Tartaro v State of New South Wales (NSW Police Force) [2022] NSWPIC 556
In this case, the onus was on the worker to prove that it was more likely than not that he had suffered a work-related injury, and that he had sustained two separate and distinct incapacities, physical and psychological.
Background
Mr Tartaro was employed by the State of New South Wales as a police officer. He suffered a number of injures throughout the course of his employment including:
- A lumbar spine injury in 2004;
- A left wrist injury in 2008;
- A right knee injury in 2009;
- A cervical spine injury in 2010; and
- A psychological injury, deemed to have occurred in 2018.
As a result of the injuries incurred during his employment, Mr Tartaro alleged he was partially incapacitated for employment.
In his Application to Resolve a Dispute (‘ARD’), Mr Tartaro claimed weekly compensation from 20 August 2021, and ongoing.
The employer (via its insurer) issued a dispute notice pursuant to s 79 of the Workplace Injury Management and Workers Compensation Act 1998 arguing that Mr Tartaro was not entitled to a concurrent payment of weekly compensation for his physical injures in addition to the weekly compensation he was receiving for his psychological injury. The employer relied on a report from Dr Kinny dated 18 August 2021, who expressed the opinion that if it was not for Mr Tartaro’s psychological diagnosis, he would likely be fit for work.
The Decision of the Personal Injury Commission
At arbitration, Mr Tartaro’s barrister made submissions relying upon the principles adopted in Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125, in which Roche DP discussed the circumstances in which a worker is entitled to two awards of weekly compensation against the one employer, and how that should be calculated. Roche DP stated at [59]:
“a) a worker who has received two injuries that have resulted in two separate and distinct incapacities may, in the appropriate case, supported by relevant evidence, recover two concurrent awards of weekly compensation…
… b) the two injuries do not have to be received with different employers in order for the worker to be entitled to two awards (Ince at 701D and Holmes at 592);”
The Commission found that Mr Tartaro had suffered separate psychological and physical injuries. Member Bamber, in considering whether Mr Tartaro had separate and distinct incapacities said at [70]:
“This incapacity is separate and distinct from his psychological incapacity, which is likely to further restrict his employment to workplaces where he does not need to deal with the public or stressful situations.”
Mr Tartaro’s claim against the employer was successful, and the Commission made the determination that he had a separate and distinct incapacity for employment, and was therefore entitled to receive a second aware of weekly compensation from his employer.
Key Takeaway
In certain circumstances, workers may be entitled to two separate awards of weekly compensation in respect of two distinct workers compensation claims against the same employer.
