NSW Police Force v Bassett - [2010] NSWWCCPD 58

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		NSW Police Force v Bassett [2010] NSWWCCPD 58
APPELLANT:		NSW Police Force
RESPONDENT:		Kathy Bassett
INSURER:		Allianz Australia Insurance Limited – TMF
FILE NUMBER:		A1-6940/09
ARBITRATOR:	Mr D Minus
DATE OF ARBITRATOR’S DECISION:		8 February 2010
DATE OF APPEAL DECISION:		28 May 2010
SUBJECT MATTER OF DECISION:		Sections 4, 9A and 11A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Smuts McKenzie Lawyers
Respondent:		Baker & Edmunds Solicitors Pty Ltd
ORDERS MADE ON APPEAL:		1. Paragraph 1 of the Arbitrator’s determination dated 8 February 2010 is revoked and, in its place, the following order is made:
“1. Award for the applicant pursuant to section 36 of the Workers Compensation Act 1987 in the sum of $1415.44 per week from 3 July 2007 to 12 November 2007.”
2. Paragraphs 2, 3 and 4 of the Arbitrator’s determination dated 8 February 2010 are confirmed.
3. The matter is remitted to a different Arbitrator to determine the question of Ms Bassett’s entitlement to weekly compensation in respect of partial incapacity between 13 November 2007 and 8 February 2010.
4. The appellant is to pay Ms Bassett’s costs of the appeal.

BACKGROUND TO THE APPEAL

Kathy Bassett is a member of the New South Wales Police Force (‘the appellant’). Ms Bassett graduated from the Police Academy in February 1996 and was shortly thereafter stationed at Mount Druitt police station, where she performed her duties until May 2007. She ceased work at that time by reason of alleged psychological injury received in the course of the performance of her duties. At that time, she held the rank of Leading Senior Constable.

Ms Bassett made a claim against the appellant in respect of workers compensation benefits. The appellant’s insurer denied the claim and provided a Notice concerning such denial under cover of correspondence dated 3 July 2007. That Notice, which was given in accordance with section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), stated that the reasons for its decision to reject the claim were, firstly, that a pre-liability assessment report conducted by Ms Debbie Hernando and Ms Jo Clarke had found that Ms Bassett “did not fulfil the criteria for a clinical diagnosis”. A further reason for denial of the claim was stated to be that “the employer had acted reasonably in regards [sic] to complaints made in regards [sic] to injured worker’s conduct, with a formal investigation conducted and the injured worker being formally counselled in regards to a breach of the Code of Conduct”.
Ms Bassett remained absent from her work as a police officer until an attempted Return to Work Plan in November 2007 that had been arranged by the appellant with the assistance of a rehabilitation officer. That attempted return to work was unsuccessful and Ms Bassett again ceased duty. The evidence is unclear, however it seems that work was intermittent and ended on a date in early 2009.
An Application to Resolve a Dispute (‘the Application’) was lodged with the Commission on behalf of Ms Bassett on 31 August 2009. The Application alleged the occurrence of injury on 15 June 2006. It is clear from the manner in which the claim had been presented before the Commission that it was Ms Bassett’s allegation that the alleged incapacity which commenced in 2007 had been the result of a number of matters concerning her employment which occurred during 2006 and thereafter.
The dispute between the parties was listed before an Arbitrator for conciliation/arbitration on 10 November 2009. The matter proceeded to arbitration on that day and the hearing continued on 16 December 2009 and 22 December 2009. The Arbitrator reserved his decision and a Certificate of Determination was issued on 8 February 2010. That determination was accompanied by a Statement of Reasons (‘Reasons’).

THE DECISION UNDER REVIEW

The Certificate of Determination dated 8 February 2010 records the Arbitrator’s orders as follows:

“The Commission determines:
1.There is an award for the Applicant in respect of the claim for weekly compensation. The Respondent is to pay the Applicant weekly compensation at the maximum statutory rate for a worker with no dependants as adjusted, from 3 July 2007 to date under section 37 and in accordance with the provisions of the Workers Compensation Act 1987.

2. The Respondent is to pay the Applicant’s reasonable medical expenses pursuant to s 60 of the 1987 Act, to be paid on production of accounts and receipts and notice of HIC charge.

3.The Respondent is to pay the Applicant’s costs as agreed or assessed.

4.I certify that this was a complex matter and determine that pursuant to Clause 4 of Schedule 6 and Item 4 of Table 4 of the Workers Compensation Regulation 2003 that in respect of the Applicant’s and Respondent’s costs that a percentage increase of 30% be applied.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

An Appeal Against the Decision of the Arbitrator was filed with the Commission on 8 March 2010.

ISSUES IN DISPUTE

The appellant enumerates seven separate “grounds” of appeal at [2.7] of submissions which have been filed in support of this appeal. Those “grounds” lack precision. However, it is clear that the appellant challenges the Arbitrator’s findings of fact upon a number of bases, including the manner in which the evidence was evaluated. It is also clear that these findings are also challenged on the basis that there had been a misapplication of relevant principle to the facts as found. It is put that the Arbitrator erred in finding that Ms Bassett’s psychological injury was caused by her employment, giving rise to her entitlement to weekly compensation and medical expenses.

ON THE PAPERS REVIEW

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

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

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

LEAVE

There is no dispute between the parties concerning threshold requirements as prescribed by section 352 of the 1998 Act.

The appeal having been lodged within the time prescribed by that section and the fact that the monetary threshold prescribed by that section has been met, together with a consideration of the arguments raised on appeal, lead me to conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.

EVIDENCE

A transcript (‘T’) of proceedings is available. That transcript records submissions put to the Arbitrator by counsel on 16 and 22 December 2009. It seems that the conciliation process was pursued on 10 November 2009 when the matter was first listed before the Arbitrator.
No oral evidence was adduced before the Arbitrator. It is to be regretted that there is no convenient summary of the documentary evidence which had been adduced by the parties recorded in either the transcript or in the Reasons stated by the Arbitrator which accompanied his determination. The Commission file contains a significant volume of documents which had been filed on behalf of each party. They are attached to the Application filed by Ms Bassett, the Reply filed on behalf of the appellant, and to a number of Applications to Admit Late Documents. The parties, following communication made by the Commission, have confirmed that none of the documentary material to be found attached to those documents filed had been excluded by order of the Arbitrator. In those circumstances, it is clear that the evidence relied upon by Ms Bassett comprises that material attached to her Application, as well as those documents attached to three Applications to Admit Late Documents filed on her behalf. The evidentiary material relied upon by the appellant is that found attached to its Reply, the clinical records of Dr Janusz Pendel and a statement of Chief Inspector Wayne McMahon dated 9 November 2009. There are a number of documents which were handed to the Arbitrator in the course of the hearing, which include a chronology of events prepared on behalf of Ms Bassett, a schedule of relevant medical evidence, and a document which appears to be an information sheet concerning the patented drug, Murelax. The first two of those documents appear to have been provided for the Arbitrator’s assistance, and I have had regard to their contents when dealing with the voluminous evidentiary material. The information sheet appears to have been tendered by Ms Bassett without objection (at [T63] 22.12.09).

Ms Bassett’s evidence

The evidence of Ms Bassett is to be found in two statements which are in evidence. The first is 138 pages in length, contains 416 paragraphs, and is dated 13 May 2008. The second statement is dated 14 November 2009 and is attached to an Application to Admit Late Documents filed on 9 December 2009.
Ms Bassett’s evidence reveals that she is presently 48 years of age and is single. She had various positions after leaving school, including a number of years as a civilian employee with the NSW Police Department. She commenced her career with the police force in February 1996 following graduation from the Police Academy. Her statement reveals that her training at the Academy was attended by considerable tribulation. However, those facts and circumstances are not directly relevant to the matters requiring determination on appeal. Ms Bassett was stationed at Mount Druitt police station shortly after completion of her training, and remained there until May 2007, at which time she ceased work by reason of a variety of anxiety-related symptoms.
Ms Bassett had enjoyed her work and had been promoted to the rank of Leading Senior Constable in March 2004. She had also successfully completed a number of courses, including the Investigators’ Course in 1999, and obtained a Diploma of Policing through Charles Sturt University in May 2001. She enjoyed good relations with her fellow officers and, in 1999, received a Rotary-sponsored award for Police Officer of the Year.
On 15 June 2006, Ms Bassett received a memo from a superior, Mr McMahon, which advised that a complaint had been received against her and that she was being investigated. No details of the complaint or relevant facts were provided at that time, other than that it was a Category 2 complaint (minor or non-criminal in nature). This communication was found by Ms Bassett to be extremely disturbing and she began to ruminate upon all the recent jobs which she had been to in the course of her duties which may have given rise to a complaint. She was not able to identify anything that she had done that could relate to the complaint. She replied to Mr McMahon, although she did not receive a response. The absence of information caused her great concern and she began having difficulty sleeping.
A second memo from Mr McMahon was received on 7 July 2006, which outlined Mr McMahon’s obligations to keep Ms Bassett informed and stated that, once inquiries had been completed, he intended to interview her, and that she was required to participate. No further information was provided concerning the nature of the complaint. Mr McMahon advised in that memo that he was going on holidays and nominated Chief Inspector Cooke as the officer to be contacted should she have any concerns. Ms Bassett again replied to the memo, but received no response. She remained worried and, at that stage, was “really freaking out”. She had no idea what the complaint was about and attempted to contact Mr Cooke; however, he also was on leave. Ms Bassett continued to experience difficulty sleeping, was preoccupied with news of the complaint, and found concentration to be difficult.
Following discussions with a colleague at the station, Ms Bassett consulted a superior officer. Superintendent Harding was on leave, and therefore she spoke to Chief Inspector Le-Merton, who was the relieving Commander. She explained her worries to Mr Le-Merton and became tearful. Mr Le-Merton stated that he was aware of the complaint, but was not able to say anything other than that it was not of a serious nature. He stated that he would speak to Mr McMahon upon his return from leave “and see if he could hurry up the investigation”. Ms Bassett continued to worry.
On 28 July 2006, Ms Bassett was working night shift (3:00 pm to 3:30 am). At approximately 11:30 pm, she received a message over the radio network to return to the station to see the supervising officer. Ms Bassett became anxious and imagined that something had happened to a member of her family. Upon her return to the station, she was referred to Mr McMahon in his office. Mr McMahon stated, “I’m ready to do that interview now”. That interview took place at a time when Ms Bassett still had outstanding jobs on her running sheet. It had been a very busy night at the station, and she felt that there had been no consideration given to her as to how the conduct of the interview would have “impacted” on her.
The interview was conducted and was recorded on tape. Mr McMahon’s intention to tape the interview caused Ms Bassett to feel like a criminal and she feared being placed in custody. Ms Bassett in her statement acknowledged that those thoughts were somewhat irrational, but she was then tired and not thinking clearly. The conduct of Mr McMahon was such that Ms Bassett felt under extreme pressure to participate in the interview. It was revealed in the course of that interview that the complaint being investigated concerned Ms Bassett’s attendance at a residence at Rooty Hill in the company of Constable Donaldson in response to a noise complaint. It was during that attendance that Ms Bassett issued a Noise Abatement Notice to the occupants of the house and assertions were made by the people present that she was “racist”. An allegation had been made by way of complaint that Ms Bassett had uttered racist comments during the attendance.
Ms Bassett was “a little taken aback” that Mr McMahon had been assigned to investigate the complaint, as he had been Duty Officer to whom she reported problems experienced by her at the Rooty Hill address on the night in question.
The interview continued for a period of three hours and caused considerable distress to Ms Bassett. She was to commence extended leave in August and, for that reason, requested Mr McMahon to inform her of the outcome of the investigation before she commenced her holiday. This did not happen. Upon her return to duty in early November 2006, she heard nothing concerning the outcome. Ms Bassett noted in her statement, and it is confirmed in other evidence, that investigations such as the one in question were, given the terms of guidelines, to be completed within 35 days. Ms Bassett noted that 200 days after the complaint, she still had no idea what was going on or when she would hear about the outcome of the investigation.
On 31 December 2006, Ms Bassett read a memo asking that she attend on Superintendent Harding. It was a particularly busy shift and Ms Bassett was constantly called out onto the road to attend jobs, including one involving a death by hanging. When Ms Bassett attended Mr Harding’s office, she found he had left the station and, on her next opportunity, she went to see Chief Inspector Pearce, who had replaced Mr Harding who had gone on leave. Mr Pearce informed Ms Bassett that the complaint against her had been “sustained” on the basis that it was probable that she did make the comments that formed the basis of the complaint. He informed her that four statements had been given as to her conduct, which “outweigh the two police ones”. Ms Bassett informed Mr Pearce that she “didn’t say it”, to which Mr Pearce replied, “Well that’s bad luck. We think you did – and four against two always wins”.
The circumstances of the complaint being proven caused Ms Bassett considerable concern and she was concerned about her work performance. She submitted an appeal to Mr Harding for referral of the finding to the Region Office. There was a delay before Ms Bassett received any word concerning that appeal. Her inquiry of the Region Office revealed that the review had been done and that paperwork had been sent back to the Mount Druitt Local Area Command. Ms Bassett attended Mr Harding, who referred her to his secretary, who had the unprocessed paperwork on her desk. Mr Harding read the report and advised that the Region Office had confirmed the finding of the investigation. Ms Bassett felt “gutted”, that she was stripped of her integrity and confidence, and felt that she had “no recourse”. She experienced difficulties in starting work on some days and, on approach to the station, she would feel ill and angry.
Ms Bassett recorded in her statement the difficulties that she experienced carrying out her duties, which coincided with difficulties concerning rostering at the station. The Mount Druitt police station was at that time significantly short-staffed and, since the retirement in 2000 of the sergeant responsible for roster preparation, had experienced significant problems with the roster system. Those problems were explained in detail in the statement made by Ms Bassett and I note that there is no issue that such problems existed. The difficulties experienced by Ms Bassett concerning the confused state of rosters caused her further anxiety, sleep disturbance and impairment of her morale. Ms Bassett experienced emotional difficulties and became socially isolated. Efforts were made to correct the problems with the rosters, and Mr Le-Merton assumed control of the roster office. Problems continued and a meeting was arranged between management and the police officers’ representatives.
Difficulties with the roster continued and, on 7 May 2007, Ms Bassett and others met to discuss the situation. Ms Bassett had been instrumental in organising that meeting and had taken steps to convene it following discussions with Sergeant Ferreira, the Branch Association Representative. She understood that she had Mr Ferreira’s approval to organise the meeting. Following the meeting, Ms Bassett continued to experience anxiety, had lost weight, and experienced difficulty sleeping, as well as other related symptoms. She consulted Dr Pendel, her general practitioner. She reported pain in her jaw, which caused her to attend the dentist, who diagnosed a locking of the jaw by reason of grinding of teeth. Dr Pendel advised Ms Bassett to wear a splint, which Ms Bassett obtained and wore. Ms Bassett had been drinking alcohol excessively during this period. She did not inform any person of her drinking habits, and hoped to get it “under control”.
In early May 2007, Ms Bassett’s roster was in a state of confusion. She had been expected to be on duty on a shift which she had earlier rejected, as she was entitled. Thereafter, she failed to attend on a roster to which she was appointed, but of which she knew nothing. A memo addressed to the station at large was published by Sergeant Ferreira on 10 May 2007, which related to suggested “undermining of the Police Association”. The memo also suggested that appropriate action in the Industrial Commission will be taken against any person undermining the Police Association. Ms Bassett perceived that she was being targeted as a troublemaker and that the memo had been directed at her. She became very distressed, particularly concerning the mention of the Industrial Commission and the possibility of charges. Ms Bassett gave details in her statement as to other communications by way of memo from superior officers that caused her worry and anxiety.

A station-wide memo from Mr Le-Merton was published which criticised officers “not turning up for their Viking shifts, and turning up for shifts that didn’t exist”. Given her recent circumstances, Ms Bassett felt that the memo was directed to her personally. She felt a worsening of her anxiety and she was “wondering what could go wrong next”. It was on that day, during a conversation with Constable Brian Johnson, that Mr Johnson suggested Ms Bassett had been “bagging out the DVS section at the constables’ meeting”. This allegation “horrified” Ms Bassett. Ms Bassett felt it was “all too much; it was too hard”. Suddenly, she was shouting “like a mad person”, following which she broke down in tears and became extremely embarrassed. Ms Bassett attempted to resume duty. However, later in the shift, after performing some on-road work, she reported to Sergeant Lehey, stating that she “had to go home”. This occurred on 14 May 2007. Ms Bassett ceased work and stated that she consulted Dr Pendel the following day.
A claim for workers compensation benefits was made against the appellant’s insurer. The insurer arranged for an examination and report by Ms Debbie Hernando and a colleague, Ms Jo Clarke. The circumstances of an interview with Ms Hernando were described in detail in the statement made by Ms Bassett. Where relevant, detail of this interview appears below.
Ms Bassett commenced consulting a psychologist, Ms Vicki Garner.
The insurer denied the claim brought by Ms Bassett and provided a copy of Ms Hernando’s report. Reading that report caused a great deal of upset to Ms Bassett and she began to drink alcohol. She became very distressed and, after failing to reach her general practitioner, she sought the assistance of the Mental Health Crisis Team because “for the first time, I felt like I had nothing to live for”. Ms Bassett’s work, she stated, had meant everything to her and she then felt she had “nothing”.
Dr Pendel referred Ms Bassett to Dr Cassidy, psychiatrist. That treatment continued for a period of months until Ms Bassett could no longer afford the fees incurred for each consultation.
Ms Bassett remained absent from work for a period of six months, during which time she remained tearful and retreated to her bed for “days on end”. Whilst support was provided by colleagues from the station, a period of three months passed before Ms Bassett heard from anyone from the Injury Management Unit. On 14 September 2007, a meeting took place at Ms Bassett’s home between herself, Mr Harding, Sergeant Flood and Sergeant Hannon. It was acknowledged by Mr Harding at that meeting that Ms Bassett had been at Mount Druitt for a “tremendously long time”. Ms Bassett was informed at that meeting that there were no barriers preventing her return to Mount Druitt.
A Return to Work Plan was arranged by an individual identified as “Melda”. Ms Bassett described the hurried manner in which the return to work was arranged and she described it as “a shambles”. The initial plan was due to finalise on 24 December 2007. However, Ms Bassett was not contacted concerning an alternative and further plan. Ms Bassett detailed in her statement a series of communications concerning the Return to Work Plan, which gave rise to confusion and uncertainty. There was delay in finalising a Return to Work Plan and Ms Bassett asked that she be assigned to another rehabilitation officer. On 19 February 2008, a phone call was received by Ms Bassett from Ms Jastrzebska, a new rehabilitation officer. The uncertainty and confusion remained concerning Ms Bassett’s duties as arranged for the Return to Work Plan. Ms Bassett experienced difficulty communicating with Ms Jastrzebska.
On 10 April 2008, the rehabilitation officer advised Ms Bassett that there had been a referral for an assessment by HealthQuest. During discussion with the rehabilitation officer, Ms Bassett became agitated and hung up the telephone. She later apologised for her comments and her behaviour in hanging up. Shortly thereafter, Ms Bassett was informed that Ms Jastrzebska of the Injury Management Unit had been forwarding emails which contained personal and medical information relating to her to a Mr Alistair Harding, who was a civilian employee working at VKG in Newcastle. Those emails had been sent by mistake and were intended for Mr Harding, the senior officer at Mount Druitt police station. This knowledge caused Ms Bassett to be “horrified”. Formal apologies were forwarded thereafter to Ms Bassett, acknowledging the error.
The first statement made by Ms Bassett does not contain a precise date as to when she last worked. However, it appears to have been at some time in early 2009.
A report of Dr Selwyn M Smith, consultant psychiatrist, dated 6 July 2009 was in evidence. Dr Smith had treated Ms Bassett between 29 November 2007 and 10 June 2009. During that period, there had been 22 consultations and Dr Smith had arranged for Ms Bassett to attend the Anxiety and Depression Program conducted at St John of God Hospital Counselling and Therapy Centre, Burwood.
Dr Smith’s report contained a very detailed history of the problems and difficulties encountered by Ms Bassett in the course of her performance of duty at Mount Druitt police station. Dr Smith stated that his opinion following initial examination was that Ms Bassett demonstrated diagnostic criteria for an Adjustment Disorder with Depressed and Anxious Mood, with associated secondary alcohol dependence. Dr Smith was of the view that her psychiatric disorder was in direct response to her work-related circumstances. Dr Smith was also of the opinion that the disorder “was substantially contributed [to] and arose directly from the complicated sequence of events that occurred after a complaint had been made concerning the alleged conduct of Ms Bassett relating to the issue of the Noise Abatement Notice in May 2006”. Dr Smith also stated that “the significant delay in investigating the complaints against Ms Bassett clearly took their toll on her”. A notation is made in that report of Dr Smith that Ms Bassett was shocked when her confidential matters were mistakenly relayed by Ms Jastrzebska to a third party. Dr Smith further noted that there were difficulties confronting Ms Bassett in connection with the events surrounding the constables’ meeting which she arranged at Mount Druitt police station.
Dr Smith included in his report certain observations concerning the opinions expressed by Ms Hernando and Ms Clarke, psychologists, who had reported to the insurer concerning Ms Bassett’s claim for compensation. These matters are addressed in the course of discussion below.
Ms Bassett relied upon a report by Dr Peter Klug dated 13 October 2008. Dr Klug is a forensic psychiatrist who had been qualified on behalf of Ms Bassett’s solicitors to provide an opinion for the purposes of this litigation. Dr Klug recorded in his report detail of Ms Bassett’s experiences in the course of work at Mount Druitt police station and summarised the contents of various statements and documents which had been forwarded to him for his consideration. He expressed the opinion that Ms Bassett had become increasingly psychiatrically symptomatic from about the middle of 2006. He enumerated Ms Bassett’s symptoms at page nine of his report and expressed the view that those symptoms “are in the context of significant work-related stressors”. Dr Klug was particularly critical in his report of the contents of the report compiled by Ms Hernando and Ms Clarke.
Dr Klug diagnosed Ms Bassett’s condition as initially being either an adjustment disorder with anxiety or a generalised anxiety disorder. He was of the view that, by December 2006, her symptoms worsened and she developed a major depressive disorder. He also expressed the view that there was a clear clinical and temporal relationship between her psychiatric illnesses and work-related stressors. Dr Klug also stated that he considered the work-related stressors had been a substantial cause of her psychiatric problems. He considered Ms Bassett to be chronically symptomatic and dysfunctional, and that she required intensive psychiatric and psychological treatment.
Ms Bassett relied upon a report dated 22 May 2008 provided by Ms Julie Berg, consultant psychologist for HealthQuest, addressed to the medical discharge co-ordinator of the NSW Police. Ms Berg took a detailed history and had access to a number of documents which were considered by her. Following psychological consultation, Ms Berg expressed the view, under the heading “Conclusions”:
“History given and medical advice indicates that Ms Bassett has most likely had a Major Depressive Disorder with associated anxiety in reaction to cumulative work-related incidents, which she considers to have undermined her reputation and excellent work record since mid-2006.”
At the date of Ms Berg’s consultation, Ms Bassett was working 15 hours per week with the Crime Management Unit on a Return to Work Plan. Ms Berg expressed the view that Ms Bassett’s psychological condition had not reached maximum improvement, and considered it reasonable to allow “an additional three months to make a full recovery, if possible”. A graduated increase in her working hours was advised.
There were in evidence two letters of apology, one from Superintendent Harding, and the other from Ms Harrison, general manager of the Injury Management and Compensation Section of the appellant, addressed to Ms Bassett concerning the breach of her privacy by reason of the transmission of the emails referred to at [37] above.
Ms Bassett relied upon the contents of a report compiled by Carrington Investigations Pty Limited dated 15 May 2008. That document may be described as a factual investigation relevant to Ms Bassett’s experiences at Mount Druitt police station both before and after her cessation of work in May 2007. That report contained a summary of matters addressed in the statement made by Ms Bassett, and included no less than 10 statements by her work colleagues, together with a large number of documents which touched on the circumstances relevant to Ms Bassett’s employment. The detail of this report is, where relevant, referred to below. The general tenor of the statements made by Ms Bassett’s colleagues was that she had at all times demonstrated a very professional approach to her work. Her evidence concerning the difficulties which she confronted in 2006 and 2007 were substantially corroborated.
A letter dated 18 September 2009 from the appellant to Ms Bassett signed by Superintendent Harding is in evidence. That correspondence noted that Ms Bassett had exhausted her sick leave and annual leave entitlements. It was noted that Ms Bassett’s extended leave entitlement was to expire on 23 November 2009. Mr Harding noted that, should Ms Bassett be unfit for duty thereafter, the only option was to place her on leave without pay. Ms Bassett was encouraged to maintain regular contact with her Injury Management Advisor.
A supplementary statement made by Ms Bassett was attached to an Application to Admit Late Documents dated 9 December 2009. That statement bore two dates; firstly, 14 November 2009 on page one, and 8 December 2009 on page six. That statement addressed the contents of a statement which is in evidence made by Mr McMahon dated 9 November 2009. Where relevant, the matters raised by Ms Bassett are addressed below. That statement also addressed a number of other matters raised in evidence, including the contents of the notes of Dr Pendel. It was suggested in that supplementary statement that Dr Pendel’s notes concerning attendances in the year 2000 may be incorrect. A number of documents were annexed to that statement which amplify matters raised by Ms Bassett.
A number of reports by Garner Associates Pty Ltd are in evidence. The author of those reports is Ms Vicki Garner, clinical psychologist. One such report, dated 12 May 2008, referred to Ms Bassett’s Return to Work Plan and detailed numerous difficulties encountered by Ms Bassett in the course of her attempted return to duty. That report included the following observation:
“Although some of her setbacks, resulting in days off work and slower increase in hours of work, have related to events similar to the original incident that provoked her anxiety and depression, many have been the result of inappropriate or poor communication, lack of proper support when Ms Bassett first returned to work and when she changed her duties, lack of appropriate consultation with herself and her doctor in structuring the RTW plans, and unrealistic expectations leading to negative opinions of Ms Bassett’s efforts and motivations by the Injury Management Unit and senior officers.”

Appellant’s evidence

The appellant relied upon the contents of a report and attachments dated 21 June 2007 prepared by Ms Hernando and Ms Clarke. That report appeared to be a factual inquiry into the allegations made by Ms Bassett concerning her alleged injury and resultant incapacity. The report included numerous statements, including one from Ms Bassett, and statements from senior officers stationed at Mount Druitt police station. There was also enclosed a copy of a psychological assessment conducted on 18 June 2007. Ms Hernando and Ms Clarke appear to have taken into account not only the history given by Ms Bassett and her clinical presentation, but also statements made by her superior officers, Chief Inspector Le-Merton and Superintendent Harding. It is to be noted that contact with Ms Bassett’s general practitioner, Dr Pendel, was made by telephone. Unsurprisingly, he declined to provide any information per telephone and indicated that he would provide a written report following formal request.
The report compiled by Ms Hernando and Ms Clarke directed attention to the investigation and outcome concerning the complaint made against Ms Bassett, as well as the rostering difficulties which had existed at Mount Druitt police station. Under the heading “Clinical Diagnosis”, the view was expressed that Ms Bassett appeared “upset and is possibly experiencing anger as a result of her dissatisfaction with being disciplined as a result of a complaint and due to her dissatisfaction with rosters”. The opinion was expressed that Ms Bassett’s symptoms did not fulfil the criteria for a clinical diagnosis as defined by the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition.
The appellant relied upon a large number of documents relevant to the investigation of the complaint made against Ms Bassett, including a copy of an Official Reprimand which was apparently dated 11 January 2007, signed by WD Pearce, Acting Superintendent, Local Area Command, Mount Druitt. That notice confirmed the outcome of an investigation and a finding that Ms Bassett used the words “your stupid culture is not welcome here” and “go back to your country”. The reprimand was in respect of a breach by Ms Bassett of the Code of Conduct and Ethics which regulates the conduct of police officers.
Among the documents tendered by the appellant concerning the complaint was a “Disclosure of Conflict by Investigator” signed by Mr McMahon. That document, dated 13 June 2006, stated that it was not possible that Mr McMahon would be “linked to the complaint in any way”. The response “No” was entered in response to the question, “From the information provided is it possible that you may be linked to the complaint in any way?”.
The appellant adduced a number of documents which had been relied upon by Ms Bassett, together with a number of medical certificates issued by Dr Pendel.
The appellant tendered in evidence a copy of the clinical notes compiled by Dr Pendel concerning his treatment of Ms Bassett. The first entry recorded was that of 1 March 1999 and the last entry was dated 7 October 2009. Those records included a notation made on 9 April 2009 that Ms Bassett had been “off work since January-WC cert: from the psychiatrist”. These records, where relevant, are referred to below.
As earlier noted, the appellant relied upon a statement made by Mr McMahon.

Preliminary matters

It is important to note the manner in which Ms Bassett presented her case before the Arbitrator. The Application particularised the date of injury as being 15 June 2006. That injury is described at Part 4 of the Application as being “Adjustment Disorder with Depressed and Anxious Mood with associated secondary alcohol dependence, Major Depressive Disorder”.
Part 4 of the Application described how the injury occurred as follows:
“Cummulative [sic] work stressors including but not limited to being the subject of an initially unknow [sic] complaint which became a complaint of racism, the unreasonable conduct of the employer in exceeding recommended time frame for investigation of complaints, failing to provide appropriate information and support, breaches of medical privacy, unprofessional in incompetent workplace rehabilitation.”
The nature of the injury as alleged was addressed by Ms Bassett’s counsel in preliminary submissions made before the Arbitrator (at [T3] and [T4] 16.12.09). It was there stated:
“[W]e say that the following events contributed significantly to [injury], the making of a complaint, the manner in which that you [sic] investigated that complaint was investigated by Chief Inspector McMahon; the extreme difficulties which the plaintiff [sic] faced with regard to unpredictable and changing rosters which caused her to withdraw socially; the criticisms made of her in relation to a constables’ meeting by a member of the Police Association. Fourthly, a breach of her privacy by a person charged with the conduct of her return to work in which her private medical details were disclosed to a Mr Harding at VKG in Newcastle by mistake.”
The description of those matters of fact above summarised as representing matters relevant to the issue of injury were not objected to by the appellant at the hearing. In the circumstances, it is clear that Ms Bassett’s case with respect to the issue of injury embraces matters of relevance which occurred beyond the date as particularised, being 15 June 2006. It will be seen that the Arbitrator, at [7] of Reasons, noted that the injury as alleged by Ms Bassett arose “due to a combination of circumstances”, and four distinct factual matters were enumerated by him. No objection is taken by the appellant on this appeal to that approach adopted by the Arbitrator, and it must be accepted that the allegation of injury made by Ms Bassett embraces those circumstances which prevailed during her service at Mount Druitt police station prior to her cessation of work in May 2007, as well as events which occurred thereafter during the period that she attempted a return to work.

PROCEEDINGS BEFORE THE ARBITRATOR

Ms Bassett’s submissions

Counsel appearing on behalf of Ms Bassett made it clear from the outset that the evidence presented by his client addressed those matters which were nominated as being reasons for the insurer’s rejection of the compensation claim as revealed in the section 74 Notice. Reliance was placed upon the opinions of Dr Klug and Dr Smith in support of the submission that the injury received by Ms Bassett was one of a psychological nature as diagnosed by those practitioners, which had been caused by the prevailing conditions of her employment.
Reference was made in the course of submissions to the provisions of section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) and it was put that a number of events had “contributed significantly” to the injury as diagnosed. Those events were enumerated as being: the manner of the investigation concerning the complaint; the extreme difficulties experienced by the worker concerning unpredictable and changing rosters, causing social withdrawal; the criticisms made of the worker in relation to the meeting concerning rosters conducted at Mount Druitt police station; and, the breach of privacy concerning publication of private medical particulars.

The conduct of the investigation of the complaint was the subject of examination in the course of submissions. The arguments raised addressed the matters relevant to a consideration of the provisions of section 11A of the 1987 Act. The manner in which the investigation was conducted was criticised, having regard to the suggested delay and failure to communicate, and the fact that the investigation was conducted by Mr McMahon, who had, on the evidence, received a report of Ms Bassett’s difficulties at the Rooty Hill address on the night of the occurrence. It was suggested that Mr McMahon was not appropriate as investigating officer by reason of conflict. The circumstances of the interview between Ms Bassett and Mr McMahon was also the subject of criticism.
Reference was made to the criticism and threats of legal action which followed the meeting held in May 2007 concerning the rosters. Reference was also made to Ms Bassett’s shock when it was revealed that confidential matters had been relayed by the rehabilitation officer to a party who had no involvement with rehabilitation.

The appellant’s submissions

It was argued that Ms Bassett had not received injury within the meaning of section 4 of the 1987 Act. The appellant’s argument before the Arbitrator suggested that there had been a “subsequent rationalisation of earlier innocuous events” made by Ms Bassett and that her assertion of hurt and distress occurring during the currency of the investigation, in particular, during the last half of 2006, should not be accepted as fact. Reliance was placed upon the content of the clinical notes produced by Dr Pendel in support of the submission that there was no evidence of complaint of symptoms made to Dr Pendel contemporaneously with the conduct of the investigation. Ms Bassett’s suggestion in her second statement that Dr Pendel’s entries in approximately 2000 contained error should not be accepted. It was also submitted that Ms Bassett’s explanation for failure to complain to Dr Pendel, that being that she did not want to reveal those problems at that time, should be rejected. Counsel emphasised that there was no evidence of any time lost by reason of suggested incapacity from the date of the making of the complaint up until May 2007.
Particular attention was given in the course of submissions to the contents of Dr Klug’s report. It was suggested that the clinical notes of Dr Pendel “would be critical to an analysis of the applicant’s complaints”. A similar argument was advanced with respect to the opinion expressed by Dr Smith.
The Arbitrator’s attention was drawn to Dr Pendel’s notation made on 15 May 2007 during a consultation with Ms Bassett. It was stated that the entry concerned counselling “on work-related issues. Has been under a lot of stress in last few weeks”. It was argued that Ms Bassett’s credit must be “called into question” given that the notation of Dr Pendel did not correspond with the allegation of stress experienced “in the last six [sic] months”.
With respect to the investigation of the complaint, submissions were made that the proper “process” had been followed. Counsel observed “it even went to the Ombudsman and the Ombudsman cleared the department”.
Reference was made in the course of argument to the decision of the Court of Appeal in Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206 (‘Sinclair’), following which it was suggested that, notwithstanding significant delay in investigation, such process is reasonable if proper procedures were followed. It was put that the Arbitrator would be satisfied that the appropriate police procedures were followed concerning the complaint and the manner in which Ms Bassett was “dealt with”. It was put that the delay is “irrelevant”. Reference was made to the “perception” of Ms Bassett and it was suggested that the records of Dr Pendel did not support the existence of such perception prior to her cessation of work.
Counsel for the appellant made it clear (at [T60]) that the primary submission put in defence of the claim was that there had been no injury suffered by Ms Bassett. It was also put that, should there be a finding of injury, the provisions of section 9A were relevant. Reliance had earlier been placed upon the evidence of Ms Garner in support of the suggestion that Ms Bassett was a “person [who] overreacts”. Reference was made to the decision of Townsend v Commissioner of Police (2002) 25 NSWCCR 9 (‘Townsend’) and State Transit Authority of New South Walesv Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 (‘Chemler’) in support of a submission that “you cannot have an injury based on external events that have been misperceived”.

The Arbitrator’s decision

The Arbitrator, at [8] of Reasons, noted the issues that were in dispute between the parties as follows:
“1)whether the Applicant suffered an injury pursuant to s.4, 1987 Act and if so,
2)whether the Applicant’s work was a substantial contributing factor to that injury (s.9A, 1987 Act).
3)including whether the Respondent acted reasonably in dealing with a complaint of disciplining the Applicant (s.11A, 1987 Act).
4)the nature and extent of any incapacity for work since 3/7/2007, to date and continuing.
5)the determination of any entitlement to weekly compensation from that date to the present pursuant to s.33 of the 1987 Act.”
At [13] of Reasons, the Arbitrator referred to the great volume of evidence before him concerning the complaint made against Ms Bassett, and made it clear that the merits of the complaint and its outcome were “not matters that I need to re-evaluate nor re-determine”. The Arbitrator proceeded, at [24] of Reasons, to summarise the “significant matters” which required determination, which were the matters enumerated at [63] above. Each of those matters was addressed between [25] and [33] of Reasons. He proceeded to state at [34]:

“I accept that all of these matters contributed to the aggravation of the Applicant’s condition which was ongoing from the middle of 2006 and manifested itself on 14 May 2007, when according to the Applicant’s statement, she was ‘accused of bagging out the DV section’. She says that at that point ‘she lost it … I screamed and yelled … and I took everything out on him and then thought “what have I done”. I didn’t understand what had happened’.”

At [37], the Arbitrator expressed his acceptance of the psychiatric and psychological evidence which supported the proposition that Ms Bassett “suffered a psychological injury that arose out of or in the course of her employment with the Respondent from around August 2006 but manifested itself on 14 May 2007 when the Applicant left the workplace”.
At [47], the Arbitrator made a finding that Ms Bassett suffered a psychological injury that arose as a result of the actions of the appellant in conducting the investigation of her conduct. He further found that the condition manifested at a later time, but that it was “causally linked to the manner in which [the appellant] conducted the investigation into a complaint against her”.
The Arbitrator proceeded to consider the relevance or otherwise of the provisions of section 9A of the 1987 Act. Reference was made in the course of Reasons to the appellant’s reliance upon the decisions in Townsend and Chemler. At [52] of Reasons, the Arbitrator expressed his acceptance that Ms Bassett was “someone who is prone to an emotional and nervous response”. He proceeded to find “in my view, the circumstances of [Ms Bassett’s] employment were a direct and substantial contributing factor to her injury. Being a psychological injury, the effects of her employment were cumulative”.
The Arbitrator proceeded to consider the relevance or otherwise of section 11A of the 1987 Act. Following reference to relevant authority, the Arbitrator observed that the appellant had the onus of establishing “that its conduct was reasonable”. At [58] of Reasons, the Arbitrator found that the investigation was carried out “according to the protocol that it was required to follow”, but proceeded to make a finding that the “process was overall not reasonable”. The Arbitrator at [61] summarised some evidence relating to the conduct of the investigation and concluded again that the manner in which the investigation was conducted was not reasonable in the circumstances, and made the further finding that such had led to the applicant’s psychological injury.
The Arbitrator noted that, since the hearing, Ms Bassett had sought to amend her claim to delete the words “and continuing” as they appear at Part 5.1 of the Application. That amendment appears to have been effected and the Arbitrator proceeded to determine that Ms Bassett was totally unfit for work “from 3 July 2007 to the present”. Following those findings, a determination was made in terms that have been noted at [6] above.

SUBMISSIONS ON APPEAL

The appellant’s submissions

As noted above, the appellant has enumerated seven grounds of appeal (at [16] of submissions in support of the appeal). It is proposed to attempt a summary of those matters and the arguments advanced in support.
Ground one states that the Arbitrator erred in “taking into account irrelevant considerations”. The submissions in support of this ground make reference to [21] of the Arbitrator’s reasons. It is there noted that Ms Bassett received an award for “Police Officer of the Year”. Reference is also made to the Arbitrator’s notation that Ms Bassett had been “recognised as a valuable member of the police force frontline by her peers”. A number of other observations made by the Arbitrator are noted, including that Ms Bassett was “a mature-age graduate of the Police Academy who had worked very hard to ensure her goal of being a police officer”. Further reference is made to the Arbitrator’s “finding” that “the worker was held in high regard for her policing skills and was a valuable and competent member of the Mount Druitt Local Area Command”.
It is argued that the matters noted by the Arbitrator played a “critical role” with respect to the decision reached. The relevance to the determination of the matters in issue is challenged by the appellant. Reference is made to a decision of R v Trebilco; Ex parte F.S. Falkiner & Sons Ltd (1936) 56 CLR 20 in support of the proposition that “relief may lie where a power is exercised on grounds that are ‘extraneous and irrelevant’ to its purpose”. It is put in argument that the Arbitrator’s “observations” have “unnecessarily influenced the scope of [the Arbitrator’s] investigation and subsequent findings”.
The second ground of appeal suggests error on the part of the Arbitrator by reason of “inappropriate use of [Ms Bassett’s] medical records”. The medical records referred to in this submission are those of Dr Pendel. Complaint is made by the appellant that the Arbitrator appears to have dismissed the respondent’s reliance upon the clinical notes of Dr Pendel and yet “is then able to rely upon them himself”. Particular criticism is made in the course of submissions to the Arbitrator’s reliance upon Dr Pendel’s prescription of Murelax in August 2006 as being “indicative that the applicant was suffering psychological injury from mid-2006”. In support of that criticism, reference is made to Dr Pendel’s prescription of that medication on dates many years earlier for treatment of Ms Bassett. It is further argued that, having regard to the evidence as to the nature of the medication Murelax, it is “unlikely that Dr Pendel’s prescription of Murelax in August 2006 was related to any alleged psychological injury that arose at that time”. The Arbitrator’s acceptance of Ms Bassett’s explanation for not reporting her symptoms during the course of 2006 appears, it is argued, to disregard earlier occasions when Ms Bassett was prepared to make such complaint to that medical practitioner.
The third ground of appeal suggests that the Arbitrator erred in “finding that the worker’s injury was present from mid-2006”. It is suggested that the Arbitrator’s finding concerning the timing of injury (“present from mid-2006”) is based upon the “self-report” of Ms Bassett. It is argued that Ms Bassett’s evidence is “clearly at odds with the contemporaneous notes of Dr Pendel”. It seems that the appellant argues that the Arbitrator has failed to give adequate reasons for dismissing the appellant’s reliance upon the clinical notes of Dr Pendel. The thrust of the appellant’s argument appears to be that there was no evidentiary basis for the Arbitrator’s finding that Ms Bassett’s injury “was present from mid-2006”.
Argument under this particular ground takes a different direction at [50] of the submissions. It is there suggested that the evidence would suggest that Ms Bassett’s injury “did not arise until mid-2007”. It seems to be suggested that such injury can therefore not be “tied to the investigation”, but to her “misperception of subsequent events”. In support of the submission that the worker had misperceived events, reference is made to Ms Bassett’s evidence concerning the misinterpretation of facts that had been turned against her, and the suggestion by her that management was “out of touch with frontline policing”.
The fourth ground relied upon suggests that the Arbitrator erred in “providing an improper account of the investigation into the complaint of racism against the worker and inappropriate findings with respect to the reasonableness of the investigation of the worker”. It is argued that the Arbitrator “failed to properly appreciate the nature of the investigation”. By reason of that misunderstanding, it is suggested that the Arbitrator’s view as to the reasonableness of the investigation is necessarily flawed. Concerning the question of “reasonableness”, reliance is placed by the appellant upon the decision of Aristocrat Technologies Australia Pty Ltd v Rashov [2005] NSWWCCPD 66. Reference is made to those authorities relied upon by the Arbitrator which led him to conclude that the question of reasonableness is one of fact, to be determined after weighing all the relevant factors. It is suggested that the Arbitrator has failed to “appropriately take into account all relevant factors when considering the reasonableness of the investigation”. Those matters relied upon by the appellant are elaborated at [63] of submissions. Reference is made to the Arbitrator’s finding that the investigation was conducted in accordance with police protocol, and it is suggested that, in those circumstances, it was not open for the Arbitrator to find that the investigation was not reasonable. The “fairness” of the procedure is demonstrated, it is argued, by reason of the referral of the non-reviewable finding to appeal.
The fifth ground of appeal suggests error on the part of the Arbitrator in failing to properly apply what is described as “the principle of misperception”. Reliance is placed upon the decisions in Townsend and Chemler. It is put that a psychological injury must not only be based on “actual events”, but also an “accurate perception” of those events. In the course of argument, the appellant makes reference to the decision of Sydney South West Area Health Service v Sharma [2009] NSWWCCPD 90 (‘Sharma’). It is put that Sharma misstates the principles concerning the concept of “misperception” of real events occurring at work. It is argued that Ms Bassett’s perception concerning emails that were sent to “the entire Mount Druitt police station” as being directed to her personally does not represent an accurate perception of events. It follows, it is argued, that such misperception is “not work-related and cannot found a claim for compensation, pursuant to section 4 of the Act”. These submissions appear to be based upon an assertion that there had been a finding by the Arbitrator that Ms Bassett had misperceived the character of the relevant emails (at [79] of submissions).
The sixth ground of appeal relied upon by the appellant suggests error on the part of the Arbitrator “in his application of the eggshell psyche principle”. It is argued that in reasons given by the Arbitrator he had stated as a matter of principle that “an employer has to take their employee as they find them, including their particular psychological make-up”. It is said that the observations of the court to be found in Chemler concerning “eggshell psyche” may not be adopted for the purpose of “establishing causation and liability”. Again, the appellant suggests that the Arbitrator has found that Ms Bassett has a “constitutional predisposition to overreaction”. It is argued that that predisposition is the cause of any injury flowing from the “misperceived emails”, and employment is not inculpated. Shortly stated, it is the appellant’s submission that Ms Bassett’s “accepted constitutional predisposition to overreaction is the cause of any injury flowing from the misperceived emails and not her employment”. It is argued that the content of Dr Pendel’s notes, which record an onset of injury in May 2007, supports the proposition that “causation” cannot be established.
The seventh ground of appeal asserts error on the part of the Arbitrator in finding that Ms Bassett was entitled to compensation pursuant to section 37 of the 1987 Act. Reference is made to the worker’s return to work on restricted duties in November 2007, and it is suggested in argument that she remained so engaged “to at least August 2009”. Upon that basis, it is argued that Ms Bassett is not totally incapacitated for work.
The appellant proceeds to argue that any entitlement to weekly compensation should be determined in accordance with the provisions of section 40 of the 1987 Act. These matters are addressed in the course of discussion below.

Ms Bassett’s submissions

Written submissions accompany the Notice of Opposition filed on behalf of Ms Bassett. Each ground raised on behalf of the appellant is dealt with in those submissions. It is proposed to make reference to arguments as they appear in those submissions in the course of discussion which appears below.

DISCUSSION AND FINDINGS

It is important to again note the manner in which Ms Bassett presented her case before the Arbitrator. It is clear, having regard to the evidence presented and arguments advanced on her behalf, that the psychiatric injury is alleged to have resulted from the stress and anxiety experienced by reason of the manner of conduct of the complaint investigation, as well as her deep concern relating to the seriously-flawed roster system, which had given rise to confusion and social withdrawal. This in turn gave rise to the perceived need to conduct a meeting. The consequences, being reactions to that meeting by officers at Mount Druitt, contributed to the anxiety experienced by Ms Bassett, leading, it is alleged, ultimately to incapacity when she experienced the psychological decompensation in May 2007. It is also part of her case that the Return to Work Plan, which commenced in November 2007, had been mismanaged in various respects and that such resulted in a perpetuation of her symptoms experienced as a result of the earlier injury. It is also Ms Bassett’s case that the shock and alarm she experienced when her confidential medical details had been mistakenly released had also contributed to the perpetuation of her symptoms. The appellant has raised no objection to the manner in which Ms Bassett’s case has been presented, and the evidence adduced on its behalf seeks to address those matters relevant to the allegations made.
It is clear that the appellant raised the following issues as being matters in dispute before the Arbitrator:
1.the occurrence of injury – section 4;
2.whether the requirements of section 9A had been met (employment being a substantial contributing factor to injury);
3.whether any injury proven had been wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the appellant with respect to performance appraisal and/or discipline (section 11A), and
4.the quantum of any entitlement Ms Bassett may have to weekly compensation.

A characteristic of this matter both before the Arbitrator and on appeal is that the appellant has adopted a generalised attack upon the case as presented by Ms Bassett and upon the findings made by the Arbitrator without giving particular attention to the issues requiring determination. The “grounds” which have been enumerated at [16] of submissions on this appeal are each particular complaints and criticisms of the reasoning process demonstrated by the Arbitrator in reaching his determination. It is proposed to address each of the issues enumerated above on this review, and an endeavour is to be made to address those complaints raised by the appellant in the “grounds”.
The Arbitrator had found injury proven. That finding was stated at [37] of Reasons to be founded upon the “psychiatric and psychological evidence” which was before him. The Arbitrator had accepted Ms Bassett’s history concerning her difficulties and distress experienced in the course of her employment, and accepted that there was a causal nexus between those experiences and the psychological condition as diagnosed.

The first ground of appeal

The appellant in the first ground suggests that the Arbitrator’s findings in favour of Ms Bassett were flawed in that he had taken into account irrelevant considerations. Those considerations appear to be the following matters noted in the course of his Reasons:
§that Ms Bassett had received an award for Police Officer of the Year;
§that Ms Bassett had been recognised as a valuable member of the police force frontline by her peers;
§Ms Bassett was a mature-aged graduate of the Police Academy who had worked very hard to ensure her goal of being a police officer, and
§Ms Bassett was held in high regard for her policing skills, and was a valuable and competent member of the Mount Druitt Local Area Command.
It is argued that the Arbitrator’s determination is tainted by his consideration of “extraneous and irrelevant matters”. I do not accept the argument as advanced by the appellant. There is evidence, indeed an abundance of evidence, to support the matters of fact which are the subject of this particular complaint. I am of the view that, given the factual complexity of this matter and the subject matter of the complaint made against Ms Bassett, it was necessary, as part of the Arbitrator’s evaluation of the evidence as a whole, to give some attention to the standing of Ms Bassett among those serving at Mount Druitt police station before injury. An argument upon which significant reliance was placed by the appellant concerned a challenge to the credit of Ms Bassett in that she should not be accepted as a witness of truth concerning her feelings of distress, worry, anxiety and discomfort during the latter six months of 2006. That attack was founded upon the contents of clinical notes produced by Dr Pendel, and the fact that no work time had been lost until May 2007. It is appropriate that the Arbitrator have regard to that evidence concerning Ms Bassett’s performance as part of his process of evaluation of the evidence generally. It is in that respect that the Arbitrator’s observations are relevant to his ultimate determination. The comments and observations do not form a basis for his decision, but, as argued on behalf of Ms Bassett, are matters relevant and, as such, are properly to be taken into account.

The second ground of appeal

The appellant’s second “ground” appears to be directed to the issue of “injury”. It is submitted that the Arbitrator had made “inappropriate” use of the clinical records of Dr Pendel. Submissions note that the Arbitrator acknowledged the appellant’s argument founded upon the absence of relevant complaint to be found in those notes. The thrust of the appellant’s complaint is that the Arbitrator treated the appellant’s argument as being “problematic” and yet he subsequently, in the course of his Reasons, relied upon certain notations found in that evidence. Particular attention is given in submissions to the Arbitrator’s reference to notation in those notes that Dr Pendel prescribed the drug Murelax in August 2006. The appellant’s complaint is directed in particular to the inference drawn by the Arbitrator that Ms Bassett had been prescribed Murelax for the treatment of her anxiety and stress from August 2006 (at [47] of Reasons).
There appear to be two aspects of this complaint. Firstly, the Arbitrator’s rejection of the appellant’s argument founded upon the notes and, secondly, the reliance placed upon the inferences drawn in the course of reasoning from the contents of those notes. Ms Bassett attended Dr Pendel’s surgery on three separate occasions during the second half of 2006. The dates of those consultations were 19 June 2006, 10 August 2006 and 17 August 2006. The first of those occasions happens to be the day immediately following receipt by Ms Bassett from Mr McMahon of notification concerning the complaint and proposed investigation. Her attendance upon Dr Pendel that day was prompted by reason of her feeling “not well”. It was noted by Dr Pendel that Ms Bassett then suffered nausea, abdominal pains and headache.
The second of those attendances upon Dr Pendel concerned treatment for an “old neck injury”. The third attendance, was on 17 August 2006, at which time Murelax was prescribed. Significantly, there was no note recorded by Dr Pendel concerning the reason for attendance.
The appellant’s principal argument before the Arbitrator suggested that Ms Bassett’s evidence concerning her increasing stress and anxiety during the latter half of 2006 could not be accepted having regard to the absence of any notation concerning such problems to be found in Dr Pendel’s notes. Ms Bassett’s failure to consult Dr Pendel was explained in her evidence, and such explanation was accepted by the Arbitrator. That is a conclusion with which I respectfully agree. The challenge mounted by the appellant founded upon the notes requires an acknowledgement that there are but three consultations recorded over that period of six months, and that the last of those consultations occurred for reasons not recorded. I agree with the appellant’s apparent argument that the Arbitrator’s inference drawn concerning the prescription of Murelax on that occasion was not properly open to him. The consultation is unexplained and the prescription is unexplained. There is no report from Dr Pendel. Notwithstanding my disagreement with the Arbitrator with respect to that matter, I respectfully agree with his conclusion that the appellant’s reliance upon the content of these scant records should be rejected. The notation made by Dr Pendel on 15 May 2007, the day following Ms Bassett’s cessation of work, records that she had been “under a lot of stress in the last few weeks”. That notation is consistent with those matters summarised by Ms Bassett in her evidence. The absence in that brief notation of any reference to anxiety experienced in 2006 is not, in my view, an adequate basis to cast doubt upon Ms Bassett’s description of her work-related problems. Her complaints are, to an extent, corroborated by the contents of the statements of her colleagues, Ms Rowe and Mr Ransom.

The third ground of appeal

The appellant’s third “ground” appears to be an attack upon the Arbitrator’s finding that the worker’s injury “was present from mid-2006”. This argument, again, is directed towards the issue of injury in terms of section 4. It is put, at [43] of submissions, that crucial to the Arbitrator’s reasoning process was his finding that injury arose “in mid-2006”. It is suggested that, in the absence of such a finding, a decision in favour of Ms Bassett “could not be made”. Complaint is again made concerning the Arbitrator’s rejection of the appellant’s arguments founded upon Dr Pendel’s clinical notes. That matter has been addressed earlier in these reasons. I have earlier expressed the view that the Arbitrator’s acceptance of Ms Bassett’s evidence concerning work-related stress during the course of the latter part of 2006 was correct. The appellant appears to argue that Ms Bassett’s injury “did not arise until mid-2007 and that it cannot be ‘tied to the investigation’, but to her ‘misperception of subsequent events’”. Plainly stated, it appears to be the appellant’s proposition that there was no injury until mid-2007, and that such is not compensable, given that it resulted not from work-related matters, but to a misperception of the character which is discussed in relevant authority.
It appears that the appellant has alternative arguments concerning the relevance of the investigation process. Firstly, it is put that Ms Bassett should not be accepted as a witness of truth concerning her prolonged experience of stress during the course of the investigative process. In the alternative, it seems to be suggested that, upon her psychiatric decompensation, which occurred in May 2007, there has been some reconstruction of past events which the appellant seeks to characterise as a misperception in the sense that term is addressed in the decision of Townsend. The first of those arguments has been rejected and it must follow that the second has no force.

The fourth ground of appeal

The fourth “ground” appears to address the question of “reasonableness” in the context of section 11A. The matters of complaint made by Ms Bassett concerning conduct of the investigation concern the following matters:
§the nomination of Mr McMahon as being the investigating officer;
§the protracted delay between institution of the investigation and Ms Bassett’s receipt of information concerning the outcome of the investigation;
§the timing and circumstances of the record of interview between Mr McMahon and Ms Bassett, and
§communication difficulties experienced by Ms Bassett throughout the course of the investigation.
The matters raised at [63] of submissions enumerate a number of matters which, it is suggested, had not been “adequately considered” by the Arbitrator. Attention is drawn to the divergence of work shifts performed by Mr McMahon and Ms Bassett as an explanation for the delay in conducting the interview, which ultimately occurred on 28 July 2006. Whilst it may be considered that that fact explains the delay, it does not, in my view, excuse the appellant from its obligation to deal with the matter expeditiously and in accordance with the protocol or guidelines. There is no suggestion on the evidence that the appellant was in any way unable to utilise its considerable resources to ensure the appointment of an appropriate investigator and the conduct of an interview at an early date.
The appellant makes reference to the evidence that Ms Bassett had annual leave from “August 2006 until 4 November 2006”. It is suggested that her absence during that period “undoubtedly and reasonably extended the duration of the investigation”. This submission disregards the evidence, which I accept, that Ms Bassett had expressly stated that she was anxious to have the matter resolved before her departure on annual leave. It is unclear as to whether the appellant suggests that the investigation necessarily came to a halt during Ms Bassett’s absence on leave. However, I do not accept that her absence would in any manner impair the progress of the investigation, and there is no suggestion on the evidence that the outcome of the investigation could not have been communicated to Ms Bassett during the period of her leave.
It is suggested in the statement of Mr McMahon and in submissions that the nature of the investigation changed in a significant manner following the interview conducted by Mr McMahon. It appears from Mr McMahon’s statement at [23] that, at the time of the interview, he had reached a conclusion that Ms Bassett “had not been truthful and forthright in her recollection”. It is submitted that this suggested “untruthfulness” caused delay to the investigation. I do not accept the suggestion that the timeliness of Mr McMahon’s conduct of the investigation was in any way influenced by any statement made by Ms Bassett denying the allegations concerning the alleged racist comment. Reference was made by Mr McMahon to his dealings with the Complaints Management Team. There is no evidence other than those statements made by Mr McMahon concerning the response of the Complaints Management Team.
The appellant makes reference to “alleged bias” of Mr McMahon. Those submissions, in my view, misstate the argument advanced on behalf of Ms Bassett. Her complaint concerning Mr McMahon’s appointment as investigator was not founded upon an allegation of bias but, rather, by reason of conflict arising from Mr McMahon’s knowledge of the incident following Ms Bassett’s report to him on the night of the Rooty Hill attendance. It is Ms Bassett’s complaint that Mr McMahon had knowledge of the incident which was not disclosed at the time he accepted appointment as investigator. It is correct that the Arbitrator made the observation that Mr McMahon appeared to have a “view” concerning Ms Bassett’s conduct before he began the investigation (at [61] of Reasons). It is suggested by the appellant that the Arbitrator’s observation may have been founded upon what was stated by Mr McMahon at [22] of his statement of 9 November 2009 that “I had concerns prior to the interview about the accuracy or fullness of the information I had received from Constable Donaldson and Constable Bassett”.
The Arbitrator’s observation falls far short, in my view, of any finding of bias on the part of Mr McMahon. Mr McMahon appears to be raising an issue of Ms Bassett’s credit at [22] of his statement. However, it is unclear as to what “information” he had obtained from either Ms Bassett or Mr Donaldson prior to the interview. That “information” is not identified and I conclude that it is improbable that Mr McMahon had received any information relevant to the investigation from Ms Bassett prior to the interview other than her initial report. On this review, I conclude that that fact alone disqualified Mr McMahon as a suitable officer to be nominated to conduct the inquiry. Shortly stated, I conclude that none of the matters raised at [63] of submissions put by the appellant demonstrates a failure on the part of the Arbitrator to properly assess the evidence and its weight concerning the reasonableness of the investigation process conducted by Mr McMahon.
It is convenient at this point to address the evidence relevant to the issue of reasonableness. I am not satisfied that it has been established that the manner of conduct of the investigation was reasonable within the meaning of section 11A. The entire course of the investigation from the date notice was first given to Ms Bassett to the date of reprimand is the “action” to which section 11A applies. As was observed by Spigelman CJ in Sinclair at [96]:
“Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will be not possible to isolate the effect of a single step. In such a context, the ‘whole or predominant cause’ is the entirety of the conduct with respect to, relevantly, discipline.”
I have earlier touched upon those aspects of the investigation which lead me to conclude that the action in its entirety was not reasonable. However, it is convenient at this point to enumerate those matters. They are as follows:
1.The appointment of Mr McMahon as the investigating officer. He was Ms Bassett’s senior officer on the night of the Rooty Hill attendance, and was the officer to whom she reported her concerns upon return to the station on that particular shift. It is clear that Mr McMahon’s assertion that there was no conflict arising from his appointment as investigator was, at least, prima facie a mistake.
2.The delay, which I have earlier addressed, renders the action unreasonable. The subject matter of the investigation was straightforward and apparently involved taking statements from four individuals concerning the alleged conduct, and a statement from Ms Bassett and her fellow officer. Proper management of the matter, notwithstanding those arguments and explanations raised in submissions, should have led to a far more expeditious conclusion of the investigative process. It is Dr Smith’s opinion that the significant delay in investigating the complaints “clearly took [its] toll” on Ms Bassett.
3.The timing and manner of conduct of the interview between Ms Bassett and Mr McMahon. I have dealt with this matter in [104] above.
4.The absence of reasonable communication between those concerned with the investigation and Ms Bassett. I have dealt with this matter at [105].

The fifth ground of appeal

The fifth “ground” again raises the suggested “misperception” by Ms Bassett of matters and events occurring before her psychological decompensation which occurred in May 2007. Particular reference is made to the suggested misperception of communications by email addressed to all personnel at Mount Druitt police station. Those communications concerned matters with which Ms Bassett was intimately involved and it is reasonable that the authors of the communications were expressing concern about the conduct of all involved. It is, in my view, open to inference that the emails were substantially addressed to Ms Bassett. I accept the evidence of Sergeant Rowe found in her statement dated 19 April 2008, where it was stated:
“A few days after the meeting, an email was circulated station-wide indicating that certain issues raised at the constables’ meeting undermined the authority of the Association. Although the email did not mention Kath by name, it was pretty obvious to everyone that it was directed at her. I felt this email was a slap in the face for Kath as she organised the meeting, believing she had the support of the local Association reps. I know this caused her huge levels of stress.”
I have had regard to the evidence outlined immediately above and the evidence generally and consider that the appellant’s submission at [79] should be rejected. It is there stated that there is no evidence to support an inference that the emails were directed at the worker. The emails in question concerned activities with which Ms Bassett was deeply involved and I am of the view that her response to them in no way constitutes a misperception of their content.
The Commission is not here dealing with proof of “erroneous perception of external events” as addressed by McGrath CJ in Townsend. Ms Bassett’s reaction was to real events which caused, in part, the injury as found by the Arbitrator. The appellant’s arguments raised under this ground must be rejected.

The sixth ground of appeal

The Arbitrator’s reasoning concerning Ms Bassett’s emotional and nervous response to circumstances in her workplace are to be found at [51] and [52] of his Reasons. The Arbitrator had there cited those matters stated by Spigelman CJ in Chemler concerning the relevance of the “eggshell psyche” principle. In reaching his conclusion, the Arbitrator had not, as suggested by the appellant, adopted that principle as being relevant to the question of causation of injury. The Arbitrator made it clear at [52] that he had found that the cause of injury was the cumulative effect of her employment circumstances, and that such were a direct and substantial contributing factor to injury. Whilst it is correct as pointed out by the appellant that the Arbitrator had accepted that Ms Bassett “is someone who is prone to an emotional and nervous response”, it cannot be said that the Arbitrator had treated that matter as a causal factor concerning injury. In the circumstances, I reject the appellant’s arguments raised under this “ground”.
Before proceeding to deal with the appellant’s arguments raised concerning the manner of quantification of Ms Bassett’s entitlement to weekly compensation, I consider it appropriate to return to those matters in dispute before the Arbitrator noted at [92] above. I adopt this course having regard to the somewhat random, repetitive and confusing manner in which the appellant on this appeal has sought to challenge the Arbitrator’s determination. Whilst this requires re-statement of matters earlier addressed, I consider it appropriate to summarise my conclusions.

As to the occurrence of injury within the meaning of section 4 of the 1987 Act, I respectfully agree with the Arbitrator’s acceptance of the medical evidence presented on behalf of Ms Bassett concerning the occurrence of a psychological injury caused by reason of the nature and conditions of her employment between June 2006 and May 2007. Those conditions include the manner in which the investigation was conducted and the poorly-organised roster system which gave rise to anxiety and social withdrawal. The manner of response to the constables’ meeting concerning the rosters was such as to contribute to the cause of the subject injury and the ultimate psychological decompensation which occurred in May 2007. The evidence of Dr Klug, which I accept on this review, is that, by December 2006, Ms Bassett’s symptoms worsened and she developed a major depressive disorder. That expression of opinion is founded upon an acceptance of the history as related to Dr Klug, which history was affirmed by Ms Bassett in her evidence before the Commission. It is clear from the terms of the email sent by Ms Bassett to Mr McMahon on 17 July 2006 that she was experiencing stress and frustration by reason of the manner in which the investigation had to that point been conducted, and the absence of effective communication between her superiors and herself.
The evidence of Dr Klug concerning the cause of injury and diagnosis of psychiatric disorder was supported by the evidence of Dr Smith. I accept the evidence of Dr Smith concerning Ms Bassett’s mental state during the period of his treatment and his view that her condition arose directly from the events at the workplace which occurred following the complaint in 2006. Both Dr Klug and Dr Smith were critical of the manner of assessment conducted by Ms Hernando and Ms Clarke. Dr Klug challenged the psychologists’ assumption of the role of diagnostician and Dr Smith suggested that there was no basis for the opinions as expressed by them. I accept that criticism and note that the general tenor of the psychologists’ report appears, as earlier observed, to be a forensic factual inquiry. As such, it is of little weight, if any, in determining the question as to whether, by reason of her workplace experiences, Ms Bassett had suffered a psychological injury causing incapacity.
It is to be noted that Ms Berg, consultant psychologist for HealthQuest, raised no question in her report following assessment in May 2008 concerning the occurrence of psychological injury. The overwhelming evidence from medical practitioners and other health professionals supports the conclusion of injury reached by the Arbitrator.
The events surrounding Ms Bassett’s Return to Work Plan and the disclosure of her confidential information had contributed to the aggravation and perpetuation of her psychological injury. Dr Smith addressed the problems confronting Ms Bassett during her return to work efforts and I accept his evidence that those experiences worsened her condition. Dr Klug had taken into account the great distress experienced by Ms Bassett by reason of the release of the confidential information and appeared to treat those events as being part of the “complicated sequence of events” which he considered had substantially contributed to her psychiatric injury. The views expressed by those practitioners are, in my opinion, reasonable and I accept that the cumulative effect of those matters addressed by Ms Bassett in her first statement, all of which were directly related to her employment, caused injury. Hence, her employment was a substantial contributing factor to her injury in terms of section 9A of the 1987 Act. I have earlier found on this review that there was no misperception in any relevant sense of the events which had occurred, and the appellant’s argument that there is no causal nexus between injury and employment, and that the provisions of section 9A have not been met, must be rejected.
The appellant has relied upon the provisions of section 11A by way of a defence to this claim. The investigation conducted by Mr McMahon was undoubtedly action taken by the employer in respect of, relevantly, discipline. The evidence, in my view, demonstrates that the injury received by Ms Bassett which gave rise to her psychological decompensation in May 2007 was predominately caused by the investigation. The appellant has failed, for the reasons I have attempted to outline above, to establish that its actions with respect to discipline were “reasonable” within the meaning of that section.

The seventh ground of appeal

The appellant’s last “ground” challenges the Arbitrator’s findings as to the extent of Ms Bassett’s incapacity and the quantification of her entitlement to weekly payments. As noted in the course of submissions, the Arbitrator found that Ms Bassett was totally incapacitated for work from the date of her claim, being 3 July 2007, to the date of determination, being 8 February 2010. It is submitted that the Arbitrator’s finding “is at odds with the evidence”.
There has been a failure by each party in these proceedings to adduce any relevant evidence concerning Ms Bassett’s work history post-dating her cessation of work in May 2007. The Arbitrator’s determination concerning incapacity and entitlement is open to criticism, in my view, not because it is “at odds with the evidence” but, rather, because his findings are not supported by any evidence. It is clear that the Arbitrator was troubled by the state of the evidence concerning this matter and the subject was raised by him (at [T66] 22.12.09). The transcript reveals a number of exchanges between the Arbitrator and counsel. However, no effort appears to have been made by either party to address the undoubtedly complex history of Ms Bassett’s attempted return to work and relevant details of earnings from November 2007 and thereafter.
A number of medical certificates issued by Dr Pendel are attached to the appellant’s Reply. Those certificates relate to a number of short periods of total incapacity during 2007. That evidence gives rise to a deal of confusion, given that there appear to be contradictory certificates issued in May 2007 concerning Ms Bassett’s then capacity for work. Ms Bassett’s evidence was that she commenced a Return to Work Plan exactly six months after she first ceased work in May 2007. Dr Smith recorded in his report dated 6 July 2009 that Ms Bassett was “insistent on returning to work in operational duties” and that he had attempted to assist “in reintegrating Ms Bassett into work and provided a medical clearance”.
The evidence, in my view, supports a conclusion that Ms Bassett was totally incapacitated for work for the first six months following her cessation of work on 14 May 2007. As noted by the Arbitrator, Ms Bassett’s claim commences on 3 July 2007. This date is not explained. The only evidence of relevant earnings is to be found in the schedule of wages at Part 5.2 of the Application. That schedule suggests that the current weekly wage rate at the relevant time was $1415.44 per week. Ms Bassett’s entitlement in respect of that initial period of total incapacity is in the sum of $1415.44 per week from 3 July 2007 to 12 November 2007.
Following Ms Bassett’s return to work, it is reasonably clear that she continued to suffer incapacity, that such incapacity persisted until 8 February 2010, and that such incapacity was partial. In the circumstances, the appellant is correct in challenging the Arbitrator’s finding of total incapacity. Whilst that finding was made upon the basis of those matters summarised at [66] of his Reasons, it is clear that Ms Bassett was keen to return to work in November 2007, that she had been cleared by her medical advisors to return to work on selected duties, and that, over an unspecified period of time, probably up until early 2009, Ms Bassett worked on restricted hours and restricted duties. The complete absence of relevant evidence prevents the Commission from calculating Ms Bassett’s entitlement to weekly compensation following that return to selected work. In the circumstances, it becomes necessary on this appeal to substitute a determination made by the Arbitrator concerning the extent of incapacity and entitlement in terms that appear hereunder. It is also unfortunately necessary to remit the matter to another Arbitrator to enable a proper assessment of Ms Bassett’s weekly entitlement to compensation following her return to selected duties in November 2007. Relevant evidence will need to be adduced before the Arbitrator and appropriate directions concerning such matter may be made by the Arbitrator in due course. It would be hoped that agreement can be reached between the parties concerning those periods during which Ms Bassett has worked and detail of her earnings.
Having regard to the evidence of Dr Klug, Dr Stevens, Ms Garner and Ms Berg, I conclude that Ms Bassett continued to suffer the consequences of her psychiatric injury beyond 12 November 2007, up until 8 February 2010, and that, during such period, she was partially incapacitated for work.

DECISION

Paragraph 1 of the Arbitrator’s determination dated 8 February 2010 is revoked and, in its place, the following order is made:
“1. Award for the Applicant pursuant to section 36 of the Workers Compensation Act 1987 in the sum of $1415.44 per week from 3 July 2007 to 12 November 2007.”
Paragraphs 2, 3 and 4 of the Arbitrator’s determination dated 8 February 2010 are confirmed.
The matter is remitted to a different Arbitrator to determine the quantum of Ms Bassett’s entitlement to weekly compensation in respect of partial incapacity between 13 November 2007 and 8 February 2010.

COSTS

The appellant is to pay Ms Bassett’s costs of the appeal.

Kevin O’Grady
Deputy President 28 May 2010

I, RAMON LOYOLA, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE