Woollard v SAS Trustee Corporation

Industrial Relations Commission (NSW)|2012-10-26|Before: Boland J, Walton J, Backman J, Mr P, Backman JJ

Judgment 1The matters that are required to be addressed in this judgment arise out of an earlier judgment of the Full Bench in Woollard v SAS Trustee Corporation [2012] NSWIRComm 51 ("Woollard (No 1)"). Woollard (No 1) dealt with questions referred under s 193 of the Industrial Relations Act 1996. The case concerned claims by Philip Woollard, a former police officer. 2As Woollard (No 1) recorded, Mr Woollard had filed an application in 2010 to appeal from a decision of the SAS Trustee Corporation ("STC" or "the respondent"). The respondent had declined to include "chronic post traumatic stress disorder" ("CPTSD") in a certificate of incapacity issued to Mr Woollard under s 10B(2) of the Police Regulation (Superannuation) Act 1906 ("PRS Act"). 3STC had determined (in terms of s 10B(2) of the PRS Act) that the appellant was incapable, from an infirmity of mind, namely "major depressive episode", of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990 at the time of his retirement in 1998. However, the respondent declined to certify CPTSD as an infirmity because the Police Force had continued to indicate the appellant had not complied with s 10B(2)(a). That is, Mr Woollard did not notify the Commissioner of Police prior to his retirement and within six months of the CPTSD occurring. 4Relevantly, in Woollard (No 1) the majority (Walton J, Vice-President, Kavanagh and Backman JJ) held at [225]-[226]: [225] In view of these conclusions, we consider that the proper construction of s 10B(2)(a) is that, where the infirmity of mind is a psychological illness which is a disease of gradual onset, the injurious event requirement should be construed as concomitant with the requirement to notify symptomatology, provided that the symptomatology is sufficient to demonstrate the onset of the disease (the onset of the disease being the 'injury', causative of the ultimate infirmity (the disease itself), referred to in s 10B(2)(a)). In other words, the injurious event, in such cases, which occurs not in a frank incident but gradually over time, is notified under the sub-section by the reporting of a sufficient symptomatology. [226] Upon the proper construction of s 10B(2)(a), notification requires, in the case of an infirmity of body or mind caused by an injury received in a frank incident (as opposed to a disease of gradual onset), notification of an event, an injurious consequence and a connection between the two. In the case of an infirmity of body or mind caused by the onset of disease, notification of injury shall be effective, as described in the above paragraph of the judgment, where the former member notifies the Commissioner of Police of symptomatology sufficient to demonstrate the onset of the disease. 5At [229] the majority observed that whether its construction of s 10B(2)(a) was of assistance to Mr Woollard depended upon whether the claimed infirmity of CPTSD could be described as a disease of gradual onset. In concluding its judgment, the majority stated at [231]-[234]: [231] ...In circumstances where symptoms do not appear for months or years after the traumatic event, it will not be possible for a member to report an injurious event (that is, an event which has had the effect of causing symptoms); in such circumstances it will not be knowable, until the symptoms appear, that an event has been injurious. In cases where the injurious event is not known until much later (perhaps until after a member's retirement), it may be appropriate to construe the disorder as a disease of gradual onset for the purpose of s 10B(2)(a). In such circumstances, notification of injury will be taken as having been given if a member reported symptomatology sufficient to demonstrate the onset of any such disease. [232] On the basis of the available evidence and argument, however, we do not think it is possible to conclude whether post traumatic stress disorder is properly construed as a disease of gradual onset (or otherwise consists of progressive psychological symptoms arising from an event). Furthermore, it is unnecessary to finally resolve that issue in this case. [233] True it is that, on the face of the available evidence as to what symptomatology was notified by the appellant to the Commissioner of Police in the present case, there may be some doubt cast as to whether notification of particular symptoms was sufficient to indicate the onset of the claimed infirmity of chronic post traumatic stress disorder (if properly described as a disease). However, once the STC certified the infirmity of "major depressive episode" on the basis of the appellant's notification of the condition of depression, then, in our view, the conclusion that there was notice of injury by the appellant is, as the President has found, inescapable in the circumstances of this case. Whether or not that notice can be regarded as being notice of an injury capable of causing the infirmity of post traumatic stress disorder is, as we have discussed above, open to debate. [234] We agree with the view of the President that the Full Bench is not in a position, at this stage of proceedings, to determine whether what was notified by the appellant may be regarded as causative of chronic post traumatic stress disorder. That, in his view, is a complex question which needs to be determined on the basis of further evidence (having regard to the views of the various doctors and the relevance and applicability of the DSM-IV). However, given the reference of the matter under s 193 of the IR Act, it would appear to require that this Full Bench resolve this question. We would order that the matter be delegated to a Member of the Full Bench to take that evidence in advance of further hearing before the Full Bench which will then determine the matter in accordance with this decision. 6On 25 and 26 October 2012, Boland J, President took evidence in accordance with the majority's decision. For Mr Woollard, oral evidence was given by Dr Michael Diamond, psychiatrist and Dr Anthony Dinnen, psychiatrist. For STC, Dr Robert Lewin, psychiatrist, gave evidence. Each of these psychiatrists had earlier submitted reports regarding Mr Woollard's condition and these reports were in evidence in Woollard (No 1).

Submissions for Mr Woollard 7Counsel for Mr Woollard identified two matters for determination: (a) Whether or not the condition of CPTSD, for the purposes of s 10B(2)(a) of the PRS Act is, or is properly construed as being, a disease of gradual process (or gradual onset) or otherwise consists of progressive psychological symptoms arising from an event; (b) If the condition of CPTSD can be so considered, whether or not, in the present case, the material placed before the Commissioner of Police by or on behalf of the Appellant prior to the Appellant's medical discharge, revealed symptomatology sufficient to demonstrate the onset of the disease (namely CPTSD). 8In relation to these two matters, the appellant submitted: (a) that the evidence available to the Full Bench clearly identifies CPTSD as a disease of gradual process, gradual onset or otherwise one consisting of progressive psychological symptoms arising from an event; (b) further, or in the alternative, the evidence before the Full Bench enables CPTSD to be construed as a disease of gradual process, gradual onset or otherwise one consisting of progressive psychological symptoms arising from an event; (c) that, in the present case, the relevant material before the Commissioner of Police...identified symptomatology sufficient to demonstrate the onset of CPTSD consistent with the requirements for notification in s 10B(2)(a) of the PRS Act. 9The appellant submitted that in the event the Full Bench agreed with his contentions, it was his understanding that the matter would be remitted to a Judge of the Court for determination, in terms of s 10B(2)(c) of the PRS Act, as to whether or not the infirmity of CPTSD should be added to the certificate of incapacity.

Whether CPTSD is a disease of gradual process, etc 10As to the first of the two matters identified by the appellant for determination, reference was made to the evidence of Dr Diamond. Dr Diamond was Mr Woollard's treating psychiatrist. He provided two comprehensive reports into Mr Woollard's condition, one in 2005 and the other in 2010. In Woollard (No 1) Boland J, President noted the following facts at [103]: ...In a letter from Dr Diamond to Dr Forfa [the appellant's general practitioner] 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"; ... (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; 11The appellant referred to a further report of Dr Diamond dated 26 August 2012. The doctor was asked: Is the psychiatric condition of post-traumatic stress disorder or chronic post-traumatic stress disorder properly described as a "disease of gradual onset"? The appellant noted that in short form, the doctor stated: Yes, in certain circumstances that is the case. 12The appellant referred to the following opinion expressed by Dr Diamond in his August 2012 report: The concept of post-traumatic stress disorder being "properly described as a disease of gradual onset" is more frequently seen in individuals such as police officers where there is cumulative exposure to overwhelming traumatic stress that occurs in the course of a police career. Further, it was noted the doctor stated in his report: Repeated exposure to traumatic events of escalating severity or of events that cause triggering of previous traumatic experiences commonly mark the course of the evolution of post-traumatic stress disorder to the point of yet becoming an overwhelming, persistent and disabling condition in the longer term. The concept of cumulative traumatic stress following an initial triggering or primary event is an accepted view about the pathogenesis of Post-Traumatic Stress Disorder. It is within this conceptual framework an understanding of the evolution of post-traumatic stress disorder, especially among service individuals such as police officers, that one appreciates how post-traumatic stress disorder can properly be described as "a disease of gradual onset". 13The appellant noted that Doctor Diamond was "clearly of the view that post-traumatic stress disorder brought on by a cumulative series of events (whether many or few, whether close together or distant, whether life threatening or less so) could properly be seen as a disease of gradual onset". 14The appellant observed that during the course of cross-examination Dr Diamond expressed a view of the symptom development following one relevant stressor consistent with the development of progressive psychological symptoms (referable to CPTSD) arising from an event. 15The appellant next made reference to the evidence of Dr Dinnen. In relation to Dr Dinnen, Boland J noted in Woollard (No 1) at [103]: (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". 16More recently, Dr Dinnen was provided with the report of Dr Diamond dated 26 August 2012. In his supplementary report of 16 October 2012, Dr Dinnen expressed agreement with the opinions detailed in Dr Diamond's report of 26 August 2012. Dr Dinnen was cross-examined relevant to this aspect. The appellant referred to the fact that during the course of the answers provided by Dr Dinnen in cross-examination, the doctor expanded upon the views of Dr Diamond with which he had previously expressed agreement. This was particularly so in relation to how the development of post traumatic stress disorder symptoms can occur even after one traumatic stressor only: Q: Where it (the post-traumatic stress disorder) is caused by one event whether the symptoms following that event are immediately apparent, or manifest themselves later in time, that would not be described as a disease of gradual onset correct? A: Strictly speaking if you have one event and sometime after that event you can identify the features of PTSD, that may have been present in a latent form over a period of time. It may be sub-clinical over a period of time. It may be triggered off months or years later without any obvious intervening disturbance. So there is a range of causes of this condition with which I am familiar clinically. Generally speaking, you would not, call a single event, followed by PTSD some time later as representing a disease of gradual onset but in fact it may be as I say latent or sub-clinical or it may be evident particularly during that period of time before it becomes identified so it is not an all or nothing response to the question I'm sorry. I agree that strictly speaking you would not say one event and PTSD following it is a gradual onset disease but the time course of a PTSD can in fact be. Q: Be delayed? A: Show that delayed onset and an intermittent sort of onset so you might get features of it and they come in abeyance for a while. So delayed onset is not an all or nothing event. It can be the features which lead up to it, so you may or may not argue that that is gradual onset. 17The appellant referred to the evidence of Dr Lewin. Dr Lewin's evidence was also the subject of findings by Boland J in Woollard (No 1) at [103]: (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." 18The appellant submitted the following regarding Dr Lewin: Dr Robert Lewin, psychiatrist, saw the Appellant, at the request of the Respondent, on 24 June 2009. The doctor authored a report dated 24 June 2009 and, relevant to the present issues, authored a supplementary report dated 19 October 2012. The doctor was called to give evidence. With respect to the doctor, it is fair to say that in his reports the doctor does not tackle the question of whether or not post-traumatic stress disorder can be seen as a "disease of gradual onset". In his evidence before Boland P on delegation from the Full Bench, the doctor does not, in substance, deal with this issue. 19The appellant submitted that: [T]he totality of the evidence provided by Dr Diamond and by Dr Dinnen overwhelmingly supports a finding that CPTSD is a disease of gradual process (or gradual onset) or otherwise consists of progressive psychological symptoms arising from an event. At the very least, based upon the evidence provided by Dr Diamond and Dr Dinnen, it is "appropriate to construe the disorder (CPTSD) as a disease of gradual onset for the purpose of s.10B(2)(a)".

Notification of injury causing CPTSD 20The appellant accepted that in order for the Court to be satisfied at the time of his discharge, the appellant did in fact suffer from a CPTSD with or without major depression, the documents tendered by the appellant, and relied upon by him, must demonstrate the reporting of "sufficient symptomatology to demonstrate the onset of the disease". The appellant understood this phrase to mean that the symptoms reported would be sufficient even if they were less than a full description of the relevant syndrome provided that they were capable of being properly understood either as evidence of the syndrome existing, or as evidence of the developing disease process, that process potentially culminating in the pursued infirmity. 21The appellant submitted that Dr Diamond in his evidence identified within the documents relied upon by the appellant, symptomatology sufficient to demonstrate the onset of CPTSD and that Dr Dinnen agreed with the assessment made by Dr Diamond of the meaning and significance of the complaints recorded in the documents. 22In relation to Dr Lewin's evidence before Boland J, the appellant submitted that in his cross-examination the Doctor conceded that a condition initially diagnosed as one of anxiety might ultimately be diagnosed as PTSD.

STC's acceptance of notification of receipt of injury 23The appellant submitted that the fact STC accepted the suffering by the appellant of the infirmity of "major depressive episode" necessarily meant that STC accepted notification of injury in compliance with s 10B(2)(a) of the PRS Act. 24The appellant observed that each of the three doctors (Diamond, Dinnen and Lewin) identified a close co-morbidity between CPTSD and major depressive disorder. Given those opinions, it was an entirely reasonable (indeed compelling) conclusion, the appellant submitted, that the symptoms detailed in the documents tendered by the appellant constituted notification of injury causative of both CPTSD and a major depressive condition. 25In concluding his submissions, the appellant contended: [T]hat the Full Bench would determine this matter by finding that the symptom complex described as chronic post traumatic stress disorder is a disease of gradual process (or gradual onset) or otherwise consists of progressive psychological symptoms arising from an event. Alternatively... that the Full Bench would determine for the purposes of s.10B(2)(a) PRS Act that the symptom complex of chronic post traumatic stress disorder should be construed as a disease of gradual process (or gradual onset) or otherwise consists of progressive psychological symptoms arising from an event. [T]hat the Full Bench should find that the evidence identifies, in terms of s.10B(2)(a) PRS Act notification of injury causative of chronic post traumatic stress disorder. [T]hat in the event that the Full Bench agrees with the determinations and findings proposed by the Appellant, that the matter be remitted to a single Judge of the Court for a determination in terms of s.10B(2)(c) PRS Act.

Submissions for STC 26Mr Ower of counsel appeared for STC. He submitted the evidence was equivocal as to whether the claimed infirmity of PTSD should be categorised as a "disease of gradual process". However, he contended, assuming that it should be so categorised in this case, the recorded complaints, per se, were so general that they do not constitute substantial compliance with s 10B(2)(a) of the PRS Act. 27Counsel further submitted the alleged "consistent" complaints by Mr Woollard as to his condition prior to his discharge from the Police Force were at such a high level of generality that the practical application of s 10B(2)(a) was brought into question. Counsel submitted that particularly in light of this difficulty, the Full Bench should re-evaluate the legal test to ensure that it had not erred when construing "injury" in s 10B(2)(a) as incorporating an exceptional category of "diseases of gradual onset".

Is PTSD a "disease of gradual onset"? 28The respondent noted that where PTSD was caused by exposure to a single stressful event, neither Dr Diamond nor Dr Dinnen would classify the condition as a "disease of gradual onset." Where the condition was a reaction to exposure to multiple stressful events, the two psychiatrists considered that there could be a "cumulative" process, which may be described as a disease of gradual onset. However, they considered the lines of differentiation to be difficult. Apparently, much depends upon the history and pattern of symptoms over time, clinical impression and other matters. 29The respondent submitted that it was apparent from the oral evidence of Dr Diamond and Dr Dinnen that the concept of "disease of gradual onset" did not fit comfortably with their concept of PTSD. However, they were prepared to accept the concept as being consistent with their idea of a condition caused by an accumulation of stressors. 30The respondent noted Dr Lewin did not accept there was any differentiation to be made between PTSD caused by a single event or multiple events and that he rejected the term "disease of gradual process" as having any meaning in the context of PTSD. 31Counsel submitted: Should the Full Bench accept the views of Dr. Lewin (as reinforced by the apparent reluctance of the other psychiatrists to embrace the term "disease of gradual onset" over the "cumulative impact of events"), then there would be no necessity to determine whether the symptoms recorded in the contemporaneous documents before medical discharge were consistent with PTSD. Put simply, PTSD is not properly described as a disease of gradual onset and, therefore, is not an exception to the Hazlewood view of requisite notice pursuant to s 10B(2)(a). 32The reference to Hazlewood was a reference to the Full Bench decision in SAS Trustee Corporation v Hazlewood [2009] NSWIRComm 157; (2009) 188 IR 174. 33The respondent, however, went on to submit that should the Full Bench accept the "literal views" of Dr Diamond and Dr Dinnen that PTSD caused by an accumulation of exposure to stressful events is a category of PTSD that could fairly be described as a "disease of gradual onset", then it was necessary to evaluate the consistency of the applicant's recorded symptoms with PTSD.

Consistency of Recorded Symptoms with PTSD 34The respondent submitted that one of the difficulties with Dr Diamond's opinion that some of the symptoms recorded in the pre-discharge documents were consistent with PTSD was that it was an opinion based upon the assumed accuracy of the applicant's history provided many years after his discharge. Counsel submitted: The applicant chose not to give evidence and expose himself to cross-examination. Accordingly, the applicant's history relied upon by Dr. Diamond, and later Dr. Dinnen, is untested. ... All of the psychiatrists agreed that the symptoms recorded in the documents relied upon by the applicant were insufficient to diagnose PTSD. Rather, the symptoms gave rise to the need for further investigation and psychological evaluation. It was assumed that had further psychological investigation taken place around the time of discharge, PTSD would have been diagnosed. When Dr. Diamond and Dr. Dinnen were asked to address the recorded symptoms "uninformed" by the later history given to them by the applicant, they largely conceded that they were not specifically indicative of PTSD. However, they both considered that the "totality" of the recorded complaints gave rise to an inference of a psychiatric disorder, which after further investigation, would be likely to be diagnosed as PTSD. It is tolerably clear that this conclusion was very much a retrospective analysis that could not have been made solely on the symptoms recorded prior to the applicant's medical discharge. 35The respondent noted that it was a retrospective approach that Dr Lewin applied in coming to his conclusion that Mr Woollard was suffering from "major depressive episode" at the time of his discharge. The problem with this retrospective approach, the respondent submitted, was: [E]xemplified in a concession made by Dr. Dinnen. He was prepared to accept that even a "feeling of general malaise" would be consistent with PTSD. This was a view informed by the applicant's post-discharge history, presentation and diagnosis. If a complaint of "general malaise" was sufficient for satisfying the test for notice of an injury causing PTSD pursuant to s.10B (2) (a), the provision would have little if any practical application. Clearly, something more is required. 36Consequently, the respondent submitted: If the test for statutory notice as explained by the majority of the Full Bench [in Woollard (No1)] was satisfied by the sufficient reporting of symptoms consistent with PTSD where the condition was a disease of gradual onset, then the symptoms must be more than generalised complaints pointing the way to further evaluation and investigation. Prima facie they must have some particularity allowing the identification of an injury causing the claimed condition. In the present matter, the documentary evidence relied upon by the applicant falls short of that mark for PTSD. In so far as the applicant made an express contemporaneous complaint of "feeling depressed," the respondent was justified to accept the advice of the Commissioner of Police that statutory notice had been given enabling it to certify "major depressive episode". This complaint could be sufficiently identified with the certified infirmity. With respect, the acceptance of statutory notice in this regard does not relieve the applicant from demonstrating that s.10B (2) (a) has been satisfied with regard to the claimed condition of PTSD.

Correctness of the construction of s 10B(2)(a) 37The respondent in its written submissions contended that on its analysis, the legal categorisation of some cases of PTSD as diseases of gradual process creates difficulty for the application of s 10B(2)(a). It was contended the wide and non-specific range of symptoms that, upon retrospective analysis, could be regarded as "consistent" potentially brought the enquiry to an impractical level of generality. 38Accordingly, the respondent sought to query the correctness of the majority's decision in Woollard (No 1) in construing "injury" in s 10B(2)(a) as synonymous with its meaning in workers compensation legislation. At the outset of the hearing on 8 February 2013, the Full Bench indicated to counsel for the respondent that it was not prepared to allow the respondent to re-open the majority's decision in Woollard (No 1). There are a number of reasons for that: (1) No leave was sought at any stage to re-visit Woollard (No 1). As the appellant noted, the respondent's "invitation" to reconsider Woollard (No1) was extended for the first time in the respondent's outline of submissions dated 5 February 2013 which was: (i) 7½ months after the decision of the Full Bench (25 June 2012); (ii) 3½ months after Boland J, President, on delegation, took two days of evidence specifically dealing with the issues identified as a result of the Court's determination (25 and 26 October 2012); (iii) 3 ½ months after this matter was listed for further hearing before the Full Bench; (iv) 2 days before that hearing is to take place. (2) Woollard (No 1) was heard and determined by a four-member Full Bench. As a consequence of the retirement of a judge who sat on Woollard (No 1), the Full Bench was reconstituted as a three-member Full Bench. It was not considered appropriate in those circumstances to revisit Woollard (No 1). (3) There was nothing on the face of the respondent's written submissions that suggested Woollard (No 1) was clearly wrong or that the majority decision in Woollard (No 1) was so exceptional as to invite review. (4) As Boland J recorded in Woollard (No 1) at [117]: The 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. (5) It seems to us the matters the respondent now seeks to raise regarding the correctness of Woollard (No 1) could have been raised in response to the appellant's submissions summarised above by Boland J.

Consideration 39We turn to the first issue and that is whether or not the condition of CPTSD, for the purposes of s 10B(2)(a) of the PRS Act, is a disease of gradual process (or gradual onset) or otherwise consists of progressive psychological symptoms arising from an event. The need to do so arises out of the majority's decision in Woollard (No1) and the majority's chain of reasoning in that case, which was, in short summary, as follows: (a) sections 10 and 10B of the PRS Act concern "hurt on duty" benefits. By s 1(2) of the PRS Act, a direct link is provided between hurt on duty claims and the WC Act (s 1(2) defines "hurt on duty", in relation to a member of the police force, as meaning "injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987, entitle the member to compensation under that Act."); (b) it followed from (a) that the meaning of 'injury' in the WC Act had the potential to inform a consideration of the meaning of 'injury' in s 10B(2)(a) of the PRS Act; (c) it followed from the judicial consideration of the term "injury" in the WC Act that what is compensable is the injurious event - that is, an event capable of causing injury which does, in fact, cause injury; (d) section 4 of the WC Act provides that a 'personal injury' may include "a disease which is contracted by the worker in the course of employment and to which the employment was a contributing factor". Section 15 of the WC Act further provides that a notional date of injury (being the date of a worker's death or incapacity) will be applied in cases where a disease "is of such a nature as to be contracted by a gradual process"; (e) "infirmity of... mind" in s 10B(2)(a) would include a disease of the mind; (f) it followed that a member of the police force who suffers a psychological illness in the form of a disease of gradual onset must be taken to be, as a matter of construction, hurt on duty for the purpose of the PRS Act; (g) the requirement for notice in s 10B(2)(a) shall not be read in a manner inconsistent with the intention of the hurt on duty provisions of the PRS Act, namely, that additional benefits shall be payable to members with psychological infirmities - and, in particular, psychological infirmities which, of their nature, are diseases of gradual onset - contracted as a result of their work; (h) diseases of gradual onset, including psychological illnesses, which exist in the absence of a precisely identifiable or known cause or origin, are no less compensable under the WC Act than injuries of a frank nature. Given that the PRS Act expressly provides that the hurt on duty benefit will be payable to a member suffering a psychological infirmity, which infirmity would entitle the member, were the member a worker within the meaning of the WC Act, to compensation under that Act, the injurious event requirement must be amenable to cases involving diseases of gradual onset; (i) the requirement of the Commissioner of Police under s 10B(3) to decide the date on which a member was hurt on duty, must be read so as to give full effect to the legislative intention of the hurt on duty scheme under the PRS Act. Section 10B(3) must be construed, in cases involving diseases of gradual onset, as meaning a requirement of the Commissioner to decide the date notionally, rather than exactly, on which the member was hurt on duty; (j) the proper construction of s 10B(2)(a) is that, where the infirmity of mind is a psychological illness which is a disease of gradual onset, the injurious event requirement should be construed as concomitant with the requirement to notify symptomatology, provided that the symptomatology is sufficient to demonstrate the onset of the disease (the onset of the disease being the 'injury', causative of the ultimate infirmity (the disease itself), referred to in s 10B(2)(a)). In other words, the injurious event, in such cases, which occurs not in a frank incident but gradually over time, is notified under the sub-section by the reporting of a sufficient symptomatology. 40We note that, with respect to infirmities of body or mind caused by an injury received in a frank incident (as opposed to a disease of gradual onset), the majority found that what is required under s 10B(2)(a) is notification of an event, an injurious consequence and a connection between the two. 41Thus, the majority found that a disease of gradual onset was an infirmity of mind under s 10B(2)(a) of the PRS Act, but the question remained whether PTSD was a disease of gradual onset. 42In preparing his evidence before Boland J following the Full Bench decision in Woollard (No 1), the appellant sought a further report from Dr Diamond. Dr Diamond was asked specifically "Is the psychiatric condition of Post Traumatic Stress Disorder or Chronic Post Traumatic Stress Disorder properly described as a "disease of gradual onset"?" In his report dated 29 August 2012, Dr Diamond answered, "Yes, in certain circumstances this is the case." Dr Diamond went on to elaborate, first by noting that PTSD, in general terms, "can arise as a condition that occurs following an overt, single, terrifying, life-threatening or emotionally overwhelming experience that is accompanied by core symptoms in accordance with accepted diagnostic criteria." 43Secondly, Dr Diamond explained that with regard to PTSD, as it frequently occurs in police officers, the evolution of the illness is often different. Because they are trained and expect to be exposed to traumatic situations, police officers are often able to cope when "exposed to severe life-threatening trauma without overt overwhelming reaction....": The concept of Post Traumatic Stress Disorder being "properly described as a disease of gradual onset" is more frequently seen in individuals such as police officers where there is a cumulative exposure to overwhelming traumatic stress that occurs in the course of a police career. The traumatic incidents need to be associated with identified symptoms that follow exposure to those incidents in most cases. ... Repeated exposure to traumatic events of escalating severity or of events that cause triggering of previous traumatic experiences commonly mark the course of the evolution of post-traumatic stress disorder to the point of yet becoming an overwhelming, persistent and disabling condition in the longer term. The concept of cumulative traumatic stress following an initial triggering or primary event is an accepted view about the pathogenesis of Post-Traumatic Stress Disorder. It is within this conceptual framework an understanding of the evolution of post-traumatic stress disorder, especially among service individuals such as police officers, that one appreciates how post-traumatic stress disorder can properly be described as "a disease of gradual onset". 44In cross examination, Dr Diamond was asked questions about the line between PTSD caused by one stressor and PTSD caused by a number of stressful events over time. Dr Diamond answered that it was difficult to distinguish between the two because one had to have regard to the particular circumstances relating to the individual. However, it is clear from Dr Diamond's evidence that he did not retreat under cross examination from his opinion that PTSD can properly be described as a disease of gradual onset, especially in circumstances where there has been "cumulative exposure to overwhelming traumatic stress" and that this is more frequently seen in individuals such as police officers. 45Dr Dinnen was provided with the report of Dr Diamond dated 26 August 2012 and the bundle of documents relied upon by the appellant to support his case that notification to the Police Commissioner had occurred in accordance with s 10B(2)(a). These documents are referred to by Boland J in Woollard (No 1) at [88]. 46Dr Dinneen had expressed the following opinion regarding Mr Woollard's condition in a report dated 25 January 2011 (see Woollard (No 1) at [97]): 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. 47In a supplementary report of 16 October 2012, Dr Dinnen expressed complete agreement with the opinions detailed in Dr Diamond's report of 26 August 2012. Under cross examination, the following exchange occurred: Q. Where it is caused by one event whether the symptoms following that event are immediately apparent, or manifest themselves later in time, that would not be described as a disease of gradual onset correct? A. Strictly speaking if you have one event and some time after that event you can identify the features of PTSD, that may have been present in a latent form over a period of time. It may be subclinical over a period of time. It may be triggered off months or years later without any obvious intervening disturbance. So, there is a range of courses of this condition with which I am familiar clinically. Generally speaking, you would not, call a single event, followed by PTSD sometime later as representing a disease of gradual onset but in fact it may be as I say latent or subclinical or it may be evident particularly during that period of time before it becomes identified so it is not an all or nothing response to the question I'm sorry. I agree that strictly speaking you would not say one event and PTSD following it is a gradual onset disease but the time course of a PTSD can in fact be. Q. Be delayed? A. Show that delayed onset and an intermittent sort of onset so you might get features of it and they come in abeyance for a while. So delayed onset is not an all or nothing event. It can be with features which lead up to it, so you may or may not argue that that is gradual onset. Q. It is not a term that psychiatrists normally use, is it, they use terms like cumulative, causal? A. Exactly so. Q. So it does not fit neatly into PTSD I take it? A. Again if you have got cumulative stressors you can say even gradually developing - if you look around you get a response and then an aggravation and its a bit of a sawtooth gradual progression. We say there is a cumulative impact of those events. ... Q. I take it with that sawtooth example you have taken into account not just one stressful event but a number over the years? A. Yes, that's correct. Q. And if you do have multiple events ending up in the one PTSD event that has a cumulative effect, correct? A. Yes. Q. And that fits more likely into the concept of a disease of gradual onset? A. Yes. Q. Were you just to have one event or maybe one or two events that are divided by quite a period of time in between, it is less likely to be a disease of gradual onset, correct? A. Again I would agree, with the qualification that I gave earlier that the condition can be there but sub-clinical or latent or causing mild impairment and it can be aggravated as the next event occurs. You get a stressor and then you get a response that is full blown. There's a lot of things that impact the response, time and other circumstances. 48As the respondent's counsel quite fairly acknowledged in his submissions, both Dr Diamond and Dr Dinnen were prepared to accept the concept of "disease of gradual onset" as being consistent with their idea of a condition caused by an accumulation of stressors. It is clear from the evidence of these two psychiatrists that, whilst it was not exclusively so, they were of the opinion PTSD could properly be described as "a disease of gradual onset". 49At the request of the respondent, Dr Lewin saw the appellant in 2009. The doctor authored a report dated 24 June 2009 diagnosing the appellant with "major depressive episode" and then authored a supplementary report dated 19 October 2012. 50In his supplementary report Dr Lewin did not address the question of whether or not post-traumatic stress disorder can be seen as a "disease of gradual onset". However, in giving his evidence the following exchange occurred with Mr Ower: Q. Can the condition [PTSD] be caused by single events and multiple events? A. Yes. Q. When it is caused by a single event would you classify that in a different way to where it is caused by multiple events? A. No. Q. You have heard the term cumulative effect? A. Yes. Q. What, in your experience, does that mean? A. That there is more than one event which may have given rise to a psychiatric reaction. ... Q. Do you use that term? A. It is not a medical term. The question is sometimes put to me in a legal context, rather than a specifically medical context. But it is clearly recognized that, in some circumstances, multiple events can precipitate this condition. Q. In terms of the mechanism of injury, is it any different when it is caused by one single event or by multiple events? A. I don't really know the answer to that question. Q. Have you heard of the term "disease of gradual process"? A. I have heard it used in a legal context, it is not in my area of expertise. Q. Does it have any meaning for you in terms of the condition known as post traumatic stress disorder? A. No. 51Dr Lewin accepted that PTSD could be precipitated by multiple events. However, unlike Drs Diamond and Dinnen, he did not associate PTSD with the term "disease of gradual process". Dr Lewin was not asked any further questions about whether PTSD could be regarded as a disease of gradual process or onset. 52It is reasonable to conclude that Dr Lewin was not asked to turn his mind to whether PTSD could be regarded as a disease of gradual onset, whereas Drs Diamond and Dinnen were. The weight of the expert evidence favours a finding that for the purposes of s 10B(2)(a) PTSD may properly be described as "a disease of gradual onset". Whether it is or not in a particular case will depend to a significant extent on the medical evidence. 53We find that PTSD may properly be described as "a disease of gradual onset".

Whether there was notification of injury 54The next question is whether or not there was notification of injury by the appellant causing the infirmity of CPTSD in terms of s 10B(2)(a) of the PRS Act. As we understand it, the injury or injuries said to have been notified to the Police Commissioner occurred as a consequence of a series of events or incidents that the appellant claimed had a traumatic effect on him. These events or incidents, which Drs Diamond and Dinnen appear to accept as constituting the multiple traumatic events that allowed them to regard Mr Woollard's PTSD condition as a disease of gradual onset, were identified by Boland J in Woollard (No 1) at [98] and 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. 55In order for the Court to be satisfied there was notification of injury, the appellant must prove that the documents he relies upon as constituting notification, show "sufficient symptomatology to demonstrate the onset of the disease". These documents were identified by Boland J in Woollard (No 1) at [88]: [88] Between 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. 56In relation to his report of 26 August 2012, Dr Diamond was asked to examine the documents referred to in the preceding paragraph and whether the complaints and symptoms described in the documents were consistent with the appellant suffering at the time of his discharge from the Police Force, "injury causative of a Post Traumatic Stress Disorder". Dr Diamond answered in the affirmative. In doing so, Dr Diamond makes observations in his report, that are summarised as follows: (a) the documents did not include any of the considerable exposure to life-threatening risk and trauma that was part and parcel of Mr Woollard's experience as a serving police officer in the years before the documents were compiled and it did not list the traumatic incidents involving Mr Woollard's police service that occurred in the course of the timeframe covered by the records reflected in the documents; (b) despite the absence of any inquiry into the existence or otherwise of Post Traumatic Stress Disorder or any other psychiatric disorder as being responsible for or even associated with his presenting symptoms at the time, there were notations made about depressed mood state, disengagement and difficulty thinking clearly; (c) the emphasis in the documentation related to Lyme Disease and to a lesser degree Chronic Fatigue Syndrome. Despite this emphasis, the clinical features noted in the various documents do identify attendance at a psychologist for stress management and a notation that described difficulty with short-term memory and impairment in Mr Woollard's ability to think clearly and concentrate; (d) Mr Woollard's application for special sick leave of 19 November 1996 further confirmed his seeking of professional assistance in relation to stress management that was present at that time; (e) the correspondence of Dr W Sedhoff of 20 November 1996 focuses on physical symptoms but includes difficulties affecting his concentration sufficient to impair his ability to perform his duties as a police officer. The correspondence highlights suspicion of an infective disease (Lyme Disease) but in the absence of confirmatory evidence from multiple blood tests to support this diagnosis; (f) the notes of the Police Medical Officer of 15 March 1997 identify difficulties with concentration and memory together with poor sleep and depression. Mr Woollard's application for extension of special sick leave describes receipt of professional assistance in relation to stress management; (g) in relation to the report of Dr Hudson to the Claims Coordinator of the Worker's Compensation Section of NSW Police of 20 May 1997 Dr Hudson expresses his opinion as to how Mr Woollard may have contracted Lyme Disease in the course of his work, but once again there is no definitive diagnostic link. The important issue is that despite very careful consideration from the perspective of an infectious diseases expert, there is no consideration or emphasis upon the psychological or psychiatric symptoms that are also noted in the documentation throughout; (h) the correspondence from Dr Philip Sharp of 27 August 1997 specifically notes that Mr Woollard "feels depressed, does not sleep well and finds his cognitive functions are affected". He also notes the lack of response to the concerted treatment with various antibiotics for presumed infectious disease; (i) the Police Service Personnel System Leave Taken for the period 14 February 1997 to 4 March 1998 lists nine periods of leave taken with the reason given as "nervous illness/anxiety". 57Following these observations, Dr Diamond stated in his report: Review of this material alone is, in my experience, consistent with a medical record of an individual suffering Chronic Post Traumatic Stress Disorder in an environment where the condition is not acknowledged or recognised. The emphasis is almost entirely upon presenting physical symptoms, although on closer reading, clearly Mr Woollard reported sleep disturbance, depression, difficulty coping, cognitive disturbance with poor memory, poor concentration and an inability to focus. These reported symptoms in their own right would, in current practice, be grounds for further inquiry about psychiatric illness. At that time, with the interest in Chronic Fatigue Syndrome, the referral to a specialist with expertise in that area and with the exotic possibility of a diagnosis of Lyme Disease, it is clear to me that that diagnostic pathway was emphasised. It remains significant, however, that despite repeated testing and evaluation in the face of speculative and repeated treatments with various antibiotics, Mr Woollard showed no improvement in his state of illness. In effect a therapeutic trial of treatment of a presumptive diagnosis failed, and in this way, the significance of that presumptive diagnosis could be said to have decreased in the face of the failed clinical trial. Absent from the record in the documents provided by the NSW Police Force prior to your client's medical discharge therefrom, are details of the extensive history of traumatic incidents in the course of his police service. Not only is there a substantial history of severe life-threatening trauma, but his description about his reactions to those traumas that he gave to me when these issues were explored clinically when I saw him, demonstrated consistent and plausible reactions to those events. The reactions occurred contemporaneously in relation to the traumatic events. Furthermore, when exposed to further traumas, past experiences of traumatic reactions were re-experienced. The extent of his symptoms increased over time with associated impairment and disability. The extent of the psychological symptoms and psychiatric illness has increased over time with recurrent episodes occurring in the face of triggering events. 58In giving evidence before Boland J, Dr Diamond was asked to elaborate on what he had stated in his report and, in particular, his conclusion that the documents alone were consistent with a medical record of an individual suffering chronic post traumatic stress disorder in an environment where the condition was not acknowledged or recognised. Dr Diamond said he had "quite a lot of experience" of looking at service medical records of police officers and observed "one sees different areas of reporting on service personnel to see how psychiatric illnesses may have presented in the documented material when perhaps the psychiatric illness was not the focus of the medical presentation." 59Dr Diamond said in his oral evidence that it was not uncommon to find that police officers often presenting with the physical features of illness or they would present for assistance if there had been an overt physical injury, but: [T]hey would not necessarily report the psychiatric symptoms that they were having and so the record that one sees has embedded in it material of psychiatric significance that it may not be overtly reported in those notes and so this collection of documents was consistent with that view. 60The doctor also stated that the documents relied upon by the appellant to prove notification were created during an era when the acceptance of post traumatic stress disorder as a diagnosis "was very much in relation to the thinking and the literature at the time which referred to single episodes of severe trauma" and that: Often the model was a combat model from servicemen in the military. It was based on the research from Vietnam veterans and post traumatic stress disorder as an entity during that period of the mid90's was not necessarily as widely recognised or documented as it would be, say, today where it is a much more commonly acknowledged and understood condition. 61It is clear from Dr Diamond's report and his oral evidence in chief that he considered the material in the documents relied upon by Mr Woollard to prove notification were "consistent with a medical record of an individual suffering Chronic Post Traumatic Stress Disorder in an environment where the condition is not acknowledged or recognised." 62In cross-examination, Mr Ower was obviously interested in whether Dr Diamond formed his opinions regarding Mr Woollard's condition based on the documents purporting to constitute notification or whether the opinions were formed on the basis of information provided by Mr Woollard in the doctor's interviews with him. That is to say, Mr Ower was seeking to explore whether there was an independent assessment by Dr Diamond of the documents as indicia of PTSD at the time of discharge or whether Dr Diamond was influenced in his view about the documents by the information provided by Mr Woollard in his interviews. 63Moreover, part of the respondent's concern was that information provided by Mr Woollard to Dr Diamond about his condition prior to being discharged, whilst not false may not have been accurate. As the appellant chose not to give evidence and expose himself to cross-examination, the history relied upon by Dr Diamond, and later Dr Dinnen, was untested according to the respondent and, therefore, as we understand the respondent's case, Dr Diamond's retrospective diagnosis of PTSD could not be relied upon as establishing the condition existed at the time of discharge. 64Part of the cross-examination relating to these aspects was as follows: Q. Your opinions are arrived at not only through looking at the documents which were forwarded to you but your opinions are informed by the information you have received from Mr Woollard over the years? A. Yes, that's correct. Q. And so when you look at these documents you were looking at them with an eye to the diagnosis you had already made, correct? A. The history I had already elicited, yes. Q. And you relied upon his history when arriving at your conclusions, correct? A. Can I say yes, yes but can I answer it Q. Certainly? A. In the course of dealing with Mr Woollard as a patient I have had many opportunities to test what he has told me to clarify things further, to ask him questions in a different way to elicit information about his experience and so had I simply seen him once for a medicolegal assessment and he gave me a set of facts or information it is quite different from seeing a man over a period of whatever it is six or eight years and discussing his clinical state, his response to life events, his response to interactions with triggering events that have occurred in the interim over the years so it offers an opportunity to test the diagnosis and to see whether one is on the right track or not. So I am making that statement because I think that is how I arrive at the diagnosis I have arrived at and even when I wrote this report in 2012 I think in the introduction to the I made some introductory comments to say that I reviewed all my old material to see whether this material was at odds with what I previously thought and written about so Q. You mentioned that from the outset? A. From the outset, yes. Q. So it is the case that Mr Woollard's history given to you over the years was very important when arriving at your conclusion in the last report? A. It is a consistent history. That is the point I am making. Q. You have had the opportunity of discussing his history with him over the years? A. I have. 65It may be seen Dr Diamond accepted that when he considered the documents he did so having regard to his observations and assessment of Mr Woollard in the various interviews he conducted with the appellant. However, it could not be concluded that the basis upon which Dr Diamond opined that the documents relied upon by Mr Woollard to prove notification were "consistent with a medical record of an individual suffering Chronic Post Traumatic Stress Disorder" was because he diagnosed Mr Woollard as suffering from PTSD. In other words, we do not accept that Dr Diamond approached his consideration of the documents in such a way as to "fit" the conditions described in those documents with his diagnosis of PTSD. Such a proposition was never directly put to Dr Diamond. Moreover, in answering the question of whether the complaints or symptoms described in the documents were consistent with the appellant suffering PTSD, Dr Diamond's response in his report of August 2012 addresses that question specifically against a background of "life threatening trauma" experienced by the appellant. For example, whilst Dr Diamond noted that much of the medical record addressed physical symptoms: Mr Woollard reported sleep disturbance, depression, difficulty coping, cognitive disturbance with poor memory, poor concentration and an inability to focus. These reported symptoms in their own right would, in current practice, be grounds for further inquiry about psychiatric illness. 66Dr Diamond also referred to notations in the documents describing "difficulty with short-term memory and impairment in your client's ability to think clearly and concentrate", "difficulties affecting his concentration sufficient to impair his ability to perform his duties as a police officer", "difficulties with concentration and memory together with poor sleep and depression", "that Mr Woollard 'feels depressed, does not sleep well and finds his cognitive functions are affected'", "nine periods of leave taken with the reason given as 'nervous illness/anxiety'". 67It seems to us that it was fairly open to an experienced forensic and medico-legal psychiatrist such as Dr Diamond, whose experience included many years treating injured police officers who suffered psychiatric illnesses, to reach a conclusion that the conditions described in the documents were "consistent with a medical record of an individual suffering Chronic Post Traumatic Stress Disorder in an environment where the condition is not acknowledged or recognised." 68Nevertheless, Dr Diamond was tested further in cross-examination about his conclusion. He was taken to six documents and asked to consider them in the context of the notice requirement in s 10B(2)(a) and without that consideration being informed by the consultations that the doctor had with the appellant since 2004. He was also taken to the Diagnostic and Statistical Manual of Mental Disorders, fourth edition, Text Revision ("DSM-IV-TR") (referred to at [90] of Woollard (No 1)) and asked questions about whether any of the conditions complained of by Mr Woollard in the documents. fitted into the diagnostic criteria of post traumatic stress disorder in the Manual. 69The point of the cross-examination was to explore whether reported instances of symptoms in the documents relied upon by Mr Woollard could, of themselves without regard to any later diagnosis, reasonably be regarded as indicative of PTSD and whether some of the reported symptoms could more properly be regarded as an indication of major depressive episode. To summarise Dr Diamond's responses, he was of the view that: (a) neither Mr Woollard nor the treating doctors at the time had in their mind that Mr Woollard was suffering from PTSD and so none of the medical assessments gave any consideration to the possibility of such a diagnosis. Hence the issue of PTSD was never explored prior to the appellant's discharge from the Police Force and consequently not all of the symptoms one might associate with PTSD were identified and recorded; (b) symptoms such as dizzy spells, confusion, memory loss and chronic fatigue as reported by Mr Woollard are symptoms of PTSD despite the fact the patient was not aware of this; (c) as to distinguishing between a diagnosis of a depressive illness and PTSD, people with PTSD will present with what looks like an anxiety state and they say they cannot concentrate, they cannot settle, they cannot remember, they feel awful, they are tired all the time, they are lethargic, they cannot do anything, they lack motivation. The depression component of that might be the cause of that, but it is so closely related to the PTSD that those symptoms could not be dismissed as being noncorrelating. They are suggestive of a psychiatric illness that has not been identified; (d) as to whether the constellation of symptoms reported by Mr Woollard fell more within major depressive illness as opposed to post traumatic stress disorder, one could not say. It may have been he was clinically depressed at the time and had an underlying primary post traumatic stress disorder; (e) one may not be able to tell merely from the symptoms reported by Mr Woollard that he was suffering from PTSD, but at the time he was not being seen by somebody with the necessary training or expertise to elicit the condition. The fact that difficulty concentrating, memory loss, confusion were documented symptoms at the time meant one could not exclude that there could be post traumatic stress disorder and/or depressive illness; (f) some of the symptoms reported by Mr Woollard were consistent with DSM-IV-TR criteria. Other criteria in the DSM-IV-TR were not identified or described in the documents reporting Mr Woollard's symptoms because he was never asked about them and they were never considered; (g) it was not the case that if confusion and memory loss were largely the product of lethargy reported by Mr Woollard as opposed to any preoccupation with past traumatic events, that would fit more in the criteria for major depressive episode. It was equally a key feature in PTSD; (h) it is not infrequent that people present with psychiatric illness with physical complaints, as did Mr Woollard (arthralgia of several joints, paraesthesia to soles of the feet with intermittent pains, occasional chest pains, muscular pains, paraesthesia left arm); (i) PTSD was a recognised illness in 1997 but it was a much more circumscribed condition that was only diagnosed with any clarity in much more overt and extreme cases and certainly not in terms of individuals who were not suffering the illness in relation to a specific event at that time. The idea that one could look cumulatively at a policing career and actually extract the information that could make the diagnosis was not being done in 1996. 70Dr Diamond insisted that the documents relied upon by Mr Woollard to prove notification, looked at as a whole, were consistent with a diagnosis of PTSD. This was emphasised in answer to a question in re-examination: Q. In terms of notification of symptoms suggesting a post traumatic stress disorder if instead of looking at each individual document you have been taken to, you look at the documents as a whole, what do they suggest to you in terms of the reporting of symptoms consistent with post traumatic stress disorder? A. I think they are consistent with the way the condition reveals itself when one takes a proper comprehensive full history and asks the clarifying questions that one needs to ask in order to not only know whether the person was involved in a potentially life threatening or traumatic event but what were their responses to them, what were the sequelae, whether that settled afterwards, whether they were exacerbated through triggering events. With reference to my report of 2005 which is a long report I went through that in great detail because I felt it was necessary at that point to underpin the reasoning for my view which was to say there is very convincing evidence to a clinician that post traumatic stress disorder in fact existed at the times when Mr Woollard was working in a very dangerous policing situation, under trained, exposed to many traumas and that he developed symptoms that were consistent with post traumatic stress disorder. However, when he did develop those symptoms he had no idea that that constituted a psychiatric illness and so they were simply dealt with as problems to overcome on the day which he did by and large but they kept being exacerbated by further triggering events. The history he gave was very, very convincing. I wouldn't have written a report of such clarity about the diagnosis had I not had sufficient evidence clinically to support the diagnosis and it is in that report in detail. 71Dr Dinnen was examined and then cross-examined in a similar fashion to Dr Diamond. In giving his evidence in chief, Dr Dinnen was asked whether the documents relied upon by Mr Woollard were sufficient to constitute notification of symptomatology sufficient to demonstrate the onset of PTSD. Dr Dinnen answered: A. Yes. As I said, the range of symptoms which can be extracted from those documents, such as sleep disturbance, difficulty with memory and concentration, lethargy, difficulty coping with work, the need for stress management, the awareness that work stress was impacting on his capacity to work, all of those features, in my view would point to the need for a psychiatric evaluation which wasn't carried out because of this question of Lyme disease being the explanation for his condition and I believe that those features are indicative of the presence of a psychiatric condition and another aspect of that is for example, chest pain. All those features, which can be extracted from those documents, are signal symptoms presenting to the likely presence of some sort of psychiatric disorder. More likely an anxiety disorder and more likely in the context of a policeman with this sort of experience, that sort of career, the explanation would have been that of post traumatic stress disorder. So I believe that the totality of the documentation, gives rise as far as I am concerned to that being the likely explanation. 72Dr Dinnen was asked whether he could rely on Mr Woollard's account of events as being accurate after so many years. Dr Dinnen replied: I saw no reason to question the description he gave which I have recorded.... They are general symptoms and I think they are critical. There may have been others. You are right in saying that when I am interviewing him its 15 years after he stopped work so we have got the problem of hindsight but I thought that account I took and recorded there was a reliable account of symptoms which were present before he became ill. 73Dr Dinnen was taken to the documents relied upon by Mr Woollard regarding notification and to DSM-IV-TR. His evidence was generally consistent with that of Dr Diamond. Dr Dinnen said the totality of the documentation gave a clear indication that Mr Woollard was likely to be suffering from PTSD but that had been totally overlooked and not evaluated. Further that: [T]he symptoms alone give rise through a clear point of inference, a clear direction of the need for psychiatric evaluation. I think in retrospect we can see that those few symptoms that are recorded of a psychiatric nature would be consistent with post traumatic stress disorder. I am saying if I had examined him in 1996 I am sure I could have identified post traumatic stress disorder to the person and I am sure it would have been as a result of those accumulated stressors but the document does not point to anything other than that being the likelihood. 74Dr Lewin gave evidence. He was asked questions in cross-examination regarding whether the anxiety-based conditions reported by Mr Woollard could in fact have been PTSD. In a long answer, Dr Lewin said in part: We understand today that the wrong diagnosis was made and with that retrospectivescope we understand this man's presentation to be a common presentation for a psychiatric condition which has a range of non-specific physical complaints. When you start the inquiry about what those complaints are you start with a list of everything and you gradually hone it down. You exclude first the nasty physical things like pancreatic cancer or lung cancer. You hone down and ask a bit more, looking further into the background, finding out what's going on and you gradually reach a more definitive diagnosis but we saw even two very experienced psychiatrists when they got together on this case, Diamond came to one conclusion and Lewin came to a different conclusion. I would argue that there is a fair bit of agreement although it sounds very different. It's a process of an evolving discussion. 75Dr Lewin was then asked, with the benefit of that answer "would one of the anxiety conditions that may ultimately be diagnosed be PTSD?" He answered "yes". 76The following exchange also occurred in the cross-examination of Dr Lewin, indicating the very fine line between a diagnosis of PTSD and a diagnosis of major depressive episode: Q. Do I understand you to say, in effect, that either one or both of the diagnoses, chronic post traumatic stress disorder or major depressive episode, may be applicable at different times? A. That is exactly what I am saying. Essentially, there is a difference of opinion between my colleague and myself. The difference depends upon where you draw the line and there is no absolute right or wrong about that. To put Diamond and Lewin on opposing sides on this is false. We agree that there is a psychiatric condition; we agree that that was a reactive condition; and, based upon certain assumptions, we would also agree that the stressors in the workplace were more than a substantial contributing factor to that condition, yes. Whether you diagnose it as one or the other is semantic and nitpicking, essentially. There is no major difference of opinion there. I draw the threshold a little higher than he does, that's been my habit for 30 years. There are some technical reasons for that but I have no objective way of disagreeing with his opinion. 77The respondent in its submissions was critical of the evidence advanced for the applicant. It was contended: (a) the lack of any recorded complaints consistent with the appellant suffering from PTSD was explained by Dr Diamond on the basis of the applicant not having been asked; but that was an assumption on Dr Diamond's part without evidentiary basis; (b) all of the psychiatrists agreed that the symptoms recorded in the documents relied upon by the applicant were insufficient to diagnose PTSD. Rather, the symptoms gave rise to the need for further investigation and psychological evaluation. It was assumed that had further psychological investigation taken place around the time of discharge, PTSD would have been diagnosed; (c) when Dr Diamond and Dr Dinnen were asked to address the recorded symptoms "uninformed" by the later history given to them by Mr Woollard, they largely conceded that they were not specifically indicative of PTSD. However, they both considered that the "totality" of the recorded complaints gave rise to an inference of a psychiatric disorder, which after further investigation, would be likely to be diagnosed as PTSD. It is tolerably clear that this conclusion was very much a retrospective analysis that could not have been made solely on the symptoms recorded prior to the applicant's medical discharge; (d) if the test for statutory notice as explained by the majority of the Full Bench was satisfied by the sufficient reporting of symptoms consistent with PTSD where the condition was a disease of gradual onset, then the symptoms must be more than generalised complaints pointing the way to further evaluation and investigation. Prima facie, they must have some particularity allowing the identification of an injury causing the claimed condition. In the present matter, the documentary evidence relied upon by the applicant falls short of that mark for PTSD; (e) in so far as the applicant made an express contemporaneous complaint of "feeling depressed," the respondent was justified to accept the advice of the Commissioner of Police that statutory notice had been given enabling it to certify "major depressive episode". This complaint could be sufficiently identified with the certified infirmity. The acceptance of statutory notice in this regard does not relieve the applicant from demonstrating that s 10B(2)(a) has been satisfied with regard to the claimed condition of PTSD. 78In relation to (a) in the preceding paragraph, Dr Diamond was expressing an expert opinion against the background of uncontradicted evidence that in 1996 and 1997, PTSD was a much more circumscribed condition and its diagnosis based on cumulative exposure to traumatic events did not occur; PTSD was associated with a single traumatic event. It reasonably follows that in the absence of Mr Woollard complaining of a single traumatic event causing an adverse psychological reaction, and given the focus at the time on physical symptoms, that Mr Woollard was not asked questions that would have elicited responses indicative of PTSD. 79In relation to [76(b)-(e)] above, it is correct that the psychiatrists generally agreed that the symptoms recorded in the documents relied upon by the appellant were insufficient to positively diagnose PTSD, but that their existence indicated further psychiatric assessment and evaluation was necessary. It would also appear to be correct that the diagnoses that were eventually made by the psychiatrists of PTSD were made with some measure of retrospectivity and were not made solely on the basis of the symptoms recorded prior to the appellant's medical discharge in 1998. There are a number of things to be said about these matters, however. 80First, there was a clear absence of knowledge and expertise regarding the psychiatric consequences of cumulative exposure to traumatic events in the period over which Mr Woollard's conditions were recorded (1989 to 1998) prior to his discharge. Neither Mr Woollard nor those medicos who examined him contemplated PTSD as being the cause of his condition; the focus was on Lyme Disease, which was never successfully diagnosed. The diagnosis of chronic fatigue syndrome, which was the basis upon which the appellant was ultimately discharged as medically unfit, was a misdiagnosis. 81Secondly, it was not as though Mr Woollard invented symptoms of PTSD after he retired and on that basis pursued his claim. Mr Woollard was unaware of the true nature of his condition. It was not until he consulted Dr Diamond in 2004 and 2005 that he was diagnosed with chronic PTSD, without any suggestion by Mr Woollard that PTSD was the condition from which he was suffering. Dr Diamond was supported in his diagnosis by a second psychiatrist, Dr Dinnen. It does not seem to us the intention of the legislature was to deny a former police officer benefits to which he would otherwise be entitled on the basis that the officer's condition at the time of medical discharge was not understood or was misdiagnosed and in circumstances where symptoms had been reported consistent with a diagnosis of PTSD, where the correct condition (CPTSD) was diagnosed after the appellant's discharge by two psychiatrists, experts in their field, and where a third psychiatrist, although offering a different diagnosis (major depressive episode), accepted that PTSD could also be a correct diagnosis. 82Thirdly, there was a consensus amongst the three psychiatrists that one may not be able to tell merely from the symptoms reported by Mr Woollard that he was suffering from PTSD. However, it is clear from Dr Diamond's and Dr Dinnen's evidence that if further psychological investigation had taken place around the time of discharge, as it should have been given the symptoms that were reported, PTSD would have been diagnosed. 83Fourthly, we do not accept that s 10B(2)(a) of the PRS Act required the respondent to determine whether notification had been given in vacuo. The respondent did not certify major depressive episode in vacuo because it only determined to take that step after it had received the diagnosis of Dr Lewin. In other words, in determining whether there had been notification of an injury under s 10B(2)(a) the respondent is obliged to consider all of the relevant evidence in that regard. It seems to us that a condition such as PTSD, especially one brought about by cumulative exposure to multiple traumatic events over a period of time, would not be easy to diagnose. Dr Lewin said that PTSD "is not anything you can test for in any objective way"; it is contentious, he said. Nor might it be a straightforward matter for a former officer to notify the complex of symptoms that might readily be accepted as indicative of PTSD, given that they may be unaware of the nature of their condition and where Dr Diamond in his evidence said often such symptoms and the circumstances in which they arose do not come to light until they are drawn out in interviews with a clinical expert. Dr Lewin, in cross examination, stated: I have got some experience with police officers and experience with people who have had Holocaust or concentration camp type experiences. It is very common for the psychiatric presentation to be delayed. Often these people will function competently until something dramatic happens in their life, like a retirement or the death of a spouse or something else that, in a sense, interrupts their coping and precipitates the presentation with these clearly psychiatric symptoms. 84Fifthly, the evidence that the respondent should have regard to in determining whether notification had been given, was the opinions of Dr Diamond and Dr Dinnen that Mr Woollard was suffering from PTSD at the time of his discharge, the concession of Dr Lewin that he may have been suffering from PTSD at the relevant time, that the symptoms Mr Woollard had reported were consistent with that condition, that he had experienced a number of traumatic incidents in his policing career capable of producing symptoms of PTSD, and if he had been examined by the two psychiatrists at the time of his discharge he would have been diagnosed with chronic PTSD. 85Sixthly, the respondent was prepared to accept the opinion of Dr Lewin that the appellant was suffering from major depressive episode and to certify accordingly. The weight of the expert medical evidence, however, was that the symptoms reported by Mr Woollard were consistent with the condition of PTSD and that he was suffering PTSD. Each of the three doctors identified a close co-morbidity between PTSD and major depressive disorder, that is, depression and PTSD frequently coexist. Moreover, Dr Lewin was prepared to concede that the symptoms about which Mr Woollard was complaining, were consistent with him then having PTSD and consistent with him having both PTSD and a major depressive episode. 86The test to be applied, according to the majority in Woollard (No 1), is that "notification of injury will be taken as having been given if a member reported symptomatology sufficient to demonstrate the onset of any such disease." Against the background of all of the evidence relating to Mr Woollard's condition, it is reasonable to conclude the test in this case has been met. Whilst all three psychiatrists who gave evidence agreed that the symptoms reported by Mr Woollard were not, of themselves, sufficent to diagnose PTSD, they each agreed that the symptoms were consistent with that condition and required further investigation. Drs Diamond and Dinnen stated that the outcome of that further investigation, done at the time of discharge, would have been a diagnosis of PTSD. 87Furthermore, the respondent accepted that the appellant had notified an injury causing an infirmity of major depressive episode. That condition and PTSD, as we have explained, are co-morbid. Dr Lewin accepted that the symptoms about which Mr Woollard was complaining, could have been consistent with him having PTSD. Dr Diamond and Dr Dinnen stated such symptoms were consistent with PTSD. The weight of the evidence favours the conclusion that the reported symptoms were consistent with PTSD. 88Critically, the respondent accepted that Mr Woollard had notified an injury causing an infirmity of major depressive episode based on the symptoms reported by Mr Woollard. Those symptoms are equally indicative of PTSD. Based on the evidence of Dr Diamond and Dr Dinnen that what flowed from the reported symptoms would have been a diagnosis of CPTSD (evidence that Dr Lewin conceded could be correct), we do not understand how the respondent is able to resist the proposition that notification of injury had been given. 89Accordingly, we find that for the purposes of s 10B(2)(a) of the PRS Act, Mr Woollard gave notification of an injury. We remit the matter to Boland J, President to determine whether or not the infirmity of CPTSD should be added to the certificate of incapability.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2013

(2003) 25 NSWCCR 422

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