This is an appeal brought by Mr Paul Tysoe pursuant to s.186 of the Police Act 1990. ('the Police Act') It appeals a decision of the delegate of the Commissioner of Police made on 9 October 2013.
It is not in contest that the appeal is properly brought pursuant to s.186 of the Police Act, nor that the Commission has jurisdiction to deal with the appeal.
In the appealed decision the Commissioner's delegate determined that Mr Tysoe's absences on sick report between 10 and 27 May 2012, between 13 and 19 August 2012, and unworked hours amounting to 16, and later 8, hours per week since 2012 were not to be classified as 'hurt on duty' within the meaning of s.1(2) of the Police Regulation (Superannuation) Act 1906. ('the PRS Act')
It is not in contest that the absences in question were (and as to the continuing weekly absence, are) due to a back condition suffered by Mr Tysoe. What is in contest is whether the absences can be regarded as 'hurt on duty'.
[2]
Facts
Shortly summarised, the facts concerning Mr Tysoe's history of injury are as follows.
On 7 August 1987 Mr Tysoe suffered a lower back injury while working out in a gymnasium. This injury was not and was not said to be work related. X-rays at the time revealed a partial sacralisation and pseudoarthritis of one lumbar vertebra. Back pain from this injury persisted for the next six months and Mr Tysoe was referred to an orthopaedic surgeon and underwent physiotherapy sessions and ultimately treatment by injection.
Tysoe v Commissioner of Police [2017] NSWIRComm 1002 | Case summary | Zoe
On 5 May 1988 Mr Tysoe effected the arrest of an offender which involved significant physical contact and resulted in his suffering a low back injury. Over the next four months he carried out restricted duties. One short period of absence during this time was accepted as hurt on duty.
In 1989 and 1990 Mr Tysoe had short periods of absence claiming aggravation of lower back pain. In 1998 and 2003 he had further relatively short periods of absence due to back pain.
Following 6 consecutive days of 12-hour shifts undertaking patrol duties at the World Youth Day Festival between 15 and 20 July 2008 Mr Tysoe reported a recurrence of his back pain. He did not however absent himself on sick report at this time.
However, on 24 July 2008 he bent over while on duty and experienced sharp lower back pain. His treating general practitioner, having referred to the patrolling duties, stated that the bending over whilst at work had caused the pain. Mr Tysoe was absent on sick report from 24 July to 4 August 2008. His treating doctor noted disc and degenerative changes to his lumbar spine.
Mr Tysoe further reported back pain causing absences from duty on 14 December 2008, caused by holding a baby while not on duty; on April 2010, the back pain arising from standing in the course of his duties; between 10 and 24 May 2012, the first period in respect of which this appeal is brought, caused by sitting at a desk in the course of his duties; on 5 August 2012, caused by bending over at home when not on duty; on 4 January 2013, caused by leaning over at the beach when not on duty; and on 4 May 2013, caused by a physical action at home when not on duty.
I observe that the two periods of absence between 10 and 27 May 2012 and between 13 and 19 August 2012 are addressed in this appeal.
From 2012 Mr Tysoe returned to work on a time-restricted basis, first at 24 hours per week and after March 2016 at 32 hours per week. The shortfall in weekly hours worked from 2012 on forms the balance of the period of absence addressed in this appeal.
[3]
Statutory scheme
Section 1(2) of the PRS Act relevantly defines 'hurt on duty' as "injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987, entitle the member to compensation under the Act."
That in turn requires reference to the definition of 'injury' within s.4 of the Workers Compensation Act 1987. ('the WCA')
S.4 was amended in 2012. However, that amendment has no bearing on this appeal, as the relevant transitional provisions provide, at Schedule 6 part 19H cl.25 to the WCA:
25 Police officers, paramedics and firefighters
The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.
Accordingly, it is uncontroversial that the pre-2012 definition of 'injury' applies to this case.
However, a second issue arises with respect to the statutory scheme. Section 9A of the WCA was amended with effect from 12 January 1997. The amended s.9A relevantly reads:
9A No compensation payable unless employment substantial contributing factor to injury
1. No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
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):
1. the time and place of the injury,
2. the nature of the work performed and the particular tasks of that work,
3. the duration of the employment,
4. 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,
5. the worker's state of health before the injury and the existence of any hereditary risks,
6. the worker's lifestyle and his or her activities outside the workplace.
1. 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:
1. the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,
2. the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.
I note that this form of s.9A remains, again by effect of Schedule 6 part 19H cl.25 to the WCA, applicable to this case despite more recent amendments.
It will be seen that the 1997 amendment replaced the pre-existing test, which was that the employment be 'a contributing factor' to the injury, with a new test, that the employment be a 'substantial contributing factor' to the injury.
[4]
Proper application of s.9A
As I note above, section 9A as it presently relevantly reads has the effect that the appellate tribunal - here the Commission - charged with determining whether compensation is payable is required to determine whether the employment was a substantial contributing factor to the injury. That determination must be made having regard to the matters set out in s.9A(2), and must have regard to the provisions of s.9A(3): Fox v NSW Police Force [2012] NSWIRComm 134 at [22], although the Commission is not confined to those matters: Badawi v Nexon Asia Pacific Pty Ltd (2009) 7 DDCR 75 at [89].
However, counsel for the appellant submitted that the fact that the 1997 amendment to s.9A was not said to be retrospective in operation meant that in assessing the appellant's situation, if employment were found to be 'a contributing factor' to an injury contracted or aggravated by him before 1997, which injury was the cause of any absence within the consideration of this appeal, the statutory test for the determination of whether the absence was properly characterised as "hurt on duty" was whether the employment was 'a contributing factor', not 'a substantial contributing factor', to the injury.
In my view it is unnecessary to resolve this question on the particular facts of this case, because I have come to the view on the medical evidence that Mr Tysoe has a condition to which his employment operated as a substantial contributing factor after 1997.
[5]
Whether Mr Tysoe had a condition that was properly characterised as an injury
The starting point in the analysis required in this appeal is the decision of the High Court in Calman v Commissioner of Police (1999) 167 ALR 91.
There, a police officer had an ongoing and underlying anxiety disorder. The High Court held:
"Once the appellant established that his underlying anxiety disorder was an injury within the meaning of the Workers Compensation Act, he was entitled "to compensation under [that] Act' upon proof that his total or partial incapacity for work resulted from that injury. The question then for the Tribunal was whether the appellant's incapacity was causally connected to the underlying anxiety disorder." (at [38])
The High Court went on to hold that it was unnecessary in the circumstances of that case to consider whether 'the disease was exacerbated in a manner whereby the appellant's employment could be identified as a contributing factor.' That inquiry would only be relevant - indeed permissible - in circumstances where employment was not a contributing factor to the underlying condition. (at [41])
It is therefore necessary to determine, given the facts of this case, whether Mr Tysoe had an underlying condition which was an injury within the meaning of the WCA, that is, whether it was one to which his employment was a substantial contributing factor. I observe at this point that that assessment involves applying the word 'substantial' as meaning what it says, without further gloss: Dayton v Coles Supermarkets Pty Ltd (2001) 21 NSWCCR 46 at 56; Badawi at [107].
That determination will in large part turn on medical evidence.
The medical evidence was presented entirely on the basis of reports, with neither party electing to bring a medical practitioner as a witness or wishing to cross-examine any of the authors of the medical reports tendered in evidence. The Commission must therefore determine whether the appellant's condition is properly regarded as 'hurt on duty' on the basis of its own analysis of the various medical reports.
The report provided by Associate Professor Michael Fearnside AM, which is in my view that which sets out the most comprehensive and considered analysis of the medical situation, states that Mr Tysoe has the degenerative disc disease lumbar spondylosis. This is, Professor Fearnside advises, a constitutional condition. (Report dated 20 March 2015 at 7.6)
Professor Fearnside expresses the opinion that Mr Tysoe's employment aggravated the condition and likely caused some acceleration of it.
Professor Fearnside then expresses the opinion, in response to a direct question posed to him in the framing of his report, that 'Mr Tysoe's employment with the NSW Police Force is a substantial contributing factor to his condition. Although he has degenerative disc disease, the nature and conditions of his work would tend to aggravate the condition even if he were sedentary.' (at 7.7).
Of course, the question for the appellate tribunal is not whether Mr Tysoe's employment was a substantial contributing factor to his condition, but whether Mr Tysoe's employment was a substantial contributing factor to the injury or injuries with which an appeal is concerned. Equally, the question for the tribunal is not answered by a doctor's opinion alone, but must have regard to all the matters set out in s.9A(2) and 9A(3). I bear those matters very much in mind.
I am satisfied on the evidence that Mr Tysoe had by 2012 an injury to which his employment was a substantial contributing factor, which injury was an ongoing condition affecting his lumbar spine.
Following the reasoning of the High Court in Calman, if there is a condition which can be established to be an 'injury' within the meaning of the WCA, the question for the Commission on appeal becomes whether the appellant's incapacity in any given case or any given absence was causally connected to the underlying condition, not whether his employment was a significant contribution to each exacerbation or aggravation. To the extent that the decision of Neilson DCJ in King v Commissioner of Police (2004) 2 DDCR 416 holds otherwise - and I am not certain that it does, despite the submissions of the respondent's counsel - I must respectfully disagree with his Honour.
For avoidance of any doubt, I add that I am well aware the initial back injury suffered by Mr Tysoe in 1987 occurred in a gymnasium in his own time and could not be characterised as such an injury. It is not necessary that the whole of an injury suffered by a worker be caused by employment for compensation to lie. Nor is compensation excluded if there is an underlying degenerative condition which an injury aggravates: Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd & anor (1998) 45 NSWLR 606.
My conclusion that there was by 2012 a condition to which Mr Tysoe's employment had been a substantial contributing factor is based on all the medical reports extending to 2016, including, as I say, particularly Professor Fearnside's report, and my consideration of the factors set out in s.9A(2) and 9A(3) of the WCA..
I have said that I regard Professor Fearnside's medical report as the most comprehensive. I observe that in its relevant conclusions it is consistent with the several reports of Dr Sergides, who carried out musculoskeletal examinations of Mr Tysoe and requested, and reviewed, CT and MRI scans of his lumbar spine as well as a bone scan. I have had regard to Dr Casikar's report. I respect Dr Casikar's obvious qualifications and experience but where I found his conclusions to be in conflict with Professor Fearnside's views I came to be persuaded that Professor Fearnside's views were those which I should accept, on the evidence. That is for a range of reasons across the two practitioners' reports, but I was frankly puzzled by Dr Casikar's conclusion that there was a significant emotional element to Mr Tysoe's complaint of back injury.
[6]
Whether on or off duty not relevant
If Mr Tysoe had a condition which was an injury, then, based on what the High Court held in Calman, the approach is not to determine the matter simply on the basis of whether Mr Tysoe was or was not on duty at the time that the symptoms of the condition manifested themselves.
Counsel for the respondent advanced the proposition that whether employment was a substantial contributing factor to the injury is to be determined on whether the injury manifests on duty or off duty. In some cases, as is apparent on the authorities, that would be a proper approach. A single frank injury suffered while off duty is very unlikely, if it could be at all, to be seen as an injury to which employment was a substantial contributing factor: see for example Fox at [27]-[28]. But that cannot be said for injuries which are ongoing and manifest at different times of day or night. That is sufficiently obvious in the case of psychological injury; an injury such as a stress disorder which is on all the medical evidence work-related may manifest in the middle of the night when the worker is at home.
The same circumstance may well arise in relation to an injury such as a back injury. If damage has in fact occurred to a worker's spine to which employment was a substantial contributing factor, the fact that that damage may manifest in pain when a worker bends over while off duty does not of itself render that manifestation of the injury not one to which employment is a substantial contributing factor. The correct question, following Calman, is whether the incapacity is connected to the underlying disorder. On the medical evidence I am satisfied that it is. His condition has, on the evidence, been made substantially worse by his work; accordingly, drawing on Robinson v Endeavour Coal Pty Ltd [2015] NSWDC 9 at [24], any symptom arising from the condition can be seen as being a mere demonstration of the underlying, substantially work-caused, pathology.
[7]
Conclusion
I am satisfied that on the medical evidence each of the incidents of injury, or manifestations of pain, suffered by Mr Tysoe, including specifically those in 2012, and therefore those which continue to limit his ability to perform his duties full-time, are connected to the underlying disorder.
The necessary consequence is that they are absences which are properly to be regarded as 'hurt on duty'. That being so, the proper course is to uphold the appeal against the decision of the Commissioner's delegate.
[8]
Orders
The Orders that I make in this matter are as follows:
The appeal is upheld.
The absences the subject of the appeal are classified as 'Hurt on Duty'.
PETER NEWALL
Commissioner
[9]
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Decision last updated: 31 January 2017