Fifth question
83The fifth question asks whether the evidence in the present matter is sufficient to constitute substantial compliance with s 10B(2)(a) in respect of the claimed infirmity of post traumatic stress disorder. That issue has to be approached having regard to my conclusion that notification is a question of fact to be determined by the respondent and not necessarily by advice provided by the Commissioner of Police.
84In relation to the Commissioner's advice, it was contained in two letters dated 22 May 2006 and 4 December 2007. There it was stated the Commissioner did not accept the appellant had complied with the requirements of s 10B(2)(a) of the PRS Act. In the first letter it was stated:
A review of the member's records has revealed case notes contained on both the Police Medical and Rehabilitation Files, whereby the officer makes reference whilst attending an appointment with the PMO on the 15 January 1997 that he was "feeling depressed" and the case notes from his rehabilitation case management on 14 October 1996 states, "that he had an appointment with the psychologist for stress management", however, there is no reference to the member advising the NSW Police of a post traumatic stress disorder" condition.
85In the second letter the Commissioner reiterated that he did not accept there had been compliance with s 10B(2)(a) of the PRS Act. The letter was in response to a letter from the respondent dated 29 November 2007 in which it was stated:
Mr Woollard supplied a report dated 20 June 2005 by Dr Diamond, psychiatrist, (copy attached) who took a history of traumatic incidents and symptoms and diagnosed PTSD as at the date of medical discharge.
So that consideration can be given to his application, please let me know whether the Commissioner was notified of any injury (i.e. psychological or psychiatric complaint linked to any of the incidents specified in Dr Diamond's report) causative of the alleged infirmity of post traumatic stress disorder. ...
86It becomes necessary to consider what material the Commissioner had at his disposal in arriving at the view there had been no notification. It will be recalled that the appellant was medically discharged in 1998. The appellant initially claimed he had contracted Lyme Disease from tick bites during the course of his duties, although it is noted the Disease was never definitively diagnosed and there was continuing medical speculation about whether the appellant's condition was due to Lyme Disease or Chronic Fatigue Syndrome or both. In his 2009 report Dr Lewin stated, "there is no reasonable physical diagnosis to account for...." Mr Woollard's depressive condition. Dr Diamond said in his 2005 report that Mr Woollard had been "erroneously diagnosed with Chronic Fatigue Syndrome." Dr Dinnen in his 2011 report agreed with Dr Diamond "the diagnosis of chronic fatigue syndrome was erroneous".
87In August 1997, the appellant withdrew his application for hurt on duty as a consequence of contracting Lyme Disease and sought a discharge on the basis that he was "medically unfit". The appellant was discharged medically unfit with Chronic Fatigue Syndrome, a condition apparently not attributed to being hurt on duty.
88Between 1996 and 1998 the Commissioner received various reports that the appellant contended, taken as a whole, revealed "a substantial and ongoing psychiatric disorder the elements of which are consistent with post traumatic stress disorder suffered by the Appellant." The reports, identified by the appellant, included the following:
(1)A COPS entry of 9 August 1996 - Senior Constable Hewitt records a report by the appellant that includes the following:
The victim's (Appellant's) health for quite some time now has not been good with him suffering flu like symptoms and fatigue, however the victim put these symptoms down to simply being run down and from the stresses involved in his work situation. The victim's condition deteriorated forcing him to seek medical attention, the result of which revealed he had in fact contracted Lyme disease.
(2)Report of Dr W Sedhoff dated 20 November 1996 to the Claims Coordinator, Workers Compensation Section, NSW Police attaching copies of reports of Dr B Hudson dated 5 September 1996 and 10 October 1996.
Dr Hudson records symptom complaints of "poor memory, concentration, lethargy, fatigue, arthralgias (sic) of the joints without swelling, parasthesia (sic: paraesthesia) including pain in the soles of the feet". Further, the Doctor records "myalgias (sic), chest pain, associated parasthesia (sic) in his left arm". The diagnosis of Lyme disease is seen as "possible" and the diagnosis is described as "provisional".
In his report, Dr Sedhoff records a four year history of "debilitating, often severe, lethargy that was affecting concentration and the abilities of Senior Constable Woollard perform his duties as a police officer". Further symptoms are recorded as "arthralgia of several joints (without swelling), easy fatigability, poor concentration, parasthesia (sic) of the soles of the feet with intermittent pains. There was also occasional chest pains, muscular pains in parasthesia [sic] of the left arm that history of trauma."
(3)Rehabilitation Case Management Clinical Note dated 14 October 1996. In this document are listed under the heading "current symptoms":
(1)arthritis
(2)muscular pain
(3)dizzy spells
(4)confusion
(5)memory loss
(6)[?] chronic fatigue.
(4)Letter Dr Hudson to Detective Sergeant Dowding dated 23 October 1996 - this letter seeks to excuse Mr Woollard from attendance at Court. Dr Hudson refers to a "multisystem disorder that is compatible with Lyme disease". More specifically, the Doctor refers to the Appellant suffering "difficulty with his short term memory and his ability to think clearly and concentrate are impaired."
(5)Clinical note, Police Medical Officer dated 15 January 1997. In this clinical note the PMO records current symptoms as:
Fatigue, occasional dizzy spells 1-2 x mth, joint pain - toes/wrist/neck, shooting pain in limbs and back of ears/calves
Concentration/memory poor
Parasthesia [sic: paraesthesia] soles of feet
Poor sleep, feels depressed.
(6)Police Service Personnel System - Leave Taken. P. Woollard: 14 February 1997 to 4 March 1998. This document represents a record of leave taken by the Appellant for the period stated. For the period 23 March 1997 to 21 January 2008 the "Reason" for leave is listed as "nervous illness\anxiety". This is a record maintained by the NSW Police Service.
(7)Report of Dr P Sharp, Police Medical Officer dated 27 August 1997 - in the report there is recorded complaints by the Appellant of fatigue, joint pains, shooting pain, feels depressed, does not sleep well and finds cognitive functions are affected. There is also a complaint of paraesthesia.
(8) Rostering Details - Sick Leave Records - Sen Constable Phil Woollard: 12 January 1998 to 23 January 1998: this document records the reason for the Appellant's "Long Term Sick" report as "Stress/Lymes (sic) Disease."
(9)The Appellant's Affidavit reveals he was on continuous sick report from late June 1996 to his medical discharge in March 1998 - a period of 20 months.
(10) Reports of Injury (Dates of Injury: 18 March 1989 and 30 June 1990): Each report of injury provides a description of an event to which the Appellant was exposed. On 18 March 1989 the appellant's vehicle hit a patch of oil and overturned on his way to work. The appellant suffered pains to his throat, neck and back. On 30 June 1990 the appellant was dragged 15 metres by an offender on a motor cycle whilst the appellant was attempting to arrest the offender. The appellant suffered severe pain to his neck, back and right leg.
89The appellant submitted that if the description of the diagnostic criteria of post traumatic stress disorder in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition, Text Revision ("DSM-IV-TR") published by the American Psychiatric Association is taken as relevant, the COPS reports, clinical notes, medical reports, letters and factual matters referred to above revealed that the Commissioner of Police had notification consistent with the satisfaction of, at least, Criteria A, C, D, E and F as identified in the DSM-IV-TR.
90In summary, Criterion A is that the person has been exposed to a traumatic event in which both of the following have been present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; (2) the person's response involved intense fear, helplessness, or horror; Criterion B - the traumatic event is persistently re-experienced in one (or more) of the designated symptoms; Criterion C - persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the designated symptoms; Criterion D - persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the designated symptoms; Criterion E - duration of the disturbance (symptoms in Criteria B, C, and D) is more than one month; and Criterion F - the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
91According to the appellant (referring to the reasons of Staff J in Hazlewood), the Commissioner of Police had notification of events occurring and impacting upon the appellant psychologically in a way that had the capacity of manifesting in the ultimate condition (the infirmity):
The Commissioner of Police had notification of the elements of a condition that should be treated as being referable to a statement of advice as to the onset, or the existence of PTSD, and therefore constitute notice of the requisite kind.
92It was further submitted for the appellant that notification of the elements of the condition was confirmed by the later obtained reports from the appellant's treating specialist, Dr Diamond, and from the doctor qualified for the respondent, Dr Lewin. Both doctors confirmed the probability, it was claimed, that in the years leading up to his medical discharge, the appellant was misdiagnosed. Further, it was submitted both doctors confirmed that the symptoms recorded at the time and noted in the various documents referred to above were consistent with the development of a psychiatric disorder.
93The appellant acknowledged that whilst there is some difference of opinion between Dr Diamond and Dr Dinnen, on the one hand, and Dr Lewin on the other, as to the proper descriptive title to be given to the psychiatric disorder suffered by the appellant and from which he was infirmed at the time of his medical discharge, it was submitted that "the Commission would favour the views of Dr Diamond and Dr Dinnen that the correct diagnosis (and infirmity) was a 'post traumatic stress disorder and major depressive episode'."
94Dr Diamond provided comprehensive reports on the appellant's condition on 20 June 2005 (to the appellant's solicitors in the present proceedings) and 20 September 2010 (to the appellant's solicitors in family law proceedings).
95In his June 2005 report Dr Diamond acknowledged he had been provided with various medical reports, including reports of Dr Hudson and Dr Sedhoff. In his report Dr Diamond stated:
Mr Woollard has given a comprehensive history of cumulative stress-related illness. He describes clearly the onset of symptoms associated with Posttraumatic Stress Disorder. These occurred early on in his policing career and have persisted throughout. The presence of the condition is clearly identifiable following events that began in the 1980s and continued to trouble him with further exposure to traumatic stress during the course of his policing career.
He has repeatedly been exposed to events involving threats of death and serious injury. He has witnessed death and serious injury involving other people. His subjective experiences include intense fear, feelings of helplessness and horror. He has feared for his life on many occasions.
He has persistently re-experienced these traumatic events in a number of ways. He has intrusive recurrent distressing recollections of the events accompanied by vivid images and perceptions of the incidents. He has recurring nightmares that are part of the response to distinct traumatic events.
He responds to recall and reminder cues of the traumatic events with intensification of symptoms exemplified by fear, anxiety, shakiness and sweatiness. He has both psychological and physiological reactions to cues that remind him of the stressful events.
Mr Woollard is avoidant of many situations in which he feels he might be under threat. He avoids locations where traumatic incidents have occurred. He distracts himself by trying to keep focused and busy doing mundane tasks around the house. He does not engage in discussion about past events related to his policing career. His activities and interests have diminished markedly. He leads a life that is almost entirely focused around domestic and childcare duties. When he attempts to work he works on his own by doing stints of lawnmowing in the immediate local environment.
Mr Woollard presents as a detached and seemingly unconcerned individual until he is pressed to talk in detail about his traumatic experiences as a police officer. He requires reminding about his concerns about the future and about his responsibilities towards his wife and children. He is detached.
Mr Woollard reports episodic irritability and rage. He takes this out on his children. He is aware that this behaviour is inappropriate. He is aware of hypervigilance. He constantly surveys the environment. When he is forced to go out of his local area he finds those experiences to be anxiety provoking and draining. He is terrified of meeting people whom he might have dealt with in his policing role. He is afraid he will be recognised. When he is away from his home he feels vulnerable and anxious.
The onset of his initial posttraumatic stress disorder symptoms occurred early on his policing career. Although the condition was present it was not totally disabling. The disability has evolved as the traumatic experiences have been cumulative. He reached a stage when he was unable to function. He was unable to concentrate, unable to remember and unable to focus. He felt listless, detached, irritable and distressed. He developed a secondary disturbance in his mood state and became depressed. The condition has been present for many years. It has been disabling for almost a decade.
...
I have reviewed the documents that you enclosed with your referral letter. They clearly support the history as described to me by Mr Woollard. The content of the documents is clear. His general non-specific symptomatology was thought to be on the basis of what were then interesting and exotic diagnoses at the time. Further attempts at reaching a definitive diagnosis were unsuccessful although his symptoms were simply attributed to those associated with the diagnosis of Lyme disease and much later, Chronic Fatigue Syndrome.
The striking issue is that the diagnosis, Chronic Posttraumatic Stress Disorder, was never raised as a diagnostic possibility.
I specifically asked Mr Woollard why this had happened. He explained to me, as discussed earlier in the report, that the suggestion by the general practitioner that he had suffered a disease as a result of exposure to tick bites was a great relief to him at the time. Not only was the suggestion acceptable to him but also it was followed by referral to an expert and investigation and treatment provided some hope that his diverse symptoms could be cured. Mr Woollard went on to tell me that for many years his life as a covert operational officer meant that he was most reluctant to divulge any of his policing activity to anyone. For years he was accustomed to saying little about what he did. Furthermore, he was unwell as a result of longstanding chronic posttraumatic stress disorder. His way of coping with this was to remain distracted and focused on specific tasks. He was not accustomed to talking about his emotions and was most reluctant to display these to anyone.
When taking this information into consideration it is clear to me that Mr Woollard was compliant with the diagnosis of Lyme disease and was most reluctant to explore any other psychological issues at that time. His attendance at a psychiatrist in Penrith whilst he was living with his mother was an attempt to cope better with the stress that he was under at the time. He did not discuss his longterm work-related trauma with the psychiatrist at the time. He was not asked about this specifically.
The correspondence that I read documents clearly the course of events in relation to his examination by experts in infective diseases medicine. These specialists did not pursue alternative explanations for his symptoms. I note that their diagnoses are made by exclusion and not by demonstrating specific evidence for his illness being caused by a specific infective agent.
CONCLUSION
Mr Woollard has a very clearly demonstrated history and associated symptoms that confirm the diagnosis of chronic Posttraumatic Stress Disorder.
It is my opinion that this condition was not identified at the time he was assessed in relation to his inability to maintain the capacity to work as a police officer. In 1998 he was not capable of performing the duties of a serving police officer. That state persists to the present.
I believe finally he was erroneously diagnosed with Chronic Fatigue Syndrome and that this diagnosis turns out to be incorrect. I would therefore support his application to have his Certificate of Incapacity changed so that it states the correct incapacity being Chronic Posttraumatic Stress Disorder.
96Dr Diamond was obviously of the view that the appellant had been treated poorly by the Police Force. In his September 2010 report, Dr Diamond stated:
With regard to his psychiatric illness, he has Chronic Post Traumatic Stress Disorder that is likely to persist into the future. This can be assessed as a permanent and recurring disability.
...
Future progression of your client's current condition is likely to be affected by external stressors of various types. The current litigation is an example of such stress. Other stressors include his development of further physical illness, as may well occur in his case. In addition, your client is susceptible to trigger events that are likely to precipitate acute exacerbation symptoms in the context of his Chronic Post Traumatic Stress Disorder. These events are unpredictable and random because individuals with the condition may find themselves exposed to events that trigger memories of traumatic experiences that occurred during a policing career.
Your client's ability to obtain work in the future is limited by his physical condition and by his psychiatric illness that will persist in the long term. He has only functioned in the employment environment over the years when he is able to work in a secure, isolated environment such as doing casual gardening for well-known clients. The extent of his work in that role was always limited. He was not pressured by an excessive workload or by working normal hours. His work consisted of casual gardening and handyman work for fewer than twenty hours per week generally. It is unlikely that his work capacity will improve beyond that. Your client's ability to obtain employment in the future therefore is curtailed.
97Dr Dinnen examined Mr Woollard in January 2011. Dr Dinnen agreed with Dr Diamond's diagnosis. In his report dated 25 January 2011, Dr Dinnen stated:
Report from Dr Lewin:
A report was provided by psychiatrist, Dr Robert Lewin in June 2009 to State Super. He examined the patient in June 2009. He took into consideration various documents including Dr Diamond's report. He took a history of the patient's service experiences and traumatic events, and recorded a psychiatric history. He noted the patient had been seen by a psychiatrist, Dr Nazdeer Hamed in Penrith in 1996 (this was referred to also by Dr Diamond) and was considered to be suffering from stress symptoms at the time of the Royal Commission. He was prescribed anti-depressive medication but did not take it. He also noted the personal and family history, including matters to do with the family breakdown.
Although Dr Lewin noted there was a complex of reactive symptoms of depression and anxiety clearly evident from the mid 1990's onwards, and these included post traumatic symptoms of anxiety and depressive symptoms as well as a pattern of abusive alcohol, he diagnosed major depressive episode even though he agreed that Dr Diamond's diagnosis of chronic post traumatic stress disorder was reasonable. He considered the current diagnosis was that of a partially treated major depressive episode.
Other Documents:
These are noted and include a 24 page document describing the patient's personal experiences in the Police Force, which is presumably the one referred to by Dr Diamond.
Opinion:
This case classically demonstrates the difficulties of diagnosing post traumatic stress disorder because of two main reasons - the reluctance of those who have been traumatised to acknowledge the impact of those experiences, or event to be aware of that impact, mainly because of the coping strategy of avoidance and suppression of traumatic memories and experiences which is central to the condition. The second factor is that the diagnosis often escapes those who are not particularly skilled and experienced in diagnosing and treating the condition, and is mistaken for other conditions such as depressive disorder or alcohol abuse. Indeed, the co-morbid association of post traumatic stress disorder with substance abuse or dependence, and depression, is of the order of 50% for each.
I have no doubt whatsoever that this patient does suffer from chronic post traumatic stress disorder. His experiences in the Police Force were traumatic and prolonged, and are well described and evaluated by Dr Diamond. The particular advantage that Dr Diamond has in giving his opinion is that he has had an ongoing association with this patient, which allows a depth of knowledge which cannot be duplicated in a single assessment. However the histories provided to me at interview and recorded by Dr Lewin are certainly entirely consistent, if less detailed, with Dr Diamond's reports.
Not only does he have severe chronic post traumatic stress disorder, but it has rendered him incapable of working in his profession as a police officer since 1996. His ability to work part-time was further compromised by the development of cancer two years ago, and this undoubtedly aggravated his psychiatric disorder.
Medico-Legal Matters:
I note from your letter of 13 January that the patient applied to have his certificate of incapacity amended to have the infirmity of post traumatic stress disorder added to it. You advised that the SAS Trustee Corporation has not added that condition but instead added the condition of major depressive episode. That decision is on appeal. You have asked if in my view the patient was suffering as at the date of medical discharge from the NSW Police Force on 25 February 1998 from post traumatic stress disorder.
I have commented above as to the problems which can occur in making this diagnosis. It is a matter in which I have particular expertise, and I am certain that this patient indeed did have chronic post traumatic stress disorder as at the time of his medical discharge from the Police Force. I fully agree with Dr Diamond, whose exemplary reports and opinion should not be challenged in my view, that he had long suffered from this condition and that it was aggravated as a result of his unfortunate experiences before the Wood Royal Commission. Further I fully agree with him that the diagnosis of chronic fatigue syndrome was erroneous, and the correct diagnosis at the time was that of chronic post traumatic stress disorder with associated depressive features.
I would strongly advise that the certificate of incapacity on discharge from the Police Force should be amended to state that the illness from which he suffered was that of chronic post traumatic stress disorder with associated depressive features. The diagnosis of major depressive episode made by Dr Lewin is not correct and is inappropriate.
98The traumatic incidents to which Mr Woollard was exposed in his policing career were referred to by Dr Diamond and Dr Dinnen and also by the appellant in his affidavits filed in the proceedings. They included the following:
(a)an unsuccessful attempt to revive a dying man and the revulsion and guilt he felt;
(b)fear for his life and the life of a colleague during a high speed chase at a surveillance operation;
(c)intense fear for his life when he found himself trapped and at the mercy of an aggressive and hostile crowd in a covert operation;
(d)shaking uncontrollably, feeling nauseous and fearing for his life after the arrest of a motor bike rider;
(e)discovery of a deceased woman at Brookvale;
(f)attendance at a suspected suicide at Beacon Hill.
99It was, as I earlier stated, the respondent's submission that as the appellant was not diagnosed with the claimed condition of chronic post traumatic stress disorder before his discharge from the police force, it was impossible for him to have substantially complied with the notice requirement of s 10B(2)(a). In other words, as the condition had not been diagnosed the appellant could not have notified an injury that caused the condition.
100This is the difficulty with a psychic injury such as post traumatic stress disorder. The former officer may have been subject to traumatic events as a police officer and whilst he was serving as a police officer displayed symptoms of depression and anxiety including flashbacks, panic attacks, sleeplessness, stress and mood swings. However, the former officer and his or her treating doctors may have diagnosed some other psychological or even physiological condition (eg chronic fatigue syndrome), which later diagnoses prove to be wrong and which find that the proper categorisation of the condition is post traumatic stress disorder, the onset of which occurred during the former officer's police service.
101In this circumstance the former officer may be deprived of a superannuation allowance for the reason he or she did not notify an injury or injuries as causing post traumatic stress disorder because such an infirmity was not recognised at the relevant time for what it was. The difficulty is compounded by the fact that unless the former officer reported an injury, such as depression, that was manifested by a broad range of symptoms wholly consistent with a diagnosis of post traumatic stress disorder, the position of the respondent, as has occurred in the present case, would be, presumably, that the former officer did not notify an injury causative of the claimed infirmity of post traumatic stress disorder.
102It does not seem to me that the legislature's intention was to deprive a former officer of a superannuation allowance for the reason that he or she was not aware of the true nature of the infirmity at the relevant time either because the infirmity was not correctly diagnosed or not diagnosed at all and, therefore, the officer was not in a position to provide notification that specifically or unambiguously identified an injury causative of the true infirmity. To be balanced against that, of course, is the risk of former officers claiming an allowance in respect of infirmities caused by injuries incurred other than during their police service, hence the need for the notification requirement in s 10B(2)(a).
103In the present proceedings the following facts are relevant to the task of determining whether there was substantial compliance with s 10B(2)(a) of the PRS Act in respect of the appellant's claimed infirmity of chronic post traumatic stress disorder:
(1)the appellant had been exposed to traumatic events during his period of service in the police force. He was exposed to life threatening and dangerous situations including events that involved actual or threatened death or serious injury. The Commissioner knew or should reasonably have known about this exposure;
(2)the appellant was first diagnosed with possible Lyme Disease that the appellant thought he may have contracted from tick bites. The appellant underwent treatment for Lyme Disease, but it was unsuccessful. Dr Packham, a staff specialist in infectious diseases at Westmead Hospital, rejected the Lyme Disease diagnosis in January 1998. Dr Packham suggested Chronic Fatigue Syndrome was the cause of the appellant's problems. Chronic post traumatic stress disorder was never raised with the appellant as a diagnostic possibility prior to his medical discharge;
(3)the appellant experienced various symptoms in the period 1996 to 1998 that were known to the Police Commissioner or should reasonably have been known from various reports (including medical reports) including fatigue, stress, poor memory, lack of concentration, lethargy, dizzy spells, anxiety, depression, impaired cognitive functions, not sleeping well. These symptoms are consistent with a diagnosis of post traumatic stress disorder;
(4)in 1996, the appellant consulted Dr Hamed, a psychiatrist, who diagnosed stress and recommended anti-depressive medication;
(5)the appellant was discharged in 1998 as being medically unfit due to Chronic Fatigue Syndrome, a condition apparently not accepted as qualifying for Hurt on Duty;
(6)in 2004, the appellant had initially sought referral to a psychiatrist because his life was diminished and unproductive. He first saw Dr Diamond in November 2004 as a consequence of a referral from the appellant's general practitioner, Dr Forfa. Dr Diamond saw the appellant on 4 January, 15 February, 19 April and 31 May 2005. In a letter from Dr Diamond to Dr Forfa dated 11 January 2005 Dr Diamond stated:
Despite the fact that he [the appellant] was diagnosed with Lyme's [sic] disease and his symptomatology was attributed to that condition, it is very clear to me that he has all the features consistent with chronic posttraumatic stress disorder that has never been addressed or treated. Whilst the treatment component is difficult at this stage because of the entrenched nature of the symptomatology and the avoidance behaviours he exhibits, it is also significant that nothing has been done about obvious work-related illness and its consequences.
I have advised him to discuss his legal position with his solicitors with the understanding that it is my view that he has a work-related injury that has disabled him. ...
(7)consequently, the appellant's solicitors wrote to Dr Diamond seeking his opinion about the correct diagnosis and whether any diagnosed condition suffered by the appellant would have made him incapable of performing his police duties as of March 1998 as well as at the present time (June 2005);
(8)in June 2005, in a comprehensive report, Dr Diamond confirmed his opinion that the appellant was suffering from "chronic Posttraumatic Stress Disorder", that this condition was not identified at the time the appellant was assessed in relation to his inability to maintain the capacity to work as a police officer, that in 1998 the appellant was not capable of performing the duties of a serving police officer and that "chronic Posttraumatic Stress Disorder" persisted as at June 2005. Dr Diamond also expressed the opinion that the appellant was "erroneously diagnosed with Chronic Fatigue Syndrome";
(9)in November 2007, the appellant's solicitors provided the respondent with a copy of Dr Diamond's June 2005 report. Notwithstanding the report, the Commissioner maintained no notification had been given of post traumatic stress disorder;
(10)in June 2009, the appellant was referred by the respondent to Dr Lewin, a psychiatrist. Although Dr Lewin noted there was a complex of reactive symptoms of depression and anxiety clearly evident from the mid 1990's onwards and these included post traumatic symptoms of anxiety and depressive symptoms, he diagnosed major depressive episode even though he agreed that Dr Diamond's diagnosis of chronic post traumatic stress disorder was reasonable. Dr Lewin also stated, "Whether the formal diagnosis is post traumatic stress disorder or major depression, it is clear that Mr Woollard was suffering from a recognised psychiatric condition over a period of several years during the relevant period."
(11)on 11 February 2010, the respondent advised the appellant's solicitors that it had accepted, apparently based on the diagnosis of Dr Lewin, that "Mr Woollard was incapable, from the infirmity of the mind, namely "Major Depressive Episode", of personally exercising the functions of a police officer ... at the time of his retirement." The respondent issued the necessary certificate under s 10B(2) of the PRS Act;
(12)in September 2010, Dr Diamond confirmed that the appellant was suffering from "Chronic Post Traumatic Stress Disorder", that was likely to persist into the future and that it was a permanent or recurring disability;
(13)in January 2011, Dr Dinnen, a psychiatrist, examined Mr Woollard. Dr Dinnen agreed completely with Dr Diamond's diagnosis and stated there was "no doubt whatsoever" that the appellant suffered from chronic post traumatic stress disorder that had rendered him incapable of working as a police officer since 1996. Dr Dinnen said the diagnosis of Chronic Fatigue Syndrome was "erroneous" and that the diagnosis of Dr Lewin of "major depressive episode" was "not correct" and was "inappropriate".
104As I observed earlier, the respondent declined to accept that notification had been provided in accordance with s 10B(2)(a) of the PRS Act in respect of an injury that caused the infirmity of chronic post traumatic stress disorder. Instead, as evidenced by the issuing of the certificate under s 10B(2) on 10 February 2010, the respondent accepted that the appellant had notified the Commissioner of an injury or injuries that caused the infirmity of "major depressive episode".
105The only bases upon which the respondent could have been satisfied notification had been given to the Commissioner of "major depressive episode" was its own assessment that injuries had been reported by the appellant between 1996 and 1998, Dr Lewin's diagnosis of "major depressive episode" and the doctor's findings that "there was a complex of reactive symptoms of depression and anxiety clearly evident from the mid 1990's onwards...." There is no evidence the respondent received further advice subsequent to 4 December 2007 from the Police Commissioner whereby the Commissioner had changed his mind regarding notification. Moreover, in order to issue the certificate of 10 February 2007, the respondent must have accepted that there had been substantial compliance with s 10B(2)(b) as to the form of notification.
106Thus, despite submitting that Hazlewood was correct in holding that STC did not have an independent role in determining the question of notice pursuant to s 10B(2)(a), the respondent did, in fact, act independently of the Commissioner's advice in accepting there had been notification of an injury causing the infirmity of "major depressive episode". The respondent appears to have done so on the basis of an acceptance that the appellant had sustained an injury in the form of anxiety and depression, which the appellant had notified by way of reports from his treating doctors and which the respondent accepted as being consistent with Dr Lewin's diagnosis of "major depressive episode". This approach seems to have been derived from what Staff J held in Hazlewood, namely:
[90] There needs not only to be notice of the fact of a circumstance, that is, a physical circumstance which may be constituted by the reporting of an event and the existence of a condition, for example, depression, but also a communication that there is a connection between these two events. In other words, there needs to be notification given by a police officer or former police officer or his medical representatives, that the events which have occurred are in some way impacting upon him physiologically, or in some other way that has the capacity of manifesting in the ultimate condition.
[91] What the legislation requires is notification of an injury, which could include either a physical wound or psychic injury such as depression, which the police officer claims caused the infirmity rendering the officer incapable of performing his or her duties.
[92] In this case, even though the police officer said that he was depressed, he also needed to add that this was because of what happened to him whilst carrying out his police duties, or consequence of it, in order to meet the requirement of s 10B of the Act. What is required is some evidence from the police officer, or his medical practitioner, to this effect. ...
107What there must have been under s 10B(2)(a) is a notification by the former officer to the Commissioner of the injury that STC has to determine caused the infirmity and that notification must have been made before the member's resignation or retirement and within 6 months of receiving the injury. There is no requirement to notify an infirmity.
108Section 10B(2) is concerned with a former police officer who has retired ("retired" includes an officer who is medically discharged under s 14: s 10) or resigned. It sets out certain conditions that must be satisfied before a former officer is eligible for a superannuation allowance or gratuity under s 10. The purpose of s 10(1)(b) and s 10B(2) is to enable a former officer who, subsequent to his or her retirement or resignation, decides to claim the allowance or gratuity on the basis that the infirmity was caused by an injury incurred during the officer's service with the Police Force. The infirmity, or its true nature, may not have been evident or recognisable at the time the injury was incurred (or within 6 months of receiving it), but which became apparent - or diagnosed - after the officer had left the Police Force.
109In the foregoing circumstances, it may have been impossible for the officer to have identified the infirmity according to the requirements of s 10B(2)(a) (that is, before the member's resignation or retirement and within 6 months of receiving the injury said to cause the infirmity).
110In the normal course, the former officer wishing to make a claim for a superannuation allowance or gratuity would identify the infirmity (perhaps supported by medical opinion) at the time of making the claim.
111Having received the claim, STC then is required to undertake the process of determining whether a certificate should be issued to the effect that the former member was incapable, from the infirmity of body or mind identified by the claimant, of personally exercising the functions of a police officer at the time of the member's resignation or retirement. In doing so, STC is required to satisfy itself, inter alia, that the former member notified the Commissioner of Police of the injury that caused the member's infirmity. Notice of that injury is required to have been given before the member's resignation or retirement and within 6 months of receiving the injury.
112In other words, the former member may make a claim regarding an infirmity and STC will need to satisfy itself that there was a causal connection between the claimed infirmity and an injury that must have been notified to the Commissioner within the required timeframe. There is no requirement for the former officer to identify the infirmity in the notification to the Commissioner, only the injury.
113I would only add that if an officer was in a position to notify an infirmity caused by an injury prior to resignation or retirement (the infirmity required to be of such a nature it rendered the officer incapable of personally exercising the functions of a police officer at the time of the officer's resignation or retirement), one would expect the officer to claim a superannuation allowance or gratuity under s 10B(1). Section 10B(2) would be otiose.
114At [92] of his decision in Hazlewood Staff J stated:
[E]ven though the police officer said that he was depressed, he also needed to add that this was because of what happened to him whilst carrying out his police duties, or consequence of it, in order to meet the requirement of s 10B of the Act....
115 His Honour referred to s 10B of the Act. Given the context of his remarks, which involved the notification under s 10B(2)(a), it is that provision that I believe his Honour was referring to. That being so, I do not consider his Honour was correct in the opinion he expressed at [92]. The task of determining whether the former member had been hurt on duty when he or she was a member of the police force is a task allocated by the legislation exclusively to the Commissioner: s 10B(3). The responsibility resting on STC under s 10B(2)(a) is to determine whether the former member notified the Commissioner of the injury. There is nothing in s 10B(2)(a) to suggest that in certifying the former member was incapable from an infirmity of personally exercising the functions of a police officer at the time of the member's resignation or retirement, STC was required to have regard to how and when the injury causing the infirmity occurred. If STC is to be satisfied that the injury occurred whilst the former member was carrying out police duties there would seem to be little point in the Commissioner being required to determine whether the member's infirmity was caused by the member being hurt on duty.
116That leaves two questions: whether Mr Woollard notified an injury in accordance with s 10B(2)(a) and if he did was it reasonably open to STC to be satisfied of a causal connection between the injury and the infirmity of post traumatic stress disorder?
117The appellant submitted that consistent with the purpose of the legislation, "injury" as contemplated in s 10B(2)(a) could mean either an event causing harm or the onset of harm (in the form of symptoms either physiological or psychological) or both. Reference was made to Australian Conveyor Engineering Pty Limited v Mecha Engineering Pty Limited (1998) 45 NSWLR 606 at 617 per Powell JA and Lyons v Master Builders Association of NSW Pty Limited (2003) 25 NSWCCR 422 per Neilson J at [22]. Counsel submitted this definition of "injury" would mean that notification was sufficient to satisfy s 10B(2)(a) if there was notification of an incident capable of causing injury and, ultimately, infirmity. Also, notification would be sufficient if there has been a report of symptomatology to the Commissioner, that symptomatology being causative of the relevant infirmity. I do not consider it necessary to determine whether the appellant is correct in this regard.
118Section 10B(2)(a) refers to an injury that caused an infirmity of body or mind. I do not think it is contested that a traumatic event may cause an injury - a psychic injury - thereby causing an infirmity of mind, such as post traumatic stress disorder.
119There is no doubt that in the period 1996 to 1998 Mr Woollard reported a range of conditions including fatigue, stress, poor memory, lack of concentration, lethargy, dizzy spells, anxiety, depression, impaired cognitive functions and not sleeping well. It is evident that STC accepted these conditions as the notification of an injury or injuries in accordance with the timeframe in s 10B(2)(a) and in a form that complied with s 10B(2)(b), otherwise it could not have issued a certificate in 2010 that "Mr Woollard was incapable, from the infirmity of the mind, namely "Major Depressive Episode", of personally exercising the functions of a police officer ... at the time of his retirement."
120However, STC maintained the notified injury or injuries did not cause the infirmity of chronic post traumatic stress disorder. The respondent submitted that whilst the injuries and symptoms notified by the appellant supported a diagnosis of a depressive condition they were not of such a nature as to indicate the injury or injuries were causative of chronic post traumatic stress disorder.
121Notwithstanding the strong written opinions of Dr Diamond and Dr Dinnen, I do not regard myself as being in a position to determine whether what was notified by Mr Woollard during the period 1996 to 1998 may be regarded as causative of chronic post traumatic stress disorder. That, in my view, should be determined on the basis of further evidence. Neither Dr Diamond nor Dr Dinnen has been subjected to cross-examination and Dr Lewin has a different written opinion. There is also perhaps the question of the relevance and applicability of DSM-IV-TR. I am not confident the determination of what is a complex question can be done "on the papers" so to speak.
122Accordingly, having regard to what I have determined, I would propose that the question of whether the injury or injuries relied upon by the appellant may reasonably be regarded, for the purposes of s 10B(2) of the PRS Act, as causing the appellant's claimed infirmity, namely, chronic post traumatic stress disorder, be referred back to Haylen J pursuant to s 193(3) of the Industrial Relations Act.