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

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Meers v State of New South Wales (NSW Police Force) [2023] NSWPIC 298
APPLICANT:	Robert Meers
RESPONDENT:	State of New South Wales (NSW Police Force)
Member:	Diana Benk
DATE OF DECISION:	23 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments by a worker with an accepted psychiatric injury; dispute as to whether applicant’s injury was wholly or predominantly caused by his transfer, and, if so, whether the respondent’s actions with respect to transfer were reasonable within section 11A(1); Held – in all the circumstances employer’s conduct was reasonable and injury was caused predominantly due to transfer; award for the respondent.
determinations made:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Mr Meers (the applicant) was attested as a police officer and has worked for the respondent (NSW Police Force) since 16 December 2011. Between 16 December 2011 and 2017 he was stationed at the Tuggerah Lakes Local Area Command engaged in general duties at both the Toukely, The Entrance and Wyong Police Stations. The records show the applicant was a probationary constable between 16 December 2011 to 1 May 2013, a constable between 2 May 2013 to 1 May 2017 and promoted to senior constable on 2 May 2017.
In 2017, the applicant was transferred to the Protections Operations Unit where he worked until 2022.
Whilst undertaking duties in the Protections Operations Unit, the applicant sustained an injury to his left knee on 17 January 2018 ultimately necessitating surgical intervention by way of arthroscopy, chondroplasty, medial meniscal repair and high tibial osteotomy with internal fixation.[1] After a period of rehabilitation, the applicant was certified fit for pre-injury duties by his general practitioner on 10 January 2020.
[1] Folio 10 of the applicant’s statement refers.
On 1 January 2021, the applicant sustained an injury to his right knee ultimately requiring surgical intervention on 14 June 2021 by way of arthroscopy, high tibial osteotomy, bone graft and meniscal repair. After a period of rehabilitation, the applicant was certified fit for his pre- injury duties by his general practitioner, Dr Cantlay on 20 February 2022.
On 21 June 2022, following a specialist squad medical assessment, the applicant was cleared for specialist squad duties with the respondent however he embarked on a period of annual leave until 4 July 2022.
In the interim, the applicant had been assessed by Dr New (orthopaedic surgeon) for the purposes of a whole person impairment (WPI) assessment relating to both lower limbs. A claim for compensation was made on the respondent.
On return from annual leave, the applicant was assigned office duties. Telephone enquiries as to why his duties were changed were met with the requirement that he attend a meeting on 5 July 2022.
The applicant alleges that at that meeting he was told he was to be placed on restricted duties, a response considered necessary on account of the medical findings contained in the report of Dr New, a situation that would continue pending review by the Police Medical Officer.
Following the meeting, the applicant claims to have suffered an anxiety attack and did not complete his shift.
On 11 August 2022, the applicant attended on the Police Medical Officer to assess his fitness. The Police Medical Officer determined him to be unfit to take on the demanding physical tasks associated with the role which included providing protection for the Prime Minister, Governor General, NSW Premier, visiting dignitaries, members of the Royal Family and other international guests where police protection was required.
On 15 August 2022, the applicant’s general practitioner, Dr Cantlay certified him as unfit between 11 August 2022 to 29 August 2022 with a diagnosis of anxiety and depression.
On the same day, the applicant reported his injury to the police assistance line and a claim for compensation was made (P902 claim form).
Provisional payments were accepted by the insurer and I understand that weekly compensation and treatment expenses were paid until 28 November 2022.
On 3 November 2022, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that employment was a substantial contributing factor, as the injury was wholly or predominantly caused by the reasonable action taken or proposed to be taken with respect to transfer. The insurer cited ss 4, 9A and 11A of the Workers Compensation Act 1987 (the Act).
On 13 February 2023, following an internal review, the insurer informed the applicant that it maintained its position, issuing a notice under s 287A of the 1998 Act.
By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission (the Commission) on 8 March 2023, the applicant claims weekly compensation from 28 November 2022 along with medical expenses pursuant to s 60 of the Act due to an injury sustained on 15 August 2022 with respect to psychological injury.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer – s 11A (1) of the Act.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing on 24 May 2023. Mr Hammond of counsel, instructed by Mr Brown appeared for the applicant, who was present. Mr Baran of counsel appeared for the respondent, instructed by Mr Kim. A representative from the insurer was present.
I was informed by counsel they were unable to reach a mutually satisfactory resolution of the dispute. The respondent maintained that its s 11A defence extinguished the applicant’s rights to compensation. I am satisfied that the parties had ample opportunity to reach a settlement 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 attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents received on 8 May 2023 (88 folios) and 16 May 2023 (645 folios).
There was no objection to the material referred to above at the arbitration hearing and there was no application to adduce further written or oral evidence.

SUBMISSIONS

Submissions by the respondent

The respondent submits that the meeting is the central event but there were also tangential events which flow from that meeting which must be looked at as a series of events which it submits ‘triggered’ the ‘whole or predominant’ cause of the psychological injury.
It was submitted that there is a ‘great deal of ink’ in relation to s 11A, a problematic section, but one which now is the subject of quite coherent and strong principles ‘beyond argument’.
The respondent submitted
“there is no issue dividing us that the s 11A defence is open and we don’t contest that the applicant has suffered a psychological injury, where we ‘cross paths’ is, that the respondent’s case, is that the psychological injury was wholly or predominantly caused by the relevant statutory action set out in s 11A”.
It was submitted that the notice of injury form, the P902 form (discussed further below) “fairly and squarely” places the meeting right at the heart of what led the applicant to give his employer notice of injury on 15 August 2022, that is, the trigger for the applicant notifying his employer of the psychological injury or aggravation of a psychological injury, was the meeting.
The respondent further submitted that it is an incontrovertible fact that the applicant has for many years had problems to both knees, requiring treatment and periods of incapacity and for which a claim of a 16% WPI claim was made.
As a result, his employer, (Command) was faced with a medical report, accompanying the WPI claim which notified of a serious knee injury and so considered it was compelled to respond for a number of reasons namely:
i)     the applicant works as a police officer for the Premier’s protective detail and is charged with the responsibility of providing protection to the Premier of NSW and other members of the Crown, axiomatically he must be physically fit;
ii)     to ensure that the work environment did not place the applicant at further risk of injury;
iii)    to determine what duties he could perform, and
iv)    whether he had the ability to perform such duties.
It was on receipt of the report, that the Command decided to act and convened a meeting which was well documented via formal minutes,[2] which address the medical report of Dr New, the Command’s concerns regarding fitness for the role and where ultimately the adjudication of fitness would be the opinion of the Police Medical Officer.
[2] Folio 54 of the Application.
It was further submitted the entire claim now comes about based on “years of trauma”, and given the length and breath of incidents claimed in the Application, the respondent is in no position to investigate every event, but concedes that police officers are exposed to trauma and it also concedes that the applicant sustained an injury in 2015 following a stabbing to his hand and was diagnosed with post-traumatic stress disorder.
Further, the chronology reveals the applicant’s actions show that he was resisting any change to his duties, despite notifying his employer of his impairment. The Command undertook a difficult task where it was faced with a report of an officer where it is recorded that there is a serious injury to both knees, a forecast of two knee reconstructions, and where those medical restrictions had to be assessed in context of his duties.
The respondent further submits the actions of the meeting and its ‘aftermath’ was reasonable. The meeting was convened in response to the applicant’s medical evidence disclosing incapacity and impairment. A support person was in attendance (despite the applicant maintaining such a person was not present) with no final decision being made on capacity and fitness for duties until assessment by the police medical officer was undertaken.
The respondent submitted that the applicant’s statement contained “flourish and much is irrelevant” and referred me to Watson v Foxman[3] in that the most reliable evidence was the contemporaneous material at the time, particularly, who said what to whom and why and that a genuine assessment of such contemporaneous statements supports a finding that the action taken by the respondent in relation to the meeting and transfer was reasonable.
[3] (1995) 49 NSWLR 315.
I was also referred to the well established case law concerning the definition of “wholly and predominantly”, the question of causation and what constitutes “reasonable action” (discussed below).
The respondent’s counsel submitted the evidence conclusively demonstrated the applicant’s psychological injury resulted from the acts of the employer “with respect to transfer”. It was further submitted that the acts were “reasonable” as there was a basis for the transfer of the applicant to non-operational front line due to his physical impairments which rendered him unfit to engage in front line policing operations. It was further submitted that the present matter represents the exact circumstances where the s 11A defence was intended to be available. The respondent bears the onus of proof and the evidence shows that the applicant was wholly or at least predominantly injured by the events relating to transfer.
The respondent accepts there were several incidents during the normal course of police duty, the majority prior to being transferred to the Special Operations Unit (more than four years ago), but that none of these incidents contribute to the current adjustment disorder. His reaction to transfer following review by the Police Medical Officer was the cause of his current diagnosis and incapacity.
The respondent further submitted that the discussion and process leading up to transfer was not poorly handled. A support person was available and the reasons and next steps were clearly articulated in the discussion which were the subject of formal minutes. A decision was not made entirely on the basis of the applicant’s medical evidence but rather after assessment by the Police Medical Officer.
It was further submitted the clinical notes confirm since the diagnosis of post-traumatic stress disorder in 2015 and its treatment ceasing also in 2015 that there was no treatment or impact documented arising from any psychological disorder or disturbance until 2022, (seven years later) when Dr Cantlay certified the applicant as being unfit for work, after the applicant was informed that he was no longer fit for his current duties and would be transferred.
The respondent submitted that Dr Cantlay’s response to the insurers questions dated 16 September 2022 are relevant, specially to the question “please confirm the work related events that have contributed or caused the psychological condition and if these events are the whole or predominate [sic] cause of the injury?”[4] Dr Cantlay responded “recently was informed by employer that they deem him unfit for his normal duties. He feels this is unjust and it has triggered symptoms per Q2 above.” In response to question (Q)2, Dr Cantlay reported symptoms of “anxiety and panic, low mood, broken sleep.”[5]
[4] Folio 366 of the Application to Admit Late Documents.
[5] Folio 371 of the Application to Admit Late Documents.
Overall, the respondent submitted that the applicant sustained a psychological injury arising from employment and that psychological injury had as its predominant cause, the reasonable actions taken with respect to transfer, demotion or provision of employment benefits. It follows “that it is a matter of common sense, that this was the whole or predominant cause and had this action not been taken, the applicant would have remained in his operational duties and such a claim would not have been made.”
The respondent submitted that it rejects the applicant’s evidence and contention that he was “somehow traumatized” in his work which “amazingly and coincidentally” happened to coincide with the very time that he was told that he was to be transferred. It was reinforced that the coincidence factor “is one of the most powerful factors against the applicant and one of the strongest factors in favour of the respondent”. Again, it was repeated, that there is no dispute that the applicant has been exposed to multiple traumas however, “he was not sick, he was only sick when it came to this action (transfer) being taken against him and that was the trigger”.

Submissions by the applicant

Mr Hammond indicated that there are two issues that I had to turn my mind to, that is were the actions of the respondent reasonable and further were such actions the whole or predominant cause of the applicant’s psychological injury?
With regards to the issue of whole or predominant cause, it was submitted that as the applicant has suffered from post-traumatic stress disorder, the defence fails. I was taken to page 1 of the applicant’s statement which provides an extensive list of significant stressful and traumatic events during his police service along with a claim for post-traumatic stress disorder arising out of a stabbing injury to the hand in 2015, a claim accepted by the respondent. It was submitted that the applicant “to his credit” returned to active police work and his transfer to the protections unit was “highly advantageous as “the applicant took himself off the truck and got away from exposure to trauma”. That is, the applicant found a niche where he could escape the daily exposures to trauma and he was faced with having that niche taken away from him by the action of the respondent arising out of the meeting.
Further, the respondent was aware that the applicant had injuries to the knees and was assessed and cleared fit for duties on 21 June 2022 following a specialist squad assessment. Three weeks later he was subject to a meeting. It was submitted that it is reasonable for an employer to assess the fitness of a worker to perform a set role with regards to the physical demands of the job, but given that a routine assessment had only been undertaken three weeks earlier, the meeting and subsequent actions were unreasonable and that the lodgment of WPI claim should not be a trigger for a further reassessment or assessment of fitness for duties.
Further, as for the meeting and the “aftermath” being the whole or predominant cause of the psychological injury, it was submitted “it does not stand to reason that a man who was able to undertake his general duties and has been able to overcome two knee injuries and surgeries, that this meeting, on its own , would cause such a ‘florid psychological reaction” without the previously diagnosed post-traumatic stress disorder and there was no evidence by the respondent that was contrary to the applicant’s statement evidence of various exposures to trauma.
Finally, Mr Hammond submitted he did not take issue with any of the authorities cited by the respondent but did refer me to Calman v Commissioner of Police 1999 HCA 60, specifically [38], which deals in large part on incapacity.
Mr Hammond also indicated that whilst a support person may have been documented in the papers before me, that that individual was not in fact a support person in the true meaning of the word.
Mr Hammond submitted that the actions of the respondent were not reasonable. A WPI assessment does not automatically translate to an incapacity especially where the applicant had successfully returned to such duties following post-surgical rehabilitation to both knees. Further, the applicant would not have reacted to the outcome of the meeting without the previous diagnosis of post-traumatic stress disorder, a claim which was accepted in 2015 by the respondent after the applicant was stabbed in the line of duty. It was also submitted that the manner in which the meeting was conducted was procedurally flawed, particularly with regards to the issue of a support person.

Respondent’s reply to the above submission

The respondent in reply submitted that the authority of Calman had no bearing to the controversy before me and was irrelevant to the issue to be decided, that is s 11A, (as this related to incapacity assessed under the hurt on duty scheme).
It will be necessary to return to these submissions in due course. First, it is necessary to set out the lay evidence of the respondent’s witnesses and that of the applicant.

Evidence of the respondent

Fiona Tattersall

Sergeant Tattersall’s statement dated 11 May 2023[6] confirms the applicant contacted her to query why he was placed on office duties after his leave. She confirms she was present at the meeting on 5 July 2022 in the capacity of a support person, at which time issues of liability and possibility of further injury were discussed. She records that Inspector Wonders spoke about a “reduced capacity claim” and that the applicant was to be placed on restricted duties pending the outcome of the Police Medical Officer “cleared him to be fit for full duty”. She also records the applicant left work early due to headache following the meeting.
[6] Folios 641 to 644 of the Application to Admit Late Documents.

Craig Wonders

Detective Chief Inspector Craig Wonders made a statement on 10 February 2023.[7] He states that he had previous limited contact with the applicant and that his role was to interact with the team leaders of each protection team. He only interacted with constables if they sought advice. He records he was approached by the Claims Support Unit and was advised the applicant had lodged a “civil injury claims and was successful in proceedings for injuries to both of his knees…. I was informed that Senior Constable Meers had an overall reduction in the condition and function of his knees totaling 16% WPI”.
[7] Folios 75-80 of the Application to Admit Late documents.

Paragraph 20 of his statement states:
“After being notified of this information I had an immediate responsibility to evaluate the welfare and safety of Senior Constable Meers continuing to work as an operational police officer in the field. I also had the immediate responsibility to evaluate if Senior Constable Meers was in a physical fit condition to provide close personal protection to the Premier of New South Wales. I was also concerned that Senior Constable Meers would not be in a physically fit condition to pass a minimum standard physical reaccreditation that is mandatory for officers performing duties within the Protection Operations Unit.”
Paragraph 21 continues:
“On 5 July 2022, I arrange [sic] a meeting with Senior Constable Meers in the Commanders Office. As the nature of my discussion related to a medical enquiry, I arranged for my Coordinator, Senior Sergeant Priest to record notes of the meeting. I also arranged for an independent welfare officer, Sergeant Tattersall to be present during the meeting in support of the officer.”
Paragraph 22 continues:
“I met with Senior Constable Meers at length about his ‘whole of person impairment (WPI) claim. Rob confirmed the claim and that he has ongoing pain and restricted use of his knees. Rob stated that he no longer runs for fun but could run if the job required such physical activity. Rob was offered support and welfare following the meeting.”
Paragraph 23 of the statement continues:
“…I advised Senior Constable Meers that I would refer him to the Police Medical Officer for medical assessment. I advised Senior Constable Meers that I was placing hm on restricted duties until I received clearance from the Police Medical Officer that he was fit for full operational duties.”
Paragraph 24 continues:
“On 11 August 2022, I received a written report from the Police Medical Officer [sic] Doctor Edward Teo.”
Paragraph 25 continues:
“The Police Medical Officer confirmed Senior Constable Meers was not medically fit for operational duties in the foreseeable future. I was advised of suitable duties the officer could perform in a restricted capacity.”
Paragraph 26 states:
“Senior Constable Meers was subsequently placed on a restricted officer work plan and was provided suitable administrative duties working in the Protection Operation Unit. The officer was also tasked with a project to review an area of close personal protection training. Senior Constable Meers worked under the Supervision of the office Supervisor and was assigned a welfare and support officer.”
Paragraph 27 concludes:
“No [sic] long after Senior Constable Meers commenced working in a restricted capacity, the officer reported off on sick report. To my knowledge, the officer has remained on long-term sick report.”

Minutes of meeting dated 5 July 2022

The minutes[8] confirms the events at the meeting on 5 July 2022. It is unnecessary to repeat them here, except to confirm that the meeting was chaired by Craig Wonders. Fiona Tattersall was present as was the applicant and Senior Sergeant Priest was a scribe. To the extent that they overlap, the minutes are consistent with the statements above.
[8] Folio 83 of the Application to Admit Late Documents.

Police Medical Officer – Dr Edward Teo

In a report dated 11 August 2022,[9] Dr Teo confirms assessment of the applicant in the presence of a physiotherapist. He reported:
[9] Folio 81.
“I have revisited the history of SCst Meers’ injuries of his bilateral knees with him, in addition to considering the relevant documentation and reports related to his injuries which detail the investigations and treatments he has had thus far. I note he has recently lodged a claim for a whole person impairment from the injuries sustained. I also note that his Command have reasonable concerns that this impairment may have a significant impact on his capacity on his ability to perform the inherent duties of close protection operative, which is a highly physically demanding role that is responsible for the protection of dignitaries.
Dr New (IME, Specialist Orthopedic Surgeon) has reported that the SCst Meers’ walks with an antalgic gait… can only lift light weights of 5-8kg… can walk approximately one kilometer… sit or stand for approximately one hour’ and continues to experience a level of ‘pain to be moderate’ when carrying out activities of daily living. Dr New further noted that SCst Meers has reached ‘maximal medical improvement’ and that the ‘natural history of his condition is that he will require two total knee replacements… and may require premature retirement… and at least change in assignment… to more administrative work’.
It is evident that SCst Meers continues to experience moderate chronic pain and functional loss from these injuries. I consider these to be of a significant impairment that may detrimentally compromise his capacity to perform the inherent duties of a close protection operative safely and competently. I also consider that the risk of re-injury, accelerating and exacerbating his underlying injuries to be moderate. It is therefore not unreasonable that risk mitigating strategies be implemented to ensure workplace safety, which may include reassigning SCst Meers to more suitable duties within the organization that are less physically demanding.
I nevertheless do acknowledge SCst Meers’ enthusiasm and determination to continue working as a close protection operative. I have counselled him that there are still meaningful and validating jobs within the organization that can be explored, and how to access the wellbeing support services. His mental state is stable with no high risk features of harm to self or others. He is otherwise systemically well.
Recommendation
SCst Meers is not medically fit for operational duties into the foreseeable future. He is fit for suitable restricted duties. He is subject to the following conditions and undertakings:
• Be assigned to station-based duties and no access to police firearms nor appointments.
• May drive an unmarked police vehicle to a ‘bronze’ standard (that is, no urgent light & siren duties).
• Be classified as ‘maximally medically improved’ and referred to Deployment & Transition Unit to formally consider a more suitable permanently restricted duties role within the organisation.
• Receive periodic welfare checks by a senior experienced officer. SCst Meers is obliged to notify Command if there is any change to his medical condition. Command may refer SCst Meers to be re-assessed by the PMO if any concerns or new information.”

Dr Judith Clarke – consultant psychiatrist

Dr Clarke reported to the respondent on 25 October 2022.[10] She reported
“It is my opinion that Mr Meers presents with a DSM-5 diagnosis of Adjustment Disorder with anxiety, and panic attacks, in partial remission. There is a past psychiatric episode in 2015 after an altercation with a mentally ill person resulting in thumb injury, but the actual diagnosis for that episode is unclear. Mr Meers reported that Post Traumatic Stress Disorder was diagnosed by his then-treating General Practitioner, however no medical evidence was available to clarify whether this was the final diagnosis nor what basis it was made upon. The description provided, of two to three months of distress characterised by prominent anxiety symptoms combined with nightmares and memories of previous trauma, and full function and symptomatic recovery achieved with brief psychological treatment focused on psychoeducation with some breathing strategies, is most consistent with an Adjustment Disorder with anxiety…
It is my opinion that whilst Mr Meers’ Adjustment Disorder has had multiple contributors, the predominant contributor appears to be the actions taken in relation to restricted duties in mid-2022. Whether or not these actions were retaliatory for the permanent impairment claim, as is perceived by Mr Meers, or reasonable actions, is a human resources matter….
It is my opinion that from a psychiatric perspective, Mr Meers has no current occupational incapacity and thus is fit for pre-injury duties….
Mr Meers’ prognosis for a rapid recovery over the next 4-6 weeks, having already achieved partial remission, is positive. He has previously achieved recovery with a brief psychological intervention, and is motivated for recovery, as well as having several mature coping strategies and strong family support. His strong sense of injustice in relation to being placed on restricted duties may persist despite recovery of the condition, particularly if it remains unaddressed and unresolved.”

Applicant’s evidence

[10] Folios 12 to 20 of the Reply.

P902

A P902 is the NSW Police Force Incident Reporting form.[11] In it, the applicant reports the date of incident as 11 August 2022 and that the injury was psychological resulting in no capacity for work from 11/8 to 29/8.
[11] Folio 29 of the Reply.
In response to the question on “‘how did the incident or near miss occur?” It was recorded (unedited):
“Approximately 4 weeks ago i was removed from full duties and placed on restricted duties In a meeting where i had no pre warning of what was occurring, I had a superintendent, inspector and senior sergeant in a room and i had no support. I was being intimated by these people while they were wrecking my career and i had nothing i could do about it. On the completion of that interview i left the superintendent’s office and went back to my desk and started having anxiety attack. Previously in 2015 on duty i was stabbed on duty and had PTSD from that. As a result of what has been happening in work place over the last few months and this meeting it felt like it was triggering the same response to what i had in 2015. I was unable to gain control of my body or mental wellness at that stage so i left the work place and went home sick. I contacted EAP for assistance on the way home and rang various police medical units to determine what had happened and why. I rang police union to ask for assistance in the matter. Later that day i suffered significant mental health issues. Over the course of the next 3 weeks i engaged with psychologists and had three sessions with them. I attempted to go back to the work place 4 times and every time i went back after a short period of time i started suffering strong both physical and mental issues that i could not control. This resulted in me having significant mental distress. I couldn't get back to work place without these recurring every time. I took some sick leave until Doctors appointment on 11th August. On the completion of that appointment at SPC i left there under stress and anxiety have difficulties doing day to day activities. It feels like it is bringing back all the bad symptoms form the 2015. The only way to stop it seems to be remove myself from the police and work activities and exercise so i can switch off. Over the last 3 to 4 weeks i have been have strong re-occurrence of nightmares. Some of these are associated with past jobs that were not very nice. My sleep has been greatly affected, I have a lot of trouble sleeping and when i wake i cant go back to sleep. I have had a constant headache for the last 3 weeks. In general constant feelings of anger and depression Just not feeling myself and having no control over it. Because of having PTSD in the past i recognize these symptoms and im trying my best to seek help and manage them but it doesn't seem to be helping.”

Applicant’s statement

In a statement[12] dated 14 February 2023, the applicant provides his work history and recounts 29 incidents exposing him to various stressors between December 2011 and 2017. These include exposure to corpses, witnessing drug overdoses and psychotic episodes, attending motor accidents in which there were fatalities, drownings, suicides, self-harm events, witnessing domestic violence and a number of violent arrests. The applicant was stabbed in the hand on 23 April 2015 by a mentally ill female resulting in physical injury to the right thumb and index finger resulting in a diagnosis of post-traumatic stress disorder, a claim accepted by the workers compensation insurer at the time.
[12] Folios 1 to 20 of the Application.
The statement confirms on transfer to the Protection Operations Unit on 17 September 2017, a psychological test and physical test was passed. It further confirms whilst working for this unit he sustained injury to the left and right knee as described in the background section of these Reasons.
To the extent that it overlaps, the balance of the Statement is consistent with what has already been recorded.

Clinical notes – Warnervale GP Superclinic – Dr Cantlay

The applicant has been consistently treated at this clinic and predominantly by Dr Cantlay. The full set of notes formed part of the evidence, extending over 640 pages.
The records confirm the applicant was a ‘new patient’ with first consultation on 10 February 2015.[13]
[13] Folio 5 of the Application to Admit Late Documents.
The stabbing incident is recorded on 23 April 2015 with referral to an orthopaedic specialist. The series of notes records good functional improvement. A consultation on 21 May 2015 confirms ‘anxiety’ with flashbacks and difficulty sleeping. A WorkCover Medical Certificate was issued. A case conference on 4 June 2015 confirmed positive progress with “the applicant having seen a psychologist twice and ‘feeling much better”.
An entry on 23 June 2015[14] confirms “back at work, keen to go back to full duties. Being seeing Clin psych. Going well. Couple more sessions. Agree sign back for pre-injury duties as of mane.”
[14] Folio 7 of the Application to Admit Late Documents.
Three further consultations are recorded in 2015 – none of which relate to psychological injury.
Clinical records in 2016 show the applicant presented to the practice on three occasions for non work related general health conditions.
Clinical records in 2017 show the applicant present to the practice on five occasions, with one complaint of migraine possibly due to night shift, but the balance of the consultations being unrelated to employment.
Clinical records in 2018 record nine consultations, with the vast majority related to the left knee workers compensation injury. No other workplace symptoms are recorded.
Clinical records in 2019 record 14 consultations most being due to work place injury to the knee. No other workplace injuries or symptoms are recorded.
Clinical records in 2020 record three consultations all related to workers compensation knee issues.
Clinical records in 2021 record 15 consultations predominantly related to right knee workers compensation issues. No other workplace injuries or symptoms are recorded.
Clinical notes in 2022 record two consultations on 20 January 2022 and 18 February 2022 both being related the workers compensation knee injuries. On 20 July 2022, the applicant consulted Dr Miclat who recorded the history of anxiety attack “possible due to PTSD, accumulate psychologicla [sic] trauma …when he tried to go back to work had some incident at work due to this… spoke to EAP for psychological support”.
The notes show the applicant consulted Dr Cantlay on 4 August 2022 in which it is recorded:
“Reason for visit: Advice and listening Anxiety Work problems Has struggled with going back to restricted duties. Felt sx of anxiety/panic overwhelming and had to leave. Has IME apmt 11/8/22 with police. Hopeful will result in being signed back to normal duties. Till then sign off as returning to his restricted duties role felt to be detrimental to MH”
A follow up consultation with Dr Cantlay on 15 August 2022 recorded:
“Has received bad news re his fitness for duty. They have told him he is permanently disabled and unfit for duty. Future now with the police is uncertain. He is understandably devastated. Seems to be no justification for the decision. Sx are anger, low mood, anxiety, broken sleep. Wishes to lodge wco claim.”
The next consultation with Dr Cantlay on 29 August 2022 records:
“No real change. He has decided in his own mind that future in police is looking unlikely. Still no letter from IME detailing findings. He has engaged a lawyer. Mood up and down. Seeing psychologist mane. Supportive chat. No dsh. Coming to terms with situation but still broken sleep, feeling of stress, anxiety, being let down.”

Dr Ashwinder Anand – consultant psychiatrist

Dr Anand[15] was qualified by the applicant’s solicitor and reported on 23 January 2023. He diagnosed post-traumatic stress disorder and confirms the history of exposure to traumatic events as recounted by the applicant in his statement but does not record the meeting on 5 July 2022 or the Police Medical Officers recommendation that the applicant remain on restricted duties. Dr Anand opined the applicant had nil capacity to return to pre-injury duties or duties with another employer.
[15] Folio 66 of the Application.

REASONS

The law relevant to this application is found in the Act.
Section 11A (1) of the Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

Authorities

I was referred to a number of authorities by the respondent and applicant. There are a number of authorities that provide guidance. These warrant some comment.
In Jackson v Work Directions Australia Pty Ltd t/as Work Directions Australia,[16] Walker CCJ considered the meaning of “wholly and predominantly” in s 11A(1)(b) the Act, which was in similar terms to s 11A (1) of the current version of the Act. He commented as follows:
“‘Wholly’ is self-explanatory. Psychiatric cases sometimes turn upon single traumatic events but more often they involve multiple stressors not all of which may be work related. If those stressors happen to fall into one of the categories as I have just found then the meaning of the word ‘predominantly’ will require interpretation.
The Macquarie Dictionary defines the verb ‘predominate’ as:
1. to be the stronger or leading element preponderate; prevail. 2. to have or exert controlling power. 3. to surpass others in authority or influence. 4. to be more noticeable or imposing than something else. 5. to dominate or prevail over.
The adverb ‘predominantly’ appears to me to be used in the sense that the s 11A(1)(b)
cause was stronger and prevailed over other causes.”
[16] (1998) 17 NSWCCR 70 (Jackson).
In the more recent Presidential decision of Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd,[17] Roche DP stated:
“The leading authority on causation in workers compensation claims is Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (‘Kooragang’) where it was observed that causation is a question of fact to be determined on the evidence in each case. That case concerned the question of whether the death of a worker had ‘resulted from’ the relevant work injury. The present matter concerns whether ‘the injury was wholly or predominantly caused by reasonable action’. Acting Deputy President Handley considered the phrase ‘predominantly caused’ in Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 and applied the dictionary meaning (at [24]) of ‘mainly or principally caused’. I agree with that definition and intend to apply it in the present matter.”[18]
[17] [2008] NSWWCCPD 96 (Temelkov).
[18] Temelkov, [79].
Whilst these interpretations are not dissimilar, I prefer the more recent interpretation of “mainly or principally caused”.
The respondent bears the onus of establishing the action taken was reasonable in accordance with the principles discussed in Pirie v Franklins Ltd[19] and Department of Education and Training v Sinclair.[20]
[19] [2001] NSWCC 167; 22 NSWCCR 346 (Pirie).
[20] [2004] NSWWCCPD 90 (Sinclair), [23].

The importance of medical evidence in establishing whether a psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by an employer was highlighted in Hamad v Q Catering Limited,[21] where Snell DP stated:
“… There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic….”[22]
[21] [2017] NSWWCCPD 6 (Hamad).
[22] Hamad, [88].
Further, the test is objective, based on the facts, and involves questions of fairness. In Irwin v Director-General of School Education,[23] Geraghty CCJ stated:
“The question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the objective of employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[23] NSWCC No 14068/97 (unreported, Geraghty J, 18 June 1998) (Irwin).
In Jeffery v Lintipal Pty Ltd[24], Basten JA confirmed that the test was objective and said:
“In my view, if, in the view of the Commission, the action taken by the employer in transferring an employee is not reasonable in all the circumstances, the employer cannot rely upon s 11A because it held a genuine belief, based on reasonable grounds, that its action was reasonable.”[25]
[24] [2008] NSWCA 138, (Jeffery).
[25] Jeffery, [50].
When considering what is reasonable, it is also important to have regard not only to the end result, but to the manner in which it is done. This was discussed in some detail by Truss CCJ in Ivanisevic v Laudet Pty Ltd,[26] by Roche DP in St George Leagues Club Ltd v Wretowska,[27] and by the Court of Appeal in Northern NSW Local Health Network v Heggie[28] and in Sinclair.
[26] (unreported, 24 November 1998).
[27] [2013] NSWWCCPD 64.
[28] [2013] NSWCA 255 (Heggie).
Whilst it is true that Heggie dealt with defence of discipline, the principles discussed in that matter offer important guidance regarding the concept of “reasonableness”.
In Heggie, Sackville AJA stated:
“The following propositions are consistent both with the statutory language and the authorities that have construed s11A (1) of the WC Act:
(i) A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation;
(ii) Nonetheless, for s11A (1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer;
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable;
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline;
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury, and
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances (emphasis added).”[29]
[29] Heggie, [59].
In Director General, Department of Education and Training v Pembroke,[30] Acting Deputy President Handley discussed ‘reasonableness’:
“Having determined that the answer to the first question is that the Department’s action was ‘with respect to ... discipline’, then the second question which must be considered is whether that action was ‘reasonable’. This is a question of fact involving an objective test, that of the reasonableness of the conduct: Minahan at paragraph 27. In determining whether the conduct was reasonable, all relevant factors must be taken into consideration including the rights of both employee and employer (Aristocrat Technologies Australia Pty Ltd v Rashov [2005] NSWWCCPD 66, at paragraph 82). If the employer can establish that its conduct was reasonable, then the employee cannot recover compensation.”
[30] [2006] NSWWCCPD 182.
Acting President Roche, as he then was, cited the relevant authorities referred to above and commented as follows:
“Determining whether action is reasonable under s 11A is not simply a ‘value judgment’, as the Arbitrator suggested. It requires an objective assessment of the employer’s actions and a weighing of the rights of employees against the objective of the employer. The Arbitrator did not undertake that process. The fact that Mr Stoll and Ms Clarke indicated (at the meeting on 8 July 2010) why Mr Shore was to be transferred did not properly address the fundamental issue of whether the Council’s conduct was objectively reasonable in all the circumstances.”
Returning now to s 11A I must determine whether the applicant’s psychological injury and resultant incapacity was wholly or predominantly caused by the “meeting and its aftermath”.
The medical evidence has been discussed above. I accept the applicant has been exposed to several stressors in his work as a police officer, a matter not disputed by the respondent. I also find that he made a claim and suffered incapacity following injury in 2015 when he was stabbed in the hand by a mental health patient when he was diagnosed with post-traumatic stress disorder.
I am obviously mindful of cases such as Nominal Defendant v Clancy [2007] NSWCA 349 and Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
which advise caution when relying on clinical records. However, it is difficult in this matter to avoid reliance on the records, in particular, of the applicant’s general practitioner. I have exercised the due caution required and examined the complete clinical notes extending over 600 folios.
Careful review of the clinical records as summarised above, does not disclose any further complaints of mental health issues or incapacity arising from mental health issues after the applicant had ceased his rehabilitation from the 2015 injury. The applicant continued to attend the same medical practice and the next record of psychological symptoms/injury only occurs after the meeting takes place with a certificate being issued thereafter (more than six years later). The evidence reveals and I find that there was no incapacity arising from the post-traumatic stress disorder from 2015 until 2022, the only incapacity arising from orthopaedic issues discussed above.
I have considered the medico-legal report of Dr Judith Clarke who acknowledges that the applicant has been exposed to stressors in his role as a police officer but disagreed with the previous diagnosis of a post-traumatic stress disorder, rather diagnosing an adjustment disorder. Her opinion is consistent with the contemporaneous clinical notes of Dr Cantlay in that there was no incapacity relating to psychological issues after rehabilitation in 2015 from the diagnosed post-traumatic stress disorder until the most recent ‘meeting’ and its aftermath as the respondent refers to it. Dr Clarke concludes that the predominant factor to the applicant’s current psychological injury was the meeting and the placement on restricted duties.
This is largely consistent with the applicant’s own reporting of the incident via the P902 form in which he stated to the question; “‘how did the incident or near miss occur?” he replied - “Approximately 4 weeks ago I was removed from full duties and placed on restricted duties…..”. This is also consistent with Dr Cantlay’s record on 15 August 2022 discussed in paragraph 82 above wherein it was recorded,
“Has received bad news re his fitness for duty. They have told him he is permanently disabled and unfit for duty. Future now with the police is uncertain. He is understandably devastated. Seems to be no justification for the decision. Sx are anger, low mood, anxiety, broken sleep. Wishes to lodge wco claim.”
I have also considered the medico legal report of Dr Anand who diagnoses post-traumatic stress disorder but is silent on the impact of the meeting or the transfer on restricted duties. The report is also silent on the lack of contemporaneous symptoms/incapacity arising from the various reported stressful incidents in the applicant’s statements.
Overall, I prefer the clinical notes of Dr Cantlay. These provide a complete series of medical attendances on the practice and reveal that following successful rehabilitation in 2015 for the then diagnosed post-traumatic stress disorder, the applicant did not make any complaint of psychological injury until the meeting and his ultimate transfer on restricted duties. I so find. I have not discounted the medico-legal evidence, however, prefer the contemporaneous clinical notes of Dr Cantlay. (The records do not establish that workers compensation claims were made or that there were periods of incapacity for the other documented psychological injury/incidents.)
I understood the applicant’s submission that the previously accepted claim for post-traumatic stress disorder underpins his current psychological vulnerability but there is no contemporaneous evidence to support that contention. Whilst there is no dispute that the general duties of a police officer by their nature expose an individual to stressors, in the absence of contemporaneous medical verification, I cannot conclude that the previous post-traumatic stress disorder symptoms have resulted in the current psychological vulnerability. The respondent would have me believe that the applicant was asymptomatic. There is no medical evidence upon which I can make such a finding. However, I do find that there was no ongoing complaint of post-traumatic stress disorder or other psychological diagnosis or incapacity and nor was there any incapacity from such psychological injury until the meeting and its aftermath. Relevant here is the case of Kooragang Cement Pty Ltd v Bates23[31], Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[31] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
Taking into account the above, and my assessment of the evidence, and a ‘commonsense’ and objective evaluation of the causal chain, (with reference to the contemporaneous medical records) find that the applicant’s psychological injury was predominantly, that is ‘mainly or principally caused’ by events leading up to and including his transfer.
Returning again to s 11 A of the Act, I now need to determine whether this injury was caused by reasonable action taken or proposed to be taken by the respondent with respect to transfer.
Firstly, whether there was action taken or proposed to be taken by the respondent with respect to a transfer, and secondly, whether such action was reasonable.
According to Irwin, whether an action is reasonable depends on an assessment of the rights of a worker against the objective of employment, having regard to questions of fairness. The manner in which the action is undertaken must also be considered.
According to Heggie, the rights of the employee should be considered, depending on the circumstances, and the fact that the employer acted in good faith, as seems to be the case in the present matter, is insufficient.
The applicant wishes to remain working in the Protective Operations Unit. He is committed to his work and feels, despite the medical evidence that he has much to contribute and is capable of undertaking the work and duties required of that role.
I find that he was given notice of the meeting and that the meeting had been appropriately/reasonably convened to discuss the medical report relating to his fitness and impairment. A support person was present. A formal scribe was present. The minutes show that the applicant was able to respond to the issues raised and further that the respondent did not unilaterally determine at that point that he would be transferred, rather indicated that the matter would be assessed independently by the Police Medical Officer (Dr Teo). The reasons for escalation of the question of fitness were explained and the entire meeting was convened in response to the applicant’s own medical evidence. The minutes show that the applicant was informed of next steps and the reasons for those next steps. To repeat, at the time of the meeting, no firm decision had been made in relation to transfer. I find that this process was reasonable and was entirely in response to the applicant’s own claims of incapacity. The applicant was advised of the reasons for the action of the respondent and next steps. There is no doubt that the meeting would have been daunting and overwhelming for the applicant, however I find that it was executed reasonably, in that it was recorded, the applicant was given an opportunity to respond to the issues troubling the Command and was to undergo a further assessment.
The transfer was prompted by the medical findings of Dr Teo, which are in the main consistent with Dr New. Overall, I agree with the respondent that the chronology of events demonstrates that in the absence of a medical opinion by Dr New, the applicant would no doubt have continued to work in his role as the respondent was unaware of the full extent of his condition and impairment. In the ordinary course, as I understand it, there are routine and regular medical reviews conducted to verify fitness by the respondent, which may have ultimately and belatedly identified capacity and restriction, but in these circumstances, such an assessment was precipitated or brought forward by Dr New putting the respondent on notice of the extent of pathology, injury, restriction and impairment. On receiving such notice, the respondent in my view acted reasonably as it had an obligation to the applicant to ensure that his workplace would not cause further aggravation and an obligation to ensure that he was fit to perform the inherent duties of his role particularly given the significance of those that he must serve and protect. I find that its actions in this regard were reasonable.
Further, I find, that the respondent had proper regard to the applicant’s medical condition and his rights. Its referral to the Police Medical Officer was appropriate and reasonable as it could not disregard the report of Dr New, given the restrictions reported and nor could it rely on it entirely, as it was a medico-legal report with the aim of securing lump sum compensation. I find that it was reasonable to have the applicant reviewed not only for his own safety but to ensure that he could fulfil the requirement of his role and until such findings were available, the enforced restricted duties were appropriate to protect the applicant. The outcome of the review by the Police Medical Officer, unfortunately resulted in a finding that the applicant was unfit to perform his role with permanent restrictions (transfer) recommended, a matter most distressing to the applicant, however one of which it could be said that he had advance notice, as it was his medical evidence that forecasted issues relating to fitness. I appreciate and acknowledge the applicant was assessed for fitness and cleared just three weeks earlier, however, there is no evidence that at that time, the assessor had the medical findings of Dr New.
I also find the manner in which transfer was conveyed to the applicant was appropriate/reasonable. Dr Teo informed the applicant face to face of his findings, restrictions and support services available.
I note the procedural flaws raised by the applicant as to the convening of the meeting and specifically the attendance of a support person unknown to the applicant. This I find does not detract from a conclusion that the employer’s actions were reasonable given the documented and then verified medical restrictions.[32] I note the findings in Department of Education and Training v Sinclair, that it was the entire process that must be looked at to see if what occurred was reasonable action within s 11A of the Act.
[32] [2005] NSWCA 465; 4 DDCR 206 (Sinclair).
Overall, in summary, I find on the basis of the evidence, the psychological injury as claimed by the applicant was predominantly caused by reasonable action taken by the respondent.
As the respondent has proven that the applicant’s psychological injury was predominantly caused by reasonable action with respect to transfer, there will be an award for the respondent.

[2023] NSWPIC 298

23 June 2023