Police Association of New South Wales (on behalf of Sahra Gulbis) v... [2008] NSWIRComm 187 | Case summary

Superintendent Moore did not seek any input from Ms Gulbis before these statements were made and incorporated in the application. The document further stated that Ms Tarabay had said to Ms White she had "no intention of resuming her former duties". The only statement she contends she made to a similar effect was that she said on 1 November 2006 "I cannot do this anymore. I've tried and I can't." 19 Since late August 2006, after earlier purchasing a house in Coffs Harbour, she had travelled to Sydney to work her block shifts in the Campsie Local Area Command ("LAC") and to visit her doctors, including her treating doctor in Sydney as part of her rehabilitation. Ms Gulbis said that she had informed her RWC of her change of address and that she was commuting to Sydney where she would stay with her sister. This was disputed by Ms Tarabay. 20 In respect of the relocation to Coffs Harbour, the evidence of both Ms Tarabay and Ms White was that they were not informed by Ms Gulbis that she had relocated to Coffs Harbour. I accept their evidence in respect of this aspect of the matter. However, nothing turns on this evidence. Ms Gulbis' evidence was that she had filled in a card at Campsie Police Station advising of her change of address. She also advised her workers compensation insurer of her change of address which is confirmed by the evidence. This evidence was not challenged in cross-examination. Although she relocated in August 2006, she continued to carry out her duties under the rehabilitation plan and was prepared to continue doing so. 21 The letter requesting a referral to HealthQuest dated 8 December 2006 relevantly stated: In November 2006, Constable Gulbis reported off sick again. She was almost able to perform full hours and the goal was to return her to full duties in the near future. There was no workplace change or exposure to a traumatic event that lead to this change in circumstance. 22 Ms Gulbis, while participating in her return to work plan, contends that the goal of her return to work plans from the very beginning had always been to assist a return to pre-injury duties if it was medically possible. Each of the revised return to work plans required an assessment by her treating doctor before she could advance to the "next stage" of the plans, let alone return to pre-injury duties. Her rehabilitation never got to the point where she could fully return to work. 23 Ms Gulbis had been on sick leave several times during May and November 2006 due to a flare up in her symptoms, or as a consequence of an adverse reaction to medication. The most recent had been in the block of shifts over 19 November 2006. 24 The letter requesting a referral to HealthQuest also stated: Constable Gulbis has recently been referred to a Psychologist, Dr Roger Peters. After the initial consultation he reports that she is permanently unfit to return to work within NSW Police, even in a restricted capacity. In addition, Constable Gulbis's nominated treating GP [Dr Ginnane] has certified her fit for suitable duties from 24 November 2006, working 12 hours per week. Constable Gulbis has not been compliant with this medical certificate. Constable Gulbis was referred to an external rehabilitation provider in March 2006. Throughout this time she [has] predominantly been complaint with rehabilitation, although in more recent times she has been evasive and inconsistent with returning telephone calls etc. 25 In respect of the contention that Ms Gulbis failed to comply with her medical certificates, on 6 November 2006, Dr T Ginnane provided Ms Gulbis with a medical certificate certifying that she was unfit to work from 6 November 2006 until 15 November 2006. Dr Ginnane observed that the "patient will never be able to return to pre-injury duties and soon will be put on permanent modified duties." Ms Gulbis was reviewed by Dr Ginnane on 16 November 2006, when she was again certified unfit to work from that date until 24 November 2006 when Dr Ginnane proposed to further review her condition, subject to a psychologist's report. Dr Ginnane again reviewed Ms Gulbis on 23 November 2006, certifying her fit for suitable duties from 24 November 2006 to 15 December 2006. Dr Ginnane noted that Ms Gulbis was "psychologically unfit for police duties". Ms Gulbis' evidence is that she read this report from Dr Ginnane as meaning that she was not to perform any police duties and it was police duties which, of course, she would be required to perform, albeit, non operational duties, if she returned to work. 26 Ms Gulbis' evidence was that she contacted Dr Ginnane to confirm her understanding of what the certificate meant. Her evidence, on which she was not cross-examined, was that Dr Ginnane explained to her that what he meant by what he had written in the medical certificate of 23 November 2006 was that she was not fit for any duties with NSW Police. She explained that at the time Dr Ginnane gave her the medical certificate, he said that the purpose of identifying her as fit for suitable duties, but not policing duties, was to allow the insurance company, Allianz, to look at alternative suitable duties that she could perform outside NSW Police. To the extent that it was contended by the respondent that Ms Gulbis was not complying in relation to her medical certificates, such contention is not made out on the evidence. Furthermore, this position was known to the NSW Police because on 8 December 2006, Ms Tarabay sought to clarify the position with Dr Ginnane, this being some two weeks after the date of the medical certificate. In a letter to Dr Ginnane, Ms Tarabay asked, "when do you anticipate Ms Gulbis will be capable of resuming non-operational policing with the NSW Police?" Dr Ginnane's response was; "Never. Sahra wishes to leave the police." There can be no doubt therefore what Dr Ginnane intended by his certificate dated 23 November 2006. Despite this clarification, the allegation of Ms Gulbis' non-compliance with medical certificates was put to the HealthQuest Panel in June 2007. Furthermore, a further medical certificate from Dr James Lyons, a colleague of Dr Ginnane, dated 13 December 2006, certified Ms Gulbis unfit to work from 15 December 2006 to 31 January 2007. 27 The letter to the Director of HealthQuest further stated: The officer was referred to a rehabilitation provider in March 2006 but has proven to be evasive and inconsistent in responding to telephone calls. The officer has also stated that she is unwilling to return to the NSW Police and seeks an alternative vocation. 28 Ms Gulbis' evidence was that she had never been evasive and inconsistent in her communications to the RWC. She only expressed the desire to seek alternative employment after her attempts to secure a return to work in NSW Police failed. Ms Gulbis received a report from HealthQuest dated 3 April 2007. It stated under the heading "Conclusions" and "Final Recommendations": Conclusions Ms Gulbis is in early recover from post-traumatic distress disorder. She will not be able to return to operational police duties for the foreseeable future. Given the failure of her return to work program, her continuing symptoms, and motivation to seek a career outside of the police service it is unlikely that another return to work program would be successful. Ms Gulbis is currently psychologically fit to work outside of the police service as long as it does not place her in situations that provoke anything more than mild levels of anxiety or stress. With time Ms Gulbus' resilience will likely improve and she will be able to tolerate a broader range of occupations. Final Recommendations 1. Ms Gulbis is permanently unfit, from a psychological point of view, for the full range of duties of the substantive position of police officer in the present location. 2. Ms Gulbis is psychologically unfit for alternative duties with the present employer. This state of unfitness is likely to persist for the conceivable future (12 months or more). 29 On 2 July 2007, Ms Gulbis received a telephone call from Mr T Fortunato of the Medical Discharge Unit advising that her medical discharge papers were put to the Medical Discharge Review Panel on Friday 29 June 2007. The Panel recommended medical discharge with her last day of service being 13 July 2007. Mr Fortunato informed Ms Gulbis that the Panel did not support any benefit or entitlement under the D & D Award. 30 Ms Gulbis did not receive any prior notice that her medical discharge, or her entitlement to a benefit under the D & D Award were going to be considered. She had not been provided with any of the paperwork in respect of the application for medical discharge and was not given an opportunity to make any submissions to the Panel. 31 Later, on 2 July 2007, Ms Gulbis received a letter dated 26 June 2007 (postmarked 28 June 2007, the day before the Panel sat), enclosing a deed and an application for partial and permanent disability benefits under the D & D Award. 32 Ms Gulbis completed the forms that evening and rang Mr Fortunato on 3 July 2007 and asked him why she had not been informed that the Panel was sitting and why she was not entitled to submit an application for partial and permanent disability benefits before any such entitlement was considered. Her affidavit evidence was that Mr Fortunato informed her that "due to conflicting schedules of Panel Members, they had to meet within five days notice". 33 Ms Gulbis asked Mr Fortunato if she was able to submit an application for a partial and permanent disability benefit and was informed "no", because the Panel had already sat and made its recommendation. Mr Fortunato advised her to dispose of the paperwork. Mr Fortunato was not called to give evidence. On 14 September 2007, Ms Gulbis received an undated letter from Mr T McWhirter, Assistant Commissioner and Director of Human Resources. Relevantly, this letter provided "after perusing your case history, the Panel recommended that you are not eligible for a benefit under the terms of the Award, as you have not complied with cl 9(2) of the D & D Award". 34 I will turn to consider the relevant clauses of the D & D Award shortly. For present purposes, cl 9(2) of the D & D Award provides that there is a mutual obligation on both the employer and the injured officer to identify suitable positions for redeployment. It is the injured officer's responsibility to accept a reasonable offer of a suitable police position made by the employer which may include a transfer to another location. A failure to accept one of three reasonable offers as per the Permanent Restricted Duties Policy will jeopardise any benefits or entitlements payable under the Award. 35 Ms Gulbis swears that she was never offered any permanently restricted duties position at Campsie LAC, or anywhere else in the NSW Police. She has never declined any offer of a permanently restricted duties position, nor was she offered an administrative officer position with the NSW Police. 36 Since Ms Gulbis' last day of service on 13 July 2007, she has not engaged in any substantial paid work. She has remained in therapy and has been certified as unfit to work. With assistance from her psychologist and general practitioner, she has enrolled herself in a Masters Program through the University of New England in Marine Science Management which she undertakes in Coffs Harbour. She says that she still suffers from depression and anxiety, although she is able to work through it better with the assistance that she has been given from her doctors. She continues to see her treating doctor, Dr Ginnane, her treating psychologist, Dr Peters and to receive workers compensation benefits in the form of both medical expenses and income support. She says she continues to suffer symptoms of PTSD, anxiety and depression, albeit, they are much less in severity and she continues to take medication. 37 Both Ms Tarabay and Ms White gave evidence of a pre-arranged meeting with Ms Gulbis on 1 November 2006. The respondent conceded that it was not a pre-arranged meeting. Ms Gulbis attended Campsie Police Station on 1 November 2006, after a period of annual leave and broke down in front of Ms Tarabay. Ms Gulbis' evidence is that Ms Tarabay took her into Ms White's office where a long discussion occurred about her attempts at rehabilitation. Ms Gulbis' evidence is that during this discussion, she said that she did not believe she could continue trying to return to work with NSW Police. She said that she had, over the last six months, really tried to get back to work because she wanted to get better and wanted to be able to work, but that she did not feel any better and that she felt as bad as when she first went on sick leave. She recalled saying "I can't do this any more. I've tried and I can't." 38 The evidence of both Ms Tarabay and Ms White is that during this meeting, Ms Gulbis said that she did not wish to continue to be a police officer. This was said to be in response to being asked by Ms Tarabay what plans she had for the future. She said Ms Gulbis stated that she had completed a University course at Armidale, specialising in marine biology and was anticipating a career in the field of science. She explained that when she finished University, she fell into the NSW Police as a career as there were not many job opportunities for her, particularly in Coffs Harbour, where some of her family lived. Both Ms Tarabay and Ms White gave evidence that when asked about the possibility of resignation, Ms Gulbis said that she had a mortgage and therefore wished to remain with NSW Police until such time as she could gain employment elsewhere, preferably in Coffs Harbour and that she had no intention of leaving until such time as these arrangements were in place, as she did not want to have any financial hardship. Ms Gulbis' evidence is that she told Ms Tarabay that she was moving to Coffs Harbour. 39 During cross-examination Ms Gulbis denied that she had come to a decision that she wanted to go back to a career in science. Her evidence was that it was something that she had contemplated. Her evidence during cross-examination was that she told both Ms Tarabay and Ms White that she couldn't do this (police work) any more and that she did not know what she wanted to do because she felt so sick, and had lost her motivation in respect of police work. Ms Gulbis was not cross-examined on her mental state when she arrived for work on 1 November 2006. 40 During cross-examination, Ms Gulbis explained that she had made some enquiries with departments like National Parks & Wildlife regarding the possibility of positions because of advice she received from Dr Meylakh who she consulted after Dr Clarke, her treating psychologist, had died. Dr Maylakh had thought it might be an idea for her to consider other work that she could do, bearing in mind her qualifications. It was on this basis that she made enquiries over the Internet and elsewhere. Ms Gulbis acknowledged that she had applied for a clerical position with the National Parks & Wildlife Service, but had been unsuccessful. Ms Gulbis denied that she was not motivated to return to work for NSW Police because she had moved a considerable distance away from where she was stationed. 41 In re-examination, Ms Gulbis explained her state of mind on 1 November 2006, when she attended for work at Campsie Station as being very anxious and in severe depression. Her evidence was that physically she had trouble being in the police station. She found it very nauseous and was dizzy and very short tempered. 42 Ms Tarabay, during cross-examination, agreed that she did not identify in her affidavit any instance where Ms Gulbis did not co-operate with the return to work plan. Ms Tarabay's evidence was that on 4 September 2006, on Ms Gulbis' return from annual leave, she noted that Ms Gulbis was motivated to resume operational duties and eager to take her first steps on station duties in the week commencing 11 September, 2006. She was confident she would be capable of returning to fulltime operational duties. Ms Tarabay acknowledged that it could be concluded that her move to Coffs Harbour (which occurred in August 2006) had not affected her preparedness to co-operate with a return to work plan if that was possible. 43 During cross-examination, Ms Tarabay accepted that the effect of what Ms Gulbis said in the meeting that occurred on 1 November 2006, at which Ms White was also present, was that over the last six months, Ms Gulbis had really tried to get back to work because she wanted to get better and wanted to be able to work. She said she felt as bad as when she first went on leave. She had tried, but she could not return. Ms Tarabay agreed that Ms Gulbis had also said "I just don't want to put myself in the situation where I can be exposed to any more traumatic incidents" and "I do not think I can return to the [Police] truck. It is not a realistic option." Ms Tarabay also agreed in cross-examination that she said words to the effect "we can find you a permanent restricted duties position until you can find yourself something you want to do, but your doctor has to agree to it." Ms Tarabay also agreed that Ms Gulbis indicated she was in no position to resign from the NSW Police. Ms Tarabay agreed that it was perfectly apparent that Ms Gulbis was not in any state to perform work on that day. 44 As at the beginning of December 2006, both Dr Weatherby and Dr Peters were of the opinion that Ms Gulbis could not return to pre-injury duties, that being, a return to operational police duties. That left two possibilities, either Ms Gulbis had to leave the NSW Police, or alternatively, that she be put in a permanent restricted duties position which Ms Tarabay agreed were the options. Ms Tarabay acknowledged that on 15 November 2006, Ms Gulbis was distressed at being told by her general practitioner that he was providing her with a medical certificate certifying her unfit for pre-injury duties and that she would need permanent restrictions. 45 Ms White also gave evidence about the meeting with Ms Gulbis and Ms Tarabay on 1 November 2006. It is clear that some of Ms White's recollections of what was said by Ms Gulbis during the meeting are incorrect. An example is Ms White contending that Ms Gulbis said that she had spoken at length with her psychologist, Dr Roger Peters about coming to terms as to whether or not she wished to continue to be a police officer. Ms Gulbis' first consultation with Dr Peters did not occur until 25 November 2006. Ms White is clearly mistaken about this matter. 46 Ms White received an email from Ms Harrison requesting her to complete the paperwork for the applicant to be considered for a permanent restricted duties position. She completed paperwork for a referral for a HealthQuest assessment on the basis of the independent medical report that she would never be fit to return to pre-injury duties. Although Ms Harrison was suggesting that steps be taken to investigate whether permanent restricted duties were possible for Ms Gulbis, the following day, Ms White completed an application for Ms Gulbis' medical discharge without her knowledge. Ms Harrison did not ask Ms White to prepare papers for Ms Gulbis' medical discharge. Ms White says that she was instructed by Superintendent Moore to fill out the medical discharge application. 47 Although the application for medical discharge makes provision for the officer applying for medical discharge to sign the application, Ms White's evidence was that it was standard practice in NSW Police, based on advice from Human Resources that such an application could be signed by persons other than the actual applicant without the officer's prior permission or knowledge. Ms White cold not recall if she had been made aware by Ms Tarabay that she had a conversation with Dr Peters on 1 December 2006, in which he said that Ms Gulbis was not capable of engaging in any police officer duties, which I take it to mean were neither operational, or non-operational duties. Ms Gulbis' work plan had involved non-operational police duties. Medical Evidence 48 There have been a total of four psychologists who have been involved in a diagnosis of Ms Gulbis' condition. The first was Dr JC Clarke, who is now deceased. Dr J C Clarke's report was dated 1 February 2006. Relevantly, Dr Clarke stated: Ms Sahra Gulbis, who is currently a member of the New South Wales Police Force has been attending clinical sessions at Leichhardt Medical and Dental Centre since 4 January 2008, for medical (Dr A Ginnane) and psychological (with me) assessments. On the basis of these interviews, her reports, and the test data, it is my view that a diagnosis of Post Traumatic Stresss Disorder (PTSD) is the syndrome that best summarizes her presenting problems. These include "severe (unipolar) depression (Beck Depression Inventory and the Burns checklist), chronic and "sever" levels of anxiety (Beck Anxiety Inventory), sleep disorder, pervasive worry, and crying spells and tearfulness. I must add here that Dr Ginnane concurs in this assessment. PTSD is known to arise out of exposure to "an extreme traumatic stressor involving direct physical integrity .... or witnessing (such) an event". In Ms Gulbis's case there were two traumas. The first in Winter 2004 she was involved in a police action of a murder brought about by decapitation of the victim. She saw the head in a plastic bag on the roof of a carport. "It looked like a bloody/blood drenched soccer ball" is how she described it. That same evening she had to view graphic photographs of the skull and of the headless corpse of the victim. These experiences left her badly shaken and depressed. She did not report the growing PTSD (intrusions of the horror scenes, pervasive fears, avoidance tendencies, chronic stress) which burst into an extreme form 10 months or so later. This involved a siege with a drunken, violent husband, his wife and baby daughter and responses, again, of great fear, horror and the sense of being overwhelmed. In addition to the above, and most importantly, with PTSO there is an increase in the risk of Major Depressive Disorder (page 425, DSM-IV). Here, too, Ms Gulbis fits the clinical profile - with severe levels of (unipolar) depression the onset of PTSD is usually within the first three months "although there may be a delay of months or even years before symptoms appear". (DSM-IV, page 426 emphasis added). The above noted citations are from the most recent edition of the Diagnostic and Statistical Manual (DSM-IV) the most widely used assessment source in Australia, the USA/Canada, and Great Britain. It is made clear in DSM-IV that the onset and persistence of this disorder/syndrome can occur in "normal" individuals - and does not require the existence of a prior psychological disorder or personality vulnerability. It is, in other words a very "democratic" disorder. In general terms the defining criteria for PTSD are:- 1. The person's response to the event must involve intense fear ... or horror. 2. The characteristic symptoms resulting from exposure to extreme trauma include persistent re-experiencing of the traumatic event. 3. Persistent avoidance (where possible) of stimuli associated with the trauma ... . 4. Persistent symptoms of increased arousal. As for treatment, successful interventions will involve pharmocotherapy (Dr Ginnane's advice of anti depressants is the rule) counselling along the lines of cognitive - behaviour therapy and graduated exposure to the themes and the specific (imaginal) stimuli of the trauma (and as we note in our text books, Clarke and Jackson; Clarke and Wardman) together with the acquisition of coping skills for fear and worry, The duration of this treatment in an intelligent, stable and highly motivated patient - as in the case with Sahra Gulbis - should be somewhere in the order of 12 - 15 (hourly) sessions subsequently to the initial assessment sessions already completed. ... 49 Dr J M Weatherby, a clinical psychologist, provided a comprehensive psychological report dated 24 November 2006. This report was relied upon in respect of the application made, without Ms Gulbis' knowledge for her discharge from the NSW Police. Dr Weatherby sets out the sources of his information for the report which included conducting a number of clinical psychopathology tests, Ms Gulbis' background, an account of the contributing factors and treatment where Dr Weatherby observed that as a result of Dr Clarke's death, therapy has been inadequate and intermittent. Dr Weatherby then set out the formal test results and stated: The respondent appears to satisfy DSM-IV-TR diagnostic criteria for PTSD. The severity of this disorder is estimated to be in the severe range. However, the respondent does not describe significant trauma-specific dissociation, substance abuse, or suicidality. To the extent that she is reporting her symptoms accurately, posttraumatic stress is a major component of her clinical picture. However, the absence of other symptoms measured by the DAPS suggests that this person's disorder is not complicated by the major associated features of posttraumatic stress. Such potentially less complex PTSD may have a better prognosis for treatment, although other aspects of this individual's clinical history or functioning also may influence the outcome of psychological or pharmacological therapy. Validity of Assessment It is my opinion that the results of this assessment are reliable and valid. However, there no indications that Ms. Gulbis attempted to portray herself in a more negative light than the clinical picture would have otherwise presented. Additionally, the [sic] Ms. Gulbis was cooperative and understood both the purpose of the assessment and the questions presented before her. All psychometric instruments used to conduct this assessment are demonstrated highly reliable and valid in the research literature. At this point, there is no evidence to suggest that the patient is malingering. 50 Dr Weatherby then recorded Ms Gulbis' family background, child and adolescent history, higher educational and occupational history, medical history, health status, family history and current situation. Dr Weatherby then set out his diagnosis, opinions and recommendations and answered the referral questions as follows: 1. What is the claimant's current condition? Please describe based on the criteria of the DSM-IV, utilising all five axis [sic]. 309.81 Posttraumatic Stress Disorder. Please refer above for further details. 2. From the assessment, do you feel that Ms. Gulbis's symptomatology is genuine, or do you believe that personal goals and motivation affect her presentation? It is my opinion that Ms. Gulbis is not intentionally feigning her symptoms or malingering. It is my opinion that Ms. Gulbis is experiencing genuine anxiety and mild depression symptoms. However, I do believe that her personal goals and motivation are exacerbating her mental state by creating adjustment distress. This adjustment distress, mixed with police responsibilities (which Ms. Gulbis has a negative association), and the residual effects trauma work in combination to exacerbate her condition. 3. Do you feel that the condition from which this claimant is suffering is work-related condition? if Yes, please describe in which way employment is still a substantial contributing factor to the condition; if no, please explain your reasons. It is my opinion that Ms. Gulbis is suffering from Posttraumatic Stress Disorder as a result of witnessing many gruesome scenes during general policing duties. However, there are indications that Ms. Gulbis is recovering, despite her past inability to receive proper treatment for her condition. It must be qualified that the exacerbation of Ms. Gulbis's symptoms just before her certification unfit on 1 November 2006 is the result of several factors in combination. These factors include: A. The residual affect of Posttraumatic Stress Disorder on anxiety symptoms and the effects of normal vocational distress in this context. B. A history of inconsistent psychological treatment for PTSD due to the death of Ms. Gulbis's Psychologist in July 2006. C. Continued avoidance and detachment toward police and policing duties given Ms. Gublis's past trauma history in the police force. D. Uncertainty concerning future goals, particularly Ms. Gulbis's perception of being "stuck" between what she perceives as "unsatisfying" suitable or permanently modified duties, and the inability to return to pre-injury due to the potential for exacerbation of PTSD symptoms. 4. Do you feel that the claimant is fit to perform pre-injury duties? If not, what restrictions would you place upon her? It is my opinion that Ms. Gulbis is not fit for pre-injury duties, and I believe that she will never be fit to return to general policing duties as the risk of re-injury is high. However, although it would be ideal for Ms. Gulbis to have alternative employment to policing, it is my opinion that Ms. Gulbis is able to continue with suitable duties, at present (pending future review for permanently modified duties) with the police force, (given that she is supported adequately with psychological treatment). If Ms. Gulbis would like to change her employment field altogether, that could be her initiative, independent of Allianz TMF. 5. Does this claimant require further psychological treatment or medical pinion? It is my opinion that due to the death of her psychologist, Ms. Gulbis has had inadequate treatment given her diagnosis. It is highly recommended that she continue to receive psychological treatment whilst performing suitable or permanently modified duties. As per usual, a detailed treatment plan must requested by Allianz TMF of the treatment provider (clinical psychologist) delineating the direction of treatment and sessions to be undertaken. 6. What is your prognosis for the claimant, in terms of return to work? It is my opinion that Ms. Gulbis's prognosis in terms of return to pre-injury duties is poor. Additionally, it is my opinion that Ms. Gulbis perceives her current situation in a negative light, and has the intention of leaving the police force for other employment. Although, I believe that Ms. Gulbis is genuine in her presentation, I believe that she is desperately unhappy doing suitable duties within the police force and will continue to feel "distressed" as a result. As part of this agenda, Ms. Gulbis has the intention of returning to university to finish a postgraduate qualification and has already set plans to do so. It is my opinion that this context will sabotage efforts at occupational rehabilitation for this patient. Therefore, it is my opinion that the prognosis for Ms. Gulbis is "good" for recovery of PTSD given the condition that she is able to fulfil her intentions and goals, if not, her prognosis will be "guarded". 51 The next report was that of Mr Mark Milic, the Senior Clinical Psychologist at HealthQuest. Mr Milic 's report is dated 3 April 2007. Mr Milic sets out Ms Gulbis' background, recording that she was diagnosed with PTSD in December 2006. For the purpose of preparing his report, Mr Milic reviewed the referral letter from the NSW Police Compensation Review Branch dated 13 February 2007; the position description for Ms Gulbis; the application dated 2 December 2006 for medical discharge signed on Ms Gulbis' behalf by Superintendent Moore; a report from Ms Gemma Harrison, Senior Injury Management Advisor dated 8 December 2006; a psychological report from Dr Christopher Clarke dated 1 February 2006; a psychological report from Mr Roger Peters dated 26 February 2006 and a statement of Ms Gulbis. Mr Milic observes that Ms Gulbis was polite and co-operative throughout the interview and under the heading "Conclusions" stated: Ms Gulbis is in early recovery from post-traumatic distress disorder. She will not be able to return to operational police duties for the foreseeable future. Given the failure of her return to work program, her continuing symptoms, and motivation to seek a career outside of the police service it is unlikely that another return to work program would be successful. Ms Gulbis is currently psychologically fit to work outside of the police service as long as it does not place her in situations that provoke anything more than mild levels of anxiety or stress. With time Ms Gulbis' resilience will likely improve and she will be able to tolerate a broader range of occupations. 52 Mr Milic's final recommendations were: 1. Ms Gulbis is permanently unfit, from a psychological point of view, for the full range of duties of the substantive position of Police Officer in the present location. 2. Ms Gulbis is psychologically unfit for alternative duties with the present employer. This state of unfitness is likely to persist for the conceivable future (12 months or more). 53 The final report relied on by Ms Gulbis was that of Dr Roger F Peters, a consultant psychologist, which was dated 9 May 2008 and obtained by the Police Association of New South Wales. Dr Peters was required for cross-examination. However, such cross-examination did not challenge his diagnostic conclusions. Dr Peters' opinion was sought in respect of whether Ms Gulbis was suffering from a mental disability as at August 2007, being the date of her discharge. After setting out his qualifications and training which included that he has been in private practice for 25 years and has made anxiety based syndromes including post traumatic stress disorder the focus of his therapeutic work, Dr Peters recorded: In August 2007, Sahra was a patient of mine and struggling with the effects of depression which I specifically regarded as being a co-morbid condition of a primary diagnosis of Post Traumatic Stress Disorder, (PTSD). She was previously diagnosed as suffering Post Traumatic Stress Disorder prior to her referral to me. In addition this diagnosis has been confirmed by others in my field as well as by Healthquest; the advising authority to the NSW Government. It is not unusual for a person with Post Traumatic Stress Disorder to develop a co-morbid condition of which depression is the most common. While you have not asked for the following information, I feel it important to place this diagnosis in a broader context. Firstly Post Traumatic Stress Disorder is a condition that is debilitating and has at least three primary or core symptoms. This includes hypervigilence, or hyper-anxiety, (incidentally this is the reason why depression regularly develops). Secondly there is intrusivity of thought which can include flashbacks. Thirdly there is avoidance; I might add not simply of situations that might involve traumatic events that caused the onset of PTSD, but of conflict more generally. Typically, patients who suffer PTSD become quite withdrawn, isolated and often disabled; and this indeed episodically characterised Sahra's temperament. She lacked a sense of joy in her life and found even day to day functioning a challenge. Clients wth PTSD and depression find it difficult to deal with conflict, so clients like Sahra may find it not just difficult work more generally, but particularly in a police environment. 54 Dr Clarke also made reference to "avoidance" which is clearly, from Dr Peters' and Dr Clarke's reports, a characteristic symptom of PTSD. Dr Peters' conclusions were as follows: In conclusion, I believe that Sahra will improve over time as she is able to refocus her life direction, and enjoys the stability that a close family network can provide and successfully makes the transition to the new career path. I personally believe that with PTSD, it is more sensible to talk about issues of management rather than cure and Sahra has shown the capacity to manage this condition and in the fullness of time move on with her life. 55 Ms Gulbis' desire to do something other than being a police officer is consistent with the avoidance characteristic referred to by Drs Clarke and Peters in their reports. In their view, it is simply a symptom of the disorder from which Ms Gulbis was suffering. In my view, and I find, avoidance has manifested itself in Ms Gulbis' case, not unsurprisingly, as a desire not to go near a police station. Her evidence as to how she felt on 1 November 2006 at the prospect of being in a police station appears to me to be consistent with the avoidance symptom. Consideration 56 The issue for determination in this application is whether, upon Ms Gulbis' medical discharge from NSW Police, she became entitled to the benefits under the D & D Award, or whether there existed at the time of her medical discharge, or earlier, certain disqualifying factors that precluded her from receiving any entitlement under the Award. 57 Ms Oakley did not dispute that Ms Gulbis suffered a psychological injury, whilst on duty. It was also common ground that there had been a cessation of employment. It cannot be disputed, in my view, that in light of the decision of HealthQuest that determined that Ms Gulbis was permanently unfit for the substantive requirements of her position, which led to the Medical Discharge Review Panel recommending her medical discharge from the NSW Police, that Ms Gulbis was suffering a partial and permanent disability as that term appears in cl 9 of the D & D Award and that the cessation of employment with NSW Police was substantially due to that partial and permanent disability. 58 In light of these concessions and finding it is unnecessary to make determinations in respect of those elements that would otherwise arise for consideration under cl 9 of the D & D Award. What must be determined is whether the disqualifying conduct (set out at [3] of this judgment) relied upon by the respondent disentitles Ms Gulbis to a lump sum payment under the D & D Award. 59 Counsel were in agreement that the principles for interpreting an award had been restated in numerous ceases before the Commission. In Australian Workers Union v Pasminco Australia Ltd (2003) 131 IR 1, the Full Bench in considering the interpretation of an award observed at [36]: [36] The relevant principles to be applied when interpreting industrial instruments are well settled. See for example Kingmill Australia Pty Ltd (t/a Thrifty Car Rental) v Federated Clerks' Union of Australia (NSW Branch) (2001) 106 IR 217 and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46]. In essence, the primary consideration is the actual words used and the context in which they appear. The context of the words used may extend beyond those in the immediate proximity, to the document as a whole and also to other documents with which there is an association. The importance of the language or text of the instrument in its construction was referred to in the recent High Court decision in Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 77 ALJR 1806 at [8] per Gleeson CJ (in dissent), [38] per McHugh , Gummow, Callinan, Heydon JJ, [59] per Kirby J (in dissent) and [115] per Hayne J (in dissent).

See also more recent Full Bench decision in Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158 at [39] - [47]. I propose to adopt these principles in interpreting the D & D Award. 60 Clause 9 of the D & D Award is the critical clause. Relevantly, it provides as follows: 9. Rehabilitation, Retraining and Lump Sum Payments for Police Officers Who Suffer Partial and Permanent Disability 9.1 The lump sum payments prescribed by this clause are payable by NSW Police. In order to be entitled to a benefit pursuant to this Clause, a police officer must engage in the provisions outlined within this Clause. 9.2 There is a mutual obligation on both the employer and injured officer to identify suitable police positions for redeployment. However, it is the injured officer's responsibility to accept a reasonable offer of a suitable police position made by the employer, which may include transfer to another location. A failure to accept one of three (3) reasonable offers as per the Permanent Restricted Duties Policy of a suitable police position will jeopardize any benefits or entitlements payable under this award and may result in medical discharge. 9.3 A police officer who suffers an on duty injury shall receive rehabilitation/retraining consistent with agreed policies, which are annexed to this award, leading to a return to pre-injury employment wherever possible. 9.3.1 Where a return to pre-injury employment is not possible, as determined by HealthQuest, or other medical assessor agreed by the parties, the officer will be declared as suffering a partial and permanent disability and opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought. At the same time, the police officer, with their consent, will be considered for redeployment to an administrative officer position. 9.3.2 If placement in a police position within the NSW Police is not possible and redeployment to an administrative officer position is not agreed to by the officer, the employment of the police officer may be terminated. In such circumstances the police officer, subject to eligibility being established, shall be paid a lump sum payment in accordance with Annexure B to this Award. 61 The D & D Award is clearly intended to compensate officers for their loss of career. The younger they are when they lose their career, the greater the multiplier or benefit for the officer. The multiplier is set out in the annexures to the Award. This enables a calculation to be made of the quantum of any disability benefit. The trigger for a benefit under cl 9.2 of the D & D Award is that an officer has suffered partial and permanent disability and cannot return to pre-injury employment as determined by HealthQuest or another agreed medical practitioner. The employee must also have complied with the mutual obligations imposed by the subsection. 62 In addition to the HealthQuest findings, Drs Clarke, Weatherby and Peters each concluded that Ms Gulbis was suffering from a post traumatic stress disorder which arose out of exposure to some traumatic incidents that occurred whilst Ms Gulbis was on duty. Mr Milic, the Senior Clinical Psychologist for HealthQuest, determined that Ms Gulbis was permanently unfit, from a psychological point of view, for the full range of duties of the substantive position of police officer in her present location and psychologically unfit for alternative duties with the present employer. In his opinion, her state of unfitness was likely to persist for the conceivable future (12 months or more). 63 I did not perceive there to be any attack made by the respondent on whether Ms Gulbis' injury was permanent. In any event, in McDonald v Director-General of Social Security (1984) 1 FCR 345, the Full Federal Court considered the meaning of "permanently incapacitated", as contained in s 24 of the Social Security Act 1947 ("Cth"). There, Woodward J expressed the view, at 361, that: In my view the true test of a permanent, as distinct from a temporary, incapacity is whether in the light of the available evidence it is more likely than not that the incapacity will persist in the foreseeable future. 64 I propose to adopt Woodward J's test and I find that Ms Gulbis is suffering a permanent disability. 65 I turn to consider the remaining elements that need to be satisfied in order to obtain the benefits of cl 9 of the D & D Award. There are two. Firstly, that an officer has not failed his/her mutual obligation, as set out in cl 9.2 of the D & D Award by failing to identify suitable police positions for redeployment, by refusing a reasonable offer of a suitable police position, or refusing a permanent restricted duties position. Secondly, placement in a police position was not possible, and redeployment in an administrative position has not been consented to, thus requiring termination of the employment. 66 The evidence discloses, including, in particular, evidence given by the respondent's witnesses that Ms Gulbis was never offered a suitable duties position, or a permanent restricted duties position. This was no doubt based on Dr Peters' report, which concluded "Ms Gulbis's post traumatic disorder was a permanent condition." Dr Peters' opinion was confirmed by the HealthQuest report that determined that Ms Gulbis was not fit for alternative duties. In my opinion, there was no mutual obligation on either party simply because this was a case where the medical evidence upon which NSW Police acted and which it accepted, was that Ms Gulbis was medically unable to perform both operational and non-operational duties because of her psychological injury. It was because of the medical evidence that on 29 November 2006, Ms Harrison forwarded an email to Ms White enquiring whether she wanted to refer Ms Gulbis to the Permanent Restricted Duties Unit. 67 On 30 November 2006, Ms White, under the direction of Superintendent Moore, (who was not called to give evidence) and without informing Ms Gulbis, completed a medical discharge application and a referral to HealthQuest. Ms Gulbis was not informed that her medical discharge, or her entitlement to a benefit under the D & D Award were being considered by the Medical Discharge Unit on 29 June 2007, when medical discharge was recommended. It will be recalled that it was not until 2 July 2007 that Ms Gulbis received an application for partial and permanent disability benefits under the D & D Award. Ms Gulbis contacted Mr Fortunato from the Medical Discharge Unit and was told that the Panel had already made its determination and she should dispose of the application. The practice of applications for medical discharge being submitted without the knowledge of an applicant needs to be urgently reviewed. Although the evidence was that it is a policy of the Human Resources Department for applications to be made in this way, it clearly involved the most gross denial of procedural fairness sofar as Ms Gulbis' interests were concerned. It also raises whether, in the circumstances, HealthQuest had the power to make the determination it did. 68 The material upon which the decision was made to refuse Ms Gulbis an entitlement under the D & D Award was contained in a document headed "Death and Disability Insurance Scheme D & D Submission for Medical Discharge Review Panel". This document was dated 26 June 2007. Regrettably, this document contained numerous errors and incorrect assumptions. The application incorrectly asserted that Ms Gulbis' general practitioner, Dr Ginnane had certified her fit for suitable duties from 24 November 2006, working 12 hours per week and that she had not been compliant with this medical certificate. However, as at the beginning of December 2006, Ms Harrison was aware of Dr Peters' opinion that he did not consider Ms Gulbis capable of engaging in any policing duties and that he did not consider a rehabilitation program would be viable, or in the applicant's best interests. In light of Dr Peters' opinion, Ms Harrison formed the view that it was not possible to continue with her referral of Ms Gulbis to a permanent restricted duties position and issued a report to the Medical Discharge Co-ordinator, Workers Compensation and Review Branch of the NSW Police in relation to Ms Gulbis' referral to HealthQuest. 69 At this time, Ms Harrison did not have regard to the D & D Award. The application also noted that Ms Gulbis had relocated to Coffs Harbour in August 2006. Although there is some conflict in the evidence as to whether Ms Gulbis told Ms White and Ms Tarabay that she had relocated to Coffs Harbour, I accept her evidence that the index card at Campsie Police Station recorded her change of address. In any event, no issue was put to Ms Gulbis during her cross-examination that her claim was false. In my view, these comments were clearly designed to at least give rise to such an inference. 70 Under the heading "Officer Considered Offer of a Permanent Restricted Duties Position", the box alongside the word "no" has been ticked. Similarly, the box next to the word "no" under the heading "Transitional Arrangements Applicable", has also been ticked. The application then has a heading "Contentious Issues" which commences with an observation that Ms Gulbis relocated to Coffs Harbour in August 2006, and she was certified fit for duties from 24 November 2006 by her treating general practitioner and had not been compliant with that certificate. Further contentions are that Ms Gulbis, at a meeting on 1 November 2006, had advised that she did not want to work within the NSW Police and had no intention of resuming full duties and was actively seeking employment as a marine biologist in Coffs Harbour. 71 There is no evidence that Ms Gulbis said at the meeting on 1 November 2006 that she had no intention of resuming full duties and was actively seeking employment as a marine biologist in Coffs Harbour. In any event, each of the treating psychologists were of the opinion that Ms Gulbis could not resume full police operational duties. A further contention is that it was highly improbable that Ms Gulbis would commute from Coffs Harbour to Campsie LAC to perform part-time rehabilitation. This comment is made, despite Ms Gulbis having done exactly that for two months and being prepared to continue. Ms White also contended that Ms Gulbis was not complying with her workers compensation conditions. It was further contended that Constable Gulbis "openly admitted to Ms Tarabay and myself (Ms White) that she had no intention of returning to full operational duties as it was her intention to be a marine biologist". Once again, this was not Ms Gulbis' evidence, nor Ms Harrison's conclusion. It was also contended that the Local Area Commander, Superintendent Moore, was also aware of the officer's decision not to return to NSW Police in any capacity. Superintendent Moore did not give evidence in the proceedings and such an assertion has no basis. 72 As I have already observed, the application concluded by observing that the officer has no desire to continue her employment with NSW Police in any capacity and it is obvious that the officer is engineering her departure from NSW Police with the most financial viewpoint possible. These statements ignore the fact that the application for medical discharge was made not by Ms Gulbis, but by Ms White, on the instructions of Superintendent Moore. There is no evidence that Ms Gulbis ever raised the issue of seeking medical discharge. The author of these statements, a case officer, Medical Discharge Unit (who remained unnamed in the proceedings) was not called to give evidence. 73 Accompanying the application were various annexures. Annexure D was a file note dated 15 June 2007 from Mr Fortunato, which stated that "Lesley White raised concerns as to the integrity of the information provided by [Ms Gulbis] in regard to her attendance/involvement/investigation of the traumatic incidents listed as the catalyst of the officer's infirmity." Clearly, Ms White was suggesting to Mr Fortunato that Ms Gulbis was making up her injury. This was not put to her in evidence and Ms White did not give that evidence on oath. However, it was a matter which the Panel took into account in making its decision. 74 In light of the statements contained in the application (Death and Disability Insurance Scheme submission) to which I have referred, it is not surprising that Ms Gulbis was denied any benefits under the D & D Award. The particular factors that were sought to be relied upon - failure to comply with a medical certificate; a contention that Ms Gulbis would not commute from Coffs Harbour and what Ms Gulbis was alleged to have said at the meeting which occurred on 1 November 2006 with Ms White and Ms Tarabay, do not appear to me to have any relevance to the D & D Award disqualifying factors. The respondent made much of Ms Gulbis' comment to Ms White, Ms Tarabay and a number of her psychologists that she no longer wished to be a police officer. However seemingly in disregard of its obligations in cl 9.2 of the D & D Award, and without calling upon Ms Gublis to identify suitable police positions for redeployment, the respondent unilaterally made application for Ms Gulbis' medical discharge. 75 Ms Oakley submitted that if an officer had no motivation to be a police officer, it is not reasonably practicable for such an officer to be placed in suitable position. Counsel pointed to the evidence of Ms Tarabay, Ms White, Mr Meylakh, the HealthQuest Psychologist, Dr Ginnane and Dr Weatherby as being major factors in reaching the determination that Ms Gulbis would not return to police duties on a restricted duties basis. The difficulty with this submission is that it does not connect with the disqualifying provision of the Award. There was no submission from the respondent that the disqualifying elements identified by paragraphs 9.2 and 9.3 were made out and in my view, nor could they be, because the evidence was indisputable that there was never any offer or proposal for a suitable duties position or a permanent restricted duties position offered to Ms Gulbis. The reason for this, as disclosed by Ms Harrison was that NSW Police accepted Ms Gulbis' medical reports and the advice from HealthQuest that Ms Gulbis was simply unfit to perform such work. 76 Ms Oakley relied on cl 9.5 of the D & D Award, submitting that it spells out the objectives about mutual obligation in respect of rehabilitation, retraining and placing an officer in a suitable position in NSW Police where reasonably practicable. To my mind, cl 9.5 of the D & D Award states an objective which is implemented by cl 9.2 and cl 9.3 of the D & D Award. Clause 9.5 does not, of itself, create any disqualifying factors. Ms Oakley further submitted that Ms Gulbis had a lack of motivation to continue employment in NSW Police and it was that lack of motivation that caused it to be not reasonably practicable for her to be placed in a suitable police position within NSW Police. The difficulty with this submission is that it ignores the words "wherever reasonably practicable" which appear in cl 9.5 of the D & D Award. These words are not a disqualifying factor, but quite the reverse. If a suitable police position is not reasonably practicable, then an officer is entitled to the benefits available under the D & D Award. 77 The reason disclosed by Ms Harrison, who was in charge overall of Ms Gulbis' return to work was the reason why it was not reasonably practicable for her to be placed in a suitable position in NSW Police, that being Ms Gulbis was medically unfit to carry out operational or non-operational duties. This was confirmed by the HealthQuest report as well as the evidence of Dr Peters. It was on the basis of the HealthQuest report that Ms Gulbis was discharged by NSW Police. It cannot now be open for NSW Police to put at issue anything that was stated in the HealthQuest report. The fact that Ms Gulbis said that she would prefer not to return to pre-injury duties and seek a career outside NSW Police, does not, in my opinion, disqualify Ms Gulbis from receiving the benefits under the D & D Award. 78 Mr Hatcher drew an analogy of a police officer who was physically injured in the course of his/her duties and became confined to a wheelchair. Counsel submitted that it could not seriously be suggested that for that police officer to have a view and express a view that he/she would rather, in the light of his/her condition, leave the police force and do something else, rather than be bound by a wheelchair and have to do some form of a restricted duties, that such a view would thereby disqualify that officer from a benefit under the Award.

Police Association of New South Wales (on behalf of Sahra Gulbis) v Commissioner of Police

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Judgment (17 paragraphs)

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Cases Cited (6)

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