the medical evidence disclosed he suffered separate and distinct incapacities. Mr Hammond referred in particular to the report of Dr Bertucen, the respondent’s Independent Medical Examiner (IME) dated 24 October 2011. In that report, Dr Bertucen opined that the applicant was "completely and permanently incapacitated with respect to returning to work as an operational police officer with the New South Wales Police Force at any stage" as a result of his accepted psychological injury. By contrast, Mr Hammond for the applicant submitted his physical injuries had rendered him with separate partial incapacities to carry out employment other than that as a police officer.
The applicant’s physical injuries have led his general practitioner Dr Tay to provide certificates certifying him partially unfit for work from 10 December 2015. The restrictions on which the applicant has been placed include:
(a) four days per week for 7.6 hours per day;
(b) a 15 kg lifting limit;
(c) driving, sitting and standing restrictions of 20 minutes at a time;
(d) a 20 kg pushing limit;
(e) avoidance of bending from the waist and twisting, and
(f) limiting heavy use of the right hand.
For the respondent, Mr Gaitanis noted the relevant requirement for two separate and distinct incapacities. He noted the clinical records of Kim Hadley, treating psychologist, which he submitted demonstrated an intermingling and intertwining of impairments to the point of actually a single indistinguishable impairment.
At this point I note there no issue that a single incapacity may be attributable to more than one injury; (see National and General Insurance Company Ltd v South British Insurance Company Ltd (1982) 149 CLR 327 per Deane J).
The respondent submitted, and I accept that a physical and a separate psychological injury can give rise to a single incapacity, as was noted in the decision of O’Grady DP in Harrington v NSW Police Force [2015] NSWWCCPD 31 (Harrington). At [47], the Deputy President noted the causal nexus between an incapacity and a particular injury is a question of fact to be determined having regard to all the circumstances of the case.
Mr Gaitanis referred to a number of aspects of the evidence which he submitted are suggestive of a single impairment arising from both the accepted physical and psychological injuries. Central to the respondent’s position were a number of entries in which Ms Hadley noted the applicant "strongly identified" as a police officer.
These entries included a question-and-answer report dated 5 September 2011, in which Ms Hadley recommended the applicant be provided with a TAFE or university course "to re-establish his concept of self and provide a new direction as he is strongly identified as a policeman". Mr Gaitanis submitted that evidence was consistent with the report of Dr Cassidy, treating psychiatrist dated 15 September 2011, in which Dr Cassidy said:
"Mr Wakefield has been strongly committed to the New South Wales Police Force. He tells me that from childhood, his only aim was to join the police and he has struggled with the prospect of leaving the police. He has looked at a number of alternative roles, in particular he was interested in the roles of crime coordinator or a licencing sergeant. On further reflections as he continued, it has become clear to him that with the frequently triggering experiences that occur when he has contact with police or in sight of police uniforms, that these are not realistic…
He impressed me as taking an enormous amount of pride in his work and his role within the New South Wales Police Force and was clearly someone who had committed his life to fulfilling his job as well as he could."
Mr Gaitanis noted the clinical notes from 2019 disclosed that while seeing his psychologist, the applicant also complained of his physical injuries in the context of psychological issues, noting he could not box to assist with his anger issues because his wrist was sore and he was on workers’ compensation for the knee, ankle and wrist injuries.
The respondent also noted that in 2018, the applicant complained to his psychologist about the insurer’s handling of his back injury claim and that he "unloaded" as a result. Mr Gaitanis submitted that this was another example of the interplay between the psychological and physical injuries giving rise to a single, indistinguishable impairment.
The clinical notes from Ms Hadley in February 2022 note the applicant’s "physical and psychological go hand-in-hand". At that time, the applicant was complaining his physical injuries were "reminding him there was no change in his situation".
The respondent submitted Ms Hadley’s clinical records made it clear the applicant could cope to an extent with his psychiatric injury whilst he could exercise, but the physical injuries made the psychological impairment worse. That submission is supported by Ms Hadley’s report dated 18 March 2018 to the respondent’s insurer. In that document, Ms Hadley noted:
"Since the change at work, Jamie’s condition has stabilised. The main challenges for Jamie are his ongoing triggers that result in disturbing memories, his level of hypervigilance which he describes as feeling ‘wired’, physical injuries that prevent him from exercising at a pace he formerly enjoyed, a lack of trust in others, discontent with his wife’s apparent rigidity and excessive worry about his children’s safety…
Jamie’s opinion of the triggers for his psychiatric condition are that certain jobs he carried out in the police force were particularly horrific. In the past, he managed to cope by exercising to a point of exhaustion and this provided a distraction and an adrenaline release that helped him to switch off and control his active mind.
As time passed, however, his body became riddled with injury and eventually his mind and emotional state declined."
That opinion was reinforced in Ms Hadley’s report dated 28 August 2018 in which she noted:
"Jamie’s condition has deteriorated due to unremitting physical pain (back, knee, ankle) and the impact this has on his management of symptoms of post-traumatic stress disorder. The more the pain he experiences, the more he dislikes the person he has become, the less joy he experiences, the more he withdraws, the angrier he becomes, the less he sleeps, the more tired he is, the more irritated, the more likely he will be to have conflict with his wife. It is a vicious cycle and he struggles to find inner peace."
The respondent’s submission was the applicant’s physical injuries added to the effects of the psychological condition to the point they gave rise to an incapacity.
In a further reported that 7 May 2021, Ms Hadley noted the following barrier hindering the applicant’s psychological recovery:
"Jamie suffers from chronic back pain. At times this is not helped by enduring long periods of sitting still in his work car. While Jamie continues to be active, his exercise routine is not always conducive to good back care. Jamie rarely takes pain medication and has been known to have a serious allergic reaction to certain medications."
The respondent’s s 78 notice disputed whether the applicant has any incapacity arising from his physical injuries, however, its submissions, both at the hearing and in writing relied on an intermingling of physical and psychological incapacities rather than an absence of any physical incapacity at all. I have no difficulty in accepting there is physical incapacity.
The overwhelming preponderance of the medical evidence in this matter supports a finding of a physical incapacity as a result of the physical injuries. The question then becomes whether that impairment is separate and distinct from that suffered as a result of the psychological injury.
On balance, I am of the view the applicant has sustained separate incapacities for employment. The fact the applicant’s physical condition impacts upon his psychological well-being is not, in my view, determinative of whether the impairments arising from each of those categories of injury are separate and distinct. On examining the evidence, it is apparent the applicant obtained alternative employment once he left the police force. In his uncontested statement evidence reveals that between approximately 2014 and 2015, he worked at Unimet Security training dogs for 20 hours per week and that from 2015 to present, he worked as an investigator at the Animal Welfare League investigating animal cruelty. He says he has a current workers’ compensation certificate clearing him to work four days per week.
In his statement, the applicant provided the following evidence concerning the effect of his injuries:
"245. In my own estimation, I would attribute half of my incapacity to engage in any employment to the various, neck, back/spine, right knee, left knee, right ankle, left ankle and left Achilles, right wrist, left wrist, left elbow, groin/hernias in both shoulders. I have suffered during the course of my employment and the consequential inability to bend, lift, twist, carry, sit, stand or move freely. All these injuries have caused me to severely restrict or adapt to daily life.
246. I would attribute the other half to my inability to confront situations, people or places that trigger memories of the many and varied violent, traumatic and stressful events I experienced in the course of my duties as a police officer. My PTSD again severely resists my daily life and my ability to function."
In my view, the medical evidence clearly discloses the applicant is incapacitated for employment as a police officer as a result of his psychological injury. However, his physical injuries have led to a separate and distinct impairment, namely a partial impairment from carrying out other employment. The physical injuries sustained by the applicant were separate to the incidents and traumatic scenes which caused the psychological injury, a fact which in itself is not determinative of whether there are separate incapacities. However, the evidence discloses the nature of the impairment caused by the physical injuries is different to that of the psychological injury. For example, Dr Stephen, spinal surgeon notes limitations on lifting, bending and working in confined spaces, together with avoidance of prolonged sitting and standing. Dr Oates, IME also noted the following when asked about limitations to work capacity brought about by the physical injuries:
“18. Taking into account the physical effects and/or limitations consequential upon the various injuries to Mr Wakefield’s lumbar spine, right knee, right ankle, wrists, left ankle and left Achilles, left elbow and left knee, does Mr Wakefield suffer an incapacity for work outside the Police Force as a consequence of all or any of these injuries and if so, would you kindly express the incapacity in terms of physical limitations (for example lifting, bending, twisting, carrying, sitting, standing, driving etc) or hours per day or days per week.
He is fit for full‐time work but of a sedentary or light nature only, where he can sit or stand/move about alternately, as required for the comfort of his back and lower limbs. He should avoid duties which involve lifting greater than 10kg, bending or twisting at the waist, heavy pushing and pulling greater than 20kg equivalent, and he should have postural break after each 1.5 hours of driving to get out, move around and stretch his back and lower limbs.”
In my view, that evidence is clearly supportive of the proposition the applicant suffers a separate and distinct incapacity for employment caused by his physical injuries compared with that brought about by his psychological injury.
The respondent served no expert medical opinion to support its claim the psychological and physical injuries have led to one impairment. The applicant was examined by Dr Haig, orthopaedic surgeon on behalf of the respondent, however, his report has not been served despite being relied upon in the s 78 notice. The dispute notice states Dr Haig has provided an opinion as to the type of employment which the applicant should engage in because of his physical injuries. One would expect such a report to be served if it assisted the respondent’s position, and I accept it is appropriate to draw an inference in the circumstances that the report would not have assisted the respondent’s case. Mr Hammond submitted the appropriate inference is the report would have assisted the applicant’s case, however, in my view drawing such an inference would not be consistent with the decision in Jones v Dunkel (1959) 101 CLR 298 at 320.
The respondent relies on its submissions regarding the clinical notes of Ms Hadley. Those notes record the fluctuations in the applicant’s mental state from time to time, however, they do not go so far as to indicate the applicant’s psychological and physical injuries have led to one impairment. As has been noted on many occasions, care must be taken in extrapolating conclusions from the records of treating clinicians. It is one thing for a treating practitioner to note a patient’s physical wellbeing might have some effect on their psychological condition, but that is not the same as suggesting any impairment caused by the separate physical and psychological injuries, arising as they do from separate incidents and injurious events, has led to the one incapacity for employment.
In my view, the physical injuries which the applicant plainly suffers have impacted upon his ability to earn more generally and in roles other than as a police officer. As such, his partial impairment in my view is separate and distinct and satisfies the requirements as set out in Cordina.
The amount of any partial incapacity caused by the applicant’s physical injuries
The parties agree that as the applicant’s entitlement to compensation in respect of his physical injuries is for partial incapacity, it is to be assessed in accordance with the weekly payments provisions of the 1987 Act as enacted immediately before the 2012 changes brought about by the Workers Compensation Amendment Act 2012 (the 2012 amendments). Section 40 at that time provided:
“(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.”
The seminal decision concerning payments pursuant to s 40 of the 1987 Act is Mitchell v Central West Health Service (1997) 40 NSWCCR (Mitchell). In that decision, the Court of Appeal set out the following steps which must be undertaken:
(a) determine the probable earnings but for injuries;
(b) determine the worker’s actual earnings or the earnings he is capable of earning in suitable employment. The applicant’s actual earnings are prima facie evidence of his ability to earn unless they are deliberately taking lower paid work or deliberately avoiding work (Aitkin v Goodyear Tyre Company [1945] 19 WCR (NSW) 107);
(c) determine if there is a difference between the pre-injury earnings and actual earnings;
(d) determine whether the difference between pre-injury earnings and actual earnings should be reduced under the exercise of the discretion under s 40(1) of the 1987 Act, and
(e) make an award.
The probable earnings but for injuries
The applicant submits that, but for his injuries, he would have attained the rank of inspector. The applicant bears the onus of proving that this would be the case, and in support of his claim to this effect, has supplied statements from Sergeant David Ford, former Senior Constable Matthew Browne, and former Senior Constable Michael Farrell. Each of these witnesses have given evidence, which is uncontested, to the effect the applicant was an exceptional police officer who had finished in the higher echelon of his sergeant’s course. Each of the officers indicate the applicant would, had he remained in the police force, have attained the rank of inspector.
For its part, the respondent has adduced no evidence at all on the issue of promotion. As Member Sweeney noted in Stewart v State of NSW (NSW Police Force) [2021] NSWPIC 133, the respondent would undoubtedly have access to a great deal of statistical material relevant to the prospects of an officer’s promotion as well as the applicant’s personnel file.
Whilst the absence of any evidence from the respondent may make the applicant’s task of proving that he would have been promoted to inspector easier than had any evidence to the contrary been adduced, he must still prove the veracity of his assertion.
I am not persuaded that the evidence of the applicant’s lay witnesses together with his own statement are sufficient to convince me on the balance of probabilities that he would have, but for his injuries, attained the rank of inspector.
The evidence in support of this aspect of the applicant’s claim can only be categorised as opinion evidence which, whilst admissible, in my view has little probative value in the circumstances of this case. This is particularly the case where two of the applicant’s lay witnesses attained the rank of Senior Constable before leaving the force. This is in no way a criticism of those officers, who I am sure have done their best to provide an honest account of the applicant’s prospects. However, the witnesses not having achieved the rank of either sergeant or inspector themselves, in my view, renders their opinions less probative than those, for example, of more senior officers within the police force.
The applicant’s submissions noted his attributes which placed him, he submitted, in a position to very likely obtain the rank of inspector. However, as already indicated, that opinion evidence is of little probative value. The applicant noted, that unlike the facts in Stewart, he only needed to ascend one further rank to make inspector, whereas Mr Stewart needed to be promoted on two further occasions.
On balance, I do not consider this factor to be determinative of the question of whether the applicant would have been promoted in this matter. The evidence in support of the suggested promotion is, as has been indicated, nothing more than the opinion of the applicant and fellow officers. To the extent the applicant provides that opinion, his evidence is, understandably, given less probative value because it is (and I say this without any criticism) by its very nature self-serving. Moreover, in order to attain the rank of inspector, the applicant would have first needed to be promoted to senior sergeant.
No independent evidence has been adduced as to the nature of the Inspector selection process, how many candidates make that rank, how long it takes them to do so, the criteria for selection or whether there are any examinations or courses to pass before attaining that rank. The only evidence before the Commission is the opinion evidence of the applicant, a fellow sergeant and two retired senior constables. On balance, I am not satisfied the applicant would have attained the rank of Inspector by 2019 but for his injuries. The applicant has the onus of proving the promotion would have taken place, and on balance I cannot be satisfied on the evidence before me that it would have.
Sadly, even though the salaries paid to officers of varying rank in the police force ought not be controversial, there is still a discrepancy between the parties as to the amount paid to the various ranks at issue in these proceedings. In his statement, the applicant says:
“231. The Loading on the salary is a flat amount that every officer receives which reflects the fact that you change from dayshift to nightshift, you work weekends, you work public holidays and so on. It is a flat percentage of your Award Rate that saves all the administrative hassle of having to determine an ever-changing hourly rate, noting that in 1 x 12-hour overnight shift on Anzac Day, you might go from ordinary time to overtime as well as work part of your shift on a public holiday.
232. The Loaded Salary is the amount you would receive from just working the basic hours, with no overtime.”
The loading on the base salary is reflected in the applicant’s wages schedule. In its written submissions, the respondent calculates any entitlement (which it does not admit) based on figures which are consistent with the loading applying to the applicant’s earnings.
Additionally, the applicant alleges that he would have earned an additional 10% over and above his salary and loading at every level. He states:
“233. On top of the Loaded Salary, Police Officers also routinely work a lot of overtime. You might be out on a job where you arrest someone an hour before the end of your shift. You don’t just go home and tag-team the other officer coming in. You stay until the end of the job. You process the offender, take a statement, make a statement, take photographs, collect evidence, do whatever you have to do to finish the job.
234. There is also a lot of opportunity (and necessity) to work extra shifts for a variety of things. For example (whilst I had medically discharged by the time of the Malcolm Naden search) any officer involved in the Malcolm Naden search would work pretty much around-the-clock on the days they were rostered on. If you thought you were close to finding an offender like that, you don’t just go home after 12 hours – you keep working.
235. There were lots of other cases that were much lower profile than Malcolm Naden, but still very important. Missing persons, missing offenders, you name it. Lots of cases where a 12 hour shift turned into an 18 hour shift.
236. In the Dog Squad, however, there were other financial benefits for dog handlers. You got paid an extra 5 hours per fortnight because you are expected to care for your dog (walk it, feed it, train it et cetera) and were paid disallowance each and every pay run.
237. It added up to a little over $2500 per year, and this is on top of the 10% extra earnings that I could have expected on top of my earnings as a Sergeant ANY sergeant or Inspector as the case may be.
238. In addition to Dog Squad work, there was also lots of other jobs that extended beyond the end of a regular shift, and of course there were numerous occasions where a colleague would be off sick or out injured, and you would need to come in early or stay late, or work a couple of extra shifts to cover them.
239. It’s a pretty reliable rule of thumb that every officer below the rank of Inspector earned about 10% extra on top of their Loaded Salary, each and every year.
240. Once you get the rank of Inspector, you earn a flat amount. It doesn’t change. No matter whether you’re working overtime.”
The respondent does not provide anything to contradict this evidence from the applicant. Plainly it would have been within its ability to do so. This aspect of the applicant’s evidence in my view is a matter of common sense. I have no difficulty in accepting it at face value, and accordingly I find the applicant’s comparable earnings ought to include the additional 10% above the salary including loading.
Lamentably, there is not even agreement between the parties as to when the applicant’s claim for weekly payments should commence. The applicant claims payment of weekly benefits with respect to his physical injuries from 25 November 2011 to date and continuing. For its part, the respondent notes the applicant was certified fit for suitable duties from
3 February 2011 before being totally unfit from 18 June 2012 until 18 February 2013 and submits any claim pursuant to s 40 should only commence from 19 February 2013. It is unclear why this should be so. It may well be the applicant’s entitlement for any period when he was totally incapacitated will be reduced using the discretion in s 40 to a nominal amount, but I see no reason why, accepting as I do the applicant has appropriate certification regarding his relevant incapacity from 25 November 2011, that the claim should not commence from that date. In summary, I find the applicant would have retained his ranks as a sergeant and would have progressed through the grades of that rank. I accept the evidence concerning the 10% uplift in income across all ranks within the police force and also the applicant’s evidence concerning overtime averaging out at approximately 10% of income, noting the respondent has offered no evidence to contradict it. In my view, having regard to the medical certificates, the relevant start date for the applicant’s weekly payments claim is as set out in his wages schedule, namely 25 November 2011. In light of these findings, the applicant’s probable earnings but for injury are as follows:
| Period ends | Rank if stayed in Police | Award rate with loading | Earnings with 10% extra | Comparable weekly earnings |
| (25.11.11 to) 30.6.12 | Sgt level 2 | 87,057 | 95,762.70 | 1,841.59 |
| 30.6.13 | Sgt level 3 | 93,623 | 102,985.30 | 1,980.49 |
| 30.6.14 | Sgt level 4 | 98,423 | 108,265.30 | 2,082.03 |
| 30.6.15 | Sgt level 5 | 104,338 | 114,771.80 | 2,207.15 |
| 30.6.16 | Sgt level 6 | 106,467 | 117,113.70 | 2,252.19 |
| 30.6.17 | Sgt level 7 | 113,755 | 125,130.50 | 2,406.36 |
| 30.6.18 | Sgt level 8 | 117,653 | 129,418.30 | 2,488.81 |
| 30.6.19 | Sgt level 9 | 121,945 | 134,139.50 | 2,579.61 |
| 30.6.20 | Sgt level 9 | 124,994 | 137,493.40 | 2,644.10 |
| 30.6.21 | Sgt level 9 | 127,493.88 | 140,243.27 | 2,696.99 |
| 30.6.22 and continuing | Sgt level 9 | 129,776 | 142,753.60 | 2,745.26 |
Actual earnings in suitable employment
Having determined the applicant would have remained at the rank of sergeant, one must then address the question of his actual post-injury earnings. In this matter, those earnings are not controversial and are set out in the evidence. There is no suggestion the applicant has sought to minimise his post-injury earnings, and he is a witness whom I accept has done his best to carry out employment to the best of his ability. Accordingly, I find that the applicant’s actual earnings from 18 February 2013 (the period when his total incapacity award ended) to date reflect his actual capacity to earn income.
In terms of the applicant’s loss from his psychological injury, I find the amount of his partial incapacity is accurately reflected in the payments made by the respondent to him for that injury. Neither party has suggested the applicant’s partial incapacity arising from his psychological injury is different to that reflected in his ongoing payments and I accordingly have little difficulty finding the payments made by the respondent accurately reflect the applicant’s loss from the psychological injury.
The applicant’s evidence surrounding his post-injury earnings is uncontested. They reveal he obtained employment in 2014 as a dog trainer for 20 hours per week with Unimet Security. In 2015, the applicant was employed with the Animal Welfare League as an investigator, working up to four days per week, a role in which he continues to work. Appropriately, the respondent does not challenge the quantum of the applicant’s weekly earnings, nor does it suggest he is earning less than he reasonably could. I therefore accept the applicant’s figures as to his post-injury earnings as set out in his wages schedule, and which accord with those of the respondent in its written submissions.
Accepting as I do the applicant’s evidence concerning his post-injury earnings, I find they are as set out in the applicant’s wages schedule and supporting calculations. They will be set out in full later in these reasons.
The difference between pre-injury earnings and actual earnings
Doing my best having regard to the material concerning post-injury earnings, I find the applicant’s losses to be as follows on an annual basis:
Period ends
Police/ Compensation payments
Actual earnings
Total income
Comparable earnings
Difference
(25.11.11 to) 30.6.12
64,294
Nil
64,294
95,762.70
31,468.70
30.6.13
57,611
1,036
58,647
102,985.30
44,338.30
30.6.14
65,736
19,230
84,966
108,265.30
23,299.30
30.6.15
47,397
47,048
94,445
114,771.8
20,326.80
30.6.16
48,452
45,025
93,477
117,113.70
23,636.70
30.6.17
49,467
40,616
90,083
125,130.50
35,047.50
30.6.18
50,500
43,004
93,504
129,418.30
35,914.30
30.6.19
51,578
45,089
96,667
134,139.50
37,472.50
30.6.20
54,80
47,589
102,389
137,493.40
35,104.40
30.6.21
55,872
52,280
108,152
140,243.27
32,091.27
30.6.22 and continuing
55,608
53,587
109,195
142,753.52
33,558.52
Calculated on a weekly basis, the loss is as follows:
Period ends
Police/ Compensation payments
Actual earnings
Total income
Comparable earnings
Loss per week
(25.11.11 to) 30.6.12
1,236.42
Nil
1,236.42
1,841.59
605.17
30.6.13
1,107.90
19.92
1,127.83
1,980.49
852.66
30.6.14
1,264.15
369.81
1,633.96
2,082.03
448.06
30.6.15
911.48
904.77
1,816.25
2,207.15
390.90
30.6.16
931.77
865.87
1,797.63
2,252.19
454.55
30.6.17
951.29
781.08
1,732.37
2,406.36
673.99
30.6.18
971.15
827
1,798.15
2,488.81
690.66
30.6.19
991.88
867.10
1,858.98
2,579.61
720.63
30.6.20
1,053.85
935.17
1,969.02
2,644.10
675.08
30.6.21
1,074.46
1,005.38
2,079.85
2,696.99
617.14
30.6.22
1,069.40
1,030.52
2,099.92
2,745.26
645.34
1.7.22 to date and continuing
1,069.40
1,030.52
2,099.92
2,745.26
645.34
Whether the discretion under s 40(1) should be exercised
In exercising the discretion in s 40(1) of the 1987 Act, it is necessary to conduct a factual enquiry to determine the actual loss sustained by the worker by reason of their partial incapacity. Whilst the discretion cannot be used to reduce an entitlement to nil (Kesen v Luke Singer Pty Ltd (1999) 5 NSWCCR 298), it may be used to significantly reduce the amount awarded.
In relation to the balance of the applicant’s claim, Mr Hammond submitted the decision in Stewart only made a deduction under the discretion pursuant to s 40 for a period of total incapacity. Whilst this is indeed the case, an examination of that decision reveals this was the case because the respondent did not submit otherwise when that proposition was put to it. Member Sweeney, however, in providing his reasons noted, and I agree, that the decision in Cordina in fact is strongly suggestive of a deduction pursuant to the discretion being able to be made anywhere there are concurrent periods of partial incapacity.
The respondent submitted that pursuant to the discretion, a reduction in the amount awarded would be in the order of not less than 75%. With respect, I disagree with that submission.
I have found the applicant currently suffers, and has for many years, two partial incapacities. The first in respect of his psychological injury is one for which he is already being compensated. The question then arises, had his physical injuries not occurred, what would the applicant’s capacity for employment be, factoring in the psychological injury.
In Cordina, the Deputy President suggested that the supervening payment for total incapacity may reduce an award for partial incapacity based on an earlier figure on an earlier injury to a nominal figure. That does not sit squarely within the facts of this case. Here, there are two partial incapacities. The reduction of compensation payable pursuant to the discretion under s 40 is not punitive but enables the Commission to approximate the worker’s actual loss.
In this matter, I consider it appropriate to exercise the discretion under s 40 for the period
18 June 2012 to 18 February 2013 when the applicant was certified totally unfit for work by reason of his psychological injury. For this period, I reduce the amount payable by the respondent to $1 per week. Additionally, for the period 25 November 2011 to 17 June 2012, the applicant earned no income despite being certified partially unfit. For this period, I consider it appropriate in the circumstances to exercise the discretion under s 40(1) to reduce his weekly compensation for the physical incapacity to $100 per week.In relation to the balance of the applicant’s claim for periods where I have found there are two separate and distinct partial incapacities, I do not consider it appropriate to apply the s 40 discretion. The applicant has two partial incapacities, and his actual loss as a result of those incapacities, accepting as I do that he is and has been working to his full capacity, is readily ascertainable.
The respondent has submitted the discretion would be applied to reduce any award by an amount not less than 75%. No substantive reason has been provided to do so, other than that figure being one which has been applied in other matters, including Stewart. However, in that matter, the 75% figure was applied during periods where the worker’s psychological incapacity was total. Unlike the facts in Stewart, the applicant in this matter has retained a quantifiable partial incapacity with respect to his psychological and physical injuries but for a short period of time. This is not a matter where a determination of the applicant’s probable weekly earnings and his ability to earn is fictitious. He has been earning income to the best his capacity allows since 2013. The nature of the partial incapacities in my view enables the Commission to accurately determine the difference between the applicant’s probable weekly earnings but for his injuries and what he has actually earned.
Award
In light of the above findings, the Commission will make the following award pursuant to s 40 of the 1987 Act, the respondent is to pay the applicant weekly compensation as follows:
(a) for the period 25 November 2011 to 17 June 2012 at the rate of $100 per week;
(b) for the period 18 June 2012 to 18 February 2013 at the rate of $1 per week;
(c) for the period 19 February 2013 to 30 June 2013 at the rate of $852.66 per week;
(d) for the period 1 July 2013 to 30 June 2014 at the rate of $448.06 per week;
(e) for the period 1 July 2014 to 30 June 2015 at the rate of $390.90 per week;
(f) for the period 1 July 2015 to 30 June 2016 at the rate of $454.55 per week;
(g) for the period 1 July 2016 to 30 June 2017 at the rate of $673.99 per week;
(h) for the period 1 July 2017 to 30 June 2018 at the rate of $690.66 per week;
(i) for the period 1 July 2018 to 30 June 2019 at the rate of $720.63 per week;
(j) for the period 1 July 2019 to 30 June 2020 at the rate of $675.08 per week;
(k) for the period 1 July 2020 to 30 June 2021 at the rate of $617.14 per week, and
(l) for the period 1 July 2021 to date and continuing at the rate of $645.34 per week.
SUMMARY
For the above reasons, the Commission will make the orders set out on page 1 of this Certificate of Determination.
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