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

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	English v State of New South Wales (NSW Police Force) [2022] NSWPIC 560
APPLICANT:	Scott English
RESPONDENT:	State of New South Wales – NSW Police Force
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	11 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for aggravation, acceleration, exacerbation or deterioration of psychological disease injury; respondent maintained that the applicant’s condition had not been made more grave or more serious by events occurring after his return to pre-injury duties; consideration of Federal Broom Co Pty Ltd v Semlitch, NSW Police Force v Gurnhill, Wilkes v Secretary, Department of Education (incorrectly named as Department of Education & Communities) and Kelly v Western Institute NSW TAFE Commission; parties agreed that if matter determined in favour of applicant respondent would adjust payments of weekly compensation accordingly; Held – the applicant sustained the aggravation, acceleration, exacerbation or deterioration of a disease injury on 22 April 2022; the respondent is to pay the applicant’s costs as agreed or assessed, including increase of 15% for complexity.
determinations made:	1. That the applicant sustained the aggravation, acceleration, exacerbation or deterioration of a disease injury on 22 April 2022. 2. That the respondent is to pay the applicant’s costs as agreed or assessed. Complexity increase 3. The costs of each party are increased by 15% as a result of the complexity of the matter. The matter involved the review of significant factual and medical material and the consideration of case law relating to “disease” injuries.

STATEMENT OF REASONS

BACKGROUND

The applicant, Scott English (Mr English), was employed by the respondent, State of New South Wales – NSW Police Force (NSW Police) as a police officer.
Mr English claims to have sustained a psychological injury as a result of his employment with the respondent between 15 May 1998 and 22 April 2022, with the deemed date of injury claimed to be 22 April 2022. He has an accepted claim for a psychological injury on
7 February 2019.

On 28 April 2022, the respondent’s workers compensation insurer, Employers Mutual Limited (EML), wrote to the applicant, thanking him for “letting us know about your injury”. EML had determined that the new claim was “an aggravation of your concurrent psychological claim #179658EML”.
EML advised Mr English that new workplace incidents do not necessarily create a new claim. As a result, his new claim was being listed as a notification only, and all time loss and treatment he required for his psychological aggravation injury would continue under the concurrent claim.
By email dated 13 May 2022, the applicant’s solicitors requested that EML review its decision that his recent psychological injury was an aggravation of his previous psychological injury. He sought that his recent injury be listed as a new injury.
On 27 May 2022, EML issued the applicant with a notice pursuant to ss 78 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed that the applicant’s injury arose out of or was received in the course of his employment; that employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration of his disease injury; that employment was a substantial contributing factor; and that he was entitled to weekly payments or medical or related treatment because he did not have total or partial incapacity for work as a result of an injury, and medical or related treatment was not reasonably necessary as a result of an injury.
The applicant lodged an Application to Resolve a Dispute (the Application) on 29 June 2022. He claimed to have sustained psychological injury during the course of his employment as a police officer with the respondent. The injury “arose from constant and repetitive exposure to violent, traumatic and stressful events. The injury occurred at multiple workplaces and locations where the applicant worked as a general duties police officer and a highway patrol officer between 15 May 1998 and 22 April 2022”. The injury was claimed to be the result of the aggravation, acceleration, exacerbation or deterioration of a disease, with the deemed date of injury of 22 April 2022.

The Application claimed weekly benefits compensation from 22 April 2022 ongoing.
The respondent lodged its Reply on 20 July 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant sustained an aggravation, acceleration, exacerbation or deterioration of a disease injury on 22 April 2022.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing on 13 September 2022 on the Microsoft Teams platform. Mr Hammond of counsel, instructed by Ms Arndell, appeared for the applicant, who was present with counsel. Mr Baran of counsel appeared for the respondent, instructed by Mr Khoshaba and Ms Kim. Ms Henderson and Mr Paradiso of EML also attended.
The parties advised that the applicant sought a finding that he sustained the aggravation, acceleration, exacerbation or deterioration of a disease injury on 22 April 2022. Should that finding be made, it would be unnecessary for me to make an award of weekly benefits, as the respondent would re-calculate the applicant’s entitlements and attend to the appropriate payments.
The applicant sought an increase in his costs, should an award of costs be made, on the basis that the Application was in the mid-range of complexity.
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 Commission and considered in making this determination:
(a)    the Application and attachments;
(b)    Reply and attachments;
(c)    Application to Admit Late Documents dated 21 July 2022 and attachment, filed by the applicant;
(d)    Application to Admit Late Documents dated 4 August 2022 and attachments, filed by the applicant, and
(e)    Application to Admit Late Documents dated 7 September 2022 and attachments, filed by the applicant.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Scott English

The applicant made a statement dated 28 February 2019, in respect of his claim for injury on 7 February 2019.
The statement referred to numerous incidents that occurred during the course of the applicant’s employment with the respondent, both on general duties and in the highway patrol.
The applicant attended a fatal motor vehicle accident, involving a number of young people, between 1999 and 2002. He remembered seeing a young female passenger upside down and shaking before she died. The incident had stayed with him and recurred.
In September 2002, he attended the death of a baby who had been dropped eight stories. He had to stay next to the baby for eight hours. He had never seen so much blood, and recalled its smell.
Whilst on highway patrol on 15 July 2005, he was involved in a motor vehicle accident (MVA) while a passenger in a police vehicle that was chasing a speeder. His chest hit the MDT (mobile data terminal), his left knee hit the dashboard, and his left shin broke the glove box in half. He thought he was dead. He climbed out and lay on the road. He was in shock. His vision was gone.
He went back to work at the start of August for only three shifts of four hours but had continued chest pain. He went back to work in November 2005.
In November 2005, he could not sleep after night shift. He was told to take two rum cans and two diazepam but took only one of each and had 13 hours sleep. He had a pre-existing back injury at the time of the accident.
In about April 2008, he went to Parkes. He would be driving to Forbes from Parkes to start a shift, when the sergeant would ring and say he needed to come to Parkes as soon as he got in. He would not say why. He would drive quickly to Parkes, and the sergeant would tell him what he was having for lunch. That started him getting anxiety. In the end, he would tell the sergeant off and walk out. However, he had reacted poorly to sergeants speaking sternly ever since.
He started at Coffs Harbour on general duties in April 2011. He had been diagnosed in Parkes in 2008 with reactive arthritis. It was quite bad, but he kept working. He was diagnosed with a heart condition, which was congenital, and in about March 2009 a cardiologist told him he would be dead in three years. He had surgery to replace a valve in November 2009.
Every three months he had to “reignite the claim to have a new EMG”. This caused some stress and anger and kept the memory of the MVA alive. He understood that when he hit the MDT it damaged the mitral valve.
He believed the anaesthetic he was given during surgery impacted his sleep and psychological well-being for about two years after. He believed he had never slept well since. He found night shift “knocked me around a lot” after that. He still had painful spots on his chest.
He found general duties at Coffs Harbour overwhelming, a high stress environment, and it was hard to unwind. There were staffing issues and a large amount of domestic violence calls, which are stressful. He was also struggling with night shift.
In May 2013, he arrested a woman, with four police and two “ambos”. She was tiny, but high on drugs and it was “the strongest wrestle I think I have been in”. She tried to punch him in the groin. He thinks she broke the ambo’s nose. This reaggravated his back and neck.
He moved to highway patrol at Grafton in August 2014. He used his six EAP (employee assistance program) phone calls to help him unwind from his time at Coffs Harbour. It took him ages to come back down from the hype there.
Soon after, he started having arguments with his doctors about taking aspirin as a blood thinner. He hated taking it because it was a constant reminder of his heart issue.
When he was at Coffs Harbour, he had a really bad problem with teeth grinding. His dentist “yesterday” noted he had been grinding again. It is caused by stress.
In late 2007, a drug affected bloke jumped in front of a tow truck. It took the top of his cap off and his brains were spread all over the road. After about two hours at the scene, he could smell the blood, which triggered memories of the baby.
He attended a double fatality on 15 February 2018. It was a mess. It was in a cutting, so he had to climb a bank to get to it. There was a plank to get off the bank. It kept moving so he did not trust it. He jumped and did something to his knees on landing. He has an accepted claim for his knees, which flare up every now and again.
He began to get road rage and anger. He had also been hypervigilant. His colleagues noticed it first. They and his sergeant said they knew he was having issues. He could not stand being lied to by offenders who did not want to work. He “ripped a bloke a new arsehole” when he said he [the applicant] had issues.
His nail biting had increased, and he had been grinding his teeth more. He had a constant fear of being in trouble. His physio had raised yellow flags about his “pain behaviour”, which she said were indicators it could be a psychological issue.
In mid-2018 they had a new highway patrol car. “Goodie” said “I am going to fart in your car”. He was on the RBT line and “Bart” was on the other side. He saw Goodie get into the driver’s seat. He had locked the door. He “lost his shit” and was yelling at Goodie and swearing. Bart later said a member of the public had witnessed this.
There was a confrontation and Goodie left in his car. He was shocked at what he had done, and thought he was “gone”. Bart checked on him later and said Goodie wanted an apology. He believed this was the first time he lost it at work.
In January [2019] he went to burger night. He woke with heartburn. He thought he was dying. He took five quick-eze and went to sleep. He went to work for a 6am shift, still with pain but not as bad. At about 9am it worsened. He rang his surgery and was told to have his heart checked at Grafton Hospital.
He rang his sergeant to tell him he was going to hospital. He said, “make sure you get a handful of tickets to prove your worth before you get there”. He was not in a good mindset and did not take that as a joke. He was very angry.
Sergeant French constantly remarked about the number of offences. He believed they push numbers and if you don’t get them, they make you feel like a failure. He had been told if you got three per shift, they leave you alone. If you were in an area without much traffic, you did not get tickets and he started to panic. Then Sergeant French would ring, and he felt like he was in trouble. Sergeant French could track tickets and the whereabouts of his vehicle.
“That day”, he had a raft of tests and “they” worried him that it could have been clotting of the lungs caused by sitting in the car all day. Eventually they said it was really bad reflux and to get magnesium. He went to Dr Gavin Nichols in Coffs Harbour.
He did not know Dr Nichols was a mental health specialist. Dr Nicholls asked about work. He said he hated it, hated being injured and the constant headaches, and had a gut full. He was trying to find other things to do to prepare himself, because as he got older, the risk of physical issues got higher. He had a diploma of screenwriting but no motivation. He was sick of the aches and pains and trying to self-educate to see what else he could do, because it was clear he was not going to get a redundancy. It was apparent his physical injuries were not going away, and it could become a concern that there is a high risk of injury with old age.
He was unaware that Dr Nichols made notes that he needed to seek other employment immediately.
A couple of weeks later, he saw Dr Ian Cram, his normal treating doctor, for certificates covering his knees and lower back. This involved a call with EML. Unbeknownst to him,
Dr Cram read out Dr Nichols’ note. Dr Cram stated, “I recommend he leave the profession for his mental health’s sake”. They said he was still right to work. He was unaware the doctor had placed that quote on one of the certificates.
Dr Cram referred him to Kim Malone, a psychologist. He saw her the same day.
He saw Sergeant French on the way home and showed him the paperwork. He did not know what to do, and asked him whether to still come in.
Everything was starting to make sense. He was really agitated and anxious. The post-traumatic stress disorder was hitting him hard. He thought the comment about finding alternate employment had essentially fired him. He and Sergeant French agreed he would present for his next shift the following Thursday. He had no sleep. He was worried, anxious, and felt sick. He got emotional at times. He was in a real bad place.
He noticed he had been hiding some really bad issues for some time. His mother told him he had been drinking more than he used to and was always angry. He thought they were right, but he did not notice. Highway patrol is good money.
Rowena Barrell (a LAM with whom he had good rapport) recommended he get a certificate for “psych”. She said he was not in the right headspace to work. He agreed and got an appointment for the following Monday with Dr Cram.
He got a WorkCover certificate. Dr Cram told him the certificates had to have short end dates. He also gave him a referral for a vocational assessment.
He had not been back to work. He did not know if he could walk through the door. Colleagues who were friends said they could see the weight off his shoulders. He was feeling a lot better since he had been off work.
He still had shoulder pain. In about October 2018, he reached over to the back seat to grab something from a bag and twisted his arm. He had sought chiropractic and massage treatment, but it still hurt. He had not made a claim yet. It would be claim number five and he had not got around to it yet. He also felt it was a bad look to have so many claims.
He dreaded court because he could not stand the way barristers treat cops. He got angry at offenders. He had realised how much his anger was coming out. He saw on the news that a B double had rammed a police car and felt that he would rip [the driver’s] face off in anger if he had arrested him.
He had to work and be busy all the time. Sitting at home, he felt he had to do chores all the time. However, at work he was de-motivated. The stress from work also killed his creativity.
He had suffered bad migraines regularly for the last two years. Two weeks after being off work, they ceased. He used to take bulk medication regularly for his pains. He had not had one for over two weeks and his pain had gone.
He confided in Sergeant French because he thought he was a mate. He recently discovered he took notes about everything, which had made him paranoid. He did not know who he could trust or who his mates were.
Mr English’s next statement is dated 12 May 2022.
The statement was made to provide background to his belief that his recent psychological injury is a “new injury”, and the date should be recorded as 22 April 2022. He does not believe it should be recorded as his last psychological injury date of 7 February 2019.
He took time off from NSW Police on 7 February 20119, upon medical advice.
On 5 August 2019, he entered a work trial at South Grafton Airport, to increase his work hours. He was working full hours by the end of September 2019.
He re-commenced employment with NSW Police on 6 November 2019 and worked for both NSW Police and South Grafton Airport until the end of February 2020, when he re-commenced working full-time with NSW Police.
On 17 June 2020, he attended an appointment with Dr Ashwinder, an independent psychiatrist, arranged by EML. Dr Ashwinder signed him off as fit for pre-injury duties on that day. He was signed off as fit for pre-injury duties by his general practitioner (GP) on
19 August 2020.
Since October 2020, he worked on pre-injury duties as a highway patrol officer in Grafton. He had appointments with Dr Doris and Kim Malone for preventative psychological treatment.
In November 2021, he started taking Zoloft and by Christmas 2021 was feeling better. He was happy to finalise his first injury claim during the first half of 2022, pending taking Zoloft long term. During January and February 2022, he got some of the highest tickets in the office and mobile RBT per shift.
The applicant then provided evidence about his “second psychological injury”.
On 19 February 2022, he was the front seat passenger, calling a pursuit in South Grafton. He witnessed the offending vehicle, a BMW X5, reach a speed of 155 km/h in a 50 km/h zone. The driver lost control on a left-hand bend and he self-terminated the pursuit.
Seconds later, the X5 collided heavily with an oncoming car, at that speed. He heard the impact and will never forget it. He thought “We have just killed someone and there goes my career”. He had thoughts about what they had just done and Coroners Court. He saw the X5 roll twice, hit a light pole two metres in the air and roll onto its side. He would call the scene horrific.
He recalled his hands shaking. He was trembling and it was evident in his voice on radio. People later commented on the shock in his voice. He and his partner wrestled with the highly intoxicated driver, and he saw the front seat passenger appeared to be deceased and trapped. Both the driver and passenger were covered in blood.

He crashed to the ground twice whilst wrestling the driver and hurt both knees and his right elbow. He got neck pains shortly after. He called for assistance from the public. He then assisted an off-duty nurse to pull the passenger from the vehicle. After 15 minutes, he found that no one had been killed. He recalled the damage had been done mentally.
A short time later, Acting Inspector Nick Wiles attended. He asked, “Are you OK?”. He later said words to the effect that “I asked if you were OK because you were walking around with a blank, dazed look on your face”. He responded with words to the effect “No, I’m not OK”. Acting Inspector Wiles responded with words to the effect that “I’ll arrange a transport to Grafton Police Station to detach from the scene. I’m not sure if it is being called a critical incident”.
At the station he was contacted by EAP. He went home and couldn’t sleep. He took two days off sick and used sick leave. He could not get the sounds of the collision or the image of the X5 rolling out of his mind. This had persisted in the months since.
On 27 February 2022, he was visited by Sergeant Mallam from Kempsey about an internal complaint. He was not given any warning or allowed a support person or legal advice. He was told it wasn’t needed, as he was a witness. The first line accused him of making a false record and another offence, indicating he had colluded with Senior Constable Collier.
He said words to the effect that “This complaint is a head hunt against Senior Constable Collier. The substance is bullshit. I’m under the firm belief that there’s a promotion in the wind from someone at Coffs Harbour and they have no legal course to be looking at charges that I had verified”.
He was shaking and in shock, almost in tears. He had to have Sergeant Mallam type the document. By the end of the interview, he was shattered and felt depressed. He googled the two offences, and they both attract two years in prison. He was worried he could end up in prison for something he did not do.
Senior Constable Collier was the target, and he was not allowed to discuss the matter with her. He was worried because he was directed to answer questions under the Police Act and could be charged if he refused. He realised that if she was going to be interviewed criminally, he feared he would be charged.
He stopped sleeping and spent most nights worried. The EAP rang a few times. He stopped participating in hobbies and avoided family events. He started drinking, heavily on occasion. His weight increased dramatically due to the stress.
He researched reasonable management action as part of his reasons why he was feeling bad and so worried. He came to the opinion this was not reasonable and Senior Constable Collier did nothing wrong. He merely accepted a charge she had amended. She was mentioned as the “off duty cop” that could have seen a suspended driver drive, but as there were no witnesses, she deleted the line.
Coffs Harbour took criminal action for pervert the course of justice, falsify permanent record and fail to prosecute, “amongst others”. He was so frustrated, angry, and disappointed. This has not changed.
On 1 March 2022, he prepaid his vet $570 to have his dog euthanised and cremated, due to his arthritis. He did this in case he ended up in custody and would have had to get his mum to take him in, and it would be easier on her if it was pre-arranged. He finally euthanised the dog on 20 April 2022. He was distant with [the dog] and believes he picked up on his stress.
On day shifts, when he was not allowed to work with another officer, he did nothing. He was scared he did not have a witness at all times. This made the feeling of getting into trouble worse for not getting quota of 20 stops and at least five tickets per shift. He felt like he failed. By this time, his neck, shoulders, and upper back were aching. He had a daylong headache that only subsided when he got home. He was angry and had bad road rage. He had a short fuse and started to steer clear and avoid confrontation, as he didn’t know what he would end up doing.
A week later, he attended an Aboriginal event where shots were fired into the crowd by a person with a sawn-off .22 in the carpark at the hotel. He saw people highly intoxicated and not moving. His initial thoughts were that they were dead. After a while he had to take a step back, as he felt his anger was going to become uncontrollable. There is only so much someone can take of being called a “white dog” and “white cunt”. Guns were drawn entering the crowd. Back up was minimal.
A few days after, he was calling another pursuit. He terminated it when the stolen MUX turned sharply and nearly hit a pole. It brought up feelings of the X5 pursuit. He didn’t sleep that night at all.
On 24 March 2022, Acting Inspector Langdon rang. After speaking to him for 10 minutes, he said words to the effect “You’re cooked. Your bucket is full and overflowing and the pipe that is feeling is full. I can’t believe how paranoid you are”. He agreed and told Acting Inspector Langdon he had a plan to get through Easter, as afterwards he was on leave and needed a break. He told him the head hunt that he was involved in with Senior Constable Collier had been the final straw. Acting Inspector Langdon told him he had nothing to worry about. He hinted at a charge number, and then he knew they were trying to charge her.
After this call, he knew he couldn’t trust or talk with anyone. He always turned to
Senior Constable Collier, and he couldn’t on this occasion. He fought to stay to support her. She was finally interviewed on 21 April 2022. He was just as stressed and worried as her, as he knew they had done nothing wrong, but internal complaints can be sustained without any recourse to fight them.
The sleepless worried nights continued. There was only so much Zoloft, breathing, writing, and trying to think positive he could do. He was praying for heart valve failure. He just didn’t care anymore. He fought to turn up at work as it at least got him out of the house and talking to a few colleagues. He dreaded when Sergeant French was on. He is a good friend but an authority figure, and he knew he would be in trouble for not getting “stats”.
He got through Easter and worked the afternoon shift. His colleagues said words to the effect “You look so tired”, or “You’re really snappy”. He was struggling. His jaw was aching and his TMJ (temporomandibular joint) was back from teeth grinding. He had not had this problem since working at Coffs Harbour in 2011, when he was given a splint and it stopped. After Senior Constable Collier had been interviewed, he worked that shift and got no vehicle stops.
On the morning of 22 April 2022, Acting Sergeant Brooks sent an email advising that he would be the supervisor for the next week. It was a little past 9am. He knew he couldn’t last any longer. He ended his shift, and after packing his bag, ran out, along with
Senior Constable Collier, and went home before Acting Sergeant Brooks arrived. He felt upset, but relieved. He felt he was going to get into trouble again for walking out.
On 28 April 2022, he received notice that he had three weeks to organise income protection, as his second psychological injury claim had been denied, and was deemed an extension of the claim in 2019. He was told he could not have two claims open and EML referred to a report Ms Kim Malone wrote in July 2020.
He asked EML if they had spoken to doctors or anyone in relation to the new claim and they said they hadn’t. They indicated that the word “aggravated” on the certificate was a swaying factor.
He didn’t sleep that night as he knew income protection wouldn’t be possible in the three weeks he had left. He knew he would lose his house, the one place he was safe and could hide from the world and be protected. He cried on and off for hours, shaking. He didn’t want to live any more, the second time in two months he had felt that way.
After commencing to sell items and contacting the bank to hold payments, he learnt he could use leave to retain base pay until June. He felt let down again, and disappointed that a couple of insurance company representatives could endeavour to destroy the life of someone who had given 25 years to NSW.
He did not want to speak to anyone at work. He did not trust EML anymore, considering he had jumped through every hoop they had thrown at him, including an unpaid work trial at an airport.
He completed an online DASS (Depression Anxiety Stress Scale) on 27 April 2022, before his second injury was declined, and his scores were 31 for depression (extremely severe range); 25 for anxiety (severe range); and 31 for stress (severe range).
He firmly believed this was a new claim based on new events. He had never experienced post-traumatic stress disorder or depression symptoms this extreme before. He had never had repeated thoughts about just lying down and dying before. He had never had these stress aches and pains, being so irritable and pushing people away. He believed his phone was being monitored and he was being watched. He had never had this level of paranoia.
This had all been caused by events since 19 February 2022, particularly the internal complaint. He was disappointed that he was drinking and “I just hate people now”. He knew he had done nothing wrong, but just could not stop that feeling.
He had trouble communicating with PAL reporting the claim and found he was an expert in “masking” emotions, as described by EAP. He could no longer undertake his screenwriting hobby. He could not play golf, due to his back and neck problems. He was unmotivated, had absolutely no concentration, and was heavily fatigued all the time.
The applicant’s second statement is dated 9 June 2022. He has commented on the s 78 notice issued by EML.
EML had referred to Dr Ahmed Eltaib having issued a certificate of capacity (COC) on
22 April 2022 that diagnosed post-traumatic stress disorder and generalised anxiety disorder (GAD), which was his previous diagnosis.
Dr Eltaib had said words to the effect “You are now suffering from depression as well as PTSD and anxiety”, and he noted this on the COC.
His 2019 diagnosis was extremely severe GAD and post-traumatic stress disorder. His psychologist, Ms Malone, had said at one point in 2019 words to the effect “You don’t have depression”. The Allied Health Recovery Request (AHRR) dated 25 May 2022 noted he now had major depressive disorder (MDD).
The s 78 notice states that Dr Eltaib had certified his injury was related to work due to “continued exposure to violent, traumatic and stressful events”.
He was able to work and function relatively well for 27 months between 6 November 2019 and 19 February 2022. It was not until he was exposed to the new and distinct violent, traumatic, and stressful events in the period between 19 February 2022 and 22 April 2022 that he felt unable to cope from a psychological perspective.
EML relied upon a report from Dr Alan Doris dated 26 October 2021. He suffered from chest pains due to gastro-oesophageal reflux disease (GERD) he has experienced since 2019. He had been hospitalised twice, in January 2019 and September 2021, due to GERD-related chest pains. He had had severe chest pains on three other occasions since 2019, when he did not attend hospital. The GERD was exacerbated when he was stressed. He took medication for it.
He was feeling better at around 2 February 2022, when Dr Doris reported. He was hoping in time to finalise his psychological injury claim. He was happy to consider Dr Doris’ advice that he undertake the post-traumatic stress disorder day program, as he believed it was a way to possibly enhance his psychological wellbeing. He thought it would be a good “final step” in his recovery process, should it be successful.
Despite going off work suffering post-traumatic stress disorder on 7 February 2019, he returned to work on 6 November 2019 and carried out his full highway patrol duties from October 2020 to 22 April 2022.
During the course of his highway patrol duties, he continued to be exposed to violent, traumatic and stressful events on a daily basis. The exposure seriously and significantly exacerbated his previous condition and made his symptoms much worse than at any time prior to 19 February 2022.
By the end of February 2022, when driving to work, he was getting severe head, neck and back aches that lasted all shift until the drive home. At the first mention of the complaint or the pursuits, these aches would worsen.
His symptoms were very different than at any time prior to 19 February 2022. They were more intense, and he experienced unwelcome flashbacks, reminders, sights, sounds and smells of events that occurred between 6 November 2019 and 22 April 2022, particularly those in the last two months before he went off work.
He now had symptoms of depression, including tearfulness, feelings of hopelessness, sadness, loss of motivation, and difficulty enjoying things he used to. He did not experience these types of depressive symptoms to the same severity prior to 19 February 2022.
He had been unable to return to work since 22 April 2022. Any mention of work, or calls from his superiors, resulted in his right hand shaking uncontrollably.
He was seeing Dr Eltaib between every one to three months on each claim. As he had multiple claims, they overlapped, and he was attending every couple of weeks. He saw
Ms Malone fortnightly, which was much more frequent than last year, when he saw her on average every six weeks. He saw Dr Doris on average monthly, depending on his workload. He was taking 50mg Zoloft every day, as requested by Dr Doris.

Medical evidence

Mindfirst Pty Limited

Although the documents are referred to as having been produced by Mindfirst Pty Limited, they appear to include GPs’ records and those of other providers, as well as parts of the factual investigation into the injury on 7 February 2019, which were provided to the doctors. They include reports to which I will refer below.
On 17 January 2019, Dr Nichols recorded that the applicant had attended Grafton Emergency Department with chest pain and been given a few days off work.
The applicant was a “very anxious man”, “blames poor health” and was “quite unhappy with his chosen profession”. He had “all sorts of injuries and WorkCover claims”. Dr Nichols thought he was picking up on doctors that were astute to the fact that injuries were not the cause of all his problems. He recommended the applicant leave his profession for his mental health’s sake.
Dr Cram recorded on 20 February 2019 that the applicant was seeing a psychologist once a week and having regular physio. Now that he was not at work, he had no pain. He had been “really really busy” in his life. He was excited about picking up a new car. He had completed a screenwriting qualification in 2018 and graduation was in April 2019.

Ms Kim Malone – clinical psychologist

On 25 February 2019, Ms Malone reported to Dr Cram.
Ms Malone recorded that the applicant reported full criteria for post-traumatic stress disorder and GAD, in the context of his duties as a highway patrol officer. On the DASS, his scores fell in the severe range for depression and extremely severe for anxiety and stress.
Ms Malone had had two sessions since the applicant’s initial assessment. She had provided a thorough psycho-education on post-traumatic stress disorder and associated difficulties, and training in mindfulness-based relaxation.
On 5 July 2019, Ms Malone reported to EML. She repeated her findings on initial assessment. The applicant had reported symptoms of intrusive images and thoughts of previous traumatic events, flashbacks, and distressing dreams, triggered by reminders, which led to angry outbursts.
The applicant stated he had increased alcohol intake to avoid thinking of things that had happened, avoided reminders, felt he was permanently broken, experienced heightened anger towards others, hypervigilance, exaggerated startle response, poor concentration, and anhedonia. He worried about “everything”, had difficulty stopping, was often restless, keyed up and on edge, had sore and tense muscles much of the time, was frequently irritable, and often had difficulty concentrating.
Ms Malone had administered DASS on initial assessment and on 3 April 2019. There had been some improvement in the applicant’s scores for all three categories.
Mr English had reported his post-traumatic stress disorder symptoms had persisted for longer than 12 months. As such, they were associated with poor prognosis, due to association with more severe impairment and chronicity. However, he had responded well to treatment. “Time will tell”, as he returned to work on a graded capacity, as to greater clarity in his prognosis.
While intrusive thoughts had reduced significantly, they were present to some degree in the morning, whilst taking aspirin, due to the applicant’s heart surgery and associated car accident.
Ms Malone saw treatment as continuing to build on previously introduced strategies and assisting Mr English to deepen his understanding of those situations that triggered traumatic responses and anxiety, and how to respond mindfully rather than reactively.
The applicant’s return to work was being coordinated by Ms Louise Carter. She had been helping him apply for alternative suitable duties on a graduated return to work timeframe.
Ms Malone supported this process. The applicant reported he could foresee returning to the police in a graded return by the end of the year, should his progress continue at its current rate.
Ms Malone reported on 3 July 2020 to the applicant’s injury management adviser.
The applicant had been attending fortnightly. He had a “setback” in his perceived stress about three weeks ago, due to some simultaneous stressors, including a new ergonomic chair that was set at a height that caused increased pain.
Nonetheless, apart from some increased fatigue and reduced motivation, the applicant had shown significant improvement in his psychological condition alone. He had reported a loss of his new-found confidence, as he was unsure if his fatigue would improve to enable a return to full pre-injury duties. This made it more difficult to set a date for such return. This would become clearer on receipt of the independent medical examiner report and a few further sessions to explore and resolve his recent setback.
On 25 May 2022, Ms Malone made an AHHR of State Insurance Regulatory Authority. She recorded the applicant’s diagnoses as post-traumatic stress disorder, GAD and MDD.
Ms Malone provided a report dated 29 August 2022.
After recording the history, Ms Malone reported that after his return to full duties the applicant continued therapy on an approximately four weekly basis. This was to ensure he did not relapse, and whilst he had stressors that impacted his anxiety and stress. He was advised in September 2021 he had calcium build up in his heart, which caused quite a degree of anxiety. However, this did not impact his social or occupational functioning to any clinically significant degree, hence he did not meet criteria for any DSM-5 diagnosis.
While the applicant’s DASS scores on 26 October 2021 fell in the 82.5^th, 96.5^th and 93^rd percentile, respectively, he was still able to function well.
The applicant reported that following a “chase”, where there was a horrific motor vehicle crash, he was traumatised by the scene, which he could never “unsee”. There was a second pursuit where there was a potential crash, so they terminated the chase. The night before this pursuit there had been a shooting at a funeral.
A few days after these pursuits and shooting, on 27 February 2022, the applicant was advised about an internal complaint. It had since been classified as “unsubstantiated”. It was a cumulation of the above events that impacted his psychological symptoms, and he then identified he could no longer work for NSW Police and submitted a claim.

When Ms Malone was required to complete a new AHRR on 25 May 2022, she again conducted a full SCID-5-CV (structured clinical interview for DSM-5). The applicant again reported full DSM-5 criteria for post-traumatic stress disorder and GAD, as well as MDD.
The applicant reported he felt depressed mood most of the day, nearly every day; anhedonia; reduced motivation; difficulty sleeping, relaxing and winding down; and became easily upset, angry and irritable. He also reported anxious mood, increased irritability and agitation, with angry outbursts. He was hypervigilant, looking for potential danger when there was no need, had severe fatigue and panic symptoms, including rapid heart rate, chest pains, shortness of breath “etc”, when reminded or “triggered” in his post-traumatic stress disorder.
The DASS was administered, and the applicant’s scores were in the 98.5^th percentile for both depression and stress, and in the 100^th percentile for anxiety.
Ms Malone believed the applicant’s current symptoms and diagnoses were an “exacerbation” and “acceleration” of his previous psychological injury. He had made a full recovery and returned to full pre-injury duties. As such, exacerbation and acceleration was a substantial contributing factor to his current incapacity to work.

Dr Alan Doris – consultant psychiatrist

Dr Doris reported to Dr Cram on 28 March 2019.
The applicant had seen a psychologist on one occasion in 2001, after an incident at work. He also had telephone contact with a psychologist several times in 2013, when he was working at Coffs Harbour and felt under excess stress. He had never previously seen a psychiatrist and never had medication for a mental health problem.
Mr English had a mitral valve repair in 2009. He had it regularly checked and took low dose aspirin every day. He attributed his valve problem to a MVA in the course of his work.
The applicant had been off work since 6 February 2019. He described a progressive build-up of stress-related difficulties, although he identified seeing a MVA on video during December 2018 as a key element. It was very reminiscent of the one in which he was involved in 2009, which he linked to his mitral valve problem. He often thought about the December 2018 incident, which brought back thoughts of his own accident. That led to strong feelings of resentment and anger about developing a valve problem in the course of his work.
The applicant then tended to think about other traumatic and unpleasant experiences he had had during the course of his work. He could experience other unpleasant intrusive memories when exposed to other stimuli. The re-experiencing of memories of other incidents led him to feel angry and resentful.
When the applicant was going to work, he initially felt very positive and enthusiastic, although as he approached work, he realised he did not want to go, and thought about bad things that happened in the past.
Over the past few weeks, the applicant described feeling generally improved. However, he described a general increase in startle reflex to non-specific stimuli. He worried excessively and felt fatigued much of the time.
The applicant got enjoyment from such things as mountain bike riding, driving his high performance car, making plans for his new house, or watching movies in his home theatre. He felt he could become more angry easily and people still noticed this. Exercise had been helpful, and he enjoyed being in nature, including a recent week-long camping trip. He was eating well, and his sleep was generally good, with only rarely unpleasant dreams or nightmares.
Dr Doris reported that the applicant described a number of anxiety based symptoms, consistent with a diagnosis of post-traumatic stress disorder. The exposure to a car accident in December 2018 appeared to have been the immediate precipitant of his difficulties, although it seemed to be associated in his mind with an accident in 2009, which then led him to think about other unpleasant situations.
The applicant was taking good care of his general health and keeping up non-work related interests. He was also keeping in contact with colleagues, friends, and family, which was very important. His psychological treatment with Ms Malone was going well. He was keen to return to work, although he estimated that would be in several months’ time. He was not keen to try pharmacology for his anxiety or trauma-related symptoms, and Dr Doris thought this was a reasonable choice.
On 3 July 2019, Dr Doris reported that the applicant described in general improving in recent weeks, and felt he was “not so bad”. He had returned to his usual workplace to complete an online test. He had felt rather anxious about both the test and going into his workplace, though pleased he had done this. He was there for approximately 1.5 hours and spent time catching up with colleagues and doing some other tasks.
The applicant described feeling more relaxed in recent weeks, and sleeping better, with no unpleasant dreams. He kept fit by walking every day, as well as cycling. He was seeing a physiotherapist, exercise physiologist, psychologist and occasionally his rehabilitation coordinator.
The applicant had been exploring other areas of work, particularly flying. He hoped to take approximately six months next year to gain a commercial helicopter pilot licence. His rehabilitation coordinator had been looking around for alternative work to assist in his rehabilitation.
Mr English continued to have some physical aches and pains, including some TMJ pain, associated with teeth clenching. Dr Doris thought it likely at least some of these were related to high levels of anxiety that appeared to have been present for many years. The applicant continued without psychotropic medication.
Dr Doris reported that the applicant showed good self-care. He engaged well and was talkative. His affect was bright and reactive, and his mood was objectively and subjectively euthymic. He was positive and hopeful for the future and there was no evidence of a current mood syndrome. His thought form was normal. There were no abnormal beliefs or perceptions. He was fully alert and orientated and appeared cognitively normal. He regarded a number of his physical and psychological symptoms as being secondary to his experience as a police officer over the years.
The applicant was thinking that a gradual return to work towards the end of the year and perhaps increasing to full duties around March would suit him. Dr Doris did not think he had any need for psychotropic medication, and his psychological and rehabilitation needs were being met by Ms Malone and his rehabilitation coordinator. Dr Doris therefore discharged him from his care.
On 4 July 2019, Dr Doris reported to EML.
Dr Doris opined that the applicant appeared to be in the early stages of recovery from post-traumatic stress disorder. He thought it likely that Mr English had had baseline high levels of anxiety for a number of years.
The applicant was likely to continue to improve in his mental health in the coming weeks.
Dr Doris warned that it was important to be aware that it was not uncommon for there to be a return of symptoms, or exacerbation of residual symptoms, in response to reminders of the original trauma that could occur during a re-introduction to work. Any return to work plan should anticipate this and work with the applicant to manage it if it occurred.
Dr Doris reported that the applicant had generalised increased levels of anxiety that increased when returning to the work situation. He had some physical symptoms that were likely at least in part to be physical manifestations of anxiety. A graduated return to work seemed appropriate.
Dr Doris next reported on 26 October 2021, to GP Dr Muhammad Ali.
The applicant had spent some time working at the airport, and successfully graduated back to his normal duties. He was on restricted duties until August 2020, with a return to full duties in November 2020. He was working full time on full duties and had spent some time earlier that year teaching at the Academy, which he enjoyed.
Over the last three months or so, the applicant had been having increasing difficulties with anxiety-related symptoms that were impacting his work and non-work life. Approximately a month ago, he was shocked to be told there was some calcification in his replaced heart valve, and he may need another replacement in five to eight years. He had continued on aspirin and was taking a lipid-lowering agent, medication for GORD and phentermine (Duromine) for weight control. He continued to have problems with his spine, which he was having assessed with imaging.
The applicant had had more problems with psychological and physiological indicators of anxiety. He had periods of chest pain and rapid breathing. On at least one occasion he had gone to hospital, with no organic pathology revealed. He felt his general level of anxiety was persistently high, although it increased in his work situation or in anticipation of a stressful situation. He was worried about attending an armed offenders course in mid-November and the possibility of giving evidence in court.
The applicant had had a variable sleep pattern, though this was affected by his shift pattern. He felt generally “exhausted” in recent weeks. His motivation was low, and he felt his concentration was diminished, with difficulty learning new material. He continued his interest in writing and cinema, maintaining good contact with a group of writers. He felt the increase in anxiety had reduced his ability to write creatively. He continued to meet monthly with
Ms Malone.
Dr Doris recorded that the applicant looked well. He showed good self-care and managed the interview without difficulty. He appeared a little tense and anxious and described feeling anxious subjectively. His mood was anxious, though there was no depressive syndrome currently. His thought form was normal. Its content was dominated by concerns about his anxiety and ability to sustain his employment. He was fully alert and orientated and appeared grossly cognitively normal. He recognised he had a chronic anxiety problem.
Dr Doris opined that the applicant’s anxiety appeared to have become worse in recent months. This may have been due to circumstances in the course of his work, though it could be an adverse effect of phentermine. He had suggested the applicant cease it.
The applicant was interested in trying medication to address his chronic anxiety. Dr Doris prescribed sertraline. The applicant was to continue his work with Ms Malone, and Dr Doris arranged to review him in a month.
Dr Doris next reported on 22 November 2021.
The applicant had phased out Duromine and started 25mg sertraline. He noticed some increase in anxiety after starting sertraline but in general appeared to have tolerated it quite well and was taking 50mg daily. He successfully completed the armed offenders course and was pleased some court appearances were cancelled.
Dr Doris recorded that the applicant looked well. His affect was bright and reactive. His mood was hopeful and positive. He continued to experience increased levels of anxiety. He was to continue 50mg sertraline daily, and Dr Doris would review him in January.
On 28 January 2022, Dr Doris reported that the applicant continued to experience significant anxiety symptoms, in addition to fatigue, headache and muscle tension. He was irritable at times and occasionally had “road rage”. He continued to work full time and full duties. He was concerned he may have to have a period of general duties in the coming months. He continued to have occasional intrusive recollections of previous trauma and to be very concerned about his heart.
The applicant continued to take sertraline 50mg daily. He felt it was helpful to a degree, with general reduction in anxiety, though he had gained weight, which concerned him. He continued to meet with Ms Malone approximately monthly.
Dr Doris recorded that the applicant showed good self-care and managed the interview well. His affect was bright and reactive, and his mood objectively and subjectively euthymic, with good future focus.
The applicant continued to have a range of anxiety symptoms that caused some impairment, though he was still able to work full time. Given his ongoing symptoms, Dr Doris thought it may be worthwhile considering the post-traumatic stress disorder program at Baringa Hospital. The applicant was aware of the program and some colleagues had reported positively on it. They agreed Dr Doris would refer him to be considered for the next program.
On 2 February 2022, Dr Doris responded to queries from EML about the program.
Dr Doris did not think the applicant “need[ed]” to participate in the program, though it was likely to be beneficial for his overall health. It was generally well-regarded and specifically tailored for first responders and veterans. The applicant had a diagnosis of post-traumatic stress disorder, secondary to his work.
Dr Doris opined that the applicant would benefit from the program, in that he would experience a reduction in the severity of his symptoms and increase his knowledge of his mental health and how to maximise it. Any improvement in symptoms was likely to lead to increased function, including vocationally, and reduce the likelihood of deterioration in the future.
EML advised Dr Doris on 2 February 2022 that the applicant had advised he did not wish to attend the program, as the timing was not right.
There is no report from Dr Doris dated 11 March 2022, but his consultation information of that date has been provided.
The applicant continued to struggle with high levels of anxiety. This led to fatigue, and he had spent much of his time off sleeping.
Three weeks ago, the applicant had been involved in a very traumatic incident when the vehicle he was pursuing overturned at high speed. Dr Doris has recorded a history of this incident and of the complaint against Mr English. The applicant was “understandably worried about this”.
The applicant had noticed he was more irritable and was not enjoying his normal activities. He appeared to have reached a point where he felt he should no longer continue in the police and was expecting to decide in the next few weeks.
The applicant continued to take 50mg sertraline daily. He was unsure how helpful it had been, though clearly at the moment there were considerable stressors. He continued to meet Ms Malone regularly.
Dr Doris recorded that the applicant showed good self-care. He was talkative as usual and gave a good history. He was objectively and subjectively anxious, though there was no evident significant depressive syndrome. His thought form was normal. There were no abnormal beliefs or perceptions. He had a good understanding of his mental health needs.
Dr Doris opined that the applicant’s chronic difficulties with anxiety and post-trauma phenomena appeared exacerbated at the moment following recent incidents. He felt he was able to manage at work but was increasingly of the view that continuing in the long term was not possible. He was also concerned about physical health problems and had recently had spinal imaging.
Dr Doris did not think it was worthwhile the applicant changing his medication or psychological treatment at the moment.
On 6 May 2022, Dr Doris reported to Dr Ali that the applicant finished work with the police on 22 April 2022. He was on sick leave and did not intend to return. He had met a lawyer to discuss the process and options from a legal and financial perspective.
The applicant felt his anxiety levels remained high. He was fatigued much of the time and had poor concentration. His sleep was poor, and he had some aches and pains. He was looking forward to camping for a week and meeting some associates involved in screenwriting in the coming months. He continued to take sertraline, which he thought was partially helpful, and regularly met Ms Malone.
The applicant’s mental state examination was similar to that recorded by Dr Doris in
March 2022. He denied a depressive syndrome, although he provided a document apparently prepared for his lawyer recently expressing depressive symptoms, among others. He clarified that this was how he was feeling at that time, though he did not feel severely depressed today. He continued to have positive plans for the future. His thought content was dominated by legal and financial processes and entitlements.
Dr Doris opined that the applicant continued to have considerable difficulties with anxiety symptoms. He did not think the applicant should change his treatment. They discussed the post-traumatic stress disorder program which would next run in July. The applicant felt it was not the right time, though he may reconsider.
Dr Doris reported to the applicant’s solicitors on 14 June 2022.
The applicant’s solicitors asked Dr Doris:
“In your opinion, and expressed on the balance of probabilities, did the exposure to violent, traumatic and stressful events between 6 November 2019 (the date Scott returned to work) and 22 April 2022 aggravate or accelerate or exacerbate Scott’s pre-existing psychiatric condition?”
Dr Doris referred to his notes of the consultation on 11 March 2022. He responded that “The short answer therefore is ‘yes’”. He confirmed that in his opinion, the aggravation, acceleration or exacerbation would likely have been a substantial contributing factor to the applicant’s current incapacity to work.

Dr Ahmed Eltaib – general practitioner

Dr Eltaib issued the applicant with a COC dated 2 June 2022. He certified that the applicant had post-traumatic stress disorder/bilateral TMJ dysfunction secondary to bruxism and GERD “6/02/2019 (179658EML)” and major depressive disorder, anxiety, stress and post-traumatic stress disorder “from 22/04/2022 (215011EML)”. The applicant was certified as having no capacity for work. The stated date of the injury was 6 February 2019.
Dr Eltaib issued similar COCs dated 7 July 2022 and 4 August 2022.

SUBMISSIONS

The parties’ submissions have been recorded and I will therefore summarise them only briefly.

Applicant

The applicant referred to the decision in NSW Police Force v Gurnhill [2014] NSWWCCPD 12 (Gurnhill). He submitted there is no dispute that he has post-traumatic stress disorder. In 2019, he had a period off work for this and was paid compensation.
The applicant submitted that the “classic test” from Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch) was applied in Gurnhill, referring to the four points raised in that matter, all of which he submitted are satisfied.
The applicant referred to his statements, submitting that he was cleared to return to work by a number of medical experts. There were then a number of events, including a quite dramatic pursuit, that he submitted were relevant to my consideration. His evidence is uncontested. The medical evidence is not disputed. The respondent does not rely on any medical evidence.
In reply to the respondent, the applicant submitted that the disease has been made more grave or serious, which is borne out by him becoming incapacitated on 22 April 2022. That is the material change. He submitted I should read Ms Malone’s evidence carefully. Both she and his treating psychiatrist have picked up on the aggravation causing incapacity for work, satisfying the Semlitch test.
The applicant submitted that I should look carefully at the events to which he was exposed, his inability to continue work, and the medical evidence, to establish a deemed date of injury.

Respondent

The respondent submitted that for the applicant to succeed, there must be a finding that the events to which he was exposed resulted in grave and more serious effects on him (Semlitch). This is well-known and the meanings are pellucidly clear.
The respondent referred to the applicant’s first statement, and submitted it revealed the enormity of the trauma that he suffered until his first compensation claim in 2019. He was extremely unwell. He was in an industry where he was constantly being exposed to trauma. This is nothing more than the ordinary progression of the condition he suffered.

The respondent submitted that Gurnhill upheld the arbitrator’s decision in resisting the contention by the insurer that there were several dates of injury, as opposed to one deemed date. The arbitrator’s remarks at paragraph [27] of his decision were not criticised on appeal. It submitted the situation was identical to that in Commissioner for Railways v Bain [1965] HCA 5; 112 CLR 246 (Bain). There was constant exposure to psychological irritants. The applicant in Gurnhill experienced “more than his fair share of traumatic events”, which became more frequent and confronting after his transfer to the Tactical Operations Unit.
The respondent submitted that arguing that separate events require separate deemed dates of injury defeats the purpose of the Act. AP v NSW Police Force [2013] NSWWCCPD 11 (AP), which involved a suicide, is an exception.
The respondent referred to Dr Doris’ evidence in October 2021 that the applicant’s anxiety had become worse in recent months, submitting this was well before any of the other events occurred. The applicant was suffering the normal deteriorating effects, caused by his day to day work as a police officer.
The respondent submitted that the applicant’s symptoms did not show anything new after the incident in February 2022. Dr Doris recorded on 11 March 2022 that he “continues to struggle with high levels of anxiety”. His difficulties were chronic and had been exacerbated. He felt able to manage but was of the view he could not continue long term.
The respondent submitted this was hardly an opinion that would lead to the conclusion that the applicant’s psychological condition was affected to such an extent that it was “grave” or “serious”. Applying Semlitch, his condition may have deteriorated, but not to the extent of the gravity and seriousness that the authorities demand.
The respondent submitted that Ms Malone’s report discloses that the applicant’s symptoms were the same as in the past. There was nothing new, and nothing that tended to elevate it to the extent in AP. Ms Malone did a very thorough review and concluded there had been an exacerbation or acceleration of his previous injury, based on his presentation and psychometric testing.
The respondent referred to the clinical records, submitting that there had been constant issues with mental health since 13 February 2019. It is clear that a diagnosis of post-traumatic stress disorder had been made. There is a pattern that the applicant was off work; went back to work; was seeing doctors; taking medication; having another episode; and claims of aggravation.
The respondent submitted that the applicant had not taken me in sufficient detail to the medical opinions and factual detail to allow me to make the finding sought. The respondent referred to Sedrak v Rooty Hill RSL Club Ltd [2014] NSWWCCPD 40, which dealt with multiple deemed dates of injury; and the very thorough discussion in Wilkes v Secretary, Department of Education (incorrectly named as Department of Education & Communities) [2017] NSWWCC 159 (Wilkes).
The respondent submitted I would have to be satisfied there was some personal injury, or aggravation or deterioration that could ground a finding of a significant, identifiable psychological change, different to what was occurring in the past.
The Presidential decision and the decision at first instance in Gurnhill have made it clear that what has occurred is a continuation of the applicant’s psychiatric illness, with the original deemed date, and no new one imposed. AP involved very distressing facts, as opposed to what the applicant observed, together with internal pressures he alleges he suffered.
The respondent submitted that the intent of the Act is to avoid multiple litigation in numerous cases, and to have one date of injury that insurance companies and the applicant can work on. The applicant has not been deprived of anything, only the opportunity to bring a brand new claim, with different quantification. There is not a state of affairs that demonstrates a material, grave and more serious change in his condition. He was already extremely unwell, and to his enormous credit he tried to get back to work, but in the end he simply decompensated.
The respondent submitted that the Application should be dismissed.

SUMMARY

Section 4 of the Workers Compensation Act 1987 (the 1987 Act) provides:
“‘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, and
…”
It is not in dispute that the applicant sustained a psychological injury while in the employ of the respondent. The date of that injury is deemed to be 7 February 2019. The sole issue to be determined is whether he sustained an aggravation, acceleration, exacerbation or deterioration of that disease injury on 22 April 2022. For convenience, I will use the term “aggravation” in these reasons.
Both parties have referred me to Gurnhill, in which there is a discussion of Semlitch.
In Semlitch, Windeyer J said:
“…Here the application was put on the basis that the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease. I turn therefore to the evidence as it relates to the following questions, formulated having regard to the terms used in the Act:
(a)Was the applicant suffering from a disease?
(b)If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c)If so, was her employment a contributing factor?
(d)If so, did a total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?” (At p 638)
Windeyer J went on to say in Semlitch (at p 639):
“[t]he question that each [aggravation; acceleration; exacerbation; deterioration] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects on the patient.”
Semlitch was applied by the Court of Appeal in Austin v Director General of Education (1994) 10 NSWCCR 373.
Deputy President Roche said in AP [at 323], after referring to the four questions posed by Windeyer J in Semlitch:
“There is an aggravation of a disease if it is made more grave or more serious in its effects upon the patient.”
Arbitrator Edwards discussed the case law relating to an “aggravation injury” in Wilkes. He noted that the four step test in Semlitch was applied by Roche DP in Downer EDI Works Pty Ltd v McLuckie [2014] NSWWCCPD 57 and in AP.
Arbitrator Edwards noted [at 176] that:
“[F]or “aggravation” to be found, it is not necessary for there to be an actual worsening in the disease itself but for there to be an increase in the symptoms and the restrictions resulting from the disease: Rural Press Limited v Hancock [2009] NSWWCCPD 160 at [67]; Cabramatta Motor Repairers (NSW) Pty Ltd v Raymond & Pegrin Pty Ltd [2006] NSWWCCPD 132; Mellor v Australian Postal Corp (2009) ALD 159; Semlitch at 639.” (Emphasis added).
Roche DP also referred to Semlitch in Kelly vWestern Institute NSW TAFE Commission [2010] NSWWCCPD 71 at [66], where he said:
“An aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms.”
In Gurnhill, Roche DP noted that the arbitrator, after referring to Semlitch and Bain, said at [27]:
“I find it inherently unlikely that a police officer, who, in the usual course of his employment, is exposed to a number of traumatic events over his career, suffers a primary psychological injury even if he has a significant reaction to one particular event. This is because the nature and conditions of his employment are identical to the passage referred to in Bain – the constant exposure to an irritant – but with a police officer it is the constant exposure to psychological irritants by exposure to traumatic events. Even before his transfer to the Tactical Operations Unit, [Mr Gurnhill] experienced more than his fair share of traumatic events. There can be no doubt on his evidence and that of Sergeant Garner and Sergeant McCormack that the traumatic events became more frequent [and] much more confronting after he joined the Tactical Operations Unit.”
The respondent has submitted that the arbitrator’s observations were not criticised on appeal. I do not see that that assists the respondent in this case. What the arbitrator said in Gurnhill was specific to the facts in that case. While it may be accepted that the nature of their work is likely to expose police officers to traumatic events, what I need to determine in this case is whether the applicant’s condition was made more grave or serious by events to which he was exposed in the course of his employment.
I do not accept the respondent’s submission that AP is an exception, and that arguing that separate events require separate deemed dates of injury defeats the purpose of the Act. AP did involve a suicide. However, that was not determinative of Roche DP’s decision.
Roche DP applied the principles of Semlitch and determined there were two deemed dates of injury. The events that he determined caused the appellant worker to suffer an aggravation of her injury, pursuant to s 4(b)(ii) of the 1987 Act, were interactions with her superior officer on her return to work after a period of leave.
In this case, I have considered the evidence of the applicant and his treating medical practitioners.
It is not in dispute that Mr English was exposed to traumatic events in the course of his employment over a long period leading up to him ceasing work in February 2019. However, by the end of September 2019, he was working full time in a work trial. He worked two jobs from November 2019 to February 2020, when he returned to full time work as a police officer.
The applicant has given evidence that he was “signed off” as fit for pre-injury duties by
Dr Ashwinder on 17 June 2020. He stated that this appointment was arranged by EML.
Dr Ashwinder’s report is not in evidence.
The applicant stated that he had worked his pre-injury duties as a highway patrol officer from October 2020. He continued to consult Dr Doris and Ms Malone, and to take medication. It is not inconsistent with his ability to perform his pre-injury duties that treatment continued. His evidence is that he was performing well and issued tickets at some of the highest rates in the office. As he has stated, he was able to work and function relatively well for 27 months.
The applicant was then involved in the pursuit on 19 February 2022, about which he has given evidence. I accept that this was a traumatic event. His evidence is that his demeanour after the accident was such that a superior officer asked him if he was OK.
While the applicant was still dealing with the effects of the pursuit and the accident that resulted, he was informed about an internal complaint, which he believed was targeting another officer, whom he regarded as a support, but in which he was also involved.
There were further traumatic events during this period, including shots being fired at an event, and another pursuit that almost ended in another accident. Another superior officer commented on how paranoid the applicant was. He “knew” he could not trust anyone and fought to stay long enough to support Senior Constable Collier. He finally ceased work on
22 April 2022.
The medical evidence in this matter comes from Dr Doris and Ms Malone, both of whom have treated the applicant since 2019.
The applicant was diagnosed with post-traumatic stress disorder in 2019. While Ms Malone opined in July 2019 that the persistence of symptoms was associated with a poor prognosis, she also reported that Mr English had responded well to treatment. That appears to be the case. The applicant himself foresaw a return to work by the end of 2019.
By July 2020, despite a setback, the applicant, according to Ms Malone, had shown significant improvement. She added a diagnosis of MDD in May 2022, after the applicant had ceased work for a second time.
Ms Malone reported in August 2022 that the applicant had continued therapy after his return to full duties, to ensure he did not relapse. Despite stressors and an elevated DASS in October 2021, he was still able to function well.
The applicant’s DASS in May 2022 was higher. Ms Malone opined that his then current symptoms and diagnoses were an exacerbation and acceleration of his previous injury. He had made a full recovery and returned to pre-injury duties, so that the exacerbation and acceleration was a substantial contributing factor to his incapacity for work.
Dr Doris reported in March 2019 that the applicant was engaging in his interests and keeping contact with colleagues, friends, and family. He was positive and hopeful for the future and was keen to return to work.
While Dr Doris opined in July 2019 that the applicant was in the early stages of recovery from post-traumatic stress disorder, he warned that it was not uncommon for there to be a return of symptoms or exacerbation of residual symptoms, in response to reminders of the original trauma. He nonetheless discharged Mr English from his care at that time, noting that his treatment with Ms Malone was going well.
By October 2021, the applicant had returned to Dr Doris. Dr Doris noted he had been having increasing difficulties with anxiety-related symptoms. The applicant recognised that he had a chronic anxiety problem. Dr Doris believed the applicant’s anxiety had worsened, which may have been due to circumstances at work, or the weight-loss medication he was taking. While he was concerned about an armed offenders course, Dr Doris reported on
22 November 2021 that he had successfully completed it.
Dr Doris thought the applicant may benefit from a post-traumatic stress disorder program, to reduce the likelihood of deterioration in the future. He nonetheless did not think the applicant “needed” the program, and the applicant decided not to attend.
Dr Doris opined on 11 March 2022 that the applicant’s chronic anxiety and post-traumatic phenomena appeared to have been exacerbated following the recent incidents, that is the pursuit and the complaint. He was still able to manage at work but was increasingly of the view that it would not be possible to continue in the long term.
Dr Doris has provided a report to the applicant’s solicitors, dated 14 June 2022. He has replied with an unequivocal “yes” to their question as to whether the applicant’s employment between 6 November 2019 and 22 April 2022 aggravated his condition and was a substantial contributing factor to his incapacity for work.
When the applicant’s evidence, and that of Ms Malone and Dr Doris is considered, it is clear that his disease has been made “more grave, more grievous or more serious”.
There was an increase in his symptoms, to the extent that it was apparent to those with whom he worked, and recorded by his treating practitioners, and in the restrictions resulting from the disease. He went from the position of being able to perform his pre-injury duties, apparently performing well, to being certified with no capacity for work. He had, for the first time, thoughts of lying down and dying.
The respondent does not rely on any medical evidence, and Ms Malone and Dr Doris are well-placed to provide an opinion as to whether the applicant has suffered an aggravation of a disease. I accept their evidence and that of the applicant.
I therefore determine that the applicant sustained an aggravation, acceleration, exacerbation or deterioration of a disease injury on 22 April 2022. As the parties have agreed that it if I were to make that determination, no award of weekly benefits was required, I make no award.
The applicant having succeeded in his claim, is entitled to an order for his costs. He sought an increase in his costs, submitting that the Application was in the mid-range of complexity.
The matter involved the review of significant factual and medical material and the consideration of case law relating to “disease” injuries. It is appropriate that I allow an increase of 15% in respect of the costs of each party.
The orders are as set out in the Certificate of Determination.

[2022] NSWPIC 560

11 October 2022