Black v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Black v State of New South Wales (NSW Police Force) [2023] NSWPIC 670
APPLICANT:	Nathan Black
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	John Wynyard
DATE OF DECISION:	13 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim by Police officer for weekly compensation after his being suspended from duty without pay and criminally charged; whether accepted PTSD from six years of exposure to horrific trauma has resulted in incapacity; whether alleged criminal conduct caused incapacity by claimant’s being suspended without pay; Held – alleged criminal conduct is a manifestation of claimant’s PTSD; award in claimant’s favour as being totally incapacitated; Hamad v Q Catering and Secretary, New South Wales Department of Education v Johnson considered.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the applicant for weekly payments of compensation on the basis that he has been totally incapacitated since 21 June 2023. 2. The parties have leave to approach if agreement cannot be reached as to the figures. 3. The respondent will pay the applicant’s s 60 expenses upon production of accounts, receipts and/or HIC Notice of Charge. 4. The respondent is to pay the applicant’s costs as agreed or assessed. I certify the matter as complex and order an uplift of 30%, applicable to both parties.

STATEMENT OF REASONS

BACKGROUND

Nathan Black, the applicant, brings an action against State of New South Wales (NSW Police Force), the respondent, for an award of weekly compensation as a result of psychological injury suffered on 20 March 2023 (deemed).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    did Mr Black suffer a psychological injury;
(b) do the provisions of s 11A of the Workers Compensation Act 1987 (the 1987 Act) excuse payment of compensation by the respondent;
(c)    does s 14(2) of the 1987 have any application in these circumstances, and
(d)    does Mr Black suffer from any incapacity for work.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard on 14 November 2023. Mr Ryan Brown appeared briefed by
Ms Andriana Hagipantelis for the applicant, and Mr Justine Hart of counsel appeared for the respondent instructed by Mr Dennis Kim. Ms Zena Tatian appeared for the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Application to Admit Late Documents and attached documents dated
13 November 2023, and
(c)    Reply and attached documents.

Oral evidence

No application was made in relation to oral evidence.

FINDINGS AND REASONS

At the commencement of the hearing, Mr Brown amended the ARD to also claim a general order for s 60 expenses, such amendment not being opposed.
It is common ground that it was the conduct of Mr Black and his fellow police officer, a
Mr Trautsch, that resulted in Mr Black’s claim that he is totally incapacitated.
On 22 January 2023 Mr Black and Mr Trautsch had an extended interaction with a vulnerable female person in Smith St at Emu Plains.
A formal complaint was received from a person known to the police on 23 September 2023, and the NSW Police Force misconduct protocols were instigated. An internal investigation was commenced, and the Commander at the Nepean Command determined that Mr Black would be subject to an Interim Risk Management Action.
The effect of this was that Mr Black would continue to have access to his appointment but was restricted to station based duties. The risk management commenced on 6 February 2023, a copy of the relevant document being provided to Mr Black on that day.[1]
[1] See statement of Detective Inspector Morris – Professional Standards Duty Officer; reply page 114 [26-38].
On 7 February 2023, Mr Black attended the Doctors House Gregory Hills Medical Centre, and was seen by Dr Ram Charan Sharma.[2] Dr Sharma made computerised notes, recording that the reason for visit was “Worker’s Compensation paperwork.” Dr Sharma recorded:
[2] ARD page 52.
“- History:
of involved in an altercation and wrestling maneovers in trying to amke an arrst of a mental health patient on 22/1/23 about 5 pm ; whilst paramedics also attened ; during that incidence , the lady seemed to have suffered exposure to multiple body fluids of the person (lady) diarrhoeal / menstrual blood all over him ;
and he suffered from multiple grazes , contusions and painful elbow and fngers
The paramedics refused first aid at the site; and advised him to go to hospital, he attended Nepean Hospital ED where had his wounds n injuries cleaned up ; however, hospital did nt crry on any blood tests / screenong and was advised to haveit organised via his GP.
He had been away on leave and back to work as normally and finds time today to have it assessed.
long chat n advice ; is fit for pre injury duties as police officer , from the date of incidence itself (As written).”
The clinical notes showed that Mr Black next attended on 10 February 2023. The entry read:[3]
[3] ARD page 53.
“Reason for visit:
Review of results
- advised n discussed the recent lab results; he is well and healthy in himself .
to monitor and rechk the leucocytosis and neutrophilia noted in these lab tests ,
Actions:
Results of HAEMATOLOGY GENERAL, MULTIPLE BIOCHEM ANALYSIS, SYPHILIS SEROLOGY, HEPATITIS
SEROLOGY, HIV, C. TRACHOMATIS PCR, N.GONORRHOEAE PCR given to patient.
Alcohol history updated.
Smoking history updated.
Request printed: E/LFTs; ESR; FBE on 28/02/2023. (marked lucocytosis and neutrophilia noted 7/2/23-- recheck )”
As part of the ongoing Police investigation, CCTV footage which provided a clear video account of the interaction on 22 January 2023 was obtained from a business owner.[4] The evidence does not reveal the date this footage came into the possession of Police. However, on 14 February 2023 Mr Black asked to see Sergeant Gary Russell and Sergeant Arron Lindsay at St Marys Police Station where Mr Black was restricted to doing station duties. His mobile telephone had been seized on the same day.[5] Sergeant Russell said in his statement of 15 May 2023:
[4] Reply page 152, statement of Sergeant Lindsay [52].
[5] Reply page 152 – statement of Sergeant Lindsay [55 – 56]. Page 140 – statement of Sergeant Gary Russell [43-46].
“ 43. I recall the claimant reached out to Sergeant Arron Lindsay and I on 14 February 2023 to have a talk. I recall I spoke with the claimant at St Marys Police Station on 14 February 2023 in the company of Mr Lindsay. I recall Mr Lindsay and I were meeting with the claimant to check on his welfare.
44.    I recall the claimant contacted Mr Lindsay asking for a meeting. I recall Mr Lindsay and I were in a car on our way to St Marys Police Station and had just arrived when Mr Lindsay received a call from a third party advising the claimant wanted to meet.
45.    I recall the claimant's mobile telephone was seized earlier the same day. I recall the claimant advised Mr Lindsay and I of the seizure of his telephone when we met on 14 February 2023.
46.    I recall the claimant was absolutely panicked when we spoke to him on 14 February 2023, and I understood the claimant was panicked due to his current situation, being subject to an Interim Risk Management Action as a result of alleged misconduct.”
Detective Inspector Morris stated that on receipt of the CCTV footage he determined that it was likely that excessive force, amounting to possible criminal offences had been used. He consulted with the Nepean Police Area Commander and Mr Black was suspended with pay on 22 February 2023.[6]
[6] Statement of Detective Inspector Morris; reply page 118 et ff [41], [50-52]. The official notice is at reply page 84.
On 27 February 2023 an entry in the clinical notes of Doctors House Medical Centre, from a Dr Nazih Hamzeh, stated:[7]
[7] ARD page 53.
“discuss results.
normal white cells now..
slight elevation AST..deosnt drink and is not overweight.
advised repeat serelogy in 2 weeks( 6 weeks post incident) and at 3 months mark..
Reason for visit:
Review of results
(As written).”
Detective Inspector Morris advised that the investigator appointed to Mr Black’s case prepared a formal Notice to Interview both Mr Black and his offsider, Mr Trautsch, who had also been suspended without pay. The Notice was probably served on 24 February 2023, Detective Inspector Morris’s statement not being clear.[8] In any event Police were notified on
16 March 2023 by a solicitor Mr Black and Mr Trautsch had retained that his clients would hold their right to silence. The necessary protocols were then invoked to lay criminal charges against the two officers, and charges were served through the solicitor on that day.
[8] Reply page 120 [55].
On 17 March 2023 the necessary paperwork was signed to suspend Mr Black and
Mr Trautsch without pay.[9] In the meantime, Mr Black and Mr Trautsch had changed solicitors, and Detective Inspector Morris was informed by the new solicitor that evening that
Mr Trautsch had a workers compensation certificate declaring Mr Trautsch unfit for duty. Detective Inspector Morris also reported that Mr Black and Mr Trautsch were the subject of a news story on Channel 7 that evening, which was a Friday.
[9] Reply page 93.
On the following Monday evening, 20 March 2023, Detective Inspector Morris was advised that Mr Black was also unfit for duty.
The certification was issued by Dr Hamzeh at the Doctors House Medical Centre. The clinical note recorded:[10]
[10] ARD page 54.
“Surgery consultation
Recorded by: Dr Nazih Hamzeh Visit date: 20/03/2023
Recorded on: 20/03/2023
stated need to start work cover claim du eto ongoing psychological injury related to work..
20/7/2019,,saw acrime where a daughter decapitated her mother head..seen he ha snot been the same..
2020 saw 9 years old girl also decapitated after MVA accident..ddint get any counselling at work..
over the the months ,,h edevolped low mood,,irritibilty..poor sleep flash back o fteh accidents..feel stire dfo rno goo dreason and not motivated..not spending time enjoying hi sfriend compay..even start to do less an dles sphysical activity..no suicidl ideation..
never corssoed his mind..
IMP
depression and anxiety..
discus stretamnet options..psychology and meedication
but he prefer to see psychiatrist first
Reason for visit:
Depression
(As written)”
The Police Service have a form entitled “Incident Reporting Form” which records injuries sustained on duty. It is commonly referred to as a “P902.” Sergeant Lindsay referred to those completed by Mr Black during his time with the force, beginning on 1 June 2017. There were 21 involving mostly scratches lacerations and sprains, which were described by Sergeant Lindsay.[11] Sergeant Lindsay noted that two of the P902s concerned a traumatic murder scene on 20 July 2019, and another in the death of a child on 7 December 2020, both of which were “pro-actively managed by Police in relation to providing the claimant with psychological welfare services.”
[11] Reply pages 144 – 149.
Sergeant Russell had the most day-to-day visibility of Mr Black and Mr Trautsch. Sergeant Russell said he was “genuinely surprised to see that the claimant had lodged 21 injury reports as I have always observed the claimant to be a highly resilient officer.”[12]
[12] Reply page 139 [27].
Also lodged by the respondent was a document entitled “Misconduct Incident History.”[13] There were two entries, the first being the current criminal matters, and another dated 14 July 2022, in which the allegation was “Unreasonable Use of Force (On Duty) – Weaponless Force.” The finding was “Declined s132(b) Frivolous, vexatious, or not made in good faith.”
[13] Reply page 72.
This then, is the objective background to Mr Black’s claim before the Commission.

MEDICAL EVIDENCE
Dr Stuart Saker

Dr Hamzeh referred Mr Black to Dr Stuart Saker, consultant psychiatrist, who reported on
6 May 2023.[14] Dr Saker took a history of the trauma that Mr Black had been exposed to during his policing career. He did not then take a history of the events of 22 January 2023. Dr Saker said:
[14] ARD page 48.
“His mood has been low. He goes to the gym every day. He feels tired all the time and has "brain fog". He has had problems with memory and concentration. His sleep is poor and disturbed by nightmares.
He is self-medicating with alcohol and has twice weekly binges. He has had suicidal thoughts in the past.”
On 1 August 2023 Dr Saker reported to Ms Hagipentelis, Mr Black’s solicitor. He confirmed the history of Mr Black’s traumatic exposure to the horrors he had witnessed, and diagnosed post-traumatic stress disorder, major depressive disorder, insomnia disorder and alcohol use disorder.
Dr Saker noted again that Mr Black was self-medicating with alcohol and had twice weekly binges. He said:[15]
[15] ARD page 28.
I also viewed a detailed account of the 22rd (sic) of January incident of alleged “unacceptable behaviour”. In my view the violent and poorly judged behaviour of the 22rd of January is entirely consistent with undiagnosed and untreated Post Traumatic Stress Disorder.”
He said further:
“5. I have a good understanding of the incident of the 22^nd of January 2023. My view is that Nathan Black was already suffering from Post Traumatic Stress Disorder and other psychiatric conditions at this time. Due to irritability and anger related to the Post traumatic Stress Disorder he reacted to the provocations of the situation in an excessively aggressive way and without the his [sic] full judgment.”

Quantumcorp

The insurer commissioned a factual report, and lodged with the reply was a document entitled “Claimant Questionnaire – Nathan Black.”[16] It was dated 15 May 2023.
[16] Reply page 102.
Mr Black responded to this questionnaire in some detail. He said that he had spoken to one senior officer to the effect that he was not coping with his duties. This was in relation to a “culmination of traumatic decapitation/head detachment related deaths,” and he said that after making the disclosure it resulted in him having time off work in December 2020. He said:
“Other than this, I refrained from speaking to any other senior officers due to the toxic stigma the NSW Police Force cultivates. I have had numerous EML claims noted and accepted from previous traumatic incidents, however no other disclosures to senior staff due to fear from my own experiences concerning a lack and inadequate mental health care, and other colleagues when their mental health process and stigma amplified with toxicity and a lack of assistance provided by NSW Police.”
He said the disclosure was caused as a direct response to being the first on the scene and the graphic incident he observed, and being the OIC for the Coronial Investigation of a child decapitation fatality, that being a third beheading incident of a similar nature.
He said the nature of his disclosure was extremely reserved and subtle and he was then advised by the senior officer to take time off because of the graphic nature of the incident
Mr Black said his reaction “was professional but I was pale, quiet, withdrawn, and displaying signs of shock, due to the exposed trauma.”
Mr Black said he could not remember every specific incident in answer to a question seeking details of the incident causing psychological symptoms. However, Mr Black gave a detailed list of the traumas to which he was exposed, which appear in the questionnaire from page 103 through to 107 of the reply.
There has been no challenge to Mr Black’s account and there is no purpose in repeating all the incidents he listed, starting in June / July 2017. There are 13 different events up to October 2022. They include suicides, sudden infant death syndromes, and murder, including the beheading mentioned before.
Mr Black said that he experienced violent, sporadic unpredictable physical confrontations involving wrestling with members of the public, arresting them, and dealing with protests throughout his career. His description was graphic and as I say unchallenged.
The questionnaire then posed a question of what assistance was provided after Mr Black had made his disclosure that resulted in his time off in December 2020. He said:[17]
[17] Reply page 108.
“Response: In relation to my time off in December 2020, the organisation provided no assistance and administrative staff only ever enquired to my return-to-work date for their records. Only family and friends (some colleagues) provided ongoing support, care and knowledge relating to my mental health. Regarding every other incident, listed and not listed, the workplace culture of the NSW Police enshrines a ‘get over it and get on with it’ work ethic, so the distrust other colleagues and myself have naturally formed within the police, was to stay quiet and not be viewed as weak by senior staff or other colleagues. I often got told words to the effect of, “Look at you go Blacky, doing all the big jobs keep at it” – I interpreted this as “do not show any weakness and keep going, keep doing the big jobs”, otherwise I would be letting my colleagues, bosses and myself down. There was no assistance, welfare checks, or any form of mental health follow-up in the events I have attended, other than my own family and close friends in discussing trauma. In the small sample of incidents listed above, you would assume that mandatory or organisational procedures would navigate the facilitation for such assistance, however this did not occur. On some occasions, I was not aware P902 EML claims were completed on my behalf, yet no senior officer or supervisor would follow-up with how myself or other colleagues would be feeling during or after exposure to such incidents, reaffirming the organisation’s stance and lack of monitoring, arguably negligent.”
Mr Black said that he came back to work prematurely after the December 2020 “due to the fear of the stigma instilled by the police culture and returned to work with no offer to speak to any psychologists.” He also saw a GP for his WorkCover certificate.
Mr Black gave more detail in questionnaire about the occasion when he was made to see an EAP employee after the July 2019 incident. He said he had spent six hours at the scene “viewing and being involved in the crime scene of a decapitated head on a footpath, with cut out eyes and tongue; I was made to see a EAP employee back in St Marys Police Station at about 5am, one hour before my shift ended. I had not eaten properly, was exhausted, mentally drained and sat in front of this male EAP employee who said ‘Right, so I know how you feel, a little overwhelmed, but I’m here to help’. I replied ‘Sorry, you don’t know anything I’m going through, how insulting’ and left”.
He said that being forced into a room to “tick a box” for EAP under the circumstances was hardly appropriate. He said;
“due to this and many other experiences I never knew how to or never sought networks by the NSW Police as they were terrible and that any transparency, quality or genuine assistance for mental health. I would like to highlight that useless, uninformative flyers posted around a police station, or intranet memos, are inadequate to providing and guiding employees to a path of healthy mental health care; it is easier to suffer in silence from workplace trauma than advising the workplace or obtaining ‘assistance’ poor quality stakeholders.”

Mr Black was asked whether between 22 January 2023 and 22 February 2023 when he was suspended with pay if he made any formal struggling disclosure to a fellow officer.
Mr Black’s response was:[18]
[18] Reply page 110.
“No, being suspended from work is irrelevant to this EML claim, which is substantiated on 6 years of traumatic incidents, some of which recorded as previous EML insurance claims on my behalf.”

Dr Alice Neale

Dr Neale, consultant psychiatrist, was retained by the respondent. She examined Mr Black on 17 May 2023, and reported the same day. [19]
[19] Reply page 177.
Dr Neale took a history that Mr Black was attested in April 2017 and that he had been working since November 2020 in the Proactive Crime Team, stationed at Penrith. She took a history of Mr Black’s exposure to previously distressing cases throughout his career, including suicides, decomposing bodies, three sudden infant death cases, suicides and car accidents.
Dr Neal noted that following the death of a nine year old girl in 2020, Mr Black felt distressed and took a few weeks of leave under WorkCover.
She noted that he was prescribed no medication, did not see a psychologist and simply “wanted to get back to work”.
Dr Neale noted that Mr Black said that in retrospect he began to feel hateful to more people about after one year and used black humour. She noted:[20]
[20] Reply page 180.
“He said he did not want to take time off work and that the workplace culture was “better to suffer in silence than speak and be seen as weak”
Dr Neale noted that Mr Black had commenced a research degree and had been considering whether to leave the Police when he completed that degree.
Dr Neale noted that Mr Black was charged with criminal offences following the
22 January 2023 event, which he said “sometimes played on my mind” and those events he considered were “irrelevant to the current claim”.
Dr Neale then said:[21]
[21] Reply page 181.
“Mr Black detailed his daily routine. He said he wakes at around 8:30 in the morning, does his pre-workout routine and then attends the gym daily. He said he then undertakes housework and attends appointments. He reports he also sees family or friends, either to help them or to socialise. Mr Black said that he often naps from between 30 and 90 minutes in the day, however, “sometimes I push through”. He said he has attended events such as first birthdays and family events and has enjoyed these interactions. Mr Black said that he is regularly socialising with his friends and, in addition to going to the gym, likes to walk or ride bikes. He said he also enjoys going on long drives and said he is independent in driving, though does experience some road rage.
Mr Black said that he is independent in his self care and follows a routine. He said he also eats regularly. Mr Black described an “extremely close” relationship with his siblings and his father. He reported having maintained friendships with some of his colleagues. Mr Black said he is currently studying his research thesis and is performing well in this. He said he is due to complete the degree in August or September of this year.”
Dr Neale questioned Mr Black about his past psychiatric health. He said that being advised by his superiors when he first joined during the first year that there were facilities such as EAP and Chaplain services but he did not use those supports.
He was sent to see the EAP counsellor following a beheading injury in July 2019 but he felt the counsellor had been unhelpful and he left before engaging in the session. As a result he was reluctant to engage in psychological therapy thereafter.
He took the time off in December 2020 under a WorkCover claim. He did not receive any specific mental health treatment and did not see a psychologist, nor was he prescribed any medication by his GP.
Dr Neal noted what she described as Mr Black’s addiction. She wrote:[22]
[22] Reply page 183.
“Mr Black said that he consumes alcohol every three days, three to four drinks of spirits at a time. He said when he feels “overwhelmed” he will drink more, stating at such times he tries to “write myself off”. In recent months, Mr Black said that this has been “a couple of times”. Mr Black said that he commenced drinking alcohol regularly approximately a year and a half into his career as a police officer, “it was the type of work, the type of people you hang around”. He said that after each incident of trauma, he would increase his alcohol use to daily for approximately one week before returning to his pattern of drinking every three days. He denies any past drug and alcohol detox or rehab. He denies any recreational substances. He denies any cigarettes and he denies gambling. Mr Black said that he consumes caffeine up to three serves per day.”
Dr Neal noted that Mr Black had engaged the services of a treating psychiatrist, Dr Stuart Saker, and she noted that Mr Black would not see a psychologist since his experience with the EAP employee in July 2019.
Dr Neale’s diagnosis was:[23]
[23] Reply page 189.
“It is my opinion that Mr Black presents with symptoms consistent with DSM-V diagnosis of Posttraumatic Stress Disorder and secondary Alcohol Use Disorder.”
As to Mr Black’s capacity to earn, Dr Neal advised that Mr Black had experienced post-traumatic stress disorder symptoms throughout much of his career and that his cumulative experiences of trauma over that time led to his development of post-traumatic stress disorder. She said:
“However, it is not my opinion that his Posttraumatic stress disorder has translated to an incapacity to work. Mr Black is maintaining his self care and he is engaged in social and recreational activities. He has maintained relationships and has no difficulties with his concentration as evidenced by the distinctions he received in his study. While Mr Black does experience some symptoms of anxiety and at time anger, it is not my opinion that this incapacitates him for work.”[24]
[24] Reply page 188.
Dr Neale thought that Mr Black could return to pre-injury duties or duties with another employer. She said:[25]
[25] Reply page 188.
“While I do note that Mr Black has been exposed to multiple traumatic incidents throughout the course of his career as a police officer and that these incidents have led to his development of Posttraumatic Stress Disorder, should Mr Black return to his career in policing there remains a risk that further traumas may contribute to an aggravation or exacerbation of his symptoms, which may in the future lead to some work incapacity. It is my opinion that appropriate treatment for his Posttraumatic Stress Disorder may help to mitigate that risk.”
Regarding Mr Black’s need for treatment, Dr Neale said:[26]
[26] Reply page 188-189.
“……It is my opinion that Mr Black’s alcohol misuse is secondary to his Posttraumatic Stress Disorder …”
As to the circumstances of the events of 22 January 2023, Dr Neale said:[27]
[27] Reply page 189.
“…In the absence of any additional traumas, I do not anticipate that it is likely that
Mr Black’s Posttraumatic Stress Disorder is likely to deteriorate, though I do note his ongoing legal difficulties, the stress of which may somewhat exacerbate his symptoms depending on legal outcomes. *Please note Mr Black and I did not go into details of the event in January 2023 or the charges that he is facing as this is outside of the scope of my brief.”
Dr Neale said further:[28]
[28] Reply page 189.
“….It is not my opinion that currently or in the past Mr Black’s Posttraumatic Stress Disorder has contributed to a lack of capacity for work.”

61.Dr Neale also said:[29]
[29] Reply page 190.
“…I note Mr Black’s recent disciplinary and legal difficulties which, in my opinion based on history obtained from Mr Black and the collateral information provided in particular, the statements of Mr Black’s colleagues, likely led to a situational crisis at the time of
Mr Black being suspended. It is not my opinion that the aforementioned difficulties have contributed to Mr Black’s Posttraumatic Stress Disorder. However, I do note that stress related to his upcoming court case and depending on the outcome, Mr Black may experience some significant increase in his anxiety which may exacerbate his PTSD for a period of time.”

62.She stated:[30]
[30] Reply page 190.
“It is not my opinion that Mr Black’s Posttraumatic Stress Disorder was wholly or predominantly caused by action taken or proposed to be taken in regard to discipline, performance appraisal etc. …”

Mark Benard, psychologist

Mr Black was referred to Mr Mark Benard, psychologist as part of his workers compensation treatment. Mr Benard reported on 27 June 2023, after liability had been denied on 9 June 2023. There were three consultations on 23 May 2023, 31 May 2023 and 7 June 2023 respectively. Mr Benard took a consistent history of the traumatic events Mr Black had seen over his time with the Police. Mr Benard said:
“[Mr Black] commented on an overarching lack of psychological support from the police following difficult jobs. He spoke of cursory “tick a box” debriefing whereby it was all quite rushed and he felt let down in this regard. He formed the view that external psychological support would likely be the same, hence despite needing help, he avoided mental health treatment.”
Mr Benard noted that Mr Black had to have time off after witnessing the death of a nine year old girl on 7 December 2020. He noted that he commenced treatment with Dr Saker at the start of May 2023.
Mr Benard said:[31]
“I questioned him regarding alcohol use. He reported drinking to relieve symptoms of stress. He drinks about 3-4 times per week. On occasions, his consumption is excessive leading to hangover.”

66.Mr Benard’s diagnosis was:
“Following my initial assessment of Mr Black, I formed the opinion that he appeared to be suffering work-related mental disturbance. On a cross sectional basis, his symptom profile appeared consistent with the diagnoses Posttraumatic Stress Disorder (DSM-V:309.81), Major Depressive Disorder and Alcohol Use Disorder.”
[31] ARD page 36.

Mr Benard said that he later discovered that Mr Black had been criminally charged regarding the January 2023 incident and that he had been suspended from work for first with and then without pay.
He noted that questions were raised in relation to the significance of the suspension and charging of Mr Black. Mr Benard said:[32]
“As further information was provided, questions were raised in relation to the percentage of disturbance associated with traumas experienced and that which related to him being criminally charged and suspended from New South Wales Police Force. There has been an inability to reconcile this issue due to cancellation of treatment and absence of further information.
The suspension and timing of claim lodgement has seemingly muddied the water in relation to the attribution of reported symptoms.
…..
From a clinical perspective, I have seen over the years countless emergency service personnel who have developed uncharacteristic behavioural disturbances including assaults in the context of deteriorating work related mental health including PTSD and Depression. It is impossible for me to confirm if this is the case with Mr Black, however it is worthy of consideration.
It must be remembered that I have only seen this man on three occasions and I am not across his entire history, both work and non-work related. I was engaged as a treating psychologist and the focus of the initial sessions revolved around some history gathering and efforts to establish rapport for the purpose of psychological therapy.”
[32] ARD page 37.
He stated that this was a complex case and because he was the treating physician rather than an assessing clinician, left it to the medico-egal experts to advise.

Dr Khan

Dr Abdul W Khan, consultant psychiatrist, assessed Mr Black on 18 July 2023, his report being dated 19 July 2023.
Dr Khan took a consistent history to that taken by the other medical professionals. The various traumatic incidents Mr Black’s employment took him to were described, and Mr Black explained he could not raise his concerns with his supervisors because his professional career would have been affected. Raising concerns about mental health issues was looked down upon, Mr Black said. He would “have his gun removed and be placed in mundane non-operational duties” had he made his concerns known. “The culture of the workplace, where alcohol was seen as a means of coping with trauma, caused him to feel pressured and his alcohol use gradually escalated.”[33]
[33] ARD page 21.
Dr Khan noted that Mr Black was experiencing pervasive symptoms. Dr Khan recorded that Mr Black had impaired concentration, persistence and pace which caused him to withdraw from his studies in social science, amongst other complaints.
Dr Khan said:[34]
“As a result of the aforementioned traumatic incidents, Mr Black experienced gradual deterioration in his mental state characterised by nightmares, flashbacks and distressing memories about various traumatic incidents, physical and emotional symptoms of anxiety and panic, agitation, irritability, hypervigilance, heightened startle reaction, avoidance of trauma-related reminders including avoidance of his workplace, low mood, social withdrawal, reduced motivation, reduced energy, reduced enjoyment in activities, sleep disturbance with poor sleep maintenance and appetite disturbance with weight gain exceeding 7kg. He also struggled with impaired attention, impaired concentration, impaired memory, reckless behaviour with escalating alcohol use, feelings of hopelessness and worthlessness, passive suicidal ideation, loss of self-confidence, loss of self-esteem and difficulties with trust in interpersonal relationships.”
[34] ARD page 22.
Dr Khan took a history of the events of 22 January 2023. He noted Mr Black’s account of the interaction with the vulnerable woman. Dr Khan recorded:[35]
“Mr Black said that because the woman was detained under the Mental Health Act, they needed to make sure she was taken to hospital. During this time, the woman started to escalate her behaviour and proceeded to defecate on Mr Black and bite his partner. She was menstruating at the time and her menstrual blood and faeces entered open wounds that Mr Black had sustained during the attempt to subdue her. He lodged a workers compensation claim for the injuries he suffered and he had required ongoing monitoring of his liver function tests as his general practitioner had diagnosed him with a liver infection that was deemed to have been sustained from this body fluid exposure.
[35] ARD page 22.
Mr Black said that a few weeks later, he was criminally charged….”
Under the heading “Addiction History” Dr Khan said:[36]
“… Over time, Mr Black’s alcohol use has gradually increased with a current pattern of consuming on average 7 – 13 standard drinks daily. There was no history of complicated alcohol withdrawal…”
[36] ARD page 23.
Dr Khan noted the prior workers compensation claims for various physical and psychiatric/psychological injuries.[37]
[37] ARD page 23.
Dr Khan diagnosed post-traumatic stress disorder, major depressive disorder and alcohol use disorder.
He said:[38]
“Mr Black’s prognosis is guarded. He continues to experience pervasive symptoms of trauma, depression and anxiety, which perpetuate significant alcohol use and have a profoundly negative impact on his social, occupational and other important areas of functioning.”
[38] ARD page 24.
He found that the injury was sustained as a result of employment as a police officer throughout the course of his employment. The traumatic exposures caused his mental state to gradually deteriorate from about one year after he started work. Dr Khan’s advice was that:[39]
“Mr Black is not fit for preinjury duties. He is totally incapacitated to work. Mr Black is not fit for employment in any capacity…
… Having regard to his education, training and experience, Mr Black is totally incapacitated to work as a result of the subject injury. This is due to the ongoing impact of the subject injury on his mood regulation, motivation, energy, sleep patterns, attention, concentration, memory, ability to tolerate stress and pressure, coping mechanisms with a history of suicidal ideation and an addiction to alcohol, self-confidence, self-esteem and trust in interpersonal relationships.”
[39] ARD page 26.
Dr Khan did not agree that Mr Black’s “claim” had been wholly or predominantly caused by the actions of the respondent regarding the events of 22 January 2023.
He said:[40]
“I do not agree with the insurer’s reasoning. Although the suspension for alleged misconduct following the work incident that occurred on 22 January 2023 had led to Mr Black stopping work, it is evident that his psychiatric/psychological injury first emerged around 2018 and caused him to first become totally incapacitated to work in late 2020 due to the development of pervasive symptoms of trauma, depression and anxiety and escalating alcohol use from protracted exposure to workplace traumatic events.”
[40] ARD page 26.

OTHER EVIDENCE
Statement Mr Black

Mr Black’s statement was dated 11 August 2023.[41]
[41] ARD page 1.
Mr Black stated that he was then 26 years old and that prior to his employment with the Police Force did not consume alcohol. He said he had been employed full time as a Police Officer for about six years (it being agreed that he was attested in 2017).
He said that during the course of his employment he had been exposed to various types of trauma. He said:
“21. This includes but is not limited to suicides murders, recovery of deceased persons, fatal motor vehicle accidents, victims of assaults and child-related deaths, and physical trauma of being victim to assaults from offenders in many volatile and unpredictable situations.
22.    I first noticed my mental state deteriorate approximately one year after I commenced my employment.
23.    I first attended a death approximately six weeks into my employment where I found a deceased person hanging due to suicide.
24.    Soon after this incident, I attended another scene where there was a decomposed body.
25.    I was unable to raise my concerns with my supervisors about how I was not coping emotionally as my professional career would have been affected.
26.    Raising concerns about mental health issues was looked down upon and if any concerns were raised, I would have my gun removed and I would be placed in mundane non-operational duties.
27.    I did not drink alcohol before I commenced my employment with the NSW Police Force.
28.    However, workplace culture where alcohol was seen as a means of coping with trauma, caused me to feel pressured and my alcohol use gradually escalated.”
He said there were numerous other incidents that affected him emotionally. He described two horrific incidents - one being an horrific murder in July 2019 and the other in late 2020 when he was the officer in charge and first on the scene in an incident where a nine year old girl, who had been riding her scooter, had been decapitated by a truck. He said, after he completed his investigation, his inspector told him to take some leave as he was concerned about Mr Black’s welfare. He eventually took four weeks off under workers compensation.
He did not engage in EAP counselling. He said:[42]
“34. I did not engage in EAP counselling as I found a previous debrief from an EAP counsellor to be unprofessional and I did not trust that EAP counsellors would maintain their confidentiality, professionalism or assist
35. As a result of the aforementioned traumatic incidents, but not limited to those above, I experienced gradual deterioration in my mental state characterised by nightmares, flashbacks and distressing memories about various traumatic incidents.
36. I also experienced physical and emotional symptoms of anxiety and panic, agitation, irritability, hypervigilance, heightened startle reaction.
37. I experienced avoidance of trauma-related reminders including avoidance of my workplace, low mood, social withdrawal, reduced motivation, reduced energy and reduced enjoyment in activities.
38. I would also experience sleep disturbance with poor sleep maintenance and appetite disturbance with weight gain exceeding 7kg, which has fluctuated for years since 2018.
39.I struggled with impaired attention, concentration and memory, reckless behaviour with escalating alcohol use, feelings of hopelessness and worthlessness, passive suicidal ideation, loss of self-confidence, loss of self-esteem and difficulties with trust in interpersonal relationships and the workplace.
40. I continued to work and tried to repress my traumatic memories.”
[42] Page 3.

Mr Black then described the circumstances of 22 January 2023 and said that a few weeks later he was criminally charged with assault and the use of a prohibited weapon, and with recording and distributing intimate images.
He said he was suspended from work and that he has not worked in any capacity since then.
Mr Black said that he was exposed to extensive traumatic incidents “that led me to suffer from trauma and common depression and anxiety as well as an addiction to alcohol.”[43]
[43] At [50].
He said his mental state had gradually begun to deteriorate from about one year from when he commenced employment. He continued to experience pervasive symptoms of depression and anxiety, and he described a number of the symptoms that he was suffering as a result of his condition.
At [61] he said:
“Over time, my alcohol use has gradually increased with a current pattern of consuming on average 7 – 13 standard drinks daily.”

Dispute Notice

A s 287A notice was issued on 17 August 2023.[44] It denied liability, claiming:
· “Pursuant to sections 33, 59 and 60, we do not consider you to be suffering from any incapacity for work or need for treatment as a result of any psychological injury relating to your attendance at traumatic incidents in the course of employment.
· In addition or in the alternative, any psychological condition you may be suffering is not compensable as we consider it to have arisen from your conduct on 22 January 2023 which:
·constituted gross misconduct such that it effectively took you outside of the course of your employment for the purposes of section 4;
·constituted serious and willful misconduct pursuant to section 14(2); and/or
·resulted in actions being reasonably taken by your employer pursuant to section 11A(1) in respect of discipline, provision of employment benefits, and dismissal which have been the whole or predominant cause of your present psychological condition.”
[44] ARD page 41.
It stated further, inter alia:
“●     The report of Dr Saker dated 1 August 2023 has given his opinion that your actions on 22 January 2023, were admittedly “excessively aggressive”, but that he believes that they represented actions performed without the benefit of your full judgement because of an underlying post-traumatic stress disorder condition.
·        Even if we were to accept the above as being correct and true, we observe that any underlying post-traumatic stress disorder had not been causing you incapacity for work as noted by Dr Alice Neale, Independent Psychiatrist, and that you have instead been unable to work as a direct result of your misconduct on 22 January 2023.
·        Further, whilst that misconduct may represent poor exercise of judgement, we do not view Dr Saker’s evidence (or any other available medical evidence) as supporting a finding that you had acted involuntarily on 22 January 2023.”

SUBMISSIONS

Mr Brown

Mr Brown confirmed that payments of weekly compensation had been made up to
21 June 2023. He submitted that there were some areas of common ground. Dr Saker,
Dr Khan and Dr Neale all agreed that Mr Black was suffering from a post-traumatic stress disorder and from an alcohol use disorder.
The s 78 notice raised issues pursuant to s 14 (2) and s 11A of the 1987 Act and therefore,
Mr Brown submitted, the respondent bore the onus of establishing those defences.
Mr Brown submitted that the real issue was Mr Black’s capacity to earn. In that respect he submitted the issues were delineated by Dr Khan and Dr Neale, the former advising that
Mr Black had no current work capacity, and the latter that he was unimpaired in his ability to earn. Mr Brown said that Dr Saker did not give an opinion regarding capacity, but that he gave an insightful symptom description.
Mr Brown referred to the report of Dr Khan of 18 July 2023, and relied on the history taken of Mr Black’s alcohol consumption then being the consumption of 7 to 13 standard drinks of alcohol daily. Mr Brown submitted that Dr Khan’s opinion both as to the nature of the psychological injury and its effect on Mr Black’s earning capacity accorded with the probabilities and should be accepted over Dr Neale’s advice regarding capacity.
Dr Neale, Mr Brown argued, had not considered the effect of Mr Black’s diagnosis of alcohol use disorder on his capacity to earn, as her opinion pre-dated the claimed period of incapacity. Mr Brown submitted that in any event Dr Neale’s opinion was somewhat confusing, but it was silent as to the effect of the alcohol use disorder on Mr Black’s capacity to earn. When compared to Dr Khan’s report, Mr Brown argued that Dr Neale’s report was not reliable. Dr Khan took a history on 19 July 2023 and included several references to Mr Black’s alcohol consumption.
Mr Brown also referred to Dr Neale’s opinion that Mr Black could not return to his policing career without there being a risk that further trauma could contribute to an aggravation of his will symptoms, which in turn in the future could lead to some incapacity. Mr Brown submitted that Dr Neale’s opinion fitted squarely within the provisions of s 47 of the 1987 Act.
In any event, Mr Brown noted, Dr Neale’s report was based on one examination only, and that examination took place prior at a point in time that was outside the scope of when weekly payments are claimed.
Mr Brown submitted that the GP’s opinion as to capacity would carry the most weight, and he referred to the certification that there was no current work capacity made in a series of certificates that were the subject of an application to admit late documents, admitted without objection.
Mr Brown referred to the report of Dr Saker, submitting that Dr Saker took a good summary, and that the history taken would support an inference that Mr Black was not capable of employment. Mr Brown submitted that, like the GP, Dr Saker was familiar with Mr Black’s situation, having seen him on many occasions and that additional weight could therefore be placed on his observations in similar vein to the weight that could be given to the opinion of the GP.
Mr Black’s statement was referred to, Mr Brown submitting that Mr Black’s description of his symptoms were consistent with the history taken by Dr Khan and again supported the proposition that Mr Black was without any current work capacity.
Mr Brown concluded by addressing the appropriate pre-injury average weekly earnings (PIAWE).

Mr Hart

Mr Hart conditionally accepted the proposed figures, stating that if there were a problem with them his instructing solicitors would notify him. Mr Hart agreed that the issue was indeed incapacity.
Mr Hart submitted that the applicant’s evidence failed to contend with the central issue of the case, which was that although the medical experts concurred that Mr Black had been suffering from post-traumatic stress disorder almost from the start of his career with the police, that condition had not caused him any incapacity, apart from a period of about three weeks in 2020.
The applicant’s case was deficient, Mr Hart argued, because it contended that the events following Mr Black’s conduct on 22 January 2023 did not affect the question of the cause of his incapacity. As a result of his conduct, Mr Black had been stood down without pay, had been featured in the media, and reported to his GP that he was totally incapacitated three days following his being stood down. Mr Hart submitted that Mr Black’s attendance was “more than a coincidence.” The opinion of the medical experts that the incapacity was not because of the events of 22 January 2023, but because of Mr Black’s exposure to traumatic events before then, would raise a considerable doubt in the face of the fact that Mr Black is facing criminal prosecution which is more probably the reason that he can’t work.
Mr Hart stated that his instructions regarding the respondent’s reliance on ss 4, 11A and 14(2) were not withdrawn. Mr Hart quite fairly said that he could not advance them beyond submitting that the events of 22 January 2023 constituted a discrete exacerbation of
Mr Black’s post-traumatic stress disorder and that therefore s 4b(ii) applied. He submitted that in that case, the provisions of s 11A and s 14(2) could respond. However, he stated that this was not his primary case, as the support he would have to rely on, being from Dr Neale, could be found to be somewhat qualified.
Mr Hart sought to discredit the applicant’s statement by pointing to alleged inconsistencies between what there appeared and what was recorded elsewhere in the evidence. He argued that Mr Black’s assertion that he withdrew from his studies following his attendance at a beheading in October 2022 was not supported by Dr Neale, who reported that Dr Black had recommenced his studies and was due to complete his degree in August or September of 2023. He had been receiving distinctions in his essays and performing well. This was a relevant factor regarding capacity, but illustrated a larger problem, Mr Hart contended, with
Mr Black’s evidence generally.
This problem was that the similarities between Mr Khan’s description of Mr Black’s symptoms and functioning and those by Mr Black in his statement were such that Mr Black, whose statement postdated the report of Dr Khan, could not be said to have made any attempt to articulate his symptoms in his own words. Accordingly, his statement was not an accurate record of his functioning at the time of the statement, but were simply a copy of Dr Khan’s history. Mr Hart compared Dr Khan’s report with Mr Black’s statement in that regard.
Mr Hart submitted that what he described as a “laundry list” of symptoms, which Dr Khan advised had been operating on the applicant since around 2018 and which caused him to have three weeks off in 2020, nonetheless did not incapacitate Mr Black any further until suddenly when he was suspended without pay, he became totally incapacitated. The “elephant in the room,” he submitted, was the subsequent investigation, the media exposure and the criminal charges that were pending at the time he was so certified. Dr Khan advised that these matters had no operative effect. Dr Khan said only that Mr Black’s mental state deterioration predated his suspension from work.
Mr Hart submitted that Dr Khan’s opinion did not warrant any weight, as Dr Khan did not think “at all” that those events played any part in the clinical picture. He did not, Mr Hart contended, explain how it was that Mr Black had been able to perform his normal duties up to March 2023 when he had been suspended with pay, but suddenly became totally without any current work capacity once these events had occurred. There was a complete absence of any forensic analysis regarding this apparent contradiction, which made the probative value of Dr Khan’s report of very little weight.
Mr Hart submitted that Dr Saker’s opinion suffered from the same vice as Dr Khan, namely that he had not engaged with the link between Mr Black’s sudden incapacity with the previous ability by Mr Black to perform his duties, notwithstanding his post-traumatic stress disorder.
Mr Hart then referred to the clinical records of the GP, Dr Sharma, pointing out that the first consultation occurred on 7 February 2023, after the incident. There was no prior doctor/patient relationship. No records had been served as to what Mr Black’s prior mental state had been like. The records showed that Dr Sharma had only seen Mr Black on a handful of times. It was significant that what Mr Black told Dr Sharma on the first occasion concerned the actual event, and that none of Mr Black’s alleged post-traumatic stress disorder symptoms were disclosed at that time. On 10 February 2023 there again was no suggestion that Mr Black was suffering from any incapacity or that he was even suffering from post-traumatic stress disorder. On
27 February 2023 the notes were difficult to reconcile with other evidence around the same time as Dr Sharma recorded that Mr Black did not drink and was not overweight. The applicant had not put on any evidence to explain how that could be true in the light of the history he gave to every other doctor, Mr Hart said. Then, on 20 March 2023 Mr Black suddenly tells Dr Sharma about the trauma he had witnessed, which Mr Hart said the respondent accepted had occurred, but which had not been productive of any incapacity. It was significant that this history was only given three days after Mr Black had been stood down without pay.
Mr Hart then addressed the respondent’s evidence, and particularly that of Detective Inspector Morris in the context of its “fall back 11A defence.” Detective Inspector Morris described the procedures adopted in response to the complaints laid against Mr Black, which Mr Hart traversed.
His second statement described the events seen on the CCTV. This evidence showed that the respondent acted reasonably regarding its disciplinary procedure, although Mr Hart conceded that he had also to show that those actions had wholly or predominantly been the cause of
Mr Black’s psychological injury. He relied on Dr Neale’s report for that purpose.
There was a contrast between the approach taken between Dr Neale and Dr Khan, Mr Hart submitted. Dr Khan relied solely on self-reporting, whereas Dr Neale took a much more forensic approach to the evidence. She required the applicant to confirm and give evidence of his symptoms and whether or not he was suffering any degradation in his functioning. This was in sharp contrast to the report of Dr Khan, it was argued, as there was an entirely irreconcilable opinion as to capacity. Mr Hart submitted that for the applicant to succeed,
Dr Neale’s report would have to be found to be without any weight. Mr Hart referred to the contrasting detail contained in each report, noting various contrasts in the opinions, and said that it would be difficult indeed to attributed little weight to Dr Neale’s report. The reasons advanced by Dr Neale for her opinion that Mr Black’s post-traumatic stress disorder did not translate into incapacity were compelling, he argued. Mr Black was maintaining his self care and continued to engage in social and recreational activities. He had no difficulties in concentration – indeed he was continuing on with his studies with distinction. Dr Khan on the other hand had simply given a “laundry list” of symptoms with no analysis of their effect on the applicant’s capacity or any explanation as to why they had caused total incapacity, three days after he was stood down without pay.
Mr Hart noted Mr Brown’s submission regarding the incapacitating effect of the applicant’s alcohol consumption but said there was no corroboration for that consumption in the contemporaneous notes, and no supplementary statement from the applicant to explain this conflict in history. Dr Neale advised that the alcohol consumption had been a pattern for some time and Mr Hart said there was no reason therefore for Dr Neale to conclude that it was responsible for any incapacity in itself. The only thing that had changed was the event of
22 January 2023, which Mr Hart again described as “the elephant in the room.”
Mr Hart then referred to Dr Neale’s advice regarding whether the respondent’s actions had either wholly or predominantly caused Mr Black’s condition. Mr Hart said that this answer informed his earlier submission that this defence could only be advanced to a limited degree. Mr Hart referred to Dr Neale’s earlier response to a question as to whether there were any non-work related factors contributing to Mr Black’s condition, and her advice that although she was aware of his recent “situational crisis”, it had not contributed to his disorder. Mr Hart emphasised that Dr Neale had however then said that the upcoming court case could cause Mr Black to experience “some significant increase” in his condition that may exacerbate the post-traumatic stress disorder for a period of time.
Mr Hart submitted that if that exacerbation were seen as a separate s 4b(ii) injury then it almost definitionally was caused by the 22 January 2023 event and its sequalae. Mr Hart conceded that Dr Neale’s opinion that those latter events had not contributed to the condition however meant that this interpretation could only be advanced in a provisional way.
The applicant’s case required an acceptance that Mr Black had been suffering his post-traumatic stress disorder for many years without it causing (except for a short period in 2020) any incapacity. It had to be accepted that two days after he was stood down without pay, he suffered a sudden and irretrievable total incapacity as a result of that condition. All the applicant’s evidence – and that of the respondent, although the applicant carried the onus of proof – failed to deal with the effect of the events of 22 January 2023, which, Mr Hart submitted, defied common sense. That the serious allegations being faced by the applicant had not impacted on Mr Black’s psychological state.
The transcript will show that at this point there was an exchange:[45]
“MEMBER: What is your submission whether there was an element of his PTSD in causing that behaviour? Do I have any evidence of that? I think I do.
MR HART: I think you do. Two things: Firstly, there was no self-attribution by the applicant.in his statement. Secondly, neither of the experts think that’s right, or at least they don’t say that - they were not asked the question. The only doctor who said that was Dr Saker…”
[45] As I do not have a "transcript" option on my Teams Application, this exchange may not be verbatim.
Mr Hart submitted that Dr Saker’s description was a gross understatement in the instructions given to him. Describing the events of 22 January 2023 as being “excessively aggressive” was, Mr Hart submitted, a gross mischaracterisation.
A further exchange occurred in which Mr Hart was asked to consider the situation that until
Mr Black was suspended without pay, and assuming that Mr Black was correct in his description of the police “culture”, he did not want to rock the boat in the hope that his employment might be maintained. Once he was suspended without pay would Mr Black have considered himself released of any obligation to keep quiet and give a full history to his GP on 20 March 2023.
Mr Hart responded that that was a difficult proposition to accept, and that there was no evidence one way or the other.

Mr Brown in reply

Mr Brown addressed firstly the submission that Dr Khan had not considered the events of
22 January 2023, and referred to Dr Khan’s report in that regard. Dr Khan made it plain that he was not discounting the effect of the 22 January 2023 events, but stating that they were not solely the cause of Mr Black’s injury.
Mr Brown submitted that the criticisms made of the applicant in reproducing the descriptions made by Dr Khan of his symptoms were misconceived, as it was common practice for any competent solicitor, armed with an expert report at the time of the making of an applicant’s statement, would have read it before the conference with his client. It followed that there might well be some repetition, Mr Brown said: After all, it was the history recorded by the doctor and therefore the applicant’s statement in any event. Neither the statement nor Dr Khan’s report were incorrect or inaccurate, he submitted.
As to Mr Hart’s assertion that the timeline shown in the three attendances on Dr Sharma, the GP demonstrated a deliberate attempt to mislead, Mr Brown submitted that Mr Black was aware of the culture in the police force, and realised that he had to look after his own health when he found himself on the outside. The reason, Mr Brown said, that people sought compensation was either to seek treatment, or weekly wages, whilst they could not work. Prior to his making the claim, Mr Black’s expectation was that he was still part of the force, and that making such a claim would be detrimental to his prospects.
In the light of the reported post-traumatic stress disorder in the P902 statements it was not open for the respondent to allege that Mr Black did not suffer post-traumatic stress disorder, so the relevant question is why was the claim made at that point in time. The question was whether the injury resulted in any partial or total incapacity. Mr Brown referred to Murphy v Allity Management Services Pty Ltd[46] in describing the question as not being a black or white question, as there can be multiple causes of incapacity.
[46] [2015] NSWWCCPD 49.

Even Dr Neale was concerned about whether Mr Black should return to policing, which
Mr Brown submitted was a reasonable response, regardless of the application of s 47. At the least, I understood Mr Brown to submit, a reasonable GP and/or psychiatrist would conclude that someone in Mr Black’s position was not suitable to return to front line policing, which itself was an incapacity.
With regard to the contrasts between the history of Dr Neale and Dr Khan (and the statement of the worker) Mr Brown repeated that there was a two-month gap between the reports of the two experts. They were not irreconcilable, as had been submitted by the respondent, because 10 weeks could be a significant period of time - particularly with someone who was in a downward spiral and suffering an alcohol abuse disorder. A level of binge drinking such as had been described in the evidence would leave the drinker unable to function at all, he submitted. It could also happen quite quickly, so that the apparent difference in opinion did not detract from Dr Khan’s history taking. Dr Neale’s report predated the relevant period of the claim and the relevant evidence was that of Dr Khan, Dr Saker and the worker.
With regard to the s 14(2) defence, Mr Brown said that no submissions had been made by
Mr Hart, and there was no medical evidence to suggest that the misconduct in
[47] Hamad v Q catering Limited [2017] NSWWCCPD 6.
22 January 2023 was the sole cause of the injury, which the section required. With regard to the s 11A defence, Mr Brown submitted that there was an absence of medical evidence to satisfy the “wholly or predominantly test.” Consistent with Hamad v Q Catering[47] there were multiple prior traumatic events, including a prior period of incapacity and prior counselling that needed to be addressed by medical evidence, and was absent.
The submission that the events of 22 January 2023 should be treated as a separate injury should be rejected, Mr Brown said. Section 11A operated as a defence once a worker had made good a compensable injury under s 4 and the defence had to respond to the claimed injury. It was not sufficient to argue that there was a second injury or a second aggravation that thereby prevented the worker from recovering from a different injury.
With regard to the respondent’s submission as to the timeline, the P209 forms showed an earlier period of counselling, and of time off work. Mr Brown also referred to the report of
Dr Saker who clearly had documentary reports of the 22 January 2023 event, regardless of the language he used to describe it, whether it was violent behaviour or unacceptable behaviour. Dr Saker said that it was consistent with undiagnosed post-traumatic stress disorder, from which it must follow that the post-traumatic stress disorder was in existence prior to that event.
Mr Brown made an application for a complexity uplift of the costs payable.

DISCUSSION
Legislation

Section 4 of the 1987 Act provides relevantly:
"‘injury’ --
(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’ , which means--
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease,…”
Section 11A of the 1987 Act provides relevantly:
“11A NO COMPENSATION FOR PSYCHOLOGICAL INJURY CAUSED BY REASONABLE ACTIONS OF EMPLOYER
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….”
Section 14 of the 1987 Act provides:
“14 CONDUCT OF WORKER ETC
(cf former s 7 (2), (3))
(1) Compensation is payable in respect of any injury resulting in the death or serious and permanent disablement of a worker, notwithstanding that the worker was, at the time when the injury was received--
(a) acting in contravention of any statutory or other regulation applicable to the worker's employment, or of any orders given by or on behalf of the employer, or
(b) acting without instructions from the worker's employer,
if the act was done by the worker for the purposes of and in connection with the employer's trade or business.
(2) If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement.”
Section 47 of the 1987 Act provides:
“47 INCAPACITY DEEMED TO EXIST IN CERTAIN CASES
(cf former s 12A)
A worker who, as a result of injury, is unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment shall be deemed to be incapacitated for employment of that kind.”

The timeline

The chronology of events at the commencement of these reasons demonstrates the facts on which the respondent relied regarding the real issue in the case: whether Mr Black has any capacity to work. The applicable law is that which pertained prior to the 2012 amendments to the scheme,[48] and the issue is whether Mr Black’s current incapacity has been caused by his claimed injury.
[48] Clause 25, Part 19H, Schedule 6 1987 Act.
A central theme to the defence conducted by the respondent was that the timeline concerning the onset of Mr Black’s incapacity, as opposed to his psychiatric condition, demonstrated that it was, on the balance of probabilities, Mr Black’s suspension from duty without pay that had caused his total incapacity. Mr Hart referred to this fact as “the elephant in the room.”

Dr Neale v Dr Khan

Post-traumatic stress disorder

Dr Neale advised that whilst Mr Black had been suffering from a post-traumatic stress disorder throughout much of his career, that condition had not translated into an incapacity for work.
Dr Neale’s reasoning for reaching that conclusion was compelling. She referred to Mr Black’s maintaining his self-care and his social and recreational activities. She noted that Mr Black’s relationships had not been affected, and made the observation that he had no difficulties with concentration, as he had received distinctions in his studies.
Dr Khan, on the other hand, stated that Mr Black’s self-care and personal hygiene had been impacted by his condition. Dr Khan however on examination stated that Mr Black “presented as a 26-year-old man who appeared his stated age. He was dressed in casual attire and had appropriate self-care.”[49] Dr Khan did not explain that apparent inconsistency and it would appear that he was relying on Mr Black’s self-reporting.
[49] ARD page 24.
Further, Dr Khan reported that there had been a two-year relationship breakup in early 2022 due to Mr Black’s “fragile mental state.” In his statement, Mr Black simply repeated, verbatim, Dr Khan’s comment. Dr Neale, on the other hand, explored in some detail Mr Black’s prior relationships. She said that Mr Black had a close relationship with his younger sister and brother, and that he maintained a close relationship with his father.[50] Dr Neale said further:[51]
“Mr Black said that he had been in two significant relationships in the past. He said he was with a girlfriend in high school from the ages of 15 to 19 and their relationship broke down when she did not agree with him joining the police force. He reports he was in a two-year relationship with a male colleague from work which ended a year and a half ago as a result of “differences in so many different ways…”
[50] Reply page 183.
[51] Reply page 184.
I infer that the relationship mentioned by Dr Khan (and confirmed by Mr Black) was the same relationship described by Dr Neale, as there is no other reference to a two-year relationship in the evidence, and both versions have the relationship ending in 2022.
Moreover, Dr Khan took a history that Mr Black’s functioning in concentration persistence and pace had been impaired because Mr Black had to withdraw from his studies in social science due to cognitive issues. This is in contrast to Dr Neale’s report, which recorded that Mr Black had returned to his studies, as indicated above. She also stated:[52]
“…[Mr Black] reports that last year he commenced a research degree and took an extended break from July to December of last year as he reported he lacked motivation to continue. He recommenced his work this year and reports he is due to complete the degree in August or September. Mr Black said that he is enjoying the course and his research thesis is focused on forensic images. He described finding it enjoyable and stimulating. He reports he has received distinctions in his essays and has been performing well.”
[52] Reply page 184.
I note that Dr Khan’s report postdated that of Dr Neale (19 July 2023 and 17 May 2023 respectively). Mr Brown laid considerable emphasis on that difference, submitting that as
Dr Khan’s report related to an assessment on 18 July 2023, I could accept that his opinion properly reflected Mr Black’s condition at the relevant time, and that any difference between the findings in Dr Khan’s report and in that of Dr Neale was accordingly explained.
Such a submission however does not explain why these inconsistencies, which were apparent at the time Mr Black made his statement, were not addressed. Dr Khan appears to have formed his opinion on Mr Black’s self-reporting, which appeared to have been either misunderstood, or somewhat casually given. In any event, the more comprehensive and detailed investigation by Dr Neale demonstrated that Dr Khan did not have an accurate history regarding Mr Black’s resumption of his studies, and that there was an inconsistency as to whether Mr Black’s relationship break up had anything to do with his fragile mental state.

Alcohol use disorder

It was also submitted by Mr Black that Dr Neale had not considered whether his secondary alcohol use disorder was of itself causing incapacity. Mr Brown explained the comments attributed to Mr Black by his GP on 10 February 2023 that he was “well and healthy in himself,” and on 27 February 2023 that he “doesn’t drink and is not overweight,” as relating to an earlier time that was outside the scope of the claim for weekly compensation, which commenced on 21 June 2023.
Mr Brown advanced the same explanation regarding the history taken by Dr Neale on
17 May 2023. Although Mr Brown contended that Mr Black had been in a “downward spiral” with “a level of binge drinking as had been described in the evidence “ which “could happen quite quickly,” this assertion had no support.
Dr Khan noted that Mr Black commenced drinking alcohol when he joined the respondent and that his alcohol use gradually escalated because of peer pressure. Dr Khan noted “escalating alcohol use” as a symptom of Mr Black’s condition on a number of occasions but related it to a “gradually increased” history of a consumption of 7-13 standard drinks daily. Just what period Dr Khan was referring to was not clear.
Mr Black simply repeated that history in his statement without giving any further detail.
Dr Saker noted on 6 May 2023 that Mr Black was “self medicating with alcohol and had twice weekly binges.” This history was repeated in Dr Saker’s report of 1 August 2023.
The treating psychologist Mr Benard in his report of 27 June 2023 noted that Mr Black drank about 3-4 times per week, and that on occasions his excessive consumption led to a hangover. He had at this time seen Mr Black on three occasions, the last being on
7 June 2023.
The evidence does not confirm Mr Brown’s submission that Mr Black was in a downward spiral since the report of Dr Neale – or indeed since the reports of Dr Saker or Mr Benard.
There is common ground that alcohol consumption was used by Mr Black throughout his career with the respondent – as it was commonly used within the Police Service as a means of coping with trauma. Again, Mr Black simply repeated Dr Khan’s report as to his increased consumption. His evidence that “over time” his consumption “gradually increased” is so vague that it only raises more questions: Over what period of time? What does the phrase “gradually increased" mean?
Again, the most thorough examination of this subject was by Dr Neale, who recorded that
Mr Black was consuming alcohol every three days, drinking three to four drinks of spirits at a time. In recent months he had tried to write himself off “a couple of times”. He would drink daily after experiencing trauma during his over his career, and then return to a three-day habit. This evidence was broadly consistent with that of Dr Saker and Mr Benard.
Again, there was no attempt to clarify these issues by Mr Black, who simply repeated the relevant parts of Dr Khan’s report. Whilst Mr Brown was correct in his submission that histories taken by medical professionals are admissible as evidence of the claimant, and that it is not unusual for a legal practitioner to make use of statements already made to medical professionals by incorporating them into a claimant’s statement, these assertions come nowhere near to providing an explanation for the preparation of Mr Black’s case. Mr Brown’s submission that I could rely on the evidence of Dr Khan and Mr Black’s adoption of that report (in large part verbatim) was a two-edged sword. The inconsistencies and contradictions to which I have referred were apparent when Mr Black’s statement was prepared, as much of
Dr Khan’s opinion was contrary to or inconsistent with the opinion of Dr Neale, to the extent that a further explanation from Mr Black was called for, not to mention a supplementary opinion from Dr Khan.

A separate injury?

Mr Hart argued that the incapacity claimed by Mr Black did not arise from his post-traumatic stress disorder, but rather from a separate injury that had been caused by the events of
22 January 2023, which he described as an exacerbation of the post-traumatic stress disorder. Such an argument that accordingly s 11A (and, presumably, s 14) of the 1987 Act would apply, must fail at the outset, as Mr Hart, as he acknowledged himself, had qualified evidence only from Dr Neale that could support such a submission. She explicitly found that any increase in Mr Black’s anxiety as a result of the criminal charges might exacerbate his post-traumatic stress disorder for a period. If that were the case then neither section would apply, as there was no expert evidence that the post-traumatic stress disorder had been wholly or predominantly caused by the actions of the respondent in the case of s 11A, or that, in the case of s 14, the injury had solely been caused by his misconduct.[53] To the contrary, the expert opinion was all to the contrary, Dr Neale’s qualification being that the injury had not wholly or predominantly been caused by the actions of the respondent. Further, had
[53] Hamad v Q Catering Ltd, supra.
[54] See Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 at [126].
Mr Black’s psychiatric condition in fact been exacerbated, then the respondent would probably still have been liable.[54]
I have described Dr Neale’s analysis regarding the question of capacity as compelling, and I found her opinions to be considered, well researched and clearly expressed. Mr Hart submitted that her opinion as to capacity was entirely irreconcilable with that of Dr Khan, and it followed that it would be extremely difficult to ascribe her opinion as having little weight.
To a point, Mr Hart was correct, and I prefer her evidence as to the reasons why Mr Black developed his post-traumatic stress disorder and alcohol use disorder, and the level of his symptoms. However, Dr Neale’s opinion was deficient in one important respect.

An ipse dixit

Dr Neale declined to give an opinion regarding the circumstances of the January 2023 events, saying:
“… *Please note Mr Black and I did not go into details of the event in January 2023 or the charges that he is facing as this is outside of the scope of my brief.”
The reasons for her taking that approach are self-evident, as Dr Neale was advising the respondent on criminal charges brought against Mr Black, and she no doubt considered therefore that the matter was sub judice. This has created a problem in assessing her evidence, as Dr Neale did advise firstly that in the absence of any additional traumas she did not anticipate that Mr Black’s condition was likely to deteriorate, and secondly that the recent disciplinary and legal difficulties had not contributed to Mr Black’s post-traumatic stress disorder. She said further that Mr Black’s condition had not “currently or in the past” contributed to a lack of capacity for work.
Dr Neale did not explain that latter opinion. She did not address the facts and circumstances upon which her conclusion was based. She has simply expressed a negative opinion as to his current incapacity.

The events of 22 January 2023

Whilst Mr Hart during submissions agreed that there was evidence from Dr Saker that supported a finding that there was an element of Mr Black’s post-traumatic stress disorder in the events of 22 January 2023, he argued that it was not clear how much detail Dr Saker had been given to reach that conclusion, and that in any event Mr Black had not made that attribution.
The latter point is certainly correct. Mr Black was at pains to distance himself from any discussion about the 22 January 2023 events, calling them “irrelevant”. However, I do not place any store in a person’s self-evaluation of his psychiatric condition, and Mr Black’s motives for seeking to distance himself from those events may very well have been for fear that he might somehow have prejudiced his workers compensation case by doing so.
Dr Saker said he had a “good understanding” of those events, and his description that they involved “irritability and anger” and a reaction by Mr Black to provocation “in an excessively aggressive way” confirms that indeed he did have a good understanding of the incident.
Dr Saker’s opinion that this conduct related to Mr Black’s pre-existing post-traumatic stress disorder and that the irritability and anger associated with Mr Black’s conduct was associated with that condition accords with the objective facts.
Dr Saker’s opinion is consistent with the record of Mr Black’s employment with the Police Service. I have referred to the Misconduct Incident History regarding Mr Black and note that, apart from the misconduct of 22 January 2023, there was no relevant record of any behaviour that was consistent with that which he exhibited on that day. There was an entry dated
14 July 2022, as indicated, but that allegation was dismissed as being “frivolous, vexatious, or not made in good faith.” I therefore accept that the conduct of Mr Black, egregious and violent as it appears to have been, was totally out of character.
Prior to this event, Mr Black appears to have been a well accepted member of the bicycle patrol at Penrith, who was regarded as “highly resilient” by one of his superiors, and whose record in the face of the multiple horrific events he had to respond to, which are repeated at various places in the evidence, raises an inference that he was indeed an exemplary member of the police force. That he was able to cope with the numerous traumatic exposures he was subjected to demonstrates that he took some pride in the performance of his duties. His statement in both the questionnaire and to Dr Khan that he was worried that his gun would be taken from him, and that he would be assigned nonoperational duties, indicates also that he found some satisfaction in the performance of his duties. Further, his state of absolute panic described by Sergeant Russell on 14 February 2023 when Mr Black’s mobile phone was seized because of his predicament also gives some weight to the importance Mr Black prized his appointment as a serving police officer.

It also is relevant that Mr Black, as at 22 January 2023, was an experienced police officer whom it may be accepted was well aware of the limits to his conduct as a police officer. Accordingly, the fact that Mr Black committed these alleged offences in the presence of two ambulance officers and in clear view of a CCTV camera supports the opinion of Dr Saker that Mr Black’s actions were as a result of his pre-existing psychiatric condition. It would seem that the actions of the vulnerable female caused Mr Black to lose all control and act in an uncharacteristic and egregious way which have brought consequences for him that are ruinous to his career.
The opinion of the psychologist, Mr Benard is also not without relevance, given the support from Dr Saker. Mr Benard declined to answer the specific question as to whether there was any correlation between the traumas experienced and that which led to Mr Black’s being criminally charged (having not been advised of the charges until after the insurer had withdrawn approval for further treatment). However, he did state, as indicated, that clinically “I have seen over the years countless emergency service personnel who have developed uncharacteristic behavioural disturbances including assaults in the context of deteriorating work related mental health including PTSD and Depression.” Mr Black’s uncharacteristic conduct is accordingly consistent with a person suffering a condition such as his.
There is also some support from Dr Khan, whose opinion on this aspect of his advice has some limited probative value. Dr Khan demurred to the suggestion that Mr Black’s injury was wholly or predominantly caused by the actions of the respondent following the gross misconduct of 22 January 2023. Dr Khan explained that although the suspension led to
Mr Black’s ceasing work, “it is evident that his psychiatric/psychological injury first emerged around 2018…”
I infer from Dr Khan’s answer that he regarded the events of 22 January 2023 as a further traumatic event in the protracted exposure Mr Black experienced over the course of his employment to such events.

Inconsistent histories to the GP

Mr Hart’s criticism of Mr Black’s selective history given to Dr Sharma, seen in isolation, had some force. However, the more probable explanation for Mr Black’s initial reticence to his GPs was that when he initially consulted the practice, he was still a serving officer, albeit under investigation.
His recorded concern on 7 February 2023 was as to the effect of the bodily fluids from the vulnerable female. At that stage he had been advised on 6 February that he was subject to an Interim Risk Management direction. On the second visit he obtained the results of the tests, and said he was “well and healthy in himself.”
This statement was consistent with Dr Neale’s opinion – indeed it is not challenged – that although Mr Black was suffering his post-traumatic stress disorder from as early as 2018, did not usually incapacitate him. He was awaiting the outcome of an internal review and probably was well and healthy in himself. I note he had been subject to another review in July 2022 which had exonerated him.
Similarly when he was suspended with pay on 22 February 2023 his comment that he did not drink and was not overweight was probably an expression of the way he viewed his drinking habits after so many years within the Police Service. Mr Black’s record showed that whilst he was still a serving officer, as the 21 P209s demonstrated, Mr Black would patch himself up and return to his duties. Mr Black’s record demonstrates that he was an effective and highly resilient police officer who may well have been looking forward to a long career. It was significant that Mr Black was also seeking to improve his academic record by his studies. It is unlikely that whilst he was a serving officer that he would have put on record any suggestion that he was suffering from a psychiatric condition.
The unanimous evidence of course was that he was suffering from such a condition, and had been since early on in his career.
Thus, when he was in effect relieved of duty and suspended without pay on 17 March 2023, the enormity of what he had done and its consequences for his career released him from any obligation to refrain from any report that might harm his future prospects in this employment, as the probability was that there was none. It is a probable explanation as to why he did not mention his psychiatric condition until then.

Conclusion

It follows also that Dr Neale’s advice that the stress of the current proceedings is a further element in the question of Mr Black’s capacity to earn, as it too is a consequence of
Mr Black’s post-traumatic stress disorder. I am satisfied that Mr Black has a total incapacity to earn over the period claimed. I note his academic abilities, and I assume that in the fullness of time Mr Black will be able to use both that and his previous record with the respondent to obtain full employment.
For the above reasons I do not accept Dr Neale’s opinion that Mr Black’s post -traumatic stress disorder does not cause him any incapacity. Her opinion was certainly correct prior to the events of 22 January 2023, but as I have said, I am satisfied that his conduct on that occasion was a manifestation of his condition. That conduct was so untenable that he is facing charges and the ruin of his career. I did not read Dr Neale’s report as denying that Mr Black is presently suffering any incapacity from the situation he currently finds himself – simply that he has no incapacity that arises from his psychiatric condition as she defined it. Dr Neale said:[55]
“This is because it is my opinion that Mr Black’s symptoms are currently stable. He maintains full capacity for work and is engaging appropriately in his activities of daily living, social and recreational activities, in his relationships and otherwise in his day-to-day life.”
[55] Reply page 91.
That opinion needs to be read in the light of her earlier comment:[56]
“….it is my opinion that had Mr Black not been suspended from work, he would likely be working at full capacity at this time.”
[56] Reply page 90.
Having found that Mr Black’s suspension from work has been caused by his post-traumatic stress disorder, Dr Neale’s advice falls away. She advised that Mr Black’s condition was not likely to deteriorate in the absence of any additional trauma. The events of 22 January 2023 and their aftermath were a significant trauma. Dr Neale also said that Mr Black’s recent disciplinary and legal difficulties had not contributed to Mr Black’s post-traumatic stress disorder. However, those difficulties are a direct result of his actions on 22 January 2023, which I am satisfied were a consequence of his injury.
As I indicated, Dr Neale’s advice that Mr Black’s condition had not currently or in the past contributed to a lack of capacity was a bare ipse dixit, and for the above reasons, I reject it.
I note that Mr Brown indicated the figures that were to be applied in terms of the PIAWE and
s 36 and s 37 of the 1987 Act. As 2012 Amendments do not apply, I assume that the figures need to be adjusted. Leave is granted for the parties to approach in that regard if no agreement can be reached.

SUMMARY

There is an award for the applicant for weekly payments of compensation on the basis that he has been totally incapacitated since 21 June 2023.
The parties have leave to approach if agreement cannot be reached as to the figures.
The respondent will pay the applicant’s s 60 expenses upon production of accounts, receipts and/ or HIC Notice of Charge.
The respondent is to pay the applicant’s costs as agreed or assessed. I certify the matter as complex and order an uplift of 30%, applicable to both parties.

[2023] NSWPIC 670

13 December 2023