Mansfield v State of New South Wales (NSW Police Force)
[2022] NSWPIC 641
•17 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Mansfield v State of New South Wales (NSW Police Force) [2022] NSWPIC 641 |
| APPLICANT: | Daniel Mansfield |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| SENIOR Member: | Elizabeth Beilby |
| DATE OF DECISION: | 17 November 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Consideration of the whether psychiatric injury suffered as a result of the nature and conditions of employment or arising from a frank injury; Held – finding in favour of nature and conditions of employment; consideration of section 65A of the Workers Compensation Act 1987. |
| determinations made: | 1. The Application to Resolve a Dispute is remitted to the President to be referred to a Medical Assessor for whole person impairment arising out of the nature and conditions of employment with the respondent. 2. The Application to Resolve a Dispute, Reply and late documents dated 26 August 2022 are to be provided to the Medical Assessor. 3. The respondent is to pay the applicant’s costs as agreed or assessed. Such costs are certified as complex for both parties and it is determined that a 20% uplift is appropriate in the circumstances. |
STATEMENT OF REASONS
BACKGROUND
Mr Mansfield was employed as a police officer over some 14 years. He has provided a statement which outlines various events over many years which he submits were causative of his psychiatric injury.
Mr Mansfield was subject to a serious assault on 4 March 2020 in the course of his duties.
The respondent’s case is that the psychiatric injury has arisen predominantly or entirely from the assault on 4 March 2020, whereas the applicant’s case is that the psychiatric injury arose from the nature and conditions of employment.
Mr Mansfield entered into a s 66A agreement on 4 February 2022 with his former employer in respect of a 6% whole person impairment in relation to physical injury sustained as a result of the assault on 4 March 2020.
ISSUE FOR DETERMINATION
The parties agree that the following issue remain in dispute:
(a) is Mr Mansfield’s psychiatric injury characterised as one that arose from the nature and conditions of employment or as a result of the event on 4 March 2020.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply to the Application and attached documents, and
(c) late documents dated 26 August 2022.
Consideration of evidence
I will now discuss the evidence that has been filed in this matter.
Applicant’s statement
Mr Mansfield has signed a statement dated 24 March 2021.[1] Mr Mansfield was attested as a probationary constable on 1 September 2006 and was posted at the Wollongong Police Station.
[1] Application page 1.
Mr Mansfield outlines his exposure to traumatic incidents in his statement commencing at paragraph 17. This includes significant events which include attempted suicides, wrestling persons under arrest, exposure to blood, assaults, negotiating with armed persons, dealing with deceased infants and their parents, alleged bullying in the workplace and interviews with the Police Integrity Commission.
Mr Mansfield also outlines the assault that took place on 4 March 2020. It is observed that this was a serious assault which caused permanent psychical injury.
Dr Selwyn Smith
Dr Smith has prepared a report dated 19 July 2021.[2] The applicant was referred to Dr Smith by his general practitioner, Dr Nagaraj and was initially examined on 12 July 2021.
[2] Application page 15.
Whilst Dr Smith had the applicant’s statement, he also took a history about a background of exposure to significant distressing and traumatic events. He observed that the applicant had psychologically deteriorated to the point where he could no longer continue working and ceased work on 18 August 2020.
The history that Dr Smith understood was that the applicant had attended a significant number of deaths from various causes, including murders, suicides and fatal motor vehicle accidents. He had also been subject to physical altercations with mentally disturbed individuals and other violent offenders. Dr Smith diagnosed the applicant as meeting the diagnosis of a post-traumatic stress disorder.
Dr Smith took a history in relation to the incident on 4 March 2020 where the applicant was confronted by an aggressive individual who was mentally disturbed and was being escorted to Wollongong Hospital for psychiatric examination. Whilst there, a physical altercation that ensued and the applicant fell and struck his head on a metal chair and sustained a significant head laceration. He ultimately required the insertion of 10 staples to his head to close the wound and he experienced both physical and psychological symptomatology in the aftermath of the assault.
Several weeks after the assault the applicant returned to work and was placed on restricted duties but had difficulty reintegrating into work. On his return to work he continued to be exposed to significant traumatic incidents that caused him to further emotionally decompensate.
In the mental state examination conducted by Dr Smith he observed that the applicant reported dissociated flashback episodes related to the many (my emphasis) distressing and traumatic incidents that he attended during his work with the NSW Police.
Dr Smith opined that the applicant suffered from post-traumatic stress disorder which was chronic in duration together with a major depressive disorder also chronic in duration. His diagnosis was made based upon the exposure to significant distressing and traumatic incidents highlighted in the body of Dr Smith’s report and expanded upon within the applicant’s statement.
Dr Smith found a direct relationship between the psychiatric injury sustained by the applicant and his exposure to significant work incidents (as opposed to the singular assault).
Dr Alexey Sidorov
Dr Sidorov has prepared three reports.
Dr Sidorov’s first report is dated 13 December 2020.[3] The report was requested by the respondent’s insurer.
[3] Application page 54.
Due to COVID the assessment was conducted by audio-visual link which I observe to be a quite appropriate method of examination at that time.
Dr Sidorov’s examination appears to be focused on the event on 4 March 2020 when
Mr Mansfield was assaulted at the hospital and sustained a head injury.The applicant described that he felt down and depressed in the days and weeks following the assault and he felt vulnerable which was a strange experience for him.
Dr Sidorov understood that the applicant returned to work in May 2020 and had two weeks’ worth of light duties and then had to demonstrate that he was fit for normal duties. He passed that test and was then back to his normal duties however felt like a different person. He felt that his confidence was reduced and he was feeling much more anxious than usual.
When the applicant returned to his usual duties which necessarily required him to perform arrests of people that were sometimes violent and whose behaviour was disturbed, he was feeling anxious and scared. Indeed, the applicant started to feel physically sick and suffered from poor sleep. He was anxious and hypervigilant with other psychological symptomatology.
Dr Sidorov diagnosed the applicant as suffering from post-traumatic stress disorder based on the history of the assault.
Dr Sidorov prepared a second report dated 27 September 2021.[4] Dr Sidorov once again took a history in respect of the event on 4 March 2020 when the applicant was assaulted. He also took a history consistent with his previous report in relation to the applicant’s reported symptomatology following that assault. This included ruminating about the index event and avoided talking about violent events. There was also significant anxiety and hypervigilance in the first couple of weeks since coming off work.
[4] Application page 38.
What is evident from that report is Dr Sidorov then had the applicant’s statement outlining the exposures to significant events. He forms his diagnosis and opinion based on the history of the hospital assault when the applicant suffered a significant physical injury, and then experienced flashbacks regarding the assault and had recurrent distressing dreams relating to the traumatic event of the assault. He also avoided any reminder of the assault such as avoiding hospitals and developed other comorbid conditions with concentration and sleep difficulties.
Dr Sidorov opined that there was no evidence that the applicant suffered a psychiatric injury due to cumulative exposure to traumatic and distressing events or incidents during his service with the NSW Police Force although they may have made him more vulnerable to developing post-traumatic stress disorder into the future. It was his opinion that it was the index event on 4 March 2020 which was the main substantial contributing factor to the development of the post-traumatic stress disorder as the applicant had developed symptoms of the disorder after the assault and there had been no other significant traumatic events to otherwise account for the symptoms.
Dr Sidorov has prepared a third report dated 25 October 2021.[5] Dr Sidorov had then been provided with the opinion of Dr Selwyn Smith as contained in his report dated 19 July 2021. The report however is confined to a discussion about whole person impairment and impairment in the various psychiatric impairment rating scale (PIRS) categories.
[5] Application page 34.
Dr Greg Wilkins
Dr Greg Wilkins is a treating psychiatrist who has had three tele-health consultations with the applicant commencing on 16 November 2020. He has prepared an extensive report dated
5 May 2022.[6][6] Application page 1153.
Dr Wilkins outlines his diagnosis on the front page of his report being that of a work-related post-traumatic stress disorder. It is his opinion that the psychological injury has resulted from cumulative exposure to experiences during his time as an operational sworn officer of the NSW Police Force.
Dr Wilkins takes a thorough history of the events on 4 March 2020 including the physical assault at the hospital. Dr Wilkins also has a history of how the applicant felt when he returned to work which included feeling weak and vulnerable, he was also hypervigilant and anxious all the time leaving the applicant feeling tired.
Dr Wilkins also takes a history that the applicant still gets upset when he has to recount the incident and is constantly reminded of it because of the scar on his head.
Dr Wilkins also takes a history of other traumatic events which included events on
10 July 2012 and events on the Princes Highway between 2006 and 2009. What is quite important is that Dr Wilkins takes a history of how the applicant felt at the time of the incident, within the next 48 hours following the incidents and from the 48 hours to the present.Having read through the reports, I find Dr Wilkins opinion quite persuasive as to the history of ongoing problems following traumatic events other than the singular assault.
Dr Wilkins reported that the applicant described a 14-year history of exposure to multiple traumas of various types with no significant break from his job. Accumulation of the variety of different traumatic experiences appeared to sensitise the worker to new stresses and perpetuate chronic stress. The applicant had reported incidents of harassment and bullying while working in the Police Force and as a result he felt he was unable to show his emotional struggle. He felt he would not be fully understood when he put his concerns forward about his mental health.
Dr Wilkins diagnosed the applicant as suffering from post-traumatic stress disorder with a prodrome dating back to 2015 of mixed symptoms and anxiety and depression. The onset of those symptoms had been precipitated by the ongoing and mounting pressure concerning his work as a police officer.
Dr Wilkins addresses directly whether the claimant’s psychiatric injury resulted from the single incident on 4 March 2020 or cumulative exposure and it was his opinion that the injury resulted from cumulative exposure to trauma whilst employed with the Police Force. That is, the psychological injury was a result of cumulative exposure to extremes of human trauma and intimidation by other officers, which continued to impact on him at the time of the assessment.
Dr Wilkins provides a very clear and persuasive explanation as to how post-traumatic stress disorder develops and the general duties that the applicant performed really placed him in the path of a particular but uncertain type of PTE. This involved a devastating experience following the trauma and death of others, profound enduring lack of support and profound enduring impacts on his personal life and family. The applicant experienced the accumulation of distress, developing disablement, continuous flow of challenging confronting operational police work, overwhelming emotional impacts and a sense of failure.
Dr Wilkins explained that the applicant was able to achieve a level of competence in his police work where he remained engaged for 16 years however the traumatic exposure and organisational stress eventual wore him down.
General practitioners records
It is clear is that in the clinical notes from 10 February 2009 to late 2012 there was no reference to any psychological issues the applicant was enduring even though there is a significant level of consultation with general practitioners for other conditions, save for stress-related sleep deprivation and low energy.
Dr Nagaraj is a treating general practitioner the applicant has seen for a significant period of time. I will refer to the entries where relevant that have been provided in the Application.
On 21 August 2020 the applicant consulted with Dr Nagaraj and complained of feeling anxious all the time and even going to the workplace caused him stress. He had to arrest a lot of violent people since returning to work and has been dealing with aggression. He had also been to the hospital a few times, the same place where he was assaulted, which has brought memories back.
On 12 February 2021 the applicant saw Dr Nagaraj[7] and complained that he was still experiencing nightmares relating to work incidents. I observe that the word “plural” must refer to multiple events not just a singular one.
[7] Application page 353.
In a consultation dated 15 June 2021[8] the applicant observes that “he can see at night-time his heart rate going up with the use of a Fitbit device, the common theme reated [sic] to work incidents”. Once again, I observe that this is obviously relating to multiple incidents not just one.
[8] Application page 357.
Medical declaration form
There is a medical declaration form dated 25 July 2012.[9] It is clear that this is a form that was completed by or on behalf of the applicant at the time he was undergoing weapons application medical. What is clear and observed by the respondent in its submissions is that there was never any complaint in respect of any other medical illness or condition in 2012.
[9] Application page 100.
The respondent submitted that the applicant was presented with an option to tell the police anything he might have been suffering from in terms of his psychological health and makes no disclosure in respect of it.
There is a further Police Force health check which takes place in what appears to be 2017. The only problem the applicant reports is a personal history of the fractured left clavicle. Once again, the respondent submits this was another option for the applicant to seek assistance in relation to any psychological issues if they existed and this does not occur.
Clinical notes Mr Hamilton
Once again, the respondent submits that there is no history provided to Mr Hamilton about any work-related incidents or suffering trauma. It appears the focus of presentation relates to the assault of 4 March 2020.
After three consultations it appears to be Ross Hamilton’s opinion [10] that he was suffering from acute stress reaction following the attack on him at Wollongong Hospital.
[10] Application page 234.
CONCLUSION
It appears to me that there are two treating psychiatrists who accept the applicant is suffering from an injury arising from the nature and conditions of employment. It is difficult for me not to give greater weight, or to not accept the view of a treating psychiatrist as they are in the best position to understand the applicants condition having seen him over time.
I understand the respondent is concerned that there is not a long history in relation to the applicant reporting psychological injuries, in circumstances where they say he was in a position where if he was troubled by exposure to events then he would have reported these.
It is observed by the respondent it its submissions that what is relevant in the documents produced in the clinical notes (and by Mr Hamilton) is that there is little if any report of any other psychological experience and is all related to the index assault.
The respondent is critical of the opinion of Dr Wilkins on the basis that when you look at his treating notes, it is quite apparent over the three consultations in 2020 and 2021 that
Dr Wilkins does not record a history of any other traumatic events other than the alleged assault.It is only when Dr Wilkins is presented with a copy of the applicant’s statement prepared by his solicitors, that Dr Wilkins makes any comment or has any knowledge of these previous traumatic events and expresses any opinion about their impact on him.
The general submission made by the respondent was if the applicant was genuinely and seriously troubled by these other psychological exposures and psychological symptoms, one would have reasonably expected him to report them and they would be seen in the clinical notes.
Post-traumatic stress disorder by its nature is a disease that creeps up on the victim and it is quite common, and it is my observation in cases such as this, that post-traumatic stress disorder often needs one event to get over the edge and for treatment to be required. That is what is described Dr Wilkins as the prodrome of the disorder.
There is no doubt the assault on 4 March 2020 was of significance, however I accept the beginning of the prodrome in relation to the illness started to occur in 2015-2016. It is evident in the notes the applicant was having difficulty sleeping and was also experiencing stress over time.
No criticism ought be made of a police officer who does not feel comfortable in reporting their symptomatology, this is a human response to the onset of a psychiatric illness.
I therefore persuaded that the applicant’s psychological condition arises from the nature and conditions of employment.
As a result of my finding the matter should go to a Medical Assessor for assessment of a psychological condition based on the nature and conditions of employment.
IMPACT OF THE PREVIOUS SETTLEMENT
As previously outlined, the applicant has already received compensation in respect of a physical injury arising out of the effects of the incident on 4 March 2020.
Section 65A of the Workplace Injury Management and Workers Compensation Act 1998 provides:
“65A SPECIAL PROVISIONS FOR PSYCHOLOGICAL AND PSYCHIATRIC INJURY
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note : If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply--
(a)the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b)the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c)the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note : If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5) In this section—
‘primary psychological injury’ means a psychological injury that is not a secondary psychological injury.
‘psychological injury’ includes psychiatric injury.
‘secondary psychological injury’ means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
The effect of the legislation is the applicant is limited to one sum amount where both physical and psychiatric injuries arise from the same incident.
The parties put on extensive written submissions in relation to the effect of the previous payment.
The respondent’s submissions refer to s 65A and the apparent legislative intent to place definite restrictions on a worker’s capacity to recover lump sum compensation for psychological injuries in circumstances where either it arises from a physical injury (s 65A(1)) or where there is less than 15% whole person impairment. Crucially, where a physical injury and a primary psychological injury arise out of the same incident, permanent impairment arising from each injury is to be assessed separately and only the more severe injury is compensable (s 65(4)).
In this case, it is clear that the events on 4 March 2020 have contributed to the applicant’s whole person impairment assessment which is to be undertaken by the Medical Assessor.
I agree with the submission made by the respondent in paragraph 9 of their submissions to the extent that there is nothing in the language of s65A(4) ( or s65A as a whole) that suggests that the ‘same incident’ has to be the sole cause of the primary psychological injury for s65A(4) to b engaged. It is true, that if that was the legislatures intention then it would be reasonably expected that it would have made an express provision for it.
The applicant’s submissions focus upon the finding of injury being nature and conditions and not of a frank incident. I am reminded however that the s65(4) refers to an “incident” and does not use the word “ injury”. If the section used the word ‘injury’ then the submission would have persuasive force.
In those circumstances, if there was no offset, it could be said that the applicant was getting compensated in respect of both a primary psychological injury and a physical injury arising out of a single frank incident. In those circumstances there should be an offset for the physical injury arising out of the single frank incident.
COSTS
An application was made in respect of costs at the hearing of this matter. It was determined that 20% uplift for complexity was appropriate for both parties.
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