Stephen Cooke v SAS Trustee Corporation

Appellant: Mr G. Edwards of counsel Solicitors: Richardson Burgin Steer

LEGAL REPRESENTATIVES: Respondent: Mr T. Ower Solicitor: Mr B. Matthews SAS Trustee Corporation

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: KAVANAGH J Date : Tuesday 7 December 2004

IRC6130 of 2004 STEPHEN WILLIAM COOKE v SAS TRUSTEE CORPORATION Application by Stephen William Cooke to appeal against a decision of the SAS Trustee Corporation given on 2 July 2004 EX TEMPORE JUDGMENT [2004] NSWIRComm 396

1 By way of an Amended Appeal, Stephen William Cooke, a former police officer, appeals pursuant to s88 of the Superannuation Administration Act 1996 from a decision of the Police Superannuation Advisory Committee which determined not to add the medical infirmities of "anxiety" and "depression" to his certificate of incapability.

2 The Advisory Committee determined the appellant was incapable of discharging the duties of his office or any other office in the Police Service available to him in which it would be reasonable to expect him to be employed due to the specific infirmities of "internal derangement left knee; osteoarthritis left knee; panic disorder and alcohol dependence."

3 What the appellant seeks is to have the additional infirmities of anxiety and depression included in the certificate under s10B(1) of the Police Regulation (Superannuation) Act 1906. HISTORY 4 Mr Cooke became a probationary police constable on 28 May 1982. Prior to that, he had training through an apprenticeship in a trade. He began police duties at Cronulla police station. In May 1987, he was promoted to the rank of constable first class. He then served at a number of police stations in the northern district of New South Wales.

5 On 10 April 1990, he suffered an injury to his left knee by way of an assault during the course of his duties. He had continuing problems with his left knee.

6 In September 1996, he suffered a panic attack while on duty. By May 1997, he had sought assistance from the psychology section of the Police Service. He was referred to a psychiatrist, Dr Sandra Smith, through a clinic entitled the R.E.A.D. Clinic. Throughout 1997-1998 he received 10 consultation sessions with psychologist and psychiatric support.

7 By May 1997, he was also in the care of a GP, Dr Stephen Nichol, who saw him on 30 May 1997. He stated: Stephen was describing classic panic attack symptoms, when he would become anxious, upset, hyperventilate and felt agoraphobic and about to lose control. 8 Mr Cooke continued throughout 1998 to have persistent serious trouble with his left knee and in October 1998 suffered a further left knee injury. This led to unsuccessful operative treatment and an ongoing incapacity.

9 In May 1999, he was admitted to St Edmund's Private Hospital for treatment for alcoholism. Dr R Moorthy was the consultant clinician at that hospital. He diagnosed: (1) Chronic post-traumatic stress disorder; (2) Chronic dysthymic disorder often exacerbated into major depression; (3) Anxiety disorder; and (4) Alcohol dependence. 10 At that time, the doctor considered him to be: Totally and permanently incapacitated to return to his previous duties or any other work.

11 In October 1999, Mr Cooke applied for a medical discharge.

12 On 22 June 2000, a certificate was issued under s10B(1) of the Police Regulation (Superannuation) Act 1906 specifying the knee infirmity, the panic disorder and alcohol dependence. The knee disability was accepted as "hurt on duty" and the panic disorder and alcohol dependence were not accepted as hurt on duty.

13 On 6 July 2000, Mr Cooke was medically discharged.

THE EVIDENCE 14 The claim relates to the addition of two disorders - anxiety and depression. For these disorders to be added to the certificate they must have the effect of making the appellant incapable of discharging the duties of his office or any other office in the Police Service available to him and which it would be reasonable for him to be employed.

15 The appellant relies upon the evidence of his treating psychiatrist, Dr Moorthy. The appellant also relied upon medical reports of Dr Nichol, his general practitioner, Dr Smith from the R.E.A.D Clinic, Dr Randle and Dr Hulme as to his orthopaedic injuries and a number of consulting psychologists he saw through the Police Service.

16 The respondent relies upon a medico-legal report of Dr Robert Wade, a consultant psychiatrist who saw the appellant on 15 August 2002 after his retirement. Dr Wade provided three reports, the latter two in answer to further inquiries from the respondent as to his assessment. The respondent also relied upon opinions of Drs Dyball, Lee and Christie.

17 The appellant gave evidence and was cross-examined. The appellant expressed the view both his anxiety and depression were incapacitating. He revealed he was not performing his full duties as a police officer before his retirement because of those conditions and that senior officers allowed him to avoid some duties. Further, after his knee operation when it was revealed he was to be retired he complained that he felt unable to cope and was suicidal. RELEVANT PRINCIPLES 18 It is necessary to refer to a number of relevant principles in order to determine the powers of this court which it derives under s88 of the Superannuation Administration Act 1996 and how it must read the appeal against the Police Regulation (Superannuation) Act 1906 as amended. The decision was appealed under s8 and s10B of that Act. Relevantly, sections 10B(1), (2) and (2)(a) states: 10B Medical examination of disabled member and determination of whether hurt on duty (1) An annual superannuation allowance shall not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member's office. (2) An annual superannuation allowance shall not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury

19 In Adams v State Authorities Superannuation Board (unreported decision of 5 December 1991 in No 551 of 1990) Cullen J described the required infirmity at 15 as: A physical or mental condition which prevents a member of the Police Force, for the foreseeable future, from discharging the duties of a police officer. 20 In a consideration of this analysis in SAS Trustee Corporation v Daykin [2002] NSWIRComm 124 the Full Bench of the Industrial Relations Commission commented at [25]: The member must be incapable, from infirmity of body or mind, from discharging the duties of the office (s.8). This does not require that the infirmity be attributable to a single condition; whether it is, or whether there are in existence other features which, taken together or separately, mean that the member has the necessary incapability, is a question of fact to be determined in each case.

Their Honours as members of the Full Bench went on to say at [27]: The statutory regime requires that the applicant be found either incapable or not incapable of performing the duties for, in effect, the foreseeable future. 21 Later the Full Bench considered a decision of Hungerford J in Woodlands v SAS Trustee Corporation [2001] NSWIRComm 232 where his Honour said at [38]: ... if a particular infirmity or infirmities do not make the officer so incapable then it is not open under the section to include it or them in a certificate. In other words, it is to be emphasised for present purposes, if an officer has the benefit of an existing certificate with a specified infirmity or infirmities then it is not open to add another infirmity unless that other infirmity itself was causally connected to the incapability to perform duties.

Their Honours as members of the Full Bench in Daykin said of Hungerford J's view as quoted above: We think (this view) consistent with our conclusion.

ANXIETY 22 Dr Moorthy gave evidence and was cross-examined. The doctor was treating the appellant through the period of time he was medically retired. The doctor reviewed Mr Cooke as late as 23 September 2002. In chief the doctor was asked: Q. What was the cause of the anxiety? A. The anxiety started over a period of time in relation to his work as a serving member of the Police Force where he was subjected to a number of instances of an anxiety-provoking nature of unpredictable outcomes, some of them being life threatening in nature, requiring him to make appropriate decisions and judgments and in my view it was a sort of gradual culmination of these stresses presenting itself as anxiety. At some stage patients usually are becoming aware they are not functioning as well as before and the cause of that, being anxiety, which exists along with other psychological problems. 23 It was Dr Moorthy's view that anxiety can exist either independently or in association with panic disorder; that the appellant suffered a generalised anxiety which on occasions manifested itself as so serious as to be in the form of panic attacks; that the anxiety disorder rendered the appellant incapable of discharging the duties of his office. Dr Moorthy's opinion was that panic attacks and generalised anxiety should be seen as two separate disorders.

24 The respondent argues that as the doctor could not differentiate between the symptoms of anxiety and panic disorder that "accordingly the doctor did not consider the anxiety symptoms which fell outside the ambit of panic disorder incapacitated the appellant".

25 The appellant also relies on the view of the treating general practitioner, Dr Nichol, who on 5 January 2000 said the appellant "still has ongoing panic attacks and bouts of anxiety".

26 Looking back into the history recorded by Ms Anita Smith, psychologist from the R.E.A.D Clinic, she in 1997 diagnosed Mr Cooke with the conditions of anxiety, tension and depressive symptomatology. A further consulting psychiatrist at the R.E.A.D. Clinic, Ms Julie Spinks, noted "Mr Cooke's anxiety disorder has now been a relatively longstanding one".

27 Dr Wade, relied upon by the respondent, as to the anxiety condition noted: ... Mr Cooke's anxiety symptoms extend significantly beyond episodes of intoxication and withdrawal.

He further noted as to the effect of his symptoms on his duties: Any impact on his work appears to have been acceptable to the employer. 28 Dr Wade also conceded there were some symptoms of anxiety which could be differentiated from the symptomatology of a panic disorder. These symptoms he opined were: Permanent and relevant to his performance, and I think he had sick leave and treatment during the course of them but continued to work. 29 There was much cross-examination of the two doctors called as to the differentiation between the condition of panic disorder and anxiety condition. Dr Wade was asked: Q. So far as anxiety is concerned as it presents in Mr Cooke, can you explain to the court the relationship between that anxiety and panic disorder? A. Panic disorder is one particular form of anxiety. Mr Cooke has experienced other forms of anxiety as well. ... Q. In the DSM-IV category of panic disorder, are there a range of anxiety symptoms or not? A. Yes.

Q. And the symptoms that you talk of which you found they were distinct from that range of anxiety symptoms? A. Yes.

Q. In Mr Cooke were those of themselves debilitating at all? A. I do not think so. I think they are significant but I don't think they are debilitating, no.

Q. Why is that? A. His account of them doesn't illustrate that they were debilitating, and the reports I read again indicate they were significant problems but not debilitating. He continued to work.

Q. So in your opinion did they incapacitate him for police duties at all? A. I think they were prominent and relevant to his performance, and I think he had sick leave and treatment during the course of them, but he continued to work ... Q. The changing of the shifts, did you take a history of that being to do with anxiety per se, or panic disorder? A. I could not differentiate them. I don't have the details of that".

30 The appellant argues Dr Wade's opinion that the appellant's depression and the anxiety did not cause his incapacity to perform the duties of a police officer was misdirected as to the correct test for incapacity. The Full Bench has said "We are testing for incapability". The appellant submits it is not a question of causation other than to be causally related to the specified infirmities rendering the appellant incapable of discharging the duties of his office.

31 I have considered the medical evidence placed before me by both parties. As to the incapacity of the member, I prefer the evidence of Dr Moorthy who was the treating psychiatrist for the appellant at the time of his discharge. I accept the appellant suffered an anxiety condition both at the time the appellant stopped work in April/May 1999 and on 28 June 2000 when the certificate was issued. I find the condition of anxiety rendered the appellant incapable of carrying out the duties of his office.

32 I therefore accept the condition of anxiety should be added to the certificate of incapability. AS TO DEPRESSION 33 Dr Moorthy diagnosed the appellant was suffering with depression in May 1999 after a period of detoxification. The doctor said: Q. Did you take a history from Mr Cooke about what the effects of that last operation had upon him? A. Yes. Bearing in mind I was concentrating more on the psychological aspects then the physical aspects, and the distinguishing feature was when he was declared unfit due to injury, I think the psychological symptoms then became more common.

Q. What were those psychological symptoms which were more common when he was declared unfit? A. Depression. 34 He also opined the suffering by the appellant of depression rendered him incapable of discharging the duties of police officer: Q. And is it fair to say that if he simply had his symptoms of depression he would be capable of working as a police officer? A. With depression alone, no.

Q. Why not? A. As a psychiatric (sic) I would not put my name on sending him back to work.

Q. You accept that between 1986 (sic) and 1999 he had depression which was not incapacitating him for work, correct? A. Yes. ... Q. Why are you assuming an incapacity simply for depression after 1999 when you weren't willing to say that that was the case before 1999? A. My clinical contact with him occurred around the middle of 1999. I have no information of his clinical state before that. And if I had assessed him at any stage and he had presented in the manner that he presented in August 1999 I would consider him to be unfit to be employed as a police officer.

Q. Just narrowing that answer down to depression alone? A. Yes.

Dr Wade took the following history from the appellant: The last straw (in remaining working) was being told that his knee was buggered, and they couldn't do anything with it. That news and situation caused severe depression. He got on the grog. He phoned his brother saying his career and life were over. 35 Dr Wade in his report of 23 June 2004, conceded from the history he was given, the appellant was suffering from depression and anxiety in December 1999 and in July 2000.

36 Dr Wade's strong view was although the appellant had symptoms of depression he continued to work and so he disagreed with Dr Moorthy on the issue as to whether the depression made the appellant incapable. Yet it was Dr Wade who really conceded that the appellant found his knee injury "the last straw" and he conceded "absence from work is likely to have worsened Mr Cooke's psychiatric symptoms, consistent with treating psychiatrist, Dr Moorthy's report".

37 Dr Wade really proposes that if the Service had continued to not require the full performance of Mr Cooke in his duties he would have been able to continue working. I cannot accept this proposition. Once the appellant had to adjust to his duties he was incapable of performing them.

38 Accordingly, I accept that depression should be added as a specified infirmity as at April/May 1999 when he stopped work and particularly at 28 June 2000 when the certificate was issued.

39 As there are multiple other injuries on the certificate of incapacity I accept the appellant given his anxiety and depression could not perform any other duties in the Force.

40 I therefore allow the appeal and order that the specified infirmities of "anxiety" and "depression" be included in the s10B(1) certificate under the Police Regulation (Superannuation) Act 1906.

41 The respondent is to pay the appellant's costs in relation to the proceedings which concerned the claim of inclusion in the certificate for the conditions of "anxiety" and "depression".

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