New South Wales Police Force v Lovett - [2010] NSWWCCPD 80

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		New South Wales Police Force v Lovett [2010] NSWWCCPD 80
APPELLANT:		New South Wales Police Force
RESPONDENT:		Amy Lovett
INSURER:		Allianz Australia Insurance Limited as agent for NSW Self Insurance Corporation
FILE NUMBER:		A1-8386/09
ARBITRATOR:	Mr P Maloney
DATE OF ARBITRATOR’S DECISION:		24 February 2010
DATE OF APPEAL DECISION:		28 July 2010
SUBJECT MATTER OF DECISION:		Section 11A of the Workers Compensation Act 1987; discipline; psychological injury, and expert reports.
PRESIDENTIAL MEMBER:		Acting Deputy President Lorna McFee
HEARING:		On the papers
REPRESENTATION:		Appellant:	Hicksons
Respondent:		Walter Madden Jenkins
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 24 February 2010 is confirmed.
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

BACKGROUND TO THE APPEAL

On 24 March 2010, New South Wales Police Force (‘the appellant’) sought leave to bring an Appeal Against Decision of Arbitrator in the Workers Compensation Commission (‘the Commission’) against a decision dated 24 February 2010.

The respondent to the appeal is Ms Amy Lovett (‘Ms Lovett’), a police officer.

Ms Lovett lodged a workers compensation claim with the appellant on 2 November 2006, alleging psychological injury as a result of “close personal surveillance by unknown police for unknown reasons” which was detected by Ms Lovett on 20 September 2006 and for which “no explanation given”.
The Accident/Incident Notification Form completed by the appellant recorded that Ms Lovett:
“was under close surveillance by other officers for, unknown reasons. She detected the surveillance officer and confronted him. He denied following her although the officer heard a police radio. She rang her immediate supervisor with the rego no. of the car but has not been advised why she was being followed. No one has confirmed the surveillance.”

It is further recorded that Ms Lovett ceased work on 22 September 2006 “as a result of internal investigation and close surveillance of the applicant by Professional Standards”.

The appellant did not dispute injury, however liability was declined in a section 74 Notice under cover of letter dated 22 January 2007.
The appellant relied on section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’), on the basis that compensation was not payable because the psychological injury was caused by reasonable action, taken with respect to discipline.
The ‘Reasons for the Decision’ by the appellant’s insurer, Allianz Australia Insurance Limited as agent for NSW Self Insurance Corporation, were as follows:
“Based upon report by psychologist Jane Randall dated 16^th January 2007, it has been found that your employer has acted reasonably in relation to matters pertaining to discipline and performance appraisals. The report notes that the duties assigned to Ms. Lovett while she was being surveilled are not uncommon given the severity of the matter against her.”
Ms Lovett requested review of the insurer’s decision, initially on 4 April 2007, and again on 24 June 2009.
Following reviews by the insurer, the decision to deny liability was maintained, “based on the evidence gathered in the pre-liability assessment report conducted by consultant psychologist, Jane Randall”.
Ms Lovett filed in the Commission an Application to Resolve a Dispute on 14 October 2009 in respect of a dispute concerning weekly payments of compensation and medical expenses as from 22 September 2006. Her injury was described as an Adjustment Disorder with Mixed Anxiety and Depressed Mood, as a result of being subjected to surveillance without explanation in the course of her employment.
The appellant filed a Reply on 5 November 2009 which confirmed that the issue in dispute was pursuant to section 11A of the 1987 Act.
A conciliation/arbitration hearing took place on 2 February 2010.
Following the conciliation phase, the dispute between Ms Lovett and the appellant was confined to two issues:
(a) whether Ms Lovett’s injury was wholly or predominantly caused by reasonable action taken by the employer with respect to discipline (‘the 11A issue’), and
(b) if so, whether Ms Lovett’s entitlements to weekly payments should be calculated from 19 May 2008 when her daughter was born, on the basis that she has a dependent child (‘the dependency issue’).
There was agreement that:
(a) Ms Lovett sustained psychological injury (Adjustment Disorder with Mixed Anxiety and Depressed Mood) arising out of or in the course of her employment, and
(b) Ms Lovett’s employment was a substantial contributing factor to that injury.
The Arbitrator issued a Certificate of Determination and Statement of Reasons (‘Reasons’) on 24 February 2010, finding in favour of Ms Lovett in respect of both the section 11A and dependency issues.

THE DECISION UNDER REVIEW

The Certificate of Determination, dated 24 February 2010 records the Arbitrator’s orders as follows:
“The Commission determines:
1)      The Respondent shall pay the Applicant weekly compensation:
a)For the period 22 September 2006 to 31 December 2006 (a period of 14.2 weeks) under s 36 at the rate of $1,052.11 per week (a total of $14,939.92);
b)For the period 1 January 2007 to 22 March 2007 (a period of 11.8 weeks) under s 36 at the rate of $1,073.15 per week (a total of $12,663.73);
c)For the period 23 March 2007 to 18 May 2008 under s 37 at the statutory rate for a single worker over 21, with no dependents, as varied from time to time; and
d)For the period 19 May 2008 to date and continuing, under s 37, at the statutory rate for a single worker over 21, with one dependent child, as varied from time to time.
2)      The Respondent shall pay the Applicant’s reasonable and necessary s 60 expenses upon production of accounts, receipts, or HIC notice of charge.
3)      The Respondent shall pay the Applicant’s costs as agreed or assessed.
4) Certify an uplift of 15% for both parties on the ground of complexity of the factual and legal issues under Table 4, Schedule 6 of the Workers Compensation Regulation 2003.”

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE TO APPEAL

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
There is no dispute that the quantum at issue on appeal meets the thresholds in section 352(2) of the 1998 Act.
The appeal was lodged on 24 March 2010, within 28 days of the Arbitrator’s decision, in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.

FRESH EVIDENCE

Neither party seeks to rely on fresh evidence.

EVIDENCE

Ms Lovett’s evidence as to events

Ms Lovett was not called to give evidence. Her signed statement dated 11 September 2008 was tendered without objection and she was not cross-examined.
The format of her statement addresses the content of the pre-liability assessment report conducted by the consultant psychologist, Jane Randall, dated 15 January 2007 (‘the Randall Report’).
I propose to reproduce her statement of the sequence of events relevant to her injury in detail, for reasons apparent in my discussion of evidentiary issues:
(a)     On Friday the 15^th of September, 2006 I received a phone call from Superintendant Ray King. He informed me that I had been specially chosen to run an Outlaw Motor Cycle Gang Investigation. He said that he and other Senior Officers had noticed my good results on investigation over the past years and they required my expertise. Ray King told me I was supposed to commence my Street Level Operative undercover course on the same day, but he assured me that I was to be placed on the next available course. Ray King could not give me exact details of what I would be doing but told me to start work on Monday at Wetherill Park Police Station where there would be a big briefing held and I would be informed of the details of the job.
(b)     On Monday 18^th September 2006, I commenced work at the Wetherill Park Police Station. During the morning I had the Fairfield Crime Manager (2IC of the command) comment about the special investigation I was to be running. I asked him where everyone involved was and who did I need to speak to. I told him Ray King informed me that there was going to be a briefing held and there was no one in the office or building that seemed to know what was going on. He told me that I was not to speak to anyone about what I was to be doing, and I would be given further instructions by Ray King. He walked me into the office and told me to stay in a small room until I was contacted (the room was one off the main office with a lockable door and its own phone). Ray King contacted me soon after and told me the briefing would be held in the afternoon. I started to get annoyed at the disorganisation of the case, and thought I could have attended my undercover course after all.
(c)     About 2pm Inspector Viera met with me casually outside on a bench. He told me I would be running a controlled operation on outlaw motor cycle gang members, and I would be doing that by myself for at least one week. He gave me several pieces of paper that listed five targets (criminals to be investigated) and their criminal backgrounds. I asked him who would be attending the briefing and he said, “This is it”. I was expecting ‘Normal briefing’ that generally has a large amount of people, with operational orders, a team to work on the job and a Supervisor. Viera told me he had limited information at that stage but I would be updated as more information came in.
(d)     With the little information given to me, I went back to the office that I was allocated and I began to do checks on the targets. I continued doing that work on Tuesday but the information I was gathering did not seem to be fitting together. I made several calls to Inspector Viera because I was unsure about what I was supposed to be doing and that it was causing me stress.
(e)     I had a headache and was feeling extremely frustrated about the state of the investigation. For example; one of the people I was to be targeting had been dead for about 7 months. The whole job did not make sense to me; I had been taken off my course that I had worked very hard to get on and was greatly looking forward to and instead I was put on an investigation that was extremely disorganised. The fact that Ray King had stressed to me that this investigation was so big and important and that one of the targets had been dead for months made me cry about missing my course. I felt the investigation was such a waste of time.
(f)      In the afternoon I was asked by a work friend if I could photocopy a Brief of Evidence for her at Fairfield administration office so I did. While I was at the photocopying machine, Ray King walked into the office. There were about 7 other ladies around in the office at that time. Ray King asked me what I was doing and then commented on the big job ahead of me. He repeated how I had been specially picked for the job and then told me to get back to it as soon as I could because it was a very important case. I completed the brief and returned back to work at Wetherill Park.
(g)     On Wednesday I went to work, I contacted Gus Viera several times to see what I was supposed to be doing and to let him know I was confused and frustrated. He told me he would have more information some time during the day. In the afternoon Viera called and got me to meet him. At this meeting, he gave me more sheets of paper with people’s names and photos that were also to be targeted in the investigation. One of these targets was someone I had gone to school with. I commented to Viera that I knew one of the Targets and asked him was that why I had been selected to do this job. He told me it was not and that I was to return to Wetherill Park straight away and complete more checks as senior officers above him wanted the case to be completed by Friday.
(h)     I returned to the station and started doing checks. I began to cry as I had no idea what I was supposed to be doing. I had a headache from stress and from being so frustrated and angry. I called Viera to find out if he could get more information on my tasks. I told him that I knew one of the targets from school and I was happy to conduct the paper work for the case but I could not be involved in any arrests as it could cause a conflict of interest. He told me he was going to get back to me after making some enquiries.
(i)      About 4:30pm, at the conclusion of my shift, I left the station and walked to my personal car. After a short phone call to my brother, I started driving home.
(j)      When leaving Wetherill Park Police Station on the afternoon of Wednesday 20^th of September, 2006 in my husband’s car I took careful notice of what was happening around me, as I do every day when leaving work. I had been trained by a Sergeant from the Surveillance Branch of the police on the best practises of surveillance...
(k)     As I began driving home I noticed a white van that appeared to begin following me. I pulled over to allow this vehicle to pass me as per my anti-surveillance training. I noticed that after it passed me, the white van turned left at a roundabout up ahead. I continued driving and when I stopped at that same roundabout, I saw the white van attempting to do a u-turn. This unusual driving made me think even more that the van was attempting to follow me. As I drove passed, I saw the van change its manoeuvre half way through and instead of completing a u-turn, it drove straight down the road. I began to follow the van and eventually followed it to a dead end. The van stopped in the cul-de-sac, which further aroused my suspicions. I pulled up next to the van and saw it had a male driver. I got out and approached the window. I said, “How are you going?” he said, “Can I help you?” he appeared extremely nervous. I then heard what I believe to be a radio or scanner tuned in to the police frequency.
(l)      I returned to my car, reversed behind the van and called my supervisor, Gus Viera. At this point I was extremely scared and agitated and had severe chest pains. I informed Viera what has happened and the number plate of the van. Viera could not give me any explanation of who the male in the van was which made me believe that the man in the van could be an Outlaw Motor Cycle Gang Member. Viera told me I was being paranoid and not to get so upset.
(m)   My chest pains worsened to the point that I couldn’t breathe. I continued driving home and received a phone call from Superintendent Ray King. King also could not give me any explanation of who could be following me. I told him about the paper work I received from Viera and one of the Targets I had gone to school with. He could not give me any straight answers to what was going on. This confirmed to me that there was a possibility that my life could be in danger. King showed a lack of support and also seemed to doubt that I was being followed and made me feel that I was being paranoid.
(n)     Considering what Viera and King had already told me, I became very upset. I knew that what had happened to me was real and I was scared for my safety and the safety of my family. That night I did not sleep and continued having chest pains, headaches and was vomiting and had diarrhoea.
(o)     The morning of Thursday 21^st September, 2006 I still had fears for my safety and I was experiencing extreme paranoia, depression and anxiety. Even though I was still having chest pains and anxiety I went to Wetherill Park Police Station as I felt it was the safest place for me and I would be able to speak to King and Viera. On the way to work that morning I believed that I was being followed again. My hands were shaking on the steering wheel, and I was finding it difficult to breathe.
(p)     Several hours into my shift Ray King came to Wetherill Park Police Station and spoke to me. I asked him what was going on and if he knew anything about why I was followed I asked if he or Viera had looked into the registration of the white van. King was unable to answer any of my questions and said he did not know anything. He did say he was very concerned for my mental welfare and informed me he was taking my firearm off me as he had fears I was a risk to myself or others. This made me feel that no one believed my story that I was followed by the van and that they believed that I was crazy.
(q)     Their lack of support also made me feel very alone. Neither King nor Viera conducted a check on the van to determine who had followed me, which furthered my belief that they did not believe I had been followed.
(r)      Ray King left the station and a short time later Gus Viera took me to Cabramatta Police Station. He also did not give me any answers to my questions on what had happened the afternoon before. I asked him if he believed I should have concerns for my welfare. His reply to this was that he thought I had nothing to worry about and he doubted that someone was following me. I spoke with Viera about the Target I had gone to school with. I had mentioned to him previously that I had tried to run an investigation on him while I was working at Bass Hill so he knew who I was talking about. I believed that because King had gone to the extent of taking my firearm off me, then surely he would do anything he could to alleviate my anxiety and depression.
(s)     Later that afternoon, I returned to Wetherill Park and ended my shift. Again that night I experienced chest pains, diarrhoea and vomiting and did not sleep. The morning of Friday 22^nd of September 2006 I called into work sick. I did not feel safe, even in my own home. At that point I had never felt more alone, confused, scared, depressed and anxious and I definitely had never felt all these emotions at the same time before. I spent Friday, Saturday and Sunday at home going over the possibilities in my head, which felt like I was going crazy. The following morning I decided I would seek professional help and saw my Doctor Shalia Jamshidi.
...
(t)      On the 6^th of October 2006, I made a call to Inspector Lyn Kaesler and she informed me I was the subject of a criminal inquiry, that I was under investigation and I was to contact the officer in charge of the investigation, Darren Jamieson. After this phone call with Kaesler, I was crying, screaming and very confused. I could not think of any reason for being investigated. I felt cheated by the NSW Police and had no trust in anyone. The fact that I loved my job and knew I was an honest, hard working officer made me even more stressed to think that your own kind could do this to you...”
The account of Ms Lovett contained in the Randall Report is not in statement format. However it is predominantly consistent with the above referred account and specifically includes:
(a)     reference to Ms Lovett’s report to Detective Inspector Viera that she felt that she was unsuitable for the role of investigating a person of interest whom she knew, and that she did not want to be responsible for prosecuting him as she was concerned for her safety and that of her family;
(b)     reference to Ms Lovett’s concern that she was unsure whether she heard a police radio or a police scanner and that she was unsure whether she was under investigation by Professional Standards or was being followed by a criminal, and
(c)     reference to her belief that Detective Inspector Viera, in response to her report of the surveillance, considered her “paranoid and unwell”, and that Superintendent King commented that she sounded “paranoid”.

Appellant’s evidence as to events

The evidence of Superintendent Ray King (‘Superintendent King’) consists of an account (not in statement format) but adopted by Superintendent King in the Randall Report; copies of his diary notes for the days 15, 18, 20, 21, 22, 26, 27, 28 and 29 September 2006 and 3, 5, 10 and 26 October 2006, and a statement dated 29 January 2010.
According to the Randall Report, Superintendent King stated that Ms Lovett was “healthy until the minute she found out she was being investigated”, that she was “caught out”, and unable to face the investigation by Professional Standards and its potential consequences.
Superintendent King said that he had been advised that Ms Lovett was “under notice”; that he was unsure as to how she was investigated and it was determined that she had been surveilled. He also stated that police did not permit the member under notice to be informed of the investigation and that he was aware of his responsibilities to NSW Police in terms of their conduct of the investigation.
Superintendent King said that he had observed many police officers under investigation and in his opinion, Ms Lovett’s reaction was very severe. He did not agree with Ms Lovett’s claim that she thought she may have been in danger that she knew straight away that she was being investigated when she heard the police radio in the car that had been following her. He had no recollection of Ms Lovett claiming that she thought she may have been in danger for the period 18-21 September 2006.
Superintendent King confirmed that Ms Lovett was removed from the undercover course and assigned to a “special project” commencing 18 September 2006. He confirmed that deliberately she received little briefing about the project in accordance with instructions “in line with the Professional Standards Investigation”.
Superintendent King confirmed that he and Detective Inspector Viera (‘Inspector Viera’) received telephone calls on 18 and 19 September 2006, from Ms Lovett, during which she expressed concern and confusion about the project and the lack of direction she had been given.
Superintendent King stated that the lack of information provided to Ms Lovett was a deliberate part of the plan put in place to monitor her movements.
He said that it was not unusual to allocate the type of task that had been given to Ms Lovett under such conditions and, although he did not like the plan to monitor Ms Lovett, he was required to carry out instructions regarding the investigation of her professional behaviour.
According to the Randall Report, Superintendent King first identified distress in Ms Lovett on 20 September during a telephone call, following her discovery that she was being surveilled in conjunction with the investigation of her behaviour by Professional Standards.
Superintendent King’s statement dated 29 January 2010 records his inability to contact Ms Lovett when she was aware she was under investigation. No time or date is volunteered. The attempts to support her were subsequent to her ceasing work and are not directly relevant to the issue of causation.
Superintendent King’s diary entry relevant to Ms Lovett for Wednesday 20 September 2006 is as follows:
“Then receives call from Insp Viera and informs me that Lovett detected surveillance. She has gone home crying and believes she is being followed and reacted when she saw (blank) in the intel package. Spoke to Insp. Parsons to discuss her welfare (firearms). Agree to contact Lovett. Speak to her on mobile. She confirms surveillance – she is crying on phone – mentions (blank) went to school with same and at 15 went out with him. He knows her family for 15 years. I tell her I will speak to her at Wetherill on Thursday, and discuss her welfare. Then inform Parsons. Also contact Lovett’s husband Tim Reid and ask him not to take his firearm home.”
Superintendent King’s diary entry relevant to Ms Lovett for Thursday 21 September 2006 is as follows:
“Also spoke to A/C Owens re concerns for Amy Lovett. Agree that when I speak to Lovett I say the direction came from region. Then at 8.10am spoke to Const. Lovett. She indicates she was followed yesterday and words to the effect “1A”. She is assured that Viera and I were directed by region for her to do the job and that it is legitimate and don’t think anything untoward has occurred. (Can tell she is not buying that) Tell her I am concerned for her welfare and reasons for firearm being removed and not to be returned until something comes up to tell me there is no concern. She indicates (blank) is a friend from school and as soon as she saw the name thought something was wrong. I told her that this creates a conflict of interest and I would move her to? and speak to region and have her replaced. She would work for Eric Viera. She was upset about her firearm being padlocked and I spoke about (blank) my own experience. I told her she had rights and to contact me or the Assoc if she was approached. She admits making computer accesses...”
The subsequent entries relate to contact and welfare assistance.
An account of Inspector Viera is also contained in the Randall Report, not in statement format, but adopted by DI Viera.
Inspector Viera had limited knowledge of Ms Lovett. He conceded that she expressed concern to him on 18 and 19 September 2006 about the project and the lack of direction she had been given but seemed “happy” to look at the target assigned to her.
Inspector Viera stated that on 20 September 2006 at 4.30pm he received a telephone call from Ms Lovett, who was crying and was claiming that she was followed, that at 4.50pm she called again with a registration number of the vehicle, that she said that she “knew too well that Police were following her” and that she claimed “I’ve busted them”. By this comment, the Randall Report asserts that Inspector Viera offered an opinion that Ms Lovett had realised at this point that she was under investigation and that she seemed upset.
Inspector Viera’s opinion is that Ms Lovett did not return to work because she did not want to face the consequences of the investigation, and that at no time did she state a fear of danger.
Inspector Viera’s diary entries are not in evidence.
The statement of Inspector Lynette Kaesler dated 29 January 2010 confirms the contents of Ms Lovett’s accident form and the compensation claim form, and provision of welfare and peer support subsequent to Ms Lovett ceasing work. She makes no reference to the conversation with Ms Lovett on 6 October 2006 referred to in Ms Lovett’s statement. This statement is only peripheral to the causation issue.

The copy of the Commissioner’s Warning Notice dated 15 May 2008 and attached Reasons are described by the Arbitrator at [38] to [41], concerning Ms Lovett’s computer access in respect of persons and events which are not identified and appear to have taken place in 2003, 2004 and late 2005, for which Ms Lovett’s explanations were considered inadequate.

Medical evidence

Ms Lovett’s general practitioner’s file was tendered.
Relevant to the section 11A issue (diagnosis and continuing incapacity were not in issue) is the first consultation entry of Dr Shalia Jamshidi on 25 September 2006.
“History
Has been very stressed out, she is a police officer work in drug unit, was doing a course to work undercover but she has been taken off the course and has been given some paperwork to investigate some of the criminals. One of them happened to be her ex-boyfriend when she was 15 years old and now she has been followed by police all the time and that makes her nervous feels very tense afraid to go out or to work, as feels she has been followed does not understand what is going on no one explains anything to her. Feels shaky and her heart racing.”
According to the entry on 6 October 2006 of Dr Jamshidi’s notes, she was “supposed to have an interview but she doesn’t know why and what it’s about...”
An interview (not in statement format) with Dr Jamshidi is contained in the Randall Report, where it is recorded:
“Dr Jamshidi was of the opinion that the work factors that led to Ms Lovett going off work related to the fact that Ms Lovett’s ex-boyfriend from high school was considered a person of interest and thus was being monitored by the NSW Police, and that Ms Lovett believed that the Police were trying to track him down through Ms Lovett’s contact by surveilling her and bugging her phone. Dr Jamshidi reported that Ms Lovett had stated that she felt she was the one in the wrong although she had done nothing but carry out the work tasks assigned to her. Dr Jamshidi was unaware that Ms Lovett was under investigation and ... Ms Lovett was even more distressed by the perception that her colleagues were no longer available to her for support given that she believed that her colleagues were “using her” to obtain access to this particular person of interest in the community.”

Ms Lovett’s Reply to the appellant’s evidence

In her statement dated 11 September 2008, Ms Lovett alleges Superintendent King’s statements to be totally false.
She states that she did not find out that she was being investigated until 6 October 2006 and that she has transcripts of phone calls to prove this issue.
Ms Lovett says Inspector Viera’s assertions are wrong. She says that on the morning of 20 September 2006 she was stressed and asked him to get more information “as I didn’t know what I was doing”, that she again expressed her concerns about the investigation and was upset and crying, that she did not leave until 4.50pm and then realised she was being followed.
Ms Lovett alleges that Inspector Viera’s opinion that she knew she was under investigation on 20 September 2006 is wrong and that, in any event, she knew she was not guilty of any crime to be worried about.
Ms Lovett was subsequently charged with accessing/modifying restricted data held in a computer. It is not clear from the evidence when the charge was laid, what precise conduct it related to, or when the conduct was alleged to have occurred.
The charge was withdrawn by the Director of Public Prosecutions (‘DPP’) and the prosecution was ordered to pay Ms Lovett’s costs of $13,950.00 on 19 December 2007.
Ms Lovett continues to be certified unfit for work as a consequence of her psychological injury. She gave birth to a daughter on 19 May 2008.

ARBITRATOR’S DECISION

Relevant to the issues on appeal, which did not include dependency, the Arbitrator made the following findings at [42], [44] and [48] of his Reasons:
“42. I accept that the factors surrounding that investigation led her to develop her psychological condition.
…
44 Without knowing what was being investigated at the time those actions were taken by the Respondent, it is not possible to draw a conclusion as to the reasonableness of the Respondent’s actions. There is no evidence that the matters covered in the Commissioner’s warning are the same matters that were the subject of internal investigation. It is not clear from the Commissioner’s warning, when the Respondent became aware of all Ms Lovett’s unauthorised accesses, and whether that was before or after (or partly so) the surveillance and surrounding events.
…

48. It follows that the Respondent has not discharged its onus and that its defence under s 11A fails.”

ARBITRATOR’S REASONS

The Arbitrator expressed the test under section 11A in these terms at [14] of his Reasons:
“It is necessary for the Respondent to establish that the actions with respect to discipline were the whole or predominant cause of Ms. Lovett’s psychological injury. This is ‘a question of fact and degree’ per Fitzgerald JA in Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181 at [8]. If that is the case, then the Respondent has the onus of establishing that those actions with respect to discipline were reasonable. Actions in respect of discipline ‘external to the entire process involved in, relevantly “discipline” including the course of an investigation’ per Spigelman CJ in Sinclair at [35].”
On consideration of the evidence, the Arbitrator found a clear nexus between the factors associated with the course of the investigation, which were Ms Lovett’s removal from the training course; her assignment to the special project; the surveillance of her; and the lack of support she felt she was receiving from her superior officers, who could not reassure her, because they were aware that these events were part of an internal investigation, and the her development of her psychological condition.
The Arbitrator considered (wrongly, in my view) that Jane Randall and Dr Jamshidi agreed on this issue.
The Arbitrator’s finding that the appellant had not discharged the onus under section 11A was based on the absence of evidence as to reasons for the initiation of the investigation, an absence of explanation for the course taken, the “dummy job”, the surveillance and the fact that. Superintendent King and Inspector Viera were required to mislead Ms Lovett. The Arbitrator considered that the evidentiary material was inadequate.

SUBMISSIONS ON APPEAL

The appellant has advanced six grounds of appeal and submissions in support.
Written submissions accompany the Notice of Opposition filed on behalf of Ms Lovett. Each ground raised by the appellant is dealt with in those submissions.
I propose to make reference to the opposing submissions in the course of discussion of each ground of appeal.

ISSUES IN DISPUTE

The six grounds of appeal the appellant has identified are that the Arbitrator erred in:

1.       determining that the “appellant’s response” in respect of the discipline of Ms Lovett was not reasonable;
2.       finding that the appellant did not discharge its onus of proof;
3.       not considering all of the evidence;
4.       failing to take into account all of the evidence produced by the appellant, particularly documents produced under direction by Dr Jamshidi, the Commissioner’s Warning Notice and witness statements that showed that the respondent knew what she had been investigated for and charged with;
5.       finding that the appellant did not lead evidence that showed what Ms Lovett was being investigated for and that she was not told anything and was not supported, and
6.       finding that the Commissioner’s warning and reasons did not discuss the investigation.

In summary, the appellant:
(a) challenges the Arbitrator’s identification of the conduct of the investigation as the whole or predominant cause of Ms Lovett’s psychological injury;
(b) submits that Ms Lovett knew that she was being investigated and her knowledge that she was being investigated was the whole or predominant cause of the injury, and
(c) submits that the investigation as discerned from the evidence was reasonable and the section 11A onus was discharged.

DISCUSSION

My task on review, as Spigelman CJ said in State Transport Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 is:
“to decide whether the original decision is wrong, or as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view.”
A review is a different process to an appeal and “the matters which may be considered and the manner in which they may be considered are somewhat wider” per Kirby P in Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584.

First ground of appeal

The appellant has not identified nor directly addressed any finding concerning the appellant’s “response” in respect of “discipline” of Ms Lovett.
The first ground appears to address the question of “reasonableness” of the appellant’s conduct in the context of section 11A and the onus of proof to be discharged which is subsumed in the second ground.

Second ground of appeal

Section 11A 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.”
The Arbitrator at [14] of the Reasons correctly identified that the appellant was required to establish that action with respect to discipline was the whole or predominant cause of Ms Lovett’s psychological injury and that the actions with respect to discipline were reasonable.
As a consequence, he considered the evidence to identify the relevant factors associated with the investigation that caused injury. However, he was then required to determine whether those factors were reasonable (‘the reasonableness issue’), about which I will refer to shortly.
The case was conducted before the Arbitrator on the basis that the investigation was ‘discipline’.
The Arbitrator accepted at [42] that the relevant factors associated with the investigation were:
(a)     her removal from the training course;
(b)     her assignment to the special project;
(c)     surveillance of her, and
(d)     lack of support from her superior officers, who could not reassure her because the events were part of the internal investigation.
The Arbitrator accepted that those factors caused her to develop her psychological injury.
Implicitly, the Arbitrator rejected the appellant’s contention that the cause of Ms Lovett’s injury was her knowledge that she was the subject of inquiry and that she was unable to face the investigation by Professional Standards and its consequences, which was the hypothesis advanced in the Randall Report.
It is regrettable that the Arbitrator did not deal with this contention directly, with a simple statement of rejection. I propose to do so.
The Arbitrator, with justification, was critical of the contents of the Randall Report. At [31] and [32] of his Reasons, he stated:
“31. Ms. Randall’s discursive summaries of her conversations with Superintendant King and Inspector Viera have been adopted by them as true and correct statements and annexed to the Respondent’s reply. I wish to make it clear that I regard this as a very undesirable practice. I have grave difficulty in understanding precisely what part of the summaries should be regarded as theirs, and what parts are Ms. Randall’s interpretations of what they said, or her comments on what they said. By adopting her comments and inferences as their own? This is unclear.
32. A statement should be written in the first person, use direct quotes when quoting conversations and explain understanding and assumptions (where relevant) in the person’s own words. Statements such as those generated from Ms. Randall’s summaries are unhelpful.”
Because Ms Randall’s summaries of her interviews include her conclusion as to what the interviewee intended to convey, it is obvious at [30] of the Reasons that the Arbitrator had no confidence in the probative value of the contents of the Randall Report.
I agree with the Arbitrator’s criticism of the Randall Report.
Ms Lovett provided an account as to relevant stressors, referred to as “precipitating factors”, which were:
(a)     a transfer from the undercover course to a “special project” in isolation, about which she was given little information;
(b)     her reference to her suspicions and concerns about the nature of the project;
(c)     her fear for her safety and that of her family, as she knew the “person of interest”, and
(d)     her discovery of surveillance, for which no explanation nor support was given.
Ms Randall, without enquiry as to symptoms referable to those stressors and without any assessment of the effect of the stressors on Ms Lovett (which one might expect to be within her expertise), concludes that the substantial cause of her distress was the severity of the criminal investigation into her behaviour and possible impact on her future career. In her opinion, there was no evidence that the investigation of Ms Lovett was poorly handled.

Because Ms Lovett’s reaction was very severe, (according to Superintendent King, more severe than that of other officers, he had observed who were under notice), Ms Lovett’s knowledge of the criminal investigation of her was found by Ms Randall to be the cause of her injury.
An adjustment disorder is a diagnostic category characterised by an emotional response to a stressful event or events. The requirement is for a stressor to be identified and the clinician determines whether any particular stressor could lead to the development of a stress response.
The range in the nature and intensity of stressors is quite large and one would not reasonably believe that a divergent group of human experiences would lead to a similar psychological experience.
The treating doctor, Dr Jamshidi, considered the relevant stressor to be Ms Lovett’s belief that the police were trying to track down the person of interest by surveilling her (in the context of the factors as found by the Arbitrator), yet this medical opinion was not addressed by Ms Randall.
The way in which Ms Randall has chosen to elicit and record information from Superintendent King and Inspector Viera without reference to their diary entries does not permit an analysis of the events prior to and including 20 September 2006, and analysis of Ms Lovett’s stress response.
Ms Lovett’s assertion that she was uninformed of the criminal investigation of her behaviour until 6 October 2006 was not the subject of enquiry by Ms Randall, nor was it the subject of cross-examination.
Accordingly, there are significant limitations to the material contained in the Randall Report. The persuasive evidence supports the contention that the cause of Ms Lovett’s psychological injury was the factors associated with the investigation, and the conditions under which tasks were allocated to her. The Arbitrator was not in error on the causation issue.
Part 15 Rule 15.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) provides that when informing itself on any matter, the Commission is to bear in mind the principles that evidence should be logical and probative, and should be relevant to the fact in issue and the issues in dispute. Evidence “based on speculation or unsubstantiated assumption is unacceptable” and “unqualified opinions are unacceptable”.
Where the rules of evidence do not apply and while it must be recognised that “there is no legal right to cross-examine an applicant or other witness in the Commission and decisions whether to allow cross-examination or to limit it are discretionary” (Aluminium Louvres and Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value (see SouthWestern Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [5]).
As the Rules recognise, evidence must be “logical and probative” and “unqualified opinions are unacceptable”.
In my opinion, the Randall Report is unacceptable and the Arbitrator’s implicit rejection of it soundly based.
An expert must identify the facts assumed as the basis of an opinion.
An expert may rely on facts elicited from other witnesses. However, it is not appropriate for an expert to act as a mere conduit for the opinions or perceptions and uninformed speculation of others.
Ms Randall has done so and, as a consequence, the Randall Report is seriously flawed.
Experts (assuming Ms Randall to be a qualified psychologist, as she has not adopted the Expert Witness Code of Conduct) who venture opinions which are merely their own inference of fact outside their field of specialist knowledge invest those opinions with a spurious appearance of authority which misleads and misconstrues the facts (see HG v R (1999) 160 ALR 554 at 563-4).
In regard to ‘the reasonableness issue’, Ms Randall’s assertion that there is a lack of evidence to suggest that the investigation process had been poorly handled is an opinion not within the field of her expertise. Her opinion that the actions of the appellant were reasonable is based on the mere assertion that:
(a) the events occurring during the course of the investigation were a consequence of instructions received by Superintendent King and Inspector Viera, and
(b) the duties assigned to Ms Lovett whilst she was being surveilled are not uncommon “given the severity of the matter against her”.
No enquiry was made, nor any evidence elicited, concerning the propriety of action in respect of Ms Lovett, and the basis for that action and whether the investigation process complied with and was consistent with the Statutory Scheme for Investigation of Officers set up by the Police Services Act 1990 and the Commissioner’s Guidelines for Enquiries.
When considering the words “reasonable action” in section 11A, as Geraghty J said in Irwin v Director General of School Education NSWCC No. 14068197, 18 June 1998, unreported:
“The question of reasonableness is one of the fact, weighing all the relevant factors...the test of “reasonableness” is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended in all the circumstances, by a question of fairness.”
The Arbitrator had no evidence before him as to the appropriate course that should have been taken concerning the investigation, nor any evidence about the conditions under which tasks should be allocated, having regard to the policy that an officer under notice is not to be informed of an investigation. This is in circumstances where section 11A requires an objective assessment by the Commission of the reasonableness of the action of the employer (see Jeffery v Lintipal Pty Ltd [2008] NSWCA 138).
The Randall Report refers to Superintendent King’s observation that it was “not unusual” to allocate the type of task that had been given to Ms Lovett under such conditions.
Those conditions involved the officers in direct authority over Ms Lovett:
(a)     deliberately misleading her by informing her that she was specifically chosen on performance for a special project;
(b)     failing to provide relevant information and promised briefing;
(c)     placing her in isolation with little or no communication with other officers;
(d)     failing to provide or respond to requests for assistance and guidance;
(e)     deliberately providing false reassurance that the project was legitimate;
(f)      providing no explanation for her legitimate concerns, and
(g)     providing no immediate response to her obvious distress and reported frustration, confusion and physical symptoms.
A significant issue in this case, as the appellant implicitly contends, is whether the reasonableness relates to the conduct of the employer from its point of view, because the requirement for an investigation (as portrayed in the Commissioner’s Warning Notice) has primacy and whether this overrides the position of Ms Lovett, as she knew that she was being investigated.
The fact that Superintendent King and Inspector Viera when imposing the “task conditions” were complying with instructions and policy is a matter to be taken into account. However, in my opinion, it is not determinative of the issue.
I am prepared to accept that Superintendent King and Inspector Viera acted reasonably from that point of view.
However, I am not satisfied that they acted fairly or reasonably when the position of Ms Lovett is taken into account. They knew of the detrimental effect of the “unusual conditions”.
At the very least, Superintendent King ought to have sought advice and instructions from his superiors on being informed by Inspector Viera and Ms Lovett of her distress.
No evidence was adduced to explain why it was “reasonable” to not respond to the understandable and real concerns of a valued officer.
No evidence was adduced to show why the needs of the investigation in this matter necessarily overrode considerations relating to the possible detrimental effects of the investigation on the officer concerned.
In some situations, it may well be held that, even though harm has been inflicted on the officer, the course of the investigation, the events during the investigation, and the action taken, were nevertheless reasonable in the circumstances.
This would be a question of fact in the particular case, and was not addressed by evidence adduced by the appellant in this matter. The contention that the purposes of the investigation would have been frustrated had Ms Lovett been alerted to it was not sufficient to satisfy the reasonableness test.
The issue of reasonableness within the defence of section 11A applies to both the decision to carry out the action and the manner of its implementation. No action can be divorced from the way in which it is performed. The manner of its doing is part of the action. The action is not merely its end result (see Melder v Ausbowl Pty Limited (1997) 15 NSWCCR 554).
In view of my finding as to the manner of the implementation of the investigation, it is not necessary to reach a conclusion as to why the investigation was implemented and whether the decision to investigate was reasonable. There is no need to determine whether there was a proper basis for the directions concerning the allocation of tasks to Ms Lovett. Nor would it be possible to attempt to retrospectively determine those matters.
The Arbitrator was obliged to determine the reasonableness of the action of the employer. He found that he was unable to do so [at 44], “without knowing what was being investigated at the time those actions were taken...” This approach is misconceived, for the reasons I have outlined. The Arbitrator failed to address the distinction between the decision to investigate Ms Lovett and implementation of the investigation.
I am of the view that the appellant has not made out its case under section 11A. The appellant has failed to establish that the relevant causal stressor was Ms Lovett’s knowledge of the investigation and that the investigation was reasonable. The evidentiary material on which the appellant has relied was significantly flawed.

Third ground of appeal

The ground that the Arbitrator did not consider all the evidence is an ambit claim. It can be dealt with in discussion of the fourth ground.
To the extent it refers to the Arbitrator’s omission to specifically deal with the appellant’s contention as to the relevant causal stressor and the reasonableness of the investigation, it is dealt with in discussion of ground two of the appeal.
I note that a relevant causal stressor identified by the Arbitrator was “a lack of support from superior officers who could not reassure her, as they were aware that these events were part of an internal investigation”.
That stressor occurred during the period 18 September to 20 September 2006.
The material advanced by the appellant concerning the steps taken by Superintendent King and Inspector Kaesler to provide support to Ms Lovett do not relate to this period and were not directly relevant.

Fourth ground of appeal

The appellant argues that the Arbitrator failed to take into account all the evidence produced under direction by Dr Jamshidi that showed that Ms Lovett knew what she was being investigated for and charged with, as did the Commissioner’s Notice and Reasons and witness statements and notes.
My consideration of the evidence of Dr Jamshidi does not permit a finding that the relevant stressor causing injury and cessation of work on 21 September 2006 was the stressor contended for by the appellant.
The appellant’s submissions do not identify entries prior to 6 October 2006 disclosing knowledge inconsistent with Ms Lovett’s statement.
The appellant’s submissions do not identify entries in the Commissioner’s Warning Notice and Reasons, nor in the statements, which disclose that Ms Lovett knew she was under investigation before 6 October 2006.
In my opinion, enquiries made of her in April 2006 concerning unauthorised computer access does not establish knowledge of an investigation of her prior to 6 October 2006. Nor do Superintendent King’s diary entries on 20 September and 21 September 2006.
The fact that Ms Lovett stated that she thought that she was being followed by police to track down the “person of interest” does not advance the appellant’s contention that she knew she was being investigated and that she knew the reasons for that investigation. In any event, her statement regarding her thoughts in connection with surveillance by the police was not challenged.

In view of my resolution of ground two, it follows that the appellant’s argument raised under this ground fails.

Fifth ground of appeal

The ground of appeal that the Arbitrator erred in finding that the appellant did not lead evidence that showed what Ms Lovett was being investigated for is supported by the proposition that “the test is not what the respondent was charged with, the test is that the respondent knew that she was being investigated and why”.
As discussed in the context of ground two, the onus to be discharged by the appellant was to establish that the relevant stressor causing injury was Ms Lovett’s knowledge that she was being investigated, and that the conduct, and the course of the investigation was reasonable.
I have found that the Arbitrator’s determination that it is not possible to determine the reason for the investigation is misconceived and, to the extent that he found a lack of evidence as to the implementation of the investigation, his reasons are inadequate.
He ought to have applied the reasonableness test to the events which he found to be the relevant stressors causing injury, identified at [42] of his Reasons.
I have conducted that task in this review in discussion of the second ground of appeal. In view of my findings as to the unreasonable manner in which the investigation was implemented, it is not necessary (nor possible) to reach a conclusion as to why the investigation was implemented and whether the decision to investigate was reasonable. Accordingly, this ground of appeal fails.

Sixth ground of appeal

This incidental finding is disposed of in discussion of the second ground of appeal.

CONCLUSION

The review I have conducted confirms the Arbitrator’s decision on an alternative basis and I do not propose to exclude “Late Documents” (Statements and diary notes of Superintendent King, Statement of Inspector Kaesler and the Commissioner’s Warning Notice and Reasons) identified in the submissions on appeal on behalf of Ms Lovett.
The decision of the Arbitrator dated 24 February 2010 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Lorna McFee
Acting Deputy President
28 July 2010

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF LORNA MCFEE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE