Bell and Comcare (Compensation) - [2021] AATA 832

Bell and Comcare (Compensation) [2021] AATA 832 (12 April 2021)
Division:GENERAL DIVISION
File Number:2019/4363
Re:Michelle Bell
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:12 April 2021
Place:Brisbane

The Tribunal affirms the decision under review.
................[SGD].................................................
Member D Mitchell
CATCHWORD
COMPENSATION – accepted injury - major depressive disorder and panic disorder with agoraphobia – whether the Applicant continues to suffer the effects of the accepted injury – whether permanent impairment – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Australian Postal Corporation v Oudyn [2003] FCA 318
Evangeline v Department of Human Services T/A Child Support Agency [2013] FCCA 807
Lees v Comcare [1999] FCA 753
Prain v Comcare [2017] FCAFC 143
Roxas and Comcare [2012] AATA 747
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Weatherburn and Comcare (Compensation) [2019] AATA 4196
SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)
REASONS FOR DECISION
Member D Mitchell
12 April 2021
INTRODUCTION

Ms Michelle Bell (the Applicant) is seeking review of a decision of the Respondent dated 22 May 2019.[1]
[1] Exhibit 1, T Documents, T1.4, pages 68-70, Reviewable Decision.
The reviewable decision[2] affirmed a determination dated 29 March 2019[3] to deny compensation under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for permanent impairment and non-economic loss in respect of the Applicant’s previously accepted claim for major depression disorder, single episode and agoraphobia with panic attacks condition (accepted injury) with a deemed date of injury of 18 December 2008.[4]
[2]     Exhibit 1, T Documents, T1.4, pages 68-70, Reviewable Decision.
[3]     Exhibit 1, T Documents, T1.2, pages 49-50, Determination Decision.
[4]     Exhibit 1, T Documents, T1.4, pages 68-70, Reviewable Decision.
BACKGROUND AND CLAIMS HISTORY
The Applicant commenced employment with the Department of Human Services (the Department) in February 2007 as a Customer Services Officer within the Child Support Agency. Her role involved managing Child Support cases primarily by phone contact.[5]
[5] Exhibit 1, T Documents, T3, pages 82-83, Claim for Workers’ Compensation.
On 28 April 2009, the Applicant lodged a claim for compensation for ‘anxiety disorder/depression’ for which she indicated she first sought medical treatment for on 17 or 18 December 2008. The Applicant claimed her injury was caused by sexual harassment by another staff member during the usual course of undertaking her duties.[6]
[6] Exhibit 1, T Documents, T3, pages 72-104, Claim for Workers’ Compensation.
In response to the Applicant’s sexual harassment complaint a Code of Conduct Investigation Report was issued in August 2009.[7] The report concluded that four of the total eight claims made by the Applicant were substantiated.[8]
[7] Exhibit 1, T Documents, T30, page 359, Decision of Coker J, Evangeline v Department of Human Services T/A Child Support Agency [2013] FCCA 807 at [12].
[8] Exhibit 1, T Documents, T7, pages 143-184, Code of Conduct Investigation Report.
On 22 September 2009, the Respondent made a determination to refuse the Applicant’s claim for compensation.[9] The Applicant sought review of that determination.[10] On 10 June 2010, the Review Officer affirmed the determination to refuse the Applicant’s claim for compensation.[11]
[9]     Exhibit 1, T Documents, T11, pages 248-254, Decision to Decline the Applicant’s Claim for       Compensation.
[10]    Exhibit 1, T Documents, T12, pages 255-266, Reconsideration Request.
[11]    Exhibit 1, T Documents, T13, pages 267-273, Reviewable Decision to Affirm the Earlier Determination     to Decline the Applicant’s Claim for Compensation.
With the consent of the parties, the Tribunal determined on 11 November 2010 that the Respondent was liable to pay compensation to the Applicant for major depressive disorder and panic disorder with agoraphobia with a date of injury being 18 December 2008.[12]
[12] Exhibit 1, T Documents, T18, pages 290-291, Decision of the AAT made by consent.
The Applicant resigned from her employment with the Department in November 2010.[13]
[13] Exhibit 1, T Documents, T1.1, page 31, Compensation Claim for Permanent Impairment and Non- Economic Loss.
Relying on the opinion of Dr Anand Gundabawady,[14] consultant psychiatrist, the Respondent, on 18 April 2013, determined that the Applicant did not presently suffer from the effects of the accepted injury and as at that date was not entitled to compensation under sections 16 and 19 of the SRC Act.[15]
[14] Exhibit 1, T Documents, T24, pages 312-327, Report of Dr Anand Gundabawady.
[15] Exhibit 1, T Documents, T25, pages 328-329, Notice of Intention to Determine No Present Entitlement and T27, pages 332-333, Letter – Cessation of Entitlements.
The Applicant sought a reconsideration of the determination.[16] The Review Officer, in relying on the report of Dr Chris Alroe, treating general practitioner,[17] revoked the determination dated 18 April 2013.[18] The result being that the Applicant continued to be entitled to compensation under sections 16 and 19 of the SRC Act in relation to the accepted injury.
[16]    Exhibit 1, T Documents, T28, pages 334-340, Request for Reconsideration.
[17]    Exhibit 1, T Documents, T26, pages 330-331, Letter from Dr Chris Alroe.
[18]    Exhibit 1, T Documents, T29, pages 341-345, Reconsideration Decision Revoking the Earlier     Determination.
On 10 September 2018, the Applicant lodged a claim for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act in relation to the accepted injury.[19]
[19] Exhibit 1, T Documents, T1.1, pages 24-48, Compensation Claim for Permanent Impairment and Non- Economic Loss.
On 29 March 2019, the Respondent relying on the report of Dr Riccardo Caniato, consultant psychiatrist dated 8 February 2019,[20] determined that the Applicant’s accepted injury was not permanent and as such denied liability for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act.
[20] Exhibit 1, T Documents, T43, pages 447-460, Report of Dr Riccardo Caniato.
On 28 April 2019, the Applicant requested a reconsideration of the determination,[21] and on 22 May 2019 the Review Officer affirmed the determination.[22] The Review Officer found that compensation was not payable for permanent impairment or non-economic loss on the basis that the Applicant’s accepted injury was not permanent as further medical treatment was available and should significantly improve her condition.[23]
[21]    Exhibit 1, T Documents, T1.3, pages 51-67, Reconsideration Request.
[22]    Exhibit 1, T Documents, T1.4, pages 68-70, Reviewable Decision Affirming the Earlier Determination.
[23]    Exhibit 1, T Documents, T1.4, page 70, Reviewable Decision Affirming the Earlier Determination.
On 21 July 2019, the Applicant sought review of the reconsideration decision by way of application to this Tribunal.[24]
[24] Exhibit 1, T Documents, T1, pages 1-23, Application for Review of Decision.
A Hearing was held by Microsoft Teams on 14 and 15 October 2020. The Applicant was self-represented and gave evidence under affirmation. The Respondent was represented by Ms Kate Slack of Counsel.
ISSUES
The primary issue before the Tribunal is whether the Applicant is entitled to compensation for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act in relation to the accepted injury.
In considering this issue, the Tribunal must consider:
1.Whether the Applicant continues to suffer from the accepted injury?
2.If so, does the Applicant’s accepted injury continue to be contributed to, to the requisite degree, by her employment with the Commonwealth?
3.If so, does an impairment arise out of the Applicant’s accepted injury?
4.If so, is the impairment permanent?
5.If so, what is the degree of the permanent impairment?
THE LAW
Section 24 of the SRC Act provides eligibility requirements for compensation for injuries resulting in permanent impairment and relevantly provides:
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purposes of determining whether an impairment is permanent, Comcare shall have regard to:
(a)   the duration of the impairment;
(b)   the likelihood of improvement in the employee’s condition;
(c)   whether the employee has undertaken all reasonable rehabilitative treatment of the impairment; and
(d)   any other relevant matters.
……..
(5)     Comcare shall determine the degree of permanent impairment of the           employee resulting from an injury under the provision of the approved Guide.
(6)     The degree of permanent impairment shall be expressed as a percentage.
(7)     Subject to section 25, if:
(a)     the employee has a permanent impairment other than a hearing loss;   and
(b)     Comcare determines that the degree of permanent impairment is less            than 10%;
an amount of compensation is not payable to the employee under this section.
……
Section 4 of the SRC Act defines impairment as ‘the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function’.
Section 4 of the SRC Act defines permanent as ‘likely to continue indefinitely’.
The degree of permanent impairments that is used in the assessment of psychiatric conditions is set out in Table 5.1 of Chapter 5 of the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1).
Section 27 of the SRC Act provides eligibility requirements for compensation for non-economic loss and relevantly provides:
(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Compare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
……..
An injury is defined in section 5A to include a disease suffered by an employee or an injury other than a disease or an aggravation thereof. Specifically, section 5A of the SRC Act defines “injury” to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 5B of the SRC Act defines “disease” to mean:
(1)In this Act:
“disease” means:
(a)   an ailment suffered by an employee; or
(b)   an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)   the duration of the employment;
(b)   the nature of, and particular tasks involved in, the employment;
(c)   any predisposition of the employee to the ailment or aggravation;
(d)   any activities of the employee not related to the employment;
(e)   any other matters affecting the employee’s health.
(3)    In this Act:
“significant degree” means a degree that is substantially more than material.
Section 4 of the SRC Act defines ailment as ‘any physical or mental ailment, disorder, effect or morbid condition (whether of sudden onset or gradual development)’.
EVIDENCE
Evidence of the Applicant
The Applicant provided a Statement of Facts, Issues and Contentions, dated 4 August 2020 setting out her contentions in relation to her matter.[25]
[25] Exhibit 3, Agreed Tribunal Book, TB1, pages 1-22, Applicant’s Statement of Facts, Issues and Contentions.
At Hearing the Applicant told the Tribunal that:[26]
·She sought to rely on her Statement of Facts, Issues and Contentions.
·During the periods that she was taking her prescribed medication in relation to the accepted injury (being those periods other than when she was pregnant or breast feeding) she did not claim reimbursement for the cost of the medication as she had a health care card and it was not worth the paper work.
·Since 2013 she had engaged a couple of times with a psychologist, however after her interaction with Dr Wayne Scott she saw her rehab officer as her outlet to discuss issues and help her cope, particularly when Sarah Hanrahan was appointed in September 2015. For two years she had a rehabilitation officer who kept in very close contact with her, initially on a weekly basis and then fortnightly and she seemed to fill the void for a two year period from 2015 to 2017.
·While she struggled socialising with adults she did not have that problem when with children as they do not judge you. She had been doing a teacher’s aide course as a viable way to seek employment.
[26] Transcript, pages 8-10.
On cross-examination, the Applicant:[27]
[27] Transcript, pages 10-33.
·Outlined the medication she had been on since 2010.
·Said that her dosage of Moclobemide was 600 milligrams however that there was a period of weaning on and off the medication where the dosage was phased in or out at 300 milligrams. She weaned off the medication when she found out she was pregnant with her children who were born in 2012 and 2014 until after she was finished breast feeding. After her second child she breast fed for 2 years so was not taking medication up until 2016-2017 at which time she weaned back onto the medication.
·When asked if she was taking 600 milligrams of the medication today or yesterday, said no. Said she had not taken it for a few months as her weight got to a point where because her sleeping and eating habits were disturbed, it had increased around 30 kilograms and her doctor said her weight was at a point where she had to do something about it. Dr Alroe weaned her off the medication so that she could take a weight loss drug called Duromine which cannot be taken at the same time as an antidepressant.
·Said it was fair that she was probably prescribed Duromine at some point in 2019, but no earlier than 2018.
·Said, Dr Alroe retired sometime in 2019 and since then she has seen Dr Butt twice. Dr Alroe had been her treating practitioner for 10 years and since Dr Alroe has not been available Dr Butt has taken over, she would say that she is under the care of Dr Butt who is still at the same health care practice.
·Said that she did not presently consult a psychiatrist, as it is difficult to find a psychiatrist in Townsville who has not assessed her for Comcare or had some involvement along the way.
·Confirmed that she filed and served a report of Ms Anderson and that the report was for the purpose of the proceedings. Ms Anderson was not treating her.
·Said that she was not currently consulting a psychologist.
·Said that she was not currently employed.
·Said she had no recollection of being diagnosed with depression when her father died in 1999. It was a traumatic event to lose her father at 16 years of age.
·When taken to a document called “Health Status Assessment” found in the Supplementary T-Documents, confirmed that she had signed the document and that in response to the question do you or have you ever had anxiety or stress reaction or depression, the answer was entered as yes with the explanation provided as “1999, depression following death father”. She said that she does not accept that in at least 2007 she thought she had suffered from depression in 1999.
·Said she does not accept that she was prescribed anti-depressant medication following her father’s death. Counsel took her to medical notes from the Healthlink Family Medical Centre, where Dr Fabio Ballestro noted “a short period of depression following her father’s death when she was put on antidepressants”. Said, she accepts that is in the report, however that she has no recollection of being officially diagnosed with depression or placed on any medication whatsoever.
·Said she had been open about the fact that she had been officially diagnosed with depression and placed on antidepressants in 2007 and 2008 in relation to her marriage breakdown and that was the first time to the best of her knowledge.
·Confirmed that she was married in 2004 and separated in 2007 and that in early 2007 she started seeing a psychologist for cognitive behaviour therapy in relation to panic attacks she was experiencing and that she also saw an EAP service.
·Said she was diagnosed with something in the range of depression and/or anxiety and was placed on antidepressants and other medication in that period. It was good support.
·Confirmed that at that time of her marriage breakdown she was looking for a second job and sought approval from the Department. She did this so that she could take over the mortgage on her house in her name only. The bank had assessed her income as not enough to service the mortgage so she had to seek a second job to place her income at a level to satisfy the bank she could service the mortgage, it was only ever a temporary step.
·Confirmed she was involved in legal proceedings in relation to ongoing child custody arrangements in 2017 which was with a new partner.
·Said her relationship with the father of her children commenced at the end of 2009. She had made her Comcare claim in about April. That relationship ended in April 2014.
·Confirmed that there was an ongoing dispute over custody arrangements that ended up with proceedings in the Federal Circuit Court, which resolved by consent in 2017.
·Confirmed that between 2014 and 2017 she was engaged in a dispute only about the children, not financial affairs, just parenting matters.
·Said she was appointed Legal Aid to assist her with the proceedings.
·Confirmed that her first child was born in January 2012 and that she was therefore pregnant in 2011.
·When asked if she experienced a worsening of her psychological symptoms while she was off antidepressants while pregnant, said she could not remember. When taken to a report of Dr Anand Gundabawady dated 11 February 2013 where it was written: “She reports after she became pregnant with her son she stopped with antidepressant medication. She reports she coped well without medication and said she did not have any worsening of her symptoms.” and it was put to her that she had reported this to Dr Gundabawady and asked if she accepts it was accurate, said that the whole picture had to be looked at. She ended her employment at Westpac after feeling she had to disclose her past work difficulties and Dr Alroe said she had to stop the medication and work because she was pregnant, so out of the environment where she was embarrassed because she had told her story, she agrees then absolutely that there was no worsening of her symptoms coming off her medication.
·Confirmed that around 2014 she commenced a Diploma of Naturopathy. She said, she paid the money but did not end up starting it or getting into it and she forfeited the money.
·Confirmed that around that time she had purchased a business as a desperate attempt to find a way to work from home. She said, she paid the money but she did not feel right proceeding with it.
·Confirmed the details of a Rehab Management Step-up Capacity Program dated 5 May 2016 that set out that at that time she had sporadic engagement with friends and was going to the gym on a weekly basis.
·Confirmed the details of the Rehab Management Report dated 3 June 2016 that set out that at that time she remained independent and highly competent in self-care, home maintenance and in the care of her children, she had nil incapacity with home tasks, observed or reported. Said that during that time she took care of her children’s needs however did not always take care of her own. Confirmed that she had re-engaged with shooting and the gym and was socialising on a weekly level.
·In relation to the Rehab Management Report dated 17 October 2016 agreed that at that stage she had her children on a 50/50 custody arrangement and that she was socialising weekly or fortnightly, shooting and performing activities with her children, studying a dive course and was retraining.
·In relation to the Rehab Management document dated 31 March 2017 agreed that she had started work at the Zoo Health Club, had been shopping regularly, completing sessions at the gym, participating in a roller derby team and engaged with BMX Training Club as a volunteer.
·Confirmed this continued as at 30 April 2017 and that she had been invited on a trip with the roller derby team however did not attend.
·Said that when her son started Prep she started helping in the class room and that she started to undertake a Certificate III Teacher’s Aide course.
·Said that Dr Caniato had not ever been her treating practitioner.
Medical Evidence

There is a large volume of evidence before the Tribunal, much of which has only come to the attention of the Parties throughout the summons process associated with these proceedings.
A pertinent summary of the relevant medical evidence before the Tribunal, other than referencing to the report provided by Ms Barbara Anderson (set out below)[28] was provided by Dr Caniato in his supplementary report dated 13 February 2020.[29] Having reviewed the material in full the Tribunal considers it appropriate to reproduce the summary and analysis provided by Dr Caniato as an accurate and relevant reflection of the state of the evidence before the Tribunal. For reasons outlined below, the Tribunal accepts the evidence of Dr Caniato in relation to the diagnosis and the effect of the medical evidence when considered in totality. The summary provides:[30]
[28]    See paragraphs 32-33 below.
[29]    Exhibit 3, Agreed Tribunal Book, TB19, pages 417-434, Supplementary Report of Dr Riccardo Caniato.
[30]    Exhibit 3, Agreed Tribunal Book, TB19, pages 418-425, Supplementary Report of Dr Riccardo Caniato.
This is a summary of the new information provided.
1.Report Dr Zemaitis 2009.
It is noted this assessment relates to allegations the claimant had verbal, sexual and physical abuse while employed at the Child Support Agency for a period of two and a half years. Dr Zemaitis makes a diagnosis of Post-Traumatic Stress Disorder.
[Chronology of Events][31]
[31]    Heading inserted due to correction made at Hearing by Dr Caniato: Transcript, page 59.
There is a chronology of events from 15 February 2007 until 25 May 2009 that outlines allegations. There is a detailed response with regard to the allegations made by her. In addressing the allegations, it is noted that there are counter allegations against the claimant.
Multiple performance issues identified. In Question 13 it addresses unrelated employment factors. He stated that the claimant indicated in her pre-employment medical that she had (1) a marital breakdown and separation from her husband and (2) a DVO against her husband, (3) taken out a DVO against another ex-partner, (4) was financially stressed, (5) had a partner who had a WorkCover injury. Notes document issues with absenteeism, sick leave. Documents: a pre-existing history of depression and multiple other stressors.
It is noted that this information documents significant mental health issues and concerns which appear to have predated the work-related incidents. It is noted that I was not previously aware of this information.
2.Report Dr Nick Jetnikoff dated 27 July 2009. A report from Dr Jetnikoff notes that the claimant had issues with panic attacks and was seeing a psychologist and had received medications prior to the work-related stressors. He documents that in early 2007, she had CBT and was on medications. It is noted that this differs from the history provided to me or documented in my report. In my history the claimant had mentioned only seeing a psychologist in 2007 after relationship stressor. She had not made mention of a previous diagnosis of panic attacks or being on medications. She had also not mentioned to me any pre-existing history of depression.
3.Workplace Investigation T7/A1 is reviewed. This provides a timeline of events of the multiple allegations made by the claimant. It is noted that the allegations commenced in 2008 and are therefore clearly after the claimant already had diagnosed mental health issues and treatment. It is noted that there are substantiated allegations of a claimant’s co-worker, Mr B, asking her inappropriately for sex and making inappropriate statements towards the claimant. Collateral from co-workers confirms that inappropriate statements were made; these are outlined in detail over the allegations, primarily involving a person identified as Mr B who it appears established, made inappropriate statements to the claimant including request for sex and a number of other inappropriate statements on a number of occasions.
4.There are no allegations of physical or sexual contact. There are no allegations of assault. The incidents were not of a nature or severity to be considered unlawful or require police involvement. There are no allegations of threats, bullying or specific intimidation. There are no allegations of an incident or incidents which would meet the A criterion for PTSD.
5.The investigation also documents other work-related performance issues with the claimant, but these appear independent of the allegations. It appears that the allegations of sexual harassment are confirmed.
6.Assessment on 5 August 2009 by Lesley Hutton, a psychologist, specifically in regards to the work-related stressors. He considers that the claimant developed major depression in 2009 attributed to sexual harassment at work. He documented a number of stressors including a motorcycle accident in 2008, stress following a marital separation in March 2008.
7.Report Dr Fabio Bellestro, General Practitioner for Health and Wellbeing, 29 August 2009 provides a history of treatment, indicates in 2009 the claimant was treated with an antidepressant, Lexapro. Stress was identified as work stressors and separation from her husband.
A number of antidepressants are noted. Makes a diagnosis of major depression with generalised anxiety. It is noted the claimant did not disclose the symptoms, had been triggered by episodes at work until 21 April 2009. It is noted that the documents indicate that the claimant has not had any previous episodes of depression provided in the history. He does note the claimant had previously been put on antidepressants after her father’s death but there is no date in regard to this.
8.Patient Medical History T10 outlines medical history from Dr Richard Jang. There is an entry on 18 December 2008 which makes reference to depressive symptoms. Stress is identified including financial worries and a relationship issue. It is noted that in October 2007 there is a prescription for Xanax and in July 2007, there is a prescription for Valium. There is documentation on 1 July of anxiety. It states specifically there is a history of an anxiety disorder. It is noted these notes don’t seem to indicate that there is clearly a pre-existing history of psychiatric problems.
9.Dr Nick Jetnikoff, 2 July 2010, again notes claim for compensation from anxiety from April 2009. It is noted that in terms of past psychiatric history, there is no documentation of any pre-existing psychiatric history. It appears therefore that Dr Jetnikoff was not aware of the pre-existing psychiatric history. Notes then document psychiatric treatment in 2009/2010, notes the claimant was seeing a psychologist, Dr Wayne Scott and psychiatrist Dr Strube.
10.    Report Dr Chris Alroe, 25 May 2011, makes a diagnosis of major depression       with agoraphobia and panic attacks and makes reference on 11 August       2012 to a possible diagnosis of PTSD, makes reference to a court case.
11.    Report Dr Gundabawady, 11 February 2013. A past psychiatric history     indicates the claimant saw a psychiatrist or psychologist in 2007 when she        separated from her husband. She admits she may have been on medications during this period. Dr Gundabawady had reviewed the past medical history    and noted the prescription of psychiatric medications in 2007 preceding the         current work-related issues.
12.In summarising the case, Dr Gundabawady notes that the claimant noted harassment in 2008 and 2009. There was evidence that during this period, that there were other stressors including marital breakup, stalking behaviours to an ex-partner, financial difficulties. He documents that there were performance issues within the workplace. He notes that there was a pre-existing diagnosis of panic disorder in 2007. He considered the claimant is not incapacitated from the incidents in 2008 and 2009, that these incidents do not stop the claimant returning to work. He notes that there was relapse of her symptoms in 2012 when she was going through court proceedings, which were unrelated to the issues of 2008 and 2009;
13.He considers that the panic disorder is a pre-existing condition. He is of the opinion that the condition she was presenting with was not being contributed to by the index incidents of 2008 and 2009. He notes the claimant is not keen to return to paid employment but he does not feel there are any work restrictions.
14.Correspondence Dr Alroe, 4 April 2013; this is correspondence from Dr Alroe, General Practitioner for the claimant, specifically he disputes the report by Dr Gundabawady, specifically he disputes the statement the current condition was not contributed to by the incidents of 2008 and 2009.
15.    Further report by Dr Chris Alroe, 19 February 2014, is reviewed. Outlines           treatment she has received from him and progress of symptoms.
16.Report Dr Caniato, 25 March 2014, it is noted this is my previous report. At the time I made a diagnosis of major depressive disorder and panic disorder. It is noted in past psychiatric history, the claimant had indicated that she had seen a psychologist after a marital separation. She indicated that she had never been put on psychiatric medications and did not have a psychiatric diagnosis. Based on this information, I provided my report. It is noted in that report that I did not have access to a number of important pieces of collateral information.
17. A progress report from Rehabilitation Management on 31 March 2017. It is noted that there is a date of injury of 18 December 2015. Note states at the time, the claimant is employed at Zoohealth as a receptionist, indicates the claimant has been shopping regularly, completing sessions at the gym and participating in a roller derby team.
She is engaged with BMX training club as a volunteer and attends weekly with her children. It also indicates the claimant has applied for a fulltime position at Australia Post.
I have reviewed these rehabilitation reports in detail, and they seem to indicate a high level of functioning. There is a date of a report on 17 October 2016, by Sarah Hanranham. It documents that the claimant is going to the gym three times a week and is doing a dive course, is engaged in shooting competitions on a national, regional and rural level on a fortnightly basis, socialises on a weekly to fortnightly basis and spends a time with children on a fortnightly basis. It does not clarify what sort of shooting (i.e. pistol, or otherwise) or whether she has a shooters licence.
Notes document that the claimant is independent in self-care and home maintenance and is able to look after her children independently. It is noted other than the claimant being certified unfit for work by her doctor, there is no other documented symptoms or impairment. It is noted that I was not aware the claimant was involved these activities.
It is noted that the entries by the occupational therapist during this period do not demonstrate impairment of any significant nature. These reports are not consistent with the symptoms described to me by the claimant. The rehabilitation notes are not consistent with reports provided by the treating general practitioner.
18.    In Section 238 multiple entries by the Rehabilitation and Claims Manager        are reviewed.
19.Report Dr Saddichha Sahoo on 21 September 2018 noted this report as previously known to myself. It is noted again that under Past Psychiatric History, Dr Sahoo documents the claimant may have had an Adjustment Disorder following marital separation but was never put on any medications and did not receive a diagnosis. He therefore considers that the main cause of the major depressive disorder and panic disorder are work related stressors.
20.Report Dr Caniato on 8 February 2019; provided in my report, it was once again noted that I was under the impression the claimant did not have a previous psychiatric history. I also did not have access to the occupational therapy reports or medical notes. The history as described by the claimant to me paints a very different picture to that which I obtained from reviewing the notes. The symptoms she describes are markedly different and more severe than those that are documented in the occupational therapy assessments of 2015 and 2016.
21.This indicates to me either there has been a marked deterioration in the symptoms completely unrelated to the work issues of 2009 or that the claimant was not accurately describing or presenting her symptoms when she was assessed by myself.
22.    I was not able to find any plausible explanation in the notes as to why the work-     related injury would have deteriorated markedly and dramatically.
Past Medical History
17. From Healthlink Family Medical Centre gives a brief summary of medical condition as treated by that Centre. There are several entries for psychological symptoms following the injury. There is now reference to psychiatric prescriptions.
In May 2017 there is a prescription for Neulactil which is an antipsychotic. There is a reference 22 March 2017 that the claimant being described Neulactil and there is a diagnosis of depression. In January 2017 there is a reference to anxiety and a prescription of Aurorix and Neulactil. On 10 November 2016 there is a reference to anxiety and a prescription for Aurorix. On 5 October 2016 there is a reference to a prescription for Aurorix and Neulactil. On 14 September 2016 there is a reference to a diagnosis of depression. There are further entries for a diagnosis of anxiety and depression in September 2016 and August 2016. On 29 April 2016 there is a reference to a prescription of Aurorix and Neulactil. On 3 February 2016 there is a reference to a diagnosis of anxiety and a prescription of Neulactil.
On 15 January 2016 there is a reference to anxiety. There is an entry on 21 December 2015 makes reference to stress following a marital separation, there is reference to problems with Comcare and a recommendation to resume medications. In December 2015 there is a reference to anxiety and Neulactil Aurorix are prescribed. There is a reference to being separated from her partner. In October 2015 there is a reference to individual psychiatric counselling and a prescription of Alopam.
It is noted that there are multiple entries indicating that the claimant has had treatment primarily by Dr Alroe; the most recent entry is on 30 July 2019. He States that generally has done well but needs ongoing certification.
Entry on 11 November 2008 makes reference to anxiety issues. Refers to the stressors of holding down two jobs and a separation from her husband six months earlier. Specifically stated that the patient’s counselled but does not appear depressed at that stage. There is a reference to a past history of being on Xanax and having psychological counselling for a year.
There is a further entry for anxiety on 11 November 2008. On 23 July 2008 there is a reference to depression. There is an entry 3 October 2007 it makes reference to relationship stressors, prescribed authority script of Xanax for panic disorder. An entry on 27 June 2007 where the claimant is prescribed Stemetil. It is noted that I have no medical notes prior to this. The notes do indicate that the claimant’s psychiatric and psychological problems predated any work-related allegations or stressors.
18.Patient Health Summary from Strive Health and Physiotherapy is reviewed, makes reference to depression and anxiety in 2008. Notes the claimant was previously seeing Dr Malpas at Strive Health Centre.
19.Report Dr Karunakaran 27 May 2011. He notes inconsistencies in her history and notes specifically that “[The Applicant] presented with a strange story”. He notes the claimant denied any pre-existing psychiatric history. He does note she denies any history of abuse or exposure to trauma, he suspects that she grew up in a non-nurturing or perhaps dysfunctional environment. He considers that she appeared neatly attired and well groomed. It is noted that Dr Karunakaran made no diagnosis.
He considers there is no disorder though he deferred diagnosis on Axis II which is personality. He notes “As you can see [the Applicant’s] history was rather curious, although she tried to make out, she is very unwell, there did not appear to be any symptoms or signs of any recognisable mental illness. He then quotes her as saying “This WorkCover claim approved after a big battle and I am not going to give it up now that I am nine weeks pregnant”. He notes specifically that “[The Applicant] also threatened that she will not tolerate disclosure of this information under WorkCover”. He notes therefore in my opinion “this woman does not have any mental illness. The complaints are mainly out of a need to remain under a WorkCover Scheme”.
It is noted that this assessment has not previously been provided to me despite it being done in June 2011.
Dr Catiano’s findings in his report dated 13 February 2020 are outlined below.[32]
Evidence of Ms Barbara Anderson
[32] See paragraphs 37-40 below.
Ms Barbara Anderson, clinical psychologist provided a report dated 9 April 2020. Ms Anderson outlined that the scope and terms of reference of her repot was to provide the Applicant with further information about her psychological condition and the impacts for her and on her. Ms Anderson stated that her report did not form a formal assessment for psychiatric impairment as a specialist workplace assessment.[33]
[33] Exhibit 3, Agreed Tribunal Book, TB16, pages 388-395, Report of Barbara Anderson.
Relevantly, in the report dated 9 April 2020, Ms Anderson provided:[34]
[34]    Exhibit 3, Agreed Tribunal Book, TB16, pages 393-395, Report of Barbara Anderson.
Current Emotional State
[The Applicant’s] clinical profile is marked by significant elevations in several scales and severe impairment in functioning. She is severely depressed, discouraged and withdrawn. She is plagued by thoughts of worthlessness, hopelessness and personal failure. Her functioning demonstrates a loss of interest in normal activities, loss of sense of pleasure, disturbances in sleep patterns, decreased energy and sexual interest, loss of appetite and psychomotor slowing.
[The Applicant’s] assessment indicates severe specific fears or anxiety surrounding certain situations. Although there are efforts to control anxiety these efforts have little effect on the prevention of anxiety intruding onto her experience and functioning. She is hypervigilant to avoid contact with her feared situation.
…..
Diagnosis and Rationale
[The Applicant’s] psychometric testing and assessment indicate support for her primary diagnosis of Major Depressive Disorder and Panic Disorder with Agoraphobia. She also presents with symptoms of Somatization Disorder.    [The Applicant’s] assessment provides evidence of the additional diagnosis of Post Traumatic Disorder which accounts for the longstanding nature of symptoms and impacts on her [the Applicant’s] functioning in response to her perceptions and experiences of threat in experiencing safety in the workplace and other settings, invalidations of her claims, continuing reviews and assessments.
…..
Summary and Conclusion
Within the scope of this report it is my opinion that [the Applicant’s] assessment and supporting documentation indicate Miss Bell experiences significant clinical symptomology and impaired functioning as a result of the harassment and the impact of her attempts to have her experiences validated and acknowledged. Her previous assessments attest to [the Applicant’s] positive work history and functioning prior to the event. As indicated in [the Applicant’s] testing she has a range of symptoms that meet criteria for psychiatric diagnoses. Underpinning [the Applicant’s] presentation is the experience with perceived threat in the actions of those around her both during and since the event. [The Applicant] has undertaken a range of treatments for her condition. There is no indication that [the Applicant] is unwilling or unmotivated to participate in treatment. She is likely to experience ongoing distress and symptoms within situations that act as triggers or reminders of threat in the context of harassment or invalidation.
I would like it noted that my observations and comments are based on information available at the time of compiling this report. While all reasonable care has been taken to ensure the session was thorough and that the understanding is accurate, I reserve the right to review the opinions expressed should additional, relevant information be made available.    ……

At Hearing, Ms Anderson appeared by Microsoft Teams and gave evidence under affirmation. In response to questions asked by the Applicant, Ms Anderson:[35]
·Said, psychologists use a range of clinical interview and psychometric testing to answer clinical questions. It is a useful way of working through what is presenting and what the person is reporting.
·When asked about her reference to the Applicant satisfying the criteria for PTSD whether as this was also noted in 2009 it would help explain why medication had a limited effect and why the Applicant has not seen a significant improvement in receiving that pharmaceutical treatment, or significant difference in not being on anti-depressants, said she was not sure how to respond to the question and provided details in relation to how PTSD is diagnosed.
·When told it has been suggested by a different clinician that the level of harassment the Applicant had endured at work in 2008 was not that bad and that whatever trauma that could have ensued or resulted from those incidents would not be such that it would continue for this length of time, said clinically we would assess people’s experience of trauma and how they perceived the trauma. It is an individual appraisal according to what they felt at the time, what levels of support they had at the time, whether their experiences were validated at the time, whether they had nay internal or external resources to deal with what was happening at the time and also the persons background and understanding and resources in how to deal with that.
[35] Transcript, pages 43-49.
On cross-examination, Ms Anderson:[36]
[36]    Transcript, pages 49-56.
·Said that she wanted to make it clear in her report that she does not have the training or accreditation to make formal occupational specialist workplace assessments.
·Said her expertise sits in being a clinician and a clinical psychologist and her capacity is to assess for psychopathology and areas of vulnerability.
·Confirmed that the list of documents outlined on page 2 of her report were the only documents that she was provided with prior to her having prepared the report.
·Confirmed that she had not been provided with the Applicant’s clinical records from her GP practice, Healthlink Family Medical Centre or the Code of Conduct Investigation Report or the report of Dr Satish Karunakaran, a neuropsychiatrist dated 27 May 2011.
·Confirmed that she had not been provided with Dr Caniato’s report dated   13 February 2020 until the night before, she had not read it prior to providing her report and it does not form any part of her assessment.
·Confirmed that she had not been provided with Dr Caniato’s report dated   26 March 2020.
·Confirmed that she had not seen the Applicant prior to the appointment and follow up telephone interview in March 2020.
·When asked to explain the role of a psychologist in terms of pharmacological treatment and whether they have a capacity to prescribe medication, said no it was a psychiatrist or general practitioner’s role to prescribe. A psychologist’s role is to work through a range of cognitive, behavioural and therapeutical frameworks to identify and develop strategies.
·When asked if it is a psychologists role to engage in any kind of analysis of the appropriateness of the pharmacological treatment that is being administered or to suggest changes to it or make recommendations about it, said that is the role of a medical practitioner, what they would do in a therapeutic framework is assess the efficacy of whether the medication is working for them, but they would always generate that back to the medical practitioner and encourage the person to engage with their medical practitioner to identify any side-effects that they identify. It is quiet common practice for psychologists to work in conjunction with a person who is a prescriber and who has and has either referred the person to us or is working as an adjunct, or we are working together on a more complex disorder.
·When asked whether she had undertaken a complex analysis of the pharmacological treatment and made recommendations to the Applicant’s general practitioner, said no, not at all.
·Confirmed that on page 4 of her report under the heading ‘History of Presenting Problems’ she had recorded that the Applicant reported no history of psychiatric illness.
·When asked if she had directly asked the Applicant about this, said that she did read the reports and then had a follow up phone call with the Applicant in which she asked her some questions about her background. She asked the Applicant questions about how she grew up, losing her parents early and how she met with that, what her work history was, but she is not sure whether she asked the Applicant specifically whether she had a history of psychiatric illness. Confirmed however that is the view she formed.
·When asked if the contents of her report under the heading ‘Current Emotional State’ came from the Applicant’s self-reporting, said no. It came from the Applicant’s results of the psychometric testing which was an assessment that was based on her self-reporting but generated around the specific questions. The Applicant was questioned in the form of a psychometric scale, which are specific questions about functioning, generating a level of understanding of that based on her response style.
·Said the scope of her report was to look at the clinical symptomology that was presenting in the framework of the assessment that she undertook at the time with the specific tools, she did not undertake a task of analysing the documentation provided and compare it to what the Applicant reported or what may have been revealed by the clinical testing.
·Said there was a concordance with the diagnosis of depressive episode and the anxiety disorder with agoraphobia and panic disorder. She added the post-traumatic symptoms which were also evident across the scale and she was aware that a previous psychologist had also indicated that.
·When asked if she picked up that the Applicant had suffered from a previous psychological ailment in 2007, prior to the work injury, said she did not have any evidence of that in the information she received.
·When asked if that fact would have been relevant for her to know in forming her opinion because it may be that if somebody suffers from a pre-existing psychiatric history, then that may inform the trajectory of whatever they are currently suffering from, and it may also be relevant to the issue of causation, said Yes and No. Depends on what that was. In terms of it affecting her clinical judgement she would need to know what the diagnosis was. It would be a relevant fact and she would have taken it into account if there had been a diagnosis and she would have wanted to understand that because it is relevant and part of our clinical process to do that.
·Confirmed it would have been relevant information to know that Dr Caniato changed his opinion from that in the earlier reports that she was provided with and she would have taken it into account.
·When asked what she had meant in her repot about the impacts of the Applicant’s attempts to have her experiences validated and acknowledged as she was not provided with the Code of Conduct report and also asked whether she was aware that four of the Applicant’s complaints were substantiated in 2009, said she was aware that, that happened but from the reporting to her it took some time for that to happen and that the Applicant was originally told that they were not substantiated. Also, the Applicant reported that she did not make a formal complaint but her manager was aware that she was quite distressed and she had asked to be moved, she was not moved at the time and the harassment was ongoing.
·Said it would have been good if she was doing a clinical assessment of the Applicant to have spent time getting a time line in place.
·Confirmed that there was no timeline in her report of what happened since 2010 right up until the present day.
·When asked if that means that she did not delve deeply into what else has happened in the Applicant’s life since 2010 up to the current date, said the Applicant in her initial interview provided information as to the number of work places and rehabilitation processes she had been involved in. The Applicant explained or reported to her that there were triggering events and a level of decomposition in her mental health over that period of time due to particular events. They did talk about those things but they are not documented in her report.
·Confirmed that her report did not address the non-work related stressors that the Applicant experienced (such as her separation from her children’s father in 2014 and the protracted period of where the custody arrangements for her children were not resolved – being up to 2017).
·When put to her that nowhere in her report did she conduct any kind of weighing exercise in terms of all the things that have happened since the incident at work and undertaking an evaluation or an assessment or weighed up the level of contribution of each of these things, said no she did not which is within the scope of her assessment, her role was to understand the clinical symptomology at this time. She did not conduct a weighing.
Evidence of Dr Riccardo Caniato
In addition to the reports dated 25 March 2014[37] and 8 February 2019,[38] having been provided with further material[39] Dr Caniato also provided two supplementary reports dated 13 February 2020[40] and 26 March 2020.[41]
[37]    Exhibit 1, T Documents, T33, pages 390-402, Report of Dr Riccardo Caniato.
[38]    Exhibit 1, T Documents, T43, pages 447-460, Report of Dr Riccardo Caniato.
[39]    Exhibit 3, Agreed Tribunal Book, TB18, pages 405-416, Briefing Letter from AGS to Dr Riccardo Caniato
[40]    Exhibit 3, Agreed Tribunal Book, TB19, pages 417-434, Supplementary Report of Dr Riccardo Caniato
[41]    Exhibit 3, Agreed Tribunal Book, TB21, pages 438-439, Further Supplementary Report of Dr Riccardo      Caniato
In his supplementary report dated 13 February 2020, Dr Caniato provided a summary of the new material provided to him since his previous report of 8 February 2019 as outlined above at paragraph 30.[42] As a result of the new material, Dr Caniato provided:[43]
[42] Exhibit 3, Agreed Tribunal Book, TB19, pages 417-434, Supplementary Report of Dr Riccardo Caniato.
[43] Exhibit 3, Agreed Tribunal Book, TB19, pages 425-427, Supplementary Report of Dr Riccardo Caniato.
I note that I have been provided with significant and important information not previously known to me. The information significantly alters the two opinions previously expressed by myself. Based on this information, I conclude the following.
1.There is a documented history of psychiatric or psychiatric problems predating the current work-related issues. It is noted the history dates only to 2007; I have no notes prior to this. There is certainly prior to this an indication that there may have been some issues preceding this but without access to those medical notes I cannot conclude. I conclude that her major depressive disorder and panic disorder are a pre-existing condition.
2.I conclude there are multiple other significant and severe stressors documented including relationship stressors, legal stressors and financial stressors. These could all be seen to impact on her current symptoms.
3.I conclude that there are significant inconsistencies in the claimant’s ongoing and severe symptomatology which does not appear to be explained by the injury in 2008.
4.The work-related issues described by the claimant were of a minor nature, which one would expect would resolve after ceasing contact with the co-worker involved. One would reasonably expect that symptoms attributed to the issues in 2008 or 2009 would reasonably resolve. The work-related stressor caused an exacerbation of her pre-existing major depression and generalised anxiety. This exacerbation has fully resolved.
5.There were significant inconsistencies between the claimant’s subjective description of symptoms and collateral and objective markers including information provided from an occupational therapist and the report from a psychiatrist that has previously not been provided to me. I therefore consider the symptoms described by the claimant either inconsistent and exaggerated or not attributed to the work-related issues.
6.I now conclude that there is no ongoing work-related injury. Any ongoing symptoms of depression or anxiety are unrelated. I cannot ascertain the severity of any current depressive or anxiety symptoms as I have not reviewed her for over twelve months.
In my previous report I concluded that the claimant’s current symptoms were severe but would not completely explain about the work-related injury. My opinion was that perhaps half of her symptomatology was still related to work while the other half of the symptomatology would be related to other non-work-related factors.
Based on the new information available to me I change this opinion. I now find myself more in agreement with Dr Gundabawady and Dr Karunakaran. I consider based on all the information provided, I do not believe the claimant’s current symptoms are attributed to the incidents in 2008 or 2009.
I consider that either the claimant has no significant psychiatric pathology as is the opinion of Dr Karunakaran in 2012 and that there is no psychiatric or psychological reason that she could not return to work. This would be in keeping with his opinion and the evidence from the occupational therapy report in regard to her functioning.
I conclude that if the claimant does now demonstrate psychiatric symptomatology of a severity that impairs her return to work, that it is unrelated to the index work-related incident in 2009. I now consider that other factors are most relevant.
I therefore conclude that her major depressive disorder and panic disorder is either in remission or any contribution of that disorder from her work-related stressors has ceased.
Information provided raises the possibility that the claimant may be exaggerating or misrepresenting her symptomatology. Because of the inconsistencies I cannot exclude the possibility of malingering or deliberate misrepresentation of symptoms for financial gain. If malingering is suspected specific further collateral information and psychometric assessments to assess falsification could be considered. At the current time I neither confirm or refute the possibility of deliberate falsification, exaggeration or malingering.
Dr Caniato subsequently provided a diagnosis of pre-existing major depressive disorder and panic disorder.[44]
[44] Exhibit 3, Agreed Tribunal Book, TB19, page 427, Supplementary Report of Dr Riccardo Caniato.
In relation to specific questions, in the supplementary report of 13 February 2020, Dr Caniato provided the following responses:[45]
[45]    Exhibit 3, Agreed Tribunal Book, TB19, pages 428-429, Supplementary Report of Dr Riccardo Caniato
1.Does the enclosed material, and in particular the summonsed material from Healthlink Family Medical Centre, cause you to later your earlier opinion as expressed in your report dated 8 February 2019? If so, how and why?
Yes.
The enclosed causes me to alter my opinion. It is noted when I provided my opinion, I did not have access to the information provided. I had access to a number of psychiatric reports. Importantly I did not have access to the medical notes which confirm psychiatric illness preceding the work-related stressors. I did not have access to a report by Dr Karunakaran. I did not have access to any of the occupational therapy reports; the evidence markedly changes the opinion previously held by myself.
I now conclude that the claimant had an exacerbation of her pre-existing mental health problems due to her work stressors. The exacerbation has resolved. Her current symptoms are unrelated to her work injury.
2.       Do you still hold the opinion that the [Applicant] is currently suffering from ‘panic disorder with agoraphobia and major depressive disorder’?
I cannot definitely conclude that the claimant is still suffering from panic disorder with agoraphobia or major depressive disorder as I have not seen her for twelve months.
I conclude that if the claimant is still suffering from symptoms of these disorders, then these symptoms unrelated to the index work injury which has fully resolved.
…….
5.What are the current and/or ongoing contributing factors identified as the significant contributing factor(s) to [the Applicant’s] current condition?
Upon viewing the notes, I am now of the opinion that the work-related issue of 2008/2009 is not materially contributing to her current symptoms, I base this on review of the medical notes, the opinions of the Occupational Therapists and the previous assessment by Dr Karunakaran. I consider that she developed an exacerbation of her major depressive disorder and panic disorder due to work stressors. The exacerbation has resolved.
I therefore consider that other factors are the major factors contributing to her current issues or condition. The most likely factors are likely to be litigation or legal related; other psychosocial factors including relationship stressors, financial stressors may still be relevant but I do not have more recent information on this.
6.Do you still hold the opinion that employment factors are responsible for 50% of [the Applicant’s] symptoms and non-employment related factors are responsible for the other 50%?
No. I am now of the opinion that employment no longer represents a factor causing or contributing to her current symptoms or issues. I consider that employment has ceased to be a relevant factor, probably some time prior to 2011. I consider the exacerbation of her pre-existing mental health issues resolved some time before the assessment by Dr Karunakaran in 2011.
…..
In the supplementary report dated 13 February 2020, Dr Caniato expressed the opinion there is no impairment and that any current impairment suffered by the Applicant would be attributed to an unrelated or non-work-related conditions.[46] As such Dr Caniato did not provide a permanent impairment score in relation to the Applicant.[47]
[46] Exhibit 3, Agreed Tribunal Book, TB19, pages 425-431, Supplementary Report of Dr Riccardo Caniato.
[47] Exhibit 3, Agreed Tribunal Book, TB19, pages 431-433, Supplementary Report of Dr Riccardo Caniato.
The supplementary report provided by Dr Caniato dated 26 March 2020, dealt with the issue where Dr Caniato and Dr Gundabawady declined to treat the Applicant in 2010 on the basis of a conflict of interest.[48] Dr Caniato provided that he could not recall the reason for the conflict of interest however relevantly outlined:[49]
In this situation unfortunately I have no recollection of particular reasons. I have no recollection whether it was myself or Dr Gundabawady or the precise reasons why we both considered that Ms Bell was not suitable for our services.
Since both myself and Dr Gundabawady both thought there was a conflict of interest, that would indicate that it may have been a staff member who had some direct or indirect relationship with Ms Bell or perhaps with the legal case she is involved in. Both those staff members are no longer with us and that practice has since closed.
For myself, I do not recall of having had any previous involvement with Ms Bell or of having had a direct conflict of interests.
[48] Exhibit 3, Agreed Tribunal Book, TB21, pages 438-439, Supplementary Report of Dr Riccardo Caniato
[49] Exhibit 3, Agreed Tribunal Book, TB21, page 439, Supplementary Report of Dr Riccardo Caniato

At the Hearing, Dr Caniato gave evidence by Microsoft Teams, under affirmation. In response to questions asked by the Respondent, Dr Caniato:[50]
[50]    Transcript, pages 58-61.
·Confirmed that that he holds a Bachelor of Medicine and Bachelor of Surgery and is a Fellow of the Royal College of Psychiatrists.
·Confirmed that he first examined the Applicant on 10 March 2014 after which he provided a report dated 25 March 2014.
·Confirmed that he re-examined the Applicant on 22 January 2019 after which he provided a report dated 8 February 2019.
·Confirmed he had been sent a request for a supplementary report which enclosed material which he had not previously been provided with and that he provided a supplementary report dated 13 February 2020.
·Confirmed that in his report dated 13 February 2020 that he had reached conclusions that were very different to those he had reached in his previous reports.
·Said: “The change of opinion was based on being provided with significant new information that had not been provided to me, and was not made available in the previous report. Specifically, a number of previous reports, occupational therapy reports, a previous psychiatric report and previous medical notes that were able to provide me with information that was either not known to me previously or which had been incorrectly stated to me previous to that.”[51]
·Confirmed that the Tribunal is to understand that his report of 13 February 2020 is intended to replace the opinions he expressed in his earlier reports.
·When asked whether there were any amendments he wanted to make to his report of 13 February 2020, said there was an incorrect heading on the second page of his report. Under the report by Dr Zemaitis 2009 the second paragraph should be a separate heading stating ‘Chronology of events’ rather than being a continuation of Dr Zemaitis.
·Said, he got the chronology of events from the T-documents provided to him by AGS.
·Confirmed that the report of 13 February 2020 accurately reflects the opinions truly held by him.
·Confirmed he was asked to provide a further report in relation to a letter he wrote dated 29 June 2010. He provided a report dated 26 March 2020 explaining the circumstances around the 29 June 2010 letter.
·When asked whether if someone who is concerned with their weight and needs some medical assistance to address it, if the only course to be taken is to cease psychiatric medications in order to facilitate weight loss drugs, said no it is not the only course, there are a number of courses that could be taken.
·When asked what alternative courses he would suggest could be available, said a patients psychiatric medication needs would be a primary issue and probably the main one, then any weight losing options around that would be choosing options that are safest and most appropriate depending on the primary diagnosis. Usual options would be to begin with dietary options, sending the person to a dietician or exercise physiologist. Next level might be adding certain types of medication depending on what blood test show. Stimulants such as Duromine would generally be considered the third line, and there are risks associated with it.
·When asked if knowing the Applicant had not been on medication since 2019 to address any psychological ailment she may suffer, caused him to change any of the opinions he expressed in his 13 February 2020 report, said not without having more detail. The only change would be that he would now know the Applicant was not on medication, which presumably either means that she is well, or she is unwell and not taking medication.
·When asked if the Applicant was unwell and is not taking medication whether it would be appropriate to explore what medications she could take while simultaneously taking Duromine, said “Absolutely, that could be one option. And equally non-medication options, even for her psychological conditions, may be acceptable as well. Cognitive Behavioural Therapy – medication options does not always have to be first line, and it may be acceptable to explore psychological treatment for either the weight loss or the mental health problems.”[52]
[51]    Transcript, page 59.
[52]    Transcript, page 61.
In relation to questions asked by the Applicant, Dr Caniato:[53]
·When asked whether the report of Dr Satish [Karunakaran] was a critical piece of evidence that led to him changing his opinion in his 2020 report, said he would say Dr Satish’s report was significant but not critical. Certainly, the other information is the occupational therapy collateral, the collateral from Dr Zemaitis. He agreed that Dr Satish’s report is quite a significant factor, but would not say it was critical.
·When asked what were the critical documents that led to his change of position, said there is no single document that is critical, in the sense that a document which by itself would cause him to have made that change without the other information. It is usually the sum total of documents. Dr Satish’s report, the occupational therapy report and the review of the clinical notes that document a pre-existing history, some of the other work notes and all the notes by Dr Alroe. The totality of that was very, very different than the information available to him when he had previously assessed the Applicant.
[53] Transcript, pages 61-66.
In response to questions asked by the Tribunal, Dr Caniato:[54]
·Confirmed that prior to 2014 he had not seen the Applicant.
·Confirmed that the overall sum of his supplementary report dated 13 February 2020 is based on the additional information that he was provided with when he was asked to write the report, it was the totality of that information that led to his change of opinion.
·When asked if before seeing all of the additional information it was not clear that the Applicant had any previous mental health issues or concerns prior to the work-related incident, that was correct. Said:
So, one of the core aspects in an injury, establishing the date of onset. If the date of onset is at the time of the alleged event, if one establishes, in fact, that there were symptoms or illness active before that date, then that significantly and markedly changes. In this case, that was a case – the collateral information that had not been provided to me in fact pre-dated symptoms and illness to prior to the dates of the alleged work injury.[55]
·Confirmed that his view was that what occurred was an aggravation of the previous condition and that exacerbation has now resolved.
CONTENTIONS
[54] Transcript, pages 65-66.
[55] Transcript, page 66.
Applicant’s Contentions
The Applicant provided a Statement of Facts, Issues and Contentions, dated 4 August 2020 setting out her contentions in relation to her matter.[56]
[56] Exhibit 3, Agreed Tribunal Book, TB1, pages 1-22, Applicant’s Statement of Facts, Issues and Contentions.
The Applicant contended that the only matter before the Tribunal relates to the assessment of permanent impairment pursuant to sections 24 and 27 of the SRC Act. The Applicant submitted that the Respondent erred in stating that she must first prove that a general ongoing liability for her condition continues to exist in relation to her permanent impairment claim.[57] The Applicant sought to rely on the decisions made in Australian Postal Corporation v Oudyn [2003] FCA 318 (10 April 2003), Roxas and Comcare [2012] AATA 747 (30 October 2012), Lees v Comcare [1999] FCA 753 (7 June 1999) and Weatherburn and Comcare (Compensation) [2019] AATA 4196 (14 October 2019).[58]
[57] Exhibit 3, Agreed Tribunal Book, TB1, page 2, paragraphs 5-7, Applicant’s Statement of Facts, Issues and Contentions Paragraphs.
[58] Exhibit 3, Agreed Tribunal Book, TB1, pages 3-5, paragraphs 9-13, Applicant’s Statement of Facts, Issues and Contentions.
The Applicant contended that the Respondent failed to have due regard to section 24(2) of the SRC Act in making a determination to deny the claim for permanent impairment because the duration of the injury is approaching 12 years, with a date of injury being 18 December 2008. She had undertaken all reasonable rehabilitative treatment including extensive pharmacological treatment and extensive psychological treatment.[59]
[59] Exhibit 3, Agreed Tribunal Book, TB1, pages 9-11, paragraphs 25-26, Applicant’s Statement of Facts, Issues and Contentions.
At Hearing the Applicant contended that:[60]
[60] Transcript, pages 81-104.
·She saw Dr Caniato in 2019 and the contentions that he was not aware of her personal life stressors could not possibly be upheld in just a very straightforward reading of his report at T43. He was aware of her working at her son’s school and of recent stressors in 2015 which would be the custody issues.
·The idea that Ms Anderson was not aware of the 2019 report of Dr Caniato cannot be upheld based on the documents.
·She considers the 2019 report of Dr Caniato is crucial and that it indicates he was aware of her personal stressors but still found that the work incident was the primary major cause of her diagnosis.
·Dr Caniato was over burdened with a schedule of questions in relation to the 2019 report which were not focused on permanent impairment.
·There was not an attempt to hide the report of Dr Satish, it was in the report of Dr Alroe.
·She had never hidden anything. Dr Caniato not having access to documents was not her doing.
·Her position on the most recent reports of Dr Caniato, the 2020 reports is that they are without the benefit of being able to sit with her and hash it out again. Up until 2020 the weight of the medical evidence even in Dr Caniato’s view in 2019 quiet clearly supported an ongoing claim.
·She would not benefit from further treatment. She is using the coping mechanisms that she has developed. She said she is not seeking out work and that traditionally is the major stressor.
·She had been on anti-depressants for some time and felt they never made a great impact on her level of functioning.
Respondent’s Contentions
The Respondent contended that the available evidence demonstrates, on the balance of probabilities, that:[61]
(a)the Applicant no longer suffers from the accepted injury and, therefore she is not entitled to compensation under sections 24 and 27 of the SRC Act; and
(b)alternatively, any impairment arising from the accepted injury is not permanent and so there is no liability to pay compensation under sections 24 and 27 of the SRC Act.
[61] Respondent’s Outline of Submissions handed up at Hearing, page 1, paragraph 2.
The Respondent submitted that the language of sections 24 and 27 of the SRC Act make it apparent that the ongoing need for there to be “an injury” is a central requirement, and as such for the Tribunal to be satisfied that the Applicant is entitled to permanent impairment compensation it must be satisfied that the Applicant continues to suffer from the accepted injury.[62]
[62] Respondent’s Outline of Submissions handed up at Hearing, pages 4-6, paragraphs 16-20.
The Respondent submitted that the Applicant’s accepted injury is appropriately considered a disease rather than an injury other than a disease in circumstances where, it is a psychiatric ailment and Dr Caniato’s opinion is an aggravation of an underlying pre-existing condition.[63] The Respondent contended that Dr Caniato’s opinion accords with the documentary records and sets out relevant references to the evidence in its written outline of submission.[64]
[63] Transcript, page 72.
[64] Respondent’s Outline of Submissions handed up at Hearing, pages 6-8, paragraphs 22-25.
The Respondent accepts that at the time of the accepted injury in 2009 the Applicant’s psychological condition or ailment did satisfy the significant degree test and liability was properly accepted under section 14 of the SRC Act. However, contends that since then over a decade has past and other factors have crowded out the work-related factors such that it has diminished in contribution to now no longer meeting the significant degree threshold.[65]
[65] Transcript, page 72.
In a written Closing Statement,[66] handed up at Hearing, in relation to continuing contribution by employment to the Applicant’s condition, the Respondent provided:[67]
[66]    Note all footnoting found within quotes from the Respondent’s Outline of Submissions handed up at       Hearing have been omitted.
[67]    Respondent’s Outline of Submissions handed up at Hearing, pages 8-11, paragraphs 26-38.
Continuing contribution by employment
26.The Full Federal Court in Prain v Comcare [2017] FCAFC 143 at [87], confirmed that for the Applicant to continue to suffer an ‘injury’ for the purposes of any of the payment provisions of the SRC Act (ss 16, 19, 24, 27, 29), the causative threshold must continue to be met. The Applicant suffered her condition in 2008. At that time, the ‘significant degree’ test, applied. Therefore, for the Applicant to continue to suffer an ‘injury’ for the purposes of s 24 of the SRC Act, the Tribunal must be satisfied that the Applicant’s employment with the Commonwealth continues to contribute, to a significant degree to her current condition.
27.The Applicant disputes that this issue can be entertained by the Tribunal in her Statement of Facts, Issues and Contentions. In support of her contention, she mischaracterises this issue as being an attempt by Comcare to review the s 14 determination. She also relies on cases that pre-date Prain (Australian Postal Corporation v Oudyn [2003] FCA 318; Roxas and Comcare [2012] AATA 747 and Lees v Comcare [1999] FCA 753) and that are not directly relevant to the issue raised for consideration in this Application. The Applicant also relies on Weatherburn and Comcare (Compensation) [2019] AATA 4196, a no present liability case rather than a permanent impairment case, which did apply Prain and so is of no great assistance to her argument. In any event, none of the cases cited by the Applicant are capable of casting doubt on the Full Court’s decision in Prain.
28.According to Dr Caniato in his report of 8 February 2019, the Applicant’s employment with the Department remained to be the ‘primary major cause of the diagnosis’. However, in the same report, Dr Caniato recognised that the Applicant had experienced recent stressors and said that ‘it is difficult to tease out the effects of the recent stressors from the independent work condition.’ Specifically, Dr Caniato referred to those recent stressors as her social isolation, her marital break-up and issues at non-Commonwealth employment, all of which ‘seem independent’ from the Injury. He considered that these factors resulted in a relapse or exacerbation of her mental state. He foreshadowed that it may be possible to separate the effects of the Injury from the recent exacerbation.
29.    In his report of 13 February 2020, after he had reviewed all of the collateral documents, Dr Caniato stated:
The history as described by the claimant to me paints a very different picture to that which I obtained from reviewing the notes. The symptoms she describes are markedly different and more severe than those that are documented in the occupational therapy assessments of 2015 and 2016.
This indicates to me either there has been a marked deterioration in the symptoms completely unrelated to the work issues of 2009 or that the claimant was not accurately describing or presenting her symptoms when she was assessed by myself.
30.This led Dr Caniato to revise his opinion expressed in his earlier report and conclude that the work-related Injury was an exacerbation of a pre-existing disorder which was of a minor nature and which has ‘fully resolved.’ He stated that there ‘is no ongoing work-related injury. Any ongoing symptoms of depression or anxiety are unrelated. I cannot ascertain the severity of any current depressive or anxiety symptoms as I have not reviewed her for over twelve months.’ In any event, he concluded that the major depressive disorder and panic disorder were either in remission or any contribution of that disorder from her work-related stressors had ceased. He noted that possible perpetuating factors were litigation, relationship stressors and financial stressors.
31.Dr Caniato estimated that the Applicant’s employment with the Department ceased to be a relevant factor at some point prior to 2011. He referred to the exacerbation resolving at some point prior to the Applicant’s assessment by Dr Kuranakaran in 2011.
32.Dr Kuranakaran reported on 27 May 2011 that the Applicant presented with a ‘strange story’. He doubted whether the Applicant was unwell, despite her self-reporting. He questioned whether she was compliant with her prescribed medications and ultimately concluded that the Applicant did not suffer from a mental illness and considered that her reporting was driven by a need to continue to receive compensation.
33.Consistent with this view, it is clear from the contemporaneous history that when the Applicant became pregnant with her son in about 2011, she ceased taking anti-depressant medication and did not experience any worsening of her symptoms. It therefore does appear that there was a period of recovery and then a subsequent relapse of the condition.
34.Indeed, this is precisely what Dr Gundabawady opined. He referred to major depressive disorder being episodic in nature and referred to the Applicant having a history of improvement when she was pregnant and relapsed when she went through the Federal Circuit Court proceedings in 2012. This led him to conclude that the Applicant’s condition, in 2013, was no longer contributed to by her employment with the Department. Since then, according to Dr Gundabawady, the Applicant was motivated to remain incapacitated for work because she ‘is quite content with her current lifestyle and looking after her family and child.’ He considered that this and her resentment and feeling of injustice towards the Department were what were delaying her return to work.
35.    Also consistent with this, Dr Alroe opined on 19 February 2014 that the major         depression was ‘partially resolved but symptoms still emerge from time to time           even with partial set backs.’
36.It is clear from this evidence that the Injuries were in actual fact, work-related aggravations of the pre-existing major depressive disorder and panic disorder, which resolved probably by 2011 but certainly by 2013. To this end, in Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 at [57], the statutory scheme was described by Conti J (with whom Heerey and Dowsett JJ agreed) as allowing for:
…a progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen.
37.    This permits the Tribunal to make findings of fact that ‘effectively undercut the        necessary findings of fact made in the initial or original decision…to accept     liability’ (at Hannaford [59]).
38.Further, the evidence demonstrates that any further condition or symptoms experienced by the Applicant since this time were not significantly contributed to by her employment with the Department. Any more recent symptoms are the result of non-work related factors, as outlined below.
The Respondent contended that the Tribunal should prefer the opinion provided by Dr Caniato over that provided by Ms Anderson. In support of this contention, the Respondent provided:[68]
41.Accordingly, Dr Caniato’s opinion is well supported by the contemporaneous documentary record. He is also the only psychiatrist who has provided a recent opinion with the benefit of all of the available material. Ms Anderson is a psychologist, not a psychiatrist and the Applicant did not disclose her pre-existing history of psychological illness to her. Notably, Ms Anderson was not provided with Dr Caniato’s report dated 13 February 202082 and while she was provided with a select few documents by the Applicant, none of them allowed her to obtain a complete understanding of the documented history.
42.According to Ms Anderson the Applicant ‘experiences clinical symptomatology and impaired functioning as a result of the harassment and the impact of her attempts to have her experiences validated and acknowledged.’ However, this bare assertion is not well reasoned and lacks objective justification. Ms Anderson also doesn’t clearly comment on the ‘significant degree test’. Moreover, it became clear during cross-examination that Ms Anderson had not been provided with the summonsed documents from Healthink Family Medical Centre (which included the report of Dr Satish Kurakaran) and the report of Dr Caniato dated 19 February 2020. She was therefore unable to discover for herself the extent of the pre-existing history, non-work related stressors and level of functioning in the decade following the work-related incident. She relied on the Applicant’s self-reporting and the results of psychometric testing which were based on the Applicant’s self-reporting. When asked whether she had undertaken an analysis of the documents she had been provided with and compared them to the history reported by the Applicant, Ms Anderson agreed that that was not a task that she had undertaken. When asked whether she had conducted any kind of exercise to weigh what has happened in the Applicant’s life since resigning from the Department in 2010 with the work incident to assess the level to which each factor was contributing to her condition, Ms Anderson agreed that she had not performed that task and said that it was ‘not within her scope’.
43.For those reasons, Dr Caniato’s opinion is most reliable and should be preferred by the Tribunal. It follows that the Tribunal ought to find that the Applicant no longer suffers from an Injury for the purposes of the SRC Act and, accordingly, she is not entitled to compensation under ss 24 and 27.
[68] Respondent’s Outline of Submissions handed up at Hearing, pages 12-13, paragraphs 41-43.

The Respondent contended that any issues raised in relation to Dr Caniato having a potential conflict of interest had been explained by Dr Caniato. The Respondent submitted:[69]
47.As there is no evidence, either on Dr Caniato’s recollection or the Applicant’s that she had previously seen Dr Caniato, the ‘conflict of interest’ is highly unlikely to be direct. Without there being any evidence of an actual conflict, the Tribunal should not give less weight to Dr Caniato’s opinion, particularly where the Applicant has not provided her own report from a psychiatrist.
[69] Respondent’s Outline of Submissions handed up at Hearing, page 14, paragraph 47.
The Respondent provided further submissions in relation to the issue of assessment of permanent impairment,[70] however given the Tribunal’s decision outlined below there is no need for those contentions to be reproduced here.
[70] Respondent’s Outline of Submissions handed up at Hearing, pages 17-18, paragraphs 62-66.
The Respondent contended that the Tribunal ought to find that the Applicant no longer suffers from the accepted injury and seeks a decision that the reviewable decision is varied and a finding is made that:[71]
(a)the Applicant has no present entitlement to compensation for her accepted injury; and
(b)the decision is otherwise affirmed.
[71] Respondent’s Outline of Submissions handed up at Hearing, page 18, paragraph 67.
CONSIDERATION
The Tribunal notes that, rightly there was no dispute or argument raised in relation to the correctness of the decision to accept liability under section 14 of the SRC Act for the Applicant’s major depression disorder, single episode and agoraphobia with panic attacks condition.
The jurisdiction of the Tribunal in this matter extends only as far as considering the Applicant’s entitlement to compensation for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act in relation to the accepted injury. This Tribunal is not making a decision in relation to ongoing entitlement to compensation under sections 16 or 19 of the SRC Act.
The Tribunal considers that the starting point for considering whether entitlement to compensation for permanent impairment and non-economic loss exist requires the Tribunal to be satisfied that the Applicant continues to suffer from the accepted injury and that if so the condition continues to meet the definition of an injury for the purposes of the SRC Act. Only once the Tribunal is satisfied of those points is it then necessary to continue to consider whether the accepted injury results in a permanent impairment, and if so to what extent.
For the purposes of the SRC Act, section 5A and 5B set out the requirements for a condition to be considered an injury.
The Tribunal acknowledges that the Applicant contended that the Tribunal did not need to consider whether her condition met the tests to be considered an injury as her condition had previously been accepted. The Tribunal however disagrees with this argument on the basis that both sections 24 and 27 of the SRC Act clearly require ‘an injury to an employee’ to result in a permanent impairment. As such no such assessment can be made until consideration is given to whether an injury for the purposes of the SRC Act continues to exist. For the purpose of the SRC Act, where an injury does not continue to exist it will further be incapable of causing a permanent impairment.
The Tribunal accepts the Respondent’s contentions in relation to this issue and agrees that the decision of the Federal Court in Prain v Comcare [2017] FCAFC 143 (Prain) applies, in that for the Applicant to continue to suffer an injury for the purposes of sections 24 and 27 of the SRC Act the causative threshold must continue to be met.
The Respondent contended that that the Applicant’s condition was a disease and as such she was required to continue to meet the requirements of section 5B of the SRC Act in order for her condition to be considered to be an injury for the purposes of compensation being payable under sections 24 and 27 of the SRC Act.
The Tribunal notes that the Applicant did not advance any submissions or contentions disputing the characterisation of her condition as a disease.
Based on the evidence before it, the Tribunal finds that the Applicant’s major depression disorder, single episode and agoraphobia with panic attacks condition was a disease and that it is therefore appropriate to consider whether the Applicant continues to suffer from the condition and whether it continues to be contributed to, to a significant degree, by the Applicant’s employment by the Commonwealth.
A significant amount of the medical evidence before the Tribunal had not been seen by the Applicant, Respondent or relevant medical practitioners prior to the conducting of the Tribunal process. Much of the new evidence was provided via the summons process and in this matter as set out above in the summary and analysis provided by Dr Caniato, bought to light evidence of the Applicant having experienced depression and anxiety prior to the work related incident. It also showed an overall consistency of behaviour of the Applicant not to disclose diagnosis of these conditions or relevant treatment occurring prior to the work related incident (other than to Dr Gundabawady). Further, evidence in the form of Rehab Management – Progress Reports provided new details of the Applicant’s impairments resulting from the Applicant’s condition between 2016 and 2017.
As a result, Dr Caniato, psychiatrist, gave evidence that this new material changed his initial opinion in relation to the Applicant’s condition, finding that there was a documented history of psychiatric problems predating the work-related issues leading him to conclude that the Applicant’s major depressive disorder and panic disorder were a pre-existing condition. Dr Caniato formed the view that the Applicant had as a result of the work place incident, experienced an exacerbation of her pre-existing mental health problems due to her work stressors and that the exacerbation had since resolved.
Ms Anderson gave evidence indicating that she formed the view that the Applicant continues to suffer from her major depressive disorder and panic disorder with agoraphobia as well as possibly PTSD. Ms Anderson noted that the Applicant also presented with symptoms of somatization disorder. Ms Anderson formed the view that the Applicant was experiencing significant clinical symptomology and impaired functioning as a result of the harassment and impact of her attempts to have her experience validated and acknowledged. Ms Anderson confirmed at Hearing that she had formed the view that the Applicant had no history of psychiatric illness.
The Applicant contended that up until 2020 the weight of the medical evidence even in the 2019 report of Dr Caniato quiet clearly supported an ongoing claim and questioned how much weight should be placed on Dr Caniato’s 2020 report as it was written without the “benefit of being able to sit with her and hash it out again”. The Applicant contended that Dr Caniato was aware of her personal life stressors.
The Tribunal agrees that Dr Caniato was aware of the Applicant’s present non-work related stressors at the time of writing his 2019 report, however those stressors are not what has led to the change of opinion provided by Dr Caniato. It is the fact that Dr Caniato prior to being asked to provide the 2020 supplementary report and being provided with additional material, was unaware that the Applicant had a history of mental illness that predated the work related incident from at least 2007.
Having reviewed the evidence in totality and having had the benefit of hearing Dr Caniato give evidence the Tribunal prefers the opinion of Dr Caniato over that of Ms Anderson. Ms Anderson had been provided with a limited selection of the relevant evidence and was unaware of the Applicant’s mental health conditions that pre-dated the workplace incident and that Dr Caniato had changed his opinion – both of which she said in her evidence would have been relevant to her consideration in producing her report.
In this regard the Tribunal accepts the contentions made by the Respondent that the evidence of Dr Caniato should be preferred given he is a specialist, he undertook a thorough analysis of the available evidence and his opinions are supported by the contemporaneous documentary records. The Tribunal is satisfied that no conflict of interest arises in this matter that would in any way impact on the weight given to the evidence provided by Dr Caniato.
Dr Caniato provided evidence that he was unable to conclude whether the Applicant was still suffering from symptoms of major depressive disorder and panic disorder with agoraphobia as he had not seen her for twelve months. However, he did conclude that if she was still suffering from symptoms of these disorders then those symptoms were unrelated to the work related injury which he opined had fully resolved.
The evidence of the Applicant indicated that at various times she had been not taking the prescribed medication in relation to managing her accepted injury and that she had further stopped taking her medication sometime in 2019 with no worsening of her psychological symptoms.
Overall, based on the evidence of the Applicant, Ms Anderson and Dr Caniato the Tribunal is unable to conclude that the Applicant was no longer suffering from either the previously diagnosed major depression disorder, single episode and agoraphobia with panic attacks condition or any other psychological condition.
Consequently, on the assumption that the Applicant continued to suffer from a major depression disorder, single episode and agoraphobia with panic attacks condition, of which it considers was a disease for the purposes of sections 5A and 5B of the SRC Act, the Tribunal must consider whether or not it continued to be contributed to, to a significant degree by the Applicant’s employment with the Department.
Relevantly, in relation to this issue, Dr Caniato provided evidence that:[72]
What are the current and/or ongoing contributing factors identified as the significant contributing factor(s) to [the Applicant’s] current condition?
Upon viewing the notes, I am now of the opinion that the work-related issue of 2008/2009 is not materially contributing to her current symptoms, I base this on review of the medical notes, the opinions of the Occupational Therapists and the previous assessment by Dr Karunakaran. I consider that she developed an exacerbation of her major depressive disorder and panic disorder due to work stressors. The exacerbation has resolved.
I therefore consider that other factors are the major factors contributing to her current issues or condition. The most likely factors are likely to be litigation or legal related; other psychosocial factors including relationship stressors, financial stressors may still be relevant but I do not have more recent information on this.
Do you still hold the opinion that employment factors are responsible for 50% of [the Applicant’s] symptoms and non-employment related factors are responsible for the other 50%?
No. I am now of the opinion that employment no longer represents a factor causing or contributing to her current symptoms or issues. I consider that employment has ceased to be a relevant factor, probably some time prior to 2011. I consider the exacerbation of her pre-existing mental health issues resolved some time before the assessment by Dr Karunakaran in 2011.
…..
[72] Exhibit 3, Agreed Tribunal Book, T19, page 430, Supplementary Report of Dr Riccardo Caniato.
Having considered the evidence before it the Tribunal accepts the evidence of Dr Caniato. Further, considering the factors set out in section 5B(2) of the SRC Act the Tribunal considers that any such conditions from which the Applicant presently suffered were not contributed to, to a significant degree from the Applicant’s employment with the Department, in that they did not contribute to a degree that is substantially more than material. This being the case as:
·The length of the Applicant’s employment in comparison to the time that has passed is not material, especially when consideration is given to the non-work related factors that have occurred since the work place incident. Such non-work related factors included legal related issues involving, a workplace dispute, parenting arrangements for her children and other relationship and personal stressors. Consequently, the series of non-work related factors had the effect of pushing the employment factor further and further into the background.[73]
·The Tribunal accepts the evidence of Dr Caniato that the accepted injury was an aggravation of an ailment of which had resolved, at some time well before the Applicant’s claim for compensation for permanent impairment and non-economic loss or at the very least by the Hearing of this matter.
·The evidence before the Tribunal clearly shows that the Applicant had a pre-existing mental health condition prior to the work place incident and a number of times since that incident her condition has improved to the point where she had not continued treatment from a psychologist or psychiatrist and had not taken the recommended medication with limited if any worsening of her psychological symptoms. Further the evidence provided by the Applicant, the Rehab Management-Progress Reports and GP notes, indicates that from May 2016 until the Applicant made her claim for permanent impairment compensation she was reporting a high level of functioning and although was not absent of symptoms, there was a significant lessening of symptoms.
·The Applicant contented that she does not need further treatment with a primary reason being that she has not been actively looking for work and that has been a major stressor for her in the past. The Applicant told the Tribunal it was through the context of not having this major stressor that she had not had a worsening of her symptoms.
·Ms Anderson made reference to the Applicant exhibiting symptoms of somatization disorder which when combined with the evidence of Dr Karunakaran, Dr Gundabawady, Dr Caniato, and the Applicant’s admission that she was not looking for work, make it apparent that a major underlying issue for the Applicant is that she does not wish to have to return to work.
·Throughout her compensation process commencing in 2009 up until the Hearing the Applicant according to a comparison of all available material and the reports provided by doctors and other medical professionals has not on any occasion reported her full medical history or the extent of any functional impairment she may have been experiencing.
·The Applicant has not advanced any reasonable evidence or contentions that contradict the opinion of Dr Caniato or that support that any present psychological condition she may be suffering from was related to or was the continuation of the accepted injury.
[73] Prain at [87].
Consequently, the Tribunal finds that any psychological condition presently impacting upon the Applicant is not contributed to, to a significant manner by the Applicant’s employment with the Department and as such the Applicant does not presently suffer from an injury pursuant to section 5A and 5B of the SRC Act.
As the Tribunal has found that the Applicant does not presently have an injury for the purposes of the SRC Act, it follows that she is not entitled to compensation for permanent impairment or non-economic loss pursuant to sections 24 and 27 of the SRC Act.
CONCLUSION
The Tribunal finds that the Applicant as at, at least the date of Hearing was no longer suffering an injury for the purposes of the SRC Act. Consequently, the Tribunal finds that the Applicant has no present entitlement to compensation for permanent impairment or non-economic loss pursuant to sections 24 and 27 of the SRC Act with relation to her accepted injury.
Accordingly, albeit, for different reasons, the decision under review is affirmed.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of

Member D Mitchell

.........[SGD]................................
Associate
Dated: 12 April 2021

Date of Hearing: 14 and 15 October 2020

Applicant:

Counsel for the Respondent:

By Microsoft Teams

Ms Kate Slack

Solicitors for the Respondent: Australian Government Solicitor