NSW Police Service v Kehoe
[2004] NSWWCCPD 40
•6 July 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:NSW Police Service v Kehoe [2004] NSW WCC PD 40
APPELLANT: NSW Police Service
RESPONDENT: Belinda Jane Kehoe
INSURER:NSW Treasury Managed Fund
FILE NUMBER: WCC 11164-2003
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DATE OF ARBITRATOR’S DECISION: 23 October 2003
DATE OF APPEAL DECISION: 6 July 2004
SUBJECT MATTER OF DECISION: Whether decision based on correct evidence and weight of the evidence; whether injury arose out of or in the course of employment pursuant to section 4 of the Workers Compensation Act 1987; whether work was a substantial contributing factor pursuant to section 9A of the Workers Compensation Act 1987, and whether relevant case law properly applied.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined ‘on the papers’
REPRESENTATION: Appellant: Sparke Helmore Lawyers
Respondent: Walter Madden Jenkin Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant Employer is to pay the costs of appeal of the Respondent Worker
BACKGROUND TO THE APPEAL
On 20 November 2003 the NSW Police Service (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 23 October 2003.
The Insurer is the NSW Treasury Managed Fund (‘the Insurer’).
The Respondent to the Appeal is Belinda Jane Kehoe (‘the Respondent Worker/Ms Kehoe’).
The Respondent Worker filed submissions in reply to the appeal on 9 December 2003.
The Appellant Employer sought and was granted permission to file further written submissions after receiving the transcript of the proceedings before the Arbitrator. These submissions were filed with the Commission on 15 January 2004. No further substantive submissions were made, but it was sought to include pages 45 to 49 of the transcript of the proceedings in the documentation enclosed with its ‘Appeal Against Decision of Arbitrator’.
No further submissions were received from the Appellant Employer.
The matter was referred to me for review in March 2003.
No new evidence has been submitted on appeal. The documents that were before the Arbitrator, and a transcript of the arbitration proceedings, dated 26 September 2003 are in evidence before me, in this appeal.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 23 October 2003 records the Arbitrator’s orders as follows:
1. That the Respondent pay the Applicant weekly compensation at the rate of:
·$825.38 from 18/10/02 to 14/11/02 under s36 of the Workers Compensation Act 1987
·$313.10 from 15/11/02 to 28/03/02 under s37 of the Workers Compensation Act 1987.
·$313.10 from 29/03/02 to 31/03/02 under s40 of the Workers Compensation Act 1987.
·$318.50 from 1/4/03 to 15/6/03 under s40 of the Workers Compensation Act 1987.
·That the GIO be re-credited for any amounts paid subsequently to 18/10/02.
·$248.46 from 15/6/03 and continuing under s40 of the Workers Compensation Act 1987.
Such weekly payment to continue in accordance with the provisions of the Act.
2. That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses up to the sum of $419.00 on production of accounts or receipts.
3. That the Respondent pay the Applicant’s costs as agreed or taxed.
4. I certify that this matter is a complex matter in accordance with item 4.10 of Schedule 6 of the Workers Compensation (General) Regulation 1995.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
·Whether the decision of the Arbitrator is properly based on correct evidence and weight of the evidence. In particular, whether the Arbitrator erred in relying upon medical evidence “grounded on inaccuracies and allegations not supported by the evidence.”
·Whether the Respondent Worker’s injury arose ‘out of or in the course of employment’ pursuant to section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’).
·Whether work was a ‘substantial contributing factor’ to the Respondent Worker’s injury, pursuant to section 9A of the 1997 Act.
·Whether the Arbitrator erred in distinguishing this matter from earlier decisions in Zinc Corporation Limited v Scarce (1995) 12 NSWCCR 566 (‘Zinc Corporation’) and Stewart v NSW Police Service (1998) 17 NSWCCR 202 (‘Stewart’).
ON THE PAPERS REVIEW
Section 354(6) of 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.
Both the Appellant Employer and the Respondent Worker have submitted that the appeal may be determined on the basis of the written submissions made on appeal, and the documents that were before the Commission in the initial proceedings.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), which provides:
352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. Although the appeal was not registered in the Commission until 24 November 2003, it was in fact stamped as received on 20 November 2003, and therefore lodged within time.
The amount of compensation at issue on appeal is at least $5,000.00, and the Appellant Employer disputes the entirety of the award made by the Arbitrator. The threshold requirements of section 352(2) of the 1998 Act are met.
Leave to appeal is granted.
EVIDENCE
The Respondent Worker claims that she suffered a total incapacity for work as a result of an injury that arose out of or in the course of her employment with the Appellant Employer. The Respondent Worker was a NSW Senior Constable of Police, when on 22 May 2001 she attended the scene of the murder of Nigel Stiffe, a colleague’s husband, who was also a police officer. She was required to act as a support person for her colleague, Senior Constable Pitt, who was also her work partner. For the six months following the death, the Respondent Worker was required to take on her partner’s workload until she was fit to return to work following the murder of her husband. The Respondent Worker had been employed under a job share arrangement with Senior Constable Pitt.
The Respondent Worker claims that she suffered Post Traumatic Stress Disorder as a result of witnessing the murder scene of Mr Stiffe, and also because she was verbally abused by her Local Area Commander on a training day on 16 May 2002. In addition, the Respondent Worker claims that the corruption investigation at Manly Police Station, which involved her own husband who is also a police officer, and which concluded with the clearing of his name, caused her significant stress.
The Respondent Worker took time off work following the incident on 16 May 2002, and claims to have been suffering symptoms of Post Traumatic Stress Disorder, including nightmares and anxiety attacks, since the death of Mr Stiffe in 2001. The Appellant Employer initially paid weekly compensation and section 60 (of the 1987 Act) medical expenses to Ms Kehoe on the basis of an acceptance of provisional liability, from 20 May 2002. On 9 July 2002, the Appellant Employer formally accepted liability for the Respondent Worker’s claim. However, by letter dated 8 October 2002 the Insurer advised Ms Kehoe that it would cease payment of her medical expenses from 6 October 2002, and weekly compensation from 18 October 2002 as a result of the opinion of Dr Timney. In his report dated 13 September 2002, Dr Timney opined that Ms Kehoe suffered no psychological injury; that no injury arose out of or in the course of employment, and work could not be a substantial contributing factor. The Appellant Employer contends that section 4 of the 1987 Act is not satisfied.
The evidence that was before the Arbitrator and that is before me in this appeal, is:
For the Appellant Employer
·Medical Report of Dr Brian Timney, Psychiatrist, dated 13 September 2002
·Medical Report of Manly Hospital Emergency Department, dated 27 August 2001
·Employment offer from Kitchen Connection, dated 30 May 2003
·Statement of Gregory Asser, date 19 September 2003
·Extract from police diary dated 22 May 2001
·‘Request for Creation of a Work Schedule’ form
·‘Advice of changes in hours worked’ form, dated 23 January 2001
·‘Checklist-Change of Work Hours’ form, dated 12 March 2001
·Email from Belinda Jane Kehoe to May Lai, dated 10 January 2001
·Letter form NSW Police Service to Belinda Jane Kehoe, dated 12 January 2001
·Email from Louise Dickson to Belinda Jane Kehoe, dated 23 October 2002
·Letter outlining the Medical Retirement of Belinda Jane Kehoe, dated 15 May 2003
·Medical Report of Dr Peter Anderson, dated 10 December 2002
·Medical Report of Dr Peter Anderson, dated 27 June 2003
For the Respondent Worker
·Medical Report of Manly Hospital Emergency Department, dated 27 August 2001
·Letter from Raglan St Medical Centre, dated 27 August 2001
·X-ray report of Dr Matthews, dated 27 August 2001
·Triage notes of Manly Hospital, dated 27 August 2001
·Health Quest Fitness to Work Summary, dated 24 April 2003
·Health Quest Assessment Report 28 March 2003
·Medical Report of Dr Peter Klug, Psychiatrist, dated 10 April 2003
·Medical Report of Dr Peter Anderson, Psychiatrist, dated 29 November 2002
·Report of Rachel Clements, Consultant Psychologist, dated 28 May 2002
·Medical Report of Dr Robert Croft, dated 25 February 2003
·Statement of Kristin Scarlett, dated 13 May 2003
·Statement of Matthew Kehoe, dated 5 May 2003
·Statement of Belinda Jane Kehoe, dated 8 May 2003
The transcript of the proceedings of 26 September 2003 before the Arbitrator, is also before me in this matter.
SUBMISSIONS
The Appellant Employer
The Appellant Employer submits that the Arbitrator’s decision was wrongly decided in favour of the Respondent Worker. It is submitted that the Arbitrator erred in relying on the opinion of Dr Klug, as his opinion is grounded on inaccuracies and allegations not supported by the evidence. Five inaccuracies exist in the report of Dr Klug, namely: the Respondent Worker “was not ordered to the crime scene nor inappropriately ordered to be the support person for Ms Pitt”; “there was no evidence that the [Respondent Worker’s] workload was doubled in the absence of Ms Pitt”; “there was no evidence of an overt lack of support” from the Appellant Employer to the Respondent Worker; “the concurrent investigation into corruption at the Manly Police Station was conceded not to be a relevant work related factor”, and “the events surrounding the training day attended by the Applicant on 16 May 2002 were trivial and could not be found of themselves as a cause of the [Respondent Worker’s] alleged psychological injuries.”
It is further submitted that Dr Klug’s assessment as at April 2003, that Ms Kehoe’s current continuing symptoms were as a result of a mixture of post traumatic stress symptoms, stress-like symptoms and an unresolved grief reaction concerning the death of Mr Stiffe cannot be construed as work related. The Appellant Employer relies upon the cases of Stewart and Zinc Corporation in submitting that psychiatric disturbance resulting from the death of a close friend who is a work colleague, “or extrapolating the circumstances into the present situation, the death of the work colleague’s husband” does not constitute an injury arising out of or in the course of a worker’s employment. The Appellant Employer submits that the Arbitrator was wrong to distinguish the instant case from the earlier cases of Zinc Corporation and Stewart.
The Appellant Employer further submits that the Arbitrator erred in taking into consideration any psychological disturbance that arose out of the incident on the training day of 16 May 2002, as any such injury was not compensable, being a “straight litigation neurosis being a misconception of actual events, due to the irrational thinking of the Applicant leading to psychiatric illness; or subsequent rationalisation of earlier innocuous events which rationalisation leads to psychiatric illness: Townsend v Commissioner of Police 25 NSW CCR 9; Stewart v NSW Police Service.”
The Respondent Worker
The Respondent Worker submits that the decision and the award of the Arbitrator is consistent with the factual and medical evidence admitted at the hearing and ought not to be disturbed. The Arbitrator, having considered all of the factual circumstances, has made no error of law in making the decision and the award of compensation. The Respondent Worker relies substantially on the written submissions provided to the Arbitrator and on the oral submissions made during the hearing of the matter. Further reliance is made on the factual statements and medical evidence that were admitted into evidence during the hearing. The Respondent Worker submits that the Arbitrator, having had the benefit of hearing lengthy legal submissions on behalf of both parties, has properly and correctly distinguished the decisions referred to in the Appellant Employer’s ‘Application – Appeal Against Decision of Arbitrator’.
The Respondent Worker denies the assertion made by the Appellant Employer that Dr Klug’s opinion cannot be accepted because it is grounded on inaccuracies and allegations not supported by the evidence. The Respondent Worker submits that the submissions made by the Appellant Employer in this regard are without merit when the entirety of the evidence is considered.
The Respondent Worker submits that the evidence supports the contention that Ms Kehoe was called back to the police station whilst performing other duties, and was requested to attend the scene of Mr Stiffe’s murder, whilst wearing full police uniform. The Respondent Worker attended the scene with another uniformed officer with the approval of the Commander of the Manly Police Local Area Command, to give support to her colleague. The Respondent Worker submits that in a disciplined organisation such as the NSW Police Service, it is reasonable that a request from a senior officer to a subordinate officer would be taken to be an order. The Appellant Employer’s interpretation of Dr Klug’s “singular” use of the word ‘request’, does not justify the rejection of his assessment and professional opinion.
The Respondent Worker further submits that when read in context and together with other medical evidence, it was open to Dr Klug to form the opinion that it was inappropriate of the Appellant Employer to send the Respondent Worker to the crime scene, given its highly personalised nature.
In response to the Appellant Employer’s submission that there was no evidence to suggest that Ms Kehoe’s workload doubled in the absence of Ms Pitt, the Respondent Worker refers to her statement, dated 8 May 2003. This statement was admitted into evidence unchallenged, despite the Appellant having ample time to tender evidence to the contrary. In her statement, the Respondent Worker said “I was not only doing my own duties but also that of Senior Constable Pitt…It was not only the fact that I was doing the work of two Police officers, but…”
The Respondent Worker submits that an objective reading of the unchallenged evidence will support the conclusion that the Appellant Employer did not offer the Respondent Worker any support after requiring her to attend the crime scene. Nor was any replacement offered for her colleague’s position, and although the two had previously shared the role, the Respondent Worker was subsequently obliged to carry it out on her own. The Appellant Employer did not tender any evidence contrary to the Respondent Worker’s contentions in this regard, despite having been put on notice of the issues well before the hearing date.
In response to the Appellant Employer’s submission regarding the investigation into corruption at Manly Police Station, the Respondent Worker submits that she does not see the connection between her concession that the incident was not work related, and the credibility of the opinion of Dr Klug. It is submitted that it is “unclear as to how a concession made during the course of the proceedings not to rely on that particular contributing factor in support of her application in this matter can be construed to discredit the assessment and opinion of Dr Klug.”
The Respondent Worker again submits that the evidence in regard to her treatment by her Local Area Commander on 16 May 2002, was unchallenged, and that the Appellant Employer did not tender any evidence to the contrary. Nor has the Appellant Employer provided any medical evidence to support its proposition that the events of that day were trivial, and could not, of themselves, have caused the Respondent Worker’s injuries. This proposition is contrary to “the factual circumstances of a series of events that arose during the course of the [Respondent Worker’s] duties as a Police officer.” It is further submitted that this issue raised by the Appellant Employer does not discredit the opinion of Dr Klug, which is consistent with the factual circumstances as found by the Arbitrator, and is supported by the other medical evidence tendered in the proceedings before the Arbitrator.
The Respondent Worker requested leave to make further submissions in the Appellant Employer revised or refined its submissions. The Appellant Employer did not do so but simply submitted a copy of pages 45 to 49 of the transcript of proceedings before the Arbitrator, in which the reasons for her decision are set out.
DISCUSSION AND FINDINGS
There is no dispute that the Respondent Worker was employed by the NSW Police Service at all relevant times. There is no dispute that the events described in the evidence occurred. The Appellant Employer does not take issue with the Arbitrator’s finding that the Respondent Worker’s “psychological injury was caused by her husband’s involvement in the Police Integrity Commission, however found that this third factor was not work related.” The Respondent Worker does not for the purpose of the appeal, dispute the amount of compensation alleged to be at issue as outlined in the Appellant Worker’s Application ‘Appeal Against Decision of Arbitrator’. However, there is a dispute as to whether any injury sustained by Ms Kehoe arose in the course of her employment as a police officer and if so, whether her employment was a substantial contributing factor. In considering these questions, the Appellant Employer submits specifically that the Arbitrator was wrong, first in accepting the assessment and opinion of Dr Klug, as these were“grounded on inaccuracies and allegations not supported by evidence”, and second in distinguishing this case from Stewart and Zinc Corporation.
Arbitrators’ Findings
The formal findings of the Arbitrator, which are found at pages 46 to 49 of the transcript of the proceedings, are reproduced as follows:
· It’s accepted that the applicant was employed by the respondent and that she suffered an injury, which I find to be the cause of her incapacity.
·I’m satisfied on the medical evidence, and particularly that of Dr Klug, that the applicant’s illness was triggered by her reaction to the crime scene where Mr Stiffe was murdered.
·I’m satisfied also that this illness was aggravated and perpetuated by subsequent factors such as her informal support role for Constable Pitt, by the inquiries of colleagues, by her husband’s PIC hearing and by the allegations of corruption at Manly Police Station.
·I’m satisfied on the medical evidence and the evidence of the applicant that her symptoms over a 12-month period were not recognised by her as being stress related and that the stress illness consequently continued until the meeting on 15 May, when she perceived herself to be singled out for rebuke by a senior officer.
·I am satisfied also that the events of the meeting led to the applicant’s decompensation, in the words of Dr Klug , and the subsequent diagnosis of her psychological injury.
·I find on the basis of the evidence of Drs Klug and Anderson, and the psychologist Rachel Clements that the applicant’s present symptoms result mainly from three significant causes: the first cause the attendance at the crime scene; the second her support for her colleague and friend Narelle Pitt; and the third her husband’s summons to attend the PIC hearing. It’s accepted that the third factor is not employment related.
·I’m satisfied on the medical evidence that the applicant’s attendance at the scene was a significant contributing factor to the injury. I’m also satisfied that the injury arose in the course of the applicant worker’s employment and that there was some causal connection with the employment.
·…my view is that it’s this attendance at the scene which was work related, and even if I accept the submission of the respondent that grief associated with a workmate’s husband’s death is not work related, there are other factors involved in this situation where a police officer attends a crime scene and takes part in a debriefing later that distinguishes this case from the cases of Stewart and Scarce [Zinc Corporation].
·I accept the applicant’s written submission that I only need to find that employment was a substantial contributing factor, and, therefore I am satisfied that employment was a substantial contributing factor to the injury.
·I therefore don’t feel I need to go on and decide whether or not it was the applicant’s perception of events at that final meeting that caused the injury because I’m finding that it was the initial attendance at the scene, the support for the colleague and the PIC factor as being the substantive causes. I’m also not necessarily going to need to decide the different arguments about the workload and other sort of factors. I think some of them were factors, and I’ve mentioned that earlier.
·Turning to capacity, I’m satisfied on the evidence that the applicant was totally incapacitated up to the time she was certified by the Government Medical Officer as a result of an interview or a consultation on 28/3/03. So I’m therefore finding that she’s entitled to the amount sought for this period.
·I’m also satisfied on the evidence of Dr Anderson that the applicant is partially incapacitated from that date.
·She is, therefore, entitled to an award…
Injury
The Arbitrator specifically relied upon the medical evidence of Dr Peter Klug, a Forensic Psychiatrist, Dr Peter Anderson, a Consultant Psychiatrist and Ms Rachel Clements, a Consultant Psychologist. All three provided comprehensive assessments based upon the information provided by Ms Kehoe and an independent diagnosis which each carried out. This evidence is supplemented by other medical evidence including the HealthQuest report dated 24 April 2003. This is a strong body of medical evidence that supports Ms Kehoe’s claim. The Appellant Employer challenges Dr Klug’s assessment and opinion based on the five considerations, stated above. Dr Brian Timney, Consultant Psychiatrist, conducted an examination of, and assessed Ms Kehoe on 30 August 2002 at the request of the NSW Treasury Managed Fund. In his report he stated that he reviewed the available records and interviewed and examined Ms Kehoe.
Ms Kehoe was first seen by Dr Anderson on 23 July 2002 following a referral to him by Dr Croft, General Practitioner of Narraweena. He saw her on a number of occasions over the next twelve months. He made a diagnosis of post traumatic stress disorder. He stated that the relevant stressor was the murder of the police officer who was closely associated with her, noting that there were other stressors, also. In his report of 27 June 2003 he stated that she had been totally incapacitated for work as a result of the psychological injury for the period of 16 May 2002 “to the present and continuing, and permanently so.” He said, inter alia, that her condition had improved over time and treatment, but is likely to be permanent.
In her report of 28 May 2002, Ms Rachel Clements, Consultant Psychologist observed that Ms Kehoe:
appears to be someone who is emotionally sensitive and who copes with emotional distress distancing from it in the form of emotional suppression and denial. She also tends to adopt the role of the ‘coper’ or the ‘strong person’ which in this case, has been to her detriment as it has led to delaying her emotional reactions. Whilst there are some personality features that are relevant to her present emotional status, on the balance of probabilities, it appears that work is a substantial contributor to Ms Kehoe’s current distress. It seems that the cumulative effect of being a support person for her bereaved friend and colleague for 12 months following the murder of her colleague’s husband in May 2001, as well as pressure arising from her husband being under investigation for possible corruption during the PIC Inquiry… have been substantial factors contributing to her distress.
She stated further that she was of the belief that at the time Ms Kehoe went off work and at the time of the report, “her symptoms are of adequate severity to meet the diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood (Classification F43.22) as defined by the Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition.”
In his report of 13 September 2002 Dr Timney said, inter alia, that Ms Kehoe had been humiliated by a senior officer in front of her colleagues. She told Dr Timney that whilst feeling tearful and upset she suddenly realised that she was not crying about what had been said to her but rather was crying about the death of a workplace colleague’s husband some twelve months before that. When asked how she suddenly came to this realisation she was unable to explain this fully except to say that she realised she had never grieved about this death and had never had the opportunity to express any of her feelings. Dr Timney said that there was no convincing evidence to support this statement. She also informed Dr Timney that she would never consider returning to the Police Service as she was unhappy with the way she had been treated over a number of incidents. Dr Timney said that there was no evidence of prior psychiatric illness or disorder and no known family history of psychiatric illness. He stated that she exhibited no evidence of psychotic symptoms such as delusion or hallucinations and she appeared to be of average intelligence with intact cognitive functioning. She acted normally throughout the interview and gave no evidence of formal thought disorder. She did not appear to be distressed and she expressed no feelings of hopelessness or worthlessness. Dr Timney further stated:
Her current presentation is one of an absence of any psychiatric illness or disorder and her current social life and general activity levels are inconsistent with psychiatric disorder. While Senior Constable Kehoe may have been upset following a workplace meeting there is no evidence that she has developed any psychiatric illness or disorder and her behaviour may well be designed to help her exit the Police Service on a more favourable financial setting than she would if she left for other reasons. This appears a possibility that should be examined because of her lack of interest in rehabilitation and her sudden decision to leave the police service.
Dr Timney’s diagnosis was that there was no current evidence of psychiatric illness or disorder. He said that Ms Kehoe’s mental state examination was normal and her claimed symptoms did not appear consistent with other aspects of her history. He said “It is particularly noteworthy that she appeared very focussed on a desire to leave the NSW Police Service rather than receive treatment or rehabilitate back into her position.” He expressed the view that Ms Kehoe had voluntarily moved herself from employment and she would be fit to resume normal pre-injury duties if she were so motivated. He said that he would place no restrictions on her employment. He further stated:
In the absence of any formal diagnosis, any question of prognosis is inappropriate. The issue appears to be one not of medical illness but rather a disillusionment with work over conflicts with pay and unhappiness over investigations into her husband’s role as a detective at Manly Station.
Dr Timney stated that there were no issues of permanent impairment.
In his report of 29 November 2002 Dr Anderson said that he was asked to comment on Dr Timney’s report “which was apparently the basis for cessation of weekly compensation payments, and necessary medical expenses.” He said:
I don’t know how long the interview was, but there was only one interview, which on the estimate of Belinda Kehoe as provided to me was of 20 minutes duration. Dr Timney has not had ample opportunity to assess the situation, however the main stressor, the murder of the former policeman and associate is noted in the history, but no attempt is made to analyse that, it is merely ignored. Symptoms of anxiety and a history of panic attacks is noted, and insomnia is noted. At the time of interview anxiety symptoms and insomnia are noted. The symptoms of chest tightness and shallow breathing are noted as current symptoms. However when it comes to making a diagnosis no diagnosis is made and the presence of those symptoms is inconsistent with a finding of no diagnosis. Furthermore there is an absence of any inquiry as to symptoms associated with Post Traumatic Stress Disorder, such as re-experiencing phenomena, vigilance, fear of danger, phobic avoidance, and so on. Insufficient inquiry was made within the limits of the available time for assessment …In my opinion the history and examination provide all the necessary elements for a diagnosis of Adjustment Disorder as made by the Psychologist, but I would go further and say that the history and examination as conducted by myself, provide the necessary elements for the diagnosis of Post Traumatic Stress Disorder.
On 24 April 2003, Dr A Casolin, HealthQuest, reported that he had conducted an examination of Ms Kehoe who appeared anxious, tense, depressed and tearful during the interview. He said “She tends to internalise her distress. She was apprehensive about any return to work.” He concluded that she presented with significant chronic post traumatic stress disorder and chronic adjustment disorder with depression and anxiety symptoms. She received treatment but remained symptomatic and vulnerable to decompensation under pressure, and would not be psychologically fit to resume her substantive duties. Dr Casolin said that Ms Kehoe was “incapable, from a specified infirmity of body or mind, of discharging the duties of her office; that the specified infirmity is post traumatic stress disorder and that she should be expected to be or to become capable of appropriate remunerative work outside the NSW Police Service, so is not classified as totally and permanently invalided.”
Dr Klug’s report is lengthy and detailed, and contains material that is challenged by the Appellant Employer. He had the benefit of reading the reports prepared by Dr Anderson, Dr Timney and Ms Clements. However, his opinion is consistent with and supports the views of Dr Anderson, Ms Clements, and Dr Casolin of HealthQuest. He states, inter alia:
Ms Kehoe presented as a pleasant, slim, casually-dressed woman who was co-operative throughout both interviews. She gave a spontaneous, internally consistent and coherent history. She appeared to have difficulty in articulating how she feels and why she feels the way she does. Her affect was normal. She said that she remains avoidant of reminders of her police service. She expressed a desire to leave the Police Service and to follow an alternative career path. There was no evidence of psychosis, cognitive impairment or suicidal ideation.
In summary, Dr Klug states that Ms Kehoe suffered from intense anxiety-based symptoms from the time of attending the crime scene concerning Nigel Stiffe’s death when she experienced marked dissociative features. Her symptoms at that time were, he said, along the lines of an acute stress disorder and possibly fulfilled the full criteria of this condition. He went on to say:
She continued to suffer ongoing symptoms along the lines of a post-traumatic stress disorder but which probably only justify the diagnosis of an adjustment disorder with an anxious and depressed mood … Her current continuing symptoms are a mixture of both post-traumatic stress-like symptoms and an unresolved grief reaction concerning the death of Nigel Stiffe …It is my view that Ms Kehoe’s conditions of chronic adjustment disorder (probably superimposed on an initial acute stress disorder) and a possible post-traumatic stress disorder have been substantially work-related. It is a complex issue of causation but virtually all the factors associated with the onset and perpetuation of her symptoms are directly work-related and are intimately bound up with the gross lack of support by her employer. I note that her treating Psychiatrist, Dr Peter Anderson, regards her as suffering from a post-traumatic stress disorder. It is difficult to understand how Dr Timney, on the basis of what appears to be a very short interview, can come to the conclusion that there is no current evidence of psychiatric disorder and that there is no aetiological relationship with her employment as a police officer.
Notwithstanding that the Appellant Employer takes issue with a number of Dr Klug’s individual statements, there is substantial and consistent medical evidence to support the existence of Ms Kehoe’s condition. Taking the whole of the medical evidence into consideration, the Arbitrator was entitled to prefer the combined assessments of Drs Anderson, Klug, Casolin and Ms Clements to that of Dr Timney. Moreover, there is no doubt that Ms Kehoe did attend the scene of Mr Stiffe’s murder, and she did so in uniform and while on duty. It is established on the medical evidence, as the Arbitrator found, that she suffered the injury that was the cause of her incapacity and this was triggered by her attendance at the crime scene. The Arbitrator also attributed injury in part to “the support of the colleague and the PIC factor as being the substantive causes”, but did not make specific findings in respect of the other issues raised, other than saying, “I think some of them were factors, and I’ve mentioned that earlier.” She discounted the “PIC factor”, indicating that this was not employment related. The medical evidence also supports the Arbitrator’s finding as to incapacity.
It is clear, having regard to the Arbitrator’s findings that she did not rely solely or to any extent on the particular observations of Dr Klug specified by the Appellant Employer, except as outlined below. Rather, she relied on his medical assessment and opinion in the context of the whole body of medical evidence. The decision of the Arbitrator is based on the whole of the evidence, and not merely on some aspects of Dr Klug’s report, alone. In any event, I do not agree that Dr Klug’s medical evidence is fatally flawed in terms of his medical assessment and opinion, notwithstanding the contentious aspects of his report, raised by the Appellant Employer. The evidence supports the conclusions that Ms Kehoe did not suffer a mere emotional response but that the injury sustained by her was a psychological or psychiatric disorder as provided in section 11A(3) of the 1987 Act, and that it meets this test as outlined by Neilson J in Stewart, that is, that her nervous system was affected to the extent that a psychological effect was induced. Consequently, I can find no error on the part of the Arbitrator in terms of her findings as to the medical condition of the Respondent Worker, the cause of her injury and her total and partial incapacity.
Section 4 of 1987 Act
The statement dated 19 September 2003 by Inspector Gregory Asser outlines briefly, the circumstances surrounding Ms Kehoe’s appearance at the murder crime scene. The following is the substantive content of the statement:
On Tuesday 22 May 2001 I was the Duty Officer at Manly/Davidson Local Area Command between 6 am and 2.30 pm. Sometime after 11.30 am I had a conversation with Sergeant CHIDDY regarding the murder of Senior Constable Narelle PITT’s husband, Nigel Stiffe. Sergeant CHIDDY informed me that Narelle’s husband had just been murdered at his hotel in Sydney. Sergeant CHIDDY stated that he and Senior Constable Belinda KEHOE wanted to show their support and assist Narelle.
I then conferred with Superintendent CULLEN, who was the acting commander at the time and he gave approval for both officers to provide Narelle with support and welfare needs. I then informed Sergeant CHIDDY of Superintendent CULLEN’s decision.
I did not direct Senior Constable KEHOE or any other person to attend the murder scene. I was led to believe that she volunteered to attend the scene with Sergeant CHIDDY because she worked closely with Narelle PITT and they were good friends.
The Appellant Employer submits that contrary to Dr Klug’s observations, Ms Kehoe was not ordered to the crime scene nor inappropriately ordered to be the support person for Ms Pitt. Ms Kehoe’s evidence is that she was required as part of her employment, to attend the murder scene of her work colleague’s husband. She said that her attendance and duties in supporting that colleague greatly affected her. She gave details of increased workload imposed upon her by the absence from duty of her colleague, Senior Constable Pitt, and the cumulative effect that a number of incidents had on her, leading to her total incapacity for work from 16 May 2002. She was paid weekly payments and other medical expenses until October 2002, following acceptance of provisional liability. Payments ceased following the report from Dr Timney.
Having regard to the statement of Inspector Asser, it is clear that Ms Kehoe and Sergeant Chiddy attended the scene of Mr Stiffe’s murder on the authority and with the approval of Superintendent Cullen. Notwithstanding that Ms Kehoe was a “volunteer” and apparently submitted a request to be assigned to these duties, approval was given, and she and Sergeant Chiddy were then assigned to the task. Whether she was “ordered”, “required” or “volunteered” to proceed to the crime scene is immaterial. The fact is that due procedure was followed after which she was officially authorised to attend the scene of Mr Stiffe’s murder in her capacity as a police officer, in accordance with Superintendent Cullen’s approval, “to provide Narelle with support and welfare needs.” There is no evidence to suggest that she attended the scene in any other capacity or for a non-work related purpose.
The Arbitrator found that the injury sustained by Ms Kehoe arose “in the course of” her employment, that is, there was a temporal relationship between the injury and the employment. The general principle is that it is sufficient to show that a worker sustained an injury during the time and in the normal course of employment, in carrying out specified work duties, to establish that the injury arose in the course of employment (Commonwealth v Oliver [1962] 107 CLR 353). However, the worker must be engaged in doing the work for which he or she is employed or doing things that are reasonably incidental to it (Davidson v Mould [1944] 69 CLR 96). In Stewart, Neilson J said that employment did not simply mean the fact of being employed, but referred to the work that the worker was required to carry out, or more particularly, what the worker is reasonably required, expected or authorised to do to carry out his or her work. In citing a number of authorities His Honour concluded, “Looking at those criteria for establishing what is employment, it can be seen that the applicant, dealing with her workmates about work matters, falls within the definition of ‘employment’”.
The Respondent Worker in the instant case was authorised to attend the scene for a specific work-related purpose, in the course of her employment. She was doing work she was reasonably required or expected to do in accordance with the authorisation of Superintendent Cullen.
The Appellant Employer submits Stewart and Zinc Corporation support a finding that psychiatric disturbance resulting from the death of a close friend who is a work colleague, “or extrapolating the circumstances into the present situation, the death of the work colleague’s husband”, does not constitute an injury arising out of or in the course of a worker’s employment. In Stewart the death of the friend, Mrs Andrews, was not itself connected to the workplace. She died of bowel cancer. Mrs Stewart and Mrs Andrews had formed a close friendship and were work colleagues. Following Mrs Andrews’ death, Mrs Stewart was required to undertake an increased workload and responsibilities. The Zinc Corporation case was cited in Stewart. In Zinc Corporation, Clarke JA said at 571:
The only connecting factor on which the worker relied was the fact that the accident involved the death of two of his friends in the mine in which he himself worked. Those facts are insufficient, in my opinion, to demonstrate that, as a matter of common sense, that the injury arose out of the employment. It cannot, for instance, be said that the employment was a materially contributing factor to his injury nor, indeed, a contributing factor.
In his judgment at 575, MeagherJA, said:
…I am unable to see quite how the worker’s condition can be said to have arisen ‘out of’ his employment. It was the news of his mates’ deaths and the constant cognition about that news, which made the worker ‘anxious’. I do not see that this is causally related to the worker’s employment. The same news would have had the same effect if his mates had met the same fate in a mine not conducted by the appellant employer.
In Stewart, His Honour said that the first event that might constitute an injury to the worker, was her reaction to the communication to her of her lack of success in obtaining a promotion. In the instant case, the Appellant Employer submits similarly, that the events surrounding the training day when Ms Kehoe felt upset and humiliated by her senior officer, were trivial and could not of themselves be a cause of her alleged injury. These are similar observations. However, in this matter, the Arbitrator did not attribute the injury to the training day events, and on my reading of the evidence, Ms Kehoe’s reaction on that occasion was the result of the injury that had already been sustained. The circumstances of Stewart and Zinc Corporation are somewhat different than the instant case. In Stewart there was nothing work-related about Mrs Andrews’ death. The injury alleged by Mrs Stewart arose wholly from their personal friendship, and not because of anything that occurred in the course of employment. In Zinc Corporation Mr Scarce’s injury arose from the news of the deaths of his friends who worked in the same mine. Mr Scarce was not there at the time, nor was he involved in the incident in any way. The circumstances of the instant case are quite different. Ms Kehoe, a police officer, attended the murder scene of another police officer, in her official capacity, and was properly authorised to do so. Superintendent Cullen authorised her attendance in order to provide support and welfare needs to Senior Constable Pitt, the wife of the murdered police officer. Ms Kehoe and Ms Pitt were close colleagues and shared a job. The circumstances of this matter and Ms Kehoe’s involvement are wholly contained within the framework of employment and she was actively involved in performing her duties at the time of the injury. It is clear that Ms Kehoe was acting in the course of her duty when she sustained the injury. In my opinion, the Arbitrator was not in error in distinguishing Stewart and Zinc Corporation.
I find that the Arbitrator correctly found that the injury sustained by Ms Kehoe arose in the course of her employment with the Appellant Employer.
Section 9A of 1987 Act
In order to establish that employment was a substantial contributing factor to the injury there must be a causal connection between the injury and the work that the injured worker was required to do (Stanton-Cook v TAFE Commission (NSW) [1999] 17 NSWCCR 632). The degree of causal connection is less than is required to establish that the injury arose out of the employment (Farrelly v Qantas [2001] NSWCC 162). There may be more than one substantial contributing factor, but nevertheless, the employment factor must be substantial and not minor in relation to the other factors (Mercer v ANZ Banking Group Limited [2000] 20 NSWCCR 70, and Dayton v Coles Supermarkets Pty Ltd [2001] 22 NSWCCR 46). In the instant case, it is well established on the evidence that the injury arose in the course of employment; it was connected to the employment, and occurred wholly within the circumstances of employment. The effect of section 9A(3) of the 1987 Act is that a finding that an injury arose in the course of employment is not of itself, determinative. It is however, a relevant consideration (Supair Pty Ltd v Sweeney [2000] 20 NSWCCR 514). In the instant case, the causal link between employment and injury, and the fact that the injury was sustained in the course of employment, are well established on the evidence, as outlined above, and satisfy the requirements of the section.
DECISION
The Appellant Employer has established no errors of fact, law or discretion in the decision of the Arbitrator. The appeal is not allowed. The decision of the Arbitrator dated 23 October 2003 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of appeal.
Gary Byron
Deputy President
6 July 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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