Police Association of NSW on behalf of Craig Clifton v NSW Police Force

Industrial Relations Commission (NSW)|2009-04-29|Before: Kavanagh J, Schmidt J

CITATION: Police Association of NSW on behalf of Craig Clifton v NSW Police Force [2009] NSWIRComm 197

Police Association of NSW on behalf of Craig Clifton (Applicant) PARTIES: NSW Police Force (Respondent)

CATCHWORDS: POLICE - Crown Employees (Police Officers Death and Disability) Award 2005 - purpose and proper application of cl 9.3 - determination made that officer had "on duty" injuries to knees but a psychological "off duty" injury - determination under the Workers Compensation Act 1987 required as to whether the Police Officer was injured at work - first consideration must be fair as it affects determination as to what is the appropriate benefit paid to officer - procedure followed as to question of on-duty/off-duty not fair - rehabilitation and retraining not given - payment is for compensation for the loss of career - appropriate payment for a terminated officer - "partial and permanent disability benefit" or a "permanent disability benefit" - psychological condition secondary to knee injury - one injury - work a substantial contributing factor - reasonable act of employer not causally connected to condition - payment awarded under cl 9.3 not cl 9.4

LEGISLATION CITED: Industrial Relations Act 1996 Workers Compensation Act 1987

Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 Marton Cook v TAFE Commission (1999) 17 NSWCCR 632 Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 CASES CITED: Police Association of New South Wales (on behalf of Sahra Gulbis) v Commissioner of Police [2008] NSWIRComm 187 Ray v Radano [1967] AR NSW 471 Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725 Stimson v NSW Police Service [2008] NSWIRComm 196

HEARING DATES: 29 April 2009, 5 May 2009, 17 August 2009

Mr I C Latham of counsel (Applicant) Messrs Baker & Edmunds LEGAL REPRESENTATIVES:

Mr A Britt of counsel (Respondent) Messrs Blake Dawson

29 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

POLICE ASSOCIATION OF NSW ON BEHALF OF CRAIG ANDREW CLIFTON v NSW POLICE FORCE

Application by Police Association of NSW on behalf of its member Craig Andrew Clifton for recovery of money under s365 of the Industrial Relations Act 1996

1 The Police Association of New South Wales disputes, on behalf of its member, Craig Andrew Clifton, a Police Force decision as to the type of benefit Mr Clifton should receive under the Crown Employees (Police Officers Death and Disability) Award 2005 (the Death and Disability Award) for injuries he has suffered. 2 The Police Force has accepted Mr Clifton suffered "on duty" injuries to his knees. The Police Force further asserts those injuries made him suitable for light duties. However, due to a psychological injury, determined by the Police Force to be an "off duty" injury, Mr Clifton was declared partially and permanently disabled but unable to perform any duties within the Police Force because of his "off duty" psychological injury. 3 An officer with a partial and permanent disability but who has another "off duty" injury which makes him/her unfit to work attracts, under the Award, a payment under cl 9.4 of the Award. The payment Mr Clifton received under the Award was significantly lower than the lump sum payment he would have received had his psychological injury been determined to be an "on duty" injury rather than an "off duty" injury. Mr Clifton asserts he should qualify for the more significant benefit under cl 9.3 of the Award. 4 The purpose and some provisions of this new Award have been given consideration by the Commission but the effect of cl 9.3, cl 9.4 and cl 10 have not yet been addressed and require consideration to determine this dispute. Also of relevance is cl 9A and cl 11A of the Workers Compensation Act 1987.

The Award 5 As to the purpose of the Award, Schmidt J in Stimson v NSW Police Service [2008] NSWIRComm 196 found the underlying purpose or object of the Award was to provide rehabilitation and retraining, as well as benefits on the medical discharge of Police Officers who had suffered injury and includes a benefit to those officers who are unable to recover sufficiently to permit them to return to any duties in the employment of the Police Force. Her Honour held at [26]: ... the Award is directed to providing rehabilitation and retraining, as well as benefits on medical discharge, for Police Officers who suffer an injury, including those who are unable to recover sufficiently to permit them to return to any duties in the employment of the Police Force. So much is further confirmed by the Award definitions of 'partial and permanent disability' and 'total and permanent disablement'.

Her Honour then considered the effect of some transitional provisions as recited in cl 4. 6 Staff J, in Police Association of New South Wales (on behalf of Sahra Gulbis) v Commissioner of Police [2008] NSWIRComm 187 (8 October 2008), in applying some provisions of the Award, referred to the purpose of the Award being the payment of compensation to injured officers for the loss of career, saying at [61]: The D & D Award is clearly intended to compensate officers for their loss of career. The younger they are when they lose their career, the greater the multiplier or benefit for the officer. The multiplier is set out in the annexures to the Award. This enables a calculation to be made of the quantum of any disability benefit.

His Honour then dealt with a circumstance where a partially injured employee was not offered rehabilitation and he gave consideration to the proper application of cl 9.2 of the Award. 7 This case raises the question of the appropriate payment for a terminated officer who has suffered an "on duty" injury which makes him partially and permanently disabled but who because of a determination was made that he has a separate "off duty" injury was held to be eligible to be terminated and paid a benefit under cl 9.4 and not cl 9.3, which latter clause attracts a greater benefit. 8 The following provisions of this Award require consideration in this application: Clause 10, Assessment of Entitlement to Benefits 10.1 . . . 10.2 . . . 10.3 . . . 10.4 . . . 10.5 . . . 10.6 Members can only receive one benefit either a "partial and permanent disability benefit" or "total and permanent disablement benefit". Receiving a "partial and permanent disability benefit" or "total and permanent disablement benefit" discharges the liability of the alternative party for the relevant benefit payable. . . .. 10.7 Entitlement to the benefits to be provided by NSW Police pursuant to this Award shall be assessed by NSW Police. Any dispute as to the entitlement of a Police Officer to receive a benefit under the terms of this Award (whether lump sum entitlement or otherwise) may be referred to the Industrial Relations Commission of New South Wales for determination. 9 Under this provision, the New South Wales Police Force assesses an officer's entitlement to a benefit, that is, the Police Force determines whether the injury leads to a "partial and permanent disability benefit" or a "permanent disability benefit" and that assessment can be appealed to the Industrial Relations Commission of New South Wales. The Police gave the power to determine what is the appropriate benefit in each case to its Medical Discharge Review Panel. 10 Also relevant to this consideration is the definition clause in the Award: Clause 3 Definitions "partial and permanent disability" means the Police Officer's cessation of employment was substantially due, directly or indirectly, to the permanent physical or mental disability of the Police Officer (not caused by any act or default of the Police Officer intended to produce an injury leading to that disability) and that the Police Officer is, when the Police Officer ceases to be employed by NSW Police, permanently unable, by reason of that disability, to perform the duties that the Police Officer was required to perform before the Police Officer suffered the disability. ... "on duty injury" in relation to a Police Officer means, injury to a Police Officer in such circumstances as would, if the Police Officer were a worker within the meaning of the Workers Compensation Act 1987, entitle the Police Officer to compensation under the terms and provisions of that Act. "off duty injury" means any personal injury or disease which is not an on duty injury. 11 To receive a benefit there has to be some criteria met. That criteria places obligations on both the Police Force and the Police Officer. Relevantly therefore is cl 9 of the Award: 9. Rehabilitation, Retraining and Lump Sum Payments for Police Officers Who Suffer Partial and Permanent Disability 9.1 The lump sum payments prescribed by this clause are payable by NSW Police. In order to be entitled to a benefit pursuant to this Clause, a Police Officer must engage in the provisions outlined within this Clause. 9.2 There is a mutual obligation on both the employer and injured officer to identify suitable police positions for redeployment. However, it is the injured officer's responsibility to accept a reasonable offer of a suitable police position made by the employer, which may include transfer to another location. A failure to accept one of three (3) reasonable offers as per the Permanent Restricted Duties Policy of a suitable police position will jeopardize any benefits or entitlements payable under this Award and may result in medical discharge. 9.3 A Police Officer who suffers an on duty injury shall receive rehabilitation/retraining consistent with agreed policies, which are annexed to this Award, leading to a return to pre-injury employment wherever possible. 9.3.1 Where a return to pre-injury employment is not possible, as determined by HealthQuest, or other medical assessor agreed by the parties, the officer will be declared as suffering a partial and permanent disability and opportunities for placement in a suitable police position or as a permanent restricted duties Police Officer will be sought. At the same time, the Police Officer, with their consent, will be considered for redeployment to an administrative officer position. 9.3.2 If placement in a police position within the NSW Police is not possible and redeployment to an administrative officer position is not agreed to by the officer, the employment of the Police Officer may be terminated. In such circumstances the Police Officer, subject to eligibility being established, shall be paid a lump sum payment in accordance with Annexure B to this Award. 9.4 A Police Officer who suffers an off duty injury shall receive rehabilitation/retraining consistent with agreed policies, leading to a return to pre-injury employment wherever possible. No direct medical or rehabilitation costs will be met by NSW Police for off duty injuries 9.4.1 Where a return to pre-injury employment is not possible as determined by HealthQuest, or other medical assessor agreed by the parties, the officer will be declared as suffering a partial and permanent disability and opportunities for placement in a suitable police position or as a permanent restricted duties Police Officer will be sought. At the same time, the Police Officer, with their consent, will be considered for redeployment to an administrative officer position. 9.4.2 If placement in a police position is not possible and redeployment to a administrative officer position within the NSW Police is not agreed to by the officer, the employment of the Police Officer may be terminated and, in such circumstances, the Police Officer shall be paid a lump sum payment equivalent to the unexpired portion of the two years full salary or full salary to age 60 (whichever is the lesser). The two year period commences when medical evidence indicates that an officer is not able to return to their pre-injury employment. 9.5 The objective of the rehabilitation/retraining program creates mutual obligations, which is for every Police Officer who suffers partial and permanent disability to be placed in a suitable police position within NSW Police, wherever reasonably practical. 9.6 An adequate opportunity will be given to the Police Officer concerned and the Association (unless the Police Officer expressly declines to agree to the Association being informed) to consider the NSW Police opinion that no suitable position is available and to put that opinion into dispute in accordance with the dispute resolution clause of this Award prior to medical discharge. 12 Staff J said as to the effect of cl 9.2 in Gulbis, again at [61]: ... The trigger for a benefit under cl 9.2 of the D & D Award is that an officer has suffered partial and permanent disability and cannot return to pre-injury employment as determined by HealthQuest or another agreed medical practitioner. The employee must also have complied with the mutual obligations imposed by the subsection. 13 I am satisfied the purpose of this Death and Disability Award is to provide for the re-deployment and re-training of injured officers of the New South Wales Police Force. Where re-deployment and re-training are not possible due to the nature of an officer's injury, the purpose of the Award is to provide for the payment of financial benefits to the affected officer on discharge. The amount of the benefit payable to an officer is dependent on whether the officer's injury is classified as "on-duty" or "off-duty" and whether the injury has led to "a partial and permanent disablement" or a "total and permanent disability". 14 Mr Clifton's claim requires consideration of the proper application of cl 9.3. He was paid under cl 9.4. The Police Force determined Mr Clifton suffered a partial disability with his knee injury and, but for his psychological injury, he could have performed light duties. 15 The circumstances reveal Mr Clifton was never offered alternative duties, that is, redeployment, although on two separate occasions redeployment was considered by the Police Force. It was said he could not perform suitable duties due to his "off duty" psychological injury and he was therefore terminated by the Commissioner of Police and, given this circumstance, the Review Panel determined he qualified for a cl 9.4 benefit under the Death and Disability Award. He was paid a benefit under cl 9.4 for his "off duty" psychological injury. It was determined the reason for his termination was he could not be offered redeployment to an administrative position, suitable duties or restricted duties. 16 The Police Force concedes Mr Clifton engaged with the Police Force for his rehabilitation as required under cl 9.1. This is not quite accurate. He was not offered any alternate rehabilitation and the evidence is vague about compliance with cl 9.6. Mr Clifton was unable to comply with the mutual obligation required of him under cl 9 as the Police Force would not accept his ability to so do. However, neither circumstance, although it appears not conducted in accordance with provisions of the Award, has any relevant effect on the consideration before me given the concession by the Police Force that he had complied with his obligation. 17 Mr Clifton, therefore, to receive a payment under cl 9.3.2 must establish: · the psychological injury is an "on-duty" injury; and · placement in another position including an administrative position was not possible because of his partial-permanent disability.

The Psychological Injury: an "on duty" or "off duty" injury? 18 First, it must be determined whether the psychological injury occurred "on duty" or "off duty". In accordance with the definition of an "on duty" injury under the Award, a determination (under the Workers Compensation Act 1987) is required as to whether the Police Officer suffered a work related injury. Importantly, the Award does not say this is a decision to be made by the workers compensation insurer of the employer. 19 Under s 9A and s 11A of the Workers Compensation Act 1987, an injury which entitles an employee to compensation is one where the work is "a substantial contributing factor" and in the case of a psychological injury, must not have been caused by any "reasonable action" of the employer. Section 9A states: 9A No compensation payable unless employment substantial contributing factor to injury (1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. (2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination): (a) the time and place of the injury, (b) the nature of the work performed and the particular tasks of that work, (c) the duration of the employment, (d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment, (e) the worker's state of health before the injury and the existence of any hereditary risks, (f) the worker's lifestyle and his or her activities outside the workplace. (3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following: (a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment, (b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury. (4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.

… 11A No compensation for psychological injury caused by reasonable actions of employer (1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers. (3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system. (4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system. (5) (Repealed) (6) This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.

This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).

(7) In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker's condition, accepted medical terminology and not only terminology such as "stress" or "stress condition". (8) If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement): (a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and (b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with. 20 The issue as to whether an injury is "on duty" has been held to be a question of fact and a matter of impression and degree (see Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 at [29]). However, Mr Clifton's employment must be a substantial contributing factor to the injury (see Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725). Therefore, there must be a causal connection between the injury and the work (Neilson J, Marton Cook v TAFE Commission (NSW) (1999) 17 NSWCCR 632). 21 The meaning of "substantial contributing factor" in the Workers Compensation Act, as contained in s 9A and s 11A of that Act was considered by the Court of Appeal in Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740. The Court of Appeal allowed the employee's appeal. In the course of his reasons Mason P (with whom Meagher and Beazley JJA agreed) commented there might be more than one "substantial contributing factor" to an injury. In Dayton v Coles Supermarkets, the Court of Appeal also upheld the decision of Burke J that in circumstances where there are two "substantial contributing factors" to an injury which are non-employment related, an employment related factor which is minor in comparison cannot be seen as "substantial".

The Factual Background 22 The evidence establishes the following facts related to Mr Clifton's medical history while at work within the Police Force: · On 9 May 1988, Mr Clifton commenced employment with the Police Force. · In 1992, 1994, 2004 and on 24 September 2005, Mr Clifton suffered an accepted work related injury to both knees. He did not return to work after 24 September 2005. · On 18 May 2006, Mr Clifton, after much complaint about delay, had further operative treatment to his left knee. 23 In November 2006, Mr Clifton lodged a workers' compensation claim for a psychological injury arising out of the incident on 24 September 2005 (the injury which finally led to further operative treatment to his knee some eight months later). 24 On 6 December 2006, the Police Force, through his Area Commander, Superintendent Moore, initiated an application for Mr Clifton's medical retirement. Mr Clifton had not returned to work following his operative treatment in mid 2006. He referred Mr Clifton for medical retirement related to his "injured knees and psychological condition". 25 There is a Medical Discharge Unit of the NSW Police Force. It receives applications "by or on behalf of an officer" for medical retirement. In this case the application was made by Mr Clifton's Commanding Officer, without Mr Clifton's knowledge. The Commanding Officer, in his application for the medical retirement of Mr Clifton, made some derogatory comments about Mr Clifton. He challenged Mr Clifton's willingness to be rehabilitated; reported Mr Clifton was photographed carrying an injured player from the field at an NRL match; informed the Police Force this was being investigated by WorkCover; reported that he had been advised that at a meeting between a Rehabilitation Officer, Mr Clifton and the Police Association, the Association representative had advised Mr Clifton, should his knee injury be insufficient for his medical discharge, then Mr Clifton should consider a psychological injury. The Commanding Officer in his commentary made in his application for Mr Clifton's medical retirement inferred there was no true psychological injury. 26 On behalf of the Medical Discharge Unit, Ms Valerie Fahey, Consultant Psychologist, investigated the application. She took statements from Chief Inspector Paul Birch on 15 December 2006 and Local Area Manager, Lesley White on 2 January 2007, which statements were sent to the Medical Discharge Unit. On 10 January 2007, she wrote a report recommending Mr Clifton's retirement. It appears Ms Fahey's report did not go to the Medical Discharge Review Panel but her primary document did. 27 Mr Clifton, on 28 January 2007, was advised that a recommendation had been received for his medical discharge. This was the first time Mr Clifton was made aware of his proposed discharge. He was told he was being referred to HealthQuest for a medical examination and that he could forward any medical reports he wished to rely upon to HealthQuest. 28 On 29 January 2007, Allianz Insurance (the Police Force insurance company), after provisionally accepting the claim for a psychological injury, rejected its liability for Mr Clifton's psychological injury. 29 On 26 March 2007, Mr Clifton was medically examined by Dr Julia Ying as well as psychologically assessed by Mr Mark Milic, a Senior Clinical Psychologist from HealthQuest. Dr Ying then wrote an assessment on the question of his medical discharge on 16 April 2007. In that report she revealed Mr Clifton had had surgery in: 1992 - a left knee reconstruction; 1994 - a right knee reconstruction; 2004 - a left knee medical meniscectomy; and, in 2005 - medical meniscus to both knees. After her examination and her analysis of Mr Milic's assessment, Dr Ying wrote: These physical residual limitations would prevent him from carrying out operational police duties, as well as full time office based duties. He may be fit for light, office based, part time work, where he can have flexibility of movements and postures, and not be required to bend, lift or carry weights of more than 10 kg. As the condition has not improved over the past few years despite treatment, it is likely to remain in the foreseeable future.

Mr Clifton suffers from an adjustment disorder with symptoms of depression and agitation. These problems are in a reaction to chronic pain, loss of mobility and the prospect of further surgery in the future . His symptoms will probably improve with time. He is disillusioned and angry with the Police Service. Hence he will be at risk of deterioration in his condition if he were to work with the Service in any capacity for the foreseeable future. He is psychologically fit for work outside the Service. ... 6. Long-term prognosis: Unlikely to change in the foreseeable future. 7. ... He is fit for a graduated return to work program outside the Police Force, into light, mainly seated, office based duties, where he can have flexibility of movements and postures, and not be required to bend, lift or carry weights of more than 10 kg. It is likely that he will only be able to cope with work in a part time capacity. 8. ...

Mr Clifton is PERMANENTLY UNFIT from both the medical and psychological perspectives, for the full range of duties of the substantive position of General Duties Policing in the present location. 2. From the psychological perspective, Mr Clifton is psychologically UNFIT for alternative duties with the present employer. This state of unfitness is likely to persist for the conceivable future (12 months or more). (emphasis added) 30 The Medical Discharge Unit received the HealthQuest report but made further inquiries as to the effect of the NRL photograph complained about by Mr Clifton's Commander (Mr Clifton had in place a secondary employment approved by the Police Force to be a NRL referee). They inquired as to Allianz's position as to the Police Force's liability for the knee injury. The Medical Discharge Unit received from Allianz an assurance that, notwithstanding the NRL photograph, it accepted liability and held Mr Clifton's knee injuries were authentic injuries which injuries were work related. Allianz accepted rehabilitation was not possible within the Police Force. The Medical Discharge Unit therefore accepted Dr Ying's recommendation that Mr Clifton be medically retired. The Medical Discharge Unit recommended discharge of Mr Clifton as, due to his "off duty" psychological injury, he could not be redeployed. 31 It appears, thereafter, the Medical Discharge Unit referred the question of termination and benefit to the Medical Discharge Review Panel in June 2007. 32 Once the Medical Discharge Unit determines to recommend the medical retirement of a Police Officer, the Police Officer's file is automatically referred under the Death and Disability Award to the Medical Discharge Review Panel for its consideration as to whether the officer should receive a benefit under that Award and what was the appropriate benefit. The Medical Discharge Review Panel is empowered to perform this function under cl 10.7 of the Death and Disability Award. The Panel therefore determines how an officer is to be medically discharged and what therefore will be his benefit. 33 The meeting of the Medical Discharge Review Panel was scheduled for 29 June 2007. The Medical Discharge Review Panel met and deferred its decision related to Mr Clifton so it could "be assured the psychiatric condition suffered by Mr Clifton should not be considered work related". 34 Mr Clifton, on hearing of the recommendation for his medical discharge, made his own application on 20 July 2007 for a disability payment under the Award and, in support of his application, he wrote to the Medical Discharge Review Panel as follows: I have been a serving member of the NSW Police Force since July 1988. In that time I have been a front line uniform officer reaching the rank of sergeant. Prior to the 24/9/2005 I had three major Knee reconstructions (All HOD). After each operation I was able to return to full duties after long rehab periods.

Circumstances Surrounding Knee Injuries and Mental Health Issues On the 24 September 2005 I injured both of my knees after a fall in the Bathroom of the Campsie Police Station. The fall occurred the cleaner left the bathroom floors wet unattended and unsigned. These facts have been supported by Sgt Chris Louis (Witness) and Acting Inspector Rod Hart.

After the fall I was diagnosed with medial tears in both knees. My doctor and surgeon both agreed that they required surgery.

Between September 2005 and January 2006 I was left in limbo by both the Police and the insurer. I was unable to get the insurer to commit to the operation and the NSW Police offered no help or support. During this time I became dependant on prescription pain killers to deal with the pain. In late January 2006 I was given a surgery date of 10 February 2006. On the 9th of February 2006 I was contacted by the Insurer and they informed me that they had cancelled my surgery as they now required a second opinion. (When questioned as to why. The case officer stated that she took offence to a letter written by my Surgeon Dr Rimmer and she was delaying surgery.)

My pleas for assistance were ignored by the Police and the insurer. I became depressed and my dependence on prescription drugs had increased and I was combining the painkillers with alcohol to deal with my pain and depression. 35 On 24 August 2007, the matter was reconsidered by the Panel. It was again deferred for "medical and background information". On 26 September 2007, the Medical Discharge Review Panel again met and Mr Clifton's application was once again deferred with an inquiry as to Mr Clifton's "psychological treatment". On 1 November 2007, the Panel decided to refer Mr Clifton back to the Police Redeployment Unit for redeployment either within the Police Force or on other suitable duties with an employer other than the Police Force. 36 On 6 November 2007, Dr Graeme Keighery wrote to Allianz who was reassessing his claim: There is no doubt that Mr Clifton has chronic knee pain due to his post traumatic and post surgical inflammation of the knees and he is showing signs of osteoarthritis secondary to trauma. In the long run his knees will give out on him and he realises that he will be a candidate for knee joint replacement some ten years further on. He is however fit for suitable duties and these duties could begin at five hours a day five days a week increasing to pre-injury hours over the course of a few months. Although he could handle suitable duties due to his chronic adjustment disorder it is extremely important that he does not return to duties in the Police Force. Mr Clifton needs to be retired from the Police Force and take up his role as carer of his children. There is no doubt he feels a lot of emotional pain because of his perceived mistreatment by the Police Department and there is a duty of care for his being retired from the force as stated. 37 Assistant Commissioner Peter Gallagher, at the time, held the position of Director Corporate Human Resources and also sat on a number of internal panels including the Medical Discharge Review Panel. He revealed he was on the Medical Discharge Review Panel which finally considered what was to be Mr Clifton's benefit: ... I was subsequently advised by Inspector Philip Salt of the Redeployment Unit that redeployment was not possible as Mr Clifton's non-work related injury prevented him from undertaking suitable duties, even though suitable duties would be available if Mr Clifton was suffering work-related knee injuries only. Further, I was informed by Ms Julie Wills, the Director of the Safety Command that they had obtained information from WorkCover that any redeployment to another employer could only be for a short period of time and Mr Clifton would then need to return to the NSWPF but the long term prognosis as outlined in the medical evidence for Mr Clifton was that this could not occur. 38 On 10 January 2008, Mr Clifton wrote again to the Medical Discharge Review Panel: On the 19th December 2007, I was admitted to Karenna Private Hospital for Surgery on my left Knee. This is the SIXTH knee operation in total and the FOURTH on my left knee. The surgery was required to repair ligaments that have deteriorated from previous operations and attempt to relieve paid from the knee. The surgery has not achieved the relief of pain but some ligament damage was slightly repaired. The result of this surgery is a short term solution to my knee problems. ... I have been in contact the Mr SALT from the Police relocation unit and he has advised me that I am not a candidate for relocation due to my knee injuries and mental health issues.

Allianz workers compensation section has advised me that they have contacted Lisa Angus from the Police IMA unit and asked that I be put forward as a priority for medical discharge.

Since my last representations my physical health has dramatically deteriorated and I am still under the care of a psychiatrist and medicated for depression. I am unable to manage pain with prescription drugs due to my previous addiction. This has all been documented in previous reports. 39 Given the recommendation of the Redeployment Unit, Mr Clifton was then referred for a further psychiatric assessment by the Medical Discharge Review Panel, this time to Dr Klaas Akkerman on 13 March 2008. 40 Dr Akkerman, a Consultant Psychiatrist, opined on 17 March 2008, following his consultation with Mr Clifton: Background History ... I inquired as to whether or not he suffered from a psychological disorder. He said he does. He said it started in 2005 and he is now at his worst.

He has initial but no middle insomnia, He has nausea. He has headaches. He has sweating. He is impotent. His libido is down. His concentration is down. His short term memory is down. His long term memory is normal. His level of energy is down. His level of interest is down. His appetite is up and down. He is irritable and he is tearful.

I inquired as to what was the cause and he said it was his time with the police. He made a complaint about how internal affairs was investigating his complaining of some of his workers. He said that eventually his complaint was deleted. He said he has had problems with the police since.

I inquired as to what treatment he has had. He said he saw Dr McDowell, psychiatrist, for about one year. He stopped it because it was too expensive. He took Efexor SR and Apraxia up to about six months ago. He stopped that because he could not afford it. ... Past Psychiatric History: His problems started in 2005. ... Mental Status Examination Mr Clifton was a man of stated age. He was agitated. He was sweaty. His mood was depressed. His affect was similar. His concentration was down. His short term memory was down. He was irritable. He was tearful. No other abnormalities were noted. I will now address your points one by one. The medical diagnosis is Major Depression. The prognosis is guarded. Mr Clifton needs to see a psychiatrist. The treatment he is receiving is currently inappropriate. Currently he is very unwell. Currently he cannot work at all. He is unlikely to return to full operational duties in the near future. He is not able to return to work doing suitable duties. He cannot work at all. I believe that he is suitable for medical discharge. He is in urgent need of further treatment. 41 I conclude from this report Dr Akkerman found Mr Clifton had a serious depression. He did not, in the report, address the cause of the depression, but recorded the problems started in 2005. 42 On 27 March 2008, the Medical Discharge Review Panel was provided with a copy of Dr Akkerman's report. They also received from Ms Mary Glynn, Manager, Fitness to Continue Unit, New South Wales Police Force, the following email dated 25 March 2008: ... As you can see from the report it supports the officer being medically discharged.

Contact made with Youni a medical strategist at Allianz today has confirmed that Mr Clifton does not have an accepted psychological claim, and does not have an approved claim for secondary psychological injury to his physical injury.

Also attached is further report from his orthopaedic surgeon in relation to his physical injuries as well as the Health Quest report to refresh your memories, which supported that he may return to 'light, office based, part time work' in relation to his physical injuries however not return to NSWPF based on psychological grounds.

Hence, could you please advise whether you support this officer being medically discharged on psychological grounds only and whether you consider this on or off duty?

Mary Glynn Senior Injury Management Advisory/ FTC Team Leader Operations Support 43 It appears Ms Glynn realised Dr Akkerman did not opine as to the cause of Mr Clifton's psychological injury, so she made a further inquiry to Allianz, the Police Force insurer. 44 Further, the orthopaedic report also referred to by Ms Glynn was that of Dr Stephen Rimmer dated 17 March 2008, the treating specialist of Mr Clifton, who opined after Mr Clifton's recent operative surgery: ... This had reduced some of his pain, however it was still significantly present. This meaning that activities of daily living were quite restricted.

After extensive discussion about all management option and given his latest Intraoperative findings, the only possible solution to the resolution of his symptoms is a left knee hemiarthroplasty joint replacement.

I discussed at length the pros and cons of this surgery. As such the patient stated he would discuss this with family members and let me know of his decision. 45 The Medical Discharge Review Panel then determined to adopt Ms Glynn's report as to the Allianz view and having accepted the psychological injury was not an "on duty" injury, determined he should receive a benefit under cl 9.4. Assistant Commissioner Gallagher opined: 50. The reason for the MDRP's determination that Mr Clifton was entitled to an off-duty benefit was that he had an accepted physical work-related injury which did not prevent him from returning to work on a permanent part-time basis. Accordingly, NSWPF was able to offer Mr Clifton suitable and worthwhile duties within the organisation. 51. However, Mr Clifton also had a non-work related psychological injury which did prevent him from returning to work on a permanent part-time basis. 46 On 25 March 2008, the Medical Discharge Review Panel determined Mr Clifton should be terminated in accordance with cl 9.4 of the Death and Disability Award and he should receive the benefit of an "off-duty" partial and permanent disability benefit. That decision was approved and signed by the Commissioner of Police on 4 April 2008 and a letter of that same date was forwarded to Mr Clifton. Mr Clifton's last day of service was calculated as 8 April 2008. 47 In support of this appeal from the decision of the Commissioner that Mr Clifton's psychological injury was an "off duty" injury, on 14 July 2008, solicitors for Mr Clifton referred him to Dr Peter Klug, Forensic Psychiatrist. He took the following history: OPINION Mr. Clifton was discharged from the New South Wales Police on 3 April 2008. to date he has not received any documentation from the Police about the reason for his medical discharge, only that it was not HOD (Hurt On Duty). The application was on the basis of both physical problems (bilateral knee injuries) and a major depressive illness.

The problems stemming from his knee injuries are well-documented. I understand that HOD status with respect to his knee injuries had already been accepted as HOD.

From a psychiatric perspective he became increasingly symptomatic from about December 2005. This post-dates his most recent knee injuries by about three months - he fell at work on 25 September 2005.

His psychiatric symptoms at that time included severe depression of his mood, nihilism, anhedonia, loss of motivation, loss of libido, a belief that he was a burden to his wife and children, severe irritability and an overt concern that his state was having a very adverse effect on his wife and children. He, in fact, left his family for about two months in 2006 to live with his parents because of the adverse effect he believed he was having on the family. He described himself as being "a mess". He was not coping.

His psychiatric symptomatology was in the context of various ongoing stresses from that time, including the following:

moderately severe physical symptoms, impairment and disability stemming from his recurrent knee injuries * a lack of any assistance from the Police Service despite his knee injuries having been endorsed as work-related * following further endorsement by an independent orthopaedic surgeon in about late February or early March 2006 his knee arthroscopies did not occur until June 2006 because the bureaucracy had lost his file * A SCIA (Special Crime and Internal Affairs) investigation at Campsie on 25 June 2005 about which Mr. Clifton complained because of the incompetence of the investigating officers * victimization by his superiors because of the complaint he made, associated also with overt conflict with his Commander, Superintendent John Richardson * a vexatious complaint from SCIA against him for "interfering with a police investigation" about which Mr. Clifton was baffled, about which he was never interviewed, and as a consequence of which he was found guilty and "counselled" * family-based stresses, as his brother-in-law is an officer with SCIA and he was implicated, and then subsequently cleared, of leaking information to Mr. Clifton * the ongoing mishandling of his HOD claims and subsequent medical discharge.

It is of note that four days after the interview with me Mr. Clifton was to have a partial knee reconstruction. ... I note that Dr. Julia Ying, at HealthQuest, states in a report dated 16 April 2007 that Mr. Clifton has suffered from an adjustment disorder with symptoms of depression and agitation probably being a reaction to chronic pain, loss of mobility and the prospect of further surgery in the future. She also notes that he is disillusioned and angry with the Police Service. I also note in the brief report by Dr. Klaas Akkerman, assessing psychiatrist, dated 17 March 2008, that Mr. Clifton has suffered from a "major depression". ... Axis I - Clinical Psychiatric Disorders

Major depressive disorder in remission 2. Alcohol abuse/dependence in remission 3. Analgesic abuse/dependence in remission.

... Axis IV - Psycho/social and Environmental Problems

Pain, impairment and disability consequent to his bilateral knee injuries. 2. Complex work-related stresses, as noted in the body of my report.

I regard his major depressive disorder as secondary to: his knee injuries; the lack of an appropriate response to his health problems; and to what strongly appears to be victimization by the bureaucracy because of Mr. Clifton's formal complaint about what he regards as a bungled SCIA investigation. His major depressive illness has been, in my view, substantially caused by work-related factors, both direct (bureaucratic and hierarchical) and indirect (the consequences of his knee injuries and the lack of an appropriate response from the administration). His major depressive disorder is now in remission. It is my view that in the absence of, or with the resolution of, the relevant stresses, Mr. Clifton's major depressive illness would not have been an obstacle to his return to work as a Police Officer, if he were given appropriate light duties with respect to his knee injuries.

It is also my view that his conditions of a major depressive disorder (and secondary alcohol abuse/dependence) should be considered as an injury within the definition of an injury under the Workers Compensation Act 1987. 48 Dr Akkerman, on being contacted on 19 August 2008, wrote to the solicitor for the Police Force that he agreed with Dr Klug: ... My report was dated 17 March 2008. I diagnosed Mr Clifton with Major Depression. I said the treatment he is receiving is inappropriate. I said he was very unwell and he could not work at all. I said he is unlikely to return to full operational duties in the near future.

Dr Klug's report was dated 14 July 2008. He also diagnosed Mr Clifton with Major Depression. He said he was medically discharged and he is not sure why. He has taken this matter to the Industrial Relations Commission.

He said that his knee injury has already been accepted as hurt-on-duty.

Dr Klug outlined the issues and basically the history is similar to the one I made. He made a diagnosis of Major Depression as well as alcohol abuse and dependence in remission and analgesic abuse in remission. Given that the last two diagnosis are in remission his diagnosis is the same as mine.

I believe Dr Klug's conclusions support the ones that are made in my report. 49 Allianz, through Ms Lainee Hooper, a Team Leader in its Workers Compensation Division gave different evidence than that before the Medical Discharge Review Panel. It was revealed on 22 September 2008, a letter was sent to Mr Clifton from a Ms Lesley Garner, Case Manager of Allianz, as follows: I am pleased to advise that liability has been accepted for medical expenses for your psychological injury which has been deemed secondary to your Workers' Compensation claim for a physical injury sustained on 25/09/2005.

Please ensure that any treatment you require is approved by Allianz prior to attending any appointments and that any out of pocket expenses incurred by you in relation to the secondary injury are promptly forwarded to me for reimbursement . . . 50 Ms Hooper, however, had opined in her affidavit sworn on 1 March 2009: 22. ... Allianz accepts liability for medical expenses for psychological injury which has been deemed secondary to the physical injury. 23. ... 24. Mr Clifton advises he has been seeing Dr McDowell since approximately April 2006. No treatment expenses have been paid on this claim for services provided by Dr McDowell. 25. Regarding approval for psychological treatment, Allianz has not provided advice regarding a specific amount of treatment sessions to date. 26. Allianz has not received any information from Dr McDowell or other psychological or psychiatric treatment providers advising that they are treating Mr Clifton for his secondary psychological injury. 27. Upon recept of such correspondence, Allianz will review the request and decide whether to continue to pay expenses on this secondary psychological injury on the basis of the information provided by the psychologist or psychiatrist. 51 Allianz, therefore, while it had first rejected had, by the time of the Commission hearing, accepted the injury both to the knees and determined the psychological injury was secondary to his knee injury and was, therefore, work related. 52 The matter had gone back to the Medical Discharge Review Panel but it has not reconsidered its decision. 53 Dr Chris McDowell, Mr Clifton's treating Consultant Psychiatrist, also wrote a report dated 18 September 2008. He revealed Allianz had approved his treatment of Mr Clifton: This is to certify that Mr Clifton is attending this practice for the treatment of Major Depressive Disorder, arising from chronic pain and analgesic use as a consequence of back and knee pain. The injuries occurred as a part of his previous work in the NSW Police Force. He is currently on Efexor 300 mg daily and Tolvon 10 - 20 mg nocte for depression treatment, pending further review in one month. 54 Dr McDowell wrote a second report on 5 December 2008 to MetLife Insurance Limited, as follows: In regards to work capacity, it is my opinion that the fundamental limitation is Mr Clifton's physical health with severe continuing pain and restricted movement apparent in his lower limbs, despite surgery. The pain and physical incapacity is now the primary cause of continuing depression. His mood state also affects his ability to work (impaired concentration, low energy, low motivation) but this is not the main problem.

Submissions of the Police 55 The Police Force submitted when the effect of cl 9 is considered it must be the "injury" which prevents the officer from returning to pre-injury duties or prevents a placement in a position within the NSW Police Force and not some other matter. This construction, it submits, is reinforced by the definition in cl 3 of "partial and permanent disability". While it was submitted in most cases this matter does not arise, it does arise where, in Mr Clifton's circumstance, an officer has both work and non-work related injuries. It was contended if this interpretation were not correct an officer who suffers a relatively minor "on duty" injury (which would not have led to his discharge) and subsequently suffers an extensive "off duty" injury, would become entitled to a payment under Annexure B. This proposition as to the effect of cl 9.3.2 and cl 9.4.2 can only have relevance if Mr Clifton had an "off duty" psychological injury and it was such an injury which prevented Mr Clifton from having further redeployment within the NSW Police and/or an administrative position. Further, the respondent contends the requirement of "subject to eligibility being established" which is found in cl 9.3.2 (and there is no equivalent requirement in cl 9.4.2) is a requirement which must "have some work to do". 56 I have considered these submissions and their effect on an officer's qualification for a payment under cl 9.3 and I find the Police Officer must establish he/she has satisfied the definition in cl 3 that he/she had an "on duty" injury leading to a "partial and permanent disability" which disability must make him/her unable to be placed in duties within the Police Force. Therefore, when the Police Officer ceases to be employed by NSW Police, the officer needs to be permanently unable, by reason of that disability, to perform the duties that the Police Officer was required to carry out before having suffered the disability and cannot be placed in alternative employment. 57 It is contended by the Police Force that unlike the evidence in Gulbis, the evidence discloses that Mr Clifton was never offered a suitable position or duties, or a permanent restricted duties position or other positions as a result of his not hurt "on duty" psychological conditions. It was contended the medical evidence relied upon by the Police Force suggested it was not possible for Mr Clifton to be placed in a suitable police position or as a restricted duties Police Officer pursuant to cl 9.4.1 as a result of his psychological condition. Notwithstanding this, the Police Force did investigate redeployment. The Police Force concludes the evidence demonstrates Mr Clifton was not seeking an administrative position, nor was such a position suitable to him as a result of his psychological conditions. In such a circumstance, the Police Force contend it could terminate the employment of Mr Clifton pursuant to cl 9.4.2 of the Award and with the payment calculated in accordance with this clause. 58 The respondent generally contends the predominate cause of Mr Clifton's psychological injury was the Police Force's action in investigating him, but it concedes as well Mr Clifton did have a perception that the Police Force were unsupportive in respect to his knee injuries. The respondent submits that the investigation by the Police Force into an incident involving Mr Clifton was reasonable. It further contends the Police Force responded appropriately to Mr Clifton's knee injuries, supported him through the rehabilitation process and therefore his latter perception was unreasonable. The Police Force contends, Mr Clifton is therefore prevented from receiving compensation for this injury pursuant to s 11A of the Workers Compensation Act 1987.

Consideration 59 For his psychological injury to be work related, that is, to be held to be an "on duty" injury, Mr Clifton must meet the injured employee test under the Workers Compensation Act 1987. Under the definition of an "on duty" injury the work must have been a substantial contributing factor to the injury. The respondent, in submitting Mr Clifton's employment was not a substantial contributing factor to his psychological injury, contends the predominate cause of Mr Clifton's psychological injury was the Police Force's action in conducting an investigation into Mr Clifton and calling his behaviour into question. The Police Force contends: its internal investigation was reasonable; it conducted its inquiries appropriately; the investigation was carried out in the normal conduct of police proceedings; and it does not accept a properly conducted investigation should have affected Mr Clifton's health. 60 The Police Force, however, properly conceded it was also Mr Clifton's perception, as recorded in the early medical reports, the Police Force were unsupportive in respect to his knee injuries (for example, his scheduled operative treatment was cancelled). 61 It seems the first assessment against Mr Clifton's claim his psychological injury was an "on duty" injury, was from Ms Valerie Fahey, Clinical Psychologist, who, on 10 January 2007, reported her assessment and her advice as follows: ... It seems that Mr Clifton's distress has stemmed from an over-personalised reaction, stemming from his pre-existing psychological factors. In this regard, it seems reasonable to suggest that Mr Clifton's apparent paranoid personality style and self-defeating coping stale, have significantly reduced his ability to cope with stressors in the workplace and issues arising from his physical injuries based on the fact that he appears to have interpreted most actions taken by the NSW Police as irrationally malevolent... it appears that personal features are a substantial contributing factor to Mr Clifton's current distress. ... I am of the opinion that at the time Mr Clifton submitted his current claim and at the present time, his symptoms were and are of adequate frequency and severity to warrant a clinical diagnosis of Major Depressive Disorder, Single Episode, Chronic (Classification 296.20) as defined by the Diagnostic and Statistical Manual of Mental Disorders - Fourth Edition.

Based on available evidence, work is not a substantial contributing factor to Mr Clifton's current distress... Whilst Mr Clifton may be experiencing some reported pain arising out this physical injury, when considered in the context of additional allegations and pre-existing psychological factors, it appears that his reported pain arising from his physical injury has not been his major stressor. To this end, it is likely that his reported pain and exacerbated his distress response, rather than being substantial. 62 I reject this assessment. Given the totality of the medical evidence obtained following Ms Fahey's assessment, including the medical opinion of HealthQuest through Dr Ying, and the opinions of the Psychiatrists, Drs Akkerman, Klug and McDowell, I reject Ms Fahey's opinion that Mr Clifton's work was not a substantial contributing factor to his psychological injury. 63 Mr Clifton did complain about the Police Force's conduct in making an investigation into his behaviour after he lodged a complaint against an officer. I accept the employer did take "reasonable action" through its investigation. The investigation led to Mr Clifton receiving a caution. While the early medical reports recorded Mr Clifton's aggravation, they also recorded his complaints of pain and his frustration at being unable to receive the appropriate medical assistance. These later complaints have been ongoing. From the histories given to the doctors, I accept while he did not like the result of the investigation, he accepted it. The reasonable act of the employer was therefore not causally connected to his condition of depression. 64 However, the pain and frustration related directly to his knee injury continues. The psychological injury is, I accept on the medical evidence, clearly related to his pain and frustration due to his knee injuries. The frustration was related to the delay in the approval of his operative treatment. The ongoing pain of which he complains, related to his knee injury, on the overwhelming medical opinion, has been a significant contributing factor to his depression. This is to be understood in the context he has had six medical interventions on his knees. The knee injury was work related. Even accepting his personality was a vulnerable one, his psychological condition is still a work related injury. The work was therefore a substantial contributing factor to the psychological injury. I can see no medical evidence in support of the proposition the psychological injury was suffered "off duty". I prefer and accept the initial opinion from HealthQuest that: Mr Clifton suffers from an adjustment disorder with symptoms of depression and agitation. These problems are in a reaction to chronic pain, loss of my ability and the prospect of further surgery in this in the future.

And Dr Klug: this major depressive illness has been, in my view, substantially caused by work-related factors, both direct (bureaucratic and hierarchical) and indirect (the consequences of his knee injuries and a lack of an appropriate response from the administration). . . . It is also my view that his conditions of a major depressive disorder (and secondary alcohol abuse/dependence) should be considered as an injury when a definition of injury within the definition of an injury under the Workers Compensation Act 1987 .

And Dr Akkerman: ... I diagnosed Mr Clifton with Major Depression. I said the treatment he is receiving is inappropriate. I said he was very unwell and he could not work at all. I said he is unlikely to return to full operational duties in the near future...

Dr Klug outlined the issues and basically the history is similar to the one I made. He made a diagnosis of Major Depression as well as alcohol abuse and dependence in remission and analgesic abuse in remission. Given that the last two diagnoses are in remission his diagnosis is the same as mine.

I believe Dr Klug's conclusions support the ones that are made in my report. 65 I accept Dr Ying's (HealthQuest) initial assessment that: 1. Mr Clifton is permanently unfit from both the medical and psychological perspectives, for the full range of duties of the substantive position of General Duties Policing in the present location.

From the psychological perspective, Mr Clifton is psychologically unfit for alternative duties with the present employer. This state of fitness is likely to persist for the conceivable future (12 months or more).

This assessment has become a reality. 66 I therefore, do not accept the submission of the respondent based on the effect of cl 9.4 as I find Mr Clifton qualifies for a payment under cl 9.3 of the Award. 67 Further, the evidence reveals the Police Force's workers compensation insurer has now accepted the psychological claim as "secondary to his knee injury". Mr Clifton has not suffered two injuries, a knee injury and a second psychological injury, rather he has suffered but one injury which injury was an injury to his knees and he has had a consequential psychological reaction secondary to his knee injury, that is, arising from his knee injury. He has had a psychological reaction consequent upon his inability to cope with his frustration and pain from his numerous operative treatments arising from his knee injury at work. There is no second "off duty" injury. The psychological injury is, in fact, a psychological reaction brought about by his knee injury. The knee injury, it is accepted, was an "on-duty" injury. The employment was, therefore, a substantial contributing factor. Further the psychological condition was not caused by the reasonable actions of the employer in conducting its investigation, but as a reaction to pain. It is therefore work related. 68 I therefore, find Mr Clifton's psychological condition arose from his knee injury and was an "on duty" injury. The Police Force has determined, due to his medical condition, Mr Clifton cannot be redeployed within the Police Force on suitable or permanent restricted duties or in an administrative officer position (so he could not therefore meet his obligation to so agree) and he could be terminated (cl 9.3.1 and 9.3.2). For these reasons, Mr Clifton is entitled to an "on duty" benefit under cl 9.3 of the Award. 69 On present evidence this injury appears to be totally disabling. However, the claim has only been pressed for a partial permanent disability. Further, some of Mr Clifton's symptoms could well be alleviated with time and, if Dr Rimmer's advice is accepted, following more operative treatment on his knee, Mr Clifton could still be restored to a circumstance where he could work. Mr Clifton may, after further surgery, be relieved of his pain and gain some relief from his depression as well as further knee flexion. He could then perform some part-time sedentary work. Therefore, Mr Clifton, qualifies for a payment under cl 9.3 of the Death and Disability Award. 70 I accept the amount to be awarded to Mr Clifton should be reduced by the amount of off-duty partial and permanent disability benefits in the amount of $172,612.44 already paid to Mr Clifton. 71 Interest is awarded on the difference in the amount from the date of discharge. This is not a question of offsetting an above Award entitlement against an Award entitlement (as was considered by the Industrial Commission in Court Session in Ray v Radano [1967] AR NSW 471) but of awarding a payment in lieu of another already received and from which Mr Clifton has enjoyed a partial benefit. 72 There shall be credit for payments made. 73 One other matter should be commented upon. The Medical Discharge Review Panel has determined the decision in relation to whether an injury is "on duty" or "off duty" (in accordance with the provisions of the Workers Compensation Act), which decision must be made before the Medical Discharge Review Panel can determine the second decision, namely, the appropriate benefit, is a decision to be made by its workers compensation insurer. The Act requires the determination as to whether the injury is "off duty" or "on duty", to be made in accordance with the provisions of the Workers Compensation Act. The Medical Discharge Review Panel have elected that this "on duty" "off duty" determination is to be made by the Police Force workers compensation insurer. In my view, using only the advice of the workers compensation insurer of the Police Force could lead to a possible unfair decision by the Panel as to the appropriate benefit to be paid. Relying solely on the Police Force's workers compensation insurer for the very important first determination is unfair and against the interest of both the Police Force and its employees. The Panel should consider obtaining medicals not only from its insurer but from the Police Officer's doctors and to obtain for itself, an independent medical opinion as to whether the injury is an "on duty" or "off duty" injury. This issue should be given consideration to ensure each decision that has to be taken before a benefit is determined is a fair decision. 74 Leave to apply as to costs. The parties are to draft agreed Orders in accordance with this reasoning within 14 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(1999) 17 NSWCCR 632

(2002) 23 NSWCCR 725

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Judgment (63 paragraphs)

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Cases Cited (6)