Newling v FSS Trustee Corporation (No 2)

[2018] NSWSC 1405

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Newling v FSS Trustee Corporation (No 2) [2018] NSWSC 1405

Hearing dates:

28, 29 May 2018; 12, 31 July 2018; subsequent written submissions ending 20 August 2018.

Date of orders:

14 September 2018

Decision date:

14 September 2018

Jurisdiction:

Equity

Before:

Parker J

Decision:

At [247]

Catchwords:

INSURANCE – accident and sickness insurance – where policy taken out by trustee of superannuation fund with insurer for benefit of its members – claim for “total and permanent disablement” (TPD) benefit – benefit for TPD payable if claimant provided proof to satisfaction of insurer that he or she was so incapacitated as to be “unlikely ever” to return to employment for which he or she was reasonably qualified by education, training or experience – onus on claimant to provide proof to satisfaction of insurer

 

INSURANCE – duty to act reasonably – content of duty – reasonableness in assessing evidence – conflicting expert reports – onus on claimant to demonstrate that particular evidence should be preferred to other evidence when there is a conflict

 

INSURANCE – duty to act reasonably – content of duty – where insurer makes a mistake or accidentally overlooks material during assessment process – no breach of duty in circumstances where there is an opportunity for the claimant to bring the mistake to the attention of the insurer

 

INSURANCE – duty of utmost good faith – content of duty – obligation for insurer to give reasons for their decision – no general obligation

 

INSURANCE – duty of utmost good faith – content of duty – reasonable and fair process for assessment of claim – where claimant represented by solicitors

  PRACTICE AND PROCEDURE – separate questions – insurance – claim for TPD benefit – entitlement to benefit subject on proof to insurer’s satisfaction – “two stage” approach – discussion of the court’s enquiry in the second stage – discussion of whether the “two stage” approach is necessary in all cases

Legislation Cited:

Income Tax Assessment Act 1936 (Cth), s 80(5)
Insurance Contracts Act 1984 (Cth), s 13
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Associated Provincial Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26
Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284
Carroll v United Super Pty Ltd [2018] NSWSC 403
Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113
Hannover Life Re of Australasia Ltd v Jones (2017) 19 ANZ Ins Cas 62-149; [2017] NSWCA 233
Hannover Life Re of Australasia Ltd v Sayseng (2005) 13 ANZ Ins Cas 90-123; [2005] NSWCA 214
Hellessey v MetLife Insurance Limited (2017) 19 ANZ Ins Cas 62-152; [2017] NSWSC 1284
Housing Commission NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
McArthur v Mercantile Mutual Life Insurance Co Ltd [2002] 2 Qd R 197; [2001] QCA 317
Newling v FSS Trustee Corporation [2017] NSWSC 1839
Osmond v Public Service Board (NSW) [1984] 3 NSWLR 447
Pettitt v Dunkley [1971] 1 NSWLR 376
Public Service Board (NSW) v Osmond (1986) 159 CLR 656; [1986] HCA 7
Ross v NRMA Life Ltd (1993) 7 ANZ Ins Cas 61-170
TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68
Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Ziogos v FSS Trustee Corporation (2016) 19 ANZ Ins Cas 62-094; [2015] NSWSC 1385

Category:

Principal judgment

Parties:

Kim Newling (Plaintiff)
FSS Trustee Corporation (First Defendant)
MetLife Insurance Ltd (Second Defendant)

Representation:

Counsel:
MJ Gollan/A Coombes (Plaintiff)
SJ Walsh/JL Harrison (Second Defendant)

  Solicitors:
Walter Madden Jenkins (Plaintiff)
Moray & Agnew (Second Defendant)

File Number(s):

2016/181890

Publication restriction:

Nil

Judgment

1. These proceedings concern a claim for a total and permanent disability benefit under a life insurance policy. The plaintiff, Kim Newling, is a former officer of the New South Wales Police Force. In May 2012 she was discharged from the Force on medical grounds.

2. The first defendant, FSS Trustee Corporation (“FSS”) is the trustee for the First State Superannuation Scheme (“the Fund”), which provides superannuation benefits for, among others, members of the New South Wales Police Force. Ms Newling was a member of the Fund.

3. The Fund provided members with death and permanent disability benefits in addition to superannuation benefits. It did so by obtaining insurance cover for its members’ benefit. For the purposes of this case the relevant insurance was provided by a Group Life Insurance policy issued by the second defendant MetLife Insurance Limited (“MetLife”). The policy was issued to FSS in its capacity as trustee for the Fund. FSS was therefore the insured under the policy but exercises its rights as insured in the interests of Ms Newling as the Fund member.

Terms of the policy

4. The insuring clause in the policy provided:

If an Insured Member:

(a)   dies;

(b)   suffers TPD; or

(c)   suffers from a Terminal Illness on or after 1 July 2008,

while this policy is in force, subject to the provisions of this policy, we will pay to the policy owner the sum insured in respect of the insured member, subject to clause 2.

5. The policy was triggered by the happening of an Insured Event. That term was defined as meaning:

an illness (including sickness, disease or disorder) suffered, or, bodily injury occurring, to a Police Officer while an Insured Member.

6. Two levels of benefit were provided by the policy:

The Sum Insured will be determined as being payable on the On-Duty or Off-Duty basis according to whether the Insured Member was On-Duty or Off-Duty at the time that the Insured Event giving rise to the claim occurred. An illness which is contracted by the Insured Member in the course of Employment is an Insured Event which occurred On-Duty. Where an Insured Member’s illness is aggravated, accelerated, exacerbated or is subject to deterioration, and the Insured Member’s Employment while covered as an Insured Member was a substantial contributing factor to such aggravation, acceleration, exacerbation or deterioration, the illness is an Insured Event which occurred On-Duty.

Ms Newling’s claim was for an On-Duty TPD benefit.

7. The term “TPD” was defined as “Total and Permanent Disablement” in the following terms:

TOTAL AND PERMANENT DISABLEMENT

While covered under this policy, Total and Permanent Disablement shall have the following meaning:

(a)   The Insured Member suffering the loss of use of two limbs or the sight of both eyes or the loss of use of one limb and the sight of one eye (where limb is defined as the whole hand or the whole foot), or

(b)   In the case of an Insured Member whose Normal Hours are 15 hours each week or more at the time of the Insured Event giving rise to the claim – the Insured Member having been absent from their Occupation with the Employer through injury or illness for six consecutive months and having provided proof to our satisfaction that the Insured Member has become incapacitated to such an extent as to render the Insured Member unlikely ever to engage in any gainful profession, trade or occupation for which the Insured Member is reasonably qualified by reason of education, training or experience.

(c)   In the case of an Insured Member whose Normal Hours are less than 15 hours each week at the time of the Insured Event giving rise to the claim – the Insured Member, because of injury or illness becomes permanently unable to perform the basic activities normally undertaken as part of everyday life. This will be evidenced by being unable to undertake any two of the activities listed below:

(i)   Bathing – to shower or bathe

(ii)   Dressing – to dress or undress

(iii)   Toileting – to use the toilet including getting on and off

(iv)   Feeding – to eat & drink

(v)   Mobility – to get in or out of their wheelchair

(vi)   Continence – to control bladder and bowel function

If the Insured Member can perform the activity on their own by using special equipment the Insured Member will not be considered unable to perform the activity.

8. Sub-paragraph (b) is the relevant part of the definition for present purposes. It required that the Insured Member be absent from their occupation through injury or illness for six consecutive months. Ms Newling went on sick leave on 2 September 2011 and, as events turned out, did not return to work. A potential complexity arose because FSS allowed the policy to expire as from 30 September 2011. But MetLife accepted that, the Insured Event and the period of absence from work having commenced before that date, the policy continued to apply to Ms Newling’s claim despite its expiry.

9. In the course of the claim assessment process, a question was raised as to whether Ms Newling met the requirement of her “Normal Hours” having been fifteen hours a week or more at the time of the Insured Event. But at the hearing MetLife accepted that this condition was satisfied.

10. The six month period referred to in sub-paragraph (b) expired on 2 March 2012. It was agreed between the parties that the question whether Ms Newling satisfied the requirements of sub-paragraph (b) was to be determined as at that date, even though the actual assessment might (and in this case, did) take place after that date.

11. It follows that the underlying issue, as now agreed between the parties, is whether Ms Newling had, as at 2 March 2012, “through injury or illness … become incapacitated to such an extent as to render [her] unlikely ever to engage in any gainful profession, trade or occupation for which [she was then] reasonably qualified by reason of education, training or experience”. Ms Newling was required to provide “proof to [MetLife’s] satisfaction” of this.

12. Clause 9 of the policy dealt with disputed benefits. It relevantly provided:

9.1   Where we do not agree with the Policyowner about paying a Benefit, or the Policyowner or an Insured Member disputes a decision in relation to payment of a Benefit or application for insurance cover, that dispute must be referred to the Claims Review Committee.

9.2   The Claims Review Committee shall consist of one representative of the Policyowner, our representative and one independent representative as agreed between the Policyowner and us or, failing agreement, to be nominated by the Chief Executive for the time being of the Financial Ombudsman Service.

9.3   We will abide by the decision of the Claims Review Committee.

Issues for determination

13. Usually, trust law would require the trustee, who is the insured, to bring any proceedings against the insurer under the policy; the Insured Member would have no standing to do so. But, as explained in TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at [53]-[55], claims of the type made in this case are a recognised exception to this general rule. In effect, Ms Newling as plaintiff sues in these proceedings to enforce the rights of the trustee as insured. If she succeeds the insurer will pay the benefit to the trustee who will then account for it to her. FSS has played no active part in the proceedings. No point was taken about this by MetLife.

14. It is common ground that Ms Newling’s claim under the policy must be analysed in accordance with the “two stage” approach described in Shuetrim at [157]-[158]. The terms of the policy do not require MetLife to pay unless proof to its satisfaction has been presented that the claim is valid. MetLife has not formed any such view. The first stage of the analysis requires that Ms Newling demonstrate that MetLife’s failure to be so satisfied involved a breach of its obligations as insurer. If, but only if, this is established, the Court moves to the second stage of determining whether the conditions of the policy were in fact satisfied (describing the second stage in this way is sufficient for present purposes but may involve an oversimplification: see [226]-[237] below).

15. In 2017, MetLife made an application to the Court for the first stage to be dealt with separately and in advance. The application came before me in the Applications List. Ms Newling consented to it. Following amendments to the pleadings designed to clarify the issues to be determined at the first stage hearing, the parties agreed on separate questions and I made orders accordingly: Newling v FSS Trustee Corporation [2017] NSWSC 1839. The hearing on the separate questions, as it happened, came back before me.

Background

16. Ms Newling was born in July 1970. She completed her Higher School Certificate and left school at the end of 1988. In 1989 she obtained a job with GIO (a general insurance underwriter) as a claims manager working on fraudulent, or allegedly fraudulent, insurance claims.

17. In around 1990 Ms Newling formed a de facto relationship from which she later had two children. She and her de facto husband established a home at Prospect in western Sydney.

18. Ms Newling left GIO and joined the Police Force in 1991. She was promoted to Senior Constable in April 1997. In November 1997 she fell down a flight of stairs at work, injuring her back. She returned to work with the Police Force but her work was restricted to light duties. She was attached to the Blacktown Command and worked in intelligence at a desk job. She returned to her full pre-injury hours, which appear to have been about thirty hours per week.

19. Ms Newling and her de facto husband married in 2000 but the marriage ended in 2001. After that she continued to live, as a single mother, at the former matrimonial home in Prospect.

20. Ms Newling made a workers’ compensation claim for disability arising out of her fall in 1997. The claim was settled (apparently in 2001, but the year is not stated in the terms of settlement). The terms of settlement provided for Ms Newling to receive compensation for a fifteen per cent impairment of her back and a five per cent impairment of her right leg, but for an award in favour of the Police Force with respect to her left leg.

21. In June 2004 Ms Newling was transferred to the Marine Area Command at Balmain. She continued to work at a desk job in the intelligence area. She was promoted to Sergeant in May 2005. She worked on a flexible roster, reportedly working on average seventy-four hours per fortnight.

22. Between December 2008 and May 2009 Ms Newling took three periods of leave totalling approximately eleven weeks. This was a combination of sick leave, annual leave and “extended” leave. She was reportedly certified by her general practitioner, Dr Lucia Bong, in May 2009 as being fit only for restricted duties at reduced hours of two six-hour shifts per week. The certificate itself does not appear to be in evidence. The reasons for this leave are discussed further below.

23. Ms Newling returned to work on 17 May but then took a further four weeks of leave in June. The beginning of this period of leave coincided with the hospitalisation of her son. When she returned to work in July, Ms Newling submitted a police incident notification form stating that she had sustained back spasms while sleeping over at the hospital. Hospital records (not themselves in evidence) reportedly show the date in question was 8 June. Ms Newling made a workers’ compensation claim as a result, based on aggravation of her earlier back injury.

24. When Ms Newling returned to work in May 2009, Inspector Jennifer Thommeny had been appointed as her supervisor. Ms Newling came into conflict with Ms Thommeny concerning her requests for leave and her restricted working hours. Ms Newling claimed that this amounted to workplace bullying and harassment. Ms Thommeny’s superior, Superintendent Hutchings, was drawn into the dispute and seems eventually to have supported Ms Thommeny.

25. In August 2009 Ms Newling consulted Dr Bong and was diagnosed with “anxiety/depression” as a result of alleged workplace harassment. Dr Bong certified her as unfit for work and she went off work from 28 August. Ms Newling was referred to Dr Selwyn M Smith as her treating psychiatrist. He first saw her on 11 September and diagnosed her as having “Adjustment Disorder with Depressed and Anxious Mood”.

26. Dr Bong also referred Ms Newling to Dr Kwok, a neurosurgeon, concerning her back complaints. Dr Kwok saw her on 28 September. He concluded that further conservative treatment of her back would not help and surgery was suggested. He advised Ms Newling on the likelihood of success and possible complications but she did not then, or later, take up this suggestion.

27. Ms Newling apparently made a further workers’ compensation claim as a result of her psychiatric diagnosis. But Dr Smith later reported:

Ms Newling was shocked when she received notification from [the workers’ compensation insurer] on 10 November 2009 that liability for her psychological injury had been declined on the basis that the actions of her employer had been reasonable. She was particularly distressed because she was perceived as an inefficient and lazy supervisor who was not coping with change.

28. It appears that Ms Newling remained off work until December 2009 when her leave entitlements ran out. Dr Smith later reported that he thought that Ms Newling was not well enough to return to work but because of her “severe financial hardship” he acceded to her request to return to work on restricted duties.

29. In February 2010, Ms Newling saw Dr Scougall, an orthopaedic surgeon, at the request of Baker & Edmunds, a firm of solicitors who appear to have been acting for her on her workers’ compensation claim. He diagnosed her as having chronic back pain with “non verifiable radiculopathy symptoms in her left leg” (not her right leg which was the subject of the earlier award). At the time Ms Newling was reportedly continuing to work on restricted hours of two seven hour days per week. The claim for aggravation of Ms Newling’s back injury was declined in May 2010 on the ground that any such aggravation did not arise out of, or in the course of, Ms Newling’s employment. Ms Newling apparently challenged this decision. She saw Dr Scougall again at the request of Baker & Edmunds in September 2010 and he repeated his diagnosis and opinion on causation.

30. In October 2010 Ms Newling saw Dr Crowle, an occupational physician at the request of the Police Force, for the assessment of a proposed return-to-work plan. At the time, Ms Newling was still attached to the Marine Area Command but her hours were still seven hours per day, two days per week, with a travel restriction of no more than twenty minutes. As a result of this travel restriction, she was working from an office at Prospect where she was provided with a workstation allowing for remote communication with the Marine Area Command.

31. Dr Crowle diagnosed Ms Newling as having a “history of chronic back pain and left S1 radiculopathy”. Dr Crowle recorded that Ms Newling had chosen to proceed with surgical treatment for her back as recommended by Dr Kwok. Ms Newling was hoping to succeed in overturning the refusal of her workers’ compensation claim, which would presumably have paid for the surgery. Dr Crowle recommended that should her appeal not succeed, she should discuss treatment options with her treating practitioners. Dr Crowle instanced the possibility of going on a public waiting list for surgery or being referred to a pain management specialist or clinic.

32. Reportedly Ms Newling later increased her work hours to three seven-hour days per week, but subsequently reduced them to two five hour days per week, complaining of increasing pain, before she went off work for what proved to be the final time in September 2011.

33. There is no direct evidence about the later course of Ms Newling’s workers’ compensation claims. Reportedly, the refusal of her claim for psychiatric injury was later reversed in the Workers’ Compensation Commission (see [43] below). There is no evidence as to whether the “appeal” to which Dr Crowle referred concerning Ms Newling’s back injury succeeded, but orthopaedic evidence was still being obtained concerning her back in 2014 (see [82]-[83] below).

Evidence before MetLife concerning TPD

34. Ms Newling’s TPD claim was lodged in April 2012. It consisted of two forms. One was a “medical statement” signed by Dr Bong on 1 March. The other was a “statement of claim” signed by Ms Newling on 20 March, which was accompanied by a separate form dealing with Ms Newling’s educational background and a vocational assessment questionnaire.

35. Attached to the medical statement were two medical certificates from November 2011 which had originally been prepared for workers’ compensation purposes. One was from Dr Bong. It recorded a diagnosis of “severe chronic low back; severe anxiety depression diagnosed [illegible symbol] adjustment disorder”. Dr Bong certified that Ms Newling was unfit to return to the Police Force and should be medically discharged. Dr Bong also certified that Ms Newling had reached “maximum medical improvement”.

36. The second certificate was from Dr Smith. It recorded a diagnosis of “Adjustment Disorder with Depression and Anxious Mood”. Dr Smith certified that Ms Newling’s employment was in his opinion a substantial contributing factor to this injury. He also certified that Ms Newling had reached “maximum medical improvement” and that in his opinion she was not fit to return to the Police Force and should be medically discharged.

37. The term “maximum medical improvement” is one used for the purpose of assessment of injury for the purpose of workers’ compensation claims. It is defined in the Workcover Guide for the Evaluation of Permanent Impairment as occurring:

…when the worker’s condition has been medically stable for the previous three months and is unlikely to change by more than 3% WPI [whole person impairment] in the ensuing 12 months with or without further medical treatment (ie further recovery or deterioration is not anticipated).

38. The opinions recorded in these certificates were not supported with any reasoning. They simply involved the doctor ticking a box or writing a few words on the form.

39. A number of reports prepared for the purposes of Ms Newling’s workers’ compensation claim had come into MetLife’s possession by January 2013. Two of these were from Dr Crowle and two from Dr Smith. The first of Dr Crowle’s reports was her report on the proposed return-to-work plan for Ms Newling in October 2010 (see [30]-[31] above). At the time she was seen by Dr Crowle, Ms Newling was working under restrictions certified by Dr Bong which imposed a lift limit of five kilograms and periods of travel of no more than twenty minutes, periods of standing of twenty minutes at a time and hours of work limited to seven hours a day, two days a week, not being consecutive. The return-to-work plan is not in evidence but was described by Dr Crowle. It involved returning Ms Newling to “normal hours”. It was accompanied by a list of restrictions which in effect would have limited Ms Newling’s duties to desk work without contact with members of the public and working in an office setting close to her home.

40. Dr Crowle agreed with Dr Bong’s certifications. She expressed the view that the plan was not realistic as Ms Newling was unlikely, in Dr Crowle’s view, to be able to increase her hours of work. From the context, it is clear that this opinion was based on Ms Newling’s then condition and took no account of the surgery she had decided to undergo if her workers’ compensation appeal succeeded. Among the answers to the questions which were asked of Dr Crowle were these:

2.   What is Ms Newling’s prognosis?

It is expected that Ms Newling will continue to experience chronic low back pain and left S1 radiculopathy symptoms in the foreseeable future. She has elected to proceed with surgery and it is expected that a surgical procedure will prevent a progression of her symptoms and assist in addressing her left leg radicular symptoms, in particular.

3.   Ms Newling is permanently restricted to thirty hours per week. Is this a suitable return to work goal for Ms Newling?

Ms Newling has not reached maximum medical improvement. She is keen to proceed with surgical treatment of the lumbar spine. It is expected that, with a successful surgical outcome, a return-to-work goal of thirty hours per week in an office-based environment is realistic.

4.   Is Ms Newling capable of further upgrading her current hours of work from seven hours a day, two days a week?

There is no realistic prospect of a sustainable increase of hours from her current hours of seven hours a day, two days a week until such time as she completes the proposed surgical intervention. Should there be a change of plan with regard to surgery, I recommend referral to a pain management specialist to review her medication use and to assess the viability of a multi-disciplinary pain management program.

…

8.   Will Ms Newling be able to return to her pre-injury position within the Marine Area Command with the NSW Police Force?

a)   If so, what is the timeframe for return to her pre-injury position?

b)   If not, what are the likely permanent restrictions?

Ms Newling has not reached maximum medical improvement. It is difficult to prognosticate the timeframes for return to her pre-injury position as surgery is pending. It is also not possible to make an assessment of likely permanent restrictions. With a successful outcome of surgery, it is expected that she will be able to return to her pre-injury position at the Marine Area Command, as this is essentially an office-based position.

41. Dr Crowle’s second report was prepared for Employers Mutual Limited in March 2012. It was based on an assessment undertaken on 29 February 2012. Dr Crowle stated:

HISTORY

…

Ms Newling has chronic and deteriorating low back pain and associated left leg radicular symptoms of pain and numbness. She stated that there has been a progression of weakness and history of falls. She consulted with neurosurgeon, Dr Kwok at Prince of Wales Hospital in 2010 [this was actually September 2009] and discussed the risks and benefits of surgery for her lumbosacral spine condition. To date Ms Newling has elected not to proceed with surgery. She continues to discuss the possibility of surgery with her general practitioner and is considering returning to Dr Kwok for further review and discussion.

…

Current Status

Ms Newling continues to experience severe low back pain of variable severity in association with muscular spasm. She stated that she can only be in one position for about 15 minutes. She has difficulty sleeping due to pain. She is unable to lie on her back or stomach and uses pillows to sleep on her side. Her sleep is frequently disrupted and she awakes unrefreshed. She continues to experience pain involving the left leg and numbness involving the thigh, calf and foot, including all toes. She stated that she also has reduction of confidence and balance and increased weakness of the left leg. She noted that the distribution of her pain and sensory loss have increased since my previous assessment.

She uses an umbrella as a walking aid and to assist with balance a lot of the time. She stated that she is disinclined to use a walking stick. Her gait is uneven and she has difficulty with stairs and uneven ground. She performs housework as her condition allows, but this is associated with an increase of pain. She avoids domestic tasks that involve any lifting or bending. The children assist with laundry. Her son packs and unpacks the dishwasher and assists with mowing the lawn. Her parents also visit and assist with the gardens and lawns. She stated that she does some weeding and pottering about in the garden and limits her activities to those at waist height. She drives short distances due to difficulty with prolonged standing and takes breaks for longer journeys. She stated that she has difficulty with her memory and often forgets where she has parked the car. She has reduced patience and tolerance, irritability and depressed mood.

42. Under the heading “Summary” Dr Crowle stated:

It is unlikely that the worker will be able to sustain regular part-time office-based employment with the NSW Police Force or with an alternative employer at the current time. She requires an improvement of her radiculopathy to return to work. She has been encouraged by her NTD [Dr Bong] to reconsider Dr Kwok’s proposal of surgery and Ms Newling indicated to me at the time of consultation that she was giving this consideration. Whilst the worker’s incapacity for work includes consideration of her anxiety and depression, her low back condition independently renders her unfit for work and this situation is likely to continue in the foreseeable future until there is an improvement in her clinical status.

43. The first of Dr Smith’s reports was prepared for Employers’ Mutual Limited in January 2012. Dr Smith stated:

The predominant symptomatologies that affect Ms Newling’s ability to return to work relate to heightened levels of anxiety and depression, and restrictions as a result of her symptomatologies. She also lost her confidence in her ability to work with the NSW Police Force. She has experienced a marked loss of self-esteem and self-confidence. Her mood has remained depressed and anxious. Her physical symptomatologies also impact on her emotional state. In my opinion, she does not have the capacity to engage as an operational police officer.

The downgrade and recommendations for medical discharge relate to her decline in her emotional condition after a lengthy period of ongoing symptomatologies against a background of what has been regarded by herself and others as a lack of support in the work setting. She has undergone extensive litigation in regard to having her workers compensation claim recognised and this has in itself taken its toll. It is for this reason that her ability to constructively engage at work has deteriorated.

…

It is my opinion that Ms Newling is not able to return to work as an operational police officer with the NSW Police Force. Details of her psychiatric disorder have been outlined in previous reports submitted and which have also been prepared at the NSW Workers Commission where the rejection of her workers compensation claim was successfully overturned.

The barriers pertaining to her inability to re-engage at work are related to her loss of faith in the NSW Police Force, her lowered self-esteem and confidence, and her ongoing depressive and anxiety symptoms.

The specific triggers are related to the NSW Police Force environment and in particular a lack of support from her superiors.

In my opinion, and in the light of her symptomatologies, Ms Newling does not have the capacity to work external to the NSW Police Force.

44. In April 2012, Dr Smith wrote a further report for Baker & Edmunds. The report set out Dr Smith’s whole person impairment evaluation according to Workcover guidelines. His evaluation was twenty-one per cent. For “employability” Dr Smith classified Ms Newling as having “severe impairment” and stated:

Ms Newling is unable to work more than one or two days at a time and less than 20 hours per fortnight. She may have difficulty engaging on the open labour market.

45. The first medical report specific to Ms Newling’s TPD claim was provided by Dr Smith in October 2012. It was prepared in response to a request from MetLife in August.

46. Dr Smith’s report contained a detailed history of the events leading up to the diagnosis which he made in September 2009, and in particular the dispute between Ms Newling and her superiors, Ms Thommeny and Mr Hutchings. Under the heading “Clinical Examination” Dr Smith stated:

At the time of her presentation Ms Newling displayed overt anxiety and agitation. She was tearful. I found her to be cooperative, attentive and interested and the level of rapport established was good.

Ms Newling described being persistently depressed, despairing, irritable and anxious. She also reported experiencing anger towards Inspector Thommeny over the manner in which she has been treated.

At the time of the examination Ms Newling displayed a depressed, anxious and agitated affect. Her emotional expression was appropriate to her thought content.

Ms Newling did not report perceptual disturbances. She did not describe obsessions, compulsions or phobias. There was no evidence of suicidal ideation. She did not reveal delusions. She was alert and oriented. Her memory for her adverse and distressing work related experiences was particularly acute.

47. Under the heading “Psychiatric Opinion” Dr Smith stated:

From the history that I have obtained and my own clinical examination it was my opinion that Ms Newling had in response to what she perceived as bullying, intimidating and harassing behaviour particularly by Inspector Thommeny emotionally decompensated. She developed an apprehensive expectation of further untoward events occurring in the work setting. She had difficulty controlling her worry. She became increasingly anxious, restless, keyed up and on edge. She described being easily fatigued. There was difficulty concentrating. She also experienced irritability. Her sleep patterns were disturbed.

Ms Newling’s mood became increasingly depressed. She was tearful. Her self esteem and self confidence had been significantly lowered. She described feelings of inadequacy, pessimism, despair and hopelessness. There was generalised loss of interest in pleasure and marked social withdrawal. She was ruminating about her adverse work experiences and the manner in which she had been dealt with by Inspector Thommeny. She felt helpless and powerless in the circumstances.

Following my examination I advised her family physician, Dr Bong, of my opinion. I recommended further psychiatric treatment. I introduced the tranquiliser Ativan in a dosage of 0.5mg to 1mg on an as required basis. I also introduced the hypnotic Imovane 7.5mg at night. I subsequently introduced the antidepressant Lexapro in a dosage of 10mg at night. I advised Allianz Insurance of my opinion. I expressed the opinion that Ms Newling required further psychiatric treatment. I referred her to the Anxiety and Depression group at St John of God Hospital.

Ms Newling has required in addition to these medications the utilisation of Atacand for her hypertension and Endep and Panadeine Forte for her pain.

48. Dr Smith continued:

It is my opinion that Ms Newling has a demonstrable outstanding record with the NSW Police Force. She has been a dedicated police officer and has served with distinction at the marine area command. The statements of Inspector McNulty and Senior Constable Gartrell attest to her excellent work record. The history that I have provided also attest to her work productivity.

49. Dr Smith then recounted Ms Newling’s complaints about the way Ms Thommeny dealt with her over rostering. Ms Newling’s complaints included that Ms Thommeny continually adopted an “abrupt and intimidating manner”; that she felt “confused and badgered”; and that she:

… felt devastated when Inspector Thommeny advised her that “she had plenty of people waiting to come into the Intel office”. She felt demeaned, humiliated and alone.

50. Dr Smith continued:

It should also be highlighted that Ms Newling’s office prior to Inspector Thommeny’s appointment has been recognised as the best practicing police intelligence operational marine unit in Australia. It is the only one of its kind in Australia. It is somewhat incongruous that the evaluation undertaken by Allianz has stated that the actions of her superiors had been reasonable. The standard of her performance has never been questioned and issues in this regard in my opinion are without substance.

51. Dr Smith continued:

I have noted that the psychologist who assessed Ms Newling has stated that she suffers from anxiety and depression and indeed an Adjustment Disorder with Depressed and Anxious Mood [this assessment does not appear to be in evidence]. I agree with the diagnosis established. I disagree however that the cause of her psychiatric disorder is due to the fact that her roster and work arrangements were about to change. Close examination of the difficulties experienced by Ms Newling in her interactions with Inspector Thommeny do in my opinion need to be closely examined by an impartial arbitrator in order to provide a more balanced perspective of the events that have occurred and which have had such a detrimental effect on Ms Newling.

Ms Newling has benefited from the treatment received to date but not to the extent that she could reengage at work.

52. Dr Smith went on to respond to twelve questions posed in MetLife’s letter requesting the report. Relevant questions (in italics) and answers were as follows:

1.   Is there a pain component to her psychological injury?

Ms Newling does have clinical evidence of a Chronic Adjustment Disorder with Depressed and Anxious Mood. I have not diagnosed her with a Post-traumatic Stress Disorder.

Ms Newling does have a chronic pain condition related to disc herniation at L4/5 and L5/S1. Whilst her pain condition does contribute to a modicum of emotional distress in my opinion this is a separate condition the significance of which should be directed to an orthopaedic surgeon. I would not accept that she has a chronic Pain Disorder.

…

5.   In your opinion do you believe that the Claimant will never return to work as a Police Officer.

In my opinion, Ms Newling will never return to work as a police officer given the adverse experiences she has been exposed to.

6.   Do you believe that the Claimant will ever return to a different occupation on a full time or part time basis before he reaches retirement age? We note that the Claimant is currently aged 33

Ms Newling may have the capacity to engage in alternative work to a limited extent. She will in all probability require further rehabilitation and retraining to assist her in potentially reintegrating into alternative work.

7.   If you believe that the Claimant will never return to work in any capacity from what date do you believe her to be totally and permanently disabled from?

As stated Ms Newling does suffer from a significant degree of psychiatric disability. I would defer the degree of restrictions related to her disc lesions to an orthopaedic surgeon.

…

11.   Has Mrs Newling expressed a desire and/or made any formal decision not to return to regular work?

Ms Newling has not expressed a desire to me to make any formal decision not to return to regular work.

12.   If you believe that the Claimant will not return to work in any other occupation outside of the police force can you please explain why?

As stated I am guarded in regard to Ms Newling’s capacity to reintegrate into alternative work given her lack of experience in that regard and her ongoing psychiatric symptoms as well as her loss of self esteem and self confidence. As stated she may require further detailed vocational evaluation and retraining before a definitive decision can be undertaken in regard to what work she can undertake. It is possible that Ms Newling may be able to engage in some work over the ensuing 24 years on a part time basis. I am not aware of what occupation she can undertake.

13.   As the Claimant is 41 years old do you believe that the claimant will never work in the next 24 year on a part-time or full time basis in a different occupation? If no Why?

[No response.]

53. Having received Dr Smith’s report, MetLife obtained expert reports on Ms Newling’s claim from its own consultants. Reports were obtained in February 2013 from Dr Paul Robinson, an orthopaedic surgeon, and from Dr Bradley Ng, a psychiatrist.

54. Dr Ng saw Ms Newling on 1 February 2013. He was provided with Ms Newling’s application; the workers’ compensation reports from Dr Crowle (October 2010 and March 2012) and from Dr Smith (January and April 2012); and Dr Smith’s October 2012 report to MetLife. Dr Ng recorded his findings on mental state examination as follows:

Ms Newling presented as an overweight middle aged woman in clear consciousness. She was casually but tidily dressed with appropriate grooming and hygiene. She was cooperative to a certain degree, however she refused to detail some of her psychiatric symptoms and this made the assessment difficult. Our rapport was superficial and she had reasonable eye contact. There were no speech or motor abnormalities. Her mood was distressed at times and affect was broad, reactive and congruent with her mood. There was no formal thought disorder or evidence of psychosis. There were no suicidal or homicidal ideas. Her cognition appeared to be grossly intact. Her insight was good and her judgement [sic] was reasonable.

55. Under the heading “Summary and Assessment”, Dr Ng stated:

This assessment was made difficult by Ms Newling’s reluctance to share details and to give a comprehensive history. However I do note that there was extensive documentation provided and I have relied on previous reports. Ms Newling continues to report a mixture of depressive and anxiety symptoms along with sleep disturbance, poor motivation and day time sleepiness. Given the limited information I have obtained in this assessment I would have to agree with Dr Smith’s diagnosis of an Adjustment Disorder with Depressed and Anxious Mood, Chronic. This is according to DSM-IV criteria.

…

Clearly Ms Newling is disenchanted by her time in the NSW Police Force. Even if she were to make a complete recovery it would be seriously risky for her to return to the Police as it would most likely exacerbate or re-aggravate her depressive and anxiety symptoms. For the purposes of considering Police employment she would be totally and permanently disabled.

When considering other work by way of experience or training I do note that Ms Newling does have reasonable office and administrative skills as exemplified by her work record. These skills are relatively transferrable to a situation outside of the Police Force. I do note that Ms Newling has made extensive changes to her lifestyle and is trying to move on. Throughout the assessment she stated that she did not want to remember the past as she wanted to move on and was distressed about remembering the past. Indeed she deliberately wanted to forget about it. If Ms Newling’s strategy is successful she will no doubt improve clinically. This would imply that her mental condition is not total and permanent.

However, if Ms Newling’s strategy does not work and the change of lifestyle and the change of scenery do not assist in her mental health I do note that she remains relatively under treated. She has had very few antidepressant trials. Her psychiatric treatment did not appear to be intensive. She has not had an in-patient admission. I am uncertain as to whether or not she attended any comprehensive day program. She did not see a Psychologist or Psychiatrist for intensive psychological therapy. Seeing a Psychiatrist once every three months would not be considered intensive therapy. I am puzzled as to her refusing antidepressant treatments when she appears to be regularly taking, albeit on an as needed basis, potentially habit forming benzodiazepines and hypnotics. This would appear to be incongruent.

Therefore from a psychiatric point view Ms Newling remains relatively under treated. She has not engaged in full treatment. Therefore I would not consider her totally and permanently disabled for other types of work.

Ultimately once removed from the work environment with a new life there is a fair chance that Ms Newling’s symptoms will gradually improve and she will be able to return to some type of work. However this is only considering her mental health condition alone. There may be other physical conditions which may prevent Ms Newling from attending work, wholly or partially.

56. Dr Ng then addressed various questions that he had been asked and gave answers which included the following:

12.   In your opinion, what is the claimant’s current work capacity?

Considering the severity of Ms Newling’s Adjustment Disorder it is my estimation that her Adjustment Disorder would currently render a partial and temporary incapacity. I see no psychiatric barrier in Ms Newling working outside the Police Force up to 24 hours per week.

13.   How are their functional capacity/daily activities impacted by their condition?

It would appear that some activities have been impaired by Ms Newling’s Adjustment Disorder. However I do note that she also has physical problems that have a greater disability as well.

14.   Do you believe the Claimant to be Totally and Permanently Disabled to ever working in an occupation where they are suited by means of their education, training or experience?

With regards to the Police Force I consider Ms Newling to be totally and permanently disabled. With regards to other occupations by means of education, training and experience I do not consider Ms Newling to be totally and permanently disabled given the fact that she remains under treated. There has also been a significant change in her lifestyle and there is a strong possibility that the prognosis and course of her Adjustment Disorder may change.

15.   Do you believe the Claimant will ever return to work within their education training or experience before they reach retirement age, given her age is currently 42?

I believe in my opinion there is a fair chance that Ms Newling will return to work within her education, training and experience before retirement age. Whether or not she chooses to is a completely different manner.

57. Dr Robinson, the orthopaedic surgeon retained by MetLife, saw Ms Newling on 5 February. Dr Robinson did not specifically identify the material provided to him for his report, but I assume it was the same as that provided to Dr Ng. Dr Robinson recorded the following under “Activities”:

She undertakes shopping on a daily basis to avoid excessive bending and lifting. Housework is undertaken as required, but most of the work is undertaken by her children. Her lawn is mowed by her son and washing is undertaken by her daughter.

She reads as a hobby and has 2 dogs which require walking in a limited fashion as pain dictates. She does stretching exercises at home. She drives an automatic vehicle because of the pain in her leg prevents her from driving a manual vehicle.

58. Following his examination, Dr Robinson reported his opinion as follows:

This lady continues to complain of problems which she relates to an incident occurring in November 1997. She has been treated conservatively for the ensuing low back pain. She has complained of intermittent problems which have continued since her discharge from the police force in November 2012. At this stage, she has subjective problems which are disproportionate to the objective findings, although she does have an alteration of the sensation in the left foot.

In respect to your specific questions:

1.   Diagnostic Findings:

What is your present diagnosis for Ms Newling’s condition?

The diagnosis is one of lower lumbar pain with a small disc protrusion, but with very little evidence of pathology which requires intervention. A MRI could be undertaken in order to establish if the protrusion is significant and requires such. With her other psychological problems it would be prudent at this stage to undertake any intervention as her psychological problems could intensify.

…

4.   Treatment Efficiency:

What forms of treatment do you currently recommend and what is your opinion regarding the efficacy of Ms Newling’s current treatment regime?

An exercise program would be helpful, anti-inflammatory medication, weight reduction and improving her fitness. An MRI as mentioned may be indicated if symptoms persist and particularly if they worsen.

5.   Motivation:

Is Ms Newling motivated to attempt to return to her usual occupational work on a full time or part time basis?

She did have good motivation, but has psychological problems and I do not believe she would be able to return to her work as a police sergeant as she has been medically discharged as being unfit for such.

…

7.   Work Related Abilities and Limitations:

Please kindly have Ms Newling describe in her duties in her previous roles. In light of Ms Newling’s information, please advise whether or not you consider the role as a sedentary type of work in nature and whether or not Ms Newlings is currently medically fit to do this type of work on a part time and full time basis.

She is not currently medically fit mainly because of her psychological problems as I understand them to perform any work. Until these have settled I believe that any work would be problematic to her.

Her housework is restricted and at this stage is undertaken as mentioned by her children. Thus she would be unable to undertake work even in a sedentary position at this time.

…

8.   Prognosis:

Is it your medical opinion that there is no possibility for Ms Newling to return to work in her usual occupation, what type of work is suitable for Ms Newling in view of her education, training experience and current condition?

I do not believe she will return to any police activity unless they are in a supervisory role and she is not subjected to the psychological stress which you have mentioned she was in the reports you have sent.

Do you consider that Ms Newling has become incapacitated to such an extent as to render her unlikely ever (until age 65) to engage in any gainful profession, trade or occupation for which she is reasonably qualified by reason of education, training or experience?

I do believe she will be incapacitated until her psychological problems have settled. She is 42 years of age and I would believe that if such are improved, that she should be able to return to some form of useful employment which would be an advantage to her, but this may take several years.

With respect to her spine I believe that her symptoms at this stage do not require intervention, but an MRI would be helpful in definitely deciding such opinion.

59. In March 2013 a vocational assessment report was obtained from an organisation known as Rehab Management. Ms Newling was seen by Carly Donaghey, a rehabilitation consultant, on 19 March. Ms Donaghey’s report recorded the following under “Functional Tolerances”:

Task/Activity	Reported	Observed
Sitting:	Ms Newling reported that she is able to sit for a maximum period of five minutes before increased pain symptomatology necessitates a period of standing.	Ms Newling was observed to intermittently stand throughout the entirety of the assessment interview at varying five to ten minute intervals.
Standing:	In respects to standing Ms Newling commented that she can stand for “less than five minutes” before increased pain and sciatica requires her to sit.	When standing Ms Newling was observed to lean against the wall or pace slowly. She was observed to stand for brief periods of less than five minutes consistently throughout the assessment interview before opting to sit.
Walking:	Ms Newling stated that she was unsure in respects to how long she could walk for.	Not observed.
Lifting:	Ms Newling stated that she engaged in occasional lifting and carrying of objects no more than five kilograms in weight.	Not observed.

60. Under “Other health concerns” Ms Donaghey recorded that Ms Newling was taking medication for hypertension. Ms Newling stated that her blood pressure continued to fluctuate and resulted in occasional symptoms of headaches, fatigue and chest discomfort.

61. The report recorded that Ms Newling was not seeking work. It identified a number of skills based on Ms Newling’s education, training and employment which would be transferrable to other occupations. The report concluded:

Ms Newling’s employment experience, education and training means she appears to meet the minimum entry requirements for pursuing employment within the following occupational settings:

●   Administration Officer

●   Executive Assistant/Personal Assistant

●   Court and Legal Clerk

●   Client Services Officer

62. Further details of each of these occupations were provided in the supplementary report provided in May. The supplementary report contained a review of employment vacancies from an internet review for the inner city region of Sydney.

63. Meanwhile, MetLife had surveillance carried out on Ms Newling. Ms Newling moved to Pottsville, on the far north coast of New South Wales, towards the end of 2012, where she continues to live. Surveillance footage was obtained of her there in January 2013 and then in May/June 2013.

64. The footage obtained in January 2013 included a visit to a shopping centre at Robina over the border in Queensland. Ms Newling was described in the accompanying report as having walked in and out of numerous stores for two hours during this visit. The surveillance reports for May/June included a visit to a local shopping centre on 30 May where footage was obtained of her pushing a shopping trolley and carrying grocery items and of walking her dog on 3 June, in the course of which she was reported to have bent at the waist to pick up the dog. The dog was a small one. Footage was also obtained of her visiting shops and a petrol station on 4 June.

65. MetLife then obtained further reports from its doctors. In his further report of July 2013, Dr Ng referred to Dr Robinson’s February report, to the surveillance reports and the vocational assessment report. He stated that he had reviewed the videos provided. He stated:

I have reconsidered my original report. I do note that I have previously diagnosed Ms Newling with an Adjustment Disorder with Depressed and Anxious Mood, Chronic. I noted that it was of mild to moderate severity. The information that I have at hand does not suggest that Ms Newling has a moderate or a severe psychiatric disorder. Therefore I have reviewed my diagnosis to Adjustment Disorder with Depressed and Anxious Mood, Chronic, Mild Severity. There is a chance that Ms Newling may not currently have an active psychiatric disorder.

The information that I have been provided with, of course, raises the validity of Ms Newling’s reported symptoms. The surveillance reports would indicate that Ms Newling does not have a psychiatric disorder that would be considered of moderate severity or severe. The level of functioning also described by Dr Robinson would also go against such a disorder.

I have considered the following vocations:

●   Administration Officer

●   Executive Assistant/Personal Assistant

●   Court and Legal Clerk

●   Client Services Officer

In my opinion, there is no psychiatric disorder preventing Ms Newling from performing any of these occupations on either a part time or full time capacity. My own findings and the additional information provided all suggest that the psychiatric disability that Ms Newling has, if valid, would not prevent her from those occupations in either a part time or full time capacity.

66. Dr Robinson was also invited to reconsider his report. He was provided with the surveillance material, the vocational assessment report and Dr Ng’s updated report. He reviewed and commented on the video surveillance. He relevantly reported his opinion as follows:

Following the above and particularly the video evidence it would appear that Ms Newling is able to undertake the activities suggested [in the vocational assessment report]. She was not seen to be doing any mowing, but does shop as mentioned in my previous report. She states that she does walk her dog and this was shown in the video, but she stated to be that her capacity to undertake such was decreased which was not obvious in the evidence. I suggest that she could return to activities from a physical point of view.

The suggestion from Dr Ng is that she could return to at least 24 hours work and it would appear from the evidence presented and indeed her own history, that this would be possible.

Thus, in answer to your report request, I would believe that there has probably been an overstatement of the pain in her spine as she is able to bend and lift without difficulty particularly as seen when picking up her dog. She also had no evidence of any problems in the video surveillance with movement, etc.

Thus, I believe she has no serious physical problem which would prevent her from working. I would agree with Dr Ng that she could return to some employment if such was available. He states that she is under treated, but I am unable to comment on this as he is the specialist in this field.

I would believe that she should thus be able to undertake work as an administrative officer, a personal assistant or executive assistant.

A court and legal clerk may re-awaken some of her psychological problems, but this would have to be determined.

67. MetLife then invited Dr Smith to respond. For the purpose of his response, Dr Smith was provided with the reports from Dr Ng, Dr Robinson and Rehab Management, and also with the surveillance reports. Dr Smith began by commenting on the Rehab Management report:

I have noted that the assessment undertaken by Ms Carly Donahey [sic],

rehabilitation consultant, has delineated the psychological symptomatologies

that were reported to her by Ms Newling. …

…

I have previously expressed the opinion that Ms Newling would be unable to work more than one or two days at a time and less than 20 hours per fortnight. I have also expressed the view that she may have significant difficulty engaging in the open labour market. I confined my attention solely to her psychological impairments and not her orthopaedic ones.

Ms Newling may be able to undertake the tasks listed in the restricted capacity to the extent of 20 hours per fortnight. I doubt very much whether she would be able to relate as a court and legal clerk or as a client service officer. If she was in a supportive environment she would have been able to undertake the work of an administrative officer or an executive assistant or personal assistant. Given the length of time that she has experienced her symptoms I am most doubtful that she will improve to any significant extent in regard to her capacity to undertake such work.

68. Dr Smith’s comment on the video surveillance was:

The video surveillance essentially depicts Ms Newling's activities as a single mother of two children, one of whom is disabled and suffers from both dyslexia and epilepsy.

The video surveillance is consistent with my own previous observations of Ms Newling. It revealed her to be neither smiling or laughing when she is with her children. She is not window shopping. I have taken up the incident depicted on 8 January 2013 at Robina shopping centre. The event does not depict the argument she had with her daughter about the book she bought. Her son is noted to be leaving the shop and displaying his frustration with her. Ms Newling has advised me that the events with her children were quite trivial.

The video surveillance material does not depict the significant degree of social avoidance and agoraphobic symptomatologies experienced by Ms Newling since she has left the NSW Police Force. She spends a considerable amount of time at home.

…

The video surveillance does not detract from the extent of the marked degree of psychiatric symptomatologies Ms Newling has experienced. Video surveillance is unlikely to demonstrate the prevalence of a psychiatric disorder.

69. Dr Smith’s response to Dr Ng’s reports was:

I disagree with Dr Ng's opinion that Ms Newling is capable of working outside the NSW Police Force up to 24 hours per week.

I disagree with Dr Ng that Ms Newling has been "under-treated". Ms Newling has undergone appropriate psychiatric and psychological treatment but this has not been successful in ameliorating her symptomatologies.

I disagree with Dr Ng that her prognosis and the course of her Adjustment Disorder may change. This has not occurred over time and I would view her symptomatologies as chronic, indelibly imprinted and ingrained.

I also disagree with Dr Ng's opinion pertaining to her prognosis that there was "a fair chance" that the member would return to work within her education, training and experience before retirement age and that whether or not she chooses to do so is a completely different matter. This is speculation at best on Dr Ng’s part.

I note that Dr Ng modifies his opinion following the review of the vocational

assessment report and surveillance footage. It remains unclear why Dr Ng is emphatic in stating that there is a no psychiatric disorder based solely on the surveillance material or vocational evaluation undertaken.

70. Dr Smith’s comment on Dr Robinson’s reports was:

I have taken note of the independent report of Dr Paul Robinson dated 5 February 2013. Dr Robinson is an orthopaedic surgeon and has commented that she would be incapacitated until such time that her psychological problems have settled. The fact of the matter remains that her symptoms have not improved. They have stabilised and I have expressed my opinion in regard to her vocational evaluation based upon the fact that she has achieved maximum medical improvement.

I have noted that Dr Paul Robinson’s opinions in regard to her functional tolerances differ from those of the rehabilitation consultant.

I would defer to an orthopaedic surgeon in regard to the physical limitations experienced by Ms Newling. I can state that pain is very subjective and it is very difficult to state with any degree of certainty that there has been “an over-statement” of the pain. I have also noted that Dr Robinson has been quite clear in stating that she could not work based upon her psychiatric problem.

71. Dr Smith’s conclusion was:

The video surveillance material upon which excessive reliance has been placed does not cause me to modify the opinions I have originally expressed to you in regard to Ms Newling’s incapacity in returning to some form of paid employment. Indeed given the extent of her psychiatric disability I am of the view that she will not return to some form of employment before she reaches retirement age at 65 years of age.

72. MetLife’s file also contained a short medical report prepared by Dr Bong in November 2012. The report referred only to Ms Newling’s back pain; it did not refer to her having any psychiatric condition. The report stated:

[Ms Newling] will not be able to return to work as a police officer. She is not able to sit, stand nor walk for a long period of time because of the radiculopathic pain.

She will not be able to work unless her back pain improves. And she may try surgery as recommended by her neurosurgeon Dr Kwok.

She is totally and permanently disable [sic] from 28/11/2011.

She takes analgesic and has hydrotherapy to help with her pain.

She had decided not to return to work.

She had reached maximum improvement without the surgery at present.

…

As there is a possibility of surgery may help with her pain I have strongly recommended surgery to Kim.

73. The report appears to have been prepared in answer to a series of questions. The questions are not in evidence nor is there any other evidence to explain the circumstances in which the report was written. The evidence does not appear to identify when the report came into MetLife’s possession.

74. MetLife’s file also contained a lengthy statement, described as a “Psych Report Statement” prepared by Ms Newling with the assistance of her parents and forwarded to MetLife in February 2014. About six weeks later Ms Newling sent to MetLife an email attaching a further report from Dr Smith addressed to the general practitioner Ms Newling was visiting after her move to Pottsville, Dr Ramana Panda. Ms Newling’s email indicated that a report was also being prepared on her claim from Dr Panda, but if such a report was completed, it is not in evidence. The evidence does not otherwise indicate the context in which Ms Newling’s statement and Dr Smith’s report were prepared.

75. Ms Newling’s statement began:

Resulting from my psychological injury I received whilst employed by NSW Police, at the Marine Area Command, my life has irrevocably changed. Prior to my injury I was a confident, effective member of the police force. I performed my professional duties at a very high level managing an intelligence unit. I was capable of communicating with all levels of management, both within the service and with other professionals from various government agencies, for which I received commendations. I studied and received professional qualifications relevant to my duties while working fulltime and being a single mother. I coordinated complex, multi-jurisdictional operations both State and interstate. I was ambitious and was looking forward to a long and rewarding career within the Police Force.

My mistreatment by senior officers and their mismanagement of my office has resulted in me now suffering from severe anxiety, indecision, panic attacks, sleep deprivation and depressive mood. Management ignored and refused to implement necessary recommended OH&S changes. This resulted in a significant increase in workloads and placed greater pressure upon me and my staff’s ability to perform at the previous high levels.

My anxiety, depression and panic attacks have prevented me from maintaining friendships with my previous friends within the force. I find it distressing when a conversation reminds me of all that I have lost. The loss of my career and the pride I had when carrying out my duties has left me with depression. After leaving the force I have become withdrawn and reluctant to make new social contacts. I constantly fear that this would no doubt lead into a conversation as to my prior occupation as a police officer and the inevitable question “why did you leave”. To this day I feel unable to discuss my departure from the police force without causing great mental anguish and supressed anger.

76. Ms Newling went on to say this about shopping:

The previously enjoyable experience of shopping, meeting and talking to people triggers my anxiety and becomes a challenge. I was once blessed with a great memory and an ability to concentrate and solve complex tasks. However, now when going shopping I have to write notes about what I want but I forget where particular shops are. On a number of occasions I have forgotten where I have left the car prior to shopping. I have contacted my mother so she can reassure and calm me down sufficiently for me to locate the vehicle. I shop as quickly as I can and return to the safety of my home. These incidents continue to cause me great anxiety and I suffer panic attacks as result. When attending large shopping centres I now take photographs of where I am, where my car is and what I’m doing to reassure myself that I’m not going to get lost. I frequently forget what task I’m doing at any given time, which results in me repeating the task I did just completed. On more than one occasion I forget to pay household bills even though it was the purpose of why I went down to the shops.

77. Ms Newling referred to her move to Pottsville:

I moved to a small country town in Northern NSW for a new start. However, I continue to have extreme mood fluctuations, and have become very intolerant of other people. I would prefer to stay at home with my children where I feel safe and I am in my routine. I have a few very close friends who have supported me through this very difficult time and when they visit I ask that they do not talk or refer to the police force in conversation. If anyone refers to the police, I leave the room as I quickly become depressed.

Following my injury I have found it very hard to function at a normal level, handling my children and my home duties. I am very mindful of my mood around my children. I have to force myself to participate in their social outings. They have become aware of this reluctance and these outings are restricted to a swim at the nearby beach or a visit to the movies where once seated contact with other people is minimal. I have resorted to watching TV and DVD’s to avoid going out. I prefer to be at home with my children and the routine that I have established. I derive comfort within my own home when my children are close.

The stress created by my departure from the force has had a profound effect on my sleeping patterns. Nightmares are common place and I often wake crying or in fright, nightmares are common. I average 3 or so hours of broken sleep per night. I am very reluctant to take medication to overcome this as I have a son who suffers a medical condition and I have to be alert enough to care for him if required.

78. Ms Newling went on to complain of financial insecurity, the protraction of “this matter” and the “ongoing attendance at medical consultations for reports”. The statement does not identify what these consultations were, and they may have included consultations concerning Ms Newling’s workers’ compensation claim. Ms Newling did not attend any consultations with MetLife’s experts about her TPD claim after February/March 2013.

79. Dr Smith’s report was dated 20 March 2014. It was very short, stating:

I am writing to advise that following recent discussions and examinations of Ms Newling it is my opinion that she is incapable of engaging in any employment. Accordingly I have supported her application for a total and permanent disability pension with Metlife.

I would of course be pleased to discuss any outstanding issues with you and if that is the case please do not hesitate to contact me.

80. MetLife’s file also contained a number of other orthopaedic reports which appear to have been provided by Ms Newling’s solicitors in March 2015 (see [116] below). These included five reports from Dr Scougall from 2010 and two further orthopaedic reports from 2014.

81. Dr Scougall’s diagnosis in his 2010 reports is set out at [29] above. He assessed Ms Newling as having a fifteen per cent permanent impairment of her back and a seven per cent impairment of her left leg.

82. The first 2014 report had been obtained from Dr Roger Pillemer, an orthopaedic surgeon, by Baker & Edmunds in August 2014, for the purposes of Ms Newling’s workers’ compensation claim. Dr Pillemer assessed Ms Newling as having a twelve per cent whole person impairment. He recorded that surgery had been discussed with her previously but she was very reluctant to consider it “at the present time”. He concluded:

FUTURE TREATMENT:

Understandably Ms Newling is very reluctant to consider surgical treatment as she knows a number of people who have in fact been made worse by surgery and are now on their second and third operations. She only knows one person who has had successful spinal surgery.

Surgery has been offered to her as mentioned, and in my opinion at this stage the sensible thing for her to do is to see a spinal surgeon and have an MRI carried out and discuss the possibilities of surgery. This would necessarily be a decompression with possible fusion at the lumbosacral level.

Without surgical treatment it seems predictable that she is going to have significant ongoing problems with her back and her left lower limb, and although surgery could not be guaranteed to relieve her symptoms, the chances are far more likely than not that she would be much better off than she is at the present time. This would obviously be a decision that Ms Newling would need to make with her treating specialist.

FITNESS FOR EMPLOYMENT:

In my opinion she would not be fit for pre-injury duties at this stage, and in fact noting the extent of her discomfort and the limitations of straight leg raising, it is unlikely that she would be able to get back to any gainful employment at the present time.

In my opinion Ms Newling does require domestic assistance which at the present time is being given by her children. I would suggest that she would require say three hours of assistance per week.

PROGNOSIS:

In the absence of surgical treatment it seems unlikely that improvement can be anticipated. Prior to surgery an S1 perineural injection might well be beneficial for her and worth trying.

83. In September 2014 Ms Newling was the subject of a medical examination and report by Dr Vijay Panjratan, another orthopaedic surgeon. Dr Panjratan saw Ms Newling at the request of a firm of solicitors, Bartier Perry. The evidence does not directly reveal for whom they were acting; presumably it was for the insurer in Ms Newling’s workers’ compensation claim. Dr Panjratan answered a series of questions posed by Bartier Perry. The questions and answers included the following:

●   Your findings on examination of the worker’s lumbar spine and left lower extremity

The findings on examination today revealed that Ms Newling was significantly disabled. Her spine was stiff. Flexion and extension was quite restricted. Lateral flexion was restricted. Rotation was not too bad. The left straight leg raise was only 30°. She had parasthesia going down the left leg. The sensations were altered on the left side as compared to the right. Motor power was normal. She could walk on her heels and toes.

…

●   Your opinion as to whether the worker’s employment was a substantial contributing factor to the condition and or pathology in the lumbar spine and left lower extremity

I am not sure nearly 17 years after the incident that a fall down the stairs could explain her current symptoms. The pain would appear to be mechanical in nature.

I am not convinced that the worker’s employment is a substantial contributing factor to the present condition and or pathology in the lumbar spine and left lower extremity at this point, when there was no significant pathology in the imaging at the time of the injury.

●   Whether the worker’s overall impairment has reached maximal medical improvement.

Yes. Ms Newling has reached maximal medical improvement.

●   Your opinion as to whether or not the condition has deteriorated since November 2002 at which time it was agreed that she was suffering 15% impairment of the back and 5% loss of efficient use of the right leg at or above the knee? If so, please provide your assessment of the degree of impairment of her lumbar spine and left lower extremity resulting from the incident on 27 November 1997 under the table of disabilities.

It is clear that Ms Newling’s condition has deteriorated since the Settlement in 2002. She has had increasing symptoms and radiculopathy.

Ms Newling now has a 20% impairment of the back as compared to a most extreme case.

Ms Newling has a 10% loss of use of the left leg at or above the knee as compared to a most extreme case.

Assessment of claim

84. In March 2015, MetLife wrote to Ms Newling (with a copy to FSS). The letter was referred to in the proceedings as the “procedural fairness letter”. It stated:

Our assessment into your claim is now at a stage where we would like to invite you to review the list of documents/materials that we have acquired during the course of our assessment process. This process enables you to become aware of all the documents/materials that MetLife will rely upon when making a recommendation and gives you the opportunity to review those documents/material where we consider there to be adverse or possible adverse information.

We draw your attention to the list of documents/material. As requested by the Fund Trustee, we have enclosed a copy of any adverse or possible adverse documents/material for you to review and make any submissions with respect to these documents that you would like us to take into consideration when making a recommendation on your claim.

Along with your submission, we invite you to submit any additional medical information, including medical reports, or other evidence that you believe will assist in the assessment of your claim for total and permanent disability benefit.

85. The letter included two lists of documents (including for this purpose, DVDs recording surveillance footage). The first apparently contained the documents which MetLife considered relevant to the assessment. The second list was a subset of the first. The documents in it were said to be drawn to Ms Newling’s attention as containing “possible adverse information”. The documents identified were:

(a)   Dr Smith’s report of October 2012;

(b)   the surveillance DVDs and surveillance reports;

(c)   the Rehab Management Vocational Assessment Report and supplementary labour market analysis;

(d)   Dr Ng’s reports of February and July 2013; and

(e)   Dr Robinson’s supplementary report of July 2013.

86. FSS passed the letter on to Ms Newling’s solicitors, Walter Madden Jenkins (“WMJ”). After obtaining copies of some of the relevant documents on 23 April, WMJ sent a letter in the form of submission to FSS. FSS then forwarded the submission to MetLife.

87. The submission was nine pages long. WMJ provided a number of further reports which they requested MetLife to take into consideration. These included five 2010 reports from Dr Scougall and the 2014 reports of Dr Pillemer and Dr Panjratan (see [82]-[83] above).

88. After some preliminary comments about the test to be applied by the insurer, WMJ’s submission addressed the evidence under five headings, which corresponded with the material which had been identified in MetLife’s procedural fairness letter as containing potentially adverse information (as set out at [85] above).

89. Dr Robinson’s July 2013 report: WMJ’s submission argued that the July 2013 report should not be viewed in isolation from Dr Robinson’s earlier report of February 2013. WMJ quoted from the earlier report about Ms Newling’s housework being restricted and being unable to undertake even sedentary work (see [58] above). WMJ also quoted Dr Crowle’s opinion from her March 2012 workers’ compensation report that Ms Newling was not at the time fit for work with the Police Force or with any alternative employer (see [41]-[42] above).

90. WMJ acknowledged that Dr Robinson’s opinion had changed after he viewed the surveillance footage and he now believed that Ms Newling had no serious physical problem, but argued that this view was contrary to the 2014 workers’ compensation reports from Dr Panjratan and Dr Pillemer (see [82]-[83] above). The submission also picked up the observations made by Dr Smith that pain was “very subjective” and that it was “very difficult to state with any certainty” that it was being overstated (see [70] above). On the strength of this, WMJ submitted that Dr Robinson’s doubts about Ms Newling’s symptoms should be disregarded.

91. WMJ also referred to the “long-standing and well documented nature” of Ms Newling’s back injury. WMJ stated that Ms Newling had been restricted to thirty hours per week because of her back injury, and that the further reduction in her hours in 2009 (see [22] above) was a response to an increase in lower back pain.

92. WMJ submitted by reference to Dr Pillemer’s 2014 report that improvement could not now be expected. WMJ said:

…Thus it is logical to conclude, if indeed our client’s psychological condition improved to the extent she was again able to engage in gainful employment (and we say it hasn’t to date and will not in the future), she would still be restricted to her previous hours.

In the circumstances, we submit a position requiring at most 14 hours per week, and taking into account the travel restriction, is unlikely to be a feasible option for any employer and, taking a commonsense approach to the issue, could not reasonably be said to be gainful employment.

93. Dr Ng’s reports: WMJ’s submission referred to Dr Ng’s conduct having been the subject of a complaint by Ms Newling, without identifying the complaint or any significance it might have had. WMJ quoted Dr Ng’s remarks about Ms Newling being under-treated (see [55]-[56] above) and his opinion that there was no psychiatric barrier to Ms Newling working outside the Police Force for up to twenty-four hours per week (see [56] above). In response, WMJ quoted Dr Smith’s opinions to the contrary ([69] and [79] above) and submitted that as the treating practitioner Dr Smith’s view should be preferred. WMJ added:

With respect to Dr Ng’s opinion that there is no psychiatric barrier to working for up to 24 hours per week, while we disagree with this opinion in any event, we also contend our client’s injuries cannot be considered in a “vacuum”. Our client has a well-documented history of orthopaedic injuries which have been accepted as hurt on duty and which also necessitated a restriction in her hours such that at the time she reported off work for the final time, she was only working up to 14 hours per week. Her orthopaedic condition has not improved, and in our submission if she was indeed fit for any work (and we reiterate our position she is not), this work could be performed at a maximum of 14 hours per week as per her previous restriction.

94. WMJ next referred to Dr Ng’s question as to the validity of Ms Newling’s reported symptoms (see [65] above). In response, WMJ relied on Dr Smith’s response concerning the video surveillance (see [68] above). WMJ repeated the point that Dr Smith was the treating doctor and submitted that the doubts raised by Dr Ng “should be completely disregarded”.

95. WMJ next referred to the opinion in Dr Ng’s July 2013 report that there was no psychiatric disorder preventing Ms Newling from undertaking the occupations identified by Rehab Management in a part or full-time capacity (see [65]) above). In response, WMJ quoted Dr Smith’s response disagreeing with Dr Ng (see [69] above) and again repeated that Dr Smith was in a better position to make assessments of Ms Newling’s treatment, credibility and capacity for employment as her treating psychiatrist.

176. Dr Crowle seems to have been told, or assumed, that when Dr Bong certified that Ms Newling was fit only for restricted duties in May 2009, this was on account of her back condition. But that was not the impression created by Dr Smith’s report to MetLife, which further suggested that Ms Newling’s period of leave from 28 August to December 2009 was attributable to the psychiatric condition Dr Smith had diagnosed (Court Book, p. 143-144). Nor does it sit comfortably with the allegation by Ms Newling of aggravation of her back injury at the hospital, which only took place on or after 8 June. Dr Scougall in his report of September 2010 pointedly drew attention to inconsistencies between what he was told by Ms Newling about the date of her hospital visits and what the hospital records showed (Court Book, p. 163-164). And it is clear from reading between the lines of Dr Smith’s account that Ms Newling’s superior in the Police Force, Ms Thommeny, was treating her leave applications with scepticism.

177. It is unnecessary for the Court to try to get to the bottom of whether this scepticism was justified, nor was it necessary for MetLife to do so. In my opinion, it was reasonably open to MetLife to proceed as it did by obtaining an expert orthopaedic opinion from Dr Robinson which directly addressed the TPD policy issues. Once MetLife had done so, it was under no obligation to give decisive weight to Dr Crowle’s earlier opinion, especially when that might only lead to further inquiry about the circumstances in which the opinion was given.

178. Counsel for Ms Newling criticised Dr Robinson’s conclusions. Counsel argued that the surveillance constituted an insufficient basis for doubting that Ms Newling had back problems as she claimed.

179. These submissions overlook two points about Dr Robinson’s reports. First, Dr Robinson’s conclusions were not wholly based on the surveillance. In his assessment of Ms Newling which took place in February 2013, before he had seen the surveillance reports, Dr Robinson reported that Ms Newling’s “subjective problems” were disproportionate to the objective findings of his examination” (see [58] above).

180. The second point is that it was not MetLife’s responsibility itself to try to make a medical assessment of Ms Newling’s disability. Dr Robinson reported having viewed the surveillance footage himself. Having examined Ms Newling about six months beforehand, he was in an ideal position to judge whether the footage was inconsistent with her earlier presentation. MetLife was entitled to rely upon reputable medical opinion, and I am not persuaded that there was any reason why MetLife should have second-guessed Dr Robinson’s opinions in this regard (in passing, I note that neither party submitted that I should myself view the surveillance footage, and I have not done so).

181. It is true, as counsel for Ms Newling pointed out, that Dr Smith responded to Dr Robinson’s report. But in doing so Dr Smith limited himself to highlighting what Dr Robinson said about Ms Newling’s alleged psychiatric condition (see [70] above). Dr Smith acknowledged Dr Robinson’s expertise on orthopaedic matters and specifically deferred to that expertise, as properly he needed to. Counsel also referred to the 2014 reports from Dr Pillemer and Dr Panjratan but those reports addressed a separate issue and did not consider the surveillance footage. Counsel submitted that MetLife should have sought a response to Dr Smith from Dr Crowle, but no such suggestion was made to MetLife by WMJ at the time.

182. In these circumstances, there was no direct response from an orthopaedic expert to Dr Robinson’s report. For practical purposes, Dr Robinson’s observations of Ms Newling when he examined her in February 2013, and his conclusions in July 2013 having seen the surveillance, were unchallenged. In my opinion, MetLife was under no obligation to accept, in the face of Dr Robinson’s views, that Ms Newling’s ongoing back problems were themselves disabling.

183. Counsel for Ms Newling criticised MetLife’s observation that Ms Newling was unwilling to have the back surgery which had been recommended by Dr Kwok (see [26] above). Counsel submitted that it showed that MetLife had rejected the opinions of Dr Crowle and Dr Bong that Ms Newling was disabled on the basis that the disability would be ameliorated by surgery.

184. It is not clear that MetLife’s observation was essential to its decision. Dr Robinson rested his opinion on Ms Newling’s actual condition and did not take into account a possible improvement from surgery. It is therefore not essential to deal with this submission. However I do not think it is sound.

185. I do not think counsel’s submission as to Metlife’s reasoning process is correct. I think it is more likely that MetLife’s observation reflected the comment made in the Information Summary (see [113] above) which was directed to Ms Newling’s credibility. The point MetLife was making was that one would expect that if Ms Newling were genuinely disabled she would have had the surgery. The evidence before MetLife did show that as at 2010 Ms Newling had decided to have the surgery. Although she was then hoping to have it paid for by workers’ compensation, the failure of her “appeal” (if that is what happened) did not necessarily rule it out. She may have received benefits as a result of discharge from the Police Force. Even if she lacked funds to pay for private surgery, Dr Crowle had raised the possibility of having the surgery done in a public hospital.

186. In my view, it was reasonably open to MetLife to think that this was something which Ms Newling should explain. Her evidence did not do so. Although Dr Pillemer recorded Ms Newling as being frightened of surgery in 2014, there was nothing from Ms Newling to explain her apparent change of mind since 2010. In my view, the comment made by MetLife was reasonably open.

187. As to the psychiatric issue, Metlife was generous in saying that Dr Smith had “consistently maintained” Ms Newling would be unable to return to work because of her psychiatric condition. Dr Smith’s report of October 2012 (see [52] above) did not rule out a return to work. It was only in his 2013 and 2014 reports (see [71] and [79] above) that Dr Smith stated that Ms Newling’s psychiatric condition was permanently disabling. But this was a matter of dispute. Dr Ng in his February report accepted Dr Smith’s diagnosis but that it was in circumstances where he had been unable to elicit full information from Ms Newling from which to make his own diagnosis (see [55]-[56] above). In his August report he raised the possibility that Ms Newling had no serious psychiatric condition at all.

188. Dr Smith observed in his 2013 report in reply that it was difficult to diagnose a psychiatric condition from surveillance. His comments on the surveillance (apparently formulated with the assistance of Ms Newling) also suggested that the observations in the video were consistent with his diagnosis.

189. These observations did not wholly respond to what Dr Ng had said. Dr Ng did not base his opinion solely on the surveillance. Even before seeing the surveillance, Dr Ng concluded in his February 2013 report that there was no psychiatric barrier to Ms Newling working up to twenty-four hours per week. Dr Smith made no response to this apart from a bald disagreement.

190. Dr Smith also rejected the suggestion in Dr Ng’s February 2013 report that Ms Newling might have been under-treated. This was picked up by counsel before me. But Dr Ng’s comment about under-treatment had to be understood in context. In his February 2013 report, Dr Ng explained that Ms Newling was trying to deal with her emotional problems by forgetting about her time with the Police Force and trying to move on. What Dr Ng was saying was that this strategy might succeed, in which case there was no reason why Ms Newling could not work for someone other than the Police Force in the future. Alternatively, if the strategy of trying to forget about the Police Force failed, because she had been relatively under-treated, there was a possibility that more intensive treatment might allow her to work. In my opinion, Dr Smith’s response did not meet this argument.

191. Ms Newling’s psychiatric claim raised issues which were quite different from claims of post-traumatic stress disorder of the type considered by Robb J in Hellessey v MetLife Insurance Limited (2017) 19 ANZ Ins Cas 62-152; [2017] NSWSC 1284. Dr Smith’s initial report of October 2012 described an “adjustment disorder” with features of depression and anxiety arising out of the allegedly unreasonable behaviour of Ms Newling’s superiors at the Marine Area Command. It was legitimate to ask why this episode should have given rise to a psychiatric condition persisting indefinitely into the future even after Ms Newling had ceased to work at the Marine Area Command and left the Police Force entirely. This was especially so when Ms Newling had eighteen years’ experience in the Police Force when her dispute with Ms Thommeny arose, and, on the account presented by Dr Smith in his October 2012 report and presented by Ms Newling herself in her February 2014 statement, she had had a very successful career up to that point.

192. Dr Ng was making the common-sense point that even if Ms Newling’s experiences at the Police Force prevented her from working for the Force again, they would not necessarily prevent her from working for other employers. Dr Smith may have had a compelling, or at least plausible, answer to that point based on his treatment of Ms Newling. But if so, he did not express it.

193. Dr Ng’s alternative point was that if Ms Newling’s difficulties proved intractable, further treatments were available. Although Dr Smith disagreed with this, he did not really answer it. His response was just a bare denial. He did not explain why other treatments would not be available or were unlikely to be effective.

194. Counsel emphasised that Dr Smith was Ms Newling’s treating psychiatrist. The argument was that in any conflict between Dr Smith and Dr Ng, Dr Smith’s opinion should be preferred as he was more familiar with Ms Newling’s circumstances. But the weight of this argument (which was clearly and repeatedly put on Ms Newling’s behalf by WMJ: see [93]-[95] above) was a matter for MetLife. It was open to MetLife to regard Dr Ng’s report as more persuasive (noting that the “onus” lay on Ms Newling and it would have been sufficient had Metlife thought that Dr Ng’s report left the extent of Ms Newling’s disabilities, if any, in doubt).

195. This is sufficient to justify MetLife’s conclusions on the psychiatric issue. But in my view there were other factors which could reasonably have supported a refusal to accept Dr Smith’s conclusions.

196. Dr Smith’s account of the dispute between Ms Newling on the one hand and Ms Thommeny and Mr Hutchings on the other which precipitated her claims of harassment and bullying were presented by Dr Smith entirely from Ms Newling’s point of view. Dr Smith had only heard one side of the story. He had no objective means of knowing that Ms Newling’s record of service with the Police Force was “outstanding” and to offer an opinion to that effect (see [48] above) was gratuitous. Similarly, he had no objective grounds to criticise the evaluation which had found Ms Newling’s superiors’ conduct reasonable or to suggest that there had been a lack of “balanced perspective” (see [49]-[51] above).

197. It might be said that the only aspect of the dispute between Ms Newling and Ms Thommeny which was relevant to treating Ms Newling was her subjective reaction. But if that is so, why did Dr Smith go into the objective circumstances at all? In my view, his approach could properly be seen as partisan.

198. I think Dr Smith’s report of August 2013 also had an element of advocacy in it. There was a tendency to focus on points which would help Ms Newling’s claim, whether they were within Dr Smith’s expertise or not. Thus, although Dr Smith stated that he would defer to the opinions expressed by Dr Robinson on orthopaedic matters, he immediately stated that pain could be difficult to detect from video surveillance. This seems understandable as a matter of common sense but it was not part of Dr Smith’s area of expertise and tended to distract attention from the conclusions, which were within Dr Robinson’s expertise, about the lack of clinical evidence for Ms Newling’s claimed difficulties. Dr Smith also went out of his way to refer to what Dr Robinson said about psychiatric matters when this was plainly not within Dr Robinson’s area of expertise at all.

199. The point is not so much the accuracy of what Dr Smith was saying, but his choice to comment on matters outside of his expertise and to do so in ways which favoured Ms Newling’s claim.

200. Dr Smith also expressed his opinions in ways which were gratuitously critical of the independent experts retained by MetLife. He described Dr Ng’s opinion about Ms Newling returning to work as “speculation at best” (see [69] above). He described reliance on the video surveillance as “excessive” (see [71] above). But if, as Dr Smith stated, he was deferring to Dr Robinson’s opinion on orthopaedic matters, he was in no position to say that the opinions Dr Robinson drew from the surveillance were unjustified. His observations were open to the interpretation that Mr Smith was denigrating those whose opinions he did not want to see accepted.

201. More fundamentally, there were aspects of Ms Newling’s psychiatric claim which invited scepticism, or at least further explanation. Ms Newling never sought to explain or justify her refusal to supply information to Dr Ng. Nor did she make any response of her own to the suggestion that the surveillance undercut her claim. Even if Dr Smith had been right in saying that the surveillance was not inconsistent with what had been reported to him concerning Ms Newling’s alleged psychiatric condition, it was not so readily reconciled with the claims made in Ms Newling’s later statement that she was unable to shop because of anxiety in dealing with people and inability to remember things (see [76] above).

202. Neither of these points was expressly referred to in MetLife’s letter of 15 July (although the latter point was made in the Information Summary: see [109]-[112] above). But they did arise out of the material provided to MetLife and, in my view, were matters on which an insurer acting reasonably could rely in refusing to accept Ms Newling’s claim.

203. In my opinion, there was nothing unfair or unreasonable in MetLife refusing to be satisfied that Ms Newling had a permanent and disabling psychiatric condition which would prevent her from working at all in the future.

Unreasonableness in assessing likelihood of obtaining work

219. The complaint on behalf of Ms Newling under this head was particularised as:

Failing to give any consideration to the real prospect of the plaintiff actually obtaining full time or part time employment within her education, training or experience, taking into account her physical and psychological capacity for work and her local labour market.

220. The Court of Appeal’s decision in Shuetrim stands for the proposition that the phrase “unlikely ever to engage” in work means what it says. It is not enough to demonstrate on the balance of probabilities that the claimant will not work again; the existence of a “real chance” representing a less than fifty per cent chance will be sufficient to defeat the claim. At the same time a “real chance” is not to be equated to a mere possibility or to speculation on the insurer’s part that the claimant will not work again. Counsel for Ms Newling contended that MetLife’s decision fell into the latter class. It was said that no proper consideration had been given to the real world likelihood or otherwise that Ms Newling would actually find a suitable job which she was capable of doing.

221. Counsel submitted that the four job descriptions identified in the Rehab Management Report were, for various reasons, not likely to be available to Ms Newling.

222. These submissions, and the equivalent submissions made to MetLife by WMJ (see [96]-[99] above) and FSS (see [127]-[128] above), tended to overlook that the onus was on Ms Newling to provide proof of her inability to work. In the present case, MetLife took it upon itself to obtain a vocational assessment report. But it was not enough for Ms Newling to adopt the defensive posture of seeking to pick holes in the suggestions which were put forward in that report. It was for Ms Newling to prove affirmatively to MetLife’s satisfaction that there was no real chance that she would work again.

223. There is no evidence that Ms Newling looked for alternative work after she left the Police Force. Indeed the evidence shows that she made a positive decision in November 2012 to take herself out of the labour market. That does not, of course, mean that she could not establish that she was and would remain unable to find suitable alternative work. But in a case such as this, the best evidence of inability to obtain work would have been evidence of actual unsuccessful attempts to obtain, or to hold down, relevant employment. The second best evidence would have been some form of expert assessment. Ms Newling presented neither of these. In relying solely on opinions from her doctors, which relied critically on what she had told them, she was taking on a difficult task.

224. By late 2008 Ms Newling had been working at a desk job in the Police Force for more than a decade. I have already made the point that on her own account (and that of Dr Smith) she worked dynamically and effectively in overcoming any residual effect of her back injury. The vocational assessment which identified a wide range of potentially suitable office jobs as available to Ms Newling accorded with what one would think based on common experience. In Ms Newling’s particulars, reference was made to the fact that the vocational assessment looked at jobs available in Sydney. No point was taken about this by counsel for Ms Newling in the argument at trial, presumably because as at the agreed date of assessment (March 2012) Ms Newling was living in Sydney.

225. In my opinion, having regard to the deficiencies in Ms Newling’s case on this point, and the uncertainties about Ms Newling’s claimed disabilities, it was reasonably open to MetLife not to be satisfied that she was unlikely ever to engage in suitable alternative employment in the future.

Questions for determination

226. The Court of Appeal decision in Shuetrim authoritatively confirms that it is an essential first stage of the plaintiff’s case to demonstrate, by reference to the material before the insurer, that the insurer’s decision to decline the claim miscarried. The subsequent Court of Appeal decision in Jones authoritatively states the test as being whether the decision was reasonably open to “an insurer”. But I think there remains room for debate about the jurisprudential basis on which the Court acts in these cases, and the implications for the nature of any second stage enquiry, or even whether one is required in all cases.

227. One way of analysing the basis for the Court’s intervention characterises the requirement that the decision be made fairly and reasonably as a condition of its contractual validity. Thus if the insurer fails to act fairly and reasonably the ensuing decision is of no contractual effect. This was the analysis adopted by Meagher JA in his concurring judgment in Jones where he said (at [6]):

If such an opinion fails to satisfy these requirements, it is not an opinion which has effect under the terms of the insurance. In that respect, its contractual efficacy is the same as that of a purported final and binding expert determination under a dispute resolution clause which is not in accordance with the contract: see, eg, Legal and General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 at 335–336 (McHugh JA). Furthermore, the result of such an opinion being found to have no contractual effect is that the court must determine the disablement question which the contract requires be addressed: see TAL Life Ltd v Shuetrim; Metlife Insurance Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68.

228. But this is not the only way in which the Court’s intervention may be analysed. An alternative analysis focuses on the duty of good faith and fair dealing owed at general law by MetLife as insurer to Ms Newling as the Insured Member under the policy: Sayseng at [36], [47]-[50]; Jones at [67], [69]-[72]. Amendments to the Insurance Contracts Act 1984 (Cth) in 2013 (not relevant in Shuetrim or Jones or in the present case) create a statutory duty to this effect also (see s 13(3)). There seems no reason why breach of this duty would not sound in damages (if a statutory or common law duty) or equitable compensation (if an equitable duty). Thus, if the Court is satisfied as a result of the first stage that the decision to refuse the claim involved a breach of duty, the second stage would be an enquiry into the loss or damage flowing from that breach.

229. The difference in analysis is not merely academic. If the first analysis is followed, and the conclusion is that the purported decision is of no contractual effect, then the parties are left in a position where there has been no decision in law. The court may then step in and decide the contractual issue for itself. But it may be open to question whether the court must do so in every case.

230. The court’s intervention in such cases has been explained on the basis that the contractual mechanism for determining the claim has broken down as a result of the insurer’s own fault, or at least without the fault of the insured: McArthur v Mercantile Mutual Life Insurance Co Ltd [2002] 2 Qd R 197; [2001] QCA 317 at [63]-[69]; Shuetrim at [181]. But in a case, such as the present, where the insurance contract provides for a right of review, does an invalid decision by the insurer really mean that the contract mechanism has completely broken down? Counsel for Ms Newling pointed out that although MetLife agreed to accept the outcome of any review, the review was not expressed to be binding either on FSS as trustee or on Ms Newling as the insured party. But I do not think that matters for present purposes. The important point is that MetLife undertook to abide by the decision of the CRC, an independent body. The lack of evidence in the present case makes it impossible to know what particular complaints were taken to the CRC and what MetLife’s response was to them. But in principle it should have been possible to address complaints about the fairness or reasonableness of the procedure, or the cogency of MetLife’s expressed reasons for its decision, by way of review to the CRC. Must the Court conduct its own investigation into the facts in such circumstances?

231. It is not clear from the report in Edwards whether the policy in that case contained any provision for independent review. The policy in Shuetrim was the same as the policy in this case, but there is no reference to the review power in cl 9 in the judgment. It is not clear from the judgment in Jones whether the policy in that case contained any provision for independent review. In my view, even if MetLife’s decision in this case had been unreasonable or unfair, it would have remained open to question whether the Court should intervene unless satisfied that the CRC process likewise miscarried.

232. If the alternative analysis is adopted based on an award of damages for breach of the insurer’s duty, a different set of questions arise. At the second stage the Court is not concerned any more with the decision in fact made; rather the Court must determine what decision would have been made had there been no breach. This raises an issue of causation. If the Court finds that the decision breached the insurer’s obligation of fairness and reasonableness, the Court must determine what the decision would have been had the insurer acted fairly and reasonably. If the Court finds that in that event the claim would have been allowed, then damages can be recovered for the value of the claim. If the Court is not satisfied that the breach made any difference, then the claim will fail.

233. Such an approach would result in a second stage enquiry with a different focus. If the flaw identified in the first stage were confined to the reasoning process, then the second stage enquiry should arguably be limited to the material before the insurer. The second stage, like the first stage, would be a purely “paper” exercise and there would be no room for evidence to be given on the actual state of disability and employability of the plaintiff.

234. If the breach involved the fairness and reasonableness of the process itself, the factual enquiry would be wider. The Court would have to decide what evidentiary material and what submissions would have been put before the insurer had the process been carried out fairly and reasonably. The Court would then have to decide what decision the insurer, acting fairly and reasonably would have made on that material. But in such an enquiry the actual facts of the plaintiff’s condition would still not be directly relevant; they would be relevant insofar only as they might inform the court’s finding as to the material which would have been put before the insurer. If, for instance, the plaintiff was being represented in his or her dealings with the insurer by solicitors, the critical question would be what the solicitors would have done and the evidence available from the plaintiff would only be relevant to the extent that it could be shown that the solicitors would have put it before the insurer.

235. In a case where an independent review was available, arguably it would be necessary to establish causation to show that the review also miscarried, and did so because of the insurer’s prior breach of duty.

236. I mention these matters because this judgment deals with proceedings for the separate and preliminary determination of agreed questions. The formulation of such separate questions is a critical step in ensuring the success (in the sense that it will result in a saving of time or costs) of the separate hearing. If orders are to be made for the separate hearing of the first stage, it is essential to understand what it is being decided at the first stage and what will be left for determination at the second stage.

237. Typically the argument in favour of a separate hearing is based on the assumption that the second stage will involve an extensive factual investigation to the merits or demerits of the plaintiff’s claim as a matter of fact. That was the way it was put in the application in this case (see Newling v FSS Trustee Corporation [2017] NSWSC 1839 at [4]-[6]). But if the plaintiff puts his or her case on the basis of damages for breach, then the argument for a two stage hearing may evaporate. If the second stage hearing is confined to a “paper” debate about what decision the insurer ought, acting fairly and reasonably, to have made on the material before it there would be no need for a second stage at all; the whole case could be determined on the papers at once. And even if the second stage involves a complaint about the fairness or reasonableness of the procedure adopted it may not be appropriate to hear the second stage separately. There could be considerable evidentiary overlap between a first stage hearing, which, as this judgment illustrates, would require going through the whole of the way in which the claim was presented, and a second stage hearing to determine how the process would have been different if the insurer had behaved fairly and reasonably. On the other hand, if the plaintiff puts his or her case on the basis that the insurer’s decision was of no effect, there may be a debate about whether even if the plaintiff succeeds, there should be a second stage hearing at all.

238. The questions for separate determination agreed by the parties in this case were as follows:

Whether, in declining the Plaintiff’s claim, [Metlife]:

i.   Breached its duty to the plaintiff; or

ii.   Failed to act reasonably in considering and determining its opinion; or

iii.   Formed an opinion that was not open to the MetLife acting reasonably and fairly in the consideration of the Plaintiff’s claims;

iv.   Failed to consider and determine whether MetLife should form an opinion on the question of whether the definition of “Total and Permanent Disablement” in the Blue-Ribbon Policy was satisfied.

239. With the benefit of my experience in hearing this case, I regret having made orders in these terms. Question (i) is too open-ended: it asks whether MetLife breached its obligation of good faith or fairness, without any enquiry into whether such a breach made any material difference to the outcome. Question (ii) is open to a similar criticism, and is also limited to reasonableness rather than referring to fairness as well. Question (iii) has the merits of focusing on MetLife’s ultimate decision, but is not expressed in terms of the test laid down in Jones which asks whether the decision was one which was not open to “an insurer” acting reasonably. Instead Question (iii) asks whether the decision was one open to “the [sic] MetLife” acting reasonably.

240. With the benefit of hindsight, I think that it was a mistake for the parties to formulate questions in terms taken (whether accurately or not) from court decisions in this area. Instead, the Statement of Claim should have included separate prayers for relief which would flow if Ms Newling succeeded at the first stage hearing (presumably declaratory in nature), and the questions should have been formulated in terms of Ms Newling’s entitlement to such relief.

241. I put these concerns to counsel for the parties at the hearing on 12 July, but ultimately they did not take up my invitation to amend the questions, and if necessary the pleadings, so as to deal with the sort of issues I have mentioned in this judgment. They asked the Court to answer the questions as formulated even if there was potential for the answers to lead to further debate about what would happen next. In these circumstances, I considered that I had no alternative but to proceed to deliver judgment answering the questions which the parties asked.

242. Question (iv) asks, in substance, whether MetLife failed to determine the claim. For the reasons given at [146]-[148] above the question must be answered “no”.

243. Question (i) asks whether MetLife breached its duty to Ms Newling. I have at [149]-[166] rejected the arguments that MetLife was in breach of an obligation to give reasons and I have also at [167]-[174] and [175]-[225] rejected Ms Newling’s arguments concerning the fairness of the process and the reasonableness of MetLife’s reasoning process. Accordingly, the answer to question (i) is “no”.

244. Question (ii) asks a more limited question, namely whether MetLife failed to act reasonably in considering and determining its opinion. For the reasons given at [175]-[209] and [219]-[225] above the answer is “no”.

245. Question (iii) asks whether MetLife formed an opinion which was not open to it acting reasonably. I have found that MetLife’s decision was reasonably open to an insurer acting reasonably, but the question does not ask that. However, for the reasons referred to under question (ii), I am not satisfied that there is any relevant flaw in MetLife’s decision. Question (iii) will be answered “no”.

246. For these reasons, I have concluded that each of the questions posed is to be answered “no”. The parties agreed before the hearing that in that event the proceedings should be dismissed with costs.

247. The orders of the Court are:

1.   Order that the questions reserved by order of the Court on 10 November 2017 be answered as follows:

(i)   No.

(ii)   No.

(iii)   No.

(iv)   No.

2.   Order that the proceedings be dismissed.

3.   Order that the plaintiff pay the defendant’s costs.

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Amendments

14 September 2018 - Para [184] - Corrected cross-reference in that paragraph

15 September 2018 - Edited cover sheet

17 September 2018 - Para [141] - Amended, in quote, '[the appellant's]' to '[the claimant's]'

Para [153] - In quote, amended "he must be have failed" to "he must have failed"; amended "of excludes" to "or excludes".

08 October 2018 - Paras [154], [155], [160] - Minor typographical amendments

Decision last updated: 08 October 2018