Winter v New South Wales Police Force
[2010] NSWWCCPD 121
•16 November 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| STATUS: Decision set aside on appeal – See New South Wales Police Force v Winter [2011] NSWCA 330 | ||||||
| CITATION: | Winter v New South Wales Police Force [2010] NSWWCCPD 121 | |||||
| APPELLANT: | Gregory Winter | |||||
| RESPONDENT: | New South Wales Police Force | |||||
| INSURER: | Allianz Australia Insurance Limited | |||||
| FILE NUMBER: | A1-438/10 | |||||
| ARBITRATOR: | Ms M Dalley | |||||
| DATE OF ARBITRATOR’S DECISION: | 18 May 2010 | |||||
| DATE OF APPEAL HEARING: | 9 November 2010 | |||||
| DATE OF APPEAL DECISION: | 16 November 2010 | |||||
| SUBJECT MATTER OF DECISION: | Psychological injury; denial of procedural fairness; failure to give adequate reasons | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | Oral | |||||
| REPRESENTATION: | Appellant: | Mr I Latham, instructed by Baker & Edmunds | ||||
| Respondent: | Mr D Saul, instructed by SMK Lawyers | |||||
| ORDERS MADE ON APPEAL: | Time to appeal is extended until 21 June 2010. The Arbitrator’s determination dated 18 May 2010 is revoked and the matter is remitted to a different Arbitrator for re-determination. | |||||
| The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200 plus GST. Costs of the first arbitration are to follow the event of the second arbitration. | ||||||
BACKGROUND
The appellant worker, Senior Constable Winter, is a police officer. He alleges that he received a psychological injury as a result of being exposed to numerous acts of violence in the course of his employment with the New South Wales Police Force. He submitted a claim for compensation on 15 September 2008.
The Police Force’s insurer, Allianz Australia Insurance Limited (Allianz), arranged for an investigation/psychological assessment by Ms Rachael O’Donnell, consultant psychologist, in September 2008. Ms O’Donnell reported to Allianz on 9 October 2008 that the worker’s symptoms were not of “adequate frequency and severity to warrant a clinical diagnosis as defined by the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition” (DSM IV).
She concluded that his symptoms of distress presented at a “sub-clinical level” and that his work had not been a substantial contributing factor to his “sub-clinical levels of distress”. Specifically, she said that there was a lack of evidence to suggest that Senior Constable Winter had been subjected to critical and traumatic incidents at work or that management had not supported him.
Based on Ms O’Donnell’s report, Allianz disputed liability for the claim. Though the s 74 notice has, as usual, been so poorly drafted as to be almost incomprehensible, the parties appear to have agreed that Allianz disputed the following issues:
(a) whether the worker had sustained a psychological injury;
(b) if so, whether the worker’s employment had been a substantial contributing factor to that injury;
(c) whether the Police Force’s actions with regard to transfer were the whole or predominant cause of any psychological injury and, if so, whether the actions taken with respect to the transfer were reasonable, and
(d) if the worker succeeded on the above issues, whether he suffered any incapacity.
In an Application to Resolve a Dispute (the Application) registered in the Commission on 22 January 2010, Senior Constable Winter claimed weekly compensation from 8 September 2008 in the sum of $1,461.48 to date and continuing. He also claimed hospital and medical expenses in the sum of $3,500. The Application pleaded a date of injury of 8 September 2008 and described the injury as follows:
“Mixed anxiety depression/adjustment disorder with mixed anxiety and depressed mood”.
The Application described the injury as having occurred as follows:
“Accumulation of stressors from attendance at scenes of traumatic and dangerous incidents during his work as a front line police officer and increasing awareness of dangers of operational police work performed in company with junior police.”
The Application wrongly gave a date of injury of 8 September 2008 when it was clearly alleged that the injury had been caused as a result of exposure to stressful events over a period of time. It should more accurately have referred to 8 September 2008 as the deemed date of injury. This error was of no consequence as the case was clearly conducted on the basis that Senior Constable Winter’s injury had resulted from his exposure to stress in the course of his employment over a period.
In a Reply filed on 12 February 2010, the Police Force relied on the issues set out in Allianz’s s 74 notice dated 7 November 2008.
The Commission listed the matter for conciliation and arbitration on 23 April 2010. On that day, the Arbitrator permitted extremely brief cross-examination of the worker and heard lengthy oral submissions.
In a reserved decision delivered on 18 May 2010, the Arbitrator concluded that she was not satisfied that the worker had suffered a psychological injury and, presumably in the alternative, that there was insufficient evidence that he suffered an ongoing incapacity arising from any psychological injury he suffered at work on 8 September 2008. She made no finding as to whether employment had been a substantial contributing factor to the injury or whether the Police Force had made out its defence under section 11A of the Workers Compensation Act 1987 (the 1987 Act).
The Commission issued a Certificate of Determination on 18 May 2010 in the following terms:
“The Commission determines:
1. That there be an award for the Respondent in respect off [sic] the Applicant’s
claim for weekly compensation payments from the 8/09/07 to date.
2. That there be an award for the Respondent in respect of the Applicant’s
claim for section 60 of the Workers Compensation Act 1987 expenses.
3. No order as to costs.”
In an appeal filed on 16 June 2010, the worker seeks leave to challenge the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary threshold
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
It is not disputed that the monetary thresholds in s 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged on 16 June 2010, but rejected by the Registrar because it was considered that the last day for lodging the appeal in compliance with s 352(4) was 15 June. The appeal was lodged again on 21 June 2010 with submissions in support of an application to extend to time to appeal.
In support of the application that time to appeal be extended, the worker’s solicitor has set out the following chronology:
(a) the Arbitrator’s decision (dated 18 May 2010) was received in his office on 20 May 2010;
(b) on Friday 21 May 2010, the solicitor became aware that each alternate page of the Arbitrator’s Statement of Reasons was missing;
(c) the solicitor telephoned the Commission on 21 May and 24 May 2010, and received a full copy of the decision on 25 May 2010;
(d) on Friday 11 June 2010, being “concerned that for administrative reasons it may not be possible to file the application [to appeal] on Tuesday, 15 June 2010”, contact was made with the Commission and a member of staff advised that “a couple of days lee-way would be allowed in the circumstances and requested that a covering letter be attached to the appeal confirming this conversation”;
(e) Mr Edmunds, solicitor, travelled from his office at Pennant Hills to lodge the appeal on 16 June 2010;
(f) the appeal was rejected by the Commission on 16 June 2010 because it was out of time and did not include an application for an extension of time, and
(g) the appeal was lodged again, with an application for extension of time, on 21 June 2010.
At the appeal hearing, counsel for the worker, Mr Latham, submitted that an Arbitrator’s decision is made by the issuing of a Certificate of Determination and a decision is not issued until it is received by the party to whom it is directed. He relied on the decision of Latham CJ in Koon Wing Lau v Calwell (1949) 80 CLR 533 at 568 (Calwell). As a full copy of the decision was not received until 25 May 2010, it was submitted that time did not commence to run until that date and the appeal was lodged within 28 days of 25 May 2010. He also submitted, in the alternative, that the decision was made on 19 May 2010 and counting 28 days from 20 May 2010 meant that the last day on which to appeal was 16 June, the day on which the appeal was filed.
In the alternative, Mr Latham submitted there were exceptional circumstances that justified the extension of time to appeal because his instructing solicitor is a sole practitioner who had been unable to file the appeal within time on 15 June 2010 because of a death in the family.
In its written submissions, the Police Force submitted that, though the worker’s solicitor has provided a detailed chronology of events in respect of his application to extend time from 15 June to 16 June 2010, he has not provided any submissions in respect of the extension now relevant, namely from 16 June to 21 June 2010. It also submitted that the appeal does not have reasonable prospects of success and that time to appeal should not be extended. At the oral hearing of the appeal, counsel for the Police Force, Mr Saul, properly conceded that the appeal was only one day out of time and that he could point to no prejudice to his client.
The first question is, is the appeal out of time? For the reasons set out below, it is my view that the appeal was filed outside the 28-day period in s 352(4):
(a)I do not accept that Calwell has any application to the legislative provisions that govern the reckoning of time to appeal in the Commission. That case concerned, among other things, whether the action of an authorised officer in writing out and signing a form of certificate of exemption in respect of a person who might be required to pass a dictation test without delivery or notification of the same to such person is the issue or purported issue of a certificate of exemption to such person within the meaning of s 4 of the Immigration Act 1949. The High Court held that it was not. In that context, Latham CJ said (at 568) “a document which is at all times retained by a person in his own control cannot be said to have been issued by him”. That statement has no application to the 28-day period in s 352(4);
(b)an appeal against an Arbitrator’s decision must be made within 28 days “after the making of the decision appealed against” (s 352(4));
(c)an Arbitrator’s decision is made “when the Commission issues a certificate as to the determination of the dispute as required by s 294(1) of the 1998 Act” (Pt 16.2 r 2 of the Workers Compensation Commission Rules 2010 (the Rules));
(d)the Commission issued a certificate (the Certificate of Determination) under s 294 in the present matter on 18 May 2010 and time under s 352 ran from that date, not the date on which the decision was received by the worker’s solicitor;
(e)under s 36 of the Interpretation Act 1987 the “given date” for the reckoning of time under s 352(4) is 18 May 2010 and time to appeal is calculated “exclusive of that day” (emphasis added);
(f)therefore, in the present matter, time ran from 19 May 2010. Allowing 28 days from 19 May 2010 (including 19 May 2010) means that the last day to appeal within time was 15 June 2010, and
(g)as the appeal was lodged on 16 June 2010, it was lodged out of time.
Should time to appeal be extended? An extension of time in which to appeal is governed by Pt 16.2 r 12 of the Rules, which provides:
“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by McHugh J in Gallo v Dawson (1990) 93 ALR 479 (Gallo) at 480. His Honour observed that, in order to determine whether the strict application of time limits will work an injustice, it is necessary to have regard to:
• the history of the proceedings;
• the conduct of the parties;
• the nature of the litigation;
• the consequences for the parties of the grant or refusal of the application for the extension of time;
• the prospects of the applicant succeeding in the appeal, and
• upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.
For the following reasons, I am satisfied that exceptional circumstances exist that justify the extension of time in this matter:
(a)the matter was originally lodged only one day out of time. It was lodged out of time because, as a result of a death in the family, the worker’s solicitor (who is a sole practitioner) was unable to lodge the appeal on 15 June 2010. The worker’s solicitor acted promptly to re-lodge the appeal on 21 June 2010;
(b)the appeal raises issues that are strongly arguable and to lose the right to appeal would result in a demonstrable and substantial injustice to the worker, and
(c)there is no prejudice to the Police Force if time to appeal is extended.
Time to appeal is extended until 21 June 2010 and I grant leave to appeal.
Practitioners are reminded that documents may be lodged with the Commission electronically (Pt 5.3) or by facsimile transmission (Pt 8.1 r 2).
FRESH EVIDENCE
In a letter dated 21 October 2010, the worker’s solicitor sought leave to rely on fresh evidence in the form of a report from Dr Selwyn Smith, consultant psychiatrist, dated 7 October 2010. Dr Smith started treating the worker on 9 June 2010, that is, some weeks after the Arbitrator’s decision. As it was not available at the time of the arbitration, this report would most likely have qualified as fresh evidence on appeal. However, at the appeal hearing, Mr Latham did not press for the admission of Dr Smith’s report, but argued that, in the event the appeal was successful, the matter should be remitted to another Arbitrator for re-determination.
THE EVIDENCE
The worker’s evidence
The worker’s evidence is set out in a 51-page statement dated 12 June 2009. He has also outlined detail of certain specific incidents in an undated document headed “Issue”. He was also cross-examined very briefly at the arbitration.
Senior Constable Winter left school in 1983 after completing his Higher School Certificate. He undertook an upholstery apprenticeship in the family business. On completion of his apprenticeship, he worked with the State Bank until he started at the New South Wales Police Academy in September 1989. He became a probationary constable in April 1990. He married in 1992, but divorced in 2001. He has two children from that relationship.
His statement has set out, in considerable detail, his history as a police officer. That history included exposure to traumatic events such as restraining mentally disturbed people and attending murder scenes. He found his first years as a police officer to be “tough both physically and emotionally”. There were no welfare facilities for officers who were exposed to violence and death. He attended many death scenes and delivered many death notices to next of kin. This work changed his happy and outgoing outlook and made him “much more subdued”.
While working from the Redfern station in 1995, Senior Constable Winter was involved in an incident when he and another officer had bricks, paling fences and rocks thrown at them. On another occasion, a man armed with a knife turned on the worker. He felt threatened to the point where he believed that his life was in danger. Ultimately, he used his baton to disarm the man.
After six months at Redfern, he returned to police duties at North Sydney. Over the next few years, he attended many scenes involving death and tragedy. In 1997 or 1998, he attended the scene of an accident on Sydney Harbour Bridge where a woman had committed suicide by lying on the railway tracks. It was his job to inform her family of her death. He gave other examples where he had to cope with “the raw grief of a victim’s family”.
In 2001, he sought and received a transfer to Gladesville. Within six months of the transfer, he attained the rank of leading senior constable. He was part of a very good and supportive team at Gladesville and he was, initially, very happy and enjoyed going to work. He felt valued and supported.
In about 2004, he was reassigned to a different team at Gladesville. His new supervisor, Sergeant Kerri McDonald, made life very difficult for him.
As acting team leader, Senior Constable Winter sent an email to other officers about their lack of performance. A few weeks later, on 25 July 2003, the worker was informed that two junior female officers had lodged complaints against him alleging sexual harassment. He believed that the complaints were motivated by his previous email in which he criticised the officers for their performance. He believed that the sexual harassment allegations were “false and vexatious” and were retaliation for him trying to lift standards in his team.
Also in 2003, the Police Force placed the worker on a performance agreement plan for six months. He felt angry because he had done nothing wrong and the matter had not been properly investigated. The Police Force accepted the word of junior officers over his and gave him no right of reply. Six months later, a different female probationary constable made a complaint of sexual harassment against him. He denied having touched her inappropriately, but was again given no right of reply and was put on a further six months performance plan.
Following these incidents, the worker told management that he felt dissatisfied and unsafe working “on the truck” with junior female officers. He was concerned that a further unfounded complaint would see him “out”. He felt that, not only did he not receive adequate support, but his career was in jeopardy because of another frivolous complaint, which he felt had been made so that the officer concerned could be transferred to another team.
He worked as the “brief manager” or the “custody manager” for Gladesville (based at Ryde) for a period. He expressed concerns about the methods used to transport prisoners to court at Ryde. Instead of his concerns being welcomed, he was basically told to “shut up”. He felt ignored and frustrated because, not only was his life “potentially in jeopardy”, but also that of his colleagues.
In 2007, a junior female constable wore her firearms into an area where firearms were not permitted. Senior Constable Winter explained to her that she had made a “very grave mistake” that could have had dire consequences for both of them. As he spoke to her, he could see that she was upset. The junior officer made a complaint of sexual harassment against him, resulting in him being given a verbal warning. Again, it was a case where the complainant’s word was taken against his and he had been given no right of reply. The matter created anxiety, as he believed he was doing his job to the best of his ability and that he was being “vilified for reprimanding a junior officer who had made a very serious mistake” (paragraph 69).
It was constantly on Senior Constable Winter’s mind that he was dangerously close to having further action taken against him and that his career was “on the line”, which could result in a “181D notice being served” on him. He approached the Association, but was told they could do little for him.
In late 2007, he found that he was becoming increasingly tense at work. He became angry and disgusted over a man who showed no remorse over a charge of sexual assault on his five-year-old granddaughter. He felt “pushed to the limits” of his “professional boundaries”.
Also in late 2007, the duty officer, Mr Higgins, approached the worker and said that his leading senior constable rank did not coincide with his work in “brief management”. The worker agreed to relinquish his rank of leading senior constable so that he could remain in brief management and not return to general duties.
On a date not identified, the Police Force provided Senior Constable Winter with additional support in his role in brief management. That support came from Ms Burgess, who he trained in the role. In early 2008, the Police Force appointed Ms Burgess to take over the worker’s duties in brief management and he was to return to general duties “on the truck”. He was not prepared to return to general duties on a full-time basis because “of the potential for further unfounded sexual harassment allegations” and because he “felt unsupported by junior and inexperienced staff out on the street” (paragraph 73). The worker told the crime manager, Detective McNab, that he would seek a transfer out of the command. Detective McNab said that, if Senior Constable Winter were successful in obtaining a transfer, it would be supported.
He applied for a position as a “brief manager/list practitioner” at the Coroner’s Court and was told by Acting Superintendent Phillipi that his application would be successful, pending his release from Gladesville. He later received an email from Acting Superintendent Phillipi saying that he had not been released from Gladesville and the job had been given to another candidate.
Senior Constable Winter applied for a similar position at the Children’s Court at Parramatta. The human resources manager from Parramatta contacted Gladesville to obtain a suitability report. The worker was later informed that the suitability report was “highly unfavourable”. He believes that management at Gladesville “deliberately set about to sabotage any attempts for [him] to transfer out of the command” (paragraph 75).
He felt that he was “going downhill fast” and that his career was in “freefall” and there was seemingly nothing he could do about it. He developed increasing anxiety “just thinking about going to work”. He wasn’t sleeping, his appetite had disappeared and he got palpitations when he woke in the morning knowing that he was rostered for duty. He saw his general practitioner, Dr Gordon, who “verified” that he was suffering with “work related stress” and certified him unfit for work for a period of approximately seven weeks. Chief Inspector Vellar ordered the worker to see the police medical officer, Dr Verma. Dr Verma reported (on 3 April 2008) that Mr Winter suffered no clinical issues and was fit to return to his duties.
Whilst off sick, the worker sought other transfers. Chief Inspector Vellar visited Senior Constable Winter whist he was on sick leave and asked him to return to work at Gladesville on general duties. The worker felt that Chief Inspector Vellar was harassing and pressuring him to return to work “in an environment at Gladesville that was hostile to [his] wellbeing” (paragraph 78).
Chief Inspector Vellar offered the worker a secondment to World Youth Day (Operation Angelius), which he accepted because he would be away from Gladesville and the duties would be mainly administrative, though there was some front-line policing involved. After commencing the secondment, the worker was promoted to an acting sergeant’s role in logistics and transport. During Operation Angelius, Senior Constable Winter was happy to be in a work environment where he felt “valued and supported”. He worked long hours, but his “sleeping, appetite and overall demeanour was good” (paragraph 80). At the end of his secondment, he asked to be made a permanent member of the major events and incidents section, but was told that he would have to return to Gladesville. The thought of returning to Gladesville made him “feel physically ill” and he began to experience “increasing anxious and emotional distress”. Chief Inspector Vellar told him that he had to be back at work to be considered for any transfer opportunities. The worker reluctantly returned to duties at Gladesville on 11 August 2008.
Before the conclusion of his secondment, Senior Constable Winter applied for a position “at Region” as an operations manager and was interviewed. He was told that the Assistant Commissioner would not override Gladesville, who had to be willing to release him before he could take up a new position. On his return to Gladesville, Acting Superintendent Thomas told him that he would not be released until there was a suitable replacement. The worker felt that he was “being manipulated” and “being denied opportunities to advance [his] career”, but more so being denied the opportunity to get out of the “adverse environment at Gladesville which was having a negative effect on [his] health and wellbeing” (paragraph 83). Senior Constable Winter therefore found himself back on general duties and fearful of what he might encounter on the job and through interaction with his colleagues.
Soon after Senior Constable Winter’s return to general duties, Sergeant Webber called a meeting to discuss operational issues. He asked his team to come up with proactive ideas for reducing crime. None of the team members came up with any suggestions and Sergeant Webber was very vocal and aggressive. He allegedly said:
“No one has put in any orders, you are all fuckin’ lazy. I’ll do the orders and you will fuckin’ well do as you are fuckin’ well told. I don’t care if you don’t like it, you had your chance and you didn’t do it.”
The worker took offence at Sergeant Webber’s tone and comments. He expressed his concerns to the duty officer, Mr McLaughlin, who did not recall the sergeant swearing. He then raised the issue with Acting Superintendant Thomas, who agreed that the sergeant’s comments were inappropriate. Senior Constable Winter also discussed the matter with a couple of his junior colleagues, but did not “bad mouth” Sergeant Webber or his management techniques.
One day after his return to general duties at Gladesville, the worker was on night duty. In a very short period, he was involved in a number of incidents where he feared for his personal safety. On 11 August 2008, he was teamed with a very young constable and had to subdue a very agitated woman with a long psychiatric history. After the incident, he began to think about the many incidents he had attended over the years and realised that he “just couldn’t keep doing this” (paragraph 91). He found it physically and emotionally draining dealing with such people, and more so when he was feeling “vulnerable and unsupported”.
On 18 August 2008, the worker, along with other officers, restrained a mentally disturbed woman and took her to Concord Hospital. Whilst at the hospital, the woman attempted to strangle herself with an item of her clothing. Senior Constable Winter and one of the nursing staff removed the clothing from the woman’s throat. During the struggle, she attempted to scratch him with her long fingernails. After things calmed down, he considered the possibility of the woman being HIV-positive or even hepatitis B- or C-positive. Though he had not been physically injured, it went through his mind that, if he continued on general duties and kept attending such incidents, his “health and wellbeing was at real risk” (paragraph 97).
On 20 August 2008, Senior Constable Winter was working on night shift with a young male officer who was on a management plan for poor on-the-job performance. He was already feeling anxious, but felt responsible for the young officer. They were called to restrain a man who had consumed alcohol and drugs and was in an irrational state. The worker restrained the man and called for backup, which took over 15 minutes to arrive. The man was ultimately admitted to Macquarie Hospital where he was scheduled under the Mental Health Act. The worker was not criticised, but Sergeant Webber verbally abused him for not having taken his mobile phone with him when he left the car. At no time did he enquire about Senior Constable Winter’s welfare. The worker felt he had done a good job and created a model for the junior officer; however, Sergeant Webber’s negative and abusive comments, said in circumstances where they could be overheard by the junior officer, eroded all his hard work and credibility. He felt “belittled and unsupported” (paragraph 101).
On 1 September 2008, he was on night shift with Ms Halpin, a junior officer with just one year’s service, when he was called to an incident at Hunter’s Hill where a man had taken an overdose and slashed his wrists. He accompanied the man in an ambulance to hospital, where he was placed in the care of the mental health team. After the incident, he felt “an overwhelming sense of sadness for the man that he felt compelled to take his own life” (paragraph 106). He then began to think about what could have happened if the man had become violent and if he had been infected with some communicable disease.
Later on the evening of 1 September 2008, Senior Constable Winter and Ms Halpin had to restrain a mentally disturbed woman and take her to Royal North Shore Hospital, where she was scheduled under the Mental Health Act. He physically restrained the woman for 30 minutes while doctors attempted to sedate her. He felt physically and emotionally drained. On return to the station, he spoke in general terms to junior colleagues about their powers of entry, general policing techniques, and how they had to learn to take control of a situation. He was not reprimanding them, but alerting them to what they had to do if they were confronted with a similar situation without backup.
He said that his “resilience to cope with and manage the stresses of these sorts of incidents was becoming severely diminished” (paragraph 111). He felt increasingly apprehensive about going to work and being placed in situations where he would be exposed to violent and stressful incidents with little or no support from junior or inexperienced colleagues. He was determined not to let those feelings get the better of him. He decided that, though he felt unsupported by his supervisors, he could grit his teeth for a short time and hold out for a transfer.
All officers were allocated a pigeonhole for their correspondence and files. The position of the pigeonholes was a recognition of rank and, as the worker was the most experienced front-line officer, he had position number one. About two days after his return from his secondment, he found that his pigeonhole had been moved to position number nine and, a week later, it was moved to position number 15. On 7 September 2008, he saw that it had been moved to position number 16. He found it “degrading” that he had been “moved down 15 places over the course of a couple of weeks” (paragraph 112). Usually, a petty incident like that would not have concerned him but, coupled with the treatment he had been receiving, it was “too much to bear”. He did not know who was responsible, but felt “belittled and humiliated” in front of his peers. He saw it as a “public humiliation and disregard” for his rank and years of service.
He complained to Sergeant Webber and told him that he was unhappy that his pigeonhole had been moved. The sergeant explained that the move occurred because the worker no longer held the rank of leading senior constable. However, two other officers had lost that rank, but had not had their pigeonholes moved.
On Monday 8 September 2008, he was rostered for a day shift but, when he awoke, he felt physically unwell. He had not slept the previous night, but had been mulling over the events of the previous few weeks. He rang Sergeant Webber and said he would not be able to attend work and that he was going to see his doctor. He did not say that he was “sick of it all” or “that [he] had had enough”. He said that he was suffering with anxiety and was going to see his doctor. He saw Dr Gordon and explained to him what had been happening at work and described his symptoms. Dr Gordon provisionally diagnosed Post-Traumatic Stress Disorder (PTSD). Dr Gordon initially certified the worker to be unfit for two weeks, but extended that for a further two weeks. At the end of that month, Senior Constable Winter still felt unwell and unable to return to work and Dr Gordon referred him to Dr Zuessman, psychologist. The worker discussed the issues that had been affecting him and Dr Zuessman confirmed Dr Gordon’s diagnosis. He resisted the suggestion that he commence medication.
After being off work for about one week, Senior Constable Winter contacted the (Police) Association and they told him about claiming workers’ compensation. He contacted Dr Gordon, who provided him with a WorkCover certificate. In October 2008, Ms O’Donnell, consultant psychologist, contacted the worker at the request of Allianz and interviewed him at his home. Allianz denied his claim on the basis of Ms O’Donnell’s report.
Senior Constable Winter was “horrified” by the contents of her report. It cited “many untruths and distortions of the truth” that painted him in a very poor light. He specifically denied the following allegations in Ms McDonnell’s report:
(a) being unaccounted for whilst on duty;
(b) not completing his work;
(c) failing to follow orders;
(d) being untruthful and deceptive;
(e) refusing to wear appropriate attire;
(f) inappropriately using police resources;
(g) having a poor work ethic, and
(h) being unreliable and argumentative.
Senior Constable Winter said that he was very distressed by the allegations made against him personally and about his ability as a police officer. At no time whilst he was on active duty did management make any complaint that he was untrustworthy, deceitful, unaccountable or a bad influence in the workplace. He found it ludicrous and offensive to suggest that he was untrustworthy and noted that he had been awarded the national police medal for ethical and diligent service to the Police Force. In his period at Gladesville, he strived to promote systems that would simplify complicated and tedious tasks. Documents he wrote on “Reasonable Cause” and “Detention after Arrest” had been kept and used as learning tools.
The past few months had been quite horrific for him. He described himself as a hardworking person who took his job seriously and truly wanted to work. However, it was “supposed to be suitable and meaningful work” (paragraph 155). Since he had been directed to return to work, he had been unable to sleep and had problems with his diet. He feels that if he returned to work on menial duties, such as filing and filling photocopiers, he would be ridiculed. He was an intelligent person, well versed in law. When he was working at World Youth Day, he felt respected, energised and a contributing member of the Police Force. He could not go back to general duties working on the streets with junior staff. The thought of it caused him “unimaginable distress” (paragraph 157). He feared for his own safety in those situations. The thought of being put back into that situation (general policing work) has caused him stress. His head felt like it would “blow off” (paragraph 158) and his face turned red and he was sure that his blood pressure was “sky high”. He also had heart palpitations at times and his skin was flaking and splitting.
The worker said he could not return to Gladesville to be “made fun of and used again” (paragraph 159). He needed to feel like a contributing member of the workforce, not someone who was made an example of. He said he had much to offer and that he tried to get out of his situation, but was not allowed. He needed a “fresh start” to get away from general duties. It made him feel “substandard” in so many ways. The thought of going back to Gladesville had exacerbated his stress levels and post traumatic stress. He felt that he had been disadvantaged because the Command would not release him to work in other units.
Mark Winter
Mark Winter is Senior Constable Winter’s twin brother. He signed an eight-page statement on 28 June 2009.
He said that the worker had a Christian viewpoint on life and that encountering death through accident or violence did not seem to have a negative impact on him. However, after the worker had been in the job for about four years, Mark noticed that his brother “could not switch off from the job”. He took the job very seriously and was always on the lookout for danger. He seemed on edge and unable to relax. The worker related stories of violence and aggression that he seemed to “take in his stride and as part of his daily duties”. He was more “hardened” and there was a change in his use of language in describing criminals. His “happy go lucky demeanour was very much gone” when he was working at Redfern.
He noticed a change in his brother when he was working at North Sydney, but he did not identify the nature of that change.
The worker told Mark about the allegations of sexual harassment made against him and expressed his disappointment with the situation, particularly the lack of support from his manager. The worker could not believe that the situation had arisen, but more so that he was not believed.
Senior Constable Winter complained to his brother of concerns he had for his personal safety when paired with some junior officers who he regarded as completely unsuitable for the job.
When Senior Constable Winter became a brief-handling manager in 2005, he seemed happier, but still seemed as if he was “on duty 24/7”. His physical wellbeing improved and he was generally happier in himself.
The worker was angry and disappointed when he was removed from the role of brief-handling manager in 2008. He was anxious about going back out on the street and working with junior officers who did not support him. He became withdrawn and was not his normal self. He complained of a lack of sleep and generally feeling down in the dumps. He looked tired and drawn and “as if the weight of the world was on his shoulders”. It was around this time that he looked for options outside Gladesville. Mark was aware that his brother was suffering from physical symptoms of stress.
Mark added that his brother was a changed person. He had high levels of anxiety and was “strung out” most of the time worrying what would become of him. The worker would say that he was off his food and Mark could see that his brother was struggling physically and emotionally.
His brother seemed to pick up and take an interest in things again when he worked in the planning unit for World Youth Day.
Mark felt that the Police Force forced his brother back to work before he was ready. His brother’s goal was to get out of Gladesville and to find a position where his contributions would be valued and where he felt safe and supported.
After his return to work at Gladesville on general duties, there were incidents when he had to assist and virtually carry junior members of the team. He was held accountable for their inadequacies. To say that the job “freaked Greg out” was an understatement. That was all due to the lack of good staff.
In the time that his brother had been off work, Mark Winter had not seen much improvement in his demeanour or wellbeing. He seemed to have a “half empty” outlook on life and his future career prospects.
Senior Constable Hooper
Senior Constable Hooper worked as a senior constable at Gladesville between March 2003 and February 2007. In his time at Gladesville, he got to know Senior Constable Winter to be “quite meticulous” in the way he went about his duties as a brief handler. The worker was “quite prolific” in the number of station-wide memos he issued. This often got people offside and was at times annoying.
Senior Constable Hooper developed a friendly professional relationship with Senior Constable Winter, but was aware that the worker was not popular with many of his colleagues at Gladesville.
The worker was quite agitated about the complaint of sexual harassment made against him and felt that the complaint was completely unfounded.
Senior Constable Hooper knew that Senior Constable Winter was feeling unsettled at Gladesville and spoke to him about the need to leave Gladesville and find new challenges.
Senior Constable Hooper related an incident where the worker submitted a report outlining poor performance by a leading senior constable at Gladesville relating to her investigation of a serious motor vehicle accident. No action was taken against the officer and Senior Constable Winter was made to feel that he had acted inappropriately in submitting the report.
The worker carried out his duties to the best of his abilities. When he was a brief handler he would bring up issues at morning briefings, but had a tendency to wait until the end of the meeting when people were wanting to get away and start work. As a result, it was often a source of annoyance. Because of “the different type of person Greg is, his mannerisms and some of the things he says could be misconstrued”.
Sergeant Boyd
Sergeant Boyd was the State coordinator for brief managers and court process officers. A brief manager’s function is to provide quality briefs of evidence, apprehended violence order briefs and coronial briefs. He or she works with court process officers and police prosecutors to ensure legal process is managed using standardised systems and processes so that police briefs are of a high standard.
Sergeant Boyd was always impressed with Senior Constable Winter’s commitment and keenness to improve the quality of briefs. He was a “clever brief manager” because of his operational experience and knowledge of operational policing processes. From discussions he had with him in early 2008, Sergeant Boyd got the impression that Senior Constable Winter was upset at having been replaced as the brief manager. He was replaced by Ms Burgess, an officer he had trained.
Senior Constable Sullivan
Senior Constable Sullivan worked in the Gladesville Area Command based at Ryde as a custody manager between 2001 and January 2008. Since January 2008, he has been on long-term sick report because of work-related stress.
Senior Constable Sullivan stated that the worker was very “fastidious” and that he had the effect of “rubbing people up the wrong way”. He never had any doubts about Senior Constable Winter’s commitment to the organisation. However, his fastidious nature irritated people and he sent out a lot of station-wide memos about brief preparation and other legal matters. Senior Constable Winter was very supportive of junior and inexperienced officers. He was very precise in the way he went about things, escorting the prisoners and following the OH & S guidelines. In trying to do the right thing by people, the worker could be a bit “overbearing” and this “unwanted attention could be misconstrued”.
Sergeant Katsadas
Sergeant Katsadas was the licensing sergeant in the Parramatta area. He was the licensing supervisor in the Gladesville area between 2004 and 2006. Senior Constable Winter assisted him on numerous occasions. He found the worker to be a competent and reliable officer who performed his duties professionally. He also observed him assisting and training junior officers when compiling briefs of evidence. Senior Constable Winter had a positive attitude to his work and to assisting his colleagues. Sergeant Katsadas noted that he had become more withdrawn and less communicative with some of his fellow officers, but he did not say when that occurred.
Senior Sergeant Chellew
Senior Sergeant Chellew was the project manager for logistics in 2007 at the World Youth Day Security Command. He said that Senior Constable Winter had been involved in transport planning. He was generally unsupervised and tried very hard to complete his project efficiently. Senior Sergeant Chellew’s main area of concern was that Senior Constable Winter tried to be too helpful to too many people. That placed him and his project under a great deal of pressure.
Detective Sergeant O’Neill
Detective Sergeant O’Neill worked on secondment to the World Youth Day Security Command in specialist support. Though he did not work in the same area as Senior Constable Winter, he had regular contact with him for four months. He found him to be quite cheerful and happy-go-lucky. Professionally, the worker seemed competent in his role in organising transport and vehicles for use throughout the operation.
Sergeant Williams
Sergeant Williams has known Senior Constable Winter since he met him at the New South Wales Police Academy in October 1989, where they developed a firm friendship. He worked with the him at North Sydney in 1998. He thought he was a diligent and dedicated police officer. Senior Constable Winter was a stickler for doing things “by the book” and would not take shortcuts.
Not long after leaving North Sydney at the end of 1998, the worker spoke about the stresses of the job affecting his relationship and family life. Sergeant Williams had similar problems. The two men provided moral support for each other. Despite his personal problems, Senior Constable Winter’s enthusiasm for his job never waivered.
The worker transferred to Gladesville on general duties in 2001. He seemed happy in his work and, on a personal level, he seemed to be coping well. He was “more settled” and happy working as the custody manager at Ryde, away from the stresses of general duties.
In 2005, Senior Constable Winter took over responsibility for brief management. He enjoyed those duties and relinquished his position as a leading senior constable so he could remain on brief-handling duties. He was “really concerned” about the thought of going back to general duties as he felt it would place him in a position where he could be the subject of further allegations of sexual harassment.
When he was told he had to return to general duties, Senior Constable Winter was “unhappy and stressed”, anticipating that an unfounded complaint about him would be inevitable. He was never one to take time off “just for the heck of it”. If he took sick leave, he was genuinely unwell.
During this time, Sergeant Williams kept in touch with Senior Constable Winter by telephone. The worker’s demeanour was “worrying”. He definitely was not his usual bubbly self. He said he was starting to look around for other positions outside of Gladesville. During his secondment to the planning unit for World Youth Day, Sergeant Williams noted the worker’s tone of voice to be much more positive. He seemed to have refound his enthusiasm for policing. However, when Senior Constable Winter returned to general duties at Gladesville, Sergeant Williams noticed a change in his tone and demeanour on the phone. The worker spoke about stressful incidents at work where he had been left to deal with situations with no or little help from his very junior colleagues. Sergeant Williams was not surprised to hear that less than a month later Senior Constable Winter was again on sick leave suffering from work-related stress.
Sergeant Williams felt that putting Senior Constable Winter back to work at Gladesville would be an “unsafe and unhealthy environment for him both physically and emotionally”. The worker identified other areas in which he wanted to further his policing career.
Dr Verma
Dr Verma is a police medical officer. He examined Senior Constable Winter on 3 April 2008 and reported to Gladesville on the same day. The worker had been asked to return to general duties, but did not want to do so because of a perception that he would not be supported by his work partner in case of an emergency and because of fears that he would have complaints made against him. It was noted that Dr Gordon had diagnosed the worker as having anxiety.
Dr Verma’s “overall psychological assessment” was satisfactory apart from a “mild anxiety and negative attitude relating to his employment”. Dr Verma recorded that the worker had no suicidal ideation, did not have symptoms of a generalised anxiety disorder, post-traumatic stress disorder or depression, and did not have any psychotic symptoms.
Dr Verma concluded that Senior Constable Winter was fit for full operational duties and did not need a referral to a psychologist or psychiatrist. He felt the worker would benefit from accessing an employee assistance program counsellor for advice about career planning and managing negative attitudes he had towards his work duties. He should be monitored at the workplace by an appropriate officer for any change in behaviour or symptoms. If concerns remained, Dr Verma recommended a review.
Dr Gordon
Dr Gordon has been Senior Constable Winter’s regular general practitioner for approximately 24 years. On 9 November 2006, Senior Constable Winter attended complaining of problems at work, namely that he had been “demoted” and suffered a pay reduction. He worked in legal services and to maintain his pay level he would have to go “back on the beat”. Dr Gordon’s clinical notes recorded:
“V upset, can’t sleep skin has flared = seb dermatitis, hoarse.
BP 95/75. Wt 50.5. p=80
needs a break. cte 6/7 r/v 15/11”
The worker saw Dr Gordon again on 15 November 2006 when there was a discussion about returning to work the following week. The reason for attendance was recorded as “anxiety”. Senior Constable Winter attended on the receptionist at Dr Gordon’s practice on 21 November 2006 and a letter was created and printed.
Senior Constable Winter next attended on Dr Gordon on 3 March 2008. The notes for that date read:
“Has been accused of lying at work re holidays. Has been told to go back to shift work on general duties. Wants to go back to legal services and is applying for a position there.
Ref. Physio re clicking shoulder.
cte 5/3 to 8/3.”The worker attended on Dr Gordon again on 11 March 2008. The notes record that he applied for a job at the Glebe Coroner’s unit.
On 25 March 2008, Senior Constable Winter again attended on Dr Gordon. The clinical notes for that attendance record the following:
“Continuing anxiety and inability to return to basic police work which he is being pressured to do. Wants to stay off work until transfers to Coroner’s position.
Suggest get legal advice from Police Association.
cte 25/3 – 29/3.”Dr Gordon recorded on 2 April 2008 that Senior Constable Winter was “still having trouble with his position at his station” and being kept “on the beat and prevented from going to the Coroner’s Court”.
On 8 September 2008, Dr Gordon recorded:
“Still not happy at work. Trying to get out of patrol work.
Stress has led to rash on body, feels is being badly treated. Needs cert stating too stressed at work. o/e rash over sternum and in both axillae. looks like seb dermatitis or psoriasis, Rx Elocon.”Dr Gordon’s notes for 12 September 2008 record the following:
“Has spoken to Union and they suggested he apply for PTSD from some of the episodes that have happened to him. – Violent episodes.
Reason for contact:
PTSD (Post Traumatic Stress Disorder)”
Dr Gordon referred Senior Constable Winter to Dr Zuessman on 19 September 2008. The “reason for contact” was identified as PTSD.
In his report of 12 August 2009, Dr Gordon said he had seen the worker on 9 November 2006 when he complained of problems at work. Those problems were set out “in detail in his submission and briefly” in the doctor’s medical records. Senior Constable Winter described to him the difficulties he had with violent persons, some of whom were mentally disturbed, the lack of support he felt was forthcoming from his junior partners and his supervisors. He also described a lack of support for his abilities and obstruction of his advancement in the Police Force. Dr Gordon did not see the worker again until 3 March 2008 (see [102] above).
Between March 2008 and his report on 12 August 2009, Dr Gordon had seen Senior Constable Winter on 27 occasions. All of those occasions related to his work-related stress and dissatisfaction, and the physical and emotional consequences.
In his report, Dr Gordon described the following physical findings:
“Greg has variously exhibited psoriatic skin changes and weight loss.
Symptomatically there has been nervousness, irritability, loss of appetite and poor sleeping.”Dr Gordon said that, at his initial consultation, he diagnosed “somatisation of work related stress”. The observable physical signs were “skin rash and weight loss” caused by stress. Dr Gordon provided counselling and referred the worker to Dr Zuessman, clinical psychologist. He agreed with Dr Zuessman’s diagnosis.
Dr Gordon provided a handwritten response on 21 October 2008 to a series of questions from Marilyn Lambert, injury management adviser with the Police Force. He described the triggering event for Senior Constable Winter’s current condition to be an assault by a psychotic person he had been called to restrain. The symptoms reported by the worker were “anxiety attacks” with regular broken sleep. He had been reporting those symptoms for less than three months. He was able to participate in a non-operational return to work plan after 4 November 2008. He was not taking medication, but was seeing Dr Zuessman.
Dr Zuessman
Dr Zuessman is a registered psychologist. He holds a doctoral degree in psychology and has more than 25 years experience. He has held the university rank of Clinical Associate Professor in psychology and is a registered psychologist and authorised supervisor with the New South Wales Psychologists Registration Board and a Member of the Australian Psychological Society and its College of Clinical Psychologists and College of Forensic Psychologists. He saw Senior Constable Winter on five occasions between September and November 2008.
On 23 September 2008, Dr Zuessman recorded the following entry in his clinical notes:
“clear MSE other than ↑↑↑ anxiety & somewhat pressured speech. Recreation [sic] of events; spoke of exposure to trauma, repeated. Sought desk duties → not permitted. Voluntarily stepped down [a] rank, but that did not prevail. Also lost other status [sic] signs; feeling unsupported.? Adj disorder anxiety and mood.”
In his report of 30 July 2009, Dr Zuessman recorded that Senior Constable Winter presented as a thin but physically healthy male in his early 40s. He did not have any tics or disorders of movement. However, he described a range of psycho-psychological symptoms, including intermittent insomnia, poor appetite accompanied by weight loss, and occasional headaches. His speech was pressured.
Senior Constable Winter’s mood appeared to be influenced by multiple worries regarding historical events and incidents. His mood appeared to be “dysphoric and anxious” and he appeared to be “tense, somewhat restless and on edge”. There appeared to be “irritability in his mood, being quickly aroused and reactive to aspects of conversation, and self-reflective moments when he described feeling worthless”. He was “somewhat ruminative about historical work events” and they occupied much of his thought contents. Overall, the worker’s behaviour was appropriately controlled. He had a busy social life. He spent time with his children, visited his parents and brother, cycled, lifted weights, practised karate and went sailing.
In terms of his work, Dr Zuessman recorded that Senior Constable Winter was heavily involved on the “front line”. His experience included repeated exposure to violence and death, including the delivery of death messages. After so many episodes, the worker reported a sense of “neutrality”. However, he made extra efforts to obtain additional training and accreditations so he would no longer have to work in a role with direct exposure to trauma. This became his desired goal, which he had not yet been able to attain.
Senior Constable Winter experienced distress within a workplace culture that involved colleagues ridiculing one another for their differences. He was targeted because of his size and because he did not drink alcohol. He therefore believed that he always had to show himself to be capable and to “prove” himself to others. He expressed a sense of responsibility for junior officers on patrol with him. He was sent many junior officers who were on performance management plans and therefore earned the reputation as operating “the spastic car”. He found this difficult as he took pride in his work and sought positive acknowledgement.
Senior Constable Winter subjectively experienced a sense of feeling “unsafe”. He attributed that to direct threats of violence that detainees made upon him and his dear ones, often going home and “thinking about it for days”. As a result, he would sleep with his dogs for comfort and a sense of security. He felt that he was “at risk” when he was paired with inexperienced or female officers because he had to single-handedly subdue perpetrators while other officers “acted like spectators”. He felt as though he was on his own and that “it’s a war zone”. However, he absorbed the stress because of a sense of responsibility to keep his colleagues safe and a personal belief system articulated as “no way I’d ever complain against another officer”.
He believed that his seniority was “held against him” and that he was “expected to deal with lots” on the job and to regularly cope with stressful incidents without raising any issues. From his perspective, he did not receive adequate support from superiors or from the organisation. His expression of personal limits to stress tolerance and consequent requests for appropriate assignment were not heeded. He sought work assignments that were challenging and required effort, but would not place him in distressing circumstances.
Dr Zuessman concluded that the clinical interviews, mental status, and review of documentation were convergent and yielded a consistent picture of an individual “experiencing personal distress in response to exposure to incidents at work”. Senior Constable Winter’s avoidance behaviour was “apparently a psychological response to what was perceived as distressing”.
Dr Zuessman concluded that Senior Constable Winter did not evidence the full criteria for the diagnosis of PTSD and “thus a differential diagnosis of Adjustment Disorder was considered as is appropriate in situations in which the symptom pattern occurs in response to stressors that are not extreme or in which the response to extreme stressors does not meet the symptom criteria”.
Dr Zuessman concluded:
“30 In my opinion, repeated exposure to stressors typically associated with policing affected Mr Winter so as to cross a threshold of his tolerance. It appeared that Mr Winter was struggling to cope for some time and the index incidents signalled his limits. The cumulative effects of Mr Winter’s policing experience thus developed into symptoms which met the criteria for Adjustment Disorder, With Mixed Anxiety and Depressed Mood, in accordance with the Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition, Text Revision.”
With adequate structure accompanying a work role appropriate to his experience, skills, interests, and which he would consider challenging, as well as the availability of supportive counselling, Dr Zuessman felt that Senior Constable Winter “should be able to return to work”.
Dr Canaris
Dr Canaris, consultant psychiatrist, examined Senior Constable Winter for medicolegal purposes on 20 November 2009 and reported on 23 November 2009. He took a history that the worker had been a briefs manager from 2005 until 2008 when, due to a shortage of senior staff, he was transferred to general duties. The worker went on holidays hoping to sort his position out in the interim. He had problems with general duties because his position was not respected and he felt unsafe with junior staff.
On his return to Gladesville station, he found himself losing weight and being unable to sleep. Every day he went to work he felt “very anxious” and worried that his junior partner would let him down. An application to be transferred to a position as a project manager was blocked. Every time he walked into work, he felt sick. He would check his roster and see that he was with probationary constables. He felt teary and sad and that it was “inevitable” that something was going to happen to him.
The Arbitrator’s finding that Senior Constable Winter had been “less than frank” suggested that she formed an adverse view of his credit on an issue where she had stopped cross-examination because Dr Gordon’s notes were in evidence and it was, in her view, only a matter for submissions. However, Dr Gordon’s notes did not fully answer the question of what complaints the worker made in his attendances prior to 12 September 2008. It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]–[36]).
In his report of 12 August 2009, Dr Gordon stated that Senior Constable Winter’s problems were only “briefly” set out in his medical records. That was a clear acknowledgment that his notes were (not surprisingly) not a complete record of the worker’s complaints. He added that the worker had, among other things, described to him the difficulties he had with violent persons and the lack of support he felt from his junior partners and supervisors. It is unclear from the report (or the notes) exactly when Dr Gordon took that history.
However, if it was to be suggested that Senior Constable Winter did not give that history (or a similar history of stress at work) to the doctor until after he saw the Police Association and that his statement was “less than frank about the timing of his diagnosis in relation to his obtaining advice from the [Police] [A]ssociation”, then, as a matter of procedural fairness, that assertion had to be put to him (either in cross-examination or in some other way) because it was not a matter that was obvious from the documentary evidence. It was merely one possible inference from a reading of the whole of page 37 of Senior Constable Winter’s statement.
Mr Stanton attempted (quite properly) to raise the matter in cross-examination when the worker’s counsel objected. As Mr Stanton had not finished his question, the objection was premature. However, rather than ruling on the objection, the Arbitrator wrongly said it was not necessary to ask such questions because the doctor’s notes were in evidence. She then made an adverse credit finding against Senior Constable Winter based on the notes and her interpretation of the worker’s statement. That interpretation was adverse to Senior Constable Winter in circumstances where that may or may not have been appropriate.
From Senior Constable Winter’s perspective, his statement was not an issue because he had first seen Dr Gordon because of “somatisation of work related stress” in November 2006 (Dr Gordon’s report 12 August 2009) and the doctor had made a provisional diagnosis of PTSD after the worker explained what had happened to him at work. His statement was accurate and he had no need to deal further with it. Mr Saul’s criticism of the presentation of the worker’s case was unfounded.
It follows that I find that the Arbitrator denied Senior Constable Winter procedural fairness by making an adverse credit finding on an issue that he did not have a reasonable opportunity to answer because she prematurely terminated the cross-examination. As I am not satisfied that the Arbitrator’s error could not possibly have affected the result, the appeal must be upheld (Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147, applied in Toll Pty Ltd v Morrissey [2008] NSWCA 197).
In the event that the appeal was upheld, Mr Latham sought a new hearing before a different Arbitrator. In these circumstances, it is not strictly necessary to deal with the failure to give reasons issue. However, as the parties made lengthy submissions on this issue, it is appropriate that I consider and determine it.
Reasons
Mr Latham submitted that the Arbitrator failed to give adequate reasons for her decision in that she did not explain the basis upon which she came to her decision and did not explain the basis upon which Senior Constable Winter’s expert evidence was not taken into account.
Mr Saul submitted that the Arbitrator examined all the evidence and did not accept an injury occurred because:
(a)the worker was not reliable;
(b)the worker’s medical case was not convincing, and
(c)mere distress could not be elevated to an injury.
It is not disputed that an arbitrator has a common law and statutory obligation to give reasons for his or her decision (Pt 15.6 of the Rules). A failure to refer to relevant evidence, or expose the reasoning process that led an arbitrator to a conclusion, may constitute error.
In Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329, Sackville AJA (Campbell JA and Bergin CJ in Eq agreeing) stated (at [52]–[53]):
“52 The principles relating to the obligation of a trial judge to give adequate reasons for making findings of fact, including findings said to be demeanour based, were summarised by McColl JA (with whom Ipp JA and Bryson AJA agreed) in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110. Her Honour’s statement of the principles was accompanied by detailed citation of authority. The following is a summary, with reference only to some of the leading authorities:
(i) The giving of adequate reasons lies at the heart of the judicial process, since a failure to provide sufficient reasons can lead to a real sense of grievance because the losing party cannot understand why he or she lost (at [57]): see Beale vGovernment Insurance Office of NSW (1997) 48 NSWLR 430, at 442, per Meagher JA.
(ii) While lengthy and elaborate reasons are not required, at a minimum the trial judge’s reasons should be adequate for the exercise of a facility of appeal, where that facility is available (at [56]): see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, at 260, per Kirby P; at 269, per Mahoney JA.
(iii) The extent and content of the reasons will depend on the particular case and the issues under consideration, but it is essential to expose the reasoning on a point critical to the contest between the parties (at [58]): see Soulemezis v Dudley, at 259, per Kirby P; at 280, per McHugh JA. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute (at [62]): Beale v GIO, at 443, per Meagher JA.
(iv) Where credit issues are involved, it is necessary to explain why one witness is preferred to another. Consequently, bald findings on credit, where substantial factual issues have to be addressed, may not comply with the common law duty to give reasons (at [65]): Palmer v Clarke (1989) 19 NSWLR 158, at 170, per Kirby P (with whom Samuels JA agreed).
(v) Where an appellate court concludes that the trial judge has failed to give adequate reasons, the court has a discretion whether or not to direct a new trial. If, despite the inadequate reasons, only one conclusion is available, a new trial may not be necessary (at [67]).53 In support of the fourth proposition, McColl JA quoted with approval (at [63]) a passage from the judgment of Ipp JA (with whom Mason P and Tobias JA agreed) in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186, at 191–192 [28]. In that passage and the following paragraph, Ipp JA said this:
‘28 It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: ‘I believe Mr X but not Mr Y and judgment follows accordingly’. That is not the way in which our legal system operates. …
29 Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent.’”
A failure to state why some evidence was preferred over competing evidence may “reveal an error in the process of fact finding” (Waterways Authority v Fitzgibbon & Ors [2005] HCA 57; 221 ALR 402 per Hayne J at [129]–[131]; Ainger v Coffs Harbour City Council [2005] NSWCA 424 per McColl JA at [53]). Where findings are based on expert witnesses, the arbitrator should specify the objective basis for the resolution of conflicting expert evidence. It is not sufficient to merely record a preference for the evidence of a particular expert (Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127).
In my view, the Arbitrator failed to provide adequate reasons for her conclusion. Whilst she referred to parts of the evidence, she failed to expose her reasoning on the critical issue of whether the worker had received an injury arising out of or in the course of his employment. It seems clear, as Mr Saul submitted, that the Arbitrator thought Senior Constable Winter was unreliable. However, she did not make a finding to that effect and, more importantly, did not indicate if she accepted or rejected the worker’s evidence as to the effect the many work events and circumstances (the occurrence of which were not disputed) had on him.
In respect of Mr Saul’s submission that Senior Constable Winter’s medical case was not convincing, the Arbitrator did not analyse the medical evidence and did not say if she rejected the strongly supportive evidence from Drs Canaris, Zuessman and Gordon, or if she accepted the contrary view expressed in Ms O’Donnell’s evidence. The Arbitrator’s reference (at [47]) to Dr Canaris stating that the worker was a “round peg in a square hole” was of limited relevance to whether he had received an injury and did not indicate whether she accepted or rejected the doctor’s evidence.
The Arbitrator’s reference (at [47]) to Senior Constable Winter’s “temperament” having “played its part in the distress and emotional upset which he feels when forced to interact with fellow officers” suggested that she failed to acknowledge that employers take their workers as they find them (State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249; 5 DDCR 286). It is unclear if she made that error because she did not explain what relevance Senior Constable Winter’s temperament played in her assessment of the claim.
The Arbitrator acknowledged (at [47]) that “a stressful situation” led to a flare-up of Senior Constable Winter’s psoriasis and it may be that that was “itself sufficient for him to seek medical retirement”. The Arbitrator did not explain the relevance of the reference to medical retirement. As I understand it, the worker has not sought medical retirement. If it was a reference to Dr Zuessman’s note that, after 20 years of service, the worker “would hope to have 300–500 k pay out” (Reasons at [25]) that was not explained. If it was suggested that Senior Constable Winter’s claim was not genuine, and that he was really motivated by a desire to obtain a large payout, that finding was not open on the evidence and was never put to the worker. Dr Zuessman’s history was that Senior Constable Winter wanted to remain with the Police Force (Dr Zuessman’s report at [21]).
The evidence of Senior Constable Winter’s skin condition was highly relevant because, as Dr Canaris stated, skin is a “sensitive emotional barometer” (see Dr Canaris’s evidence at [132] above). Evidence of a flare-up of the worker’s skin condition provided strong corroboration of his complaint about the effect his work circumstances had on him. It was clear evidence of a physiological response that was relevant to the injury issue. The Arbitrator did not address whether it supported the claim.
Though the Arbitrator acknowledged that Senior Constable Winter had a “strong aversion to returning to work on the streets and also to returning to work at Gladesville” (at [44]), she failed to state if she accepted or rejected his evidence (supported by Drs Canaris and Zuessman) that that aversion was due to anxiety and fear for his safety that resulted from the circumstances of his employment. Instead, she referred to a proposed return to work plan and stated (at [45]) that it was unclear why Senior Constable Winter was unable to try any of the jobs suggested in that plan. The worker’s compliance or non-compliance with the return to work plan did not determine the injury issue and the Arbitrator appears to have merged the issues of incapacity and injury. They were separate and distinct issues.
If the Arbitrator considered that Senior Constable Winter suffered no more than an emotional response to his work environment, she did not adequately explain why she reached that conclusion by indicating an acceptance or rejection of the relevant expert evidence. She said (at [48]) that the worker was “distressed and emotionally upset at his present situation”, but did not “show the disabling symptoms and signs and the impairment in social, occupational or other areas of function which are usually found in a person with a psychological injury”. That statement was unhelpful. The impairments in a person with a psychological injury will vary depending on the nature of the injury and the individual’s circumstances. More importantly, Drs Gordon, Canaris and Zuessman all considered the worker unfit for unrestricted policing work, that is, that he was impaired in terms of his occupation. The Arbitrator failed to adequately deal with that evidence.
In stating (at [48]) that “the dispute with his employer has not ‘injured’ Mr Winter”, the Arbitrator failed to acknowledge and deal with the worker’s case. He did not allege that he had been injured because of a “dispute” with the Police Force. His case was that the circumstances of his employment over a period of years caused a psychological injury in the nature of mixed anxiety and depression. That the Arbitrator did not properly deal with that issue is highlighted at paragraph [43] of her Reasons where she referred to Dr Gordon having noted sleep disturbance and skin symptoms in November 2006 “some time before the alleged injury which is pleaded as being on the 8/09/08”. It was not Senior Constable Winter’s case that he received an injury on 8 September 2008.
It follows that the Arbitrator failed to give adequate reasons for her conclusions. As I am not satisfied that only one conclusion is open, the decision must be revoked and the matter re-determined.
OTHER MATTERS
Though it was not argued on appeal, and I have not based my decision on it, I also note that the Arbitrator stated (at [24]) that it was “significant” to Dr Zuessman’s diagnosis that Senior Constable Winter’s symptoms “[h]ad not lasted longer than six months after the consequences of the stressors”. Dr Zuessman made no such statement. He said (at [27] of his report) that one of the essential elements of Adjustment Disorder included “symptoms do not persist more than six months after termination of [the] stressor or its consequences”. In regard to this criterion, Dr Zuessman said (at [29] of his report) that “the consequences were yet to be resolved”. Regardless of this error, the Arbitrator failed to adequately deal with Dr Zuessman’s conclusion that the “cumulative effects of Mr Winter’s policing experience thus developed into symptoms which met the criteria for an Adjustment Disorder, With Mixed Anxiety and Depressed Mood, in accordance with the Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition, Text Revision”.
CONCLUSION
Having concluded that the Arbitrator erred in denying Senior Constable Winter procedural fairness and in failing to give adequate reasons for her decision, and having regard to the issues in dispute and the worker’s application to rely on additional evidence, it is appropriate that the Arbitrator’s determination be revoked and that the matter be remitted to another Arbitrator for re-determination.
Given the credit issues involved, this is clearly a case where it will be appropriate to allow cross-examination. The extent of that cross-examination will be a matter for the next Arbitrator. It is also appropriate that the parties be permitted to rely on further medical evidence and a timetable can be set for the service of that evidence at the first teleconference after the matter is remitted.
Senior Constable Winter may also need to consider if, in the light of his detailed statement of the allegedly stressful circumstances of his employment, the description of how the injury occurred in Part 4 of the Application needs to be amended to more accurately reflect the evidence and the nature of the claim. The Application will also need to be amended to properly identify the period of employment during which Senior Constable Winter alleges he was injured and the circumstances that allegedly caused that injury, and to confirm that 8 September 2008 (being the first date of claimed incapacity) is merely the deemed date of injury.
DECISION
Time to appeal is extended until 21 June 2010.
The Arbitrator’s determination dated 18 May 2010 is revoked and the matter is remitted to a different Arbitrator for re-determination.
COSTS
The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200 plus GST. Costs of the first arbitration are to follow the event of the second arbitration.
Bill Roche
Deputy President
16 November 2010
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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