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

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pilarski v State of New South Wales (NSW Police Force) [2024] NSWPIC 184
APPLICANT:	John Paul Pilarski
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Michael Moore
DATE OF DECISION:	12 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation benefits arising from alleged psychological injury (post-traumatic stress disorder); respondent relied on a defence under section 11A; respondent alleged that the condition resulted from reasonable actions taken by the respondent with respect to discipline or performance appraisal; Held – on the facts that the respondent did not discharge the onus of establishing that the applicant’s condition was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline or performance appraisal.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an admitted psychological injury arising out of or in the course of his employment as a police officer on 8 July 2022 to which the employment was a substantial contributing factor. 2. The psychological injury sustained by the applicant was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline or performance appraisal as alleged by the respondent. 3. For various periods between 8 July 2022 to 8 February 2023 the applicant was incapacitated for work as a police officer and has remained incapacitated for work as a police officer since 9 February 2023. 4. That the applicant’s pre-injury average weekly earnings were $2,861.80 per week. 5. The applicant’s current work capacity is no more than six to nine hours per week with a probable income of $140 to $210 per week. The Commission orders: 6. There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 as follows: (a) from 9 February 2023 to 8 March 2023 at $2,341.80 per week; (b) from 8 March 2023 to 31 March 2023 at $928.10 per week; (c) from 1 April 2023 to 30 September 2023 at $949.30 per week; (d) from 1 October 2023 to 31 March 2024 at $960.50 per week, and (e) from 1 April 2024 to date and continuing at $989.90 per week (as adjusted applying relevant indexing. 7. Liberty is granted to either party to apply for further orders in relation to the calculation of the weekly benefits payable to the applicant if there is any dispute in relation to the amounts or dependency situation of the applicant’s wife and children such liberty to be exercised within 14 days of the date of the award. 8. There will be an award pursuant to s 60 of the Workers Compensation Act 1987 that the respondent pay the applicant’s reasonably necessary medical hospital and related treatment expenses. 9. The respondent is to pay the applicant’s costs of the proceedings. 10. The costs of both applicant and respondent are to receive an uplift of 10% in view of the complexity of the factual background of the case.

STATEMENT OF REASONS

BACKGROUND

The applicant John Paul Pilarski is a sergeant of police who alleges that he suffers from a psychological injury arising out of or in the course of his employment as a police officer.
Weekly payments are claimed from 9 February 2023 to date and continuing.
The applicant’s average weekly earnings are agreed at $2,861.80 per week and the probable earnings but for injury are, as I understand it, agreed to be not less than that amount.
At present the applicant’s work capacity is certified as being between four to nine hours per week.
State of New South Wales (NSW Police Force) (the respondent) concedes that if the applicant succeeds that the applicant would be entitled to an award at the statutory maximum given the level of his pre-injury earnings and the limited work capacity at the present time.
The applicant’s case is that he suffers from a post-traumatic stress disorder with depression and alcohol use disorder as a consequence of a number of traumatic events that he has suffered or been exposed to in the course of his employment as a police officer.
The applicant has provided a very lengthy statement of approximately 39 pages[1] detailing a series of career events or exposures that he alleges were causative of his post-traumatic stress disorder and related disorders.
[1] Application to Resolve a Dispute (Application) pp 1-39.
Of particular significance in that history was an incident on 11 April 2022 when the applicant was working at the Easter Show.
The applicant states that he was conducting what he describes as OSG duties where he was the supervisor of two other OSG officers when at approximately 8.00pm he responded to a call to a stabbing in the carnival area of the show.
When he arrived at the scene of the stabbing the victim was going into cardiac arrest and CPR was being performed on the victim.
The paramedics present at the scene were also trying to intubate and cannulate the victim.
The applicant states that shortly after he arrived at the scene a senior paramedic advised that the paramedics were about to perform a thoracotomy on the stabbing victim which was a radical procedure in an attempt to maintain blood pressure and required the cutting open of the victim’s chest.
The applicant states that he requested that both his colleagues record the procedure on their Body Worn Videos (BWVs) as being relevant evidence for a criminal investigation.
There is no dispute that at some point the applicant commenced to record on his mobile phone the procedure as it was being performed on the stabbing victim.
The applicant’s version is that he recorded the procedure to ensure the collection of evidence as the two other officers had been tasked away from the treatment area to provide security.
The respondent’s position is that the recording of the event by the applicant on his personal mobile phone was improper and should not have occurred and that there was no valid requirement for same to have occurred.
The stabbing victim (a young man named Uati) did not survive.
The applicant’s statement provides considerable detail about the further events surrounding the stabbing including dealing with the deceased’s understandably distressed mother and sister, travelling to the hospital, speaking to other family members of the victim, having to restrain distressed family members,collecting the victim’s bloodstained clothing and witnessing scenes of acute distress among family members.
In his statement the applicant stated that on the following day he spoke to a senior officer (an inspector) about the circumstances of the murder the previous night and informed that officer that he had recorded footage of the treatment of the applicant by the paramedics.[2]
[2] Application p 35.
The applicant states that the inspector did not make any adverse comment about the recording of the footage on the applicant’s phone.
According to the applicant’s statement some days after the discussion with the inspector, referred to above, he was advised that a complaint had been made about his recording of the footage on his mobile phone.
The applicant states that after being made aware of the complaint he spoke to his Commander, Inspector Yapp and advised the inspector about the footage and provided his mobile phone to the inspector to establish that he had not sent the footage to any other person or persons.[3]
[3] Application p 35.
The applicant was apparently then put on an “Interim Risk Management Plan” and because of related sanctions under the plan suffered financial penalty.[4]
[4] Application p 35.
The applicant states that at no stage between his attendance at the scene of the stabbing and being placed on the Interim Risk Management Plan was any enquiry made by his superiors as to his own welfare and mental health.[5]
[5] Application p 35.
On 20 May 2022 the applicant was interviewed by Chief Inspector Magee about the complaint.
The applicant asserts that while the interview was being conducted Chief Inspector Magee made comments such as:
“I don’t think you have anything to worry about”;
“I think you showed good initiative”;
“I think most blokes in your position would have done the same thing”.[6]
[6] Application p 35.
The applicant further states that after the interview was concluded Chief Inspector Magee said words to the following effect:
“Go away this weekend with your family, try to relax and don’t think about this complaint. I think everything will be ok, you have nothing to worry about. I’ll take care of it.”[7]
[7] Application p 35.
Despite the comments of Chief Inspector Magee the outcome of the enquiry into the complaint was that it was sustained with Inspector Yapp advising the applicant of the outcome on Friday 8 July 2022.[8]
[8] Reply p 20.
Inspector Yapp states that after being informed that the complaint had been sustained the applicant became extremely upset and said “I’m going off sick. I’ll see you in five months then.”[9]
[9] Reply p 20.
The applicant then submitted an injury notification and a medical certificate and went off work from 8 July 2022.
After being off work for a period of time the applicant apparently sought to return to work in August 2022 against what he states were the objections of his wife and treating general practitioner Dr Akhtar.[10]
[10] Application p 36.
Despite some lack of clarity in relation to dates in the applicant’s statements it seems that the applicant after seeking a return to work in August 2022 was required to undertake a fitness for duty assessment which occurred on 1 September 2022.[11]
[11] Reply p 22.
The applicant was certified fit for operational duties and returned to work.
At the time of his return to work the applicant was again placed on an Interim Risk Management Plan due to what has been described as a “serious complaint matter”.[12]
[12] Reply p 22.
The “serious complaint matter” is stated to relate to “allegations of a criminal nature” although the nature of the matter is not stated although it apparently relates to the arrest of a young Sudanese man suspected of perpetrating an armed robbery.[13]
[13] Reply p 22; Application to Admit Late Documents 1 (AALD1) p 1.
On 5 October 2022 the applicant was advised that the complaint had been dismissed and was advised on the same date that a further complaint had been made against him.[14]
[14] Reply pp 22-23.
The applicant states that in addition to the complaints concerning the events on 11 April 2022 and the arrest of the young Sudanese man there were two additional complaints made about his conduct in the period following his return to work in September 2022 – one complaint related to the applicant and other officers taking an extended coffee break and the second was made following the break-up of a relationship with a female work colleague.[15]
[15] Application p 37.
It is unclear to me whether the advice of the complaint given on 5 October 2022 related to the issue concerning the extended coffee break or to the complaint following the ending of the relationship however it seems most likely that it related to the complaint made following the break up of the relationship as that event also resulted in the issuing of an interim apprehended violence order.
The applicant states that the apprehended violence order proceedings were ultimately dismissed and no further action has been taken in relation to the matter.[16]
[16] Application to Admit Late Documents (AALD1) p 2.
The applicant states that his mental health had been deteriorating throughout the period from his return to work until 18 October 2022 when he went off work.
The applicant further states that prior to his return to work in September 2022 his wife had told him that she had noted a significant change in his mental health and she had arranged for him to see a psychologist, Caroline Swinton, who he first saw on 2 August 2022.
After going off work in October 2022 the applicant came under the care of Dr Amanda Ahmad, psychiatrist, and was ultimately admitted as an in-patient at St John of God Hospital North Richmond for intensive treatment of his post-traumatic stress disorder.
That treatment apparently involved a two week live-in period of care and treatment at the hospital in December 2022.[17]
[17] Application p 38.
The applicant has not returned to work.
The respondent has denied liability for payment of Workers Compensation benefits relying on a defence under s 11A of the Workers Compensation Act 1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline or performance appraisal (s 11A the 1987 Act);
(b) the extent of the applicant’s entitlement to weekly compensation if the respondent’s defence under s 11A of the 1987 Act is unsuccessful, and
(c) whether the applicant has an entitlement to payment of s 60 expenses.
In relation to issue (b) above it is my understanding that the respondent concedes that if the defence under s 11A of the 1987 Act does not succeed the limited present level of work capacity of the applicant is such that he would have an entitlement to weekly compensation at the maximum statutory rate.
In relation to issue (c) above there is no evidence disputing the reasonableness of the treatment or the extent of the treatment the applicant has and is receiving so in the event that the defence under s 11A does not succeed the applicant will be entitled to an award under s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application;
(b)    Reply to Application (Reply);
(c)    AALD1 filed 4 March 2024;
(d)    AALD2 filed 19 March 2024, and
(e)    Application to Admit Late Documents filed 20 March 2024 (AALD3).

Oral evidence

No oral evidence was given at the conciliation/arbitration hearing.

Additional submissions

After conclusion of the conciliation/arbitration hearing an application was made by the respondent for leave to file further written submissions.
The applicant consented to leave being given and additional written submissions were filed by the parties on 22 March 2024 (respondent) and 28 March 2024 (applicant).
Those submissions have been carefully considered by me in addition to the submissions made orally by the parties at the hearing of the matter which have also been carefully considered.

FINDINGS AND REASONS

At the hearing of the matter Mr Luke Morgan of counsel instructed by Mr Trevor Lindsell of Bell Lawyers appeared for the applicant and Mr John Gaitanis of counsel instructed by Caitlin Malone of Hall and Wilcox Lawyers appeared for the respondent.
At the commencement of the hearing Mr Gaitanis confirmed that the issue in dispute was whether the applicant’s admitted psychological illness was one that was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal or discipline. If so the respondent would make out a defence under s 11A of the 1987 Act and the applicant would not have any entitlement to workers compensation benefits under that Act.
Section 11A of the 1987 Act is in the following terms:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1)     No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3)     A ‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4)     This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
(6)     This section does not extend the definition of ‘injury’ in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7)     In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker's condition, accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’.
(8)     If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)--
(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”
I note that no issue is raised by the respondent as to the applicant’s compliance with
sub-ss (7) and (8) and Mr Gaitanis properly conceded that there was no issue that the applicant suffers from a psychological illness or disorder.
There is no issue that the respondent bears the onus of establishing a defence under the section.
To succeed in its defence under s 11A as formulated by Mr Gaitanis the respondent needs to establish two matters;
a. that the applicant’s psychological condition was wholly or predominantly caused by action taken by the respondent with respect to discipline or performance appraisal, and
b. that the action taken by the respondent with respect to discipline or performance appraisal was reasonable.
In relation to the issue of causation of the applicant’s psychological condition the starting point is the applicant’s first statement which appears in the Application.
As I have noted that statement extends for almost 39 pages. It sets out details of many traumatic events that have occurred during the applicant’s career as a police officer including attendances at post mortem examinations, viewing severely decomposed bodies, attending multiple scenes of suicides where various methods of death were involved, attending the scenes of the suicide deaths of a fellow police officer who were friends, attending the scene of numerous overdose deaths while working at Fairfield, delivering the news of the death of a person to relatives on many occasions, the death of a fellow police officer at the hands of gang members, attending the scene of a gangland slaying, having attempts made on his life, attending fatal motor vehicle accidents and so on.

There is no challenge made to the accuracy of the history of traumatic work events set out in the applicant’s statement and I accept the accuracy of what is set out in the applicant’s statement in relation to the events prior to the incident on 11 April 2022.
In relation to the description of the events on 11 April 2022 there is no challenge made to the contents of the applicant’s statement that describe the applicant’s attendance at the scene of the stabbing, the nature and extent of the treatment the stabbing victim received including the thoracotomy procedure and the difficult interactions between the applicant and the family of the deceased.
I have some difficulty with that part of the statement dealing with the recording of the thoracotomy procedure on the applicant’s mobile phone as set out on page 32 of the Application in particular the reason for the recording of the footage.
The applicant states that he asked other officers to record the events as being critical evidence for investigation purposes and that evidence is not challenged in the respondent’s case.
Despite the collection of such evidence being described as critical the officers being asked to record the footage were then allowed or were “tasked” to move away from the victim which then (on the applicant’s version of events) resulted in the applicant deciding to record events on his mobile phone.
I find it hard to understand why the applicant did not simply make sure that one of his other officers remained in place to take the footage and while that was happening undertake the tasks the filming officer would otherwise have been performing.
Given subsequent events I have significant doubts that the filming of the thoracotomy procedure was in fact legitimate gathering of evidence by the applicant as claimed by him.
I do however accept that the incident was otherwise a very traumatic one for the applicant and have no reason to disbelieve his statement where he states that:
“The events of this murder, and my dealings with the victim and his family at Westmead hospital have caused me serious mental anguish since the incident occurred. I have constant flashbacks of this event, and relive the incident in my mind daily. I often have nightmares about what I saw. I cannot watch a game of NRL, which I love, without seeing young islander males that remind me of the victim Uaiti. In particular, when I watch any games of Penrith Panthers, I have vivid flashbacks of this murder every time I watch Steven Crichton play, as he looks very similar to the victim Uaiti. This had a very detrimental affect(sic) on my health and psychological well being, and I was not coping.”[18]
[18] Application p 36
The applicant’s statement also makes clear that the process and result of the enquiry into his conduct of filming the thoracotomy procedure caused him distress leaving him with a “severe sense of betrayal by Police management, and a serious lack of trust.”[19]
[19] Application p 36
It is also the case that the statement establishes that the news of the further complaint about his conduct that was received by the applicant following his return to work on 1 September 2022 also caused the applicant distress as did the further complaints as advised to him in October 2022.[20]
[20] Application p 37.
The medical evidence commences with a Certificate of Capacity dated 8 July 2022 where Dr Neyamui Bashir diagnosed the applicant as suffering from “work related stress, anxiety, depression” caused by “involved in too many traumatic events”.[21]
[21] Application p 68.
In that certificate the applicant was noted as having no current work capacity.[22]
[22] Application p 69.
As I have already noted the applicant came under the care of Caroline Swinton, psychologist, in August 2022 prior to his return to work in September 2022.
Ms Swinton’s medical report appears in the Application at pages 56 to 57 and that report records that following a series of tests in November 2022 the applicant was likely to be suffering from a mental disorder of severe severity or severe psychological distress and that the scores were consistent with a diagnosis of Complex Post Traumatic Stress Disorder.
The applicant was described as exploring “moral injuries during his time with the service, with regular exposure to morally incomprehensible events and further exacerbated by inadequate support processes”.[23]
[23] Application p 56.
The report of Ms Swinton further recorded:
“Even so, Client has disclosed symptoms of PTSD, including re-experiencing memories of events which he had seen at work including being present during a major medical incident where a young boy’s organs were operated on outside of his body, in front of his family and who later died from his injuries.”[24]
[24] Application p 56.
Dr Tanya Ahmed consultant psychiatrist who treated the applicant at St John of God Hospital Richmond has provided a report dated 25 January 2023 (which appears to be in part a response to medical opinions obtained from a Dr Sivarubin by the respondent and which are considered below) and which relevantly noted as follows;
“I have recently treated Mr Pilarski during his inpatient stay in the trauma unit at St John of God Hospital Richmond. As part of this process, I conducted regular assessments of his mental state and explored his experience of repeated trauma exposure in his role as a police officer over many years. (Emphasis added.) I have also had access to the documentation regarding his Workcover investigation, including the psychiatric report and supplementary report and colleague statements.
I am raising significant concern regarding the adequacy of aspects of the assessment process and wish to highlight these. The assessing psychiatrist found Mr Pilarski to have symptoms consistent with a DSM 5 diagnosis of PTSD. This is consistent with my own observations, and this has been chronic and persistent in nature. The trauma phenomenology observed is consistent with the etiology of traumatic exposure experienced during Mr Pilarski’s years as a police officer. In other words, some of the symptoms he experiences can be clearly linked back to the occupational trauma by their nature and content. Mr Pilarski’s colleague’s statement that Mr Pilarski seemed fine before the recent workplace issues and stressors does not amount to a reasonable assessment or evidence of how Mr Pilarski was going before the recent series of work stressors, and it is not unusual for individuals to appear fine in the context of their work when they are in fact dealing with fluctuating emotional difficulties.
The assessing psychiatrist and I seem therefore to agree that Mr Pilarski’s predominant presenting symptoms are consistent with PTSD, and it does not therefore make sense that in the supplementary report the psychiatrist rescinded the original view to state that work stressors were the main contributor to his PTSD, unless they are also rescinding the original diagnosis? The work stress does not meet the criteria for causation of PTSD. I concur that the work stress is an important recent driver of distress and has triggered traumatic stress but do not think that Mr Pilarski would have his current symptoms in the absence of the background injury and preexisting PTSD.”[25]
[25] Application pp 54-55
I have quoted Dr Ahmed’s report at length because it is a report from the treating psychiatrist who has had the benefit of treating the applicant over an extended period of time, is prepared in circumstances where she has clearly had the benefit of reviewing the medical opinions of the psychiatrist qualified for the respondent and where she is obviously aware of the history of the work performance complaints made against the applicant and the investigation and treatment of those complaints.
The applicant qualified Dr Yajuvendra Bisht psychiatrist to provide a forensic report in the matter.
Dr Bisht’s report appears at pages 58 to 67 inclusive of the Application and in that report, Dr Bisht expresses an opinion that the applicant suffers from post-traumatic stress disorder and major depressive disorder and alcohol use disorder as a result of the “cumulative impact of the exposure to various traumatic scenes during the course of his employment with the New South Wales police.”[26]
[26] Application p 64.
On causation of the diagnosed condition the doctor expressed the following view:
“The client’s condition is predominantly caused by the cumulative impact of the exposure to various traumatic scenes during the course of his employment with the New South Wales police, with some contribution from the disciplinary process, the extra marital affair and the physical injuries.”[27]
[27] Application p 64.
The diagnosis of Dr Bisht and opinion on causation is consistent with the opinion of Dr Ahmed.
The respondent referred the applicant to Dr Thurairetnam Sivaruban, consultant psychiatrist, for the purposes of an independent medical examination.
Dr Sivaruban provided a report dated 16 November 2022 which appears at pages 25 to 34 of the Reply.
In that report Dr Sivaruban stated that,
“Currently he experiences psychological symptoms that fulfill the DSM-5 diagnostic criteria of PTSD.”[28]
[28] Reply p 29.
Dr Sivaruban further stated as his diagnosis,
“PTSD with a differential diagnosis of adjustment disorder with depressed mood and anxiety and some trauma symptoms.”[29]
[29] Reply p 30.
On causation and in response to a question from the respondent’s solicitors in the following terms.
“Do you consider that the injury was wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the employer with respect to the performance appraisal or discipline? Please provide details for your opinion.”
Dr Sivarubin responded as follows:
“The injury was wholly and predominantly caused by the long history of traumas that he had gone through as a police officer, particularly the event on 11 April. Subsequently, the complaints made against him made things worse. So a combination of multiple trauma and the complaints against him have been the major contributing factors.”[30]
[30] Reply p 31.
Dr Sivarubin provided a supplementary report dated 15 December 2022 which is found at pages 35 to 36 of the Reply and which apparently was prepared at the request of the respondent’s solicitors which request appears to have included providing the doctor with some unidentified statements the contents of which are not described by Dr Sivarubin in his supplementary report.
In his supplementary report Dr Sivarubin states:
“I have reviewed the statements provided, the further information alters my opinion on the causation of Mr Pilarski’s psychological injury” and then goes on to state:
“It is my opinion that the traumatic event of 11 April 2022 and the related outcome of the complaint have been the predominant cause of the psychological injury. It was aggravated by the second complaint against him upon his return to work. Stress-related to complaints and their outcome has resulted in trauma memories resurfacing.
In summary, I am of the opinion that actions taken by the employer were the predominant cause of Mr Pilarski’s psychological injury.”[31]
[31] Reply p 36.
I do not find the opinion expressed in Dr Sivarubin’s supplementary report to be at all persuasive.
As noted the basis of the change in opinion is only vaguely described as being “statements provided” with neither the authors nor the contents of the statements being set out in the report.
The opinion does not set out a basis for the change in view of Dr Sivarubin and is little more than a bare ipse dixit and accordingly is of little weight. It does not in my view provide a “satisfactory basis upon which the Commission can make its findings” per Beazley JA.[32]
[32] Hancock -v- East Coast Timber Products Pty Ltd [2011] NSWCA 11 at [82].
Further I note the comments of Dr Ahmed in relation to the inconsistency between the diagnosis of post-traumatic stress disorder by Dr Sivarubin and the suggested change in causation of the condition. It is difficult to understand how a reaction to a complaints process would constitute a post-traumatic stress disorder condition.
Mr Gaitanis submitted that the opinions of the doctors do not determine causation which is a matter for the Commission and that looking at all the evidence in particular the correlation between the applicant ceasing work on each occasion and the occurrence of being advised that he was subject to a complaints process I should be comfortably satisfied that the cause of the applicant’s psychological condition was the actions taken by the respondent with respect to discipline and/or performance appraisal not the traumatic events that had occurred during his career as a police officer.
There is no doubt that the question of causation is a matter for the Commission’s determination and there is wealth of authority to that effect.[33]
[33] Example: Guthrie v Spence [2009] NSWCA 369; State Transit Authority of New South Wales v El Achi [2015] NSWCCPD 71, and AV v AW [2020] NSWCCPD 9.
In this matter the evidence clearly establishes that the applicant has been exposed to a very large number of traumatic events in the course of his career as a police officer.
Further the events of 11 April 2022 would have been horrific to have viewed and been involved in particularly having to deal with traumatised family members of the deceased victim.
There is no reason to disbelieve the applicant’s statement where he sets out the ongoing “mental anguish” he experienced and continues to experience following the events of 11 April 2022.[34]
[34][34] Application p 36.
Other than the supplementary report of Dr Sivarubin all the other medical opinions in the case support a diagnosis of post-traumatic stress disorder and depression as a consequence of exposure to traumatic events over many years.
The incident of 11 April 2022 appears to be particularly significant in that history.
Drs Ahmed, Bhist and Sivarubin (in his first report) and the psychologist, Ms Swinton, all accept that the complaint processes would have contributed to the applicant’s condition but none state that the processes were the whole or predominant cause of the condition.
The respondent’s case basically rests on the correlation between the onset of the applicant’s periods of incapacity and the notification to the applicant of the result of, or the existence of, a complaint in relation to his work performance together with the opinion of Dr Sivarubin as set out in the supplementary report.
Of all the medical evidence I find the report of Dr Ahmed’s providing a diagnosis of post-traumatic stress disorder as a consequence of traumatic exposure experienced during the applicant’s years as a police officer to be particularly convincing being a report by a specialist treating psychiatrist, providing a diagnosis on the basis of a history obtained in the course of and for the purposes of treatment and not for the purposes of a workers compensation claim.
Dr Ahmed does not say that the disciplinary or work performance are of no significance but rather states that “I do not think that Mr Pilarski would have his current symptoms in the absence of the background injury and pre-existing PTSD”.[35] (Emphasis added.)
[35] Application p 55.
I accept the views of Dr Ahmed as being most persuasive in diagnosing the nature of the applicant’s injury and causation of same.
Those views are of course consistent with the other medical opinions in the case other than the comments in Dr Sivarubin’s supplementary report and are also consistent with the factual background.
It is obvious to me that the events relating to the respondent’s investigations of complaints concerning the applicant’s conduct and job performance and the outcome of those investigations had some impact on the applicant and his mental statement but I certainly am not persuaded on the balance of probabilities that those actions taken by the respondent in relation to discipline or work performance were the whole or predominant cause of the applicant’s condition of post-traumatic stress disorder.
Accordingly the respondent has failed to discharge its onus of proof in establishing the first limb of a defence under s 11A of the 1987 Act which is sufficient to dispose of the matter and there will be an award in favour of the applicant.
The applicant’s treating general practitioner has continued to certify the applicant has having no current work capacity since he ceased work in October 2022 to the present date. However I note that the applicant’s qualified psychiatrist, Dr Bhist, in his report of 26 May 2023 had the capacity to work 2 to 3 hours per day 2 to 3 days per week in a non-police role.[36]
[36] Application p 66.
Dr Sivarubin has expressed the view that the applicant was presently incapacitated at the time of his examination.[37]
[37] Reply p 32.
The work capacity of the applicant is so limited that he would be entitled to an award at the maximum statutory rate as the respondent’s defence under s 11A was unsuccessful.
Having regard to the opinion of Dr Bhist (who is the only doctor giving the applicant current work capacity) the applicant’s maximum probable earnings in unskilled and occasional part time work of six to nine hours per week would produce an income of between $140 to $210 per week approximately based on the minimum wage for Australian workers.
I note that doing the best that I can from the statements and other material before me the applicant initially ceased work on 8 July 2022 and returned to work on 1 September 2022. He then worked until 20 October 2022 and has been off work since.
As noted, the applicant’s current weekly wage rate is agreed at $2,861.80 per week.
The applicant appears to have been paid weekly compensation up to and including 8 February 2023 with the claim for weekly payments commencing from 9 February 2023.
On my calculations the applicant has been paid weekly compensation for a total of 22 weeks and 1 day.
As a police office the applicant’s entitlement to weekly compensation is not affected by the 2012 amendments to the 1987 Act.
From the applicant’s statement I understand that the applicant has a dependent wife and two dependent children (assuming that the children named Lara and Chloe are students and that the applicant’s wife is dependent on him).
On the basis of the assumptions and calculations referred to in [111] to [115] the applicant is entitled to an award of weekly compensation as follows:
a. from 9 February 2023 to 8 March 2023 at the rate of $2,341.80 per week pursuant to s 37 of the 1987 Act.
b. from 9 March 2023 to 31 March 2023 at the rate of $928.10 per week pursuant to s 37 of the 1987 Act;
c. from 1 April 2023 to 30 September 2023 at the rate of $949.30 per week pursuant to s 37 of the 1987 Act;
d. from 1 October 2023 to 31 March 2024 at the rate of $960.50 per week pursuant to s 37 of the 1987 Act, and
e. from 1 April 2024 to date and continuing at the rate of $989.90 per week pursuant to s 37 of the 1987 Act (as adjusted applying relevant indexing).
I will grant liberty to either side to apply for further orders in relation to the weekly payments calculations if there is any dispute as to amounts or the dependency situation of the applicant’s wife or children.
There will also be a general award pursuant to s 60 of the 1987 Act in respect of the applicant’s medical hospital and related expenses.

SUMMARY

The applicant suffered a psychological injury arising out of or in the course of his employment with the respondent.
I find that the psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline or performance appraisal and that the respondent has failed to establish a defence under s 11A of the 1987 Act.
As the defence to the claim under s 11A did not succeed and given the evidence of the applicant’s current work capacity the applicant has an entitlement to weekly compensation at the maximum statutory rate.

There will be an award that the respondent pay the applicant weekly compensation as follows:
a. from 9 February 2023 to 8 March 2023 at the rate of $2,341.80 per week pursuant to s 37 of the 1987 Act;
b. from 9 March 2023 to 31 March 2023 at the rate of $928.10 per week pursuant to s 37 of the 1987 Act;
c. from 1 April 2023 to 30 September 2023 at the rate of $949.30 per week pursuant to s 37 of the 1987 Act;
d. from 1 October 2023 to 31 Marc 2024 at the rate of $960.50 per week pursuant to s 37 of the 1987 Act, and
e. from 1 April 2024 to date and continuing at the rate of $989.90 per week pursuant to s 37 of the 1987 Act (as adjusted applying relevant indexing).
Liberty is granted to either party to apply to the Commission for further orders in relation to the calculation of the applicant’s entitlements to weekly compensation if there is any dispute in relation to amounts or the dependency situation of the applicant’s wife and children such liberty to be exercised within 14 days of the award.
There will be an award that the respondent pay the applicant’s reasonably necessary medical hospital and related treatment expenses pursuant to section 60 of the 1987 Act.
The respondent to pay the applicant’s costs of the proceedings.
I note that the applicant has sought an uplift in costs of 20% in view of the complexity of the factual background and the amount of work required to properly prepare the applicant’s statement.
Having reviewed the matter I am of the view that an uplift of 10% is appropriate for both parties and there will be an order accordingly.

[2024] NSWPIC 184

12 April 2024