Industrial Court of New South Wales CITATION: Ronald Hystek v SAS Trustee Corporation [2009] NSWIRComm 56 Applicant: PARTIES: Ronald Hystek Respondent: SAS Trustee Corporation FILE NUMBER(S): IRC 1776 of 2008 CORAM: Kavanagh J CATCHWORDS: Police - Superannuation Appeal - Psychiatric reaction to incident while on duty - appellant medically retired following other injuries - psychiatric incapability affected capacity to perform full police duties - non operational duties reasons not performing duties of police officer - restricted work - multiple infirmities render appellant incapable of performing duties - psychiatric infirmity of mind contributed to incapability therefore added to certificate for superannuation purposes. Police Act 1990 LEGISLATION CITED: Police Association Employees (Superannuation) Act 1969 Police Regulation (Superannuation) Act 1906 Superannuation Administrative Act 1996 CASES CITED: SAS Trustee Corporation v Daykin (2002) 115 IR 172 Woodlands v SAS Trustee Corporation (2001) 109 IR 132 HEARING DATES: 02/04/09 EXTEMPORE JUDGMENT DATE: 6 April 2009 Applicant: Mr I> Latham of counsel Solicitors: Mr T. Edmunds Baker & Edmunds Solicitors Pty Ltd LEGAL REPRESENTATIVES: Respondent: Mr T. Ower of counsel Solicitors: Mr B. Mathews/Mr R.S. Blume SAS Trustee Corporation JUDGMENT: - 12 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J Monday 6 April 2009 Matter No IRC 1776 of 2008 RONALD HYSTEK v SAS TRUSTEE CORPORATION Application by Ronald Hystek to appeal against a decision of the SAS Trustee Corporation given on 2 April 2008 EX TEMPORE JUDGMENT [2009] NSWIRComm 56 1 Ronald Hystek (the appellant) appeals the decision of the SAS Trustee Corporation Disputes Committee of 2 April 2008, which Committee declined to amend the infirmity specified in his certificate of incapacity (issued for his medical retirement as hurt-on-duty in the Police Service) to include a psychiatric condition being "an adjustment disorder with anxious and depressed moods". There has been a further amendment to this application to add the words "and a psychiatric disorder being post-traumatic stress disorder". The Committee accepted, however, the appellant had specified infirmities to his left leg, both ankles and a hearing loss such as to make him incapable of performing his duties as a Police Officer. It rejected his claim that a psychiatric disorder made him incapable of performing such duties. 2 Under s88 of the Superannuation Administrative Act 1996 there is a power to appeal such a decision to the Industrial Court of NSW. 3 In 2007, there was an amendment to the Police Association Employees (Superannuation) Act 1969 and the Police Regulation (Superannuation) Act 1906 which affected the payment of the incapacity benefit. The 2007 amendment to s10 (1) of the Police Regulation (Superannuation) Act now reads: 10B Medical examination of disabled member and determination of whether hurt on duty (1) An annual superannuation allowance or gratuity must not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 . Section 14(1) of the Police Act 1990 reads: 14 Additional functions of police officers (1) In addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law) of the State. (2) Nothing in this section confers on a police officer a power to exercise a function in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002 . The amendment altered the provision in place at the time the certificate was issued in 2002. The relevant provision in 2002 was s10B of the Police Regulation (Superannuation) Act . Section 10B(1) reads: 10B Medical examination of disabled member and determination of whether hurt on duty (1) An annual superannuation allowance shall not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member's office. 4 For the purpose of this consideration the effect of the amendment in 2007 is negligible. 5 One other preliminary matter is relevant to this consideration. The appellant has recently undergone an unsuccessful cancer operation. He is heavily sedated and on morphine. By consent, he was not called to give evidence. 6 It is necessary to determine the appellant's work history and medical history for my consideration of the application. I have gleaned these histories from the following: the significant number of medical reports covering his employment history from November 1992 until 2 April 2008 (the date on the certificate) tendered by both parties; a judgment of his Honour Judge Harvey Cooper sitting as the Police Tribunal of New South Wales (unreported, No 54/94 Commissioner of Police v R. Hystek, 29 September 1994); a statement of the appellant contained in Police files outlining his reasons for his application for medical discharge from the Police Service; a Government and Related Employees Appeal Tribunal (GREAT) decision on leave of the appellant; and other relevant documentation as contained on his police file. History 7 The appellant's Certificate of Service reveals Mr Hystek was a member of the New South Wales Police Force from 4 February 1974 until his retirement on 9 May 2002. He obtained the rank of Senior Constable. After some postings, the appellant was stationed at Bowral Police Station. He appears to have had no difficulties in his employment until an Inspector Jones took up a senior position at Bowral. Thereafter, a number of grievances were recorded, both from Inspector Jones (generally challenging the appellant's performance) and from the appellant (recording concerns he was being harassed). Matters came to a head in November 1993 when the appellant, in pursuit of a speeding, stolen vehicle, fired two shots at the vehicle's tyres. He was charged with discharging his weapon, contrary to the terms of the Commissioner's Instructions. I cannot go behind the finding of Judge Cooper in his Police Tribunal of NSW decision where he found the charge of misconduct proven. The appellant was fined the sum of $300 on 29 September 1994. 8 In 1994, following the judgment of his Honour, Judge Cooper, the appellant had two periods off work on sick leave. He made a claim for the leave to be recognised as "hurt on duty" leave. He wrote in support of the claim that after November 1993: I began suffering from headaches, insomnia and was short tempered. I disliked and dreaded going to work. I was not being allowed to use any initiative, supervisor or express any opinion. There was no involvement in management or decision making. I was confined to the Station and treated like a baby. My self esteem, self control, confidence and community spirit had been stripped from me. My work environment was severely effecting my home life and my family was suffering as a result. 9 On 23 February 1995, the appellant was transferred to Campbelltown Police Station. I will address the reason for that transfer at a later point in the appellant's work history. 10 On 26 June 1995, the appellant studied and passed a "Safe Custody Course" at the New South Wales Police Academy. 11 As to the work the appellant was performing after November 1993, the appellant gave a doctor the following work history: He has been working as an equipment officer at Campbelltown Police Station since September 2000. He does routine work during the week but there is no contact with the public. Prior to that he had been a custody manager for five years dealing with prisoners. 12 On 19 May 1995, the appellant suffered a knee injury whilst on duty. As a result of the injury he had an operation on the left knee. He reported, after the operation, he was: "unable to fully straighten my left knee and it occasionally collapsed when weight bearing." He recorded on-going problems with the knee after this incident. 13 On 20 November 1995, the appellant's Police Medical Officer, Dr O'Leary, took a history of Post Traumatic Stress Disorder with psychological distress when doing a gun test; noted he wore no firearm. Dr O'Leary believed he should stay in non-operational duties. 14 Because of the appellant's claim in relation to his asserted psychiatric injury and his periods of time off work in 1994 (arising, he asserted, from the November 1993 incident), the appellant was sent by the Police Service to Dr Alan White, a Psychiatrist, who took the history of the speeding vehicle incident, the firearms charge and the finding of the Police Tribunal. Dr White opines: As a consequence of these findings, Senior Constable Hystek has declined to wear his firearm although he had not been officially instructed that he is not permitted to do so. He has been on permanent station duties since the firearm incident. ... Towards the end of the year, there was an annual update of shooting and of general weapons care. The course involved an examination prior to the actual shootings and Senior Constable Hystek felt so upset that he prematurely left the examination and discussed his problems with Inspector Wharton, the police officer relieving Inspector Jones who was on holidays ... Inspector Wharton offered him the position as Custody Officer at Campbelltown, a position which would not require him to wear his appointments. He is, however, not looking forward to going to Campbelltown. 15 This history given to Dr White seems to put the appellant's placements into context. It appears the appellant at Bowral, after the incident in November 1993, was not performing full duties as a Police Officer and was no longer permitted to carry a firearm. He began duties as a Custody Officer whose role it is to handle prisoners. He was then transferred to Campbelltown as its Custody Officer. 16 In March 1998, GREAT upheld a decision related to the appellant's appeal (that the periods of his sick leave absences in August and September 1994 which the appellant claimed were because he had been "hurt-on-duty" in November 1993). The Tribunal in its consideration examined the appellant's work history. The Tribunal commented: Following the decision to investigate the shooting incident, the applicant was confined to station duty. He was required to surrender his firearm for forensic testing, but was not issued with a replacement firearm while this was happening. When his firearm was released after testing, it was collected by Inspector Jones and locked away in the station in his personal safe "for some months", instead of being returned to the appellant. Inspector Jones has said the appellant didn't need a firearm and he was restricted to station duty. However, it also appears that the appellant continued to be restricted to station duty because he didn't have a firearm. It seems to us that there was no good reason for the decision not to issue the applicant with a replacement firearm, and no justification on the part of Inspector Jones for failing to return his firearm to him after it was examined by the ballistic experts. Counsel for the appellant commented on this history and how it appears to outline a "Kafkaesque" work situation for the appellant. 17 A further incident is also recorded soon after the November 1993 incident. The appellant froze when trying to do a Police shooting task. I am satisfied, from the evidence, the appellant, on at least two or more occasions, suffered an emotional reaction when he was required by the Police Service to handle a gun to perform the usual police requirement for his certification to possess a gun. It appears the move to Campbelltown acknowledged his limitation as it was a position that did not require "appointments" (read "gun"). 18 Evidence reveals in February 1997 the appellant suffered an injury to his left knee and by November 1997, he was complaining of his "considerable medical problems". 19 By March 1998, the appellant was complaining of insomnia, headaches and Post Traumatic Stress Disorder. He was unable to sleep and getting headaches from constantly thinking about being "unable to remove past Police incidents from [his] mind". 20 On 10 March 1998, the appellant's Commander at Campbelltown noted on one of his leave applications: Every effort is made to accommodate constable's needs, i.e. station duty only. I don't accept that he lies awake thinking about future police incidents as he is not motivated + has a very casual approach to his duties - recently took extended leave to assist in building his house. His restrictions appear selective but I am not in a position to qualify this nor am I able to give a qualified opinion. 21 In June 1998, the appellant was complaining not only of his fear of guns, but also of "the manner in which the November 1993 incident was subsequently investigated." In May 1998, the appellant wrote the following in a claim: I know that I am susceptible to falling asleep whilst driving as I have done it on a number of occasions previously and been lucky not to have come to grief. Unusually, the appellant's complaint of symptoms, as recited above, were used by a decision maker in the Police Service to suspend his certification to drive police fleet vehicles and a report was also made (by someone unidentified) to the Roads and Traffic Authority (RTA) raising the question as to whether the appellant was fit to hold a NSW Driver's Licence. The RTA required the appellant to have a Medical Report completed by his doctor. He retained his licence. The appellant uses this as an example of harassment at work. 22 At the bottom of one of the appellant's "Register of Injuries" forms dated 26 June 1998, his temporary Superintendent, Z. Feszczur, noted: This is an ongoing situation stemming from the claimants status of "Non-Operational". His situation within the command is being revisited. 23 On 3 July 1998, the appellant was referred to the Police Medical Officer, Dr Sharp. Dr Sharp took his history: RTW (Returned to Work) after LSL (Long Service Leave) in Jan (January) 98 - F/T (Full Time) RD (Restricted Duties), Station Duties (also unable to do weapon assessment (because of) PTSD) depression (with) anxiety - Rx Zoloft 50mg ... The doctor notes the appellant's medication, as Zoloft 50mg. The doctor also took evidence of complaints related to the left knee as well as both ankles. 24 In this hearing, some reliance was placed by the respondent on a medical certificate by Dr Sharp issued on 3 July 1998, which did not mention the Post Traumatic Stress Disorder, but in examination of the doctor's notes of the same date, he did diagnose the appellant had "PTSD". 25 On 26 October 1999, the appellant made application for a medical discharge because of his Post Traumatic Stress Disorder, saying: I have not since carried a firearm whilst on duty and have been placed on permanent non-operational duties by the Police Medical Officer, Dr Sharp. A subsequent G.R.E.A.T appeal concluded that I was suffering from severe anxiety with depressive symptoms. The appellant then went on in his correspondence to outline the difficulties with his left knee, both ankles, his right elbow and right middle finger. 26 On 10 March 2000, Dr Sharp saw the appellant again and noted: He has applied for medical discharge. I support his application. He will never be fit for operational duties ... both ankles, left knee, PTSD. Rehabilitation not appropriate in his case. 27 The Medical Discharge Officer, Arthur Crellin of the Police Service, after receiving the application advised the appellant in writing on 27 September 2000: ... I would like to also inform you that following a thorough review of your case, the PMO has expressed the opinion that in his view, you are incapacitated for police duties. In the circumstances, the Service has formally advised the Committee that it supports your discharge. In a separate letter dated the same day he also stated: There are no other duties that can be reasonably offered that are not lower in rank. 28 At the Police Superannuation Board meeting, a number of medical reports went to the committee including orthopaedic reports, the report of Jane Wirsu, a counsellor (who treated the appellant for stress) and a report of Dr Hanbury who was the appellant's General Practitioner. A psychiatric report from Dr Lee, who saw him for the Police, also went to the Committee. No qualified psychiatric evidence went before the Tribunal from the appellant. Conclusion as to appellant's work history 29 From all the above evidence, I conclude the appellant never returned to full duties of a Police Officer after the November 1993 incident. The Police Service referred to his placements as "non-operational duties". I am satisfied from the 1993 incident the appellant has not performed the full range of police duties which duties required the bearing of arms. I am persuaded, between 1993 and 2002, the evidence establishes the appellant could not even be exposed to the usual police shooting test without an emotional reaction. The respondent's Case 30 The respondent concedes, on the balance of the medical evidence, the Court could be satisfied the appellant has a personality disorder but submits the appellant has no psychiatric disorder such as to make him incapable of/or personally incapable of performing the duties of a Police Officer. I now turn to that medical evidence. 31 The evidence of the respondent as to the appellant's asserted psychiatric disorder is as follows: · Dr Leonard Lee, a Consulting Psychiatrist, saw the appellant on 30 July 1999 (and after the April 1998 GREAT decision). He opined: I believe the cause of his problems is his inability to overcome his anger and resentment arising from his somewhat rigid obsessional personality style. He seems to have difficulty with authority figures and he cannot take directions. He feels that he has been narcissistically wounded and I believe his taking leave is an effort to blame others for his problems. When asked: What parts of Senior Constable Hystek's personality play in his illness? Dr Lee opined: He seems to have had a marked degree of resentment arising out of investigations into his conduct. Dr Lee took the history that the appellant was performing non-operational duties and had a considerable period of time off work on sick leave. He opined the appellant would probably not benefit from psychiatric treatment: I believe he will remain chronically resentful and he will most likely have further appeals for stress-related leave and apply for medical discharge at some point. · Dr Rodney Morice, Consultant Psychiatrist, saw the appellant on 27 November 2000. He opined: ... I saw my task as assessing his current mental state as to whether there were psychological or psychiatric grounds for a medical discharge from the Police Force. Over the past three months, Mr Hystek has not experienced any such problems. His mood has been stable, he has not experienced any anxiety or depression. He has not experienced any suicidal ideation. At most, he experienced some degree of frustration relating to his past and current difficulties of employment. I believe he does have a left knee injury, which prevents him from being an operational policeman. Also, recently some hearing loss has been discovered ... The doctor then opined there are no current psychological or psychiatric reasons that would warrant the appellant's medical discharge from the Police Force. · Dr Robert Kaplan, Psychiatrist, saw the appellant on 28 June 2001. He took a full history. He did an analysis of the previous medical reports and then opined: ... I stress that these are personality traits, not a personality disorder, and there is no reason why he cannot continue in his job. and concluded: ... the only conclusion that I can draw is that Sen Con Hystek is not suffering from a psychiatric disorder. ... fit for all duties required of him in the Police Service. · Dr Michael C. St. J. Prior, on 23 March 2007, consulted and created a psychiatric report on Mr Hystek for the Claims Manager at State Super and commented on previous medical reports and other material: On the history provided to me today and of his mental state examination, I am unable to make a diagnosis of chronic Post-Traumatic Stress Disorder, chronic dysthymic disorder, generalised anxiety disorder or Major Depression. I believe he has suffered at times from anxiety and affective symptoms which would constitute symptoms of an Adjustment Disorder historically. ... As mentioned immediately above, I think his diagnosis is one of a chronic Adjustment Disorder with Anxious and Depressed mood in an individual with obsessive compulsive personality traits. ... I don't believe that his chronic Adjustment Disorder would have prevented him arresting offenders, using firearms or have prevented him from being capable of carrying out his full operational duties. 32 From the respondent's psychiatric medical evidence, I am satisfied the appellant has a personality disorder with periods of anxiety but I note the respondent's psychiatrists were generally of the view the disorder did not render the appellant incapable of performing full police duties. 33 I now turn to the appellant's medicals: · Dr R.M. Hanbury, a General Practitioner, saw the appellant on a number of occasions from 9 June 1994, throughout 1994 and in December 1996. He reported: Ron has suffered a severe anxiety disorder from work related stress due to the direct actions of his superiors. Ron was not keen to take time off work initially and only did so at my insistence. Since Ron's transfer to Campbelltown the problems have resolved. Ron has never had time off for stress related illnesses and nor is there any previous history of depression or psychiatric illness. There is no question in my mind that this period of sick leave was from work pressures. 34 Dr Hanbury on 6 June 1998 then updated his opinion as follows: I saw Senior Constable Hystek on the 4th of March, 1998. He was very anxious, not coping and complaining of insomnia. Senior Constable Hystek complained of stress. He kept on thinking about work problems continually - he felt he had not been given a fair go. Senior Constable Hystek had been coping at work reasonably well, however with his stress case about to go to court, old problems surfaced. I diagnosed Post Traumatic Stress Disorder and gave Senior Constable Hystek a certificate for 2 days and prescribed Temazepan for the insomnia. I next saw him in regard to the Post Traumatic Stress Disorder on the 19th May, 1998. Ron had won his court case but had left work that day because of harassment. Senior Constable Hystek feels worthless at work, nothing he did was good enough and he had suicidal thoughts. I diagnosed acute depression secondary to the work situation, and prescribed Temazepan. I gave Senior Constable Hystek a certificate for 3 days and advised him to see a counsellor from the welfare section at work. I have not seen Senior Constable Hystek with stress related problems since my last report on the 6th of December 1996, until the 4th of March 1998. Prognosis must now be guarded as Senior Constable Hystek's symptoms have returned. · Two reports from counsellors treating the appellant during the period 1994 and 1995 were also tendered. · Dr Peter Klug, Psychiatrist. On 3 October 1996, he opined the appellant suffered from a general anxiety disorder: ... I believe he suffered from a generalized anxiety disorder which progressed to a panic disorder. It may be that intermittently he has suffered from a major depression. ... The conflict at work, particularly with respect to firearms, needs to be resolved but as the situation is now long-standing, even with such a resolution it is doubtful that his condition would improve. Dr Klug in a further report of 14 September 2007 further opined: My opinion remains unchanged. I believe that Mr. Hystek has suffered from a generalised anxiety disorder with intermittent panic attacks, a panic disorder and may have intermittently suffered from a major depressive episode. I believe that there is ample evidence that these conditions have been in response to complex work-related stresses as noted in my previous report and also with respect to what appears to have been, and what has also been validated by GREAT, ongoing bureaucratic victimization. Determination 35 There are relevantly few authorities which have considered the issue as to the inclusion of multiple infirmities onto a certificate of incapacity. On appeal in SAS Trustee Corporation v Daykin (2002) 115 IR 172 (at 182), reliance was placed on the principle enunciated by Hungerford J in Woodlands v SAS Trustee Corporation (2001) 109 IR 132 (at 38), who stated: [38] Whilst those above authorities were concerned with a specified infirmity as distinct from multiple infirmities, I have no doubt that s 10B(1) in referring to "a specified infirmity" in the singular would comprehend multiple infirmities: see Interpretation Act 1987, s 8(b). Mr Walsh's submission to that effect was not challenged by Mr Ower. In the result, I accept Mr Ower's submission that any infirmity or infirmities may properly be specified in a certificate, provided that the police officer concerned by reason of the specified infirmity or infirmities was incapable of discharging the duties of office; if a particular infirmity or infirmities do not make the officer so incapable then it is not open under the section to include it or them in a certificate. In other words, it is to be emphasised for present purposes, if an officer has the benefit of an existing certificate with a specified infirmity or infirmities then it is not open to add another infirmity unless that other infirmity itself was causally connected to the incapability to perform duties. 36 In accepting this view for an infirmity to be specified and thereby included on a certificate, it must be causally connected to the incapability to perform the duties of a Police Officer. 37 I accept from the evidence of the appellant's work history, his pattern of behaviour as recorded and the medical opinions before me, that the appellant was a person with a personality disorder, who exhibited obsessive behaviour. From the appellant's work history I find the appellant was incapable, after November 1993, of performing all the duties of a Police Officer. The appellant was never again either given those duties or permitted by the Police Service to perform full duties. From the weight of the evidence, I am satisfied the appellant evinced an obsessive behaviour pattern in relation to carrying a gun and I am also satisfied the Police Service itself was not prepared to return the appellant to full operational police duties with a gun. Therefore, I find the appellant has been incapable of performing the duties of a Police Officer since the November 1993 incident. 38 I accept the appellant was medically retired hurt-on-duty from the specified infirmity of his left leg, his ankles and a hearing loss, and those specified bodily infirmities have been noted on his certificate and are acknowledged as having the effect of making him incapable of personally performing the functions of a Police Officer. However, the Police Medical Officer in his recommendation supporting the appellant's medical retirement also included an infirmity of mind, namely, a Post Traumatic Stress Disorder, as contributing to his incapacity. 39 As to whether there was a specified infirmity of mind such as to make the appellant incapable of performing Police duties. I prefer the opinion of Dr Klug, in relation to the diagnosis of the appellant's psychiatric condition. I accept the appellant has a personality disorder as acknowledged generally by the respondent's medical advisors. I accept that since the November 1993 incident, and also taking into account the conditions of the appellant's employment in the Police Service, by 2 April 2008 the appellant suffered from a psychiatric condition as recognised by Dr Klug of generalised anxiety with panic attacks and a panic disorder with major depressive episodes. The Police Medical Officer, a General Practitioner, referred to this condition as a Post Traumatic Stress Disorder. If there is any doubt, I find Dr Klug's diagnosis incorporates the Post Traumatic Stress disorder within his above description of the appellant's psychiatric disorder. I am satisfied, therefore, that the appellant was, since November 1993, partially incapable of performing duties of a Police Officer because of his infirmity of mind. By 2 April 2008 he became incapable of performing any duty of a Police Officer because of the effects of his infirmity of mind and the infirmities of his body as stated on the certificate. Therefore, the respondent's refusal to so amend the certificate cannot stand. 40 In the result I conclude that the appellant's appeal should succeed. I am satisfied that a "psychiatric disorder of a generalised anxiety with panic attacks, a panic disorder with major depressive episodes" represents an infirmity of the mind in the sense of a specified incapacity such as to make the appellant incapable of discharging the duties of his office within the meaning of s 10B(1) of the Police Regulations (Superannuation) Act. 41 It follows that the certificate issued on April 2002 should be amended by adding the specified infirmity of "psychiatric disorder of generalised anxiety with panic attacks and a panic disorder with major depressive episodes." 42 I make the following orders: 1. The appeal is allowed. The certificate issued (as amended by the respondent) is further amended from that date by the addition thereto of a further specified infirmity, namely: "a psychiatric disorder of generalised anxiety with panic attacks and a panic disorder with major depressive episodes." 2. As to costs, the respondent is to pay the appellant's costs of and incidental to this appeal in an amount agreed or failing agreement as assessed. 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.